Max Planck Yearbook of United Nations Law 2003 (7)

Max Planck Yearbook

of United Nations Law Volume 7 2003

Max Planck Yearbook of United Nations Law Founding Editors Jochen A. Frowein Rudiger Wolfrum

M:ax Planck Yearbook of United Nations Law Volume 7 2003

Editors Armin von Bogdandy Riidiger Wolfrum Managing Editor Christiane E. Philipp

Max-Planck-Institut fur auslandisches offentliches Recht und Volkerrecht

MARTINUS NIJHOFF PUBLISHERS LEID EN / BOSTO N

A C.LP. Catalogue record for this book is available from the Library of Congress.

This book should be cited as follows: Max Planck UNYB Printed on acid-free paper.

ISBN 90-04- 138 19-6 © 2004 Koninklijke Brill NV, Leiden, The Ne therlands Brill Academic Publishers incorporates the imprint Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means , electronic, mechanical, photocopying, microfilming, recording or otherwise, without written perm ission from the Publisher. Auth orization to phot ocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropri ate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 9 10, Danvers MA 01923, USA. Fees are subj ect to change.

Printed and bound in The Netherlands.

in memoriam SERGIO VIEIRA DE MELLO

Contents List of Contributors Abbreviations

IX XI

Wolfrum, Rudiger, The Attack of September 11,2001, the Wars Against the Taliban and Iraq: Is the re a Need to Reconsider International Law on the Recours e to Force and the Rules in Armed Conflict?

1

Minnerop, Petra, The Classification of States and the Creation of Status within the Int ernational Community

79

Fassbender, Bardo,

All Illusions Shattered? Looking Back on a Decade of Failed Attempts to Reform the UN Security Counc il..

Hilpold, Peter, Regional Integration According to Article XXIV GATT Between Law and Politics

183

219

Cottier, Thomas/ Hertig, Maya,

The Prospects of 21 st Century Constitutionalism

261

VIII

Max Planck UNYB 7 (2003)

Focus: ICC and International Criminal Law

329

Philipp, Christiane E., The International Criminal Court - A Brief Introduction

331

Dbrmann, Knut, War Crimes under the Rome Statute of the International Criminal Court, with a Special Focus on the Negotiations on the Elements of Crimes

341

Wagner, Markus, The ICC and its Jurisdiction - Myths, Misperceptions and Realities

409

Riiben, Volker, The Procedure of the ICC: Status and Function of the Prosecutor

513

Seibert-Fohr, Anja, The Relevance of the Rome Statute of the International Criminal Court for Amnesties and Truth Commissions

553

Benzing, Markus, The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity

591

Annex

633

-

-

Diagram of the International Criminal Court's Procedure and Organization

635

Rome Statute of the International Criminal Court

637

Book Reoietos

737

List of Contributors Benzing, Markus Junior Fellow at the Max Planck Institute for Comparative Public Law and International Law; Ph.D. candidate at the Faculty of Law, University of Heidelberg Cottier, Thomas Professor of Law, LL.M., Managing Director of the Institute of European and International Economic Law of the University of Berne and the World Trade Institute Dormann, Knut Legal Adviser at the Legal Division of the International Committee of the Red Cross, Geneva. Member of the ICRC delegation to the Preparatory Commission for the International Criminal Court Fassbender, Bardo Dr. iur., LL.M. (Yale), Assistant Professor at the Institute of International and European Law, Humboldt University Berlin; Lecturer in International Law at the University of St. Gallen. Hertig, Maya Attorney, Dr. iur., Senior Research Fellow at the Institute of European and International Economic Law of the University of Berne Hilpold, Peter Professor of Law at the University of Innsbruck, Austria

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Minnerop, Petra Ph.D. candidate at the Faculty of Law, University of Gottingen Philipp, Christiane E. Dr. iur., Fellow at the Max Planck Institute for Comparative Public Law and International Law Roben, Volker Dr. iur., Fellow at the Max Planck Institute for Comparative Public Law and International Law Seibert-Fohr, Anja LL.M.; S.J.D. cando (George Washington University) , Fellow at the Max Planck Institute for Comparative Public Law and International Law Wagner, Markus Junior Fellow at the Max Planck Institute for Comparative Public Law and International Law; Ph.D. candidate at the Faculty of Law, University of Frankfurt/Main Wolfrum, Rudiger Dr. iur., Dr. h.c., Professor of Public Law, Un iversity of He idelberg; Director at the Max Planck Inst itute for Comparative Public Law and Int ernational Law; Judge at the International Tribunal for the Law of the Sea, Hamburg

Abbreviations ACABQ AD A.F.D.I. AJDA AJIL Am. U. J. Int'l L. & Pol'y Am. U. Int'l L. Rev. Anu, Der. Internac.

Arch. de Philos. du Droit Aus Pol. & Zeitgesch. Austrian J. Publ. Int. Law Austr. Yb. Int'l L. AVR Brook. J. Int'l L. B. U. Int'I L. J. BVerfGE BYIL Cal. W. Int'l L. J.

Advisory Committee on Administrative and Budgetary Questions Annual Digest of Public International Law Cases Annuaire Francais de Droit International ActualiteJuridique-Droit Administratif American Journal ofInternational Law American University Journal of International Law and Policy American University International Law Review Anuario de Derecho Internacional Archives de Philosophie du Droit Aus Politik und Zeitgeschichte Austrian Journal ofPublic International Law Australian Yearbook ofInternational Law Archiv des Volkerrecht s Brooklyn Journal of International Law Boston University International Law Journal Decisions of the German Federal Constitutional Court British Yearbook of International Law California Western International Law Journal

XII

Cal. W. 1. Rev. Case W. Res.]. Int'[ 1.

Max Planck UNYB 7 (2003)

California Western Law Review Case Western Reserve journal of International Law

CL] CMLRev.

Cambridge Law journal Common Market Law Review Colo. J. Int'l Envtl. 1. & Pol'y Colorado journal ofInternational Environmental Law and Policy Colum. Hum. Rts. 1. Rev. Columbia Human Rights Law Review Colum. J. Transnat'l 1. Columbia journal of Transnational Law Colum. 1. Rev. Columbia Law Review Comunita Internaz. La Comunita Intemazionale Conn. J. Int'l 1. Connecticut journal of International Law Cornell Int'l 1. ] . Cornell International Law journal CYIL Canadian Yearbook ofInternational Law Den. J. Int'\, 1. & Pol'y Denver journal of International Law and Policy DGVR German Society of Public International Law Dick. J. Int'l 1. Dickinson journal of International Law Duke J. Compo & Int'l 1. Duke journal of Comparative and International Law Duq. 1. Rev. Duquesne Law Review Europa-Archiv EA ECOSOC Economic and Social Council ed. editor eds editors EFTA European Free Trade Association e.g.

exempli gratia

EJIL

European journal ofInternational Law

ELJ Envtl. 1. Rep.

European Law journal

Env. Policy & Law

Environmental Policy and Law

Environmental Law Reports

Abbreviations EPIL et al. et seq. etc. EuGRZ EuZW

FAa F!a. J. Int'l L. Fordham Int'l L. J. Foreign Aff. Foreign Pol'y Ga. J. Int'l & CompoL. Geo. Int'! Envtl. L. Rev.

XIII

Encyclopedia of Public International Law et alii et sequentes et cetera Europdische Grundrechte Zeitscbrift Europaische Zeitschrift fiir Wirtschaftsrecht Food and Agriculture Organization FloridaJournal of International Law Fordham International Law Journal Foreign Affairs Foreign Policy Georgia Journal of International and Comparative Law Georgetown International Environmental Law Review

Georgetown Law Journal Geo. L. J. Geo. Wash. J. Int'! L. & Econ. George Washington Journal of International Law and Economics Geo. Wash. L. Rev. GYIL Harv. Int'l L. J. Harv. L. Rev.

George Washington Law Review German Yearbook of International Law Harvard International Law Journal Harvard Law Review

Hastings Int'l & Compo L. Rev. Hastings International and Comparative Law Review HRLJ HRQ

Human Rights Law Journal Human Rights Quarterly

HuV-I

Humanitdres Volkerrecht - Informationsschrift International Atomic Energy Agency ibidem; in the same place International Bank for Reconstruction and Development

IAEA ibid. IBRD

XIV

ICAO

ICJ ICLQ ICSID id. IDA i.e.

IFAD I]IL ILA ILC ILCYB ILM ILO ILR ILSA]. Int'l L.

Max Planck UNYB 7 (2003)

International Civil Aviation Organisation International Court of Justice International and Comparative Law Quarterly International Centre for the Settlement of Investment Disputes idem; the same International Development Association id est; that is to say International Fund for Agricultural Development Indian Journal of International Law International Law Association International Law Commission Yearbook of the International Law Commission International Legal Materials International Labour Organization International Law Reports

Int'l Law.

ILSAJournal of International Law (International Law Students Association) International Monetary Fund International Marit ime Organization Indian Journal of Global Legal Studies International Affairs The International Lawyer

Int'I Rev. of the Red Cross

International Review ofthe Red Cross

Iowa L. Rev.

Iowa Law Review

IP

Die internationale Politik

Isr. L. R.

Israel Law Review

IMF IMO Ind. J. Global Legal Stud. Int'l Aff.

Isr. Y. B. Hum. Rts

Israel Yearbook on Human Rights

J. Int'l Aff.

Journal ofInternational Affairs

]IEL

Journal of International Economic Law

xv

Abbreviations

JIR JPR

jahrbuch fur internationales Recht journal of Peace Research

JWT JWTL Law & Conternp. Probs

journal of World Trade journal of World Trade Law Law and Contemporary Problems

Leiden journal of International Law LJIL League of Nations Treaty Series LNTS Loy. 1. A. Int'l Camp. 1. Rev. Loyola of Los Angeles International and Comparative Law Review

Mc Gill L.J. Mich. J. Inr'l 1. Mich. 1. Rev. Mil. 1. Rev. Minn. J. Global Trade NAFTA NATO NILR NJCL Nord. J. Int'l 1. NQHR NYIL

N. Y. U. J. Int'l 1. & Pol. N. Y. U. 1. Rev. Ocean & Coastal 1. J. ODILA OZoRV

0JEC Pace Int'l Law Rev.

McGill Law journal Michigan journal of International Law Michigan Law Review Military Law Review Minnesota journal of Global Trade North American Free Trade Area North Atlantic Treaty Organization Netherlands International Law Review Nationaljournal of Constitutional Law Nordicjournal of International Law Netherlands Quarterly ofHuman Rights Netherlands Yearbook of International Law New York University journal of International Law and Politics New York University Law Review Ocean and Coastal Law journal Ocean Development and International Law Dsterreichische Zeitschrift fur offentliches Recht und Volkerrecht Official Journal of the European Communities Pace International Law Review

XVI

PCIJ Pol. Sci. RADIC RBDI

Max Planck UNYB 7 (2003)

Permanent Court of International Justice Political Science Revue Africaine de Droit International et Compare Revue Belge de Droit International

RdC

Recueil des Cours de l'Academie de Droit International

RDI

Revue de Droit International, de Sciences Diplomatiques et Politiques

RECIEL

Review of European Community and International Environmental Law

REDI

Revista Espanola de Derecho Intemacional

Rev. Dr. Mil. Dr. Guerre

Revue de Droit Militaire et de Droit de la Guerre

Rev.ICR RGDIP

Revue Internationale de la Croix Rouge Revue Generale de Droit International Public

RIAA

Reports of International Arbitral Awards

RIW Riv. Dir. Int. RTDE

Recht der Internationalen Wirtschaft R ivista di Diritto Internazionale Revue Trimestrielle de Droit Europeen

RUDH

Revue Universelle des Droits de L'homme

San Diego L. Rev.

San Diego Law R eview

Santa Clara L. Rev.

Santa Clara Law Review

Stanford J. Int'l L. SZIERIRSDIE

Stanford Journal ofInternational Law Schweizerische Zeitschrift fur internstionales und europiiiscbes Recht/Reuue Suisse de Droit International et de Droit

Europeen Temp. Int 'l & Compo L. J.

Temple International and Comparative Law Journal

Tex. Int'l L. J.

Texas International Law Journal

Abbreviations

XVII

Tex. 1. Rev. Transnat'l, 1. & Contemp, Probs

Transnational Law and Contemporary Problems

Tul. Envtl. 1. J.

Tulane Environmental Law Journal

Tul. J. Int'l & Compo1.

Tulane Journal of International and Comparative Law University of Chicago Law Review

U. Chi. 1. R. UCDLRev. UCLAJ. Envtl. 1. & Pol'y

UCLA J. Int'l L .& Foreign Aff. UCLA Pac. Basin 1. J. UNCIO UNCITRAL UNCTAD UNDP UNEP UNESCO UNFPA UNHCR UNICEF UNIDO UNITAR

Texas Law Review

University of California Davis Law Revie w University of California Los Angeles Journal of Environmental Law and Policy University of California Los Angeles Journal of International Law and Foreign Affairs University of California Los Angeles Pacific Basin Law Journal United Nations Conference on International Organization United Nations Commission on International Trade Law United Nations Conference on Trade and Development United Nations Development Programme United Nations Environment Programme United Nations Educational, Scientific and Cultural Organization United Nations Population Fund United Nations High Commissioner for Refugees United Nations Children's Fund Uni ted Nations Industrial Development Organization United Nations Institute for Training and Research

XVIII

UNJYB UNOSOM UNPROFOR UNRWA

UNTS UNU UNYB UPU Va. J. Int'l L. Va. L. Rev. Vand. J. Transnat'l L. Vol. VRU WComp. Wash. L. Rev. WFP WIPO WMO

WTO Yale L. J. YaleJ. Int'l L. ZaoRV ZEuS ZRP Z. vgl. R. Wiss.

Max Planck UNYB 7 (2003)

United Nations Juridical Yearbook United Nations Operation in Somalia United Nations Protection Force in (former) Yugoslavia United Nations Relief and Works Agency for Palestine Refugees in the Near East United Nations Treaty Series United Nations University Yearbook of the United Nations Universal Postal Union Virginia Journal of International Law Virginia Law Review Vanderbilt Journal of Transnational Law Volume Verfassung und Recht in Ubersee World Competition Washington Law Review World Food Programme World Intellectual Property Organization World Meteorological Organization World Trade Organization Yale Law Journal Yale Journal of International Law Zeitschrift fur ausldndisches offentliches Recht und Volkerrecht Zeitschrift fur europarechtliche Studien Zeitscbrift fur Rechtspolitik Zeitscbrift fur die vergleichende Recbtswissenschaft

The Attack of September 11, 2001, the Wars Against the Taliban and Iraq: Is There a Need to Reconsider International Law on the Recourse to Force and the Rules in Armed Conflict? Rudiger Wolfrum

I. II.

Introduction Prohibition of the Use of Force in International Relations: Content, Scope and Exceptions 1. Article 2 (4) UN Charter 2. The Prohibition of the Use of Force and its Meaning for the Community of States 3. Authorization of the Use of Force by the Security Council 4. Incapacity of the Security Council as a]ustification to Act UnilateraJIy 5. Humanitarian Intervention 6. Legitimi zation of the Use of Force as Self-Defence or Other Forms of Self-Help a. Article 51 UN Charter b. Anticipatory and Pre-emptive Self-Defence c. Addressees of Acts of Self-Defence III. Jus in Bello 1. Introduction 2. Use of Weapon s 3. Prisoners of War and Prosecution of War Crimes 4. Occupation a. Introduction b. General Obligation of the Military Occupant c. The Re-Establishment of an Effective Infrastructure d. The Protection of Cultural Property e. The U se of Natural and Other Resources IV. The Role of the United Nations in the Po st-conflict Period of Iraq V. Conclusions

A. von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 7. 2003, 1-78. © 2003 Koninklijke Brill N. v: Printed in the Netherlands.

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I. Introduction The attack of September 11, 2001 against the United States, the war against the Taliban in reaction thereto, and, in particular, the war against Iraq in 2003 have prompted dissonant views concerning the international law regime governing the recourse to military force. Some commentators have deplored the military actions taken by the United States and its allies against the Taliban, and particularly against Iraq as being in violation of the international law prohibition against the unilateral use of force. They take the position that such practice is likely to erode the principle that prohibits resort to force in international relations. Others have argued that these incidents make it necessary to reconsider the scope and content of the principle of the prohibition of the use of force.! The issue is a complex one. It is not only necessary to consider the ambit of the international law prohibition of the illegitimate recourse to force or - to phrase the question in a different way - under what circumstances or in pursuing what objectives is recourse to force legitimate under international law, but also to determine which law governs the respective military conflict and the period thereafter. To put it more generally, the attack of September 11,2001, the war against the Taliban and the war of 2003 against Iraq have put the ius ad bellum and the ius in bello on the test bench. None of these incidents should be considered in isolation; they should also be seen in connection with the war against Iraq in 1990/1991 and the military intervention in the former Yugoslavia in 1999. What is of interest for the development of international law is whether the actions taken by the United States and its allies and the reaction thereto from the international community reveal a pattern or a tendency indicating that there have been changes in the international law concerning the use of force and the law in armed conflict. As will be shown later, international law and customary internationallaw are quite responsive to new challenges. Two different situations have to be taken into consideration. Where no international rule exists, it is much easier to ague in favour of the development of new rules. However, where the development of new rules

*

I am grateful to Thomas Mensah, Judge at the International Tribunal for the Law of the Sea, for his valuable recommendations. WM. Reisman, «Assessing Claims to Revise the Laws of War", A]IL 97 (2003), 82 et seq.

Wolfrum , Recourse to Force and ius in bello Reconsidered?

3

would result in the derogation of established ones the onus is on those advocating the development of new rules, to prove that the old rules have fallen into desuetudo or have been replaced by new ones . In any case, before considering the modification of existing rules, it is necessary to establish, whether all the possibilities of interpreting and adapting the existing rules to the new situation have been exhausted. For example the notion of "matters ... within the domestic jurisdiction" as referred to in Article 2 (7) UN Charter has a different meaning under the increased bearing of the international protection of human rights than it had in 1945. The developments referred to since September 11,2001 have neither put the existence of international law into question, nor undermined its regulatory function for the conduct of international relations.I Those who argue the point differently3 attempt to revitalize theories which have been voiced before." Such theories do not reflect the realities of international relations where the rule of law is an established principle. Although the means to enforce international law, or rather induce its implementation and compliance with it, differ from the enforcement mechanisms on the level of national law.t None of the states which participated in the military action against Iraq has denied that binding force of international law, in general, or its prohibition to have recourse to military force. On the contrary, they, and in particular the United

2

3

4

5

].A. Frowein, "Ist das Volkerrechr tot?", Frankfurter Allgemeine Zeitung of 23 July 2003,6. See amongs t others J.R. Bolton, "Is there Really "Law" in International Affairs", Transnat'l L. &.Contemp. Probs 10 (2000), 1 et seq.; R. Kagan, "Power and Weakness", Policy Review No. 113. J. Austin, Lectures on Jurisprudence or the Philosophy of Positive Law, 5th edition 1911, in particular Lecture VI; see on that M. Koskenniemi, The Gentle Civilizer ofNations, 2002. Quite some research has been undertaken on this issue; see for example: E. Brown-Weiss/ H.K. Jacobsen, Engaging Countries, 1998; R. Wolfrum, "Means of Ensuring Compliance with and Enforcement of International Environmental Law", RdC 272 (1998), 25 et seq., both with further references and on the enforcement of international law in general. A more general inquiry on the issue of compliance or non compliance of states with their international oblig ations has been undertaken by A. Charles/ A.H. Chayes, The New Sovereignty, 1995, critical in this respect L.P. Damrosch, "The Permanent Five as Enforcers of Controls on Weapons of Mass Destruction: Building on the Iraq 'Precedent?', E]/L 13 (2002), 305 et seq.; she argues that only enforcement measures will prove to be effective.

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States and the United Kingdom, have made every attempt to justify their actions vis-a-vis the Security Council and the community of states at large. Although one may disagree with their reasoning in substance, such reasoning constitutes a clear confirmation of their acceptance of the view that recourse to military force needs justification under international law. This is not meant to diminish or even to deny the existence of a profound divergence of views between, on the one hand, those who advocate the use of military force against Iraq - and thus a reinterpretation or modification of existing international law in that respect - and, on the other hand, those who are opposed to the use of military action in the circumstances. They disagree to some extend on status and scope of the international law prohibition on the use of military force in international relations and the factors legitimizing such use of force. The two groups further disagree on the scope, content and applicability of some aspects of the rules governing such conflicts, including in particular the scope of respective customary international law, the limits to targeting, the treatment of detainees and the rules governing military occupation. Phrased in more general terms, disagreement exists on some aspects of the methods and means of warfare, especially against an enemy which itself disregards the rules of warfare.

II. Prohibition of the Use of Force in International Relations: Content, Scope and Exceptions 1. Article 2 (4) UN Charter A central element in modern international law is the prohibition of the unilateral use of force in international relations as codified in Article 2 (4) UN Charter." Marking a decisive evolution of international law in

6

There is an overwhelming literature dealing with the international prohibition of the use of force in particular. See for example: C. Antonopoulos, The Unilateral Use of Force by States in International Law, 1997; B. Asrat, Prohibition of Force under the UN Charter: A Study of Art. 2 (4), 1991; D.W. Bowett, Self-Defence in International Law, 1958; 1. Brownlie, International Law and the Use of Force by States, 1963; J. Delbriick, "Effektivitat des UN-Gewaltverbots: Bedarf es einer Modifikation der Reichweite des Art. 2 (4) UN Charta", Die Friedenswarte 74 (1999), 139 et seq.; Y. Dinstein, War, Aggression and Self-Defence, 3rd edition 2001; T.M. Franck, "Who killed Art. 2 (4), or: The Changing Norms Governing the Use of

Wolfrum, Recourse to Force and ius in bello Reconsidered?

5

the last century," this provision obliges all Member States, and as customary international law all states, to refrain in their international relations from the threat of force or the use of force." This provision is part of the 'Purposes and Principles' of Chapter I of the United Nations Charter which the drafters considered of transcendent importance indicating the directions which the activities of the Organization were to take and the common ends of its mernbers.? The prohibition of unilateral recourse to force by states is generally held to be a principle of customary international Iawl? and to constitute a peremptory norm of international law (ius cogens ).11 The scope of the evolution that international law has undergone concerning the prohibition of the use of force becomes apparent by comparing Article 2 (4) UN Charter with article I of the Kellogg-

7

8

9 10

11

Force by States", AjIL 64 (1970), 809 et seq.; T.M. Franck, "When, If Ever, May States Deploy Military Force Without Prior Security Council Authorisation", SingaporeJournal of International and Comparative Law 4 (2000), 362 et seq.; T.M. Franck, Recourse to Force: State Action Against Threats and Armed Attacks, 2002; C. Gray, International Law and the Use of Force, 2000; S. Khare, Use of Force under the UN Charter, 1985; H. Neuhold, Internationale Konflikte - Verbotene und erlaubte Mittel ihrer Austragung, 1977; D . Schindler, "Die Grenzen des volkerrechtlichen Gewaltverbots", Reports of the DeVR 26 (1986), 11 et seq.; S.M. Schwebel, "Aggression, Intervention and Self-Defence in International Law", RdC 136 (1972), 411 et seq.; A. Randelzhofer, "Art. 2 (4)", in: B. Simma (ed.), The Charter of the United Nations, 2nd edition, 2002; J. Zourek, L'interdiction de l'emploi de la force en droit international, 1974; R. Mullerson, "Jus ad bellum: Plus \a change (le monde) plus c'est la meme chose (Ie droit)",Journal of Conflict and Security Law 7 (2002), 149 et seq. See in this respect for example : G. Dahm/ ]. Delbriick/ R. Wolfrum, Volkerrecht 113, 2002, 816 et seq. Franck, Recourse to Force, see note 6, 12 points out that the obligation to respect the territorial integrity or political independence of any state was meant to strengthen the obligation under Article 2 (4) UN Charter. Any attempt to exclude minor military action from the ambit of that provision is therefore incongruent with the intent of the drafters of this provision. See L. Goodrich/ E. Hambro, Charter of the United Nations: Commentary and Documents, 2nd edition, 1949, 22. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), IC] Reports 1986,14 et seq. (99, para. 188). IC], see above; Dinstein, see note 6, 93 et seq.; M.N. Schmitt, "Pre-emptive Strategies in International Law", Mich. j. Int'l L. 24 (2003) 513 et seq. (525).

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Briand Pact of 27 August 1928 12 which itself already constituted a major step in the progressive development of international law in this respecr.P Article I of this Pact abandons the unrestricted freedom to resort to war as a feature of state sovereignty and imposes in its place a universal and general prohibition of war as an instrument of national policy in the relations amongst states. Article 2 (4) UN Charter has broadened this prohibition by also covering the use and the threat to use force. This prohibition of the unilateral use of force is meant to be implemented and enforced by a system of collective sanctions against any offender as provided for under Chapter VII of the UN Charter. It has been argued with respect to the case of Iraq, amongst others, that the system of collective sanctions has failed since the Security Council has been unable to enforce the obligation it had imposed upon Iraq with the view to preserving peace and security and, accordingly, that resort to unilateral force was again not only possible but mandatory.!"

12

13

14

LNTS Vol. 94 No. 2137 General Treaty for the Renunciation of War as an Instrument of National Policy. The Pact provided the legal basis for multiple bilateral non-aggression pacts, for example: between Germany and Luxembourg (11 September 1929), Germany and the Kingdom of Denmark (31 May 1939) and Germany and the USSR (23 August 1929). The violation of these agreements provided a basis for charges at the Nuremberg Trials . The Kellogg-Briand Pact is still considered to be in force; Barbados (30 November 1966), Fiji (10 October 1970) and Grenada (7 February 1974) have declared to further apply it. The system of the League of Nations constituted the first attempt under modern international law to limit the right of states to have recourse to war. Article 15 of the Covenant of the League of Nations of 1919 -chttpc//www.ku.edu/carrie/docs/texts/leagnat.htrnb- obliged states not to resort to war as long as a dispute was under consideration by the Council of the League of Nations. Once the process set into motion had failed to produce an amicable settlement the parties of the conflict remained free "to take such action as they shall consider necessary for the maintenance of right and justice". In the period between the wars multilateral treaties attempted to further limit the possibility of states to have recourse to war. For example, according to article 2 of the Locarno Treaty (Treaty of Mutual Guarantee) of 16 October 1925 (LNTS Vol. 54 No. 1292), the States parties to that treaty undertook "... in no case [to] attack or invade each other or to resort to war ...". Another example to that extent is the Anti War Treaty of 10 October 1933 (LNTS Vol. 163 No. 3781). See, for example, the statement of the Permanent Representative of Australia in the Security Council, Doc. S/PV. 4726 of 26 March 2003, 27; on the validity of that argument see below.

Wolfrum, Recourse to Force and ius in bello Reconsidered?

7

It is the prevailing view that scope and content of the prohibition on the unilateral use of force cannot be interpreted on the basis of Article 2 (4) UN Charter alone. Arts 39, 51 and 53 of the UN Charter have also to be taken into consideration. Nevertheless, there are uncertainties as to the exact meaning of the notion of force which neither the rulings of the IC] nor resolutions of the UN General Assembly'! have overcome. As far as the definition of the notion of force is concerned only the qualification of the attack of September 11, 2001 poses a problem. The attack of September 11, 2001 was not an act of war although, at that time, politically it qualified as such. The term 'war' only describes armed conflicts between states or amongst them and organised groups or amongst such groups. This term does not embrace terrorist actions against the civilian population of another state." On the other hand, the action taken by the United States in response to the terrorist attack of September 11, 2001 constituted the use of force against the Taliban within the meaning of Article 2 (4) UN Charter and therefore requires justification under international law, self-defence being the only reliable option.l/ Equally, the military attack on Iraq constituted an act of force. In respect of that it has been argued that it was either authorised by the UN Security Councilor that it was a legitimate act of self-defence. IS Although this shifts the emphasis in the analysis of this article onto the Iegirimisation of the recourse to force, an assessment of the meaning of this central principle of international law is necessary.

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Definition of Aggression A/RES/3314 (XXIX) of 14 December 1974; A/RESI2625 (XXV) of 24 October 1970 (Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations; A/RES/42122 (1987) of 18 November 1987 (Refraining from the Threat or Use of Force); T. Treves, "La Declaration des Nations Unies sur la renforcement de l'efficacite du principe du non recours a la force ", A.F.D.I. 33 (1987) 379 et seq., points out that this resolution doe s not make a respective attempt to deal with controversial issues. C. Tomuschat, "Der 11. September 2001 und seine rechtl ichen Folgen", EuGRZ 28 (2001), 535 et seq. (536); EL. Kirgis, "Security Council adopts Resolution in Combating International Terrorism", ASIL Insight 2001; J. Cerone, "Acts of War and State Responsibility in 'Muddy Waters': The Non-state Actor Dilemma", ASIL Insight 2001; R. Wolfrum/ C. Philipp, "The Status of the Taliban: Their Obligations and Rights under International Law", Max Planck UNYB 6 (2002), 559 et seq. (588). See below. See below.

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Max Planck UNYB 7 (2003)

2. The Prohibition of the Use of Force and its Meaning for the Community of States The prohibition of the use of force is one of the constituent principles of the community of states. The term 'community of states' or, more appropriately, 'international community"? can theoretically mean different things in different contexts. In the context used here it means that states have assented to community values which are the basis for a normative order guiding the conduct of states in international relations or in issues which are of international concern. By referring only to states in this context is not meant to ignore the growing impact nongovernmental actors have not only on the formation of the common values of the international community but on the normative order as wel1.2° Neither the common values nor sti11less the normative order is static; it is in permanent development. In former periods of international law attempts were made to develop common values of the international community from the common Christian beliefs. Subsequently, this approach was superseded by references to natural law as the ultimate foundation for international law values. As at present, taking into consideration the plurality of states and peoples and their differing cultural, religious, economic and national political backgrounds on the one hand, and on the other the growing universal interdependence of factors governing the lives of individuals, common values can only develop - on the universal or re-

19

20

See in particular on this R.]. Dupuy, "Cornmunaute international et disparite de developpent", RdC 165 (1979), 21 et seq.; G. Abi-Saab, "Whither the International Community", EJIL 9 (1998), 248 et seq.; C. Tomuschat, "Die Internationale Gemeinschaft", AVR 33 (1995), 1 et seq.; A.L. Paulus, Die Internationale Gemeinschaft im Volkerrecht - Eine Untersuchung zur Entwicklung des Volkerrechts im Zeitalter der Clobalisierung, 2001; B. Simma/ A.L. Paulus, "The 'International Community': Facing the Challenge of Globalization", EJIL 9 (1998),266 et seq.;J.A. Frowein, "Konstitutionalisierung des Volkcrrechts", Reports of the DCVR 39 (2000), 427 et seq.; C. Walter, "Constitutionalizing (Inter)national Governance: Possibilities for and Limits to the Development of an International Constitutional Law", CYIL 44 (2001),170 et seq.; Dahm/ Delbriick/ Wolfrum, see note 7, 776 et seq. O. Schachter, "The Decline of the Nation-state and its Impact for International Law", in:].I. Charney/ D.K. Anton/ M.E. O'Connell, Politics, Values and Functions: International Law in the 21st Century, 1997, 13 et seq. (19).

Wolfrum, Recourse to Force and ius in bello Reconsidered?

9

gionallevel - in a free and permanent discourse of the respective governmental and social factors. They are not pre-existent but have to be developed. The international system provides for various mechanisms for this development. It offers institutions and procedures such as codification conferences, state conferences, the UN General Assembly, the Security Councilor the institutions of international organizations. In addition non-governmental fora such as the one which has developed the San Remo Manual-! are of relevance. The results achieved may be of a general normative nature but may also constitute binding decisions as the ones issued by the Security Council under Chapter VII UN Charter. In effect, the international common values thus developed crystallize into international norms or form the respective foundation for such norms which together constitute the international normative order. Hence, there is a permanent mutual cross fertilization between the community values and the international normative order. Those international norms which have contributed to the progressive development of international common values are the UN Charter, in particular, its principles and purposes,22 the international human rights regime, the international economic and the international environmental regime. The common value system was further enhanced by the establishment of the ICC providing for the prosecution of individual offenders on the basis of internationally accepted criminal law. What is the meaning of the prohibition of the use of force in this context? Through it - and that is its most traditional meaning - the very existence of each member of the international community is guaranteed, as well as its right to participate in the process for the development and articulation of common values and norms. But the prohibition of the use of force is more than a limitation on the means through which states may pursue their political intentions. It reflects a value judgment of the international community, namely, that no objective pursued by a state justifies recourse to force in international relations, except where international law so provides. The qualification of the prohibition of force as a reflection of a value judgment transpires from the wording of article F3 of the Kellogg-Briand Pact as well as from

21

22

23

San Remo Manual Applicable to Armed Conflict at Sea B.D. Lepard, Rethinking Humanitarian Intervention, 2002,39 et seq. "The High Contacting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of in-

10

Max Planck UNYn 7 (2003)

that of Article 2 (4) UN Charter. Both provisions clearly establish that a recourse to war or, respectively, recourse to force is not a legitimate means to pursue national policy in international relations. The prohibition of the use of force is, as already indicated, not of an absolute nature, though. The possibility of self-defence has been clearly acknowledged. This exception is in line with what has been said earlier. As the prohibition of the use of force is meant to protect the existence of each member of the international community, it follows that each member of the international community has the right to implement that principle against an offender, independently of actions that may be taken by the international community acting through the Security Council. International law also provides for resort to force against a state having fundamentally violated common values. However, the legality of force in this case must be decided upon in a different procedure . In such a case the resort to force is not a means to protect the existence of one member of the international community but rather a means to protect the community as such, namely its normative system. In this connection it is noted that those who argue in favour of the legality of the use of military force against Iraq in fact referred to that aspect. They have claimed that the military action against Iraq was the only remaining means to effectively ensure compliance by Iraq with its international obligations.v' But in such a situation it would appear that only the international community as a body can act or may authorize an individual state or group of state to act on its behalf. For the notion of unilateral use of force as a means to enforce international law in general it cannot be conceived as compatible with the maintenance of the fabric of an international normative order which is the foundation of an international community. It is accordingly incorrect to claim that international law prohibits the resort to armed force in absolute terms and, on that basis, to argue

24

ternational controversies, and renounce it, as an instrument of national policy in the relations with one another". See letter of 20 March 2003 from the Permanent Representative of Australia to the United Nations addres sed to the President of the Security Council (Doc. 5/2003/350 of 20 March 2003; "... The objective of the action is to secure compliance by Iraq with its disarmament obligations as laid down by the Council ..."; in this respect, an identical letter has been sent by the Permanent Representative of the United Kingdom (Doc. 5/2003/350 of 21 March 2003).

Wolfrum, Recourse to Force and ius in bello Recon sidered?

11

that there is a "cultural division" concerning the use of force." The correct position is rather that the UN Charter channels the use of force. Only if force is used to protect a state, force may be used unilaterally and upon the decision of the state concerned to counter this attack. In all other cases, in particular, when force is used to defend community interests, it is for the institutions representing this international community, namely the Security Council, to take respective counter measures which may include the use of force. The underlying philosophy of Arts 2 (4) and 39 et seq. of the UN Charter reflects a certain value decision taken at the time when the UN Charter was adopted. It was heavily influenced by the experiences of the two world wars. An act of a state contrary to this value decision, even if such action is upheld by the international community, does not yet change this underlying philosophy. To the contrary, as long as other members of the international community remain committed to that value decision it remains in force and the political price to be paid by the violating state is high.

3. Authorization of the Use of Force by the Security Council The members of the United Nations have conferred upon the Security Council primary responsibility for the maintenance of world peace and international security. To this extent, the Security Council acts in their name (Article 24 UN Charter). The members of the United Nations have, according to Article 25 UN Charter, agreed to accept and carry out the decisions of the Security Council. Article 39 UN Charter authorizes the Security Council to determine that a threat to or a breach of the peace exists. Article 39 UN Charter grants to the Security Council broad - certainly not unlimited-" - discretionary powers which the Security Council on several occasions was ready to exhaust. For instance, in October 2002 the Security Council labelled the hostage taking at the Moscow theatre a threat to international peace? and did the same concerning the bombing in Bali.28 It has even characterized Libya's fail-

25 26

27 28

M.J. Glennon, "Why the Security Council failed", Foreign Aff. 8 (2003),16 et seq. (21). For that reason the statement of Schmitt, see note 11, 527, that a threat to peace is what the Security Council declares as such, disregards the inherent limitations of the Security Council under Chapter VII UN Charter. S/RES/1440 (2002) of 24 October 2002. S/RES/1438 (2002) of 14 October 2002.

12

MaxPlanck UNYB 7 (2003)

ure to cooperate in the prosecution of the Pan Am Flight 103 bombers as a threat to peace." This declaration under Article 39 UN Charter is the precondition for the Security Council to take measures in accordance with Chapter VII of the UN Charter with the view to maintain or to restore international peace and security. The measures the Security Council may include, are according to Article 42 UN Charter, military measures if other measures are considered inadequate or have proved to be inadequate. To that end all members have undertaken" ... to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, ..., necessary for the purpose of maintaining international peace and security" (Article 43 UN Charter). The idea of securing peace through collective action is an old one; in the history of ideas it can be traced to, among others, Abbe St. Pierre, Emanuel Kant and William Penn. No agreements or arrangements as envisaged by Article 43 UN Charter have been concluded so far, leaving, at least in theory, a vacuum concerning the implementation of the collective security system. However, practice has filled or rather overcome this gap since the Security Council, instead of using forces at its disposal, has authorized states ready to do so (so-called coalition of the willing) on an ad hoc basis to respond militarily to a threat or breach of the international peace and security. The basis for such an approach is to be found in Article 42 UN Charter, read alone or in conjunction with Article 48 UN Charter.P The first situation in which such an approach was used was the Korean war where the Security Council held - acting under Chapter VII of the UN Charter - "... that the Members of the UN furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area" .31 In 1960 the Security Council authorized another coalition of the willing to respond to an appeal of the government of the Republic of the Congo to restore order and facilitate the removal of Belgian

29 S/RES/748 (1992) of 31 March 1991. 30 SeeJ.A. Froweinl N. Krisch, "Art. 42" , MN 20-24, in: Simma, seenote 6. 31 S/RES/83 (1950) of 27 June 1950; S/RES/82 (1950) of 25 June 1950 had already stated that there had been a breach of peaceand thus invoked Article 39 UN Charter. Froweinl Krisch, see above, MN 21 take the view that the respective action of the Security Council was merely a recommendation to use selfdefence.

Wolfrum, Recourse to Force and ius in bello Reconsidered?

13

troops.V In 1966 the Security Council authorized the British navy to enforce UN sanctions against the government of Southern Rhodesia.P The most significant example to that extent is, though, the authorization of states co-operating with the government of Kuwait "to use all necessary means" to reverse the aggression of Iraq and to restore peace and security in the area." There have been subsequent occasions where the Security Council has authorized the use of force by states to achieve specified objectives and thus to restore international peace and security. The Security Council has authorized a multilateral force "to use all necessary means" to facilitate the ousting of the military leadership from Haiti-" and has mandated the United States and other willing states "to use all necessary means" to achieve the objectives as defined by the Security Council vis-a-vis Somalia.I" In Resolution 1386 the Security Council authorized the creation of an Interim Assistance Force for Afghanistan and welcomed the offer of the United Kingdom to organize and command the force.V Alternatively, the Security Council may turn to regional organizations. The particularity of this authorization of a group of states, having previously consented to that particular action, to use military force rests in the fact that it combines mandatory and non-mandatory elements on various levels.38 The first step is the finding of the Security Council that there is a breach or a threat to international peace and security. This finding, made in accordance with Article 39 UN Charter, is binding upon all members of the United Nations. Further, it is the Security Council which formulates the obligations to be fulfilled by the state having breached or threatened international peace and security and defines the objectives to be achieved by the use of force if these obligations are not fulfilled. For example, in S/RES/678

32 33 34

35

36 37

38

S/RES/143 (1960) of 14 July 1960. S/RESI221 (1966) of 9 April 1966; S/RESI232 (1966) of 16 December 1966. S/RES/678 (1990) of 29 November 1990; "2 . Authorizes Member States cooperating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the fore going resolutions, to use all necessary means to uphold and implement Security Council resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area." S/RES/940 (1994) of 31 July 1994. S/RES/794 (1992) of 3 December 1992. S/RES/1386 (2001) of 20 December 2001. This has been highlighted by Franck, Recourse to Force, see note 6, 27.

14

Max Planck UNYB 7 (2003)

(1990) of 29 November 1990 the Security Council speaks in mandatory terms of Iraq's obligation to comply with its demands to restore the sovereignty of Kuwait. Equally the Security Council spelled out in S/RES/794 (1992) of 3 December 1992 what humanitarian changes it was seeking in respect of Somalia.'? This means that the reason for military action is defined in mandatory terms. Which states are authorized to take action would depend on the reasons as defined by the Security Council. In most cases the Security Council has refrained from identifying such states in the respective resolutions but rather referred to the coalition of the willing. The establishment of such a group is organized by the respective states themselves and the adherence thereto depends upon the individual decision of each state. This constitutes the voluntary element in this approach. However, states carrying out the authorized military intervention are limited in their action by the objective to be achieved, as defined by the Security Council. It is for that reason that the coalition forces in 1990 refrained from attacking Baghdad, since the liberation of Kuwait had been accomplished, although it is an open question whether the mandate "... to restore international peace and security in the area ..." would have covered such action.f? This combination of mandatory and non-mandatory elements marking out the features of the authorization of a willing coalition by the Security Council has made it acceptable in practice. It has to be acknowledged, though, that compared to the system envisioned under Article 43 UN Charter the control the Security Council may exercise over such military activity is significantly reduced .f This certainly was another incentive for such an approach. The Security Council is unable to control the military action in detail and the original mandate being unlimited requires another Security Council resolution to end such mandate. This gives the permanent members of the Security Council, without whose consent no such authorization to take action, or to end the mandate, can be given, an overwhelming influence on scope and duration of such mandate. Concerning the war against Iraq in 2003 there was no such authorization of the Security Council. The military attack on Iraq by the United States and its allies can neither be based upon S/RES/1441

39

40 41

See note 36. See S/RES/678 (1990) of 29 November 1990. Frowein/ Krisch, see note 30, MN 25 argue that the UN Charter favours centralized enforcement and thus the Security Council should be in full control of the action. The reality, though, is different.

Wolfrum, Recourse to Force and ius in bello Reconsidered?

15

(2002) of 8 November 2002, nor as it has been claimed by, in particular, the governments of Spain,42 the United Kingdom'? and the United States" upon previous Security Council resolutions authorizing the use of military force against Iraq in 1990. S/RES/1441 states in its operative paragraph 1 - the Security Council acting under Chapter VII - "... that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq's failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13 of resolution 687 (1991); ...". The obligations formulated by S/RES/687 (1991) were confirmed in Resolution 1441, and matters relating to disarmament, proof thereof and cooperation with inspectors were specified and expanded upon. The Security Council Resolution 1441 characterizes false declarations or omissions in the report required of Iraq, as well as the lack of cooperation with the inspectors, as violations of Iraq's obligations. In the event of continuous non-fulfilment of the obligations, the Resolution announces "serious consequences " for Iraq. That of which Iraq was accused, or that which was demanded of Iraq by the Security Council in exercising its functions under Chapter VII UN Charter included various elements. The most prominent thereof was the renunciation of atomic, biological and chemical weapons as well as of ballistic missiles which range greater than 150 kilometres, the destruction of corresponding weapons, the disclosure and proven dismantling of relevant development programs and the cooperation with international inspectors.P In addition, Iraq was obliged to provide information as to the whereabouts of interned prisoners of war and civilians, their repatriation or return, and the restoration of looted property." Further, it was claimed that the system of government which Saddam Hussein created, and which maintained him in power, violated international human rights standards on a massive scale. Iraq

42 43

44 45 46

Doc. S/PV. 4707 of 14 February 2003; Doc. S/PV. 4701 of 5 February 2003. See letter of the Permanent Representative of the United Kingdom to the United Nations of 20 March 2003 (Doc. S/2003/350 of 21 March 2003). Letter of the Permanent Representative of the United States to the Security Council of 20 March 2003 (Doc. S/2003/351 of 21 March 2003). S/RES/687 (1991) 00 April 1991, paras 7 to 14. S/RES/1441 (2002) of 8 November 2002 in connection with S/RES/686 (1991) of 2 March 1991, S/RES/687 (1991) of 3 April and S/RES/1284 (1999) of 17 December 1999.

16

Max Planck UNYB 7 (2003)

was accused of oppressing the civilian population, persecuting minorities, and failing to cooperate with relief organizations. Thus, Iraq was requested by the Security Council to end the repression of its civilian population and to provide access by international humanitarian organizations to all those in need of assistance.F Finally, Iraq was accused by the Security Council of having failed to comply with its obligation against international terrorism.t" The Security Council has determined many times that actions of the government of Iraq or rather its lack of cooperation constituted a threat to international peace, S/RES/1441 (2002) of 8 November 2002 only being the last instance. In this respect, the Security Council has a farreaching prerogative of political discretion. Such discretionary power is rather restricted through the voting system of the Security Council than juridical review. Apart from that it would be difficult to question the assessment of the Security Council that the existence of nuclear, biological or chemical weapons in the hands of the then existing government of Iraq had a destabilizing effect in the entire region, if not world wide, and thus endangered international peace. The demand for the destruction of such weapons, the dismantling of respective research programs and reliable information to that extent was just a matter of consequence. It is also for the Security Council to determine whether Iraq is in the possession of weapons of mass destruction or programs for their production, or whether their destruction and the discontinuation of the respective research has been proven. In making such assessment the Security Council does not act as court; it is not bound by judicial rules of evidence. The Security Council - in keeping with the design of the UN Charter - acts as a political organ. The greater the perceived danger to international security, the less it will be necessary to present fully confirmed facts: it is a question of proportionality. As already indicated, Iraq's possession of weapons of mass destruction and the possibility of their use was not the only basis on which the Security Council could rest its determination that Iraq posed a threat to international peace and security. The Security Council could also take action on humanitarian grounds and has done so in the past. On several occasions it has classified serious violations of human rights as a threat

47 48

S/RES/1441 (2002) of 8 November 2002 in connection with S/RES/687 (1991) of 3 April 1991. S/RESI1441 (2002) of 8 November 2002 in connection with S/RES/688 (1991) of 5 April 1991.

Wolfrum, Recourse to Force and ius in bello Reconsidered?

17

world peace; examples are Southern Rhodesia, South Africa,"? Somalia, Rwanda, Former Yugoslavia and Zaire (today the Congo) .50 This has expanded the concept of peace under the UN Charter. Peace is not only to be understood as the absence of military engagement. A threat to the peace may already exist if essential elements of the international legal order that provide the conditions for an enduring peace, are violated. There is no doubt that gross and large scale violations of human rights may reach that threshold. 51 Finally, the Security Council has already, on previous occasions, determined that international terrorism may constitute a threat to international peace and security.V However, a determination by the Security Council that a threat to international peace exists does not automatically result in the authorization of the use of military force. The latter requires an explicit determination by the Security Council. Considering the legitimizing effect accorded to such a Security Council Resolution by the world community to justify an exception from the prohibition of the use of force, it is indispensable that the resolution should contain a clear statement authorizing the use of military force, an indication of the states which are authorized to use force and the states or entities against whom such force may be used. In the cases in which the Security Council has to

49

50

51

52

It is doubtful whether it is fully justified to quote the decisions of the Security Council in this respect. Its determination that the situations in South Rhodesia and in South Africa constituted threats to the international peace and security may primarily have been motivated by the destabilizing effect these regimes had on neighbouring countries; see Froweinl Krisch, "Art. 39". MN 19 and 20, in: Simma, see note 6. See the assessment of H. Gading, Der Schutz grundlegender Menschenrechte durch militdrische Maflnahmen des Sicherheitsrates - das Ende staatlicher Souveranitat?, 1996, 91 et seq.; S.D. Murphy, Humanitarian Intervention, 1996, 145 et seq.; S. Chesterman, Just War or Just Peace? Humanitarian Intervention in International Law, 2001, 14 et seq. Critical also MJ. Glennon, Limits of Law, Prerogatives of Power, Interventionism after Kosovo, 2001, 120; in favour of a more flexible interpretation of the respective provisions of the Charter, see Miillerson, see note 6, 171. Gading, see above, 165 et seq.; B. Conforti, The Law and Practice of the United Nations, 2nd edition, 2000, 177; sceptical Froweinl Krisch, see note 49,21 who argue that it is not for the Security Council to enforce all overarching values of the international community; but this is not to say that the Security Council has no scope of action at all in this regard . S/RES/731 (1992) of 21 January 1992; S/RES/I044 (1996) of 31 January 1996; S/RES/I054 (1996) of 26 April 1996 (Sudan); S/RES/1267 (1999) of 15 October 1999; S/RES/1333 (2000) of 19 December 2000 (Afghanistan).

18

Max Planck UNYB 7 (2003)

authorized states to use military force it has made it clear that such measures may be taken and has identified the coalition of the willing. The formula "... to use all necessary means ..." seems, after the resolution concerning Haiti, to have become the standard one. 53 Both elements are missing in S/RES/1441 (2002) of 8 November 2002 and it therefore cannot be read as an authorization of the Security Council to use military force against Iraq. Neither docs the resolution authorize a particular group of states nor does it contain a reference to the use of military force. Instead the resolution states in para. 13: "Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations; ...". Taken verbally, it only reminds Iraq of previous warnings which, however, fall short of respective decisions. That even the United States and its allies did not consider S/RES/1441 as an authorization to take military action against Iraq transpires from the attempts to have the Security Council to agree upon a further resolution. 54 Finally is it not possible to justify the military actions taken by the United States and its allies against Iraq by reference to S/RES/678 (1990) of 29 November 1990, which provided for a military liberation following Iraq's aggression against Kuwait, although S/RES/1441 in its preambular paragraph 4 referred to the former. This resolution had authorized Member States co-operating with the government of Kuwait "... to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent resolutions and to restore international peace and security in the area; ...". This authorization which embraced the use of military force was meant to serve two different purposes namely the liberation and the restoration of peace and security in the area, both conforming to the objectives which may be pursued under Article 39 UN Charter. It is the latter one which has been invoked in the attempt to justify the attack on Iraq in 2003. Following the liberation of Kuwait the Security Council set out, in S/RES/686 (1991) of 2 March 1991 and S/RES/687 (1991) of 3 April 1991 the steps Iraq had to take as a precondition for a formal cease-fire.

53

54

See S/RES/940 (1994) of 31 July 1994 (Haiti); S/RES/678 (1990) of 29 November 1990 (Iraq); S/RESI794 (1992) of 3 December 1992 (Somalia). See the draft offered by the United States, United Kingdom and Spain on 24 February 2003 (http:/ / usinfo.stategov/ to pical/poll arms/ 0302241O.htm) and the one on 3 March 2003 (http:/ /www.msnbc.com/news/87601.asp ).

Wolfrum, Recourse to Force and ius in bello Reconsidered?

19

These conditions Iraq was requested to accept/" which it did. Although S/RES/687 did not explicitly repeal the authorization of the Security Council to use military force 56 it provided for a cease-fire and furthermore confirmed the commitment of all Member States" ... to the sovereignty, territorial integrity and political independence of Kuwait and Iraq ...". The resolution also took note" ... of the intention expressed by the Member States cooperating with Kuwait under paragraph 2 of resolution 678 (1990) to bring their military presence in Iraq to an end as soon as possible consistent with paragraph 8 of the resolution 686 (1991) ..."Y On that basis it cannot be argued that after twelve years the authorization to use military force revived for a group of states at least in part different from the original ones, merely by the statement in S/RES/1441 that Iraq had violated its obligations under resolution 687.58 Since the formal cease-fire had been declared by the Security Council"? only the latter could effect an end to the cease-fire and, thereby authorize renewed military action against Iraq. In this context it has been pointed out that twice, in 1993 and in 1998, the coalition took military action under the authority of S/RES/678 (1990) of 29 November 1990 and that the attack of 1993 had been declared by the Secretary-General of the United Nations to conform to that resolution.s? It is doubtful whether such limited strikes 55 56

57 58

59

60

Para. 33, see note 59, below. The first operative paragraph reads: "Affirms all thirteen resolutions noted above, except as expressly changed below to achieve the goals of the present resolution, including a formal cease-fire; ....". Third pre-ambular paragraph. See operative paras 1 and 2 of that resolution. A different position has been taken in the Written Answer of the Attorney General, Lord Goldsmith, to a Parliamentary Question on the legal basis for the use of force in Iraq. See also letter by the Permanent Representative of the United Kingdom to the Security Council Doc. S/2003/350 of 21 March 2003. It is worth noting that the justification of the United Kingdom differed from that of the United States which also invoked self-defence (see letter of the Permanent Representative of the United States to the Security Council, Doc. S12003/351 of 21 March 2003). Para . 33 of S/RES/687 reads: "Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwa it in accordance with resolution 678 (1990). " In a statement of 14 January 1993 it was said that: "... the raid and the forces that carried out the raid, have received a mandate from the Security

20

Max Planck UNYB 7 (2003)

against surface-to-air missile sites (11 and 18 January 1993) and a strike against a nuclear fabrication facility (17 January 1998) near Baghdad can be compared to the large scale armed attack against Iraq launched by the coalition in 2003. But what is more important is the fact that such military acts as have occurred, since only one of them found the approval of the Secretary-General of the United Nations, do not necessarily lead to the conclusion that they were legal under S/RES/678 or the UN Charter. Far less can any conclusion be drawn concerning the legality of later large scale military attacks against Iraq . In any case a statement made by the Secretary-General of the United Nations justifying the military action of 1993 is of no relevance in this respect since the Secretary-General has neither the function nor the authority to give an authoritative interpretation of Security Council resolutions or the UN Charter.

4. Incapacity of the Security Council as a Justification to Act Unilaterally It has been argued that the incapacity of the Security Council to act reopened the possibility for states to take the necessary military actions unilaterally.''! In fact, the arguments advanced in this respect resemble the clausula rebus sicstantibus debate of earlier periods when this principle was given wider applicability than it seems at present.s- It is held that the limits the UN Charter imposes on self-help as a means of enforcing international law presupposes the operation of an effective collective security system based on a respective willingness of states to cooperate. Due to the ineffectiveness of the collective security system and the lack of co-operation states have regained their original capability to act unilaterally. 63

61 62

63

Council, according to Resolution 687, and the cause of the raid was the violation by Iraq of Resolution 687 concerning the cease-fire. I, as Secretary-General of the United Nations, I can say this action was taken and conforms to the resolutions of the Security Council and conformed to the Charter of the United Nations ...". See e.g. Introduction, in: M.WI A.R. Willard, International Incidents, 1988. R. Jennings/ A. Watts (eds), Oppenheim's International Law, 1992, 1305 et seq.; Dahm/ De1briickl Wolfrum, see note 7,743 et seq. Reisman, see note 1, 83.

Wolfrum, Recourse to Force and ius in bello Reconsidered?

21

At least in respect of the war against Iraq 1990/1991 such approach is hardly convincing. Certainly Article 43 UN Charter has not been implemented but Security Council practice was able to overcome that by entrusting a coalition of the willing Member States. In 2003 the Security Council acknowledged that Iraq was in breach of its international obligations but did not follow the view of the United States and its allies that the time was ripe for military action. That the Security Council did not follow the assessment of one group of states cannot mean - if the decision-making process in the Security Council has a meaning at all - that it was unable to meet its functions concerning the preservation of international peace and securiry.v'

5. Humanitarian Intervention It has been argued that the serious violations of human rights committed by the government of Iraq could be used as a justification for the military attack with the objective to put an end to such violations (socalled humanitarian intervention). Humanitarian intervention may be defined as the use of force across state borders by a state, or a group of states, aimed at preventing or ending widespread and grave violations of fundamental human rights of individuals other than its own citizens .s! It is already questionable even under the assumption that humanitarian interventions conform to international law whether Iraq can be considered a case for such humanitarian intervention. The serious human rights violations referred to occurred several years ago and it is more than doubtful that the concept of humanitarian intervention would cover int ervent ions against a regime, which by its very nature, may be likely to commit serious human rights violations. However, this consideration should not detract from the question whether under present international law the protection of human rights has acquired such a weight that such protection may legitimize an infringement on the prohibition of the use of force in international relations.

64

65

See also T. Farer, "Humanitarian Intervention before and after 9/11: Legality and Legitimacy", in: J.L. H olzgrefe/ R.O. Keohane, (eds), Humanitarian Intervention, Ethical, Legal and Political Dilemmas, 2002, 53 et seq. (65). See J.L. Holzgrefe, "The Human International Debate", in: Holzgrefe/ Keohane, see above, 18.

22

Max Planck UNYB 7 (2003)

Under the UN Charter, the prohibition against the use of force excludes a priori humanitarian intervention by military me ans .sf The obligation of Member States contained in the UN Charter to protect hu man rights does not justify unilateral military means to enforce them.s/ To this extent the prohibition against the use of force is absolute. Several attempts have been made to argue the legitimacy of unilateral humanitarian intervention through military means. Recourse has been made inter alia, to the right of self-help, in cases where the Security Council fails to discharge its obligation to act,68 or to the right of selfdefence on behalf of the population concerned.s? This approach does not find a justification in existing international Iaw.P However, it is claimed that precedents for unilateral humanitarian intervention exist which have generated respective customary international law. Among these reference has been made to the Indian encroachment in what was then East Pakistan, which led to the creation of the state of Bangladesh;" the Tanzanian intervention in Uganda, which resulted in the downfall of ldi Amin's regime;72 the provision of assistance for the Kurds in Northern Iraq after Saddam Hussein's defeat in the Kuwait conflict.F' and the deployment of troops from West African

66 67

68 69 70

71

72 73

Dahm/ Delbriick/ Wolfrum, see note 7, 826 et seq.; Dinstein, see note 6, 66; Franck, Recourse to Force, see note 6, 138. Different M.J. Glennon, "The New Interventionism: The Search for a Just International Law", Foreign Alf 78 (1999), 2 et seq. Delbriick, see note 6, 152; K. Doehring (ed.), Volkerrecht, 1999,435. Doehring, see above, 435; R. Wedgwood, "NATO's Campaign in Yugoslavia", A]IL 93 (1999), 828 et seq. (833). P. Hilpold, "Humanitarian Intervention: Is There a Need for a Legal Reappraisal?", E]IL 12 (2001), 437 et seq. (450 et seq.); J. Duursma, "Justifying NATO's Use of Force in Kosovo", L]IL 12 (1999),287 et seq.; L. Henkin, "Editorial Comments: NATO's Kosovo Intervention: Kosovo and the Law of 'Humanitarian Intervention''', A]IL 93 (1999), 824 et seq. (825 et seq.). T.M. Franck/ N .S. Rodley, "After Bangladesh: The Law of Humanitarian Intervention by Military Force", A]IL 67 (1973), 275 et seq. (299-302); in the United Nations neither in the Security Council nor in the General Assembly India's claim that its military intervention was prompted by human rights concerns was accepted. This intervention was ignored by the Security Council. For an assessment see Franck, Recourse to Force, see note 6,152-153.

Wolfrum, Recourse to Force and ius in bello Reconsidered?

23

states in the internal conflicts in Liberia and Sierra Leone-" But it is highly questionable, whether these cases can be drawn upon to justify unilateral military humanitarian intervention. None of the intervening states relied solely on a right to humanitarian intervention when legally justifying their actions; they all claimed that their interventions were necessary to preserve or restore peace in the regions concerned. In addition, and more prominently, in none of the cases was the intervention explicitly accepted for humanitarian reasons. If it was not criticized by the community of states, as in the case of India, the results achieved were merely tolerated as an improvement of the political situation. Apart from that there are cases in which corresponding interventions were treated as violations of international law. This is true, for example, for the dispute in the United Nations regarding the use of military measures against the Pol Pot regime,75 Finally, it is impossible to refer to the NATO military action in Yugoslavia to prevent ethnic cleansing and human rights violations in Kosovo as a precedent to support military humanitarian intervention. This deployment of force was incompatible with existing international law,76 and many of the politicians who defended it at the time stressed emphatically that it should not serve as a precedent to justify future humanitarian interventions. It is of no relevance in this context that the Security Council later implicitly accepted the results achieved and that the United Nations resumed responsibili74

75

76

K. Nowrot/ E.W Schabacker, "The Use of Force to Restore Democracy: International Legal Implications of the ECOWAS Intervention in Sierra Leone", Am. U. lnt'l L. Rev. 14 (1998/99), 321 et seq. (411). See in particular A/RES/34/22 of 14 November 1979 which clearly condemned the intervention of Vietnam. This resolution is similar to the one which the USSR had vetoed in the Security Council; for an assessment see Franck, Recourse to Force, see note 6, 145 et seq. H.P. Neuhold, "Die Operation 'Allied Forces' der NATO: Rechtrnaliige humanitare Intervention oder politisch vertretbarer Rechtsbruch", in: E. Reiter (ed.), Der Krieg um das Kosovo 1998/1999,2000,193 et seq.; Dahm/ Delbriick/ Wolfrum, see note 7, 828 et seq.; A. Cassese, "Ex iniuria ius oritur: We are Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?," EJIL 10 (1999),23 et seq.; Henkin, see note 70,825; different B. Simma, "NATO, the UN and the Use of Force: Legal Aspects", EJIL 10 (1999),1 et seq. According to Schmitt, see note 11, 532 the action of NATO was justified in spite of the lack of authorization of the Security Council since it was evident that - due to the fact of the objection by Russia - no affirmative decision of the Security Council could have been achieved. On the debate in the Security Council see Lepard, see note 22,339 et seq.

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ties in relation to the administration of Kosovo . This does not amount to a general endorsement of a humanitarian intervention initiated and carried out without the consent of the Security Council. In the end, international law cannot evade the question of how to react to national regimes that gravely violate internationally protected human rights on a large scale and thus violate the value system of the community of states. But this question cannot be answered by according a so-called right of unilateral humanitarian intervention to individual states. First and foremost it is for the Security Council to act as the organ that has been mandated by the UN Charter to act on behalf of the community of states. Where the control and reaction system of the Security Council, short of military measures is exhausted, the possibility of collectively responsible military measures must exist. A military humanitarian intervention can be made compatible with existing international law if it takes place on the basis of a Security Council resolution that expressly authorizes the mission. In this connection it is not correct, as occasionally suggested, that such a resolution by the Security Council legitimates the war. A negative value judgment is implied by the word "war" that does not apply to military missions authorized by the Security Council to enforce international law. In this regard the Security Council acts in the name of the world community to advance common goals. This paramount objective removes the odium of war from military missions authorized by the Security Council, the negative connotation that normally attaches to the term "war". As already indicated the Security Council has in the past taken action in this respect, although sometimes only retroactively. The crucial question, though, is how to deal with a situation when the Security Council does not take up the issue or cannot come to a positive decision due to either the opposition of a majority of its members or a veto of one of its permanent members. Those who argue in favour of humanitarian intervention point out that giving prominence to the prohibition of the unilateral use of force even in cases where the use of force may be necessary to remedy grave and widespread human rights violations is not in keeping with the protection of human rights as envisioned by the UN Charter and does not take due account of the increased prominence given to human rights since the adoption of the UN Charter." The Secretary-General of the United Nations high-

77

W.M. Reisman/ M. McDougal, "Humanitarian Intervention to Protect the Ibos", in: R.B. Lillich (ed.), Humanitarian Intervention and the United Nations, 1973, 167 et seq. (175).

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lighted this dilemma when addressing the Kosovo conflict." Michael Reisman argues, in effect, that international protection of human rights has been elevated to an "imperative level of international law"."? Furthermore, referring to the relative increase in the importance of non state actors in the international decision process and the lack of consensus in the Security Council with regard to the importance of human rights, he has concluded that, in the absence of such consensus among the PS to take remedial action, democratic states may do so unilaterally, and thus compensate for the dysfunctional decision-making in the Security Council. One of the problems with this approach is that it would place a particular group of states in a privileged position and would open the possibility that such states may impose on the majority of other states a value system not acceptable to them. This is hardly reconcilable with the principles governing the international community at present. Apart from that, those being in favour of unilateral humanitarian interventions do not adequately take into consideration the real record of the Security Council. The Security Council has in fact endorsed humani tarian interventions in the past, or at least acquiesced in such interventions. Therefore, it is difficult to sustain the claim that there is a lack of consensus on the relevance of international human rights protection or the necessity to enforce them. Finally, the argument that the protection of human rights enjoys or should enjoy priority over the prohibition of the use force is hardly tenable from the point of view of morality. The prohibition of the use of force is not only meant to ensure the integrity of existing states; nor is it just a limitation on the conduct of states in

78

79

"To those for whom the greatest threat to the future of the international order is th e use of force in the absence of a Security Council mandate, one might ask, not in the context of Kosovo but in the context of Rwanda, if in those days ... leading up to genocide, a coalition of states had been prepared to act in defence of the Tutsi population, but did not receive prompt Council authorisation, should such coa lition have sto od aside and allow the horror to unfold? To those for whom the Kosovo action heralded a new era when states and groups of states can take military action outside the established mechanisms for enforcing international law, one may ask: is there not a danger of such intervention undermining the imperfect, yet resilient, security system created after the Second World War ..." (GAOR 54 Sess., 4th Plenary Mtg of 20 September 1999, 2, Doc. A/54/PVA). WM . Reisman, "Unilateral Action and the Transformation of the World Constitutive Process: The Special Problem of Humanitarian Intervention", EJIL 11 (2000),3 et seq. (15).

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order to improve international relations. The prohibition of the use of force reflects the recognition - as indicated in the Preamble of the UN Charter - that war has resulted in the past in the most serious violations of human rights. It is thus meant to protect human rights against the most fundamental violations. It is beyond the scope of this paper to analyze the pros and cons in detail as to whether international law should develop into the direction where individual states, without an international mandate, should have the right to militarily intervene in other states to put an end to widespread and grave human rights violations. State practice does not seem to have moved in that direction yet. 80 The maximum which can be deduced from the experience concerning Uganda, Liberia and Sierra Leone is a certain willingness on the part of the international community to acquiesce in a violation of the prohibition against the unilateral use of force for humanitarian purposes in cases of necessity, if the action has been carried out by a group of states of the region rather than one state, especially where the national interests of the intervening states can reasonably be excluded as the significant factor in the decision to intervene. Even this limited acquiescence (and certainly any step further) could lower the threshold of the prohibition against recourse to force in international relations, and thus infringe upon one of the major values of the community of states.s! This is, in particular, disquieting since no international control mechanism exists either over the actions taken by regional arrangements, where one may at least assume some self restraint because of the plurality of actors, or over unilateral humanitarian intervention. For unilateral humanitarian intervention to be accepted, it is at least necessary to ensure that aparticular national or sectional interests of an economic or geopolitical character are not wrapped up in the garment of human rights protection.V

80

81 82

See in this respect the statements of the Non-Aligned Summit in 1999 and the Group of 77 meeting in 2000. In both statements the formula was used: « ... We reject the so-called, 'right of humanitarian intervention' which has no legal basis in the UN Charter or in the general principles of international law ..."; see Farer, see note 64, 78. Farer, see note 64, 77 et seq.; different Reisman, see note 79, 16 who seems to presume that democratic institutions and non-governmental forces will be a sufficient threshold against such misuse. The interventions in Panama and in Granada are, however, not encouraging in this respect.

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27 "",I

6. Legitimization of the Use of Force as Self-Defence or Other Forms of Self-Help a. Article 51 UN Charter The United States has invoked its right of self-defence as a justification for its military actions against the Taliban. It has also referred to selfdefence as one of its justifications for its war against Iraq.P In the coalition of states which launched the attack against Iraq it was only the United States which relied on this argument. However, it has to be noted that, in relation to the United Nations, the United States either did not use self-defence as a primary justification for the military attack against Iraq or did not pursue this argument forcefully. The approach taken domestically was different. The Congressional Joint Resolution authorizing the President to commit US troops to battle against Iraq emphasized self-defence more prominently.s" Both statements are equally relevant from the point of view of international law, either as an attempt to interpret existing international law, or to initiate the development of new customary international law.85 Before dealing with possible future customary international law it is necessary to assess the scope of self-defence under existing international law. Whether it is possible to invoke the right to self-defence in the situations referred to above depends upon whether an innovative interpretation of that traditional notion is sustainable. At least two issues are critical: is it possible to resort to self-defence only in a case of an actual 83

See in particular the letter dated 20 March 2003 of the Permanent Repre sentative of the United States to the Security Council Doc. S12003/351 of 21 March 2003. The respective text reads: "The actions ... are necessary steps to defend the United States and the international community from the threat posed by Iraq and to restore international peace and security in the area ...", Different Frowein, see note 2, for whom the United States mainly tried to justify its attack on Iraq by reference to the respective Security Council Resolutions. 84 Its relevant part reads: "... to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to ... defend the national security of the United States against the continuing threat posed by Iraq; and ... enforce all relevant Security Council resolutions regarding Iraq ..." (Pub. L No.107-243, 116 Stat.1498, 1501 (2002). 85 An extended interpretation of the notion of self-defence had been advocated by Wolfowitz alread y in 1992 in his study Defence Planning Guidance.

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armed attack or also when an attack is imminent or is reasonab ly per ceived as imminent. This question has come up in the context of the war against Iraq. The attack of September 11, 2001 against the United States and its reaction thereto raises another question, namely whether the recourse to self-defence requires an armed attack launched by another state or whether an attack by a non-state actor may be sufficient. If the answe r is affirmative it is necessary to discuss the issue of the entity against whom the respective actions of self-defence may be directed. The starting point for considering the right of states to self-defence is Article 51 UN Charter. It reads in its relevant part: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, ...". It is commonly held that this provision also reflects customary international law although the latter may be wider in scope." In interpreting the concept of self-defence the IC] has stated in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons: "... the Court cannot lose sight of the fundamental right of every state to survival, and thus its right to resort to self-defence, in accordance with Article 51 of the Charter when the survival is at stake".87 However, it must be noted that this view unduly narrows the concept of self-defence by restricting it only to cases where the survival of a state is at stake. Self-defence is actually a form of self-help according to which a state may respond with lawful force to unlawful force carried out in the form of an armed attack. 88 The right to self-defence flows from the sovereignty of the state having come under attack, it is a means under international law for a state to protect itself against the violation of its rights in a particular form, although its scope is not unlimited.s? According to the wording of Article 51 of the UN Charter, only an actual attack against a state activates a state's right to self-defence which seems to rule out anticipatory or pre-emptive forms of self-defence.

86

87 88 89

Dinstein, see note 6, 165; Bowett, see note 6, 187 et seq.; J. Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression, 1958, 44. Legality of the Threat or Use of Nuclear Weapons, Ie] Reports 1996,226 et seq. (263, para. 96). Dinstein, see note 6, 159. As to the violation of which rights may justify self-defence see A. Randelzhofer, "Art. 51", MN 4 et seq ., in: Simma, see note 6; Franck, Recourse to Force, see note 6, 45 et seq .

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The words used "... if an armed attack occurs ..." leave little room for a wider interpretation.t? Apart from that it has to be taken into consideration that Article 51 UN Charter constitutes an exception to the general prohibition of the unilateral recourse to force?' and thus it is to be interpreted narrowly. The provision is, by its very objective, meant to provide the state having become the target of an attack with the possibility to react rather than a justification to take precautionary measures against a possible strike.i? The merit of the approach taken by the UN Charter is that it reduces the number of disputable cases of self-defence since it will be possible to determine, on the basis of objectively verifiable data, whether an armed attack has occurred, rather than relying on a subjective assessment of a state claiming to have been threatened. Thus, under the wording of Article 51 of the UN Charter there is no right to preventive self-defence, be it anticipatory or pre-emptive, the two terms discussed later. The drafting history of Article 51 of the UN Charter clearly confirms this restricted reading which, by the way, was emphasized by the United States delegation.P The Dumbarton Oaks Proposals?" were even silent regarding any residual right of self-defence since the Main Powers considered that recognition of such a right would weaken the authority of the Security Council." It was only upon the insistence of Latin American states that Article 51 UN Charter was adopted. It is somewhat ironic that the United States which was originally in favour of vesting the authority to preserve international peace and security, which undoubtedly includes dealing with situations calling for some form of preventive self-defence, only with the Security

90

91

92

93

94

95

Dinstein, see note 6,166,167. Dinstein, see note 6, 160, 161 rightly points out that the right of selfdefence could only develop in the context of the development of a prohibition of the unilateral use of force. J. Zourek, L'interdiction de l'emploi de la force en droit international, 1974; different, Dissenting Opinion of Judge Schwebel, Nicaragua case, see note 10,347-348 (para. 173). Minutes of the 48th Mtg (Executive Session) of the United States Delegation, held at San Francisco, Sunday, May 20, 1945, Foreign Relations of the United States Vol. 1 (1945), 813 et seq. (818). . UNCIO Oaks Proposals, in: UN Information Organization (ed.), Documents of the UN Conference on International Organization, San Francisco, 1945, Vol. III : Dumbarton Oaks Proposals, Comments and Proposed Amendments, 1945. Franck, Recourse to Force, see note 6, 48.

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Council, is now advocating the broadening of the right of states to selfdefence. b. Anticipatory and Pre-emptive Self-Defence In respect of the traditional understanding of the notion of self-defence as reflected in Article 51 of the UN Charter it has been argued that considering the development of new weapons of mass destruction and because of the threat that such weapons may be used by irresponsible states or terrorists - no state can be expected to risk its population or its very existence by waiting for the first strike. Reading Article 51 UN Charter literally would give an advantage to the aggressor. It is on that basis that some form of preventive self-defence under customary international law is considered." Article 51 of the UN Charter itself provides for the possibility of applying a wider concept of self-defence. Its reference to the 'inherent right' of individual or collective self-defence can be taken to indicate that Article 51 of the UN Charter is not intended to cover the full scope of the right of self-defence under customary international law. Two different forms of preventive self-defence are under discussion - anticipatory self-defence and pre-emptive self-dcfence.97 Anticipatory self-defence is understood, referring to the Caroline incident. l" as a military action against an imminent attack which leaves no choice of 96

97

98

Bowett, see note 6, 185, 186; Oppenheim 's International Law, see note 62, 420; Reisman, see note 1, 82; different Dinstein, see note 6, 168 et seq. In the Nicaragua Case, see not e 10, the IC], although dealing with the right to self-defence under custo mary int ern ational law, passed no judgment on th e issue of lawfulness of a response to the imminent threat of armed attack, 103 (para. 194). The terminology is not always fully coherent; Reisman, see note 1, 87, for example seems to use anticipatory and preventive self-defence interchangeably, also pre-emptive self-defence allegedly has a pr eventive objective. US Secretary of State Daniel Webst er argued th at for self-defence to be legitimate the Briti sh had to demonstrate that a "nec essity of self-defence, instant, overwhelming leaving no choice of means, and no mome nt for delib eration" and th at the acts would not be "unreason able or excessive". (Letter from D aniel Webster, Secretary of State of th e United States, to Henry S. Fox, Envoy Extraordinary and Minister Plen ipotentiary of Her Britannic Majesty (24 April 1841), reprinted in Briti sh and Foreign State Papers 19 (1857), 1129 et seq. (1138).

Wolfrum, Recourse to Force and ius in bello Reconsidered?

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means and no moment of deliberation. Compared to that the notion of pre-emptive self-defence is broader and, what is more important, has a different objective. It is meant to be used to avert an incipient development that is not yet operational but which, in the assessment of the potential victim state could, if permitted to mature, lead to an objective threat or attack that would justify measures of self-defence."? To qualify as legitimate self-defence, these two forms of preventive self-defence will also have to meet the test of necessity, proportionality and immediacy.IOO The question to be considered is whether anticipatory selfdefence and, in particular, pre-emptive self-defence are already recognized under customary international or, at least, should be recognized in the future. Some arguments advanced, justifying the military attack against Iraq, clearly establish that this is not an academic question, in particular, since some voices seem to indicate that such approach will playa dominant role in the future politics of the United States. In the National Security Strategy of September 2002 the United States seems to claim the right to proceed against "rogue" states based on its hegemonic position and as a means of pre-emptive self-defence.l?' Sec-

99 100 101

Reisman, see note 1, 87 even seems to favour a so mewhat broader scope. Legality of the Threat or Use of Nuclear Weapons, see note 87, (245); Dinstein, see note 6, 183. Part II deals with terrorism. There it is stated: " ... The struggle against global terrorism is different from any other war in our history. It will be fought on many fronts against a particularly elusive enemy over an extended period of time ...[D]efending the United States, the American people, and our interests at home and abroad by identifying and destroying the threat before it reaches our borders. While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right to self-defence by acting pre-emptively agains t such terrorists, to prevent them from doing harm against our people and our country ..." Part V focuses on the proliferation of weapons of mass destruction: The respective part thereof states: " ... But new deadly challenges have emerged from rogue states and terrorists . None of these contemporary threats rival the sheer destructive power that was arrayed against us by the Soviet Union. However, the nature and motivations of these new adversaries, their determination to obtain destructive powers hitherto available only to the world's strongest states, and the greater likelihood that they will use weapons of mass destruction against us, make today's security environment more complex and dangerous ... Traditional concepts of deterrence will not work against a terrorist enemy whose avowed tactics are wanton destruction and the targeting of innocent; whose so-called soldiers seek martyrdom in death and whose

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tion V of the Strategy places this doctrine in the context of new customary international law. To some extent the Security Council practice can be used to support anticipatory self-defence but not, however, pre-emptive self-defence. For example, the Security Council did not condemn Israel's military action in 1967 when Israel proceeded militarily against the deploying of Egyptian and other armed forces before they had reached Israel's border. This approach of the Security Council took into consideration that - as the facts presented themselves at that time - Israel did nothing more than intercept an armed attack which was in the last stages of the launching process. On the other hand, the Security Council unanimously condemned Israel's bombing and destruction of the Iraqi atomic reactor at Osirak'P? in 1981 while it was still under construction, although Israel had argued that its own existence would be threatened if Iraq were to possess atomic weapons.l'" A comparison of the two situations and the different international reactions thereto, provides some guidance on how to distinguish between legal self-defence taken in anticipation of an armed attack and an illegal use of force. In the first case, objectively verifiable data proved that an armed attack was imminent; it was actually already in a stage of preparation where decisions contrary to the ones issued and implemented would have been needed to prevent the attack from materializing. The situation in respect of the attack on Iraq's nuclear reactor was different. Several further affirmative measures and decisions on the part of Iraq would have been needed to transform that threat into the reality of an attack or an imminent attack.

102 103

most potent protection is statelessness ... The United States has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction - and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively. (White House, The National Security Strategy of the United States of America (2002), available at . See in this respect also the article by P. Minnerop in this Volume. S/RES/487 (1981) of 19June 1981. Reisman, see note 1, 88 argues this view should be reconsidered; different Dinstein, see note 6, 169. According to him the attack was justifiable through the fact that Israel was at war with Iraq at that moment.

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Phrased in general terms, self-defence is justified even if taken in an anticipatory form when it constitutes an action at the last possible opportunity in the face of an attack that, according to objectively reliable data, is in the final process of being launched, other means of stopping that attack have been exhausted and the reaction is proportional to the attack.P' This interpretation, in fact, reflects the interpretation of the right of self-defence as formulated in connection with the Caroline incident and may thus be considered as being part of customary international law.IDS This interpretation conforms to the objective of selfdefence as an exception to the prohibition of the use of force. As already indicated , self-defence constitutes the ultimate form of self-help against an attack. The requirement of Article 51 of the UN Charter that such attack must have taken place is to be seen as a precaution against a misuse of that possibility. Where objectively reliable data demonstrating the imminence of an attack exist, the possibility of such abuse can, as far as possible, be excluded. Therefore, in such a situation, there is no justification to require the potential victim to wait for the strike and thus risk the loss of human lives. Not even the National Security Strategy of the United States assumes that the pre-emptive form of self-defence is in conformity with existing international law, be it treaty law or customary international law. The question is whether weapons development, in particular, the risk that terrorist groups or irresponsible governments gain access to weapons of mass destruction, supports the conclusion that such a state poses a threat which justifies acts of self-defence against that state. In spite of that danger posed by such a situation, there are several reasons for not extending the right of self-defence de lege ferenda so as to legitimize pre-emptive forms of self-defence. The right of self-defence was conceived as a reaction to th e actual violation of a state's territorial integrity. The abstract danger that such an attack may occur cannot be regarded as a situation that equally justifies an infringement upon the territorial sovereignty of another state. Such approach would abandon the requirement for an objective determination of an attack and replace 104

105

Considering such attack as self-defence, Schmitt, see note 11, 1535; A. D 'Amato, "I srael's Air Strike upon the Iraqi Nuclear Reactor", AjIL 77 (1983),584 et seq. (588); T.L.H. McCormack, Self-Defence in International La w: The Israeli Raid on the Iraqi Nuclear R eactor, 1996, 205 et seq. D instein, see note 6, 168, 169; Franck, Recourse to Force, see note 6, 104, 105 although pointing out that Israel had not exhausted its diplomatic remedies; Oppenheim's International Law , see note 62, refers in thi s context to necessity and proportionality as limiting factor s.

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it with a situation in which a purely subjective determination of the state asserting self-defence would be sufficient to justify the use of force. This opens the possibility for abuse, in particular, where the action is to be decided upon and implemented unilaterally. In this respect the argument that the checks and balances of a democratically governed state will preclude any misuse of the mechanism of pre-emptive selfdefence is not sustainable.l'" In any case, it is doubtful whether such a claim is factually correct.l'" Be that as it may, it is necessary to emphasize that any new understanding of the right of self-defence should cover all states, without taking into consideration their internal structure . As has been already indicated, it is impossible to design internationallaw mechanisms only for a section of states. Finally, recognizing a right of pre-emptive self-defence would, in effect, subject the prohibition of the use of force to the discretion of those states that are capable and ready to use that right. This would result in a lowering of the current threshold for the resort to self-defence under international law, and thus increase the likelihood of armed conflicts in general. It is undeniable that international law needs to create instruments which effectively cope with threats posed by a proliferation of arms of mass destruction and the inclination of certain regimes to engage in or to assist terrorist activities, but such instruments cannot be based on a so-called right of pre-emptive self-defence. The war of 2003 against Iraq has clearly demonstrated the inherent flaws, and even dangers in shaping the notion of self-defence in the way done by the National Security Strategy of the United States. In spite of the military occupation of Iraq it has not yet been possible for the United States to demonstrate that Iraq could dispose weapons of mass destruction which would threaten other states in the foreseeable future. This is unavoidable since a state invoking the right of pre-emptive selfdefence will tend to rely on data that are difficult to ascertain and are, above all, liable to be interpreted to serve the interests of that state. But the objection to pre-emptive self-defence is not only that actions might be taken on data which are not reliable or which could be misinterpreted. As with military humanitarian intervention, the so-called preemptive self-defence can easily be used to achieve objectives that are different from the ones given by the intervening state or states. Even democratic institutions are no safeguard in this respect as has been

106 107

Reisman, seenote 1, 89 seems to argue that point. See J.N. Moore, "Solving the WarPuzzle", AjIL 97 (2003), 282 et seq. (283 et seq.).

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demonstrated in the case of Iraq. It appears that this war was fought to change the political regime of that country. Although an effective change of that regime may have a stabilizing effect in th e region, this can never be an objective that can legitimately be pursued under the pretext of self-defence, pre-emptive or otherwise; and there is no indication that international law will mo ve in thi s dir ection which, in fact, would jeopardize one central element of state sovereignty. c. Addressees of Acts of Self-Defence As already indicated, th e military attacks of the United States and its allies in response to the Al Qaeda attack of September 11, 2001 raise the question whether recourse to self-defence was legitimate in this situation and whether the force that was used was addressed against the right entity.lOS When Article 51 of the UN Charter was drafted it was taken for granted that military attacks which might give rise to acts of self-defence would be launched by states. This is, for example, the position of the Definition of Aggression adopted by the General Assemblyl 09 which refers to aggression as "... the use of armed force by a State against the soverei gnt y, territorial integrity or political ind ependence of another State ...". 110 This reflects the fact that, at the time of the drafting of the UN Charter, intern ational relations were considered relations amongst states. In the meantime international relations have been modified by what is commonly referred to as individualizatio n of inlOS When the Security Council referred to the inherent right of individual and collective self-defence of the United States in respect of terrorist attacks of September 11, 2001 in its resolutions SIRES/1368 (2001) of 12 September 2001 and S/RES/1373 (2001) of 28 September2001 it did not name the possible target of actions of self-defence. In the latter resolution the Security Council reaffirmed the need "... to combat by all means in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist activities ...". See on this issue Wolfrum/ Philipp, see note 16, 586 et seq. It has been argued that the Security Council in resolutions 1368 and 1373 only referred to self-defence in their preambular paragraphs and that this could not be taken as an acknowledgement of a situation of self defence, E.PJ My jeri N.D . White; "The Twin Towers Attack: An unlimited Right to Self-Defence?, Journal of Conflict and Security Law 7 (2002), 5 et seq. (17); different Miillerson, see note 6, 175. 109 A/RES/3314 (XXIX) of 14 December 1974. 110 Pointed out by C. Stahn, "International Law at a Crossroads? The Impact of September 11", ZaoR V 62 (2002), 183 et seq.

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ternational relations. This individualization is reflected in the fact that non-state entities have increasingly become actors in international relations and, accordingly, addressees of international law. This has to be reflected in interpreting Article 51 of the UN Charter. The wording of Article 51 of the UN Charter which, incidentally, does not expressly state that the armed attack must come from a state cannot be interpreted to mean that states are not permitted to respond to an attack launched by private groups from the outside which is of a magnitude comparable to the type of attack referred to in Article 51 of the UN Charter.l!' To limit the right of states in this way would amount to granting a privilege to private actors to carry out large scale pseudomilitary acts across the border, in other words, it would give a licence to terrorists.U? Therefore, it is not of relevance which group carries out an action but whether the action is of a scale equivalent to military actions referred to in Article 51 of the UN Charter.v-' There is no doubt about that as far as the attack of September 11, 2001 is concerned.U" Whereas the attack of September 11, 2001 was undertaken by Al Qaeda the acts of self-defence were directed against the Taliban. This is only justifiable if the attack of September 11, 2001 was imputable to the Taliban. This may be a question, to borrow from the regime on state responsibility, as to whether the attack can be attributed to the Taliban. It has been doubted that principles pertaining to the Rules on State Responsibility, such as imputability, may be used in the context of selfdefence.U" Through the mechanism of imputability it is established

III

112

113 114 115

S/RES/1373 (2001) of 28 September 2001 has qualified the attack of September 11, 2001 as thre at to international peace and security and has reaffirmed the inherent right of the United States to self-defence. Tomuschat, see note 16, 540; Randelzhofer, see note 89, 51, MN 34, in: Simma, see note 6, takes an intermediate position: "Acts of terrorism committed by private groups or organizations as such are not armed attacks in the meaning of Article 51 of the UN Charter. But if large scale acts of terrorism of private groups are attributable to a state they are an armed attack in the sense of Article 51"; different A. Pellet, "N o, This is not War!", available under ; P.M. Dupuy, "The Law after the Destruction of the Towers", available under . Wolfrum/ Philipp, see note 16, 590. Tomuschat, see note 16, 535, 536. Different L. Condorelli, "The Imputability to States of Acts of International Terrorism", Isr. Y. B. Hum. Rts 19 (1989), 233 et seq. (240); Stahn,

Wolfrum, Recourse to Forc e and ius in bello Recon sidered ?

37

whether a subject may be held internationally responsible for a particular action or omission. Thus, imputability constitutes the indispensable link between an action, relevant in international relations and an entit y which may be held accountable for such action. Borrowing in this respect from the Rules on State Responsibility, self-defence is justified if one considers that both state responsibility and self-defence are mechanisms for the enforcement of international law. On the basis of that approach, the rules on imputability should apply to both mechanisms .Us

On this basis it is possible to conclude that the Taiiban were appropriate addressees for the acts of self-defence taken by the United Sates after the attack of September 11, 200 1. The assistance given to Al Qaeda was the necessary precondition for the latter to engage in terrorist activities world-wide. According to article 16 of the ILC Articles on State Responsibil ity, an accomplice to an international wrongful act is inter nationally responsible in the same way as the person who committed that act, if aid or assistance was given wit h the knowledge of the circumstances of th e internationall y wrongful act and if that act would have been wrongful if committed by the person rendering assistance or aid. l17 Although article 16 of the articles on State Responsib ility deals, as the articles on State Responsibility do in general, only with states this provision reflects a general principle which is to be applied to other subjects of international law and non-state entities not being subjects of international law, too. If the attack of September 11,2001 has been undert aken by a state with the assistance of another state, ther e would have been no doubt th at both states could have been legitimate targets of self-defence. Where an entity, such as the Taiiban , being a subject of intern ational law,118 renders assistance for an attack on a state, it cannot be privileged by th e mere fact that the entity which actually launched the attack was a non-state actor. Therefore a given action of a non -state actor is attributable to the respective subject of international law supporting the non-state actor, if that subject of international law deliber ately created a situation which was a necessary precondition for a later event, provided the happening of that event was not beyond reasonable

116

117

118

see note 110, 30 is qu ite doubtfu l whether on e may have recourse to the regime on state respon sibility in the cont ext of self-defence. Wolfrum l Phil ipp , see note 16, 594 et seq. See J. Crawford, The International Law Comm ission's A rticles on State Responsibility, 2002, 149. See on this Wolfruml Philipp, see note 16, 567 er seq.

38

Max Planck UNYB 7 (2003)

probability and constituted a breach of international law. This was the case under consideration.I'? Had the Taiiban prevented Al Qaeda from using Afghan territory as the base for its activities, as requested for several years by the Security Council.l-? and had the Taiiban surrendered Usama bin Laden, the attack of September 11,2001 might not have occurred. Therefore, the action of the Taiiban or rather their inaction lasting over several years, was one of the indispensable preconditions for the functioning of Al Qaeda and of the attack of September 11, 2001. Certainly after S/RES/1267 (1999) of 15 October 1999 the Taliban were fully aware of the threat Al Qaeda constituted to the United States and its population. Giving shelter to Al Qaeda contributed to upholding that threat and made further terrorist attacks more likely. This refusal of the Taiiban to take action against Al Qaeda was, in itself, also in breach of international obligations. International law does not only prohibit states from engaging in terrorist activities but it also requires them to take measures against such activities. For example, A/RES/49/60 of 9 December 1994 which may be taken to voice customary international law, not only obliges states not to desist from engaging in terrorist activities but obliges them to refrain from acquiescing in or encouraging activities within their territories towards the commission of terrorist activities in other countries. This generally phrased obligation has been specified for the Taliban in respect of Al Qaeda. The Security Council, on several occasions, has insisted that the Taiiban cease the provision of sanctuary and training for international terrorists and their organizations, to take appropriate effective measures to ensure that the territory under their control is not used by terrorists for the preparation of actions against other states or their citizens'!! and to turn over Usama bin Laden. 122 In not complying with these demands of the Security Council and with their obligations under general international law to refrain from directly or indirectly assisting international terrorist activities, the Taiiban themselves had violated international 119 120

121

122

Wolfrum/ Philipp, see note 16, 595 et seq.; Mullerson, see note 6, 185 comes to the same conclusion with a slightly different reasoning. The Security Council had already requested that in 1998 and 1999, S/RES/1214 (1998) of 8 December 1998 and S/RES/1267 (1999) of 15 October 1999. S/RES/1214 (1998) of 8 December 1998; S/RES/1267 (1999) of 15 October 1999. The latter having been adopted under Chapter VII of the UN Charter. S/RES/1267 (1999) of 15 October 1999; S/RES/1333 (2000) of 19 Decem ber 2000.

Wolfrum, Recourse to Force and ius in bello Recon sidered ?

39

law. Accordingly, acts carried out by Al Qaed a were also attributable to the Taliban and they could be made the target of actions of self-defence.

III. Ius in Bello 1. Introduction

The law of armed conflict is primarily concerned with preserving, as far as possible, certain humanitarian core values during the conduct of hostilities. To achieve this objective the law constrains states in the way they plan and execute their military activities. The respective rules have their roots in the traditions of all cultures; they are, by their very foundation, universal. 123 One of the first attempts to codify the existing customs and usages of war was the so-called Lieber Code of 1863 issued by the US President Abraham Lincoln to the Union forces in the American Civil War.124 It was the first instance in western history in which the government of a state established formal guidelines for its army's conduct towards its adversar y and had them published.V" It influenced the international codification of that complex of international law which started in the second part of the 19th century.l-" The modern international treat y law on the rules in armed conflict on land comprises, in particular, the Hague Regulations Respecting the Laws and Customs of War

123

124

125

126

See 1. Detter, Th e Law of War, 2nd edition, 2000, 164 et seq.; R.C . Algase, "Protection of Civilian Lives in Warfare: A Comparison betwe en Islamic Law and Modern International Law Concerning the Conduct of Hostilities", Military Law and Law of War Review 16 (1977), 246 et seq. See in particular B. Raben, Johann Caspar Bluntschli, Francis Lieber und das moderne Volkerrecht 1861-1881, 2003, 198 et seq. R.S. Hartigan, Lieber 's Code and the Law of War, 1983, 1 et seq.; B.M.L. Carnahan, "Lieber and the Laws of War: The Origins and Limits of Military Necessity", AJIL 92 (1998), 213 et seq.; G. Fahl, Hu man itdres VOlk errecht, 1983, 19 refers to a regulat ion on war issued by Czar Peter I of 30 March 1716. See also S. Von eky, "Der Lieb er's Code und die Wurzeln des modernen Kriegsvolkerrcchts" , ZaoRV 62 (2002), 423 ee seq. The historical developm ent of the law in armed conflict is br iefly summarized in H. McConbrey/ N .D.White, International Law and Armed Conflict, 1992,209 et seq.

40

Max Planck UNYB 7 (2003)

on Land of 1907,127 the four Geneva Conventions of 1949,128 Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Additional Protocol 1),129 Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of NonInternational Armed Conflicts (Additional Protocol II)130 and various treaties dealing with weapons, culminating in the so-called Conventional Weapons Convention of 1980. 131 Although the rules on the law in armed conflict have been codified to a large extent, this does not mean that there is no room for customary international law. In fact, the latter remains highly relevant, in particular since the respective instruments, especially Additional Protocol I and II, have not been universally ratified. In particular, neither the United States nor the Iraq is a party to Additional Protocol I. Hence, referring to that instrument in respect of these two states is only justified if it is accepted that the respective rules of Additional Protocol I codify or have become customary international law. The law in armed conflict, having been codified over the last hundred years, faces several problems, as far as its applicability and scope is concerned. These problems mainly stem from the fact that the typology of armed conflict has changed considerably. These rules were originally developed in the context of armed conflicts between states. The respective treaty obligations - with the exception of common article 3 of the four Geneva Conventions and Additional Protocol II - are applicable only in conflicts between states. This was also true of the respective rules of customary international law. However, most of the armed conflicts after World War II were not fought between states, but rather within states or between a state and a non-state entity. More recent 127 128

129 130

131

Annex to the Convention (IV) Respecting the Laws and Customs of War on Land, Martens NRC 3eme serie, Volume III, 461 et seq. Convention I for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field; Convention II for the Amelioration of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention III relative to the Treatment of Prisoners of War; Convention IV relative to the Protection of Civilian Persons in Time of War. (all reprinted in D. Schindler! J. Toman, The Laws ofArmed Conflicts, 1988) . ILM 16 (1977), 1391 et seq. ILM 16 (1977),1442 et seq. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, ILM 19 (1980), 1523 et seq.

Wolfrum, Recourse to Force and ius in bello Recon sidered?

41

treaties concerning the rules in armed conflict reflect this change. In particular, treaties on specific weapons, for example the 1993 Chemical Weapons Convention' V and the two agreements on land mines (the 1996 Protocol of the so called Conventional Weapons Convent ion of 1980133 and the 1997 Land Mines Conventionl-") expressly apply to internal as well as international conflicts. However, the distinction between armed conflicts among states and those between a state and a non-state actor, which was still very dominant at the Diplomatic Conference adopting the two Additional Protocols to the fou r Geneva Conventions, has been further eroded in general. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, for example, held in its decision Prosecutor v. Tadic urisdiction), that customary international law applicable to internal armed conflicts is more extensive than anticipated and that it included the customary rules regarding methods and means of warfare which apply in international conflicts. This reasoning was not based on respectiv e state practice, but the Appeals Chamber convincingly invoked that the concerns of humanit y were the same and cannot depend upon the natu re of the conflict. 135 Although the differences between the law in international and

a

132

133

134

135

Convention on the Prohibition of the Development, Production, Stockpiling and Us e of Chemical Weapons and on th eir Destruction, ILM 32 (1993),800 et seq. Prot ocol on Prohibition s or Restrictions on the Use of Mines, Boob yTraps and other D evices (Protoco l II) as amended, ILM 35 (1996), 1206 et seq. C onv ention on the Prohibition of the Use, Stockp iling, Production and Transfer of Anti-Person al Mines and on the ir De stru ction , ILM 36 (1997), 1507 et seq. The Appeals Chamber stated: "[E]lementary considerations of humanity and common sense make it preposterous that the use by States of weapons prohibited in armed conflicts between themselves be allowed when states try to put down rebellion by their own nationals on their own territory. What is inhumane, and consequent ly proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife ...» (Prosecutor v. Tadic, (Decision on th e Defence Motion for Interlocutory Appeal on Jurisdicti on ), ILM 35 (1996), 35 et seq. (68, para. 119); reiterated in the Judgment Prosecutor v. Enuer Hadzihasanovic, Mehm ed Alagic A mir Kub ura (D ecision on Int erlocutory Appeal) (Case IT-01-47 - AR 72); the latter rightl y po inted out that the applicability of rul es for the international armed confli cts to the non -int ern ational armed confli ct has to be established for each issue and this cannot be done so in general (par a. 12). In doin g so the Tribunal no t only considers state practice bu t in particular

42

Max Planck VNYB 7 (2003)

non-international conflicts have been alleviated, that does not mean that they have fully disappeared. 136 In consequence thereof, on certain issues it remains questionable to what extent rules in armed conflict designed for conflicts between states (international conflicts) apply between states and non-state entities (non-international confli cts). Taking the briefly sketched development into consideration, time seems to be ripe to consider codifying humanitarian law in noninternational conflicts in a way which exceeds the rudimentary rules of common article 3 of the four Geneva Conventions and of Additional Protocol II. It is not adequate to rely on these rules, and on analogies to international humanitarian law in international armed conflicts, in particular, when they are invoked in the prosecution of war crimes.l-" The problem is not merely that there is a lack of clarity as to which rules of humanitarian law governing international armed conflicts will actually be applicable in non-international conflicts. Significant uncertainty also exists with regard to the treatment of members of the forces of nonstate entities, as will be demonstrated in the context of the war against the Taiiban and Ai Qaeda. But what is even more important is the general question, namely to what extent are such forces bound by the existing rules of war or - to put it into different terms - to what extent is it permissible for such forces to claim that they are not bound to follow such rules while at the same time invoking the protection of humanitarian law for themselves. This is a matter of how to re-establish reciprocity amongst parties to an armed conflict as far as the governing law on warfare is concerned, an issue upon which hinges implementation and enforcement of the law of warfare itself.

136 137

whether the situations are analogous. F. Kalshoven, "Arms, Armaments and International Law", RdC 191 (1985), 183 et seq. (296) came to the same conclusion by pointing out that under customary international law states were under an obligation to spare civilians and civilian objects in internal conflicts. C. Greenwood, "The Law of Weaponry at the Start of the New Millennium", in: M.N. Schmitt/ L.c. Green (eds), The Law of Armed Conflict into the Next Millennium, International Law Studies Volume 71, 1998,185 et seq. (193) questions whether there is enough evidence for customary international law in this respect but considers the argument advanced by the Appeals Chamber as compelling. See on this Greenwood, see above, 193. See in this respect the Separate and Partially Dissenting Opinion of Judge David Hunt in the Case Prosecutor o. Hadzihasanovic et a!., see note 135, concerning the question of content and scope of command responsibility.

Wolfrum, Recourse to Force and ius in bello Reconsidered?

43

The issue which, in part, deserves reconsideration, in particular in the context of the war against Iraq and against the Taliban, involves the rules that should apply on weaponry and on targeting. The prohibition of certain weapons has a long history, many of the respective international treaties have been developed at the beginning of the 20th century. Since then the weapons technology has been advanced considerably, adding new weapons but also developing smart weapons which can be targeted more precisely thus avoiding collateral damage to civilians and civilian objects. This development calls for a reconsideration of, in particular, the law of weaponry. For example, collateral damage to civilians and civilian objects which was formerly tolerable, may not be tolerable any more. Apart from that, a clear tendency can be identified that the international law rules on targeting have, in the two wars against Iraq as well as in the bombardment of Yugoslavia, received a broader interpretation than could be anticipated under the respective rules of Additional Protocol I read literally.

2. Use of Weapons The law of weaponry serves several purposes.l-" It is one of its objectives to distinguish between civilians and civilian objects, on the one hand, and combatants and military objects on the other hand, with a view to protecting the former. 139 It also has for objective that the use of weapons may not cause suffering unnecessary for the achievement of legitimate military goals. This principle also protects combatants in addition to civilians. The principle of 'limited warfare' has further been broadened: it now limits the use of weapons and methods of warfare which have a substantial adverse effect upon the natural environrnent.U?

138

139

140

Greenwood, see note 135, 185 points out that developments of weaponry and methods of warfare during the twentieth century have not been matched by the development of law; on the law of weaponry in general see Detter, see note 123,211 et seq. The basic rule in this respect is article 48 Additional Protocol I; it explicitly lays down the maxim of a 'limited warfare'. S. Voneky, Die Fortgeltung des Urmueltuolkerrechts in internationalen bewaffneten Konflikten, 2001,29 et seq.; R.G. Tarasofsky, "Legal Protection of the Environment during International Armed Conflict", NYIL 24 (1993), 17 et seq.

44

Max Planck UNYB 7 (2003)

It is established in customary international law, as well as in treaty law, that attacks':'! must be limited strictly to military objectives. 142 The notion of military objective has been defined by article 52 Additional Protocol I as well as in later international instrurnenrs.If Such definition constitutes one of the most heavily disputed provisions of Additional Protocol 1. The Additional Protocol has chosen to define the notion in abstract terms mainly by referring to the respective objects and personslt" which legitimately may become the target of a military attack. Such definition consists of two parts - an objective part and a subjective one. In the former the definition refers to objects and persons which must not be made a military target and accordingly it must be read in conjunction with the rules limiting attacks on civilians and civilian objects. Generally speaking, three different aspects are to be distinguished. Military actions must not be directed against the civilian population,

141

142

143

144

The notion of "attacks" is defined in article 49 Additional Protocol 1. Attacks are "acts of violence against the adversary, whether in offence or defence". The notion is narrower than the term "military operation" which also embraces military activities without direct use of violence. To the extent that such operations do not lead to violence against the adversary the rules concerning the protection of civilians and civilian objects do not come into play; see S. Deter, "Methods and Means of Combat", in: D. Fleck (ed.), Handbook of Humanitarian Law in Armed Conflicts, 1995, 105 et seq. (153, para. 441); W.A. SoH, "Article 49-Definition of Attacks and Scope of Application", in: M. Bothel K.]. Partschl W.A. Solf, New Rules for Victims ofArmed Conflicts, 1982,286 et seq., (289). As to the historical development of this notion see: A.P.Y. Rogers, Law on the Battlefield, 1996,27 et seq.; Detter, see note 123,280 et seq. referring to article 24 of the Hague Draft Rules of 1923 which clearly influenced the wording of article 52 Additional Protocol 1. Article 2 of Annex II and Annex III to the so called Conventional Weapons Convention, see note 132; this is equally true for the amended Protocol II of 1996. The principle military targets have been traditionally enemy combatants which includes units of the army, the navy and the air force, guerrilla fighters, the civilian population of an invaded country taking part in hostilities (levee en masse). Already the Preamble of the Declaration of St. Petersburg of 1868 stated: "Considering .., that the only legitimate object which states should endeavour to accomplish during war is to weaken the military forces of the enemy; ...".

Wolfrum, Recourse to Force and ius in bello Reconsidered?

45

individual civilians or civilian objects.v> A belligerent is requ ired to distinguish between combatant s and military ob jects, on the one hand , and the civilian population and civilian obje cts, on the other hand: direct attacks against the latter are prohibited. J' " Even if the target of an attack is a legitimate military object, incidental loss of civilian life, injury to civilians or damage to civilian objects are prohibited if the y would be excessive in relation to the concrete and direct military advantage anticipated.J '" If th ere are different choices for a military attack between several military objects for obtaining a similar military advantage, the attack which may be expected to cause the least danger to civilian lives and civilian obje cts should be selected.l'" In practice it is the identification of the objective which may be made a military target which is problematic. According to Additional Protocol I military objects which thus may be made a target are those which by their location, nature purpose or use make an effective contribution to military actions and whose total or partial destruction, capture or neutralization offers definite military advantage.l "? This wording includes, as a matt er of principle, all installations, buildings or ground sectors which are directly invol ved in the milita ry endeavours of the adversary. The second element of the definition , the subjective one , namely that the att ack must be dire cted against objects which 145

146 147

148

149

Article 49 (2) Addition al Protocol I provides that the limitations on targeting and the use of weap on s also applies to the territory of the belligerent undertaking the respect ive action but occupied by the adversary. These rul es appl y to land warfare as well as from the air and on the sea. See art s 48 and 51 (2), 51 (3) and 52 (1) Additional Protocol 1. Article 51 (5) (b) Addition al Protocol I; this is considered to be part of custo mary international law; Bothe/ Partsch/ SoH, see note 141, 299 consider the whole of article 51 Additional Protocol to be customary international law, so does the Cornite International de la Croix-Rouge (ed.), Commentaire des Protocoles additionnels due 8 juin 1977, 1986, article 51, note 1923; H.B. Rob ertson, "The Principle of Military Objective in the Law of Armed Conflict", Journal of Legal Studies 8 (1997), 35 et seq.; points out that several operational manuals have copied art icle 52 (2) Additional Protocol 1. Article 57 (3) Additional Prot ocol I; this, too, must be con sidered to be part of international cust oma ry law. Even if a different po sition is taken , see Ro gers, see not e 142,43, th e same result would have been achieved by invoking the principle of proportional ity whi ch clearly constitutes part of customary intern ational law, different also in this respect Rogers, see note 142,43. Article 52 (2) Add ition al Protocol 1.

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Max Planck UNYB 7 (2003)

"make an effective contribution to military action" of the adversary and must offer a "definite military advantage" means that the intents of the adversary as well as own military planning of the attacking forces must be considered. The attack must result in a concrete military advantage of the attacking forces (whether such advantage materializes at the end is irrelevant); it must be militarily necessary to reach a permissible operative goal. Attacks launched merely for terrorizing the civilian population of the adversary, to break their determination to fight or to demonstrate military superiority are prohibited. This also excludes fanciful estimates of military advantage or an attack which is not based upon proper information. ISO Already when the provisions of Additional Protocol I on civilian objects and their protection were adopted, it was known that the requested differentiation was difficult to achieve in practice, given the complex interaction between the industry of a state and its infrastructure with the machinery to sustain war efforts. This has been reconfirmed in the wars against Iraq in 1990/1991 and in 2003. It is for that reason that occasionally reference is made to mixed targets;ISI although the respective rules are oblivious of an intermediate status or a dual use status. Either something is a military object or it is not. IS2 In the war against Iraq 1990/1991 the United States air warfare plan was to strike first at Iraqi command, control and communication facilities, to gain air supremacy, to destroy the nuclear, bacteriological and chemical warfare capability, to eliminate Iraq's offensive warfare capability by attacking military production plants and to attack lines of communication to Iraqi forces in Kuwait. Finally, the plan provided for attacks on enemy armed forces. IS3 The following objects were attacked by United States ISO Cornite International de la Croix-Rouge, see note 147, article 52, note 2024; lSI 152

lS3

Bothe/ Partsch/ Solf, see note 141, 326. Rogers, see note 142,42 et seq. C. Greenwood, "Customary International Law and the 1. Geneva Protocol of 1977 in the Gulf conflict", in: P.}. Rowe (ed.), The Gulf War 1990-91 in International and English Law, 1992,63 et seq. (73). Conduct of the Persian Gulf War, US Department of Defence, Final Report to Congress, April 1992, 95; an assessment is given by O. Schachter, "United Nations Law in the Gulf Conflict", AJIL (1991), 452 et seq. (466); G. Best, Law and War since 1945, 1994, 384; the list provided by Robertson, see note 147,35 et seq. also includes civil television and radio installations since th ey could be used for Iraqi propaganda; critical R. Normand/ C. jochnick, "The Legitimization of Violence: A Critical History of the Laws of War", Haru. Int'l L.]. 35 (1994), 387 et seq. (402).

Wolfrum, Recourse to Force and ius in bello Reconsidered?

47

forces: leadership command facilities such as the Iraqi intelligence service headquarters, refined oil production facilities, nuclear, chemical and biological sites, bridges, communication towers, supply lines, including railway and road bridges between Baghdad and Basra, radio and television installations and electricity production facilities. United Kingdom forces attacked airfields, barracks, radar control centres, ammunition dumps, petroleum storage sites, power stations, Scud missile sites, bridges, hardened aircraft shelters, coastal defence positions, surface-toair-missiles batteries, supply depots, naval vessels, artillery positions and concentrations of armour. t 54 In the war of 2003 the attacks concentrated more on Iraqi communication centres and lines than on the Iraqi infrastructure; ministries and other official buildings were attacked at night so as to, amongst others, reduce the risk of human casualties. Generally, in the war against Iraq (1990/1991) and in the one of 2003, the question has arisen whether it is sufficient that an object has a general war-sustaining capability for the adversary or whether the military advantage must be concrete before objects may be targeted. The United States government seems to have invoked in this context the targeting of cotton crops in the United States civil war t55 as a justification to take a wide approach, namely, to target the war sustaining capabilities of Iraq. The fact that the rules on the constraints of targeting and the use of weapons of Additional Protocol I deal with that issue in the context of attacks as defined in article 49 Additional Protocol I points in the latter direction. These rules are meant to limit the individual operation. Accordingly, it is argued, it is a matter of consequence to derive the justification for the attack from that individual operation and the concrete context it will take. Such an approach would make it quite questionable to justify an attack by referring to overarching intentions which are not even of a purely military nature or to justify a given action by arguing that everything that is weakening the war sustaining efforts of the adversary is, in general, justified. The United States policy in the 2003 war against Iraq now seems to deviate from article 52 (2) Additional Protocol 1. Although article 40 (c) of the United States Army Field Manual adopted the wording of article 52 (2) Additional Protocol I in its entirety according to Military Commission Instruction No.2 (issued on 30 April 2003) military targets in154 155

P. Hine, "Dispatch by the Joint Commander of Operation Granby", 2nd Supp!., London Gazette of 28 June 1991. Robertson, see note 147, 35 et seq.

48

Max Planck UNYB 7 (2003)

elude objectives that effectively contribute to helping opposing forces continue to fight ("war-sustaining capability") thus omitting the word "definite" which clearly was meant as a limiting element.P" Even before the Commanders Handbook on the Law of Naval Operations stated that economic targets of the enemy that indirectly but effectively support and sustain the enemy's war-fighting capability may also be attacked. 157 The interpretation of article 52 (2) Additional Protocol I was already disputed when it was adopted.!" The German government even felt it necessary to annex to its ratification an interpretative statement of what constitutes a "definite military advantage". It reads: "...'military advantage' is understood to refer to the advantage anticipated from the attack as a whole and not only from isolated or particular parts of the attack."159 However, the interpretation pursued by the United States seems to go a definite step further. If taken to the extreme, it could mean that every attack would conform to article 52 (2) Additional Protocol I even those which show military superiority or which target the infrastructure of a state or the production upon which the economy of the respective state is based. Although it is correct to say that a "military advantage" which justifies classifying an object as a "military object" may be based on an integrated view of separate actions, the effect must be a military and a direct one, namely, one which materializes itself on the military level and not via the effect on the civilian population or the destruction of civilian objects. This interpretation of the notion "military object" allows attacks against bridges and railroads and all lines of communication. However, this does not provide for the possibility of attacks against official buildings not used for military purposes, radio and TV stations even if used for propaganda purposes which have also been attacked in the NATO bombardment of Yugoslavia, and on the economy of the adversary as such. One has to concede, though, that given the relevance of the economy to sustain war efforts or even its respective transformation into an economy which is only 156 Rogers, see note 142, 36; Bothe/ Partschl Solf, see note 141, 326. 157 Annotated Supplement to the Commander's Handbook on the Law of Naval Operations, NWP 1-14MN (Formerly NWP 9 (Rev.A), MCWP 5-21, COMDTPUT P5800.7, para . 8.1.1. 158 Bothe/ Partsch/ Solf, see note 141,326. 159 Quoted from Oeter, see note 141, para. 444, this declaration was in fact made in connection with proportionality; a similar declaration was made by the United Kingdom at signature, text in: Bothel Part sch/ SoH, see note 141,721.

Wolfrum, Recourse to Force and ius in bello Reconsidered?

49

meant to sustain war which was typical for the two World Wars, and has become common in recent wars, it will be more and more difficult to differentiate adequately. For example, making it more difficult for several parties to internal conflicts to make use of trade in diamonds has been somewhat successful in curbing their capabilities to continue the war. Such an approach may recommend itself for wider application. Article 52 (2) Additional Protocol I gives too little guidance in this respect and should be reconsidered. If no international effort is undertaken to provide for more effective criteria to distinguish between civilian and military objects efforts will be undertaken on the national level to increase the discretionary powers of those politically or militarily responsible for military operations. This will inevitably lead to a step-by-step reduction of the protection of civilian objects an objective, sought already by Francis Lieber. 160 The second issue concerning the usage of weapons and targeting to be addressed in the context of this article is whether the increased potential for precise targeting makes it necessary to avoid collateral damage to civilians and civilian objects. The prohibition to cause collateral damage or - in other words - to launch an indiscriminate attack, has its roots in the already-mentioned principle that belligerents shall at all times distinguish between, on the one side, the civilian population and civilian objects and, on the other, combatants and military objects. This obligation was widely disregarded in World War II but it has been reaffirmed in article 51 (4) and (5) Additional Protocol 1. There is no doubt that this obligation is part of customary internarional law.ls' Article 51 Additional Protocol I addresses three different aspects of this principle. Article 51 (4) (a) Additional Protocol I prohibits attacks which are not directed at a specific military object. This is nothing more but a logical consequence of the obligation to distinguish between civilian and military objects. The attacker must ascertain that the targeted object is a military one in accordance with the rules of war. Further, the action must be restricted, as far as possible, to the targeted military object alone and not to objects or civilians around it. Blind fire into the territory controlled by the adversary as well as attacking without reliable information is prohibited; so is the practice of World War II to release bombs over the territory of the adversary after missing the origi-

160 161

See article 37 of the Code. Greenwood, see note 135,200.

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Max Planck UNYB 7 (2003)

nal target. 162 In the wars against Iraq 1990/1991 and 2003 the pilots of the Allies were under the obligation to return the bomb load entirely when target identification had failed, this meets the standards set by Additional Protocol 1. According to article 51 (4) (b) Additional Protocol I attacks are prohibited which employ a method which cannot be directed at a specific military object . Using such systems again would be in violation of the obligation to distinguish between military and civilian objects. This rules out weapons systems which, by their very nature, cannot be targeted accurately. A recent example of such a weapon system was the launch of Scud-missiles by Iraq against Israel in 1991. Night attacks without respective targeting equipment or bombing raids from a very high altitude may fall into this category, when target accuracy becomes unacceptably low; as well may mines that are laid without customary precautions and which are unrecorded or unmarked and which are not designed to destroy themselves within reasonable time.163 The most controversially discussed rule is the one in article 51 (4) (c) Additional Protocol 1. According to it an indiscriminate attack is the one which employs a method or means of combat the effects of which cannot be limited as required by the Protocol. This rule refers to those provisions which neutralize certain objects such as dams, the natural environment and cultural objects, for example. This rule also refers to the rule of proportionality as enshrined in article 51 (5) (b) and 57 (2) (a) Additional Protocol 1. These rules are supplemented by the rules obliging the political and military personnel responsible for the armed conduct to choose "means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life ... and damage to civilian objects. "164 There are two aspects to that provision. The respective precautionary measures are to be implemented in the stage of planning as well as in action. In the planning stage states are required not only to train soldiers respectively but also to issue the necessary orders, in particular, the rules of engagement which implement that rule and to ensure logistically that weapons with adequate target accuracy are at the disposal for those responsible for military action. This aspect seems to have been taken care of in the wars against Iraq .

162 163 164

Oeter,seenote 141, para. 455. Oeter,seenote 141, para. 455; Bothe/ Partschi SoH, see note 141, 305. Article 57 (2) (a)(ii) Additional Protocol I.

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The second aspect of this principle referred to concerns regarding the selection of weapons to be used. Under article 57 (2) (a) (ii) Addi tional Protocol I the commanding officers are under an obligation to employ those weapons which can be targeted most precisely. Hence such obligation follows the weapons development. What was tolerable in the past may not be tolerable any more. Apart from that the burden such obligation imposes may differ as to the technological standard of each state. The technological gap which may result therefrom can only be closed by excluding certain weapons as being of an effect which is no longer tolerable. The Conventional Weapons Convention can be interpreted as a move into that direction. Nevertheless it remains doubtful whether the rule only to use weapons which, from a technological point of view, are the most accurate ones has been fully implemented. A further clarification of this, particularly in military manuals, seems to be called for. A final point deserves mentioning in this context, namely the dealing with civilian objects or objects which have been explicitly exempt from military targeting but which, however, have been used by the adversary for its military activities. The Desert Storm Rules on Engagement state: "... Hospitals, churches, shrines, schools, museums, national monuments, and any other historical or cultural sites will not be engaged except in self-defence ... " .165 This goes beyond what is required under article 52 (2) Additional Protocol I since such civilian objects - a different regime applies to cultural objects - loose their status as civilian object if used for military purposes by the adversary. The rules on the prohibition of indiscriminate attacks remain applicable (article 57 (2) (a) (iii) Additional Protocol I). It is worth considering supplementing existing rules on the protection of civilian objects vitally necessary for the civilian population or the treatment of wounded or sick to ensure that such objects are not used for military purposes, as is the case for cultural objects. This would render it more difficult for belligerents to use such objects as shelter.

165

Reprinted in: A. Roberts/ R. Guelff, Documents on the Laws of War, 3rd edition, 2000,561; G. Best, War and Law Since 1945, 1994,273 points out that the rules on targeting have been followed in the 1991 war against Iraq being unclear whether the collapse of the inner Iraq's water-supply system was accidental or intentional.

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Max Planck UNYB 7 (2003)

3. Prisoners of War and Prosecution of War Crimes Since the commencement of military operations in Afghanistan in October 2001, the United States forces have detained people including both Taliban and Al Qaeda fighters. In addition to Afghan nationals, nationals from several Arab, Asian and European states are reported to be among the detainees. As of August 2003, approximately 660 of these prisoners had been transported and detained by United States forces in Guantanamo Bay. The United States government has stated that neither group would be granted prisoner of war status although in their treatment the rules of international humanitarian law would be respected. The United States government has advanced several arguments based upon international law to justify that approach.lw It has been asserted that members of the Taliban forces are not entitled to prisoner of war status because the Taliban was not, in the view of the United States, the recognized government of Afghanistan. Further that prisoners held in Guantanamo Bay had neither carried distinctive signs nor had conducted their operations in accordance with the law of the customs of war as required under article 4 (2) Third Geneva Convention. The issue of taken prisoners of war has also come up in the context of the war of 2003 against Iraq. It is open to question whether only the members of the army, navy and air forces taken prisoners qualify as prisoners of war or whether the members of the Republican Guard and the Fedayeen Saddam may also qualify. Further, the coalition forces in Iraq are faced with the question as to which tribunals may prosecute war crimes, whether persons may be transferred to Guantanamo or the United States and which rules govern the internment of these persons. The whole issue is to be seen against the background that, although the military fighting has come to an end, the coalition forces are faced with small scale attacks as well as sabotage and even terrorist acts. The international rules governing these complex questions are contained in the Third and Fourth Geneva Convention, the Hague Regulations, in international human rights law and in customary international law. The treatment of persons captured in the wars against the Taliban,

166

See statement by the U .S. Press Secretary, Washington D.C. of 7 February 2002; White House Fact Sheet of 7 February 2002, 1; see also G.A. Lopez, "The Style of the New War Making the Rules as We Go Along ", Ethics & International Affairs 16 (2002), 21 et seq. (25); a different approach has been taken by the International Committee of the Red Cross, Press Release of 9 February 2002.

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Ai Qaeda and Iraq can be looked upon as to whether the requirements of international humanitarian laws were met in respect of the detainees,I67 but also whether the respective provisions that provide clear guidance in situations such as the ones faced in recent armed conflicts were met. As far as this aspect is concerned, this article will only deal with the general question whether the United Sates government was justified in denying detainees in Guantanamo Bay the formal prisoner of wa r status. It will not deal with the treatment tha t the detainees received there. Article 4 Third Geneva Convention is the bas ic rule concerning the types of persons who are eligible as prisoners of war. This provision identifies several groups of persons which, having fallen into the power of the adversary, are to be cons ider ed prisoners of war. These are members of the armed forces of a party to the conflict as well as members of militias or volunteer groups which form part of such armed forces. 168 Additionally members of other militias and members of other volunteer corps, including those of organized resistan ce mo vements belonging to a party to the conflict and operating in or outside thei r own territory, may acquire the status of prisoners of war if the groups referred to meet certain criteria. 169 The main distinct ion between these catego ries is that the four criteria referred to in article 4 A (2) (a-d) Third Geneva Convention apply to irregular forces (such as militias not being part of armed forces of a party to the conflict) but not to members of regular arm ed forces as referr ed to in article 4 A (1) and (3) of that Convention. F? This is of relevance with respect to th e Taiiban.

167 168 169 170

See on this already Wolfrum/ Philipp, see note 16,596 et seq. Article 4 A (1). See article 4 A (2) (a-d). This distinction made in article 4 A of the Third Geneva Convention follows in substance article 1 Hague Regulations; on the legislative history of article 4 Third Geneva Convention see: Final Record of the Diplomatic Conference of Geneva, 1949, Vol. II A, 465-467; A. Rosas, Th e Legal Status of Prisoners of War: A Study in Int ernational H umanitarian Law Applicable in Arme d Conflicts, 1976, 328 et seq., gives a detailed analysis of this

complex. See also: See G.H. Aldrich, "New Life for the Laws of War", Aj/L 75 (198 1), 764 et seq. (768 et seq.); A.P. Rubin, "Terrorism and the Laws of War", D en.]. I nt 'l L. & Pol'y 12 (1983), 219 et seq. (222); different,

Y. Dinstein, "The Distinction between Unlawful Combatants and War Criminals", in: Y. Dinstein (ed.), International Law at a Tim e of Perplexity, Essays in Honour of S. Rosenne, 1989, 103 et seq. (108).

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Max Planck UNYB 7 (2003)

The arguments advanced by the United States government for not giving the detaine es in Gu antanamo Bay the formal status of prisoners of war are to be jud ged on the basis of article 4 A Third Geneva Convention. The assertion that the members of the Taliban forces are not to be considered prisoners of war since the Taliban regime did not enjoy international recognit ion is not sustainable. Article 4 A (3), Third Geneva Convention covers this situation. The recogn ition of the adversary government by the detaining power is of no relevance to the issue of the prisoner of war status of members of forces whi ch profess allegiance to such government. Equally it is of no relevance that the Taliban were not recognized internationally as the government of Afghanistan. The formal recognition of governments and states has lost the constitutive character it formerly had; what is relevant is whether the respective entity is in de facto control of the respective state territory or a part thereof. The Taliban met the requirement of a regular force. They were organized under the authority of a central command of a government, namely the de facto governm ent of Afghanistan, the TalibanF' Finally, it may be pointed out that the approach now taken by the United States government is at variance with the position taken by it during the Korean War. On that occasion the United States government has considered detainees from the Peoples Republic of China as prisoners of war although the government of the Peoples Republic of China was not recognized by the United States government and by many other states.P? The view that combatants who have violated the rules of warfare would, in general, loose the status as prisoners of war blurs the distinction between such statu s and the possibility to prosecute prisoners of wars for such violations as provided for in article 82 et seq. Third Geneva Convention. Article 85 Third Geneva Convention pro vides that the sanctions for having violated the laws of armed conflict do not include forfeiture of the prisoner of war status. Th ere is, though, an apparent contradiction between article 4 A (2) (d) Third Geneva Convention, dealing with member s of other militias and article 85 Third Geneva Convention, since the prisoner of war statu s would only be granted to the members of militias other than those of the armed forces if they conduct their operation in accordance with the laws and customs

171 172

See in thi s respect Wolfrum/ Ph ilipp , see not e 16, 584 et seq. C. Moore, "The United State s, International Humanitarian Law and the Prisoners at Gu an tanamo Bay", International Journal of H uman Rights 7 (2003), 1 et seq. (7).

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of war. This provision cannot be invoked, though, in respect of members from the TaIiban forces since they are to be considered as members of regular forces. Depriving them of their status for having violated the rules of warfare would be in violation of article 85 Third Geneva Convention. Finally, the argument is untenable that Taliban fighters are deprived of their potential prisoner of war status for not having displayed their combatant status appropriately. As already pointed out, this argument is based upon an interpretation of the prisoner of war status not endorsed by the wording of article 4 A (1) and (3) Third Geneva Convention. Apart from that it is even doubtful whether such assertion meets with the facts. The Taliban fighters were distinguishable from the civilian population because they wore black turbans and had scarves indicating to which force they belonged. This is to be considered as a distinctive sign appropriate for identifying them as members of the armed forces. To wear a uniform is not even required for regular forces. In defining the status of the detainees held in Guantanamo Bay, arti cle 5 of the Third Geneva Convention is also to be applied. It maintains that if any doubt exists whether persons, having committed a belligerent act and having fallen into enemy hands, belong to any of the categories enumerated in article 4, the status of these prisoners must be determined by a competent tribunal. This decision cannot be made by the capturer himself, as the House of Lords in the Case of Osman v. Prosecutor has rightly pointed out. 173 The situation concerning members of Al Qaeda is more complicated. They cannot be considered being members of the regular armed forces and it is doubtful whether they are to be seen as members of militias forming part of such armed forces falling under article 4 A (2) Third Geneva Convention. This is a question of fact. If, what is most 173

"Treatment as privileged, or unprivileged, belligerent cannot be at the pleasure of the capturer", House of Lords [Privy Council], Osman bin Haji Mohamed Ali v. Public Prosecutor [1969] 1 A.C. 430; see also M. Sassoli/ A.A. Bouvier (eds), How Does Law Protect in War?, 1999, 767 et seq. On 12 March 2002 the Inter-American Commission called on the US government "to take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal". This was in response to a petition filed on 25 February 2002 by the Centre for Constitutional Rights, Columbia Law School and the Centre for Justice and International Law alleging violations of the United States obligations under the American Declaration on the Rights and Duties of Man in relation to the Guantanamo detainees.

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Max Planck UNYB 7 (2003)

likely, Ai Qaeda acted independently of, or only in loose connection with the Taiiban, then the requirements of art icle 4 A (2) Third Geneva Convention have to be met by Ai Qaeda forces if they are to be considered an irregular force whose members are entitled to prisoner of war status. This seems not be the case. Ai Qaeda has been organized as an international terrorist network rather than an irregular force according to article 4 A (2) Third Geneva Convention, and it was and is directing its attacks deliberately against civilians rather than other armed forces. Thus it is not conducting its operations in accordance with the laws and customs of war. Accordingly, Ai Qaeda fails to meet at least one of the requirements for qualifying as an irregular force and it is more than doubtful that it meets the others. Thus, the members of Ai Qaeda taken prisoners by the United States, its allies or Afghan authorities are not entitled to the status of prisoners of war. They are criminals to be treated according to the national law of the detaining power. They also cannot invoke article 44 (3) Additional Protocol I since the United States has not yet ratified Additional Protocol I and since this provision can hardly, due to its disputed content, be considered to be part of customary intemational law.Vi This does not mean that members of the Ai Qaeda are, under international law, without protection. In respect to them the Fourth Geneva Convention becomes re1evant l75 as well as the international human rights instruments. In spite of their inapplicability, arts 43 and 44 Additional Protocol I are of some interest in the context of the focus of this article . Article 4 Third Geneva Convention has been considered inadequate as far as the treatment of members of liberation movements and forces by non-state entities, referred to as "new category of prisoners of war"176 are concerned. This has led to the adoption of these articles which attempt to accommodate fighting practices typical in liberation wars or wars involving irregular forces . Article 44 (2) Additional Protocol I reaffirms in essence that having violated the rules of international law applicable 174 C. Greenwood, "Customary Law Status of the 1977 Additional Protocols", in: T. Delissen (ed.), Humanitarian Law of Armed Conflict, Challenges Ahead, Essaysin Honour ofFrits Kalshoven, 1991, 100 et seq. 175 The International Criminal Tribunal for the former Yugoslavia has affirmed in the Clebici Judgment of 1998 that: "There is no gap between the Third and the Fourth Geneva Convention. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ..., he or she necessarily falls within the ambit of the Fourth Convention, provided that its article 4 requirements are satisfied". 176 Bothe! Partsch/ SoH, see note 141,246.

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in armed conflicts does not deprive the combatant of the right to be a combatant and of the right to be a prisoner of war with one exception, namely that the weapons must have been carried openly during action.V? Even this test may have not been met by Al Qaeda fighters and for that reason they could not invoke article 43 and 44 Additional Protocol I even if these provisions had been applicable. In respect of the armed forces of Iraq, there is no doubt that members of the army, the navy and the air force having fallen into the power of the coalition forces qualify as prisoners of war. They may be prosecuted for having committed war crimes or other crimes but this does not deprive them of their status as prisoners of war. The situation in respect of members of the Republican Guards or of the Fedayeen Saddam is different. Since these were not integrated into the regular forces these groups come under article 4 A (2) Third Geneva Convention as independent militia. This means that they enjoy the prisoner of war status only if they have been under a command, had a fixed distinctive sign recognizable at distance, have carried their arms openly and have conducted their operations in accordance with the laws and customs of war. Another issue of controversy is the prosecution of prisoners of war for acts committed before having been made prisoner. Article 85 Third Geneva Convention accepts such a possibility, although it states that such prisoners retain the benefit of the Convention even after conviction. One has to note, though, that several states have made reservations that the benefit of the prisoner of war status does not extend to war criminals. A similar view was taken in respect of members of the United States Air Force captured by North Vietnam forces in the Vietnam War. This interpretation is in conflict not only with the letter but also the spirit of the Third Geneva Convention. The core provisions governing trials against prisoners of war are contained in Part III, Section VI, Chapter III of the Third Geneva Convention dealing with penal and disciplinary sanctions against the former. Arts 84 and 99 to 108 Third Geneva Convention guarantee certain due process rights to prisoners of war. Article 85 also extends the protection of the Third Geneva Convention to Prisoners of War prosecuted and convicted for acts committed prior to their capture.!" 177

178

For details see Bothe/ Partsch/ SoH, see note 141, 249 et seq.; Rosas, see note 170,354. F. Kalshoven/ L. Zegveld, Constraints on the Waging of War, 3rd edition, 2001,61 emphasize that this provision was introduced with the objective to prevent a repetition of the practice of the Allied Powers with respect to war

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This is of relevance in the context of this article. If these provisions are not applicable for the reason that the persons in question do not enjoy prisoner of war status"? then the international human rights standards are to be applied. According to article 14 International Covenant on Civil and Political Rights, 1966,180 States parties must ensure that all persons on its territory or under its jurisdictionl'" receive equal treatment before the national courts or tribunals. It further provides for the following minimum procedural guarantees: fair and public hearing before competent, independent and impartial tribunals established by law, the presumption of innocence, due process, and the right to appeal to a higher tribunal according to law.182 The procedure set up by the United States government to prosecute the detainees in Guantanamo Bay does not meet these international standards - neither the ones under the Third Geneva Convention nor those under the International Covenant on Civil and Political Rights. In a Military Order, issued 13 November 2001183 the United States President has proposed the establishment of Military Commissions. Pursuant to this Order, these Military Commissions shall prosecute terrorists for violations of the laws of war and other applicable laws. The Order gives certain guidelines as to the procedure to be followed by the Military Commissions but further details are left to an Order having

179

180

181 182

183

criminals of the Axis Powers who have been denied some of these rights. See also J. Pictet (ed.), JCRC Commentary, Vol. III, Geneva Convention Relative to the Treatment of Prisoners of War, 1960,413-416 giving a detailed analysis on the practice prevailing after World War II and the legislative history of that provision. International humanitarian law is lex specialis to international human rights law. Since members from the Taliban forces are covered by international humanitarian law whereas Al Qaeda is not (see above) both sets of rules are referred to here . Apart from that as the United States government denies to detainees in Guantanamo Bay the formal prisoner of war status it will have to meet international human rights standards. A/RES12200 A (XXI) of 16 December 1966. See article 2 (1) of the Covenant. For a detailed analysis see M. Nowak, «Art. 14", in: id., UiN. Covenant on Civil and Political Rights, CCPR Commentary, 1993, para. 33 et seq. A comparative national and international law analysis on the right to a fair trial is provided for in D. Weissbrodtl R. Wolfrum (eds.), The Right to a Fair Trial, 1997. Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed.Reg. 57, 8333 of 16 November 2001.

Wolfrum, Recourse

to

Force and ius in bello Reconsidered?

59

been issued by the Secretary of Defence.l'" This Order has filled some of the procedural lacuna of the Military Order criticised up to then. It has brought the trial procedure into closer alignment with rules governing civilian courts or military courts.l'" Military Commissions have been established in the past in the United States with the authority to try persons not otherwise subject to military law for violations of the laws of war or for offences committed in territories under military occupation. They were used in World War II for both purposes. This practice has been upheld by the US Supreme Court on several occasions. The legal basis for Military Commissions derives from the constitutional provisions conferring the power to wage war on Congress; their establishment has been left historically to the executive.P" The Military Order only applies to non-citizens. It entitles the military commission to assert jurisdiction over an alleged offender only after the President has made a written finding that the individual is or was a member of the Al Qaeda organization, that the individual was involved in acts of terrorism against the United States or the preparation thereof or has harboured knowingly a person having been involved and that it is in the interest of the United States that the alleged offender be subject to trial by a military commission. Once the trial has been completed, the Secretary of Defence or the Secretary's designate will review the record of the proceedings and render a final decision on the case. This is without prejudice to the President's authority concerning the granting of pardons or reprieves. Neither a right of appeal nor any form of habeas corpus relief is available. Setting up military courts to try civilians is not necessarily in violation of article 14 of the International Covenant on Civil and Political Rights. The Human Rights Committee has stated in this respect, after having analyzed state practice, that, although the Covenant does not prohibit military tribunals "... the trying of civilians by such courts should be very exceptional and take place under conditions which

184

18S

186

Department of Defence, Military Commission Order No.1 of 21 March 2002 available at , D.A. Mundis, "The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Attacks", AJII 96 (2002), 320 et seq. (324). US Congress has provided for the establishment of military commissions in article 21 of the Uniform Code of Military Justice (10 USc. sec. 821).

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genuinely afford the full guarantees stipulated in article 14."187 At least in two respects the military commissions do not meet international human rights standards: the right to appeal and independence as well as impartiality. The Military Order of the President as well as the Military Commission Order of the Secretary of Defence clearly establish that the decision of a military commission is final after having been reviewed by a Review Panel. 188 This is no equivalent to an appeal given the limited review competence of the Review Panel. Furthermore it is doubtful for several reasons whether the military commissions meet the test of independence and impartiality. Their members will be all commissioned members of the armed forces of the United States and thus embedded in a hierarchical order. It is significant that the Appointing Authority retains the competence to " ... remove members or alternates for good cause".189 Apart from that, significant decisions concerning the accused will be taken by the President'P? which will, given the composition of the military commissions, influence their finding in substance. Finally, it is very doubtful that the conditions imposed upon detained individuals meet international human rights standards as far as the pre-trial period is concerned or the length of detainment, which seems to be not justifiable. According to article 102 Third Geneva Convention a sentence against a prisoner of war is valid only if pronounced by the same courts in accordance with the same procedure as for members of the detaining power's armed forces and if the due process provisions of the Convention have been observed. The military commissions do meet some, but not all, of these conditions. In particular, the rules applicable for United States soldiers provide for stricter rules on decision-making in courtmartials and on taking evidence; apart from that they open the possibility of appeal.l"! As far as Iraq is concern ed, the occupying powers may initiate the criminal prosecution of prisoners taken. International humanitarian law provides for several procedural options in this respect. Military commissions may be set up for the prosecution of war crimes and other crimes under international law, provided they meet the human rights standards as set out in the Third Geneva Convention or the

187 General Comment 13 (21), para. 4, Doc. CCPR/4/Add.I. Reprinted in Yearbook of the Human Rights Committee 1983-1984, Vol. II, 621-623. 188 Sec. 6 H (3) and (4) of the Military Commission Order No .1, seenote 184. 189 Sec. 6 H (3), see note 184. 190 Sec. 6 H (2) and (6), see note 184. 191 For details see Mundis, see note 185, 327.

Wolfrum, Recourse to Forceand ius in bello Reconsidered?

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ICCPR, respectively. Another possibility would be the establishment of an international criminal tribunal such as the ICTY through the Security Council. Finally war crimes, other international crimes and crimes under the Iraqi criminal law could be prosecuted by national courts of the Iraq. The Hague Regulations as well as the Geneva Conventions contain several restrictions concerning the prosecution of prisoners of war or other persons under the jurisdiction of the coalition forces which may be relevant in the context of the occupation of Iraq and have not been referred to above. According to article 49 Fourth Geneva Convention, persons who are not prisoners of war but are prosecuted for having committed criminal offences against the occupying power cannot be transferred from occupied territory for trial. This rules out the possibility of transferring persons from Iraq to Guantanamo Bay, even if they are under the suspicion to have participated in the attack of September 11, 2001. In such trials the individual responsibility of each accused has to be established. Article 50 of the Hague Regulations which has to be considered as being part of customary international law affirms that no collective penalty shall be inflicted upon the population on account of acts of individuals for which they cannot be regarded as jointly and severally responsible. The same rule is applicable to prisoners of war. In criticizing the approach taken by the United States government one has to appreciate, though, that the rules on international humanitarian law concerning the prosecution of violations of the rules of war only cover a limited group of persons. For other persons who may have committed war crimes or crimes punishable under international or national criminal law only the rudimentary rules of common article 3 of the Four Geneva Conventions or the international human rights standards are applicable. This again is an area where, given the changing nature of conflicts and the participation therein, further development is required . The setting up of special international criminal tribunals or recourse to the ICC may not be the only appropriate option. The principles of transparency and predictability, in particular, relevant for criminal proceedings require taking a more general approach which may be used as a general standard in prosecuting such persons who do not enjoy prisoner of war status. This does not necessarily require the adoption of a new international agreement. As can be seen from the practice used by the ILC concerning international responsibility, nonbinding instruments may also have a normative effect. The Fourth Geneva Convention provides for the internment of protected persons under certain conditions. Internment may serve the

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protection of the security of the detaining power 192 or, in the case of occupation, it must serve the protection of the security of the occupying power.l'" In both cases the security threshold is quite high (security makes detention absolutely necessary for imperative reasons of security). Such decisions must be taken according to a regular procedure including the right to have recourse to a competent court. Internment, as such, is governed by arts 79 to 135 Fourth Geneva Convention, these rules largely being modelled on those concerning the treatment of prisoners of war. It is doubtful whether these criteria and procedures are always met in practice. The strict standards they set reflect the view that internees are not criminals or alleged criminals subject to investigation and criminal proceedings. In fact internment seems to have been used as a form of pre-trial detention or even as a kind of penal sanction which is not in keeping with the objective which may be legitimately pursued with internment.

4. Occupation a. Introduction Since World War II there have been only a few occasions where one belligerent assumed, for a longer period, the full administrative functions over the territory of the adversary, the West Bank and the Gaza Strip being a particular case.'?' International law governing this situation and thus limiting the respective activities of the occupying power is contained in the arts 42-56 of the Hague Regulations.l'" the Fourth Geneva Convention, in particular, arts 27-34 and 47-78196 as well as cus-

192 193 194

195

196

Article 42 Fourth Geneva Convention. Article 78 Fourth Geneva Convention. Y. Dinstein, "The International Law Status of the West-Bank and the Gaza Strip",Isr. Y B. Hum. Rts 28 (1998), 37 et seq. correctly affirms that the respective international rules on humanitarian law are applicable for the administration of these areas by Israel. The Nuremberg Trial had stated that the Hague Regulations constituted customary international law, Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, Vol. XXII, 497. Article 154 Fourth Geneva Convention states that it complements the Hague Regulations. This is underlined by M. Greenspan, The Modern Law

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tomary international law.l'" As far as the applicability of the international law on military occupation is concerned no distinction is being made between law and unlawful combatants. These rules apply whenever a belligerent occupies the territory of the adversary or a part thereof.l'" These rules do not provide for a fully adequate regime, this becomes apparent the longer occupation lasts. This, in particular is due to the fact that the rules on belligerent occupation try to strike a balance between the security interest of the occupying power and the interests of the population by preserving the status quo ante to the extent the security interests of the occupying power permit. This does not give adequate leeway to introduce political changes although they may be necessary for the transformation from a totalitarian government into a democracy. The effect of military occupation is the placement of the de facto ruling authority in the hands of the occupant. The rights of the occupant are temporary not permanent whereas the de jure sovereignty rests with the respective state. According to article 42 Hague Regulations a territory is considered militarily occupied when it or parts thereof are actually placed under the de facto authority of the army of the occupant. This is a factual issue,199 no declaration to that extent is needed. Iraq as a whole has to be considered as militarily occupied since the major military operations have come to an end. In spite of the ongoing terrorist attacks or calls of Saddam Hussein to resist. The formerly disputed issue whether the rules of military occupation only apply during the course of actual warfare has been overcome by article 6 (1) Fourth Geneva Convention

of Land Warfare, 1959,213 whereas H.P. Gasser, "Protection of the Civilian Population", in: Fleck, see note 141, 209 et seq. (241) states that the dominant law is the Fourth Geneva Convention. For a comparison of the provisions of the Fourth Geneva Convention see, Pictet, see note 178,614. 197 As to the application of general international human rights standards see J.A. Frowein, "The Relationship between Human Rights Regimes and Regimes of Belligerent Occupation", Isr. Y. B. Hum. Rts 28 (1998), 1 et seq. (9 et seq.). He points out that international humanitarian law is to be considered as lex specialis. 198 C. Greenwwod, "The Administration of Occupied Territories in International Law", in: E. Playfair (ed.), International Law and the Administration of Occupied Territories, 1992,241 et seq. (243). 199 See article 42 Hague Regulations; this provision is supplemented by article 27 of the Fourth Geneva Convention.

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according to which the Convention continues to apply to the occupied territory despite the general close of military operation in a conflict. According to article 6 (3) Fourth Geneva Convention the application of this Convention ceases one year after the general close of military operations. However, as long as the Occupying Power exercises the functions of government arts 1-12,27,29 to 34, 47, 49, 51 to 53, 59, 61 to 77 and 143 Fourth Geneva Convention remain applicable. This rule has been modified by article 3 (b) Additional Protocol I according to which the application of the Conventions and of the Protocol shall cease, in the case of occupation, on the termination of occupation. In respect of Iraq the application of that provision is somewhat problematic. Since this provision cannot be considered to be part of customary international law for those of the occupying states, such as the United States, which is not a party to the Additional Protocol I, the Fourth Geneva Convention will be only temporarily applicable in its entirety for others until military occupation comes to an end. That means in essence that the applicable rules will differ. This is not a merely academic issue. For example, article 78 Fourth Geneva Convention dealing with security measures, in particular internment, does not belong to the core issues applicable for the whole period of occupation. In consequence thereof internment will be covered under the stricter rules of the general international human rights regime. 2OO This possibility was discussed in abstracto at the Diplomatic Conference of Geneva of 1949 which adopted the Four Geneva Conventions. It was argued that one year after the close of hostilities, the authorities of the occupied state would have regained most of their responsibilities and, accordingly, there was no justification for further applying rules accommodating the security interests of the occupying power. 201 This may become of relevance for the situation prevailing in Iraq. b. General Obligation of the Military Occupant It is the main obligation of the military occupant to restore and maintain, as far as possible, public order or safety.202 The U.S. Army Field

Dinstein, see note 194, 44-45. Pictet, see note 178,43. 202 Article 43 Hague Regulations; this provision is supplemented by article 27 Fourth Geneva Convention which, in its last sentence, states that the occupying power may take such measures of control and security as may be necessary as a result of war. No further specification is provided for, leav200

201

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Manual 27-10 states this obligation of the occupying power accurately: "... The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all measures in his power to restore and ensure, as far as possible, public order and safety ...". The actual attitude obviously taken by United States troops in the first days in Baghdad did not seem to reflect that obligation adequately. This obligation also entails police functions with the view to protect, for example, the civilian population, including foreigners such as UN personnel,203 museums, hospitals, the public infrastructure, public buildings, embassies and consulates against looting or destruction. It goes without saying that this does not make the occupant responsible for the effects of terrorist attacks as long as adequate precautionary measures have been taken. Article 43 of the Hague Regulations, however, emphasizes another relevant aspect which has received detailed supplementation in the Fourth Geneva Convention. In restoring and maintaining peace and security the laws in force of the occupied state shall be respected at all times unless the occupant is absolutely prevented from doing so. This provision - read literally - seems to be difficult to reconcile with present day realities. M. Greenspan argues that where wars are fought to achieve a change of a particular political regime as was the case in World War II the military occupant cannot be under an obligation to uphold the regime fought against. This is, in his view, particularly true in the case where the change of the political regime is the only effective means to secure peace. On that basis a wider interpretation of article 43 Hague Regulations is argued. 204 Such an interpretation would deprive article 43 Hague Regulations of all its meaning making it dependent upon the objectives pursued by the occupant when entering the war. As much it was legitimate to overthrow e.g. the totalitarian government of Germany and to reintroduce the rule of law and dernoc-

203

204

ing it to the discretion of the occupying power which measures to chose. However, article 27 Fourth Geneva Convention contains certain restrictions implementing the general obligation of humane treatment. Further restrictions are contained in arts 41 to 43, 78 and 79 to 135. Apart from that, one may argue that law enforcement measures - different from fighting pockets of resistance where the laws of armed conflict apply - should be guided by the 1979 UN Code of Conduct for Law Enforcement Officials and the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. See in this respect also S/RES/1502 (2003) of 26 August 2003. See above.

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racy in Germany there are definite limits of international humanitarian law which hinder the occupant to freely change the structure and political system of an occupied state. Those limits are specified in the Fourth Geneva Convention. Article 64 Fourth Geneva Convention stipulates that the penal laws of the occupied territory shall remain in force. It gives expression to the more general principle of the law of occupation namely the continuity of the legal system which applies to the whole of law.20s Concerning penal law article 64 Fourth Geneva Convention provides for two exceptions. Penal laws may be repealed or suspended by the occupying power in cases were they constitute a threat to its own security 206 or an obstacle to the application of this Convention.P? The first possibility is self-explanatory; the second one enables the occupying power to abrogate any law not in line with the human rights standards enshrined in the Fourth Geneva Convention or to which this Convention alludes, namely rules which adversely affect racial or religious minorities (article 27 Fourth Geneva Convention) or are incompatible with the requirement of humane treatment. Changes in the political structure of the occupied state can only be made by the population of that state or representative institutions. A dominant influence exercised by the occupying power in this respect would go beyond its authorization under the respective rules on belligerent occupation and would be in violation of the principle of selfdetermination. Concerning Iraq the situation would be different if the Security Council had identified the political regime under Saddam Hussein as a threat to peace - directly or indirectly - and had ordered respective changes under Chapter VII of the UN Charter. Acting without such a mandate curtails the possibilities of the United States and its allies. It is the political price for having acted unilaterally.

205 206

207

ICRC Commentary, Vol. IV, see note 178,335. The occupying power is authorized under this rule to promulgate provisions, including penal ones, for its own protection. This covers all civilian and military organizations and assets which an occupying power normally maintains in occupied territories. The occupying power may use all means of communication, accordingly it may take appropriate regulatory and executive measures for their protection. Regulations issued by the occupying power falling under this category include, amongst others, regulations concerning child welfare, labour, food, hygiene and public health; see Pictet, see note 178, 337.

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c. The Re-Establishment of an Effective Infrastructure The occupying power is responsible for ensuring hygiene and public health 208 as well as food and medical supply.209In that respect the occupying power has to cooperate with the respective local and national authorities. More generally, under article 59 Fourth Geneva Convention the occupying power is und er an obligation, if the whole or part of th e population of an occupied territory is inadequately supplied, to agree to relief schemes on behalf of the said population, and shall facilitate them by all means at its disposal. Such schemes may be undertaken by states or impart ial organizations. Every effort shall be made to protect the respective consignments. However, relief consignments do not relieve the occupying power of its responsibility.U? The occupant cannot refuse the assistance of particular non-governmental organizations unless such assistance poses a threat to the security of the former. d. The Protection of Cultural Property Cultural property is exposed to destruction or damage during occupation. International humanitarian law has developed a scheme for th e protection in this situation. The safeguarding and preserving of cultural property remains in principle within the competence of the authorities of an occupied country. The occupying power should support them as far as possible-!' and should, in particular, not prevent them from discharging their duties. Support is required onl y "as far as poss ible" this limitation seems to be relevant to active support (e.g. by the supply of mat erial). In two special cases the occupying power itself has to take necessary measures, namel y if cultural property has been damaged by military operations. When such damage occurs during a per iod of occupation, the responsibility of the occupying power is apparently greater. Its collaboration in this case, however, is limited to the most necessary meas ures. These are the ones which cover a situation which

208 209 210 21 1

Article 56 Fourth GenevaConvention. Article 55 Fourth Geneva Convention. Article 60 Fourth Geneva Convention. Article 5 para. 1, 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.

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threatens the very existence of cultural property or its deterioration.UThe same applies for the situation where the national authorities are unable to act.213

It is the obligation of a party to a conflict to prevent the export of cultural property from a territory which it occupies during an international armed conflict. If such property is transferred from the occupied territory into the territory of another state, the latter is under an obligation to protect such property. Property illegally exported from a territory under occupation has to be returned at the close of hostilities to the competent authorities of the country previously occupied.i'" The former occupying power shall pay an indemnity to those who hold such property in good faith .215 Cultural property coming from the territory of a High Contracting Party and deposited by it in the territory of another High Contracting Party shall be returned by the latter at the close of hostilities.I" This provision is mainly addressed to the powers with custody of objects in their jurisdiction or in territories occupied by them. In such territories they may not confiscate cultural property. Violations of these duties must be prosecuted and are liable to penal or disciplinary sancrions.s'? e. The Use of Natural and Other Resources According to the international rules on military obligation the occupy ing powers are restricted in using the national resources of Iraq. Article 55 Hague Regulations formulates the leading principle according to which the occupying state is only the administrator and usufructuary of public buildings, real property, forests and agricultural works belonging to the hostile state. Although this provision does not mention oil it is clearly covered under this provision.

212

213 214 215 216 217

J. Toman, Protection of Cultural Property in the Event of Armed Conflict, 1996, 85; R. Wolfrum, "Protection of Cultural Property in Armed Conflict ", in: Y. D instein (ed.), Isr. Y. B. Hum. Rts 32 (2003), 305 et seq. Article 5 para . 2, 1954 Hague Convention, see note 211. Section I, para. 3, Protocol for the Protection of Cultural Property in the Event of Armed Conflict. Section I, para. 4, Protocol, see above. Section II, para. 5, Protocol, see note 214. Article 28 of the 1954 Hague Convention, see note 211.

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In respect of the export of oil an arrangement has been reached within the framework of the United Nations-" which meets the basic principle under article 55 Hague Regulations. According to the arrangements decided upon in the Security Council all export sales of petroleum, petroleum products or natural gas will be internationally monitored. All proceeds from such sales will be deposited into a Development Fund for Iraq until a new internationally recognized government of Iraq has been constituted. Five per cent of the proceeds are to be set aside for the Compensation Fund. Apart from that these proceeds have been declared to be immune from confiscation.

IV. The Role of the United Nations in the Post-conflict Period of Iraq In the past the United Nations have been involved in the administration of an area or the territory of a state after the end of an armed conflict with the view to assist in a transition of the respective entity to a stabilized situation which is less likely to develop into an armed conflict again.219 Although not anticipated when the UN Charter was drafted such a function of the United Nations fall squarely within its overall responsibility to restore and preserve international peace and security.F? Cases where the United Nations have assumed such responsibility are, amongst others.P! Cambodia.F' Bosnia and Herzegovina.V' Kosov0 224

218 219

220

221

S/RES/1483 (2003) of 22 May 2003, paras 20 and 21. For a survey see J. Chopra, "UN Civil Governance-in-Trust", in: T.G. Weiss (ed.), The United Nations and Civil Wars, 1995,69 et seq.; S.R. Ratner, The UN Peacekeeping, 1996; more recently, J.A. Frowein, "Die Notstandsverwaltung von Gebieten durch die Vereinten Nationen", Festschrift fur w: Rudolfzum 70. Geburtstag, 2001, 43 et seq. C. Stahn, "International Territorial Administration in the former Yugoslavia: Origins, Developments and Challenges Ahead", ZaoRV 61 (2001), 107 et seq. (131). The earliest example to that extent is the taking over of the administration of West-Irian in 1962 which took place on a contractual basis rather than, later examples, on the basis of a resolution of the Security Council under Chapter VII, sometimes with the consent of the respective state sometimes without. Such consent is, from a legal point of view, unnecessary since the Security Council is exercising powers vested in it by the UN Charter, Frowein, see note 219, (44).

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and East Timor. 225 The authority vested in the institutions established by the United N ations varied considerably but, as a common denominator, all such institutions took over the administrative responsibilities for the respective area. In the case of \Vest-Irian the United Nations Temporary Executive Authority was vested with the power to appoint government officials, to legislate for the territory and to guarantee law and order. The Authority transferred administrative and police responsibilities from the Dutch to the Indonesian authorities, established a court system and a new administrational system. 226 The 1991 Peace Agreement signed by the four Cambodian factions entrusted the United Nations with the key aspects of the administration of Cambodia by delegating to the United Nations Transitional Authority in Cambodia (UNTAC)227all powers necessary to ensure the implementation of the peace agreement. It exercised administrative as well as legislative functions; the areas of foreign affairs, national defence, finance, public security and information were placed under the direct control of the Authority.228 The responsibilities of the United Nations Administration in Kosovo are even more embracing. This Authority is In Cambodia the UN operation was governed by the Paris Agreement on a Comprehensive Political Settlement of the Cambodia Conflict of 23 Octo ber 1991. According to article 6 of that Agreement the Supreme National Council delegated to the United Nations "... all powers necessary to the implementation of this Agreement, as described in Annex I ...", See on this agreement S.R. Ratner, "The Cambod ia Settlement Agreements", AjIL 87 (1993), 1 et seq. 223 S/RES/I031 (1995) of 15 December 1995. 224 S/RES/1244 (1999) of 10 June 1999. The mandate is less explicit as in the case of East Timor but it is equally clear that the United Nations are taking over the civilian administration so as to provide for sustainable peace in this area. 225 S/RES/1272 (1999) of 25 October 1999. Its relevant part reads: "Decides to establish, in accordance with the report of the Secretary-General, a United Nations Transitional Administration in East Timor (UNTAET), which will be endowed with overall responsibility for the administration of East Timor and will be empowered to exercise all legislative and executive authority, including the administration of justice;...". 226 For details see Ratner, see note 219, 11-12, a similar system applied for Eastern Slavonia to provide for a peaceful transition of that territory from Serbia to Croat ia S/RES/I037 (1996) of 15 January 1996. 227 A. Rapp/ C. Philipp, "Conflicts Cambodia/Kampuchea ", in: R. Wolfrum (ed.), United Nations: Law, Policies and Practice, 1995,200 et seq. (206). 228 For further details see Rappl Philipp, see above, 206-207. 222

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acting fully as an interim government of KosovO.229 Equally farreaching legislative activities were entrusted to the United Nations Trans itional Administration in East Timor.P? Originally the main function of the High Representative in Bosnia and Herzegovina was to supervise the implementation of the Dayton Peace Agreement but meanwhile he assumed functions of an co-administrator.P! The cases referred to here fall in either of two categories: delegation of parts of governmental powers to an institution established by the United Nations on the basis that this institution acts as the final authority in particular areas (Cambodia) or temporary but complete take-over of governmental functions until nat ional reconstruction has advanced to the point where the respective state can resume its functions (West-Irian, Kosovo, Eastern Slavonia, Somalia and East Timor),232 The situation prevailing in Iraq does not fit into any of the mentioned categories; the role of the United Nations is, in spite of the rhetoric to the contrary, limited. The Security Council has adopted two resolutions.P> so far, dealing with the post-conflict situation in Iraq, both under Chapter VII of the Charter. Although they, in fact, restrict the role of the United Nations to humanitarian assistance they reconfirm several principles relevant for the administration of Iraq by the occupymg powers. Both re-confirm the sovereignty and territorial integrity of Iraq thus indicating that the Security Council would not accept a fragmentation of Iraq or the occupation of parts thereof by other states. This would not rule out, though, that a future constitution for Iraq would provide for a decentralized governmental system vesting territorial units with some autonomy so as to accommodate ethnic or religious diversity. The resolutions of the Security Council give some explicit guidance as to the future governmental system of Iraq. It shall be based on the free decision of the people of Iraq; it shall be representative, based upon

229 A detailed analysis of the governmental activities of the Authority is provided by Stahn, see note 220, 134et seq. 230 S/RES/1272 (1999) of 25 October 1999. See also in this respect, C. Stahn, "The United Nations Transitional Administration in Kosovo and East Timor: A First Analysis", Max Planck UNYB 5 (2001),105 et seq. 231 SeeStahn, see note 220, 165 et seq. 232 G.B. Helman/ S.R. Ratner, "Saving Failed States", Foreign Policy 89 (19921993), 12 et seq. (13) add another form, namely the assistance to a government such as supervising elections or a referendum. 233 S/RES/1483 (2003) of 22 May 2003; S/RES/1500 (2003) of 14 August 2003.

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the rule of law and affording equal rights and justice to all Iraqi citizens without regard to ethnicity, religion, or gender. 234 In respect to the latter topic reference is made to S/RES/132S (2000) of 31 October 2000 calling, amongst others, upon the Member States of the United Nations to increase the number of women in national institutions at all levels. It is astonishing tha t both resolutions refrain from explicitly referring to democracy as the governing principle for the future constitution - the term "representative government" may be taken only to refer to a government which is the representative of the composition of the Iraqi population as far as ethnicity, religion and gender is concerned; equally there is no explicit reference to the protection of human rights according to international standards. This may be due to the expressed desire of representatives of the Iraqi society that "democracy should not be imposed from the outside".235 The Governing Council which was established on 13 July 2003 is not considered as a government but only as an important step towards the establishment of an internationally recognized representative government.P" This means that the Security Council considers the occupying powers as those who are fully responsible for the present administration of Iraq and its future development. This view was clearly expressed in some of the statements made at the adoption of S/RES/1S00 (2003) of 14 August 2003.237 This situation will only change with the constitution of a new Iraqi government. Whereas actions of the occupying powers are limited under the Hague Regulations and the Fourth Geneva Convention this is not the case for the future government of Iraq to that extent it acts independently from the occupying powers. Although there are precedents that the United Nations have assumed administrative functions with respect to state territories or parts thereof to provide for a peaceful governmental transition in the postconflict period there is no legal obligation under the UN Charter to entrust the United Nations with respective functions. The principle governing the transition of Iraq from the former governmental regime

234 S/RES/1483 (2003) of 22 May 2003, fifth pre-ambular paragraph. 235 See Report of the Secretary-General pursuant to para. 24 of S/RES/1483 (2003) of 22 May 2003, Doc. S/2003/715 of 17July 2003, para. 19. 236 According to the Report of the Secretary-General, see above, para. 24, the 25 member Governing Council has a slight Shi'ah majority; it includes three women, and an equal representation of Kurds and Sunnis. There are also representatives of Christians and Turkmen. 237 See, in particular, the statement of the representative of Mexico.

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via the power exercised by the occupying states to a government under a new regime is the principle of self-determination. This obliges the occupying powers to induce the population into the political decisionmaking process. This has been highlighted in S/RES/1483 (2003) of 22 May 2003 which stresses the right of the Iraqi people to freely determine their own political future. 238 In that respect this resolution can be read as the confirmation of an evolving international principle, namely the right to democratic governance. 239 If the United Nations were to take over administrative functions for a transitional period in Iraq it would be worth considering whether, in such a situation, the same restrictions would apply as would apply to the exercise of authority by an occupying power. The different objectives pursued by the United Nations, as compared to an occupying state, would argue against applying the same restrictions.P? The rules on military occupation attempt to strike a balance between the security interest of the occupying power and the humanitarian need of the population. Also these rules try to prevent the occupying power which is modelling the governmental structure of that territory according to its own needs disregarding the cultural, religious or ethnic background of the society of the occupied territory. It has already been pointed out that international law rules on military occupation are not designed to provide the occupying power with the appropriate authority, including clearly formulated and adequate limits, and respective mechanisms to alter a governmental structure of an occupied territory although the governmental structure in question may, as in the case of Iraq, not conform to the international standards concerning a responsible government. To elaborate such rules borders on the impossible. A military occupant cannot, by its very nature, be considered a neutral entity acting only in the interest of the occupied territory and its society. Certainly the society of that occupied state will not consider the occupying state in such light. The position of the United Nations administration in post-conflict periods in the past was different. It derived its authority from a Security Council resolution and thus from its overarching responsibility to restore and preserve international peace and security or a respective inter-

238

239

240

This has been highlighted in the Report of the Secretary-General, see note 235, in particular paras 19 to 21. See T.M. Franck, "The Emerging Right to Democratic Governance", AjIL 46 (1992), 86 et seq. Stahn, see note 220, 141.

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national agreement. Therefore the United Nations is in the position to act as a neutral entity. The limits imposed upon it in the respective peace agreements or the limits formulated in the Security Council resolution mandating the exercise of governmental or administrative authority together with the limits inherent in or to be derived from the UN Charter should be sufficient to ensure an exercise of authority based upon the rule of law and the respect for international human rights srandards .s" However, what has been said concerning international law on military occupation is true in some respect for the administration of territories by United Nations institutions, too. The United Nations is lacking the legal framework to fulfill administrative or governmental functions. Each situation is dealt with on its own. Given the uniqueness of each situation this may be mandatory but this does not exclude the application of the international human rights instruments, including codes of conduct, such as the Code of Conduct for Law Enforcement Officials.

v

Conclusions

At the outset the question was raised whether actions taken by the United States and its allies in fighting the Taliban and Iraq and the reactions thereto from among the international community reveal a pattern or a tendency indicating already accomplished changes or future changes in the international law concerning the use of force and the law in armed conflict. In spite of opinions voiced from among the academic world the binding force of international law has not been challenged as a matter of principle; and international treaties and customary international law continue to be considered as valid restrict ions on the conduct of states in international relations. There is a disagreement, though, to what extent international law should automatically follow what has been referred to as the realities of international relations. In this respect the inherent function of the law should not be lost out of sight; law is one of the stabilizing factors in society. As such it must not blindly follow or seek to validate political or other changes in the community in which it 241

Critical, however, as far as East Timor and Kosovo are concerned, Frowein, see note 219, 50 et seq.; Stahn, see note 220, 152 et seq. claims that in Kosovo international human rights standards have not always been fully respected by the UN administration.

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operates. This does not mean law can remain oblivious to such changes though if, and that is decisive, these changes are endorsed or sought for by states reflecting the plurality within the international community. However, international law disposes of instruments and mechanisms for closing the gap between law and the permanently changing circumstances. As far as the prohibition against the unilateral recourse to force is concerned, the policy pursued by the United States and its allies clearly indicates that such recourse to military force requires justification. What may serve as justification, which objectives may be pursued and by whom, is the issue rather than the need for justification as such. This became quite apparent in the negative reaction of the United States government to the allegation of the Indian government that it, too, could invoke pre-emptive self-defence vis-a-vis the nuclear armament policy of Pakistan. Of paramount relevance in respect of the necessity to justify an armed attack are the letters of the United States and the United Kingdom addressed to the Security Council setting our their reasons in favour of the legality of the attack on Iraq. They are of relevance not only for what they state - that is evident - but also what they do not state. Both letters emphasize that the armed attack on Iraq was authorized by the Security Council. This means - although one may disagree with the reasoning - both states consider the authorization of the Security Council as necessary for such an attack. Thus, the counterposition advanced in literature and in general political statements is not reflected in the official political position taken by both states. It is this practice which contributes to the development of customary internationallaw rather than academic writing. As far as self-defence is concerned there is a general tendency, in particular, pursued by the United States to invoke self-defence on the basis of a liberal interpretationof that notion. For example, the invasion of Panama in December 1989 was qualified as self-defence as was the aerial attack of 1993 against the Iraqi intelligence headquarters in Baghdad and the missile attacks against Ai Qaeda training camps in 1998. All these acts fall short of the conditions required for self-defence; and they were rejected, in one form or the other, from among the international community. Accordingly it can hardly been argued that a broader interpretation of the notion of self-defence has been accepted in principle . What may have found international acceptance is that self-defence may be triggered by an attack of non-state actors. Such an evolution reflects the growing relevance of non-state actors in international relations.

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As far as pre-emptive self-defence is concerned it is worth noting that only the United States has advanced this form of self-defence as a justification for the war against Iraq in 2003. Not even its allies seem to have followed the United States in this respect. Accordingly, it is not possible to consider the military attack against Iraq as a clear cut case of such form of self-defence . There is no indication that pre-emptive self defence will be accepted in the international community in the near future. One has to acknowledge, though, that valid security interests of states against the spreading of international terrorism and the proliferation of weapons of mass destruction must be accommodated. The claim for pre-emptive self-defence, although it is an unacceptable approach, at least signals a security lacuna which needs to be accommodated. The evaluation of the prevailing tendencies concerning the acceptance of a military humanitarian intervention provides little indication that this means is considered as a valid exception to the prohibition of the use of force. This is in spite of the fact that grave and persistent violations of human rights are no larger considered as an internal affair of a state immune from intervention from the outside. It is rather a matter where the international community is called upon to react. In that respect a significant shift in the value system of the international community can be identified. This does not amount to a justification of unilateral military intervention, though. The recent armed conflicts have demonstrated that the respective rules have not been fully adhered to but also that some of the rules can no longer be considered adequate. The law in armed conflict was originally designed for inter-state conflicts; later adjustments to cover internal conflicts or conflicts with non-state entities, such as the Additional Protocol II, are rudimentary and have not found universal recognition. 242 To fill this lacuna the ICTY applies, on a case by case basis, humanitarian rules designed for an international conflict to noninternational conflicts. Such an approach does not meet the standards for transparency and predictability as required, in particular, for criminal proceedings. Given the fact that most armed conflicts are of a noninternational nature it seems mandatory to consider codifying humanitarian law in non-international conflicts in a way which balances hu-

242

Only article 3 common to the Four Geneva Conventions providing some basic humanitarian rules for the internal conflict can be regarded as being universally accepted.

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manitarian needs and the fact that the belligerent non-state entities either cannot or do not intend to apply the traditional rules of warfare. The legal rules in armed conflict which, on the basis of experience gained in the armed conflicts of the recent years particularly deserve reconsideration, are the ones on targeting, weaponry, prisoners of war and the rules on military occupation. The rules on targeting and on weaponry as they stand at the moment were formulated on the basis of a different weapons technique. Modern weapons technology allows for a more accurate targeting which is to be taken into account when judging whether collateral damage was avoidable and whether appropriate precautionary measures were taken. Articles 51 and 57 Additional Protocol I should be read to fully accommodate the possibilities of the new weapons technology concerning targeting. The respective national military manuals or operationallaw handbooks should be rewritten to reflect this modern understanding of the limits on targeting. Another issue concerning targeting has emerged from a shift in the understanding of what is a military objective which alone may become a military target. In the two wars against Iraq as well as in the bombardment in Yugoslavia a tendency has developed in practice to define objects, which make an effective contribution to military action, as objects which generally contribute to the war-sustaining efforts of the adversary. This goes beyond the established limits on targeting and disregards that the provision of article 52 Additional Protocol I, reiterated in later instruments, was formulated with the view to ensure that practices used in World War II should not be reiterated. Modifications in military manuals which provide for more latitude in targeting should be revised. One of the salient points in recent practice is the treatment of persons detained in an armed conflict and where there are doubts whether these are members of regular armed forces and whether the persons in question have themselves acted according to the rules of armed conflict. These persons are either to be treated as prisoners of war or in a procedure applying international human rights standards. The treatment of the detainees in Guantanamo Bay is open to criticism, in particular, their denial of the formal status as prisoners of war. In spite of that one has to concede that existing humanitarian law should provide for an internationally accepted standard for the prosecution and punishment of international terrorists, balancing the security interests of the detaining state against persons applying criminal methods and disregarding all principles upon which international humani-

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tarian law is founded, with the necessity to provide for the minimum standards of human rights that every human person is entitled to. The rules on occupation may be the ones which, in particular, require reconsideration. These rules, many of which are heavily influenced by the thinking of the beginning of the 20th century, do not adequately cover situations where the occupant is initiating a restructuring of the political organization of the occupied state. The full respect of the principle of self-determination which means the earliest possible involvement of fora representative for the population as expressed in S/RES/1483 (2003) of 22 May 2003 is pertinent. Given the fact that an occupying state will never be considered as neutral it seems political advisable, although not legally mandatory, to provide for a substantial involvement of the United Nations. Events, such as the assassination of the Special UN Representative of the UN Secretary-General in Iraq Sergio Vieira De Mello, however, sadly show that even the established neutrality of the United Nations does not make it immune against terrorist attacks.

The Classification of States and the Creation of Status within the International Community Petra Minnerop

1. II.

The Classification of "rogue states" by the United States Exclusion, Inclusion and the Emergence of Community 1. Society and Community: Different Conceptions of World Order 2. The International Society as a Legal Community 3. The Sovereign Equality of States as a Community Principle a. Intervention via Stigmatization? aa. A Right to Dignity? bb . Political Independence aaa. Defamation of States bbb. Exception to Immunity b. The Meaning of Sovereign Equality aa. The Equality of States as an Ideal bb. Safeguarding the Legal Capacities of States c. Discussion III. Hegemonic Law in the International Community? 1. Concepts of Hegemony a. The Historical Perspective aa. Differentiating between Leadership and Predominance bb. Legitimized Hegemony? b. The Current Debate aa. The Legitimacy of the Benign Hegemon bb. Effective Stability cc. Hegemonic International Law 2. Law Creation through Leadership and the Role of Reaction 3. The Stigmatization of States as a Concept of Leadership a. Defining the Community Interests b. Stigmatization as a Legal Argument c. The International Response to the Classification of "rogue states" IV. The Creation of Second-Rate Legal Status in International Law? 1. Pre-emptive Self-Defence against "rogue states"

A. von Bogdandy and R. Wolfrum (eds.). . Max Planck Yearbook ofUnited Nations Law, Volume 7, 2003, 79-182. © 2003 Koninklijke Brill N. V. Printed in the Netherlands.

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Max Planck UNYB 7 (2003) a. The New National Security Strategy b. The War against Iraq 2. Sanctions Regime against "state sponsors of terrorism" Conclusion

I. The Classification of "rogue states" by the United States" Throughout the second half of the twentieth century the United States of America (henceforward: the United States) developed a number of multifarious terms for states to which it ascribed a high threat potential as regards the United States and international security. President Reagan referred to these countries as "terrorist states" or "renegade regimes."! In the aftermath of the Iraq-crisis of 1990/1991 the United States Department of State (henceforward: DoS) coined the formulations "Iraqs of the future" and "other Iraqs" for states possessing a similar threat potential.? In addition to this, the United States has been warning of the increasing danger posed by "rogue states", "i.e, their striving for weapons of mass destruction (henceforward: WMD) and their support of international terrorism since the mid-nineties". The (perceived) support of international terrorism has been a principal reason for the United States Government to denote countries as "rogue states" in its statements. Besides this factor, the designation of a country as a "state sponsor of terrorism" by the DoS serves as a cornerstone for such a lexical stigmatization. The DoS has been engaged in this procedure since 1979, when it commenced publishing an annual list of countries the United States thought of as "states supporting international terrorism", At the time of writing the list included Cuba (since 1982), Iran (since 1984), Iraq (s-ince 1990), Libya (since 1979), North

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For a more detailed description of United States practice concerning the use of pejorative classifications and the reaction of other states, see P. Minnerop, Die Stigmatisierung von Staaten. Eine volkerrechtliche Bewertung unter dem Prinzip der souuerdnen Gleichheit der Staaten (Dissertation, University of G6ttingen, fonhcoming). Address by President Reagan before the American Bar Association, Washington D.C., 8 July 1985, Current Policy No. 721 (United States Department of State). Cheney, Statement before the House Armed Services Committee, Washington, D.C., 19 March 1991,7 et seq.

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Korea (since 1988), Sudan (since 1993) and Syria (since 1979).3 Since the establishment of this list only one country (South Yemen, following the reunification with the North in 1990) has been deleted from it." Hence, the content of this list has remained virtually unaltered after the addition of Sudan in 1993. 5 The DoS, however, engages in annual evaluations as to whether listed countries can be deleted or new ones should be added.f Government statements leave little room for doubt as regards the clear distinction made between "the community of democracies" and "rogue states" as a grouping of countries'! This dichotomy has been expanded by Secretary of State, Albright during her incumbency. By adding "emerging democracies" and "international good citizens" Secretary Albright devised a classification which subsumed all countries of the world into the four categories of "[ijnternational good citizens,

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Iran: 15 C.ER. 742.8 and 746.7, 66 Fed.R. 36683, 12 July 2001; Syria: 15 C.ER. § 742.9, 66 Fed.R. 36682, 12 July 2001; Sudan: 15 C.ER. 742.10,66 Fed.R. 36682, 12 July 2001; North Korea: 15 C.E R. 742.19, 66 Fed.R. 36682, 12 July 2001; Cuba: 15 C .ER. 7462, 66 Fed.R. 36682, 12 July 2001; Iraq: 15 C.ER. 746.3, 66 Fed.R. 36682, 12 July 2001; Libya: 15 C.ER. 746.4, 61 Fed.R. 64284,4 December 1996,62 Fed.R. 25469, 9 May 1997,63 Fed.R. 42229, 7 August 1998, 64 Fed .R. 49383, 13 September 1999, 67 Fed.R. 51033,6 August.2002, d. also 31 C.ER. 596.310,1 July 2001. E. Day, Economic Sanctions imposed by the United States against specific Countries: 1979 through 1992, Congressional Research Service Report to Congress, Order No. 92-631 Fed .R., 1 October 1992. According to press releases the DoS has been investigating the track records of North Korea and Sudan, in order to determine if they could be excluded from the list. But no concrete steps of this kind have been taken so far. See Washington Post, 1 May 2001. Cf. Patterns of Global Terrorism, Overview of State-Sponsored Terrorism, 2000, , accessed on 9 September 2002: "State Sponsorship has decreased over the past several decades. As it decreases, it becomes increasingly important for all countries to adopt a 'zero tolerance' for terrorist activity within their borders [...]. The United States continued actively re-searching and gathering intelligence on other states that will be considered for designation as state sponsors". Press briefing with Spokesperson Rubin, 25 April 2000 on the adoption of a Resolution by the UN Commission on Human Rights which in his words: "[ ...] also confirms that democracy is not a regional value vested in any particular social, cultural, or religious tradition, but rather a universal value rooted in the rich and diverse nature of the community of democracies" .

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emerging democracies, "rogue states" and countries where a state hardly exists, such as Somalia and Sierra Leone".8 This process of differentiation introduced a hierarchical order between groups of states at the same time. This becomes visible through Secretary Albright's explanation that: "[tjhe largest group are those that understand that it is important to have some kind of rules of the game within the international system; that understand the value of working together. That is the largest group. We may not agree with the governments in all those groups - in that group. But generally, there is an agreement about the importance of abiding by international systems. The second group was basically the countries transitioning to democracy that wanted very much to be a part of the first group but did not yet have all the institutional structures to do that. The third group of countries was the "rogue states", who not only did not want to be a part of the first group, but deliberately were doing everything they could to undermine it. The fourth group was the so-called failed states that for some reason or another were basically eating their own seed grain" .9 The existence of "rogue states" - and their repeatedly underscored threat potential - also served as a rationale for the United States Government to follow up on its announcement and cancel the ABM-Treaty with Russia on 13 December 2001. The official wording of the announcement cited "extraordinary circumstances.t"? a phrase which implied that immediately after 11 September 2001 "rogue states" became the prime target of counter-terrorism strategies.'! One more exhibit in 8 9

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G. Wright , Washington Post, 19June 2000. Secretary of State, Albright, International Economic Leadership: Keeping America on the Right Track for the 21st Century, 18 September 1997, 9. ABM Treaty Fact Sheet, Statement by the Press Secretary, Announcement of Withdrawal from the ABM Treaty on 13 December 2001, Archiv der Gegenwart 71 (2001),45360. Press briefing by Spokesperson Fleischer, 26 November 2001, , "Because there are many nations that hold weapons of mass destruction. The President was referring to those nations that are listed on the State Department's list as nations that sponsor terrorism, that would use them, which I think is something that should be self-evident to everybody in the room. What, if the American President would not speak sternly about any nation that is listed as a nation that sponsors terrorism from using weapons of mass destruction? Does anybody think that any nation that is a terrorist sponsor that would use

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support of this claim was President Bush's State of the Union Address on 29 January 2002, when "terror states" was a repeatedly used denotation, and three "rogue states" were eventually merged into an "axis of evil". President Bush then delineated the wide notion of counterterrorism, which would include state sponsors, as: "[i]f we stop now - leaving terror camps intact and terror states unchecked - our sense of security would be false and temporary" .12 This is due to the fact that such countries pose a threat, which the President summed up in the following manner: "Our second goal is to prevent regimes that sponsor terror from threatening America or our friends and allies with weapons of mass destruction. Some of these regimes have been pretty quiet since September 11tho [...] States like these constitute an axis of evil, arming to threaten the peace of the world". The different interpretations of the reference "rogue states" was to be defined explicitly and in detail on 17 September 2002, upon the publicizing of the United States Government's new National Security Strategy. The fifth section of this document lists the common features of "rogue states",'? whereas preceding and subsequent items set forth a recalibration of the legal system to counter the particular threat "rogue states" pose - in addition to justifying pre-emptive measures of defence against these countries' synergizing of WMD and support for international terrorism.

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weapons of mass destruction would not be held accountable? Of course th ey will be. That's an existing American policy, always has been, and under President Bush it always will be" . The President's State of the Union Address, 29 January 2002, . According to it "rogue states" display the following features. They: «: brutalize their own people and squander their national resources for the personal gain of the rulers , - display no regard for international law, threaten their neighbours, and callously violate international treaties to wh ich they are party, - are determined to acquire weapons of mass destruction along with other advanced military technology, to be used as threats offensively to achieve the aggressive designs of these regimes, - sponsor terrorism around the globe, and - reject basic human values and hate the United States and everything for wh ich it stands ", National Strategy for Homeland Security, 14.

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Hence, the question to what extent the stigmatization of certain states in international law, employed to complement their political isolation, becomes increasingly important. Especially since such classifications are utilized in legal contexts to expand binding provisions in the light of unprecedented danger. This article will attempt to outline aspects of the answer to this question , by focusing on the impact of a unilaterally introduced stigmatization of states upon an international community, based on the sovereign equality of states as one of its founding principles. One of the issues linked to this subject-matter consists of the fact that the United States does succeed in creating a dichotomy of "rogue states" and the international community. Reactions of the latter exclude "rogue states" from the "social community" of states. At the same time, it becomes obvious, however, that such an exclusion does encounter limitations at the legal level, in spite of the fact that any legal order is usually derived at the social level through a conversion of values and principles. Thus the exclusion of "rogue states" from the international community becomes an impossibility, if the latter defines itself as a legal community. This article, furthermore, shows that exclusion at the social level will affect the legal order of the community if the consensus on its principles is being challenged, i.e. if the social community returns to a previous stage of development. The argumentation tasked with procuring an answer to the abovementioned question and its implications consists of three sections. The first centres on structural distinctions between an international society and an international community. It hence deals with the question which principles are recognized by states as community-forging principles? It also delves into the extent to which stigmatization undermines these principles. The second section indicates that the derogation of states represents a form of hegemony, which is rooted in the legal traditions of the domestic law of another state. These are then elevated to a rationale at the level of international law. The final section feeds on the thought that hegemony has the tendency to petrify power disparities, while focusing on the effects of stigmatizing designations of sovereign states, as well as the use of such formulations as an instrument of hegemony within an international community.

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II. Exclusion, Inclusion and the Emergence of Community 1. Society and Community: Different Conceptions of World Order Every legal order is based on a social order, i.e. on the values and interests of those acting within the legal order.!" Within this framework the legal and social orders are exercising influence over each other at the same time. On the one hand common values and interests are conducive to codification and they determine the application of laws; on the other hand, laws provide patterns for action and they determine the procedure for reaching a consensus on common values and interests within the social order. IS The conduct of states towards each other is likewise dependent on the scope of their common values consensus and on which interests they choose to pursue jointly. One prominent historical example for this is the multitude of Christian states, which were dedicated to a standardized norm application within the value community of the res publica christiana, while societies outside this community were not recognized as subjects in an international legal order. Simultaneously to this, the legal provisions regulating relations between civilized states were not applicable to countries outside the community of civilized states. Hence the civilizational criterion not only embodied a "logic of exclusion-inclusion,"16 it also symbolized a value consensus conducive to the demarcation of boundaries between social orders . This division consequently defined the purview of the law of civilized states. Beyond the borders of a community incorporated through a civilizing process, which fathered a value consensus, the application of the laws designed for it was impossible . Thus the con vergence on common material values determines the social quintessence, which in turn provides a foundation for the development of a legal order. The scope of this value canon is decisive for the possible establishment of states as a community. One indicator for such a process, however, lies in the exclusion of countries which do not share 14

N . Luhman, Das Recht der Gesellschaft, 1993, 550; W. Friedman, The Changing Structure of International Law, 1964, 3. IS N. Luhman, Die Politik der Gesellschaft, 2000, 372 et seq. 16 M. Koskenniemi, The Gentle Civiliser of Nation s, 1989, 127.

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the common values. The notions "international community" and "international society" still embody the basic explanatory models for functional prerequisites, w hich have to be met by an assembly of states in order to incorporate an international order. Both of them have been based on the dichotomy of the sociologist Ferdinand Tennies between community and society.'? According to Tiinnies, the notion of community is characterized by a certain genuine homogeneity of its members and their interests." The key feature of distinction with respect to the term society, nevertheless , lies in the fact that a community is marked by an intrinsic common denominator, whereas an society is at best capable of producing an overlapping of pragmatic preferences.'? Hence there is no genuine common ground in an association - there merely is a multitude of individual interests, which do not have an impact on each other.F? As a consequence of this, the co-existence of states generates the functional prerequisites for an international socicty.-! The interior state boundaries are very prominent within such associations, and the exclusion-inclusion function is initi ally executed by national social i.e. constitu tional orders.P Pressures for an optimum structure and performance gain ground throughout the pursuit of national interests . All this , however, does not preclude several states from defining themselves as a super-ordinate unit th rough value convergence.P This yields a particular form of community in an international society, as the development of legal provisions may take a different turn. But at the same time, this particular kind of organizational form will produce po ssibilities for the exclusion of states. In contrast to this, an international community is characterized by common values as its foundation. It is not merely dom inated by national interests, but acts on the common interests of all states - even if these can only be determined through confrontational bargaining, i.e. through the balancing of all national interests. What is decisive is the fact that each consensus reached on material values alters the social substratum, which underlies the legal order. This raises the question if -

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F. Tennies, Gemeinschaft und Gesellschaft, 1935, 1st edition 1887, 14; M. Weber, Wirtschaft und Gesellschaft , 1980,20 et seq. (234 et seq). Tennies, see abov e, 14. Tennies, see not e 17,45. Tonnies, see not e 17,40 et seq. Fri edman, see not e 14, 60 et seq. U. Di Fabio, Der Verfassungsstaat in der Weltgesellschaft, 2001,1 8. Friedman, see note 14, 62.

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upon crossing a certain threshold of integration and concordant social order development - it is still possible to subsume this legal order under the reference "international society". 24 It would seem plausible to presume, after all, that the consensus-forging process creates a value conversion which intensifies social cohesion up to a level of development corresponding exclusively to the "international community" model. This, however, would mean that (still) feasible processes, which are idiosyncratic traits of the international society, would no longer be applicable without threatening to undermine the value consensus of a community. Such instances would occur at least upon applying international-association processes to the detriment of a material value of the international community that has been recognized as a basic principle by the units of the latter. Apart from the agreement on the purview of legal provisions , the stigmatization of states has always been linked to a division of social orders throughout each epoch of history. This exclusive function of a community, which defined itself as a community based on values, reached a particular degree of prominence in the Medieval Age, when the Christian system of international law defined itself as an "in-group" with respect to non-Christian states. Such a notion of Christianitybased community subsequently permeated the civilization criterion. This process of clustering common traits, in order to define the compo sition of the civilized world, created the prerequisites for excluding certain states which were consequently awarded the epithet "noncivilized" . This exclusion of other countries had to be preceded by a certain amount of integration, as only a convergence on value systems attributes the necessary weight to common denominators, thus elevating them to criteria of exclusion.P It is therefore hardly surprising that each instance of stigmatization revolves around the defining feature of each "in-group" - regardless of the type of existing legal order.

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A similar view is upheld by A.L. Paulus, Die internationale Gemeinschaft im Volkerrecht, 2001, 426 et seq ., who arrives at the conclusion that statecommunity structures have emerged in some areas of legislation, while state-association structures still persist in others. M. Koskenniemi, From Apology to Utopia - the Structure of Legal Argument, 1989,466 et seq.; B. Simma, From Bilateralism to Community Interest in International Law, RdC 250 (1994), 217 et seq . (248 et seq.).

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The categorization of social orders entails a stigmatization of states similar to their designation as "rogue states" or "state sponsors of terrorism," along the same operative principles. Countries branded with such references (ascribed traits) cannot belong to the community of (all remaining) states. The latter cannot, after all, include countries threatening its existence. This assertion is based on the fact that the co-operation within the war against international terrorism has become a principal component of the international community's ideological core. Against this backdrop, the offence of countries classified as "state sponsors of terrorism" by the United States cannot be seen as anything but fatal, since these states are accused of contributing substantially to the furthering of terrorism. Such a threat analysis justifies the exclusive function of the above-mentioned classification in the eyes of the existing international community. In addition to this, states on the terrorism-sponsor list are also segregated on the grounds of other values shared by the international community, since: "[e]mpowered by the reality that a world of democracy, is a world in which terrorism cannot thrive, the United States war to eradicate the cancer of terrorism, quickly became a part of a larger struggle for democratic principles, universal freedoms and the demands of human dignity".26 The United States' differentiation between "rogue states" on the one hand and the "community of democracies" on the other entails the following assertions." First, the United States upholds the view that there is such a thing as an international community, and second - there are states which are not part of the latter. "Rogue states" have yet to undergo a transformation, they have to meet the accession criteria, before being admitted. This process of conversion is complicated by their lack of progress so far, summed up charges of curtailing rights of political

in

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"A Review of the State Department's Human Rights reports from the victims' Perspective", Hearing before the Foreign Relations Committee, Ser. No. 107-73,6 March 2002, 6, or also in the National Strategy for Homeland Security, 17 September 2002, 14; Wolfowitz, Speech delivered at the XXXVIII Munich Security Policy Conference, February 2002, . "It is not an accident that every state that sponsors terrorism also terrorizes its own people". National Strategy for Homeland Security, of 17 September 2002, 14, Secretary of State, Albright, see note 9, 9.

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participation and massive human rights violations, in order to underpin totalitarian leadership mechanisms.P On the basis of all this, it can be said that (regardless of the legal consequences entailed by the process of stigmatization) the designation of countries as "rogue states" and "state sponsors of terrorism" accomplishes the explicit dichotomization of social orders in one step. Such processes of exclusion are nevertheless subject to legal constraints, which are binding for the international community, should it consider itself a legal community as well.

2. The International Society as a Legal Community The notion of "international community" is marked by a "jet set" status: it leaves room for a wealth of different interpretations and travels across academic disciplines . The exclusion of certain states from the international community can only have legal consequences if "rogue states" were part of this community under normal circumstances. Hence it can be said that the exclusion of "rogue states" from the international community aims at a change of their status under (international) law, i.e. it is dominated by the intention of according them the status of pariah-states. The references "international community," communaute intemationale, and intemationale Staatengemeinschaft are used synonymously for states capable of acting together, and willing to do so in situations of crisis. In political speeches the formulation is frequently employed in connection with the United Nations, as in Joschka Fischer's speech given for the Council of Foreign Relations, when he advocated the: "[...] strengthening of multilateralism, the capacities for action of the UN and the codification of the international community"29 as desirable aims. This could imply that the United Nations constitute the "international community". In contrast to this usage there are instances which question such an absolute overlap. During the air campaign against Yugoslavia in Kosovo political leaders spoke of a military intervention by the "international community" - in spite of the fact that a mandate (according to Chapter VII of the UN Charter) had not 28

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National Strategy for Homeland Security, 17 September 2002,14. Speech given by the German Minister of Foreign Affairs Fischer before the Council of Foreign Relations in New York,S November 1999.

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been negotiated within the United Nations Security Council, due to the resistance of Russia, the People's Republic of China and France. An identification of the states comprising the "international community" could, however, still be possible. This is implied by the inclusion of the reference into positive legal acts, as well as by the thesis on the constitutionalization of the international community, which has emerged within international law literature.'? In 1949 the IC] utilized the formulation "international community" to establish the objective legal personality of the UN.3! In subsequent years this formulation was at times embellished by the phrase "as a whole" in rulings of the IC]. In case of the siege and hostage-taking at the US Embassy in Teheran the Court's documents contain the more general reference "international community't.V But the records of the Barcelona Traction case speak of duties erga omnes towards the "international community as a whole," which the IC] had spelled out for all states during this trial.33

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J.A. Frowein, "Reactions by not Directly Affected States to Breaches of Public International Law", RdC 248 (1994), 344 (350 et seq.); B. Fassbender, "The United Nations Charter as Constitution of the International Community", Colum . j. Transnat'l L. 36 (1997/98), 529 et seq.; C. Tomuschat, "Die internationale Gemeinschaft", AVR 33 (1995), 1 et seq. For a survey of notions of the international community and their origins in sociology and ethics, Paulus, see note 24. Reparations for Injuries Suffered in the Service of the United Nations, IC] Reports 1949, 174 et seq. (185). In its Opinion on the GenocideConvention the IC] recognizes "the principles underlying the Convention [as] principles which are recognized by civilized nations as binding on States, even without any conventional obligation", Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, IC] Reports 1951, 15 et seq. (23). Case Concerning United States Diplomatic and Consular Staff in Teheran, IC] Reports 1980,3 et seq. (42 et seq., para. 92). This is supported by the IC] via one of its 'obiter dicta', Barcelona Traction, Light and Power Company, Limited, IC] Reports 1970,3 et seq. (32, para. 32), the IC] also addresses 'erga omnes' duties without an explicit linkage to the international community in the Case Concerning East Timor (Portugal v. Australia), IC] Reports 1995,90 et seq. (102, para.28), and in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, IC] Reports 1996,595 et seq., (616, para. 33).

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Such formulations remind us of article 53 of the Vienna Convention on the Law of Treaties (henceforward: VCLT), according to which a legal provision enjoying the status of ius cogens represents a norm accepted by the "international community as a whole" .34 Hence, there is a possibility that the reference "international community" encompasses most (but not all) countries, whereas the formulation "the international community as a whole" covers all countries. The United Nations employs both references. The more elaborate notion of the "international community as a whole" was used by the General Assembly for the first time in 1993. Up to this time only the "international community" had been common in United Nations parlance.35 The Chairperson of the UN Security Council referred to the "international community as a whole" for the first time in 1994. 36 Two years later this reference emerged for the first time in an appeal to states for cooperation in the fight against terrorism, in shape of a UN Security Council Resolution.'? Ever since the United Nations regularly resorts

34 Vienna Convention on the Law of Treaties, UNTS Vol. 1155 No. 18232. 35 A/RES/48/23 of 24 November 1993: "[s]tresses the importance for the

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zone of peace and cooperation of the South Atlantic of the results of the United Nations Conference on Environment and Development, particularly the principles of the Rio Declaration on Environment and Development [...] in the conviction that their implementation will strengthen the basis for cooperation within the zone and for the benefit of the international community as a whole"; A/RES/48/139 of 20 December 1994: "Deeply preoccupied by the increasingly heavy burden being imposed, particularly upon developing countries with limited resources of their own and upon the international community as a whole, by these sudden mass exodus and displacements of population", also in A/RES/48/258 of 23 June 1994, A/RES/49/26 of 2 December 1994, A/RES/49/137 of 19 December 1995, A/RES/S-2014 of 10June 1998. Doc. S/PRST/1994/40 of 29 July 1994: "the members of the Security Council demand an immediate end to all such terrorist attacks. They stress the need to strengthen international cooperation in order to take full and effective measures to prevent, combat and eliminate all forms of terrorism, which affect the "international community as a whole", also subsequently in Doc. S/PRST/1996/1 of 5 January 1996. S/RES/1044 (1996) of 31 January 1996: "Stressing the imperative need to strengthen international cooperation between States in order to make and adopt practical and effective measures to prevent, combat and eliminate all forms of terrorism that affect the international community as a whole", also see S/RES/1045 (1996) of 8 February 1996; S/RES/1055 (1996) of 8 May 1996; S/RES/1064 (1996) of 11 July 1996.

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to the phrase "international community as a whole" if it explicitly encourages all states to take an action, or if it underscores that every country is affected by an issue. In the latter case the relevance of a problem is amplified by appealing to the "communal ties" uniting all states. What is not intended by this usage is the implication that there has been a quantitative increase in states addressed to act.38

The ILC of the United Nations also utilizes both references. Following the first deliberation session of the ILC's provisions on state responsibility in 1996, it was agreed that according to article 19 (2) the distinction between state crimes and state delicts was to be rationalized in the following manner: "An international wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole constitutes an international crime".39 This dichotomy was subsequently dropped during the adoption of a significantly revised Draft on the 52nd ILC Conference in the summer of 2000. Hence article 40 (1) stipulates massive and substantial violations of international legal obligations without resorting to the "international community'T'? What has been preserved through article 42 (b), however, is the opportunity for one state to appeal to the liability of

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S/RES/1189 (1998) of 13 August 1998: "Also stressing the need to strengthen international cooperation between States in order to adopt practical and effective measures to prevent, combat, and eliminate all forms of terrorism affecting the international community as a whole"; also see S/RES/1087 (1996) of 11 December 1996, S/RES/I075 (1996) of 11 October 1996, S/RES/1064 (1996) of 11 July 1996, A/RES/54/109 of 9 December 1999, A/RES/56/83 of 12 December 2001, Counter-terrorism is therefore always "essential for the maintenance of international peace and security", S/RES/1214 (1998) of 8 December 1998, S/RES/1269 (1999) of 19 October 1999. Article 19 (2) of the draft, ILC Yearbook 1996 Il/2, 60; M. Spinedi, "International Crimes of State. The Legislative History", in: H .H. Weiler! A. Cassese/ M. Spinedi, International Crimes of States, 1989, 7 et seq. (10 et seq. and 339 et seq.). ILC Report 2000, J. Crawford, Third Report on State Responsibility, Doc. A/CNA/507 (2000), 29 et seq.; Doc. A/CNA/507/AddA (2000), J. Crawford, The International Law Commission's Articles on State Responsibility, 2002,249 et seq.

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another state, should the latter have violated a norm whose upholding is owed to the "international community as a whole". The above-mentioned legal contexts illustrate that the international community is called upon to justify duties of states (or their qualifications), which have to be performed in order to respect and maintain the international community of states. This may not clarify which states comprise the international community, but the rulings of the IC] indicate that the exclusion of any country from the community has not been intended. This particularly applies when elaborating the responsibilities of states, as is shown by the IC]'s statement in connection to the hostage-taking at the US Embassy in Teheran. The Ie] felt compelled to: "[...] recall [...] yet again the extreme importance of the principles of law which it is called upon to apply in the present case, the Court considers it to be its duty to draw the attention of the entire international community, of which Iran itself has been a member since time immemorial [...]".41 This illustrates that the IC] held Iran accountable for a violation of international law which applies to all members of the international community. In addition to this, the IC] did not release Iran from this community as a result of the transgression. The Court appeared to lend particular weight to its charges against Iran based on the fact that - in spite of being a member of the international community - it had violated international law. All the arguments presented so far indicate that there is no international community in contemporary international law which can be restricted to some states. The notion of the international community consequently encompasses all states. Analyses of the literature focusing on the constitutionalization of the international community set forth the question whether the countries referred to in the just mentioned legal texts are those comprising this constitutionalized community or whether the latter represents a smaller but closer community of states. Verdross defined norms stipulating the laws of the international system (as well as their formulation, implementation and interpretation) as the constitution of the internationallegal community, as early as 1926.42 ]ellinek upheld the view that 41 42

Case Concerning United States Diplomatic and Consular Staff in Teheran, ICJ Reports 1980,3 et seq. (42 et seq., para. 92). A. Verdross, Die Verfassung der Volkerrechtsgemeinschaft, 1926.

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the functional load of each state established it as a permanent member of an international communiry.P According to Tomuschat article 53 VCLT equates the international community with all states. In his opinion the inclusion of all states into the international community is an unwavering axiom of the current international order.t" This has led to the acceptance of the notion of "international community" beyond classical international law - it is being ascribed as constitutive function with respect to "cornmunitarian international law," which made the traditional structures of international law (shaped through the sovereignty, autonomy and equality of states) obsolete." The references "international society" or Staatengesellschaft remain in usage when the concept of community is subordinated to an explicitly realistic view of international relations. Depending on the perceived potential for the development of a community, the formulation "international society" is either used as a denotation for the achieved final stage, or as a transitional system leading towards an "international communiry'v" At time the latter also encompasses international or ganizations, or even international interest groups and associations." These instances, however, remain at the periphery of legal writings on the international community. Most texts focus on (and personify) states acting within the latter,48 over individuals affected by such actions (in the sense of a world community).

43

44 45 46

47

48

G. Jellinek, Die Lehre von den Staatenverbindungen, reprinted 1996,93 et seq. (95): "Therefore no civilised state dares, even if he has transgressed a norm of international law a hundred times, to question the validity of the norm itself". Tomuschat, see note 30,1,4 and 7. M. Nettesheim, "Das komrnunitare Volkerrecht", [uristen Zeuung 57 (2002),569 et seq. G. Schwarzenberger as an illustrative example in: Power Politics, 1951,148, 254: "In any international society, inter states relations are almost bound to be conducted initially on a society footing rath er than on a community, for each of the independent groups has less in common with any of the others [ ...]". As described by C. Tomuschat, "International Law: Ensuring the Survival of Mankind on the Eve of a New Century", RdC 241 (1993), 195 et seq. (228 et seq.); S. Hobe for the response of international law to transnational threats by including private actors, "Die Zukunft des Volkerrechts im Zeitalter der Globalisierung", AVR 37 (1999), 254 et seq. (272,279). Paulus, see note 24, 228 et seq.

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With time many experts have also come to consider the UN Charter as the constitution of the international community." In contrast to this, the New Haven School views the Charter as the expression of a single constitutive decision. This school defines the drafting of a constitution as a process in which law and all social phenomena and processes influence each other. 50 The ultimate clarification of this issue remains of secondary importance for the question whether the international community is being personified. What is decisive is the fact that 190 states ratified treaties committing them to uphold the provisions of the UN Charter. Consequently, it can be concluded that there is a community of states. It is characterized by their obligation to adhere to the same treaty, i.e. the same basic provisions contained in the latter. If one were inclined to view the UN Charter as a "special" or "constitution-like" document, the rationale could be constructed as follows: by adopting this international legal treaty to establish the United Nations, the Contracting Parties have acted in the manner of a pouvoir constituant and developed a specific legal framework. This would establish them as the principal actors within this community, and the legal specification of the community would have to remain based on the UN Charter. Yet for policy its additional qualification as constitution does not increase its legal impact, as states are bound by the Charter as it is an international treaty. To summarize within United Nations parlance and legal texts the reference "international community" applies to the Contracting Parties to the UN Charter - those 191 states representing the United Nations. The usage of the formulations "international community" and "international community as a whole" confirms this finding, as variance merely depends on the extent to which the community ties among states is to be stressed. At no time does this usage point towards different quantitative scopes, i.e, the exclusion of some states. What is, moreover, emphasized is the sense of community dominating these lexical shells. 51

49

50 51

J.A. Frowein, "Das Problem des grenziiberschreitenden lnformationsflusses und des 'domaine reserve'", Reports of the DGVR 39 (1999), 427 et seq.,Tomuschat, seenote 30, 12 et seq., Paulus,see note 24, 293-296. M. Me Dougal! W.M. Reisman, International Law Essays: A Supplement to International Law in Contemporary Perspective, 1981, 191 et seq. (195). Tonnies based his sociological dichotomy between association and community on the presenceand strength of ties: "the theory of association con-

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In particular the ICl's legal texts concerning the hostage-taking of United States diplomatic personnel in Iran stress the inclu sion of all states into the latter. This function increases in relevance upon the stipulation of stat es' responsibilit ies. In cases where bodies of the United Nations appeal to the entire international community, it may be that this organization hopes to activate certain countries with the capacity to provide a solution. This does not, however, absolve other states from action, as such "fitted" appeals would violate the basic principles and aims of the UN Charter.

3. The Sovereign Equality of States as a Community Principle The process of stigmatization is particularly challenging to the existence of an international community, as it possibly not only limits the applicability of a legal principle but also excludes th e branded states. In addit ion to this, it questions the validity of this principle for the international community itself. The designation of count ries as "rogue states" or "state sponsors of terrorism" devaluates their standing. At the same time , this process tr iggers several legal mechanisms within United States domestic law, which significantl y alter the legal status of designated states. Apart from numerous provisions imposing economic means of coercion, these legal mechanisms include the annulment of state immunit y. According to provisions of the Foreign Sovereign Immunities Act (henceforward: FSIA) in 1996, states listed as sponsors of terrorism are not accorded protection from civil compensation claims in the United States. In contrast to this, the international community has conv erged on the principle of the sovereign equality of states. Thus the stigmatization of states, and the substantial alteration of their legal status through domestic laws, may be conducive to the violation of th is principle. The

structs a circle of human beings who - as in a community - live side by side. These human beings, however, are not tied to each other as humans. Hence is a community people tied to each other in spite of all divisions, whereas in an association they remain divided in spite of all proximity", Tonnies, see note 17, § 19, 39, in: § 7. Tennies points to the "from status to contract" formula of H.S. Maine, in his Ancient Law, 1905, 12 et seq., (170); D. Vagts focuses on the misuse of this terminology during the national socialist era, "International Law in the Third Reich", A]IL 84 (1990), 661 et seq. (687).

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sovereign equality of states embodies one of the quintessential principles of international law, as: "[ejach nation is a sovereign person, equal to others in moral dignity, and having, whether small or great, weak or powerful, an equal claim to respect for its rights, an equal obligation in the performance of its duties".52

It is therefore hardly surprising that the principles of sovereignty and equality are also enshrined in the UN Charter, in the shape of Article 2 (1), which sets out the sovereign equality of its rnembers.P This provision is usually analyzed by extracting its two constitutive principles: sovereignty and equality" Analyses also emphasize that the equality of states is derived from their sovereignty, thus establishing equality as a synonym for sovereignty. 55 The formulations contained in Article 2 (1) of the UN Charter, however, indicate that states ascribe a particular normative relevance to equality. Consequently this principle stands fast as a second "pillar" next to sovereignty, rather than acting as a foil to the latter.56 The domain of sovereignty is equal to the extent to which one state may enact rules independently of other states.V The IC] summed up 52

53

54

55 56 57

Statement delivered by the French Representative Bourgouis to the Second Peace Conference at the Hague in 1907, on the relevance of this Conference for the sovereign-equality-of-states principle see M. Huber, Die Gleichheit der Staaten, in: Juristische Festgabe des Auslandes zu ]. Kohlers 60. Geburtstag, 1909, 88 et seq. (99 et seq .), and also, PCIJ Ser. A, No.1 (1923), 25, more precisely on this A. Cassese, International Law, 2001, 88. On the meaning of the Charter's principles A. Randelzhofer, "Ziele und Grundsatze der UN", in: R. Wolfrum, Handbuch Vereinte Nationen, 1991, 1151 et seq ., the difficulties intrinsic to such general principles are analyzed by K. Doehring, Volkerrecht, 1999, item 188, et seq., also K. Hail bronner, in: W. Graf Vitzthum, Volkerrecht, 2001, Chapter III No. 91 et seq. H..P. Anand, "Sovereign Equality of States in International Law", RdC 197 (1986), 9 et seq. (52), Cassese, see note 52, 88; Vitzthurn, in: id., see above, Chapter I No. 45 et seq. G. Dahm/ J. DelbriickJ R. Wolfrum, Volkerrecht, Band Ill, 1989,236. R.Y. Jennings/ A. Watts, Oppenheim's International Law, 1992, Vol. I, 8 (§ 2); H.]. Morgenthau, Politics Among Nations, 1985, 290 et seq . C. De Visscher: "La theorie de la souverainete relative explique Ie fait que les Etats individuels sont indus dans les relations qui necessairement imposes certaint limitations sur leur volonte d'etre autonornes", quoted by J.P. Cot/ A. Pellet, in: id. (eds), La Charte des Nations Unies, Art. 2 Para. 1,87; H . Dreier, "Souveranitat", in: Gorres Gesellschaft (cd.), Staatslexikon Vol.

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this self-sufficiency as the "[r]ight of every sovereign State to conduct its affairs without outside interference't.f The emphasizing of this subjective dimension of empowerment within the principle of sovereignty by the IC} substantiates that sovereignty is always the output of law created by stares.>? The participating states at the UN's Founding Conference in San Francisco hence based their decision to establish an organization on the sovereign equality of its members on a particular concept of sovereignty.60 The debates on the possibility of states to end their United Nations membership revealed that the Contracting Parties attributed greater importance to inter-state cooperation for the securing of world peace, than to the creation of "opting-out" clauses, which would enable a state to renege on its obligations, set out in the UN Charter.s!

IV, 1988,Note 91, Columns 1203, 1208;D. Held, "Three Models of Sovereignty. Law of States. Law of Peoples", Legal Theory 8 (2002),1 et seq. (17 et seq.). 58 Case Concerning Military and Paramilitary Activities in and against Nicaragua, IC] Reports 1986,14 et seq. 59 See also ECJ, Rs. 26/62, van Gend & Loos, Ruling of 5 February 1963, Collection 1963,1, as regards the rationale for the ruling: "All this indicates that the Community represents a new legal order within international law, who se member-states limit their own sovereign rights, although in a limited fashion", d . also the rationale of the PCJ in the Wimbledon Case, PCIJ Ser. A, No .1 (1923),25: "The Court declined to see, in the conclusion of any treaty by which a state undertakes to perform or refrain from performing a particular act, an abandonment of its sovereignty [...] the right of entering into international engagements is an attribute of state sovereignty". Island of Palmas Case, 2 RIAA (1928), 829; the Corfu Channel Case, ICJ Reports 1949,4 et seq. (25, 27), d. also the Dissenting Opinion Judge Winiarski, 49, 56 et seq. 60 UNCIO, Vol. I, 9th Plenary Sess. of 25 June 1945, Documents of the San Francisco Conference, 612, 614. 61 This a priori determined devaluation of opting-out mechanisms was considered an infringement on the principle of sovereignty by the Soviet Union. It aired the view that: "[...] it is wrong to condemn beforehand the grounds on which any state might find it necessary to exercise its right of withdrawal from the Organization. Such right is an expression of state sovereignty and should not be reviled, in advance, by the International Organization" UNCIO, see above, 619. The eventually adopted Report of Committee 1/2 therefore felt obliged to stress that: "The Committee deems the highest duty of the nations which will become Members is to continue their cooperation within the Organization for the preservation of interna-

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Hence, it becomes clear that the principle of sovereignty was to bestow upon states a relative capacity to assert positive rights (liberties), as an intrinsic component of statehood, within the framework of the United Nations. The sovereignty of a state is limited by the exercise of its own rights, as well as by those of other sovereign states. This demarcation is strengthened by the prohibition to use violence and to intervene respectively, in order to shield a level of state sovereignty from undesired exogenous actions by other states. Therefore: "[tjhe principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference, though examples of trespass against this principle are not infrequent, the Court considers that it is part and parcel of international law't.P This means that, on the one hand the sovereignty of states is subject to change, while on the other hand it is protected from change. What remains is a protected core of sovereignty, which may not be diminished through interference by another state.P Consequently, the principle of non-intervention is directly rooted in the provision of Article 2 (1) of the UN Charter. The above-mentioned protection granted to state sovereignty is further enhanced by the prohibition to use violence in inter-state relations, contained in Article 2 (4), and by the prohibition of intervention in Article 2 (7) of the UN Charter. The ban stipulated in Article 2 (4) includes both the threat and the use of violence by United Nations members in international rela-

62

63

tional peace and security. If, however, a Member because of exceptional circumstances feels constrained to withdraw, and leave the burden of maintaining international peace and security on the other Members, it is not the purpose of the Organization to compel that Member to continue its cooperation in the Organization", UNCIO, see above, 619, see the decision to adopt this proposal including the dissenting vote of the Soviet Union, 620. Case Concerning Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, 14 et seq. (106 et seq.); Jennings/ Watts, see note 56,428 (§128). IeJ Reports, see above, 118, 121, 259, and previously the Corfu Channel Case, ICJ Reports 1949,4 et seq., (34); G. Nolte, Eingreifen auf Einladung, 1999, 167; id., "On Art. 2", in: B. Simma (ed.), The Charter of the United Nations, 2002, item 7; j.A, Frowein, "Die Intervention im heutigen System der Weltverfassung ", in: E. von Jackel (ed.), 1st das Prinzip der Nichteinmischung uberbolti, 1996, 9 et seq. (20 et seq.); id., "D ie Verpflichtungen erga omnes im Volkerrecht und ihre Durchsetzung", in: Volkerrecht als Rechtsordnung, internationale Gerichtsbarkeit, Menschenrechte, 1983, 241 et seq. (255 et seq.).

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tions, in order to affect the territorial integrity or the political independence of another state. Article 2 (7) accords states protection from interference by the United Nations, with regard to issues falling und er the domestic jurisdiction of a state. 64 The principle of non-intervention among states can be traced back to customary law.65 Article 2 (4) of the UN Charter shields state sovereignty from a qualified form of intervention. Beneath the threshold of threatening or employing military coercion any prohibition of unacceptable interference can only be derived from the general principle of non-inrervention.w In this sense a "maximalistic" concept of sovereignty protection has to be based on the prohibition of inter-state intervention. Only once the use of violence has been threatened, this shield becomes strengthened by the prohibition of violence in conducting international relations. a. Intervention via Stigmatization? The stigmatization of states could violate the sovereignty of countries, since the formulations employed aim at the devaluation of the objects they refer to. This, however, would imply that the principle of sovereignty also consists of the right of a state to have its honour respected by other countries. Apart from this, their sovereignty could be infringed upon by the consequences attached to the process of stigmatization - whether this be the intended international isolation of "rogue states" or the legal mechanisms entailing economic sanctions for "state sponsors of terrorism", according to United States domestic laws. Eventually this rhetoric employed at the international level, coupled with tangible consequences set out by domestic law, could even more affect the political independence of the targeted states.

64

65

66

Nolte, in Simma, see above, 63; B.D. Ro, Governmental Illegitimacy in International Law, 1999, 160 et seq.; M. Herdegen, Volkerrecht, 2002, § 35 item 1 et seq. Case Concerning Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, 14 et seq. (106); the Corfu Channel Case, ICJ Reports 1949,4 et seq., (34 et seq.). Jennings/ Watts, see note 56,428 (§128); A. Verdross/ B. Simma, Unioerselles VOlkerrecht, 1984, 301 (§ 492).

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aa. A Right to Dignity?

The assertion that derogatory references harm the dignity of natural persons would hardly require a rationale. The same does not apply to pejorative terms aimed at states. In such instances the question whether depreciating references injure the dignity or honour of a state has to be dealt with. An injury of this sort can only be committed if notions like "dignity" and "honour" can be applied to states, i.e. if states can be "insulted". The entitlement to respect and a fair reputation has been inevitably linked to the teachings on the basic rights and duties of states in the earliest stages of international law. According to these teachings, states were accorded a "personality" and the thus derived rights and duties of states acquired a significance in their own rightP It is therefore logical that states should be granted the right to have their dignity upheld.P This attribution enjoyed a measure of support in international relations up to the beginnings of the nineteenth century. Hence the premeditated generating of a negative climate, via the diffusion of false or detrimental news about a nation in the press, was considered a substantial danger to inter-state peace. British courts provided the following assessment of this threat during a trial concerning the slandering of Russia by the British press: "When this paper went to Russia and held this great sovereign as being a tyrant and ridiculous over Europe, it might tend to his calling for satisfaction as for a national affront, if it is passed unreprobated by our government and in our courts of justice".69

67

L. Oppenheim/ H. Lauterpacht (eds.), International Law, 1955, Vol. I, 8th edition, 260 et seq. (§ 112), also Jennings/ Watts, see note 56, 379 (§115); P. Kunig, "Staatenehre im Volkerrecht",]ura 20 (1998),160 et seq. (161). 68 K.J. Partsch, Von der Wurde des Staates, 1967, 12 et seq.; also H . Lauterpacht, "Revolutionary Activities by Private Persons Against Foreign States", A]IL 22 (1928), 105 et seq. (106), for a critical viewpoint see Oppenheim, see note 67, 282 (§ 120). 69 King v. Vint, State Trials (edited by T. B. Howell), 27 (1799), 627, 641, the trial had been caused by the following press statement: "The emperor of Russia is rendering himself obnoxious to his subjects by various acts of tyranny, and ridiculous in the eyes of Europe by his inconsistency, he has now passed an edict prohibiting the exportation of timber, deals etc.", quoted by E. Dickinson, "The Defamation of Foreign Governments", AjIL 22 (1928), 840 et seq. (842).

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It was thus concluded that the verbal abuse of states could disrupt peaceful relations between states, since: "[a]ny publication which tends to disgrace, revile, and defame per sons of considerable situations of power and dignity in foreign countries, may be taken to be, and treated as a libel, and particularly where it has a tendency to interrupt the amity and peace between the two countries'V?

The potential for inter-state wars as a result of affronting foreign countries was considered real and unwanted. Hence: "[e]very publication is intrinsically illegal, which tends to produce any public inconvenience or calamity. Under this division, those rank the first in respect of the magnitude of their results, which tend to interrupt the good understanding which prevails between this country and others, by malicious reflections upon those who are possessed of high rank and influence in foreign states. Since the natural tendency of these is to involve the government in a foreign war, their authors have, in several instances, been punished as offenders at Common Law".?! According to these assessments, states came to be considered as targets of slander in the late nineteenth century. This opinion was upheld in most legal analyses well into the twentieth century? Following World War I various proposals emerged to oblige states to punish the slander of foreign states or peoples in the press ." Several states were already penalizing the slandering of their own and foreign governments at that

70

71 72

73

King v. Peltier, State Trials, see note 69, 28 (1803), 529, 619. This case had been investigated by the following statement: "O! Eternal disgrace of France, - Caesar, on the banks of the Rubicon, has against him in his quarrel, the Senate, Pompey, and Cato, and in the plains Pharsalia, if fortune is unequal, if you must yield to the destinies, Rome in this sad reverse at least remains to avenge you a poignard among the last Romans", quoted by T. Starkie, Law ofSlander and Libel, 1832 (reprinted 1997),351 et seq. Starkie, see above, 350. R. J. Alfaro, "The Rights and Duties of States", RdC 97 (1959), 91 et seq., 110; Jennings/ Watts, see note 56, 379 (§ 115); G. Gidel, "Droits et Devoin des Nations", RdC 10 (1925), 537 et seq., (542); P. Fiore, International Law Codified and its Legal Sanction, 1918, article 62. W Schiicking, Internationale Rechtsgarantien, Ausbau und Sicherung der zwischenstaatlichen Beziehungen, 1919, 127 et seq.

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point of time.74 Countries such as Denmark, Norway, Austria, and Switzerland considered the affronting of foreign governments a threat to peace and codified legal sanctions for such offences." Initiatives at the international level attempted to introduce punishment not just for journalistic slander targeting the head of a foreign state; they aimed at penalizing the slander of an entire people, as a collective actor. Such requests were founded on the belief that, in the era of democracy, the climate among an entire people was of greater relevance than the mood of a single statesman." In addition to this, the recognition that a national consciousness existed in every country entailed that an entire nation could become the target of verbal abuse. In an opinion for the InterParliamentarian Conference of Stockholm, the impact of negative press coverage of states was summed up as follows: "The most efficient instrument to maintain states in permanent combat readiness, and to actually involve them in armed conflict at any point in time, is the regular diffusion of false or derogatory news on the evil intentions of one state against another. In present

74

7S

76

An example in support is offered by Canada's Cr iminal Code , Revised Statutes of 1927, c. 36, § 135: "Every one is guilty of an indictable offence and liable to one year's imprisonment who , without lawful justification, publishes any libel tending to degrade, revile or expose to hatred and contempt in the estimation of the people of any foreign state, any prince or per son exercising sovereign authority over such state." Article 95 of the Norwegian Criminal Code (1901) sets forth in a similar manner that: "Persons endangering the peaceful relations with ano ther country, by reviling it in public or by inciting to hatred towards Norway and its Government, or by the unsubstantiated attributions of unjust or disgraceful action s to a foreign Government - or by acting as an accomplice to such deeds - shall be punished with a fine or a imprisonment of up to one year". Article 115 of the Austrian Criminal Code (1912) stipulates that: "Every one diffusing false or defamatory news in print, which endanger the relations of the monarchy with a foreign country, shall be sentenced to a time span from nine week to one year in prison, or he shall be fined with 40-50 000 Krona". See e.g, the provisions in article 84 of the Danish and article 95 of the N orwegian Criminal Code (1902). The Norwegian regulation was eventually annulled in 1909, due to significant application difficulties, see also article 115 of the Austrian Criminal Code (1912) and a Swiss Dir ective of 2 July 1915 (on 'Offentliche Beschimpfung eines fremden Volkes, eines Souverans oder einer fremden Regierung'). Cf. Starkie, see note 70, 350; F.L. Holt, Law of Libel, 1816, 86; Schiicking, see note 73, 130.

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times armed conflict may not - in spite of governmental support be initiated due to the will of one single man, one monarch, one minister or one bank. In order to attain the military force required for (the prospect of) victory, at least one section of the nation has to consider war a necessity, a duty. Should a genuine grievance be lacking with respect to a foreign state, offences are concocted in order to create the required mass psychosis known as war glorification. [...] This occurs quite frequently at the behest, or with the support, of a government lacking a just 'casus bel/imp With time the concepts of "state dignity" or "state honour" lost their relevance in international law analyses, analogous to the marginalization of the teachings on states' basic rights and duties . The UN Charter, moreover, does not contain any provisions on the dignity of states. This does not imply that the UN never addressed the issue of slander. In 1949 the UN General Assembly adopted a Convention on the International Transmission of News and the Right of Correction that inter alia focused on the representation of states through false press coverage in another country. This Convention, however, was never released for signature." although it was less concerned with the liability of states for false statements aired by structures on its territory; the Convention rather delved into the duties of states to ascertain the correction of false sraternents. Z? This treaty intended to provide states with a legal instrument, in cases where the press of other states had diffused false or ambiguous news which could impair the international relations, the national prestige or the dignity of the targeted state. In cases where any Contracting Party to the Convention, which harboured offenders, has neglected to fulfil its duty and oversee the correction of slanderous news, the UN Secretary-General would assume the obligation to oversee the publication of a correcued) version.P In 1952 the UN General Assembly adopted a part of these provisions as the Convention on the International Right of CorrectionP The introduction to the Convention provides the rationale that false statements about a foreign country can be used to influence inter-state relations. Thus the Convention's

77 78

79

80

81

Lammasch, capita selecta, No.5, September 1917, 31 et seq. A/RESI277 (III) C of 13May 1949, the text of the Convention is contained in the Annex. A/RESI277 (III) C of 13 May 1949, article IX , 2 and article X. A/RES/277 (III) C of 13 May 1949, article XI. A/RES/630 (VII) of 16 December 1952. The text of the Convention is contained in the Annex, effective as of 24 August 1962.

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aim is "to combat all propaganda which is either designed or likely to provoke or encourage any threat to the peace, breach of the peace, or act of aggression't.V An extremely wide concept of state dignit y had been upheld only by socialist states during preparatory discussions, despite implications of restricting the free flow of information that such a maximalistic notion entails.P International law analyses on the subject are able to derive a mutual obligation of states to uphold state dignity without, however, advocat ing legal consequences for a violation of this duty.84 Such a debate un derlines the critical qu estion in which sense the concept of dignity is applicable to states, if it is applicable to them at all.85 Few voices are heard in support of a " right" to dignity. Whenever the existence of such a right is presumed, legal provisions are being tasked to not only prevent slander by other states , but to establish the honourable conduct of states. 86 The debates on dealing with the slandering of an entire state - preceding the establishment of the League of Nations - nevertheless proved the relevance whi ch certain states attached to the ir rep resentation in public. These debates were not only led by those states focusing on the liability for World War I, which were accordingly most likely to become the targets of slander; the inviolability of states was considered a vital prerequisite for the preservation of peace. Th e volatility of states, created by uns anctioned pejorative statements, was hence viewed as a potential catalyst for confl ict, i.e. a weak link in the framework for maintaining peace. Similar discussions did not resurge until prior to the founding of the Un ited Nations. In its D eclaration on Principles of International Law concerning Friendly R elations and Co-operation am ong States in accordance w ith the Charter of the United Nations (henceforward: FriendlyRelations Declaration) the UN General Assembly set forth that

82

83

84

85

86

A/RES/630 (VII) of 16 D ecemb er 1952, Preamble of the Con vention. Cf. Frowein, see note 49, 29 and B. Simma, " Grenziib erschreitender InformationsfluB und do maine reserve der Staaten ", Reports of the DGVR 19 (1979), 39 et seq. (60). Cf. ]ennings/Watts, see not e 56, 379-381 (§ 115); M.N. Shaw, International Law , 1997, 137 et seq.; Verdross/ Simm a, see note 66, §§ 455, 1052, Part sch, see note 68, 14. A.A. D 'Amato, "there is no N o rm of Interventi on or Non-Interventi on in Internation al Law", Internati onal L egal Theory 7 (2001), 1 et seq. F. Berb er, Volkerrecht I, 1967,202.

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"[e jvery State has th e duty to respect the personality of other States " without mentioning th e co ncepts of " state honour" or "state dignity". 87 An explicit reference to "state dignity" is, however, contained in the Assembly's Declaration on the inadm issibility of interventions. It is important to stress in this context th at this reference is only indirectly linked to states, through the formulation that " [r]ecognition of the inherent dign ity [00'] of all members of the human famil y" 88 is to be accorded without discrimination. Proof for the recognition of the intangible volatility of states is found in the lLC's draft on state responsibility.''? Thus, in cases of violations the"offending state" is not only being tasked with restitution of the material - but also the "moral" loss.90 The draft diffe rentiates between three categories of remedies."! According to article 37 (1) the reestablishment of the status-quo ante (restitution) can be complemented by compensation for inflicted damages, or by the granting of satisfaction - if the former two procedures cannot make amends for the harm caused." Paragraph (2) of article 37 sp ecifies "satisfaction " as a subsidiary form of " reparatio n ", compared to rest itution and compensation. It can amount to "an acknowledgement of the bre ach, an exp ression of regret, a formal apology or another appropriate modality ". Hence, it is possible to "undo" the damage in certain cases, through a course of action procuring satisfaction to the targeted state, as this process contains the element of regr et over the injury inflicted. A commentary on the lLC Draft sums th is up as follows: "Material and moral damage resulting from an internationally w rongful act will normally be financially assessable and hence covered by th e rem ed y of compensation. Satisfaction, on the other hand, is the remedy for those inju ries, not finan cially assessable, which amount to an affront to the State. These injuries are fre-

87 88 89

90 91 92

A/RESI2625 (XXV) of 24 October 1970. A/RESI2131 (XX) of 21 December 1965. The Draft Articles on the Responsibility of States for Internationally Wrongful Acts were adopted by the ILC during its 53rd Sess. the text is available in: Report of the International Law Commission on the Work of its 53rd Sess., GAOR 56th Sess. Suppl. No. 10 Chapter IV.E.l, 43 et seq. Article 31 of the ILC-Draft. Article 34 of the ILC-Draft. Arts 35-37, the formulation "insofar" in article 37 (1) indicates at this third kind of remedy is only applied in cases where other compensation methods do not provide sufficient remedy, d . also Crawford, see note 40, 231.

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quently of a symbolic character, arising from the very fact of the breach of the obligation, irrespective of its material consequences for the State concerned't.v Satisfaction therefore embodies a remedy accessible to states if a violation of international law is linked to the affronting of another state, which has caused intangible damage apart from the assessable damage. Such provisions presume that states can be the targets of slander. They also require, however, the existence of an "internationally wrongful act" to entail remedies if the dignity of states is affected. The Draft provisions thus recognize that states can be abused when an "internationally wrongful act" has been committed. At the same time such an action is, however, presupposed for an affront. The provisions do not provide the basis for the conclusion that slandering constitutes an internationally wrongful act. They merely embody the foundation for an exhaustive neutralization of damages, which have been caused by a violation of international law (containing an affront to other states). A general codification and prohibition of injuries to the honour of states cannot be derived from them on a discrete basis. Endeavours to achieve a remedy to violations of international law in an exhaustive manner (including intangible damages) - and thus ensure the continuation of good international relations - may have guided the Ie] throughout its deliberations in the LaGrand-case. 94 In its findings on this matter the ICJ ascribed a remedial impact to the apology of the United States to Germany." The violation of inter93

94

95

Commentary on the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, art. 37, 264, the text is available at , accessed on 6 May 2003. On the impact of this ICJ ruling see United States-Department of State letter to United States-Court after the LaGrand Decision; Taft, United States-Department of State Legal Adviser, to Keating, Governor of Oklahoma on 11 July 2001, or also S.D. Murphy, "Contemporary Practice of the United States",A]IL 96 (2002), 461 et seq. (462). ICJ Judgement of 27 June 2001, para . 125 - LaGrand, ILM 40 (2001), 1069 et seq.: "In the present proceedings the United States has apologized to Germany for the breach of Article 36, paragraph 1, and Germany has not requested material reparation for this injury to itself and to the LaGrand brothers. [...J The Court considers in this respect that if the Un ited States, notwithstanding its commitment referred to in paragraph 124 above, should fail in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where the indi-

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national law did not consist of the verbal abuse of Germany, but the failure of the United States to comply with article 36 (1) of the Vienna Convention on Consular Relations. This ruling outlines the possibility that a breach of international law can affront a state. But, as in the case of the ILC Draft, the IC] rulings emphasize that the affronting of a state presupposes a concrete wrongful act. Once again, it cannot be said that the verbal abuse of a state co nstitutes a transgression of international law. Th e fact th at an internationally wrongful act can affront a state does not impl y that the slandering of a stat e constitutes an internationally wrongful act. State practice does not suffice either to draw a line between the permitted criticizing of a foreign government and an inadmissible affront on the grounds of an explicit right or duty to respect the honour of states." The question whether the latter can be injured through derogato ry design ations seems to be based on the question (if and how) the distinction is to be made between the permitted critique of another state 's govern ment and the illegal imp acting of its political independence. H ence the categorization of states is ring -fenced by th e distinction between acceptable criticism and the inadmissible exertion of influence over the political independence of a state. But even within these bounds, the debate on state honour may provide indicators for the point at which pejorative formulations transcend the area of allowed critique. This is based on the fact that the slandering of stat es is registered as one element of a breach of international law.

bb. Political Independence It is well-known and recognized that several states command the resources to exert political and economic pressure. They are able to do so to an extent where the resulting pressure may equal or sur pass the application of milita ry force. It also has to be emphasized that the appli-

96

viduals concerned have been subjected to prolonged detention or convicted and sentenced to severe penalties", d . also K. Oellers-Frahm, "Der Internationale Gerichtshof starkt die Stellung des Individuums im Volkerrecht und klan wichtige Fragen der Internationalen Gerichtsbarkeit, Ne ue Juristische Wochen schrift 54 (2001 ), 368 8 et seq. and W. ] . Aceves, "LaGrand (Germany v. United States)", AJI L 96 (2002), 210 et seq. See also Kunig, note 67, 163.

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cation of coercion is "part of the game"97 in international relations. State sovereignty secures political independence for each state, but it does not provide benchmarks to determine its deterioration or its lack. Hence, upon attempting to delineate the scope of an inviolable domestic jurisprudence of states, it appears advisable to rely on what can be grasped for now: tendencies emerging out of the evolution of international law. Within such a venture, however, it must be emphasized that the principle of non-intervention remains unquestioned. This means that the latter may and will at times regulate certain tendencies on the grounds of its standing in customary law. This process of delineation must pay heed to the inherent dynamic just outlined. It should not be reduced to enumerating the "don'ts". aaa. Defamation of States As a matter of principle, it is admissible to criticize the domestic policies of other states, if this critique is based on facts .?" The line towards inadmissible conduct is crossed when states can be held liable for radioor TV-broadcasts inciting a 'coup d'etat' in another state, or calling for violent actions against another state. Additional legal issues of a different nature are being raised through instances where the domestic laws of a country declare the aiding of regime change in a foreign country a political goal."? The Ie] has thus agreed that certain modes of assistance accorded to insurgents in intra-state conflicts may constitute inadmissible interventions.P? This is conducive to the ambiguous status of derogatory designations of states (which air exhaustive criticism and contain devaluating connotations) as falling into a domain that neither totally excludes nor includes their embodying an intervention. The most clear-cut cases would be the use of such designations with the explicit intent to bring

97 Tomuschat, see note 47,13,231. 98

99

100

A. Fischer, in: K. Ipsen (ed.), Volkerrecht, 1999, § 59 item 60. Iraq Liberation Act of 31 October 1998, Pub.L. 105-338, H.R. 4665, sec. 3: "It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime", d. also sec. 7, Assistance for Iraq upon replacement of Saddam-Husseins Regime. Case Concerning Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, 14 et seq. (103, 124); Jennings/ Watts, see note 56, 431 (§ 129).

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about a regime change. Apart from this, it has to be borne in mind that contemporaneous international law cannot prohibit specific forms of mutual control and influence; it actually encourages them. Thus, an inadmissible intervention would not be diagnosed in cases where one state employs stigmatizing references to affect the internationally illegal conduct of targeted states. This could be due to the fact that the intrinsic criticism of such designations would not refer to "affairs under domestic jurisprudence" (which are not regulated by international law), or to the view that in such cases derogatory designations are no longer considered inadmissible political pressure. Consequently, an intervention via classifying states would not be covered by a legal prohibition, if its principal mission were to inspire the targeted state to fulfil its existing international obligations, such as abstaining from supporting terrorism. If such a "right" to the unilateral securing of compliance with international law were to be recognized, however, the "enforcing state" would also have to abide by international law. Any other kind of conduct would justify the inadmissibility of its intervention. Apart from this, if the targeted state would comply with its international obligations, there would be little leeway left for the legal influencing of states via stigmatization. This applies to cases where the UN Security Council is being accorded not only the authority to determine this, but also to implement measures - as long as it does not choose to explicitly outsource this competence to other states. It would also affect cases where states have been legally bound to cooperate, since the question emerges if unilateral action may be undertaken in such areas. At least as a consequence evolved from S/RES/1373 (2001) of 28 September 2001, states are legally bound to co-operate in the fight against international terrorism, pursuant to Chapter VII of the UN Charter. This obligation to cooperate does not justify a unilateral classification of states, because a measure of this sort inevitably relies on unilateral criteria. Another argument against the procedure lies in the fact that the stigmatization of states transcends the counter-terrorism measures approved by the UN Security Council. All this implies that the exerting of influence upon the political independence of states (via stigmatization) does not acquire "legal correctness" by designating coercive measures as instruments of ensuring compliance with international law. It is more likely that the utilization of derogatory references with respect to states will be considered an illegal form of government critique, as they verbalize unilateral and exhaustive pejorative evaluations of another state. Whether the mere process of stigmatization equals the "coercive load" of interna-

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tionally prohibited interventions will be addressed upon delineating its legal consequences.l?' bbb. Exception to Immunity A comprehensive analysis of the issue of stigmatization has to include the exception to immunity, which is applied to "state sponsors of terrorism", as it extends the jurisdiction of the sending state to the targeted state. The admissibility of this cannot be demarcated without a survey of state practice. Only then can it be fathomed to which extent the implementation of domestic laws infringes upon the sovereign core of the targeted state. Provisions contained within the United States Foreign Sovereign Immunities Act (henceforward: FSIA), for example, do not adhere to a restrictive notion of immunity - nor is their purview limited to cases subject to United States jurisdiction on grounds of the territoriality principle.P? It has to be emphasized, however, that a "state sponsor of terrorism's" immunity may only be annulled if certain breaches of international law are being prosecuted, such as "personal injury or death caused by an act of torture, extra-judicial killing, hostage taking or the material support of such acts" . In its ruling of 14 February 2002, the IC] found that various international conventions on the prevention and punishment of capital crimes tasked states with the expansion of their jurisdiction, by committing them to the criminal prosecution and extradition of perpetrators. The IC] nevertheless added that the mandate to prosecute granted to domestic courts does not obliterate the rules defining and granting immunity. Therefore "[tjhe jurisdiction of national courts does not imply absence of immunity while absence of immunity does not imply jurisdiction'i.P!

101 102

103

For further details, see the discussion under II. C. On the recognition of the restrictive immunity-theory by the IC], see IC] Reports 1998, Case Concerning the Differences Relating to Immunity from Legal Process of the Special Rapporteur of the Commission on Human Rights, items 33-35 B, as regards state practice and the recognition of the territoriality principle, see the Report of the Working Group of the ILC on "Immunities of States and their Property", Report of the International Law Commission, 1999, Annex, No. 45-55. Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), IC] Ruling of 14 February 2002.

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This does not resolve all dilemmas, as the expansion of the jurisdiction of domestic courts, on grounds of international obligations, is inextricably linked to the question to what extent immunity may bridle national courts upon prosecuting crimes committed by state officials. The above-mentioned possibility to sue a "state sponsor of terrorism" in the United States could be approximated to international law standards, if there were concrete instances of state conduct (state practice) which resort to the annulment of a foreign state's immunity by a domestic court - if the latter had supported grave crimes .P' The immunity of former heads of state during criminal prosecution has been an issue for the British House of Lords on two occasions. Both of them revolved around the exception to immunity of Chile's former President Augusto Pinochet. 105 In the case of the first appellative ruling by the House of Lords the rationale centred on the fact that the instances of torture and hostagetaking being considered were not acta iure imperii. The ordering of such massive violations of human rights, after all, could not be included in this category of tasks attributed to a head of state. Hence immunity could not be accorded for such actions in the sense of ratione materiae.l 06

104

105

106

On the scope of state immunity during violations of ius cogens in armed conflict, d . article 7 of the Charter of the International Military Tribunal (1945), article 7 (2) of the Statute of the International Criminal Tribunal for the former Yugoslavia (1993), d. also Prosecutor v, Tadic, ILR (1995), 419 et seq.; arts 3 and 6 (2) of the Statute of the International Criminal Tribunal for Rwanda (1994), arts 27, 28 and article 8 of the ICC (1998). On the historical i.e. case-based evolution and the "double criminality" etxradition criterion (which requires a decision on immunity, as extraditions can only be lawful if domestic jurisdiction would apply to a case where British nationals had been injured) d. M. Byers, "The Law and Politics of the Pinochet Case", Duke]. Compo & Int'!. L. 10 (2000), 415 et seq. (422-437); A. Bianchi, "Immunity versus Human Rights: The Pinochet Case", EjIL 10 (1999), 237 et seq. (254 et seq.), on the immunity of former heads of state also article 13 (2) of the Resolution issued by the Institut de Droit International in 2001, in addition, see the legal positions as regards the Case Concerning the Arrest Warrant of 11 of April 2000 (Democratic Republic of the Congo v. Belgium), ICJ Ruling of 14 February 2002. House of Lords, Regina v, Bow Street Metropolitan Stipendiary Magistrate and others, Ex parte Pinochet Ugarte of 25 November 1998, Weekly Law Repo rts 2 (1998), 1456, 1500, Lord Nichols of Birkenhead: "And it hardly

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In its second ruling the House of Lords'P? annulled the immunity only for instances of torture falling under the purview of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (henceforward: Anti-Torture Convention), which has been directly applicable to British law since 29 September 1988.108 The Anti-Torture Convention's article 1 (1) stipulates that its purview concentrates on instances of torture committed as acta iure imperii. In contrast to the first case, the judges could not apply the rationale that the latter did not include massive violations of human rights. On the contrary, the majority of judges was convinced that immunity did not cover those crimes , which had been branded crimes against humanity and violations of ius cogens within the enactment of the Anti-Torture Convention, thus entailing universal jurisdiction.P? This was conducive to the conclusion that British law would have accorded jurisdiction to British courts, if acts of torture had been committed against British citizens. As a consequence of this finding, the extradition of perpetrators is lawful, provided the "double criminality" requirement is met. This

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needs saying that torture of his own subjects, or of aliens, would not be regarded by international law as a function of a head of state", and 1501: "Acts of torture and hostage-taking, outlawed as they are by international law, cannot be attributed to the state to the exclusion of personal liability", also d. Lord Steyn, 1506 and 1507. The vote consisted three votes in favour and two against. The plaintiffs had been striving towards such a decision, as the first appellative chamber had not been constituted according to legal requirements, d . House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and others, Ex parte Pinochet Ugarte, Weekly Law Reports 3 (1999), 827, 828. House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and others, Ex parte Pinochet Ugarte of 24 March 1999, see above, 847 et seq., Lord Wilkinson: "Under the Convention the international crime of torture can only be committed by an official or someone in an official capacity. They would all be entitled to immunity. [...] In my judgement all these factors together demonstrate that the notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention". The verdict in this matter was reached by a majority of five to one votes. Byers, see note 105; on the immunity of incumbent heads of state d. Clinon v. Jones, 520 S.Ct. (1997), 681 et seq.; United States of America v. Noriega, 746 ET Seq. Supp. (1990),1506 (1519); Filartiga v. Pena-Irala 577 F, Supp. (1984), 860 et seq., on civil-court litigations see Argentine Republic v. Amerada Hes s Shipping Corporation, 109 S.Ct. (1989) 683 et seq .; Siderman de Blake v. Republic of Argentina, 965 F,2d (1992) 699 et seq.

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ruling is strictly limited to the immunity of former heads of state during criminal prosecution. In March 2001 France's Court de Cassation found that international customary law accorded immunity to incumbent heads of state facing trial.U? Participation in acts of terrorism, moreover, did not constitute transgressions of international law mandating the exception of heads of state from immunity. I I I The European Court of Human Rights (henceforward: ECHR) was likewise concerned with aspects of immunity in November 2001, on the grounds of the cases filed on behalf of Fogarty, Al-Adsani and McElhiney against the United Kingdom and Ireland respectively.Uf The Fogarty case centred on the admissibility of the United Kingdom's evocation of state immunity in a labour rights dispute, against the backdrop of article 6 (1) of the European Convention on Human Rights (henceforward: EConvHR). The McElhiney trial raised compensation charges against civil-service structures in Ireland, which had impaired the health of the plaintiff. 113 Both cases were rejected by the ECHR on the grounds that the rights of the plaintiffs were not unduly restricted by the litigation threshold embodied by immunity, as the latter represents a generally recognized principle of international law.114 The Al-Adsani case concentrated on the immunity in civil claims, triggered by violations of the ius cogens. The plaintiff had filed charges due to his having been captured and tortured by Kuwaiti fighters after the withdrawal of Iraqi forces from Kuwait in 1991. His claim for compensation against Kuwait, lodged at a British court, was finally rejected by an appellative court, as it accorded Kuwait immunity in this matter. The plaintiff had justified his suit before the ECHR by stating that the Pinochet-ruling lifted state immunity in cases where the Anti-Torture 110

III

112

113

114

Ruling by the Court de Cassation of 13 March 2001, Bulletin des Arrets de la Court de Cassation, No. 1414, 1. See S. Zappala, "Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case before the French Cour de Cassation", EjI L 12 (2001), 595 et seq. (607). Fogarty v. United Kingdom, Ruling of 21 November 2001 HRL] 23 (2002), 50 et seq.; McElhinney v. Ireland, Ruling of 21 November 2001, HRL] 23 (2002), 57 et seq.; AI-Adsani v. United Kingdom, Ruling of 21 November 2001, No. 35763/97, HRL] 23 (2002), 39 et seq. On the civil character of this claim, d . W. Peukert, in: J. A. Frowein/ A. Peukert (eds), Europdiscbe Menschenrechtskonvention, article 6 (15) and on the claim to compensation see item 22. ECHR, Fogarty, see note 112, item 26 f, 35-37; McElhiney, see note 112, item 25 f, 35-38.

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Convention had been violated. 115 The ECHR had to decide if the rejection of Al-Adsani's suit by the British judiciary constituted a breach of article 6 (1) of the EConvHR, and if the British Government had not ultimately violated article 3 (in conjunction with arts 1 and 13) of the EConvHR. The ECHR found that the British Government had not breached article 3 (1),1t6 as the warranty stipulated in article 6 (1) of the EConvHR was not absolute - but subject to limitation by rules serving a legitimate purpose, and crafted according to the principle of proportionality. The ECHR furthermore clarified that it considered the prohibition of torture as ius cogens, but as the case was a civil lawsuit (and not a criminal prosecution trial), it first had to decide if a breach of the ius cogens could annihilate a state's legitimacy in this type of litigation. Eventually the judges of the ECHR arrived at a negative conclusion (with nine votes to eight) and opposed the extension of jurisdiction by analogy (via transfer from cases concerning the immunity of former heads of state, in the sense of a functional immunity, to litigations concerning the immunity of states). The rationale of the ECHR emphasized that: "[t'[he growing recognition of the overriding importance of the prohibition of torture, docs not accordingly find it established that there is yet acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for damages for alleged torture committed outside the forum State".117 The implicit requirement of a territorial link to a breach of international law, contained in this justification, was to be elaborated subsequently. In the Bankouic-csse the ECHR stressed that in order for the application of article 1 of the EConvHR to be possible, NATO should have been in "effective control" of the territory where the violation had been committed. I 18 The Draft of an international convention on the jurisdictional immunities of states and their property similarly contains limitations to the annulment of immunity. These Draft Articles on Jurisdictional Im-

liS 116 117 118

ECHR, Al-Adsani, see notel12, item 51. ECHR, Al-Adsani, see notel12, item 41. ECHR, Al-Adsani, see note112, item 66. ECHR, Ruling of 19 December 2001, Bankovic v. Belgium, No. 52207/99, item 80, the verdict of the ECHR differs, however, in Loizidou v. Turkey, No. 15318/89, (1995), item 71, for a critical view on this finding, see A. Laursen, "NATO, the War over Kosovo, and the IClY Investigation", Am. U. Im 'l L. Rev . 17 (2002), 765 et seq. (796-800).

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munities of States and their Property!'? were presented by an Ad-hoc Committee on Jurisdictional Immunities of States and their Property in February 2002. The Committee had received the mandate to do so by the UN General Assembly back in 2000. 120 According to this Draft, the immunity of a state remains intact as long as no legal exception becomes binding.V! One such exception to immunity, based on massive human rights violations, is set out in article 12 of the Draft as follows: "Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State and if the author of the act or omission was present in that territory at the time of the act of omission".122 Hence, a territorial link to the violation of international law is necessary to justify the jurisdiction of one state against another. In addition to this, a claim can, at best, aim at financial compensation. Charges cannot be pressed for punitive damages. In one of its reports on the work of the Ad-hoc Committee, the ILC concludes that so far state practice had established scenarios for the lifting of immunity, due to human rights violations, only in the following cases: the first scenario revolved around violations of the AntiTorture Convention, as in the Pinochet case; and the second scenario represents the exception of immunity of "state sponsors of terrorism" under the FSIA.123 With regard to the compulsory execution of claims

The Working Group has been established in December 2000, see A/RES/55/150 of 12 December 2000, A/RES/56/78 of 12 December 2001, item 4. The ad-hoc Committee was convened for a sessionbetween 4th and 13th February 2002. 120 Report of the ad-hoc Committee on Jurisdictional Immunities of States and their Property, Doc. A/57122 of 15February 2002. 121 Report of the ad-hoc Committee on Jurisdictional Immunities of Statesand their Property, see above, article 5: «A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present articles." 122 See Doc. A/57122, see note 120, article 12 on personal injuries and damage to property. 123 Report of the ILC (1999) Annex, Report of the Working Group on Immunities of Statesand their Property, Annex, 1999, No. 122, items 9-12. 119

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using state assets, the ILC found that it had to be proven that "[njot only ... the activity or transaction at issue was performed in the sense iure gestionis, but also that the property affected was not destined for the fulfilment of sovereign functions". 124 The report mentions the exception to immunity under the FSIA and in the Pinochet case as precedents, but it also underscores the differences: the Pinochet case represents a criminal prosecution trial of a former head of state, whereas the provisions of the FSIA on "state sponsors of terrorism" focus on the immunity of states during civil claims. Hence the report implies that international law had established as vital: a differentiation between state immunity and the derived immunity of a head of state.125 The annulment of the immunity of a former head of state does not set a precedent for the issue whether a state enjoys immunity as a legal person. Upon relinquishing his incumbency, a former head of state (as in the case of diplomats) only enjoys immunity for his actions (in the sense of ratione materiae), or along the lines of ratione personae. The basis underlying this idea is the thought that a person who no longer represents the state should no longer be shielded by the state's immunity as a private individual. Therefore immunity merely applies to the acta iure imperii during his term in office. The novelties surrounding the exception of immunity with respect to "state sponsors of terrorism" become even more striking if one compares the contexts of the Al-Adsani and the Pinochet case. Their processing by the judiciary does not so much imply an inconsistent jurisdiction - apart from the qualification of the Pinochet case as a precedent along the lines of the immunity exeption for state sponsors of terrorism of the Unites States Code - as it indicates the divergences of state practice so far, in instances where immunity has been annulled according to the FSIA. Even if the contentious issue of the Pinochet case had not been the immunity of a former head of state, but the immunity of Chile - the ruling would still not have been applicable to the Al-Adsani case and its challenge to Kuwait's immunity. In the Pinochet case the judges were first forced to determine the legality of the "double criminality" requirement; a criterion which has to be met prior to every extradition

124 125

Report of the ILC, see above. Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v, Belgium), see note 103, para. 53-55; P. Daillier/ A. Pellet, Droit International Public, 1999,446 et seq.

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according to British law. For this purpose they had to clarify if British jurisdiction would have been expanded in cases where British nationals were tortured in Chile. Thus the judges were not supposed to decide whether a violation of the prohibition of torture was basically conducive to the general forfeiture of immunity. The actual dilemma was if the annulment of immunity applied to cases where British nationals had been harmed. It was found that the extradition of Pinochet would be lawful only under these circumstances. This aspect of the case could have been transferred to the Al-Adsani trial only if the plaintiff were a British national. Then the territorial-link requirement for an extension of jurisdiction would have been surpassed by the principle of passive legal personality. This, however, would not have been the case with the distinction between the immunity of heads of state and of states, or the different kinds of litigation embodied by both cases. The Pinochet case referred to a completely different subject-matter, when compared to the Al-Adsani case. Therefore, it remains debatable if there is a similar case to the instances where the immunity of "state sponsors of terrorism" has been annulled. The Pinochet case did not revolve around state immunity - it merely tried to assess if an extradition was lawful, based on the hypothetical assumption that one's own nationals had been injured. In contrast to this, the Al-Adsani case centred on a civil lawsuit against a state, where neither the plaintiff nor the violation of the law established a link to the state as a forum. The exception of immunity in case of "state sponsors of terrorism" is conducted under circumstances which were not the object of deliberation in the Pinochet case, and which the ECHR did not acknowledge as rationale to state immunity under international law as it currently stands. The exception of immunity for "state sponsors of terrorism" therefore has to be considered the only case where states forfeit their immunity during civil claims, and not another precedent besides the Pinochet case. b. The Meaning of Sovereign Equality Based on the teachings on the basic rights of states, their equality was considered a "classical basic right" towards the end of the nineteenth century. The notion that this equality represented a subjective empowerment, however, could not gain the upper hand throughout the

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twentieth century. 126 What did succeed is the enshrining of the equality of states as a principle in several international conventions.F? The UN General Assembly confirmed this principle through the FriendlyRelations Declaration, by claiming that: "[a]ll States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature" .128 In contrast to this, it has to be stressed that general international law has always been aware of an asymmetric distribution of rights and duties among states. Numerous international agreements, such as the NonProliferation Treaty, entail a differing level of empowerment and liability among countries.V? The United Nations itself has accorded the five permanent members of the Security Council special influence on the consensus-forging and decision-making processes within this body, as well as within the United Nations in general. The same applies to spe-

126

127

128

129

Cf. Jennings/ Watts, see note 56, 331 (§104): "Until the last two decades of the 19 century there was general agreement that membership of the international community necessarily bestowed so-called fundamental rights on states", Note 1: "these were chiefly enumerated as the rights of existence, of self-preservation, of equality, of independences, of territorial supremacy, of holding and acquiring territory, of intercourse, and of good name and reputation"; T.]. Lawrence, The Principles of International Law, 1925, 106 et seq.; d. P.H. Kooijmans, The Doctrine of Legal Equality of States, 1964, 53 et seq. Cf. article 4 of the Montevideo Convention on the Rights and Duties of States (1933), AJIL 28 (1934), Suppl. 75, d . also the former article III .l of the Statute of the Organization of African Unity, ILM 2 (1963), 766, or article 6 of the Charter of the Organization of American States. A/RES12625 (XXV) of 24 October 1970, the general principle quoted above serves as a foundation for the following rights, derived in the Resolution: "(a) States are juridically equal, (b) Each State enjoys the rights inherent in full sovereignty, (c) Each State has the duty to respect the personality of other States, (d) The territorial integrity and political independence of the State are inviolable, (e) Each State has the right freely to choose and develop its political, social, economic and cultural systems, (f) Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States". Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996,226 et seq. (263 et seq., para. 98-104).

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cial voting arrangements within the IMF.130 Many other examples could be listed in support of the assertion that there is a disparity between the de iure guarantee of state equality and the de facto inequality among them. Even the interpretation of this principle (set out in Article 2 (1) of the UN Charter) in expert analyses reflects the chasm between a codified ideal and its realistic/concrete application. Some international law experts distinguish between a factual and a legal plane, accordingly. Inequality may, in the views of one faction, be considered a social phenomenon which has an insignificant impact on the legal level, as it does not affect the equal treatment of states through the law.131 Another faction has pushed the purview of the principle of equality out of the legal domain, since equality among states cannot be realized.P! or because the existing inequalities represent exceptions supported by a consensus among states, and thus an indicator of the principle being rooted in customary law. 133 With regard to the question what kind of standards may be derived out of Article 2 (1) of the UN Charter, none of these options offers an explicit answer. Hence, it may be realistic to conclude that states are de iure equal, i.e. subject to relations of coordination without enjoying completely equal rights, but such a statement will not shed light on the question whether this condition complies with the normative contents

130 B. Kingsbury, "Sovereignty and Inequality", E]IL 9 (1998), 599 et seq. (610). 131 Cf. P. Fiore, Nouveau droit international Public, 1918 Vol. I, § 428, 374:"II nous semble que pour etre completement exact, on devrait dire que chaque Etat devrait avoir Ie droit d'etre I'egal des autres, independamment de son importance et de sa force. II y a loin entre ce desir vertueux exprime avec raison par les publicistes et la realite", Doehring adds the standpoint that equality was always pretence, and never a factual condition, see note 53, para.189. 132 J.L. Brierly, The Law ofNations, 1963, 132 et seq. 133 Cf. Cassese, see note 52, 90 et seq.: "Consequently, possible legal hindrances or disabilities may be the result of factual circumstances [...]. Alternatively, legal constraints, if any, are only valid if accepted, in full freedom, by the State concerned [.. .]"; Jennings! Watts, see note 56, 376-379 (§114); P. Cullet, "Differential Treatment in International Law: Towards a New Paradigm of Inter-state Relations", E]IL 10 (1999), 549 et seq. (553 et seq.); G. Schwarzenberger, "Equality and Discrimination in International Economic Law (I)", Yearbook of World Affairs 25 (1971), 163et seq.

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of Article 2 (1) - or whether, on the contrary, it represents a restraint of the equality principle in practice.P" Should one opt for the second standpoint and attribute the interpretation of the equality principle to the factual asymmetries among countries, then the bounds between the possible interpretations of the principle as a normative postulate and the constraints on actual state equality will be obscured.I" Therefore this approach provides a stark illustration of the fundamental dilemma concerning the principle of state equality: is the rule of the UN Charter based on a deductive imposition, as a result of general ideas linked to states' equality - or is it to be derived from concrete state practice?

Vattel entertained the view that the equality of states could not be enforced through a legislator, as at the domestic level. Therefore, state equality was to be founded on the practice of states alone.P" The inconsistent de facto conduct of states subsequently strengthened many authors in their belief that equality among states was neither feasible nor just (due to the differing requirements of each state). This view prevailed up to the beginning of the twentieth cencury.l-" Current international law is marked by having enshrined the principle of equality of states in the UN Charter. Consequently, the key distinctions to be made do not stem from the relativization of the normative content by practical conduct, but rather from the fact that states have included this principle in the UN Charter. The important issue therefore revolves around the states' concept of the principle as a legal rule. Which function do they ascribe to the inclusion of the principle of state equality into the UN Charter? Only after answering this question can attention be shifted to the purview of the principle, i.e. the manner in which the latter emerged out of state practice. The concrete conduct of states as such will determine to what extent the principle can be implemented. Both aspects combined will result in a principle of state

134

135

136

137

Cf. Verdross/ Simma, see note 66, 275 (§ 475), and K. Hailbronner, in: W. Graf Vitzthurn (ed.), Vo/kerrecht, Chapter III, items 91 et seq. E. Dickinson, "The Equality of States in International Law", 1920, 122, therefore Goebel opts for another approach, which bases his theory of equality on the philosophical ideals of equality and a state community, ibid ., 3 et seq., (79 et seq.). E. Vattel, Le Droit Des Gens ou Principes De La Loi Nature//e, 1758 (reprinted 1959), Vol. II, Chapter III, § 40. J. Lorimer, The Institutes of the Law of Nations, Vol. I, 1883, 170 et seq .; S. Amos, A Systematic View of the Science ofJurisprudence, 1872,235.

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equality, which can aid the development of international law through its regulatory function, on the one hand, and which can limit the utilization of defamatory designations of states on the other.

aa. The Equality of States as an Ideal The principle of state equality, enshrined in Article 2 (1) of the UN Charter, emphasizes the egalitarian status of states within the international legal order. This warranty is coupled with the recognition of states as subjects of international law.138 The Friendly-Relations Declaration of the UN General Assembly states that all countries possess the same rights and duties as equal members of the community of states regardless of the factual differences among them ("[T]hey have equal rights and duties and are equal members of the international community, notwithstanding differences [...]").139 This interpretation is mainly considered an "additional Charter" and an expression of customary law. As such it provides important insights into the scope of the principle, although it fails to explicitly outline the resulting duties affecting the states' implementation of the principle. Should the latter e.g. encompass both equality before the law and equality of capacity rights? A historical analysis of the debates surrounding the formulation of this principle during the San Francisco Conference reveals that several states insisted on a lexical "shell" allowing a maximalistic interpretation of equality. Some proposals went as far as outlining the eradication of factual and political inequality.P? The position forwarded to cornple-

138

139 140

Kingsbury, see note 130, 599, 603, Jennings/ Watts, see note 66, 339 et seq. (§115), in the first edition (1905) Oppenheim defined equality as follows: "In entering the Family of Nations a State comes as an equal to equals, it demands a certain consideration to be paid to its dignity, the retention of its independence, of its territorial and its personal supremacy [...] derived from their International Personality", Hailbronner, see note 134, Chapter III , item 91. A/RESI2625 (XXV) of 24 October 1970. Ecuador's proposal states that the juridical equality of sovereign states should be seen: "[...] as an expression of their identical law which governs their reciprocal relations and as a means for correcting and repairing any practical or political inequality which may occur between them", Text of Proposals for the Establishment of a General International Organization, UNCIO, Documents of the San Francisco Conference, Vol. 111,420, 421. The Turkish Government used the principle of sovereign equality to derive the proposal that the General Assembly should function as the supreme

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ment the Dumbarton Oaks Proposals was somewhat more restrictive, as it envisaged an organization with "juridically equal" members, which would enjoy certain rights equally. These rights were accorded to them as "inherent in their full sovereignry'U'" Proposals set out by the Governments of the United States, the United Kingdom, the Soviet Union and China at the earliest stage of discussions upheld the view (verbalized in the aims of Article 1 of the UN Charter) that the organization was to further friendly relations amongst states based on the principles "of equal rights and [the] self-determination of peoples".142 Article 2 thus codified the principle of "sovereign equality of all its members".143 The Netherlands maintained that there is a legal principle of "sovereign equality of peace-loving states," in spite of the existence of factual differences among countries, which had to be borne in mind.Iv' Following the deliberations on the complementary proposals to the Draft compiled at Dumbarton Oaks, the Rapporteur of Commission I summed up the states' positions as follows: "(1) Members are juridically equal, (2) all enjoy the rights inherent under sovereignty; and (3) they all should act in accordance with their duties under the Charter".145 The Subcommittee in charge of this subject-matter proposed to replace the formulation "juridically equal" with "sovereign equality". The interpretation of the latter was to be guided by the postulates: "(1) that states are juridically equal; (2) that they enjoy the rights inherent in their full sovereignty;

decision-maker as regards preserving the peace. UNCIO, see above, 480, 481, and Vol. IX, 274. Venezuela agreed with this position, Vol. IX, 274,

141 142

143 144 145

Cuba added its own Draft Declaration of Duties and Rights of Nations, in which equality is defined as follows: "All states are equal before the law, and each one has the same rights as any other which is a member of the International Community", UNCIO, Vol. III, 493, 497. New Uruguayan Proposals on the Dumbarton Oaks Proposals, UNCIO, Vol. III, 34, 35. Amendments proposed by the Governments of the United States, the United Kingdom, the Soviet Union, and China, 5 May 1945, UNCIO, Vol. III, 622. Ibid. 623. This proposal substituted the preceding formulation, which contained the reference to "peace-loving states." UNCIO, Vol. 1,230,249. Report of Committee 1 to Commission I, Documents of the San Francisco Conference, Vol. VI, 310 et seq.

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(3) that the personality of the state is respected, as well as its territorial integrity and political independence; (4) that the state should, under international order, comply faithfully with its international duties and obligations't.!" Committee Ill, tasked with outlining the basic principles of the Charter, eventually adopted a revised version, which contained the phrase "sovereign equality of all its members" in addition to the abovementioned axioms, thus accommodating the views of Subcommittee Ill/A. 147

Commission I subsequently adopted the same version.U'' after clarifying that the formulation "sovereign equality" was to be interpreted along the lines set out by Committee Ill. The Government of Peru had triggered this clarification by stating that, in its view, the Draft lacked outlines on the "personality of states". Such consultations, and the resolution of relevant issues, were conducive to the General Assembly's adoption of the draft-proposal containing the reference "sovereign equality" of 25 June 1945.149 The codification of this principle within the UN Charter thus bears testimony to the will of states to enshrine equality before the law as a legal postulate. In addition to this, the signatories were also concerned with guaranteeing equal rights to states on grounds of their sovereignty. Hence, equality before the law was complemented by the equality of capacity of rights, which emanates entitlements directly attributable to the sovereignty of states. In 1947 the issue of state equality, in particular the equality of capacity of rights, surged to the top of the agenda when the ILC produced a Draft on the Rights and Duties of States. Article 5 of this Declaration on the Rights and Duties of States stipulates the equality of all states before the law and with regard to the rights they enjoy - as supported by the statement that "[ejvery State has the right to equality in

146

147

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Report of the Rapporteur of Subcommittee 1/1/A to Committee III of Commission I , 1 June 1945, UNCIO, Vol. VI, 717, also cf. the discussion of Commission I, 15June 1945,UNCIO, Vol. VI, 65, 70. UNCIO, Appendix to Rapporteur's Report, Committee 1/1 on 9 June 1945, Vol. VI, 402, 404. Report of the Rapporteur of Commission I, 21 June 1945, UNCIO, Vol. VI, 229 et seq. UNCIO, Vol. I, 612, 631.

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law with every other State".150 In the opinion of Commission I, this formulation was to equal the notion of "sovereign equality" along the lines of the interpretation provided at the United Nations Conference of San Francisco.P' Had such an extensive concept as the "equality in law" been adopted, it would still have contained a limitation in the form of a reference to the Committee's interpretation.W

It, furthermore, has to be stressed that neither the Commission's interpretation nor the different governmental positions of the San Francisco Conference indicate that all states are to enjoy the same rights in every aspect. The formulations of the Draft Declaration Resolution on states' rights and duties was not to alter this situation. It therefore becomes clear that states are equal before the law and that they do enjoy the same capacity of rights, if those are rooted within their sovereignty, or if they are vital to the preservation of their sovereignty. Thus the principle of state equality contains only these (decisive) postulates. Despite these qualifications, the principle of state equality in the UN Charter meets the requirements publicized in texts prior to its codification. In those analyses the principle of (state) equality before the law is considered a fundamental element of a legal order, which is derived from the postulate on the rule of law. This quintessential component is also said to ensure equal legal protection.P' As far as the equal capacity to rights is concerned, analyses emphasize that their origin from material concepts of justice and their aiming at an exhaustive equality of opportunities for states both embody the idealistic dimension of the equality postulate: "Equality of capacity of rights is commonly regarded as a desideratum, as an ideal towards which the law should seek to develop, asDraft Declaration on the Rights and Duties of States; A/RES/178 (II) of 21 November 1947. The provision corresponds to article 6 of the Panamanian Draft. lSI Report of Committee 1 to Commission I, UNCIO, Vol. VI, 457. 152 I LCYB 1 (1949), 288: "this text was derived from Article 6 of the Panamanian draft. It expresses, in the view of the majority of the Commission, the meaning of the phrase 'sovereign equality' employed in Article 2 (1) of the Charter of the United Nations as interpreted at the San Francisco Conference, 1945". 153 Dickinson, see note 135, 3: "International Persons are equal before the law when they are equally protected in the enjoyment of their rights and equally compelled to fulfil their obligations". ISO

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This provided a basis for the contentious request that all states would have to be granted identical rights. 155 Such a request is to be distinguished from the demand that identical conduct entails identical evaluation and legal consequences (Rechtsfolgenidentitiit), which can also be traced back to the equality of opportunities. The thus derived equality in law refers to equal opportunities to generate and implement laws, i.e. equal bargaining power, which are ultimately to obliterate status asymmetries.P"

bb. Safeguarding the Legal Capacities ofStates Instances of discrimination generally imply that substantively equal issues (items, subjects) are being treated differently. Hence, every dissimilar treatment of sovereign states would have to be considered a violation of Article 2 (1) of the UN Charter, as the latter elevates all states to an equal footing. The ideal of egalitarianism underlying this provision is not being implemented in practice, however, neither at the intra-state nor the inter-state level. State practice reveals that not only asymmetrical treaties are being signed, but the "law-and-order" mission advanced by particularly influential states is being "accepted," i.e, not effectively disputed.P? In 154 Dickinson, see note 135,4 et seq. 155 G. Jellinek, System der subjektiven offentlichen Rechte, 1919,319, or see J. L. Brierly, The Outlook for International Law, 1945 (reprinted 1977), 30, 65 et seq.; also the Declaration on the Rights and Duties of States adopted by the American Institute of International Law 1916, article III: "Every nation is in law and before the law the equal of every other national belonging to the society of nations", AJIL 10 (1916), 125, Dickinson, see note 135,4 et seq. 156 Dickinson, see note 135, 4: "the equality of states in this sense means, not that all have the same rights, but that all are equally capable of acquiring rights, entering into transactions, and performing acts. When used in this significance, equality may be said to constitute the negation of status", J. Goebel, The Equality of States, 2 et seq.; Kooijmans, see note 126, 50 et seq.; also d . R. W. Cox, "Labor and Hegemony", International Organization 31 (1977),385 et seq. (423). 157 Cf. Dahm/ Delbriick/ Wolfrum, see note 55, 238, for a critical view on the NATO-intervention in Kosovo in 1999 without a UN-m andate, but on behalf of the "international community" see N. Krisch, "More Equal than

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contrast to this, it must be borne in mind that the above-mentioned positions of governments confirm that the concept of sovereign equality is not exclusively constituted by multifarious necessities and interests, exhibited by states throughout concrete interactions. They tend to view the principle as a manifestation of their (political) will, of their endeavour to materialize the ideal of equality via legal rules. The principle of sovereign equality does not, however, entail the obligation to actively engage in the eradication of inequality. Apart from this, the UN Charter also gives no suggestion of the view that the principle of sovereign equality secures absolutely identical rights to each state. In this context it must be mentioned that the dichotomy between equality before the law and equality in law is less clear than would appear at first sight. There is, after all, the possibility that inequality in law (lessened capacity of states to generate law or shape this process) is conducive to inequality before the law. Such possibilities become reality when factual disparities become enshrined in laws, i.e. when states with low political influence being excluded from the process of law-making, whereas they are subsequently confronted with new legal rules which they were not able to shape. This vicious cycle can be controlled through the principle of state equality, as the Dissenting Opinion of IC] judge Weeramantry illustrates. According to him: "[d]e facto inequalities always exist and will continue to exist so long as the world community is made up of sovereign States, which are necessarily unequal in size, strength, wealth and influence. But a great conceptual leap is involved in translating de facto inequality into inequality de jure. It is precisely such a leap that is made by those arguing, for example, that when the Protocols of the Geneva Convention did not pronounce on the prohibition of the use of nuclear weapons, there was an implicit recognition of the legality of their use by the nuclear powers".158 Derogatory designations of states could represent a breach of Article 2 (1) of the UN Charter, whenever they transfer factual inequalities into the Rest? Hierarchy, Equality and US Predominance in International Law", in: M. Byers/ G. Nolte (eds), United States Hegemony and the Foundations of International Law, 2003, quoted from the pre-publication version, 9 et seq. 158 Legality of the Threat or Use of Nuclear Weapons, IC] Reports 1996,226 et seq., Dissenting Opinion]udge Weeramantry, 429, 527.

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the legal domain. The attribution of negative features to states could eventually be conducive to their suffering a loss of trust and credibility.159 This would embod y the direct transmission of political power asymmetries to the legal plane, since a decrease of political power will invariably lessen its weight, and therefore its legal capacity. This loss would be suffered in the area of sovereignty-based rights, which are contained in the postulate of equality in law and whose decrease could endanger a state's equality before the law. Hence, the principle of the sovereign equality of states can develop an optimum of regulatory capacity if the opportunity of sovereign states to generate international laws is kept as equal as possible for all, in spite of power disparities among them. The convergence of states on the purview of this principle underlines that equality is to be secured to states with regard to their sovereignty-based rights. The principle consequently guarantees participatory rights to all states in the process of legislation and the process of claiming/implementing their rights, while prohibiting the "legal oligarchy" of a few powerful states. c. Discussion The legal consequences of United States proVISiOns on international economic exchanges and state immunity affect the core of sovereignty : the political independence of states and the principle of state immunity. According to the latter in particular, it is still inadmissible (apart from a few exceptions) for states to extend their jurisdiction over other states. Against this backdrop it also has to be considered whether the coercive impact of economic sanctions has not already transgressed the bounds of legality in some cases. Clear boundaries emerge on the grounds of the sovereignty postulate, as regards the extra-territorial jurisdiction of states included in the list of terrorist states. The requirements for the exception to immunity during investigations likewise transgress the rules established by state practice so far. This transgression consists, largely, in the fact that the inclusion of states into the list alone annuls the immunity of these

159

On the meaning of trust in international relations, see, IC] Reports 1974, 252 et seq. (268 para. 46): "One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith . Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential ".

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countries, thus violating the prima facie rule stipulating that states per se enjoy immunity. This is complemented by the loss of immunity as regards future litigations, a damage which cannot establish a credible link between claims which might be lodged against this country and the reasons prompting the DoS to enter this state into its list. A third dimen sion of complexity is added through the realization that most litigations (made possible by the lifting of immunity) revolve around acta iure imperii of the states listed as sponsors of terrorism. State practice so far has not supplied any support to the hypothesis that such acts lose their protection if they embody grave breaches of international law, i.e. just on the basis of the gravity of the violation. In addition to this, the immunity of a state cannot be annulled for civil claims, even in cases of violations of ius cogens, since a recognized rule to this purpose has not been established so far. Hence the exceptions to immunity do not adhere to a restrictive concept of immunity. It also has to be noted that the annulment of a state's immunity in the United States is not limited to cases where United States nationals suffered injury - it is merely important that the plaintiff be a United States citizen. As far as the substantive scope of exceptions is concerned, it is not restricted to acts of torture (as stipulated by the UN Anti-Torture Convention), but also includes extra judicial killings, the sabotaging of aircraft, hostage-taking and assistance rendered in the execution of these crimes . The extension of jurisdiction over other states cannot, moreover, be justified via arts 4 and 5 of the Anti-Torture Convention, as these provisions apply to the criminal prosecution of perpetrators, but not to the instigation of civil claims. All this indicates that there are no instances of state practice in support of a universal jurisdiction in cases of torture - regardless of the types of immunity, the types of litigation or the existence of a link to one's own nationals being affected - outside the provisions of the FSIA.160 Such a discrimination of states reaches its limits the moment it strives to annul the sovereignty-based rights of a state, since these cannot be curtailed without the consent of the targeted country. The exception of immunity with regard to designated "state sponsors of terrorism" entails the different treatment of these states. Such an unequal treatment, however, is only admissible within the range of binding international law, unless a state has agreed to a more intrusive action. Provisions justifying the annulment of immunity sub-

160 On the existence of an implicitforfeiture of immunity, in caseof a violation of ius cogens see the Dissenting Opinion of Judge Wald in Princz v. Federal Republicof Germany, 26 F. 3d (1994), 1166, 1182.

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stantially surpass binding rules of extra-territorial jurisdiction. As such, even the consent of states cannot establish their legality. This means that the extra-te rritorial jurisdiction over "state sponsors of terrorism" transcends the bounds set by the internationally binding principle of the sovereign equality of states. Such a transgression loses little of its weight when another element of coercion is introduced, in the shape of courts according punitive damages. This form of legal consequence is not so much aiming to compensate plaintiffs for inflicted damages, as aiming to penalize the states targeted . Thus, punitive damages are reduced to plain punishment, in spite of the inadmissibility of imposing pecuniary compensation on a state (according to binding regulations), as compulsory execution remains a legal option. Both the latter and the prerequisite annihilation of immunity can be considered instruments of coercion. This is supported by the fact that provisions within the FSIA permit the seizing of assets appropriated for acta iure imperii - thus enlarging the scope of rules of this law contravening current state practice. It is hard to deny that the overall impact of such measures affects the political independence of the states targeted, in spite of there being a few cases where coercive effects would be considered negligible. All the considerations outlined so far indicate that the gravity of coercive intrusions lies in the consequences attached to the designation of countries as "state sponsors of terrorism" according to United States domestic laws. A slightly different conclusion can be reached if the amplification of coercion contained in defamatory references is analyzed. Should the element of coercion exert unm itigated pressure on targeted states, then their verbal devaluation (and not resulting legal consequences) will be labelled as "dictatorial interference". Hence, attention would have to be paid to the coercive potential of such denotations as "rogue states", "axis of evil" or "state sponsors of terrorism". Governmental statements in particular abound in pejorative designations of states (e.g. "rogue states" or "axis of evil"), whose derogatory impact is quite explicit. Documents enacting concrete legal provisions, however, tend to resort to the less devaluating "state sponsors of terrorism". The coercive impact in such instances is not adequately mirrored by this lexical reference, as the legal consequences could be initiated under the cover of non-derogatory formulations. Any reference would merely be required to ensure the identification of the states in question. Hence, if the primary goal consisted of applying coercion, the sending state would not have to resort to pejorative references at all: the mere identification of states and their subsequent subjection to sane-

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tions, according to domestic laws, would suffice. The devaluation of targeted states, intrinsic to depreciating designations, should not playa decisive role in cases where coercion is mainly achieved by the legal consequences attached to a state's classification. If the principal aim were simply to exert considerable pressure upon targeted states, the legal consequences would accomplish this task in their own right, without creating the means to amplify this by employing devaluating formulations. The inclusion of the latter in government statements, however, still cannot be considered dictatorial interference, as long as they are not utilized intentionally to foster regime change. Any other finding would have to be based on a discrete right to state dignity. Since the threshold delimiting inadmissible interference is set at a relatively high level, moreover, the usage of pejorative designations cannot constitute intervention, in spite of considerable economic pressure being applied. This subject-matter should not be confused with the issue whether the continuous stimatization of states has an impact on the political status - and subsequently the legal equality - of states. Political inequality can affect the legal level, as the political standing of states will influence the process of drafting laws. In addition to this, the principle of the sovereign equality of states is incompatible with the premeditated creation of state inequality via stigmatization, generated in the political realm, due to its limiting impact on the capacities of states to generate and implement laws. This is to be ascribed to the direct influence on the sovereign rights of states of such formulations. The results of all these asymmetries in political standing not only includes the lessened impact of states during international law-making, but also the pronounced influence of a few powerful states throughout this process.P!

III. Hegemonic Law in the International Community? The following sections are not concerned with the designation of states as hegemonies, or with the assessment of power (a)symmetries. They merely concentrate on the question whether the utilization of derogatory designations at the international level indicates hegemonic relations, as the normative consequences of this process are not only felt by

161

Cf. Kingsbury, see note 130, 599, 611.

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the targeted states, but also by the international community as a legal order.

1. Concepts of Hegemony

Initially the notion of hegemony described a particular political constellation during the era of the Greek polis. It denoted the supremacy of one city-state with respect to other counterparts, incorporated into an alliance of independent units. 162 Hegemony was accorded to states which, in addition, to their power supremacy, enjoyed considerable trust and respect, on the basis of their advantages and achievements. Such states were entrusted with the management of common affairs. As far as the usage of this notion in modern diplomatic discourse is concerned, it can be traced back to the Congress of Vienna, where the explicit differentiation between great powers and small states acquired prorninence.P! Apart from the thus established political connotation, the concept of hegemony also gained influence as regards the codification of inter-state relations. Hence the Treaty for Peace and Friendship between the People's Republic of China and Japan (12 August 1987) contains an anti-hegemony clause.l'" The purview of hegemony is consequently based on the minimum threshold of a negative freedom enshrined in international treaties.

162

163

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Cf. o. Kallscheuer, "Hegemonic", in: D. Nohlen (ed.), Lexikon der Politik, Vol. I, 1995, 174; P. Noack (ed.), Grundbegriffe der politikwissenschaftlichen Fachsprache, 1976, 99 et seq. The British Prime Minister Palmerston described the decision-making process within the "Concert of Europe" in 1848 as follows: "the smaller Sovereigns, Princes, and States, had no representatives in the deciding congress, and no voice in the decisions by which their future destiny was determined. They were all obliged to yield to overruling power, and to submit to decisions which were the result, as the case might be, of justice or of expediency, of generosity or of partiality, of regard to the welfare of nations, or of concessions to personal solicitations" , quoted by Dickinson, see note 135, 295. Treaty of Peace and Friendship between the People's Republic of China and Japan of 12 August 1987, article II: "The Contracting Parties declare that neither of them should seek hegemony in the Asia-Pacific region or in any other region and that each is opposed to efforts by any other country or group of countries to establish such hegemony", ILM 17 (1978),1054.

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Scientific debates revolve around different forms of hegemony. These provide the foundation for an analysis of prerequisites and maintenance modes of hegemonic forms in the ensuing sections, and for a subsequent attempt to arrive at a definition uniting the advantages of each approach. a. The Historical Perspective

aa. Differentiating between Leadership and Predominance The cornerstones for the differentiation between leadership and predominance were laid in the twentieth century, by the Italian intellectual and leading communist activist Antonio Gramsci (1891-1973). In his Letters From Prison (1929-1935) Gramsci attempted to provide a detailed answer to issues hampering national unification and communist alliances. His notion of ideological hegemony is marked by the connotation of the legitimate leadership, based on a consensus between the ruling and the ruled classes. Only homogeneous cultures and values, the argument runs, can maintain this class structure, not brute force. 165 Thus, hegemony embodies an effective form of predominance, based on the conviction of all that the existing order is satisfactory, or at least the best which can be expected. In contrast to this ideology-infused variant, Heinrich Triepel developed the notion of consensus-based hegemony in his Hegemony - a Book on Leading States, by combining sociological, historical and legal methods.Pf By examining leadership relations in polities at the interpersonal, societal and state level, Triepel came to the conclusion that lead ership is constrained power, marked by the" energy of the will, but not by the mere will to rule".167 This dichotomy between leadership and predominance characterizes Triepel's concept of hegemony at the inter-state level: the relational configuration within hegemony is deter-

165 A. Gramsci, Sozialismus und Kultur, 1916 and Gefangnishefte, (1929-1935), on Gramsci's impact on an area of critical legal studies, d. D.E. Litowitz, "Gramsci, Hegemony and the Law", Brigham Young University Law Rev iew 2000,515 et seq. 166 H. Triepel, Die Hegemonie. Ein Buch von [idrrenden Staaten, 1943. 167 Triepel, see above, 40, 59 et seq., 128, 131; d. also U.M. Gassner, Heinrich Triepel, Leben und Werk, 1999, 333 et seq.

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mined by two complementary aspects.P" The will of a state to lead has to be complemented by the will to follow in the case of the other states.l''? Hegemony is not a "one-state show," but a continuous, reciprocal exchange between the hegemonic state and the "disciple states, " i.e. it relies on their voluntary acceptance of leadership. This embodies the integration function of hegemony, as an instrument for the pursuit of common goals, under the aegis of a hegemony.V? These traits enabled Triepel to develop his thoughts on the directions and modi of hegemonic politics (i.e. the means employed by a leading state).' ?' The latter include the creation of a genuine sense of leadership acceptance, the influencing of domestic laws, the politicaladministrative system and foreign-policy makers. Apart from this, the hegemonic leader maintains these modes through various channels, ranging from warning and advice (as weak forms of interference) to concrete interventions (as the strongest form).172 This concept of Triepel has subsequently been utilized by Wilhelm Grewe in his Powerplay in World Politics. In his opinion, hegemony is a "primordial phenomenon in international relations, "173 i.e. the ability of a state to exercise decisive influence on ideological currents and international developments over a period of time. The effects of hegemony 168 Triepel, see note 166, 41: "[ ...] Fiihrung ist als diejenige Macht zu bezeichnen, die ein starkes MaB von Energie des Willens, aber nicht den Willen zur Herrschaft enthalt, Fiihrung ist [...] gebandigte Macht"; d. also the argumentation on sovereignty and hegemony on page 141, and later 224. 169 It becomes clear at this point that Triepel recognizes an aspect of hegemony linked to political psychology: "Auch das Yolk denkt, will, ist Affekten zuganglich. Nicht nur Menschen, auch Volker und Staaten sind imstande, Sympathien und Antipathien zu hegen, zu lieben und zu hassen, Furcht und Vertrauen, zu hegen, Treue zu iiben und Verrat zu begehen, zu wiinschen, zu hoffen, zu befehlen und zu gehorchen", d . Triepel, see note 166, 10. "Es ist daher nicht nur eine der iiblichen, durch das Bedurfnis nach plastischer Darstellung hervorgerufenen popularen Analogien, sondern es ist wissenschaftlich zulassig und geboten, bei der Behandlung von Willensbeziehungen zwischen verschiedenen Gruppen, insbesondere zwischen verschiedenen Staaten, auch individualpsychologische Begriffe, wie etwa Machtstreben, Nachahmung und dergleichen zu verwenden", 11. 170 Triepel, see note 166, 134 et seq. 171 Triepel, see note 166,222 et seq. 172 Triepel, see note 166,224-239. 173 W.G. Grewe, Spiel der Krafte in der Weltpolitik, 1970, 116.

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are reflected in advantages in military and economic resources, in political power and in the potential to shape international law - when compared to the" disciple states. "174 Such an extensive influence can only be exerted by a state which has been moulded into a stable national unit. 175 The sequencing of international law in Grewe's The Epochs of International Law (1944) adheres to the succession of different hegemonic

states.!" In addition to this, Ludwig Dehio concluded that hegemony and the balance of power embody two extreme types on a continuum, which could accommodate the entire diachronic evolution of the state system, from Charles V to World War II. 177 Wolfgang Windelband similarly resorted to a periodization based on power structures in his history of international law. 178 In contrast to Triepel, however, Grewe does not analyze hegemony embedded into a variety of equal social relations; he rather extracted similarities between his concept of hegemony and the historical succession of power configurations among states. Grewe also distinguishes between hegemony and predominance. According to him, hegemony is marked by the fact that power is not exercised exclusively in a selfinterested manner. Only when hegemonic rule is reduced to abuse as self-interested politics can one speak of predominance, whose rejection is justified. Whereas Triepel requires voluntary adherence as a prerequisite for hegemony, Grewe reverts this assertion into the question when hegemony may be rejected without censure. In Grewe's opinion voluntary adherence is not a constitutive trait of hegemony, and its rejection must be based on its genuine assessment in concrete cases, such as when hegemony develops into predominance.V?

George Schwarzenberger develops a concept of hegemony in his Power Politics based on the premises that the state system is organized along aristocratic lines and subordinated to the power positions of 174 175 176

177 178 179

WG. Grewe, Epochen der VOlkerrechtsgeschichte, 1984,679 et seq. (691). Cf. Grewe, see above, 165,326 et seq. Grewe, see note 174; and Epochs of International Law, translated and complemented by M. Byers, 2000, d. also B. Fassbender, "Stories of War and Peace on Writing the History in the "Third Reich" and after", E]IL 13 (2002),479 et seq. L. Dehio, Gleichgewicht oder Hegemonie, 1997,28 et seq. W Windelband, Die auswiirtige Politik der Groflmachte in der Neuzeit, 1922. Grewe, see note 173,117.

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states.P? A powerful state differs from the remaining sovereign states

through political, economic and military resources, as well as through its capacity to utilize these resources in order to preserve its power.P" As a result, Schwarzenberger categorizes states (on the grounds of their power) into world powers (states possessing a supremacy of power), middle powers and small states. A world power must, furthermore, be marked by several traits upon its ascension, such as: a large enough territory, a certain population density, military capabilities and economic strength.P? These and other features (advantages) will have to be preserved in all policy areas. This striving for universal i.e. absolute power by one single state, with the aspiration to replace the international community, is justified by the need for security.V' A fundamentally different approach for defining hegemony is enshrined in the international law principle of "large areas" (Grossraumprinzip) by Carl Schmitt. He does not delve into the social or historical manifestations of power disparities, but rather demands "territorial i.e. spatial order" for world powers. This notion has been developed in The International Law's Large-Area Order and the Prohibition of Intervention for Extraneous Forces,184 but a complete outline becomes visible only with the publication of The 'Nomos' of the Earth in the International Law of the 'Ius Publicum Europeeum'P> In the opinion of Schmitt the dichotomy between leadership and predominance is not of primary importance, in contrast to the assertion that the exercise of hegemony is centred on a certain space, the latter being an expression of "natural boundaries". This equips Schmitt's concept with a direction, which is fundamentally different to that of Triepel's or Grewe's concepts.186 The linkage of hegemony to space is contrasted with the prin-

180

181 182 183 184

185

G. Schwarzenberger, Power Politics, first edition 1942, second edition 1951, 113 et seq., 127. Schwarzenberger, see above, 121. Schwarzenberger, see note 180, 118 et seq. Schwarzenberger, see note 180, 188. C. Schmitt, Volkerrechtliche Groflraumordnung mit Interuentionsuerbot fur raumfremde Miichte, 1939. C. Schmitt, Der Nomos der Erde, 1988, on Schmitt's being influenced by Bilfinger and Triepel d. M. Schmoeckel, Die Groflraumtheorie, 1994, 117120.

186

Fassbender points out the overlapping terminology, used by Grewe as borrowings from Schmitt, see note 176,479,503.

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ciple of "de-territorialization" .1 87 Both principles pronounced by Schmitt originate from his view of large areas, as a concrete order along biologically deterministic lines (summed up in the term volkisch, which equates the nation with a superior group of human species) in international law, thus revealing the influence of national socialism upon the author. 188 The adherence of Schmitt to th inking in terms of concrete orders, which dates back to the institutional jurisprudence of the Weimar Republic era and feeds on the abstract, general terms introduced by Larenz, is conducive to Schmitt's designating his principle as a concrete order. In his opinion, large areas are more than just inflated small territories. The qualitative difference between both concepts lies in the transcending of a void notion of state territory towards a focus on the Reich ('empire'). It is the latter, and not states, which are the principal subjects of international law according to Schmitt. In this context the Reich will affect state territory, without the total convergence of both notions being obligatory.l"? According to Schmitt, the first successful model of a large-area order had been established by the Monroe-Doctrine, since it is based on the "independence of all American states, on the absence of colonization and on the non-intervention of non-United States forces in this area". This "quasi-legal" (or at least "semi-legal") character of the Monroe-

187 188

189

Schmitt, see note 185, 12. See M. Stolle is, Geschichte des offe ntlichen Rechts in Deutschland, Band 3, 1999, 389-392. Thus, it can be questioned, whether Schmitt's understanding of hegemony can be useful in this context. On the one side, one cannot exclude, that a con cept can bring th e discussion forward, as long as it contains general thoughts apart from being "volkisch". On the other side, it has to be taken into account, that Schmitt based his "volkerrechtliche GroBraumordnung" mainly on the idea of "volkische" legal institutes. Thus, this con cept of "GroBraumordnung" can easily be seen as an derivation of his thinking, which had to be int erpreted in the light of the "volkisch" thoughts. Notwithstanding, this concept wa s based on an universal approach, insofar as he did not mean to restrict its use for one nation. Thus, the fact that this concept was open easily for nationalsocialism int erpretation and therefore particularly dangerous, does not necessarily mean that th e concept as such cannot be ab stracted from its concrete adaptation. Only insofar as absta ction is po ssible, his concept serves as a further example of hegemonic thinking and its dangerous implications for a community of states in general. Schmitt, see note 184,67 et seq .

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Doctrine, as well as the Lebensraum (living space) it created, were to provide a foundation for general legal criteria, and subsequently a rationale for the creation of other spaces like it. 190 Such an interpretation of the Monroe-Doctrine provides actors with a mandate to create an order through law (Rechtsgestaltung), as well as underlining its influence.'?'

bb. Legitimized Hegemony?

Triepel also raises the question whether it is possible for factual hegemonies to be legitimized or restrained by legal provisions, i.e. if there are regulations in general international law which acknowledge or contravene hegemony. These would adhere to the principles of the balance of power and the legal equality among states. The first principle revolves around the prohibition for world powers to attain a supremacy in power resources. The second principle relies on the claim to legal equality in spite of power asymmetries. If, as Triepel outlined, hegemony requires voluntary acceptance, then the principle of state equality will limit the leadership of one single state. The power of a state, fortified by the acceptance of "disciple states," must not increase to the extent where the "totality of the remaining states will not be able to oppose the hegemonic state and its followers». 192 In the end Triepel comes to the conclusion that there are no provisions in general internationallaw which would obstruct the establishment of a genuine hegemony.193 The principle of balance of power among states, however, may ameliorate the hegemony of a single state.'?" Within the framework of Schwarzenberger's thoughts there is almost no room to consider legal impediments to hegemony, since he considered international law a system mainly defined - and determined - by power.l'" Schwarzenberger is therefore searching for ethi190 Cf. also Schmoeckel, see note 185,64-67. 191 On the decisionist aspect of Schmitt see Schmitt, Uber die drei Arten des rechtswissenschaftlichen Denkens, second edition 1993, 21-24. 192 Triepel, see note 166, 212 et seq. 193 Triepel, see note 166, 217 et seq. 194 Triepel, see note 166, 213. 195 Schwarzenberger, see note 180,206, and 224: "International law is so subservient to power politics and it flourishes best where it does not interfere with the international struggle for power", "The State or States which, owing to the aggressive formulation of the objectives of their foreign poli-

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cal criteria, which would provide a basis for the assessment and the justification of hegemony, despite the fact that he doubts that lofty ethical criteria carry sufficient weight to regulate international society. State practice implies that inter-state ethics will only be upheld if they can be utilized to further state interests.l?" Ethical rationales will mainly be employed when political justifications are conducive to a possible decline of reputation.l'" In such cases states would have to comply with the standards they have set, at least in order to keep up appearances. Otherwise, they might be forced into compliance by public opinion.l'" Upon considering all aspects, however, the relevance of ethical principles in international law could neither be described as mono-causal nor as decisive, but they still do succeed in committing states to respecting (if not implementing) them - and they do have an impact on the expansion and development of (international) law.199 b. The Current Debate

Modern analyses are shedding light on various aspects of hegemony. The following sections will single out three aspects, in order to complement the established historical approaches: the first is concerned with the legitimacy of hegemony; the second with its contribution to the maintenance of stability in the international system and the third with the prerequisites for the development of hegemony-based internationallaw. aa. The Legitimacy of the Benign Hegemon

The function of morality, which had been touched upon by Schwarzenberger in his work, comprises the focus of Lea Brilmayer's American Hegemony - Political Morality in a One Superpower World (1994). By

196 197

198 199

cies or to the distrust of their intentions on the part of other States, tend to enforce the law of the lowest level in international society usually belong to the international oligarchy or are on the point of gate-crashing into this select circle ",148 et seq. Schwarzenberger, see note 180, 225. Schwarzenberger, see note 180, 227: "The ideological use of international morality reaches its highe st pitch when public opinion has to be prepared for war or to be sustained in a prolonged struggle". Schwarzenberger, see note 180,227. Schwarzenberger, see note 180,230.

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resorting to the United States as an example, she provides a moral justification for the predominance of one state. 200 In her opinion hegemony denotes the relations among one dominant and several subordinated states - regardless of the fact that there may be states outside this network. 101 Thus, hegemony is not necessarily global, but rather a relative concentration of power "in the hands" of one state. 102 It becomes clear that Brilmayer considers power disparities among states an axiom, while state equality is reduced to legal fiction. 203 She centers her analysis on the structural comparability of governance and the exercise of hegemonic power, and not on the impact of a hegemon upon (legal) structures of the international system.P" Her argumentation commences with a critique of realistic principles, only to develop into a liberal theory of international hegemony, revolving around legitimacy criteria for the predominance of a state. 205 The latter are based on benchmarks which could also apply to the exercise of power within a state. This indicates that Brilmayer views hegemony as a primitive form of governance.P" Both the constitution of predominance, and the discrete instances in which hegemonic power is exercised, require a legitimate foundation. Hegemony generated on the grounds of voluntary consensus alone would still lack a continuing

200

101

202 203

104

lOS

206

L. Brilmayer, American Hegemony, Political Morality in a One Superpower World, 1994. Brilmayer, see above, 16: "Hegemony below, will refer to the relationship

between a dominate state and its subordinates, even if there are states beyond the hegemon's effective reach". Brilmayer,see note 200, 16 et seq. Brilmayer, see note 200, 22: "Governance roles may be created or filled by formally equal participants. In both international and domestic affairs, the political leader plays a dual role, simultaneously a member of society and its head". Brilmayer, see note 200, 20 et seq. Brilmayer, see note 200, 4 et seq.; d . also L. Brilmayer, "Transforming International Politics: An American Role for the Post Cold War World", University of Cincinnati Law Review 64 (1995), 119 et seq. (123). Brilmayer, see note 200, 19: "the hegemon should be evaluated, in other words, as the world political leader that it is, despite its formal differences from domestic governance structure's it has the same sorts of responsibilities to subordinate states that a domestic government with comparable capabilities would have over those within its power".

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moral justification, as single (concrete) acts could be illegitimate, i.e. deficient of an ethical rationale.P" In this context Bri/mayer differentiates between three forms of consensus: contemporaneous consent, ex-ante consent and hypothetical consent. 208 The third form in particular provides leeway for the actions of states, since the latter remain legitimate as long as a "rational (actor) state" has agreed with the steps taken by the "agent state". Thus, the provision of positively evaluated goods, such as stability, order and security by a hegemon will be accorded legitimacy. This applies even to cases where the process of provision has not been supported by a factual consensus at any point of time, since it can be assumed that a "rational (actor) state" would have given its consent. All this implies that a morally justified "global" hegemon would not only pursue its own interests, but also the well-being of the world. Hegemonic power could, furthermore, be exercised in a rather democratic fashion - e.g. via the influencing of multilateral organizations. One major instance justifying the existence of a "benign hegemon," which is frequently being cited and debated, is the United States intervention in Kosovo in 1999.209 Bri/mayer, therefore, does not object to the utilization of political, economic and military coercion, as long as the underlying rationale

207

208

209

See C.A.J. Coady for a critique, which raises the question if these ethical criteria command any power of definition, in: "Evaluating Hegemony", N. Y. U. J. Int'l L. & Pol. 27 (1995), 933 et seq. (935). Contemporaneous consent denotes the consensus at the time of execution of a concrete action, whereas the ex-ante variant precedes action and underpins general norms of behaviour, which favour the action to be taken. Hypothetical consent is materialized when a rational-actor state would have been obliged to agree to the action, Brilmayer, see note 200,66 et seq. M.J. Maeson, "Justification for the NATO air campaign in Kosovo", ASIL Proceedings 94 (2000), 301; S.D. Murphy, "The Intervention in Kosovo: A Law-Shaping Incident?", ASIL Proceedings 94 (2000), 302 et seq.; or d . J. Lobel, "Benign Hegemony?", Chicago j. Int'l L. 1 (2000), 19 et seq. (27 et seq.); G . Nolte, "Kosovo und Konstitutionalisierung: Zur humanitaren Intervention der NATO-Staaten", ZaoRV 59 (1999), 941 et seq. (954 et seq.); B. Simma, "NATO, the UN and the Use of Force", E]I L 10 (1999), 1 et seq. (14 et seq.), on combatting a clear and present danger through a benign hegemon in the post Cold-War era d . W. Kristol! R. Kagan, The National Interest, 2000, 57 (58 et seq.).

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does not exclusively consist of the interests of the hegemon. The hegemonic state is entitled to sanction the misconduct of other states.s'? Brilmayer ultimately comes to the conclusion that a group of liberal democracies, led by a hegemon, recognizes the right to intervention based on its ethical motives for action. Hence, as long as there is no "global" hegemon to enforce an international law of subordinated liberal democracies. One has to differentiate between the international law with the group of liberal democracies led by a justified hegemon and the inter-state law as general, emerging within the intercourse of all states. The latter would govern the relations of states outside the hegemon's scope.l!' bb. Effective Stability

While Brilmayer justifies the predominance of a state by the ethical posture of a hegemon (as long as the latter pursues hypothetically agreed aims), other authors find a rationale in necessities imposed by current international relations. The predominance of a state is considered temporarily inevitable, in order to secure stability within the international system. Such a view is most explicitly expressed in the conviction that the current hegemony of the United States provides the proper protection against a breakdown of the entire international order. 212 In order to prevent this, the United States is obliged to react adequately to the threats posed by "rogue states" and the axis of evil. This is all the more desirable as the relative military weakness of European countries contributes to their incorrect assessment of these dangers. 213 Still other viewpoints define hegemony as a result of regional geographic condi210

211

212

213

Coady, see note 207, 940 et seq.: "If we are told in reply that this form involves the Superpower's exercising a dominant governance role akin to the leadership of a domestic government, but using diplomacy, bribery, sanctions, and violence to achieve what it takes to be good outcomes for people who are not formally its citizens and subjects, then I think we are entitled to ask whether it is really such a good idea, and, if not, whether the attempt to improve on it by, as it were, building upon it, might not be a mistake". For a critical review of the implications of this liberal theory, see J.E . Alvarez, "Do Liberal States Behave Better? A Critique of Slaughter's Liberal Theory", EJIL 12 (2001) 183 et seq. (185 et seq.), W Kristol/ R. Kagan, "Toward a Neo-Reaganite Foreign Policy", Foreign Aff 75 (1996), 18 et seq. (23); R. W Tucker, "Alone with others", Foreign AI! 78 (1999), 15 et seq. R. Kagan, Paradise and Power, 2003,30 et seq.

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tions and the spheres of influence generated by them.F'" Hence the argument that power disparities are needed to maintain an international order encompassing all states not only occupied a prominent position in theoretical constructs on political relations during the Cold-War era, but it also constitutes the backbone of a theory on hegemonic stability, whose application includes present times. 215 The theory of hegemonic stability, however, aims above the delineation of the status quo among states; it strives towards answering the questions on how the well-being of all states might be best advanced and how the relations between international predominance and international cooperation might be defined most precisely. Keohane and Nye, for example, attempt to answer these queries by denoting hegemony as a situation where one state is sufficiently powerful and willing to uphold the essential rules regulating international relations.Ps According to Nye, the conduct of a hegemon is characterized by the implementation of its national interests via the international system it leads. The resulting economic prosperity of the hegemon (as one output) could then benefit all the subordinate states as welJ.217 Hegemony therefore requires the definition of these national interests by the hegemon, as only concrete aims can be pursued suecessfully.218 Within the framework of this theory, the growth of international cooperations is proportionately related to the power advantage of the hegemon, i.e. "[tjhe theory of hegemonic stability predicts that the more one such power dominates the world political economy, the more cooperative will interstate relations be".219 Hence hegemony em-

214 P. O'Sullivan, Geopolitics, 1986,5 et seq.; ].M. Picard, "International Law of Fisheries and Small Developing States: a Call for the Recognition of Regional Hegemony", Tex. Int'l L. j. 31 (1996),317 et seq. (339). 215 H. Bull, The Anarchical Society. A Study of Order in World Politics, 1977, 205-229.

216 R.O. Keohanel J. Nye, Power and Interdependence: World Politics in Transition, 2001, 44. 217 Keohane/ Nye, see above, 39; d. also S. Huntington, "The Lonely Superpower", Foreign Aff 78 (1999), 35 et seq. (39): "[T]he most powerful actors had an interest in maintaining the system." 218 D.P. Calleo, "The US Post-Imperial Presidency and Transatlantic Relations", International Spectator 1 (2000), 69 et seq. (74): "Henry Kissinger used to complain that he never knew what telephone number to call to discover what was Europe's policy. It would be interesting to know what the telephone number might be nowadays in Washington". 219 R.O. Keohane, After Hegemony, Cooperation and Discord in the World Political Economy, 1984,34.

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bodies the solution to the needs of all states; it has a stabilizing impact and contributes to the well-being of all.220

Keohane agrees with the starting point of the theory of hegemonic stability, i.e. the necessity of a hegemon to maintain int ernational order. 221 But he doubts that there is a causal connection between hegemony and international cooperation, and he warns against considering economic power the decisive element of hegemony. In his opinion, a negative trade balance does not necessarily challenge the power supremacy of a state. 222 For him hegemony is to be defined as a temporary condition, conducive to the establishment of efficient institutions, which must subsequently evaporate - in order to ensure the participation of all states. From this point, international cooperation no longer depends on the existence of a hegemon, but becomes self-enforcing.V' These views are supported by Krasner, who (as a representative of the regime theory) emphasizes that existing regimes may neutralize power asymmetries and power shifts.224 Nye criticizes the theory of hegemonic stability as a construct overly dependent on its definition of hegemony: "If hegemony is redefined as the ability and willingness of a single state to make and enforce rules, furthermore, the claim that hegemony is sufficient for cooperation becomes virtually tautological".225 Thus Nye complements this theory with the core ideas of political economy, in order to identify the driving forces for hegemonic action - and in order to outline given power constellations. Such a step is based on the observation that a state which does not only elevate its own interests to "national interests," but also has empathy for others, faces fewer difficulties in setting international 220 ]. Nye, Bound to lead. The changing Nature of American Power, 1990, 9 et seq.; R. Gilpin, War and Change in World Politics, 144, or see Calleo, see note 218, 79: "The combination of excessive power and governmental indiscipline is not good for the US, the Westor the world in general. The US needs to be contained - not by a new enemy,but by an old friend". 221 Keohane,see note 219, 31. 222 Keohane, see note 219, 33, also d. S.D. Krasner, "United States Commercial and Monetary Policy: Unravelling the Paradox of External Strength and International Weakness", in: P.]. Katzenstein (ed.), Between Power and Plenty: Foreign Economic Policies of Advanced Industrial States, 1978, 51 (68 et seq.). 223 Keohane, see note 219,32 . 224 S.D. Krasner, "Structural Causes and Consequences of regimes as intervening variables", in: id. (ed .), International Regimes, 1983,355 (357). 225 Keohane, see note 219,38 et seq.

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rules. 226 Thus it appears only logical to develop a concept of hegemony tracing the structure of the hegemon's calculations. Keohane consequently resorts to defining hegemony as the will and ability to lead,227 in order to outline the conditions under which a powerful state invests resources into creating rules and institutions. cc. Hegemonic International Law

Several authors not only detect traces of hegemony in international law; but also include the ability to influence the creation of international law into their definitions of hegemony. Hence, one cannot speak of a hegemonic constellation within the international system unless a power shift among great powers establishes one country as primus inter pares. Such a position will then enable it to achieve its aims in the domains of economy, politics, military might, diplomacy and culture - including the codification of adequate rules in these areas.228 This is the fashion in which superpowers have shaped international law in the past, prior to the moment when it became binding for them and for less influential states.P? Thus, hegemony enables the dominant state to affect internationallaw-making, i.e. it embodies the prerequisite for hegemony-based international law. Apart from this, (strengthened) hegemony represents a result of such laws, since they "petrify" the power disparities among states. It must be borne in mind that international law alone cannot alter the prerequisites for hegemony, although the latter affects a state's orientation with respect to international law and vice versa. Only an international order based on human rights could restrain hegemony.P'' The positions presented so far, share the assumption that internationallaw is influenced by hegemony, without delving into the particularities of this process. Several authors have attempted to outline this procedure, by tracing how hegemonic leadership affects the stage of legal aim formulation and by identifying various channels of influence. 226

227 228

229

230

Keohane, see note 219, 131. Keohane, see note 219,39. 1. Wallerstein, The Polititics of the World Economy: The States, the Movements, and the Civilizations, 1984, 38 R. Gilpin, War and Change in World Politics, 1981, 29 et seq. P.W. Kahn, "American Hegemony and International Law. Speaking Law to Power: Popular Sovereignty, Human Rights and the New International Order", Chicago]. Int'l L. 1 (2000), 1 et seq. (16 et seq.) .

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This is essentially conducive to the substantiating of a "hegemonic international law".2Jl A very general definition of the main goal of hegemony in international law would thus be the adaptation of the latter to the objectives of the hegemon.P'' This raises the spectres of increasingly obscure international laws, of the increasingly incoherent conduct of both the hegemon and its subordinated states and of the increasing loss of legitimacy as regards international Iaw-making.P'' The shift of international law to a hegemony-based international law, i.e. the undermining of the principles of state equality and state sovereignty, will generate demands for the annulment of the principle of non-intervention (as regards the domestic affairs of states) .234 This goal can be achieved in three ways: First, states may establish interventionary practices outside the bounds of existing international law.235 Second, the hegemon may refuse to comply with international treaties or regimes which prune its power, or enable "smaller" states to form coalitions and resist the will of the hegernon.Ps In such instances the latter can abstain from the signing and ratifying of a multilateral treaty, and accept merely those provisions as customary law which serve its interests. Or the hegemon can declare certain treaties to be an expression of the political will, but not a legally binding agreement. In addition to this, it can utilize existing international regimes and organizations to fortify its power,237 or withdraw from them altogether.P" The cancellation option also applies to international treaties. Then other states may

231 D. Vagts, "Hegemonic International Law", A]IL 95 (2001), 843 et seq. 232 Vagts, see above, 843. 233 G. Nolte, "The Single Superpower and the Future of International Law", ASIL Proceedings 94 (2000), 65. 234 Vagts, see note 231, 845. 235 Vagts, see note 231,846: "Indeed, even without the United Nations' blessings we have projected military force into the areas outside Latin America such as Sudan, Afghanistan, Libya, and the former Yugoslavia. A true hegemon would have reverted to the practice of overt interventions and would have demonstrated its unapologetic and implacable will by not cancellingair cover for the Bay of Pibs invasion. Whateverchanges that would require international law would have been made". 236 J. Joffe, "Who's afraid of Mr. Big?", National Interest of 1 July 2001, 43 (48); Vagts, see note 231,843,846. 237 On the use of this terminology see Vagts, see note 231,846 et seq. 238 R.W Cox, "Labor and Hegemony", International Organization 31 (1977), 385 et seq. (388).

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be excluded from international institutions-" or treaties by their verbal categorization.c'? As a third path to inter-state interference hegemons can alter the general purview of a possible customary-law principle via the adequately modified implementation of the latter. Thus, "[a]bstention by a hegemonic power does seem to be enough to keep it from being general".241 The chances of non-hegemonic states escaping compliance as well are not helped by such tactics. Powerless states, unlike hegemons, are frequently strong-armed in compliance with treaty provisions, which had previously been accepted and elevated to customary law. In contrast to this, a powerful state can violate the latter and claim that its own conduct constitutes new international law.242 This decisive amount of influence on international law-making becomes conspicuous in cases where legal developments (hypothetically) hinge upon the reaction of a single state.243 Additional light was shed on this issue by models based on power asymmetries during the multifarious creation of customary law. Whereas one such model focuses on inter-state cooperation, another recently concentrates on "rogue states". The latter is founded on the assumption that there are fewer civilized states, which are less trustworthy as regards contractual compliance. As such, these "spoilers" create incentives for other states to follow suit. 244

2. Law Creation through Leadership and the Role of Reaction Hegemony represents a concept of power politics which - utilized within the community of states - affects interactions and consensusforging within the latter. Hence stem its legal implications. It is an obvious fact that hegemony influences international law; no dissenting 239 Cf. Huntington, seenote 217,38. 240 Cox, see note 238, 412 et seq. The author quotes the United States withdrawal from the ILO as an example. 241 Vagts, see note 231,847. 242 Vagts, seenote 231, 847. 243 T.]. Farer, "Beyond the Charter Frame: Unilateralism or Condominium", AjIL 96 (2002), 359 et seq. (360), "The normative consequences of 9/11 are likely to depend on the what and how of United States action". 244 ].L. Goldsmith/ E.A. Posner, "A theory of Customary International Law", U. Chi. L. R. 66 (1999),1113 et seq. (1136 et seq .).

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opinions are to be found in the literature on this issue. Such an influence on international law certainly does not contravene the political quintessence of hegemony. Political influence is exerted to affect the manner in which political will is generated in other states, and ultimately any international legal order based on the will and actions of its "Member States" will also be affected. It is more difficult, however, to ascribe decisive causal weight to such interference within the process of international law-making, as intra-state political will is always a result of several factors. Apart from this, the scope of hegemony is also dependent on the reactions of targeted states. What is certain, nevertheless, is the fact that hegemony rests on the ability of the hegemon to affect the perceptions and visions of other states. This could be interpreted as proof in support of Triepel's dominance-free notion of hegemony. States would actually subordinate themselves voluntarily, due to a change of the convictions they entertained prior to this time, without coercion. Such a process requires the hegemon to abstain from the latter, of course. It outlines requirements which the hegemon must meet in order to ensure compliance. This also applies to the nature and clarity of its goals, and to the means employed to achieve these. The means will almost certainly include the shaping of international law-making, within an order embodying an "international society". If the order, however, corresponds to an "international community," this kind of coercion-free hegemony will become problematic in cases where a consensus-based principle may fall prey to the agendasetting privilege of a hegemonic state. Another aspect of importance is the non-static, dynamic nature of hegemony, as the latter is a relational phenomenon (generated via interactions among states). This contributes to the difficulty of drawing a clear distinction between instruments creating and instruments maintaining hegemony. It also becomes less easy to determine when hegemony commences. The least complicated categorization of instruments of hegemony focuses on their efficiency, i.e. their ability to affect the will of other states (when employed to this purpose). On these grounds Triepel has included a considerable number of instruments in his "starter-kit" for hegemons: from government statements and advice directed at other states (i.e. legally non-binding declarations, which nevertheless have an impact on international law as verbal assertions of hegemonic leadership),245 via actions within international organizations, the (withholding 245 See above, III. 1. a. aa.

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of) signature of international agreements, the shaping of customary international law, to the self-serving interpretation of international law proper. 246 This range of instruments not only illustrates the manifold manifestations of hegemony - it also underlines its varying levels of intensity. It, furthermore, becomes clear that the ethical justification of hegemony is not a monolithic argumentation at all. Certain types of "advice" or "recommendations" offered by the hegemon may be justified, whereas more concrete and coercive interventions may not only be unethical, but downright illegal. The requirement for an ethical rationale, however, may be relativized if hegemony is understood (in the sense of Keohane's definition) as a temporary state of affairs, established in order to secure stability. However, it has to be emphasized that such a concentration on devising justifications for hegemony neglects the question whether hegemonic leadership alters the ethical principles of the dominant state. Does power supremacy undermine the morality which subsequently determines action? Any apology of hegemony runs the risk of ignoring that its effects on an inter-state community may well exceed the immediate aims of the hegemon. This is due to the tendency of hegemony to affect the legal level and perpetuate the monopoly of the hegemon over international law-making. Such a development contravenes the principle of the sovereign equality of states, which does not represent a mere legal fiction, but an evolutionary goal of any international order whose aspirations include cooperation as well as stability. This may not inoculate such a system against change in the sense of power shifts, but it specifies hegemony as a power-based relation of leadership in which the hegemon is attempting to affect international law by increasing his own competencies, while avoiding the alienation of the "disciple-states".

3. The Stigmatization of States as a Concept of Leadership a. Defining the Community Interests The designations "rogue state" and "state sponsor of terrorism" are always used in the context of national security. They are employed to label states posing the most acute threats since the end of the Cold War.

246

Cf. Morgenthau, see note 56, 258.

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With regard to the United States they have always revolved around states' support of international terrorism, the proliferation of WMD and their carriers (long-range or inter-continental ballistic missiles). In its annual reports on the Global Patterns of Terrorism the United States DoS has accordingly stressed the importance of counter-strategies and measures, which the United States and the international community should implement against these "rogue states" and "state sponsors of terrorism". The utilization of these derogatory formulations also made it clear that the United States Government attributed negative traits to the designated states. The establishment of a dichotomy between the latter and the international community emphasized the exclusion of branded countries from the "family" of states. The linkage of the "rogue state" label to the status of a "public enemy" of the United States became even more explicit through the publication of the new National Security Strategy in September 2002, when even pre-emptive military measures were no longer ruled out. This paved the way for the attainment of a goal, which was implicitly formulated in the mid-nineties of the preceding century. Apart from all this, the (non-lutilization of these designations may shed light on the conduct of other states that has to be expected in their interaction with the state utilizing stimatization. Thus, the use of designations supports to predict other states reactions. The United States withdrawal from the ABM-Treaty can serve as an illustrative example in support of this hypothesis, as Washington justified its action with the threats posed by "rogue states" and the extraordinary circumstances they helped to create. Russia accepted, this rationale, in spite of the fact that opinions on the actual threat posed by "rogue states" diverge with respect to United States assessments. A withdrawal from the Treaty would have been possible without resorting to this designation, but the United States was fully aware of the fact that any other country employing the same terminology would not contest this kind of rationale; it would rather "accept" the threat assessment. It was, furthermore, possible for the United States to prevent an excessive deterioration of its political reputation in the counterpart-state (Russia) and the Member States of the international community in general. The security-linkage of the defamatory labels embodies the manifestation of a clearly-defined goal: the identification of states demanding a different security strategy from all other countries, as the former do not strive towards the establishment and maintenance of world peace and international security. This implicit threat attribution, however, is

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not only based on the "functional deviation" of designated states, but on the intentional exclusion of such states from the community of democratic countries. This premeditated isolation is founded on the fact that each social order can only remain unchallenged if it advances the internalization of agreed upon values. Hence "civilized" states will consider the achievement of a certain "level of civilization" a decisive accession criterion.

It remains questionable, nevertheless, if there can be certain states within the international community which would be vested with the unilateral power to enforce the fulfillment of the accession criteria (i.e. values). The potential for contestation is amplified by the fact that the internalization of values has to rest on a procedure securing the respect for the values themselves; their being respected, i.e, the essence of a value will actually demand "compatible" procedures. Thus a democracy brought about by coercion would hardly live up to the ideal notion. b. Stigmatization as a Legal Argument The legal acts of the United States contain the reference "state sponsors of terrorism", but not the designation "rogue states". The latter is still being employed within international relations, in support of legal argumentation. This is also illustrated by the United States withdrawal from the ABM-Treaty and the new National Security Strategy. The United States Government announced the cancellation of the ABM-Treaty on 13 December 200I,247 Pursuant to article XI, the withdrawal was to become effective after six months,248 but only if one of the Contracting Parties could prove that "extraordinary events related to the subject matter of this treaty have jeopardized its supreme inter-

247 ABM-Treaty Fact Sheet, Statement by the Press Secretary, Announcement of Withdrawalfrom the ABM Treaty, 13 December 2001. 248 Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems of 26 May 1972, UNTS Vol. 944 No. 13446, «Art. XV: (1) This Treaty shall be of unlimited duration. (2) Each Party shall, in exercising its national Sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of this treaty have jeopardized its supreme interest. It shall give notice of its decision to the other Party [during the] six month prior to withdrawal from the Treaty. Such notice shall include a statement of the extraordinary events notifying Party regards as having jeopardizedits supreme interests".

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ests". The United States argued, among other things, that "rogue states" had brought about a fundamental change, as regards its nationalsecurity interests. The statement announcing the withdrawal literally said that: "[r[he circumstances affecting United States national security have changed fundamentally since the signing of the ABM-Treaty in 1972. The attacks against the United States homeland on September 11 vividly demonstrate that the threats we face today are far different from those of the Cold War. [... J Today, our security environment is profoundly different. Today, the United States and Russia face new threats to their security. Principal among these threats are weapons of mass destruction and their delivery means yielded by terrorists and "rogue states"."249 Consequently a new threat assessment (centring on "rogue states") required different counter-strategies, and these could no longer be subordinated to provisions drafted in 1972.250 Prior to this, the United States had attempted to effect a mutual withdrawal from the Treaty. This had been accompanied by warnings that Russia had better not stall United States missile tests (waiting in the pipeline) by dragging on negotiations on the withdrawal.P! In the early stages of this process Russia had threatened to equip its ballistic missiles with multiple warheads in case of a unilateral United States withdrawal.W Russia justified this threat by declaring it would no longer feel obliged to honour the (never ratified) START-II Treaty, which prohibited the equipment of re-entry vehicles with multiple warheads.P!

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251 252 253

ABM Fact Sheet, Announcement of Withdrawal from ABM Treaty, 13 December 2001, see also Response to Russian Statement of United States ABM Treaty Withdrawal, Statement by the Press Secretary, 13 December 2001, . Wolfowitz/ Kadish, Testimony Before the House Armed Services Committee on Ballistic Missile Defense, 19 July 2001, -chtrp./zwww.defenselink. mil>, accessed on 14 August 2001; d. also International Herald Tribune of 4 May 2001, "China Warns "Weak" Bush over Shield Plan;" Myers/ Glanz, "Pentagon set to accelerate Development of limited Missile Defense, ibid., 4; and "rogue states" of America, Why Bush Needs the Bad Guys", The Guardian of 12 March 200l. Keesing's Records of World Events 47 (2001),44429. Archiv der Gegenwart 71 (2001),44825. On the debate also cf. the articles, "Strategisches Denken", Frankfurter Allgemeine Zeitung, 16 June 2001, 11, which warns of an excessive rnilitari-

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This snapshot of the negotiations indicates that the formulation "rogue states" was used as an argument to annul the validity of the ABM-Treaty. Apart from this, the designation is often used in attempts to convince other states of the severe threat posed by "rogue states" and nuclear WMD, and the need for effective and timely counter-measures, as: "We must be prepared to stop "rogue states" and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends; [...] We must deter and defend against the threat before it is unleashed; [...] given the goals of "rogue states" and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past. [...] We cannot let our enemies first. [...] But deterrence is less likely to work against leaders of "rogue states" more willing to take risks, [...] The overlap between states that sponsor terror and those that pursue WMD compels us to action. [...]".254 The scope of this new threat and the resulting urgency for action ultimately require the consideration of pre-emptive action, as the following excerpt reveals: "To for[e]stall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively. [...] The United States will not use force in all cases to pre-empt emerging threats, nor should nations use pre-emption as a pretext for aggression. Yet in an age where the enemies of civilization openly and actively seek the world's most destructive technologies, the United States cannot remain idle while dangers gather".255 These pre-emptive options require, of course, adequate measures and structures to increase security and readiness. Otherwise the ultimate goal of any such option (the elimination of threats to the United States and its allies) may not be achieved. It, furthermore, must to be stressed that each step of this sequence has to conform to the requirement that: "[tjhe reasons for our actions will be clear, the force measured, and the cause just".256 zation of Bush's foreign policy. On the negotiations between Bush, Powell, Rumsfeld and the European Union, see "Schutzschild oder Miihlstein?", Frankfurter Allgemeine Zeitung, 11 June 2001, 16. 254 National Strategy for HomelandSecurity, 14 et seq. 255 Ibid., 15. 256 Ibid., 16.

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Apart from this, several members of the House of Representatives had sponsored the Joint Transatlantic Security and NATO Enhancement Resolution of 2002, which emphasized the relevance of NATO for the fight against the threat posed by "rogue states". Article 12 (2) of the Resolution, which had been lodged with the United States Congress on 27 June 2000, stipulates that: "NATO must act to address new post-Cold War risks emerging from outside the treaty which are in the interests of preserving peace and security in the Euro-Atlantic area, including risks from "rogue states" and non-state actors possessing nuclear, biological, or chemical weapons and their means of delivery [...]".257 A few months prior to this, President Bush had welded North Korea, Iran and Iraq into an "axis of evil" during his State-of-the-Union Address on 29 January 2002,258 while stressing that the war against terrorism would not be limited to these states. The United States Government actually underscored that the United States would do more than "deal" with those protecting, supporting and harbouring terrorists - it would engage in continuous, pro-active warfare against international terrorism. This means that all states had to consider their positions on this "battlefield," following 11 September 2001. Hence: "America is determined to prevent the next wave of terror. States that sponsor terror and pursue WMD must stop. States that renounce terror and abandon WMD can become part of our effort. But those that do not can expect to become our targets".259

It becomes increasingly clear that pejorative designations are part of an argumentation, which strives to convince foreign governments of the danger emanated by the labeled states. The new National Security Strategy (September 2002) only amplifies this finding, as "rogue states" and their inherent threat potential, i.e, aspirations to acquire (or the possession of) WMD, and the support of international terrorism, have

257 107 Congress, 2nd Session, H.R.E 468 of 27 June 2002, lodged by House Representatives Gallegly, Bereuterm, Lanots and Cox. 258 The President's State of the Union Address of 29 January 2002, . 259 Cf. also, International Herald Tribune, 8 May 2002, "Cuba Makes Germs for Use in War, United States Says", or The Guardian Unlimited, 7 May 2002, "War on Terror May Extend to Cuba".

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to be countered prior to its crossing the line from potential to concrete capacities being utilized.P?

It cannot be confirmed with certainty that the adoption of these designations by other states indicates their sharing the United States' convictions. An argument in favour of this supposition could be that a state adopting this terminology (e.g. Russia upon the cancellation of the ABM-Treaty) is also convinced of the threats posed by "rogue states". Such a view, however, comes too close to the standpoint of the United States. One of the many purposes attached to such a transfer is more likely a threat perception equal to that of the United States or, if this is not attainable, other states should tolerate United States security measures, either due to the logically consistent and transparent premises on which they rest, or because there may not be any credible alternatives dealing with a threat which cannot be discarded entirely. All in all, it can be said that the United States is resorting to the usage of "rogue states" in order to convince other states of the correctness of their identification of dangerous countries. This is, after all, the rationale for a special United States security strategy being employed with regard to such threats. Apart from this, the denotation "rogue states" is also utilized to create a legal framework for the United States National Security Strategy, or to alter the existing legal framework affecting the United States (such as the cancellation of the ABM-Treaty). The formulation is used to emphasize that there are countries which are fundamentally different, and hence entitled to a different kind of treatment. Thus, at the legal level, the formulation is being employed as a rationale for the fact that United States reactions to this kind of danger may not be restrained by certain legal provisions. c. The International Response to the Classification of "rogue states"

Relations among states can only be considered an expression of leadership if the reactions of non-hegemonic states signal acceptance of this leadership. Reactions to a designation like a "rogue state" already indicate that the level of acceptance varies. Hence many of the states, which have appropriated this formulation may stress the fact that it is not their own invention. A country which does so implicitly is the United Kingdom, since the British Government stopped short of adopting the" axis

260

The National Security Strategy of the United States of America, September 2002, 14-16.

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of evil" in addition to "rogue state" - opting for "major states of concern" instead. Other countries which use "rogue state" mainly for states listed as sponsors of terrorism by the United States include Israel, the Ukraine, Botswana and Sierra Leone. It has to be emphasized, nevertheless, that Israeli usage stands out for placing the modifier rogue under quotation marks. This does not entail that Israel opposes the isolation of designated states, which the United States Government intends to achieve by wielding this "weapon." Then, there are states like Afghanistan, Egypt, Ethiopia, India and Pakistan, which use the formulation "rogue states" for other countries than those listed by the United States Government. This does not denote a complete decontextualization, however, India, for example, has been demanding that Pakistan be included in the DoSlist. Still other states, like France , Russia and China mark the designation "rogue state" as part of the United States security strategy, and not a product of domestically generated parlance. These states also frequently voice disagreement with the United States strategy towards "rogue states". Germany highlights its different lexical approach in a similar context, by not adopting the designation - while recognizing that it exists as a label for countries occupying a particular position in United States security policy. Berlin abstains from voicing explicit criticism of this practice. These "routines" of all states were only shaken up in case of the introduction of the "axis of evil" - as can be demonstrated by the reaction of France. If one remains at the lexical level, it can be said that pejorative designations for states do not muster enough support to substantiate a leadership relation. Such a (superficial) analysis would obliterate the distinction between linguistic denotations as a manifestation of hegemony and their validity as notions of international customary law. The latter semantic aspect, should it be embraced, would require the usage of the designations in conformity to that of the United States Government. Such a prerequisite, however, would obscure the fact that the hegemon is attempting to influence the will of other states prior to the formalized development of international law. This implies that the benchmarks for measuring the acceptance of hegemony have to be lowered to the level where acceptance is present, i.e. where non-hegemonic states do not criticize the usage of stigmatizing denotations. This may include cases where states adopt the latter, while underscoring their foreign origin (i.e. their embeddedness in the United States security strategy) and as-

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cribing different or less (legal) weight to them. Another dimension complementing this issue lies in the fact that the usage of statusdesignations (as part of a hegemon's national security policy) does not necessarily demand universal application in order to be effective. It suffices that such formulations are recognized at the international level, upon discussing the threat potential of certain states. The benchmark will eventually be met if countries not only adopt a terminology to signal a lack of criticism, but rather if they use it in spite of divergent opinions on the acuteness of a threat and the quality of countermeasures to be taken. Against this kind of backdrop the usage of statusdesignations acquires particular prominence, up to a point where it influences the officials of even those states which do not share the assessment implied by the designations.P! A different insight into the (non-)existence of a hegemonic configuration is obtained when several states explicitly criticize the use of a derogatory denotation, as has been the case with the "axis of evil" (in contrast to "rogue states" and "state sponsors of terrorism"): no other state adopted the formulation. According to a merely pragmatic/lexical analysis, the conclusion would be that leadership acceptance has been withheld in this case. The usage of "rogue states" and "state sponsor of terrorism" contravene the finding above; their adoption by other states (even while qualifying them as part of the United States security strategy) may be conducive to positioning designated states in the spotlight of the security policies of the adopting countries, even via renouncing the United States threat assessment. This illustrates that pejorative formulations invariably influence the creation of the political will of other countries rather than the sending state. The reference" axis of evil" has done so, too, in a direction divergent from the aims of the hegemonic state. Hence it cannot be considered a manifestation of hegemony, since the latter requires the acceptance by non-hegemonic states. 261

This mechanism is described in a different context by M. Lazarus-Black! A. Hirsch, "Performance and Paradox: Exploring Law's Rule in Hegemony and Resistance", in: id. (eds), Contested States, 1994, 1 (10): "Although some people seek inclusion in legal processes for specific ends, others 'get included' in the law quite implicitly through the legalities that hegemonically organize their lives. In both cases, people regularly appropriate the terms, constructs, and procedures of law in formulating opposition. For example, colonial subjects protested their subordination through domestic documents which incorporated, often inaccurately, the language of colonial law".

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I~

The Creation of Second-Rate Legal Status in International Law? The United States utilized its influence to stigmatize states to which it ascribed a considerable threat potential, and to influence the behaviour of third countries towards this group. These measures represent a manifestation of hegemony, since the unilateral classification of states is to expand the scope and range of actions by providing a legal rationale for it. Within current debates on security the evolution of a second-rate legal status can be traced on the grounds of the new National Security Strategy of the United States and its attempts to create new categories of threats endangering a state. The National Security Strategy, for instance, justifies the application of military coercion to "rogue states" (as they pose an acute threat) even outside binding legal rules. This implies that the "rogue states" cannot claim the full protection of their sovereignty through the prohibition to employ violence in inter-state relations. Consequently, the legal status of targeted states would change into a new category, which isolates them from all other states, thus challenging the principle of sovereign equality. The war against Iraq in 2003, however, illustrates that so far the international community has not accepted a reduction for justification for military intervention as contained in the National Security Strategy. The listing of countries as "state sponsors of terrorism" also begs the question of how much of an impact this unilateral identification and punishment process can have on international efforts to combat terrorIsm.

1. Pre-emptive Self-Defence against "rogue states" a. The New National Security Strategy President Bush has repeatedly stressed the acute threat posed by "rogue states" , his State-of-the-Union Address of February 2002 being a particularly explicit example of this. This danger is to be countered by the new National Security Strategy (September 2002) and its broadened and deepened focus on "rogue states". The Strategy seems to consolidate a "paradigm shift," which

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had been sporadically implied in previous government statements.P? This policy shift will not stop short of preventive military measures: "F or centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. [...] We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries. [...] The United States has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security. The greater the threat, the greater the risk of inaction - and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack".263 This contravenes Article 2 (4) of the UN Charter, which prohibits states to threaten or employ violence in inter-state relations, with the aim to affect the territorial integrity and political independence of another state or to violate any other goal of the United Nations. In addition to this, the IC] has explicitly outlined the purview of this provision in its rulings in the Nicaragua Case. 264 According to the Court, Article 2 (4) embodies the benchmark for the admissibility of inter-state military violence. 265 The UN Charter recognizes two exceptions to the prohibi262 M. Weller, "The Changing Environment for Forcible Responses to Nontraditional Threats", ASIL Proceedings 92 (1998),177 et seq. (184 et seq.), on changes in Un ited States foreign policy after 11 September 2001 also W.R. Mead, Special Providence, American Foreign Policy and how it changed the World, 2002, 56 et seq., 79 (306 et seq.); Nye, see note 220, who proposes a "strategy based on Global Public Goods," which would rest on the following six issues, 147: "(1.) Maintain the balance of power in important regions, (2.) Promote an open international economy, (3.) preserve international commons, (4.) Maintain international rules and institutions, (5.) Assist economic development, (6.) Act as convenor of coalitions and mediator of disputes", see also his interview for the Frankfurter Allgemeine Zeitung, 23 April 2003, 5: "Notwendig ist eine Diskussion tiber das Volkerrecht", zum Verhaltnis zwischen Unilateralismus und Multilateralismus. 263 See note 260, section V, 15. 264 Case Concerning Military and Paramilitary Activities in and against Nicaragua ICJ Reports 1986, 14 et seq. (100 et seq. paras 190-192); or ILCYB 1966-11,247, for a reference to the ILC Comment on article 50 of the Draft on treaty law. 265 Case Concerning Military and Paramilitary Activities in and against Nicaragua, see above, 102, para. 193: "The general rule prohibiting force allows for certain exceptions", also d. Jenningsl Watts, see note 66,8, (§ 2).

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tion: one being the right to self-defence (Article 51) and the other the use of violence authorized by the UN Security Council (Chapter VII). The United States National Security Strategy outlines a pre-emptive right to self-defence against "rogue states", while failing to delineate whether counter-measures against "rogue states" could be based on a resolution by the UN Security Council, just as it fails to delve into military interventions founded on a violation of resolutions, or the activation of a mandate contained in past resolutions.t'" 267 The National Security Strategy conveys the impression that it does not attempt to push back the boundaries set by existing or future resolutions. The notion of "rogue states" is being employed exclusively to justify self-defence against the threat these states pose. Thus, the designation can only be employed as an instrument of hegemony within existing laws on self-defence. The validity of the right to self-defence against an armed attack has been enshrined in Article 51 of the UN Charter. 268 Another explicit rule on the prerequisites for self-defence dates back to 1841. The then incumbent United States Secretary of State Daniel Webster said in connection with the Caroline Case that: "[i]t will be for the Government to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberatiori'V''? The IC} confirmed the validity of the criteria of "necessity" and "proportionality" - contained in Webster's formulation - during its deliberations on the Nicaragua Case in 1986. 270 On the grounds of the definition of aggres-

266

267

268

269

270

The air force operations of 2 August 2001 in Northern Iraq were denoted by President Bush as "fully in accordance with established allied war plans," Keesing's Records of World Events 47 (2001), 44320. Cf. the International Herald Tribune, of 11 October 2002, 4 and 8, also d. the Press Statement on the signing of the "Iraq Resolution" of 16 October 2001, at , accessed on 17 October 2002. Case Concerning Military and Paramilitary Activities in and against Nicaragua, see note 264. Cf. D. Webster's correspondence on 24 April 1841, printed in: M. Dixon/ R. McCorquodale, Cases and Materials on International Law, 2000 (562), also d. Shaw, see note 84,787-791. Case Concerning Military and Paramilitary Activities in and against Nicaragua 1986, 14 et seq. (103 para. 194), d. also Legality of the Threat or Use of Nuclear Weapons, Ie] Reports 1996, 226 et seq. (245 para. 41). For a detailed account of the standing of the right of self-defence in legal provi-

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sion by the UN General Assembly, the ICJ clarified that not every violation of Article 2 (4) of the UN Charter, but only an armed attack justified self-defence."! For an assault to qualify as an "armed attack" the assailant does not necessarily have to be a state, despite the fact that such a constellation underlies Article 51 of the UN Charter.P? Within its ruling on the Nicaragua Case, the IC] had come to the conclusion that even the deployment of armed bands or groups into another country, which has been conducted "by or on behalf of a state,"273 may provide a cause for self-defence.I" according to the Assembly's definition. Following the adoption of S/RES/1368 (2001) of 12 September 2001, i.e. the "inherent right of self-defence" mentioned in its Preamble, there has been an increase in those who focus on the impact of an attack (the damage and the harm caused) in order to determine if it constitutes an armed attack, or equals its weight. 275 The operative section of Resolution 1368, however, refers to the assaults as "terrorist attacks" - not armed attacks. Hence this Resolution cannot answer the question at

sions on peace-keeping and peace-enforcement, see: N. Krisch, Selbstuerteidigung und kollektive Sicherheit, 2001. 271 Case Concerning Military and Paramilitary Activities in and against Nicaragua, 14 et seq., (103 para. 195). 272 Shaw, see note 84, 789. 273 A/RES/3314 (XXIX) of 14 December 1974, Annex, article 3 lit. (g). 274 Case Concerning Military and Paramilitary Activities in and against Nicaragua, see note 264, "The Court sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces", on the attribution of private acts of violence see the various constellations proposed by C. Kref], according to the level of state involvement, Gewaltverbot und Selbstverteidigungsrecht nach der Satzung der Vereinten Nationen bei staatlicber Verwicklung in Gewaltakte Privater, 1995, 129 et seq. 275 C. Walter, "Zur volkerrechtlichen Beurteilung der Reaktion der USA auf die Terroranschlage auf New York und Washington", (not yet published) 4, 5. For a different opinion see C. Stahn, "International Law at a Crossroads? The Impact of September 11", ZaoRV 62 (2002), 183 et seq. (214), who interprets the Resolutions 1368 (2001) and 1373 (2001) as having clearly subsumed terrorist acts among armed attacks in the sense of Article 51 of the UN Charter.

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which point a terrorist attack meets the "benchmarks" implied in Article 51 UN Charter. The NATO-Council has been more explicit in its actions, as it decided to evoke article 5 of the Washington Treaty (1949) on 12 September 2001, should it be proven that the attacks were conducted by outof-area perpetrators - which was substantiated by 2 October 2001. 276 Five days later the United States commenced Operation Enduring Freedom, while evoking Article 51 UN Charter as a rationale. Although the assailant, therefore, does not has to be a state, the armed attack serving as a casus belli must be attributable to the state against which measures of self-defence are initiated. 277 In order to prevent an escalation of violence, Article 51 of the UN Charter provides protection for both the assailant and the defender. But these mechanisms are based on the assumption that self-defence has been triggered by a concrete armed attack. Article 51 does neither contain a rationale for self-defence when no attack has occurred, nor does it explicitly limit self-defence to cases of ongoing armed attacks. The article also fails to set out a "statute of limitation" after whose expiry selfdefence is no longer acceptable. In contrast to this, the United States National Security Strategy attempts to justify the need for pre-emptive measures against "rogue states", due to their unpredictability. Another reason lies in the assessment that Cold-War-type deterrence will not work in such cases, since governments of "rogue states" are less risk-averse.V" Hence the criteria on proving an "imminent threat" (in absence of a concrete armed at276

277

278

Doc. S/946 of 7 October 2002; Keesing's Records of World Events 47 (2001), 44391; d . the resolutions empowering the President to undertake measures against those responsible for the attacks, Pub.L. 107-40, Section 1 and 2 of 18 September 2001, see also D. Abramowitz, "The President, the Congress, and the Use of Force: Legal and Political Considerations in Authorizing Use of Force against International Terrorism," Harv. Int'l L. j. 43 (2002), 71 et seq. (74 et seq.). New benchmarks for the attributability of terrorist acts by private actors have been developed by C. Tietje/ K. Nowrot, "Volkerrechtliche Aspekte militarischer MaBnahmen gegen den internationalen Terrorismus", Neue Zeitschrift fur Wehrrecht 44 (2002), 1 et seq., these authors modify the essential criterion of effective control, thus, each state action, which is obviously executed in support of terrorism and enables private actors to launch terrorist attacks, entails that the state will be held accountable for, if these attacks should meet the criteria of Article 51. See note 260, 13, 15.

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tack), as stipulated by current international law, can no longer be considered valid. The solution is "[...][to] adapt the concept of imminent threat to the capabilities and objectives of today's adversaries'V" Another aspect influencing this stance is the assumption that "rogue states" produce and possess WMD, which could be passed on to terrorist organizations. The rationale supporting the use of pre-emptive measures rests on three pillars: (1) the unpredictability of "rogue states" (making an attack at any time a likely possibility), (2) their continuous support of international terrorism and (3) their aspirations to acquire WMD.280 The question if and when a state may resort to pre-emptive defence is a hotly debated issue. Differing weight is attached to different state positions (interests) in military conflicts. On the one hand, the option of self-defence (according to Article 51) is emphasized as regards the attacked state, or the state facing an "imminent threat," as the latter leaves no time for the country to wait until it has been attacked.F" On the other hand, it is stressed that pre-emptive self-defence is at best an exception to the "right to self-defence" set out by Article 51. The latter, then, is likewise an exception - this time to Article 2 (4) of the UN Charter. Thus, pre-emptive self-defence is not a right of the same rank as the right to self-defence; it can merely be accorded under specific conditions.W Following the terrorist attacks of 11 September 2001, a

Ibid., 15. 280 Ibid., 14. 281 For a thorough account on the defence of state interests without an imminent threat, see D.W: Bowett, Self-Defence in International Law, 1958, 118 et seq.; also 1. Brownlie, International Law and the Use of Force by States, 1963,257 et seq. (275 et seq.); on the state of emergency, see 376, then d . R. Higgins, The Development of International Law through the Political Organs of the United Nations, 1963; T.M. Franck, Fairness in International Law and Institutions, 1995, 267; id., "When, if ever, may States deploy Military Force without Prior Security Council Authorization", Singapore Journal of International and Comparative Law 4 (2000), 362 et seq. (368 et seq., 373-376). 282 On the proposal to distinguish between interceptive self-defence, upon the imminent threat of an armed attack and anticipatory self-defence, in cases where an armed attack is foreseeable, d. Y. Dinstein, War, Aggression and Self-defence, 2001, 190, on the distinction between pre-emptive selfdefence and preventive warfare. See Verdross/ Simma, see note 66, 288 (§ 471); H. Kelsen, The Law of the United Nations. A critical Analysis of its Fundamental Problems, 1950,792; Shaw, see note 84, 790; L. Henkin, How 279

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gradually increasing divergence could be observed between United States and European interpretations of Article 51 of the UN Charter. Whereas United States international law experts advocate a conceptual stretching of the right to self-defence,283 their European counterparts tend to favour a restrictive interpretation of Article 51. 284

Nations Behave, 1979, 143; Jennings/ Watts, see note 56, 421 (127): "The better view is probably that while anticipatory self-defence is normally unlawful, it is not necessarily unlawful in all circumstances, the matter depending on the facts of the situation including in particular the seriousness of the threat and the degree to which pre-emptive action is really necessary and this is the only way of avoiding that serious threat, [...]."; Doehring, see note 53, item 764, considers a state's right to self-defence subject to restraints only if the United Nations can provide better protection; P. Malanczuk, Akehurst's Modern Introduction to International Law, 1997, 314; W.G. Sharp, "The Use of Armed Force Against Terrorism: American Hegemony or Impotence?", Chicago J. Int'l L. 1 (2000), 37 et seq. (46 et seq.): also G. Zimmer, Terrorismus und Volkerrecht, Militdrische Zwangsanwendung, Selbstverteidigung und Schutz der internationalen Sicherheit, 1998, 54 et seq.; and M. Byers, "Terrorism, the Use of Force and International Law after 11 September", ICLQ 52 (2002), 401 et seq. 283 For a very extensive account see WM. Reisman, "In Defense of World Public Order", AJIL 95 (2001), 833 et seq.; as well as Franck, see note 281, 368 et seq., see also for an encompassing argument in favour of pre-emptive self-defence in the case of Computer Attacks on Critical National Infrastructure, E.T. Jensen, "Computer Attacks on Critical National Infrastructure: A Use of Force Invoking the Right of Self Defense", Stanford J. Int'l L. 38 (2002),207 et seq. (229 et seq. to 240); for a restrained position J.1. Charney, "The use of force against terrorism and international law", AJIL 95 (2001), 835 et seq.; also T.M. Franck, "Terrorism and the Right of Self-Defense", AJIL 95 (2001), 839 et seq.; C. Greenwood, "International Law and the War against Terrorism", Int'l Af! 78 (2002), 301 et seq. (312 et seq.); S. D. Murphy, "Terrorism and the Concept of "Armed Attack'''', Harv. Int'l L. J. 43 (2002), 41 et seq. (47-50); RR Koh, "The Spirit of Laws", Harv. Int'l L. J. 43 (2002), 23 et seq. (27 et seq).; also the different opinions in the ASIL-Insights, at which contains contributions by EL. Kirgis, R. Wedgwood, J. Cerone, A. Montalvo, J.J. Paust, W. Hall, G.H. Fox, S. Mahmoudi; for a well differentiating account on the functions of the ICC in the war against terrorism, see A.P. Rubin, "Legal Response to Terror: An International Criminal Court?", Harv. Int'l L. j. 43 (2002), 65 et seq. (69), also d. the earlier text by M. Reisman, "International Legal Responses to Terrorism", Houston Journal of International Law 22 (1999), 3 et seq. 284 For a detailed account of the legal consequences of 11 September 2001, see C. Tomuschat, "Der 11. September 2001 und seine rechtlichen Konsequen-

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The strategy to justify military operations, prior to an armed attack, is not new, however, in 1956 Israel employed this argumentation to provide a rationale for measures taken against Egypt. In an extraordinary UN Security-Council session (convened at the insistence of the United States), Israel accused Egypt of having taken up arms prior to its attacks, thus actually necessitating Israeli measures to prevent more violence.285 Israel did not explicitly resort to the imminent threat scenario as a justification for self-defence.l'" Australia, Iran, the Soviet Union, the United States and Yugoslavia consequently criticized Israeli measures as a violation of the ceasefire concluded between Israel and Egypt on 24 February 1949. They demanded the withdrawal of Israeli troops and a cessation of armed hostilities.P? One United States sponsored resolution to this purpose ended up being defeated by France and zen", EuGRZ 28 (2002), 535 et seq., and on the issue of self-defence 540; A. Cassese, "Terrorism is also Disrupting some Crucial Categories of International Law", EjIL 12 (2001), 993 et seq. (995 et seq.), on the challenge to international law posed by counter-terrorism after 11 September 2001; see, Y. Sandoz, "Lutte contre Ie terrorisme et droit international: risque et op portunites", SZIER 3 (2002), 319 et seq . (335); S. Oeter, "Terrorismus ein volkerrechtliches Verbrechen? Zur Frage der Unterstellung terroristischer Akte unter die internationale Strafgerichtsbarkeit", Die Friedenswarte 76 (2001), 11 et seq. (23 et seq.); T. Bruha/ M. Bortfeld, "Terrorismus und Selbstverteidigung", Vereinte Nationen 49 (2001), 161 et seq. (162166); J. Delbriick, "The Fight Against Global Terrorism: Self-Defence or Collective Security as International Police Action? Some Comments on the International Legal Implications of the 'War against Terrorism"', GYIL 44 (2001), 9 et seq. (17 et seq.); C. Walter, see note 275, 4-7; M. Krajewski, "Terroranschlage in den USA und Krieg gegen Afghanistan", Kritische ]ustiz (2001),363 et seq. (377 et seq.), also see the contributions by A. Pellet at bearingthetitleuNo.this is not 'War"'; G. Gaja, UIn What Sense was there an Armed Attack"?", ZaoRV 62 (2002), 183 et seq. (216 et seq.); F. Megret, U'War'? Legal Semantics and the Move to Violence", E]IL 13 (2002), 361 et seq. (392 et seq.), for a more differentiating account see R. Wolfrum, "Irak - eine Krise auch fur das System der kollektiven Sicherheit", 2003, at http://www.mpivhd.mpg.de/inome/inome.cfm, also E. Denninger, Anmerkungen zum Terrorismusbekampfungsgesetz", Aus Pol. & Zeitgesch.10 (2002), 22 et seq. (24 et seq.) . SCOR 11th Year 1956, 748 Mtg of 30 October 1956. SCOR 11th Year 1956, 748 Mtg of 30 October 1956. SCOR l l th Year, 748 Mtg of 30 October 1956, the United States, 3 (No. 11), the Soviet Union, 5 (No. 29), Australia, 6 (No. 35), Iran, 5 (No. 27), Yugoslavia, 4 (No. 22 et seq.). U

U

285 286 287

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the United Kingdom in the UN Security Council.P" The same fate was shared by an analogous Soviet proposal.P? Following this deadlock, the Security Council resorted to a procedure which had yielded the Uniting-far-Peace Resolution (A/RES/377 (V) of 3 November 1950) and transferred the matter to the General Assembly.F? The latter was convened for several emergency special sessions, which led to the adoption of an adequate resolution on 1 November 1956, with 65 votes in favour, 5 votes against and 6 abstentions. The Resolution called upon all parties to sign a truce and to withdraw their troops from foreign territory.I"! In 1962 the United States attempted to prevent the funher armament of Cuba (especially its being equipped with long-range ballistic missiles by the Soviet Union) by using the self-defence motive.292 This case developed into a situation where violence could have been used to avert a perceived acute threat. This was not threatened or done, however, on the grounds of an explicitly formulated right to pre-emptive self-defence. Israel would resort to this rationale expressis verbis in 1967, after Egypt had blocked the South Israeli port of Eilat and concluded a military cooperation treaty with Jordan. 293 The Security Council eventually condemned the conflict as a threat to regional peace, while appealing to both warring parties to sign and implement a truce, but it did not challenge Israel's argument that it had the right to pre-emptive defence.294 As regards the preceding acts of violence prompting Israel's response, there are several analyses indicating that the response does not qualify as pre-emptive self-defence. Should the blockade of Eilat port be considered an act of violence, then Israel's reaction would count as

288 289

290 291

292

293 294

Doc. 5/3710 of 30 October 1956. SCOR 11th Year, 750 Mtg of 30 October 1956, 5 (No. 23), Text of the Resolution at SCOR 11th Year, 729 Mtg of 26 June 1956. SCOR 11th Year, 752 Mtg of 2 November 1956. GAOR 1st Emergency Special Sess., 562 Plenary Mtg of 1 November 1956, 13, 34, Doc. A/PV.562. See the Proclamation of the President, printed in: A]IL 57 (1966), 512 et seq. Shaw, see note 84, 789. On the position of Israel d. SCOR 22nd Year, 1342 Mtg of 24 May 1967,7, (Nos. 56-68) and SCOR 22nd Year, 1343 Mtg of 29 May 1967, 15 (No. 179); S/RES/233 (1967) of 6 June 1967, S/RES/234 (1967) of 7 June 1967, S/RES/235 (1967) of 9 June 1967, S/RES/237 (1967) of 14 June 1967, S/RES/240 (1967) of 25 October 1967.

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self-defence proper. 295 This does not "justify" Israel's actions; it merely points out the fact that this case may not be adequate to ensure the answer to the question when pre-emptive self-defence would be considered lawful. This may also explain why Israel was not condemned by the United Nations for exercizing its right to self-defence.F" Things become even less clear in the case of Iraq's claim to engage in pre-emptive self-defence against Iran in 1980. On the one hand, Iraq had denoted Iran as a threat, after this country had declared the Algeria Treaties (1815/1816) null and void. But on the other hand, Iraq denied having initiated the armed conflict, by stating it was engaging in selfdefence. 297 In contrast to this, Israel fell back on the pre-emptive self-defence against an imminent attack motive,298 upon destroying Iraq's Osirak nuclear reactor on 7 June 1981. The Israeli Government justified the air strikes with (the threatened) increased capability of Iraq to launch attacks against Israeli targets, once the reactor had been activated in the near future. Therefore Israel could not wait for Iraq to develop its nuclear bombs."? It had been forced to engage in an "act of selfpreservation," according to the "inherent right of self-defence," went the argumentation of representatives of the UN Security Council.P'' The preparing of a nuclear war was, they continued, an armed attack along the lines of Article 51 of the UN Cltarter.P! These detailed elabo rations did not prevent several countries (e.g. Egypt, India, Indonesia, Japan, Pakistan, Spain) from condemning the military intervention of Israel.302 They argued that Article 51 was restricted to cases of actual, 295 Shaw, see note 84,789. 296 Shaw, see note 84, 789. 297 SCaR 35th Year, 2250 Mtg of 15 October 1980, or for a similar position 3, (No. 21), 5 (No . 39), SCaR 35th Year, 2251 Mtg of 17 October 1980, 6 (No. 49). 298 SCaR 36th Year, 2280 Mtg of 12 June 1981, 8 et seq. (Nos. 58 f, 68), 10 (Nos. 86-92), a particular spin to the Israeli position has been detected by J.A. Frowein, "Der Terrorismus als Herausforderung fUr das Volkerrecht", Speech for the Siemens-Foundation on 3 July 2002, (unpublished manuscript), 16. 299 See the Letter of Israel's Permanent Representative of 8 June 1981, Doc. 5/14510 of 8June 1984. 300 UNYB 1981,277. 301 Doc. S/14576 of 29June 1981. 302 On the debates in the Security Council cf. SCaR 2288 Mtg, Vote 14 (No. 151), for a condemnation of the violence, see letter dated 9 June 1981 from

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and not anticipated, armed attacks. 303 In S/RES/487 (1981) of 19 June 1981 the UN Security Council thus unanimously branded Israel's strike as a violation of th e UN Charter and the norms of international conduct. 304 In November 1981 the UN General Assembly also adopted a Resolution (with 109 votes in favour, 2 against and 34 abstentions) emphasizing the grave consequences of Israel's action for the maintenance of international peace, and especially the peaceful use of nuclear energy and the system of non-proliferation of nuclear weapons.F" The IAEA likewise condemned the air strike and decided to cut its technical assistance to Israel. 306 These cases indicate that there is basically no consensus among states that pre-emptive self-defence is admissible. The elaborate justifications of each intervening country, or its attempts to prove that its actions had not been conducted pre-emptively, tend to delineate an awareness that self-defence without an actual armed attack represents an exception to the rule . An exception to be made only under additional special circumstances, as far as international law is concerned. The Osirak case furthermore proves that neither the UN's Security Council nor the General Assembly adopted Israel's rationale at the expense of their reluctance to recognize the lawfulness of pre-emptive measures. A slightly different verdict might be reached, however, in cases where a country has fallen prey to a terrorist attack. Here the right to self-defence might be accorded more liberally. Such a line of reasoning, focusing on preceding acts of (political) violence as a basis for preemption, was employed by the United States in 1986. Air strikes against Libya had thus been necessary due to this country's repeated attacks against United States targets and nationals, and the endeavour to prevent any further assaults.P'" The UN Representative justified the strikes as the exercise of the right to self-defence in the Security Council, since:

303

304 305 306

307

the Permanent Representative of Egypt see Doc. A/36/314-5/14513 of 10 June 1984, by Japan Doc. 5/14512 of 9 June 1981, by Pakistan Doc. 5/14517 of 11 June 1981, by India Doc. 5/14523 of 12June 1981, by Indonesia Doc. 5/14536 of 15June 1981. UNYB 1981,277. 5/RE5/487 (1981) of 19June1981, item 1. A/RE5/36127 of 13 November 1981,item 8. See telegram dated 12June 1981 from the Director General of the IAEA to the President of the Security Council, Doc. 5/14532 of 15June 1981. Doc. 5/17990 of 14 April 1986.

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"The United States took these measures of self-defense only after other repeated and protracted efforts to deter Libya from its ongoing attacks against the United States in violation of the Charter". 308 Some African states, the non-aligned countries and the Soviet Union nevertheless condemned the United States air strikes and British support as an aggression against Libya.P" The United States upheld the view that the threat of an armed attack was particularly acute, as Libya had executed several terrorist attacks.U? Another element of the United States rationale was that these assaults had repeatedly violated the prohibition to threaten or use violence in international relations, according to Article 2 (4) of the UN Charter. The United States, however, did not equate a single (or all) terrorist attack(s) with an armed attack.'!' The UN Security Council was nevertheless divided on the issue and a resolution condemning the United States military action had been proposed, but it was not adopted due to the resistance of France, the United Kingdom and the United States. This was induced to the General Assembly passing a resolution with 79 votes in favour, 28 votes against and 33 abstentions.W This, once again, illustrat es the contentious nature of pre-emptive military interventions. In this particular case, th e precarious foundation for anticipatory military measures also rests on the fact that - although Libya had repeatedly employed violence against the United States these att acks never reached the scope of a full-spectrum military operation. Thus, it remains questionable if such below-the-threshold assaults should be used to evoke the right to self-defence, as outlin ed in Article 51 of the UN Charter, since these insufficient actions are instrumentalized to construct an imminent threat in absence of a concrete armed attack. Such a substitution will hardl y suffice to establish pre-emptive self-defence as a lawful undertaking.

308

309

310

311 312

M.N. Leich, "C ontempor ary Practice of the United States relating to International Law ", AjIL 80 (1986), 612 et seq. (633). Th e pos ition of the Soviet Union is contained in Doc. 5/17999 of 15 April 1986, of India in Doc. S/17996 of 15 April 1986, cf. the Annex of the C ommunique of the non- aligned stat es, Ghana in Doc. S/18002 of 16 April 1986, Nicaragua in Doc. S/18004 of 16 April 1986, Burundi in Doc. 5/18006 of 16April 1986. Leich, see note 308, 612, 632 et seq. Leich, see note 308, 633. Also d. G.P. Int occia, "American Bombing of Lib ya: An International Legal Anal ysis", Case \v, Res. j. In t'l L. 19 (1987), 177 et seq. (180 and 189).

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This very issue has been addressed by the IC] in its deliberations on the Nicaragua Case. The Ruling stipulates that even repeated violent assaults which do not qualify as a (full-spectrum) armed attack may not be evoked to justify self-defence. It also does not prohibit, however, that the assaulted state undertakes armed counter-measures, after having suffered attacks below-the-threshold of armed attacks. It must be borne in mind against such a backdrop that the IC] calibrated these findings to suit a concrete situation, where the United States justified its military action against Nicaragua on the grounds of aiding El Salvador within the framework of a collective self-defence (security) system. The IC] responded to this by hinting that collective defence measures would have been superfluous if El Salvador had undertaken any countermeasures on its own behalf. 313 The IC], however, did not specify whether such measures by El Salvador would have been acceptable as self-defence. This implies that a violation of Article 2 (4) of the UN Charter does not by itself justify the evocation of Article 51 by another state, as far as this Court is concerned. This state of affairs could change if a country argues that it is facing an imminent threat or terrorist attack, and that the materialization of these threats was highly probable due to past severe (terrorist) attacks. Hence, it becomes important to analyze a country's past conduct: if it has suffered a severe (terrorist) attack without launching retaliatory measures in the past, it will be difficult to demand restraint in the face of another attack by the same perpetrator. Other standards will apply to cases where counter-measures have been taken, which ended the aggression. A repeated evocation of this stifled aggression, upon building the case for an imminent threat by the same perpetrator, would violate the principle of proportionality in Article 51. According to this principle, measures of self-defence must be fitted to the ending of a concrete, ongoing attack. This principle is even more important for cases where the connection between past counter-measures and the culpability of the "aggressor" cannot be fully substantiated. Thus the right to pre-emptive self-defence represents an issue which has to be resolved on the basis of concrete situations, rather than past acts of violence. In this context binding international law does not allow for the construction of an imminent-threat scenario on the grounds of a state's possession of WMD alone . In its Opinion on the Legality of the Threat or Use of Nuclear Weapons the IC] stated that an imminent threat is

313

Case Concerning Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, 14 et seq., (110 para. 210).

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given when the danger of threatened violence against a country's territorial integrity or political independence is credible. The intentions of the potential aggressor have to be clearly visible, in order to violate Article 2 (4) of the UN Charter by its existence and/or execution.F" Such a violation of Article 2 (4) requires that a state in possession of WMD threatens to use them. In this context it remains contentious, however, if threats which do not represent a clear violation of Article 2 (4) still entitle a country to pre-emptive self-defence against an imminent attack. The IC] has not addressed this question. It has made it clear, nevertheless, that the possession of WMD alone does not constitute an imminent threat. The latter is given only when a threat to use WMD (and their actual usage) comprise a clear violation of Article 2 (4) of the UN Charter. Against this backdrop it becomes clear that the endeavours of the United States National Security Strategy to lower the benchmarks for determining an imminent threat (in order to improve counter-measures targeting "rogue states") represents a substantial expansion of the right to self-defence. The latter would be applicable not only to concrete, but anticipated threats, by resorting to a rationale which has not been used in justifications of pre-emptive self-defence so far. b. The War against Iraq

The United States-led coalition commenced Operation Iraqi Freedom on 21 March 2003 .315 By 9 April 2003 troops had reached Iraq's capital and were dismantling Hussein's statue in the vicinity of the "Palestine" Hotel.3 16 The military campaign against Iraq constitutes the first case where full-spectrum military operations have been launched against a "rogue state". The United States rationale for this war, however, did not centre on this designation, but on existing argumentation, which had been recognized and tolerated by international law.W Thus it appeared

314

315

316

317

Legality of the Threat or Use of Nuclear Weapons, IC] Reports 1996,226 et seq. (246 et seq. para. 48). CENTCOM Operation Iraqi Freedom Briefing on 22 April 2003, at http.//www.cemcom.miIlCENTCOMNews/Transcripts/20030419.htm. accessed on 22 May 2003. J. Habermas, "Was bedeutet der Denkmalsturz?", Frankfurter Allgemeine Zeitung, 17 April 2003, 33. Cf. Powell's speech at the Security Council of 5 February 2003, Doc. S/PV.4701, is in accordance with the draft of the "U SA Patriot Act II " of 7

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that several argumentations were being pursued by the United States throughout 2002, with the same amount of legitimating weight. Prior to the beginning of the war in 2003, however, official statements of the United States Government focused on Resolution 1441, issued by the UN Security Council on 8 November 2002. 318 This Resolution represented the last in a chain of Security Council Resolutions, such as S/RES/661; 678; 687 and 1284,319 granting Iraq one last chance to avoid any "serious consequences" by the fulfilment of its international obligations.P? This argumentation complemented efforts to substantiate a "material breach" of Resolution 687, which establishes a truce between Iraq and Kuwait, and of Resolution 678, which enters the "states cooperating with Kuwait"321. The constitution of such a material breach would then reactivate the mandate to undertake military countermeasures, contained in Resolution 687.322 This rationale, ranging up to Resolution 1441, became predominant compared to efforts justifying a right to pre-emptive self-defence on the grounds of Iraq being a "rogue state", which would have transcended the boundaries of international law. Resolution 1441 in particular became the basis to demand Iraq's

318 319

320

321 322

January 2003, especially the findings in Sec. 1302, which do address the situation in Iraq. S/RES/1441 (2002)of 8 November 2002. S/RES/661 (1990) of 6 August 1990, S/RES/678 (1990) of 29 November 1990, S/RES/687 (1991) of 3 April 1991, S/RES/1284 (1999) of 17December 1999. S/RES/1441 (2002) of 8 November 2002, item 13 of the operative section (based on Chapter VII of the UN Charter), also see Powell, see note 317: "Resolution 1441 (2002) was not dealing with an innocent party, but with a regime that the Council had repeatedly convicted over the years. Resolution 1441 (2002) gave Iraq one last chance to come into compliance or to face serious consequences.", see also the statement given by Powell at the Security Council on 14 February 2003, .accessed 17 February 2003. S/RES/687 (1991) of 3 April 1991, item 33. Cf. M. Weller, "The Legality of the Threat or Use of Force against Iraq", at . accessed on 30 July 2002; R. Wedgwood, "The Enforcement of Security Council Resolution 687: The threat of Force against Iraq's Weapons of Mass Destruction", AjIL 92 (1998),724 et seq.

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disarmament, i.e. the destruction of suspected WMD, in order to prevent their use by terrorists.V' The ensuing military campaign, therefore, could not evoke a violation of Article 2 (4) of the UN Charter. Its masterminds also abstained from citing their National Security Strategy as a rationale.F" Apart from this, the UN Security Council refused to provide an authorization on the grounds of Resolution 1441 in order to ensure Iraq's fulfilment of clearly existing legal obligationsv" via military coercion. 326 The United States nevertheless "authorized itself" for a unilateral military intervention to this purpose, outside recognized rationales for the use of military force in international law. At no time, however, did the United States try to justify the campaign (i.e, to fill the void of a multilateral mandate) by stressing that Iraq was a "rogue state". This implies that "the doctrine of verbal stigmatization," typical for the United States, did not acquire a new dimension by advocating the use of violence against designated countries. Such a scenario appeared possible after the publication of the National Security Strategy in September 2002. However, this argumentation would neglect the fact that verbal stigmatization entails consequences. Even without employment for the justification of the use of force in the concrete case as it is designed to be effective in the forefront. The repeated usage of stigmatizations is dedicated to diminish the political pressure for the acting state to substantiate the justification of its actions.

323

324

325

326

This is consistent with the "National Strategy to Combat Weapons of Mass Destruction", of December 2002, on the obligations of Iraq see Wolfrum, see note 284. Powell speech to the Security Council, see note 320; Negroponte, Doc. S/PV:4726 of 27 March 2003: "The military campaign in Iraq is not a war against the people of Iraq, but rather against a regime that has denied the will of the international community for more an 12 years. [..] Resolution 687 (1991) imposed a series of obligations on Iraq [..] . Resolution 1441 (2002) explicitly found Iraq in continuing material breach". Also d. the Report by El Bahradei, the Status of Nuclear Inspections in Iraq of 27 January 2003, at , accessed on 28 January 2003, Press Release SC/7644 of 27 January 2003 and the IAEA Report Doc. S/2003/95, Annex, of 27 January 2003. G. Nolte, "Gewalteinsatz muB Regeln unterliegen", Handelsblatt, 24 March 2003; Wolfrum, see note 284, 5.

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Max Planck UNYB 7 (2003)

Nonetheless the war against Iraq does not qualify as an appl ication of the "stigmatization doctrine" as the United States attempted to justify its campaign along the lines of recognized rationales, in order to secure (international) legitimacy. T his utilization of existing SecurityCouncil Resolutions, however, went hand in hand with the (repeatedly stated) intent to launch a military campaign without a multilateral mandat e. But the debate on whether Resolution 1441 provided enough of a justification to permit the use of military coercion indicates that the United States accords "rogue states" the same standing in this respect as non-designated states. Hence, it becomes obvious that the United States tried to procure as much legitimacy as possible, without abandoning its determination to wage war. International reactions to this strategy imply that the United States may have paid a high political price for executing its intentions. Most states were critical of the military campaign.V? Thus the designation of a country as a "rogue state" did not grant legitimacy to a military intervent ion against it, in their opinions. Their reactions revealed that an acceptable rationale would have to be based on a breach of Article 2 (4) of the UN Charter. To sum up, it cannot be concluded that "rogue states" enjoy so little protection that the use of military force against them has become an aliud in international law.

2. Sanctions Regime against "state sponsors of terrorism" The United States considers the countries included in its list of terrorist organizations the main focus of stage two in the war against terrorism.328

327

Cf. the debates at the Security Council of 5 February 2003, Doc. S/PV.4701, and of 29 March 2003, Doc. S/PV.4726 the Letter of the Perma-

328

nent Representatives of France, Germany and Russia to the Chairman of the Security Council of 24 February 2003, Doc . S/2003/214, the Speech by Minist er of Foreign Affairs Fischer at the Security Council of 20 February 2003, at . accessed on 21 January 2003; the Letter of the Permanent Repre sentative of Iraq to the United Nations of 31January 2003, Doc. 5/2003/131 ; the Press Release Doc. 5CI7665 of 18 February 2003. Doc. 5/946 of 7 O ctober 2001; Greenwood, see note 283,310.

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From a legal standpoint, countries are not forbidden to compile lists of states they consider dangerous, as long as this does not violate international law. The situation becomes less liberal when attempts are launched to establish such a list at the international level. This is the case when the inclusion in a list triggers (economic) sanctions, which affect the sovereign rights of targeted states and third countries. In addition to this, the process of verbal stigmatization attempts to convince other states of the danger posed by designated states. Were this aspiration materialized without obstruction, "rogue states" would be condemned as sponsors of terrorism at the international level as well. This would accord international significance to the unilateral categorization criteria of the United States DoS. So far there exists no international version of the United States list of terrorist organizations. The United Nations abstains from designating countries as "state sponsors" of international terrorism.V? as does the Security Council, even in cases where repeated terrorist activities were attributable to states, or states failed to clearly distance themselves from terrorist activities.P? The Security Council has only practised the identification of actions supporting (international) terrorism, if a state had taken concrete measures of this sort. A condemnation of such action, in contrast, is usually linked to an appeal to the named state to explicitly distance itself from any support of (international) terrorism.P! Thus the presumption of innocence applies to states until proof is procured of their supporting a concrete terrorist action. Once this has been achieved, however, even the insufficiently clear renouncing of terrorism by a state may be considered a threat to international peace.332 Unlike the DoS, the UN Security Council does not consider the credibility of a state as a decisive factor to determine a threat to international peace.

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330

331 332

The international agreements on the combating of certain terrorist acts also focus on precisely defined felonies, which have to be prosecuted and penalized by the signatories, see Wolfrum, see note 53, 853 et seq. On Sudan d. S/RES/I044 (1996) of 31 January 1996, S/RES/I054 (1996) of 26 April 1996, S/RES/I070 (1996) of 16 August 1996, on Afghanistan S/RES/1214 (1998) of 8 December 1998, S/RES/1267 (1999) of 15 October 1999, S/RES/1333 (2000) of 19 December 2000. The first explicit formulation of this is found in S/RES1748 (1992) of 31 March 1992. On the categorization of terrorism as a threat to international peace, d . J.D. Aston, "Die Bekampfung abstrakter Gefahren fur den Weltfrieden durch legislative MaBnahmen des Sicherheitsrates - Resolution 1373 (2001) im Kontext", ZaoRV 62 (2002), 257 et seq. (277 et seq.),

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But it should not be forgotten that both the Security Council and the General Assembly have adopted a number of resolutions obliging all states to abstain from supporting international terrorism.P'' A complicating aspect to such a demand is the fact that there is no clear-cut definition of terrorisml'" and of state sponsorship of terrorism so far.335 The Security Council, however, provides a compilation of several state actions, which constitute support of terrorism and are therefore not to be engaged in states. 336 Upon analyzing these prohibited acts and Security-Council documents on this subject diachronically, several changes emerge over the past ten years. 337 The most recent documents, for example, appear to reveal United Nations support for the United States war against international terrorism.P'' As regards the different forms of state support to this type of political violence, the UN Security Council distinguishes between direct and

333

334

335

336

337

338

See V. Roben, "The Role of international Conventions and general International Law in the Fight against International Terrorism", at -chttpc//edoc. mpil.de/conference-on-terrorism/present/roeben.pdf>. Cf. C. Walter, "The Notion of Terrorism in National and International Law", at . On attempts of a definition d. A.C. Brown, "Hard Cases Make Bad Laws: An Analysis of State-Sponsored Terrorism and its Regulation under International Law", journal of Armed Conflict Law 2 (1997),135 et seq. (136 et seq.) . The most recent instance is to be found in S/RES/1373 (2001) of 28 September 2001, item 2, references are also contained in A/RES/49/60 of 9 December 1994, Annex, item 3, A/RES/51/210 of 17 December 1996, A/RES/54/110 of 9 December 2000, also d. R.A. Friedlander! T. Marauhn, "Terrorism", in: R. Bernhardt (ed.), EPIL IV (2000), 845 et seq. (850 et seq.). The same applies to the assessment of state terrorism as a threat. Initially, formulations would regularly stress at countering terrorism, including the forms of state activities in this domain, were vital to the preservation of international peace and security (S/RES/l054 (1996) of 26 April 1996, S/RES/1189 (1998) of 13 August 1998). More recent resolutions of the Secur ity Council clarify that international terrorism can pose a threat to international peace and security. On 12 September 2001 it publicized the statement that the attacks of "11 September" embodied a threat to international peace and security, as did any other terrorist act. See S/RES/1368 (2001) of 12 September 2001, item 1. Charney, see note 283, 835, 837.

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indirect modes, since it considers "state sponsors of terrorism" as countries furthering: "[...] acts of international terrorism in all its forms, including those in which States are directly or indirectly involved I.P? The latter include 'inter alia' the: "organizing, instigating, assisting or participating in terrorist acts in another State or aquiescing in organized activities within its territory directed towards the commission of such acts".340 Acts of support furthermore include "activities of assisting, supporting and facilitating terrorist activities and from giving shelter and sanctuaries to terrorist elemencs't.r" Another formulation prohibits the sheltering and training of terrorists and planning terrorist acts. 342 By the end of the nineties this list (proscribing the organizing, instigating, assisting or participating in terrorist acts) was complemented by new "don'ts", In 1999, for example, the UN Security Council delegitimized the provisions of a safe haven, by:

"[djeploring the fact that the Taliban continues to provide safe haven to Usama bin Laden and to allow him and others associated with him to operate a network of terrorist training camps from Talibancontrolled territory and to use Afghanistan as a base from which to sponsor international terrorist operations".343 In 2000 it added "harbouring" terrorists to the acts of state support.r" and ultimately the Chair of the Security Council declared the attack of

339 S/RES/731 (1992) of 21January1992, S/RES/748 (1992) of 31 March1992. 340 S/RES/748 (1993) of 31 March 1993, S/RESI 1189 (1998) of 13 August 1998, S/RES/1371 (2001) of 26 September2001. 341 S/RES/1044 (1996) of 31January 1996, S/RES/I064 (1996) of 11 July 1996. 342 S/RES/1333 (2000) of 19 December 2000. 343 S/RES/1267 (1999) of 15 October 1999, as well as S/RES/1333 (2000) of 19 December 2000, a document not mentioning the Taliban is S/RES/1269 (1999) of 19 October1999, which strives to: "deny those who plan, finance or commit terrorist acts safe havens by ensuring their apprehension and prosecution or extradition". 344 S/RES/B33 (2000) of 19 December 2000: "Not[es] that the Taliban benefits directly from the cultivation of illicit opium by imposing a tax on its production and indirectly benefits from the processing and traffickingof such opium, and recognizing that these substantial resources strengthen the Taliban's capacity to harbour terrorists."

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11 September 2001 an "attack on humanity as a whole,"3 45 upon convening a session on 12 September 2001. The Resolution adopted on this day states that: "The Security Council calls on all States to work together urgently to bring to justice the perpetrators and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable't.P" The UN Security Council also committed all states to abstain from any form of active or passive support of terrorist acts, on the grounds of Chapter VII of the UN Charter, on 28 September 2001. This included the prohibition to provide shelter to terrorist organizations on their territories. Hence: "[a]ll states shall (a) refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons of terrorists; (b) [...] (c) deny safe haven to those who finance, plan, support or commit terrorist acts, or provide safe haven; [...]".347 In this context the Security Council's employment of terms like "safe haven" and "harbour" implied an internationalization of the notions used mainly by the United States in its war on international terrorism. But even in S/RES/1373 the UN Security Council did not designate any countries as "state sponsors of terrorism", nor did it single out any countries as particularly dangerous within the multilateral campaign against terrorism. Such a resorting to "loan-words" could be accompanied by the transfer of the definitions on various terrorist activities .348 The findings mentioned above indicate that the United States practice of listing "state sponsors of terrorism" is marked by a specific form of identification, evaluation and treatment of such states . These traits are not mirrored by United Nations practice. At the same time, the founding of stage two in the war against international terrorism on the

345 346 347 348

Doc. S/PY.4370 of 12 September200l. S/RES/1368 (2001) of 12 September200l. S/RES/1373 (2001) of 28 September200l. Brown, see note 335, 135, 144 et seq. concludes that there is a "Legal Regime Governing States Sponsoring Terrorism" contained in Resolutions and Declarations, which strives to regulate unilateral measures outside the United Nations as well, also d. Charney, see note 283, 835, 837.

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DoS list, represents an attempt to secure international relevance for a domestic political instrument, in order to proclaim it a part of the "canon" of international counter-terrorism. It could also imply that the United States reserves the leadership in this campaign for itself. This would have been corroborated by international law if the UN Security Council had accorded the United States Government a privileged role within the war against terrorism. Resolution 1373, however, establishes the United States as a state with rights and duties equal to all other countries. The operative section of Resolution 1373 explicitly demands the improvement and intensification of international cooperation in this context. In addition, sight should not be lost of the fact that the Preamble stresses the "inherent right of individual or collective self-defence in accordance with the Charter". The United States could be accorded a special role mainly in cases where international cooperation assumes the form of collective self-defence. This does not entail, however, that the UN Security Council is attempting to provide the United States with a rationale for dealing with the state sponsors of its list, as "abstractly" dangerous states, by equating international cooperation and collective self-defence. The right to self-defence is, after all, inherent and not dependent on authorization by the Security CounciJ.349 In addition to this, the provisions outlined in Article 51 of the UN Charter must be met for acts of self-defence. What the Security Council can nevertheless do, is to influence the development of international customary law by recognizing a particular form of exercizing the right to self-defence as lawful. In spite of all this, it has to be remembered that the provisions of Resolution 1373 were drafted at a time when terrorist acts were not considered armed attacks along the lines of Article 51 of the UN Charter. This does not amount to an absolute prohibition, as the Preamble of Resolution 1373 (and of Resolution 1368) recognizes the right to selfdefence. It rather indicates that, under certain conditions, even terrorist acts may constitute a justification for self-defence. The .abstract threat posed by terrorism, however, does not legitimate the exercise of this right. Against this backdrop the Chapter VII derived duty to cooperate in the fight against international terrorism, contained in the operative section of Resolution 1373, mirrors the distinction between self-defence and collective defence and security maintained by the UN Security Council. It therefore cannot be concluded that the potential of certain 349 Also cf. Franck, see note 283, 839 et seq.

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terrorist acts to entail the right to self-defence (substantively or procedurally) expand s th is right within the war against international terrorism. The launching of self-d efence measures against "rogue states" will continue to depend on concrete constellation s and dangers - and not on abstract classifications which do not fulfil the provi sions of Article 51.

The inclusion of state s in lists, not only as a reaction to single acts and their overall conduct, cannot predetermine their threat potential within the war against international terrorism. At least not as far as binding international law is concerned. This contravenes the rationale behind designations such as "rogue states," since they have been designed to affect the perceptions of other states to this effect. Hence it could be concluded that derogatory denotations embody an instrument of hegemony.

V. Conclusion For the time being, the process of verbally stigmatizing states occurs at a "political" plane. Th is does not prevent the alteration of the targeted states' legal status, as the examples of this article have illustrated. The legal consequences of derogatory formulations are not determined by their usage alone; they also depend on the bind ing principles of a legal order as possible checks and balances. Should one state be able to elevate its domestic classification to an international standard, these principles would be undermined in th eir overall purvie w, not just in one concrete application. Whether defamatory designations infringe upon the sovereign equality of states will depend on what notion of equality we attribute to this principle. In the earlier cases of verbal stigmatization less emphasis was placed on the discrimination of the countries targeted. The main issue was if international law was applicable to "barbaric" or "uncivilized " states which were not recognized as full subjects in international law at all. Thus the question on their legal equality would not even be consid ered at the time. Although there always have been pariah-states in the past , their impact on community principles was insignificant, as they did not belong to the community at any time. This changes in th e case of communities based on the sovereign equality of its Member States: here unilaterally stigmatized states re-

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main part of the community. A change in the legal status of these states would, therefore, not just violate the principle of state equality - it would undermine its validity as a principle of the international community. This would, again, not require deliberations on charges of discrimination - it would require debates on the general applicability of international law in case of these states. Against such a backdrop, the international community could revert to a previous stage of development. The international community as we know it is also vulnerable as regards processes based purely on the existence of spheres of influence. Within this community, and its international law, however, states labelled with pejorative designations (i.e. being branded with negative traits) still enjoy the same sovereignty-based rights as all other countries. The designations examined, such as "rogue states," "state sponsors of terrorism," "states of concern" and "axis of evil," are not recognized elements of international law. They are used to affect the constitution of the political will in other states. Hence, the principle of sovereign equality has not been annulled either within the war against terrorism as regards a group of states (designated as threats) or during applications of violence against single "rogue states". The reactions to the war in Iraq clearly demonstrate that the unilateral stigmatization of a country does not allow for an extraordinary right to use military force. The dangers which such a process of (verbal) abuse entail, however, remain real to the development of international law in our current order, as they threaten the consensus on fundamental principles. As regards the prerequisites for the generation of legal concepts within the current system, the considerable influence of the United States requires a clear reaction by the international community to counter the aspiration to codify a domestic classification at the international level. Otherwise the principle of the sovereign equality of states will no longer be able to act as a check during international law-making. Thus reactions to single cases of stigmatization may prevent the erosion of this fundamental principle of international law. Any change in the legal status of the designated states contravenes (the maintenance of) state equality, since they would have been denied key elements of statehood, rendering them incompatible with the rest of the system. This in turn could render the application of binding legal rules of the existing international community non-obligatory with regard to these states. Sub optimum standards and exceptions could be wielded at them instead, without ever raising the question of state equality. The latter, after all, would apply only to countries considered

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internationally sovereign states. This is the very scenario the UN Charter strives to prevent, by explicitly stipulating the sovereign equality of its signato ries in Article 2 (1). The UN Charter tri es to prevent the loss of sovereignty-based, equal rights by stigm atized states. It also attempts to ensure that the latter continue to honour the ir international obligations. If pariah-states were to be factually excluded from the international community (created by the UN Members), the y would suffer the loss of the ir communal rights, on the one hand. Another loss would be suffered by the international community, on the other hand, as it would no longer command an instrument to effectively deal with any threats emanating from these countries.P? It has to be borne in mind that a change in the legal status will not only divest stigmatized states of their rights (as equal members of the international community): it will absolve them from fulfilling their duties. Hence, there is no con cept of "international community" that stands for an evolution of int ern ational law or even the const itutionalization of the "international community", admitting at the same time the exclusion of "pariah-states" from its ranks. It is less clear, howe ver, what the exact relations between the notion of an " international community" and antonymous designations like "rogue state" are. These appea r to require further, in-d epth research, in yet another "linguistic const ruction ".

350

O n the options outside the UN Charter d. DJ Scheffer, "Staying the Course with the Int ernation al Criminal Court", Cornell Int'l L. Rev. 35 (2002), 47 et seq. (99).

All Illusions Shattered? Looking Back on a Decade of Failed Attempts to Reform the UN Security Council Bardo Fassbender

I.

II. III.

Iv. V.

Introduction The Course of the Debate since 1991 A Summary of Views on the General Structure of the Security Council 1. The Question of Permanent Membership 2. Proposals Regarding a "Third Category" of Members of the Security Council The Reform of the Veto Power Conclusion

I. Introduction In a September 2002 report, UN Secretary-General Kofi Annan spoke of the "stalled process of Security Council reform". He stated that after nearly a decade of discussions in the UN "a formula that would allow an increase in Council membership is still eluding Member States", notwithstanding the fact that "in the eyes of much of the world, the size and composition of the Security Council appear insufficiently representative";! Indeed, today prospects for a comprehensive reform of the Council, which would encompass both the body's composition and its decision-making process, are dim, and the pressure for such a reform, still strong in the early nineties, has given way to a certain ennui or resignation of the interested governments and NGOs. Was it an illusion to See "Strengthening of the United Nations: an agenda for further change", Doc. A/57/387 of 9 September 2002, para . 20. A. von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 7, 2003, 183-218. © 2003 Koninklijke Brill N. v: Printed in the Netherlands .

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believe that the Council could be adapted, in a rational process of discussions and negotiations, to a world so different from that of 1945? And are now "all illusions shattered", to quote from a song by the American singer Tracy Chapman F While the need for a "comprehensive reform of the Security Council in all its aspects", as the UN Millennium Declaration of September 2000 put it,3 is still generally acknowledged, conflicting views of Member States continue to block a solutionr' • All governments appear to support an enlargement of the Council in the category of non-permanent members (which is not to say that there is a consensus on the size of such an enlarged Council, an issue which is discussed under the opposing slogans of "representativeness" on the one hand, and "effectiveness" on the other hand). But while a majority of governments also wishes to increase the number of permanent members, others strongly object to such a change . • At the end of the nineties, the candidacies of Germany and Japan for permanent membership were almost universally supported. However, among the states favoring more permanent seats there has been disagreement about how the developing countries of Africa, Latin America and Asia should be represented in the category of permanent members. For the time being, the proposal to replace the present British and French permanent seats with a common European (EU) seat (which thus would be shared also by Germany) is unrealistic; neither the United Kingdom nor France are ready to give up their individual seats. The developing regions which are aspiring to permanent representation have so far been unable to decide on the states they want to nominate for permanent membership. The idea of having "rotating permanent members", i.e. states which would represent a region for a

2

3 4

T. Chapman, "Paper and Ink", from the album "Telling Stories" (Elektra Records, 2000). A/RES/55/2 of 8 September2000, para. 30. For a recent summary of the various proposals (which, however, does not identify the states standing behind them), see "Conference room paper submitted by the Bureau of the Working Group on the Principal Elements of Proposals Concerning (a) decision-making in the Security Council, including the veto, (b) expansionof the Security Council, and (c) the periodic review of an enlarged Security Council". Report of the Open-ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council and Other Matters related to the SecurityCouncil, Doc. A/56/47, Annex IV.

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certain number of years, that was advanced to overcome this difficulty, seems to be a contradictio in adiecto, and is very controversial. It is not sincerely supported by the most promising aspirants for permanent seats among the developing countries. Allocating permanent seats to regions instead of states is also at variance with the state-centered system of the UN Charter. • A majority of states wants to abolish or curtail the right of veto of the permanent members (Article 27 para . 3 of the UN Charter), but the present P-5 are unwilling to accept any such diminution of their status. There are also conflicting opinions about the question whether new permanent members should be entitled to the veto (and if so, all of them or only some). In recent months, this unfortunate situation has been exacerbated by the uncertainty about the future relationship of the United States with the United Nations. Already President Clinton was far from taking the lead in promoting a reform of the Security Council. Pressed by a majority in Congress openly hostile to the United Nations, he instead limited United States support for the organization to narrowly defined measures directly serving American national interests. But now much more is at stake. It is unclear whether the United States, in its fully developed role as the "only superpower", is at all interested in the existence of a world organization of a type represented by the present United Nations.f In any case it is unlikely that the present Bush Administration will advance a major reform of the Security Council. In the following sections, the original positions of United Nations Member States regarding the composition, size and voting procedure of the Council, as well as their modifications during the discussions that have taken place since 1991 will be outlined." However, it is not always

6

For a discussion of United States ambivalence about international law in the post-Cold War era, see N. Krisch, "Weak as Constraint, Strong as Tool: The Place of International Law in U .S. Foreign Policy", in: D.M. Malonel YF. Khong (eds), Unilateralism and u.s. Foreign Policy: International Perspectives, 2003, 41 (concluding that the United States "has sought to secure inequality [of states] in international law and to retain the flexibility that had traditionally characterized international rules"). See also M.l Glennon, "Why the Security Council Failed", Foreign Aff 82 (2003), 16 et seq. ("there likely will be little impulse to revive the Council"). The question of working methods and transparency of the work of the Security Council will not be addressed in this article. For an overview of the respective discussions in the early nineties, see 1. Winkelmann, "Bringing the Security Council into a New Era", Max Planck UNYB 1 (1997),35 et

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easy to assess the degree of these modifications, and the positions presently taken by governments because, in general, official statements of the last years have been much less detailed than those put forward between 1994 and 1997. Because of the long-lasting deadlock, in many governments questions of Security Council reform have not been thoroughly discussed on a high political level for several years.

II. The Course of the Debate since 1991 In the UN General Assembly, the question of "equitable representation on and increase in the membership of the Security Council" has been an item on the agenda since 1979. At that time India, supported by a number of other, mainly developing states, asserted that the increase in membership of the United Nations since 1963 - the year in which the number of non-permanent members had been raised from six to ten? had led to an under-representation of non-aligned and developing countries in the Council. It was proposed to expand the non-permanent members from ten to fourteen, and to introduce a new pattern of geographical distribution.f Another draft resolution, submitted by Latin

7

8

seq. (IlL). For a summary of improvements in the Council's working methods actually achieved over the past few years, see S.C. Hulton, "Evolving Council Working Methods", in: D.M. Malone (ed.), The United Nations Security Council, 2004 (forthcoming). See also the revised conference room paper submitted by the Bureau of the Working Group on the Working Methods of the Security Council and Transparency of its Work, Doc. A/56/47, Annex Y, and the "descriptive index to notes and statements by the President of the Security Council relating to documentation and procedure (june 1993 to August 2002)", Doc. N57/382 and S/2002/1000 of 6 September 2002, Annex. For a brief history of the 1963 amendments to the Charter, see E.C. Luck (ed.), Reforming the United Nations: Lessons from a History in Progress, 2003, 7-10, 48. The author reminds his readers of the fact that in 1963, of the five permanent members only China voted for the General Assembly resolution to expand the Security Council, "yet all [permanent members] eventually found it easier to go along with the tide for expansion" and ratified the amendments. See Draft Resolution Doc. N34/L.57 and Add .1. Four non-permanent members should come from African States, three from Asian States, and two from Western European and other States; one seat was to alternate between African and Asian States. Compare the 1963 allocation (A/RES/1991 (XVIII) of 17 December 1963):

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American states, sought to increase the Council's membership to twenty-one, sixteen of which would be non-permanent members." However, all the permanent members of the Security Council, except China, opposed any expansion.l? and no substantive discussions on the matter were held until 1991 when, at the 47th Session, eight countries revitalized the debate.'! In January 1992, the Security Council met at the level of heads of state and government for the first time in the history of the United Nations. A number of representatives, especially from developing countries, took this occasion to express the view that the structure and the working methods of the main organs of the United Nations should be reviewed after the end of the Cold War. The Prime Minister of Japan, Kiichi Miyazawa, for instance, declared that it is necessary for the United Nations to evolve while adapting to a changing world. "[S]ince the Security Council is at the center of U.N. efforts to maintain international peace and security, it is important to consider thoroughly ways

"The General Assembly,

9

10

11

3. Further decides that the ten non-permanent members of the Security Council shall be elected according to the following pattern: (a) Five from African and Asian States; (b) One from Eastern European States; (c) Two from Latin American States; (d) Two from Western European and other States". The original allocation was different. According to a "gentlemen's agreement" concluded between the permanent members in 1946, two of the then six non-permanent seats would be given to Latin America and one each to the British Commonwealth, Western Europe, Eastern Europe, and the Middle East. This arrangement became ineffective in 1955. See R. Geiger, "Comment on Art. 23", in: B. Simma (ed.), Charter of the United Nations, 2nd edition, 2002, Vol. I, 437 et seq. (440). See Draft Resolution Doc. A/34/L.63 and Add.l, amendments to IS-power draft resolution Doc. A/34/L.57 and Add.I. For further documentary references, see UNYB 1979,435-436. See P. Wilenski, "The Structure of the UN in the Post-Cold War Period", in: A. Robertsl B. Kingsbury, United Nations, Divided World, 2nd edition, 1993,437 et seq. (441). See also M. Bertrand, "The Historical Development of Efforts to Reform the UN", in: Roberts/ Kingsbury, see above, 421-436. Cf. also O. Fleurence, La reforme du Conseil de securite, 2000.

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to adjust its functions, composition, and other aspects so as to make it more reflective of the realities of the new era".12 At the summit meeting of the countries of the Non-Aligned Movement in Jakarta in September 1992, the United Nations reform became a major topic. In the meeting's Final Document, the heads of state and government declared, inter alia: "They were of the view that the veto powers which guarantee an exclusive and dominant role for the permanent members of the Council are contrary to the aim of democratizing the United Nations and must, therefore, be reviewed in line with the reform of the United Nations aimed at bringing about greater democratization and transparency in the work of all United Nations bodies. They also called for a review of the membership of the Council with a view to reflecting the increased membership of the United Nations and promoting a more equitable and balanced representation of the members of the United Nations't.P During the following months, almost global consent developed according to which the increase in membership of the United Nations, the fundamentally changed international situation after the end of the Cold War, and the new challenges faced by the organization (in areas like development, protection of the environment, and human rights, for instance) required a thorough rev iew of the structure and working methods of the major UN organs, including the Security Council. The permanent members of the Security Council who wanted to avoid a broad review of the Council's functioning and composition, were not able to contain the discussion any longer. The new current of opinion became obvious at the session of the General Assembly in November 1992. 14 As a result of this debate, the General Assembly adopted on 11 De cember 1992 Resolution 47/62, entitled "Question of equitable repre-

12

13

14

Statement at the UN Security Council meeting of 31 January 1992; see Ministry of Foreign Affairs (ed.), Diplomatic Bluebook 1992 - Japan's Diplomatic Activities, 399,401. Tenth Conference of Heads of State or Government of Non-Aligned Countries, Jakarta, 1-6 September 1992, Final Document, Chapter II: Global Issues. Political and Economic Committees, para. 32, Doc. A/47/67S. See General Assembly, Provisional Verbatim Record of the 69th Plenary Mtg, 23 November 1992, Doc. A/47/PV.69.

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sentation on and increase in the membership of the Security Council"." The developing countries, in particular, saw this resolution as an expression of the general acknowledgement that the membership of the Security Council must be changed in order to (re)establish equitable representation of all Member States on the Council, and to respond adequately to the "changed international situation" which the document refers to in its preamble. In its operative part, the resolution requested the Secretary-General "to invite Member States to submit ... written comments on a possible review of the membership of the Security Council". The Secretary-General presented the comments submitted to him in a report dated 20 July 1993, and four addenda to this report.!" Altogether, seventy-five Member States from all regions replied. The submissions can be regarded as the most comprehensive statement of the original UN Member States' policies with regard to a reform of the Security Council. At its 48th Session, the General Assembly, on the basis of the report submitted by the Secretary-General, discussed the matter in three plenary meetings during which fifty-seven delegations took the opportunity of communicating their viewsY The debate led to the consensual adoption of Resolution 48/26 of 3 December 1993, by which the General Assembly decided "to establish an Open-ended Working Group to consider all aspects of the question of an increase in the membership of the Security Council and other matters related to the Council't.l" In the resolution's preamble, the General Assembly recognized as the two 15

16

17

18

The draft resolution was sponsored by 37 Latin American, African and Asian states, among them Brazil, Egypt, India, Indonesia, Japan, and Mexico; see Doc. A/47/L,26, A/47/L,26/Rev.l, and A/47/L,26/Rev.1/Add.1. "Question of Equitable Representation on and Increase in the Membership of the Security Council. Report of the Secretary-General", Doc. A/48/264 and Add.l, Add.2 and Add.2/Corr.l, Add.3 and 4. General Assembly, 48th Sess.; Provisional Verbatim Records of the 61st, 62nd and 64th Plenary Mtgs, 23 and 24 November 1993. Doc. A/48/PV.61, A/48/PV.62 and A/48/PY.64. For an analysis of the discussions of the Working Group up until 1998, see B. Fassbender, UN Security Council Reform and the Right of Veto: A Constitutional Perspective, 1998, 221-275, and Winkelmann, see note 6. For brief evaluations of the first stage of discussions, see B. Fassbender, "The Gordian Knot of Security Council Reform", German Comments, No. 45 (january 1997), 55 et seq., and id., "Reforming the United Nations", Contemporary Review 272 (1998), 281 et seq.

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primary reasons for the need to review the Council's membership "the substantial increase in the membership of the United Nations, especially of developing countries, as well as the changes in international relations'L'? The mandate of the Working Group was extended by the General Assembly at its 48th through 57th Sessions.P Participation in the Working Group is open to all Member States an issue which, in the course of the Group's work, has recurrently been raised by delegations whenever the vice chairmen tried to speed up discussions by inviting only certain states to consultations in "closed session". The broad formulation of the Working Group's mandate in this 1993 Resolution is a reflection of the general view that the issue of increasing the membership of the Security Council can not be looked at in isolation. There were, however, different expectations behind this consensual readiness to also deal with "other matters related to the Council". The industrialized states, generally trying to restrict the reform debate to a few "manageable" items, hoped to be able to fend off claims regarding an increase in membership they regarded as inappropriate by making some concessions concerning the Council's working methods, and its interaction with non-members of the Council, regional groups and troop-contributing countries. The developing countries, on the other hand, wanted to broaden the discussion so that it would include, for instance, the question of how to strengthen the role of the General Assembly and of the ICj, respectively, vis-a-vis the Security Council in the field of international peace and security.

19

20

This decision implied that the Committee on the Charter of the United Nations and the Strengthening of the Role of the Organization, which the General Assembly had established in 1975 and the standing of which had suffered from the fact that in more than 15 years its work had been basically fruitless, was not to become the central forum for addressing questions of Security Council reform. For the Committee's latest report, see Doc . A/57/33, for discussion of the report by the Sixth Committee of the General Assembly Doc. A/57/566 of 11 November 2002. See GA Decisions A/48/498, GAOR 48th Sess., Suppl. No. 49, Vol. II, 59; A/491499, GAOR 49th Sess., Supp!. No. 49, Vo!. II, 39; A/50/489, GAOR 50th Sess., Supp!. No. 49, Vo!. 11,49; Al511476 , GAOR 51st Sess., Suppl, No. 49, Vo!. III, 128; A/52/490, GAOR 52nd Sess., Supp!. No. 49, Vo!. III, 58; A/53/487, GAOR 53rd Sess., Suppl, No. 49, Vo!. III, 58; A/54/488, GAOR 54th Sess., Supp!. No. 49, Vo!. III, 78; Al55/503, GAOR 55th Sess., Suppl. No. 49, Vo!. III, 93; A/56/477, GAOR 56th Sess., Supp!. No. 40, Vo!. III, 98.

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The"draft timetable and programme of work for the first round of discussions"!' in the Open-ended Working Group which delegations agreed upon on 1 March 1994, listed the topics that were viewed as constituting the core of the questions the Group had to consider. The programme organized the topics in two so-called "clusters" which determined the Group's agenda: "[1] Equitable representation on and increase in the membership of the Security Council, including regional distribution, categories of membership, numbers, and modalities of selection [II] Other matters related to the Security Council: - Relationship of the Security Council with the General Assembly, other bodies and organizations as well as non-members of the Security Council, - Reform by the Security Council of its working methods and procedures (effective and efficient functioning of the Security Council; decision-making in accordance with the provisions of the Charter; elections and terms of office) Modalities for bringing changes into effect and consideration of related Charter amendments". The Working Group, under the chairmanship of the President of the General Assembly, began its substantive work on 1 March 1994. In the first year, the meetings were generally attended on the ambassadorial level. Since discussions of the Working Group are not open to the public and no official records are kept, the observer mainly must rely on the annual reports submitted by the Group to the General Assembly, press releases of the Member States' missions and information obtained from members of delegations. Further, there are so-called "non-papers" presented and periodically revised by the vice-chairmen of the Group, which try to summarize and organize the views expressed by Member States, indicate major lines of thought and identify areas of agreement. The "non-papers" are not agreed upon in consultations. For this reason, it is not surprising that some Member States objected to their contents and evaluations. In September 1994, the Working Group submitted its first report to the General Assembly.V On 13 and 14 October 1994, the Assembly 21

22

Blank dated. The documents relating to the work of the Working Group and the statements of delegations of Member States quoted in this article are all on file with the author. See Doc. A/48/47, GAOR 48th Sess., Suppl, No. 47.

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discussed the "question of equitable representation on and increase in the membership of the Security Council and related matters" as agenda item 33. Fifty-seven Member States participated in the debate.P In the following years, too, the question was placed on the Assembly's agenda and discussed by it. 24 The Special Commemorative Meeting of the General Assembly on the occasion of the fiftieth anniversary of the United Nations in October 1995 provided an opportunity for Member States unanimously to reaffirm at the highest political level their agreement to expand the membership of the Security Council. At this meeting, the heads of state, government and delegation adopted a declaration, the relevant passage of which reads as follows: "The Security Council should, inter alia, be expanded and its working methods continue to be reviewed in a way that will further strengthen its capacity and effectiveness, enhance its representative character and improve its working efficiency and transparency".25 Similarly, the UN Millennium Declaration, adopted by the heads of state and government on 8 September 2000, said that Member States will intensify their efforts "to achieve a comprehensive reform of the Security Council in all its aspects".26 On 20 March 1997, the President of the General Assembly and chairman of the Group, Ambassador Ismail Razali of Malaysia, presented a paper in the form of a draft resolution.F The Razali plan is widely regarded as the culmination of the most productive phase of discussions in the Working Group.28 He proposed that in a first stage, the General Assembly should adopt with a simple majority a resolution calling for the Council to be

23

24 25 26 27

28

See General Assembly, 49th Sess., Provisional Verbatim Records of the 29th to 32nd Plenary Mtgs 13 and 14 October 1994, Docs A/49/PV.29 A/491PY.32. For the latest discussions, see GAOR 57th Sess., Prov isional Verbatim Records of the 27th to 32nd Plenary Mtgs, 14-16 October 2002, Doc.A/57/PV.27 - A/57IPV.32. Declaration on the Occasion of the Fiftieth Anniversary of the UN, A/RES/50/6 of 24 October 1995, para. 14. See A/RES/55/2 of 8 September 2000, para. 30. See Doc. A/AC.247/1997/CRP.l and A/51/47, Annex II. See I. Winkelmann, "Das Postulat einer starkeren Beteiligung des Siidens am Sicherheitsrat der Vereinten Nationen", in: J.A . Frowein et al. (eds), Verhandeln fur den Frieden- Liber Amicorum Tono Eitel, 2003, 229 et seq. (238).

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enlarged by five permanent and four non-permanent members. The resolution would allocate the new permanent seats to the "industrialized states " (2) and to the developing states of Africa (1), Asia (1), and Latin America and the Caribbean (1). The new permanent members would not enjoy the right of veto. Of the four new non-permanent seats, one would go to Africa, one to Asia, one to Eastern Europe , and one to Latin America and the Caribbean. In a second stage, specific states would be designated as permanent members by a vote of twothirds of the members of the General Assembly. A week later, in a third stage, the necessary amendments to the Charter would be adopted by the Assembly in accordance with Article 108 of the UN Charter. Ten years after the entry into force of the amendments, a conference would be convened under Article 109 of the Charter "in order to review the situation created by the entry into force of these amendments". However, this attempt to achieve a Council reform in a step-by -step approach (shuffling the stumbling stone of a two-thirds majority of the general membership necessary for a Charter amendment to the very end of the process) was repudiated by the General Assembly on 23 November 1998, when it determined, referring to Chapter XVIn of the UN Charter, "not to adopt any resolution or decision on the question of equitable representation on and increase in the membership of the Security Council and related matters, without the affirmative vote of at least two thirds of the Members of the General Assembly". 29 The primary opposition to the Razali plan came from mid sized states which felt that they would be somewhat disenfranchised under a plan elevating certain large developing countries to permanent member status without reducing the current number of permanent members.P

III. A Summary of Views on the General Structure of the Security Council In September 1995, the Vice-Chairmen of the Group summarized the state of the debate as follows:

29

30

A/RES/53/30 of 23 November 1998. (Emphasis added). In contrast the second stage resolution proposed by Razali could have been adopted by a two-thirds majority of the General Assembly members "present and voting" (Article 18 para. 2 of the Charter). See Luck, see note 7, 50.

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Max Planck UNYB 7 (2003)

"Discussions showed that there was agreement in the Open-ended Working Group on the need to strengthen the effectiveness of the Security Council by an increase in its membership in order to reflect more accurately the important international changes that have taken place, including the substantial increase in the membership of the United Nations, especially of developing countries. Discussions further showed that there was agreement on the need to review the Council's composition, its working methods, and other matters related to its functioning't.t! By and large, this statement is still accurate today. Positions on concrete proposals could not be reconciled. Many states, among them the members of the African Group, seek an increase in both permanent and nonpermanent membership; they constitute a clear majority.V Some delegations (in particular Argentina, Canada, Italy, Libya, Mexico, Pakistan and Turkey) have supported an increase in the non-permanent membership only, while others (like the Republic of Korea and Sweden) propose a reform process in stages, the first stage being an enlargement limited to non-permanent members. However, criteria and modalities for the election of non-permanent members remain to be agreed upon. Proposals aiming at an introduction of new categories or types of Council membership, which had some importance in the early discussions of the Working Group, remain on the agenda but appear to enjoy very limited support. Views are divided on how, if there was to be an expansion in permanent membership, such members should be elected, 3!

32

" O bservations on and assessment by the Vice-Chairmen of the progress of the work of the Open-ended Working Group during the forty-ninth session of the General Assembly", Doc. AlAC.247f1 of 15 September 1995, reprinted in: Doc. A f49f965 of 18 September 1995, 5. According to informal consultations of the vice-chairmen of the Openended Working Group with representatives of 165 member states held in early 1997, a "very large majority" of governments supported an increase in both categories of Council members. See Doc. Al51/47 of 8 August 1997, Annex VI. The majority view is shared by Germany. See Permanent Mission of Germany to the UN, "Security Council Reform: Germany's position" (2002): "Expansion of the non-permanent category only would not represent a genuine reform of the Security Council. Such a one-sided expansion would leave the current balance of power in the Council unaf fected. This current balance of power does not reflect today's realities". For an explanation of the present official German position, see also G. Pleuger, "Die Reform des Sicherheitsrates der Vereinten Nationen", in: S. von Schorlemer (ed.), Praxishandbuch UNO: Die Vereinten Nationen im Lichte globaler Herausforderungen, 2003, 683 et seq.

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and whether formal criteria such as those contained in Article 23 para. 1 of the Charter should guide such an election. In the event that there is agreement on an increase in the permanent membership, an increase only by industrialized countries is widely regarded as unacceptable. If one takes a general look at the proposals, the question of a reform of the Security Council is first of all a North-South issue. The industrialized states of the Northern hemisphere, which make up four of the five permanent members and to which, according to the 1963 allocation, are assigned three of the ten non-permanent seats (leaving aside the two Latin American seats), acknowledge that the increase in the general membership from 51 in 1945 to 113 in 1963 and 191 in 2002 suggests that the number of Council seats should again be raised.P The Northern industrialized states, however, want to limit an increase in the overall membership of the Security Council since any such increase would necessarily amount to a certain restraint on their influence and, according to the official reasoning, might impede the Council's ability to fulfill its mission speedily and effectively ("efficiency and effectiveness" argument) . In particular, the permanent members have been reluctant to say that the Council, in its present composition, is unrepresentative. The developing nations of the Southern hemisphere, on the other hand, tend to promote a stronger increase in the Council's membership in order to improve their representation on the body. The figures most commonly quoted in the discussions of the Working Group seem to be between twenty and twenty-five, the lowest and highest figures being twenty and thirty, respectively.-" The Movement

33

34

In recent years, Germany has become a particularly vocal supporter of a stronger representation of Southern developing states on the Council. See Winkelmann, see note 28. See also B. Fassbender, "Die prekare Stellung des Siidens im Volkerrecht der Gegenwart", Politiscbe Studien 357 (1998), 99 et seq. For the United States position in the days of the Clinton Administration, see Bureau of International Organization Affairs, Department of State, "US Fact Sheet on UN Security Council Expansion" of 5 January 2000: "The overall size of the Council should be limited to a maximum of 20 or 21, in order to ensure that it will continue to function efficiently". The German Government declared: "A total of 24 seats should strike the necessary balance between enhancing the opportunities for participation and maintaining the efficiency of the Council". See "Germany's Position ", see note 32.

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of Non-Aligned Countries and the African Group favor a Council of at least twenty-six members.V Of course, this contrasting of North and South holds good only in very general terms because there are numerous differences of opinion within the two "camps", and overlappings of views which make developed and developing nations find some common ground. There is, in particular, general agreement about the fact that the number of non-permanent members should be raised," and that the criteria contained in Article 23 para. 1 of the Charter should, by and large, remain valid. In contrast, different opinions exist as to whether additional (and, if so, which) criteria should be applied, and whether the chances of smaller states of being selected for non-permanent membership by their regional groups should be enhanced. Some delegations pointed to the lack of uniformity in the way regional groups select candidates and suggested that the selection procedures could be unified to ensure equality of treatment across regions. Proposals for a new distribution of seats among regional groups, and for a new definition of these groups , usually favor the developing countries and seek to reduce the number of European and Western seats. Other proposals intend to regularize the practice of selecting certain states more often for nonpermanent membership. Views have also been expressed in support of, and against, lifting the ban on immediate re-election of non-permanent members (Article 23 para. 2 of the Charter).

1. The Question of Permanent Membership On the part of the Northern industrialized states, there are still severe differences with regard to changes in the Council's permanent membership. The Minister for Foreign Affairs of Singapore quite frankly addressed the crucial points: "[I]f the new Security Council is really to reflect the current international distribution of power, it should logically entail the reiega35

36

See Final Document of the Twelfth Ministerial Conference of the Movement of Non-Aligned Countries of 8 April 1997, Doc. NAC/FM/Doc.1I Rev.3, para. 28. For the German view, which coincides with the Razali plan of 1997 (see text accompanying note 27), see "Germany's position", see note 32: "We also favour four new non-permanent seats, three for Africa, Asia, Latin America and the Caribbean as well as one for Eastern Europe."

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tion of some from the elite as well as the anointment of others. Even if some were to be so elevated without necessarily displacing others, the expansion of the small group of the select would imply the relative diminution of the status of the current permanent mernbers 't.V Already the Administration of President George H .W Bush had favored permanent membership for Japan and Germ any, and President Clinton adopted this policy." Pointing to the two states' "record of constructive global influence and their capacity to sustain heavy global responsibilities", the American representative even said in the November 1995 debate of the Gen eral Assembly that the United States "enthusiastically endorsers] the candidacies of Japan and Germany", and that it "could not agree to a Council enlargement that did not result in their permanent membership'l.'? The Administration regarded both countries as economically potent Western democracies which it expected substantially to share the burden the United States must carry in the post -Cold War world.40 In October 2002, the Administration of President George W. Bush affirmed the policy goal of its predecessors ("a reformed Council, with Japan and Germany assuming permanent seats ")." It remains to be seen whether the recent difference of opinion between the United States and Germany in the question of the war 37

Speech by Mr. Won g Kan Seng, Minister for Forei gn Affairs of the Republic of Singapore, at the 48th Sess. of the General Assembly, 6 O ctober 1993. 38 See, e.g., Joint Remarks by President Clinton and Jap anese Prime Minister H osok awa, New York City, N .Y., Federal N ews Service, 27 September 1993. 39 Statement by Amb assador Inderfurth, 14 November 1995, General Assembly, 50th Sess., Provisional Verbatim Record of the 58th Plenary Mtg Doc. A/50/PV.58, 5. See also statement by Ambassador Inde rfurth in the Openended Working Group, 27 March 1996, Press Release of the United States Mission to the United Nations 39-(96) of 27 March 1996, 1. 40 See United States statement of 30 June 1993, Doc. A /48/264, see note 16, at 92: "[T]he United States supports permanent membership for Japan and Germany as well, full y recognizing that permanent membership entails assuming an active role in global peace and security activities". (Emphasis added.) 41 See statement by Amb assador Siv at the General Assembly of 14 O ctober 2002, Doc. A/5 7/PV.27, 10. See also Bureau of Internation al Organization Affairs, Department of State, Fact Sheet "U nited N ations " of 26 N ovember 2002: "The U .S. supports permanent seats on the Securi ty C oun cil for Japan and Germany and a mod est further enlargement of the Council to include permanent seats for developi ng nations from Asia, Africa, and Latin America".

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Max Planck UNYB 7 (2003)

against Iraq will make the Administration change its position.F Cautiously, the Clinton Administration declared that it was "prepared to accept three additional permanent seats for developing nations from the regions of Africa, Asia, and Latin America".43 However, the United States strictly opposed the idea of granting any developing country the right of veto. The United Kingdom and France, on the other hand, initially were reluctant to accept the idea of additional permanent seats. It was clear from the beginning that any such addition would give testimony to a relative loss of global power of the United Kingdom and France and might also increase Germany's regional influence in Europe, thus adding to the "imbalance" that was brought about by Germany's reunification in 1990. However, in the nineties both states became strong supporters of Germany's and Japan's candidateships. They realized that only by supporting Germany they could bring to a stand the increasing demand for a joint European (EU) seat. France later also decided to support India's aspiration to become a permanent member.t" Russia's and China's statements on the subject continue not to be very outspoken. Neither state appears really to welcome the prospect of German and Japanese permanent membership. In a more recent Russian pronouncement, Germany and Japan were not mentioned, but India was called "a strong and worthy candidate for permanent membership".45 The People's Republic of China presents itself as a representative of the developing countries. Repeatedly, China has declared that "at the present time, the main reform task should be the increase, as a priority, of membership of the developing countries in the Council in accordance with the principle of equitable geographical distribution'l.t" It

42

43 44

45

46

For a sceptical view, see T. Eitel, "Partner in den Vereinten Nationen", Deutschland 1 (2003),40 et seq. (45) ("in the foreseeable future, a German permanent seat will hardly find American support"). See United States fact sheet of 5 January 2000, see note 34. See statement by the representative of France, Mr. Levitte, at the General Assembly of 15 October 2002; Doc. A/57fPV.30, 9. See statement by Mr. Ordzhonikidze, Deputy Foreign Minister of the Russian Federation at the General Assembly, 31 October 2001, Doc. A/56fPV.34,16-17. See statement by Mr. Zhang Yishan at the meeting of the Open-ended Working Group, 10 February 2003.

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will thus not be easy to win China's support for any improvement in the position of Western capitalist states on the Council. Since 1992, Japan and Germany increasingly stressed their "willingness" to become permanent members of the Security Council.t/ Germany also favors the inclusion of three developing countries (one Asian, one African, and one Latin American) in the circle of permanent members, a concept that has been described as the "2+3" proposal, and which aims at creating a certain balance between developed and developing countries (or the North and the South) within the permanent membership (six developed countries compared to four developing countries). To make its candidacy even more palatable, Germany also proposed a so-called periodic review clause to be included in Article 23 of the Charter. A review, compulsorily taking place after fifteen years, was said to "guarantee that an increase in both membership categories is not irreversible". "All new permanent and non-permanent seats would be subject to re-examination after a certain period. As far as new permanent members are concerned, their status will be permanent but not eternal. ... The performance and the action of any new permanent member will be taken into account at the moment of review. Any new permanent member could be replaced. "48 However, neither Japan nor Germany pushed hard for a permanent seat in the past decade, and domestic political and public interest in, and support for, that goal remained weak in both countries. The candidacy of Japan and Germany for a permanent seat is supported to a varying degree. A number of states advocated permanent membership for Japan and Germany only if this membership will not entail the right of veto. Italy turned out to be one of the fiercest oppo47

48

See, e.g., speeches of Mr. Morihiro Hosokawa, Prime Minister of Japan , and Mr. Klaus Kinkel, German Minister of Foreign Affairs, before the 48th Sess. of the General Assembly, 27 and 29 September 1993, respectively. See also statement of German Ambassador Eitel, 13 November 1995, General Assembly 50th Sess., Provisional Verbatim Record of the 56th Plenary Mtg., Doc. Al50/PV.56, 24-25. See "Periodic review clause: working paper by Germany", 3 July 1996, Doc . AlAC.247/1996/CRP.15/Rev.l, reprinted in: "Report of the Openended Working Group", Addendum", 9 September 1996, Doc. A/50/47/ Add.1 , Annex XIV See also "Germany's position", see note 32: "Periodic review must be an integral part of any reform package and it must be compulsory, i.e. appear automatically on the General Assembly's agenda. Periodic review should apply to the whole reform package. It should occur every 15 years".

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nents of new permanent seats. In its view, the "2+3" proposal "would benefit only two or five Members of the United Nations, to the detriment of the remaining". "The end result would be a small directorate of big countries, making critical decisions on questions that affect us all, but on which we would have no say .. . "49 Italy's main motive appears to be the country's status in comparison to that of other European states. A German permanent seat, in addition to those held by the United Kingdom and France, is regarded as evidence of Italy's decline to a power of secondary rank in Europe. Whereas Italy first held that "should it be decided to increase the number of permanent members, Italy feels entitled to be one of them",50 it later proposed to leave the permanent members at five, and increase the Security Council by adding ten new non-permanent seats reserved for states rotating more frequently than others.t! These states are to be selected "on the basis of objective criteria" to be determined by the General Assembly. Italy challenges "the political, geopolitical or global - and not merely financial - entitlement" for obtaining the "privilege" of permanent membership.V Smaller countries were generally less disturbed by possible changes within the group of the leading military and economic powers to which they clearly cannot count themselves. By June 1996, about fifty governments of such countries - developing nations as well as industrialized ones - had publicly announced their support for Japan's and

49

50 51

52

Statement by Ambassador Fulci, 13 November 1995, General Assembly 50th Sess., Provisional Verbatim Record of the 56th Plenary Mtg, Doc. A/501PV.56, 16. For a comprehensive depiction of the Italian position, see Comitato Nazionale per fa Celebrazione del Cinquantesimo Anniversario delle Nazioni Unite (ed.), La Riforma del Consiglio di Sicurezza: Una Proposta Italiana - The Reform of the Security Council: An Italian Proposal, 1996. Italian statement of 30June 1993,Doc. Al481264, see note 16, 52. See statement by Ambassador Fulci, see note 49, 17. See also the revised Italian proposal for the enlargement of the Security Council of 15 May 1995, Doc. A/AC.247/5 (g), reprinted in: Doc. A/49/965 of 18 September 1995, 83-91, and the [second] revised proposal presented to the Working Group in May 1996, Doc. A/AC.247/1996/CRP.ll of 12 June 1996, reprinted in: "Report of the Open-ended Working Group", Addendum, see note note 48, Annex IX. See statement by Ambassador Sergio Vento at the General Assembly, 15 October 2002, Doc. A/57/PV.29, 21.

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Germany's candidacies.53 Other states were, however, opposing any new permanent seats. Their objections were prominently voiced by Pakistan: "We believe that any increase in the permanent membership would serve the interests of only a few countries, and would be to the det riment of small and medium sized countries, who constitute an overwhelming majority of the membership of the United Nations. Pakistan remains strongly opposed to the centers of privileges within the UN system. These are anachronistic, anti-democratic, and contrary to the spirit of sovereign equality as enshrined in the UN Charter. "54 At the beginning of the debate, the Northern industrialized states rather disliked the idea of creating new permanent seats for developing countries. The main argument put forward was the same as that used against anything but a modest increase in the number of non-permanent seats. It is best captured in the two words "efficiency" and "effectiveness", The former is meant to describe the Council's ability to deal swiftly with a situation that falls within its sphere of competence, that is to say, to adopt necessary measures without delay. "Effectiveness" shall characterize the degree to which the Council's decisions are actually implemented. The more "players" there are, so runs the argument , the less efficient and effective the work of the Council will be. Later, this position changed, particularly in view of the firm position of the African states without which a majority necessary for Charter reform cannot be obtained. The United Kingdom declared to be in favor of "additional seats for Asia, Africa and Latin America and the Caribbean". "As to the nature of those additional seats, we remain open-minded, although the views of the regions themselves will clearly be important't.>! Germany, too, came out in favor of new permanent

53 54

55

Information provided by the German Mission to the United Nations. See also statements reproduced in Doc. A/481264 and Addenda, see note 16. Intervention by Ambassador Kamal before the Open-ended Working Group, 27 March 1996, 2. Similarly the statement by the representative of Pakistan at the General Assembly of 14 October 2002, Doc. A/57/PV.28, 29. See also statement by the representative of Argentina, ibid. 20. Statement by Mr. Manley to the Open-Ended Working Group, 28 March 1996, United Kingdom Mission to the UN, Press Release 023/96 of 28 March 1996, 2.

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seats for developing countries. Norway'" and, in a joint paper of 9 May 1995, Austria, Belgium, the Czech Republic, Estonia, Hungary, Ireland and Slovenia also suggested giving Africa, Asia and Latin America one permanent seat each.V Portugal supported one additional seat for Africa and another one for Latin America.V Most importantly, the United States announced in July 1997 that it endorsed the proposal of giving three new permanent seats to developing countries. "The regions themselves [i.e., Africa, Latin America, and Asia] ought to decide how these seats will be filled". The Clinton Administration did not take a position on the question of a veto for new permanent members, including Japan and Germany, but declared that it would oppose any solution that would infringe on the prerogatives of the current permanent members." Besides the question of the veto, it was the inability of the three regions to agree on states that would represent them as permanent members which prevented the emergence of a consensus. The candidacy of Brazil is opposed by Latin American Spanish-speaking countries (in particular Mexico, Argentina and Columbia), and India's claim is strongly rejected by Pakistan. In Africa, the post-Apartheid Republic of South Africa and Egypt emerged as strong competitors of Nigeria. Proposals favoring certain types of rotating or "semi-permanent" seats were put forward in order to overcome these difficulties. Apparently there is also some opposition on the part of the franco phone African countries against the aspirations of Nigeria, South Africa and Egypt which are all English-speaking. The views of the developing countries with regard to an increase in the number of permanent seats of the Security Council are also by no means unanimous. Common ground is still reflected by a 1995 statement of the Movement of Non-Aligned Countries which since then has

56

57

58

59

Statement by Ambassador Lian to the Open-ended Working Group, 25 March 1996,3. Doc. A/AC.247/5 (c), reprinted in: Doc. A/49/965, 68, 69. See also the joint position paper of the Nordic Countries (Denmark, Finland, Iceland, Norway and Sweden) of 14 June 1995, Doc. A/AC.247/5 (j), reprinted in, Doc. A/49/965,104. Statement by Portugal to the Open-ended Working Group, 30 January 1995,3. See statements by the spokesman of the Department of State of 17 and 18 July 1997; United States Department of State, Daily Press Briefing Nos 108 and 109.

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often been repeated: "The non-aligned countries are grossly underrepresented in the Council. This under-representation should, therefore, be corrected by enlargement of the Security Council ... The extent, nature and modalities of the expansion of the Security Council should be determined on the basis of the principles of equitable geographical distribution and sovereign equality of states".60 However, it is still controversial how exactly these goals shall be achieved. In particular, the question of permanent membership and the veto is highly contentious. A small number of developing countries wish the category of permanent membership, and the veto power which it entails, to be abolished altogether because of its "undemocratic character". Cuba, for instance, ridiculed the permanent membership as "a quasi-divine right", leaving the members of the United Nations as a whole no opportunity periodically to confirm the P-5 in their status. "The 'right' to initiate warfare, conclude peace, impose sanctions, deploy military forces and so forth is in the hands of those who would use the United Nations, and in particular the Council, for their own, not always legitimate, political ends".61 A more significant opponent of new permanent members is Mexico.fA larger number of developing countries, however, does not question the existence of permanent members but favors additional permanent seats for the Southern hemisphere. In particular, the Member States of the Organization of African Unity (now African Union), though emphasizing that "[ujltimately ... all members of the Security Council would be elected according to the principle of equitable geographical representation", adopted this position.P The key phrase re-

60

Statement of the Movement of Non-Aligned Countries of 13 February 1995, Doc. A/AC.247/5 (i), reprinted in: Doc. A/49/965 of 18 September 1995,94. 61 Cuban statement of 29 June 1993, Doc. Al48/264, see note 16, 29 (31-32). 62 See, e.g., remarks by Ambassador Tello to the Open-ended Working Group, 22 April 1996, 1-2, and statement by the representative of Mexico at the General Assembly, 14 October 2002, Doc. A/57/PV.27, 16. 63 See "Reforrnes des Nations Unies: Position Africaine Commune", OAU Doc. NY IOAU/POLl84/94 Rev. 2 of 29 September 1994, paras 31, 33,34. English translation issued as Doc. AIAC.247/1996/CRP.6 of 25 April 1996, and reprinted in "Report of the Open-ended Working Group", Addendum, see note 48, Annex IV. See also the "Harare Declaration of the Assembly of Heads of State and Government of the OAU on the Reform of

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ferred to most often in this context stems from Article 23 para. 1 of the UN Charter, according to which the General Assembly, when electing the ten non-permanent members of the Security Council, shall pay due regard "in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution"(emphasis added). The developing countries in question want to extend the scope of application of the latter criterion to the selection of permanent members. In the last analysis, the criterion shall even take precedence over the others mentioned in Article 23. Accordingly, the respective governments point to the fact that presently three of the five permanent members of the Security Council are European states; that Asia, with only one member, is underrepresented; and that Latin America, including the Caribbean region, and Africa are not represented at all. From this they draw the conclusion that additional permanent seats have to be allocated to Asia, Latin America and Africa. This claim is further backed by the explanation that the states of these regions constitute the overwhelming majority of the total membership of the United Nations, and represent the great bulk of the world's population. On 29 September 1994, the Council of Ministers of the Organization of African Unity unanimously declared Africa to be entitled to two permanent seats, to be occupied on a rotating basis according to criteria to be established by the OAU. 64 The representative of Tunisia, setting forth the African proposal, made it understood that Asia and Latin America should equally get two such seats.65 The demand was reiterated by the speaker of the African Group in the General Assembly in October 2002.66 By way of summary, it may be said that there is wide support for three additional permanent seats for developing states (one for Africa,

64

65

the United Nations Security Council" of 4 June 1997; Doc. A/AC.2471 19971CRP.ll of 27]une 1997. See "Position Africaine Commune", see note 63, para. 34. For discussion, see N.M. Mulikita, "Kooperation und Differenz: Die OAUIAU und der Sicherheitsrat", Vereinte Nationen 50 (2002), 44 et seq. (47 et seq.). See statement by the Permanent Representative of Tunisia, Ambassador Slaheddine Abdellah, to the Open-ended Working Group, 25 March 1996, 1.

66

See statement by the representative of Ethiopia, Mr. Hussein, on behalf of the African Group of 16 October 2002, Doc. A/57/PV.31, 19.

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one for Asia, and one for Latin America and the Caribbean), but no consensus in the three geographic areas on which states should be nominated for permanent membership or how exactly a system of "rotating permanent seats" would work. The Western states have generally rejected the idea that the criterion of equitable geographical distribution should be decisive for the selection of permanent members, and laid more stress on the contribution of member states to the maintenance of international peace and security and/or the other purposes of the organization. A number of states, from the developed as well as the developing world, came forward with often lengthy catalogues of criteria which should govern the selection of permanent members or members constituting one of the differently designed groups of "semi-permanent members". According to most of these proposals, the criteria shall only be applied to new members. Some states, however, want to submit even the present permanent members to them. The governments of India and Nigeria have particularly stressed the importance of the size of population of a given country. They hold the view that the principle of democracy entitles countries with a large population to increased rights of participation in the international sphere.s? The other criteria listed by India are "size of economy, its resilience and self-sufficiency in terms of raw material supply and markets", a member-state's contribution to UN peace-keeping operations with troops and money, and the "future potential" of a state. Germany declared that countries selected to serve as permanent members "should have global influence and demonstrate the capacity and a willingness to contribute to the maintenance of international peace and security". 68 However, these efforts to establish common standards for (future) permanent and "semi-permanent" members of the Security Council have met with mixed response. The British Ambassador called them "an academic exercise t.s? It appears that lately only Tunisia has tried to re67

68

69

See, e.g., Indian statement of 29 June 1993, Doc. A/48/264, see note 16, 46 (48-49). See also the Nigerian statement of 30 June 1993, ibid., 70, 72 (referring to the phrase "We the peoples of the United Nations" in the preamble of the UN Charter as "encapsulat[ing] the notion of peoples, the aggregation of which is the population of the world"). See Germany's position, see note 32. Statement by Ambassador Gomersall at the Open-ended Working Group, 27 May 1994. Similarly the French non-paper of April 1996 "Questions relatives ala composition et ala taille du Conseil de Securite", para. (a).

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vitalize the idea when it suggested applying the following "criteria for enlargement": geographical representation; economic significance and financial contributions to the United Nations; size of population; identities and cultures."

2. Proposals Regarding a "Third Category" of Members of the Security Council The idea of creating a "third category" of members of the Security Council - which would enjoy a "better" status than the nonpermanent members but not the privileges of the present permanent ones - has found substantial support during the discussions of the Open-ended Working Group. The respective proposals are closely linked with the problem of the veto power in that one of their major concerns is to prevent a further proliferation of the veto. Certain "mid-sized" states, realizing that their chances of becoming permanent members are minimal, see a "third category" as a possibility of being represented more often on the Council. Lastly, some governments support the idea because they fear it might not be possible at all to reach agreement on an increase in the permanent membership. In their opinion, the aspirations of the respective states should then, for the sake of the organization, at least be accommodated as far as possible. According to the different motives, proposals for a "third category" vary. One such category would be established by adding to the present P-S a group of permanent members without the right of veto. This concept is supported by a number of states, in particular those who regard permanent membership for Japan and Germany as a necessity but, for a variety of reasons, reject the right of veto. Another "third category", in addition to the one just mentioned or standing by itself, would be constituted by a group of "regional representatives serving a long term of office", as the Chilean Government proposed." Similarly, Belize suggested a so-called "indefinite membership" to replace the present category of permanent membership: "Tenure would be indefinite in the sense that it would be of longer duration

70

71

See statement by the representative of Tunisia, Mr. Mejdoub, at the General Assembly of 15 October 2002, Doc. A/57/PV.30, 6. Statement by Chile, 30 June 1993, Doc. A/48/264, see note 16, 15 (17).

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than the two years for regular members. The period could conceivably be five years."72 As mentioned before, the Organization of African Unity has claimed two permanent seats for Africa." The OAU wants Asia and Latin America equally to be endowed with two seats. These seats ("permanent regional rotating seats") shall rotate among members of the respective regional group, according to criteria established by the region. Although the seats are described as a "privilege of the regions entitled to them", membership on the Council shall be governed by the rules of the Charter. What is meant by this was made clear in a statement by Tunisia: "The country which occupies that seat will have to enjoy the veto right and would not have to consult with other states of that region before exercising it",74 The states shall be designated by the region (for a period of approximately four to six years, with the possibility of immediate re-election) and be elected by the General Assembly, this procedure being not unlike the one presently observed with regard to non-permanent members. Actually, this proposal seems to be based on the idea of lifting the ban on immediate re-election of nonpermanent members (Article 23 para. 2 in fine of the Charter) as advanced by Germany and other states. It goes beyond that idea in that the normal terms of two years shall be exceeded and the role of the respective regional group be strengthened. The African states see this approach as a first step towards a more far-reaching democratization of the Council: "In time, the present permanent members should also be subject to nomination by their regions and election by the General Assembly",75 A different plan aiming at the creation of a "third category" was based on global rather than on regional considerations. Turkey advanced the idea of "creating ten new seats to be rotated among a specific

72

7J

74 75

Submission made by the delegation of Belize to the Open-ended Working Group, 15 September 1995, reprinted in: Doc. A/49/965, 71 (74). For a similar proposal (semi-permanent membership, without the right of veto, for two states of each of the five regions, the states rotating every two years), see L.B. Sohn, "Modernizing the Structure and Procedure of the Security Council", in: R.J. Dupuy (ed.), The Development of the Security Council: Peace-keeping and Peace-building, 1993, 385 (388-90). See supra text accompanying note 63 et seq. Statement of 10 May 1996, 3-4. "Position Africaine Commune", see note 63, para. 36; Harare Declaration, see note 63, para. 3.

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number of States" which would be determined according to the following criteria: population, geopolitical situation, military capacity, economic potential, "history of working within the Charter", record of contributions to the maintenance of international peace and security and to the other purposes of the Organization, and equitable geographical distribution." Similar schemes were presented by the Italian and Spanish Covernments.Y These various proposals have, however, not passed unchallenged, and this, again, for different reasons. India and Mexico rejected the regional rotation schemes as discriminatory because only developing countries shall be submitted to this procedure." India is not inclined to share the seat to which it feels entitled with other states of the region, or to seek their support for obtaining and keeping this seat. More widely, the idea of creating a new category of permanent members that would lack the right of veto has been criticized. Guatemala, for instance, called this idea "an infringement of the principle of the sovereign equality of States'V? According to this view, the introduction of a three-class membership system would only aggravate the present situation in which the prerogatives of the permanent members compromise the equality of states. On the other hand, a "realistic" approach led some states, among them Singapore, to the conclusion that suggestions to introduce a new class of permanent members without the veto are impractical: "No country that is capable of making a contribution as a new permanent member will accept such second class status for long".80 76

77

78

79

80

Statement by Turkey, 28 June 1993, Doc. A/481264, see note 16, 87 (88). See [second] Italian proposal of May 1996, see note 51, paras 7 (b) and (e). The Spanish proposals are outlined in a working paper of 28 February 1996, Doc. A/AC.247/1996/CRP.10 of 4 June 1996, reprinted in: "Report of the Open-ended Working Group", see note 48, Annex VIII. For India, see statement by Ambassador Shah in the Open-ended Working Group, 27 March 1996. For Mexico, see remarks by Ambassador Tello to the Open-ended Working Group, 22 April 1996, 4. Statement by Guatemala, 28 June 1993, Doc. A/481264, see note 16,44 (45). See also "Permanent Regional Representation: Working Paper by Malaysia", Doc. A/AC.247/1996/CRP.18, reprinted in: "Report of the Openended Working Group", see note note 48, Annex XVI, para. 11: "Permanent regional members shall exercise all rights similar to other permanent members". Speech by the Fore ign Minister of Singapore, 6 October 1993, see note 37, 5.

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Moreover, Germany declared that if it becomes a permanent member of the Council "this has to be on an equal footing with the other permanent members, without discrimination, i.e. with the same rights and the same obligations't.f This view is shared by the governments of other states interested in becoming permanent members.F The African states have outrightly rejected the idea of "semi-permanent seats" rotating on a universal basis, as suggested by Turkey and Italy.83 Finally, there are concerns that apply to the creation of any of the "third categories" described above. In particular governments of smaller states are afraid that, given certain limits of the overall size of an enlarged Council, the establishment of such a category would impede their chances of entering the Council.s" Any "third category" might also diminish the position of non-permanent members in the Council because it is likely that links between permanent and semi-permanent members would be closer than those with non-permanent members.

If, therefore, the formal establishment of a "third category" of members of the Security Council is unlikely, a less complicated amendment to the UN Charter could lead to a similar result. Article 23 para. 2 of the Charter provides that "[a] retiring member shall not be eligible for immediate re-election". A number of states proposed to delete, or to provide for certain exceptions from, this clause.f" Among these states was Germany which explained that, together with an increased number of seats on the Security Council, such a removal of the ban to re-elect non-permanent members would give to Africa, Asia and 81

82

83 84

85

Statement by Ambassador Henze to the Open-ended Working Group, 17 May 1994, 4. In essence, this position was reiterated in the statements by Ambassador Eitel to the Open-ended Working Group of 25 March 1996, and 23 April 1996, 6 and 9-10, respectively. See also" Germany's position", see note 32: "The veto should be exercised with utmost restraint ... Germany holds the view that, in principle, new permanent members should be granted the same powers as the current permanent members." But see the Razali plan, text accompanying note 27. See statements to the Open-ended Working Group by the Permanent Representative of India of 27 March 1996, para. 13, and by the Japanese Ambassador Owada of the same day, 6. See "Position Africaine Commune", see note 63, para. 37. See, e.g., Statement by Luxembourg, 12 July 1993, Doc. A/48/264, Add.1, see note 16, 14 (15). See the statements of Australia, Ecuador, the Netherlands, New Zealand, Norway and Canada, Doc. A/48/264 and Add.1, see note 16, and of Germany, see note 81.

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Latin America a full range of options as to which Member State they want to send and for how long to the Security Council as their representative.s" The main difference between this proposal to amend Article 23 para . 2 of the Charter and the above-mentioned models of a "third category" membership is that in case of a removal of the ban immediately to reelect non-permanent members, the respective states would still have to gather the necessary support of their region and, in the second place, the whole United Nations membership every other year. In contrast, the "third category" plans would assure them a continuous or rotating membership on the Council for a longer, or even indefinite, period of time. A possibility for non-permanent Council members of being reelected in uninterrupted and indefinite succession was already known to the League of Nations. In 1926, when Germany was about to join the League and become a permanent member of its Council, a number of other states (Poland, Brazil, Spain, China and Persia) also laid claim to a permanent seat. The majority of the members of the League opposed these wishes but was willing to accommodate the aspirations of the states in question by providing for a category of "semi-permanent" membership. Different from the ordinary non-permanent members, the respective states could immediately be re-elected after the end of their three-year term of office. A state which wanted to continue its membership had, however, to apply for a specific declaration of the League Assembly, which had to be passed by a two-thirds rnajoriry.'"

IV: The Reform of the Veto Power The debate among governments about the right of veto resembles very much the one of 1945. Many governments oppose the veto for its violation of the principle of sovereign equality of states. 88 Often the veto is 86 87

88

Statement by Ambassador Henze of 17 May 1994,see note 81, 2. See W. Schiickingl H. Wehberg, Die Satzung des Volkerbundes, 3rd edition, Vol. 1,1931,477-479. According to informal consultations of the vice-chairmen of the Openended Working Group with representatives of 165 Member States held in early 1997, a "vast majority" of governments regarded the right of veto as anachronistic and undemocratic. See Doc. A/51147 of 8 August 1997, Annex VI. The Razali draft resolution, see note 27, said that "an overwhelm-

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also said to be inconsistent with a concept of "democracy in the United Nations" although it is doubtful whether such a concept has a firm basis in the United Nations Charter.s? Radical proposals aim at a total removal of the right of veto from the Charter, whereas more cautious ones suggest certain modifications and limitations. It is interesting to note that Latin American countries figure prominently in both of these groups. A third group, partially overlapping with the first two, contests the extension of the veto power to any new permanent members of the Security Council. Among these states, we find with Australia, Italy, Spain, Sweden and Iceland important members of the Western European and Other States Group. In comparison, the camp of the supporters of the veto is less densely populated. However, among its protagonists are particularly strong states - the veto's present beneficiaries and the states aspiring to per manent membership. An abolition of the right of veto was originally called for by Colombia , Cuba, Guatemala, Malaysia, New Zealand, Yugoslavia, Libya, Sudan and Yemen.P Their arguments are basically the same. The Government of Colombia characterized the veto as "a mechanism of non-cooperation in a system of collective security which necessarily requires cooperation". The right of veto, Colombia believed, "has lost practically all its raison d'itre, having become a privilege lacking any proportion". "[I]t has become necessary to formulate specific proposals on ways to replace the veto mechanism, either through a qualified majority or by a weighted vote, depending on the type of decision to be taken or, if this is not accepted, through the active participation of other bodies of the United Nations system as appeal mechanisms, particularly through the General Assembly (on the basis of special majorities). "91 Malaysia was of the view that "an assessment of utilization of veto power would indicate that the veto is being used in support of partisan

89 90

91

ing number of Member States consider the use of veto in the Security Council anachronistic and undemocratic, and have called for its elimination". See Fassbender, UN Security Council Reform ... , see note 18,301-305. See the respective statements in Doc. A/48/264 and Add.l, 2 and 3, see note 16. For Malaysia, see also the working paper referred to in note 79, paras 2, 20-21. Statement by Colombia, 29 June 1993, Doc. A/481264, see note 16, 19 (21).

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and national interests rather than in defence of issues and principles and in the interest of the international community t .V Like the Movement of Non-Aligned Countries, the African states wish the right of veto - an "anti-democratic practice" - eventually to be eliminated . However, in case it is maintained , Africa wants the new permanent members to enjoy the same prerogatives as the present P-5: "No fewer than two permanent seats, with all the privileges - including the veto - attached thereto, should be allocated to Africa."93 In general accordance with this view, quite a number of states have come forward with specific recommendations for restrictions of the veto power or, in more general terms, with a call for a "review" of the present system of voting in the Security Council. The reasons given to support the different proposals are mainly the same as those asserted for an abolition of the veto. The first of the specific proposals wants to limit the scope of the veto. According to a proposal of the Movement of Non-Aligned Countries?' and a number of individual submissions, the right of veto should be confined to decisions made under Chapter VII of the United Nations Charter." The second of the specific proposals aims at restricting a single permanent member's power to prevent the Council from adopting a resolution. A "requirement that, for a veto to become effective, it should be exercised by at least two permanent members" 92

93

94

95

Statement by Malaysia, 28 June 1993, Doc. A/481264, see note 16,55 (5859). See also the working paper referred to in note 79, para. 2. Statement of the representative of Ethiopia, Mr. Hussein, on behalf of the African Group at the General Assembly, 16 October 2002, Doc. A/57/PY.31, 19. See the Egyptian working paper "The Question of the Veto" of 27 March 1996, Doc. A/AC.247/1996/CRP.9, para. 11, and the NAM Final Document of 1997, see note 35, para. 30 ("The Ministers reaffirmed the Movement's proposal that the veto should be curtailed, with a view to its elimination, and that the Charter of the United Nations should be amended so that, as a first step, the veto power should only apply to actions taken under Chapter VII of the Charter"). See the respective statements in Doc. A/481264 and Add.3, see note 16, 7 and 25. See also the Razali plan of 1997, see note 27, according to which the General Assembly would "decide to discourage use of veto, by urging the original permanent members of the Security Council to limit the exercise of their veto power to actions taken under Chapter VII of the Charter". For a discussion of other proposals seeking to limit the scope of the veto, see Fassbender, UN Security Council Reform ... , see note 18,266-268.

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was suggested by the GAU and a number of other states." Similar to this is a third proposal which thinks about ways of over-ruling a veto cast by only one permanent member by a majority decision of either the Security Councilor the General Assembly.V In more general terms a substantial number of United Nations members has called for a review of the right of veto ." These calls confirm Malaysia's dictum that "there is a universal clamour to reform the veto, even if it cannot be eliminated'T" Lastly, a third group of states emphasized that any new permanent members of the Security Council should not be awarded the right of veto. Such extension is regarded as furthering an inherently undemocratic privilege which should actually be restricted and eventually abolished in the post-Cold War world.P? During the discussions of the Working Group, it was suggested that new permanent members should unilaterally declare their intention to restrict the use of the veto. In view of the position adopted by the present permanent members, it has been proposed that they too should be urged to limit the exercise of their veto power. Other delegations have doubts whether such political declarations would be effective. Only a handful of countries have defended the veto. Australia, although believing that there are good reasons not to extend the veto to new permanent members, has acknowledged the value it has had so far as a form of "last resort" safeguard to protect the national interests of the strongest players in the system of collective security, "if only to ensure that they have a stronger stake in acting within the system than outside of it" .101 The Foreign Minister of Singapore was one of the few underlining the veto's merits in a more resolute way: "It is neither practical nor even desirable to do away with the veto ... It is a recognition of the hard reality that great powers will not consent to put their 96 97 98

99 100

101

See "Position Africaine Commune", see note 63, para. 33 (e). See, e.g., statement by Ukraine, 2 August 1993, Doc. A/481264, Add.2, see note 16, 6 (8). See the statements of Honduras, Paraguay, Algeria, Indonesia, Venezuela and the Republic of Korea, Doc. A/481264 and Add. 1 and 2, see note 16. See Permanent Regional Representation, see note 79, para. 21. See "Observations by the Vice-Chairmen of the progress of the work of the Open-ended Working Group during the forty-ninth session of the General Assembly", 15 September 1995, Doc. NAC.247/1, reprinted in: Doc. A/49/965, 4-17, para. 16. Statement by Australia, 7 July 1993, Doc. N481264, see note 16, 8 (9).

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power at the disposal of a sheer majority for the implementation of decisions which they do not agree with. It is a safety valve that prevents the UN from undertaking commitments that it lacks the power to fulfil".102 In a statement of March 1996, US Ambassador Inderfurth said: "The US does not support any abridgement of the right of veto or its scope of application as set forth in Article 27 of the Charter, As a matter of daily practice we seek to use the Council as effectively as possible and thus try vigorously to reduce or minimize conditions which may lead to veto use. These efforts are increasingly successful. There are exceptions, but they are rare and they carry far less risk for the United Nations or the world community, than veto restriction or abolition. It is a fact that the continued existence of the veto has repeatedly avoided a level of disunity or direct confrontation between the major powers, or anyone of them and the United Nations, which could subvert a Council action or fatally impair the Council's ability to carry out its duties. We do not take this fact lightly or casually or see it as anachronistic'i.P' The United States also discarded the idea of defining "procedural matters" as referred to in Article 27 para. 2 of the Charter, which some delegations saw as a way of limiting the use of the veto. Apart from a few procedural matters that are clearly indicated as such in the Charter, it is unclear what constitutes a "procedural matter". In accordance with the San Francisco Declaration of the Four Powers.l'" this preliminary decision is made by a qualified majority as provided for in Article 27 para. 3, which means that any permanent member may establish the non-procedural character of a given proposal by use of the veto and then may veto the proposal itself. This method has come to be called 102 Speech by the Minister of Foreign Affairs of Singapore, 6 October 1993, see note 37, 6. 103 Statement by Ambassador Inderfurth, United States Representative for Special Political Affairs, to the Open-ended Working Group, 27 March 1996, United States Mission to the UN, Press Release 39-(96) of 27 March 1996, 2. See also United States fact sheet of 5 January 2000, see note 34, ("We are firmly opposed to changes to the veto held by the current permanent members"), and statement by Ambassador Siv at the General Assembly of 14 October 2002, Doc. A/57/PV.27, 10 ("we will continue to oppose efforts to limit or eliminate the veto") . 104 See Statement by the Delegations of the Four Sponsoring Governments on Voting Procedure in the Security Council, 7 June 1945, para. II.2. For text, see B. Simma et a!', "Comment on Art. 27", in: Simma, see note 8, 521-523 .

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the "double veto".105 As in the beginning, the United States thus seeks to secure as much flexibility in the interpretation and practical application of Article 27 as possible. For years now, this deadlock has not been overcome, and it is unlikely that it will any time soon. The present P-S insist on preserving their right of veto in its given form. At the same time, the P-S, with the exception of France.P" do not support new permanent seats for the developing world endowed with that full-fledged right. In particular, they are not willing to accept a scheme like the African plan of "rotating permanent seats" according to which the states enjoying the right of veto would not be known in advance. On the other hand, the NonAligned Movement and the African Union have made it clear that they expect the new African, Asian and Latin American permanent members to enjoy the same rights as all the other permanent members, and that they will not agree to any new permanent seats for industrialized states if this condition is not met. The speaker of the African Group at the fifty-seventh session of the General Assembly expressly warned that an expansion of the Council, particularly of the permanent members, will only occur if Africa is included.P?

v

Conclusion

It is well known that any amendment to the UN Charter requires a vote of two-thirds of the members of the General Assemblyl08 and a ratification by two-thirds of the Member States, including all the permanent members of the Security Council (Arts 108 and 109 of the UN Charter). After almost a decade of discussions about a reform of the Security Council, such a level of agreement does not appear to be any-

See Simma et aI., see note 104,476 (489-492), and L. Gross, "The Double Veto and the Four-Power Statement on Voting in the Security Council", Haru. L. Rev. 67 (1953), 251 et seq. 106 See Questions relatives a la composition et a la taille du Conseil de Securite (French non-paper of April 1996), para. (f), 107 See statement of the representative of Ethiopia on behalf of the African Group, Doc. A/57/PV.31, 19. 108 For explanation, see W. Karl et aI., "Comment on Art. 108", in: Simma, see note 8, Vol. II, 1341 et seq. (1347): "[T]his wording must be taken at face value, which means that the majority has to be calculated on the basis of the total number of members of the General Assembly (and the UN)". lOS

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where in sight. In fact, it seems that today there is less agreement than there was in 1996 or 1997. In the following years, and largely due to a sense of resignation and exhaustion of those involved in the prolonged and apparently fruitless discussions, the famous "momentum for reform", built up in the nineties, was lost. It is impossible to say whether a draft resolution submitted to the General Assembly by one or several of the governments taking the strongest interest in a Council enlargement (Germany, Japan, India, Brazil) would have succeeded, or whether an initial opposition on the part of certain states, in particular the present permanent members, could have been overcome, as happened in 1963.109 All we know is that it was not even tried, and that it is unlikely that there will be a similar "window of opportunity" any time soon. The most modest of all Council reforms, a repeat of 1963 with a further increase in the number of non-permanent seats from the current ten to either fifteen or seventeen, about which there was broad agreement in the Open-ended Working Group, was neither supported by the United States, nor by Western European and Other States (which could not expect to get an additional non-permanent seat), nor by the Non-Aligned Movement. At present, many observers are of the opinion that the general international situation drastically changed in the aftermath of the terrorist attacks of 11 September 2001, and that we are witnessing a fundamental reorganization of the international system characterized by a United States pursuing its national interests, and in particular its security interests, much more resolutely and determinedly than before, and paying less attention to multilateral rules and procedures. If this assessment is correct, the question follows whether in this new international order there will be a meaningful place for the United Nations and the Security Council. Will the internationalist project that began with the League of Nations and was continued with the United Nations of 1945 survive? It has almost been forgotten that this project was promoted by two great American presidents, Woodrow Wilson and ED. Roosevelt. At any rate, the only one state which today could launch a United Nations reform initiative with a reasonable chance of succeeding is the United States, but there is clearly a lack of any will in this direction in the present administration. Perhaps a Democratic President elected in 2004 would take a genuine interest in a renewed and effective United Nations as a partner, and not just an instrument, of the United States. Next to the United States, UN reform could also be successfully ad109

See note 7.

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vanced by the European Union, provided that its Member States (including the United Kingdom, France and Germany) truly agreed on a common position.

It has rightly been said that the powers of the Security Council "are a precious, but at the same time precarious trust of the international community, certainly the greatest achievement of the new world order that emerged after the catastrophe of the Second World War". "Each and every state should be aware of the enormity of the progress that Chapter VII of the Charter embodies compared with the earlier system of unbridled coexistence of national sovereignties. "110 The Security Council is the principal organ of the international community. It has been entrusted with the task of defending "the interests and values regarded by the same community as being fundamental for the maintenance of its own integrity" .111 The Council represents a centerpiece of the post-1945 constitution of the international communiry.Ut If the authority and legitimacy of the CounciJ113 are seriously impaired by a further delay of its reform as well as a gradual erosion of its powers under Chapter VII of the Charter, this will inevitably have a direct and negative impact on the international constitution as a whole, and hence the edifice of international law which rests upon that constitution. In other words, the price that members of the international community will have to pay for their prolonged neglect of, and indifference to, the future of the Security Council and the international security system built around it, may be much higher than they seem to imagine today. It is true that it is extremely difficult to adapt to the present situation a Charter so closely, and intrinsically, associated with the international power structure of 1945 or, from a somewhat different perspective, with the specific stage of development that the international state system had

110

111

112

113

See C. Tomuschat, "Using Force against Iraq", Die Friedens-Warte 73 (1997),75 et seq. (81). See P.M. Dupuy, "The Constitutional Dimension of the Charter of the United Nations Revisited", Max Planck UNYB 1 (1997), 1 et seq. (1). See B. Fassbender, "The United Nations Charter as Constitution of the International Community", Colum. J. Transnat'l L. 36 (1998), 529 et seq. (574-576). See also id., "Quis judicabit? The Security Council, Its Powers and Its Legal Control", EjIL 11 (2000),219 et seq. For the notion of legitimacy as applied to the Security Council, see Fassbender, UN Security Council Reform ... , see note 18,315 et seq., and id., "Uncertain Steps into a Post-Cold War World: The Role and Functioning of the UN Security Council after a Decade of Measures against Iraq", EjIL 13 (2002),273 ct seq. (292-95).

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reached at the end of World War II. However, there is no viable alternative to facing that challenge, and to facing it soon. The difficulties of building a new order on the ruins of the UN Charter would certainly be much greater. «All illusions shattered"? Tracy Chapman's song continues with the lines: "We'll destroy ourselves if we can't agree / How the world turns / Who made the sun / Who owns the sea / The world we know will fall piece by piece". 114

114

See note 2.

Regional Integration According to Article XXIV GATT - Between Law and Politics Peter Hilpold

I. II.

Introduction Forms and Dimensions for Modern Economic Integration III. The Content of Article XXIV IV. First Conclusions about Regional Integration in GATTIWTO Law V. The Turkey - Restrictions on Imports of Textile.and Clothing Products Case VI. The European Union and Modern Trends in Regional Integration VII. Conclusion

I. Introduction Regionalism is back! This is, at least, what many studies on this issue assert and what the ongoing European integration process in particular seems to confirm.' In reality, regionalism has never gone away since January 1948 when GATT law first started to be applied.f The drafters

2

See, for example, N. Nagarajan, "Regionalism and the WTO: New Rules for the Game?", in: European Commission, Economic Papers No. 128, June 1998, 3. As is known, GATT as such never entered into force but found provisional application by the way of the so-called Protocol of Provisional Application (UNTS Vol. 55 No. 814). See J.H. Jackson, The World Trading System, 1997, 39 et seq. Of course, economic integration is a much older phenomenon than GATT law which cannot be recounted in detail here. See, in this respect, for example, J. Viner, The Customs Union Issue, 1950.

A. von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook a/United Nat ions Law, Volume 7, 2003, 219-260 . © 2003 Koninklijke Brill N. V. Printed in the Netherlands .

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of this agreement have created with article XXIV an open space where Regional Trade Agreements (RTAs) could blossom and enter into competition with the multilateral system. This space was further enlarged through developments on the level of primary and secondary law offering particularly advantageous conditions for RTAs including developing countries.' While cyclical developments in this half century cannot be denied, the trend is clear in the sense of a continuous strengthening of regionalism in a multilateral system which had to adapt to these impulses and to find adequate responses. In this steady process of proliferation and strengthening of RTAs in an ever-evolving multilateral environment for the last decade an acceleration could be noticed. The most authoritative source to proof this allegation is surely the WTO Secretariat which in a recent paper" evidenced that as of March 2002, 250 RTAs had been notified to the GATT/WTO, of which 168 are currently in force.! Most interesting is, however, the fact that from 1948 to 1995 exactly the same number of RTAs has been notified to the GATT as in the seven years since 1995 to the WTO (125). Of those 125 notified to the WTO 94 are still in force. Notification procedures take time and have often to pass administrative or political obstacles. If non-notified RTAs are also taken into consid-

3

4

In any case, lacking at that time a general legal framework for multilateral trade and, most of all, a general MFN obligation as imposed afterwards by article I GATT, a comparison of developments before and after 1948would be of limited value. These earlier developments are, however, of great factual importance as the existence of preferential regimes after World War II and the determination of the participating countries to defend them has had a decisive influence on the outcome of the negotiations on article XXIV. In 1965 Part IV entitled "Trade and Development" was added to the GATT agreement . On 28 November 1979 the CONTRACTING PARTIES adopted the so-called Enabling Clause, a decision entitled "The Differential and more favourable Treatment, Reciprocity and Fuller Participation of Developing Countries" , GATT BISD 26S 1980,203-205. Regional Trade Integration under Transformation, preliminary draft prepared for the Seminar on Regionalism and the WTO, WTO Secretariat, Geneva, 26 April 2002; http;llwww.wto.org/english/tratop_e/region_e/ sem_april02_el sem_apriI02_e.htm Ibid., 3. As of March 2003 this number has risen to 263 of which 180 remain in force.

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eration then the number of RTAs in force rises to 243.6 According to the WTO Secretariat this acceleration can be explained for the first half of the 90s by the uncertainties about the outcome of the UruguayRound and by the integration efforts within Europe after the collapse of the COMECON block." For the second half of the 90s the strengthened notification obligations under WTO law can only partly explain this upsurge which does not appear to be only statistical, or, in other words, due to greater transparency. It is more convincing to argue that these developments are more real than apparent and that there are factual reasons to explain these trends convincingly. In fact, in literature many explanations have been expounded. Paul Krugman has listed the following reasons why regionalism is a natural, almost necessary phenomenon in face of the present status of international trade relations.f With the number of participants in international trade negotiations ever-increasing, according to the game theory, the costs of noncooperation are reduced . This assumption would also explain why, once trading blocs following a common policy in external trade relations have formed, interest in cooperation again increases. As modern trade negotiations concentrate more on complex nontariff trade barriers than on rather simple tariff reduction as in past GATT Rounds, multilateral trade negotiations with a great number of participants are far more difficult than negotiations between a smaller number of trading blocs. The United States are no longer the determining influence on trade negotiations. The reduction of the number of participants could again facilitate the steering of the negotiations towards a successful end. Whether the United States has really lost so much power is, however, open to debate. While it is obvious that the influence it had immediately after World War II is no longer present - at being a totally ex-

6

7

8

Ibid., 4. The WTO Secretariat predicts further the coming into existence of another 87 RTAs by 2007. In these numbers neither the accessions to existing RTAs are taken into account nor are the 18 notified Economic Integration Agreements considered. Ibid., note 3. Ibid., 3. See P. Krugman, "Regionalism versus Multilateralism: analytic notes", in: J. De Melo! A. Panagariya (eds), Ne w Dimensions in Regional Integration, 1993,58 et seq. (74).

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ceptional situation - since then there have been ups and downs during the last decade seeing an increase rather than a diminution in economic dominance. Unconditional Most-Favoured-Nations treatment (MFN) has lost its appeal because of widespread non-compliance to GATIIWTO obligations. Regionalism can become an alternative to multilateralism, at least so long as rule adherence has been restored. Baldwin has recently referred to the so-called domino-theory as the main cause for the expansion of RTAs.9 According to this theory the trade and investment diversion engendered by the creation, extension or deepening of a preferential trade area incites economic actors in nonparticipating nations to exert "pressure for inclusion't.'? There are always lobbies both for a multilateral approach and for a regional one but the latter, which are directly harmed by the discriminatory practices of trade blocs, usually lobby harder.11 This theory can explain very convincingly the essentially two-polar regionalisation process where the NAFTA forms one centre, and the EU the other.P On the whole, however, these various theories are not mutually exclusive but should be seen as complementary. There is another risk associated with this classification. In fact, by adopting a purely economic perspective one risks ignoring one of the most important motives for regional integration: the political one. We should never forget that political motives were of decisive importance for the creation of article XXIV and it was also of central importance for each integration project of the past. As we will see later, political elements also have to be considered when the permissible extension of regional trade integration has to be assessed. 9

10 11

12

See R. Baldwin, "A Domino Theory of Regionalism", in: R. Baldwin/ P. Haaparnata/ J. Kiander (eds), Expanding Membership of the European Union, 1995, 25-53; id., "The Causes of Regionalism", in: World Economy 1997,865 et seq. Ibid., 878 et seq. See Baldwin, see note 9, 879 et seq. for a detailed analysis of this asymmetric lobbying process. Interestingly, the Asian continent was a far harder place for integration initiatives than Europe or the Americas. A leading trading nation as Japan has not even joined one single RTA. See, in this context, H. Saburi, "The GATT/WTO and Regional Integration", The Japanese Annual of International Law 44 (2001), 60 et seq. (61). At a closer look, however, this situation is another confirmation of the paramount importance of politics in regional integration as political cohesion on the Asian continent is arguably extremely low.

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Before we enter into a detailed discussion about the various concepts that come into consideration here, we should perhaps set the focus right. Usually we associate regionalism with issues that happen at the subnationallevel. Economic regionalism, however, is different, as it concerns, mainly, phenomena of transnational relevance. This different perspective can be easily explained if we consider that the reference point for International Economic Law is not the national order but the mutilateral, and potentially the universal one. In this light, economic regionalism turns again to a second stage with regard to the primary objective, the multilateral system. As this issue is totally different from that of national regionalism it is also submitted that the values associated with economic regionalism are of a diverse nature. On a national and even on the EU level regionalism is considered predominantly as a positive development.P It is an important expression of the principle of subsidiarity, a necessary counterbalance against centralism and a purely state-oriented perspective. It fosters the participation of broader parts of the society in the democratic decision-making process and it allows for better consideration of local realities in the spending of public funds. Through the transnational cooperation of subnational regions, regional necessities can be taken into account even on a level transgressing national boundaries. The overall attitude towards economic integration is, on the other hand, mixed. Economic regionalism is often seen as a second best solution which should be resorted to only where the first best solution, multilateralism, is not attainable. There are even outright opponents of economic regionalism who maintain that this tendency is endangering the multilateral system or even the principle of free trade altogether.l" Others are of the opinion the economic integration can be conducive to the further liberalisation of trade as it may have an experimental function, it may show the way for further liberalisation attempts and it may

13

14

It may here suffice to mention the great importance attributed in the European politic discussion to the principle of subsidiarity and the ever louder call for a "Europe of Regions". Although these cal1s had so far only limited practical success it cannot be denied that they are widely seen as legitimate political goals. RTAs are sometimes defined as "stumbling stones" on the way towards a more liberal international trade system. See also note 54 and accompanying text .

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engender a competitive process where market liberalisation is the ultimate goal." The International Economic Order and - in particular - article XXIV GATT, the most important legal provision in this regard, reflects very impressively the broad dissent and conflict of opinion prevailing in this field. We will see that this provision is in many ways inconclusive. Its underlying tendency may be favourable towards regional integration zones but the main reason for this attitude seems to lie in the fact that regionalism as such cannot be impeded and therefore the primary goal should be to rein in its most detrimental effects.

II. Forms and Dimensions for Modern Economic Integration So we have learnt that economic regionalism - understood in its traditional sense - is mainly a transnational phenomenon and we have anticipated that there are rather contradictory attitudes towards this reality. Before proceeding to a detailed analysis of the legal problems resulting from economic integration we should first try to present and to clarify some basic concepts through which regionalism presents itself in reality. There are several classification systems which attempt to grasp the broad variety of regional integration zones. A first classification attempt could result in a hierarchy of various forms of integration according to their scope, intensity and deepness. In this sense the following order could be identified: Preferential Trade Agreement, Free Trade Area, Customs Union, Common Market and Monetary Union. It should be immediately stated that this classification in practice is not as neat as it might seem at first glance. Starting with the preferential agreements it should be pointed out that this concept has been used as an over-arching category which

IS

The theory of the "domino effect" mentioned above also contradicts the "stumbling stone" - thesis - perhaps not in a static view but surely in a dynamic one as it predicts an ever greater scope of application for the inter-se liberalization agreed upon within the RTA.

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should comprise the subsequent ones.l" With regard to this proposal it suffices to say that the coining of a concept which is to encompass all forms of regional integration would surely be beneficial for the discussion of the whole subject, but this advantage must be balanced against the drawback of interfering with another usage of this term which is well-established and appears to be worth maintaining. In the following we will therefore keep to the traditional usage of this term according to which by a preferential agreement one country opens its borders to other countries for a certain range of goods (and maybe services) but there is no general liberalisation scheme. Preferential trade agreements are clearly trade diverting and the drafters of the GATT aimed particularly at outlawing such agreements as they are, from a global perspective, welfare-reducing.'? On the other hand, they wanted to legalize Free Trade Areas and Customs Unions. The rationale lying beneath this attitude was rendered explicit by Clair Wilcox, then the Director of the Department of International Trade Policy in the book, A Charter for World Trade, published in 1949: "A customs union creates a wider trading area, removes obstacles to competition, makes possible a more economic allocation of resources, and thus operates to increase production and raise planes of living." "A preferential system, on the other hand, retains internal barriers, obstructs economy in production, and restrains the growth of income and demand. It is set up for the purpose of conferring a privilege on producers within the system and imposing a handicap on external competitors." "... a customs union is conducive to the expansion of trade on a basis of multilateralism and non discrimination, a preferential system is not".18 This distinction is categorical and appears to be very clear even though it is not so evident what its basis is. We will have a look at them towards the end of this paragraph.

See A. Panagariya, "The Regionalism Debate: An Overview", World Economy 22 (1999), 477 et seq., referring to J. Bhagwati, "U.S. Trade Policy: The Infatuation with Free Trade Areas", in: J. Bhagwati/ A.a. Krueger (eds), The Dangerous Drift to Preferential Trade Agreements, 1995. 17 In fact, it can be assumed that previously trade was done with the most cost-efficient producer while the introduction of trade preferences is distorting the relative prices giving false signals to the economy thereby reducing national and global welfare. 18 C. Wilcox, A Charter for World Trade, 1949, 70 et seq. 16

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In line with this reasoning, article XXIV GATT refers only to two forms of regional integration, Free Trade Areas and Customs Unions. What are Free Trade Areas? Para. 8 lit. b) of article XXIV defines them as "a group of two or more customs territories in which the duties and other restrictive regulations of commerce are eliminated on substantially all the trade between the constituent territories in products originating in such territo. ". nes For a Customs Union to be in line with GATTIWTO law para. 8 lit. a) states the following conditions: - First of all, the same condition as with a Customs Union applies according to which "duties and other restrictive regulations of commerce [...] are eliminated with respect to substantially all the trade between the constituent territories of the union or at least with respect to substantially all the trade in products originating in such territories", - Secondly, "substantially the same duties and other regulations of commerce are applied by each of the members of the union to the trade of territories not included in the union". Basically, a Customs Union represents a more developed Free Trade Area where the member countries apply a common external tariff. In principle, GATT law does not know further forms of regional integration. Article XXIV mentions also so-called "interim agreements". These are nothing more than agreements which do not yet fulfil all the requisites for a fully-fledged Free Trade Area or Customs Union but which should, in the end, lead to such a RTA. The underlying rationale is that it is hardly possible for an integration endeavour to become fully operative from scratch. Allowance must be made for a transitory agreement in which the necessary adaptions to the national legal and economic system can be undertaken. The problem is that interim solutions tend to be very long-lasting and resilient thus becoming in fact a-discriminatory-preference agreement. In order to avoid this para. S lit. c) of article XXIV requires any interim agreement to be furnished with a plan and schedule for the formation of a Free Trade Area or a Customs Union within a reasonable length of time. This expression has been clarified to state that this period "should exceed 10 years only in exceptional cases" .19

19

See the Understanding on the Interpretation of article XXIV of the GAIT 1994 agreed upon during the Uruguay Round. '

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When we ask why GATT law does not address further forms of RTAs we must bear in mind that article XXIV was drafted in the immediate aftermath of World War II when forms of higher integration where not foreseeable - at least not as a real challenge to the multilateral system. In various parts of the globe and, especially, in Europe, however, international cooperation and integration has assumed, over the years, an astonishing intensity. The creation of the EC as a Customs Union was a rather slow process. It was planned that the "transitional period", during which the EEC treaty was not fully operative, should end on 31 December 1969. The completion of the Customs Union was anticipated for 1 July 1968. It was, however, always planned that the EEC should not only be a Customs Union but become a Common Market. The Common Market concept was based on three pillarsr'? the establishment of "an internal market characterized by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital";21 -

"a system ensuring that competition in the internal market is not distorted"22 and

-

"a common commercial policy". 23 The common market has been defined as "a market in which every participant within the Community in question is free to invest, produce, work, buy and sell, to supply or obtain services under conditions of competition which have not been artificially distorted'V" The concept of the Common Market has been supplemented by that of the Internal Market. According to article 3 (c) an Internal Market is characterized by the elimination of all restrictions for the free circulation of goods, persons, services and capital. According to article 14 ECT25 "[tjhe internal market shall comprise an area without internal frontiers in which the free movement of goods, services and capital is ensured in accordance with the provisions of the Treaty". The launch-

20

21 22 23

24

25

See P.J.G. Kapteynl P. VerLoren van Themaat, Introduction to the Law of the European Communities, 1998, 122. Article3 (c). Article 3 (g) and arts 81 et seq. See article 3 (b) and 131 ECT. See note 20, 123. Formerly article 7 (a) and previously article 8 (a) EEC.

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ing of this concept in 1985 26 has given much impetus to the integration process and the date of 1992, when the internal market should have been completed, seemed to be of almost magical importance. This goal was not fully achieved by that date and this was no wonder as a real internal market between sovereign countries in an economy with continuos changing technologies requires relentless effortsP There can be no doubt, however, that the achievements in this field are formidable. While the definition of the Internal Market given by article 3 (c) and article 14 ECT seems to refer to a concept of lesser dimensions than that of a Common Market developed by the doctrine, this finding does not correspond to the factual application of the former concept through jurisprudence and legislative practice. As it does not appear to be possible to draw a clear line between these two concepts it can be argued that both are widely identical in content but the internal market concept has been conceived in order to revitalize an approach which has lost its appeal over the years, primarily because of the obstinate resistance the ongoing integration process had to face. The Internal Market was not the end of the story. According to article 4 ECT "[...] the activities of the Member States and the Community shall include, as provided in the Treaty and in accordance with the timetable set out therein, the adoption of an economic policy which is based on the close coordination of Member States' economic policies, on the internal market and on the definition of common objectives, and conducted in accordance with the principle of an open market economy with free competition". Further integration steps could still be in the offing as time and again proposals for the creation of a federal model for the integration of Europe are presented. The realisation of these models, though being improbable for the time being, would mark an extreme development of an integration process, which since 1957, has continuously searched for other limits of article XXIV. Of course, once Member States have lost their sovereignty we would no longer be in the ambit of a regional integration model according to article XXIV GATT but, instead, be confronted with a single unity, a single Member State whose internal constitutional divisions would be widely irrelevant to

26

27

See the Commission's White Paper "Completing the Internal Market", COM (85) 310 of 14 June 1985 which led to the Single European Act of 1986. See P. Craigl G. de Biirca, EU Law, 1998, 1116, pointing at the fact that the internal market is not a once-for-all, static objective.

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GATT law, with the exception of article XXIV:12 which states the following: "Each contracting party shall take such reasonable measures as may be available to it to ensure observance of the provisions of this Agreement by the regional and local governments and authorities within its territories". This is the only provision of GATT which makes an explicit reference to what has been called in the introductory part "subnational regionalism". What has been depicted here as a continuum of integration forms with rising integration intensity, in practice often presents itself in a different way. It suffices to point at the European Economic Area, per se a Free Trade Area but which in reality is more deeply integrated than many of the existing Customs Unions. What is the reason for this "crumbling hierarchy"? In 1947 when the GATT text was drafted, the main obstacles to trade were tariffs; to liberalize international trade meant to reduce tariffs. What later became the major target of trade liberalisation efforts was then regarded primarily as an expression of the internal powers of sovereign states. As long as tariffs where of such paramount importance no sensibility could develop for qualifying such norms as barriers rather than as legitimate national regulations. As is known this changed with the declining tariff levels and at the Tokyo-Round (1973-1979) non-tariff trade barriers became a more important negotiating item than tariffs themselves. This is even more true for the present day where the average tariff level for industrial goods amounts to not more than 3.9 per cent. The real trade barriers are now regulatory.-" As tearing down regulatory barriers is a much more delicate issue than the reduction of barriers, consent of this kind could be reached far more easily in regions like that one where the EEA operates which was and still is home to vigorous and successful integration attempts and where member countries share common values on a very broad scale. How should these integration forms "of a higher degree" be qualified from a GATT/WTO perspective? This is difficult to assess. In this field GATT law has not changed since 1947 and even the understanding on the interpretation of article XXIV remains silent in this regard. Also

28

See P. Holmes, "The WTO and the EU: Some Constitutional Comparisons", in: G. de Biirca/ J. Scott, The EU and the WTO, Legal and Constitutional Issues, 2001, 59 et seq. (68).

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economic theory has so far not given an unequivocal answer to this question. Does this mean that GATT law has become inadequate for judging RTAs? Not necessarily. The main aim of the relative provi sions is still to counter effectively preferential agreements which are openl y trade diverting. In this article XXIV succeeds very well already by its preventive force. In fact, notwithstanding all the interpretative difficulties to which this provision gives rise, it conveys the message that RTAs which are openly trad e-diverting are not tolerated by GATTIWTO law.29 This is, however, not yet the key to the ongoing success of a norm which has been drafted in a time when the intensity and the direction of the regionalisation process could not even remotely be foreseen. Why does it still make sense to draw such a clear line between preferential agreements providing only for imperfect discrimination and all the remnant RTAs which are continuously evolving towards ever-higher degrees of discrimination? In fact, it has been argued that from the viewpoint of the Most Favoured Nation principle a RTA is a discriminatory agreement and therefore a preferential agreement, as an imperfect RTA should not be regarded as worse than a perfect RTA where discrimination is more pronounced.'? According to this line of thought, the modern forms of "deep integration " should be given special attention whil e agreements with lesser integration intensity could perhaps be considered with more leniency. There are, however, good reasons to uphold the traditional view on this issue:

29

3D

An open challenge to GATTIWfO law would be contrary to the interests of each individual Member State as it would undermine th e authority of the institution and may lead to countermeasures. The particularities of law enforcement in public international law apply fully to this field. See, in general, on this subject L. Henkin, Ho w Nations Behave, 1979. Kenneth Dam has expre ssed this consideration in 1963 the following way: "Since the tariff reduction inherent in such a pr eferential arrangement might be considered to be a movement towards free trade, albeit not so dramatic as th at produced by a customs union or free-t rade area, and since such a preferential arrangement by definition involves less discrimination against non members than a customs union or free-trade area, th e justification for proscribing such arrangements absolutel y is not clear." See K.W: Dam, "Regional Economic Arr angements and the GATT, the Legacy of a Misconception", U. Chi. L. Rev . 30 (1963), 615 et seq. (633).

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First of all, permitting preferential agreements in the sense of only partially integrated RTAs could lead to agreements which are predominantly trade-diverting as the forces representing these interests may be prevailing over the political forces representing trade-creating interests." The more extensive the coverage of a RTA is, the more it can be assured that also trade creation happens and that, finally, this element will prevail. The second reason why the traditional distinction appears to be still valid can be found in the fact that article XXIV discriminates basically between RTAs that seem to be strong enough so that they cannot be impeded any way and those which seem to be not so resilient. While the first category of RTAs could become a real danger for the multilateral system if not subjected to some sort of at least generic control system, with regard to the latter group the GATTIWTO seems strong enough to prohibit them altogether. Without doubt, Common Markets and other RTAs which have successfully also tackled regulatory tariff barriers pertain to the group of highly integrated RTAs for which it is usually easy to pass the admissibility test. With regard to these RTAs it is in the interest of the whole GATT/WTO system to ensure the appearance that control over them is maintained even if in some cases this is nothing more than an illusion. As will be shown in the following section a central condition for a RTA to correspond to GATT /WfO law is the integration of substantially all the trade. Those RTAs that fulfil this demanding requisite can

3!

See, in this context, Robert Hudec, comment on M. Finger, "Gait's Influence on Regional Arrangements", in: J. De Melo/ A. Panagariya (eds), New Dimension in Regional Integration, 1993, 155: "In addition, once governments are allowed to select some products and not others, political forces will inevitably exert enormous pressure to choose trade-diverting preferences first . Trade-diverting preferences are the ones that result in the greatest net political gain for governments; the political gains arise from pleasing local producers who displace third-country producers, while political losses are entirely avoided because third-country producers do not vote". In the same vein also F. Roessler, "The Relationship Between Regional Integration Agreements and the Multilateral Trade Order", in: K. Anderson/ R. Blackhurst (eds), Regional Integration and the Global Trading System, 1993,311 et seq. (314). It is, of course, not possible, to predict such a development with absolute certainty but the scenarios cited appear realistic. See also J.H. Mathis, Regional Trade Agreements in the GATT/WTO, 2002, 113 et seq.

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be considered as the expression of a clear underlying will by the participating states which by concluding these agreements pursue not only economic goals but also strictly political ones. In this sense it is not really surprising that the provisions of article XXIV have not been adapted to the new reality characterized by the formation of highly integrated zones with possibly far larger trade diverting effects than those deriving from traditional Free Trade Areas and Customs Unions.V It is not up to the GATT/WTO system to second-guess these political decisions even if the price for this restraint is further imperfections in the multilateral system. This price, however, will not be too high as the conditions, exposed in detail in the following paragraph, are still rigorous. Subsequently, it will be shown that this rigour, in order to be credible, requires resolve when it comes to the enforcement of these rules. Recently, the WTO dispute settlement organs have demonstrated this resolve in a very pronounced form.

III. The Content of Article XXIV33 Article XXIV is an exception to the Most -Favoured-Nation-principle of article I GATT according to which "any advantage, favour, privilege or immunity" granted by any contracting party to any product originating from other contracting parties shall be extended to like products originating from other contracting parties. Essentially the MFN principle in the ambit of the GATTIWTO system leads to the multilateralisation of preferences accorded bilaterally. Article XXIV prevents this multilateralisation from operating in a circumscribed setting. What are the conditions, article XXIV poses to regional integration? Para. 4 of article XXIV spells out the general function attributed to RTAs. This is to "facilitate trade between the constituent territories and not to raise barriers to the trade of other contracting parties with such territories". This general aim has later been specified by Jacob Viner

32

33

See P. Krugman, EFTA and 1992, EFTA Occasional Paper No. 23, who argued that the EC single market programme had detrimental effects on EFTA-based firms. See in this context also, for example, H. Steinberger, GATT und regionale Wirtschaftszusammenschlasse, 1963; R.S. Imhoof, Le GATT et les zones de libre ecbange, 1979; P.Hilpold, "Regionale Integrationszonen und GATTDie Neuerungen der Uruguay-Runde", RIW 25 (1993), 657 et seq.

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with the request that the trade creating effects of regional integration should prevail over the trade diverting effects of such initiatives.r' Before Viner's seminal contribution to integration theory, or, if we see his research work as an interpretation of the new GAIT philosophy on RTAs, before the creation of this law, the distinction between trade creation and trade diversion could hardly come to the mind of the observer of integration movements as a multilateral framework protecting free trade as a value per se was lacking and the attention always focussed on the effects on trade in the integration area itself. With the attention shifting from the regional to the multilateral level it was a natural consequence that regionalism should be considered a positive phenomenon only as long as its positive effects on trade, taking into consideration also the situation of non members, should prevail. On an abstract level, the soundness of this approach could hardly be contested if non-discriminatory free trade on a multilateral level is the ultimate goal to be pursued." The devil, is, however, as always, in the detail. How can the prevalence of the trade creating effects of regional integration over the trade diverting ones be guaranteed by a legal text which should potentially be suited for global application over an undefined period of time? It is evident that such an endeavour can be successful only if the drafters of the relevant provisions can rely on a settled theory to which they can give expression in a clear and succinct way. The principle thereby stated should be applicable to differing situations not foreseeable in every detail at the moment the relevant norm is being drafted. It does not seem that article XXIV is meeting these demands. Not only is this provision poorly drafted. It is neither easy to discover an underlying settled economic theory on which the 34

35

See also, for example, J. Huber, "The practice of GATT in examining regional arrangements under article XXIV", Journal of Common Market Studies 19 (1981),281 et seq. (294). N. Nagarajan, on the other hand, contests in his paper "Regionalism and the wrO: New Rules for the Game", Economic Papers No . 128, June 1998,8 that article XXIV is about distinguishing between trade-creating and trade-diverting arrangements, pointing at the fact that GATT pre-dates Viner's book of 1950. It could, however; be argued that Viner's aim was not to establish a new rule but to interpret the existing rules as set out in article XXIV. That free trade is, according ~o mainstream economics, still the superior ideal for the conception of national foreign trade law notwithstanding that many rival positions have been formulated during the last two centuries has aptly been shown by M. Trebilcock/ R. Howse, The Regulation of International Trade, 1999,7 et seq.

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evaluation process should be based,36 nor is it clear how the conditions set for a RTA in order to respond to GATT/WTO law should be implemented. The only details about how the prevalence of the trade creating effects over the trade diverting ones shall be obtained for Free Trade Arcas and Customs Unions respectively are furnished in paras 5 and 8 of article XXIV. Para . 5 aims at protecting the interests of WTO members remaining outside a RTA. For those countries the duties and other regulations of commerce imposed after the formation of a Customs Union shall not, on the whole, be higher than before. In the case of the formation of a free-trade area this comparison refers to the duties and other regulations of commerce imposed by each individual member of the FTA since there are no common tariffs. There has always been much disagreement on how to interpret this provision. First of all, it was not clear whether the applicable or the applied tariffs should be compared. While the applicable tariffs are those resulting from tariff bindings, in practice the applied tariffs are often far lower. Common sense would suggest that the latter should be referred to as they alone matter, but there was strong opposition to this approach, first of all by the EEC since for the calculation of the original six members of the EEC customs union, the Italian bound tariff was used even though the respective rate had never been applied.V In the meantime, in the 1994 Understanding on the Interpretation of article XXIV, it has been clarified that for the assessment of Customs Unions the applied tariffs are relevant. Though there is a strong case for an extension of this principle to FTAs, until now, no explicit statement in this sense can be found in WTOlaw. For Customs Unions a further question needing clarification regarded the way the general incidence of the duties and other regulations of commerce applicable before and after the formation of the Customs 36

37

See, in this regard, for example, the statement by R. Pomfret, "The Theory of Preferential Trading Arrangements", Weltwirtschaftliches Archiv 122 (1986), 439 et seq. (460) : "The theory of preferential trading has been one of the more disappointing branches of post war economics. That is despite Viner's great insight about the ambiguity of welfare effects, which is led of the theory of second best." See also, more broadl y, R. Pomfret, The Economics of Regional Trade Arrangements, 1997. See N. Nagarajan, Regionalism and the WTO: Ne w Rules for the Game?, European Commission, Directorate-General for Economic and Financial Affairs, Economic Paper No. 128, June 1998, 14.

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Unions should be calculated. For a long it has been argued that a meaningful comparison should take into account the trade volume under the single tariff lines and therefore weighted average tariff rates should be referred to. This position was finally adopted by the Understanding on the Interpretation of article XXIV, 1994. In para. 8 we find the most important condition of all for the creation of a regional integration zone: it has to comprise substantially all the trade between the member countries. For Customs Unions the common external tariff has to consist of the application of "substantially the same duties and other regulations of commerce" to trade with countries not included in the union.V The attempt to quantify this condition has been the subject of much controversy, whereby the various proposals ranged from 51 to 99 per cent.'? It seems that a range between 80 to 90 per cent has found the broadest consensus but it must be stated that a quantitative criterion alone cannot fully do justice to this condition. This condition rather requires also the respect of so-called qualitative elements in the sense that no major sector of the economy should be excluded from the intraRTA liberalization scheme.t? Traditionally, problems arose in this field with trade in agriculture where the most obstinate protectionist forces regularly are at work. But even on the occasion of the examination of the EFTA agreement which excluded the predominant part of agricultural products from liberalization, the GATT contracting parties could not find an agreement on how to assess this siruation.t! 38 39

40 41

Article XXIV, para. 8 lit. a) ii). See Hilpold, see note 33,663. The 51 per cent mark has been advocated by G. Roselieb, "Die rechtliche Stellung der europaischen Wirtschaftszusammenschliisse (Montan-Union, EWG, EFTA) zum GATT", OZoRV 2 (1961),27 et seq. GATT BISD 9S, 1961,83 et seq. The EFTA Member States argued that the "substantially-all-the-trade" condition in article XXIV was appositedly introduced to allow for the exclusion of the agricultural sector in view of a possible participation of the United Kingdom in a European free trade area. Furthermore the wording of this provision required the liberalization of substantially all the trade and not of the "trade in substantially all the products." "There was [...J a divergence of view regarding the justification for including, in estimating the amount of trade within the free-trade area to be freed from barriers in terms of article XXIV, the trade in agricultural products were freed in the case of one member State only. In the time at its disposal, the Working Party was unable to reach agreement concerning the inter-

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The main reason why a clarification of these contentious issues in the interpretation of article XXIV could not happen in the GATT working groups established to evaluate these RTAs can be found in the fact that these groups worked on the basis of the consensus principle, the central decision making criterion for the whole GATT law, which is not very well suited to find agreed solutions if interests of fundamentally different nature have to be considered.F It comes therefore as no surprise that the working parties formed for the evaluation of the many RTAs notifi ed to the GATT came to no conclusion since to the GATT conformity this integration project was negligible.P As is known, article XXIV, despite all its shortcomings and lacunae which became more and more evident over the decades, after the Havana Conference remained substantially unchanged not only until the end of the days of GATT 194744 but was brought again to life in WTO law. To the WTO Members it appeared to be sufficient to recall the basic principle cited before according to which tolerance towards RTAs required a balancing between positive and negative trade effects of regional integration. This was, however, not a complacency towards past events in this area but rath er an admonition that this balancing should be taken seriously. Consequently, in the Understanding on the Interpretation of article XXIV adopted at the end of the Uruguay Round it was reaffirmed:

42

43

44

pretation which should be given to the relevant provISIons of article XXIV." See GATT Ll1235 of 4 June 1960, GATT BISD 9S/70, paras 48-49, 51, 54 and Analytical Index, Guide to GATT Law and Practice, 1994,767. Despite the discriminatory nature of RTAs these agreements have always found strong support by a consistent number of GATT Contracting Parties. The reasons varied. They ranged from a politically motivated support for the European integration initiatives to the hope to foster progress in developing countries concluding inter-se agreements. Empirical tests have shown that on the whole only in five cases it was possible to find a decision by consensus . The most important one regarded the Customs Union between the Czech and the Slovak Republic of 1993 (GATT Ll7212 of 30 April 1993, Add. 1 of 12 May 1993 and GATT Ll7501 of 15 July 1994). See P.c. Mavroidis, "Judicial Supremacy, Judicial Restraint, and the Issue of Consistency of Preferential Trade Agreements with the WTO: The Apple in the Picture", in: D .L.M. Kennedy/ J. D . Southwick (eds), The Political Economy of International Trade Law, 2002, 583 et seq. (587) referring to J. Schott, "More Free Trade Areas?", in: J. Schott (ed.), Free Trade Areas and u.s. Trade Policy, 1 et seq. (25). See GATT Analytical Index, see note 41.

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"[...] that the purpose of such agreements should be to facilitate trade between the constituent territories and not to raise barriers ...; and that in their formation or enlargement the parties to them should ... avoid creating adverse effects on the trade of other Members". In the Declaration adopted at the Singapore Ministerial Conference of 1996 we find the prudent statement that "[regional agreements] can promote further liberalization and may assist least-developed, developing and transition economies in integrating into the international trading system.t?" At the same time the Ministers stated that "[tjhe expansion and extent of regional trade agreements make it important to analyse whether the system of WTO rights and obligations as it relates to regional trade agreements needs to be further clarified." They went on to "reaffirm the primacy of the multilateral trading system, which includes a framework for the development of regional trade agreements" and they renewed their "commitment to ensure that regional trade agreements are complementary to it and consistent with its rules. "46 On the whole, these statements are the expression of a rather cautious approach towards regionalism and the very basis of this caution seems to be the uncertainty about the real impact of regionalism on the multilateral system, especially in the longer run . Far clearer than in article XXIV, the WTO members, with half a century of experience on this issue behind them, point out that the multilateral system must always enjoy priority. If the reading of the relevant provision in the Singapore Ministerial Declaration might give the impression that on balance a slightly positive attitude towards regionalism prevailed among the ministers, this impression might be due to the confidence the Ministers put into the operating of the newly established Committee on Regional Trade Agreements (CRTA, see below) which should bring new rigour to the procedure for the examination of RTAs. The Understanding on the Interpretation of article XXIV resulting from the Uruguay Round improved this picture somewhat as thereby

45

46

Emphasis added. See para. 7 of the Declaration.

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important clarifications to some long-contested issues could be obtained.V The most important results were the following: The evaluation of the general incidence of the duties and regulations of commerce applicable before and after the formation of a Customs Union shall be based upon an overall assessment of weighted average tariff rates and of customs duties collected. Thus, a far more realistic picture of the potential trade deflection generated by the creation of a Customs Union could be achieved. The application of the general dispute settlement provision on issues of regional trade integration was confirmed.t" Thereby it was acknowledged that the conclusion of RTAs was not only a political question but remained an issue which should be assessed by a judicial organ on legal terms. Without doubt, the judicialization of the evaluation process added rigour to it. On the other hand, with clarifications on important clements of this evaluation process still lacking, this also meant that it was up to the dispute settlement organs to specify them. True, even under GATT law there were several attempts to obtain further clarifications about the meaning of article XXIV but under GATT law none of these procedures lead finally to an adopted report.'? As will be shown afterwards it was not before the Turkey-Restrictions on Imports of Textile and Clothing Products case'? that this happened and it was more than natural that the large interpretative leeway would, however it was used by the WTO dispute settlement organs, lead to considerable criticism. 47

On the specific function of this provision of the Dispute Settlement Understanding to strengthen article XXIV see also J.H. Jackson, The World Trade Organization: Constitution and Jurisprudence, 1998, 55. 48 Para. 12 of the Understanding. This appears to be a further confirmation of the supervisory role of the WTO dispute settlement system recently emphasized by Y. Iwasawa, "WTO Dispute Settlement as judicial supervision",JIEL 5 (2002), 287 et seq. 49 See EEC-Tariff Treatment of Imports of Citrus Products from Certain Countries in the Mediterranean Region, GATT L/5776 of 7 February 1986; EEC Member States' Imports Regimes for Bananas, Panel Report WT/DS32/R of 3 June 1993; EEC - Member States' Import Regimes for Bananas, Panel Report WT/DS38/R of 11 February 1994. As it is known, under GATT law the adoption of a Panel Report required consensus among the CONTRACTING PARTIES which was hard to achieve in such a contentious matter as the one here at issue. 50 Panel Report WT/DS34/R of 31 May 1999; Report of the Appellate Body WT /DS34/AB/R of 22 October 1999, AB-1999-5 .

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With regard to the overall political assessment of RTAs the most important development of the post-Uruguay-Round period concerned the introduction of the WTO Committee on Regional Trade Agreements.t! By the establishment of this Committee it was hoped to render the evaluation of RTAs more transparent, thereby enabling it to develop common standards which should also provide for more legal certainty in this area. Until now these hopes have remained largely unfulfilled since standard-setting by a political body operating in a very considerate diplomatic environment characterized by only vague legal criteria has proved to be a difficult task. Above all, it must be recalled that decision making in this field follows a totally different path from that with regard to dispute settlement. While the negative consensus rule assures nearly automatic adoption of Panel reports by the Dispute Settlement Body, outside this area the still dominant positive consensus rule makes it rather difficult to pass a verdict on a confrontational issue.S As the CRTA itself admitted in its report to the General Council in 1998 on the operation of this body the lack of consensus regarded not only the factual evaluation of single integration projects but the far more difficult issue of the interpretation of the applicable rules. 53

IV. First Conclusions about Regional Integration in GATT/WTO Law Before we deal with the latest developments in the endeavour, now lasting several decades, to find a proper place for regionalism in the multilateral system and to determine both its scope for further development and its borders which may not be transgressed, an attempt to

51

52 53

This organ was created by a decision of the WTO General Council on 6 February 1996. See also under note 60. See Mavroidis, see note 43, 591. See G . Fisch, "Regionalism and Multilateralism - Side by Side", in: K.G. Deutsch/ B. Speyer (eds), The World Trade Organization Millennium Round, 2001, 213 et seq. (217). In recent literature the hope has been voiced that the analytical tools to assess the phenomenon of regional integration will be greatly improved over the next years. See A. Krueger, "Are preferential trading arrangements trade liberalising or protectionist?", Journal of Economic Perspectives 13 (1999), 105 et seq.

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which the WTO dispute settlement organs have lately given an important contribution, a short summary of the fundamental position GATT/WTO law takes towards regionalism and the conditions it sets to this phenomenon might be helpful to grasp the enormous challenge the WTO dispute settlement was faced with when asked to provide for further clarification in this area. We have seen that GATTIWTO law in principle, takes a positive attitude towards regional integration, partly because this phenomenon cannot be impeded anyway, and partly because this corresponds to strongly felt interests by several WTO members which, confronted with an option, might decide against the multilateral system. On the whole it appears safe to say that the drafters of GATT/WTO law have seen in RTAs more a building block than a stumbling stone 54 for the architecture of a multilateral free trade system and this assumption has been proven correct by the developments. While recognizing that trade integration has both positive and negative effects in the sense that there are both trade creating as trade diverting consequences the main intent of GATT/WTO law has been to ensure that the positive, trade creating effects of RTAs should prevail. In the preceding paragraph it was shown that this result was to be obtained by the "substantially-all-the-trade" criterion as well as by the obligation that tariffs and regulations of commerce with regard to non-participating countries should not become more restrictive than they were before. It was also shown that the clarification of these conditions was a difficult process which is in part still ongoing. In any case these conditions are far from being sufficient to guarantee that the general purpose of RTAs, set out in para. 4 of article XXIV, "to facilitate trade between the constituent territories and not to raise barriers to the trade of other contracting parties with such territories" would be really attained. At the most the fulfilment of these conditions provides prima facie evidence that the integration process goes in the right direction, but we are far away from a final assessment of the overall economic impact resulting from the creation of a RTA. In fact, in an ex-ante-evaluation of an integration project there are so many elements to be considered that it is often nearly impossible to quantify the real impact on trade of such an endeavour. As has been re-

54

This famous comparison has been coined by]. Bhagwati, The World Trading System at Risk, 1991.

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cently shown'? the following elements can influence changes in trade volumes in the wider context of the creation of a RTA: trade creation and diversion existing within the union; changes in the flows of capital and labour; changes in the general level of prices; changes in exchange rates. Furthermore, short-term static effects of regional integration have to be distinguished from dynamic effects showing up in the longer term. Thus, while at the moment of the creation of a RTA the trade diverting effects may prevail, the growth stimulus engendered by the formation of an integration area may, in the longer run, attract further imports thereby compensating for former losses in trade by non-members. 56 Changes of trade flows after the creation of a RTA may also depend on other factors such as changes in the terms of trade, welfare gains as a consequence of economies of scale, shifts in consumer preferences or industry competitiveness. Finally, regard has to be taken to business cycles and to whether there is world-wide a situation of growth or slowdown. In this context, account must also be taken of the fact that the causalities may operate in two ways as the creation of RTAs may have positive or negative consequences on the growth of the world economy.57 It stands to reason that the isolation of the effects of regional integration from all the factors just mentioned is an almost impossible task and in any case the theoretical instruments needed for this task are not yet available. As a consequence, it should not come as a surprise that opinions in academic literature on how to judge the effects of RTAs are divided and this is the case even for European Integration where reliable statistical data as well as a wealth of econometric studies should be easily available. In fact, some authors see in the context of European Integration the trade creating effects as prevalent, others the trade diverting ones. 58 There is more consensus with regard to the broad net of

55 See G. Marceau/ C. Reiman, "When and How Is a Regional Trade Agreement Compatible with the WTO?", Legal Issues of Economic Integration 28 (2001) ,297 et seq. (305 et seq.).

56 Ibid. 57 Ibid. 58 Among the first group Balassa, Robson and Winters can be found, among the second El-Agraa and Pomfret. See P. Moser, "Reasons for Regional In-

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FTAs concluded by the European Community. In view of the, in part problematic, treatment of agriculture within this agreement the prevalence of trade diverting effects seems most probable. 59 These agreements have, however, mostly a development background or have been concluded in the framework of an approaching process which in many cases should finally lead to membership within the European Union. In part, they are typical interim-agreements, where the parties promise to add in future the missing elements of integration so that these agreements should correspond to GATTIWTO law. Once political and developmental considerations are at issue, it is evident that the global assessment of RTAs becomes extremely complex and this is even more so when there is not even an unanimous view of the economic consequences of regional integration. At the same time it is also clear that the wro cannot behave like the GATT contracting parties for which the lack of consensus in the relevant working groups was a welcome excuse not to do anything. The WTO has to act for the following reasons: -

The long feared competition between multilateralism and regionalism becomes more and more a reality. As shown above, regionalism is no longer a mainly ~¥opean phenomenon but poses a challenge to multilateralism on a global level. With the attractive force of the dominant integration areas (the socalled "domino effect" mentioned above) and RTAs creating a network of "second grade" integration areas RTAs are developing a steering and coordination potential which is on a par if not superior to that of multilateral institutions such as the wrO. In the ambit of a framework which relies heavily on diplomatic processes for decision making, dispute settlement and rule compliance such as that of GATT, indulgence towards attempts to circumvent article XXIV may be justified by broader policy considerations and by the expression of a pragmatic compromise. In an institution like the WTO for which an important element of distinction from the GATT lies in a far-reaching judicialization of its law and which derives an important part of its legitimacy from the specific task to ensure rule-adherence a "blind spot" in an important area like that regulated in article XXIV cannot be tolerated without the WTO risking its credibility.

59

tegration Agreements", lntereconomics September/October 1997, 225 et seq. (229). Ibid.

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With the 1994 Understanding on the Interpretation of article XXIV confirming the general applicability of the GATT dispute settlement provision to issues relating to RTAs, the door was opened for a judicial clarification of the most pressing issues in this field. Though the WTO with the institution of the CRTA in 199660 took care not to neglect the "diplomatic" approach in the sense that a forum was created where regionalism could find consideration with all its multi-varied causes and justifications, it seems that the judicial approach has cast, at least for the moment, a much brighter light on this issue, notwithstanding the fact that this has happened essentially in one single procedure. In 1999 a GATT panel and afterwards the Appellate Body had the occasion to express themselves about central aspects of regionalism within the WTO system. As these statements were ground-breaking they merit closer examination.

60

The CRTA was instituted by the WTO General Council (WT/L/127). Its terms of reference are the following: "(a) to carry out the examination of agreements in accordance with the procedures and terms of reference adopted by the Council for Trade in Goods, the Council for Trade in Services or the Committee on Trade and Development, as the case may be, and thereafter present its report to the relevant body for appropriate action; (b) to consider how the required reporting on the operation of such agreements should be carried out and make appropriate recommendations to the relevant body; (c) to develop, as appropriate, procedures to facilitate and improve the examination process; (d) to consider the systemic implications of such agreements and regional initiatives for the multilateral trading system and the relationship between them, and make appropriate recommendations to the General Council; and (e) to carry out any additional functions assigned to it by the General Council."

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~

The Turkey - Restrictions on Imports of Textile and Clothing Products Case"

In the long-lasting process between Turkey and the EC - the relevant Free Trade Agreement dates back to the year 1963 - on 6 March 1995, the Turkey-EC Association Council adopted Decision 1/95 which should introduce the final phase of the customs union between Turkey and the European Communities. Article 12 (2) of this Decision states: "In conformity with the requirements of article XXIV of the GATT Turkey will apply as from the entry into force of this Decision, substantially the same commercial policy as the Community in the textile sector including the agreements or arrangements on trade in textile and clothing." In the following Turkey introduced, as of January 1996, quantitative restrictions on imports from India on 19 categories of textiles and clothing products. Turkey considered this as a measure directed to apply "substantially the same commercial policy" as the EC on trade in textiles and clothing; a measure, therefore, covered by article XXIV GATT. For India this was a quantitative restriction according to article XI GATT, a measure not even article XXIV allowed to resort to. In the end, India's viewpoint prevailed but the whole controversy permitted a discussion of many details of the legal boundaries of regional integration within WTO law. The first question to be settled was of a jurisdictional, preliminary nature in the sense that the specific relationship between the functions of the CRTA and the Dispute Settlement Body had to be clarified. There seemed to be a case of overlapping jurisdictions with far-reaching consequences as both bodies not only rely on a totally different deci61

Report of the Panel and the Appellate Body, see note 50. This case has already been widely commented. See, inter alia, J. Mathis, "WTO, TurkeyRestrictions on Imports of Textile and Clothing Products", Legal Issues of Economic Integration 27 (2000), 103 et seq.; G. Marceau/ C. Reiman, "When and How Is a Regional Trade Agreement Compatible with the WTO?", Legal Issues of Economic Integration 28 (2001),297 et seq.; A. von Bogdandy/ T. Makatsch, "Collision, Co-existence or Co-operation), Prospects for the Relationship between WTO Law and European Union Law", in: G. de Biirca/ J. Scott (ed.), The EU and the WTO-Legal and ConstitutionalIssues, 2001, 131 et seq.; M. Cremona, "Neutrality or Discrimination? The WTO, the EU and External Trade", in: de Btirca/ Scott, see above, 151 et seq.;. Mavroidis, see note 43.

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sion-making process but also the material elements on which they base their decisions differ considerably: The CRTA considers a vast range of elements of economic, legal and political nature, the Dispute Settlement Body decides on legal grounds. For Turkey the right place for an evaluation of this agreement was the CRTA, giving preference to the political elements. The Panel, however, pointed rightly at para. 12 of the Understanding on the Interpretation of article XXIV, mentioned above, according to which the GATT dispute settlement provision should apply "to any matters" of regional integration. How then to solve this conflict? The panel took an equivocal approach. "Specific measures adopted on the occasion of the formation of a customs union or in the ambit of a customs union" would fall "clearly" under the jurisdiction of the WTO dispute settlement organs while the assessment of the overall compatibility of a RTA with article XXIV would be up to the CRTA as this organ was appositely created and the only one in the position to confront this "very complex undertaking" which involves not only legal but also economic and political elements and which has at its centre not a bilateral conflict between WTO members but questions which are of importance for the system as a whole. 62 While the position taken by the panel on this question seems very sensible and humble the Appellate Body was not so convinced it should exercise judicial self-restraint. On the contrary, the Appellate Body acting like a constitutional court defending its ultimate, allencompassing jurisdiction within a given system, was eager to take a different stance and to affirm its unrestricted jurisdiction even on the question of the overall compatibility of RTAs with GATIIWTO law. This clarification seemed to be of such an importance to the Appellate Body that it was made obiter, i.e. even without being asked by the parties.63 Whether this decision was wise remains debarablc.r' The overall 62

63

For the panel it was "arguable" that panels do not have jurisdiction for an assessment on the overall compatibility of Customs Unions with the requirements of article XXIV. Panel Report WT/DS34/R of 31 May 1999, para. 9.53, see note so. This statement was not only made obiter but also indirectly, i.e. by reference to a former report: "[...]The Panel maintained that "it is arguable" that panels do not have jurisdiction to assess the overall compatibility of a customs union with the requirements of article XXIV. We are not called upon in this appeal to address this issue, but we note in this respect our ruling in India - Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products

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compatibility of a RTA with GATT /WTO law is, also in view of the many uncertainties left open, a question that requires the taking into consideration of a vast panoply of elements be they juridical, economic or political in nature. To balance these elements and the related interests the dispute settlement organs would need information they do not possess and assume the role of an umpire that they are not equipped for. A case of this kind still has to be brought before the Dispute Settlement Body. As there are many RTAs whose overall compatibility with article XXIV could be questioned, the restrain showed so far by WTO members could be seen as expression of the awareness of the dangers associated with such a move. On the other hand, should this issue once come to the fore, the ensuing challenge to the very heart of the constitutional consensus within the WTO could perhaps prompt the WTO members finally to give more efficacy to the diplomatic assessment mechanism for which the CRTA has been created. An overall assessment carried out by the CRTA would not necessarily infringe upon the Dispute Settlement Bodies' competence. It would rather allow for a more appropriate attribution of control powers. In extreme cases, even an overall assessment of the compatib ility of a RTA to WTO law would be possible under the condition that this assessment would be carried out under a juridical perspective. Normally, of course, the legal assessment of RTAs should be confined to single juridical problems. If such a "separation of powers " in a two-stage assessment process could be achieved, where the first, diplomatic stage would be necessary, and the second, judicial one, only possible, even conflicting assessments would be apparent rather than real. In fact, if the CRTA comes to the conclusion that minor legal imperfections of a proposed RTA should not stand in the way of an otherwise politically and economically commendable integration project the DSB may adopt a report which contains a finding on a violation of WTO law if a WTO member is prepared to complain. The future will show whether the WTO dispute settlement organs are capable by their own to act with self-restraint in a manner as proposed here or whether this has to be imposed by a legislative act. Perhaps the most important question addressed by the Panel and the Appellate Body concerned the potential scope of an article XXIV ex-

64

on the jur isdictio n of panels to review the justification of balance-ofpayments restrictions under article XVIII:B of th e GAIT 1994[...J". Critical in this regard von Bogdandyl Makatsch, see note 61, 138.

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ception. In other words: to what extent could the creation of a RTA exempt WTO members from WTO obligations? The Panel referred the article XXIV exemption directly and exclusively to the Most Favoured Nations obligation according to article I, while the Appellate Body accepted a broader scope of this exception. In this context, the Appellate Body attributed particular relevance to the chapeau of para. 5 of article XXIV. Its relevant part reads as follows: "Accordingly, the provisions of this Agreement shall not prevent, as between the territories of contracting parties, the formation of a customs union ...; Provided that: ... (emphasis added)". The Appellate Body interpreted "shall not prevent" as "shall not make impossible" and inferred from that that also provisions other than article I could be derogated should the formation of a Customs Union become otherwise impossible.s" The Appellate Body stated in its report the following: "[...] article XXIV may, under certain conditions, justify the adoption of a measure which is inconsistent with certain other GATT provisions, and may be invoked as a possible "defence" to a finding of inconsistency't.ss The Appellate Body, however, also made it clear that not every derogation from provisions other than article I could be justified under article XXIV. Any derogation must, instead, come up to the following conditions, referred to the specific situation of a Customs Union: - First of all, the relevant measure has to be introduced upon the formation of the Customs Union.V This condition is primarily directed at guaranteeing transparency and legal certainty. Furthermore, it appears to encourage a strict interpretation of the article XXIV exception, since those measures not introduced upon formation of the RTA do not seem to be absolutely necessary for its existence. - Second, the Customs Union has to fully meet the requirements of subparas 8 lit. a and 5 lit. a of article XXIV. This means that the respective WTO members have to prove that the Customs Union respects the "substantially-all-the-trade"-cri terion described above, that substantially the same duties and other regulations of commerce are applied by each of the members of the Customs Union to the trade of territories not included in the union and that the 65 66 67

Appellate Body Report, para. 45. Ibid. Ibid., para. 52.

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duties and other regulations of commerce imposed at the institution of the Customs Union are not, on the whole, higher or more restrictive than the general incidence of the duties and regulations of commerce that were applicable before. These are essentially the criteria by which the drafters of article XXIV tried to translate the central economic condition of para. 4, according to which the trade creating effects of integration should prevail over the trade diverting ones, into a legal norm in relation to which compliance should be controllable. We have, however, seen that the vagueness of these provisions leaves many questions open and to attribute the task to fill these lacunae to a judicial organ means that this organ is bestowed with enormous power. The Panel took a very pragmatic approach. It did not specifically address the question of whether the RTA between Turkey and the European Communities really meets the requirements of the paras 8 lit. a and 5 lit. a, limiting itself to assume that this compatibility was in fact given. As this assumption was not appealed the Appellate Body could not address it. Nonetheless, the Appellate Body took the occasion to warn the panel that it had to require the parties to prove that the conditions required had been fulfilled.68 It will be interesting to see in which way the panels will, in future, respond to this invitation. - Of decisive importance for this case was, finally, the third condition, referring to the "necessity" of the measures introduced. The parties to a RTA should prove the "necessity" of the derogations in question and bring evidence that otherwise it would be impossible to create the respective formation. In literature it has been maintained that by stating this the Appellate Body had introduced a rule which inverted the previous practice: it was no longer the other parties who had to demonstrate the inconsistency of a planned RTA with article XXIV but it was up to the members of this agreement to prove the necessity of the derogations in the sense described before.s? Turkey asserted that had it not introduced quantitative restrictions, the European Communities would have excluded these products from free trade within the Turkey/EC Customs Union in order to prevent trade diversion. In view of the enormous relevance trade in textiles and clothing has in this Customs Union (40 per cent) such an exclusion would have made it impossible to respect the substantiallyall-the-trade criterion. The Appellate Body maintained, however, that 68 69

Ibid., para. 59. See, for example, Marceau/ Reiman, see note 55, 312.

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the introduction of quantitative restrictions on textiles and clothing products from India was not necessary for the creation of a Customs Union between the EC and Turkey/? Like the Panel, the Appellate Body pointed at the fact that Turkey could, for example, "adopt rules of origin for textile and clothing products that would allow the European Communities to distinguish between those textile and clothing products originating in Turkey, which would enjoy free access to the European Communities under the terms of the customs unions, and those textile and clothing products originating in third countries, including India . "71 In the end, however, the Appellate Body left the door open for another finding in another situation: "We wish to point out that we make no finding on the issue of whether quantitative restrictions found to be inconsistent with article XI and article XIII of the GATT 1994 will ever be justified by article XXIV. We find only that the quantitative restrictions at issue in the appeal in this case were not so justified. "72 What lessons can be drawn from this decision? The Appellate Body has accepted that the regional exception according to article XXIV can have potentially a very large scope as this exception is not confined to the MFN principle. At the same time the Appellate Body showed, however, clear boundaries to this exception. Derogations of this kind should be accepted only if their necessity was demonstrated. In this sense the creation of such formations remains a right, but a conditional one. Indirectly, the Appellate Body has highlighted that it did not support the position sustained in the past by some authors that article XXIV as a "structural exception" put RTAs in the same place as the multilateral system." The primary function of such formations is, on the contrary, still to be seen in their contribution to the strenghtening of the multilateral system. This report may, on a whole, also be seen as a hint that the WTO dispute settlement organs will, from now on, look

70

71 72 73

Appellate Body Report, para. 61. Ibid., para. 62. Ibid., para. 65. It was said that both multilateralisrn and regionalism were conducive to the same end, to the liberalisation of trade, the only difference between them lying in the fact that regionalism pursues this end in an indirect way. Sec, for example, R. Imhoof, Le GATT et les zones de libre ecbange, 1979, 35; F. Jaeger, GATT, EWG und EFTA: Die Vereinbarkeit von EWG- und EFTARecht mit dem GATT-Statut, 1970, 159. Now, the subsidiary role of regionalism has clearly been highlighted.

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very closely at the interplay of regional and multilateral forces within the world trade order and not accept that the former prevail. All in all, the Appellate Body saw in RTAs more an exception to multilateral ism rather than an equivalent alternative to it for which WTO members could freely opt. This exception should not be interpreted as strictly as possible guaranteeing at the same time that the creation of RTAs should be rendered impossible. In literature it has been argued that in so reasoning the Appellate Body not only defined the scope of article XXIV with regard to its coverage but also the nature of a Customs Union.Zt It has been inferred that the Appellate Body had used as a reference model the EC before the completion of the common commercial policy when internal controls and barriers still existed.i" Does this mean that so-defined Customs Unions form the outer border of RTAs which can still be subsumed under article XXIV? Are, therefore, higher forms of integration, such as Common Markets, inadmissible? Such a conclusion would, of course, be unacceptable. The necessitycriterion has rather to be applied on a case-by-case-basis. For a RTA uniting two geographically distant countries in a Customs Union which shows no significant political cohesion, the elimination of all internal borders may not be strictly necessary to achieve the bulk of the economic goals the respective integration agreement was directed at. In a Common Market the elimination of all internal barriers may, from the outside, give the impression that a fortress is being build but this more extended digression from multilateralism may be justified in view of the broader political goals pursued by this agreement. It is, therefore, misleading to believe that WTO law is, in principle inimical to deeper integrated RTAs. In this field, as in many others, WTO law has rather to balance interest: that of non-participating countries which are interested in trade relations being as little distorted as possible, against that of the RTA members which want to rely on the particular regime of article XXIV for a multitude of reasons amongst which political considerations rank very prominently. It is therefore not one single reference model on which a specific integration attempt has to be gauged, but the allowed "deepness" of a RTA varies in dependence from the necessities of the specific case to be assessed from the subjective perspective of the countries willing to integrate. It is clear that in those cases in which the 74

7S

See M. Cremona, "Neutrality or Discrimination? The WTO, the EU and External Trade", in: de Biirca/ Scott, see note 61, 151 et seq. (182). Ibid.

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proposed RTA pursues mainly economic goals the necessity-criterion will be the subject of an assessment which will be far more objective in nature than in the case of a regional integration project with predominant political connotations. The Appellate Body report in Turkey-Restrictions on Imports of Textile and Clothing Products case should therefore not be interpreted as the expression of a new WTO philosophy which wants to reduce regionalism to a mere marginal role or even to pose outright obstacles to regionalism. Though it is true that regionalism and multilateralism do not hold the same value and reputation in WTO law the specific role attributed to regionalism is not a marginal one and it commands the necessary respect . The most important conclusion we can draw from this case it that article XXIV may not serve as an excuse for abuses. The necessity-criterion is, therefore, not an instrument to reduce the role of regionalism in WTO law but to make sure that RTAs really pursue the aims this exception to multilateralism has been created for. As there are not only a multitude of reasons for which the regional exception has been created and as the most important, the political one, can be of most varied forms, so the RTAs and article XXIV must offer sufficient leeway for this necessary variety.

VI. The European Union and Modern Trends in Regional Integration As has been shown above Western Europe has always been at the centre of the regional integration movement: first to maintain colonial preferences, then as the beneficiary of special consideration in the ambit of EC integration and finally, when article XXIV seemed to have lost all its force of restraint, as a self-conscious actor on the international stage which seemed to be determined to carve out its preferential structures in international trade relations. As a consequence, at the present day, the greatest concentration of RTAs can be found in Europe, with the EC and the EFTA at the centre, both entities being tied to a whole network of RTAs over further agreements. These agreements cover not only the Western part of the European continent but also its Eastern and South-Eastern regions. Paradoxical as it may seem at the first glance, the extraordinary success of these integration movements will also lead to a reduction of the

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number of RTAs in force in Europe. In fact, the enlargement of the EC by 12 accession candidates (Bulgaria, Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, the Slovak Republic and Slovenia) will render obsolete the relative bilateral association agreement (10 of which are so-called Europe agreements) by the year 2007. The newly acceding countries, will, on the other hand, become integration partners not only with each other and the 12 traditional EC countries but also with all the other countries which are part of the large integration network stretching well beyond Europe." The EC has not only been per se a successful integration zone but it has also been very successful in creating a large network of RTAs, thereby creating a focal centre where a Customs Union connects with a large number of Free Trade Areas. Two main problems arise in this context. First, there is the problem of overlapping RTAs, a phenomenon of world-wide importance but of special relevance for the European con tinent characterized in the meantime by criss-crossing, mainly bilateral RTAs where the EC stands at the centre and other countries are connected to this centre through RTAs like spokes in a hub (so-called "hub-and-spoke"-system). This development engenders a flurry of problems.F The most important one is to be seen in the fact that the overlapping of RTAs with different scope, coverage, depth of liberalization and rules of origin (where FTAs are concerned) creates a widely intransparent situation and enormous administrative costs." What are intended to be preferences in bilateral perspectives may be acts of outright discrimination when seen from a more distanced, multilateral point of view. Where RTAs overlap a situation is created in which regional integration may produce effects which directly counterbalance those resulting from the application of the MFN principle. In this situation, regionalism is no longer a valid alternative to multilateralism and conducive to the 76

77

78

See regional TradeIntegration under Transformation, para. 13, see note 4. These problems have recently been described in detail by A. Sapir, "Trade Regionalism in Europe: Towards an Integrated Approach", Journal of Common Market Studies 38 (2000), 151 et seq. (158 et seq.) and in the report Regional Trade Integration under Transformation, para. 10 et seq., see note 4, prepared by the WTO Secretariat. See WTO Secretariat, Rules of Origin in Regional Trade Agreements, WT/REG/W/45. As it is known, this problem has been described by Bhagwati as the "spaghetti bowl of regional integration".

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same end but, instead, clearly threatening the multilateral framework. This problem is evident where different rules of origin collide. It stands to reason that in a heavily integrated world, rules of origin are of decisive importance to maintain independent FTAs. The more demanding they are the greater are the trade diverting effects ("trade deflection") also partly hindering trade with goods coming from outside the FTA but further processed within. Rules of origin can become one of the most important protectionist instruments and the object of costly lobbying activities. In such a situation of dubious access of products originating from the "spokes" in the "hub-market" it is a small wonder that investors prefer to invest in the "hub-market" instead of the "spoke-market"."? As the straight solution to the rules of origin-problem, the transformation of all FTAs in Customs Unions is, in most cases politically not feasible, a "second-best"-approach could be seen in a world -wide harmonization of the rules of origin. Attempts in this sense are, especially on the regional level,80 under way but different national preferences, and, not least, the will to preserve a protectionist instrument stand in the way of a rapid success of such endeavours . Furthermore, the different coverage of overlapping RTAs and the different phasing out of preferences enhance, especially in the field of agricultural products, the need for control measures, thereby adding again to the administrative costs. In view of this array of problems generated by overlapping FTAs which are not only hypothetical but very real many compelling questions arise: why are FTAs still allowed? Why do members of regional integration initiatives not resort to Customs Unions in which trade deflection is not possibler'" Does article XXIV still offer valid criteria for 79

80

81

Cfr, Sapir, see note 77, 159, referring to R.E. Baldwin, Towards an Integrated Europe, 1994. In Europe, the PANEURO system of rules of origin has to be mentioned. On the basis of this system a single set of rules of origin and of diagonal cumulation of origin is applied to preferential trade between the EC, the EFTA states and the Central and East European countries. As these countries have, again, preferential trade relations with other countries on a world-wide level and as they are taking recourse, also in these relations, to the PANEURO system this system is gaining importance far beyond the European region. Cf. WTO Secretariat Report, see note 4, 10 et seq. This, of course, is only true if this Customs Union fulfils substantially-allthe-trade-criterion and if it is fully implemented .

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the evaluation of RTAs? In fact, today regionalism presents a picture, especially in Europe, which could hardly have been foreseen half a century ago. It could therefore be argued that the regional exception according to article XXIV is based on an economic theory which no longer corresponds adequately to the challenges of reality. Most important of all, it could be argued that the inefficiencies caused by overlapping RTAs must be known to the members of such agreements. Why, then, do these countries allow the advantages of regionalism to be offset by these dysfunctional developments? The answers to all these questions lie mainly in a fact, that this article has already been pointed at: Regionalism is not only an economic phenomenon but also, in some cases mainly, a political one. Often, the creation of a Free Trade Area is an expedient when the political consensus for a Customs Union is not given. Criss-crossing, overlapping RTAs reflect the complexities of international relations where personal sympathies between statesmen, historic ties between nations and membership in broader alliances often count more than economic reason. Therefore, preferential economic relations that may seem awkward from a purely economic viewpoint may appear to fit well in a sensible scheme when seen in a more holistic perspective. Secondly, the EC has been one of the most important actors in the attempt to use regional integration as a development instrument. Again, what was thought to be an important step forward in the attempt to foster cooperation between North and South resulted, in the end, in widespread discrimination between single developing countries and questionable results even in the preferred countries. The EC in its development policy followed and, in many cases, heavily influenced the rather tortuous way along which the special role of developing countries in GATT/WTO law was subject to continuous change. As is known, the development issue caused a considerable amount of headache in GATT/WTO circles (or, respectively, among the Member States) and the response to this problem was a never-ending trial-anderror process where the definite answer is not yet in sight. Looking back half a century it could be said that this process has gone almost full circle. While GATT 1947 was originally widely ignorant of the woes and needs of developing countries, the only exception having been arti-

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cle XVIII, 82 with the introduction of Part IV in 1965,83 developing countries were allowed to depart from the reciprocity obligation in RTAs - both in those concluded among themselves as in those concluded with industrialized countries. While this exception was thought to be of a temporary nature not unlike a waiver with the introduction of the so-called Enabling Clause'" a permanent basis for a privileged treatment of developing countries in a multilateral setting where otherwise the principle of non-discrimination was paramount was created." In hindsight, it is doubtful whether this was the right way for promoting the interests of the developing countries as RTas among those countries proved to be largely unsuccessful'" and the preferential agreements between developed and developing countries were highly trade-distortive. Also from a legal point of view these special relationships were hardly defensible, a fact that became more and more evident as the relevant law was clarified over the years. The special, non-reciprocal preferences between industrialized countries and developing countries have always been a contentious issue. They cannot be justified on the basis of article XXIV as their nonreciprocal character stands in the way of the "substantially all the trade" criterion. The EC has tried to justify them on the basis of Part IV of the GAlT and with reference to the so-called enabling clause. Part IV of the GAlT was added to this agreement in 1965 with the special purpose of allowing the concession of preferences to developing countries in a non-reciprocal way. The enabling clause was a decision of the CONTRACTING PARTIES of 1979 whereby the possibilities of pref82 This provision allows for special measures of governmental assistance (es-

83 84

85

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pecially import restriction s) in the case of Contracting Parties which are in the early stages of development. The relevant provisions entered into force on 27 June 1966. Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries of 28 November 1979 (GATT Ll4903), GATT BISD 26S 1980,203-205. On the whole issue see recently E. de Vos, "The Cotonou Agreement: A Case of Forced Regional Integration?", in: G. Kreijen (ed.), State, Sovereignty, and International Governance, 2002, 497 et seq. Nonetheless, they mak e up for a considerable percentage of the whole number of RTAs: the WTO Secretariat, para. 26, see note 4, estimates that of 243 RTAs in force at the time the respective draft was written, between 30-40 per cent were agreement s between developing countries. Until now the appeal of su ch agreements with developing countries seems to be un broken.

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erential treatment should be still enlarged. This approach was, however, not totally convincing as these provisions did allow for the concession of special preferences to the developing countries but not for the discrimination between these countries. The whole problem gained most of its publicity with regard to the so-called Lome Agreements.V While the WTO compatibility of the Lome IV agreement could be ensured only by a waiver 88 in the successor regime, the Cotonou agreement, a waiver is no longer pursued, at least for the time after this new regime becomes fully operative in 2008.89 The EC had to take note of the fact that the time for this kind of preference was over and that a waiver suited to cover this exception on the long run was probably no longer obtainable.j? Most impressively, in various stages of the long banana dispute before the GATT/WTO dispute settlement organs it became clear that the old preferential policy

87

88

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As it is known, since 1976 four Lome Agreements, distinguished by Roman numerals, have been concluded. In a working party set up to examine the compatibility of Lome IV with the GATT provisions several members voiced strong objections pointing at the fact that Part IV of the GATT allowed only for special treatment of developing countries on a generalized basis and not for single countries or groups of countries. See GATT BISD 41S 1994, 125 (128). Though upholding their traditional position the European Community applied subsequently for a waiver which was granted by a decision of the Contracting Parties of 9 December 1994 until 29 February 2000, the date of expiry of Lome IV. See J. Huber, "The Past, Present and Future ACP-EC Trade Regime and the WTO", E]IL 11 (2000),427 et seq. (430). As is known, the waiver granted for the Fourth Lome Convention was not the only one directed to assure GATT/WTO compatibility of RTAs. Other waivers for RTAs still in force regard the US-Caribbean Basin Economic Recovery Act (CBERA) concluded between the United States and 21 C aribbean and Central countries as well as the CARIBCAN, concluded between Canada and 18 Caribbean countries. See WTO Secretariat, Report, see note 4, 9 note 25. In fact, the aim is to conclude either fully fledged RTAs on the basis of article XXIV or to grant preferential status on the basis of the Enabling clause to those ACP countries which qualify as LDCs. For the transitory period until 2008, when the Cotonou regime will become fully WTO compatible, however, a waiver may still be necessary. It has to be noted that any such measure will no longer be governed by the rather "liberal" (or, to put it differently, vague) provision in article XXV GATT but by the much more demanding provisions in the para . 3 and 4 of article IX of the WTO agreement.

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for former colonies of single EC countries could no longer be upheld."! This jurisprudence can be seen as the expression of a new attitude towards preferences for developing countries taken by the WTO as a whole. In this context it is planned to withdraw the special preferences granted to the bulk of the developing countries and to fully integrate them in the multilateral regime on the basis of equal rights and duties. Only for those developing countries which pertain to the group of the least-developed-countries will the special and differential treatment continue to apply, though this special regime shall be phased out step by step as soon as the countries concerned "graduate" to a more developed status. These being the preconditions for preferential cooperation set by the multilateral framework the EC had to undertake a thorough restructuring of her large network of agreements in this field and the Cotonou agreement was surely the most significant step in this direction. 92 The question whether these agreements were compatible with the general, multilateral framework, has been present since the day of their conclusion and it was, as already mentioned, mainly the degree of awareness of this problem that has continuously risen. In this sense, it can be said that the EC has always been prepared to challenge the multilateral rules in this field believing that the risk was contained and that it would, in any case, always control the game. For years, this assumption may have corresponded to reality but in the meantime it no longer holds true. While the EC is still the dominant player in international regionalism, things have changed since the heyday of European regionalism in the 1960s and 1970s. The United States, in particular, have now discovered the attractiveness of regionalism, first by a Free Trade Area with Canada, afterwards through the creation of NAFTA. The next 91

92

For a detailed account of this jurisprudence see P. Hilpold, Die EU im GATTIWTO-System, 1999. The same is true for the "second-generation" Euro-Mediterranean agreements concluded between the EC and the countries of North Africa. These agreements should intensify the cooperation between the EC bloc and several countries of the Northern African region not only on an economic level but also on a political one. In this latter regard issues such as the fight against illegal immigration and the attempt to promote the idea of democracy has gained paramount importance. At the same time these new agreements offered an ideal opportunity to enter into an economic cooperation regime on the basis of the principle of reciprocity thereby also countering any criticism about the WTO compatibility of these agreements. For the year 2010 a "Euro-Mediterranean" free trade area is planned.

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goals seem to be the Free Trade Area of the Americas (FTAA) and the Trans-Atlantic Free Trade Area (TAFTA).

VII. Conclusion Regional integration has become a world-wide phenomenon. As has been shown, the integration tendencies have even been accelerating in the last years. Also among developing countries regional integration has become popular through inter-se agreements. Though it must be said, that the attempt to copy the European success has all but failed.93 In view of this situation, the EC has discovered the virtues of ruleadherence. Generally, the EC tries to renegotiate its non-reciprocal agreements so that they can be based on article XXIV. A particular problem is represented by the association agreements concluded in view of the accession of the 12 candidates mentioned above. They contain large exemptions with regard to the agricultural area. The "substantially all the trade" criterion most likely prohibits the exclusion of a whole area from the integration obligation and in particular one of such an importance as agriculture. On the other hand, these agreements are of a provisional nature and shall lead to full membership. Therefore other WTO members might probably abstain from action. On the whole, two main elements have to be taken into consideration with regard to the situation described above. First of all, the considerations made for regional integration in general also apply to the special issue of regional integration between developing countries: no solution can be found if this matter is considered only from an economic point of view. Developing countries resort to regional integration initiatives both for economic as for political reasons. The finding that a specific initiative is economically unsound is therefore not sufficient to convince the participating countries to abstain from it. On the other hand, political reasons are difficult to judge by third parties interested mainly in a functioning multilateral framework. This means that it may be difficult for third parties - in our case for the EC - to secondguess the political decision by third parties to conclude a RTA. From 93

See World Bank, Trade Blocs, A World Bank Policy Research Report, 2000. For an attempt to distil lessons from the European integration process and to apply them on the developing countries context see L.A. Winters, "What Can European Experience Teach Developing Countries About Integration? ", World Economy 20 (1997), 889 et seq.

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this follows the second important conclusion. In view of the pivotal importance of the principle of reciprocity the best approach to choose by the EC might be to take seriously its traditional leadership in the field of regional integration and to draw all the necessary consequences. It can be said, therefore, that there are good reasons for the EC to try to mend the system as its many defects are apparent and defeats before WTO dispute settlement organs are looming. But the most important reason for this newly found confidence of the EC in multilateral trade rules is the fear of imitations.?" In this, the behaviour of the EC can best be explained by theories developed by the social sciences such as the prisoner dilemma and the theory of the second-best, both already mentioned in this article. With regard to the first theory it is important to note that the EC has learnt to take into consideration the possibility of reactions by other states and the fact that cheating does not payoff on the long run. Although in this field the times of reaction are relatively long and in the first years after GATT had come into existence it seemed that Europe was the natural - and by far the most important - playing ground for regional integration experiments, after several decades even the staunchest advocate of multilateralism, the United States, has adapted to this new situation and shows that it is very able of playing this game. As a consequence, the EC is now demanding a more detailed regulation of the rules of the game. With regard to the second theory it was said that "it was precisely in the context of preferential trading arrangements that the Byzantine complexities of the second best were first discovered."95 As is known, the theory of the second best has met with harsh criticism in literature. 96 The recommendation that the failure to attain the optimum in one area of a general equilibrium should be taken into consideration when other optima pursued in the sense that the Pareto optima have not to be determined in an isolated way but under consideration of all changes to the applicable conditions deriving from the first-mentioned area appears to be theoretically compelling but in many cases impossible to translate into practice for the lack of the necessary information." In practice it may still be preferable to pursue first-best-solutions even 94

95 96 97

See, in particular, European Commission, WTO relevant aspects of EU preferential agreements with third countries, SEK (96) 2168 final. See Krugman, see note 8, 58. See also Pomfret, see note 36, 460. Cf., for example, D. Briimmerhoff, Finanzwissenschaft, 2001,117 et seq. Ibid.

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knowing that the results are not Pareto optima when the available information is insufficient for the necessary adaptations. Applied to the RTA issue this criticism strongly recommends to hold on to multilateralism. This criticism finds expression - though not expressly and most probably not knowingly - in the reports of the panel and the Appellate Body in the Turkey-Restrictions on Imports of Textile and Clothing Products case where it was confirmed - as already stated - that regionalism is no equivalent alternative to multilateralism. It follows implicitly from the adoption of the necessity principle - as defined above - that every effort has to be made to avoid restrictions that go beyond a mere exception of article I GATT. As a consequence, it can be said that the modern interpretation given to the theory of the second best needs to be very careful towards all too sweeping demands for exceptions to the general multilateral framework. With regard to the EC it has to be noted that this institution is itself interested in stable multilateral trade relations and in open markets on the basis of the MFN principle. It has now much to fear that other countries are in the meantime copying the EC's unruly behaviour of the past.

The Prospects of 21st Century Constitutionalism Thomas Cottier/Maya H ertig

"Wir Leben insow eit v on dem Gedankengut einer Welt, die nicht mehr die unsere ist und, w ie wir immer deutlicher sehen, in den tiefen WandLungen des ausgehenden 20. Jahrhunderts ihren Untergang gefunden hat. Ober ihre GrundLagen, bisher als gesichert geLtende Bestandt eiLe der Staats- und Veifassungslebre, ist die Gescbichte hinweggegangen." (Konrad Hesse)

I. II.

Introduction The Converging Evolution of Constitutional and Public International Law 1. The Traditional Dichotomy Between International and Constitutional Law 2. Towards Structural Rapprochement a. Th e Impact of State Failures, Decol onization, Rcgionalization and Glob alization aa. 'Internationalization' of Constitutional Law bb. 'Constitutionalization' of International Law III. Con stitution alism Beyond the Nation State 1. The Contested Notion of the ' Co nstitution' a. Recourse to Constitution al Termino logy b. De scriptive versus Normative Concept of Constitution 2. The Quest for a Graduated App roach to Constitutionali sm a. The Immobilizating Effect of Statism b. The Need for Peaceful Constitutional Transiti ons c. Constitutionalism as a Pro cess IV. Toward s a Five Storey House 1. Multil evel Go vernance 2. Shared Sovereignt y

A. von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 7, 2003, 261-328 . © 2003 Koninklijke Brill N. V. Printed in the Netherlands.

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Max Planck UNYB 7 (2003) 3. The Relationship Between the Different Levels of Governance a. The Principle of Supremacy b. Exceptions to Supremacy 4. The Normative Interaction Between the Different Layers of Governance 5. The Allocation of Powers a. The Limits of Traditional Pattern of Power Allocation b. Reallocation of Powers c. Shared and Interlocked Powers d. Substantive Remedies e. Procedural Remedies 6. The Role of the Judiciary Conclusion

I. Introduction At the outset of the Millennium and with the advent of a new Century, traditional foundations of constitutional governance face new challenges in the light of enhanced international interdependence, globalization of markets, of technologies and communication way beyond the boundaries of the Nation State. The moment has come to live up to these challenges in legal theory and constitutionalism. The goals of liberty, justice and dignity, of equity but also efficiency and security all remain unimpaired. But ways and means to secure them in coming decades and perhaps centuries need to be developed in the context of an increasingly globalized society. The past, building upon the achievements and failures of the Westphalian system of Nation States and the republican ideas of the French and American Revolutions brought about the consolidation of constitutionalism within the Western Nation State. The theories of constitutional and traditional public international law emerged as a response to a Europe highly fragmented and torn by devastation. An account of the Thirty Years' War, of religious and political fragmentation, social misery and the decline of law reminds us of the implications of such disorder.' This experience created the underpinnings of the modern state.? The call for central governance and sovereignty in the writings of

1 2

Cf. G. Mann, Wallenstein. Sein Leben erzdhlt von Golo Mann, 1974. See C. Walter, "Constitutionalizing (Inter)national Governance", GYIL 44 (2001),92 et seq .

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Bodin 3 and Hobbes.' and for limited government and checks and balances in the works of Locke' and Montesqieui all served in differing ways the causes of liberty and peace within the system of Nation States, at their respective times." Indeed, it is important to recall that all these efforts were directed at achieving freedom and security through governance under contemporary conditions, within the bounds of society, markets and means of communication of that time, seeking to overcome incoherence, fragmentation and abuse of power. Yet, these endeavours were operational answers to their times and societies and cannot claim eternal truth. Meanwhile, the historical, political and economic context has undergone important changes which a modern theory of constitutionalism has to account for if it is to ensure its traditional functions and to contribute to global governance. With technological advances of the past and present, interaction of states and societies has considerably increased, leading from traditional coexistence to cooperation and even to integration by means of international law and organizations. It is obvious that Constitutionalism of the 21st century needs to address these complexities and to reach beyond the boundaries of the Nation State. This raises difficult theoretical questions as to how this can be achieved. The current efforts mainly focus on the problem as to whether levels of governance other than the Nation State are constitutionally framed or not, and therefore what essential qualities and properties amount to a
J. Bodin, Six livres de la Republique, 1993 (first published in 1576).

4

T. Hobbes, Leviathan, 2000 (first published in 1660). J. Locke, Two Treaties of Government, 1999 (first published in 1690). Ch .L. De Montesquieu, De l'esprit des lois, 1998 (first published in 1748). See e.g. J.P. Muller, uWandel des Souveriinitiitsbegriffs im Lichte der Grundrechte - dargestellt am Beispiel von Einwirkungen des internationalen Menschenrechtsschutzes auf die schweizerische Rechtsordnung", in: R. Rhinow/ B. Ehrenzeller (eds), Fragen des internationalen und nationalen Menschenrechtsschutzes, Zeitschrift fur Schweizerisches Recht 116 (1997), 45 et seq. (57 et seq.), who points out that the purpose of sovereignty was, historically speaking, to secure peace.

5 6 7

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tent that it is necessary to demonstrate that an exclusive focus of constitutionalism on the Nation State cannot be maintained. It needs to give way to a graduated approach which views constitutionalism as a process, extending constitutional structures to fora and layers of governance other than nations. The main aim of this article is thus not to define whether different levels or layers of governance, national or international, have a 'constitution', or amount to one, and what the minimal content of the normative concept of 'constitution' should be. Rather, we are interested in the necessary relations and functions of different and existing layers of governance, whatever their nature and quality, considered as on overall complex. Allocating powers among and between these layers, establishing adequate safeguards on different levels of governance - whether or not termed a Constitution - and defining the relationship and interaction between these layers, for example in the field of human rights protection or market access rights, is one of the main tasks constitutionalism will have to achieve in this century. We conceive the core of constitutionalism as a matter of interfacing different layers of governance from local to global levels, building a house with different storeys. This approach satisfies the need to look at different layers in a coherent manner, as forming part of an overall system. Such a system is not static. It rather depicts a process with changing allocations of powers and functions of governance. Many different types of structures and combinations are possible. Our approach may be an unusual angle to look into constitutional law as it inherently entails an important focus on international law. Yet, we shall argue that, far from being two essentially different systems, public international law and constitutional law have increasingly influenced each other. This has.led to a structural rapprochement and great permeability of both legal orders. The gradual process of convergence between international and constitutional law is described in the first part of the article. We then depict the current debate on the notion of 'constitution' to conclude that constitutionalism needs to be decoupled from the Nation State and should be conceived as a graduated concept. On this basis, we finally turn to developing some elements for a theory of 21st century constitutionalism.

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II. The Converging Evolution of Constitutional and Public International Law 1. The Traditional Dichotomy Between International and

Constitutional Law The prevailing understanding of constitutionalism, as it developed in the l Sth and 19th centuries, was shaped within, and limited to, the boundaries of the Western Nation State. It is worth recalling that the latter also was, and still is, the central concept of classical international law of coexistence, as it emerged in the aftermath of the Peace of Westphalia.f However, in contrast to the integrated hierarchical legal order of the Nation State, the international "unsociety"? was essentially a society of sovereign, juxtaposed states. International law was conceived as a little institutionalized, decentralized systern.l? the sovereign states being both "the creators and the subjects of its norms" ;'! the individuals its objects. Since inter-state relationships were mainly perceived as a threat to the very existence of the Nation State.F foreign policy was considered For a description of the so-called Westphalian System, see S. H obe, "T he Era of Globalisation as a Challenge to International Law ", Duq. L. R ev. 40 (2002), 657 et seq .; A. Ro sas, "Globaler Kon stitutionalismu s, Men schenrechte und staatl iche Souverani tat . D ie Meilensteine vo n 1945 und 1948", in: H. Brunkhorst/ M . Kettner (eds), Globalisierung und D emokratie, Wirtschaft, Recht, Medien, 2000, 153 et seq.; D. Thiirer, " Recht der Internat ionalen Gemeinschaft und Wandel der Staatlichke it", in: D. Thiirer/ J.E Aubert/ J.P. Miiller (eds), D as Verfassungsrecht der Schweiz, 2001, 39 et seq ., who uses the term state-"wo rld" instead of Westphalian System . 9 P. Allot, "The Concept of International Law ", EjIL 10 (1999), 31 et seq. (35). 10 ].A.C. Salcedo, "Reflections on the Existence of a Hierarchy of Norms in International Law", EjIL 8 (1997), 583 et seq. 11 Salcedo, see above, 583; see also Hobe, see note 8, 657. 12 The Swiss Federal C on stitution of 1848 illu strates thi s point. It s article 2 ascrib ed the task to th e C onfederation to safeguard th e ind ependence and the security of the co untry "aga inst foreign powers" ["contre l'etranger"]. See T. Cottier! M. Hertig, "Das Vo lkerr echt in der neuen Bundesverfassu ng: Stellung und Au swirkungen ", in: U. Zimmerli (ed.), Berner Tage fur die juristische Praxis 1999: Die neue Bundesv erf assung. Konsequenzen fur Praxis und Wissenschaft, 2000, 2 et seq.; G. Mal invern i, "L'independance de la Suisse dan s un mo nde interd ependant ", Z eitschrift fu r Schweizerisches

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the exclus ive prerogative of the executive branch, a domain, as John Locke put it, "much less capable to be directed by ant ecedent, standing, po sitive Laws".'3 The rule of law, and the principle of separation of powers, both core precepts of liberal constitution alism.l" thus only applied within the Nation State.l> whereas int ernational law remained a "constitu tion-free" and "morality-free zone",16 dominated by utter ReRecht 117 (1998),1 et seq . (7). Similarl y, the foundin g fathers of th e United States invoked th e hostile international environment as one of the main reasons justifying th e foundation of the federal state: " It is true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, that absolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private co mpacts to aggrandize or suppon their particular families or partisans. " Cf. A. Hamilton/ J. Madison / J. Jay, The Federalist Papers, 1969 (first published in 1788), Paper No.4 Gay), 46; see also Paper No.6 (Hamilto n), 59 et seq. 13 J. Locke, Th e Treatises of Gov ernment 395-99, 1965,411 , quoted in E.U . Petersmann, "How to Constitutionalize International Law and Foreign Policy for the Benefit of Civil Society ", Mich.]. Int 'l L. 20 (1998), 1 et seq. (25 et seq.), 14 For a definition of con stitutionalism, see for example M. Ros enfeld, Constitutionalism, Identity, Difference and Legitimacy, 1994, 3, according to whom "constitutionalism requires imposing limits on the powers of government, adherenc e to th e rul e of law, and th e protection of fundamental rights. " Similarly E.U. Petersmann, "Constitutionalism, Constitutional Law and European Integrati on ", Aussenwirtschaft 46 (1991), 247 et seq. (252 et seq .): "Constitutionalism" denotes the basic idea of limited government under the rule law." See also U.K. Preuss, "Patterns of Constitutional Evolution and C hange in Eastern Europe", in: J.Hesse/ V. Wright (eds), Constitutional Policy and Change in Europe, 1995,95 et seq. (95): " [C]onstitutionalism embraces essentially the idea of limited government". 15 T. Cottier! D. Wu ger, "Auswirkungen der Globalisierung auf das Verfassungsrecht: Eine Diskussionsgrundlage", in: B. Sitter-Liver (ed.), Herausgef orderte Verfassung, Die Schweiz im globalen Kontext, 1999,241 et seq . (242 et seq .); th e view according to which no con stitutional constraints should be imp osed in the field of foreign policy is also reflected in the Fed eralist Papers: "The circumstances that endanger the safety of nati ons are infinite, and for this reason no constitutional shackles can wisely be imposed on the po wer to which the care of it is committed. T his power ought to be coextensive w ith all th e possible combinations of such circumstances", H amilton / Madison/ Jay, see note 12, Paper N o . 23 (Hamilton), 153. 16 Allot, see note 9, 35.

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alpolitik and the barrel of the gun. Domestic and international law were thus, in principle, looked upon as two essentially distinct systems.

2. Towards Structural Rapprochement a. The Impact of State Failures, Decolonization, Rcgionalization and Globalization During the 20th century the concept of coexistence remained of paramount importance and still shapes international law to a large extent. Yet, the boundaries between domestic and international spheres gradually blurred, with public international law evolving from a law of coexistence to a law of cooperatiori'", increasingly addressing domestic matters, and, partially, to a regional or even global law of integration.l'' The latter can be described as the making and shaping of uniform or approximated domestic legal standards by way of international treaty making, particularly in the field of economic regulation. The legacy of two world wars, led in the name of the Nation State, saw the advent of the United Nations, the Bretton Woods Institutions and a relatively open global trading system based upon the GATT, now the World Trade Organization (WTO). In Europe, the Council of Europe and the European Communities were founded with a view to assuring peace and prosperity. International instruments for the protection of human rights, namel y the European Convention on Human Rights and the two United Nations Covenants of 1966, were set up as minimal safeguards for the citizens against the failure and abuse of state power.'? These developments are partly rooted in enhanced interdependence, partly in assisting newly independent states, but mainly in failures of states to protect and promote human well being, world peace and stability on their own. They were implicitly guided by the aim of intro-

17 18

19

The term 'law of co-operation' was coined by W. Friedmann, The Changing Structure of International Law, 1964,60-68. The term ' global law' instead of 'law of integration' is increasingly used, cf. Hobe, see note 8, 663, see also the series of 'Studies in Global Economic Law ', Vol. I -VI., (Peter Lang). See T. Cottier, "Trade and Human Rights: A Relation ship to Discover", JIEL 5 (2002), 11 et seq. (116).

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ducing a new layer of constitutional checks and balances so as to constrain the power of the sovereign states. At the same time, bilateral and multilateral cooperation increased dramatically so as to cope with the profound technical, social, ecological and economic changes commonly described as globalization.2o Nowadays, states are locked in and bound by many treaties. These agreements not only define external relations, but increasingly shape national law. In the case of the WTO, the process is accompanied by effective dispute settlement and enforcement. Even the United States of America as a superpower grudgingly adheres to this in principle with a view to securing its own market access and legal compliance interests abroad." The same holds true for the European Communities. Failure to comply with a number of big WTO cases across the Atlantic must not detract from the fact that overall levels of compliance are high. The more so, this is true within regional integration. Contemporary law of the European Union and the Community not only limits the powers of Member States but also those of non-members, like Switzerland, who see themselves under factual constraint to adapt and implement European Community law with a view to minimizing trade barriers and distortions to their own disadvantage. As a legal phenomenon, regionalization and globalization can be described as a process of "legal and de facto denationalisation",22 resulting from the declining regulatory 20

21

22

For a succinct description of the process of globalization, see K. Dicke, "Erscheinungsformen und Wirkungen von Globalisierung in Struktur und Recht des internationalen Systems auf universaler und regionaler Ebene sowie gegenlaufige Renationalisierungstendenzen", in: K. Dicke/ W. Hummer! D . Girsberger et al.(eds), Public Law and Private International Law in a Globalising International System, Berichte der Deutschen Gesellschaft fiir Volkerrecht 39 (2000), 13 et seq. (14 et seq.); P. Pernthaler, "Die Glebalisierung als Herausforderung an eine moderne Staatslehre", in: H. Schaffer! W. Berke/ H. Stolzlechner! J. Werndl (eds), Staat - Verfassung - Verwaltung: Festschrift anlasslich des 65. Geburtstages von Prof Dr. Dr. h.c. Friedrich Koja, 1998, 67 et seq. (69 et seq.); D. Held/ A. McGrew/ D. Goldblatt/ J. Perraton, "Rethinking Globalization", in: D . Held/ A. Mc Grew (eds), The Global Transformations Reader. An Introduction to the Globalization Debate, 2000, 54 et seq.; U. Beck, "What is Globalization?", in: Held/ McGrew, see above, 99 et seq. Cf. in this context the seminal work of L. Henkin, How Nations Behave, 1979, 12 et seq. C. Tietje, "Global Governance and Inter-Agency Co-operation in International Economic Law",fWT 36 (2002), 501 et seq. (502 et seq.); D. Thiirer, "Die Bundesverfassung von 1848: Kristallisationspunkt einer Staatsidee",

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capacity of the Nation State 23 and consisting in the transfer of policies traditionally regulated by domestic law to international or supranational governance structures or regimes.I" All these changes have deeply affected the structure of law in general and both constitutional and public international law in particular. Giovanni Biaggini put it succinctly: "constitutional law is becoming more international, international law more constitutional'V!

aa. 'Internationalization' of Constitutional Law As regards constitutional law, the growing interdependence of states and their declining regulatory capacity have caused, in Biaggini's words, a "partial outsourcing" of constitutional functions.P Importantly, the protection of fundamental rights and safeguarding peace are no longer the exclusive responsibility of national constitutions.F They have also become important tasks of international and supranational organizations. 28 The same is particularly true in economic relations. Market access rights and level playing fields are secured by basic treaty principles of non-discrimination (most favoured nation and national treatment) which do not form part of the introverted traditions of constitutional law.29 They are accompanied by a multitude of rules which in certain fields are more detailed than corresponding domestic regulations.

23

24

25

26 27

28 29

Zeitschrift fur Schweizerisches Recht 117 (1998), 163 et seq. (176); J. Delbriick, "Globalization of Law, Politics, and Markets - Impl ications for Domestic Law - A European Perspective", Ind. j. Global Legal Stud. 1 (1993), 10 et seq.; Dicke et al., see note 20, 14. Hobe, see note 8, 656. The concept of regime can be defined as a set of "principles, norms, rules, and decision-making procedures around which actors' expectations converge in a given cause-area", S.D. Krasner, International Regimes, 1983, 1. G. Biaggini, "Die Idee der Verfassung - Neuausrichtung im Zeitalter der Globalisierung?", Zeitschrift fur Schweizerisches Recht 119 (2000), 445 et seq. (455) (translated by the authors). Biaggini, see note 25,454. Biaggini, see note 25, 454 et seq. Biaggini, see note 25,454 et seq. T. Cottier, "Structure-Substance Pairings in the EFTA Experience ", in: M. Hilfl E.U. Petersmann (eds), National Constitutions and International Economic Law, 1993,409 et seq. (434 et seq.)

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The transfer of constitutional functions from the national to the internationallevel has been described by some legal scholars in terms of "internationalisation of constitutional law",30 "the opening up of the constitutional state"3! or the emergence of "international parallel consritutions'l.V

bb. 'Constitutionalization' ofInternational Law As regards public international law, the increasing importance of non state actors, such as international and non-governmental organizations (NGO's) and multinational corporations, are challenging the role of the state as the exclusive subject of international law.P The individual, traditionally considered an object of international law, is gradually gaining the status of a "partial subject".34 These developments mark a slow shift of paradigm from an international society of independent, sovereign states to the international comrnunity.P evoking the idea of interde-

30

Biaggini, see note 25, 452. G. Biaggini, "Die bffnung des Verfassungsstaates als Herausforderung fur Verfassungsrecht und Verfassungslehre", in: B. Ehrenzeller et al. (eds), Der Verfassungsstaat oor neuen Herausforderungen: Festschrift fur Yvo Hangartner, 1998, 957 et seq. (957); T. Cottier, "Globalisierung des Rechts - Herausforderung fur Praxis, Ausbildung und Forschung", Zeitscbrift des Berner [uristenuereins 133 (1997),217 et seq. (224); D. Schindler, "Der Weg vom "geschlossenen" zum "offenen" Verfassungsstaat", in: Ehrenzeller, see above, 1027; S. Hobe, Der offene Verfassungsstaat zwischen Souuerdnitdt und Interdependenz: eine Studie zur Wandlung des Staatsbegriffs der deutschsprachigen Staatslehre im Kontext internationaler institutionalisierter Kooperation, 1998. 32 C. Tomuschat, "Der Verfassungsstaat im Geflecht der internationalen Beziehungen", VVDStRL 36 (1978), 7 et seq. (9, 50); D. Thurer, Perspektive Schweiz. Obergreifendes Verfassungsdenken als H erausforderung, 1998, 86. 33 Hobe, see note 8, 659 et seq. 34 Hobe, see note 8, 661 et seq. 3S One of the first proponents of the concept of 'international community' was the judge of the IC] Hermann Mosler, see H. Mosler, "The International Society as a Legal Community", in: Collected Courses, The Hague Academy of International Law No.4 (1974),140 et seq. and id., The International Society as a Legal Community, 1980. For later works, see in particular C. Tomuschat, "Obligations Arising for States Without or Against Their Will", in: Collected Courses, The Hague Academy of International Law No.4 (1993), 195 et seq. and A.L. Paulus, Die internationale Gemein31

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pendence, shared responsibility and solidarity.-" The departure from the voluntaristic, state-centred concept of international law and the emphasis on the interests of the community of states as a whole also affect the sources and the implementation of public international law. The idea of 'higher law', binding the states independently of their individual consent, is reflected in the concepts of 'ius cogens', 'obligationes erga omnes' and 'international crime'Y However limited in scope, they have resulted in a rudimentary mandatory hierarchical structure of the international legal system which no longer is at the disposition of national law and the Nation State. As the creation of the European Court of Human Rights in Strasbourg, the ICC in The Hague, the WTO, the United Nations Convention on the Law of the Sea, and, most importantly, the European Union with their binding dispute settlement system shows, law enforcement mechanisms have been established with varying, but enhanced efficiency compared to voluntarist classical international law.38 With human rights lawyers at the forefront, the changing structure of the international legal system and its increased focus on the rights of the individuals, is referred to as the «constitutionalization of public international law".39 Before it was employed by international lawyers, the term 'constitutionalization' was introduced in the context of the European Community, describing the "process by which the ECJ [European Court of Justice] transformed treaty into constitution.Y? mainly by attributing

36

37

38 39

40

schaft im Volkerrecht. Eine Untersuchung zur Entwicklung des Volkerrechts im Zeitalter der Globalisierung, 2001. Salcedo, see note 10,588; Thiirer, see note 8, 44. For these concepts, see, among the vast literature, for example the articles by J.H.H. Weiler! A.L. Paulus, "The Structure of Change in International Law or Is There a Hierarchy of Norms in International Law?" EJIL 8 (1997), 545 et seq.; M. Koskenniemi, "Hierarchy in International Law: A Sketch", EJIL 8 (1997), 566 et seq.; Salcedo, see note 10,583 et seq. For a critical account, d . P. Wei!, "Vers une normativite relative en droit international?", RGDIP 86 (1982), 5 et seq. See J.A. Frowein, "Konstitutionalisierung des Volkerrechts", in: Dicke et al., see note 20, 427 et seq. (438 et seq.). For Frowein, the "constitutionalization of public international law means recognition of interests of the community of states and the introduction of mechanisms for their implementation", Frowein, see above, 447. F. Snyder, "General Course on Constitutional Law of the European Union", in: Academy of European Law (ed.), Collected Courses of the Academy of European Law, Vol. VI, No.1 (1995),41 et seq. (56).

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direct effect and supremacy to Community law and developing a fundamental rights doctrine for the European Union."! In comparison with the European Union, the theory of 'constitutionalization' is, of course, less developed and unsettled in public international law. It stands both for an analytical tool to describe the structural changes of the international legal system and for a strategy as to how to further enhance the efficiency, coherency and legitimacy of international law by applying constitutional law theories to the international system as a whole or to international organizations. The theory of constitutionalization is thus both descriptive and normative, which is illustrated by the 'constitutionalization debate' with regard to the WTO . Within the community of WTO scholars, different schools of thought can be observed, ranging from general descriptions to specific normative claims. Hannes L. Schloemann and Stefan Ohlhoff, for instance, use the term 'constitutionalization' to describe the important substantive reach of WTO law, the quasi-obligatory dispute settlement system and the shift of the WTO from a power to a rule oriented system, which has developed into a "proto-supranational structure L''-' Similarly, for Deborah Z. Cass, 'constitutionalization' characterizes "the generation of a set of constitutional-type norms and structures by

41

42

Snyder, see above, 56; J.H.H. Weiler, "The Transformation of Europe", in: J.H.H. Weiler, The Constitution of Europe, 1999, 19 et seq., first published in Yale L. j. 100 (1991), 2403 et seq.; id., "The Reformation of European Constitutionalism", in: Weiler, see above, 221 et seq.; E. Stein, Thoughts from a Bridge, a Retrospective of Writings on New Europe and American Federalism, 2000, 15. The first account of the 'constitutionalization' of the EC treaties is generally attributed to an article written by Eric Stein in 1981: "Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe. From its inception a mere quarter of a century ago, the Court has construed the European Community Treaties in a constitutional mode rather than employing the traditional international law methodology". E. Stein, "Lawyers, Judges, and the Making of a Transnational Constitution", AjIL 75 (1981),1 et seq. (1), also published in: Stein, see above, 16 et seq. H. Schloemann/ L. Ohlhoff, "Constitutionalization" and Dispute Settlement in the WTO: National Security as an Issue of Competence", AjIL 93 (1999),424 et seq. (424) and footnote 1. Cf. also id., "Transcending the Nation State? Private Parties and the Enforcement of International Trade Law", Max Planck UNYB 5 (2001), 675 et seq.

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judicial decision-making"." john jackson's constitutional analysis of the WTO focuses mainly on the institutional structure of the Organization.f He emphasizes the need to increase transparency and the participation of non-governmental organizations in the decision-making procedures of the WTO, without advocating fundamental changes in the structure of international and inter-governmental law.45 Markus Krajewski also considers transparency an important legitimating strategy. But contrary to jackson, he does not believe that NGO's participation would increase the legitimacy of the WTO.46 Similar to Krajewski's opinion.'? Steve Charnovitz defends the view that international governance must meet the standards of legitimacy according to constitutional principles and writes in support of what he calls cosmopolitics as opposed to traditional intergovernmental diplomacy or ortho-politicsr'" "The individual wants legitimate, democratic governance at all levels, be it the local school board, the city, the province, the nation, or the WTO".49 Ernst-Ulrich Petersmann has made a passionate claim for integrating human rights law into the WTO, arguing that national courts should directly apply WTO norms, which embody the fundamental right to free trade, whereas panels should construe the general exception and safeguard clauses in the light of international human rights

43

44

45 46 47 48

49

D .Z. Cass, "The ' Constitutionalization' of International Trade Law: Judicial Norm-Generation as the Engine of Constitutional Development in International Trade", EJlL 12 (2001), 39 et seq. (39). J.H. Jackson, "The WTO 'Constitution' and Proposed Reforms: Seven 'Mantras' Revisited", jIEL 4 (2001), 67 et seq. (70 et seq.); for a summary of Jackson 's view, see J.L. Duvigneau, "Die Konstitutionalisierung des WTO-Rechts. Zur juristischen Diskussion tiber Verfassungsstrukturen im Bereich des Handelsvolkerrechts", Aus senwirtschaft S6 (2001), 29S et seq. (300 et seq.) , Jackson, see note 44,76 et seq. M. Krajewski, Verfassungsperspektiven und Legitimation des Rechts der Welthandelsorganisation (WTO), 2001, 2S2 et seq. (261 et seq.). Cf. M. Krajewski, "Democratic Legitimacy and Constitutional Perspectives of WTO Law",JWT 3S (2001), 167 et seq. (171). The term "orthopolitics" describes a state-centered view of international. law, according to which the individuals only participate in international policy making through their own governments, S. Charnovitz, "WTO Cosmopolitics", N. Y. u.j. Int'l L. & Pol. 34 (2002),299 et seq. (306). Charnovitz, see above 48,310 et seq.

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norms. 50 This strategy has been criticized on different grounds. 51 Philip Alston , for instance, fears that Petersmann's theory of constitutionalizing the WTO will result in the instrumentalization of human rights for trade liberalization purposes.V Robert Howse and Kalypso Nicolaides warn against constitutional language and concepts being imported into the debate about the WTO, fearing an increased polarization between free trade advocates and its detractors. In general, they argue that constitutionalizing WTO law goes too far, as it impedes Member States from pursuing legitimate policy goals domestically, and overstrains the international systern.P In a similar vein, Armin von Bogdandy's coordinated interdependence model emphasizes the regulatory autonomy of WTO members, highlighting the important differences between the European Union and the WTO.54 Eric Stein also points out that the differences, in terms of the integration level achieved, between the international structure of the WTO and the supranational European Union "make transfers of the basic features of the European Union difficult to envision".55 Joseph H.H. Weiler considers" 'constitutionalizing' 50

51

52

53

Cf. E.U. Petersmann, "Time for a United Nations "Global Compact" for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration", EJIL 13 (2002), 621 et seq., also published in The Jean Monnet Working Paper No. 12, 2002; ibid., "Taking Human Dignity, Poverty and Empowerment of Individuals More Seriously: Rejoinder to Alston", EJIL 13 (2002), 845 et seq. P. Alston, "Resisting the Merger and Acquisition of Human Rights by Trade Law. A Reply to Petersmann", EJIL 13 (2002), 815 et seq., also published in The Jean Monnet Working Paper No . 12, 2002; R. Howse, "Human Rights in the WTO: Whose Rights, What Humanity? - Comment on Petersmann", EJIL 13 (2002), 651et seq., also published in The Jean Monnet Working Paper No . 12, 2002; Krajewski, see note 47, 179 et seq.; D.K. Tarullo, "The EU and the WTO: Legal and Constitutional Issues",JIEL 5 (2002),941 et seq. (942). Alston, see note 51, 842 et seq. R. Howse/ K. Nicolaides, "Legitimacy and Global Governance: Why Constitutionalizing the WTO is a Step Too far", in: R.B. Porter (ed.), Effi-

ciency, equity and legitimacy: the multilateral trading system at the millennium, 2001, 227 et seq.; Thiirer, see note 8, 43, defends a similar view as regards the constitutionalization of public international law, considering this strategy too ambitious. 54 A. von Bogdandy, "Law and Politics in the WTO - Strategiesto Cope with a Deficient Relationship", Max Planck UNYB 5 (2001), 647 et seq. 55 E. Stein, "International Integration and Democracy: No Love at First Sight", AJIL 95 (2001), 502 et seq. (533).

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the GATT in structural terms and in some ways using the EV as a 'model' [a] simplistic dream"56 and "wholly misguided"Y Finally, one of the authors of this article advocates within the existing legal framework a modest shift, reflected in case law, from a functional paradigm, primarily aimed at trade liberalization, towards a framework capable of "reasonably balancing and weighing different, equally legitimate and democratically defined basic values and policy goals of a polity dedicated to promote liberty and welfare in a broad sense".58 In other words, there is no common ground, at this stage, and different authors have different conceptions on whether constitutionalizing the WTO is possible or desirable in the first place, and if so, what the practical implications of constitutionalization are and should be. Despite the lack of common notions and perceptions, the constitutionalization discussion should be welcomed as a sign that strict separation between domestic and international law has come under challenge, opening the debate on the prospects for 21 st century constitutionalism.

III. Constitutionalism Beyond the Nation State 1. The Contested Notion of the 'Constitution' a. Recourse to Constitutional Terminology The debate on the 'constitutionalization' of European and international law goes hand in hand with an increasing, sceptics would say inflationary, use of the term 'constitution'. While the traditional notion of 'con-

56 J.H.H. Weiler, "Epilogue: Towards a Common Law of International

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Trade", in: J.H.H. Weiler (ed.), The EU, the WTO and the Nafta. Towards a Common Law of International Trade, 2000, 230. J.H.H. Weiler, "Cain and Abel - Convergence and Divergence in International Trade Law ", in: J.H.H. Weiler (ed.), The EU, the WTO and the Nafta . Towards a Common Law of International Trade, 2000,1 et seq. T. Cottier, "Limits to International Trade: the Constitutional Challenge," ASIL Proceedings 94 (2000), 220 et seq. (221).

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stitution' has been limited to the Nation State,59 we observe that it is increasingly employed in the context of European and public interna-

59

For Swiss authors, see W. Kagi, Die Verfassung als rechtliche Grundordnung des Staates. Untersuchungen iiber die Entwicklungstendenzen im modemen Verfassungsrecht, 1945; A. Auer! G. Malinverni/ M. Hottelier, Droit constitutionnel Suisse, Vol. I, 2000, 1: "La constitution est un ensemble de normes qui ont trait a l'Etat", ("The constitution is a set of legal norms which refer to the state"); for French legal doctrine, d. G. Vedel, Manuel elementaire de droit constitutionnel, 1949, 3; A. Esmein , Elements de droit constitutionnel [rancais et compare, 1921, 1; it is true that the concept of 'constitution' is, according to French legal theory, primarily related to the nation, and not to the state (see A. Peters, Elemente einer Theorie der Verfassung Europas, 2001, 97 et seq.), but since the state is considered the legal personification of the nation, state and constitution are clearly connected; d . Esmein, see above, 1: "L'Etat est la personnification juridique d'une nation: c'est Ie sujet et Ie support de I'autorite publique [...]. Le droit public consiste en ce qu'il donne a la souverainete, en dehors et au-dessus des personnes qui l'exercent atel ou tel moment, un sujet ou titulaire ideal et permanent, qui personnifie la nation entiere: cette personne morale, c'est l'Etat, qui se confond ainsi avec la souverainete, celle-ci etant sa qualite essentielle", ("The state is the legal embodiment of the nation: it is the subject and the underpinning of public authority. Public law consists in giving to sovereignty, apart and beyond the people who exercise it at a given moment, an ideal and permanent subject or holder, which embodies the whole nation: this legal entity is the state, which herewith is identical with sovereignty, the latter being its essential attribute"). For a similar approach, see, among Belgian scholars, Y.Lejeune/ O. De Schutter, "L'adhesion de la Cornmunaute a la Convention europeenne des droits de l'homme. A propos de l'avis 2/94 de la Cour de justice des Communautes", Cahiers de Droit Europeen 32 (1996), 556 et seq. (572), note 31: "Dne constitution est ['00] l'expression souveraine de la volonte d'un peuple de se constituer en Etat [...]." ("A constitution is [00'] the sovereign expression ofthe will of a people to be constituted in a State [00']")' It is the German constitutional doctrine which insists the strongest on a state centered concept of constitution. Cf. C. Schmitt, Verfassungslehre, 1928, 3: "Das Wort "Verfassung" muss auf die Verfassung des Staates, d.h. der politischen Einheit eines Volkes beschrankt werden, wenn eine Verstandigung moglich sein soli," (The term "constitution" has to refer to the constitution of the state, i.e. the political unity of the people, if communication shall be possible"). P. Kirchhof, in:]. Isensee/ P. Kirchhof, Handbuch des Staatsrechts der Bundesrepublik Deutschland, Vol. I, 1987, 776: "Die Verfassung ist das Fundamentalgesetz eines Staates, das die Organisation und die Ausiibung der Staatsgewalt regelt, die Entwicklung des Staatswesens und seines Rechts anleitet und die Rechtsposition des Einzelnen im Staat bestimmt", ("The

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tional law.60 A number of international organizations explicitly depict their charters as 'constitutions', such as the ' Constitution' of FAa and UNESCO.61 Others implicitly qualify basic instruments in constitutional terms. The European Court of Justic e already depicted the founding treaties as the "constitutional Charter of a Community based on the rule of law",62 long before efforts to create a formal constitution of the EU were undertaken. In a similar vein, a decision of the European Commission of Human Rights considers the "Convention as a constitutional instrument of European public order in the field of human rights" .63 In doctrine, Alfred Verdross 64 and Georges Scellesv were among the first scholars to develop a theory of international constitutionallaw. Other scholars refer to an "emerging global constitution",66 the "constitution of mankind",67 the "universal constitution of public internationallaw"68 and speak with regard to the WTO and the United Nations Charter of an "international economical constitution"69 and a "constitution of the International Community".7° constitution is the fund amental charte r of a state; it govern s the organization and th e exercise of state authority, guides the development of the state and its laws, and determines the legal po sition of the ind ividual s in the state"). 60 For a detailed description of th e use of the term 'cons titution' outside th e context of the Nation State, see Biaggini, see note 25, 448 ct seq.; Peters, see note 59, 46 et seq. 61 Cf. Petersmann, see not e 13, 11 et seq. 62 Opinion 1191 , Referring to the D raft Treaty on a European Economic Area , ECR 1991 I, 6084; the terms "c onstitu tio nal chart er" and "Community based on the rule of law " have been first used in Case 294/ 83, Parti ecologiste 'Les Verts' u. European Parliament, ECR 1986, 1339 et seq., 1365. 63 Decision Ch ryso storn os, Papachrysostomou and Loizidou v. Turkey of March 4, 1991, Application Numbers 15299/89; 15300/89; 15318/89; see also the subsequent judgment in the same case of the European Court of Human Rights of May 23,1995, Series A No. 310 § 75. 64 A. Verdross, Die Verfassung der Volkerrechtsgemeinschaft, 1926. 65 G. Scelles, "Le Droit co nstitutionnel international ", in: Melanges Carre de Malberg, 1933,503 et seq . 66 Muller; see note 7, 63 (translated by the authors). 67 C. Tornuschar, "Intern ational Law as the Constitution of Mankind", in: United Nation s (ed.), In ternational Law on the Ev e of th e Twenty-first Centu ry. View sfrom the International Law Commission, 1997, 37 et seq. 68 Miiller, see note 7, 62 (translated by the auth or s). 69 S. Langer, Grundlagen einer inte mationalen Wirtschaftsverfa ssung: Strukturprinzipen, Typik und Perspektiv en anhand v on Europdischer Union un d

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Should such extensive use of the term 'constitution' be approved of, or is it misleading, fraught with the risk of diluting the meaning and essence of the consriturionj" This question has given rise to controversy, dividing legal scholars into two camps, which we will name, following Biaggini, the "statist " and the "internationalist" school.r? According to the statist strand of thinking, the constitution is inherently linked to the state. "Internationalist"73 scholars, on the other side, defend the view that the concept of 'constitution' should be decoupled from the state, insisting that the notion of 'the constitution' has considerably evolved over time and has only been linked to the state for the last two hundred years.?" According to the 'statist' point of view, however, this historical argument is not relevant as it fails to distinguish between a descriptive and a normative concept of 'constitution'r"

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Welthandelsorganisation, 1995, 17 et seq.; T. Oppermann, "Die Europaische Gemeinschaft und Union und die Welthandelsorganisation (WTO)", RIW 41 (1995), 920 et seq.; for a critical assessment, see Krajewski, see note 46,208 et seq. (translated by the authors). B. Fassbender, "The United Nations Charter As Constitution of the International Community", in: Colum. J. Transnat'l L. 36 (1998), 529 et seq.; see also P.M. Dupuy, "The Constitutional Dimension of the Charter Revisited", in: Max Planck UNYB 1 (1997), 1 et seq. For an author warning against the risk that the meaning of the constitution may be diluted, d. J.P. Miiller, Die demokratische Verfassung, 2002, 91. Biaggini, see note 25, 455, (translated by the authors). Biaggini, see note 25, 455, (translated by the authors). Cf. Krajewski, see note 46, 123; C. Doraul P. Jacobi, "The Debate over a 'European Constitution': Is it Solely a German Concern", European Public Law 6 (2000), 312 et seq. (417 et seq.); for 'the historical evolution of the term 'constitution', d. H. Mohnhauptl D . Grimm, Verfassung. Zur Geschichte des Begriffs von der Antike bis zur Gegenwart, 2002; J.E Aubert, "La Constitution. Son contenu, son usage", in: J.E Aubert (ed.), La Constitution. Son contenu, son usage; K. Eichenberger, Sinn und Bedeutung der Verfassung, Referate zum 125. Schweizerischen ]uristentag 1991, Schweizerischer Juristenverein No. 1/2, 1991, 1 et seq.; Peters, see note 59, 40 et seq. See also, D. Grimm, "Braucht Europa eine Verfassung?" [uristen Zeitung 50 (1995), 581 et seq. (582); id., "Does Europe Need a Constitution?", EL] 1(1995), 284 et seq.; the dichotomy 'normative' and 'descriptive' constitution is sometimes used in a different sense than thereafter. According to J.E Aubert, for instance, the meaning of 'constitution' is normative as soon as it refers to a human collectivity, defining how it should be organized, whereas used in a descriptive manner, the constitution refers to an object or

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b. Descriptive versus Normative Concept of Constitution Indeed, in a broad, descriptive sense, constitutions can be understood to depict simply any structure of governance. Any polity has a constitution in this sense, since power is at least de facto constituted. Power structures throughout history, on any level of governance, would live up to this factual and descriptive concept. Such a notion of constitution is not limited to the Nation State. It can apply as much to tribal, communal" and international structures of governance. From this perspective, all communities have had their consrirurion.V from the early beginnings of settlement, to Greek and other polities, to the Roman Empire,78 to the city states prior to the advent of the Nation State in modern times. Understood as a factual concept, the constitution can thus be readily employed for any structures, independently of their qualities. Such an extensive concept, however, reduces the role of the constitution to a mere set of organizational rules. It does not take into account the functions other than setting up an organizational framework that modern constitutions are expected to fulfiJ.79 As a normative con-

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a human being, describing what its disposition is like, J.F. Aubert, "Notion et fonctions de la Constitution", in : D. Thiirer/ J.F. Aubertl J.P. Muller (eds), Verfassungsrecht der Schweiz, 2001, 3. For this distinction, see also Peters, see note 59, 40 et seq. See B. Marquardt, Das Riimisch-Deutscbe Reich als Segmentdres Verfassungssystem (1348-1806/48): Versuch zu einer neuen Verfassungstheorie auf der Grundlage der Lokalen Herrschaften, 1999. See R. Uerpmann, "Internationales Verfassungsrecht", ]uristen Zeitung 56 (2001), 565 et seq. (566): "Nicht jedes Gemeinwesen hat eine geschriebene Verfassung, aber jedes Gemeinwesen hat Verfassungsrecht. Dieses Verfassungsrecht muss mindestens die Hauptakteure konstituieren und gewisse Verfahrensregeln enthalten. Theoretisch konnte sich eine Verfassung damit begniigen, ein Organ der Rechtssetzung einzusetzen und zu regeln, wie dieses Gesetze beschliesst." ("Not every polity has a written constitution, but every polity has constitutional norms. These constitutional norms must at least constitute the main actors and comprise certain procedural rules. Theoretically, a constitution could content itself with establishing one legislative organ and with regulating how the latter is to adopt the laws"). See the work of T. Mommsen, Riimisches Staatsrecht, 1969. D. Castiglione, "The Political Theory of the Constitution", in: R. Bellamyl D. Castiglione (eds), Constitutionalism in Transformation: European and Theoretical Perspectives, 1996, 5 et seq. (9), stresses the close link between the concept and the function of the "constitution": "Indeed, what a constitution is can hardly be distinguished from what a constitution does".

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cept, the constitution has to meet certain requirements. Its basic and core function consists in both setting up and limiting the power of the polity, defining the fundamental boundaries between the private and the public, the state and the individual, mainly in terms of fundamental rights , and between the different branches of government. The concept of limited government entails the rule of law, the idea of "government by laws and not by men". As 'higher law', binding both those subject to power and those in power, the constitution is meant to have a stabilizing effect. 80 It guarantees a degree of predictability of conduct and therefore also entertains legitimate expectations as to human behaviour. In addition, a constitution is expected to legitimize political authority, which implies, under a doctrine of modern constitutionalism, that all power is ultimately derived from the citizens.P! Beyond that, additional qualifications exist in isolation or in combination. A liberal constitution emphasizes the defensive function of constitutionalism as a powerrestricting device and human rights in the form of negative, individualliberty rights,82 while a teleological constitution stresses the integrative Iunction'" of a constitution by laying down common social and economic objectives and enshrining affirmative claims vis-a-vis the state. 84 A federal constitution has to draw the lines between the federal and sub-federal levels and define their interaction.

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Also Walter, see note 2, 2001, adopts a functionalist vision. He points out that the traditional constitution of the nation state "is characterized by a bundling of different functions in a single political unit and by means of a single text", ibid., 191. Cf. N. Luhmann, "Verfassung als evolutionare Errungenschaft", RechtshistorischesJournal 9 (1990), 176 et seq. (181 et seq.). Aubert, see note 74, 20 et seq. D.P. Kommersl W.J.Thompson, "Fundamentals in the Liberal Constitutional Tradition", in: J,J. Hessel V. Wright, Constitutional Policy and Change in Europe, 1995, 35. The integrative function of the constitution is stressed by R. Smend, Verfassung und Verfassungsrecht, 1928; contra: Aubert, see note 75, 15 et seq. For the concept of 'teleological constitution', see U.K. Preuss, "Patterns of Constitutional Evolution and Change in Eastern Europe", in: Hessel Wright, see note 82, 95 et seq.; N. Johnson, "Constitutionalism: Procedural Limits and Political Ends", in: Hessel Wright, see note 82, 46 et seq. (49, 54). For the distinction between a liberal and a teleological constitution, see also J.P. Muller, Soziale Grundrechte in der Verfassung?, 2nd edition, 1981, 55 et seq., who distinguishes between the constitution as "instrument of government" and the constitution as a "material fundamental order" of a polity (translated by the authors).

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Overall, the normative standards and yardsticks for a Constitution (with a capital C) are fairly ambitious. Without distinguishing between liberal, teleological and federal constitutions, the normative concept of Western constitutionalism, as it was shaped in the 18th and 19th centuries, broadly entails in many variants, organizational functions, the concept of the rule of law, the prote ction of fundamental rights, checks and balances, and democratic legitimacy.85 A purely descriptive concept of the 'constitution' should, in our view, not be maintained , since 'everything goes' will not help in the process of building global governance . Indeed, the constitutionalization debate of the WYO, briefly summarized above,86 shows how deeply the discourse is rooted in a normative understanding of the concept of 'Constitution', whatever its precise contours. The different visions of constitutionalization are for instance linked to the protection of fundamental rights, the rule of law and judicial review, or aspects of the democratic principle, such as transparency and participation. Devoid of any normative content, the debate on whether political entities or governance structures other than states should be apprehended in constitutional terms becomes a futile exercise. At the same time, it is clear that recourse to the normative concept of the constitutional Nation State, containing democratic, liberal, social and often federal traits, is equally not helpful. It is evident that not all the attributes can realistically be achieved in fora other than the Nation State. For example, it would simply not be realistic or desirable to transpose the majoritarian principle 'one man, one vote' to polities lacking the necessary degree of integration which only renders majority decisions acceptable. Indeed, in polities with strong social cleavages, non-rnajoritarian decision making procedures are an important condition of political stability, since they help to avoid the problem of 'permanent minoriries'i'" Similarly, it may be neither useful nor inherently 85 86 87

For the normative concept and the functions of the constitution, d. Muller, see note 71, 87 et seq.; Aubert, see note 75, 14; Grimm, see note 75,584; id., see note 75, ELf, 284 et seq.; Preuss, see note 84,98. See under II. 2. a. bb. In the context of the ED, this point is stressed for example by].F. Aubert, "Cornmentaire", Swiss Papers on European Integration 1 (1995),48 et seq.; with regard to public international law, see S. Oeter, "Intern ationale Organisation oder Weltfoderation.? Die organisierte Staatengemeinschaft und das Verlangen nach einer "Verfassung der Freiheit", in:H. Brunkhorst/ M. Kettner (eds), Globalisierung und Demokratie, Wirtschaft, Recht, Medien, 2000,208 et seq. (215 et seq.),

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necessary to provide human rights guarantees to the same extent on each level of governance.P' The maximalist concept of 'constitution' is moreover fraught with the risk that the Nation State remains the only standard against which other governance structures are measured, which necessarily makes them seem underdeveloped and deficient.f? Instead, a broader model is required. As Tarullo puts it, "it is neither likely nor even necessarily desirable that all constitutional arrangements evolve towards a single, ideal model".90 What therefore should be the key normative components of a constitution in a broad sense? What are the minimal standards of a normative constitutional order? To answer this question, scholars generally either generalize and re-conceptualize certain normative aspects of the constitution.?' or consider that not all of them are inherent to the concept of constitution.Y

2. The Quest for a Graduated Approach to Constitutionalism From a methodological point of view, defining the core minimal standards of a normative constitutional order is extremely difficult, since it requires us to establish firm conceptual boundaries and to draw a clear line between polities with a constitution and those whose organizational structures do not qualify as such. In the end, this amounts to defining the minimal standards of legitimate governance in global law and, consequently, to enforcing such standards by the international community. This, we must leave to the future. At this stage, a more fruitful approach could be, as Walker suggests, to conceive constitutionalism "not in black-and-white, ali-or-nothing terms, but as a question of nuance

SS S9

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On this issue, see under IV. 4. See also, Biaggini, see note 25, 465; Thiirer, see note 8, 49; the problem of setting the adequate standard is highlighted by G. Majone, "Europe's 'Democratic Deficit': the Question of Standards", ELf 4 (1998), 5 et seq. Tarullo, see note 51, 43. This approach is for example chosen by Biaggini, see note 25, 459 et seq., who considers that the requirement of democratic legitimacy can also be fulfilled in the case of international organizations , since their founding treaties are legitimized, indirectly, by the consent of the peoples of the Member States. For such an approach, d . Peters, see note 59, 67 et seq., who argues, based on a functional analysis, that the democratic principle is not a necessary prerequisite of the concept of constitution but a question of its legitimacy.

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and gradation't.v The idea of 'constitutionalization' , which refers to an open-ended process," reflects this concept: constitutionalism, as Walker puts it, can be viewed as a set of different factors which serve as "indices in terms of which degrees of constitutionalization can be measured".95 Such a graduated approach may sound strange to legal scholars, who are accustomed to translating facts and events into clear legal concepts." In Jacque's words, "lawyers like clear situations and are used to analyzing situations in a static way, like a photographer, whose representation of reality immobilizes the latter"Y Life, however, is more complicated, and static thinking will not assist in solving practical problems of modern governance. The debate relating to the European Union is an example in point. a. The Immobilizating Effect of Statism The reasoning of the 'statist school' with regard to the question as to whether the European Union has, or is capable of having'" a constitution, illustrates the immobilizing effect of a 'black and white' conceptual approach. The 'statist' argument takes the classical distinction be93

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N. Walker, "The ED and the WTO: Constitutionalism in a New Key", in: G. de Biirca/ J. Scott (eds), The EU and the WTO. Legal and Constitutional Issues, 2001, 31 et seq. (33); Walker proposes seven criterias: (i) the development of an explicit constitutional discourse and constitutional selfconsciousness; (ii) a claim to foundational legal authority, or sovereignty, whereas sovereignty is not viewed as absolute; (iii) the delineation of a sphere of competences; (iv) the existence of an organ internal to the polity with interpretative autonomy as regards the meaning and the scope of the competences; (v) the existence of an institutional structure to govern the polity; (vi) rights and obligations of citizenship, understood in a broad sense; (vii) specification of the terms of representation of the citizens in the polity. Cf. Biaggini, see note 25, 473; J. Trachtmann, "Summary", in: R. Porter! P. Sauve! A. Subramanian/ A.B. Zampetti (eds), Efficiency, Equity, Legitimacy, 2001, 353; In this sense also Walker, see note 93, 39. Walker, see note 93, 33; similarly, Walter, see note 2, 173, 193, views constitutionalism as the bundling of different functions. In this sense, G. Jellinek, Allgemeine Staatslehre, 1929,282. J.P. Jacque , "Cours general de droit communautaire", in: Academy of European Law (ed.), Collected Courses of the Academy of European Law, Vol. I, 1991,247, free translation by the authors. Cf. D. Konig, Die Obertragung von Hoheitsrechten im Rahmen des europdiscben Integrationsprozesses, 1998, 268 et seq.

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tween a federal state and a confederation or international organization as a starting point.'" constitutions are the fundamental charters of states, it is argued, whereas international organizations or confederations are based on treaties.P? Contrary to a treaty, the constitution can be revised according to majority rule and does not require an unanimous decision. The majority principle implies
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For an account of the <statist' view, see the famous Maastricht decision by the German Constitutional Court, BVerfGE 89, 155, English translation in A. Oppenheimer, The Relationship between European Community Law and National Law: The Cases, 1994,526 et seq.; Grimm, see note 75, 581 et seq.; id., see note 75, 282 et seq .; id., "Venrag oder Verfassung: Die Rechtsgrundlage der Europaischen Union im Reformprozess Maastricht II", Staatswissenschaften und Staatspraxis 6 (1995), 509 et seq. (528); Konig, see note 98, 286 et seq.; A. Randelzhofer, "Souveranitat und Rechtsstaat: Anforderungen an eine Europaische Verfassung", in: H . Noske (ed.), Der Rechtsstaat am Ende?, 1995, 123 et seq.; P. Kirchhof, "Kompetenzaufteilung zwischen den Mitgliedstaaten und der EU", in: Vertretung der Europaischen Kommission in der Bundesrepublik Deutschland (ed.), Europdische Gespriicbe 2/94, Europdisch es Forum: Die kiinftige Verfassungsordnung der Europdiscben Union, 1994, 59. For a critique of the dichotomy between 'treaty' and 'constitution', see Peters, see note 59, 220 et seq.; Fassbender, see note 70,560 et seq. Cf. Grimm, see note 75, 282: "C onstitutions form the legal basis of States. Supranational institutions, by contrast, have their legal basis in international treaties". The importance of sovereignty in the debate on whether the European Union is to be consid ered as a confederation or a federation is highlighted by ].H.H. Weiler, "European Democracy and Its Critics: Polity and System ", in: ].H.H. Weiler, The Constitution of Europe, 1999, 264 et seq. (271): "But more profoundly, the vocabulary of Staat and Bund, of federation and federacy and confederation, is a reflection of a preoccupation, even an obsession, mostly political and ideological, with sovereignty and its location in Europe. The so-called European "federalists" (often Jacobeans in disguise) adore the symbolism in the word "federalism" which obviates the need to talk of a state . And likewise, the shrill voices defending national "identity" and Member State rights will look to a terminology and classification which will patent and trademark the ultimate sovereignty of the Member States".

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eration as such has no original, direct legitimacy, for it lacks a democratic subject, a people. Its democratic legitimacy is indirect, being exclusively derived from the peoples of the Member States. Following that reasoning, amending the revision procedure of the EU Treaty would thus mark the conceptual threshold between 'statehood', 'sovereignty', 'original legitimacy', 'constitution', "intra-state constitutional law",102 on the one hand, and 'confederation', 'treaty', "inter-state international law",103 'lack of sovereignty and original legitimacy' on the other hand, tertium non datur. 104 Since the conceptual threshold has not yet been passed, the European Union qualifies as a confederation. This category, however, cannot account for the dynamic evolution of the European integration, the doctrine of implied powers and the supranational features of the European Community, such as direct effect, and the largely undisputed supremacy of European Community law.105 The 'statist' approach thus conveys a static, immobiliz-

102 Walker, see note 93, 36. 103 Walker, see note 93, 36. 104 For a critique, see G. Hirsch, "EG: Kein Staat, aber eine Verfassung?" N]W 53 (2000), 46 et seq. (46): "Es erscheint an der Zeit, von Stereotypen und definitorischem Schubladedenken (Staat = Verfassung; Staaten-[ver]bund = Vertrag) Abstand zu halten, die bipolaren Unterstande zu verlassen, und der politischen und rechtlichen Realitat in Europa Rechung zu tragen." ("It is time to distance ourselves from stereotype thinking and conceptual pigeon-holing (State = constitution; confederation = treaty) and to leave bipolar stencils, taking into account the political and legal reality in Europe"). lOS See Muller, see note 71, 92: "So stellt die EU, in der sich Staaten zu verbindlichen gemeinsamen Regelungen bestimmter Materien (Prinzip der Einzelerrnachtigung) geeinigt haben, nur einen Staatenverbund, noch nicht aber eine Verfassung dar, da ein entscheidendes Merkmal fehlt: die Zustandigkeit der Organisation, des Verbundes zur Anderung der Gemeinschaftsordnung [... ] ohne neue v6lkerrechtliche Vereinbarung nach dem Einstimmigkeitsprinzip". ("Hence the EU, in which the states have agreed on common compulsory regulations of certain determined policy fields (principle of enumerated powers) only represents a union of states, but not yet a constitution, because it lacks a fundamental attribute: the competence of the organization, or the federacy, to change the community order without a new international agreement concluded following the unanimity principle"). . The argument that the EC does not have legislative 'competence competence' is correct from a strictly legal perspective. Based on a political analysis, however, several authors have reached the conclusion that the attribu-

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ing vision of the European U nion. 106 It reduces the latter to the aggregate of the interests of the Member States, denying the very idea of a community, which "is meant to be more than the sum of its constituent parts".107 The substantial autonomy of the European Community legal order, its self-propelling dynamics, the role of the European parliament, the courts and of European Union citizenship, are not at all properly reflected in the confederate model. In Weiler and Haltern's words, attion of powers has "over the years, lost its 'enumerative' and limited character"; A.V. Bausili, "Rethinking the Methods of Dividing and Exercising Powers in the EU: Reforming Subsidiarity and National Parliaments", The Jean Monnet Working Paper No.9, 2002, 2 et seq.; see also Weiler, see note 41,51 et seq. It is precisely the concern that the reach of EC law is limitless which incited the German Constitutional Court to insist in its Maastricht judgment, see note 99, on the principle of attributed powers: "In so far as the Treaties establishing the European Community grant sovereign rights in relation to certain well-defined situations on the one hand, and lay down rules for amending the Treaties [...] on the other, that distinction also has significance for the future application of the specific attribution of powers . Hitherto any dynamic extension of the existing Treaties has been based on a liberal application of Article 235 of the EEC Treaty, along the lines of a "competence to perfect the Treaty", on the idea of the inherent competences of the European Communities ("implied powers") and on a interpretation of the Treaty as implying the fullest possible utilization of Community powers (effet utile) [...]. In future, however, when Community institutions and bodies interpret rules conferring competence, it will have to be borne in mind that the Union Treaty draws a fundamental distinction between the exercise of a sovereign power granted on a limited basis and amendment of the Treaty. Any interpretation of that Treaty must not, therefore, amount in effect to an extension of it. Such an interpretation of rules conferring competence would not give rise to any binding effect for Germany", quoted according to Oppenheimer, see note 99, 572, emphasis added. Apart from its formal and legalistic approach, the 'statist' reasoning can also be criticized on the grounds that the 'statist' school does not object to federal entities (for example the Swiss cantons) having a 'constitution', although they do not have legislative 'competence-competence' and therefore cannot be considered as states, see P. Craig, "Constitutions, Constitutionalism, and the European Union", ELJ 7 (2001), 125 et seq. (138). 106 The inadequacy of a ' statist' vision of the EU is also stressed by P. Pierson, "The path to European integration: A historical institutional analysis", Comparative Political Studies 29 (1996), 123 et seq. (127): "What one makes of the EU depends on whether one examines a photograph or a moving picture". 107 Fassbender, see note 70, 564.

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tempts "to push the toothpaste back in the tube by asserting that the Community is nothing more than an International Organization"108 do not help to understand and solve the real problems, such as the legitimacy of the European Community. One of the main arguments advanced by the 'statist' school, the notorious 'no demos' thesis, deserves closer scrutiny in this context, since it is particularly illustrative of the conceptual, ' black and white ' approach. Proponents of the 'no demos thesis' argue that the European Union lacks a democratic subject as it lacks a constitutional subject, i.e. a people/nation.P? As a matter of constitutional law, the people/nation 108 J.H.H. Weiler! U .R. Haltern, "The Autonomy of the Community Legal Order - Through the Looking Glass", Haru. Int'l L.J. 37 (1996), 411 et seq. (423). 109 The meaning and usage of the terms 'nation' and 'people' differ widely depending on the authors and the language. Whereas some authors use them interchangeably (see E.W Bockenforde, "Die verfassunggebende Gewalt des Volkes - Ein Grenzbegriff des Verfassungsrechts", in: E.W. Bockenforde, Staat, Verfassung, Demokratie, 1991,90 et seq.; J. Marko, Autonomie und Integration . Rechtsinstitute des Nationalitiitenrechts im funktionalen Vergleich, 1995, 115, 37 et seq.), other schools differentiate between both concepts. According to French constitutional theory, for example, the concept 'people' (peuple) refers to the sum of all citizens, whereas the nation is an indivisible collectivity which cannot be reduced to a simple aggregate of citizens. Since the nation transcends the citizens, it can only express its will through its representatives, which justifies a system of representative government. In contrast, the 'people', understood as the sum of the citizens, can express their will directly, which leads to a system of direct democracy, see D.G. Lavroff, Le droit constitutionnel de La Ve Republique, 2nd edition, 1997,241 et seq. German authors often refer to the nation as "the people (Yolk) which has become aware of its existence through the state", "people and state having merged into a unity", M. Brems, Die politische Integration ethnischer Minderheiten, 1995, 8. A state in turn can consist of different peoples . According to German scholars, the nation thus describes a political entity, composed of the citizens, whereas the people is a ethno-cultural community, see Brems, above, 8 and M. Kriele, Einfitbrung in die Staatslehre. Die geschichtliche Legitimitatsgrundlage des demokratischen Verfassungsstaates, 1994,91. It is however important to stress that the nation is not only a political, but also an ethno-national concept, the essential difference between 'Nation' and 'Yolk' being that only the former has reached statehood. Anglo Saxon authors frequently use 'nation' as a political, 'people' as an ethno-cultural concept, see for instance J. Elster, "Constitutionalism in Eastern Europe: An Introduction", U. Chi. L. Rev. 58 (1991), 447 et seq.

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is a legal concept, a "juridical presuppositiont.U? As both the constitution and the nation/people are, according to the 'statist' school, a state bound notion, the nation as a concept of constitutional law is necessarily defined with reference to the state: "Where there is no state, there is no constitution, and where there is no state nation, there is no state".I11 As expressed in the German term 'state nation' (Staatsvolk), the people/nation and the state are necessarily congruous.I'? Based on the conceptual and ideological linklP between nation/people and state, statists argue that democracy, defined as the 'rule of the people', can only be achieved within the state.'!" The reason why the state boundaries also

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(450), who defines the nation as a "political entity that is recognized by other countries and by international organizations" and the people "as a community with common traditions, common language, common religion [... ]". In Slavonic languages, in contrast, the notion of 'narod', which etymologically corresponds to the English concept of 'nation', refers to an ethnic community, see V. Dimitrijevic, "The Absolute Nation State: PostCommunist Constitutions", in: D. Gomien (ed.), Broadening the Frontiers of Human Rights, Essays in Honour of Asbjorn Eide, 1993, 257 et seq. (257). We will use the terms 'nation' and 'people' interchangeably and specify whether we refer to a legal or to a sociological concept. J.H.H. Weiler, "Federalism and Constitutionalism: Europe's Sonderweg", The Jean Monnet Working Paper No. 10,2000,3; the relationship between the constituent power and the constitution is best described as dialectical, meaning that it is impossible to decide which comes first, the constituent power or the constitution, both terms supposing the existence of the other. The same holds true for the question as to whether the nation is prior to the state or the opposite, see Marko, see note 109, 38. French legal doctrine illu strates well the circularity between the terms 'constitution', 'state' and 'nation': Whereas the nation as 'pouvoir constituant' is deemed to be prior to the state and the constitution, "a population only forms a nation if the collectivity of individuals which it is composed of is subject to the same legal order of a state" [i.e. the same constitutional order]", G. Burdeau/ F. Hamon/ M. Troper, Droit constitutionnel, 25th edition, 1997,30, translated by the authors; see also the references supra, note 59. Kirchhof, see note 99, 59: "Wo kein Staat, da keine Verfassung, und wo kein Staatsvolk, da kein Staat". As pointed out above, note 59 and 110, French legal theory also assumes the identity of the nation and the state. See Marko, see note 109, 44. For a critical account of this link, see U. Volkmann, "Setzt Demokratie den Staat voraus?" Archiv des offentlichen Rechts 127 (2002), 575 et seq. (582 et seq.),

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constitute the boundaries of democratic governance is justified with an understanding of nation/people as a sociological concept, depicting a relatively homogeneous social entity. In its strongest terms, and inspired by the German tradition, the nation is defined in ethno-cultural terms and represents an organic community with a common history, language and culture.U! This leads to the ethno-national ideology according to which each nation exists prior to the state ll6 and is entitled to its own state.I'? The state in turn belongs to the nation, which justifies the eradication of difference and social homogenization, as was successfully propagated by Carl Scbmitti'" A more moderate understanding of this tradition places the emphasis not on the ethno-cultural conditions of nationhood but holds that collective identity can be based on other factors, such as the existence of a common public space, a developed civil society, shared political values and common political parties.'!?

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The German constitutional Court, for instance, has defined the nation as a "cultural and linguistic entity rooted in the consciousness of the population", BVerfGE 36, 1, 19, translated by the authors. For a description of the German concept of nationhood, see for instance R. Brubaker, Citizenship in France and Germany, 1992, 51 et seq., N. Topperwicn, Nation-State and Normative Diversity, 2001, 139 et seq.; M. Hertig, Die Auflosung der Tschechoslowakei, Analyse einer friedlichen Staatsteilung, 2001, 14 et seq. For a critical account of this vision, see Marko, see note 109,44. See for instance J.K. Bluntschli, Allgemeine Staatslebre, 1965 (first published in 1996), 107: "Jede Nation ist berufen und berechtigt, einen Staat zu bilden. Wie die Menschheit in eine Anzahl von Nationen geteilt ist, so soli die Welt in ebenso viele Staaten zerlegt werden. Jede Nation ein Staat. Jeder Staat ein nationales Wesen" . (Each nation has the vocation and is entitled to form a state. In the same way as humanity is divided in a number of nations, the world should be divided in as many states. Each nation a state. Each state a national being".) C. Schmitt, Der Begriff des Politischen, 1932, 14, who holds that democracy necessarily requires "firstly homogeneity and secondly - if necessary - the elimination and destruction of heterogeneity" (translated by the authors). Grimm, see note 75, 587 et seq.; although this author distances himself from the Schmittian theory of a homogenous nation, he considers a common language an important prerequisite of collective identity, thus adopting one of the main criterions of the German ethno-cultural concept of nation. Grimm acknowledges, however, that in the case of other multilingual polities, such as Switzerland, a democratic system has been formed, but estimates that the same would not be possible in the case of the ED, since the linguistic diversity is superior to Switzerland. This argument, however, ne-

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Even if one accepts the thesis according to which democracy is dependent on a pre-existing collective identity, understood in the moderate and not the ethno-national sense.P? we take issue with, and object to, the methodological approach of many scholars of implicitly equating Staatsvolk as a legal, and necessarily state bound concept with the sociological concept of a collective identity. This approach fails to reflect processes of integration, change and the complexities of life. It does not even stand up to historical experience of nation and state building.F! This view necessarily leads to the categorical and static affirmation that in contrast to states, the European Union cannot have a 'people'. Indeed, contrary to the question as to whether a Staatsvolk exists as a legal concept, the sociological concept of a 'people' can hardly be apprehended in 'black and white' terms, nor is it necessarily dependent on statehood, nor can it simply be assumed that a collective identity necessarily exists in every state. 122 Multinational states such as

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glects the fact that multilingual polities, such as India, exist, whose linguistic diversity is largely superior to the 11 official languages spoken within the ED. For a critical account, sec J. Habermas, "Remarks on Dieter Grimm's 'Does Europe Need a Constitution?' ELI 1 (1995),303 et seq. (306 et seq.); Craig, see note 105, 139. Both authors point out that a collective identity is not a prerequisite to a democratic process but is formed through the democratic and constitutional process itself. Seeon this issue under, note 122 and 136. This point is stressed by Weiler, see note 110, 3: "One of the great fallacies in the art of 'federation building', as in nation building, is to confuse the juridical presupposition of a constitutional demos with political and social reality. In many instances, constitutional doctrine presupposes the existence of that which it creates: the demos which is called upon to accept the constitution is constituted, legally, by that very constitution, and often that act of acceptance is among the first steps towards a thicker social and political notion of constitutional demos". The confusion between the conceptuallink between state and nation, understood as a legal concept, which implies a reflexivity of both terms, and the relationship between the state and the nation, understood as a sociological concept, is also criticized by Marko, see note 109, 44: According to this author, building on the logical question whether the egg or the chicken came first a historical-evolutionary model results in the ideology of nationalism. Under those circumstances, "[tjhe nation is, as postulated by the national principle of the ideology of German Romanticism - the "awakening" of the people, the people which has become politically aware of its own existence, and politically and collectively organized as a state". ("Die Nation ist dann - wic dies schon das Nationalitatsprinzip der Ideologie der deutschen Rornantik postulierte -

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Canada and Belgium are examples in point. 123 Indeed, as pointed out by Anne Peters,124 the assertion that a certain social homogeneity exists, necessarily involves a certain level of abstraction, in as much that certain 'common' features are selected and considered relevant, whereas factors which could justify heterogeneity are ignored. The level of abstraction in turn depends on the observer: from an Asian point of view, Europe may seem relatively homogeneous. From a Spanish perspective, little difference may be perceived between the Scottish and the English, or between the French speaking and the German speaking Swiss. From the

123

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das "Erwachen" des Volkes, das sich politisch seiner selbst bewusst gewordene Yolk, das politisch-verbandlich als Staat organisiert ist"), The examples of Canada and Belgium moreover show that the main criterion advanced by the 'statist' school to distinguish between a constitution and a treaty, i.e. the capacity to amend the founding document on the basis of a majority decision, does not always offer a useful criterion to distinguish between a federation and a confederation. Indeed, the province of Quebec refused to sign the Constitution Act of 1982 and views constitution making as a bilateral process, aiming at the conclusion of a constitutional contract between Quebec and the rest of Canada. This theory implies that Quebec has a veto right in constitutional matters. Subsequent efforts directed at obtaining Quebec's consent to the federal constitution have failed so far, see ].E. Fossum, "The Transformation of the Nationstate: Why Compare the EU and Canada?", Francisco Lucas Pires Working Papers Series on European Constitutionalism. Working Paper No.1, 2003, 26 et seq. The distinction between confederate and federal arrangements is thus less clear than commonly assumed. Constitutions can for example confer to ethnic communities a veto right limited to the amendment of certain constitutional provisions, thus combining elements of unanimity with majority decision making procedures. In Belgium, for example, the borders of the linguistic communities and the division of competences between the federal state on the one hand and the regions and communities on the other hand is subject to the approval of each linguistic group in the federal parliament, see arts 4 and 35 of the Belgian Constitution. Moreover, the material scope of unanimity revision can vary greatly depending on the material reach of the constitution. In the European Union, for example, the constitution-making process may well result in the adoption of a "constitutional treaty" whose content would be limited to fundamental principles, whereas a large number of the provisions currently enshrined in the founding treaties would be incorporated into secondary law. This would substantially limit the application of the unanimity principle. To conclude, the criterion as to whether the revision of the basic charter of a polity is subject to unanimity or majority procedure is less clear-cut than generally assumed. Peters, see note 59, 704.

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point of view of a Swiss German, the populations of the cantons of Vaud and Geneva are quite similar, as French is the official language in both cantons, an opinion which would hardly be approved of by the respective populations. Therefore, collective identity and social homogeneity are more accurately conceived of as graduated, and non exclusive concepts, which is reflected in the idea of multiple identities and loyalties. Those identities are neither static nor simply given, as primordialist or essentialist scholars assume.l-" They are shaped and reshaped over time in social processes and can gain or decrease in importance.F" Although for a long time, the identification and feeling of belongingness may have been much stronger with regard to classical Nation States than other political entities, this may change over time. The recent revival of regional identities, which gave rise to regionalization and devolution tendencies in Western Europe, are a proof thereof. Rather than relying on pre-existing social homogeneity, managing diversity and integrating different groups within one polity is an essential task of modern constitutionalism. The static and ethnocentric model of the nation state, which aims at homogenisation either through assimilationt-" or exclusion and not at integration.Ff is also unable to offer a viable model for multi-ethnic societies, both in the West and in many developing countries, the boundaries of which paradoxically were often shaped at the times, and under the doctrines, of the emerging Nation State in the 19th century. As history has shown, the doctrine of the N ation State and nationalism 129 has had an enormously destabilizing effect

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For a summary of the primordialist and essentialist school, see C. Emminghaus, Athiopiens ethnoregionaler Foderalismus. Modell der Konjliktbetudltigung fu r afrikanische Staaten?, 1997,21. This aspect is mainly stressed by the constructivist school, which considers nations not as given entities but as social constructions. For an account of the constructivist school, see Hertig, see note 115, 18 et seq. For a definition of assimilation, see A. Addis , "Individualism, Communitarianism, and the Rights of Ethnic Minorities", Notre Dame L. Rev. 67 (1992),615 et seq. (619 et seq.): "To assimilate means to mold, to the extent possible, the minority in the image of the dominant group [... J". Integration is generally defined as building a new entity based on different constituent elements . The new entity has to represent more than the sum of the parts, but contrary to assimilation, it recognizes the specificities of the constituent parts, see Brems, see note 109, 5. See Gellner 's famous definition of nationalism as "primarily a principle which holds that the political and national unit should be congruent", E. Gellner, Nations and Nationalism, 1993,1.

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in many quarters of the globe. This is not a constitutional model upon which the future can build. b. The Need for Peaceful Constitutional Transitions The statist school's focus on the nation as the collective and exclusive constitutional subject also raises difficult questions with regard to the legitimate genesis of a constitution, since it is linked to the theory of the pouuoir constituant, as developed by Abbe Sieyes: 130 the nation, in its quality of pouuoir constituent, is prior to the constitution and not subject to any legal rules.P! As stressed by positivist scholars.P! the adoption of a constitution is thus always a revolutionary act, which founds a new legal order.P' Revolutionary constitution making, however, raises difficult questions of procedure and agency, since it requires, prior to a consensus on the content of the constitution, an agreement on the identity and composition of a constitutional assembly and the voting procedure according to which the constitution should be adopted. Such a consensus is particularly difficult to reach in societies with important minorities.P" In general, the history of constitution-making shows that 130

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See E. Sieyes, Qu 'est-ce que le Tiers etatt; 1970; for an overview of Sieyes theory, see J. Isensee, Das Yolk als Grund der Verfassung - Mythos und Relevanz der Lehre von der verfassunggebenden Gewalt, 1995,26 et seq. See Sieyes, see above, 180: "La nation existe avant tout, elle est l' origine de tout. Sa volonte est tou jours legale, elle est la loi elle-merne. Avant elle et au-dessus d'elle il n'y a qu e Ie droit naturel " (The nation exists prior to everything, it is th e origin of everything. Its will is always legal, it is the law itself. Prior and sup erior to the nation , onl y natural law exists). See H. Kelsen, Allgemeine Staatslehre, 1925,249 et seq.; see also A. Auer, "L'adoption et la revision des constitutions: de quelques verites malrnenees par les faits", in: R. Bieber! P. Widmer (eds), Der europdische Verfassungsraum, 1995,267 et seq. (271): "Etant necessairement en rupture avec l'ordre constitutionnel qui la precede, la constitution fonde, au moment de son entree en vigueur, un nouvel ordre constitutionnel auquel elle ne peut par definition pas se conformer" ("Being necessarily in breach with the previous constitutional order, the constitution founds, at the moment of its entry into force, a new constitutional order to wh ich it can by definition not conform"). The theo ry of revolu tiona ry constitution makin g was also sup ported by Carl Schmitt, see note 59. Fo r an analysis of Schmitt's theo ry of constitution makin g, see A. Ar ato , "Forms of Constitution Making and Theorie s of Democracy", Cardozo L. R ev. 17 (1995), 202 et seq . See Hertig, see note 115, 118 et seq.

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many constitutions were established by force or adopted after a period of crisis (revolution or civil or international war), at a time when a group with a common social and political vision came to prevail. Where this "window of opportunity"135 is missed, political minorities will often not voluntarily agree to a common constitutional framework. Therefore, revolutionary constitution-making frequently fails to satisfy the requirements of both efficiency and legitimacy. The emphasis on legitimacy may result in a stalemate, whereas privileging efficiency adversely affects the legitimacy of the constitution. In Weiler's words, "the empirical legitimacy of the constitution may lag behind its formal authority - and it may take generations and civil wars to be fully internalized - as the history of the US testifies" .136 A regression to the state of nature, entailing the risk of a birth in turmoil or a permanent stalemate, is hardly a model suitable in our search of structures suitable for regional and global governance.P? 135

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See B. Ackerman, The Future of Liberal Revolution, 1992,46 et seq.; instead of 'window of opportunity', the same author also uses the term "constitutional moment", ibid. 48. Weiler, see note 110, 3; see also Stein, see note 55, 526, who points out that in many examples generally considered as traditional nation states (France, Spain, Portugal), the state and the constitution were established before people considered them selves as belonging to one community. As regards France, this is also stressed by A.D. Smith, National Identity, 1991, 76: "The nationalist ideal of Unity (La Republique une et indivisible) has had profound consequences . For one thing, it has encouraged the idea of the indivisibility of the nation and justified the eradication, often by force, of all intermediate bodies and local differences in the interests of cultural and political homogeneity. This has spawned mass-mobilizing policies of social and political integration in which the state becomes the agent of the "nation-to-be" and the creator of a "political community" and "political culture" that must replace the various ethnic cultures of a heterogeneous population". Even limited to the Nation State, the recourse to the sovereign and legally unbound nation as ' pouvoir constitutanr' was plausible in a context of secularisation and democratization, when the God Given sovereignty of the monarch was replaced by the sovereignty of the nation; see on this subject, H. Kelsen, "Die Rechtswissenschaft als Norm- oder als Kulturwissenschaft", in: H. Klecatsky et al. (eds), Die Wiener rechtstheoretische Schule, 1968, 37 et seq. (142): "Auf einer gewissen Stufe der religiosen und politischen Entwicklung fallen die Vorstellungen von Gott und Staat geradezu zusammen: Der National-Gott ist einfach die in der Personifikation vergottlichte Nation". ("At a certain stage of religious and political development, the idea of god and state have coincided: The national-god is sim-

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Modern constitutionalism must therefore be able to cope with difficult transitions. It cannot afford to be immobilized. To this effect, the theory of revolutionary and momentous constitution-making by a single collective actor, the nation, needs to be abandoned in favour of revising the existing institutional framework,138 as is currently envisaged

ply the person ified and deified nation".) In our time, and particularly in a plural context, revolutionary constitu tion making and setting aside existing institutional structures in the name of an omnipotent constituent power is more difficult to defend. 138 This solution, which emphasizes the principle of legal continuity and legality, has been adopted in Central Europe after the revolutions of 1989. For Poland, see W. Osi atynski, "A Brief History of the constitution" , East European Constitutional Law Review 6 (1997), 66 et seq.; for Hungary, see A. Arato , "The Constitution-Making Endg ame in Hungary", East European Constitutional Law R evi ew 5 (1996), 31 et seq.; for Czechoslovakia, see Hertig, see note 115, 108. After decades of homogenizing tot alitarianism, the new political elites deliberately "renounced revolutionary constitution making legitimacy, which would have involved a claim of complete ident ity with the people in whose name and future interest a total rupture with the past would have been announced. This option, equivalent to a claim of full sovereign constituent power was unacceptable [...]"; A. Arato, "Dilemmas Arising From the Power To Create Constitutions in Eastern Europe", in: M. Rosenfeld (ed.), Constitutionalism, Identity, Difference and Legitimacy, 1994, 165 et seq. (177). Instead, the political elites chose to adopt the new post-communist constitu tions following the revision pro cedure of th e socialist constitutions in force at that time. The break-down of communism did thu s not lead to a return into the state of nature but to a constitutionally channelled transition process, commonly described as "self-limit ing " or "legal and constitutional" revolutions, Arata ibid., 179, footnote 40; J.L. Cohenl A. Arato, Civil Society and Political Theory, 1992, 31. A Czech author describ es the emphasi s on pluralism and diversity rather than unity and social homogeneity, in terms of the "absence of the people", see J. Priban , Legitimacy and Legality after the Velvet Revolution, in: J. Pribanl J. Young (eds), Rules of Law in Central Europe, 1999,29 et seq. (38 et seq.). As he puts it, "[o]n street s and squar es there was not the People, rather there were different peopl e with their demands and ideals [.. .]", Priban, ibid. 40. Th e Czech constitution, whi ch was adopted on 16 December 1992, a few weeks before the break-up of th e Czechoslovak federation , is an interesting example that constitution-making do es not necessarily require recourse to a collective actor, a nation. After the adverse experience with nationalism, a reference to the Czech nation in the preamble was deliberately renounced in favour of th e more plural and individualistic concept of citizenship: "We,

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in the context of the European Union, or evolutionary constitutionmaking. The latter may be better understood in terms of an ongoing discourse of many voices.P? as a process, such as described by the term 'constitutionalization', Limiting the concept of 'constitution' to a "big bang",140 the creation 'ex nihilo' of a new legal order,"" in our view focuses too narrowly on the French model of revolutionary constitutionmaking.I< Following such a view, one would, for example, have to conclude that the United Kingdom does not have a constitution. Moreover, the model of revolutionary constitution making is ill suited for plural polities, be they states or not, in which a consensus has to be formed in a process of constitutional politics rather than a constitutional big bang. 143 c. Constitutionalism as a Process The imperative need to assure constitutional peaceful change in an interdependent world inherently leads to a conception which stresses process as an essential ingredient of constitutionalism. As Fossum puts it, constitution-making needs to be reconceptualized:

"[I]t is essential to think through the legitimacy implications of process. [...] less focus must be placed on the results of single instances

the citizens of the Czech Republic in Bohemia, Moravia and Silesia [... ] adopt this Constitution of the Czech Republic". 139 This will be exemplified below IV. 4., using the protection of human rights as an example. 140 T. Schilling, "The Autonomy of the Community Legal Order: An Analysis of Possible Foundations", Harv. Int'l L. J. 37 (1996), 389 et seq. (390). HI For such a view, see Schilling, see above, who argues that the European Union does not have a constitution because the ratification of the founding treaties did not amount to a legal revolution and the creation of a legal order with original autonomy. 142 For different models of constitution making, see Arato, see note 133, 197 et seq. 143 This aspect is stressed by a Canadian author, who points out that Canada "has undergone the longest and most comprehensive constitutional debate experienced anywhere", Fossum, see note 123, 3, a process he calls "megaconstitutional politics", ibid., 23. Mega-constitutional politics refers to a process which, from a substantive point of view, is more appropriately described as constitution-making than constitutional revision, but takes place within the established constitutional framework, ibid., 23.

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such as the Constitutional Convention and more onus must be placed on what types of agreements can be obtained over time" .144 In conclusion, the state centred concept of constitutionalism may have been appropriate, if at all, in the state-centred, dualistic Westphalian system. It fails, however, to offer a useful analytical tool in a world where the boundaries between domestic and international law have been progressively blurred, and where new polities have emerged which challenge the states ' exclusive legal and political authority. As George Scelle put it as early as in 1933, "between state s and other political societies, there is only a difference in degree, in integration and disintegration".145 To the varying degrees of integration correspond different degrees of constitutionalization, which can be measured and critically assessed based on a graduated theory of constitutionalism. Constitutionalism is, in Weiler 's words, not only about observing "'out there', a constirutional landscape't.l'" but also "a prism through which one can observe a landscape in a certain way, an academic artefact with which one can organize the milestones and landmarks within the landscape (indeed, determine what is a landmark or milestone), an intellectual construct by which one can assign meaning to, or even constitute, that which is observed't.r'? It is "no mere reflection of a prior political order, but [... ] recursively implicated in the elaboration of that order",148 a "discourse of conceptualization and imagination,"149 an "intensely reflexive process ".150 To help us create and re-imagine a new order, constitutionalism of the 21st century needs to break "the statist frame"151 and to escape 'all or nothing' propositions. Such a process is not a vain intellectual exercise, but in our view a necessary step to secure the values of constitutionalism in an era of globalization and interdependence: in the same way as the constitutionalism of the 18th, 19th and 20th centuries provided a re-

144 Fossum, see note 123,37. 145 Scelles, see note 65, 510: "Entre l'Etat et les autres societes politiques, il n'existe que des differences de degre, d' int egration ou de desintegration", 146 J.H.H . Weiler, "Introduction: The Reformation of European Constitutionalism", in: id., The Constitution of Europe, 1999,221 et seq. (223). 147 Weiler, seeabove, 223. 148 Walker, see note 93,39. 149 Weiler, see note 146, 223. 150 Walker, see note 93,39. 151 Walker, see note 93,33.

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sponse to the growing power of the Nation State,152 it needs to discipline the power of the emerging non-state polities by law, if it is to respond adequately to the increasing 'denationalization' of legal and political functions. It also needs to eliminate inconsistencies stemming from the traditional separation of domestic and international law, which, for example, are strongly felt in badly coordinated and paradoxical roles of the judiciary branch on the domestic and international levels.153 Constitutionalism, moreover, has to address the relationship between the state and the other emerging, and to varying degrees constitutionalized, levels of governance and the issue of adequate allocation of competences so as to establish legitimacy and coherence of what we would like to call the whole 'constitutional system'. In our vision of constitutionalism, the focus should not be on whether a certain entity has passed the conceptual normative threshold and therefore is worthy of having, or being, a Constitution with a capital C. 154 It should foremost be on how the functions and values associated with constitutionalism can be secured considering the constitutional system as a whole. ISS Our analysis will thus look at the different layers of governance as an overall constitutional structure.

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ISS

Castiglione, see note 79, 21. See under IV. 6. See also C. Schreuer, "The Waning of the Sovereign State: Towards a New Paradigm for International Law?", EJIL 4 (1993), 447 et seq. (453): "Rather than grope for the seat of sovereignty, we should adjust our intellectual framework to a multi-layered reality consisting of a variety of authoritative structures. Under this functionalist approach what matters is not the formal status of a participant (province, state, international organization) but its actual or preferable exercise of functions. For instance, it is not meaningful to attempt to isolate the point at which the European Community will be transformed from an international organization into a European State. Rather, we will have to examine in detail exactly what functions and powers it has assumed from its Member States". A theory of global constitutionalism which considers all levels of governance is also supported by Rosas, see note 8, 172.

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Towards a Five Storey House

1. Multilevel Governance The basic thesis submitted here is that 21st century constitutionalism can no longer be limited to Constitutions with a capital C and thus to the Nation State,156 With governance expanding into international law, constitutionalism has to reach beyond the boundaries of the nation state in order to secure overall coherence of governance. In our view, constitutionalism needs to encompass different layers, entailing the idea of multi-layered governance, whether or not the different levels amount to having 'Capital C Constitutions' or not. This idea, of course, is not new. It is inherent to the concept of federalism as a constitutional system, interfacing the layers of sub-federal and federal government, and expressing the doctrines of vertical separation of powers, by allocating explicit and enumerative, but also implied or inherent powers, to different levels of governance. Interestingly, neither the level of the communes, nor the levels of regional, for example European governance, have, however, been included in this scheme. With regard to the global level of governance, it is clearly defined in terms of international, not constitutional law. The relationship of nationallaw and international law is not conceived as a problem of interfacing different constitutional levels of governance, as we observe in relations between federal and provincial or cantonal law. Correspondingly, the relationship between international and domestic law is mainly defined by the national constitution. Conceiving constitutionalism as an overall system changes these relationships. It depicts the concept of a system with different layers. Some authors have used the notion of "multilevel constitutionalism't.P? "constitutional compound",158 or "multilevel system".159 One author of

156 The following draws from T. Cottier, "Reforming the Swiss Federal Con-

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stitution: An International Lawyer's Perspective", in: M. Butler! M. Pender! J. Chalrey (eds), The Making of Modern Switzerland, 1948-1998, 2000,75 et seq. I. Pernice, "Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited?", CML Rev. 36 (1999), 703 et seq. 1. Pern ice, "Die Dritte Gewalt im europaischen Verfassungsverbund ", Europarecht 31 (1996),29 et seq., (translated by the authors).

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this article has suggested using, in the case of Switzerland, the image of a five storey house as a framework of analysis.160 While we have been familiar with the first, second and third storeys, the constitutional levels of the cornmunes.l''! the cantons or sub-federal entities, and of the federal structure, a fourth and fifth level are currently being added. The fourth one amounts to the framework of regional integration, in particular the European Union and its treaties. This level exists whether or not the country is a member of the Union, as it is obliged to adopt laws and regulations in conformity with European law in order to minimize trade barriers and transaction costS. 162 A fifth and emerging level is global. We are thinking here for example of emerging structures of global integration in the field of trade regulation, in particular within the WTO and the Bretton Woods institutions. While they are still embryonic, the rule of global law, effective dispute settlement and enforcement of rights are likely to gradually develop constitutional and supranational structures binding upon both states

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H.J. Blanke, "Der Unionsvertrag von Maastricht", Die offentliche Verwaltung 46 (1993), 412 et seq. (422) (translated by the authors); see also Hobe, see note 31, 392, 422; Konig, see note 98, 274 et seq., 662; Schreuer, see note 154,453. Cottier, see note 156; T. Cottier, "Einleitung und Synthesen", in: T. Cottier! A. Achermann/ D. Wiiger! V. Zellweger, Der Staatsvertrag im schweizerischen Verfassungsrecht. Beitrage zum Verhaltnis und methodischer Angleichung von Volkerrecht und Bundesrecht, 2001, 1 et seq.; T. Cottier, "The Impact from Without: International Law and the Structure of Federal Government in Switzerland", in: P. Knoepfel/ W. Linder (eds), Verwaltung, Regierung und Verfassung im Wandel. Geddcbtnisscbrift fur Raimund E. Germann, 2000, 195 et seq. (227 et seq.). In a country like Switzerland, where the communes enjoy a substantial degree of constitutionally protected autonomy (see article 50 of the Swiss Federal Constitution), it is in our view justified to consider them as an independent level of governance, although this has not been a traditional way of looking at the matter. The expansion of constitutional notions beyond the traditional levels of the Canton and the Federal Government towards regional and global structures also suggests refining domestic levels, so as to give a complete picture of the entire building. See Cottier, "The Impact from Without", see note 160; R. Mallepell, "Der Einfluss des Gemeinschaftsrechts auf die schweizerische Gesetzgebung", Swiss Papers on European Integration No. 21 (1999); W. Wiegand/ M. Briihlhart, "Die Auslegung von autonom nachvollzogenem Recht der Europaischen Gemeinschaft", Swiss Papers on European Integration No. 23 (1999).

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and organizations of regional integration. Other international fora, perhaps the United Nations, may re-emerge in response to global regulatory needs, and call for adjustment both on the regional, national and cantonal level.163 At a minimum, the constitutional system entails two storeys: the Nation State and the international level. Most countries will have three or more layers, up to five, perhaps even more. In federal states, the power of federal entities to cooperate with each other 164 or with other states 165 based on treaties, can give rise to an additional layer, which is situated between the second and the third storey. The five storey house does not normatively suggest that all layers are of an equal nature or impact. It does not mean that higher levels of regional and international law are more powerful than Constitutions. It simply implies that all these layers should be considered, as a whole, as a constitutional system. Different layers form different parts of a whole. The idea of layers allows us to define, in constitutional terms and applying comparable principles, the allocation of powers among different levels, exceeding traditional levels of federalism. It enables us to understand the structure in terms of regional and global federalism and to ask a new classical question of vertical checks and balances. It permits us to define concepts which are suitable to the operation of all levels and thereby design coherent legal thinking. It will be objected from the statist point of view that this image and construction are naive and unreal istic. While the centre of powers lies within national Constitutions, all other levels are derived from, and

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The interaction and relationship of different international regimes raises itself difficult constitutional questions of how to establish coherence between those segments of international law. An example in point is the discussion on the relationship between international trade law and human rights law (see Cottier, see note 19; Petersmann, see note 50; Alston, see note 51, Howse, see note 51). Those issues are beyond the scope of this article. But as we will see below (IV. 4), the interaction between 'lower' and 'higher' levels of governance also contributes to further developing a material hierarchy within international law, based on general principles of law and human rights norms. See article 48 of the Swiss Federal Constitution, which confers on the cantons the power to conclude inter-cantonal treaties and to set up common organizations or institutions. See article 56 of the Swiss Federal Constitution, empowering the cantons to conclude tre aties with other states within the scope of their powers.

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subject to, these foundations and powers.l'f The Constitution thus inherently dominates all the other layers. Domestically, cantonal or provincial powers are subject to federal powers. Internationally, regional law and international law are derived from the national Constitutions. It is impossible, the argument will go, to compare these levels and create the impression that they are of any comparable standing and importance. The idea of a five storey house is unrealistic in suggesting that levels above the Constitution can ultimately command. The concept is at odds with the idea of state sovereignty. We should address these concerns first from a practical and factual angle. It is true and appropriate that the Constitution is and remains at the heart of constitutionalism and the allocation of powers in a state centred system. Yet, as we have seen, its powers have been increasingly made subject to other influences. In domestic law, there is no linear decline of local powers. While federal government has, over time, grown in all federal states, there is also evidence that local powers have been strengthened in a process of devolution or federalization, exploding "the myth of the homogeneity of European nation-states't.ls? The United Kingdom, Spain, Italy and Belgium are examples in point. Likewise, as pointed out in Section II . 2 of this article, powers are increasingly shifted from the national level to international and supranational governance structures. Due to the high degree of interdependence between the different levels of governance, the same problem will often be dealt with in different fora, implying a dialogue and interaction between the different layers. The disputes with regard to the European Community's preferential treatment of bananas stemming from the former colonies in the African, Caribbean and Pacific area (ACP countries), frequently referred to as the "Banana-saga" is an example. The validity, respectively the constitutionality of this import regime occu pied the European Court of Justice,168 the German Constitutional 166 For such an approach, see for instance the 'Maastricht judgment' of the German Constitutional Court, see note 99. 167 J. Shaw, "Citizenship of the Union: Towards Post-National Membership", in: European University Institute (ed.), Collected Courses of the Academy of European Law, Vol. VI, No.1 (1995),245 et seq. (271). 168 The bananaregulations have triggeredover 30 cases in the EC; for the main cases, which in substance upheld the validity of the EC banana regime, see Case 280/93 R, Germany v. Council, ECR 1993, 483; Case 466/93, Atlanta, ECR 1995, 836; Case C-122/95, Federal Republic of Germany v. Council, ECR 1998, I 973 and Joint Cases C-364/95 and C-365/95, T. Port GmbH III v. Hauptzollamt Hamburg-jonas, ECR 1998, I 1023.

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Court'"? and the GATT/WTOI70 for over a decade.V' Drawing a factual picture shows a system of different layers interacting in a complex, not in a neat manner: there are many rough edges, but the picture shows nevertheless different layers which do interact and allocate powers on different levels of the overall system. The factual analysis also reveals a position of the state rather as pouvoir intermediaire between different layers of governance than a 'supreme authority' from which all other governance structures are derived.F? The Constitution itself can no longer pretend anymore to provide a comprehensive regulatory framework of the state on its own. Of course, there are differences among states, essentially based upon power and might, and graduations exist in different regulatory areas. But conceptually, due to the increasing 'outsourcing of constitutional funcSee the case 2 BVLl/97. The Constitutional Court declared the complaint for violation of the constitutional rights of property, free exercise of a profession and equal treatment inadmissible, reverting to its "Solange II" jurisprudence (BVerfGE 73, 339), according to which complaints are only admissible if the mandatory fundamental-rights standard is generally not observed in the EC, as opposed to allegations of a breach of human rights in an individual case. 170 The first two dispute settlement procedures were brought against the EC under the GATT'47 and concluded that the EC regime was incompatible with the GATT; the panel reports were however vetoed by the EC (see Unadapted Panel Report on European Economic Community Member States' Import Regimes for Bananas, 1993 GATTPD Lexis 11 2, DS32/R of 3 June 1993 and Unadapted Panel Report on the European Economic Community 'Import Regime for Bananas', 181 DS38/R of 18 January 1994, ILM 34 (1995), 177 et seq.; under the negative consensus rule of the WTO 1995, the EC was prevented from blocking the adoption of the subsequent panel report, which found the EC in breach of its obligations under the GATT (see Report of the Panel, WT /DS27 /R/USA of 22 Mai 1997). 171 For an analysis of the banana dispute, see for example J.H. Jackson/ M. Salas, "Procedural Overview of the WTO EC-Banana Dispute", JIEL 3 (2000) 145 et seq.; U. Schmid, "All Bark and No Bite: Notes on the Federal Constitutional Court's 'Banana Decision", ELI 7 (2002), 95 et seq.; j .C, Cascante/ G.G. Sander, Der Streit urn die EG-Bananenmarktordnung, 1999; E. Everling, "Will Europe Slip on Bananas? The Bananas Judgment of the Court of Justice and National Courts", CML Rev. 33 (1996), 401 et seq. 172 Pernthaler, see note 20, 79; P. Saladin, Wozu nocb Staaten, 1995,237 et seq.; Hobe, see note 8, 663; Scelles, see note 65, 509 ; Konig, see note 98, 274 ; Snyder, see note 138, critically calls the idea that the state is the sale source of law the "myth of the state". 169

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tions',173 the national Constitution today and in the future is to be considered a "partial constitution,"174 which is completed by the other levels of governance. Reflecting the intermediary position of the state and the 'incomplete' nature of the national constitutions, the constitutional system is based not on a concept of absolute sovereignty defined as 'competence-competence' 175 but on the idea of sovereignty being shared between the different levels of governance.V"

2. Shared Sovereignty The concept of divided sovereignty can be traced back to the Federalist Papers and reflects the idea of federalism as a system allocating competences to different layers, as opposed to unitary states: "An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and 173 Cf. under II. 2. a. 174 Peters, see note 59, 208 et seq.; Walter, see note 2, 194. 175 For a critique of the concept of absolute sovereignty in an interdependent world , d . Saladin, see note 172,28 et seq.; C. Gusy, "Demokratiedefizite postnationaler Gemeinschaften unter Beriicksichtigung der Europaischen Union", in: H. Brunkhorst/ M. Kettner (eds), Globalisierung und Demokratie, Wirtschaft, Recht, Medien, 2000,131 et seq. (142 et seq.): N. Walker, "Sovereignty and Differentiated Integration in the European Union", ELI 4 (1998), 356 et seq. (358); K. Jayasuriya, "Symposium: The Rule of Law in the Era of Globalization: Globaliz ation, Law, and the Transformation of Sovereignty: Emergence of Global Regulatory Governance", Ind . j. Global Legal Stud. 6 (1999), 425 et seq. (426); T. Fleiner-Gerster, "Problernes de la souverainete interieure et exterieure", in: T. Fleiner! S. Hutter (eds), Federalism and Decentralisation, 1987, 63; T. Fleiner! L.R. Basta, "Federalism, Federal States and Decentralization", in: L.R. Basta/ T. Fleiner (eds), Federalism and Multiethnic States, The Case of Switzerland, 1996, 27; N. MacCormick, "Beyond the Sovereign State", Modern Law Review 56 (1993) 1 et seq. (12 et seq., 16); id., "Liberalism, Nationalism and the Postsovereign State", in: R. Bellamy/ D. Castiglione (eds), Constitutionalism in Transformation: European and Theoretical Perspectives, 1996, 143 et seq.; id., "The Maastricht-Urteil: Sovereignty Now", ELI 1 (1995),259 et seq. (265 et seq.); J.A. Frowein, "Verfassungsperspektiven der Europaischen Gemeinschaft", Europarecht Beibe]t No.1, 1992, 63 et seq. (67 et seq.); Schreuer, see note 154, 453; see also III. 2. a. 176 Cf. Gusy, see above, 142 et seq.; Pernice, see note 157, 706; Fleiner! Basta, see note above, 27.

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whatever powers might remain in them would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they clearly before had, and which were not, by that act, exclusively delegated to the United States". 177 "The necessity of concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor is not only a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed constitution't.V" The notion of shared sovereignty, as it was conceived at the time in the Federalist Papers, referred to the division of powers between the federation and sub-federal entities. Yet, today, there is no reason why it could not be conceptually extended to international or supranational governance structures.V? Contrary to the absolute concept of sovereignty, the idea of shared sovereignty offers the advantage that it does not conceive of sovereignty as a "zero sum game - i.e. you either have it or you do not".180 Given the considerable symbolic value of sovereignty, the mindset the 'winner takes all' is one of the main obstacles to successful diversity accommodation, not only between states and international or supranational regimes but also within multinational states. It furthers extremist positions, such as secessionist demands of ethnic minorities, or, as regards the European Union, calls for a European state, on the one hand, and the denial of any autonomy to the Community legal order on the other hand. To overcome such conflicts, it is not sufficient to abandon the idea of indivisible sovereignty. We also need to give up the "search for this Kelsenian holy grail",181 i.e. the idea of a Grundnorm, a single power

177 Hamilton/ Madison/Jay, see note 12, Paper No. 33 (Hamilton), 198 (emphasis added). 178 Hamilton! Madison! Jay, see note 12, Paper No. 33 (Hamilton), 201 (emphasis added). 179 See Gusy,see note 175, 143. 180 Jayasuriya, seenote 175,427. 181 Weiler, seenote 110, 6.

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source from which all law originates.W The different levels of governance all derive from different sources of law, reflect different circles of political identities l83 and have their own raison d'etre. But they are interlocked and intertwined. Indeed, 'higher' levels of governance fulfil an important function of checks and balances. As Lindseth pointed out in the context of European law, the European Community legal order "seeks to constrain, and in some sense to overcome, the propensity of Nation States to parochialism and self-interest, and therefore represents an autonomous regulatory interest of its own".184 Contrary to traditional intergovernmental politics, higher levels of governance do not reflect the simple aggregate of Member States' interests, since states in-

182 Cf. MacCormick, see note 175, 147 et seq. who discusses the monistic theories on whether the 'Grundnorm' is located on the international, European or national level and advocates a pluralistic point of view; see also Frowein, see note 175, 67 et seq. 183 On the idea of multiple loyalties, see also III. 2. a and IV. 3. a. The idea of multiple identities is well known to the theory of federalism, understood as a principle of organizing unity in diversity, d. P. Pernthaler, Allgemeine Staatslehre und Verfassungslehre, 1996, 289; H. Kilper! R. Lhotta, Foderalismus in der Bundesrepublik Deutschland, 1996, 30. Without overarching loyalties, federal systems tend to be inherently unstable. As regards the regional and the global level, it is obvious that the corresponding identities are much 'weaker' than on the national or local levels.This should however not lead to the conclusion that transnational identities are impossible to achieve. An interesting theory to conceive of identity formation beyond the Nation State has been advanced by Breton, who uses the term 'pragmatic solidarities', referring to the identification with systems resulting from institutionalized factual interdependencies, d. R. Breton, "Identification in Transnational Political Communities", in: K. Knop/ S. Ostry/ R. Simeon/ K. Swinton (eds), Rethinking Federalism: Citizens, Market s, and Governments in a Changing World, 1995, 41 et seq.; for a summary of Breton's theory, see Shaw, see note 167,266 et seq. The identification with the system depends on the efficiency of the institutions, the "participation in collective achievements, and on the perceived fairness of the distribution of costs and benefits". The increased interest of non-state actors in global issues, coupled with the demands for greater transparency and participation rights can be viewed as signs that transnational identities are gradually emergmg. 184 P.L. Lindseth, "'Weak' constitutionalism? Reflections on Comitology and Transnational Governance in the European Union," Oxford Journal of Legal Studies 21 (2001), 145 et seq. (148); see also J.H.H. Weiler! U. Haltern/ F. Mayer, "European Democracy and Its Critics - Five Uneasy Pieces", Swiss Papers on European Integration No .1 (1995),22 et seq.

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creasingly have to justify their position considering the aims and interests of the community of states represented in the international regime in question as a whole. "In this sense, transnational governance [... ] operates independently of any single government and thus represents an emergent [... ] political community with regulatory interests separate and apart from - indeed superior to - the interests of the particular national political communities which comprise it".185

3. The Relationship Between the Different Levels of Governance a. The Principle of Supremacy Considering each level of governance as being autonomous raises the question of how to resolve conflicts between norms originating from different legal sources.l'" Indeed, adopting a pluralist point of view, one has to "conclude that there is no objective basis - no Archimedean point - from which one claim can be viewed as more authentic than the other or superior to the other within a single hierarchy of norms. Rather, the claims [...] to ultimate authority [...] are equally plausible in their own terms and from their own perspective". 187 While this view offers the advantage of "sociological realism",188 there are nevertheless good reasons to support the principle of supremacy of the 'higher' levels of governance in case of conflict. The first is a factual reason: even under traditional precepts, the logic of supremacy of higher levels of governance is generally recognised, given its important roles of co-ordination and coherence. The principle of supremacy of federal law vis-a-vis state, provincial or cantonal law is accepted. Similarly, international law is recognized to be of a higher order as expressed by the principle of pacta sunt servanda, which fully applies in international relations and triggers, if violated, state responsibility. In European law, the doctrine of supremacy of Community law developed 185 186 187 188

Lindseth,see above, 148. Pernice, see note 157, 713 et seq. Walker, see note 175,361 et seq. MacCormick, see note 175, 264; sociological realism refers to the fact that the institutions of a given legal system look to this legal order to assess their competences and the validity of their actions and do not regard those issues as being dependent on another legal order.

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by the European Court of Justice has in practice and principle been complied with by all Member States, despite some vociferous resistance from several constitutional courts.P? The second reason in favour of supremacy of higher levels is a functionalist one: a basic hierarchy between the different constitutional levels is necessary to ensure the functioning of the higher levels of governance. The founding fathers of the American Constitution expressed this point as follows: "[...] we need only suppose for a moment that the supremacy of the State constitutions had been left complete by a saving clause in their favor. [...] In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster in which the head was under the direction of the members".190 A similar view, as regards the supremacy of the European Community and public international law, was for example expressed by Pierre Pes-

catore: "It is by virtue of its specific nature that Community law - and the same holds true for public international law - pretends to supremacy; the reason is that it is the law of the whole and the whole cannot exist unless the constitutive parts subordinate their interests to those of the whole ".191

189 See for examplethe decisions "Solange I" (BVerfGE 37, 271); "Solange II" (BVerfGE 73, 339), "Maastricht", see note 99, the decision referring to the 'Banana dispute' (2 BVLl/97) of the German Constitutional Court, and the decisions 'Frontini' (Foro italiano 1974, Vol. I, 314), 'Granital' (Giurisprudenza costituzionale 1984, Vol. I, 1098), und 'Fragd' (Giurisprudenza costituzionale 1989, Vol. I, 1001) of the Italian Constitutional Court; for a summary of the case law, including decisions of other Member States, see Oppenheimer, see note 99; T. De Berranger, Constitutions nationales et construction communautaire, 1995.

190 Hamilton/ Madison/ Jay, see note 12,Paper No . 44 (Madison), 286et seq. 191 G. Pescatore, "Aspects judiciaires de I' acquis communautaire", RTDE 17 (1981),617 et seq. (632), "C'est en vertu de sa nature propre que Ie droit communautaire - et la meme chose est d'aiIIeurs vraie du droit international - affirme sa superiorite; c'est parce qu'iI est Ie droit du tout et que

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Without a basic hierarchy, the different levels cannot assume their proper co-ordinating functions. The regulation of market access rights and conditions of competition is a good example in point. We can observe that the higher level of governance provides the necessary disciplines and guarantees. This is the case for example in the United States with the interstate commerce clause. The economic liberty, which is guaranteed as a fundamental right in the German and Swiss Federal Constitutions, ensures the same function vis-a-vis the Lander and the Cantons, respectively. On the regional and global level, the Four Basic Freedoms guaranteed by European Community law and the market access rights enshrined in WTO law fulfil the same role with regard to the states. All these guarantees, ultimately, show comparable structures which, each on its level, exercise comparable checks and balances over the lower level of governance. A third reason in favour of the principle of supremacy of the higher level of governance can be derived from participation and consent and the binding nature of consent.l'? as expressed in the principle of pacta sunt servanda: indeed, supremacy viewed as a system of chains of command, of simply taking orders from above, would be illegitimate. The five storey house does not, however, represent such a system, since higher floors of the building are essentially constituted by lower levels and defined by their input. The way a 'lower' level participates in the 'higher' level therefore is of key importance in order to define as to whether that level and its claim to supremacy is legitimate.l'" It will not be possible to ensure democratic legitimacy of international rules only by extending participatory rights on the national level. To the extent that the regulatory scope and enforcement mechanisms on supra- and international levels of governance are enhanced, they need to

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l'ensemble ne peut exister qu'a la condition que les parties integrantes subordonnent leurs interets aceux de l'ensemble". The two reasons justifying the supremacy of 'higher' levels of governance are also implicit in Pernice's reasoning: "[... ] primacy of European law in the multilevel constitutional system of the European Union is founded on the common decision of the peoples of the Member States to achieve a functioning structure of political action above the State level", Pernice, see note 157, 719, (emphasis added) . On the issue of participation in the higher level of governance, see T. Cottier/ C. Germann, "Die Partizipation bei der Aushandlung neuer volkerrechtlicher Bindungen: verfassungsrechtliche Grundlagen und Perspektiven", in: D. Thurer/ J.F. Aubertl J.P. Muller (eds), Verfassungsrecht der Schweiz, 2001, 77 et seq. (94 et seq.).

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be accompanied by increasing participatory rights on that layer.194 The growing powers of the European Parliament are an example in point. Democratic legitimacy through elected bodies on the regional or global level and the legitimacy, resulting from the national level participating in the 'higher' levels through parliamentary or popular consent, should not be viewed as competing and antagonistic principles. They both aim at representing the citizens, by reflecting a different circle of human identity and loyalty. Such an approach takes into account that individuals are not only simultaneously members of the commune, the canton, the state, but are increasingly also being affected by transnational issues, and therefore want to be heard directly, as members of regional or global polities. In Muller's words, the "segmentation of the subject calls for a more differentiated system of representatiori't.l'" b. Exceptions to Supremacy Both reasons justifying the principle of supremacy - participation and consent on the one hand, and functionalism, on the other hand - have their limits. Therefore, we regard the principle of supremacy as an ordering principle, which does not apply in an absolute manner. It is therefore important to design criteria under which lower levels and storeys may prevail over higher ones. Today, many Constitutions claim to do so in a general manner. The United States, for example, do not recognize international law as being superior to Constitutional law. The European Community, in effect, does not accept the supremacy of international treaties over primary law. Under a doctrine of multi-layered governance, these traditional doctrines are over-broad. They need to be limited to constellations where primacy of national law can be justified. The doctrine of preserving the core of human rights, as defended by the German Constitutional COUft,l96 is appropriate from this perspective. Higher norms cannot prevail to the extent that they infringe inalienable rights of citizens. This is an important safeguard which provides confi-

194

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Cottier, "The Impact from Without", see note 160,219; Saladin, see note 172,246 et seq. J.P. Muller, "Karns Entwurf globaler Gerechtigkeit und das Problem der republikanischen Repraseruation im Staats- und Volkerrecht", in: P. ZenRuffinen/ A. Auer (eds), De fa Constitution. Etudes en l'bonneur de [eanFrancois Aubert, 1996, 133 et seq. (151). See the decisions 'Solange I', 'Solange II', 'Maastricht' and the decision referring to the 'Banana dispute', seenote 189.

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dence and allows citizens to embark on multi-layered governance in the first place.197 Similarly, direct effect of higher law may be denied to the extent that it does not correspond to procedures allowing for appropriate democratic participation, and similar legitimacy as comparable ones under national law.198 To the extent the national Constitution prescribes that certain issues have to be regulated in statutes adopted by the national parliament, or, in the case of Switzerland, have to be subject to a popular vote, the principle of legality requires similar modes of participation when the same issue is regulated by treaty law. This is to avoid democratic procedures being undermined by an excessive transfer of treatymaking powers to the executive branch. If the requirements of the principle of legality are not met, it is necessary to seek transformation and formal adoption on the appropriate level. Direct effect should be excluded in such constellations, and the Courts should be given the power to instruct legislators to properly implement the agreement within a certain period of time. Failing such implementation, they would return to direct effect in order to honour the agreement. Moreover, the principles of good faith and pacta sunt servanda, entail in our view, the duty of states to adapt their domestic constitutional law so as to provide for adequate participation mechanisms before the ratification of a treaty.l'" The constellations in which direct effect of international law can be justifiably denied should thus be rather limited. Again, this is a safeguard 197 198

199

See Cottier! Hertig, see note 12,25. On this issue, see Cottier, "Einleitung und Synthesen", see note 160, 9 et seq. and D . Wiiger, "Die direkte Anwendbarkeit staatsvertraglichen Rechts", in: T. Cottier/ A. Achermann/ D. Wiiger! V. Zellweger, Der Staatsvertrag im schweizerischen Verfassungsrecht. Beitrage zum Verhaltnis und methodischer Angleichung von Volkerrecht und Bundesrecbt, 2001, 95253; a very concise summary can be found in Cottier! Hertig, see note 12, 25 et seq. In Switzerland, an amendment of the federal Constitution, accepted on 9 February 2003, extends the facultative referendum to all state treaties which contain important legislative provisions or the implementation of which require the adoption of a federal statute (see the new article 141a § 1 of the Federal Constitution). So as to secure the effective legislative implementation of ratified treaties, the Federal Constitution enables the Parliament to include the implementing legislation in the vote on the state treaty itself (new article 141a § 2). This solution avoids the contradictory situation where an international treaty is ratified but cannot be complied with because the implementing legislation is challenged in a subsequent referendum.

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assuring that the fundamental role of law and legislation is maintained even if exercised in the form of international agreements. It combines monism and dualism from a perspective of legitimate multi-layered governance. Further exceptions to the principle of supremacy may be justified taking into account other fundamental values of a polity, such as, in the case of Switzerland, the institutions of direct democracy.P? In effect, under the Swiss federal Constitution, a popular initiative aiming at the revision of the Constitution is admissible to the extent that it does not violate the peremptory norms of public international law.201 A contrario, the validity of an initiative contrary to other norms of internationallaw would be upheld. Such a conflict of norms seems unsatisfactory from a legalistic point of view which emphasizes the need for coherence and clear rules of conflict. However, from a sociological point of view, limited exceptions to the principle of supremacy may be necessary to further the acceptance of higher levels of governance in a dynamic process of interfacing different layers. Indeed, absolute supremacy of 'higher law' may overstrain a system whose level of integration is, compared with classical nation states, relatively low, and, in the end, be counter-productive. It does, for example, not come as a surprise that the principle of supremacy, which is recognized in many federal states,202 is not unconditionally accepted in less integrated polities such as multinational federations. 203 In those cases, precedence of 'higher'

200

On this issue, see Cottier! Hertig, see note 12, 18 et seq. 201 Arts 194 § 2 and 129 § 3 of the Swiss Federal Constitution. 202 Cf. article 49 of the Swiss Federal Constitution; article 6 of the Constitution of the United States; article 31 of the German Constitution; article 109 of the Australian Constitution. 203 In Canada, for example, the Canadian Charter of fundamental rights contains, as a concession to Quebec, the so called 'notwithstanding clause', which enables a province to derogate from a provision of the Charter for a limited period of time. Quebec has used this derogation so as to uphold the validity of its famous 'French only' legislation, see M. Nemni, "Ethnic Nationalism and the Destabilization of the Canadian Federation", in: B. de Villiers (ed.), Evaluating Federal Systems, 1994, 148 et seq. In Belgium, no supremacy clause was introduced into the federal constitution, which was explained by the centrifugal character of the Belgium federation. The relationship between federal law and the law of the regions is viewed not in terms of a hierarchy but as two distinct coordinated legal orders, which operate in their respective spheres of competencies, see A. Alen, Der Fiideralstaat Belgien: Nationalismus-Foderalismus-Demokratie, 1995, 35; F. Ler-

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law will only be tolerated if the 'higher' level of governance shows a high degree of sensitivity for the core values of 'lower' levels. It is submitted that the principles set out above also apply domestically. From this perspective, it is perfectly conceivable to deny the implementation of federal law if it violates core freedoms protected under a provincial constitution. In the end, it is a matter of looking at law from the point of view of the individual. The system as a whole must protect its rights. These rights may be found on different levels and interact and sometimes compete with other levels, the different layers establishing safeguards with regard to both 'higher' and 'lower' layers. To sum it up, the doctrine of the five storey house entails the idea of communication between different levels. It starts from the presumption of hierarchy, but may allow for derogations to the extent that it is required by the protection of rights .

4. The Normative Interaction Between the Different Layers of Governance The idea of process, communication and interaction, rather than mechanical precedence of 'higher' levels over 'lower' levels of governance, is important to understand how the constitutional system is evolving towards greater coherence, ensuring that adequate safeguards are established at the appropriate level of governance and that the system as a whole responds to the precepts of traditional constitutionalism. It is important to protect life, liberty and property, and to pursue the goals of human welfare and development in non-discriminatory economic law. But these guarantees and goals need not be present on all levels of governance alike. The evolution of human rights protection is an example in point to analyse the interaction of different layers of governance. Domestically, human rights are not explicitly guaranteed in communal constitutions, sometimes not even on the provincial level. They are protected by the Federal Constitution, but take effect on all domestic levels of governance. Likewise, these guarantees need not necessarily be quin-De Vischer, "Les regles de droit", in: F. Delperee (ed.), La Belgique [ederale, 1994,210 et seq. (210). The constitutional courts of some Member States of the European Union have adopted a similar view with regard to the relationship between the EC legal order and the national legal order (see for example the decision 'Granital' of the Italian Constitutional Court, Giurisprudenza costituzionale 1984, Vol. I, 1098).

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protected on the fourth or fifth level and apply to international or regional organizations. It suffices in principle that these rights are effectively protected by one of the layers, prevailing over others in this respect. The protection of fundamental rights within international and supranational institutions may, however, become necessary to the extent that these organizations themselves represent a threat to human rights and to the extent that the protection by other layers of governance bears the risk of disruption and legal uncertainty. The advent of human rights protection in European Community law is an important illustration of this process.P" Conceived as an instrument of economic integration, the Treaty of Rome was limited to the Four Basic Freedoms, aimed at securing market access within the area of the European Community. This functional approach did not require a bill of rights on that level of governance. However, it soon became obvious that European Community legislation, although at the beginning mainly limited to the economic sphere, could conflict with fundamental rights protected by the national constitutions of the Member States and the European Convention on Human Rights. As a consequence, some national constitutional courts made it clear that they were not willing to accept the supremacy of European Community law if fundamental rights were not effectively guaranteed.P! The risk that national courts would subject Community law to national constitutional law, at the price of piercing the doctrine of supremacy in some cases, was an important incentive for the European Court of Justice to recognize fundamental rights as general principles of European Com204

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Among the vast literature on this issue, see for a succinct summary, P. Craigl G. De Biirca, EU Law, Text, Cases, and Materials, 2003, 317 et seq.; for a comprehensive study on the EU's human rights policy, see P. Alston (ed.), The EU and Human Rights, 1999. The development of the protection of fundamental rights within the EC resembles the advent of human rights protection in Switzerland, in as much that the Swiss Federal Constitution of 1848/1874 did not comprise a comprehensive catalogue of fundamental rights. Similarly to the fundamental freedoms enshrined in the Treaties of Rome, the fundamental rights protected by the Swiss Federal Constitution, in particular the freedom of establishment and the economic freedom, were mainly rights aimed at eliminating trade barriers between the cantons, see T. Cottier! B. Merkt, "La fonction federative de la liberte du commerce et de l'industrie et la loi sur Ie marche interieur Suisse: l'influence du droit europeen et du droit international economique," in: P. Zen-Ruffinenl A. Auer (eds), De La Constitution. Etudes en l'honneur de Jean-Franr;ois Aubert, 1996,449 et seq. See note 189.

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munity law,206 which are derived from the constitutional traditions common to the Member States-'? and the "international treaties for the protection of Human Rights on which the member states have collaborated or of which they are signatories",2os the European Convention on Human Rights being of particular significance in this respect.P? Apart from national constitutional courts, the European Court of Human Rights has also given an important impetus in securing the protection of fundamental rights in the European Community legal order. Indeed, the Court has made it clear that the delegation of sovereign powers to international organizations does not free the Member States from their obligations under the European Convention on Human Rights. On this basis, the Court has declared actions brought against the Member States collectively for breach of the European Convention on Human Rights by an act of another international organization admissible.s'? In doing so, the European Court of Human Rights can indirectly check the compatibility of European Community acts with the European Convention on Human Rights, although the European Community has not adhered to the Convention, which amounts to establishing a material hierarchy between regimes of human rights protection and other international regimes. 206 Case 29/69, Stauder o. City of Ulm , ECR 1969,41. See also Intemationale Handelsgesellschaft v. Einfuhr und Vorratsstelle fur Getreide und Puttermittel, ECR 1970, 1125 : "Recourse to the legal rules or concepts of nationallaw in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law. [.. .] Therefore the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure. [...] However, an examination should be made as to whether or not any analogous guarantee inherent in Community law has been disregarded. In fact, respect for fundamental rights forms an integral part of the general principles of Community law protected by the Court of Justice". 207 Case 11170, Intemationale Handelsgesellschaft v. Einfuhr und Vorratsstelle fur Getreide und Futtermittel, ECR 1970, 1125 at § 4. 20S Case 4/73, Nold o. Commission, ECR 1974, 491 § 13. 209 See for example Case 222/84, Johnston v. Royal Ulster Constabulary, ECR 1986,1651, § 18; Case C-260/89, Ellinki Radiophina Tileorassi AE (ERT) v. Dimotiki Etairia Pliroforissis and others, ECR 1991, 12925 , § 41. 210 See the judgment Matth ews v. UK, of 18 February § 34-35.

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The fundamental rights doctrine of the European Court of Justice was thus - and still is - being shaped interactively, in a dialogue with national Constitutional law and the European Court of Human Rights, with fundamental rights being defined with input from both national and international law, i.e. the constitutional traditions common to the Member States and international human rights treaties, respectively. Tendencies of national constitutional law " to transport values from the domestic order to the supra-national and international legal orders"211 can also be observed with regard to general principles of law, such as equity, transparency, non-retroactivity, proportionality, the protection of good faith and the doctrine of abuse of rights, which provide important corner stones of an overall constitutional system and make essential contributions to the constitutionalizing processes occurring within higher levels of governance. Conversely, due to the constitutionalization of European and international law, precepts of constitutionalism are increasingly secured on 'higher' levels and reflect upon national Constitutional law. To take up the same example - the protection of fundamental rights within the European Union legal order - the European Court of Justice did not only recognize human rights as binding on the European Community institutions. It also held in subsequent case law that the Member States were subject to the same rights within the field of European Community law, namely when they implement European Community rules or derogate from the Four Basic Freedoms. More generally, European Union law explicitly subjects accession and membership of states to the respect of the principles of liberty, democracy, fundamental rights and freedoms and the rule of law.212 It also establishes an enforcement procedure to ensure compliance with these principles.I'? These provisions are in line with the idea, underlying the international human rights in-

211 Hobe, see note 8, 663; an interesting example in this respect is article 23 of the German Constitution, which subordinates the delegation of powers to the EU to the respect of core principles: "To realize a unified Europe, Germany participates in the development of the European Union which is bound to democratic rule of law, social, and federal principlesas well as the principle of subsidiarity and provides a protection of fundamental rights essentially equivalent to that of this Constitution. The federation can, for this purpose and with the consent of the Senate, delegate sovereign powers".

212 Article 6 in relation with article 7 and 49 of the EU Treaty. 213 Article 7 of the EU Treaty.

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struments and the establishment of the ICC, that the protection of these essential guarantees should not be left to states alone. The overall picture thus already shows a dialectical relationship between the different levels of governance, a communicative constitutional process which slowly brings about a continuing rapprochement of the different levels of governance.I" It may help to gradually define minimal constitutional standards which all layers have to meet. Twenty-first century constitutionalism therefore is characterised by establishing effective safeguards on different levels. While the Constitution remains centre stage, additional levels increasingly act to bring about coherence among different constitutional layers, to interface them. Moreover, they increasingly serve to monitor them. Custodis custodiae!

5. The Allocation of Powers In a multilayered system, defining the relationship and the boundaries between the different levels of governance are essential constitutional functions. To this effect, we cannot limit our analysis to the question of supremacy discussed above. We also need to address the issue of delimitation of jurisdiction or competence between different layers.215 Following the traditional model of power allocation in federal states, such as Switzerland, powers of the federal government need in principle216 explicit enumeration, while the federal entities otherwise remain uninhibited or sovereign.?'? In decentralized polities, such as the United Kingdom, the opposite approach generally prevails: competences which are not explicitly attributed to regional governments stay with the central government. Both approaches adopt a pattern of allocation which follows the ideal of assuming the responsibilities for separate tasks and walks of life.

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Pet ers, see note 59, 213; Frowein, see note 175, 66, who talks about the "dialectical homogenizing effect of the EC" (translated by the authors). The following passage draws on Cottier, see note 156. Most federal systems know the category of implied powers, which are however rarely used in Switzerland. See articl e 3 of the Swiss Federal Constitution.

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a. The Limits of Traditional Pattern of Power Allocation The traditional model fits a two or three storey house, contained in the nation state, and a system where the scope of regulatory powers and functions of public authorities is relatively limited. It is however bound to run into problems in a five storey house with law-making on the regional and global levels, and regulatory needs in general, increasing. This is so for the following reasons. Firstly, the gradual shift from the liberal to the welfare state and the important changes in the field of science and technology have substantially enhanced regulatory needs. Public powers have increased dramatically and become more complex, which makes it more difficult to clearly define competence allocation. Instead, realities have produced over time a wide entanglement of mixed and joint competences. Secondly, more and more fields are addressed by rules of European and international law. Looking at regulatory approaches both in the European Union and on the global level of the WTO and other international fora, it is important to note that these regulations are generally not of a comprehensive nature. They address key issues and points necessary to bring about the degree of harmonization required with a view to overcoming, for example, excessive trade barriers. International and regional regulation, therefore , is piece-meal and needs to be complemented, if not implemented, by rules of the first three floors of the constitutional building. 218 More importantly in the present context, international rules do not respect and follow allocations of powers in a given federal or devolved structure. Agreements, regulations and directives of the European Community or international treaties may partly affect the jurisdiction of the federal or central government, and partly of the sub-national, federal or regional entities. As a matter of international or European law, the central or federal government is responsible for implementation and compliance although it often does not have explicit jurisdiction to compel the sub-national entities to implement and comply with rules falling under their jurisdiction."?

218 219

On this point and related matters see Cottier, see note 31, 217 et seq. A good and telling example in this context is the regulation of government procurement in Switzerland. Overall rights and obligations are defined by the WTO Agreement on Government Procurement. Since the Federal Government has very limited powers to regulate the matter for the Cantons, it only enacted a comprehensive bill on government procurement for the federal entities. Limited rules on non-discrimination are contained in

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The same problem can be observed in the European Union, which has itself become an important actor on the international scene. Since the external treaty making power of the European Community does not correspond to the internal constitutional division of powers between the European Community and the Member States, the European Community is liable for compliance with international law without having any means of enforcement.F ? The increase of international and supranational rules thus bears the potential of considerably shifting and upsetting the balance of traditional constitutional patterns. From the point of view of the
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the internal market bill, partly with differing rules (in social standards) from the Federal Procurement Act. The Cantons undertook to harmonize the matter in an interstate compound, partly inconsistent with the internal market bill, and further legislation exists within the Cantons on the matter, see T. Cottier/ B. Merkt, "Die Auswirkungen des Welthandelsrechts der WTO und des Bundesgesetzes iiber den Binnenmarkt auf das Subm issionsrechr der Schweiz ", in: R. von Biiren/ T. Cottier (eds), Die neue schweizerische Wettbewerbsordnung im internationalen Umfeld, 1996, 35 et seq., with an Annex containing the WTO Agreement on Government Procurement in English, 163 et seq. Since the entry into force of the bilateral agreements between Switzerland and the European Union on 1 June 2002, public procurement has also been governed by a specific agreement on this issue, which builds on and complements the WTO agreement on public procurement, see T. Cottier! E. Evtimov, "Die sekto riellen Abkommen der Schweiz mit der EG: Anwendung und Rechtsschurz", Zeitscbrift des Berner[uristen uereins 139 (2003), 84 et seq. A good example is the Agreement on Trade Related Intellectual Property Rights , which also contains a sub stantial portion on civil and administrative procedures, for which the EC does not have any internal jurisdiction to regulate. These provisions enlarge responsibilities of the EC in external relations, but leave the matter to Member States domestically, the EC having no jurisdiction to enforce these rules contained in a so-called mixed agreement.

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b. Reallocation of Powers Although it is often perceived as such, the allocation of powers is not a one way street, leading inexorably to the demise of the Nation State and the erosion of sub-national layers: instead of transferring regulatory powers to the fourth and fifth floor of the building, regional and global liberalization and market integration lead to new constitutional prob-lems on the first, second and third floors. They bring about new tasks which, in the past, have not existed to the same extent. Take the example of social and economic integration of foreign residents and their families with a different cultural background. With the globalization of the economy and communications and decreasing costs for transportation, traditional communities have to cope with an increasing number of foreigners. Like most European countries, Switzerland, for instance, has become a destination of immigration, not so much for Europeans, but from cultures overseas.P' Rights and obligations of this segment of the population - amounting to some 20 per cent in Switzerland need to be addressed and better defined in constitutional law. The Constitution should not remain silent with respect to one fifth of the popu lation. It ought to recognize the core functions of integrating foreign nationals and residents, to establish principles, rights and obligations, to provide for programs and set forth the interaction of the national and sub-national responsibilities in the field. The Constitution has to be a factor of integration not only for the nationals, but for all humans living under its umbrella in a given society. c. Shared and Interlocked Powers Globalization and regionalization thus lead to allocation of powers both from 'lower' to 'higher' and from 'higher' to 'lower' levels of governance. Nevertheless, it is the former aspect which is commonly perceived by the citizens, resulting in demands of 'renationalization'i-P

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See T. Straubhaar, "Auswirkungen des freien Personenverkehrs auf die Migration in Westeuropa", Swiss Papers on European Integration, No.4 (1996), 13 et seq.; and D . Chambovey, "L'impact potentiel de la libre circulations des personnes avec les pays de l'Espace economique europeen sur les flux migratoires en Suisse", Swiss Papers on European Integration No.4 (1996),37 et seq. See Dicke et al., see note 20, 27 et seq.

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calls for subsidiarity.F' and efforts to re-establish a more clear-cut division of cornpetences.V" To the extent that many problems cannot be efficiently addressed on the national level, 'renationalization' does not offer a practicable solution. What would be gained in terms of decisionmaking autonomy would be lost in terms of efficiency and substantive, output oriented, legitimacy. Adopting a pattern of allocation which follows the ideal of assuming the responsibilities for separate tasks and walks of life reflects the wish to establish an intangible core of sovereignty safe from any intrusion from outside. Although such desire is understandable from a psychological point of view, the allocation of exclusive competences often fails to provide workable solutions.F" Moreover, we argue that it may conflict with the idea, expressed in the principle of subsidiarity, that governance should be carried out as close to the citizens as possible.P" Some examples may illustrate the difficulties in dividing policy fields into exclusive spheres of competences: most people will intuitively

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The principle of subsidiarity, which plays an important role in the European Union, is increasingly also referred to with a view to limiting competences of the global level. See R. Howse, "Symposium: The Boundaries of the WTO: From Politics to Technocracy - and Back Again: The Fate of the Multilateral Trading Regime", AJIL 96 (2002), 94 et seq. (112); ]. Bourgeois, "Subsidiarity" in the WTO Context from a Legal Perspective", in: M. Bronckers! R. Quick (eds), New Directions in International Economic Law. Essays in Honour ofJohn H. Jackson, 2000,35 et seq.; R.O. Keohane! ].S. Nye Jr., "Introduction", in: ].S. Nye Jr.l J.D. Donahue (eds), Governance in a Globalizing World, 2000, 37 et seq. See the Declaration 23 of the Treaty of Nice (Declaration on the Future of the European Union), which enumerates, among the issues to be addressed, "how to establish and monitor a more precise delimitation of powers between the EU and the Member States, reflecting the principle of subsidiarity". See G. De Burca, "Reappraising Subsidiarity's Significance after Amsterdam", The Jean Monnet Working Paper No.7 (1999), 4 et seq.; id., "Setting Constitutional Limits to EU Competence?", Francisco Lucas Pires Working Papers Series on European Constitutionalism, Working Paper No.2 (2001), 15 et seq. and R. Dehousse, "Reflexions sur la naissance et I'evolution du principe de subsidiarite", in: F. Delperee (ed.), Le principe de subsidiarite, 2002,361 et seq. (364 et seq.), See also N. MacCormick, "A Comment on the Governance Paper", The Jean Monnet Working Paper No.6 (2001), 172; Lerquin-De Vischer, "Existe-t-il un principe de subsidiarite", in: F. Delperee (ed.), Le principe de subsidiarit«, 2002, 21 et seq.

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agree that cultural matters should not be governed on the European but on the national or local level, whereas market liberalization requires concerted action on the supra- or international level. The free movement of goods and services, however, will necessarily touch upon cultural issues, such as film, broadcasting, music, the import and export of art objects. In contrast, people will generally view environmental protection as a global concern. Whereas it is true that problems such as global warming cannot be efficiently resolved without international cooperation, other problems pertaining to the protection of the environment, such as urban planning, need in turn to be addressed on
Dehousse, seenote 225, 364, translated by the authors.

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d. Substantive Remedies Substantive remedies mainly rely on the principle of subsidiarity to act as a corrective device against centralizing tendencies of 'higher' levels of governance and the correlated erosion of national and local competences, In general terms, the principle of subsidiarity implies that a certain issue should only be governed on a 'higher' level of governance if it cannot be appropriately addressed on a 'lower' level. As is frequently pointed out, the criterion of 'app ro priateness' is itself a fluid concept which can be defined in different terms. 228 Should, for instance, the 'higher' level of governance address an issue only if it cannot be resolved at all on the lower level or as soon as a more efficient solution may be obtained on the 'higher' leve1?229 The first approach focuses mainly on process, i.e. the concern to ensure adequate participation of the people affected by the decision. It takes into account that citizens identify more strongly with 'lower' than with ' higher ' levels of governance.P? The second approach emphasizes the outcome, stressing the capacity of a particular level of governance to effectively deal with a certain issue. 231 Similarly to the principle of proportionality, the principle of subsidiarity thus requires balancing different interests. This implies, in our view, that both aspects - process and outcome - should be taken into account. 232 Instead of attributing a policy field to one level of governance, the principle of subsidiarity will in many cases call for regulatory powers being spread over different levels of governance. Whereas it may be necessary for ' higher' levels to set some common standards in a policy field, by enacting framework regulations (Rahmengesetze),233 or opting for some 'softer' instruments, such as recommendations, further elaboration should and can often be left to the 228 See for instance De Biirca, "Reappraising Subsidiarity's Significance ", see note 225, 9.

229 See A. Dubach, "Integration und Subsidiaritat", Swiss Papers on European Integration No .8 (1996), 1 et seq. (18).

230 De Biirca, see note 225, 12. 231 For the distinction of 'process' and 'out come', see De Biirca, "Reappraising Subsidiarity's Significance ", see note 225, 4. For a definition of the subsidiarity principle taking into account both the democratic principle of governance as close to the citizens as possible and efficiency, see MacCormick, see note 226, 172: "governmental tasks should be carried out at a level as close to the citizens affected as is consistent with equity and with efficiency in the pursuit of common goods." 233 See Cottier, see note 156,88. 232

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'lower' levels of governance. As the experience of the European Community has shown, a flood of detailed regulations delegitimizes European governance. Anecdotes frequently related by sceptical European Union citizens mock the bureaucratic European Community regulating issues of such great importance as the labelling of shoes.P" Limiting the action of 'higher' levels of governance mainly to framework regulations implies that an issue can rarely be attributed to one level of governance alone 235 and that we are "fated to live with multiple levels of government".236 Many, if not most policy fields, need to be shared between the second, third, fourth, and increasingly also the fifth floor of the constitutional building, which makes attempts to identify exclusive spheres of jurisdiction an ineffective tool of power allocation. A more flexible solution, consisting for example in listing the policy fields which should be predominantly exercised on a certain level of governance.P? without categorically excluding the intervention of other levels, would combine the advantages of transparency and a necessary amount of flexibility. Such an approach will however only be politically acceptable if it is accompanied by effective procedural safeguards. e. Procedural Remedies

Procedural remedies to compensate for the loss of powers due to the internationalization of law-making consist in reinforcing both direct 238 and indirect-'? participatory rights of 'lower' levels of governance in the decision-making processes on 'higher' levels. The relationship between different levels is thus revealed by the notions of symbiosis and consociation, rather than strict separation of regulatory domains and tasks. 240 The more lower levels of governance have a say in the decisions taken 234 The example of shoe labelling was mentioned in the first report of the Commission on subsidiarity as an example in which EC legislation was abandoned, d. Dehousse, see note 225, 363. 235 See De Biirca, "ReappraisingSubsidiarity'sSignificance", see note 225, 4. 236 MacCormick, see note 226, 172. 237 Dehousse, see note 225, 365. 238 By direct participation, we refer for example to the Council of Ministers, which enables the Member States to take part in the law-making procedure on the EC level. 239 By indirect participation, we mean for example procedures allowing subnational entities to influence the position national authorities will defend on the regional and international level. 240 P. Taylor, The European Union in the 19905,1996,181.

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on 'higher' levels, the less important clear Cut allocations of powers are. The rising popularity of the principle of subsidiarity in the European Community is a good example in point: it was only with the advent of majority ruling in the Council and the increasing impact of the European Parliament and the correlated diminished influence of the Member States in the decision-making procedures on the regional level that the idea of subsidiarity arose and then became a household namc.241 Job allocation therefore is inherently linked to decisional processes within the respective constitutional level, and it is here, in our view, that remedies should be sought in the first place. Procedural solutions should not be limited to compensating the lack of exclusive jurisdiction to prescribe by appropriate representation on higher echelons of the constitutional order. They should also entail the duty of law and decision-making institutions to consult with national and regional institutions before initiating new legislative acts and to justify why the envisaged action cannot be appropriately dealt with by a 'lower'level of governance. 242 As the experience of most federal states and the European Union has shown, constitutional courts, or the European Court of Justice, respectively, often uphold centripetal tendencies of the legislative and executive branch based on a teleological interpretation of federal or European Community law.243 Effective po241 242

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Cottier, see note 156, 88 et seq.; Dchousse, see note 225, 362. See Bausili, see note 105, 8; De Biirca, "Reappraising Subsidiarity's Significance", see note 225,33 et seq. Sec Weiler! Haltern, see note 108, 443; So far, the ECJ annulled acts of Community institutions for breach of the principle of proportionality or legality, but never for violation of the principle of subsidiarity, d. Bausili, see note 105, 10, footnote 24. The teleological interpretation of EC law by the ECJ, expressed in the 'effet utile' doctrine, has, as pointed out above, met with resistance from national constitutional courts. See on this subject the Maastricht decision by the German Constitutional Court, see note 105. On the global level, in the framework of the WTO, the concern of the Member States to prevent a dynamic interpretation of WTO law by the panels resulted in the adoption of article 3 § 2 of the Dispute Settlement Understanding (DSU). This provision reads as follows: "The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recomm endations and rulings of the DSB cannot add to or

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lieing of boundary disputes may thus require that a different tribunal, consisting of representatives of both levels of governance affected by the controversy would settle such disputes.P'" On the European Community level, representatives of the regions or cantons should also be granted standing before such a tribunal, so as to avoid national governments eroding the internal division of competences by legislating a certain issue on the Community level.245

6. The Role of the Judiciary Twenty first century Constitutionalism will also allow developing more coherent views on the role of the judicial branch in international economic law. The current situation is marked by a dichotomy between domestic review and international review. The current paradoxes may be assuaged:246 while international judges today in the WTO tend to apply a relatively intrusive standard of review, scrutinizing de novo national legislation or adm inistrative action for compliance with WTO law, the review of their colleagues on regional or national levels is characterized by relative restraint, the y often limit judicial review to the extent that all decisions not considered capricious and arbitra ry will escape judicial protection. Int ernational review reflects the functionalist tradition of GATT whos e focus is on trade liberalization, whereas the attitude of the domestic courts is marked by the traditional perception of constitutionalism being limited to the domestic sphere: foreign relations, including external economic relations, are still consid ered the prerogative of an unrestrained executive branch.P? This paradox cannot be overcome on the basis of current precepts of administrative and inter-

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diminish the rights and obligations provided in the covered agreements". (emphasis added). The same obligation is also laid down in art. 19 § 2 DSU. Such proposals have been made by Weiler! Haltern, see note 108, 447; MacCormick, see note 226, 181; the need for external contro l is also stressed by Bausili, see note 105,5 et seq. MacCormick, see note 226, 181; Bausili, see note 105,6. The following section is drawn on T. Cottier! M. Oe sch, "The Paradox of Judicial Review in International Trade Regulation: Toward s a Comprehensive Framework", in: T. Cottier! P.c. Mavro idis (eds), P. Blatter (associated editor), The Role of the Judge in International Trade Regulation: Experience and Lessonsf or the WTO, The World Trade Forum Vol. 4 (fort hcoming). See under II. 1.

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national law looked upon as belonging to very different walks of life and systems. More coherent standards of review and a more appropriate role of the judiciary can only be created if we regard all levels as forming part of one system operating under the idea of constitutionalism: national courts would generally be required to adopt a stricter standard of review on the basis that the principle of separation of powers and the rule of law apply both to domestic and international law alike. WTO panels' attitude would in turn need to shift from a functionalist to a constitutional approach, which would allow for a more nuanced balancing between market access rights and other legitimate policy concerns. We suggest that standards of review should be determined on all levels based on the criteria of justiciability, i.e. the question as to whether a court is suitable to decide a particular issue, or whether the matter should be left to the political process. Again, there will be differences, as courts enjoy different roles and positions in different constitutional systems. These differences can be taken into account, as the matter of justiciability cannot be isolated from the constitutional situation of a court in a given system . But it will allow an assessment of the position of the court based on common criteria and an identification of minimal standards of judicial review, which the higher level of governance will need to apply in order to fulfil its role of providing checks and balances and defend the rights of those who are not represented in a particular polity.

"\T. Conclusion The attempt to sketch a doctrine of 21st century Constitutionalism roots in practical problems encountered in constitutional, regional and international law in coping with the challenges of regionalization and globalization. It is not an effort to please theory, but to assist in developing tools which allow legislators, executive and judicial branches of government to cope with the complex interaction of different regulatory issues. We do not believe that current disputes relating to the concept of
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structure the interaction of different layers of governance in a fruitful manner. Globalization and regionalization have resulted in the transfer of many regulatory issues from the national to the regional and global level. Due to this process of de-nationalization, new levels of governance have emerged on the regional and global level which need to be interfaced with the national and subnational levels: defining the relationship and interaction between the different levels of governance is an important task that modern constitutionalism has to achieve. The different levels of governance represent themselves, or consist of, more or less constitutionalized regimes which are not static and can evolve along with the regulatory tasks ascribed to them. The more complex, the more intrusive a level of governance is, the more it will be necessary to develop its constitutional qualities. To reflect and critically assess this reality, we have supported a graduated concept of constitutionalism which puts more emphasis on process and interaction than on strict conceptual boundaries and momentous events of constitutionmaking, focusing on how the con stitutional functions can be secured, considering the different levels of governan ce as forming part of an overall constitutional system. For this purpose, we have suggested, as a framework of analysis, taking recourse to a multi-storey house, which needs to be coordinated in a practical way. Indeed , issues like allocation of powers and the definition of coherent standa rds of review, which we have addressed in this paper, necessarily imply an interpla y of different levels and cannot be solved by focu sing on one layer in a isolated manner. With regard to the relationship between the different levels of governance, we have argued that the supremacy of ' higher' levels is necessary for the sake of overall coherence, but not in absolute terms. Essential guarantees, to be found on any of these layers, may prevail to the extent that they prote ct cor e values and rights of individuals and mankind. It is thus a relation of mutual communication, not subordination, which characterizes the prospects of 21st century Constitutionalism.

Focus: ICC and International Criminal Law

The International Criminal Court - A Brief Introduction Christiane E. Philipp I. II. III.

Foreword The Road to Rome The Discussion at Rome and its Outcome

I. Foreword At a United Nations Conference in Rome, Italy, held from 15 June to 17 July 1998 governments overwhelmingly approved a Statute to establish a permanent International Criminal Court (ICC).l On 1 April 2002 the so-called Rome Statute received more than the required 60 ratifications and entered into force on 1 July 2002.2 Located in The Hague, Netherlands, the Court consists of 18 internationally respected judges' elected for a three to nine year term, a team

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120 nations voted in favour, 7 against and 21 abstained. No official record of how states voted exists as no recorded voting was requested. Text of the Rome Statute, Doc. A/CONF.183/13 Vol. I. Reprinted in this Volume, see Annex. Senegal became the first State party to ratify the Rome Statute. As of August 2003 there are 91 countries which had ratified the Statute. Elections were held from 3-7 February 2003. According to article 36 para. 8 (a) (iii) of the Statute there has to be a fair representation of female and male judges. The 18 candidates are the following - (term of office in brackets); R. Blattmann, Bolivia (6); M. Clark, Ireland (9); F. Diarra, Mali (9); A. Fulford, United Kingdom (9); P. Hudson, Trinidad and Tobago (9); C. Jorda, France (6); H.P. Kaul, Germany (3); P. Kirsch, Canada (6); E. Kou -

A. von Bogdandy and R. Wolfrum (eds.). Max Planck Yearbook of United Nations Law, Volume 7, 2003, 331-339 . © 2003 Koninklijke Brill N. V. Printed in the Netherlands.

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of investigators and a Prosecutor. It will not be part of the United Nations. A building has been provided by the Netherlands, and in July 2002 an Advance Team begun making practical arrangements for the Court as well as dealing with operational issues. The ICC will be capable of investigating and trying individuals accused of the most serious violations of international humanitarian and human rights law, according to article 5 of the Statute, war crimes, crimes against humanity, the crime of genocide, and the crime of aggression. While the crime of genocide, crimes against humanity and war crimes have been defined in arts 6-8 of the Statute, the Statute does so far not contain a definition of the crime of aggression." The ICC will be accountable to the countries that ratify the Statute. Countries that ratify the Statute agree to prosecute individuals accused of such crimes under their own laws, or to surrender them to the Court for trial. Its jurisdiction is not situation specific, unlike the Tribunals for Rwanda and Yugoslavia, and is not retroactive.

II. The Road to Rome The road to Rome was a long and often contentious one. The idea of an international criminal court predates World War I, when one of the founders of the International Committee of the Red Cross proposed a permanent court in response to the crimes of the Franco-Prussian war. After World War I the Treaty of Peace Between the Allied and Associated Powers and Germany, concluded at Versailles in 1919, envisaged in its article 227 an ad hoc international criminal tribunal to prosecute the German Kaiser for initiating the war.5 Arts 228 and 229 of the

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rula, Finland (3); A. Kuenyehia, Ghana (3); E. Odio Benito, Costa Rica (9); G. Pikis, Cyprus (6); N . Pillay, South Africa (6); M. Politi, Italy (6); T. N. Slade, Samoa (3); S. Song, Republic of Korea (3); S. Steiner, Brazil (9); A. Usacka, Latvia (3). The official inauguration took place on 11 March 2003. Immediately after the judges were sworn in, they conferred in what was their first private meeting as a Court, and elected P. Kirsch as their President, and two vice presidents. L.M. Ocampo of Argentina has been elected to be the chief Prosecutor in April 2003. See in this respect article 5 para. 2 of the Statute. Article 227 of the Treaty of Versailles reads: Para. 1 - "The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and

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Treaty of Versailles also provided for the prosecution of German military personnel, accused of violating the laws and customs of war, before Allied Military Tribunals or before the Military Courts of any of the Allies or Associated Powers.s However, arts 227 and 228/229 were never implemented.? Whether the Allies were simply not ready to prosecute a Head of State or whether the wording of article 227, which created in fact a new international crime." was not precise enough, will not be resolved. As far as the implementation of arts 228 and 229 of the Treaty of Versailles is concerned the Allies had in 1921 already requested Germany to prosecute a limited number of war criminals before the Reichsgericht in Leipzig instead of establishing an Allied Military Tribunal. The proposed prosecution of Turkish officials and other individuals for the large-scale killing of Armenians in Turkey in 1915 was also overlooked. The basis for such prosecutions, the Treaty of Sevres of 1920, was never ratified? and the Treaty of Lausanne, the ultimate peace treaty with Turkey, did not provide for the prosecution of the atrocities committed against the Armenians. to

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the sanctity of treaties ." Para. 2 - "A special Tribunal will be constituted to try the accused, ... " Arts 228 and 229 of the Treaty of Versailles read: Article 228 para . 1 - "The German Government recognises the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war .... " Article 229 para. 1 - "Persons guilty of criminal acts against the nationals of one of the Allied or Associated Powers will be brought before the military tribunals of that Power." The Kaiser sought refuge in the Netherlands and the Allies did not formally request his extradition. Article 227 does not refer to any known international crime but seems to refer to the crime of aggression asa political crime. During a speech in 1939 Hitler is reported to have said: "Who after all is today speaking about the destruction of the Armenians?", cf. M. Cherif Bassiouni, "From Versailles to Rwanda in Seventy-Five Years: The Need to establish a Permanent International Criminal Court", in: P. Ungari/ M.P. Pietrosanti Malintoppi (eds), Verso un Tribunale Permanente Internazionale sui Crimini contro L'umanita. Precedenti Storici e Prospettive di Istituzione, 1996, 135 et seq. Bassiouni chaired the Committee of the Whole and the Drafting Committee in the Rome conference, see below. L. Weber, "Lausanne Treaty (1923)", in: R. Bernhardt (ed.), EPIL 3 (1997), 147 et seq.

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It was only after the end of World War II and the establishment of the Nuremberg and Tokyo tribunals, which shall not be dealt with here any further, that serious efforts began to establish a permanent body,'! Between 1948 and 1957 in particular the ILC undertook to elaborate a statute for an international criminal court.P but opposition from powerful states on both sides of the Cold War stymied the efforts. And it was clear that the Cold War would be an obstacle to the creation of a permanent court. The only remarkable developments in the field of the protection of Human Rights as such, after World War II until the early 1990s, were the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide,'! which calls for criminals to be tried "by such international penal tribunal as may have jurisdictiorr'l.!" the Universal Declaration of Human Rights,15 with its detailed catalogue of human rights and fundamental freedoms, the definition of Aggression by the General Assembly of the United Nations, 16 as well as the adoption of the two Covenants.' ? The end of the Cold War changed things dramatically. For the first time it allowed discussions on the merits without any ideological interference and this was badly needed since the end of the Cold War unleashed ethnic tensions, in particular in central and eastern Europe, that resulted in an increase in the type of crimes that might be adjudicated by an international court. In 1989, mainly in order to prosecute the crime of international drug trafficking, President Robinson of Trinidad and Tobago resurrected the proposal for an International Criminal Court and this time such a proposal met with interest within the inter-

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For elaboration concerning the time after World War II, see Bassiouni, see note 9, 143 et seq. Cf. United Nations (ed.), The Work of the International Law Commission, 5th edition, 1996, 29-30. A/RES1260 A (III) of 9 December 1948. Article VI of the Convention. A/RES/217 A (III) of 10 December 1948. NRES/3314 (XXIX) of 14 December 1974. Here one has to note that the General Assembly always wanted to deal first with the Report of the Special Committee on the Question of Defining Aggression and the ILC's Draft Code of Offences. Therefore the already 1953 submitted Draft Statute for an ICC elaborated by a Special Committee of the General Assembly was as well as the already 1954 finished Draft Code of Offences not tabled until the final definition of aggression was agreed on. A/RES/2200 A (XXI) of 16 December 1966.

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national communiry.P This request was considered by the Sixth Committee (Legal) of the General Assembly of the United Nations, and the ILC was requested to consider the issue "to address the question of establishing an international criminal court ... with jurisdiction ... , including persons engaged in illicit trafficking in narcotic drugs ..." and to report later on to the General Assembly.'? The conflicts in Bosnia-Herzegovina, Croatia and Rwanda with their human rights violations demanded an immediate response from the international community and led to the establishment of the two ad hoc Tribunals.P But the establishment of a permanent court rather than maintaining an ad hoc approach to various conflicts was favoured and expressed the objective of many states which preferred the creation of a permanent court in order to respond to heinous crimes more effectively and without Security Council control. All that caused the General Assembly to broaden the scope of its above mentioned original request to the ILC and in 1992 the ILC presented a preliminary approach, produced a comprehensive text in 1993 and a Draft statute in 1994.21 The Sixth Committee of the General Assembly thereupon established an ad hoc Commitree-- in 1994 to review the ILC Draft and in 1995 a Preparatory Committee (PrepCom) for the Establishment of an International Criminal Court was set Up.23 The PrepCom's Report was submitted to the General Assembly in 1996. It contained the recommendation that the General Assembly extend the Committee's term with a specific mandate to negotiate proposals in order to produce a consolidated text of a Statute and annexed instruments by 1998. Between 1995 and 1998 one of the major tasks of the draft was the resolution of the big question of complemenrarity.-" an issue fundamental for the creation of the court. Apart from that, hundreds of proposals from the delegations were tabled and complicated the elaboration of the statute. But unexpectedly the PrepCom fulfilled its task in April 1998 with

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Doc. A/C.6/44/L. 18 of 20 November 1989. A/RES/44/39 of 4 December 1989. International Criminal Tribunal for the Former Yugoslavia-S/RES/808 (1993) of 22 February 1993 and International Criminal Tribunal for Rwanda-S/RES/955 (1994) of 8 November 1994. GAOR 49th Sess., Suppl. No. 10. AlRES/49/53 of 9 December 1994. A/RES/50/46 of 11 December 1995. As to this problem see the contribution of M. Benzing in this Volume.

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the transmission of the draft to the Diplomatic Conference, which began its work two month later in Rome, ltaly.25

III. The Discussion at Rome and its Outcome The discussion at Rome was a long and controversial one. In particular the issue of the death penalty proved to be problematic. Finding a compromise to satisfy states where the death penalty exists and those which reject it and/or are constitutionally prohibited from surrendering persons to jurisdictions using the death penalty, proved to be really difficult. The inclusion of a non-prejudice provision in article 80 of the statute turned out to be the solution. The matter of "forced pregnancy" in the definition of crimes was another contentious point. The perception that the inclusion of such a crime would implicitly create a right to abortion stood against the strong opposition in favour of such a right. 26 Apart from that, many delegations wanted more crimes covered by the Statute than the three core crimes of genocide, crimes against humanity and war crimes. The coverage of the crime of aggression or the so called treaty crimes, like terrorism and the illicit trafficking in drugs was heavily discussed but finally no consensus could be reached. The latter two were therefore not included in the Statute ." and for the crime of aggression a special solution was found. 28 The provisions relating to the jurisdiction of the Court and the interplay between the Security Council, the States parties 25

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160 countries participated in the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. The draft was filled with some 1.400 square brackets - that were points of disagreement in connection with the proposed provisions - d. Doc. A/CONF.18312/Add. 1 of 14 April 1998. As to the draft as such and the proposed crimes see in detail, A. Zimmermann, "The Creation of a Permanent International Criminal Court", Max Planck UNYB 2 (1998), 169 et seq. "Forced Pregnancy" was included both as a crime against humanity (article 7 para . 1 (g» and as a war crime (article 8 para. 2 (b)(xxii», and a definition was added to the Statute, see in this respect Zimmermann, see above, 183. But Doc. A/CONF.183/10 of 17 July 1998, Annex I, Resolution E referred to the possibility to include them later on. The issue of weapons of mass destruction where no consensus could be reached was deferred completely later on . See in this respect the article by K. Dorrnann in this Volume. See below.

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and the Prosecutor in order to refer situations to the court also proved to be a really difficult subject. No agreement existed in respect of this fundamental points as the conference came to its end. The decision to present a package deal then was sponsored by the fear that deferring the conclusion of the statute would end for a long time all hope for the establishment of an international criminal court. The package deal presented was aimed to attract as many states as possible otherwise, clearly, there would be no widespread support for the court in any respect in order to make it work effectively.I? The crime of aggression e.g. was included in the list of crimes as it was found necessary to include it, but it was specified: "The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime .... ".30 Completely new was a provision which provided for an "opt out" mechanism. States were granted the possibility according to article 124 to declare "for a period of seven years after the entry into force of this Statute for the State concerned" not to accept the jurisdiction of the Court with respect to war crimes committed by their nationals or on their territory. 310ne hoped that such a period would make states feel more comfortable as they could become a party to the Statute but would be in the position of observing for some time how the Court would deal with war crimes as such. The question of the jurisdiction of the Court and the above mentioned interplay was dealt with in article 16 and article 17 para. 1 (a) and (b). Finally two things must be mentioned. Reservations to the Statute were not permitted'? and the Statute contains an article that provides for a Review Conference seven years after the entry into force of the Statute to consider any amendments to the Starute.P

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Concerning e.g. the definition of aggression, see P. Kirsch/ J.T. Holmes, "The Birth of the International Criminal Court: The 1998 Rome Conference", CYIL 36 (1998), 3 et seq. (30). Article 5 para. 2 of the Statute. See here the contribution of M. Wagner in this Volume, under II. 4. c. In particular footnote 459. Cf. article 120. Cf. article 123 of the Statute.

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On 17 July 1998 the Statute was approved.r' And several key documents were drafted later on by the established Preparatory Commission. These documents include the Rules of Procedure and Evidence'>, the Elements of Crimes 36, the Relationship Agreement between the Court and the United Nations, the Basic Principles Governing a Headquarters Agreement to be Negotiated between the Court and the Host Country, the Financial Regulations and Rules, the Agreement on the Privileges and Immunities of the Court and the Budget for the first financial year as well as the Rules of Procedure for the Assembly of States Parties (ASP). According to article 112 which establishes the ASP, it consists of one representative from each State party and functions as the administrative body of the ICC. 37 During a special ceremony at the United Nations on 1 April 2002, the Statute finally received more than the 60 ratifications necessary and could enter into force on 1 July 2002. The nomination period for the judges and the prosecutor of the Court was officially opened on 9 September 2002.38 Only countries that had deposited their instrument of ratification of the Rome Statute at the United Nations by that date were eligible to nominate an official for these positions. A subject of concern is article 98 of the Statute. The United States'? is currently using this provision to seek immunity from the ICC prosecution for its personnel by entering into bilateral agreements with states that prohibit the respecting state to extradite United States citizens to 34

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See note 1. PCNICC/2000/1/Add.l, Report of the Preparatory Commission for the ICC-Addendum, Part I-Finalized draft text of the Rules of Procedure and Evidence of 2 November 2000. PCNICC/2000/1/Add.2, Report of the Preparatory Commission for the ICC-Addendum, Part Il-Finalized draft text of the Elements of Crimes of 2 November 2000. Sec in this respect the contribution of K. Dorrnann in this Volume. There exists a non exhaustive list of instruments to be developed by the Preparatory Commission, d. Resolution F in the Annex to the Final Act of the Conference, Doc. A/CONF.183/10 of 17July 1998. As to the election of the judges see note 3. The United States signed the Treaty on 31 December 2000. But on 6 May 2002 in a letter sent to the United Nations Secretary-General, the Bush administration formally declared its intention not to ratify the Statute and renounced any legal obligations arising from its signature of the Treaty. A United Nations spokesman said "the effect of the notification is a matter for parties to the Statute to decide."

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the ICC. There are more than 50 countries that have signed these so called Impunity Agreements so far.40 As some of the countries require parliamentary approval of the agreements, there is still a possibility that they will not be binding. Finally one has to note that the Statute altogether is a balanced instrument. It is hoped that it will be strong enough to let the Court function effectively with strong international support. In any event the establishment of the Court is a historical achievement, which definitely will not stop further conflicts and atrocities but for the perpetrators of the crimes described in the Statute it will be more difficult from now on to escape responsibility as there is a respective body and the law waiting to be used in order to achieve justice. W. Gaddis words - "Justice? You get justice in the next world, in this world you have the law", will not sound as pessimistic any longer.f

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As of August 2003 - Uzbekistan; Mauritania; the Dominican Republic; East Timor; Israel; the Marshall Islands; Palau; Romania; Tajikistan; Honduras; Afghanistan; Micronesia; Gambia; El Salvador; Sri Lanka; India; Nepal; Djibouti; Tuvalu; Bahrain; Georgia; Azerb aijan; Nauru; Rwanda; Democratic Republic of the Congo; Tonga; Sierra Leone; Gabon; Ghana; Madagascar; Maldives; Albania; Bhutan; Philippines; Bosnia-Herzegovina; Bolivia; Egypt, Thailand; Nicaragua; Uganda; Mongolia; Tunisia; Seychelles; Togo; Mauritius; Panama; Cambodia; Macedonia; Botswana; Senegal; Mo zambique; Zambia; Ivory Coast. Not all of them are signatories to the Rome Statute. Concerning the question of immunity, but in a different context, d. also the United States led text of S/RES/1422 (2002) of 12 July 2002, which requires the ICC, initially for a period of one year, not to commence or proc eed with the investigation or prosecution of any case concerning officials or personnel of United Nations operations from a state not party to the Rome Statute. This Resolution was prolonged by S/RES/1487 (2003) of 12 June 2003. Even S/RES/1502 (2003) of 26 August 2003, dealing with the protection of UN workers in conflict zones, does not mention the ICC explicitly, due to US pressure. W. Gaddis, A Frolic ofhis own, 1994.

War Crimes under the Rome Statute of the International Criminal Court, with a Special Focus on the Negotiations on the Elements of Crimes Knut Diirmann"

I. II. III.

War Crimes under the Rome Statute Background and the Legal Status of the Elements of Crimes Elements of War Crimes 1. General Introduction adopted by the PrepCom 2. Grave Breaches of the 1949 Geneva Conventions (article 8 (2) (a) ICC Statute) a. Elements Common to all Crimes under article 8 (2) (a) of the ICC Statute aa. Elements Describing the Context bb. The Acts or Omissions are Committed against Protected Persons

The article reflects the views of the author and not necessarily those of the ICRe. This article is based in some parts on previous publications by the same author: "War Crimes in the Elements of Crimes", in: H. Fischer/ C. Kre6/ S. R. Liider (eds), International and National Prosecution of Crimes Under International Law: Current Developments, 2001, 95 et seq.; "Preparatory Commission for the International Criminal Court: The Elements of War Crimes - Grave breaches and violations of article 3 common to the Geneva Conventions of 12 August 1949", Int'l Rev. of the R ed Cross 82 (2000), 771 et seq., and "Preparatory Commission for the International Criminal Court: The Elements of War Crimes - Part II: Other serious violations of the laws and customs applicable in international and noninternational armed conflicts ", Int'l Rev. of the Red Cross 83 (2001),461 et seq. A. von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook of United Nati ons Law, Volume 7, 2003, 341-407 . © 2003 Koninklijke Brill N. V Printed in the Netherlands.

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Max Planck UNYB 7 (2003) Th e Acts or Omissions are Committed against Protected Prop ert y b. Elements Specific to the Crimes under art icle 8 (2) (a) of the ICC Statute 3. War Crimes under arti cle 8 (2) (b) ICC Statute a. Elements Common to all Crimes und er article 8 (2) (b) of the ICC Statute b. Elements Specific to the Crimes under art icle 8 (2) (b) of the ICC Statute 4. War Crimes und er article 8 (2) (c) ICC Statute a. Elements Common to all Crimes under article 8 (2) (c) of the ICC Statute b. Elements Specific to the Crimes under article 8 (2) (c) of the ICC Statute 5. War Crimes under article 8 (2) (e) ICC Statute a. Elements Common to all Crimes under article 8 (2) (e) of the ICC Statute b. Specific Elements to the Crimes under article 8 (2) (e) of the ICC Statute Conclusions on th e Work Related to Elements of War Crimes Addendum: The U se of the Elements of Crimes at the N ational Level cc.

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In accordance with the Rome Statute the newly created International Criminal Court (ICC) will have jurisdiction over the crime of aggression, the crime of genocide, crimes against humanity and war crimes (article 5). While the crime of genocide, crimes against humanity and war crimes have been explicitly defined in arts 6-8 of the Statute, it so far does not contain a definition of the crime of aggression. It was decided during the Diplomatic Conference in Rome that the Court will only exercise its jurisdiction over the latter crime once a provision is adopted in accordance with the review procedures in the Rome Statute. Discussions on a definition are still underway at the moment of writing. It is still very hard to foresee whether th is exercise will be successful and if so, when. In any case, a review conference, which could adopt a definition, may only be convened seven years after the entry into force of the Rome Statute. Th is article will only focus on the specifics of war crimes. After a brief discussion of the war crimes definition under article 8 of the Statute (1.), a special emphasis will be put on an analysis of the elements of war crimes as negotiated by a Preparatory Commission and adopted by the Assembly of States Parties (lI.-IV.).

I. War Crimes under the Rome Statute The Rome Statute distinguishes four categories of war crimes: first, grave breaches under the four 1949 Geneva Conventions (GC). The Statute merely repeats the definitions contained in the four Geneva Conventions (arts 50 GC I,1 51 GC II,2 130 GC lIP and 147 GC IV4). Grave breaches are prohibited acts, which are specifically listed in the four Geneva Conventions, and include conduct such as wilful killing, torture, inhuman treatment, hostage taking or extensive destruction and appropriation of property. Grave breaches must be committed in the context of an international armed conflict, and

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Convention (I) for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, Geneva 12 August 1949. Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva 12 August 1949. Convention (III) relative to the Treatment of Prisoners of War, Geneva 12 August 1949. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva 12 August 1949.

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against persons or property protected under the Geneva Conventions. Grave breaches are particularly serious violations of international humanitarian law. Independently of the Rome Statute, in accordance with the Geneva Conventions states are obliged to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering the commission of, any of these grave breaches, to search for such persons and to bring them, regardless of their nationality, before their own courts. Alternatively, a state may, if it prefers, hand such persons over for trial to another High Contracting Party. The second category of war crimes covers other serious violations of the laws and customs applicable in international armed conflicts. These crimes are derived from various sources. They reproduce to a large extent rules from: the 1907 Hague Convention respecting the Laws and Customs of War on Land, the 1977 Protocol I Additional to the Geneva Conventions.t the 1899 Hague Declaration (IV, 3) concerning Expanding Bullets, and the 1925 so called Geneva Gas Protocol. 6 The third category introduces serious violations of article 3 common to the Geneva Conventions which applies to non-international armed conflicts. Common article 3 includes a prohibition of acts such as violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture. The last category covers other serious violations of the laws and customs applicable in armed conflicts not of an international character. These crimes are derived from various sources, including the 1907 Hague Regulations and Additional Protocol II to the Geneva Conven-

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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva 8 June 1977. Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva 17 June 1925.

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tions .? Most of these crimes mirror those crimes applicable in international armed conflicts as "other serious violations". Despite the fact that the Rome Statute contains an impressive list of war crimes, not all of the serious violations of international humanitarian law have been included in the definition of war crimes. The selection of war crimes was based on two different, but closely linked, considerations: first, the norm should be part of customary internationallaw, given that not all treaties of international humanitarian law defining war crimes are universally accepted, and second, the violation of the norm would give rise to individual criminal responsibility under customary international law.8 Given that several delegations contested the customary law status of some provisions of Additional Protocol I, certain serious violations were omitted and other prohibitions such as the prohibition on disproportionate attacks and attacks against the natural environment (see article 8 (2) (a)/(b) (iv) ICC Statute) were included only, after a modification of the treaty language. Regrettably, some war crimes have been excluded from the list adopted in Rome. To name just a few: no provisions are to be found on the unjustifiable delay in the repatriation of prisoners of war or of civilians, or on the launching of an indiscriminate attack affecting the civilian population or civilian objects (unless one equates such an attack with an attack against the civilian population as such, which is a war crime under the Statute").

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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva 8 June 1977. H. von Hebel/ D. Robinson, "Crimes within the jurisdiction of the Court", in: R. S. Lee (ed.), The International Criminal Court. The Making of the Rome Statute, 1999, 104. This seems to be the approach of the ICJ, when it equated the use of indiscriminate weapons with a deliberate attack on civilians in stating:

"The cardinalprinciplescontained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets."

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So far, the Statute only covers few war crimes relating to the use of specific weapons. The small number of provisions dealing with the use of particularly cruel weapons is a consequence of the difficulties encountered in reaching consensus, largely due to the desire of some states to include nuclear weapons in the list of prohibited weapons, and the resistance of others to such an inclusion. Excluding nuclear weapons while listing other weapons of mass destruction, namely chemical and biological weapons, was as unacceptable to a number of states. They feared that prohibiting some weapons of mass destruction while remaining silent on nuclear weapons would give tacit approval to the legality of nuclear weapons. The only way out was, therefore, to exclude all weapons of mass destruction from the Statute for the time being. The weapons provisions in the Statute are therefore restricted to those weapons that are most clearly prohibited under international humanitarian law.l? Those restrictions now appear in paras (xvii) to (xix): Employing poison or poisoned weapons; Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions, commonly referred to as dum-dum bullets. In this context, it should be kept in mind that the prohibition on the employment of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, stems primarily from the 1925 Geneva Gas Protocol, which has constantly and consistently been interpreted as proscribing the use of chemical weapons. Despite the fact that an explicit reference to chemical weapons has been deleted, the interpretation of the Rome Statute cannot be construed in a way so as to exclude the use of chemical weapons from this particular crime. At the same time as an explicit reference to nuclear, biological and chemical weapons was dropped, the use of blinding laser weapons which is prohibited under the conditions set out in the 1995 Protocol IV on Blinding Laser Weapons to the 1980 Convention on Certain

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Conventional Weapons ll - and the use of anti-personnel mines which is prohibited under the 1997 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on their Destruction - were equally excluded from the Statute. The unresolved debate on these weapons was deferred for discussions at a review conference, and para. (xx) of article 8 of the Rome Statute allows for future expansion of the list of prohibited weapons through an amendment procedure. It is hoped that the list of prohibited weapons will be extended at the first review conference. It must be emphasised that the Statute contains several war crimes, which cover specific uses of any type of weapon. For example it constitutes a war crime if attacks are intentionally directed against the civilian population as such or individual civilians (article 8 (2) (b) (i) or article 8 (2) (e) (i)). If in such cases anti-personnel mines or biological weapons are used as means of such an attack, this would be a crime under the Statute. The same reasoning would apply if such weapons are used to attack or bombard towns, villages, dwellings or buildings which are undefended and which are not military objectives (see article 8 (2) (b) (v)).

As for war crimes committed in internal armed conflicts the Statute mirrors a large number of war crimes defined for international armed conflicts. However, approximately half of the provisions of article 8 applicable to international armed conflicts were not included in the sections on non-international armed conflicts. The reasons for this are twofold: Some of the provisions are by their very nature not applicable to non-international armed conflicts. With regard to other provisions, several states took the view that these have not yet reached the status of customary international law and should therefore not be included. The latter opinion prevailed in relation to the non-inclusion of provisions on the use of prohibited weapons in internal armed conflicts. This view is particularly regrettable when viewed in light of the determination by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadic case that customary law

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rules prohibiting the use of specific weapons are equally applicable to non-international armed conflicts. Other "gaps" in the war crimes applicable in internal conflicts are that there is for example no provision on the prohibition of intentionally starving the civilian population.l? Nevertheless, it must be emphasised that the major accomplishment of the Rome Conference with regard to war crimes certainly resides in the inclusion of war crimes committed during non-international armed conflicts. Hesitations by some delegations were overcome due to the fact that the Statute for the International Criminal Tribunal for Rwanda included war crimes committed in non-international armed conflict and the ICTY had recognized in its case law the customary nature of individual responsibility for serious violations of international law in such armed conflicts.P The failure to include all serious violations of international humanitarian law in the Rome Statute means, that states must be reminded to respect their obligations under relevant treaties that oblige states to repress such violations, in particular: States Parties to AP I must provide for the repression of those grave breaches in arts 11 and 85 of that Protocol, which are not included in the Rome Statute, States Parties to the amended Mines Protocol," the Ottawa Treaty and the newly adopted Second Protocol to the 1954 Hague Convention on Cultural Properryl'' must implement the provisions relating to the penal repression.

12

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14

15

In that regard the ICTY stated that "what is inhumane and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife", ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, The Prosecutor v. Dusko Tadic, IT-94-1-AR72,para.119. For example ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, The Prosecutor v. Dusko Tadic, IT94-1-AR72, paras 128-136. . Protocol on Prohibitions or Restrictions on the Use of Mines, BoobyTraps and Other Devices as amended on 3 May 1996 (Protocol II to the 1980 Convention as amended on 3 May 1996). Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague 26 March 1999.

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Whenever international treaties or customary international law contain stronger definitions of particular crimes than those in the Statute, these definitions must be incorporated into national law. In the context of war crimes under the ICC Statute, one jurisdictional question merits further attention. The Rome Statute contains a jurisdictional threshold in so far as it stipulates that the Court 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. This formulation constitutes a compromise solution. A few states were in favour of a high threshold, which would give the Court jurisdiction over war crimes "only when committed as a part of a plan or policy or as part of a large-scale commission of such crimes." A clear majority of delegations opposed any threshold provision, but the option adopted as a compromise in the end, which added the words "in particular", was nevertheless considered acceptable. These delegations argued that a safeguard against the exercise of jurisdiction over isolated cases was already contained in the Statute through the principle of complementarity: if isolated war crimes were duly prosecuted by a national court, the ICC would not deal with these crimes. A threshold might, however, have the effect that national courts would not be encouraged to prosecute such isolated cases. In addition, such a threshold would introduce a false distinction between different categories of war crimes - a threshold which cannot be found in any existing legal instrument or under customary international law.16 It must be emphasised that, for example, the killing of a single prisoner of war or one case of rape committed in an occupied territory can be a war crime. Under the compromise found, plan, policy, and scale are not elements or jurisdictional prerequisites for war crimes under the Statute; nevertheless they are factors which may be taken into account by the Prosecutor in determining whether or not to begin investigations concerning an alleged war criminal.

16

The ICTY clearly held "that a crime need not: be part of a policy or practice officially endorsed or tolerated by one of the parties to the conflict, or that the act be in actual furtherance of a policy associated with the conduct of the war", ICTY, Judgement, The Prosecutor v. Tihomir Blaskic, IT-9514-T, paras 69 et seq. (footnotes omitted) with further references.

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II. Background and the Legal Status of the Elements of Crimes During the Rome Diplomatic Conference some states felt that specific elements of crimes elaborating upon each crime under the jurisdiction of the ICC should be drafted. It was argued that an Elements of Crimes (EOC) document was necessary in order to provide greater certainty and clarity concerning the content of each crime. A delegation pro posed a draft that would have made the EOC binding on the judges of the ICC. The majority at Rome, however, was concerned by the prospect of unduly restricting the judicial discretion accorded to the judges, and rejected the suggested binding character. Nevertheless, the idea of EOC was not completely rejected in Rome and article 9 of the Statute reflects the compromise that was reached. It stipulates that the EOC "shall assist the Court in the interpretation and application of articles 6 [genocide], 7 [crimes against humanity] and 8 [war crimes]", thereby clearly indicating that the Elements themselves are to be used as an interpretative aid and are not binding upon the judges.'? The Elements must "be consistent with this Statute". The consistency with the Statute must be determined by the Court. A Preparatory Commission (Prep Com) was mandated to draft a document on the EOC by 30 June 2000. The instrument negotiated by the Prep Com, which was adopted by the Assembly of States parties without further substantive debate during its first session held at UN headquarters from 3 to 10 September 2002, will be discussed in the following sections in relation to war crimes. This overview of the PrepCom negotiations is not intended to be exhaustive.P' and the choice of some specific issues for the purpose of this contribution does not imply that the PrepCom has reached 'perfect' solutions in other sections of the elements. The negotiations of the Working Group on EOC, which started in February 1999, were largely based upon a comprehensive proposal 17

18

See also Message [du Conseil federal Suisse] relatif au Statut de Rome de la Cour penale internationale, ala loi federale sur la cooperation avec la Cour penale internationale ainsi qu'a une revision du droit penal du 15 novembre 2000,458. For a more complete analysis see K. Dorrnann (with contributions by L. Do~wald-Beck and R. Kolb), Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, 2003.

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drafted by the United States,'? joint Swiss/Hungarian and Swiss/Hungarian/Costa Rican proposals-? and other proposals, in particular those presented by the japanese, Spanish and Colombian delegations. The International Committee of the Red Cross (ICRC) prepared a study relating to all war crimes, which was introduced at the request of seven states (Belgium, Costa Rica, Finland, Hungary, Republic of Korea, South Africa and Switzerland). The document, which was submitted in seven parts, presented relevant sources based on extensive research on and analysis of international humanitarian law instruments, the relevant case law of international and national war crimes trials (Leipzig Trials after World War I, post World War II Trials, including the Nuremberg and Tokyo Trials as well as national case law, and decisions from the ad hoc Tribunals for the former Yugoslavia and Rwanda), human rights instruments, and the case law of the UN Human Rights Committee, the European Commission and Court of Human Rights and the InterAmerican Court of Human Rights.U

III. Elements of War Crimes 1. General Introduction adopted by the PrepCom The relationship between the crimes and general principles of criminal law presented the Working Group on Elements of Crimes with a particularly difficult drafting problem. Long discussions on this issue were therefore held during an intersessional meeting organised by the Government of Italy and the International Institute of Higher Studies in Criminal Sciences in Siracusa (Italy), convened in February 2000 especially for this purpose. The results of the Siracusa meeting provided im19

20

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PCNICC/19991DPAI Add.1. PCNICC/1999/DP.5 and Corr.2, PCNICC/1999IWGEC/DP.8, PCNICC/1999/WGECIDP.10, PCNICCI1999/WGECIDP.11, PCNICCI 1999IWGEC/DP.20, PCNICC/1999IWGEC/DP.22, PCNICC/19991 WGEC/DP.37. PCNICC/19991WGECIINF.1 , PCNICC/1999IWGECIINF.2, PCNICC/1999IWGEC/INF.21Add.1, PCNICC/1999IWGEC/INF.21Add.2, PCNICC/1999IWGEC/INF.21Add.3.

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portant guidance for the discussions at the PrepCom.V Several of the questions raised during the intersessional meeting are now addressed in a General Introduction applicable to all crimes.P The main points will be addressed hereafter:

Paragraph 2 of the General Introduction-s explains how article 30 ICC Statute,25 which defines the mental element in general terms ("default rule"), must be applied in the EOC. It indicates the reason why little mention of the accompanying mental element is made in the elements of the various crimes. During the negotiations at the PrepCom the difficulty of adequately reflecting the relationship between article 30 ICC Statute and the definition of the crimes in the EOC document became apparent. The questions of whether the mental element should be defined for every crime, whether article 30 alone was sufficient, or whether the judges should make their own determination were ardently debated. Inter alia due to considerable differences in national legal systems it proved to be difficult to address the mental element of war crimes in a consistent manner. Probably the most difficult question as to the interpretation of article 30 ICC Statute relates to what is meant by "unless otherwise pro22 23 24

25

See report reproduced in PCNICC/2000/WGEC/INF.1 ", In th e following "General Introduction". "2. As stated in article 30, unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. Where no ref erence is made in th e Elements of Crimes to a mental element for any particular conduct, consequen ce or circumstance listed, it is understood that the relevant mental element, i.e., intent, knowledge or both, set out in article 30 applies. Exceptions to the article 30 standard, based on the Statute, including applicable law under its relevant provisions, are indicated below". Article 30 reads as follows: "1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation/to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly".

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vided", i.e. what other legal sources are of relevance in this context. For example, does this formulation mean that article 30 defines the mental element for every crime exclusively unless the Statute itself otherwise provides, even if it is more restrictive than customary international law? Or does it mean that the mental element might also be specifically defined in the EOC? It appears that , in addition to the different standards explicitly set out in the Statute, most, if not all delegations agreed that a deviation from the rule in article 30 may be required by other sources of international law as defined in article 21 of the Statutev" in particular by applicable treaties and established principles of international humanitarian law. In this regard, the case law, in particular that of the ad hoc Tribunals for the former Yugoslavia and Rwanda, may provide valuable interpretative insights. For example, in relation to the mental element applicable to the grave breaches of the four Geneva Conventions of 1949, discussed in more detail below, the Trial Chamber of the ICTY held that: "[A]ccording to the Trial Chamber, the mens rea constituting all the violations of article 2 of the Statute [containing the grave breaches} includes both guilty intent and recklessness which may be likened to serious criminal negligence. " 27 It will be up to the future judges of the ICC to determine how to bring this case law into line with the rule in article 30 ICC Statute. The judges might face a similar problem with the term "wilful", which is used in some of the crimes of article 8, and which has not been repeated in the EOC. The court will have to determine whether, in fact, the standard contained in article 30 and the definit ion of "wilfulness" in the case law of the ad hoc Tribunals coincide. 26

27

"1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law ofarmed conflict; (c) Failing that, general principles of law deriv ed by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that w ould normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards [...I". ICIT, Judgement, The Prosecutor v. Tihomir Blaskic, IT-95-14-T, para. 152.

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The second interpretative problem is related to the notion of "material element". Article 30 provides that material elements of a crime must be committed with intent and knowledge, without however clearly indicating what is meant by "material". The provision itself gives some indications in so far as in paras 2 and 3 it mentions three types of nonmental elements (conduct, consequence and circumstance), which might therefore be considered as material elements in the sense of the Statute. However, article 30 itself does not answer the question whether there exist other elements, for example related to the jurisdiction, which would require no accompanying mental element at all. This explains why there was considerable debate over the nature of some non-mental elements, in particular in relation to one specific element in the war crimes section, namely that describing the context in which a crime must be committed in order to be considered a war crime.28 For many delegations, the third paragraph of the General Introduction was of particular importance. They considered it necessary to emphasise that the actual knowledge or intent of the perpetrator/? can generally be inferred from the circumstances and that the prosecutor will not be required to specifically prove these elements in every case. These delegations feared that otherwise some of the mental elements introduced in the EOC would have created an excessively heavy burden of proof for the prosecutor. Paragraph 430 gives some guidance for the judges on how to handle so-called "value judgements". While the Siracusa Report emphasised that "[tjhe issue was whether a statement was required in the Elements of Crimes clarifying that the Prosecutor is not obliged to prove that the 28

29

30

See below III. 2. a. aa. in more detail. The question of whether the term "accused" should be used, was the subject of intensive discussions in the PrepCom. Until the last session of the PrepCom all Rolling Texts contained this term, despite repeated criticism by several delegations . Basically, they argued that it has specific procedural connotations in the context of the Rules of Procedure and Evidence, therefore it should be avoided. Eventually the term was replaced with "perpetrator". One delegation stated that this choice would conflict with the presumption of innocence. Para. 8 of the General Introduction specifies therefore that "the term "perpetrator" is neutral as to guilt or innocence". The change made during the final reading had no substantive impact. "4. With respect to mental elements associated with elements involving value judgement, such as those using the terms 'inhumane' or 'severe', it is not necessary that the perpetrator personally completed a particular value judgement, unless otherwise indicated".

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accused personally completed the correct normative evaluation, i.e. that the accused considered his acts 'inhumane' or 'sev ere'. There was a general view that this proposition was sufficiently evident and that further elaboration in the Elements of Crimes was not required",3! it was, nevertheless, decided by the PrepCom that clarification was needed in order to ensure that the standard of knowledge required by article 30 ICC Statute does not apply to such elements. On the basis of the clarification in the General Introduction the judges need to determine whether a particular conduct can be held to have been, for example, "inhumane" or "severe". The perpetrator does not need to come to the correct normative conclusion. The prosecutor will therefore only be required to demonstrate that the perpetrator knew that harm would occur in the ordinary course of events as the result of his conduct. Paragraph 6 is one of the most crucial paragraphs of the General Introduction. It states that: "The requirement of 'unlawfulness' found in the Statute or in other parts of international law, in particular international humanitarian law, is generally not specified in the elements ofcrimes." The content is not easy to understand without a closer look at the negotiating history of the EOC. The term "unlawful" does not refer to grounds for excluding criminal responsibility in the sense of the Statute. It was instead intended to act as a "place marker" that refers back to relevant provisions of international humanitarian law. For example, the war crime of deportation (article 8 (2) (a) (vii) ICC Statute) can only occur in situations where article 49 (2) and (3) GC IV, which describe lawful evacuations, are not applicable. The war crime of "destruction and appropriation" in the sense of article 8 (2) (a) (iv) ICC Statute must be read in conjunction with the provisions dealing with different kinds of protected property in the Gc. 32 The term "unlawful" serves grosso modo the same purpose as the terms "in violation of the relevant provisions of this Protocol" and "in violation of the Conventions or the Protocol" in article 85 (3) and (4) of the 1977 AP 1. The ninth paragraph of the General Introduction deals in very general terms with the problem of overlap of crimes. It indicates that a particular conduct may constitute several crimes. This statement was felt very important especially in relation to sexual crimes which are not only specific crimes under article 7 (1) (g), article 8 (2) (b) (xxii) and ar-

31 32

See report reproduced in PCNICCI2000/WGECIINEI *. See below III. 2. b.

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ticle 8 (2) (e) (vi) of the ICC Statute, but may also fulfil the conditions of torture, inhuman treatment or other more general crimes, such as wilfully causing great suffering, or serious injury to body or health. Given that this is not a unique phenomenon for sexual crimes, the PrepCom decided to include this generic clarification.

2. Grave Breaches of the 1949 Geneva Conventions (article 8 (2) (a) ICC Statute) a. Elements Common to all Crimes under article 8 (2) (a) of the ICC Statute War crimes as listed in article 8 (2) (a) of the ICC Statute cover "graue breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the prouisions of the relevant Geneva Convention". In accordance with the case law of the ICTY grave breaches of the GC33 are acts committed in the context of an international armed conflict against persons or property protected under the relevant provisions of the four GC. 34 Two common elements can be derived from this statement: first, the context in which the crimes must be committed and, second, against whom or what the crimes must be committed. They des cribe the subject matter jurisdiction for war crimes under article 8 (2) (a) of the ICC Statute. Consequently these elements and the corresponding mental elements are drafted in the same way for all the crimes in this section. The common elements for all crimes under article 8 (2) (a) read as follows:

Such person or persons/propertyv were/was protected under one or mo re ofthe Geneoa Conventions of 1949. The perpetrator was aware of the factual circumstances that established that protected status. f1Jf2J The conduct took place in the context of and was associated with an international armed conflict. 13J

33 34 35

See arts 50 GC I, 51 GC II, 130 GC III and 147 GC IV. See ICIT, Judgement, The Prosecutor 71. Zejni/ De/a/ic and others, IT-9621-T, para. 201, 76. The protection of property is only relevant in the context of article 8 (2) (a) (iv) of the ICC Statute (see below III. 2. b.), All the other crimes deal with crimes committed against protected person s.

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The perpetrator was aware of factual circumstances that established the existence ofan armed conflict. [IJ This mental element recognizes the interplay between articles 30 and 32. This footnote also applies to the corresponding element in each crime under article 8 (2) (a), and to the element in other crimes in article 8 (2) concerning the awareness offactual circumstances that establish the status of persons or property protected under the relevant international law ofarmed conflict. [2J With respect to nationality, it is understood that the accused needs only to know that the victim belonged to an adverse party to the conflict. This footnote also applies to the corresponding element in each crime under article 8 (2) (a). [31 The term "international armed conflict" includes military occupation. This footnote also applies to the corresponding element in each crime under article 8 (2) (a).

aa. Elements Describing the Context The PrepCom, on the basis of the wording of the ICC Statute, followed the approach taken by the Appeals Chamber of the ICTY in the Tadic case where it was held that the concept of grave breaches applied only to international armed conflicts .ls It decided not to define the notion of 36

ICTY Appeals Chamber, Judgement, The Prosecutor v. Dusko Tadic, IT94-1-A, para. 80; ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, The Prosecutor v. Dusko Tadie, IT-94-1-AR72, para. 84, 48 (for the reasons see paras 79 et seq.); see also ICTY, Judgement, The Prosecutor v. Tihomir Blaskic, IT-95-14- T, para. 74: "Within the terms of the Tadic Appeal Decision and Tadic Appeal Judgement, article 2 applies only when the conflict is international. Moreover, the grave breaches must be perpetrated against persons or property covered by the 'protection' ofany of the Geneva Conventions of 1949". The ICTY Trial Chamber seemed however to take a more progressive approach in the Delalic case: "While Trial Chamber II in the Tadic case did not initially consider the nature of the armed conflict to be a relevant consideration in applying article 2 of the Statute, the majority of the Appeals Chamber in the TadicJurisdiction Decision did find that grave breaches of the Geneva Conventions could only be committed in international armed conflicts and this requirement was thus an integral part of article 2 of the Statute. In his Separate

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an international armed conflict.V However, it emphasised in a footnote that the term "international armed conflict" included military occupations. Considerable importance has been given by the Prep Com to describing the nexus which must exist between the conduct of the perpetrator and the international armed conflict as well as to the question of a possible mental element which would be linked to the element describing the context. The words "in the context of" and "was associated with" an armed conflict are meant to draw the distinction between war crimes and ordinary criminal behaviour. The PrepCom clearly derived this formulation from the case law of the ad hoc Tribunals. The words "in the context of" were meant to indicate the concept as developed by the ICTY that: "international humanitarian law applies from the initiation of [...} armed conflicts and extends beyond the cessation of hostilities until a

37

Opinion, however, Judge Abi-Saab opined that 'a strong case can be made for the application ofarticle 2, even when the incriminated act takes place in an internal conflict'. The majority of the Appeals Chamber did indeed recognise that a change in the customary law scope of the 'grave breaches regime' in this direction may be occurring. This Trial Chamber is also of the view that the possibility that customary law has developed the provisions of the Geneva Conventions since 1949 to constitute an extension of the system of 'grave breaches' to internal armed conflicts should be recognised"; ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21- T, para. 202 (footnotes omitted). In the last resort, the Trial Chamber made no finding on the question of whether article 2 of the Statute could only be applied in a situation of international armed conflict, or whether this provision was also applicable in internal armed conflicts (ibid. para. 235), but indicated: "Recognising that this would entail an extension of the concept of 'grave breaches of the Geneva Conventions' in line with a more teleological interpretation, it is the view of this Trial Chamber that violations of common article 3 of the Geneva Conventions may fall more logically within article 2 of the Statute. Nonetheless, for the present purposes, the more cautious approach has been followed". (ibid., para. 317). The term "international armed conflict" is defined under common article 2 GC in the following terms: "[...] all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state ofwar is not recognized by one of them. [...] all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance".

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general conclusion of peace is reached"38 and "that at least some of the provisions of the [Geneva] Conventions apply to the entire territory of the Parties to the conflict, not just the vicinity of actual hostilities. [...} particularly those relating to the protection ofprisoners of war and civilians are not so limited". 39 The words "was associated with" were meant to reflect the case law of the ad hoc Tribunals which states that a sufficient nexus must be established between the offences and the armed conflict.'? Acts unrelated to an armed conflict, for example, murder for purely personal reasons not related to an armed conflict (e.g, a jealous soldier kills a civilian employee in the barracks because the latter had a relationship with the former's wife), are not considered to be war crimes."!

38

39

40

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ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, The Prosecutor v. Dusko Tadic, IT-94-1-AR72, para. 70. Ibid ., para. 68. The addition of the words "in association with" in the EOC was contested by some delegations. It was argued inter alia that they were redundant because they were already included in the requirement "in the context of". In one recent judgement the ICTY has given the following additional indication: "What ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment - the armed conflict - in which it is committed. It need not have been planned or supported by some form of policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator's ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established, as in the present case, that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict {...}. In determining whether or not the act in question is sufficiently related to the armed conflict, the Trial Chamber may take into account, inter alia, the following factors: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator's official duties". ICTY Appeals Chamber, Judgement, The Prosecutor v. Dragoljub Kunarac and others, IT-96-23 and IT-96-23/1-A, paras 58 et seq.

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The PrepCom discussed very heatedly the question whether a mental element should accompany the element describing the context and if yes, what kind of mental coverage would be required, in particular whether the article 30 ICC Statute standard would be applicable. Applying the full article 30 standard to the element describing the context would have meant probably that the perpetrator would need to be aware of the existence of an armed conflict as well as its character as being international. The later requirement especially was rejected by almost all delegations. So far the ad hoc Tribunals have used an objective test to determine the existence and character of an armed conflict, as well as the nexus between the conduct and the conflict. Taking this approach, the ICTY in particular has apparently treated this element as being merely jurisdictional. 42 On the basis of that case law, some delegations to the PrepCom argued that the Prosecutor need not demonstrate that the perpetrator had any knowledge of the existence of an armed conflict or its international or non-international character. Other delegations took the view that the cases decided by the Tribunals so far have clearly taken place in the context of an armed conflict and that the requirement of knowledge has never therefore been an issue. They argued that some form of knowledge would be required. After long and delicate negotiations at the PrepCom, the following package was accepted. First, for each crime the above-mentioned elements are spelled out in the EOC: "The conduct took place in the context ofand was associated with an international armed conflict.

42

For example, in the Tadic Judgement the Trial Chamber held that: "The existence of an armed conflict or occupation and the applicability of international humanitarian law to the territory is not sufficient to create international jurisdiction over each and every seriouscrime committed in the territory of the former Yugoslavia. For a crime to fall within the jurisdiction of the International Tribunal a sufficient nexus must be established between the alleged offence and the armed conflict which gives rise to the applicability of international humanitarian law"., ICTY, Judgement, The Prosecutorv. Dusko Tadic, IT-94-1-T, para. 572 (emphasis added). See also Jones, The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 2nd edition, 2000,51.

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The perpetrator was aware of factual circumstances that established the existence ofan armed conflict. "43 Second, these elements are supplemented by further components in an introduction to the whole section on war crimes." It contains the following interpretative clarification, which is intended to be an integral part of the set of elements: "With respect to [these] elements listed for each crime: There is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character as international or non-international; In that context there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or non-international; There is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms 'took place in the context of and was associated with'". The first two paragraphs of the Introduction are drafted in a very straightforward and unambiguous manner. They emphasise thatThere is no need to prove that the perpetrator made any legal evaluation as to the existence of an armed conflict or of its character as international or non-international; and There is no need to prove that the perpetrator was aware of the factual circumstances that made the armed conflict international or non-international. This view as to the degree of knowledge as to the element describing the context found extensive support and was shared by almost every delegation. The interplay between and the wording of the mental element and the third paragraph of the Introduction are not easy to understand however. At first sight, the definition of the mental element creates the 43

44

The original proposal on the mental element read as follows: "The accused was aware of the factual circumstances that established the existence of an armed conflict". (emphasis added). The direct article was dropped in order to indicate that the perpetrator needs only to know some factual circumstances, but definitely not all the factual circumstances that would permit a judge to conclude that an armed conflict was going on. In the following "Introduction".

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impression that full knowledge of the facts that established an armed conflict is required. This impression, which would contradict the intention of the drafters, is at least attenuated by, first, the fact that, contrary to an earlier proposal.v the direct article was dropped before the term "factual circumstances" in order to indicate that the perpetrator need only be aware of some factual circumstances, but definitely not all the factual circumstances that would permit a judge to conclude that an armed conflict was going on; and second, the third paragraph of the Introduction, i.e, "There is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms 'took place in the context ofand was associatedwith', " On that basis one can only conclude that some form of knowledge is required, which is below the article 30 standard. The formulation in the third paragraph of the Introduction "awareness of the factual circumstances [...] that is implicit in the terms 'took place in the context of and was associated with" seems to suggest that the perpetrator need only know the nexus. However, what does this mean in practice? Does the perpetrator need only to have some general awareness that his acts are related to a broader context or does the prosecutor need to prove the motives of the accused (personal motives or motives related to an armed conflict) in every case? In order to clarify the intentions of the drafters, it is worthwhile indicating the assumptions underlying the clarification for this part of the package as summarised by the sub-coordinator of the working group on EOC: As to the awareness of the factual circumstances that make a situation an armed conflict and as to the proof of the nexus, the views were divided into two groups. The majority felt that it needs to be demonstrated that the accused was aware of at least some factual circumstances.i" Those who held that view agreed that the mental requirement as to those factual circumstances is lower than the article 30 standard and should be "knew or should have known". They recognised that in most situations it would be so obvious that there was an armed conflict that no additional proof as to awareness would be required. There 45

46

For the wording see note 25. Some delegations argued that the perpetrator only needs to hear people shooting, others said that it would be enough if the perpetrator knows that people in uniform are around . These examples show that a very low standard of mental coverage was required by certain proponents of this view.

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might, however, be some instances where proof of mens rea may be required. The other side insisted that no mental element is required at all. This picture gives at least some guidance in determining the requisite degree of knowledge. There are no indications that the prosecutor must prove a higher degree of knowledge than that which is reflected in the majority view. Moreover, it appears that generally proving the nexus objectively will be sufficient. In such circumstances, an accused cannot argue that he or she did not know of the nexus. bb. The Acts or Omissions are Committed against Protected Persons The war crimes as defined in article 8 (2) (a) (i)-(iii) and (v)-(viii) ICC Statute must be committed against persons protected under the Gc. While an initial US proposal" sought to define the protected persons for each crime under this section, the Swiss-Hungarian's and japanese''? proposals chose a more generic approach referring to persons protected under the provisions of the relevant Gc. Given that protected persons are defined specifically in multiple provisions, in particular in the following provisions of the GC: arts 13, 24, 25 and 26 GC I; arts 13, 36 and 37 GC II; article 4 GC III; arts 4, 13, 20 GC rv,50 the PrepCom preferred the latter approach. During the negotiations some delegations would have liked to see the recent case law of the ICTY on protected persons under GC IV specifically reflected in the elements. Article 4 GC IV defines protected persons as "those who, roo'] find themselves [...] in the hands of a Party to the conflict or Occupying Power ofwhich they are not nationals". The ICTY held that in the context of present-day inter-ethnic conflicts, article 4 should be given a wider construction so that a person may be accorded protected status, notwithstanding the fact that he or she is of the same nationality as his or her captors.t' In the Tadic Judgement, the Appeals Chamber concluded that "not only the text and the drafting history of the Convention but also, and more importantly, the Conuen47 48 49

50

51

PCNlCC/19991DPA/Add.2. PCNlCC/1999/DP.5. PCNlCC/1999/WGECIDP.5. ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, The Prosecutor v. Dusko Tadic, IT-94-1-AR72, para. 81. lCTY Appeals Chamber, Judgement, The Prosecutor v. Dusko Tadic, IT. 94-1-A, para. 166.

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tion's object and purpose suggest that allegiance to a Party to the conflict and correspondingly, control by this Party over persons in a given territory, may be regarded as the crucial test. "52

Despite considerable support that this case law be duly reflected, several states remained reluctant. They stressed that the case law concerned only one particular category of protected persons and, therefore, preferred to keep the generic term "protected persons" without any further qualification. After some discussion, the PrepCom decided that no greater refinement of the objective element was necessary. In any event, the views expressed by the ICTY in relation to the status of protected persons under article 4 GC IV will give the ICC further guidance. There was, however, some fear at the PrepCom that the required mental element reading "The perpetrator was aware of the factual circumstances that established that protected status" could create too high a threshold in relation to this particular problem of nationality in the context of article 4 GC IV, Consequently, in relation to the requisite factual knowledge, the PrepCom specified in a footnote that the perpetrator need only know that the victim belonged to an adverse party. Knowledge as to the nationality of the victim or the interpretation of the concept of nationality is not required. In addition, this mental element recognises the interplay between arts 30 and 32 of the Statute emphasising the general rule that, while ignorance of the facts may be an excuse, ignorance of the law (in this case of the GC and its definitions of protected persons or property) is not. Although one might argue that this explicit statement is self-evident and therefore redundant, the PrepCom felt that such clarification would be useful. cc. The Acts or Omissions are Committed against Protected Property In the case of article 8 (2) (a) (iv) of the Statute, the acts or omissions must be committed against property regarded as protected under the Gc. "Protected property" is not generally defined in the Gc. Instead, the Conventions contain a description of property that cannot be attacked, destroyed or appropriated. In particular the following provi-

52

Ibid.

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sions throughout the GC have to be mentioned: arts 19, 33-35 GC I; arts 22, 24, 25, 27 GC II; and arts 18, 19,21,22,33,53,57 GC Iy'53 b. Elements Specific to the Crimes under article 8 (2) (a) of the ICC Statute

Wilful Killing The crime of "wilful killing" is derived from the four GC of 1949 (arts 50 GC I; 51 GC II; 130 GC III; 147 GC IV). Element 1 ("The perpetrator killed one or more persons".) describing the actus reus of this crime did not give rise to long discussions. On the basis of the different text proposals, there was some debate as to whether the term "killed" or the term "caused death" or both should be used. The PrepCom did not see any substantive difference and expressed this understanding in a footnote which reads: "The term 'killed' is interchangeable with the term 'caused deatb'". The term "killed" creates the link to the "title" of the crime, and the term "cause death" was felt necessary to clarify the fact that this crime also covers situations such as the reduction of rations for prisoners of war to such an extent that they starve to death. Both terms are used in the relevant case law of the ad hoc Tribunals.54 The term "wilful" as contained in the definition of this crime in the Statute is not included in the elements of crimes. There was some discussion as to whether the term "wilful" is identical to the standard set in article 30 of the Rome Statute or whether it has a different meaning. Those who were initially in favour of keeping the term "wilful" accepted the text on the assumption that the article 30 standard would not raise the threshold for this crime.Y

53

54

55

ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, The Prosecutor v. Dusko Tadic, IT-94-1-AR72, para. 81. ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, para. 424. See also ICTY, Judgement, The Prosecutor v. Tihomir Blaskic, IT95-14-T, para. 153. The same problem also exists with regard to the follow ing war crimes: article 8 (2) (a) (iii), (vi). States who were in favour of the inclusion of "wilful" based their proposal on findings by the ICTY. For example, in the Delalic case, the ICTY held that:

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Torture An especially thorny problem as to specific grave breaches existed with regard to the war crime of torture (article 8 (2) (a) (ii) ICC Statute). Thus, the negotiations mirrored in a way the tension in the jurisprudence of the ad hoc Tribunals, which was marked to a certain extent by slightly different approaches in the definition of the elements of torture taken by different Trial Chambers. Torture is defined in the Statute as a crime against humanity (article 7 (2) (e»: "Torture' means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions". The PrepCom had to decide whether this definition could also be applied to the war crime of torture. As pointed out by several delegations, the ad hoc Tribunals, in several judgements rendered at the time of ne"While different legal systems utilise differing forms of classification of the mental element involved in the crime ofmurder, it is clear that some form of intention is required. However, this intention may be inferred from the circumstances [This approach was chosen at several occasions in the Delalic case by the ICTY Prosecution when it concluded for example that the necessary intent was necessarily inferred from the severity of the beating, see ICTY, Closing Statement of the Prosecution, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, paras 3.40, 3.52, 3.67, 3.90, 3.98, 3.113, 3.121, 3.132] whether one approaches the issue from the perspective of the foreseeability of death as a consequence of the acts of the accused, or the taking of an excessive risk which demonstrates recklessness. As has been stated by the Prosecution, the [JCRC] Commentary to the Additional Protocols expressly includes the concept of 'recklessness' within its discussion of the meaning of 'wilful' as a qualifying term in both articles 11 and 85 of Additional Protocol J [Tjbe Trial Chamber is in no doubt that the necessary intent, meaning mens rea, required to establish the crimes of wilful killing and murder, as recognised in the Geneva Conventions, is present where there is demonstrated an intention on the part of the accused to kill, or inflict serious injury in reckless disregard ofhuman life". (emphasis added) ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21- T, paras 437 and 439. A discussion of the approach adopted by different legal systems - common law and civil law - can be found in paras 434 and 435. See also ICTY, Judgement, The Prosecutor v. Tihomir Blaskic, IT-95-14-T, para. 153.

r.. ]

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gotiations of the PrepCom, based their definition of the war crime of torture on the definition given in the 1984 Convention Against Torture

and Other Cruel, Inhuman or Degrading, Treatment or Punishment (CAT) which they considered not to be limited to the context of the CAT, but to reflect customary international law also for the purposes of international humanitarian law,56 and defined the elements accordingly.57 The CAT contains the following elements, which are not included in the ICC Statute:

56

57

ICTY,Judgement, The Prosecutor u. Zejnil Delalicand others, IT-96-21-T, para. 459. In a judgement rendered after the completion of the PrepCom negotiations the ICTY took a more nuanced approach: "Three elements of the definition of torture contained in the Torture Convention are, however, uncontentious and are accepted as representing the status of customary international law on the subject: (i) Torture consists of the infliction, by act or omission, of severe pain or suffering, whether physical or mental. (ii) This act or omission must be intentional. (iii) The act must be instrumental to another purpose, in the sense that the infliction ofpain must be aimed at reaching a certain goal. On the other hand, [the following] elements remain contentious: (i) The list ofpurposes the pursuit of which could be regarded as illegitimate and coming within the realm of the definition of torture. [. ..} (iii) The requirement, if any, that the act be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. The Trial Chamber is satisfied that the following purposes have become part of customary international law: (a) obtaining information or a confession, (b) punishing, intimidating or coercing the victim or a third person, (c) discriminating, on any ground, against the victim or a third person. There are some doubts as to whether other purposes have come to be recognised under customary international law. [...} The Trial Chamber concludes that the definition of torture under international humanitarian law does not comprise the same elements as the definition of torture generally applied under human rights law. In particular, the Trial Chamber is of the view that the presence of a state official or of any other authority-wielding person in the torture process is not necessary for the offence to be regarded as torture under international humanitarian law"., ICTY, Judgement, The Prosecutor v. Dragoljub Kunarac and others, IT-96-23 and IT-96-23/1-T, paras 483-96 (footnotes omitted). ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, ibid. and para. 494:

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"[the] pain or suffering, [must be] inflicted on a person for such purposes as obtaining [...] information or a confession, punishing [...], or intimidating or coercing [...], or for any reason based on discrimination ofany kind",

and the ''pain or suffering [must be] inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity". Some delegations to the Prep Com felt that either the purposive element or the element of official capacity or both were necessary in order to distinguish torture from the crime of inhuman treatment. Others argued that in line with case law of the European Court of Human Rights, it is the severity of the pain or suffering inflicted that should be used to draw a distinction between the two crimes. 58

58

Uri) There must be an act or omission that causes severe pain or suffering, whether mental or physical, (ii) which is inflicted intentionally, (iii) and for such purposes as obtaining information or a confession from the victim, or a third person, punishing the victim for an act he or she or a third person has committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination ofany kind, (iv) and such act or omission being committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official capacity". In a later judgement, the ICTY described some specific element s that pertain to torture as "considered from the specific viewpoint of international criminal law relating to armed conflicts". Thus, the Trial Chamber considers that the elements of torture in an armed conflict require that torture: Uri) consists of the infl iction by act or omission of severe pain or suffering, whether physical or mental; in addition (ii) this act or omission must be intentional; (iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person; or at discriminating, on any ground, against the victim or a third person; (iv) it must be linked to an armed conflict; (v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ ofa State or any other authority-wielding entity"., ICTY, Judgement, The Prosecutor v. Furundzija, IT-95-17/1- T, para. 162. The European Court of Human Rights found in the Ireland v. The United Kingdom Case that the "distinction [between 'torture', 'inhuman treatment' and 'degrading treatment' within the meaning of article 3 European Convention on Human Rights] derives principally from a difference in the in-

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The compromise found at the end of the discussion of the issue in the PrepCom follows, to a large extent, the case law of the ad hoc Tribunals available at the time, and is consistent with the most recent judgement by the Appeals Chamber in the Kunarac and others case. It drops the reference to official capacity and incorporates the purposive element by repeating the list of the CAT.59 The approach taken after the first reading of the elements, which included a more narrow list of pro-

59

tensity of the suffering inflicted", European Court of Human Rights, Publications of the European Court of Human Rights, Series A: Judgments and Decisions, Volume 25, 1978, 66. In the Greek case, Yearbook of the Convention on Human Rights, 1972, 186, the Commission found that "'torture' [...] is generally an aggravated form of inhuman treatment". The European Court of Human Rights also stated that 'torture' presupposes a "deliberate inhuman treatment causing very serious and cruel suffering", European Court of Human Rights, Case of Ireland v. The United Kingdom, ibid., 66; European Court of Human Rights, Aksoy v. Turkey, Reports of Judgments and Decisions, 1996-VI, 2279. See however European Commission of Human Rights, The Greek Case, Yearbook of the Convention on Human Rights, 1972, 186: "the word 'torture' is often used to describe inhuman treatment, which has a purpose [..,] and it is generally an aggravated form of inhuman treatment". In its more recent judgements, the Court endorsed the definition of the Torture Convention, expressly including the purposive element. In doing so it stressed this element 's relevance in distinguishing between 'torture' on the one hand and 'inhuman and degrading' treatment on the other, European Court of Human Rights, Ilhan v. Turkey, Judgement of 27 June 2000, http://www. echr.coe. int/Eng/Judgments.htm, para. 85; European Court of Human Rights, Salman v. Turkey, Judgment of 27 June 2000, http://www.echr.coe.int/Eng/ judgments.htm, para . 114; European Court of Human Rights , Akkoc v. Turkey , Judgment of 10 October 2000, http://www.echr.coe.int/Eng/ Judgments.htm, para . 115. In this regard, the ICTY held that: "[t]he use of the words "for such purposes" in the customary definition of torture [the definition contained in the Torture Convention], indicate that the various listed purposes do not constitute an exhaustive list, and should be regarded as m erely representatioe"., ICTY, Judgement, The Prosecutorv. Zejnil Delalic and others, IT-96-21-T, para. 470. However, the ICTR seemed to suggest an exhaustive list by formulating "f or one or more of the following purposes", ICTR, Judgement, The Prosecutor v. Jean Paul Akayesu, ICTR-96-4, para. 594. In the Musema judgement it defined torture along the lines of the Torture Convention with a non-exhaustive list, ICTR, Judgement, The Prosecutor v. Alfred Musema, ICTR-96-13, para. 285.

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hibited purposes.s? was abandoned in favour of the illustrative approach of the CAT. This was because of a compromise between one group of states which thought that torture even if committed for purely sadistic reasons would be a war crime, and the other group of states which felt that an illustrative list would conflict with the principle of legality. The elements as drafted do not preclude that further clarification given by the ICTY may be taken into consideration. With regard to the purposive element the ICTY emphasised that: «there is no requirement that the conduct must be solely perpetrated for a prohibited purpose. Thus, in order for this requirement to be met, the prohibited purpose must simply be part of the motivation behind the conduct and need not to be the predominant or sole purpose".61 Given that the list of prohibited purposes in the EOC is not exhaustive, the fact that the purpose of «humiliating", as suggested by the ICTY in the Furundzija case,62 has not been added, is not detrimental. With regard to the omission of the element of official capacity, the PrepCom went a step further than the ad hoc Tribunals at the time of the negotiations, but clearly followed the trend set by them, which had "The accused inflicted the pain or suffering for the purpose of obtaining information or a confession, punishment, intimidation or coercion, or obtaining any other similar purpose. " (PCNICC/1999/WEGCIRT.2). 61 ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, para. 470. See also ICTY Appeals Chamber, Judgement, The Prosecutor v. Dragoljub Kunaracand others, IT-96-23 and IT-96-23/1-A, para. 155. 62 With respect to the addition of the purpose «humiliating" under (iii) of the indicated elements, the ICTY held in the Furundzija case that it is: "warranted by the general spirit of international humanitarian law; the primary purpose of this body of law is to safeguard human dignity. The proposition is also supported by some general provisions of such international treaties as the Geneva Conventions and Additional Protocols, which consistently aim at protecting persons not taking part, or no longer taking part, in the hostilities from "outrages upon personal dignity". The notion of humiliation is, in any event close to the notion of intimidation, which is explicitly referred to in the Torture Convention's definition of torture". ICTY, The Prosecutor v. Furundzija, Judgement, IT-95-17/1-T, para. 163; ICTY, Judgement, The Prosecutor v. Miroslav Kvocka and others, IT-9830/i-T, para. 140. See however the more cautious approach taken in ICTY, Judgement, The Prosecutor u. Dragoljub Kunarac and others, IT-96-23 and IT-96-23/1-T, para. 485, which was rejected in re Kvo cka and others. 60

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already softened the standard contained in the CAT to a certain extent. In the Delalic case the ICTY held: «Traditionally, an act of torture must be committed by, or at the instigation of, or with the consent or acquiescence of, a public official or person acting in an official capacity. In the context of international humanitarian law, this requirement must be interpreted to include officials of non-State parties to a conflict, in order for the prohibition to retain significance in situations of internal armed conflicts or international conflicts involving some non-State entities". 63 In the Kunarac case, the ICTY Appeals Chamber has now come to the conclusion «that the public official requirement is not a requirement under customary international law in relation to the criminal responsibility of an individual for torture outside of the framework of the Torture Convention",64 and, thus, albeit without saying so, has implicitly approved the view taken by the Prep Com. If one compares the elements of torture and inhuman/cruel treatment in the EOC, the element of purpose is the only distinguishing feature . Thus, the elements do not follow the ad hoc Tribunals' case law, in which it is consistently indicated that "the degree of suffering required to prove cruel or inhuman treatment was not as high as that required to sustain a charge of torture".65 The ad hoc Tribunals refer to "severe" pain or suffering for the crime of torture and "serious" pain or suffering for the crimes of inhuman/cruel treatment.w Inhuman Treatment

The negotiations on the elements of "inhuman treatment" (article 8 (2) (a) (ii) ICC Statute) were also rather problematic. Some delegations expressed the view that the criminal conduct should not be limited to the infliction of severe physical or mental pain, but should also include conduct constituting "a serious attack on human dignity". This opinion 63

64 65

66

lCTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, para. 473. ICTY Appeals Chamber, Judgement, The Prosecutor v. Dragoijub Kunarac and others, IT-96-23 and IT-96-23/1-A, para . 148. For example ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, para. 510; ICTY, Judgement, The Prosecutor v. Miroslav Kvocka and others, IT-98-30/1-T, para. 161. See for example lCTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, para. 543.

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is largely based on the consistent case law of the ICTY which has recognised that serious attacks on human dignity may constitute inhuman treatment.V In the end, the PrepCom decided not to include attacks on human dignity in the definition of acts constituting inhuman treatment because the crime of "outrages upon personal dignity, in particular humiliating and degrading treatment" would cover such conduct. This interpretation is not problematic in the context of the ICC, but may have unintended implications for the interpretation of the Gc. If serious attacks on human dignity are included in the concept of inhuman treatment then the grave breaches regime and mandatory universal jurisdiction will apply - this means that states are obliged to search for and prosecute alleged perpetrators regardless of their nationality and of where the act has been committed. If, however, such attacks are only covered by the crime of "outrages upon personal dignity", the concept of permissive universal jurisdiction applies and states are only obliged to suppress such conduct on their territory or by their nationals. Extensive Destruction and Appropriation ofProperty

The discussions on article 8 (2) (a) (iv) ICC Statute in relation to the crime of "extensive destruction and appropriation of property" have been very significant for the negotiations on crimes derived from the grave breaches provisions of the Gc. Article 8 (2) (a) repeats established language from the GC, but nevertheless, it proved sometimes difficult to draft the elements of this crime. This might have been the case because the grave breaches provisions refer back to various articles of the GC which establish different levels of protection. In the case of appropriation or destruction the GC define distinct standards for specific protected properry.'" This may be illustrated with respect to the protection of civilian hospitals on the one hand and property in occupied territories on the other: Article 18 GC IV defines the protection of civilian hospitals against attacks, i.e. against destruction, in the following terms:

67

68

ICTY Appeals Chamber, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-A, para. 424; ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, para. 544; ICTY, Judgement, The Prosecutor v. Tihomir Blaskic, IT-95-14-T, para. 155; ICTY, Judgement, The Prosecutor v. Miroslav Kvocka and others, IT-98-30/1-T, para. 159. See for example ICTY, Judgement, The Prosecutor v. Dario Kordic and Mario Cerkez, IT-95-1412-T, para. 336.

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"Civilian hospitals organized to give care to the w ounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack but shall at all times be respected and protected by the Parties to the conflict f... j".

Article 19 GC IV lays down the stringent conditions under which such civilian hospitals may nevertheless be attacked: "The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has rema ined unheeded".

Article 53 GC IV defines the protection of property in occupied territory in a different manner: "Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations". (emphasis added).

Considering these examples, the drafting of EOC had to be done in a way that properly reflected these standards. It was decided to adopt a generic approach, without spelling out the specific standards. The Elements are therefore derived directly from article 8 (2) (a) (iv), following the structure as indicated in the General Introduction, without giving further clarification. The meaning of "not justified by military necessity" as contained in article 8 (2) (a) (iv) ICC Statute is therefore crucial in this regard. It is important to indicate that military necessity covers only conduct that is lawful in accordance with the laws and customs of war. Consequently, a rule of law of armed conflict cannot be derogated from by invoking military necessity unless this possibility is explicitly provided for by the rule in question. This means that in the abovementioned example of civilian hospitals military necessity cannot be invoked to justify an attack against such a civilian hospital in violation of arts 18 and 19 GC IV. It would have been desirable to clearly express this understanding of military necessity in the EOC. Compelling a Prisoner of War or other Protected Person to serve in the Forces ofa hostile Power

For the war crime of "Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power " the PrepCom decided

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to combine the language of the grave breaches provisions of the GC with article 23 of the 1907 Hague Regulations. The prohibited conduct is thus described as: "The perpetrator coerced one or more persons {protected under one or more of the Geneva Conventions], by act or threat, to take part in military operations against that person's own country or forces or otherwise serve in the forces of a hostile power". The word ccotherwise" indicates that the aspect dealt with in the Hague Regulations - "to take part in the forces of a hostile power" - is just one particular example of the prohibited conduct described in the GC "serve in the forces of a hostile power". This approach shows that there is a large overlap between the grave breaches crime defined in article 8 (2) (a) (v) ICC Statute and the crime defined in article 8 (2) (b) (xv) ICC Statute.s? which is solely based on article 23 of the 1907 Hague Regulations. Some delegations wanted a clear indication that the crime under article 8 (2) (a) (v) ICC Statute is not limited to compelling a protected person to act against his/her own country or forces, but also against other countries or forces, in particular allied countries and forces. In the end the PrepCom felt that this particular case would be covered by "otherwise serve in the forces ofa hostile power ".70

Wilfully depriving a Prisoner of War or other Protected Person of the Rights ofFair and Regular Trial With regard to the crime "Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial" in article 8 (2) (a) (vi) the prohibited conduct is defined as "The perpetrator deprived one or more persons ofa fair and regular trial by denying judicial guarantees as defined, in particular, in the third and fourth Geneva Convention of 1949. " This element defines what is meant by a deprivation of the rights of a fair and regular trial, namely the denial of judicial guarantees. It must be emphasised that a clear majority of states supported the view that the crime may also be committed if judicial guarantees other than those explicitly defined in the GC (for example the presumption of in-

The specific elements of this war crime read as follows: "1. The perpetrator coerced one or more persons by act or threat to take part in military operations against that person's own country or forces. 2. Such person or persons were nationals ofa hostile party". 70 Thi's interpretation seems to be well founded under the GC, see H.P. Gasser, "Protection of the Civilian Population", in: D. Fleck (ed.), The Handbook ofHumanitarian Law, 1995,264. 69

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nocence and other guarantees contained only in the 1977 Additional Protocols) are denied. This view is reflected in the use of the words "in particular". Unlawful Deportation or Transfer Concerning the crime "Unlawful deportation or transfer" (article 8 (2) (a) (vii» the PrepCom adopted the interpretation that article 147 GC IV, which must be read in conjunction with article 49 GC IV, prohibits all forcible transfers, including those within an occupied territory, as well as deportations of protected persons from occupied territory." Unlawful Confinement In relation to the crime of "Unlawful confinement " (article 8 (2) (a) (vii» one point, which was clarified in the EOC, should be mentioned. The prohibited conduct is defined as: "The perpetrator confined or continued to confine one or more persons to a certain location". The words "continued to confine" are intended to cover cases where a protected person has been lawfully confined in accordance with in particular arts 27, 42 and 78 GC IV, but whose confinement becomes unlawful at a certain moment. Pursuant to the ICTY in the Delalic case, confinement only remains lawful if certain procedural rights , which may be found in article 43 GC IV, are granted to the persons detained. Since GC IV leaves a great deal to the discretion of the party to the conflict concerning the initiation of such measures of confinement, the Tribunal concluded that: "the [detaining] party's decision that [internment or placing in assigned residence ofan individual are) required must be 'reconsidered as soon as possible by an appropriate court or administrative board'". 72

71

72

The relevant element reads as follows: "The perpetrator deported or transferred one or more persons to another State or to another location". (emphasis added). See in this regard B. Zimmermann, "Article 85", in: Y. Sandoz/ C. Swinarski/ B. Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, No. 3502, especially note 28. ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, para. 580.

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It added that the judicial or administrative body must bear in mind that such measures of detention should only be taken if absolutely necessary for security reasons. If this was initially not the case, the body would be bound to rescind them. The Tribunal concluded that:

"the fundamental consideration must be that no civilian should be kept in assigned residence or in an internment camp for a longer time than the security of the detaining party absolutely requires". 73 Referring to article 78 GC IV relative to the confinement of civilians in occupied territory, which safeguards the basic procedural rights of the persons concerned, the Tribunal found that "respect for these procedural rights is a fundamental principle ofthe convention as a whole". 74 Therefore, "fa]n initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in article 43 GC IV"75 or in the case of confinement of civilians in occupied territory, as prescribed in article 78 GCIV. These considerations as expressed by the ICTY in the Delalic case are now clearly covered in the EOC.

Taking of Hostages With regard to the war crime of "Taking of hostages" (article 8 (2) (a) (viii) ICC Statute) it is worth noting that the elements of this offence are largely based on the definition taken from the 1979 International Convention against the Taking of Hostages, which is not an international humanitarian law treaty and was drafted in a different legal context. However, as in the case of the crime of torture, the definition of the crime of hostage-taking was adapted by the Working Group to the context of the law of armed conflict. The Hostage Convention defines hostage-taking in article 1.1 as: "any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (the "hostage") in order to compel a third party, namely a State, an international intergovernmental or73 74

75

Ibid., para. 581. Ibid., para. 582. Ibid ., para. 583. This view was confirmed by the ICTY, Appeals Chamber, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-A, para. 322.

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ganisation, a natural or judicial person, or a group ofpersons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage ... " Taking into account the case law from World War II, this definition was considered to be too narrow. The text in the EOC, therefore, defines the specific mental element in the following terms, adding the emphasised element: "The perpetrator intended to compel a State, an international organisation, a natural or legal person or a group of persons, to act or refrain from acting as an explicit or implicit condition for the safety or the release ofsuch person or persons". 76

3. War Crimes under article 8 (2) (b) ICC Statute The crimes defined in article 8 (2) (b) ICC Statute cover "other serious violations of the laws and customs applicable in international armed conflict". They are derived from various sources, in particular the 1907 Hague Regulations, Additional Protocol I and various provisions prohibiting the use of specific weapons. a. Elements Common to all Crimes under article 8 (2) (b) of the ICC Statute The elements for the crimes listed in article 8 (2) (b) contain two general elements repeated for each crime describing the material scope of appli cation as well as the mental element accompanying the objective element: The conduct took place in the context of and was associated with an international armed conflict. 76

In the Blaskic case the ICTY has been less specific and defined the crime in the following terms: "Within the meaning of article 2 of the Statute [listing the grave breaches of the Gej, civilian hostages are persons unlawfully deprived of their freedom, often arbitrarily and sometimes under threat of death. However [ ..j detention may be lawful in some circumstances, inter alia to protect civilians or when security reasons so impel. The Prosecution must establish that, at the time of the supposed detention, the allegedly censurable act was perpetrated in order to obtain a concession or gain an advantage", ICTY, Judgement, The Prosecutor v. Tihomir Blaskic, IT-9514-T, para. 158.

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The perpetrator was aware of factual circumstances that established the existence ofan armed conflict. This element describing the context and the related mental element are reproduced from the elements for the war crimes under article 8 (2) (a). The comments already made therefore also apply in this case. b. Elements Specific to the Crimes under article 8 (2) (b) of the ICC Statute War Crimes derived from the Hague Regulations Particular problems existed with regard to those war crimes that reproduce language from the Hague Regulations (e.g. article 8 (2) (b) (v), (vi), (xi), (xii), (xiii) when AP I contains "modern" language. The PrepCom had to determine to what extent this new language could be used in the drafting of EOe. For example the crime of "killing or wounding treacherously individuals belonging to a hostile nation or army" as derived from the Hague Regulations is linked to a certain extent with article 37 AP I on the prohibition of perfidy." The concept of perfidy in article 37 is both more extensive and narrower at the same time . Article 37 AP I covers not only the killing or wounding, but also the capture of an adversary by means of perfidy. The latter is clearly not included in article 23 (b) of the Hague Regulations. However, the Hague Regulations seem to also cover acts of assassination." not included in article 37 AP 1.79

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The relevant part of article 37 (1) AP I reads as follows : "It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy". See for example H . Lauterpacht, Oppenheim, International Law, A Treatise, Volume II, 7th edition 1952,342, who indicates the following examples of treacherous conduct: "no assassin must be hired, and no assassination of combatants be committed; a price may not be put on the head of an enemy individual; proscription and outlawing are prohibited; no treacherous request for quarter must be made; no treacherous simulation of sickness or wounds is permitted". The impact of article 37 AP I on the traditional rule as formulated in the Hague Regulations is not clear. Ipsen, for example, concludes: "The fact

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After some discussions the Prep Com decided to use essentially the substance and language of the article 37 AP I prohibition of perfidy to clarify the meaning of "treachery" for the purposes of this war crime. On the basis of the terms of the Statute, contrary to article 37 AP I, the crime is limited to killing or wounding, and the capture of an adversary by resorting to perfidy is excluded. With regard to other crimes derived from the Hague Regulations the Working Group decided whether to use the language of AP I to clarify the EOC on a case by case basis. One positive example in this regard is the text adopted for the clements of killing or wounding a combatant who, having no longer means of defence, has surrendered at discretion (article 8 (2) (b) (vi) ICC Statute). The PrepCom agreed that the terminology of article 41 AP I (" hors de combat") would be a correct "translation" of the old language stemming from the Hague Regulations. The concept of "bors de combat" was understood in a broad manner, which replaces the old Hague language and incorporates, for example, the situations defined in article 41 AP 180 and also article 42 AP 1. 81 For the war crime of "Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives" (article 8 (2) (b) (v) ICC Statute) the PrepCom decided to stick closely to the Hague language (article 25 Hague Regulations) and not to use the wording of article 59 of AP I, and, in particular, the conditions set forth in its para. 2. It was argued that the scope of application of the Hague Regulations would be

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that Art. 37 has been accepted by the vast majority of States indicates that there is no customary international law prohibition of perfidy with a wider scope than that ofArt. 37", K. Ipsen, 'Perfidy', in: R. Bernhardt (ed.), EPIL 3 (1997),978 et seq. (980). However, both terms are used on an equal footing in the original 1980 Protocol on Prohibitions or Restrictions on the Use of Mines, BoobyTraps and Other Devices in article 6 dealing with certain types of booby traps and in its amended form of 1996 in article 7. "2. A person is hors de combat if: (a) he is in the power ofan adverse Party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape". "1. No person parachuting from an aircraft in distress shall be made the object ofattack during his descent".

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broader. However, footnote 38 to the EOC,82 which was added, is derived with small modifications from article 59 (3) AP I.

Conduct of Hostilities War Crimes In general terms the conduct of hostilities war crimes (article 8 (2) (b) (i), (ii), (iii), (iv), (ix), (xxiii), (xxiv) and (xxv)) were subject of heated discussion. With regard to the war crimes under article 8 (2) (b) (i),83 (ii),84 (iii),85 (ix)86 and (xxiv)87 dealing with particular types of unlawful attacks against persons or objects protected, the PrepCom debated intensively whether these war crimes require a result as is the case with article 85 (3) and article 85 (4) (d) AP I regarding the grave breaches of AP I defined therein, i.e. on the one hand causing death or serious injury to body or health, and on the other hand extensive destruction. The majority of delegations pointed out that in Rome during the negotiations at the Diplomatic Conference a result requirement was consciously left out. The crimes would also be committed if, in the case of article 8 (2) (b) (i) ICC Statute for example, an attack was directed against the civilian population or individual civilians, but, due to the failure of the weapon system the intended target was not hit. The other side, how82

"The presence in the locality ofpersons speciallyprotected under the Geneva Conventions of 1949 or of police forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military objective". 83 Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct pan in hostilities. 84 Intentionally directing attacks against civilian objects, that is, objects which are not military objectives. 85 Intentionally directing attacks against personnel, installations, material, units or vehiclesinvolved in a humanitarian assistanceor peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict. 86 Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives. 87 Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law.

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ever, argued that it had been always the implicit understanding that the consequence required by the grave breaches provisions would be applicable with regard to those war crimes derived from the grave breaches of AP 1. If there is a weapon failure the conduct should only be charged as an attempt. The PrepCom, however, followed the majority view and refused to require that the attack had to have a particular result. In this context it is significant to note that the wording of the Rome Statute supports this approach. Since a result requirement has been explicitly added elsewhere in the Statute, namely in article 8 (2) (b) (vii) ("Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury", (emphasis added), one may conclude that, compared to the grave breach provisions, a lower threshold was chosen on purpose. Another contentious issue was how to interpret the term "intentionally directing an attack against" persons or objects defined in the respective crimes. It was debated whether the term "intentionally" was only related to the directing of an attack or also to the object of the attack. In the end the PrepCom adopted the latter approach. For example, in the case of the war crime of attacking civilians (article 8 (2) (b) (i)), the relevant elements now read as follows: "1. The perpetrator directed an attack. 2. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities. 3. The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack". The crime thus requires that the perpetrator intended to direct an attack (this follows from the application of article 30 (2) (a) ICC Statute, which requires that the perpetrator meant to engage in the conduct described, in conjunction with para. 2 of the General Introduction) and that he or she intended civilians to be the object of the attack. The latter intent requirement explicitly stated in the elements also appears to be an application of the default rule contained in article 30. In this particular case the standard applies, which is defined in subpara. 2 (b) of that article, i.e. the perpetrator means to cause the consequence or is aware that it will occur in the ordinary course of events. On the basis of para. 2 of the General Introduction to the EOC the insertion of element 3 seems to be unnecessary, but it was justified inter alia by the fact that the term "intentionally" is contained in the Statute and the insertion wou ld add more clarity.

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In this context it is interesting to have a closer look at the views expressed by the ICTY Prosecution and the findings of the ICTY with regard to war crimes involving unlawful attacks. In the Blaskic case the Prosecution "maintained that the mens rea which characterises all the violations of article 3 of the Statute [relevant to the unlawful attack charges], [...j is the intentionality of the acts or omissions, a concept containing both guilty intent and recklessness likeable to serious criminal negligence".88 and more specifically for the unlawful attack charge: "b.) the civilian status of the population or individual persons [...] was known or should have been known; c.) the attack was wilfully directed at the civilian population or individual civilians; [. •.]"89

The Prosecution derived the mental element "wilful" from article 85 (3) AP I and like the ICRC Commentary to that provision, interpreted it as including both intention and recklessness. An underlying reason was that AP I imposes a wide range of duties on superiors to ensure their forces comply with the law and to ensure precautions are taken to avoid attacks being directed against civilians.P In the above-mentioned Blaskic case, the Trial Chamber of the ICTY held: "Such an attack must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians [...] were being targeted [...j". 91 Based on these sources it is submitted that the required mens rea may be inferred from the fact that the necessary precautions (e.g, the use of available intelligence to identify the target) were not taken before and during an attack. This would apply to all the above mentioned war crimes relating to an unlawful attack against persons or objects protected against such attacks. 88 89

90 91

ICIT, Judgement, The Prosecutor v. Tihomir Blaskic, IT-95-14-T, para. 179. Quoted in W Fenrick, "A First Attempt to Adjudicate Conduct of Hostilities Offences: Comments on Aspects of the ICIT Trial Decision in the Prosecutor v. Tihomir Blaskic", L]IL 13 (2000),931 et seq. (939). Ibid., 940. ICIT, Judgement, The Prosecutor v. Tihomir Blaskic, IT-95-14-T, para. 180.

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The elements of these other conduct of hostilities war crimes follow the same structure as that described for the war crime under article 8 (2) (b) (i) with the one exception of the war crime under article 8 (2) (b) (xxiv) - Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law -, where the initial structure after the first drafting of the EOC was kept. 92 There is some likelihood that this was just a drafting error, given that it was claimed that the structure after the second reading was considered to apply the Siracusa structure reflected in the General Introduction. In the view of the drafters this restructuring would not affect the substance of the original draft. With regard to this latter war crime the EOC contain significant clarification. The text adopted essentially reproduces the Rome Statute text with the addition of "or other method of identification indicating protection" in element 1, which requires that the perpetrator attacked an object or place "using, in conformity with intemationallaw, a distinctive emblem or other method of identification indicating protection under the Geneva Conventions". This added language reflects the fact that the protection accorded by the GC also can be indicated by other distinctive signals such as light signals, radio signals or electronic identification as valid means of identification for medical units or transports (AP I, Annex I, Chapter III , arts 6-9). The PrepCom recognized that the essence of this crime is an attack against protected persons or property identifiable by any recognized means of identification. It is worth highlighting that, by reproducing the specific elements of article 8 (2) (b) (xxiv) for the war crime under article 8 (2) (e) (ii), the PrepCom recognized after some debate that directing attacks against persons or objects,using in a non-international armed conflict the signals as contained in the revised Annex I of 1993 to AP I in conformity with the rules constituting protected status also falls within the scope of this war crime. This understanding was acceptable to all because the provisions of the Annex do not enlarge the protection of persons or objects. They are only intended to facilitate the identification of per-

92

The relevant elements read as follows : "'1. The perpetrator attacked one or more persons, buildings, medical units or transports or other objects using, in conformity with international law, a distinctive emblem or other m ethod of identification indicating protection under the Geneva Conventions. 2. The perpetrator intended such persons, buildings, units or transports or other objects so using such identification to be the object of the attack".

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sonnel, material, units, transports and installations protected under the GC and the Protocol. 93 If the perpetrator directs an attack against such persons or objects it does not make a difference by what means these persons or objects were identifiable for the perpetrator. As in the case of the aforementioned war crimes the Prep Com also debated whether the war crime of "Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated" (article 8 (2) (b) (iv)) required a result as article 85 (3) AP I does for the grave breaches of AP I defined in that provision. In addition to the above-mentioned arguments, delegations that were in favour of such a result requirement claimed that their view would be supported by the wording of the Rome Statute. The words "such attack will cause" (emphasis added) would suggest that a result is needed, and that even the damage needs to be excessive as described in the Statute (which would be a higher threshold than for AP I, which requires only that death or serious injury to body or health occurs without demanding a particular quantity). However, the majority of delegations argued that the crime would be committed even if, for example, an attack was launched against a military objective, but, due to the failure of the weapon system the expected excessive incidental damage did not occur. In the end, the Prep Com once again followed the majority view and refused to require that the attack has a particular result . Another controversial issue debated by the PrepCom concerned the inclusion and content of a commentary to the term "concrete and direct overall military advantage". While several delegations stated that they would prefer not to include any commentary, other delegations wished to retain some kind of explanatory footnote. In the end, after difficult informal consultations, the following definition of "concrete and direct /

93

See also in this regard Y. Sandoz, "Article 8", in: Sandoz/ Swinarski/ Zimmermann, seenote 71, No. 404: "It had already become clear, even during the first session of the Conference of Government Experts in 1971, that the problem of the security of medical transports could only be resolved by finding solutions adapted to 'modern means of marking, pinpointing and identification'. In fact it is no longer possible today to base effective protection solely on a visual distinctive emblem". (footnote omitted).

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overall military advantage" was incorporated into the final text for the elements of this war crime: "The expression 'concrete and direct overall military advantage' refers to a military advantage that is foreseeable by the accused at the relevant time . Such advantage mayor may not be temporally or geographically related to the object of the attack. The fact that this crime admits the possibility of lawful incidental injury and collateral damage does not in any way justify any violation of the law applicable in armed conflict. It does not address justifications for war or other rules related to jus ad bellum. It reflects the proportionality requirement inherent in determining the legality of any military activity undertaken in the context ofan armed conflict". This text reflects a compromise in particular between the interests of two sides which did not necessarily relate to the same aspects. This package therefore clarifies several different issues. In essence, the sentence "The fact that this crime admits the possibility of lawful incidental injury and collateral damage does not in any way justify any violation of the law applicable in armed conflict" is meant to emphasise that: "[i]n order to comply with the conditions, the attack must be directed against a military objective with means which are not disproportionate in relation to the objective, but are suited to destroying only that objective, and the effects of the attacks must be limited in the way required by the Protocol; moreover, even after those conditions are fulfilled, the incidental civilian losses and damages must not be excessioei." The sentences "It does not address justifications for war or other rules related to jus ad bellum. It reflects the proportionality requirement inherent in determining the legality of any military activity undertaken in the context of an armed conflict" clarify both the fact that international humanitarian law applies to armed conflicts regardless of the cause of the conflict or the motives of the parties thereto and the distinct nature of the ius ad bellum, which is irrelevant in this context, and the ius in bello, which is relevant, in assessing the proportionality requirement of this crime. These statements are a correct reflection of existing law and should be clear even without saying. The clarification is nevertheless very valuable.

94

See C. Pilloud/ J. Pictet, "Article 51", in: Sandoz/ Swinarski/ Zimmermann , see note 71, No. 1979.

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The sentence "Such advantage mayor may not be temporally or geographically related to the object of the attack" may however invite abusive interpretations of the concept of concrete and direct military advantage. The need for this sentence was highlighted in informal consultations only on the basis of examples, such as feigned attacks where the military advantage materialises at later time and in a different place (reference was made to the landing of the allied forces in the Normandy during World War II95). The first sentence, containing the requirement of foreseeability, was meant to exclude advantages which are vague and, more importantly, to exclude reliance on ex post facto justifications. It emphasises that the evaluation of whether the collateral damage or injury is likely to be excessive must be undertaken before the decision to launch the attack. Therefore, launching one or more attacks on the blithe assumption that at the end of the day the collateral damage or injury will not be excessive would not respect the law. This interpretation is required by the words "concrete and direct". When the AP I was negotiated, "[tjhe expression 'concrete and direct' was intended to show that the advantage concerned should be substantial and relatively close, and that advantages which are hardly perceptible and those which would only appear in the long term should be disregarded".96 Several delegations emphasised that the term "overall" could not refer to long-term political advantages or the winning of a war per se. Subsequent discussions concerned the evaluation that has to be made with regard to the excessiveness of civilian damage. Some delegations felt that element 3 of this crime ("The perpetrator knew that the attack would cause incidental death, injury or damage to civilian objects or widespread, long-t erm and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct military advantage".) needed to be re-evaluated to clarify the relevant value judgement in light of the General Introduction para. 4. These delegations claimed that the perpetrator must personally make a value judgement and come to the conclusion that the civilian damage would be excessive. Saying this , these delegations questioned an understanding seemingly reached during informal consultations which led to the first reading text. The words "of such an extent as to be", 95 96

See W. Solf, "Article 52", in: M. Bothe/ K.J. Parts chi W. Solf, N ew Rules for Victims ofArmed Conflicts, Commentary, 1982, 324 et seq. C. Pilloudl J. Pictet, "Article 57", in: Sandozl Swinarskil Zimmermann, see note 71, No. 2209.

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which are not contained in the Statute, were added initially - at least in the eyes of those who made the proposal - in order to make it clear that the perpetrator need only know the extent of the damage he or she will cause and the military advantage anticipated . Whether the damage was excessive should be determined by the Court on an objective basis from the perspective of a reasonable commander. Almost at the end of the Prep Com, without intensive discussions in the formal Working Group or informal consultations on its rationale, the following footnote was inserted to overcome the divergent views: «As opposed to the general rule set forth in paragraph 4 of the General Introduction, this knowledge element requires that the perpetrator make the value judgement as described therein. An evaluation of that value judgement must be based on the requisite information available to the perpetrator at the time". This footnote left some ambiguities, which was probably the reason why it was accepted as a compromise. The first sentence seems to be clear: a value judgement must have been made as described in element 3. The judges will need to decide what is required by the description in that element and in particular the consequences to be drawn from the addition of the words "of such an extent as to be". The meaning of the second sentence allows for diverging interpretations. To those who insisted on a more objective evaluation, the formulation "an evaluation of that value judgement" refers to an external evaluation by the Court. The Court would have to make an objective analysis of the judgement "based on the requisite information available to the perpetrator at the time". To others, the second sentence merely highlights that the value judgement must be made on the basis of the information available at the time. In the view of a few delegations, which favoured a more subjective approach, the footnote would probably exclude criminal responsibility not only for a perpetrator who believes that a particular incidental damage would not be excessive, even if he or she is wrong, but also for those who did not know that an evaluation of the excessiveness has to be made. As to the latter one might question whether this is compatible with the rule that ignorance of the law is no excuse. In one respect, there seemed to be agreement between states that drafted this footnote: They recognized that this footnote should not lead to exonerating a reckless perpetrator who knows perfectly well the anticipated military advantage and the expected incidental damage, but gives no thought to evaluate the excessiveness. It was argued that by refusing to evaluate the advantage and the damage he/she makes the

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requisite value judgement. If the Court finds that the damage would be excessive, the perpetrator will be guilty. There is probably no doubt that a court will respect judgements that are made reasonably and in good faith on the basis of the requirements of international humanitarian law. In any case, an unreasonable judgement or an allegation that no judgement was made, in a case of death, injury or damage clearly excessive to the military advantage anticipated, would simply not be credible. It is submitted that the Court would then, and it would be entitled to do so, infer the mental element based on that lack of credibility. As indicated in the footnote, the Court must decide such matters on the basis of the information available to the perpetrator at the time. Intentionally using Starvation of Civilians as a Method of Warfare by depriving them of Objects indispensable to their Survival, including wilfully impeding Relief Supplies as provided for under the Geneva Conventions

The prohibited conduct of this war crime is defined in the elements as "The perpetrator deprived civilians of objects indispensable to their survival". Delegations agreed that the deprivation of not only food and drink, but for example also medicine or in certain circumstances blankets could be covered by this crime, if in the latter case these were indispensable to the survival due to the very low temperature in a region. Corning from that understanding, in an initial Rolling Text of the Working Group a footnote was inserted to underline that the intention to starve would also include the broader approach of deprivation of something necessary to live. Although the substance of the footnote was not contested (only one delegation expressed some doubts), the majority eventually considered it to be redundant and covered by the term "objects indispensable to their survival". The footnote was therefore dropped in the final version. For similar reasons, delegations refrained from inserting the example given by the Statute ("impeding relief supplies as provided for under the Geneva Conventions"). It was felt that as one example of prohibited conduct it did not constitute a separate element and was covered by the general term of "deprivation." The war crime does not cover every deprivation, but as stated in element 2 only those effected by the perpetrator with the intention of starving civilians as a method of warfare. Contrary to an initial pro-

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posal." the Prep Com agreed that there is no requirement that "as a result of the accused's acts, one or more persons died from starvation". War Crimes involving the Use ofParticular Weapons

Due to the very brief wording of the Rome Statute for the war crime of "Employing poison or poisoned weapons" (article 8 (2) (b) (xvii», it was necessary for the EOC to explain the requirements under this crime in more detail. However, in order to avoid the difficult task of negotiating a definition of poison, the text adopted includes a specific threshold with regard to the effects of the substance: "The substance was such that it causes death or serious damage to health in the ordinary course of events, through its toxic properties". These effects must be the consequence of the toxic features of the substance. A number of delegations opposed the threshold requiring "serious damage to health", but eventually joined the consensus. The war crime "Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices" (article 8 (2) (b) (xviii)) is derived from the 1925 Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare and covers chemical weapons. The PrepCom intensively debated the scope of the prohibition in the Geneva Gas Protocol, as reaffirmed subsequently on several occasions, and, in particular, the question of whether the prohibition also covered riot control agents. In this context it was also debated how far developments in the law relating to chemical warfare since 1925 could be reflected in the elements, taking into account the decision in Rome to exclude a reference to the 1993 Chemical Weapons Convention. With regard to riot control agents, some states argued that any use of such agents in international armed conflict is prohibited. Among these delegations some took the view that the initial 1925 so called Geneva Gas Protocol already prohibited such use, others argued that the law with regard to riot control agents might not have been completely clear under the Gas Protocol, but that the adoption of the 1993 Chemical Weapons Convention had confirmed the prohibition, if riot control agents are used as a method of warfare. 98 Even amongst these delega97

98

PCNICC/1999/DPAIAdd.2. See article I (5) of the Convention, which explicitly states that "[e]ach State

Party undertakes not to use riot control agents as a method of waifare. " Riot control agents (RCAs) are defined as "raIny chemical not listed in a

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tions there were diverging views as to the meaning of the notion of "method of warfare". At the other end of the spectrum a few delegations considered that the use of these agents was permitted. In the end the controversy was not entirely solved. The PrepCom did not define the specific gases, liquids, materials or devices, but chose a similar approach as for the war crime of "Employing poison or poisoned weapons " . As a compromise, it was accepted that the gases, substances"? or devices covered were defined by reference to their effects, namely as causing "death or serious damage to health in the ordinary course of events". 100 This would mean that the use of riot control agents in most circumstances would not be covered by this effect-oriented definition. Delegations in favour of this compromise justified it by emphasising that the ICC is designed to deal only with "the most serious crimes of concern to the international community as a whole". Whilst many took the view that these elements would prevent the prosecution of some actions that might be unlawful under other provisions of international law, all offences "of serious concern" would be within the terms of the elements as drafted. Given that many delegations feared that the threshold "death or serious damage to health" would have limiting effects on the law governing chemical weapons.l?' a footnote was added

Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure." 99 In the EOC the term "substance" is used to cover both "liquids" and "materials" as contained in the statutory language. It was not the intention of the drafters to limit in any way the scope of application by this change . 100 The specific elements read as follows: "1. The perpetrator employed a gas or other analogous substance or device. 2. The gas, substance or device was such that it causes death or serious damage to health in the ordinary course of events, through its asphyxiating or toxic properties". 101 See article II of the 1993 Chemical Weapons Convention: "1. "Chemical Weapons" means the following, together or separately: (a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes; (b) Munitions and devices, specifically designed to cause death or other hann through the toxic properties of those toxic chemicals specified in subparagraph (a), which would be released as a result of the employment of such munitions and devices; f...J 2. "Toxic Chemical" means:

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to ensure that the elements were to be considered as specific to the war crime in the ICC Statute and not to be interpreted as limiting or prejudicing in any way existing or developing rules of international law with respect to development, production, stockpiling and use of chemical weapons.

In addition to this controversy there was some discussion about the need to reproduce in the EOC the word "device" contained in both the terms of the ICC Statute and the 1925 Geneva Gas Protocol. While some delegations were in favour of deleting the word "device", others argued that this would give rise to the risk of limiting the scope of the crime. The PrepCom followed the latter view. This approach seems to be justified. As pointed out in a commentary to the Geneva Gas Protocol, including its trauaux preparatoires: "[The term 'device'] marks once more the intention of the authors to give to their definition a comprehensive and open-ended character" and "It could be claimed, for instance, that [...j an aerosol, which is a suspension of solid particles or liquid droplets in air, is neither a gas nor a liquid, a material or a substance".102

Sexual Crimes l 03 Much time was devoted by the PrepCom to the gender crimes defined in article 8 (2) (b) (xxii). The task was quite difficult because little case law existed on this issue at the time of negotiations, and even where case law exists it is not always uniform. For example, the ad hoc Tribunals for Rwanda and the former Yugoslavia defined the EOC of rape in different ways. In the Furundzija case the Trial Chamber of the ICTY found that the following may be accepted as the objective elements of rape:

102 103

Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardlessof their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere". (emphasis added). SIPRI (ed.), The Problem of Chemical and Biological Warfare, Volume III, CBW and the Law of War, 1973,45. The negotiations for sexual crimes were to a very large extent identical in the war crimes section and in the crimes against humanity section. Delegations agreed that the elements should therefore be drafted essentially in the same way in both sections. This analysis will focus only on some issues.

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"(i) the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; (ii) by coercion or force or threat offorce against the victim or a third person". 104 104

ICTI, Judgement, The Prosecutor v. Furundzija, IT-95-17/1-T, para. 185. See also the definition by the ICTI Prosecution quoted in that judgement (para. 174): "rape is a forcible act: this means that the act is 'accomplished by force or threats of force against the victim or a third person, such threats being express or implied and must place the victim in reasonable fear that he, she or a third person will be subjected to violence, detention, duress or psychological oppression'. This act is the penetration of the vagina, the anus or mouth by the penis, or of the vagina or anus by other object. In this context, it includes penetration, however slight, of the vulva, anus or oral cavity, by the penis and sexual penetration of the vulva or anus is not limited to the penis". (Footnote omitted). In the Kunarac and others case, which was decided after the end of the PrepCom negotiations, the ICTI confirmed this view generally. It felt, however, a need to clarify its understanding of Element (ii) of the Furundzija definition: "The Trial Chamber considers that the Furundzija definition, although appropriate to the circumstances of that case, is in one respect more narrowly stated than is required by international law. In stating that the relevant act of sexual penetration will constitute rape only if accompanied by coercion or force or threat offorce against the victim or a third person, the Furundzija definition does not refer to other factors which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim, which [ .'; is in the opinion of this Trial Chamber the accurate scope of this aspect of the definition in international law". ICTI, Judgement, The Prosecutor v. Dragoljub Kunarac and others, IT-9623 and IT-96-23/1-T, para. 438. On the basis of the relevant law in force in different national jurisdictions, it identified the following three broad categories of factors that qualify the relevant sexual acts (as defined in the Furundzija case) as the crime of rape: "(i) the sexual activity is accompanied by force or threat offorce to the victim or a third party; (ii) the sexual activity is accompanied by force or a variety of other specified circumstances which made the victim particularly vulnerable or negated her ability to make an informed refusal;or (iii) the sexual activity occurswithout the consent of the victim". Ibid., para. 442. "Consent for this purpose must be given voluntarily, as a result of the victim's free will, assessedin the context of the surrounding circumstances.", ibid., para. 460.

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However, the Trial Chamber of the ICTR defined rape in the Akayesu case as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. 105 The delicate compromise found in the EOC incorporates aspects from both judgements and should not be in conflict with the more recent ICTY case law in re Kunarac and others.106 It now reads as follows: "1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, ofany part of the body of the victim or ofthe perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part ofthe body. 2. The invasion was committed by force, or by threat offorce or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent

f...j". A footnote to element 2 clarifies that "[ilt is understood that a person may be incapable of giving genuine consent if affected by natu ral, induced or age-related incapacity".

105 106

The Appeals Chamber upheld this view and gave the following additional explanation: "[...} in explaining its focus on the absence of consent as the conditio sine qua non of rape, the Trial Chamber did not disavow the Tribunal's earlierjurisprudence, but instead sought to explain the relationship between force and consent. Force or threat offorce provides clear evidence of non-consent, but force is not an element per se of rape. In particular, the Trial Chamber wished to explain that there are "f actors [other than force} which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim". A narrow focus on force or threat offorce could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physicalforce". ICTY Appeals Chamber, Judgement, The Prosecutorv. Dragoljub Kunarac and others, IT-96-23 and IT-96-23/1-A, para. 129. ICTR, Judgement, The Prosecutor v. Jean Paul Akayesu, ICTR -96-4-T, para. 688. See note 104.

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The formulation "invaded [...J by conduct resulting in penetration » in element 2 was chosen in order to draft the elements in a genderneutral way and also to cover rape committed by women. Element 2, including the above-cited footnote, largely reflects the findings of the ICTR in the Akayesu case taking into account the effect of special circumstances of an armed conflict on the victims' will:

"[Cjoerciue circumstances need not be evidenced by a show ofphysical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence [ ..]".107 Another point of major controversy in this cluster of crimes was how to distinguish enforced prostitution from sexual slavery, and especially whether the fact that the "perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature" was an element of enforced prostitution or not. After long debates states answered in the affirmative. The addition of "or other advantage" was made in order to achieve a compromise between the group of delegations that objected to the requirement of pecuniary advantage and the group that insisted on it. Finally, considerable difficulties existed with regard to the war crime of sexual violence due to the formulation found in the Statute "also constituting a grave breach of the Geneva Conventions". While some delegations argued that this formulation should only indicate that gender crimes could already be prosecuted as grave breaches , others thought that the conduct must constitute one of the crimes defined in article 8 (2) (a) - the specifically named grave breaches of the GC and in addition involve violent acts of a sexual nature. The majority of delegations, in an attempt to reconcile the wording of the Statute with its aim, considered the formulation as an element of the crime that introduces a specific threshold. Therefore, the compromise reads as follows: "1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat offorce or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse ofpower, against such person or persons or another

107

Ibid.

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person, or by taking advantage of a coercive environment or such person's or persons' incapacity to give genuine consent. 2. The conduct was ofa gravity comparable to that of a grave breach ofthe Geneva Conventions

[...r. The Transfer, directly or indirectly, by the Occupying Power ofParts of its own Civilian Population into the Territory it occupies, or the Deportation or Transfer ofall or parts ofthe Population ofthe Occupied Territory within or outside this Territory

The most difficult negotiations concerned the war crime of "transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory" as defined in article 8 (2) (b) (viii). The alternative of transferring, directly or indirectly, by the Occupying Power parts of its own civilian population into the territory it occupies especially caused important controversy. The main points of controversy were the following: Is this crime limited to forcible transfers, although the Statute uses the formulation "transfer, directly or indirectly"? Is this crime limited to transfer of population on a large scale? Must the economic situation of the local population be worsened and their separate identity be endangered by the transfer? - What link must be between the perpetrator and the Occupying Power? After intensive informal negotiations, which, due to the sensitivity of the issue, were almost exclusively conducted between interested delegations behind closed doors, agreement was reached. By and large, the elements reproduce the statutory language. The actus reus of this alternative of the crime requires that the perpetrator "transferred, directly or indirectly, parts of its own population into the territory it occupies". A footnote added to the term "transferred" eventually broke the deadlock. It simply indicates that the "term
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The text adopted, which is largely based on an initial Costa Rican/Hungarian/Swiss proposal, requires that the perpetrator "transferred, directly or indirectly, parts of its own population into the territory it occupies". This element omits the words "by the Occupying Power" contained in the Statute. Instead the words "its own population" refer back to the perpetrator only, without clarifying a link to the Occupying Power. In order to solve this latter issue, Switzerland orally amended its written proposal, by suggesting "{t]he perpetrator, transferred, {.,.j, parts of the population of the occupying power {.,.j". This suggestion was however not included in the final text. The PrepCom decided to retain the somewhat ambiguous formulation coming from the Swiss proposal. It is not entirely clear whether the omission of the word "civilian" before "population" is an unintended drafting error, which was not corrected due to the fear that any change of wording would reopen the sensitive compromise arrived at, or a deliberate departure from statutory language. Given that the EOC must be consistent with the Statute (article 9 (3» the former seems to be more likely.

4. War Crimes under article 8 (2) (c) ICC Statute The crimes defined in article 8 (2) (c) ICC Statute cover serious violations of article 3 common to the four Geneva Conventions of 12 August 1949. a. Elements Common to all Crimes under article 8 (2) (c) of the ICC Statute The elements for the crimes listed in article 8 (2) (c) contain four general elements repeated for each crime describing the material and personal scope of application as well as the mental elements accompanying the objective elements. Both objective elements are derived from the chapeau of article 8 (2) (c) ICC Statute: "In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause",

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The first common element reads as follows: "The conduct took place in the context of and was associated with an armed conflict not of an international character". The notion of an "armed conflict not of an international character" is not further elaborated. The Introduction to the war crimes section of the EOC document contains however the following statement:

"The elements for war crimes under article 8, paragraph 2 (c) and (e), are subject to the limitations addressed in article 8, paragraph 2 (d) and (j), which are not elements of crimes". This paragraph emphasises that the content of article 8 (2) (d) and (f) provides limitations to the Court's jurisdiction. Several interested delegations wanted to make sure that whenever the threshold for a noninternational armed conflict is not reached the Court would not examine conduct taking place within a country. Therefore, this paragraph was added to the Introduction. Given that the PrepCom did not con sider the limitations as elements of crimes the PrepCom did not discuss the content. As in the case of article 8 (2) (a), the mental element "The perpetrator was aware of factual circumstances that established the existence of an armed conflict" is added as the second common element. The Introduction to the war crimes section relating to the required knowledge of the perpetrator is also applicable as described above.F" The third and fourth common elements are drafted in the following way: "Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities. The perpetrator was aware of the factual circumstances that established this status. " These elements define those who may be victims of a war crime for the purposes of article 8 (2) (c) ICC Statute and the related knowledge of the perpetrator. The wording as to the victims differs from that of common article 3 GC and the chapeau of article 8 (2) (c) ICC Statute. However, several states took the view that the wording of common article 3 GC is "ambiguous" and needed clarification in the EOC document. In their view - which prevailed after long negotiations - the formulation chosen reflects the correct interpretation of common article 3 GC and avoids ambiguity. Many delegations were quite hesitant to accept this compromise because they feared that persons protected might be left out of the definition in this reformulation exercise. In contrast to common article 3 GC, the notion JOS

See under III. 2. a. aa.

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of "hors de combat" is not further clarified by the addition of examples. However it was the understanding of the drafters in informal consultations that the term "hors de combat" should not be interpreted in a narrow sense. In addition to the examples contained in common article 3 GC, reference was also made to the content of arts 41 and 42 of AP I.

b. Elements Specific to the Crimes under article 8 (2) (c) of the ICC Statute The specific elements of most war crimes under article 8 (2) (c) are defined more or less in the same manner as those in article 8 (2) (a) ICC Statute. It was the view of states that there can be no difference between wilful killing and murder, between inhuman and cruel treatment, between torture or the taking of hostages in international or in noninternational armed conflicts. This approach is in conformity with the case law of the ICTY.I09 With regard to article 8 (2) (c) (iv) ICC Statute it is worthwhile indicating that the drafting of the elements of this crime was largely influ-

109 The ICTY concluded - with regard

to any difference between the notions of "wilful killing" in the context of an international armed conflict on the one hand, and "murder" in the context of a non-international armed conflict on the other hand - that there "can be no line drawn between "wilful killing" and "murder" which affect their content", ICTY, Judgement, The Prosecutorv. Zejnil Delalic and others, IT-96-21-T, paras 422 and 423. According to the Tribunal, "cruel treatment constitutes an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. As such, it carries an equivalent meaning and therefore the same residual function for the purpose of common article 3 of the Statute, as inhuman treatment does in relation to grave breaches of the Geneva Conventions", ibid., para. 552. Concerning any difference between the notion of "torture" in the context of an international armed conflict on the one hand, and in the context of a noninternational armed conflict on the other hand, the ICTY concluded that "[tfbe characteristics of the offence of torture under common article 3 and under the 'grave breaches' provisions of the Geneva Conventions, do not differ", ibid., paras 443. As to taking of hostages in an international armed conflict the ICTY held: "The elements of the offence are similar to those of article 3 (b) of the Geneva Conventions covered under article 3 of the Statute", ICTY, Judgement, The Prosecutor v. Tihomir Blaskic, IT-95-14-T, para. 158.

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enced by the content of article 6 (2) AP II. The specific elements in the text read now as follows: "article 8 (2) (c) (vi): War crime of sentencing or execution without due process 1. The perpetrator passed sentence or executed one or more persons. [...j 4. There was no previous judgment pronounced by a court, or the court that rendered judgment was "not regularly constituted", that is it did not afford the essential guarantees of independence and impartiality, or the court that rendered judgment did not afford all other guarantees generally recognized as indispensable under international law. 5. The perpetrator was aware of the absence of a previous judgment or of the denial of relevant guarantees and the fact that they are essential or indispensable to a fair trial [...]". On the basis of article 6 AP II the term "regularly constituted court" as contained in common article 3 and thus article 8 (2) (c) (iv) ICC Statute is defined as a court that affords the essential guarantees of independence and impartiality. The issue of whether a list of fair trial guarantees should be included as suggested in the Swiss/Hungarian/Costa Rican proposal has been controversial.U? Some states feared that even an illustrative list would suggest that rights omitted were not indispensable, others feared that there could be a discrepancy between this list of fair trial guarantees and those contained in the Statute, and a third group took the view that a violation of only one right would not necessarily amount to a war crime. Instead of weakening the value of such a list of fair trial guarantees by an introductory paragraph defining what is to be considered indispensable, states preferred not to include such a list. In addition, the concerns of the third group of states are reflected in a footnote which reads as follows:

"With respect to elements 4 and 5, the Court should consider whether, in the light of all relevant circumstances, the cumulative effect of factors with respect to guarantees deprived the person or persons ofa fair trial".

110

PCNICC/19991WGEC/DP.10.

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5. War Crimes under article 8 (2) (e) ICC Statute The crimes defined in article 8 (2) (e) ICC Statute cover other serious violations of the laws and customs applicable in armed conflicts not of an international character. a. Elements Common to all Crimes under article 8 (2) (e) of the ICC Statute The elements for the crimes listed in article 8 (2) (e) contain two general elements repeated for each crime, describing the material scope of application as well as the mental element accompanying the objective element. The "contextual" element and the accompanying mental element are copied from the set of elements for the war crimes under article 8 (2) (c). The comments already made therefore apply also in this case. b. Specific Elements to the Crimes under article 8 (2) (e) of the ICC Statute The specific elements of most war crimes under article 8 (2) (e) are defined more or less in the same manner as the corresponding crimes in article 8 (2) (b) ICC Statute. It was the view of states that there is no difference in substance between the elements of crimes in an international armed conflict and those in a non-international armed conflict. The only war crime under article 8 (2) (e), which does not have a parallel crime in article 8 (2) (b), is the war crime under (viii) of "Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand". The PrepCom decided to introduce the following clarification in the elements of this crime: Element 1 defines the actus reus of this war crime, namely that the "perpetrator ordered a displacement of a civilian population". This implicates the individual giving the order, but not someone who simply carries out the displacement (this fact does not exclude that the person carrying out the displacement can be held individually responsible for example for the participation in the commission of the crime, see article 25 of the ICC Statute dealing with other forms of individual criminal responsibility). The wording was changed to "a civilian population" as opposed to "one or more civilians" as contained in the elements of article 8 (2) (a) (vii)-l - unlawful deportation. The drafters of the proposed

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text, which was eventually adopted by the PrepCom, felt that the displacement of one person would not constitute this crime. At the same time, the term "a population" as opposed to the formulation of the Statute "the population" clarifies that the perpetrator does not need to order the displacement of the whole civilian population. The situation in between these two extremes was not further discussed and therefore not defined. Element 2 is based on the statutory language, which is derived from the first sentence of article 17 (1) AP II. Despite the fact that one might argue that the element could be superfluous on the basis of para. 6 of the General Introduction to the EOC relating to the concept of "unlawfulness", the PrepCom decided to state that "Such order was not

justified by the security of the civilians involved or by military necessity". This departure from the approach taken in other cases l ll was justified by the fact that this requirement is explicitly mentioned in the Statute and should therefore be repeated. Element 3 clarifies that the perpetrator needs to have the authority or power to carry out the displacement. The drafters agreed - and this view was not contested by the Working Group on EOC when the proposed text was introduced with that explanation - that the formulation "The perpetrator was in a position to effect such displacement by giving such order" would cover both de jure and de facto authority to carry out the order, so that the crime would cover the individual who, for example, has effective control of a situation by sheer strength of force. Quite surprisingly the elements of this crime do not contain additional clarification which can be found in the definition of this war crime in the Statute: this offence prohibits only displacements "for reasons related to the conflict". In fact, displacement may prove to be necessary in certain cases of epidemics or natural disasters such as floods or earthquakes. Such circumstances are not covered by article 17 AP II, and thus in article 8 (2) (e) (viii) of the ICC Statute. An additional element for determining the lawfulness neither mentioned in the Statute nor in the EOC may be found in the second sentence of article 17 (1) AP II. In accordance with that provision

III

For example in the case of article 8 (2) (a) (vii)-l: Unlawful deportation article 49 (2) GC IV allows evacuations/displacements justified for exactly the same reasons, namely if justified for the security of the population or by imperative military reasons. However these situations excluding the unlawfulness are not mentioned in the EOC adopted.

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"[...} all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition". Despite the fact that these limitations are not included in the EOC the future judges will need to analyse them on the basis of para. 6 of the General Introduction relating to the concept of "unlawfulness".

1'\1. Conclusions on the Work Related to Elements of War Crimes The PrepCom had an enormous task to accomplish over the two years it took to finalise a document on EOC. The document had to be more specific than the definitions of the crimes themselves, without unduly tying the hands of the judges or reducing the scope of their judicial discretion. Trying to be as specific as possible and providing useful guidance always involves the risk of leaving something out . This risk is most pertinent in relation to international humanitarian law. As has been shown in this article concerning the example of "Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly", the grave breaches provisions refer back to various provisions in the Geneva Conventions which establish a different level of protection and define different standards for specific protected property. In contrast to crimes against humanity, which now have been defined for the first time in the ICC Statute, the relevant international humanitarian law texts, and in particular the Geneva Conventions, provide the necessary framework to enable the judges to "find the law". In spite of the shortcomings raised in this article, it can be said that the EOC discussed in this contribution appear to a very large extent to be drafted in accordance with existing international humanitarian law. Nevertheless, there are some problematic and contentious issues which might need further reflection, in particular cases where ambiguous formulations were adopted in order to reach a compromise. This reflection will have to be performed by the judges themselves, using the EOC for guidance. These should not be an absolute strait-jacket for judges, who will still need to look at the relevant legal instruments of international humanitarian law and to analyse the state practice and opinio iuris in order to determine existing rules of customary international law; a task

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that the judges of the ad hoc Tribunals have accomplished so far even without a document entitled "elements of crimes". Notwithstanding various diverging views, which sometimes have been quite important, it should be stressed that the negotiations were conducted in an extremely cooperative and constructive atmosphere determined by the wish to achieve the common goal of completing the mandate of the PrepCom with regard to the EOC.

~

Addendum: The Use of the Elements of Crimes at the National Level

While article 9 of the ICC Statute only defines the role of the EOC for the ICC, the EOC may also have an influence on the crimes' interpretation by national courts. Interestingly, since the negotiation of the EOC, a number of states made reference to the EOC in their implementing legislation of the Rome Statute. The approaches chosen in the legislation at our disposal may be distinguished as follows: (1) A simple cross-reference is made to the EOC as adopted by the Assembly of States Parties. They are generally described as one of the tools for interpretation of the corresponding crimes' provisions. In the United Kingdom, Scotland and Malta, the court "shall take [them] into account";ll2 and in Italy - in accordance with its proposed

112

United Kingdom, International Criminal Court Act 2001, Chapter 17,26,

No.

so:

"(2) In interpreting and applying the provisions of those articles [articles 6, 7 and 8 (2) of the ICC Statute] the court shall take into account(a) any relevant Elements of Crimes adopted in accordance with article 9 [ICC Statute], and (b) until such time as Elements of Crimes are adopted under that article, any relevant Elements of Crimes contained in the report of the Preparatory Commission for the International Criminal Court adopted on sc' June 2000. (3) The Secretary of State shall set out in regulations the text of the Elements of Crimes referred to in subsection (2), as amended from time to time. The regulations shall be made by statutory instrument which shall be laid before Parliament after being made. [...]

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draft law, it is stated that "Nella interpretazione della presente legge si tiene in particolare conto dell'esigenza di una uniforme applicazione del diritto penale internazionale, con specifico riferimento allo Statuto ed

(5) In interpreting and applying the provisions of the articles referred to in subsection (1) the court shall take into account any relevant judgment or decision of the ICC. Account may also be taken of any other relevant international jurisprudence." Scotland, The International Criminal Court (Scotland) Act 2001 (Commencement) Order 2001, (coming into force 17 December 2001): "1 Genocide, crimes against humanity and war crimes (1) It shall be an offence to commit genocide, a crime against humanity or a war crime. ... (4) In subsection (1) above'war crime' means a war crime as defined in article 8.2 [ICC Statute). [ ] 9 Application of principles of the law of Scotland, construction etc. [ ] (2) In interpreting and applying the provisions of the articles mentioned in section 1(4) of this Act the court shall take into account any relevant Elements of Crimes. 28 Interpretation [... ] 'Elements of Crimes' means the Elements of Crimes set out in regulations made under section 50(3) of the 2001 Act. " In the Explanatory Notes to International Criminal Court (Scotland) Act, 2001 ASP 13 it is more affirmatively stated: "20. The courts must take into account the Elements of Crimes when interpreting and applying articles 6, 7 and 8.2. The Elements of Crimes will be adopted by the ICC when it is established, but are likely to be similar to those adopted by the Preparatory Commission for the ICC on 30 June 2000. When they have been adopted the UK Act provides that the text will be set out in regulations which will be made by statutory instrument. These articles must also be construed subject to and in accordance with any reservations or declarations made by the UK Government and certified by Order in Council made under the UK Act". Malta, International Criminal Court Act, Act XXIV of 2002, http://www.docs.justice.gov.mt/lom/legislation/english/leg/voL14/ chapt453.pdf "(4) In interpreting and applying the provisions of articles 54B [Genocide], 54C [Crimes against humanity] and 54 D [War crimes], roo] the court shall take into account(a) any relevant Elements of Crimes adopted in accordance with article 9 of the ICC Treaty, and (b) until such time as Elements of Crimes are adopted under that article, any relevant Elements of Crimes contained in the report of the Preparatory Commission for the International Criminal Court adopted on 30'h June, 2000".

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agli elementi costitutivi dei crimini. "113 Thus, in these cases, the national legislation made the EOC one of the obligatory sources for the interpretation of the crimes . As far as the United Kingdom legislation is conc erned, it seems that the judge must consider the Elements but he or she could refuse to apply a particular part of them, since they are a means of 'interpreting and applying' arts 6, 7 and 8 of the Statute. Should he or she do this, reasons would be expected. If the judge disregarded a particular relevant Element which was considered to be against the interests of the accused, it would be imaginable that an appeal would be brought to the Court of Appeal.l!" New Zealand however accorded less weight to the EOC by regulating that the court "may have regard to" them.U'' Denmark foresees the possibility that "The Minister for Foreign Affairs may decide that the following provisions shall apply in this country: [.. .J 2) The recommended descriptions of the content of crimes and amendments thereto, d. article 9 of the Statutes. "116 No such decision has been taken at the time of writing.

Italy, Camera Dei Deputati, XIV Legislatura, Proposta di legge, presentata il 9 maggio 2002, see article 5. Article 3 specifies "I. Ai f ini della presente legge: [oo .J c) per "elementi costitutiui dei crimini" si intende il testo degli elementi dei delitti di genocidio, dei delitti contro l'umanits e dei crimini di guerra predisposto dal Comitato preparatorio per la creazione della Corte penale intemazionale ed approvato dall'Assemblea degli Stati parte ai sensi dell'articolo 9 dello Statuto". 114 Comments by Profes sor Peter Rowe, Lancaster University, given to the author on 28 March 2003. 115 New Zealand, International Crimes and International Criminal Court Act 2000, Public Act 2000 No. 26, date of assent 6 September 2000: "12 General principles of criminal law [...J (4) For the purposes of interpreting and applying articles 6 to 8 of the Statute in proceedings for an offence against section 9 [genocide] or section 10 [crimes against humanityJ or section 11 [war crimes], (a) the New Zealand Court exercising jurisdiction in the proceedings may have regard to any elements of crimes adopt ed or am ended in accordance with article 9 ofthe Statute". 116 Denmark, Lov om Den Internationale Straffedomstol, LOV nr. 342 af 16/0512001 (Gaeldende): "§ 1. The Statute of the International Criminal Court [...J shall apply in this country. Para. 2: The Min ister fo r Foreign Affairs may decide that the follo wing provisions shall apply in this country: 113

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(2) The EOC served as a basis for the drafting of elements of crimes to be applied by the national courts. Australia took this approach in its Act to Amend the Criminal Code Act of 1995 and certain other Acts. 117 It enacted elements of crimes with binding force, which are largely based on those adopted by the Assembly of States Parties . However, they sometimes contain differences in relation to the mental element required, but also in relation to the actus reus (for example for the war crime of transfer of population as defined in article 8 (2) (b) (viii) ICC Statute and the sexual crimes as defined in article 8 (2) (b) (xxii) ICC Statute). Without trying to be exhaustive, the following discrepancies shall be mentioned: by restricting property protected from destruction or seizure to property mentioned in articles 18 GC III, 53 GC IV and 54 AP I, the Act limits the war crime under article 8 (2) (b) (xiii) ICC Statute considerably. Contrary to the view taken at the PrepCom the Australian elements contain a limited list of prohibited purposes for the war crime of torture. Other differences are due to the fact that Australia is party to AP I, thus the grave breaches can also be committed against persons or property protected by AP I. While referring not only to the use of the distinctive emblem in conformity with the GC, but also to the use in conformity with the APs, Australia takes into account its obligations under the APs, but it does not include other methods of identification indicating protection as foreseen in the EOC adopted for the ICC. Explanatory footnotes, which were often part of the deal during negotiations at the PrepCom, are generally not included. (3) No mention of the EOC is made in the national legislation. In a number of countries the crimes contained in the ICC Statute are only defined by referring to arts 6-8 or by reproducing their or a similar formulation.U''

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[...J 2) The recommended descriptions of the content of crimes and amendments thereto, if. article 9 of the Statutes". (tran slation) Australia, International Criminal Court (Consequential Amendments) Act 2002, No. 42, 2002, An Act to Amend the Criminal Code Act of 1995 and certain other Acts in consequence of the enactment of the International Criminal Court Act 2002, and for other purposes [Assented to 27 June 2002]. See for example South Africa, Government Gazette, Volume 445 Cape Town 18 July 2002, No. 23642, "No. 27 of 2002: Implementation of the Rome Statute of the International Criminal Court Act, 2002", 6, 8, 38-46; Germany, "Gesetz zur Einfiihrung des Volkerstrafgesetzbuches vom 26.

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In its message concerning the ICC Statute, the Swiss Federal Council described the role of the EOC at the Swiss national level as follows: "Les 'elements des crimes' ne sont pas des elements constitutifs d'une infraction au sens du droit penal suisse. [...j il s'agit plutOt d'une sorte de mode d'emploi a l'attention de la Cour [i.e. the ICC]. Les 'elements des crimes' n'ont pas d'effet juridique obligatoire. [...] La valeur normative des 'elements des crimes' se limite done aoffrir ala Cour [i.e. the ICC] une source d'inspiration et d'information dans l'interpretation et l'application du Statuto [...] Pour les tribunaux nationaux, ces elements representeront vraisemblablement aussi un soutien pour etablir le droit, mais ils n'ont en aucune maniere un effet obligatoire pour eux lorsqu'ils doivent trancher un cas. Les 'elements des crimes ont ite concus exclusivement aux fins de faciliter l'interpretation et l'application du Statut par la Cour [i.e. the ICC). Dans la pratique des tribunaux, ces elements pourraient prendre de l'importance s'ils venaient a etre acceptes de [aeon generale par les Etats Parties et a ref/iter le droit des gens en vigueur".119 Thus, Switzerland stresses the subsidiary character of the EOC for the ICC in the interpretation of the crimes under its jurisdiction as well as the fact that they will not have an immediate - and certainly not a binding - effect for Swiss tribunals. It is, however, not absolutely excluded that they may assist national courts in the interpretation.

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Juni 2002, BGBl. 2002, Teil I Nr. 42"; Canada, "International Criminal Court Act 2001", Statutes of Canada 2000, Chapter 24, An Act respecting genocide, crimes against humanity and war crimes and to implement the Rome Statute of the International Criminal Court, and to make consequential amendments to other Acts [Assented to 29 June, 2000]): "(3) ['..J 'war crime' means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission. (4) For greater certainty, crimes described in articles 6, 7 and paragraph 2 of article 8 of the Rome Statute are, as ofJuly 14, 1998, crimes according to customary international law. This does not limit or prejudice in any way the application of existing or developing rules ofinternational law". Message [du Conseil federal Suisse] relatif au Statut de Rome de la Cour penale internationale, a la loi federale sur la cooperation avec la Cour penale internationale ainsi qu'a une revision du droit penal du 15 novembre 2000,458.

The ICC and its JurisdictionMyths, Misperceptions and Realities Mark us Wagner

I. II.

Introduction The Jurisdiction of the ICC 1. Jurisdiction ratione materiae of the ICC a. Th e Elem ents o/ Crim es b. Ind ividual Crimes und er the Statu te - Genocide aa. Cases on the N ation al and Int ernational Level aaa. N ation al Pros ecutions bbb . International Decision s bb . actus reus Requirement cc. mens rea Requirement dd. Participati on in Genocide c. Individual Crim es under the Statute - Crimes Against Humanity aa. Drafting Hi story bb. Crimes Against Humanity in th e Rom e Statute aaa. Nexus to Armed Conflict bbb. Widespread and/or Systematic ccc. Attack Directed against any Civilian Population ddd. Element of Discrimination eee. m ens rea fff. Th e Criminal Conduct Listed in Article 7 (1) of the ICC-Statute d. Individual Crimes under the Statute - War Crimes aa. Th e Threshold Clause for War Crimes - Departure from Customary Law or Political Necessity ? bb. International Armed Conflicts aaa. Gr ave Breaches of the Geneva Con v entions Article 8 (2) (a) bbb . O ther Seriou s Violations of the Laws and Customs Applicable in Armed Conflict - Articl e (2) (b) ccc. Armed Conflicts not of an International Character

A. von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 7, 2003, 409-512 . © 2003 Koninklijke Brill N. V Printed in the Netherlands.

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Max Planck UNYB 7 (2003) e. Individual Crimes under the Statute - Aggression f. The "Missing Crimes" - Dangerous Ommission or Prudent Choice? 2. Jurisdiction ratione personae and ratione tertiis of the ICC a. ratione personae b. ratione tertiis c. Jurisdiction over Nationals of non-States Parties 3. ratione temporis 4. Limitations on the Jurisdiction of the ICC a. Article 26 of the ICC-Statute - Age Limit b. Article 16 of the ICC-Statute - Security Council Deferral c. Article 17 of the ICC-Statute - Complimentarity d. Transitional Provision - Article 124 of the ICC-Statute Conclusion

I. Introduction Following the events in Jenin and other Palestinian cities during an operation of the Israeli Defense Forces (IDF) called "Defensive Shield" between March and May 2002, 1 a number of individuals and groups have openly called for prosecutions of alleged war crimes and crimes against humanity by the International Criminal Court (ICC)2 or have made statements suggesting that the ICC could be brought into action with respect to acts that took place during this operation.!

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3

See e.g. A/ES-IO/186 of 30 July 2002, Report of the Secretary-General prepared pursuant to General Assembly Resolution A/RES/ES-IO/IO; Human Rights Watch, Vol. 14, No.3 (E), Israel, the Occupied West Bank and Gaza Strip, and the Palestinian Authority Territories - Jenin: IDF Military Force, May 2002; Amnesty International, Israel and the Occupied Territories Shielded from scrutiny: IDF violations in lenin and Nablus, November 2002, (4 August 2003). J. Huggler, "Israel's new Defence Minister 'guilty of war crimes'", The Independent, 4 November 2002, 2; BBC Monitoring, "UN Arab group urges discussion of Jenin report at General Assembly on 5 August", 2 August 2002, Westlaw File WL 24808442; Agence France-Presse, "Iran calls on US to distance itself from Israel" , 15 April 2002, Westlaw File WL 2386405 . The Nation, "Israel and the ICC", 1 July 2002, 7 quoting Israel's AttorneyGeneral Elyakim Rubinstein who reported to a Knesset committee that Israelis might be charged and indicted by the ICC after it convenes on 1 July 2002 for acts committed during operation "Defensive Shield" and for settling in the occupied territories.

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Hardly has any treaty ever aroused such interest throughout the international community as the ICC-Statute. 4 This is partly due to the fact that the subject matter which the ICC is concerned with is highly controversial and concerns private individuals as opposed to states/international organizations as a legal entity on the one hand while on the other it places military action under close international scrutiny.! However, the persecution of crimes on the international level has caused a debate in which a number of issues become blurred, as evidenced by the statements provided above." Another reason for the large amount of attention that the ICCStatute received includes the numerous changes that are necessary in order to implement this treaty's provisions through a state's domestic legislative process. Hardly any other treaty has such an impact as the ICC-Statute, which requires some countries to rethink their previous stances on a variety of issues such as extradition of its own nationals (article 16 of the German Basic Law - its constitution - was changed on 29 November 2000 to provide for extradition to international judicial organs or to a member state of the European U nion/) or criminal responsibility of its Heads of State," among others. 4

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Doc .A/CONF,183/13 Vol. 1. Entry into force 1 July 2002 [hereonafter ICC-Statute]. Reprinted in this Volume. See Annex. This aspect in and of itself is not a novelty brought about by the ICC. Prior to the establishment of the ICC, numerous international instruments pertaining to humanitarian law existed and were widely ratified. For an overview of the status of ratification of the Geneva Conventions, see Departement Federal des Affaires Etrangeres, Protection des victimes de la guerre, (4 August 2003) or International Committee of the Red Cross, Geneva Conventions of 12 August 1949 and Additional Protocols of 8 June 1977: ratifications, accessions and successions, 13 December 2002, -chnpi// www.icrc.orglWeb/Eng/siteengO.nsfliwpList74177EA1BDEE20B4CCDC 1256B6600595596> (4 August 2003). See also R.S. Lee, "Introduction", in: R.S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute, Issues - Negotiations - Results, 1999, Iv et seq. (lix). These calls are either based on a misunderstanding of the jurisdictional bases of the ICC or must be considered to be politically motivated. The text of article 16 (2) Basic Law now reads: "No German may be extradited to a foreign country. The law can provide otherwise for extraditions to a member state of the European Union or to an international court of justice as long as the rule of law is upheld". For an overview of the German implementation legislation, see]. MeiBner, "Das Gesetz zur Ausfiihrung des Romischen Statuts des Internationalen

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II. The Jurisdiction of the ICC Among the most complicated matters of the ICC-Statute both in a legal and political sense - which at the same time is of utmost importance for its proper functioning and its international acceptance - is that of its jurisdictional range." Various conceptions and connotations of the term "jurisdiction" exist, ranging from fairly narrow constructions in which the term is applied solely to the exercise of the jurisdiction of the ICCIO to wider notions of jurisdiction encompassing not only ratione tertiis and ratione personae, but also ratione materiae and ratione temporisi' For the purpose of this article, the broader notion of jurisdic-

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Strafgerichtshofes", Neue [ustiz 2002, 347 et seq.; H. Satzger, "Das neue Volkerstrafgesetzbuch - Eine kritische Wiirdigung", Neue Zeitschrift fur Strafrecht 2002, 125 et seq. See e.g. the decision of the French Conseil Constitutionnel, Decision No. 98-408 DC, Traite portant statut de la Cour penale internationale, 22 January 1999. The Constitutional Council found the ICC-Statute to be incompatible with those provisions of the French Constitution pertaining to the responsibility of the President of the Republic, government officials and members of the French Parliament. A subsequent constitutional amendment resolved these problems. See No . 1462, Assemble Nationale, Projet de Loi constitutionnelle, inserant au titre VI de la Constitution un article 52-3 etrelatif ala Cour penale internationale, enregistree a la Presidence de l'Assemblee nationale Ie 11 mars 1999. This constitutional amendment introduced article 52-3 which reads: "La Republique peut reconnaitre la juridiction de la Cour penale internationale dans les conditions prevues par Ie traite signe Ie 18 juillet 1998. [The Republic may recognize the jurisdiction of the International Criminal Court as provided by the treaty signed on 18 July 1998.]" A. Zimmermann, "The Creation of a Permanent International Criminal Court", in: J. Frowein/ R. Wolfrum (eds), Max Planck UNYB 2 (1998), 169 et seq. (170); Ph. Kirsch/ J. Holmes , "The Birth of the International Criminal Court", CYIL 36 (1998),3 et seq. (22). E.g. E. Wilmshurst, "Jurisdiction of the Court", in: Lee, see note 5, 127, referring solely to arts 12-16 of the ICC-Statute. A similar view is promulgated by R. Goldstone, "Terrorists can be brought to justice only by legal means", The Independent, 2 October 2001, 5. Such an understanding is implicit in the most recent commentary on the ICC-Statute. See A. Cassese/ P. Gaeta/ J. Jones, The Rome Statute of the International Crim inal Court: A Commentary, Volume I-III, 2002, viii et seq. A similar definition is contained in Black's Law Dictionary, "Jurisdiction ", in: B. Garner (ed.), Black's Law Dictionary, 7th edition, 2000, 687: "[A] court's power to decide a case or issue a decree".

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tion including all three areas is applied. This seems especially appropriate in light of the inter-relationship'? of the various jurisdictional aspects and is supported by the wording of article 15 (4) of the ICCStatute which deals with the commencement of prosecutorial investigations after the Pre-Trial Chamber has found, inter alia, "that the case appears to fall within the jurisdiction of the Court".13 Such an approach is furthermore in line with a similar understanding of the jurisdiction of the ICJ.14 It is hardly conceivable that in any future case before the ICC these areas can be kept strictly separate as it will be necessary to evaluate the acts of the accused not only in terms of the locational or personal elements, but also with respect to the material - criminal - and temporal elements. Therefore, this article will examine each of these areas in turn. Starting with the crimes covered by the ICC-Statute, this section will also include a discussion on whether additional crimes should become part of the ICC-Statute by means of amending the Statute (1.). This is followed by an analysis of the provisions on the exercise of jurisdiction and its preconditions (2.). The temporal element will be dealt with (3.) before turning to the inherent jurisdictional limitations that were agreed upon during the negotiating process (4.).

1. Jurisdiction ratione materiae of the ICC For a number of reasons the issue of the crimes that would be covered by the future ICC-Statute was the cause of considerable discussion in

12

13

14

C. Blakesley, "Extraterritorial Jurisdiction", in: M. Cherif Bassiouni (ed.), International Criminal Law - Volume II, 2nd edition, 1999, 33 et seq. (36). Blakesley stresses the interdependence of ratione tertiis, ratione personae, ratione materiae and ratione temporis, while using a narrow conception of the term "jurisdiction" itself. His definition of jurisdiction - "the authority to effect legal interests" - has to be seen before this background. A similar argument can be advanced by way of article 19 (4) of the ICCStatute which deals with challenges to jurisdiction and article 58 (1) of the ICC-Statute which deals with the issuance of arrest warrants or a summons to appear. S. Rosenne, The Law and Practice of the International Court, 1920-1996, 3rd edition, Volume II - Jurisdiction, 1997,536 et seq. In the case of the ICJ, Rosenne points out that the Court follows a unitary concept of the term "jurisdiction" and that the distinction between ratione personae, ratione materiae or the scope of the jurisdiction ratione temporis is merely a matter of systematic presentation.

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the drafting stage of the Statute. Prior to the Rome Conference itself a consensus had emerged throughout the preparatory process that genocide, crimes against humanity and war crimes would be included, while a decision on the inclusion of the crime of aggression into the ICCStatute was still outstanding. The first group of crimes are defined in the ICC-Statute. As there was no consensus on the definition of the crime of aggression, this task was delegated to a Preparatory Commission in the Final Act of the Rome Conference. IS The list of the treatybased crimes for which no consensus had emerged until the Rome Conference contained apartheid, torture, a crime headed "Terrorism'T" and mercenarism, but also drug trafficking.V The latter crime had been the impetus for restarting the negotiations about the legal basis for an international criminal adjudicative body, when the then Prime Minister of Trinidad and Tobago, Arthur N. R. Robinson, made a statement to this effect in the General Assembly of the United Nations in 1989. 18 IS

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17

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A/CONF,183/10 of 17 July 1998, Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 8 et seq. For an overview of the definitional difficulties see C. Walter, "Defining Terrorism in National and International Law", -chttpi//edoc.mpil.de/ conference-on-terrorism/present/walter.pdf> (4 August 2003). See e.g. A. Zimmermann, "Article 5 - Crimes within the Jurisdiction of the Court", mn .I, in: O . Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 1999; P. Robinson, "The Missing Crimes", in: Cassese et al., see note 11,497 et seq. A/RES/44/39 of 4 December 1989, International Criminal Responsibility of Individuals and Entities engaged in Illicit Trafficking in Narcotic Drugs across National Frontiers and other Transnational Criminal Activities: Establishment of an International Criminal Court with Jurisdiction over such crimes. The relevant portion of the resolution reads: "[...] 1. Requests the International Law Commission, when considering at its forty-second session the item entitled "Draft Code of Crimes against the Peace and Security of Mankind", to address the question of establishing an international criminal court or other international criminal trial mechanism with jurisdiction over persons alleged to have committed crimes which may be covered under such a code of crimes, including persons engaged in illicit trafficking in narcotic drugs across national frontiers, and to devote particular attention to that question in its report on that session

[...J". For an overview of the various crimes that were considered to be part of the ratione materiae of the ICC see International Law Commission, Analytical Guide to the Work of the International Law Commission - 7,4, Draft Code of Crimes Against the Peace and Security of Mankind (Part II),

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Ultimately, a clear trend had emerged to limit the jurisdiction of the court to the so-called "core crimes " during the preparatory process.' ? The rationale behind this move was clear: the ICC was to have the broadest support pos sible and furthermore, it would enhance the cred ibilit y and moral authority of the institution to be. 20 In light of the discussion after the events of 11 September 2001 , the lack of inclusion of terrorism as a crime under the jurisdiction of the court can only be seen as a fortunate turn. Among other tasks, the Preparatory Commission was also mandated with preparing draft texts of the Rules of Procedure and Evidence 21 and of the Elements of crimesr? both of whi ch have been completed in the allotted timeframe, i.e. 30 June 2000,23 and which were adopted by consensus.v' a. The Elements of Crimes The latter document, in particular, could prove to be problematic. The nature of the Elements of crimes can be summed up as focussing on the

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20

21

22

23

24

1998, (4 August 2003). On the Draft Code of Crimes Against the Peace and Security of Mankind, see generall y J. Allain/ J . Jones, " A Patchwork of Norms: A Commentary on the 1996 Draft Code of Crimes against the Peace and Securit y of Mankind ", EJIL 8 (1997), 100 et seq. and K. Ambos, "Es tablishing an International Criminal Court and an International Criminal Code - Observations from an International Criminal Law viewpo int ", EJIL 7 (1996), 519 et seq. Report of the Committee on the Establishment of a Permanent International Criminal Court, GAOR 50th Sess., Supp l, N o. 22 (Doc. A/50122 ), 11. H. v. Hebel/ D. Robinson, " C rimes within the juri sdiction of the Court", in: R.S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules ofProcedure and Evidence, 2001, 79 et seq. (80). PCNICCI2000/1/Add.1, Report of the Preparatory Commission for the International Criminal Court - Addendum, Part I - Finalized draft text of the Rules of Procedure and Evidence of 2 November 2000. PCNICCI2000/1/Add.2, Report of the Preparatory Commission for the International Criminal C ourt - Addendum, Part II - Finalized draft text of the Elements of Crimes of 2 N ovember 2000. A/CONF.183/10, Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an Int ernational Criminal Court done at Rome, 17 July 1998, 9. R.S. Lee, " An Assessment of the ICC Statute", Fordham Int'l L. J. 25 (2002),750 et seq. (750).

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precise material and mental elements of each crime and the interplay with the general principles of criminal law.25 The provision pertaining to the Elements of crimes (article 9 of the ICC-Statute) was included at the insistence of the United States-" claiming that otherwise the crimes would lack the necessary "clarity, precision and specificity" required by criminal law and would run counter to the principle nullum crimen sine legeY It was furthermore suggested that more specific provisions outlining the essential requirements - both in terms of quantity and quality - would provide shelter from "any political manipulation of the definitions'V'' The fact that ultimately the task of elaborating a document containing the Elements of crimes was undertaken was largely due to a conviction by a majority of countries that "there was a genuine concern by a country important to the success of the ICC and that the integration of the Elements of crimes into the Statute would not necessarily weaken the ICC".29 Nevertheless, throughout the drafting process, many apprehensions remained and many states were wary in the wake of the first session of the PrepCom.P The elaboration of the Elements of crimes could have adverse consequences in the long run. According to one participant of the Rome Conference and its preparatory commission meetings, "[tjhe proposal drew little support from other delegations, many reservations, and much open opposition".3! This was mainly due to the fact that the con-

25 26

27

28 29

30

3!

D. Robinson/ H. van Hebel, "Reflections on the Elements of Crimes", in: Cassese et al., see note 11,219 et seq. (220). P. Kirsch/ V. Oosterveld, "The Preparatory Commission for the International Criminal Court", Fordham Int'l J. L. 25 (2002), 563 et seq. (564); D. Scheffer, "A Negotiator's Perspective on the International Criminal Court", Mil. L. Rev. 167 (2000), 1 et seq. (5). Report of the Preparatory Committee on the Establishment of the International Criminal Court, Volume I (Proceedings of the Preparatory Committee during March-April and August 1996), GAOR 51st Sess., Suppl. No. 22 (Doc. A/51122), 16. Report of the Preparatory Committee, see above, 17, para. 56. D. Pfirter, "The Position of Switzerland with Respect to the ICC Statute and in particular the Elements of Crimes", Cornell Int'l L. J. 32 (1999),499 et seq. (502). Pfirter, see above 29, 502. Pfirter, see note 29, 502.

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cept of codified Elements of crimes is alien to most legal systems.V In addition, it was viewed by many delegations as a further attempt to accommodate the concerns of the United States to weaken the substance of the ICC-Statute. 33 Moreover, the majority of participating countries was of the opinion that the existing definitions contained in international instruments already provided sufficient guidance." Some of the detrimental impacts that the Elements of crimes have is that they strip the court of a genuine judicial function, i.e. the independent interpretation of legal norms." However, it should be noted that the Elements of crimes, unlike the Rules of Procedure and Euidencei" are - according to article 9 (1) of the ICC-Statute - not binding for the ICCY This view is supported by the wording 38 of article 9 (1) of the ICC-Statute as the elements "[...] shall assist the Court [...]" in interpreting and applying the crimes covered by the Statute," as 32

Pfirter, see note 29, 502 stating that the elaboration of the Elements of Crimes "has confused and complicated matters"; M. Politi, "Elements of Crimes", in: Cassese et al., see note 11,443 et seq. (448). 33 Pfirter, see note 29, 502. 34 H v, Hebel, "Status of Elements of Crimes under the Statute", in: Lee, see note 20, 4 et seq. (6). 35 J. Delbriick/ R. Wolfrum, Volkerrechr, Part II3, 2nd edition, 2002, 1145. 36 Article 51 of the ICC-Statute. 37 Article 9 (1) of the ICC-Statute reads : "Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two -thirds majority of the members of the Assembly of States Parties". [Emphasis added]. 38 S. Rosenne, "Poor Drafting and Imperfect Organization: Flaws to Overcome in the Rome Statute", Va. j. Int'l L. 41 (2000), 164 et seq. (168). Although the author points out that article 21 ICC-Statute mentions that the Court "shall apply" the Elements of Crimes, this provision is merely a list of sources of law to be applied and despite its language is not to be understood as binding. A similar argument is advanced by H. v. Hebel, in: Cassese et al., see note 11, 3 et seq. (8). One might also argue that read in combination with article 9 (3) of the ICC-Statute - dealing with the Elements' consistency with the Statute itself, the Elements of Crimes are to have a subsidiary character with the ICC-Statute being the yardstick they have to measure up to . 39 Proposals made prior to the final version contained considerably stronger language which would have had a binding effect. Doc. A/CONF.183/C.1I L.69 and Doc. A/CONF.183/C.1IL.8. Both of these documents proposed that the Elements "shall be applied by the Court in reaching determinations as to guilt".

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well as the drafting history of the Elemerus/S Despite their non-binding nature per se, they will undoubtedly have persuasive force for the judges of the ICC. 41 The Elements will make it difficult for the judges of the ICC to adapt the provisions to situations that were not envisaged by the drafters of the Elements, but which could well warrant to fall under the ratione materiae of the ICC and which under normal circumstances would not be considered cases of judicial over-interpretation.F In addition, neither the International Criminal Tribunal for the former Yugoslavia (ICTY)43 nor the International Criminal Tribunal for Rwanda (ICTR)44 - both of which are based on United Nations Security Council resolutions and not on an international treaty'> - are equipped with similar constraints. This could lead to a different interpretation of essentially the same crimes." Moreover, the ICTY's interpretation of humanitarian law has lead to significant developments of the present status of humanitarian law with respect to the war crime of rape , e.g. in the Furundzija 47 and Kunarac4 8 cases.

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41 42

43 44

45

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During the preparatory process, "elements of crimes" were first suggested by the United States in 1996. Report of the Preparatory Committee, see note 27. The final Preparatory Committee session prior to the Rome Conference saw another attempt by the United States, when it submitted a proposal calling for a binding document containing the Elements of Crimes. See Proposal Submitted by the United States, Elements of Offences for the International Criminal Court, Doc. AIAC.249/1998/DP.ll of 2 April 1998. Another proposal by the United States was tabled at the beginning of the Rome Conference. See Proposal Submitted by the United States, Annex on D efinitional Elements for Part Two Crimes, Doc. AlCONF,183/C.l/L.10 of 19 June 1998. A final proposal was submitted towards the end of the Diplomatic Conference. Proposal Submitted by the United States Concerning the Bureau Proposal, Do c. A/CONF.183/C.l/L.69 of 14July 1998. v. Hebel, see note 34, 3 et seq. (8); Politi, see note 32, 473. Delbriickl Wolfrum, see note 35, 1145; Politi, see note 32, 473. Statute of the International Criminal Tribunal for the form er Yugoslavia, pursuant to S/RES/827(1993) of 25 May 1993. Statute of the International Criminal Tribunal for Rwanda, pursuant to S/RES /955 (1994) of 8 November 1994. D. Sarooshi, "The Powers of the United Nations International Criminal Tribunals", in: J. Froweinl R. Wolfrum (eds.), Max Planck UNYB 2 (1998), 141 et seq. (143 et seq.). Delbriickl Wolfrum, see note 35, 1146; Politi, see note 32, 473. IT-95-1711-T, Prosecutor v. Furund zija of 10 December 1998, paras 165 et seq. and especially para. 173.

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In light of the fact that the genocide definition in the ICC-Statute is identical to article II of the Convention on the Prevention and Punishment of the Crime of Genoade/" that there is no other document which lists crimes against humanity in such a detailed manner and that the definition of war crimes is based on a variety of precedents in international law, the legal necessity of the Elements of crimes can be called into question.P However, this does not preclude the usefulness of the Elements in the interpretation of the norms embodied in the ICCStatute. b. Individual Crimes under the Statute - Genocide The provision concerned with the Crime of Genocide was the least controversial norm in the process leading to the adoption of the text of the ICC-Statute at the Rome Conference.!! Its inclusion was therefore already agreed upon at an early stage of the drafting process. However, its exact delineation was not as clear as a comparison between article II of the Genocide Convention and article 6 of the ICC-Statute would suggest, as the operative part of both provisions are exactly the same.

aa. Cases on the National and International Level While the importance of the Genocide Convention has never seriously been questioned, there has been a relatively low number of prosecutions and an even lower number of actual convictions for the crime of Genocide both on the national 52 and inrernational level.v

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50 51

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IT-96-23-T & IT-96 -23/1 -T, Prosecutor v. Kunarac of 22 February 2001, para. 436.In this judgment, the Trial Chamber states that "[tjhe jurisdiction to prosecute rape as [a violation] of the laws or customs of war pursuant to Article 3 of the Statute, including upon the basis of common Article 3 to the 1949 Geneva Conventions, is also clearlyestablished". A/RES1260 A (III) of 9 December 1948, UNTS Vol. 78 No. 1021. Hereonafter Genocide Convention. Robinsonl van Hebel, see note 25, 223. Zimmermann, see note 9,171. W. Schabas, "National Courts Finally Begin to Prosecute Genocide, the 'Crime of Crimes'", Joumal of International CriminalJustice 1 (2003), 39 et seq. (41 et seq.), Schabas, see above, 59 admits however that there was only "one truly clearcut case of genocide since 1948, that of the physical destruction of

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aaa. National Prosecutions

Domestically, some of the most well-known early cases were the trial of Rudolf Franz Hoess, the commander of the Auschwitz concentration camp, before the Supreme National Tribunal of Poland in 194754 and the trial of Adolf Eichmann before Israeli courts'? in 1961 after having been abducted in Argentina in 1960.56 Other, more recent cases took place in Germany V and Canada'f with respect to events that took place in the territory of the former Yugoslavia and Rwanda, respectively.

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57

58

Rwanda's Tutsi minority over three months in 1994, [...]."; A. Zahar, "Command Responsibility of Civilian Superiors for Genocide", LjIL 14 (2001),591 et seq. (591). United Nations War Crimes Commission, Law Reports of Trials of War Criminals VII (1948), Trial of Obersturmbannfiihrer Rudolf Franz Ferdinand Hoss, 11 et seq. (24-26). A.G. Israel v. Eichmann , ILR 36 (1968), 18 et seq. (34) - District Court decision; A.G. Israel v. Eichmann, ILR 36 (1968), 277 et seq. - Supreme Court decision. For an account of the events surrounding the abduction, see M. Lippman, "Genocide: The Trial of Adolf Eichmann and the Quest for Global Justice", Buffalo Human Rights Law Review 8 (2002), 45 et seq. Prosecutor v. Djajic, Bavarian Supreme Court, Judgment of 23 May 1997, reprinted in: Neue juristische Wochenschrift 1998, 392 et seq. The Bavarian Supreme Court acquitted the defendant of the count of Genocide on the grounds of lack of mens rea. Bavarian Supreme Court, 3 St 20/96, Judgment of 23 Mai 1997, Neue ]uristische Wochenschrift 1998, 392 et seq.; see commentary by K. Ambos, Case Note, Neue Zeitschrift fur Strafrecht 1998, 138 et seq. Other judgments by German courts include German Supreme Court, 3 StR 215-98, judgment of 30 April 1999, Neue Zeitschrift fur Strafrecht 1999, 396 et seq.; German Supreme Court, 3 StR 244/00, Judgment of 21 February 2001, Neue juristische Wochenschrift 2001, 2732 et seq.; German Supreme Court, 3 StR 372/00, Judgment of 21 February 2001, Neue juristische Wochenschrift 2001,2728 et seq. Federal Court of Canada, Mugesera v. Canada (Minister of Citizenship and Immigration), 2001 FCT 460. For the initial decision of the Canadian Immigration and Refugee Board, Revue Universelle de droits de l'homme 7 (1996), 195 et seq. For a comment to the latter decision, W. Schabas, "Denial of Residence Status to Alien on Grounds of Genocide - Application of Refugee Convention - Duty to Extradite under Genocide Convention Use of NGO-Reports and Experts in Municipal Proceedings", AjIL 93 (1999), 529 et seq. In the Akayesu judgment, the ICTR made passing reference to the Leon Mugesera , ICTR-96-4-T, Prosecutor v. Akayesu, Judgment of 2 September 1998, paras 100 and 149.

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bbb. International Decisions On the international level, the IC] has so far commented on the Genocide Convention on two occasions. First, it stated in a 1951 Advisory Opinion that the "principles underlying the Convention are recognised by civilised nations as binding on States even without any conventional obligation" and that "[i]t was intended that the Convention would be universal in scope".59 This view was refined in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide between Bosnia-Herzegovina and Yugoslavia, when the IC] indicated that the content of the Genocide Convention was reflective of customary international law.60 Apart from these decisions and prior to 1994, the Genocide Convention had thus not been of major importance in judicial decisions and political interpretations.t! when the ICTR handed down the first criminal judgment of an international court with respect to the crime of Genocide in the Akayesu trial.62 This judgment was to be followed by a number of other judgements both by the ICTR and the ICTY.63 Taken together, these cases form the basis upon which future decisions will most likely be based. A number of questions have arisen in judgments rendered so far with respect to the meaning of the relevant provisions of the Genocide Convention.

59

Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, IC] Reports 195115 et seq. (23). 60 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, IC] Reports 1993, 325 et seq. The same view was taken by the Secretary-General of the United Nations in his report to the Security Council, Doc. S125704, Report pursuant to para. 2 of S/RESI 808 (1993) of 3 May 1993, 12, para. 45. 61 The General Assembly in 1982 declared that the events surrounding the Sabra and Shatila refugee camps situated at Beirut constituted "an act of genocide." A/RES/37/123 D of 16 December 1982, The situation in the Middle East,. However, a resolution cannot be considered to have judicial character, but especially in this instance has to be considered a political statement. This view is echoed by the ICTY in IT-95-10-T, Prosecutor u. G. [elisic, Judgment of 14 December 1999, para. 83. 62 Prosecutor u. Akayesu, see note 58. 63 It should be noted however that both the Statute of the ICTY and the Statute of the ICTR include both article II and III of the Genocide Convention.

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bb. actus reus Requirement The protected groups are explicitly mentioned in the text of article 6 of the ICC-Statute. They are limited to national, ethnical, racial or religious groups . A number of attempts have been made to afford the protection of the Genocide Convention to other groups, such as political.s" economic or social groups.v However, to date, none of these suggestions has found entry into the Genocide Convention or any other relevant international treaty. The ILC had concluded in 1996 that the "[...] definition of genocide contained in article II of the Convention, [...] is widely accepted and generally recognized as the authoritative definition of this crime [...]".66 Especially with respect to the inclusion of political groups, the ILC stated that such groups did not possess the required stability for the purposes of the crime of genocide.f? Other suggestions to extend the meaning of the text of the Genocide Convention by way of extensive interpretation have also been rejected in the case law of the ICTY.68 Referring specifically to the judgment of the German Constitutional Court, the ICTY has stated that it cannot disregard the principle of nullum crimen sine lege and that "customary international law limits the definition of genocide to those acts seeking the physical or

64

65

66

L. Bruun, "Beyond the 1948 Convention - Emerging Pr inciples of Genocide in Customary International Law ", Maryland Journal of International Law and Trade 17 (1993),193 et seq. (207); B. v. Schaack, "The Crime of Political Genocide: Repairing the Genocide Convention's Blind Spot", Yale L. j. 106 (1997), 2259 et seq. (2280 et seq.), W. Schabas, Genocide in International Law, 2000, 145; M. Lippman, " Genocide: The Crime of the Century. The Jurisprudence of Death at the Dawn of the New Millennium", Houston Journal of International Law 23 (2001),467 et seq. (485). Report of the International Law Commission on the Work of its 48th Session, 6 May - 26 July 1996, GAOR 51st Sess., Suppl, No. 10 (Doc. A/5l/l0),87. Report of the International Law Commission, see note 66, 87. In a decision of the German Constitutional Court of 2000, the Court had pronounced that "the statutory definition of genocide defends a supraindividual object of legal protection, i.e. the social existence of the group [...]. The intent to destroy the group [...] extends beyond physical and biological extermination [00']. The text of the law does not therefore compel the interpretation that the culprit's intent must be to exterminate physically at least a substantial number of the members of the group ", BVerfG 2 BvR 1290/99, available at <www.bverfg.de> (4 August 2003).

r.

67

68

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biological destruction of all or part of the group".69 It thus made clear that an attack on the sociological characteristics of a human group, even if all other requirements of the Genocide Convention are fulfilled, would not lead to a conviction of genocide. In this respect, the Akayesu judgment of the ICTR is especially noteworthy. Facing the problem of not being able to distinguish the minority Tutsi population from the majority Hutus under any of the groups mentioned in the Genocide Convention, it adopted something that could be labeled a "no challenge to group membership" approach. It deduced from the travaux prepsratoires of the Genocide Convention that the crime of genocide was perceived as targeting only "stable" groups to which one belongs to not by choice - such groups are labeled "mobile" groups by the ICTR -, but in which membership is determined by birth.F? It concluded that "membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner."71 Such an interpretation is open to criticism for various reasons. First and foremost, reliance on the travaux preparatotres is inconsistent with arts 31 and 32 of the Vienna Convention on the Law of Treaties, of which the latter stipulates that recourse to the travaux preparatoires may only be had when the interpretation according to article 31 of the Vienna Convention: "(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable".?2 It is apparent that a literal interpretation of the Genocide Convention neither leaves the meaning ambiguous or obscure, nor does it lead to a result which is absurd or unreasonable. It might not yield the desired result , but that does not warrant 'stretching the boundaries of legal interpretation. Secondly, if the drafters of the Convention had wanted to include a reference to stable groups, wording to that effect would have been included in the text of the Convention." Moreover, as

69 IT-98-33-T, Prosecutor v. Krstic, Judgment of 2 August 2001, para. 580; C.

70

71 72

73

Hos sl R. Miller, "German Federal Constitutional Court and Bosnian War Crimes: Liberalizing Germany's Genocide Jurisprudence", GYIL 44 (2001),576 et seq. (601-610). Prosecutor v. Akayesu, see note 58, para. 511. Prosecutor v. Akayesu, see note 58, para. 511. Vienna Convention on the Law of Treaties, 23 May 1969, UNTS Vol. 1155 No. 18232. The Delalic Judgment alludes to this principle, see IT-96-21-T, Prosecutor v. Delalic of 16 November 1998, para. 412.

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pointed out above, the ICTY in its Krstic judgment considered such extensions to be inconsistent with the criminal law principle of nul/urn crimen sine lege/" Allegations claiming the existence of "loopholes"75 or of fundamental flaws or "blind spots"76 leading to an escape from liability are unfounded as there are other international instruments under which such action can be subsumed. While it must be acknowledged that those acts would thus not receive the same stigma as that attached to genocide, it should be stressed that extending the content enshrined in the Genocide Convention - and thus the parallel meaning of the crime of genocide under customary international law - to include other groups could - in the long run - leave the Convention less meaningful. cc. mens rea Requirement

One characteristic which sets genocide apart from the other crimes in the ICC-Statute is the requirement of a dolus specialis which has to be proven in addition to the criminal intent accompanying the underlying offences,77 and which are mentioned in subsections (a)-(e). Thus, the

74

IT-98-33-T, Prosecutor v. Krstic, Judgment of 2 August 2001, para. 580. In the Delalic judgment, the ICTR specifically laid out the requirements set out by international criminal law, Prosecutor v. Delalic, see note 73, para. 402 et seq. The ICTR, in a later judgment and through a different trial chamber, found that the Tutsis did constitute a different ethnic group the Hutus, thereby circumventing the problem posed by the finding of Trial Chamber I in the Akayesu Judgment. See ICTR-95-1-T, Prosecutor u. Kayashima and Ruzindana, Judgment of 21 May 1999, para . 523. 75 P. Drost, The Crime ofState, Volume II - Genocide, 1959, 123. 76 v. Schaack, see note 64, 2272. 77 Prosecutor v. Akayesu, see note 58, para. 516; ICTR 97-23-5, Prosecutor v. j. Kambanda, Judgment and Sentence of 4 September 1998; ICTR-95-1-T, Prosecutor v. C. Kayashima and O. Ruzindana, Judgment of 21 May 1999, para. 91; ICTR-96-3, Prosecutor v. G. Rutaganda of 6 December 1999, para . 59 et seq.; A. Cassese, "Genocide", in: Cassese et al., see note 11, 335 et seq. (338); Schabas, see note 65, 215 and 217 et seq. The Appeals Chamber in the [elisic case held that the terms dolus specialis and special intent could be used interchangeably, IT-95-10-A, Prosecutor v . Goran [elisic, Judgment of 5 July 2001, 18 et seq.

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mens rea requirement can be separated into two parts. " While it is sufficient to prove that one or more of the underlying offences enumerated in subsections (a)-(e) were committed "with intent and knowledge?", thus mirroring the actus reus,80 it must be proven that the perpetrator had the specific intention to destroy, in whole or in part, one of the groups mentioned in the chapeau of article 6 of the ICC-Statute. While this connotes a considerably higher requirement, no physical destruction of the group must have taken place, i.e. the perpetrator must not have achieved this result." Any lower level of mens rea, such as negligence or recklessness, neither meets the threshold required by article 30 of the ICC-Statute nor the specific intent required by genocide for forms of direct participation.V It is also noteworthy that the Elements of crimes seem to insert an additional layer of conditions which needs to be met. All subsections are annotated to include an element outlined as: "The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction".83 Such an element does not add anything to the existing definition. If anything, it can bring about confusion with respect to the delineation of the crime of genocide. The additional element enshrined in this phrase requires similar conduct to that embodied in the chapeau of article 7 of the ICC-Statute, i.e. Crimes against Humanity, which refers to "a widespread or systematic attack".84 This element was included in order to

78

79

80 8! 82

83 84

O. Triffterer, " Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such", LJIL 14 (2001), 399 et seq. (400). Thus , the opinion that "[w]hether Article 30 applies to acts of genocide remains an open question" is at least doubtful, D. Nersessian, "The Contours of Genocidal Intent: Troubling Jurisprudence from the International Criminal Tribunals", Tex. Int'l L.]. 37 (2002), 231 et seq. (265). Article 30 of the ICC-Statute. Triffterer, see note 78, 400. Triffterer, see note 78, 401. Report of the International Law Commission, see note 66, 87; Hass i Miller, see note 69, 603, fn. 150. National criminal codes might differ with regard to thi s element however, see K. Ambos, Der Allgemeine Teil des Yolleerstrafrecbts, 2002, 412. Elements of Crimes, see note 22, 6-8. This phrase is the last element in each of the subsections (a)-(e). Article 7 ICC-Statute.

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provide guidance on the context of the acts carried out and which are the basis for an accusation of the crime of genocide.P Furthermore, there was concern that isolated hate crimes could lead to a conviction and thus to a trivialization of genocide.w The premise that seemed to be the basis for the inclusion of such an element can only be explained by a deep-rooted mistrust towards the organs of the ICC, and ultimately the judges. The track record of the ICTY or ICTR with respect to genocide does not indicate that there has been a lack of judicial self-restraint and while the situations that these tribunals are concerned with could be different from those the ICC will have to deal with as a permanent organ, it seems far-fetched that individuals qualified and chosen for the position of a judge on the bench of the ICC would not bear these issues in mind.V On the other hand, if one follows the interpretation of the Elements of crimes presented above'" and if one accepts that there could be cases that do not involve a plan that would lead to the destruction of one of the groups in the chapeau.s? it is still possible to make a finding of genocide despite the lack of such a contextual element. dd. Participation in Genocide One aspect that deserves special attention is the lack of a provision similar to article III of the Genocide Convention, which deals with the various forms of participation in the crime of genocide, in the ICCStatute. This "omission" however must be seen against the background that the ICC-Statute aimed at codifying not only the actual crimes, but also general principles of criminal law that are to be applied. 90 Thus, 85 86 87

88 89

90

V. Oosterfeld, "The Elements of Genocide -II. The Context of Genocide", in: Lee, see note 20, 45. Oosterfeld, see above, 45. Article 36 ICC-Statute makes specific reference to the qualifications of the judges and their election. The ICC would be competent to deal with situations that do not necessarily require the existence of an armed conflict, be it an international or internal one. See note 38. Only very few cases are conceivable in this respect, as was pointed out in the discussion of the Preparatory Commission, see Schabas, see note 65, 209. The Statutes of the ICTY and ICTR took a different approach in that they included both article III of the Genocide Convention as well as a general provision on participation. This might explain some inconsistencies in a number of cases before the ICTR, see Schabas, see note 65, 265.

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participation is dealt with in a separate provision of the ICC-Statute, namely article 25 of the ICC-Statute. A close analysis reveals that most - though not all - forms of participation laid down in the Genocide Convention are included in this provision. Article III (c) Genocide Convention - direct and public incitement to commit genocide is included in article 25 (3)(e) of the ICC-Statute, article III (d) Genocide Convention - attempt to commit genocide is codified in article 25 (3)(f) of the ICC-Statute and article III (e) - complicity in genocide is to be found in article 25 (3)(c) and (d) of the ICC-Statute. Thus, the only participatory form of genocide that is not included in the ICCStatute is "conspiracy to commit genocide't.?' i.e. an inchoate crime consisting of planning and organizing of genocide not necessarily followed by the actual perpetration of the crime. 92 This dichotomy between the original wording of the Genocide Convention and the ICCStatute can only be explained by taking into account two legal traditions with considerably different approaches to this issue. While the common law approach has a long history of including conspiracy.P the continental European tradition treats complicity not as a separate crime, but presumes that it can only be committed as a form of complicity with the additional requirement that the crime must have been carried out or at least attempted (Akzessorietatsgmndsatz).94 The relevant provisions of the ICC-Statute indicate that, contrary to the Genocide Convention which followed the common law tradition, the RomanoGermanic traditions have prevailed/"

9! 92

93

94 95

See article III (b) of the Genocide Convention. A. Cassese, "Genocide", in: Cassese et al., see note 11, 335 et seq. (347). See e.g, the concurring opinion of Justice Jackson in Krulewitch v. United States, 336 U.S. 440, who noted that "[tjhe doctrine does not commend itself to civil-law countries, despite universal recognition that an organized society must have legal weapons for combating organized criminal ity [...J. Jackson referred to F. Sayre, "Criminal Conspiracy", Harv . L. R. 35 (1922), 393 (427), who stated - in 1922 - that conspiracy "is utterly unknown to the Roman law; it is not found in modern Continental codes; few Continentallawyers ever heard of it"; G. Fletcher, "The Storrs Lectures: Liberals and Romantics at War: The Problem of Collective Guilt", Yale L. j. 111 (2002),1499 et seq. (1512). W. Schabas, "Article 6 - Genocide", mn. 16, in: Triffterer, see note 17. W. Schabas, see note 94, 116, mn. 16. However, Schabas' claim that the inconsistency of the ICC-Statute with the Genocide Convention in this regards "appear to be inadvertent" are refuted by the drafting history of the

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One aspect that, at least so far, is unresolved is the question of whether a commander is required to have the same dolus specialis as the actual perpetrator of the crime if the commander was not directly involved in any of the acts mentioned in subsections (a)-(e) of article 6 of the ICC-Statute. 96 While the general issue of command responsibility has been discussed in both national and international fora as well as in acadernia'" - one of the early and most frequently referred to cases being that of General Tomoyuki Yamashita for his conduct - or lack thereof - during the American advance on the Philippines during 1945. 98 One of the few cases which actually dealt with this issue of command responsibility with respect to the crime of genocide was the District Court's decision in the Eichmann case."? In recent case law, only the indictment of Radovan Karadzic and Ratko Mladic made such a reference.P? Different views have been promulgated. While Schabas indicates that the ICC-Statute "appears to allow" that genocide be committed with a lower level of intent "in that it contemplates liability of commanders for genocide committed by their subordinates even if they have no real knowledge of the crime",lOl Cassese reasons that such a view is unacceptable on the grounds that one must distinguish between the subjective requirement for a commander and that of the principal perpetrator of the crime. 102 This is also reflected in article 28 of the ICC-Statute, the provision pertaining to the responsibility of the commander. Before presenting

96

97

98

99

100 101 102

ICC-Statute. See A. Eser, "Individual Criminal Responsibility", in: A. Cassese et al., see note 11, 767 et seq. (802). See generally on the issue of command responsibility Ambos, see note 82, 666 et seq.; T. Wul Y. Kang, "Criminal Liability for the Actions of Subordinates - the Doctrine of Command Responsibility and its Analogues in United States Law", Harv. Int'l L. J. 38 (1997), 272 et seq. See e.g. N. Laviolette, "Commanding Rape: Sexual Violence, Command Responsibility, and the Prosecution of Superiors by the International Criminal Tribunals for the Former Yugoslavia and Rwanda", CYIL 36 (1998),93 et seq. United Nations War Crimes Commission, Law Reports of Trials of War Criminals 4 (1948), 1 et seq.; B. Landrum, "The Yamashita War Crimes Trial: Command Responsibility Then and Now", Mil. L. Rev. 149 (1995), 293 et seq. A.G. Israel v. Eichmann - District Court decision, see note 55. IT-95-5-I, Prosecutorv. R. Karadzic and Ratko Mladic, Indictment. Schabas, see note 94, mn. 4. Cassese, "Genocide", in: Cassese er aI., see note 11,335 et seq. (348).

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the central argument, it is necessary to briefly outline the general approach that is embodied in the ICC-Statute with respect to the required mental element. In this regard, article 30 of the ICC-Statute is the central and generally applicable norm. However, it stipulates that its degree of mens rea applies only "unless otherwise provided". Article 6 of the ICC-Statute requires a higher degree of mens rea and in cases of direct responsibility of the actual perpetrator constitutes a rule lex specialis to article 30 of the ICC-Statute. However, in cases of superiors, article 28 of the ICC-Statute becomes lex specialis to article 30 of the ICCStatute.i'" This provision provides that the commander is responsible for the acts of her/his subordinates when s/he "either knew [...] or should have known that the forces were committing or about to commit such crimes" and "failed to take all necessary and reasonable measures within his or her power to prevent [...]" the commission of the crime.P' A second possibility to attribute criminal responsibility to a commander arises when "the superior either knew, or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes" at a time when the commander was in effective control over the troops in question .105 Thus, if a commander had knowledge or, due to failure in overseeing the troops under her/his command, failed to have such knowledge and did not take the necessary and reasonable steps within her/his power, it falls within that individual's responsibility that genocidal acts should not take place. The opposing view106 fails to make the crucial differentiation between the subjective requirement for a commander and that of the principal perpetrator of the crime that is necessary when having to attribute responsibility of the commanding officer.l 07 Such an understanding was prominently put forth in the trial of Adolf Eichmann in the Jerusalem District Court when it stated that "[...] the legal and moral responsibility of he who delivers up the victim 103

104 lOS

106

107

This is what Cassese seems to imply when he states that "[i]t may be argued that Article 28 constitutes an exception to that which is provided for in Article 30 [..]" . Cassese, "Genocide", in: Cassese et a!., see note 11, 335 et seq. (348). Article 28 (a) (i) and (ii) ICC-Statute. Article 28 (b) ICC-Statute. K. Ambos, "General Principles of Criminal Law in the Rome Statute", Criminal Law Forum 10 (1999), 1 et seq. (19); W.A. Schabas, "General Principles of Criminal Law", European Journal of Crime and Criminal Justice 4 (1998), 84 et seq. Similar to the view taken here, Zahar, see note 53, 613.

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to his death is, in our opinion, no smaller, and may be greater, than the responsibility of he who kills the victim with his own hands".I08 The Trial Chamber in the Akayesu Judgement echoed that sentiment when it pronounced - referring to the Eichmann case - that: "[I]f the accused knowingly aided and abetted in the commission of such a murder wh ile he knew or had reason to know that the principal was acting with genocidal intent, the accused would be an accomplice to genocide, even though he did not share the murderer's intent to destroy the group".109 A similar line of argument was used in the indictment of Radovan Karadzic and Ratko Mladic when they were charged with, inter alia, genocide on the grounds that they "individually and in concert with others planned, instigated, ordered or otherwise aided and abetted in the planning, preparation or execution of persecutions on political and religious grounds or knew or had reason to know that subordinates were about to do the same or had done so and failed to take necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof".110 While an indictment in and of itself should not be accorded an excessive amount of significance and certainly cannot be considered to represent proof of a certain practice in international law, it can nevertheless serve as an indication of the current state of law when seen in light of the developments outlined above. It would thus seem that - in light of the command responsibility doctrine's origins, codification and most recent application - "it is apparent that the doctrine now operates under agreed-upon principles".111 Moreover, the problem might in reality never present itself. It seems highly unlikely that a commanding officer will not have knowledge of genocidal acts of her/his subordinate(s) or that s/he does not possess the required genocidal intent herself/himself. Considering the purported uniqueness of the crime of genocide.U- such a finding - if the

108 A.G. Israel v. Eichmann - District Court decision,see note 55,179 et seq. Prosecutorv. Akayesu, see note 58,para. 541. 110 IT-95-5-I, Prosecutor v. R. Karadzic and Ratko Mladic, Indictment, para. 33. 111 Wu/ Kang,see note 96,278. 112 W. Schabas, "The]elisic Case and the Mens Rea of the Crime of Genocide", L]IL 14 (2001), 125 et seq. (139) and Schabas, see note 65, 9 calls it the "crime of crimes". It has also been described as "the ultimate crimeand the gravest violation of human rights it is possible to commit." E/CNA/Sub.2/1985/6, Benjamin Whitaker, Special Rapporteur, Review of Further Developments in Fields with Which the Sub-Commission Has 109

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other requirements are met, if the circumstances so warrant, and if no extenuating circumstances exist - does not seem inappropriate. c. Individual Crimes under the Statute - Crimes Against Humanity While the inclusion of a norm under the heading "Crimes Against Humanity" was uncontroversial.U'' it proved considerably more difficult to agree on its content. Some of the difficulties that could only be resolved at the Rome Conference included the exact definition of the crimes under this heading, the questions of whether the victims can only be civilians and whether crimes against humanity could be committed in times of armed conflict, and finally whether the terms "widespread" on the one hand and "systematic" on the other must be fulfilled cumulatively or whether it would be enough if only one element was present at the time of the commission of the crime. These manifold problems stemmed from the fact that the precedents for crimes against humanity were to some extent contradictory and - in comparison to genocide and war crimes - the content of crimes against humanity was not clearly marked out.U" Crimes against humanity can probably be classified as the category of crimes which was - apart from aggression - most hotly debated due to divergent views of the content of the state of customary law in this regard. However, the debates prior to and during the Rome Conference alleviated this category of crimes from its customary form 1l5 to take a more precise, conventional form .

113 114

115

Been Concerned, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, Human Rights Commission, Sub-Commission on the Prevention of Discrimination and Protection of Minorities, 38th Sess., 5. Zimmermann, see note 9,172; van Hebel! Robinson, see note 20,90. These precedents included the Nuremberg and Tokyo Charters, but also the statutes of the two international criminal tribunals which were operating at the time, the ICTY and the ICTR. Moreover, the Draft Code of Crimes Against the Peace and Security of Mankind, prepared under the auspices of the International Law Commission served as a another source. All of these sources are contained in M.C. Bassiouni, "Crimes Against Humanity", in: M.C. Bassiouni (ed.), International Criminal Law - Volume I, 2nd edition 1999, 521 (563 et seq.). See also Delbriick! Wolfrum, see note 35, 1094. M. Lippman, "Crimes Against Humanity", Boston College Third World Law Journal 17 (1995),171 et seq. (271).

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aa. Drafting History The first time crimes against humanity were prosecuted was under the statute of the International Military Tribunal at Nuremberg, although some authors date its history back well into the Middle Ages. 116 Its article 6 (c) included crimes such as "murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during" World War 11. 117 If the aforementioned wording can serve at least as an indication that not only acts during times of armed conflict were to be included, the second part of this subsection makes such a finding even more convincing. It considers crimes against humanity to include "persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal" regardless of whether such action was in violation of the domestic law of the country where it took place.I'" Crimes against humanity have their conceptual origin in the laws of war, namely the "Martens clauses" of the 1899 and 1907 Hague Conventions.!'? but go beyond international humanitarian law in that they

116

117

118

119

Various opinions exist in this regard, d. L. Green, "The Law of Armed Conflict and the Enforcement of International Criminal Law", Annuaire Canadien de Droit 1ntemational27 (1984),1 et seq. (7); L. Green , "Human Rights and the Law of Armed Conflict", 1sT. Y. B. Hum. Rts 10 (1980), 9 et seq. (10); but also K. Chaney, "Pitfalls and Imperatives: Applying the Lessons of Nuremberg to the Yugoslav War Crimes Trials", Dick. j. 1nt'l L.14 (1995), 57 et seq. It seems however, that caution should prevail in this regard. While the term humanity is innate in earlier codifications, only some of them concern the well-being of the civilian population, such as the St. Petersburg Declaration of 1868, Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, reprinted in: A. Roberts/ R. Guelffs (eds.), Documents on the Laws of War, 3rd edition, 2000,53 et seq. Similar wording was included in article 5 (c) of the Charter of the International Military Tribunal for the Far East. Schwarzenberger raises doubts about whether the Nuremberg Charter was declaratory at the time of its inception; G. Schwarzenberger, The Law ofArmed Conflict, 1968,498. The wording "in connection with any crime within the jurisdiction of the Tribunal" ties crimes against humanity to other criminal acts set forth in this, thereby limiting the jurisdiction of the Tribunal. See B. van Schaack, "The Definition of Crimes Against Humanity: Resolving the Incoherence", Colum. j. Transnat'l L 37 (1999), 787 et seq. (795 et seq.); Lippman, see note 115, 173, The purpose of the Martens Clause was to act as a catch-all clause which was to curb the action of military

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criminalize acts which take place in a territory that is under the control of the state to which the perpetrator belongs and furthermore do not have to be committed in times of armed conflicr.F? It has been argued that the provision on crimes against humanity in the Nuremberg Charter was adopted for the sole purpose to ensure that offences committed by German individuals against Germans would not be left in a legal vacuum, but could.be prosecuted under the statute of the Nuremberg tribunal.P! For fear of potential internal problems or problems regarding their colonies, the Allies insisted that crimes against humanity could only be committed if they were associated with one of the other crimes within the tribunal's jurisdiction, i.e. war crimes or crimes against the peace. 122 Be that as it may, crimes against humanity have since their coming into being before a judicial body - left behind their oftentimes vague and overlapping relationship with war crimes.F' Some even argue that their "delayed maturation [...J allowed the international community better to clarify, expand and shape them, taking fuller account of relevant norms of contemporary general international law".124

bb. Crimes Against Humanity in the Rome Statute The final form agreed upon during the Rome Conference lays out a series of subsections in section 1 which mention the criminal acts that can lead to a conviction for crimes against humanity. These crimes include, inter alia, murder, extermination, torture, rape and sexual slavery, but

120 121 122

123

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commanders for which no prohibition existed. See DelbriickJ Wolfrum, see note 35, 1087. For a more thorough discussion see II. 1. c. bb. aaa. M.e. Bassiouni, Crimes Against Humanity in International Criminal Law, 2nd edition, 1999, 41 et seq. E. Schwelb, "Crimes Against Humanity", BYIL 23 (1946), 178 et seq. (183); R. Clark, "Crimes against Humanity at Nuremberg", in: G. Ginsburgs/ V. Kudriavtsev (eds), The Nuremberg Trials and International Law, 1990, 177 et seq. (197). L. Sunga, Individual Responsibility in International Law for Serious Human Rights Violations, 1992, 68. See also Clark, see note 122, 199; M.C. Roberge, "Jurisdiction of the Ad Hoc Tribunals for the Former Yugoslavia and Rwand a over Crimes Against Humanity and Genocide", Int'l Rev. of the Red Cross 321 (1997),651 et seq. (654). L. Sunga, "The Crimes within the Jurisdiction of the International Criminal Court (Part II, Articles 5-10)", European Journal of Crime, Criminal Law and Criminal Justice 6 (1998), 61 et seq. (68).

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also «other inhumane acts of a similar character" which cause great suffering, or serious injury to body or to mental or physical health. These acts are more clearly defined in article 7 (2) of the ICC-Statute, while section 3 defines gender not only for the purpose of article 7 of the ICC-Statute, but equally for all other provisions of the entire document.V" According to the chapeau of article 7 of the ICC-Statute, these crimes must have been committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. aaa. Nexus to Armed Conflict On a general level, the most contentious issue during the negotiating process - both before and during the Rome Conference - turned out to be the question whether there needed to be any kind of nexus to armed conflict, or whether crimes against humanity would be punishable also in times of an absence of such conflict if all other conditions were met. The outcome of this discussion was crucial with respect to the operability of crimes against humanity. Those nations that argued in favor of the requirement of such a nexus - with some even going as far as demanding the existence of an international armed conflict - cited the Nuremberg and Tokyo charters, but also the ICTY statute as precedent. However, there are several reasons why the existence of such a correlation would ultimately render the provision of crimes against humanity almost entirely useless. First and foremost, once it is accepted that these conditions would have to be present, the relationship with war crimes under article 8 of the ICC-Statute would be one of duplicity, as most of the crimes covered under article 7 of the ICC-Statute could be subsumed under the former provision.V" Moreover, the perceived precedent of the Nuremberg and Tokyo charters did not take into consideration other important aspects and developments. First of all, the nexus requirement in the charters of the Nuremberg and Tokyo tribunals served as a limitation to the jurisdiction of these tribunals rather than narrowly defining crimes against humanity.V? Secondly, the

125

126

127

See M. Boot, "Article 7 - Crimes against Humanity, mn. 127", in: Triffterer, see note 17. D. Robinson, "Defining Crimes Against Humanity at the Rome Conference", AJIL 93 (1999),43 et seq. (46). M.e. Bassiouni, "Crimes Against Humanity", in: M.e. Bassiouni (ed.), International Criminal Law, 2nd edition 1999,41 states that the "definition

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ICTY in its Tadic decision had regarded the nexus to armed conflict to be superfluous taking into account the development of the doctrine of crimes against humanity after World War II, i.e. leaving out of consideration the current state of customary international law regarding this crime.P" In this regard, it should be noted that US military courts, declared that "[...J crimes against humanity are in international law, completely independent of either crimes against peace or war crimes."129 Finally, the statute of the ICTR, which came into force after the statute governing the ICTY, does not contain such a requirement any more. These arguments prevailed in the end, giving meaning to crimes against humanity outside of times of armed conflict.P? bbb. Widespread and/or Systematic Another issue that caused considerable debate was that of the threshold that was necessary in order for international adjudication to be war-

in the Nuremberg charter fitted the unforeseen and unforeseeable depredations which had occurred between 1932-1945". Delbriick/ Wolfrum, see note 35,1097; V. Morris/ M. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, 1995,239. 128 The ICTY stated in its Tadic decision on the trial chamber level, that "[d]espite this precedent, the inclusion of the requirement of an armed conflict deviates from the development of the doctrine after the Nuremberg Charter, beginning with Control Council Law No. 10, which no longer links the concept of crimes against humanity with an armed conflict." See IT-94-1-T Prosecutor v. Dusko Tadic of 7 May 1997, para. 618. A similar argument is advanced in the Report of the Secretary-General, see note 60, para. 47. Bassiouni, see note 127, 70 argues that the Nuremberg Charter was "the final step of a steady progressive historical development and evolution of international criminal responsibility for harmful conduct committed against civilian populations irrespective of nationality, but subject to the condition that the violation be linked to the initiation and conduct of war." However, following the Nuremberg trials, "this connection to war was removed in Control Council Law No. 10, and in subsequent historical developments". 129 United States v. Ohlendorf, Trials of War Criminals Before the Niirnberg Military Tribunals under Control Council Law No. 10, Vol. 4,49. This decision was based on Control Council Law No. 10, which did not require such a nexus any more, see note 128. 130 The outcome of this discussion can also be derived from article 7 (2) (a), which speaks of a "course of conduct [...] pursuant to or in furtherance of a State or organizational policy to commit such attack".

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ranted.P! It is clear that not every crime mentioned in subsection 1 of article 7 of the ICC-Statute would warrant a conviction for crimes against humanity, but would be better dealt with on the national level. Thus a certain threshold requirement was necessary. The division between two major groups of countries concerned the question whether the two elements "widespread" as well as "systematic" would be linked cumulatively or whether they would operate independently.W The proponents of the former alternative pointed to the problem that a "widespread" commission of the crime would not only encompass large-scale atrocities, but also "crime waves" which were generally recognized not to fall under the jurisdiction of the ICC. The group of "like-minded" states on the other hand argued that customary international law - evidenced by the statute of the ICTR133 and ICTY jurisprudence'P" - regarded as sufficient such a disjunctive test. 135 The ICTR in the Akayesu case had declared that "it is a prerequisite that the act must be committed as part of a wide spread or systematic attack and not just a random act of violence. The act can be part of a widespread or systematic attack and need not be a part of both. "136 In light of this, it

van Hebel/ Robinson, see note 20,94. The content of these terms were defined by the ICTR in its Akayesu Judgment, see note 58, para. 580: "The concept of 'widespread' may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims", while [tjhe concept of 'systematic' may be defined as thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources". 133 The chapeau of article 3 of the statute of the ICTR reads in its relevant part: "The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds [...]." 134 See especially Prosecutor v. Dusko Tadic, see note 128, paras 645 et seq. (647). There the trial chamber cites numerous authorities, ranging from another trial chamber's finding in the Vukovar Hospital Decision case, and more conclusively, the various statements by the ILC in the process leading to the Rome conference. 135 WJ. Fenrick, "Should Crimes Against Humanity Replace War Crimes?", Colurn.]. Transnat'l L. 37 (1999),767 et seq. (777). 136 Prosecutorv. Akayesu, see note 58, para. 579. However, the French version of the ICTR statute suggests a conjunctive rather than a disjunctive reading, essentially raising the threshold for the application of the crime to a considerably extent: "Dans Ie cadre dune adieux generalise et systematic 131

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seems appropriate to state that the state of customary international law in 1998 was reflected in this codification - with its disjunctive test. 137 ccc. Attack Directed against any Civilian Population The solution to the question of whether there needed to be a conjunctive or disjunctive relation between the elements "widespread" and "systematic" was made considerably easier by the inclusion of the requirement that the attack be "directed against any civilian population". Similar wording can be found in the statutes of the ICTY and ICTR. The element that the attack be committed against the "civilian population" is one of scale ("multiple commission"), but must be interpreted to be considerably lower than the "widespread" element also present in the chapeau.P" More controversial, however was the inclusion of the element of a governmental or organizational policy.P? This element is part of the definition of the term "attack directed against any civilian population" contained in article 7 (2) (a) of the ICC-Statute. It was moreover mentioned by the Trial Chamber in the Tadic case that the reason why crimes against humanity"so shock the conscience of mankind and warrant intervention by the international community is because they are not isolated, random acts of individuals but rather result from a deliberate attempt to target a civilian population. Traditionally this requirement was understood to mean that there must be some form of policy to commit these acts".140 Compared to the term "systematic", it is not necessary that the attack be highly organized and orchestrated in accordance with a developed plan.l"! The question whether such an organizational policy should be included was decided on the basis of a

137

138 139

140 141

[...]." However, the trial chamber declared that "[s]ince Customary International Law requires only that the attack be either widespread or systematic, there are sufficient reasons to assume that the French version suffers from an error in translation. M. de Guzman, "The Road from Rome: The Developing Law of Crimes against Humanity", HRQ 22 (2000), 335 et seq. (375); Fenrick, see note 135,777; DelbriickJ Wolfrum, see note 35, 1096. van Hebel/ Robinson, see note 20, 96. Bassiouni, see note 127, 255 argues that without such a governmental or organizational policy, crimes against humanity could simply not be carried out. Similarly, Morris and Scharf assert that this element requires a "systematic plan or general policy". Morris/ Scharf, see note 127, 79 et seq. Prosecutor u. Dusko Tadic, see note 128, para. 653. van Hebel! Robinson, see note 20,97.

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compromise whereby the proponents of a conjunctive test with respect to the elements "widespread" and "systematic" were satisfied that "crime waves" would not be subject to international adjudication and would therefore fall outside of the jurisdiction of the ICC. 142 The concept of the presence of such an organizational element was also not an entirely novel one at the Rome Conference despite criticism to that effect from various non-governmental organizations.v'? In addition to the judgment of international tribunals, various national courts - with varying differences in certain elements - made similar pronouncements on this issue. Some of the best known national cases to deal with this aspect was the Menten decision by the Hoge Raad in the Netherlands in 1981,144 the Barbie 145 and Touvier 146 cases before the French Cour de Cassation, in 1985 and 1991, respectively, and the 1994 Pinta case before the Canadian Supreme Court.lf? all of which considered an element of organizational policy to be necessary when crimes against humanity were concerned. One final aspect that should be mentioned is the question of whether crimes against humanity can be committed against military personnel. The wording of crimes against humanity under the ICCStatute seems to indicate that this is not the case, as it speaks solely of an attack against "any civilian population". It is however conceivable that some of the acts embodied in article 7 (1) (a)-(k) of the ICCStatute will be committed against military personnel, but would not fall under war crimes according to article 8 of the ICC-Statute. To start with, one would have to rule out that murder would fall under this category of crimes - a view adopted by the International Military Tribunal for the Far East . 148 If the acts were prohibited under international humanitarian law, but could not be prosecuted under war crimes, a

142 L. Wexler, The International Criminal Court and the Transformation of International Law - justice for the New Millenium , 2002, 152. 143 van Hebel! Robinson, see note 20, 96. 144 Public Prosecutor v. Menten, International Law Review 75 (1981), 362 et seq. (363).

Federation Nationale Des Deportee Et Internes Resistants Et Patriots And Others v. Barbie, 20 December 1985, ILR 78 (1988), 124 et seq. 146 Touvier, 1 June 1995, ILR 100 (1995), 337 et seq. (340). 147 Regina v. Finta, [1994] 1 S.C.R., 701 (814). 148 International Military Tribunal for the Far East, 1 November 1948, B. Roling/ C. Ruter, The Tokyo judgment, Volume 1, 1977, 1 et seq. (32 et seq.). 145

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prosecution under crimes against humanity would nevertheless be possible. 149 This is especially true in situations in which belligerents hors de combat have laid down their weapons because they are wounded or because they were captured. 150 This view is confirmed by the position taken by various international and national courts.P! ddd. Element of Discrimination Another cause for debate in the deliberation process was the question of whether crimes against humanity necessarily included an element of discrimination.l'< The differing views are mirrored when analyzing the statutes of the ICTR and the ICTY - the former containing a discrimination clause,lS3 the latter omitting such an element. Similarly, while the ILC held that such an element was contained in article 6 (c) of the Nuremberg charter.P" this view was vehemently and widely rejected in academia. 155 The latter seems to be the view that it is closer to the wording of the relevant provision of the Nuremberg charter. While its article 6 (c) makes mention of discriminatory - political, racial or Zimmermann, see note 9,179. A. Cassese, "Crimes Against Humanity", in: Casseseet al., see note 11,353 et seq. (375). lSI For a list of cases, see Zimmermann, see note 9, 178 et seq. and Cassese, "Crimes Against Humanity", in Cassese et aI., see note 11, 353 et seq.

149 150

(368).

Lippman, see note 115, 171 who defines crimes against humanity before the background of discriminatory grounds; it should be borne in mind that this article was written well prior to the Rome Conference. 153 The relevant provision of the ICTR statute - article 3 - states that "[t]he International Tribunal for Rwanda shall have the power to prosecute [...] crimes when committed as part of a widespread or systematicattack against any civilian population on national, political, ethnic, racial or religious grounds [...]." 154 ILC, Draft Code of Offences against the Peace and Security of Mankind, 1954, ILCYB 1954, Vol. II, 112 et seq. Article 2 (10) of the 1954 Draft Code reads: "Inhuman acts such as murder, extermination, enslavement, deportation or persecutions, committed against any civilianpopulation on social, political, racial, religious or cultural grounds by the authorities of a State or by private individuals acting at the instigation or with toleration of such authorities". ISS D. Johnson, "Draft Code of Offenses against the Peace and Security of Mankind", ICLQ 4 (1955), 445 et seq. 152

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religious - motives, it does so explicitly only with respect to "persecutions in execution of or in connection with any crime within the jurisdiction of the Tribunal". While this does seem to give the opportunity to narrow the scope of the application of this provision, a teleological interpretation leaves no other choice but to restrict the discriminatory grounds to persecutions. While it is thus obvious that the crime of persecution (article 7 (1) (h) of the ICC-Statute) does require a discriminatory motive, it is far more plausible that such a requirement is not necessary with respect to other crimes under the jurisdiction of the ICC, e.g. murder. Persecution as defined in that provision.P" and as explained in article 7 (2) (g) of the ICC-Statute - meaning the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectively -, is by its very nature based on discrimination.W A similar conclusion was reached both by the Trial Chamber-'f as well as the Appeals Chamber in the Tadic case, which found that on the basis of a textual interpretation of the specific subsection.P? a logical and systematic construction of the entire provision.l'" as well as a historical interpretation-'" in addition to a comparison with the customary international rule,162 a discriminatory motive could only be said to exist with respect to persecution. Such a construction is also a sensible approach to the crimes in question. Especially with respect to the crime of persecution, a general requirement of a discriminatory motive would impose a double re-

156 According to article 7 (1) (h), the criminal act consists of "[pjersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court [...J". 157 Robinson, see note 126, 46. 158 Prosecutor v. Dusko Tadic, see note 128, paras 650 et seq. 159 IT-94-1-A, Prosecutor v. Dusko Tadic, Judgment of 5 July 1999, para. 283. 160 Prosecutor v. Dusko Tadic, see note 159, para. 284. 161 Prosecutor v. Dusko Tadic, see note 159, para. 285. 162 Prosecutor v. Dusko Tadic, see note 159, paras 287 et seq. and para. 293. However, the Appeals Chamber noted that its own view was "not in keeping with the Report of the Secretary-General and the statements made by three members of the Security Council before the Tribunal's Statute was adopted by the Council", all of which had at least made mention of the need for these elements to be present. See Report of the Secretary-General, see note 60, para. 48.

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quirement for acts of persecurion.l -' On a more general level, raising the threshold for crimes against humanity to include a discriminatory approach would place an onerous and unnecessary burden on the prosecution, in addition to resulting in a possible and inadvertent exclusion of some acts that would have otherwise fallen under this provision. 164 eee. mens rea The final element of the chapeau - mentioning "with knowledge of the attack" and referring to the subjective element or mens rea - is essentially superfluous. Under general principles of national and international criminal law, the accused must have been at least aware that her/his individual action formed part of a widespread or systematic attack. 165 Indeed, article 30 of the ICC-Statute already contains such a general rule. In addition, the reality of past events seems to be indicative that an individual who commits one of the crimes under article 7 (1) of the ICC-Statute as part of a widespread or systematic attack cannot claim to have been unaware of that particular situation. fH. The Criminal Conduct Listed in Article 7 (1) of the ICC-Statute General Remarks Most of the provisions in para. 1 of article 7 follow closely the precedents of the Nuremberg charter or the statutes of the ICTY or the ICTR. The Nuremberg charter already listed "murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population [...], or persecutions on political, racial, or religious grounds", almost all of which were repeated in the statutes of

163

164 165

Zimmermann, see note 9, 176; Amnesty International, The International Criminal Court: Making the Right Choices - Part 1 of 1 January 1997, 46. Robinson, see note 126, 47. Similar to the view of this author, A. Cassese, "Crimes Against Humanity", in: Cassese et al., see note 11, 353 et seq. (373); Sunga, see note 124, 72. For a different view - based on a characterization of the terms "widespread" and "systematic" as objective elements - see ELSA, Handbook on the draft Statute for an International Criminal Court, May 1998, 25.

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the ICTY and the ICTR, with only slight modiiications.l'" The ICCStatute departs from this established route in a number of ways. One of these changes concerns the addition of the term "forcible transfer of population" in subpara. (d), thereby expanding and refining considerably the previous jurisdiction as it now also includes the forcible transfer of a population within the boundaries of a state,"? in accordance with national laws, which themselves have to conform to the ordre public. Furthermore, persecution, imprisonment and gender crimes were expanded - sometimes considerably - in scope compared to earlier documents. Some of the crimes listed mark entirely new entries into the category of crimes against humanity, such as torture, enforced disappearances of persons and apartheid. This constitutes a considerable step forward in the status of these crimes as the Rome Statute attaches a higher stigma as these crimes now form part of a category of crimes which - according to the Preamble of the ICC-Statute - are the most serious crimes of concern to the international community as a whole, which must not go unpunished. The Crimes of Murder, Extermination, Enslavement and Enforced Disappearances While murder is - in line with previous jurisdictional charters - the first crime mentioned among the inhumane acts of article 7 (1) of the ICC-Statute, the content of the crime was regarded to be sufficiently clear so as to not warrant more specific elaboration.P" In contrast to

166

167 168

The ICTY and ICTR charters differ slightly from the Nuremberg formulation, which stated that persecutions would have to be based on "political, racial or religious grounds", while the ICTY and ICTR statutes use a conjunctive terminology. The first alternative - deportation - means the "forced removal of people from one country to another", see Bassiouni, see note 127, 312. van Hebel! Robinson, sec note 20, 98. Two judgments by the ICTR and the ICTY have reached similar conclusions as to the elements of murder. The trial chamber in the Akayesu case stated that murder - the unlawful, intentional killing of a human being - consisted of three elements, namely (1) the victim is dead, (2) the death resulted from an unlawful act or omission of the accused or a subordinate, and (3) at the time of the killing the accused or a subordinate had the intention to kill or inflict bodily harm on the deceased having known that such bodily harm is likely to cause the victim's death, and is reckless whether death ensues or not. Prosecutor v. Akayesu, see note 58, para. 587 ct seq.

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murder, where one single offence is sufficient, extermination (article 7 (1) (b) of the ICC-Statute) is directed against a group of individuals and involves an element of mass destruction."? One requirement is necessarily the destruction of a group of individuals, although this group does not need to be tailored along the lines of the definition of the Genocide ConuentionP? Enslavement - article 7 (1) (c) of the ICCStatute has been included in all predecessor regimes and was one of the earliest violations of human rights that was specifically recognized un, der international law with the creation and subsequent entry into force of the Slavery Convention of 1926. 171 According to the Elements of crimes, slavery can take a variety of forms, including when the "perpetrator exercises any or all of the powers attaching to the right of ownership over one or more persons, such as purchasing, selling, lending, or bartering such a person or by imposing on them a similar deprivation of liberty."172 However, the Appeals Chamber in the Kunarac case correctly stated that "the law does not know of a 'right of ownership over a person'. Article 1(1) of the 1926 Slavery Convention speaks more guardedly 'of a person over whom any or all of the powers attaching to the right of ownership are exercised.' That language is to be preferred. "173 Another novelty is embodied in article 7 (1) (i) of the ICC-Statute, which prohibits the enforced disappearance of persons on the universal level.V" One obvious requirement stemming from the plural form of the term person is that more than one person must have disappeared. While the impetus for the crime is somewhat unclearf" and its inclu169 170

171 172

173

174

175

Report of the International Law Commission, see note 66, 97. Report of the International Law Commission, see note 66. Similarly, IT-9833-T, Prosecutor v. Krstic, Judgment of 2 August 2001, para. 503 which found that for "the crime of extermination to be established, [...] there must be evidence that a particular population was targeted and that its members were killed or otherwise subjected to conditions of life calculated to bring about the destruction of a numerically significant part of the population". Slavery Convention, LNTS Vol. 60 No. 1414. Elements of Crimes, see note 22, 10. Prosecutor v. Kunarac, Trial Chamber, see note 48, para. 118. Previously, the General Assembly had recognized the severe problem of enforced disappearances in A/RES/47/133 of 18 December 1992, Declaration on the Protection of all Persons from Enforced Disappearances. Wexler, see note 142, traces the inclusion back to the experience in Latin America, C. Hall, "Article 7 - Crimes against Humanity", mn. 73 et seq., in: Triffterer, see note 17, attributes the inclusion to the Nacht und Nebel

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sion into the ICC-Statute open to criticism.P" the provision raises a number of interesting problems. One noteworthy aspect in connection with this crime is that it supports the decision of the Rome Conference that there does not need to be a nexus to armed conflict, as such en forced disappearances do occur in times of peace as well as in times of war. Another problem could arise with respect to the principle of nonretroactivity (article 24 of the ICC-Statute) should the ICC consider these crimes to be ongoing crimes. Furthermore, the ICC-Statute seems to include enforced disappearance of persons not only by governmental organs, but also by "political organizations't.V? thus deviating considerably from the current notion of this crime under customary international law. 178 However, despite this departure.V? it seems in line with the decision to expand the notion of crimes against humanity to nonstate actors. Finally, on a practical level, this provision might increase the caseload of the court,180 considering that the number of reported enforced disappearances around the world has reached abominable levels. 181 However, given that the requirements of the chapeau need to be fulfilled, the number of potential cases could decrease significantly.

176 177

178

179 180 181

Erlass (Night and Fog Decree) of 7 December 1941. In light of the considerable amount of such acts, specifically in Latin America, the former proposition seemsmore likely. Zimmermann, see note 9,184. Article 7 (2) (i) of the ICC-Statute reads: "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time". Article II of the Inter-American Convention on the Forced Disappearance of Persons of 9 June 1994, states: "For the purposes of this Convention, forced disappearance is considered to be the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support , or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legalremedies and procedural guarantees". Hall, see note 175, mn. 124, in: Triffterer, see note 17. Wexler, see note 142, 158. Doc. E/CNA/1997/34, Report of the Working Group on Enforced or Involuntary Disappearances, Question of Human Rights of All Persons Sub-

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Persecution The inclusion of persecution as a separate crime was the cause of considerable debate prior to and during the Rome Conference. 182 While all previous major precedents had included this category of crimes, some states argued that its ambiguity and the lack of a firm basis in international criminal law would require it being left out of the ICC-Statute entirely,183 with at least one author calling it "the weakest element of the Rome Statute's definition of 'crimes against humanity' [...]."184 Another aspect that should also be considered is that the concept of a crime under the label "persecution" is alien to the major criminal justice systems in the world.l'" A compromise was reached when the wording of prior statutes was amended considerably, especially in comparison to the statutes of the ICTY and ICTR.186 Persecution is now described as a conduct in connection with acts embodied in one of the crimes under the jurisdiction of the court, if that conduct is carried out against an identifiable group of collectivity-V because of that group's/collectivity's

jeered to Any Form of Detention or Imprisonment - Question of Enforced or Involuntary Disappearances, 13 December 1996. 182 Report of the Committee on the Establishment of a Permanent International Criminal Court, see note 19, 17; W. Schabas, An Introduction to the International Criminal Court, 2001, 39; van Hebel/ Robinson, see note 20, 101.

183 van Hebel/ Robinson, see note 20,101. 184 Sunga, see note 124, 73. 18S Bassiouni, see note 127, 327. Delbriick! Wolfrum, see note 35, 1088 point out that the prohibited conduct within crimes against humanity is for the most part included in national penal codes. 186 Both the ICTY and ICTR statutes merely contained the wording "persecutions on political, racial and religious grounds". Contrary to the analysis of Schabas, see note 182, 39, the Nuremberg Charter was more elaborate and the ICC-Statute resembles it more closelywhen it criminalized "persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated" 187 It is unclear what purpose the distinction between group and collectivity serves. Neither article 7 (2) (g) ICC-Statute nor the Elements of Crimes provide any guidance on this issue. If one were to assume that it meant a people as a whole, such a meaning could be subsumed under the element "group". The same is true if collectivity is to be understood as an association of individuals who share an ideological basis. Thus, every collectivity could be subsumed under the term group, but not vice versa.

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identity.188 The latter aspect requires that persecution must be committed on discriminatory grounds, the list of which has been extended by inclusion of the grounds of nationality, ethnicity and gender. However, this list is not exclusive, but any other such ground must reach the level of being "universally recognized as impermissible under international law". This wording leaves the door open for a wide margin of interpretation by the bench of the ICC and is at the very least problematic given the nature of the ICC-Statute as a tool of criminal law, which is bound to a high degree of specificity.l''? The terminology in connection with other crimes under the jurisdiction of the ICC-Statute could potentially lead to cases in which a single murder was committed, while the persecution was carried out including the elements mentioned in the chapeau.P? This departure from legal regimes recently established under the ICTY and ICTR statutes might be attributable to the different 188 The definition set out in article 7 (2) (g) of the ICC-Statute - apart from including a subjective element which would have to be present in any case does not clarify the rather imprecise provision in section 1, as it reads: "
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legal nature between a treaty-based body as is the case with the ICC on the one hand and ad hoc tribunals which are based on the will of the Security Council of the United Nations on the other. Crimes of Sexual Violence The category of sexual violence (article 7 (1) (g) of the ICC-Statute) contains a number of normative as well as descriptive conducts, as well as a specific catch-all phrase for this category of crimes against humanity. Among the conducts that are prohibited by this provision are rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization among which only forced pregnancy seemed to merit closer definition in section 2 of Article 7. This result is a marked departure from predecessor statutes (ICTY and lCTR) which were generally limited to rape and did not prohibit specifically any of the other acts now mentioned in article 7 (g) of the lCC-Statute. 191 Their inclusion is however amply justified, especially as seen before the experience in the civil wars in the former Yugoslavia and Rwanda. 192 While it was beyond question that rape would be included, there was no agreed upon definition of this form of conduct in international criminal law. This is evidenced by the lengthy finding of the lCTY on this matter in the Furundzija case.l'" After stating that there existed no definition under in191

192

193

Crimes against humanity were interpreted broadly during the Nuremberg trials, as is evident from the following statement by Francis de Menthon, the French prosecutor at Nuremberg. He regarded crimes against humanity as "crimes against the human status (la condition humaine)", which he defined in relevant part as "all those faculties, the exercising and developing of which rightly constitute the meaning of human life." Judgment of the International Military Tribunal sitting at Nuremberg, 30 September 1946, in: Trial of Major War Criminals, 1947, Vol. 4,364. See discussion in the Trial Chamber's judgment in the Furundzija case, see Prosecutorv. Furundzija, see note 47, paras 174 et seq., especially para. 186; B. Bedont/ K. Hall Martinez, "Ending Impunity for Gender Crimes Under the International Criminal Court", Brown Journal of World Affairs 6 (1999),65 et seq.; C. Steains, "Gender Issues", in: Lee, see note 20,357. The Furundzija finding in this matter is the culmination of a series of find ings both by the ICTR and the ICTY. The ICTR in the Akayesu case found that rape was the "physical invasion of a sexual nature, committed on a person under circumstances which are coercive". It thereby avoided a technical analysis, stating "that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts ". See Prosecutor v. Akayesu, see note 58, para. 688. This finding was confirmed

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ternational law'?" and after comparing and analyzing several national provisionsl'" (and mindful of the fact that a mechanical importation or transposition from national law into international criminal proceedings is [to be] avoided.l'" it concluded that the objective elements of rape were: "(i) the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; (ii) by coercion or force or threat of force against the victim or a third person."197 The inclusion of at least one conduct now under the jurisdiction of the ICC caused considerable debate, namely the inclusion of the crime of "forced pregnancy". This was not so much due to states being opposed to its inclusion per se, but rather because a number of states feared that its inclusion, inter alia, might open the way for obliging states to provide access to abortion to women who were forcibly impregnated.l?" Thus, the definition in article 7 (2) (f) of the ICC-Statute consists of three elements, namely that the perpetrator (1) confines a woman (2) who was forcibly made pregnant and (3) has the intention to affect the ethnic composition of any population or carrying out other grave violations of international law. One of the offenses mentioned in this category seems somewhat superfluous, namely "sexual slavery", as such conduct would already be captured by article 7 (1) (c) of the ICCStatute. The provision is not limited to the specific conduct referred to in article 7 (1) (g) of the ICC-Statute. Rather, through the wording "any other form of sexual violence" it retains considerable flexibility,199

by the ICTY in its Delalic judgment, Prosecutor v. Delalic, see note 73, para. 479. 194 Prosecutor v . Furundzija, see note 47, paras 178. 195 Prosecutor o. Furundzija, see note 47, paras 179-182. 196 Prosecutor v. Furundzija, see note 47, paras 178. 197 Prosecutor v. Furundzija, see note 47, paras 185. 198 Steains, see note 192, 368; Wexler, see note 142, 159. 199 The Trial Chamber in the Akayesu case held that "[s]exual violence which includes rape, is considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive. " Prosecutor v. Akayesu, see note 58, para . 688.

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which is limited by the requirement that any such "other form of sexual violence" must be of "comparab le gravity".2°O Torture While torture was not specifi cally recognized in the Nuremberg Charter,20t it was listed in both the statute of the ICTY as well as the statute of the ICTR. There is no doubt that the prohibition of torture forms an integral part of customary international law, and, significantly, part of jus cogens.202 The most significant difference brought about by the definition of torture under the ICC-Statute compared to the definition set out in article I of the Torture Convention 203 is the fact that there does not need to be any kind of involvement of public officials. Article 7 (2) (e) of the ICC-Statute defines torture as "the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused". This signifies a considerable - horizontal - expansion of the potential ratione personae - bearing in mind that torturous acts, in order to fall under the jurisdiction of the ICC, must be committed under the conditions set out in the chapeau. In this regard, it should be noted that the jus cogens nature of the prohibition of torture referred to above onl y pertains to torture by government officials. Nevertheless, the expans ion is in line with the recognized issue of non-state actors acting as perp etrators of these

200 This wording was inserted to avert concerns that sexual harassment and genital mutilation would fall under the jurisdiction of the ICC. Wexler, see note 142, 159. 20t Bassiouni, see note 127, 331 points out that the Nuremberg tribunal subsumed torturous acts under "other inhumane acts". 202 N. Rodley, The Treatment of Prisoners under International Law, 2nd edition, 1999, 74; E. Peters, Torture, 1996, 62; Rosalyn Higgins, "Derogations under Human Rights Treaties", BYIL 48 (1976-77), 281 et seq. (282), referring to the norm under customary international law; J. Paust et aI., International Criminal Law - Cases and Materials, 2nd edition, 2000, 13; Restatement (Third) of Foreign Relations Law of the United States, § 702 comment n; Committ ee of u.s. Citizens Living in N icaragua v. Reagan, 859 F.2d 929 (941); Siderman de Blake v. R epublic of Argentina, 965 F.2d 699 (714). 203 United Na tions Conv ention Against Torture and Other Cruel, Inh uman or Degrading Treatment or Punishment, UNTS Vol. 1465 No . 24841.

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crimes.P" Without this change from the Torture Convention, the appli cation of this provision would have been severely limited and would have excluded acts which were intended to fall under the jurisdiction of the ICC. Furthermore, there is no need for a specific purpose for which torture must be carried out. 20S Thus, the definition also includes acts carried out at random or for sadistic purposes - if all other requirements, including those of the chapeau are met.206 However, the definition included in the ICC-Statute still contains wording similar to the lawfulness-exception embodied in article I of the Torture Convention, thereby excluding torture from the jurisdiction of the ICC when it is "inherent in or incidental to, lawful sanctions". Whether it will be wise to overcome this "quandary" by determining the lawfulness of the sanctions "against the background of customary international human rights standards"207 remains to be seen. Apartheid The crime of apartheid was not included in any other previous international criminal law instrument and is therefore a novelty.208 The inclusion of apartheid as a crime209 in article 7 (1) (j) of the ICC-Statute, separate from persecution, seems appropriate for two reasons. First and foremost, the two crimes differ in that the concept of apartheid seeks to ensure the domination on various levels of one racial group over other(s). Second, listing apartheid as a separate crime makes clear the

204 This requirement was repeatedly confirmed however in the Kunarac caseboth by the Trial Chamber as well as the Appeals Chamber. See Prosecutor v. Kunarac, Trial Chamber, see note 48 and IT-96-23 & IT-96-23/1 -A, Prosecutor v. Kunarac et aI., Judgment, Appeals Chamber, 12 June 2002, para. 148. For a different view - promulgated prior to the Rome Conference - see Zimmermann,see note 9, 18t. 205 Prosecutor v. Kunarac, Trial Chamber, see note 48, 22 February 2001,para. 497 and IT-96-23 & IT-96-23/1-A; Prosecutor v. Kunarac et aI., Judgment, Appeals Chamber, 12June 2002, para. 153. 206 Hall, see note 175, rnn. 107, in: Triffterer,see note 17. 207 Sunga,see note 124, 74. 208 Bassiouni,see note 127, 364. 209 How ever, the ILC took a different view in 1991, when it stated that the practice is "nowadays so deeply condemned by the world's conscience that it [is] conceivable for the Commission to exclude it from a code which punishes the most abominable crimes that jeopardize the peaceand security of mankind", ILCYB 1991, Vol. II, 2, 102.

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stigma attached to apartheid as a criminal policy,210 as already evidenced by the International Convention on the Suppression and Punishment of the Crime of Apartheid,211 which in its article II lists numerous acts whi ch, when "committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them", will be considered a criminal act according to arts III and IV of the Convention.Uf Another conceivable method would have been for apartheid to be implicitly understood to be included in article 7 (1) (k) of the ICC-Statute ("other inhumane acts"). However, the wording of the relevant provision of the ICC-Statute is considerably narrower.U! as it requires that an "inhumane act of a similar character to those referred to in paragraph 1" be committed, but this must have taken place in the "context of an institutionalized regime of systematic opp ression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime".214 Other Inhumane Acts The final provision of article 7 (1) of the ICC-Statute is a catch-all provision ("other inhumane acts"), which was included in all previous stat210 This was the reason for various countries pressing for the inclusion of that crime, particular African nations but also Bangladesh, India and Trinidad and Tobago. Doc. AlCONF.183/e.UL.12 of22 June 1998. 211 Of 30 November 1973, UNTS Vol. 1015 No. 14861. Hereonafter Apartheid Convention. 212 The Aparthe id Convention in article V allows for trials "by a competent tribunal of any State Party to the Convention [...] or by an international penal tribunal [...]." 213 Similarly, Hall, see note 175, mn. 116, in: Triffterer, see note 17. However, Hall contemplates that the provision lacks - to some degree - specificity and must be seen as a residual norm. However, the term apartheid does have a relatively long and pronounced history in international law, as evidenced by numerous resolutions passed by both the General Assembly and the Security Council. R. Clark, "Apartheid", in: M.e. Bassiouni (ed.), International Criminal Law - Volume II, 2nd edition, 1999, 643 et seq. Moreover and in light of this, the claim that it might have to be construed on a residual basis leaves out of consideration the specific stigma that attaches to the crime of apartheid. While article 7 (1) (k) of the ICC-Statute does refer to other crimes within article 7 (1) of the ICC-Statute, it does so to establish the necessary threshold that individual acts must reach. 214 Article 7 (2) (h) of the ICC-Statute.

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ute s, but which has undergone considerable qualificat ions, as it now extends only to acts which are " of a similar character int ent ionally causing great suffering, or serious injury to body or to mental or physical health." The inclusion of th is category caused serious concerns during the Rome Conference because of its potential for being used in politically motivated cases and its innate amb iguity.U! As a general clause, intended to encompass those acts which are not specifi cally mentioned in other parts of art icle 7 of the ICC-Statute, crimes falling under this category must necessarily be comparable to the other classes of crimes mentioned. The ICTY in its Tadic and Blaskic judgements found that acts such as " mut ilation and other types of severe bodily harm, beatings and other acts of violence, and serious physical and mental injury"216 constituted "other inhumane acts ". While some of th ese acts could arguably be subsumed under different categories, the inclusion of this class mi ght prove meritorious for acts that have been unforeseeable at the time of the Rome Conference. d. Individual Crimes under the Statute - War Crimes Compared to its historical predecessors, the sheer length of article 8 of the ICC-Statute, the norms circumscribing war crimes.P ? is staggering.218 This extensive enumeration of prohibited conduct is testament to

215 van Hebel! Robinson, see note 20,102; Wexler, see note 142,158 . Prosecutor 'V. Dusko Tadic, see note 127, para. 729; IT-95-14-T, Prosecutor 'V. Blask ic, Judgment of 3 March 2000,para. 243. 217 As a full discussion of each of the various forms of war crimes included in the ICC-Statute would go beyond the scope of this paper, only the most relevant and legallyprobl ematic features of this norm are discussed. 218 Seee.g. article 6 (b) of the Nuremberg Charter, which reads: "war crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territo ry, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity [...]." While the relevant provisions in the statutes of the ICTY and ICTR are more detailed, they are still considerably shorter than article 8 of the ICCStatute. 216

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lengthy negotiations and a complicated historical forthcoming.U? This was to some degree - and converse to the elaboration of crimes against humanity - due to the necessity to make a selection from the "abundance of precedents'V'? including the Hague Convention No. IV of 1907,221 the 1949 Geneva ConuentionsF? as well as the 1977 Additional ProtocolsF' Its content is much more detailed and significantly contains a number of provisions pertaining not only to international conflicts, but also internal conflicts. This richness in detail can be seen to have both a negative side, but also a positive one. On the one hand, it can be considered underinclusive due to the fact that a more abstract provision would have left the door open to judicial interpretation; more-over, it might be underinclusive with respect to the crimes that could be considered to be a threat to the values mentioned in the Preamble to the ICC-Statute. On the other hand, it can also be considered to be more complete than its predecessor rules on this matter, especially because it includes rules on the criminal liability for behavior in armed conflicts not of an international character.F" War crimes could not be more precisely defined before 1997, as a number of countries - instrumental to the eventual success of the van Hebel/ Robinson, see note 20, 103 and 106 for a brief discussion of the issues prior to the Rome Conference. 220 van Hebel! Robinson, see note 20,103. 221 Convention (IV) Respecting The Laws and Customs of War on Land (Hague IV) of 18 October 1907, Martens NRG Zeme serie, Vol. XXVI, 949 et seq. 222 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, UNTS Vol. 75 No. 970; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, UNTS Vol. 75 No. 971; Convention (III) Relative to the Treatment of Prisoners of War of 12 August 1949, UNTS Vol. 75 No. 972; Convention (IV) Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, UNTS Vol. 75 No. 973. 223 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, UNTS Vol. 1125 No. 17512; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8June 1977, UNTS Vol. 1125 No. 17513. These countries included France, India, Indonesia, Israel, Pakistan, Turkey, the United Kingdom and the United States. 224 See article 8 (2) (c) and (e) ICC-Statute. 219

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ICC-Statute had not ratified the two Additional Protocols. This caused a deadlock which was encompassed in two conflicting proposals tabled by the United States on the one hand 225 and Switzerland and New Zealand on the other. 226 Throughout various informal consultations and conferences on this matter, the so-called Bonn proposal emerged, which served as a basis for the discussions in Rome. 227 As a general comment, it should be noted that the ICC-Statute presupposes the existence of an armed conflict. This is made clear by the Elements of crimes, which stipulate that "[tjhe conduct [must have taken] place in the context of and was associated with an (international) armed conflict (not of an international character)."228 Moreover, the Trial Chamber in the Tadic case - while recognizing that each case has to be analyzed on its own merits 229 - had argued that " [f]or a crime to fall within the jurisdiction of the International Tribunal, a sufficient nexus must be established between the alleged offence and the armed conflict which gives rise to the applicability of international humanitarian law".23o The final structure agreed upon may be described as follows. Article 8 contains three sections, the first one of which lays down a threshold clause. The second section defines the term "war crimes" for the purpose of the ICC-Statute and deals in sub-sections (a) and (b) with armed conflicts of an international character, while sub-sections (c) through (f) embody the rules pertaining to internal armed conflicts. Section 3 serves as a "reminder" of the non-violability of the unity and territorial integrity of a state. The most hotly debated issues were those pertaining to the inclusion of parts of the Additional Protocols, while the inclusion of provisions stemming from the 1949 Geneva Conventions and the Hague Regulations was - with minor exceptions - generally accepted.P! 225 226 227 228

Doc. A/AC.249/1997/WG.1/DP.1 of 14 February 1997. Doc. A/AC.249/1997/WG.1/DP.2 of 14 February 1997. van Hebel/Robinson, see note 20,106. Seeeach of the Elements of Crimes, see note 22, article 8 - War Crimes. 229 Prosecutor v. Tadic, see note 128, para. 573. 230 Prosecutor v. Tadic, see note 128, para. 572; similarly, the Appeals Chamber had declared in its prior ruling on jurisdictional issues that such a nexus must exist, see IT-94-1-AR72, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995,para. 67. 231 van Hebel/ Robinson, see note 20,107.

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aa. The Threshold Clause for War Crimes - Departure from Customary Law or Political Necessity? The inclusion of a threshold clause was controversial from the start and can be considered to be a departure from customary law in this field,232 as such a clause had not been included in any of the precedents. The arguments for such a threshold clause were promulgated for the most part by the United States which argued that such a clause - similar to the one preceding article 7 on Crimes Against Humanity - would aid the court in a number of ways. This included the arguments that only the most serious crimes should come under the jurisdiction of the Court and that it would keep the Court's workload at acceptable levels.233 The latter argument is especially unconvincing in light of the fact that it was clear from the start out that the Court would only act if national courts were unwilling or unable to do so - according to the principle of complimentarity, as now embodied in article 17 of the ICC-Statute. The inclusion of the threshold clause in its current form (in particular), must be seen as a compromise between those countries which favored that the Court should have jurisdiction only when such crimes were committed as part of a plan or policy or as a part of a large-scale commission of such crimes and the countries which wanted to do away with such a proposal altogether. The chapeau, and specifically the limitation embodied by the wording in particular, is probably best understood as a cautious warning to the Court to exercise its jurisdiction in such cases which are especially egregious, without the necessity of the crime having been committed as part of a large-scale commission or part of a plan or policy.P" Another aspect that should be borne in mind is that the threshold clause does not touch the characterization of the individual crime, which will have to be judged against the provisions of the following sub-sections.P>

232 Zimmermann, seenote 9, 187. 233 van Hebel! Robinson, seenote 20,107. 234 Wexler, see note 142, 161; M. Bothe, "War Crimes", in: Cassese et al., see note 11,398; W. Fenrick, "Article 8 - War Crimes", mn. 4, in: Triffterer, see note 17; for a different view see Sunga, see note 124, 76. It would appear that states are more willing to prosecute isolated incidents, thus barring such acts from the adjudication by the ICC on the basis of the complimentarity principle according to article 17 of the rCC-Statute. 235 Zimmermann, seenote 9,187.

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bb. International Armed Conflicts Clearly, the most elaborate scheme within the ICC-Statute is the one concerned with war crimes in international armed conflict. The long list is the product of the conviction by a large number of states that all grave breaches of the Geneva Conventions should be part of the ICCStatute, but that other crimes also merit international criminal adjudication. This overwhelming number of countries in favor of such an approach is explicable given that - at the time of the Rome Conference - more than 185 countries had ratified the Geneva Conventions, in addition to the IC]'s finding in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons that these norms constituted customary international law. aaa. Grave Breaches of the Geneva Conventions - Article 8 (2) (a) Article 8 (2) (a) of the ICC-Statute can be considered the norm that was the least controversial within the category of war crimes, as it is based on recognized principles of international humanitarian law, both in terms of treaty law, but also in customary international law.236 This is evident when analyzing the wording of this provision, in which such crimes as the wilful killing,237 the application of torture or inhuman treatmenr-" or the extensive destruction and appropriation of property, if unjustified by military necessity and carried out unlawfully and wantonly-'? are incorporated. The protection of the prohibition of wilful killing not only extends to belligerents, but also to civilians. This can be deduced from the wording which does not delimit the group of individuals to which protection shall be accorded and from the introductory sentence of article 8 (2) (a) of the ICC-Statute; furthermore, if such protection were to extend only to belligerents, such acts would not be punishable at all under the Statute, if they do not reach the threshold set forth in article 7 of the ICC-Statute (crimes against humanity).240 The provision regarding torture raises a number of interesting issues. First of all, the prohibition of torture exists under the um-

236 The provision furthermore incorporates almost verbatim article 2 of the ICTY-Statute. 237 Article 8 (2) (a) (i) of the ICC-Statute. 238 Article 8 (2) (a) (ii) of the ICC-Statute. 239 Article 8 (2) (a) (iv) of the ICC-Statute. 240 SeeII. 1. c. bb. bbb.

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brella of crimes against humanity. Second, it should be stressed that desp ite the fact that biological experiments are mentioned, the prohibition is not limited to such conduct. This is clear as the Statute uses the terminology "including". Moreover, on several occasions the lCTY241 as well as the lCTR242 has extended the protection - referring to the construction of the 1984 Torture Convention - to the infliction of mental pain or suffering. Similarly, the long-standing prohibitions of hostagetaking,243 deprivation of due process rights 244 and great suffering and serious injury to body or health 245 are contained in this provision. Hostage-taking for the purpose of international criminal law was defined by the Trial Chamber of the lCTY in the Lasva Valley case as consisting of "the unlawful deprivation of liberty, including the crime of unlawful confinement" in addition to the "issuance of a conditional threat in respect of the physical and mental wellbeing of civilians who are unlawfully detained." It concluded from this latter aspect that "such a threat must be intended as a coercive measure to achieve the fulfillment of a condition. "246 As hostage-taking is only included in the Fourth Geneva Convention, the protection of this norm only covers ci-

241

242

243 244 245

246

Prosecutor v. Delalic, see note 73, para. 494;similarly Prosecutor v. Furundzija , see note 47, para. 162. In this decision the Trial Chamber found that

torture "(i) consists of the infliction, by act or omission, of severe pain or suffering, whether physical or mental; in addition (ii) this act or omission must be intentional; (iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person; (iv) it must be linked to an armed conflict; (v) at least one of the persons involved in the torture process must be a public officialor must at any rate act in a non-private capacity, e.g. as a de facto organ of a state or any other authority-wield ing entity. Prosecutor v. Akayesu, see note 58, para. 593. Article 8 (2) (a) (viii) of the ICC-Statute. Article 8 (2) (a) (vi) of the ICC-Statute. Article 8 (2) (a) (iii) of the ICC-Statute. It is argued that while this prohibi tion is a special case of torture, it differs from that prohibition in that there do not need to be lasting consequences from the act or omission. Delbriick/ Wolfrum, see note 35,1056. IT-95-14/2-T, Prosecutor v. Kordic of 26 February 2001 , paras 312-313. See also the Trial Chamber judgment in the Blaskic case which stated that "[tjhe Prosecution must establish that, at the time of the supposed detention, the allegedly censurable act was perpetrated in order to obtain a concession or gain an advantage," IT-95-14-T, Prosecutor v. Blaskic of 3 March 2000, para. 158.

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vilians, but not belligerents. Finally, it should be noted that the list of crimes contained in this sub-section is an exhaustive one, as evidenced by the usage of the term "namely". bbb. Other Serious Violations of the Laws and Customs Applicable in Armed Conflict - Article (2) (b) In a second step, the ICC-Statute criminalizes "other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law". Similarly to the introductory sentence of sub-section (a), this sub-section contains an exhaustive list of crimes. This is indicated by the terminology "namely".247 Its content originates - without specifically referring to its sources - to a range of international humanitarian law treaties, such as inter alia Additional Protocol I, the Hague Regulations, the 1925 Geneva Protocol on Chemical Weapons.248 The sources are indicative of the fact that most conduct mentioned in this sub-section is not only prohibited under treaty law, but also under customary international law.249 Sub-section (b) can broadly be categorized into prohibiting conduct within four areas , namely: methods of warfare, means of warfare/weapons, attacks on specially protected persons and objects and violations of human rights in armed conflict.P'' Prohibited Methods of Warfare The list of crimes that can be grouped under the prohibited methods of warfare include, inter alia, rules designed to protect the civilian popula-

247 In this, the ICC-Statute deviates from the ICTY-Statute which - in its article 3, Violations of the laws or customs of war - uses the wording "[sjuch wording shall include, but not be limited to", which the Appeals Chamber in the Tadic case understood to be "merely illustrative, but not exhaustive," see Prosecutor v. Dusko Tadic, see note 230, para. 87. Protocol for the Prohib ition of the Use in \Var of Poisonous, or Other Gases, and of Bacteriological Methods of\Varfare, LNTS Vol. 94 No . 2138. 249 Delbriick/ Wolfrum, see note 35, 1058; W. Fenrick, "Article 8 - War 248

Crimes", rnn . 20, in: Triffterer, see note 17. 250 Differentiation according to M. Bothe, "War Crimes", in: Cassese et aI., see note 11,397 et seq.

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tion, the destruction of property/51 the improper use of signs and perfidy,252 and finally the treatment of combatants. The protection of the civilian population in international armed conflicts is a long-standing principle and is now enshrined in article 8 (2) (b) (i) and (ii) of the ICCStatute, under which both civilians and civilian objects are protecred.P' Another fundamental norm - attacks in violation of the principle of proportionality - is included in this category.P' While its inclusion is laudable, Bothe points to the problem that - when applied - the balance of values under the proportionality principle is virtually impossible, as loss of life and destruction of civilian property have to be weighed against each other.255 Moreover, the Elements of crimes regarding this provision seem to deviate from the wording of the statutory provision.P'' Finally, using civilians as human shields and starva-

251 It is worth noting that the destruction of civilian property is only permissible when "imperatively demanded by the necessities of war." See article 8 (2) (b) (xiii) of the ICC-Statute. 252 Article 8 (2) (b) (vii) and article 8 (2) (b) (xi) of the ICC-Statute. 253 Article 52 (2) of Additional Protocol I defines military objects being limited "to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage". 254 Article 8 (2) (b) (iv) of the ICC-Statute. 255 M. Bothe, "War Crimes", in: Cassese et aL, see note 11,398. This problem was raised in the NATO bombing of a TV station in Belgrade, as well as certain infrastructure. See e.g. R. Wright, "Combating Civilian Casualties: Rules and Balancing in the Developing Law of War", Wake ForestLaw Review 38 (2003), 129 et seq.; H. Reinhold, "Target Lists: A 1923 Idea with Application for the Future", Tulsa Journal of Comparative and International Law 10 (2002), 1 et seq. (27); A. Laursen, "NATO, the War over Kosovo, and ICTY Investigation", Am. U. Int'l L. Rev. 17 (2002), 765 et seq. (790); S. Belt, "Missiles over Kosovo: Emergence, Lex Lata, of a Customary Norm Requiring the Use of Precision Munitions in Urban Areas", Naval Law Review 47 (2000), 115 et seq. 256 In a footnote, the Elements of Crimes, see note 22, explains that "[tjhe expression 'concrete and direct overall military advantage' refers to a military advantage that is foreseeable by the perpetrator at the relevant time. Such advantage mayor may not be temporally or geographically related to the object of the attack. The fact that this crime admits the possibility of lawful incidental injury and collateral damage does not in any way justify any violation of the law applicable in armed conflict. It does not address justifications for war or other rules related to jus ad bellum. It reflects the pro-

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tion - if employed as a method of warfare - is especially prohibited under article 8 (2) (b) (xxiii) and (xxv) of the ICC-Statute, respectively. Finally, this subcategory addresses the issue of the treatment of combatants, specifically in article 8 (2) (b) (vi) and (xii) of the ICC-Statute. The underlying principle is already included in the St. Petersburg Declaration, which stated that "[tjhe only legitimate object which States should endavour to accomplish during war is to weaken the military forces of the enemy" and regarded it as "sufficient to disable the greatest possible number of men".257 Thus, killing or wounding enemy combatants hors de combat is regarded as being an illegitimate purpose. Furthermore, and again as an outflow of notions of chivalry and limiting combat to what is militarily necessary, article 8 (2) (b) (xii) of the ICC-Statute criminalizes the denial of giving quarter to prisoners. Prohibited Means of Warfare/Weapons The ICC-Statute furthermore prohibits means of warfare and the use of certain weapons. This includes the employment of poison or poisoned weapons, chemical weapons, so-called dumdum bullets, indiscriminate weapons and methods which lead to unnecessary suffering or superfluous injury. Chemical weapons - article 8 (2) (b) (xviii) of the ICCStatute - have been the subject of comprehensive prohibitions since 1925, with the adoption of the Geneva Protocol. Their inclusion was undisputed; claims to subsuming biological or nuclear weapons under this provision however are to be rejected, in light of the clear wording, and with regard to nuclear weapons, of the 1996 Advisory Opinion by the ICJ.258 Although specifically mentioned, the use of so-called dum-

portionality requirement inherent in determining the legality of any military activity undertaken in the context of an armed conflict". Wexler, see note 142, 165 considers this explanation to be inconsistent with the wording of the ICC-Statute. 257 Seenote 116. 258 IC} Reports 1996, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 226 et seq. (248). The ICJ held that no weaponspecific prohibition existed in international law and hence that nuclear weapons as such were not prohibited. The lCTs finding provided for some exceptional circumstances in its opinion, see 256. It would have been highly problematic to formulate such a prohibition for nuclear weapons, as this would have had to be based on existing customary international law given the ICJ's opinon, which itself is based on and reflects customary internationallaw in this regard.

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dum bullets.P? i.e. bullets which expand or flatten easily, thus causing great suffering, can also be subsumed under the following prohibition. In more general terms, article 8 (2) (b) (xx) of the ICC-Statute prohibits the use of weapons which cause superfluous injury or unnecessary suffering or which are inherently indiscriminate. However, these weapons and methods must be the subject of a comprehensive prohibition and must be included in an annex to the ICC-Statute. Although the wording of the introductory clause is clear in that the list of crimes is exhaustive, the wording of the prohibition allows for an extension of the weapons that are encompassed, thus permitting a reaction to newly created weapons which otherwise fulfill the requirement of this provision. 26o Attacks on Specially Protected Persons and Objects Among the crimes in this category are attacks against specially protected buildings,261 attacks on medical personnel units and transports, but also attacks against humanitarian assistance or peace-keeping missions. Under the heading protection of medical personnel units and transports, attacks against medical personnel and units are criminalized, providing for comprehensive protection of both civilian and military medical and religious personnel.P? Finally, humanitarian assistance or peace-keeping missions find protection under the ICC-Statute. This provision is based on the Convention on the Safety of United Nations and Associated Personnel. 263 The terminology "as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict" refers to those situations in which United Nations personnel would be engaged in the hostilities, at which Article 8 (2) (b) (xix) of the ICC-Statute. The lack of an exhaustive list could prove to be a positive aspect, as States parties will be able to agree on certain weapons which should fall under this prohibition, such as chemical and biological weapons, anti-personnel mines or laser-blinding weapons. 261 Article 8 (2) (b) (ix) of the ICC-Statute. Such protected objects include buildings dedicated to religion, education, art and science, but also hospitals. 262 Bothe, see note 256, 410. 263 A/RES/49/59 of 15 December 1994, Convention on the Safety of United Nations and Associated Personnel. See A. Bouvier, "Convention on the Safety of United Nations and Associated Personnel: Presentation and Analysis", Int'l Rev. of the Red Cross 309 (1995), 638 et seq. 259 260

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point they would not be afforded the protection of the ICC-Statute under this provision, but would have to be regarded as combatants. Prior to such a scenario, such personnel would have the same status as civilians. 264 Violations of Human Rights in Armed Conflict Generating great debate, the prohibition of the transfer of population found entrance into the ICC-Statute in article 8 (2) (b) (viii) of the ICC-Statute. In terms of content, the provision remained unchanged in comparison to the Fourth Geneva Convention . However, the positioning of the transfer of parts of a nation's own civilian population into the territory it occupies as the first of the crimes covered by this provision was intended to be and is due to Israel's settlement policy in the West Bank and the Gaza Strip.265 This provision was cited by Israel as one of the reasons why it would not become a party to the Rome Statute. 266 Crimes of sexual violence are contained in article 8 (2) (b) (xxii) of the ICC-Statute.267 Similar to the parallel provision in crimes against humanity, some elements of this category of crimes required careful elaboration in the drafting stage. However, the cruelty with which these crimes are carried out and the lasting physical effects and mental trau-

264 Bothe, see note 256, 411 draws the attention to the problem of when peacekeepers enjoy such a status. Such a determination would have to be made taking into account the legitimizing source for the action taken, i.e, the establishment by the competent United Nations organ. 265 van Hebell Robinson, see note 20, 112;Bothe, see note 256, 413; see also A. Imseis, "On the Fourth Geneva Convention and the Occupied Palestinian Territory", Harv. Int'l L. J. 44 (2003), 65 et seq. 266 Israel Ministry for Foreign Affairs, Israel and the International Criminal Court, Office of the Legal Adviser to the Ministry of Foreign Affairs, June 2002, (4 August 2003). 267 See generally K. Askin, "Prosecuting Wartime Rape and other GenderRelated Crimes Under International Law: Extraordinary Advances, Enduring Obstacles", Berkeley Journal of International Law 21 (2003),288 et seq.; J. Gardaml M. Jarvis, Women, Armed Conflict and International Law, 2001; K. Boon, "Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy and Consent", Colum. Hum. Rts. L. Rev. 32 (2001), 625 et seq.; C. Maravilla, "Rape as a war crime: the implications of the International Criminal Tribunal for the Former Yugoslavia's decision in Prosecutor v. Kunarac, Kovac, & Vukovicon international humanitarian law", FloridaJournal of International Law 13 (2001), 321 et seq.

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matization and given that the large-scale commission of these crimes in Yugoslavia and Rwanda had only recently taken place, the recognition of these sexual and gender-based crimes was uncontroversial in general terms. 268 Similar to the provision appearing in crimes against humanity, this norm is at first sight open-ended ("or any other form of sexual violence"). However, it is limited to those acts which constitute "a grave breach of the Geneva Conventions". Despite the fact that most of such conduct could be subsumed under other provisions within the category of war crimes.P? such as torture-" or crimes against humanity, its inclusion was agreed upon because of the heightened stigma that such a conviction carries with it. The use of child soldiers, a growing problem in contemporary conflicts271 and the cause for considerable debate during the Rome Conference,272 is the subject of criminalization under article 8 (2) (b) (xxvi) of the ICC-Statute. Based on article 77 (2) of Additional Protocol I and article 38 of the Convention on the Rights of the Child,273 the minimum age for conscription or enlistment of child soldiers is 15 years. Delimiting the precise age for this crime was the subject of controversial discussions prior to and during the Rome Conference. In light of article 1 of the Convention on the Rights of the Child, which defines children as "[...] every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier" lowering the

268 269 270

271

272 273

van Hebel/ Robinson, see note 20, 117. DelbriickJ Wolfrum, see note 35,1065. See Prosecutor v. Furundzija, see note 47, para. 172; Prosecutor v. Delalic, see note 73, para. 496; Prosecutor v. Kunarac, Trial Chamber, see note 48, para. 436 et seq. A/51/306. Impact of armed conflict on children, Promotion and Protection of the Rights of Children, Note by the Secretary-General, Impact of Armed Conflict on Children, Report of the Expert of the SecretaryGeneral, Ms. Graca Machel, submitted pursuant to A/RES/481157 of 26 August 1996, 13; S. Bald, "Searching for a Lost Childhood: Will the Special Court of Sierra Leone Find Justice for Its Children", Suffolk Transnational Law Review 23 (2000),499 et seq.; S. Maslen, "Relevance of the Convention on the Rights of the Child to Children in Armed Conflict", Transnat'l L. & Contemp . Probs 6 (1996), 329 et seq. van Hebel/ Robinson, see note 20, 117 et seq. A/RES/44/25 of 20 November 1989, Convention on the Rights of the Child.

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age limit is not unproblematic.F" The same applies to internal armed conflicts under Article 8 (2) (e) (vii) of the ICC-Statute. ccc. Armed Conflicts not of an International Character The mere fact that the part of article 8 dealing with non-international armed conflicts comprises four subsections is at least indicative of some of the divisions that plagued the deliberations concerning this aspect. While there was discussion as to the inclusion of this category of crimes, there was a considerable number of countries which argued for the applicability of the ICC-Statute to internal armed conflicts on the basis that the majority of conflicts today are internal in nature. 275 Moreover, internal armed conflicts coincide - for the most part with non-functioning criminal justice systems which are unable to respond adequately to the perpetration of such fundamental norms as are encompassed by the ICC-Statute. 276 The inclusion of article 8 (2) (e) into the framework of the ICC-Statute can be considered a novelty.V' while the inclusion of article 8 (2) (c) of the ICC-Statute was relatively

274

275

276 277

Seefurther, Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts - Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/541263 of 25 May 2000,which in its article 1 proscribes that: "States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities." The Optional Protocol has been ratified by 52 states and has entered into force on 12 February 2000. Under the Elements of Crimes, see note 22, article 8 - War Crimes, the mental element for this crime is lowered to include negligence, thus considerably enlarging the possible number of superiors who could be liable for this crime. T. Seyboldt, "Major Armed Conflict", Sipri Yearbook 2002 - Armaments, Disarmament and International Security, 2002, 21 et seq. (23) and for a more detailed analysis, M. Eriksson/ M. Sollenberg/P. Wallensteen, "Appendix 1A. Patterns of major armed conflicts, 1990-2001", Sipri Yearbook 2002 - Armaments, Disarmament and International Security, 2002, 63 et seq. van Hebel/ Robinson, see note 20, 105. Bothe, sc note 256,417.

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uncontroversial - thus evincing the customary nature of this prohibition. 278 Violations of Common Article 3 of the Geneva Conventions - Article 8 (2) (c) and (e) This first enumeration follows closely common article 3 of the Geneva Conventions and incriminates conduct such as violence to life and person, outrages upon personal dignity, hostage-taking and the denial of due process rights, thus to some extent representing a repetition of or at least being similar to the prohibited conduct of article 8 (2) (a) of the ICC-Statute. The fact that it was nevertheless opposed by some states was a surprise in light of the pronouncement of the IC] in the Nicaragua case, in which it considered these norms to constitute a minimum yardstick in international armed conflicts.F? Similarly, the ICTY in the Tadic2 80 case but also the ICTR in its Akayesu judgment-s! contended that criminal responsibility attaches to grave breaches of the Geneva Conventions in internal armed conflicts. One question that could arise is whether all of the norms embodied in article 8 (2) (c) of the ICCStatute automatically constitute a "serious" breach of that prohibition. There are strong indications in the case law of the ICTY282 that this is 278 C. Kress, "War crimes committed in non-international armed conflict and the emerging system of international criminal justice", 1sT. Y. B. Hum. Rts 30 (2001),103 et seq. (107). 279 See IC] Reports 1986, 14 et seq. (114), Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). However, the wording of the judgment is indicative in that the IC] considers these norms to be such a yardstick not only in international armed conflict, but also in internal conflicts . It stated that common article 3 of the Geneva Conventions "defines certain rules to be applied in the armed conflict of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court's opinion, reflect, what the Court in 1949 called 'elementary considerations of humanity' [...]", referring to the Corfu Channel Case. 280 Prosecutor v. Dusko Tadic, see note 230, para. 134. 281 Prosecutorv. Akayesu, see note 58, para. 608. 282 Prosecutor v. Dusko Tadic, see note 280, para. 94. The ICTY stated that in order for a violation to be serious, "it must constitute a breach of a rule protecting important values, and the breach must involve grave cons equences for the victim". The ICTY mentions one example for such a lack

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the case, with one possible exception being the "singular passing of a short term imprisonment without adequate judicial guarantees".283 However, it should also be noted that the list in article 8 (2) (c) of the ICC-Statute is an exhaustive one, a fact indicated by the wording "namely". This excludes other conduct that is prohibited by common article 3 of the Geneva Conventions to be read into this provision. Other Serious Violations of the Laws and Customs Applicable in Armed Conflicts not of an International Character In furtherance of article 8 (2) (c) of the ICC-Statute, sub para. (e) prohibits conduct that is not included in common article 3 of the Geneva Conventions, but which nevertheless forms part of the law and customs applicable in armed conflicts not of an international character. These violations are however, subject to the finding that they are prohibited under the established framework of international law. The crimes under this heading - all of which already appear with the same or similar wording in article 8 (2) (b) of the ICC-Statute - are largely based on Additional Protocol II.284 However, some conduct which one could reasonably expect to have been included is omitted. This indicates that it is correct to assume that the "choice of criminal acts" - to some degree at least - "is due to the creative imagination of the negotiators of the Preparatory Meeting of the Rome Conference't.P" The crimes which were not included are e.g. starvation, the prohibition of certain weapons - such as landmines, chemical and biological weapons. While some authors argue that this conduct could be said to be prohibited under

of a serious breach, elaborating that "for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a 'serious violation of international humanitarian law' although it may be regarded as falling foul of the basic principle laid down in Article 46, paragraph 1, of the Hague Regulations (and the corresponding rule of customary international law) whereby 'private property must be respected' by any army occupying an enemy territory; [...]". 283 A. Zimmermann, "Article 8 - War Crimes", mn. 264, in: Triffterer, see note 17.

284 van Hebel! Robinson, see note 20, 119. 285 Bothe, see note 255, 420. But see D. Momtaz, "War Crimes in NonInternational Armed Conflicts Under the Statute of the International Criminal Court", Yearbook of International Humanitarian Law 2 (1999), 177 et seq. (185 et seq.).

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customary international law.i'" it should be kept in mind that such conduct is also not prohibited under article 8 (2) (b) of the ICC-Statute and that thus, not all of these prohibitions can be said to constitute customary international law.287 In a world increasingly plagued by internal conflicts, it is a strange logic to not include such conduct, thus essentially privileging those individuals fighting internally to those who are part of an international conflict and implicitly recognizing that barbaric acts and atrocities can be carried out in one instance, but not in the other. 288 Despite these setbacks, the inclusion of this category marks an important step289 in the evolution of humanitarian law, which - although slowly - adapts to the ever-increasing percentage of internal conflicts. The Scope of Application of the ICC-Statute in Non-international Conflicts - Article 8 (2) (d) and lit. (f) The scope of application of article 8 (2) (c) of the ICC-Statute is delimited by article 8 (2) (d) of the ICC-Statute by negatively defining the term "armed conflict not of an international character" to situations which do not constitute "situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature." It represents a repetition of art icle 1 (2) of Additional Protocol II. A similar provision is contained in article 8 (2) (f) of the ICC-Statute which delimits the provision concerned with "other serious violations of the laws and customs applicable" in internal conflicts . In addition to the exclusionary character of the negative definition encapsulated in article 8 (2) (d) of the ICC-Statute, it circumscribes the notion of " non-int ern ational armed conflict" by stating that "[i]t applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups".290 This positive

286 Bothe, see note 255. 287 DelbriickJWolfrum, see note 35, 1067. 288 Again, one possible explanation is that of the outcome of the discussion on the inclusion of certain conduct having taken place in a highly politicized atmosphere. 289 Zimmermann, "Article 8 - War Crimes", mn, 264, in: Triffterer, see note 17; Momtaz, see note 285, 191. 290 Seein this regard also Prosecutor v . Dusko Tadic, see note 280, para. 70; C. Greenwood, "The development of International Humanitarian Law by the

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definition is inspired by

Max Planck UNYB 7 (2003) though not identical to -

article 1 (1) of

Additional Protocol II, but provides a lower threshold than Protocol II for not requiring that governmental forces have to be involved in the conflict.l'" for not requiring that such an organized armed group "exercise such control over a part of the territory as to enable them to carry out sustained and concerted military operations" and for not requiring that the forces or group whose conduct is in question act "under responsible command." In comparison to subsection (c) of this provision, the threshold is however higher in that it requires a "protracted armed conflict", i.e. fighting that has occurred over a period of time. 292 Moreover, the wording "in the territory of a State" seems at odds with the regime governing the Exercise of Jurisdiction of the ICC enshrined in article 13 of the ICC-Statute as only conduct on the territory of a State party could come under scrutiny. However, the current wording paves the way for referrals of a situation by the Security Council (article 13 (b) of the ICC-Statute) even if the conduct in question took place in the territory of a non-State party or if the alleged perpetrator of the crime is a national of a State party. Despite earlier findings to the contrary by the ICTY,293 it seems to be a natural interpretation - both on a literal as well as a systematic basis - to require that the alleged acts were committed as part of an armed conflict not of an international character. This is already evidenced by the existence of the chapeau which is not limited to international armed conflicts. Otherwise, any conduct mentioned in article 8 (2) (c) and (e) of the ICC-Statute would have to be considered war crimes - with the attached stigma of such a finding, even though there might not have been any connection with

International Criminal Tribunal for the former Yugoslavia", Max Planck UNYB 2 (1998), 97 et seq. (118). 291 Dropping this requirement is sensible in the light of the historical forthcoming of the 1977 Additional Protocol II as an international treaty, but also in light of the purpose of the ICC-Statute and the rising number of internal conflicts, where sometimes fighting does not take place between a rebel group and governmental authorities, but rather between such groups. The inclusion of the current wording still allows for the prosecution of such crimes in cases such as Somalia or Lebanon, which is impossible had the wording of Protocol II been adopted. 292 Zimmermann, see note 283, mn. 334 points out that Additional Protocol II included the wording sustained, which required that fighting would have had to be carried out on a continuous basis. For a different view see Delbriick/ Wolfrum, see note 35, 1069. 293 Prosecutor 71. Tadic, see note 280, para. 70.

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the armed conflict in question and the act having been carried out for purely personal reasons.i?' This is reflected in the Celibici judgment of the ICTY when the Trial Chamber declared that such a connection is axiomatic-i" and furthermore in the Elements of crimes.296 The Savings Clause - in article 8 (3) of the ICC-Statute - which was included once it became clear that the ICC-Statute would address the question of internal armed conflict/?" - reiterates that the ICC cannot serve as a mechanism for interference in a state's domestic affairs. It is thus a repetition - which now appears in the operative part of the ICC-Statute however - of the eighth preambular paragraph, which reaffirms the principle of non-intervention by stating "that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State [...J". The savings clause is based on article 3 (1) of Additional Protocol II, with one important omission, namely the lack of the words "affecting the sovereignty of a state". Its meaning cannot be seen as an exclusionary clause for all action that takes place within a state's territory, as this would render the provisions pertaining to non-international armed conflict inoperable. In order to substantiate this provision in a meaningful way, it is necessary to be cognizant of the limitation that is itself placed on the Savings Clause, i.e. that only "legitimate means" can be used to "maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State" . This would exclude from the application of this norm conduct such as outrages upon personal dignity, torture, attacks against medical personnel, etc.298 Moreover, it could be argued that not only would such means be outside the scope of this norm, but also illegitimate goals, such as genocide.l?" 294

295 296 297 298

299

Delbruck/ Wolfrum, see note 35, 1070. One practical example may be the application of torturous methods or degrading treatment taking place outside of the context of an armed conflict, by a private citizen directed towards another private citizen. Prosecutor v. Delalic, see note 73, para . 193. Elements of Crimes, see note 22, article 8 - War Crimes, Introduction. van Hebel! Robinson, see note 20, 121. Bothe, see note 256, 424 for more examples as well as Zimmermann, see note 283, mo. 343, who goes further in that he considers all conduct prohibited by common article 3 of the Geneva Conventions - i.e. those included in article 8 (2) (c) of the ICC-Statute - which constitutes a peremptory norm according to article 53 of the Vienna Convention on the Law of Treaties, and thus non-derogable. Zimmermann, see note 283, mn. 343.

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Furthermore, any action would have to be carried out by an agent of the legitimate government of that state. e. Individual Crimes under the Statute - Aggression The crime of aggression - also labeled crime against the peace - has been the cause for long debates from the outset of the deliberations of a founding document for an international criminal court. 300 This crime differs from the other crimes of the ICC-Statute in that the other crimes are carried out by individuals against individuals, while the crime of aggression is - on the decision-making level - committed by one or more individuals who bring about an armed conflict, thus creating the preconditions for the commission of (most of) the other crirnes.l?' Although article 5 (1) (d) of the ICC-Statute mentions "The crime of aggression" as coming within the jurisdiction of the ICC, definitional problems have so far prevented agreement on a more precise form. Moreover, the second contentious issue concerns the role of the Security Councip02 - more specifically its powers under Chapter VII of the Charter of the United Nations - with regard to what the Nuremberg Tribunal had called the "supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole".303

300 For a thorough historical analysis see B. Ferencz, Defining International Aggression, 1975, Vols I and II. See also Sunga, see note 124, 64 et seq.; Y. Dinstein, War, Aggression and Self-Defense, 3rd edition, 106 et seq.; A. Carpenter, "The International Criminal Court and the Crime of Aggression", Nordic]. Int'l L. 64 (1995), 223 et seq. 301 G. Westdickenberg/ O. Fixson, "Das Verbrechen der Aggression im Rornisch en Statut des International en Strafgerichtshofes", in: J. Frowein/ K. Scharioth/ I. Winkelmann/ R. Wolfrum, Verhandeln fur den Frieden Negotiating for Peace, Liber Amicorum Tono Eitel, 2003, 483 et seq. (483). 302 G. Gaja, "The Long Journey towards Repressing Aggression", in: Cassese et al., see note 11,433. 303 International Military Tribunal (Nuremberg) - Judgment and Sentences, AJlL (1947), 172 et seq. (186). Most commentators share this view, calling it "the mega-crime"; T. Meron, "Defining Aggression for the International Criminal Court", Suffolk Transnational Law Revie w 25 (2001),1 et seq. (4) or the "arch-crime which most menaces international society"; A. Cassese, "The Statute of the International Criminal Court: Some Preliminary Reflections", EJlL 10 (1999), 144 et seq. (146); see also J. Bush, "The Supreme Crime and its Origins" , Colum . L. R . 102(2002), 2324et seq.

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The deep tensions regarding the definition of the crime of aggression eventually lead to the non-inclusion of this crime. Two main groups of countries can be discerned however. The first group argued that the basis for any definition in the ICC-Statute should be the Annex to A/RES/3314 (XXIX),304 a resolution passed by the General Assembly in 1974. The proponents of this school of thought could argue that the ICJ had indicated that at least part of this definition could be considered to be customary international law.P" However, a number of points should be considered. The ICJ merely declared that article 3 (g) of the Annex to A/RES/3314 (XXIX) could be considered to reflect customary internarional law.F" It did not do so - nor did it have to - for the other subsections. This has lead some authors to raise doubts about the customary law nature of the content of large parts of article 3 of the Article 3 of A/RES/3314 (XXIX) of 14 December 1974, Annex: Definition of Aggression, provides: "Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof, (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. See B. Ferencz, "Aggression", in: R. Bernhardt (ed.), EPIL Vol. 1(1992),58 et seq. 305 See ICJ Reports 1986, 14 et seq. (103), Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), in which the ICJ declared that article 3 (g) of the Annex to A/RES/3314 (XXIX) "may be taken to reflect customary international law." 306 Although an analysis of the various alternatives indicates that others might fall under this category as well. 304

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Annex to A/RES/3314 (XXIX).307 Moreover, one cannot conclude that the prohibition of such acts in A/RES/3314 (X XIX) necessarily entails individual crimin al responsibility,308 a finding that is confirmed by article 5 (2) of the Annex to A/RES/3314 (XXIX), which stipulates that " [a]ggressio n gives rise to int ernational responsibilit y 't.l"? Finally, it should be noted that the General Assembly resolutio n is to serve merely as a tool for the Security Council.U? Another group of count ries attempted to tailor the definition of the crime of aggression more closely to the historical precedent set forth in the Nuremberg Charter, which had defined crimes against the peace in the following terms: "[...] planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing".311 This approach differs from the one that is founded in A/RES/3314 (XXIX) in that it is an attempt to define the cr ime of aggression in more abstract terms, departi ng from a pre- established list. This proposal was put forth by a number of states which were ins trumental in the negotiating process. Due to the lack of agreement, the outcome of the Rome Conference with respect to the crime of aggression is embodied in article 5 (2) of th e ICC-Statute, which provides that jurisdiction over this crime sha ll be

307 Meron, see note 303, 9-10; Zimmermann, see note 9, 201. Both authors argue in favor of basing any definition of the crime of aggression more firmly in customary international law. 308 But see F. Mayer, "Angriffskrieg und europaische s Verfassungsrecht - Zu den rechtlichen Bindungen von Au6enpolitik in Europa", AVR 41 (2003), Issue 3 (forthcoming, on file with author). 309 Emphasis added. SeeDelbriickl Wolfrum, see note 35,1047 and 1049; Dinstein, see note 300, 118; Draft Report on the 8th Sess. of the Preparatory Commission 24 September - 5 October 2001 Coalition for an International Criminal Court of 7 October 2001, 5 et seq.; Westdickenbergl Fixson, see note 301, 489 do not share this view, but conclude from the word "crime" in article 5 (2) of the Annex to AlRES/3314 (XXIX) a basis for construing this norm to invoke state responsibility as well as individual criminal responsibility. 310 See A /RES /3314 (XXIX) of 14 December 1974, operative clause 4. 311 See article 6 (a) of the Nuremberg Charter. Similar language was used in article 5 (a) of the Tokyo Charter.

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exercised once a definition is incorporated into the Statute, with this provision having to be consistent with the relevant provisions of the Charter of the United Nations. Th is latter aspect includes two separate issues. First of all, it recognizes that any such provision must adhere to article 103 of the Charter of the United Nations, which stipulates that: "[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail". This presumably includes the right of self-defense according to article 51 of the Charter of the United Nations.W Secondly, article 5 (2) of the ICC-Statute raises the question of whether the Security Council must determine that an act of aggression has occurred before prosecution for the act in question can commence.I!' It is clear that the crime of aggression should only be attached to acts committed by persons who are in a position of exercising control or are capable of directing the political or military action of a state.3 14 Because of this however, only a small number of countries had included the crime of aggression in their domestic legal order, e.g. Gerrnany.-"> Moreover, it is not a comforting thought that national courts should prosecute this crime under their own - sometimes very different standards, with special circumstances - such as being the country against which aggression had been waged - coming to play too prominent a role. In the light of the foregoing, it seems unlikely that the Assembly of States Parties of the ICC will be able to agree on a definition for the

312 313

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See the contribution by R. Wolfrum in this volume. Zimmermann, see note 17, mn. 28 in: Triffterer, see note 94, takes a cautious stance requiring that such a determination must have taken place by the Security Council. Similarly, Westdickenberg/ Fixson, see note 301, 517. Doc. A/AC/.249/1997/WG.lIDP.6; Westdickenbergl Fixson, see note 301, 503. See Section 80 of the German criminal code which prohibits the preparation of a war of aggression. The norm is only infrequently used by German courts and one of the few statements rendered so far has not brought about much clarification. See Landgericht Koln, Neue Zeitschrift fur Strafrecht 1 (1981),261 et seq.

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crime of aggression, thus untying the - political-" - Gordian Knot(s) presented by this provision.W Its debates "generate at times a frustrating sense of deja vu", despite - but maybe because - the crucial issues still need to be overcome.v" The prospects have become even more bleak considering the recent changes brought about by non-state actors carrying out attacks on a large scale. f. The "Missing Crimes" - Dangerous Ommission or Prudent Choice? For a number of reasons, certain crimes were not included in the Rome Statute. The objections to their inclusion concerned jurisdictional hurdles, but - more importantly - also more general questions. Again, one should recall that according to the preamble, the ICC is designed to deal with "the most serious crimes of concern to the international community as a whole". Considering this purpose, it is not surprising that some of the crimes mentioned in previous drafts - such as terrorism,319 drug trafficking,320 serious threats against the environmentF! or 316 Westdickenberg/ Fixson, see note 301, 484; M.C. Bassiouni/ B. Ferencz, "The Crime Against Peace", in: M.e. Bassiouni (ed.), International Criminal Law - Volume II, 2nd edition 1999,313 et seq. (347). 317 Cassese, see note 303, 147 states that "the ICC is likely to start out on the wrong footing" should the Assembly of States parties not be able to agree on a definition for the crime of aggression. For a more optimistic view, see Sunga, see note 124, 66; 1. K. Miiller-Schieke, "Defining the Crime of Aggression under the Statute of the International Criminal Court", LJIL 13 (2001),409 et seq. (428). 318 S. Fernandez de Gurmendi, "The Working Group on Aggression at the Preparatory Commission for the International Court", Fordham Int'l L. j. 25 (2002), 589 et seq. (604). 319 For an overview of the discussion on the definition of terrorism, see Report of the Ad Hoc Committee on International Terrorism, GAOR 28th Sess., Suppl. No. 28 (Doc. A/9028), 11-12; A.P. Schmid, Political Terrorism: A Research Guide, 2nd edition 1988; R. Higgins, "The General International Law of Terrorism", in: R. Higgins/ M. Flory (eds), International Law and Terrorism, 1997, 13 et seq. (28); R. Baxter, "A Skeptical Look at the Concept of Terrorism", Akron Law Review 7 (1974), 380 et seq.; W. Laqueur, "We Can't Define 'Terrorism,' but We Can Fight it", The Wall Street Journal, 15 Ju ly 2002, A12; G. Levitt, "Is 'Terrorism' Worth Defining?", Ohio Northern University Law Review 13 (1986), 97 et seq. (97); Walter, see note 16; 1. Rene Beres, "The Legal Meaning of Terrorism for the Military Commander", Conn. j. Int'l L. 11 (1995), 1 et seq. (4); M.e. Bassiouni,

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mercenarism-V - have not found their way into the final form of the ICC-Statute that was agreed upon at the end of the Rome Conference. Others have , although under the cloak of crimes against humanity or war crimes, as is the case for apartheid-<' and torture-" or for intentional attacks on peacekeeping mission personnel, installations, material, units or vehicles.P> Some countries tried to apply the same technique that was applied for the crime of aggression to drug trafficking and terrorism, i.e. including it in the list of crimes which would be un-der the jurisdiction of the ICC, but leaving the elaboration of the definition for the Assembly of States Parties.F'' This proposal however found little support.V" Nevertheless, at the insistence of Turkey, these offences are mentioned in the Final Act of the Conference. It recommends that a future Review Conference"consider the crimes of terrorism and drug crimes with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court".328

The decision to not include some of these crimes will prove beneficial for the ICC in the long run. While it is beyond question that most

320

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323 324 325 326 327 328

"International Terrorism", in: M.e. Bassiouni (ed.), International Criminal Law - Volume I, 2nd edition 1999, 765 et seq. (769). It was this crime that lead to the resumption of the discussion about the creation of an international criminal court in 1989. Thus, the issue of inclusion of this crime was taken up again in Rome. Despite the fact that drug trafficking is a criminal act under most domestic legislation, the majority of countries felt that this conduct did not reach the level of heinousness and gravity that would be necessary to include it in the current statute. Moreover, practical problems were cited as reasons for leaving such crimes to national courts. See Report of the Preparatory Committee on the Establishment of the International Criminal Court, see note 27, 27. Report of the Preparatory Committee on the Establishment of the International Criminal Court, see note 27, 27. P. Robinson, "The Missing Crimes", in: Cassese et al., see note II, 497 (521). The proposal for the inclusion of this crime was raised several times prior to and during the Rome Conference, but never received sufficient support. Seearticle 7 (1) (j) of the ICC-Statute. Seearticle 7 (1) (f) and article 8 (2) (a) (ii) of the ICC-Statute. Seearticle 8 (2) (b) (iii) of the ICC-Statute. van Hebel/ Robinson, see note 20, 87. van Hebel! Robinson, see note 20,87 . Final Act of the Conference, Resolution E, Doc. A/CONF.183/e.1/L.76/ Add.14 of 17July 1998, 8.

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- if not all - of these crimes are egregious in and of themselves, each one of them carries with it troubling ramifications. Some of them can only be vaguely defined - some of them seemingly not at all, as is the case for terrorismv? -while the grounding of others in customary international law remains opaque to say the least. Yet with others, questions as to the ICC being the proper forum may be raised. While the amount of drug trafficking has reached worring levels, it seems that the sheer amount of cases could overburden the ICC, raising costs infinitely and undermining its credibility.

2. Jurisdiction ratione personae and ratione tertiis of the ICC According to at least one author, the "group of Articles governing the exercise of the jurisdiction of the International Criminal Court gave rise to some of the most difficult negotiations at the Rome Conference't.P? According to others, articles 12 and 13 of the ICC-Statute contain the cornerstone provisions on the jurisdictional regime of the ICC33! and were the theme of the "dramatic endgame of the conference. "332 The strongly held views during the negotiations are hardly surprising considering the legal, political and organizational ramifications these provisions have for the operation of the ICC. They touch upon issues such as state sovereignty, the relationship of the ICC and its organs - including the Prosecutor-P - with the United Nations Security Councip34 as well as with States Parties.

329 See note 319. 330 Wilmshurst, see note 10, 127. Wilmshurst's comments pertain solely to arts 12-16.

331 M. Bergsma, "The Jurisdictional Regime of the International Criminal Court", (Part II, Article 11-19), European Joumal of Crime, Criminal Law and Criminal Justice 6 (1998), 29 et seq. (30); similarly Kirsch/ Holmes, see note 9, 26. 332 H.P. Kaul! C. Krefs, "Jurisdiction and Cooperation in the Statute of the International Criminal Court: Principles and Compromises", Yearbook of Intemational Humanitarian Law 2 (1999),143 et seq. (155). 333 See the contribution by V. Roben in this volume. 334 See the contribution by B. Fassbenderin this volume.

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Before analyzing the jurisdictional provisions pertaining to ratione personae and ratione tertiis,335 a short analysis of the different so-called "trigger mechanisms" seems necessary in order to place the jurisdictional provisions in their proper context.P'' According to article 13 of the ICC-Statute, there are three ways by which a case can be brought before the Court. First of all, according to article 13 (a) of the ICCStatute, a State Party may refer a situation-'? 338 to the Prosecutor, provided that "one or more crimes within the jurisdiction of the Court appear to have been committed't.P? The second option - article 13 (b) of the ICC-Statute - is that of the Security Council referring such a situation to the Prosecutor, provided that the Security Council act under Chapter VII of the Charter of the United Nations.U? Considerable discussion ensued over this issue with a number of states, namely India and Mexico, being fundamentally opposed to the Security Council playing any role in the workings of the Court. Since the Appeals

335

336 337

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Article 12 (1) of the ICC-Statute stipulates that a State party "accepts the jurisdiction of the Court with respect to the crimes referred to in article 5" . This mechanism is sometimes called "automatic" or "inherent" jurisdiction. Neither of these terms seems accurate and furthermore does not add anything in a substantive sense, as there are no crimes for which a nonautomatic jurisdictional mechanism exists. The way the provision is now phrased, it simply refers to the jurisdiction ratione materiae contained in article 5 (1) of the ICC-Statute over which the ICC as a matter of fact has jurisdiction. P. Kirsch! D. Robinson, "Referral by States Parties", in: Cassese et al., see note 11, 619 et seq. (619) point to the lack of precedent in this field. During the negotiating process the wording was changed from crimes to situations. This must be considered as a fortunate decision, as it will allow the prosecutor to investigate not only an individual act, but rather the context in which the conduct in question took place, thereby possibly finding other perpetrations or extenuating circumstances. Moreover, this would have increased the burden upon the State party to be more specific than might be possible for that state . The term "situation" is probably best understood in a broad sense, i.e. referring to a conflict as a whole or a discernable part of this conflict. In this regard, both temporal as well as geographic limitation seem possible although not necessarily desirable. Article 14 (1) of the ICC-Statute; moreover, section 2 of this provision asks states to submit, as far as possible supporting information to the Prosecutor. See L. Condorelli! S. Villalpando, "Referral and Deferral by the Security Council", in: Cassese et al., see note 11, 627 et seq. for a detailed analysis.

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Chamber's decision in the Tadic case, it has been almost undisputed that the Security Council does indeed have the power to establish ad hoc tribunals.r" Although it is not strictly necessary to conclude that the Security Council should have a role in the proceedings of the ICC as a permanent body, its inclusion seems to have been almost a natural choice - although its ultimate form with the accompanying ramifications can be put into question and raises serious doubts. 342 Furthermore, it is up to the Security Council to determine whether a new ad hoc tribunal should be instituted for future cases, thereby circumventing the ICC - and thereby weakening it considerably.r'! Any such referral will most likely only occur in situations in which nationals from states are concerned which do not enjoy the status of a permanent member of the Security Council with its veto power according to Article 27 of the Charter of the United Nations. 344 Finally, and this was one 341

342 343

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Prosecutor v. Tadic, see note 230, para. 33 et seq. The Appeals Chamber concluded this section of its analysis by stating that "[i]n sum, the establishment of the International Tribunal falls squarely within the powers of the Security Council under Article 41." See II. 4. b. It is to be hoped that such a scenario will not become reality. Apart from the outright affront such a move would constitute towards the ICC if it were able to exercise its jurisdiction, the costs would be almost prohibitively high. The budget for the ICTY in the biennium 2002-2003 amounted to US$ 223,169,800. See International Criminal Tribunal for the former Yugoslavia, The ICTY at a Glance, 7 August 2003, (4 August 2003). See also International Court of Justice, Address by H .E. Judge Gilbert Guillaume, President of the International Court of Justice, to the United Nations General Assembly of 26 October 2000, (4 August 2003), in which former ICJ President Guillaume compared the budgets of the ICJ and the ICTY. However, given the relatively large number of ratifications and the necessity to garner support not only from the other PS, but also four more Security Council members , and considering in addition the - at least so far - relatively positive stance of at least one Member State of the Security Council with regard to the ICC, this is an unlikely prospect. However, given the aspirations of the ICC-Statute, which proclaims in its Preamble that the "most serious crimes of concern to the international community as a whole must not go unpunished" and that there must be an "end to impunity for the perpetrators of these crimes", not including this option as it stands right now would have led to serious gaps in the jurisdiction of the ICC. For the discussion on this issue see Bergsmo, see note 331, 36; Condorelli/ Villalpando, see note 340, 627.

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of the single most contentious issues during the negotiations.r'> the Prosecutor may initiate 346 an investigation proprio motu, i.e. in one's own motion or acting at her/his own initiarive.r" The way the norms in question - article 13 (c) and article 15 of the ICC-Statute - have been crafted shows how intense these negotiations were. 348 It should be remembered that it is a characteristic of an independent criminal justice system to grant prosecutorial independence. Indeed, as has been pointed out, prosecutorial discretion is encapsulated in all mature national jurisdictions, and has to be considered to be the norm and not the exception.r'? Considering the - necessary and prudent - safeguards

345

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348 349

D . Scheffer, "The United States and the International Criminal Court", A]IL 93 (1999), 12 et seq. (17); M. Bergsmo/ J. Pejic, "Article 15 - Prosecutor", mn. 1, in: Triffterer, see note 17; Kirsch/ Holmes, see note 9, 26; S. Fernandez de Gurmendi, "The Role of the International Prosecutor", in: Lee, see note 5, 175 (177); E. LaHaye, "The Jurisdiction of the International Criminal Court: Controversies over the Preconditioning for Exercising Its Jurisdiction", NILR 46 (2000), 1 et seq. (15); M. Arsanjani, "Reflections on the Jurisdiction and Trigger Mechanism of the International Criminal Court", in: H. von Hebel! G. Lammers/ J. Schukking, Reflections on the International Criminal Court, 1999, 57 et seq. (66). See for a comprehensive study on the Role of the Prosecutor, L. Arbour/ A. Eser/ K. Ambos/ A. Sanders (eds), The Prosecutor of a Permanent International Criminal Court - International Workshop in Co-operation with the Office of the Prosecutor of the International Criminal Tribunals (ICTY and ICTR), 2000. The term initiate is not to be confused with the actual commencement of investigations. This is evident by the wording of article 15 (4) of the ICCStatute, which states that: "[i]f the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation [... ]". There are a number of ways that a Prosecutor could be made aware of a situation which could warrant her/his attention. The Prosecutor could truly act on her/his own initiative or a situation could be brought to the attention of the Prosecutor by non-governmental organizations or individuals, but also by States parties which do not have the necessary information, but which nevertheless want the situation to be investigated by the Prosecutor. Kirsch/ Holmes, see note 9, 26. Bergsmo/ Pejic, see note 345, mn. 11, in: Triffterer, see note 17; similarly Delbriick/ Wolfrum, see note 35,1153 and Zimmermann, see note 9, 214.

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that have been put in place by way of article 15 of the ICC-Statute350 to prevent political misuse and abuse of the wide powers granted to the Prosecutor, without infringing too heavily on the independence of that position, fears to that effect seem to be motivated less by genuine concern, but rather by political views based on more fundamental opposition to international criminal adjudication as such, without the re straints of ad hoc jurisdiction. If anything, the current practice in international courts and under other complaint procedures, such as the ECHR351 or the United Nations Human Rights Committee.W shows that state complaints are extremely rare and it would come as a surprise if such behavior were to change with the ICC. 353 Indeed, the - although extremely short - current record of the ICC is indicative of this view. Had it not been decided at the Rome Conference to grant 350 According to this provision, the Prosecutor will have to submit a request for authorization for an investigation to the Pre-Trial Chamber and cannot commence an investigation without its approval. F. Hoffmeister! S. Knoke, "Das Vorermittlungsverfahren vor dem Internationalen Strafgerichtshof", ZaoRV 59 (1999), 785 et seq. (793); P. Kirsch/ D. Robinson, "Initiation of Proceedings by the Prosecutor", in: Cassese et al., see note 11, 657 et seq. (663) even go as far as stating that due to the various safeguards, the procedure according to article 15, the principle of subsidiarity under article 17 and the provisions pertaining to the qualification and disqualification of ICC officials, the independent prosecutor should be seen as "the least politicized trigger mechanism" (emphasis in orginial). 351 Europ ean Treaty System No. 005, Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950. In the years since the inception of the European Convention on Human Rights, only 13 state to state complaint procedures have been instituted. See C. Grabenwarter, Europdiscbe Menschenrechtskonvention - Ein Studienbuch, 2003, 61. 352 Until the time of writing, no state complaints according to article 41 of the International Covenant on Civil and Political Rights have been submitted. See International Cov enant on Civil and Political Rights of 16 December 1966, UNTS Vol. 999 No . 14668. The same is true for the state complaint procedure under the American Convention on Human Rights. See American Convention on Human Rights of 11 November 1969, UNTS Vol. 1144 No . 17955. 353 At a recent conference in mid-2002, the Prosecutor indicated that his office had received almost 500 communications after 1 July 2002. From this staggering number the Prosecutor would closely examine only one, namely the situation in the Democratic Republic of the Congo. See International Criminal Court, Press conference of the Pro secutor - Communications, 24 July 2003, (4 August 2003).

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relative - judicial independence to the Prosecutor, the ICC would have been hamstrung from its inception, as it cannot be expected that the Security Council will shun away from its largely political function and become an organ that is concerned genuinely with the persecution of criminal conduct.

a. ratione personae The ICC-Statute is clear that with respect to ratione personae it applies solely to individuals and not to organizations. While article 1 of the ICC-Statute omits the adjective "natural", article 25 (1) of the ICCStatute clarifies that "[tjhe Court shall have jurisdiction over natural persons pursuant to this Statute". While the issue of including juridical persons caused some debate in the negotiating process-r' and has historical predecessors on which it could possibly rely on,355 it was ultimately - and prudently - not incorporated in the final document. Considering the disparate approaches of domestic legal systems to this form of criminal Iiabilityvf - with some nations opposing such an approach vehemently - and the experience during the negotiations of earlier international instruments, the outcome of that debate seems to have been almost predictable. With regard to the jurisdictional basis ratione personae, the ICCStatute makes reference solely to the well-recognized and uncontroversial active personality principle when it states that the Court may only exercise its jurisdiction if the alleged perpetrator of the crime is a national of a State party or a national of a state which has accepted the jurisdiction of the Court. 357 Adopting such a common basis was - for a

354

355 356

357

A/CONF.18312/Add.1 of 14 April 1998. However, it was clear that states would be excluded from the jurisdiction of the ICC, see article 23 (5) and (6) of the proposed statute in Doc. A/CONF.183/2/Add.1, Report of the Preparatory Committee on the Establishment of an International Criminal Court - Addendum of 14 April 1998. Arsanjani, see note 345, 61 et seq. M. Frulli, "Jurisdiction Ratione Materiae", in: Cassese et aI., see note 11, 527 (528). G. Heine, Die strafrechtliche Verantwortlichkeit von Unternehmen - von individuellem Fehlverhalten zu kollektiven Fehlentwicklungen, insbesondere bei Grossrisiken, 1995. Article 12 (2) (b) of the ICC-Statute reads: "2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute

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long time during the preparatory process not as certain as it seems prudent in hindsight. On the contrary, there were considerable discussions for proscribing universal jurisdiction to (a) certain crime(s), such as genocide, while retaining a different regime for other crimes. 358 The outcome as it has been agreed upon presents a compromise between those states which were in favor of a wider jurisdictional basis, i.e. the universality principle.P? and those countries which tried to restrict the jurisdiction of the Court even further by requiring that not only the state of nationality of the alleged perpetrator must have accepted the jurisdiction of the ICC, but also the territorial state on which the alleged conduct occurred.t''? 361 Should a definition for the crime of aggression ever be agreed upon in accordance with article 5 (2) of the ICC-Statute, it is not impossible that a different solution may be sought, which would, to a lesser degree, constitute a legal necessity, but more likely be the result of political bargaining.

358

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361

or have accepted the jurisdiction of the Court in accordance with paragraph 3: [...] (b) The State of which the person accused of the crime is a national." Various systems were debated, such as an "opt-in" or "opt-out" regime. For an overview of the various proposals in this regard, see Wilmshurst, see note 10, 128 et seq.; S. Williams, "Article 12 - preconditions to the exercise of jurisdiction", mn. 3 et seq., in: Triffterer, see note 17; Arsanjani, see note 345,59. Proposal put forth by Germany in the preparatory process, Doc. AIAC.249/1998/DP.2 of 23 March 1998. For the view of the proponents of this view, both of whom where part of Germany's delegation to the Rome Conference, see Kaull Kreli, see note 332, 145. This view is strongly opposed by the Head of the US Delegation to the Rome Conference, see Scheffer, see note 345, 18. This suggestion was presented by the United States in A/CONF.183/C.ll L.70 of 14July 1998. W. Lietzau, "International Criminal Law After Rome: Concerns from a U.S. Military Perspective", Law and Contemporary Problems 64 (2001), 119 et seq. (128) calls the notion of such a "balance" misplaced, as "it fails to give adequate recognition to the Role of the Security Council or appropriate consideration to the court's role in existing international frameworks." Lietzau claims that "it might be argued that the Rome Treaty combines the worst of both worlds ." But see P. Kirsch, "Keynote Address, Symposium - The International Criminal Court: Consensus and Debate on the International Adjudication of Genocide, Crimes Against Humanity, War Crimes, and Aggression", Cornell Int'l L. j. 32 (1999), 437 et seq. (439).

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One exception to this narrow authorization exists however. The ICC has virtually - at least on a legal basis and leaving political considerations aside - unlimited personal jurisdiction for those situations which are referred to it by the Security Council under article 13 (b) of the ICC-Statute. Only by way of such a referral does no such nationality requirement exist.362 The same is true for the requirement that the alleged conduct must have taken place on the territory of a State party. A conceivable problem that could arise with respect to the nationality requirement concerns dual nationality. However, it is submitted that such a case should be decided according to the long-standing principle developed by the Ie] in the Nottebohm case, in which it found that in order for citizenship to be recognized, it must be genuine and substantial.363 In the same vein, the ICC should decide any contentious case before it, i.e. by determining to what country such a "genuine" connection does indeed exist.

b. ratione tertiis While the active personality principle was never a substantially contentious issue, the question whether the territoriality principle should apply on its own right has to be seen in a different light. This was mainly due to the question of whether the territoriality principle could be said to expand the jurisdiction of the ICC to non-State parties. 364 A literal reading of the provision reveals that the ICC has jurisdiction over those crimes which are contained in article 5 (1) of the ICCStatute, i.e. genocide, crimes against humanity and war crimes, if the conduct in question was committed on the territory of a State party, or if it was committed on board a vessel or aircraft, if these vessels or aircraft fly the flag of a State party or are registered in a State party.365

362 363 364 365

See note 344 and accompanying text . ICj Reports 1955, 4 et seq. (23 et seq.), Nottebohm (Second Phase), jugdgment,4. For a discussion of this matter, see II. 2. c. Article 12 (2) (a) ICC-Statute reads : "[...] the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; [...]."

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As such, the geographical reach of the ICC-Statute is considerably larger than that of any of its predecessors, probably best symbolized by the very limited geographical focus of the ICTY and ICTR, both of which were confined to events taking place in the former Yugoslavia in the case of the ICTY366 and to Rwanda and its neighboring countries in the case of the ICTR.367 The foundation for the quasi-global reach of the ICC is already laid out in the Preamble which affirms that "the most serious crimes of concern to the international community as a whole must not go unpunished". However, this potential truly global reach is limited by the territorial application of the ICC-Statute to those states which are States parties, a result that clearly constitutes an expression of the principle of state sovereignty. A number of scenarios can be - and indeed should be - distinguished when applying the territorial principle. One of these situations concerns crimes that were committed in the territory of more than one state or where action was commenced in one state, but produced results in a second state; another situation concerns the question of whether the effect principle should apply in certain cases. Either of these cases will prove unproblematic if all states concerned (the territorial state or the state of nationality of the alleged perpetrator) are States parties to the ICC-Statute. However, in cases in which the alleged perpetrator is a national of a non-State party and one of the territorial states is not a State party,368 the situation is less clear. Recourse should thus be had to

366 Article 1 of the ICTY statute reads: "Article 1 - Competence of the International Tribunal The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordancewith the provisions of the present Statute". 367 Article 1 of the ICTR statute reads: "Art. 1 - Competence of the International Tribunal for Rwanda The International Tribunal for Rwanda shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, in accordance with the provisions of the present Statute". 368 For the purpose of this analysis the state in or over which the conduct commenced.

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more general principles regarding jurisdictional bases-"? Although there was considerable discussion between the objective and subjective theories in the past, it is now possible to state that jurisdiction can be claimed by all states with a connection to the conduct in question.V? Thus, in a situation in which poison is delivered by an airplane flying over its own territory but in which this agent is - e.g. by way of a rocket or a similar device - dispersed over the territory of a State party, the ICC-Statute would grant jurisdiction over this conduct. A different construction would lead to the absurd result that countries would aim for such acts to be conducted this way, relying exclusively on long-distance delivery systems. Thus, as long as the effects of the conduct in question occur on the territory of a State party, the ICC would be able to claim jurisdiction.V' Moreover, crimes committed on board a vessel or aircraft could also prove to be problematic. But it is submitted that some of the principles just enunciated should also apply. Again, a number of situations can be distinguished. Scenarios in which the perpetrator is a national of a State party or a non-State party do not pose a problem when determining the question of the jurisdictional basis. The same is true if the flag state or the state of registration can be identified.P? However, the situation is different when the flag state or the state of registration cannot be identified . In such a case, the only opportunity for the ICC to be seized is a referral by the Security Council according to article 13 (b) of the ICCStatute.V'

369

See Blakesley, see note 12, 43 et seq. giving extensive examples on various

370

S. Bourgon, "Jurisdiction Ratione Loci", in: Cassese et aI., see note 11, 559 et seq. (567). For a different view, see Schabas, see note 182, 63 arguing that the ICCStatute is silent on this matter. However, at least one of the examples given, an order to take prisoners given in a non-State party with no action taken pursuant to this order, would in this author's view not give rise to jurisdiction. In cases in which a vessel was attacked on the high seas, it is submitted that the effects principle should apply, i.e. the effect on the target vessel should be considered to trigger jurisdiction, a construction which is in line with the above-mentioned scenario spawning action in more than one state. It is however unlikely that the Security Council will characterize such a situation as threat to international peace and security and institute such proceeding. The range of cases that could trigger such action by the Security Council has to be considered to be extremely narrow; nevertheless, the

scenarios.

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Finally, one aspect that should be mentioned is that the jurisdictional basis ration e materiae is not to be confus ed with th e location of an alleged perpetrator on the territory of a State p arty. A s problematic as it may seem in general - and deplorable as it ma y be in the fight against impunity - the ICC will not have jurisdiction over an individual who committed crimes on the territory of a non-State party and who is a national of a non-State party. The only exception to this is a referral by the Security Council. Other than that, the jurisdiction of the ICC would not come into play.374 c. Jurisdiction over Nationals of non-States Parties The debate on the jurisdictional reach of the ICC-Statute - more specifically its application to non-States parties - was not only the subject of considerable debate during the negotiating process, but has also produced a large number of scholarly articles.V! The central point of con-

wide discretion that the Security Council enjoys in its determination whether such a situation exists, should be borne in mind. See M. Koskenniern i, "The Police in the Temple - Order, Justice and the UN: A Dialectical View", EjIL 6 (1995),325 et seq. (342); J. Frowein! N. Krisch, in: B. Simma (ed.), The Charter of the United Nation s - A Commentary, Volume I, 2nd edition, 2002, Article 41, mn. 11. 374 This does not preclude the exercise of jurisdiction of States parties or nonStates parties into their domestic legal system. 375 LaHaye, see note 345, 18 et seq.; Kaull Krefi, see note 332, 145 et seq.; J. Paust, "Th e Reach of ICC Juri sdiction over Non-Signatory N ationals", Vand. j. Int'l L. 33 (2000), 1 et seq.; M. Morris, "H igh Crimes and Misconceptions: Th e ICC and N on-Party States", Law and Contemporary Problems 64 (2001), 13 et seq.; M. Scharf, "The ICC's Juri sdiction over the Nationals of Non-State Party States: A Critique of the U.S. Position", Law and Contemporary Problems 64 (2001), 67 et seq.; J. van der Vyver, "Personal and Territorial Juri sdiction of the International Criminal Court", Emory International Law Review 14 (2000), 1 et seq.; R. Wedgwood, "The International Criminal Court: An American View", EjIL 10 (1999), 93 et seq. (99); G. Hafner! K. Boon! A. Riibesarne/ J. Huston, "A Response to the American View as Presented by Ruth Wedgwood ", E]IL 10 (1999), 108 et seq. (11 5); G. Danilenko, "The Statute of the Intern ational Crimin al Court and Th ird States", Mich. j. Int 'l L. 21 (2000), 445 et seq.; B. Brown, "U.S. Ob jections to the Statute of the International Cr iminal Court", In ternational Law and Politics 31 (1999), 855 et seq. (868 et seq); J. Taulbee, "A Call to Arms Declined: The United States and the Intern ational Criminal Court", Emory International Law Review 14 (2000), 105 et seq.

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tention was and still is the ability of the ICC to exercise its jurisdiction over nationals of non-States parties if the alleged crimes occurred on the territory of a State party. This approach, it was argued,376 was in clear contravention of the rule pacta tertiis nee noeent nee prosunt enshrined in article 34 of the Vienna Convention on the Law of Treaties, as it would create obligations for states which had not given their consent to be bound by the ICC-Statute. Thus, the question that needs to be answered is whether the ICC-Statute, especially its article 12, does indeed create obligations for non-States parties, thus running counter to article 34 of the Vienna Convention on the Law of Treaties. Leaving practical considerations aside- such as the fact that the vast majority of crimes that could fall under the ICC-Statute were committed in internal conflicts in the last decades - a number of relevant points should be considered when examining this question. First and foremost, the claim that there exists an obligation for nonStates parties lacks a clear foundation. The ICC-Statute does not impose an obligation for a non-State party to co-operate with the Court according to articles 86 et seq. of the ICC-Statute. 377 This nonobligation pertains to any conceivable kind of assistance, e.g. handing over alleged perpetrators or evidence. It rather seems that two separate

376 The arguments were advanced by a number of states and are exemplifiedby Scheffer, see note 345, 18. These countries included China, India and the United States. India for example stated: "[b]ut while we tried, unsuccessfully, to ensure that the Court would be free from political influence, and its Statute in full conformity with the Law of Treaties, on the penultimate day of the Conference, the purists resurrected and forced into the Statute the concept of universal or inherent jurisdiction, which too makes a mockery of the distinction between States parties and those who choose not to be bound by a treaty. It is truly unfortunate that a Statute drafted for an institution to defend the law should start out straying so sharply from established international law. Before it tries its first criminal, the ICC would have claimed a victim of its own - the Vienna Convention on the Law of Treaties". See Explanation of Vote by Mr. Dilip Lahiri, Head of Delegation of India, on the Adoption of the Statute of the International Criminal Court, 17 July 1998, <www.un.org/icc/speeches/717ind.htm> (4 August 2003). 377 The obligations of States parties to the ICC-Statute are to provide funding (article 117 ICC-Statute), evidence (article 93 ICC-Statute) and other forms of cooperation to the ICC (article 109 (1) ICC-Statute) and surrender and transfer of indicted persons to the ICC (article 89 (1) ICC-Statute) .

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concepts are intermingled in this line of argument.V" This pertains to the imposition of treaty obligations on non-States parties on the one hand, and the exercise of jurisdiction over nationals of such stares."? Furthermore, both (active) nationality and territoriality are wellrecognized principles as bases for jurisdiction. In this vein, the ICC's jurisdictional regime is not extraordinary.P? It is moreover recognized that the state on whose territory criminal conduct occurs has concurrent jurisdiction with the state of nationality.V! If one accepts this proposition - and most countries with an Anglo-American legal system subscribe fully to territoriality as the principal basis for the exercise of jurisdiction - it is the territorial state's right to either prosecute the person within its own legal system, extradite that person to another country with a jurisdictional title, or hand that person over to another forum,382 which could be the ICC. Such a jurisdictional basis is embodied in most international criminal law conventions, where no such distinction between nationals and non-nationals takes place. 383 Thus, it cannot be claimed that the ICC-Statute creates any obligation for a

378 D. Scheffer, "The International Criminal Court: The Challenge of Jurisdiction", Proceedings of the Ninety-Third Annual Meeting of the American Society ofInternational Law 93 (2000), 68 et seq. (70). 379 Scharf, see note 375, 98 extends this argument further on the problems posed by anti-terrorist conventions, referring to the Yunis decision of the United States Court of Appeals for the D.C. Circuit. United States v. Yunis, 924 F.2d 1086(D.C. Cir. 1991). 380 Similarly Danilenko, see note 375,459. 381 Seeonly Blakesley, see note 12,43 et seq. and 61 et seq. 382 Paust, see note 375, 2; M. Arsanjani, "The Rome Statute of the International Criminal Court", AJIL 96 (1999), 22 et seq. (26); Hafner et al., see note 375, 117. For a different view, see Morris, see note 375, 45 claiming that there is no customary international law basis for the delegation of territorial jurisdiction and concluding the purported lawfulness of such delegation is a "legal innovation", see 47. 383 Similarly Danilenko, see note 375, 460; Scharf, see note 375, 99. This applies to a number of conventions, such as the 1949 Geneva Conventions, the 1958 Geneva Convention of the High Seas, UNTS Vol. 450 No. 6465, the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft, UNTS Vol. 860 No. 12365, the 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, UNTS Vol. 974 No . 14118 and the 1979 International Convention Against the Taking of H ostages, A/RES/146 of 18 December 1979.

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non-State party.384 Rather, the ICC's jurisdictional regime follows closely that of many domestic legal systems.l'" Indeed, the Nuremberg Tribunal affirmed this approach, when it stated that the creators of the tribunal "made regulations for the proper conduct of the Trial. In doing so, they have done together what any of them might have done singly, for it is not to be doubted that any nation has the right to set up special courts to administer thelaw".386 Further, the ICC-Statute does not create state liability,387 but rests entirely on individual criminal responsibility. This is a fundamental premise of the ICC-Statute and finds support in numerous provisions, starting with the Preamble and is spelled out clearly in article 25 (1) of the ICC-Statute. Again, the ICC does not go beyond or expand existing international legal principles, as the crimes that can only be committed by individuals and which are covered by the ICC-Statute are - for the most part - deeply embedded in customary international law. Attempts to claim that states are being subjected to obligations under the ICC-Statute in some extended sense for crimes that were perpetrated by individuals.P" can rightly be called

384 It is however questionable to base the legality of the territoriality principle as embodied in article 12 of the ICC-Statute on customary international law. But see Y. Sok Kim, "The Preconditions to the Exercise of the Jurisdiction of the International Criminal Court: With Focus on Article 12 of the Rome Statute", Journal of International Law and Practice 8 (1999), 47 et seq. 385 Similarly Scharf,see note 375, 110. 386 International Military Tribunal, see note 303, 216. 387 Doc. A/56/10, Suppl. No. 10, International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the ILC at its 53rd Sess. (2001). 388 T. Meron, "The Court WeWant", Washington Post, 13 October 1998, A15; Morris, see note 375, 15; R. Wedgwood, "The Irresolution of Rome", Law and Contempora ry Problems 35 (2001),193 et seq. (199). Wedgwoodclaims that "enthusiasts" would not recognize "where the charged conduct consists of the faithful execution of official policy, the state remains a real party in interest and the matter is closely akin to the jurisdictional prerequisite of an 'indispensible party'." In this Wedgwood blurs the distinction between legal obligations and public policy. The latter is not free from scrutiny through the former. One should bear in mind the statement by R. Goldstone, former Prosecutor for the ICTY and ICTR who stated that "I really have difficulty understanding that policy. What the United States is saying is, 'In order to be peacekeepers [...] we have to commit war crimes.' That's what the policy boils down to." US Stance Contradictory, former UN

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a "novel theory. "389 Finally, the ICC could not exercise its jurisdiction if a state has prosecuted the person for the conduct in question, as it has jurisdiction only with regard to situations, in which the state in question was "unwilling or unable genuinely to carry out the investigation or prosecution't.P? While it is true that the ICC can assert jurisdiction if a state is unwilling or unable to investigate or prosecute its national for conduct committed on the territory of a State party, the state of nationality is under no international obligation to assist in any way.391 Moreover, considering the character of the conduct in question, a nation would be hard pressed not to be subject to an outcry for its unwillingness to act. In light of the foregoing, it appears that the arguments put forth by the opponents of the ICC's jurisdictional regime are based on a more fundamental rejection of the ICC exercising jurisdiction over its nationals, rather than a sound legal basis. Such a specter may be wellsuited to argue on a political level.392 The legal grounding however seems more than questionable. A number of other existing jurisdictional bases are not included in the ICC-Statute, namely the universality principle and the passive personality principle. This is the result of a political compromise, with both bases - or lack thereof - providing for potential problems in the

389 390 391 392

Prosecutor Says, Terra Viva, 17June 1998, 7. The statement is also available at (4 August 2003). Brown, see note 375, 869. Brown argues further that equating the two concepts might be a "clever rhetorical device, but as legal reasoning it is completely untenable". Article 17 ICC-Statute. See II . 4. c. for more detail. Hafner et aI., see note 375, 118. S. HRG. 105-724, Is a U.N. International Criminal Court in the U.S. National Interest, Hearing before the Subcommittee on International Operations of the Committee on Foreign Relations, United States Senate, 105th Congress, 2nd Session, 23 July 1998. Senator Rod Grams states that "[tjhis court claims universal jurisdiction", 1; similar statement by Senator Jesse Helms, referring to the Rome Statute's "universal jurisdiction provision", 7, and statement of Senator John Ashcroft to the effect that "[tjhe Court's claim to universal jurisdiction smacks of arrogance". However, these statements do not take into account that the jurisdiction of the ICC does not incorporate the principle of universality, unless of course one proscribes to the understanding of universality put forth by Senator Rod Grams, 1, who defines this term as "the right to prosecute United States citizens even though the U.S. is not a party to the treaty."

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future. Regarding the universality principle, one could conceive of a case in which the perpetrator is in the custody of a State party, but is a national of a non-State party and committed her/his crimes on the territory of a non-State party. In such a constellation, the ICC would not be able to claim jurisdiction over that person, although the universality principle would grant the state where the perpetrator is held to do SO.393 It is however not surprising that the passive personality principle'?" did not find entry into the ICC-Statute given the disparate views held on this matter between common law and civil law countries.s'"

3. ratione temporis In keeping with the general principle of international law of the nonapplicability of treaties prior to their coming into force for the state in question-?" - as embodied in article 28 of the Vienna Convention on the Law of Treaties _,397 the jurisdiction according to the ICC-Statute does not take effect retroactively, but can only be invoked prospectively after its entry into force. 398 Article 11 of the ICC-Statute stipulates that:

393 394 395 396

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DelbriickJ Wolfrum, see note 35, 1152. The passive personality principle applies when the victinus) of criminal conduct is a/are national(s) of a State party. See note 356. One example for an international adjudicative body that has made a pronouncement to that effect is the finding of the European Commission of Human Rights in the case of De Becker v. Belgium, Application No. 214/56 of 27 March 1962, Yearbook of the European Commission of Human Rights 2 (1962),214 et seq. The commission found that the European Convention did not take effect retroactively, but rather that it would only have prospective effect. Vienna Convention on the Law of Treaties, UNTS Vol. 1155 No. 18232. Its Article 28 reads: "Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party." There is a fundamental distinction between article 11 of the ICC-Statute and article 24 of the ICC-Statute. The former is concerned with the issue of procedural legislative retroactive assumption of jurisdiction, while the latter deals with retroactive substantive criminalization, Thus, while it is possible th at any given conduct could be subsumed under any of the crimes

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With regard to the actual date of the coming into force of the ICCStatute, it stipulates more specifically that this was " the first day after the month after the 60th day following the day of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations."400 This relatively high number of required ratifications is testament to the willingness of the framers of the ICC-Statute that it should operate with a high rate of approval from the start, without being considered - and possibly condemned - as a political instrument of a small number of nations aiming to impose upon other states their ideals of international justice. The ICC-Statute entered into force on 1 July 2002, after 10 countries had submitted its instrument of ratification to the Secretary-General.P' At the time of writing, an additional 31 states have become States parties to the ICC-Statute, thus bringing the number to 91 States parties.402 It was unclear at the beginning whether the required number of States parties would be reached as early as mid-2002 and it is still surprising, consid-

399

400 401

402

mentioned in article 5 of the ICC-Statute, article 11 of the ICC-Statute would still bar the Court from assuming jurisdiction over the conduct in question. The ICC-Statute as an international treaty deviates from its ad hoc predecessors in the 1990s in this respect. The ICTR's temporal jurisdiction was limited by article 2 of the ICTR-Statute for the time period between 1 January 1994and 31 December 1994, while the ICIT-Statute allows for an open-ended jurisdiction, stating in its article 1 that: "[tjhe International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute". Article 126 (1) of the ICC-Statute. On this day, Bosnia and Herzegovina, Bulgaria,Cambodia, the Democratic Republic of Congo, Ireland, Jordan, Mongolia, Niger, Romania and Slovakia submitted their instruments of ratification formally. For an overview of the current ratification status, see United Nations, United Nations Treaty Database - Multilateral Treaties Deposited with the Secretary-General, Rome Statute of the International Criminal Court, 17 July 1998, (4 August 2003).

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ering the sometimes major chan ges that the ICC-Statute necessitates in do mestic legal syste ms.403 For states becoming a party to the ICC-Statute after its ent ry into force, article 11 (2) of the ICC-Statute provides that th e: " C ourt may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a decl aration under article 12, paragraph 3".404 This language is based on the understanding that whatever occurs in a given state that could remotely be considered to fall under the jurisdiction of the ICC in any other jurisdictional category (e.g. genocide committed by a national of that state or on the territory of that state), such conduct would not be subject to the jurisdiction of the ICC. However, this does not bar the state from prosecuting the perpetrator within its own criminal justice sysrem.t'" This regime might not be satisfactory to all commentators and has caused some to criticizef'" or even oppose it. However, it sho uld be stressed th at it is probably the onl y way for countries to be abl e to become Stat es parties to the Rome Statute which do not wish to submit past conduct to international adjudic ation.P? On the other hand, it should also be noted that a stat e does have the option to submit such a case to the ICC's jurisdiction if it has

403

404

405 406

407

For the legislative changes th at were made to accomm odate the IC C's requ irements, United Nations Treaty Database, see note 402; Coal ition for an International Criminal C ourt, Country Information, (5 Augu st 2003). See also text accompanyi ng footnotes 7 and 8, abo ve. Similar to the language used in art icle 126 (1) of th e ICC-Statute, section 2 provides: "For each State ratifying, accepting, approving or acceding to this Statute after the deposit of the 60th instrument of ratificati on , acceptance, approval or accession, the Statute shall enter into force on the first day of the month after the 60th day following the deposit by such State of its instrument of ratification, acceptance, appr oval or accession. " Similar S. Williams, "Arti cle 11 - Jurisdicti on ratione temporis", mn. 9, in: Triffterer, see not e 17. S. Bourgon , "Jur isdiction Ratione Temporis", in: Cassese et al., see note 11, 543 et seq. (549); S. Singh, "The Futu re of Internation al Criminal Law: Th e Internation al Criminal C ourt (IC C) ", Touro Intem ational Law R eview 10 (2000), 1 et seq. (9). Similarly to the view of this author Schabas, see not e 182, 57.

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made a declaration to that effect in accordance with the requirements set forth in article 12 (3) of the ICC-Statute.408 At least one interesting and problematic case could arise from this general regime, namely the issue of continuous crimes. If the first element of such a crime'P? - such as taking a person into custody in the case of enforced disappearancest'? - were to have taken place prior to the entry into force for a given state and if the detention of that person continued until the coming into force of the ICC-Statute, it remains an open question whether such conduct could be regarded to fall within the temporal jurisdiction of the ICC. The Appeals Chamber in the aforementioned Ngeze and Nahimana v. Prosecutor case had decided that any facts that fell outside the jurisdictional time limit set forth in article 2 of the ICTR-Statute would have to be withdrawn from the indictment. However, in the case of continuous violations, it could be argued that the effects of the crime, which in the case of enforced disappearance is the detention of the person without knowledge of her/his whereabouts, are present at the time of the coming into force of the ICC-Statute. Thus, the perpetrator of that crime could be convicted on the basis of the ICC-Statute without contravening the principle of non-

408

409

410

The requirements for such a declaration however should be regarded restrictively. Such a declaration would have to specify the time for which it operates, the crime or situation it refers to and without conditions. Similarly Bourgon, in: Cassese et al., see note 11, 551. Such violations are committed prior to the entry into force of the Statute, but have effects that continue even afterwards, or violations that are commenced prior to the entry into force of the Statute and deemed to be 'continued' afterwards. R. Pangalangan, "Article 24 - Non-retroactivity ratione personae", mn. 13, in: Triffterer, see note 17; similarly, P. Saland, "International Criminal Law Principles", in: Lee, see note 5, 189 et seq. (197); Arsanjani, see note 345, 64; Schabas, see note 182, 59 make mention of this problem, without however offering solutions. Most authors mention the crime of genocide in this regard, referring to the decision of the ICTR Appeals Chamber in 2000, ICTR-99-52-A, Ngeze and Nahimana v. Prosecutor, Decision on the Interlocutory Appeals of 5 September 2000. The Appeals Chamber found however that conduct prior to 1 January 1994 which would allow to prove genocidal intent, was admissible. Another such crime under the jurisdiction of the ICC is the forcible transfer of population according to article 8 (2) (b) (viii) of the ICCStatute. D. Blumenthal, "The Politics of Justice: Why Israel Signed the International Criminal Court Statute and What the Signature Means", Ga. ]. Int 'l & Camp. L. 30 (2002), 593 et seq. (609).

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retroactivity because the crime's effects are still palatable at a point in time after the coming into force of the ICC-Statute. Finally, a situation could occur in which the Security Council refers a situation to the ICC according to article 13 (b) of the ICC-Statute. The only time limit for this situation is that the ICC-Statute has come into force, regardless of the nationality of the perpetrator or the territory on which the crime in question occurred. As the coming into force of the ICC-Statute has already occurred in mid-2002, this problem will not arise."!

4. Limitations on the Jurisdiction of the ICC The jurisdictional regime outlined above is subject to a number of limitations, some of which have been analyzed above. A number of other limitations should be pointed out however, as they might have a considerable impact on the work of the Court in the future. These exceptions concern the age limit according to which individuals can be prosecuted, the issue of Security Council deferral under article 16 of the ICC-Statute, the limitation by way of the principle of complementarity according to article 17 of the ICC-Statute and the limitation on the jurisdiction over war crimes according to article 124 of the ICC-Statute. a. Article 26 of the ICC-Statute - Age Limit In order for the Court to have jurisdiction, the alleged offender must have reached the age of 18 at the time of the commission of the crime. This rule - enunciated in article 26 of the ICC-Statute - was the cause for long debate during the negotiating process. The reason for the division lay in the divergent age limitations which exist in national legal

411

K. Gallant, "Jurisdiction to Adjudicate and Jurisdiction to Prescribe in International Criminal Courts", Villanova Law Review 48 (2003), 763 et seq. (811) describes an example that confirms this author's view. A national of a non-State party commits crimes within the jurisdiction of the ICC on the territory of that state, which afterwards becomes a party to the ICCStatute. Gallant calls it absurd that in such a situation the perpetrator should be able to rely on the bar to temporal jurisdiction for states becoming a State party after the entry into force of the Rome Statute according to article 11 (2) ICC-Statute.

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systerns.U? The inclusion of such a jurisdictional limitation clause is a novelty, considering that neither one of the predecessor statutes contained a similar clause. However, it should be pointed out that an implicit recognition for this age limit did indeed exist, as an age limitation was not the subject in either the ICTY's or the ICTR's jurisprudence. The exclusion of jurisdiction for the ICC - described as "disarmingly simple" in light of the heated discussions on this subjecr'P - does not preclude national prosecutions under the implementing legislation for the ICC-Statute. 414 One of the few problems imaginable with respect to this provision is the commission of a continuous crime by an alleged offender and in which the initiation for the conduct in question occurred when that person was under the age of 18, but continues after the alleged offender turned 18. Similar to the solution proposed above.i" it is submitted that the offender cannot be held liable under the ICC -Statute for the time period in which he was under the age of 18. However, for the time period after her/him becoming of age, article 26 of the ICC-Statute would not present a bar to jurisdiction for the ICC. 4 16 Another issue has been 412 413 414

415 4 16

P. Saland, see note 409, 200 et seq. Schabas, see note 182, 64. R. Clarki O . Triffterer, "Article 26 - Exclusion of jurisdiction over persons under eighteen", mn. 9 and mn. 20, in: Triffterer, see note 17. Seenote 409 et seq. and accompanying text. Similarly Clarki Triffterer, see note 414, who mentions other problems, e.g. attempt and effects. See M. Frulli, "The Special Court for Sierra Leone. Some Preliminary Comments", EjIL 11 (2000), 857 et seq. (866) outlining that the SpecialCourt does have jurisdiction over offenders at the age of 15. However, offenders between the age of 15 and 17 are subject to a special regime for juvenile offenders. See article 7 entitled "Jurisdiction over persons of 15 years of age" of the Statute of the SpecialCourt, which reads: "1. The Special Court shall have no jurisdiction over any person who was under the age of 15 at the time of the alleged commission of the crime. Should any person who was at the time of the alleged commission of the crime between 15 and 18 years of age come before the Court, he or she shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child. 2. In the disposition of a case against a juvenile offender, the Special Court shall order any of the following: care guidance and supervision orders, community service orders, counselling, foster care, correctional, educa-

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raised regarding the divergence between the age limit for conscripting children (article 8 (2) (b) (xxvi) and article 8 (2) (e) (vii) of the ICCStatute) and the exclusion of jurisdiction for offenders under the age of 18 according to article 26 of the ICC-Statute. 417 This divergence is unfortunate, considering that an individual under the age of 18 can be considered a combatant, but cannot be punished. However, under the war crimes provision, it is only the commander who can be held liable for conscripting or enlisting children or using them to participate actively in hostilities under the age of fifteen. This dichotomy thus concerns two different aspects, one of which is the criminal culpability of a superior, the other being a limitation on the jurisdiction of the Court. b. Article 16 of the ICC-Statute - Security Council Deferral According to article 16 of the ICC-Statute, the Security Council has been granted the right to request that no investigation or prosecution may commence or proceed under the ICC-Statute for a period of 12 months, if the Security Council makes such a request under the powers given to it by Chapter VII of the Charter of the United Nations. Already its inclusion in the ICC-Statute was the cause for considerable debate, with some countries arguing that the jurisdiction of a judicial organ should not be subject to the decisions of a political organ.418 It is unsurprising that the PS were particularly in favor of such powers to be granted to the Security Council.t'? The final version as it appears now in the ICC-Statute requires a much higher threshold for the request by the Security Council in comparison to previous proposals from the

417 418

419

tional and vocational training programmes, approved schools and, as appropriate, any programmes of disarmament, demobilization and reintegration or programmes of child protection agencies". Cassese, see note 303, 153. Report of the Committee on the Establishment of a Permanent International Criminal Court, see note 19, 28. The view taken by some commentators, namely that "[m]ember States of the International Criminal Court have rejected a role for the U.N. Security Council" is untenable in light of the ICC-Statute. But see M. Abramowitz! P. Williams, "Peace Before Prosecution?", Washington Post, 25 August 2003, A17. C. Hall, "The First and Second Session of the UN Preparatory Committee on the Establishment of an International Criminal Court", AJIL 91 (1997), 182 et seq.

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ILC,420 namely that the Security Council acts under Chapter VII of the Charter of the United Nations. The requirements for invoking this provision by the Security Council are to be found both in the Charter of the United Nations and the ICC-Statute. For once, it has to fulfill the requirements of invoking Chapter VII of the United Nations Charter, i.e. it has to determine that there does indeed exist a threat to the peace, breach of the peace, or act of aggression in accordance with Article 39 of the Charter of the United Nations. In addition, none of the mentioned PS must vote against that resolution.f-" Furthermore, the Security Council will have to specify that any investigation or prosecution does interfere with its responsibilities to maintain international peace and security, i.e. that in the absence of its decision to halt all investigations and prosecutions under article 16 of the ICC-Statute, international peace and security would be threatened.t-i i.e, it must refer to a particular situation.t-' The request can be renewed by a new resolution of the Security Council, again acting under Chapter VII of the Charter of the United Nations. It is however required that the Security Council make a positive statement in the form of a resolution that, should the ICC recommence or proceed with an investigation or prosecution, such action would again bring about at least a threat to the peace .S" The consequence of such a request is simple. The ICC - including all of its organs - are to halt all investigations or prosecutions.v" 426 This does not however preclude the Prose-

420

421 422

423

424 425

426

Report of the Committee on the Establishment of a Permanent International Criminal Court, see note 19. Article 27 of the Charter of the United Nations. Cassese, see note 303, 163; S. Heselhaus, "Resolution 1422 (2002) des Sicherheitsrates zur Begrenzung der Tatigkeit des Internationalen Strafgerichtshofs", ZaoRV 62 (2002), 907 et seq. (923); for a different view see Condorellil Villalpando, see note 340,647. S/PV.4772, SCOR 58th Sess., 4772nd Mtg., 12June 2003. Critical with regard to this requirement, Wedgwood, see note 375, 97, calling it a "palacerevolution". The term "investigation or prosecution" should be construed bearing in mind the provisions of Part 5 - Investigation and Prosecution. Nevertheless, in the context of article 16 ICC-Statute it is submitted that such a construction finds its limits when such a preliminary examination constitutes a threat to international peaceand security. It is highly problematic to call for a judicial review on the level of the ICC on resolutions of the Security Council. B. Martenczuk, "The Security Council, the International Court and Judicial Review: What Lessons from

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cuto r from conducting further "preliminary examinations. " 42 7 This raises a number of unresolved qu estions, namely the protection of witnesses and victims, but also the question of the rights of the accused, as it is conceivable that an accused ma y be in custody when suc h a request is made. Considering the potential indefinite time period for which deferrals can be made, such a situation would pose serious problems, as fundamental judicial guarantees, such as the right not to be subjected to arbitrary arrest or detention under article 9 (1) of the International Covenant on Civil and Political Rights428 could be infringed.V? On 12 June 2002, the dispute regarding exceptions to the ICCStatute again featured prominently in the media430 and led to a large number of commentaries on the correct interpretation of article 16 of the ICC-Statute. 431 Former Canadian Foreign Affa irs Minister Ax-

42 7

428 429

430

431

Lockerbie?", EJIL 10 (1999), 517 et seq. (545). But see C ondorellil Villalpando, see note 340, 650. M. Bergsmol J. Pejic, " Art icle 16 - Deferral of investigation or prosecution ", rnn . 15, in: Triffterer, see note 17. See note 352. Condorellil Villalpando, see note 340, 652; Amnes ty International, International Criminal Court - Th e unlawful attempt by th e Security Council to give US citizens permanent impu nity from international justice, May 2003, AI Index: lOR 40/006/2003,50. P. Koring, "Canada, other allies blast immunity pu sh Bush administration wants peacekeepers shielded from prosecutions of war crimes", The Globe and Mail, 22 June 2002, A16 ; C. Lynch, "European Countries Cut Deal to Protect Afghan Peacekeepers ", Th e Washington Post, 20 June 2002, A 15; J. Dempseyl C. Hoyo s, " Europe - UN seeks to ease world court tensions ", Financial Times, 28 June 2002, P6; C. Lynch, "Bu sh Promises to Try To Save Bosnia Mission; U .S. Immunity to War Court Is Key", The Washington Post, 3 July 2002, A 16; " ICC row threatens UN mission in Bosnia", The Globe and Mail of 3 July 2002, AI0; J. Ibbitson, "Canada condemns world court compromise U .S. wins peacekeepers one-year grace from warcrimes prosecution by new body", The Globe and Mail, 13 July 2002, All; O. Burkemanl R. Norton-Taylor, "Newborn world court fights for survival - US demands for legal immunity put peacekeepin g operations at risk ", The Guardian, 1 Jul y 2002, 15. For highl y detailed and thorough analysis see H eselhaus, see note 422. See also C. Stahn, "The Ambiguities of Security C ouncil Resolution 1422 (2002)", EJI L 14 (2003), 85 et seq.; C. Jayaraj, "T he International Criminal Court and th e United States: Recent Legal and Policy Issues", Indian Jou rnal of International Law 42 (2002), 489 et seq. (499 et seq.); Z. DeenRacsrnany, "T he ICC, peacekeepers and Resolution 1422: Will the Court

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worthy, who was one of the most prominent political proponents of the ICC, publicly denounced United States action as being "foul play" and "shocking".432 With S/RES/1422 (2002) of 12 July 2002, the Security Council adopted a resolution in which it requested the ICC retroactively to not "commence or proceed with investigation or prosecution" of any case involving non-States parties nationals who are part of a Security Council mandated peace-keeping operation.t-' This resolution was put forward by the United States which had threatened to withdraw its forces from any peace-keeping missions in the absence of such a decision by the Security Council.P" 435 The content of the resolution effectively barred any investigation, much less a prosecution, for nationals of non-State Parties, with some arguing that it granted a carte

432

433

434

435

Defer to the Council?", NILR 49 (2002), 353 et seq. (355); Report by Amnesty International, see note 429, which gives a very detailed chronological overview. Arguments made by countries during a Special Plenary Session of the Preparatory Commission are available on a country-by-country basis. See Coalition for an International Criminal Court, Government Responses to US-proposed Security Council Resolution on ICC and Peacekeeping, Special Plenary Sess., Preparatory Commission for the ICC of 3 July 2002, (4 August 2003). L. Axworthy, "International Criminal Court - Stop the U.S. foul play Any illusions that Washington sought real global co-operation to fight evil was dispelled in the UN", The Globe and Mail, 17 July 2002, A13. Heselhaus, see note 422, 915 argues convincingly that the immunity under this resolution is limited to peace-keeping operations on the basis of the wording and the historic forthcoming of S/RES/1422 (2002). Furthermore, it should be noted that such operations do not include acts of self-defense according to Article 51 of the Charter of the United Nations. M. Byers, "Terrorism, the Use of Force and International Law", ICLQ 51 (2002),401 et seq. (402). U.N. Ends Wrangle Over U .S. Immunity, New York Times, 13 July 2002, AI; C. Lynch, "Ll.S. Wins l-Year Shield From War Crimes Court", Washington Post, 13 July 2002, A16; J. Dempsey, "Little applause on criminal court deal", Financial Times, 15July 2002. This is confirmed by the subsequent resolutions that were passed immediately after S/RES/1422, namely S/RES/1423 of 12 July 2002, which extended the mandate of the United Nations Mission in Bosnia and Herzegovina (UNMIBH) and S/RES/1424 of 12 July 2002, which extended the mandate of the United Nations Mission of Observers in Prevlaka (UNMOP).

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blanche for United States troops.v" From the perspective of the United States, the adoption of the resolution can be seen as a victory and is furthermore in line with its more general - negative - approach to the ICC. Moreover, it furthers its attempts to exempt its nationals from the jurisdiction of the ICC. 437 But, as the Secretary-General has pointed out again in the debate concerning the renewal of S/RES/1422 in June 2003, at least so far, "no peacekeeper or any other mission personnel have been anywhere near committing the kinds of crimes that fall under the jurisdiction of the ICC."438 Be that as it may, S/RES/1422 is problematic in a number of areas. First of all, in the light of the above mentioned necessity to specify action taken by the ICC that could be said to amount to a breach of the peace, only scant reference could potentially be drawn from preambular clauses 6 and 7 of S/RES/1422. 439 Indeed, as one author has pointed out, the "absence of [...] a finding [that there was a threat to or breach of the peace] is unprecedented in the 57

436 See e.g. Remarks by H.E. Ambassador P. Heinbecker, Permanent Representative of Canada to the UN, at the UN Security Council open debate on the situation in Bosnia and Herzegovina (New York, USA) of 10July 2002, Doc. S/PV4568, SCaR 57th Sess., 4568th Mtg of 10 July 2002, 2. For the second part of the debate, see Doc. S/PV. 4568 (Resumption 1), Security Council, SCaR 57th Sess., 4568th Mtg of 10July 2002. 437 It is ironical in some sense that United States troops were not even in danger of coming under the jurisdiction of the ICC regarding the mission in Bosnia-Herzegovina, as the ICTY would enjoy primary jurisdiction. Indeed, at the time the resolution was passed, no United States troops would have been subject to the jurisdiction of the ICC. Coalition for an International Criminal Court, Chart and explanation illustrating zero exposure of US peacekeepers to ICC's jurisdiction, July 2002, (4 August 2003). 438 Doc. S/PV4772, see note 423,3. Similar statements were made by a number of nations throughout this open debate in the Security Council. In addition, UN peacekeeping operations are traditionally based on so-called Status of Forces Agreements (SOFAs). See M. Zwanenburg, "The Statute for an International Criminal Court and the United States: Peacekeepers under Fire?", EllL 10 (1999), 124 et seq. (127). 439 These clauses state: "Determining that operations established or authorized by the United Nations Security Council are deployed to maintain or restore international peace and security, Determining further that it is in the interests of international peace and security to facilitate Member States' ability to contribute to operations established or authorized by the United Nations Security Council, [...]."

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years of practice of the Security Council. "440 Second, article 16 of the ICC-Statute must be characterized to constitute an exception to the general rule and as such, must be construed narrowly. Third, the deferral of proceedings ex ante poses additional problems, also with respect to the foregoing. Such a carte blanche could even be said to be inconsistent with the Charter of the United Nations as the Security Council simply cannot determine whether any action by any of the organs of the ICC will constitute at least a threat to the peace in the meaning of Article 39 of the Charter of the United Nations in the future.v'! Fourth, the somewhat ominous reference to the Security Council's "intention to renew the request [... J under the same conditions each 1July for further 12-month periods for as long as may be necessary"442 is another cause for concern. This was already a considerable departure from the draft that was suggested by the United States, which would have exempted peace-keepers indefinitely, save for a resolution by the Security Council to the contrary.r'! Such a wording would have run counter to the provision of article 16 of the ICC-Statute which states that "such a request may be renewed by the Council." Furthermore, the legal significance of

440

F. Lattanzi, "La Corte penale internazionale: una sfida per Ie giurisdizione degli Stati", Diritto Pubblico Comparato ed Europeo, 2002 - III, 1365 et seq. (1372). 441 Srahn, see note 433, 88-89 arguing that while such a construction would possibly be compatible with the wording of article 16 of the ICC-Statute, it runs counter to its purpose and its systematic position. 442 S/RES/1422 (2002) of 12July 2002, operative clause 2. 443 The United States proposal read in its relevant part: "The Security Council, Acting under Chapter VII of the Charter, 1. Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC for a twelve-month period shall not commence or proceed with any investigations or prosecutions involving current or former officials or personnel from a contributing State not a party to the Rome Statute for acts or omissions relating to UN established or authorized operations; 2. Decides by this resolution, acting consistent with Article 16 of the Rome Statute, that on July 1 of each successive year, the request not to commence or proceed with investigations or prosecutions as set forth in paragraph 1 shall be renewed and extends during successive twelve-month periods thereafter unless the Security Council decides otherwise and directs the Secretary-General to communicate these annual requests of the Security Council to the ICC; 3. Decides that Member States shall take no actions, such as arrest or surrender, inconsistent with the requests set forth in paragraphs 1 and 2."

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the terminology "intent" remains unclear. It is submitted that - in line with what was said above, a restrictive view on this matter and bearing in mind the object and purpose of the ICC-Statute - all that needs to be done is a re-evaluation after a one-year period by the members of the Security Council of the situation as it then exists. Finally, and although bearing in mind that the trauaux preparatoires should only be considered as a secondary source according to article 32 of the Vienna Convention on the Law of Treaties, it should be borne in mind that article 16 of the ICC-Statute was never intended to give impunity to nationals of non -States parties.r'" In S/RES/1487 (2003) of 12 June 2003, the Security Council decided to renew its measures adopted under S/RES/1422. A number of proposals had been discussed informally before a draft was submitted to the Security Council, ranging from simply stating that S/RES/1422 would be renewed to a completely new resolution. S/RES/1487 is an almost verbatim copy of S/RES/1422. An overwhelming majority of countries were opposed to this resolution.r'! considering that such a renewal would not be based on a sound legal foundation, but rather accepting that without such renewal, some of the ongoing peace-keeping operations would be in jeopardy.r'" In addition to the reasons for opposing the original resolution, a number of states stressed the point that the renewal of S/RES/1422 by way of S/RES/1487 should not be seen as granting such immunity for perpetuity."? Moreover, the SecretaryGeneral expressed his hope that such an extension would "not become an annual routine."448 This view was reflected to some degree in the vote count on the draft resolution before the Security Council. Unlike its predecessor, which had been passed unanimously."? S/RES/1487 re444 Numerous countries made statements to that effect in the debate prior to the voting procedure on S/RES/1422, see Coalition for an International Criminal Court, see note 431. 445 See Coalition for an International Criminal Court, Statements made or endorsed by Governments in the Open Meeting of the Security Council Discussion of the Proposed Renewal of Resolution 1422 of 12 June 2003, [prepared by the NGO Coalition for the International Criminal Court], (4 August 2003). 446 Doc. S/PVA772, see note 423. 447 Doc. S/PV.4772, see note 423, e.g. statement made by the representative of New Zealand, 6. 448 Doc. S/PV.4772, see note 423, 3. 449 Doc. S/PV.4572, SCOR 57th Sess., 4572nd Mtg of 12July 2002.

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ceived three abstentions, namely from France, Germany and Syria.45o Similarly, when the Security Council decided to authorize a multinational force to support the ceasefire in Liberia''!' - and again granting immunity for peacekeeping personnel - this resolution again was not supported unanimously, with France, Germany and Mexico abstaining.452 This latest inclusion of an immunity clause must be regarded with caution, especially if seen as part of an ongoing development. At the time of writing, only three such clauses existed in resolutions which were concerned with peacekeeping operations. It can be expected that a provision similar to what has been used so far will be included in future resolutions . In the long run, this could prove detrimental to the working of the ICC, thus confirming the apprehension which the SecretaryGeneral had expressed in the debate surrounding the adoption of S/RES/1487.453

450

451

452

453

SC17789, Press Release, Security Council Requests One-Year Extension of UN Peacekeeper Immunity from International Criminal Court, Adopts Resolution 1487 (2003) by 12-0-3 (France, Germany, Syria); SecretaryGeneral Says Continued Annual Adoption Could Undermine Court, Council, 12 June 2003, (4 August 2003). S/RES/1497 (2003) of 1 August 2003. Its operative clause 7 reads: "7 . Decides that current or former officials or personnel from a contributing State, which is not a party to the Rome Statute of the International Criminal Court, shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to the Multinational Force or United Nations stabilization force in Liberia, unless such exclusive jurisdiction has been expressly waived by that contributing State; [...]." Doc . S/PV,4803, SCOR 58th Sess., 4803rd Mtg of 1 August 2002, 5. See especially the statement by the representative of Germany arguing that this resolution "goes far beyond what the Council decided just a few weeks ago in resolution 1487 (2003)." This assessment must be underscored, as operative clause 7 do es not only preclude the jurisdiction of the ICC, but also of any potential national legal system. It is however questionable to state that such an operative clause is contrary to international law as the French representative has claimed. See note 448.

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c. Article 17 of the ICC-Statute - Complimentarity With some authors calling its inclusion an irony,454 the principle of complirnenrarity is nevertheless one of the founding principles upon which the ICC rests. 455 It was understood from the start that the ICC would only be accepted by a large number of states - and thus would only receive indispensable widespread recognition - if the primary jurisdiction for the crimes covered would not lie with the ICC itself, but with national criminal justice systems. Contrary to the tribunals for Yugoslavia and Rwanda which have concurrent, but primary jurisdiction,456 the ICC will exercise its jurisdiction only if a state showed its unwillingness or inability genuinely to investigate or prosecute the alleged offender.457 This principle is a display of deference to national sovereignty on the one hand. 458 It serves however other - sometimes 454

455 456

457 458

J.

Holmes, "Complirnentariry: National Courts v ersus the ICC ", in: Cassese et aI., see note 11, 667 (667) . Seethe contribution of M. Benzing in this Volume. Article 9 of the ICTY Statute provides for "Concurrent jurisdiction" and reads: "1. The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991. 2. The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal". A similar provision exists in article 8 of the ICTR Statute and article 8 of the SpecialCourt for Sierra Leone. Article 17 (1) b of the ICC-Statute. Seethe commentary by G. Arangio-Ruiz, made during the 1994 meeting of the International Law Commission. He stated: "There was an enormous difference between ICJ and the proposed international criminal court . The compulsory jurisdiction of ICJ affected States in their relations with one another as sovereign states. The jurisdiction of the international criminal court would affect States in the exclusive "control" that they exercised over their nationals and most particularly over their leaders or officials. The very fabric of states would be penetrated; there would be a break in the veil of their sovereignty in that they would sending individuals in high Government posts to the court for trial and possible sentencing. [.. .] [T]he individual who might be brought before the court, tried, condemned and compelled to serve a sentence could be a head

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more practical functions as well. First of all, the potential caseload would overburden the Court in the long run. Secondly, such a principle might, over a period of time, contribute to shunning away from granting impunity to individuals because of their status, as it is conceivable that a state would not want to be the subject of an investigation of its unwillingness or inability genuinely to investigate or prosecute potential offenders. Thus, the ICC-Statute could be a factor in establishing mechanisms that strengthen the rule of law. d. Transitional Provision - Article 124 of the ICC-Statute Although article 120 of the ICC-Statute states that "[n]o reservations may be made to this Statute", there is one notable exception.P? Article 124 of the ICC-Statute - the subject of considerable criticism from various sides 460 - has to be considered in light of its drafting history, short as that may have been. A proposal to that effect was only part of

459

460

of State, a prime minister, the supreme commander of the armed forces or the minister of denfense of any given country," ILCYB 1994,Vol. 1,33-34. Until the time of writing, two states have made declarations pursuant to article 124 of the ICC-Statute, namely France and Colombia. United Nations, Multilateral Treaties, see note 402. The French declaration reads: "Pursuant to article 124 of the Statute of the International Criminal Court, the French Republic declares that it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory". The Colombian declaration reads: "[...J Availing itself of the option provided in article 124 of the Statute and subject to the conditions established therein, the Government of Colombia declares that it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by Colombian nationals or on Colombian territory". On the one hand, it is claimed that this provision is an extension of the ICC's jurisdictional basis, see Lietzau, see note 361,131 with scathing criticism, calling it either "a thoughtless error" or "at worst [...] an unabashed attempt to further isolate the United States in the final hours of the negotiation by drawing away one or more permanent members of the Security Council, which had otherwise held fairly consistent views on jurisdictional issues. On the other hand, the Standing Committee of the Parliamentary Assembly of the Council of Europe has urged Council of Europe Member States not to make such a declaration. See Standing Committee of the Parliamentary Assembly of the Council of Europe, International Criminal Court Recommendation 1408, 26 May 1999, (4 August 2003).

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the discussion in the last stages of the Rome Conference and its inclusion was mainly part of a political bargain 461 in order to appease certain countries, namely P5 states. 462 The inclusion of article 124 of the ICCStatute has to be seen before the background of the jurisdictional regime under article 12 of the ICC-Statute. Some countries had argued that war crimes and crimes against humanity should be excluded from the ipso facto acceptance of the Court's jurisdiction after ratifying the ICC-Statute, but should instead only be granted by way of Security Council referral or by w ay of acceptance of the state of which the alleged perpetrator is a national. Although different interpretations regarding the content of this provision - especially with respect to the term "does not accept the jurisdiction of the Court" - exist,463 it seems appropriatet'r' to construe this provision in such a manner as to entirely exclude all465 war crimes from the jurisdiction of th e Court for a period of seven years for the nationals of a state which has made such a declaration, or if such crimes were committed on the territory of said state. 466 The exclusion however does not apply in cases in which an alleged offender tries to take refuge in a country which has made such a

461 Other countries wanted an "opt-in" mechanism instead of an "opt-out" clause. See e.g. Senate Hearing, see note 392, statement by D . Scheffer, 13. The current wording is the result of a compromise that narrowed the more acceptable "opt-out" system to war crimes. Other schemes have been proposed, but were not accepted, see e.g. D. Scheffer, "Staying the Course with the International Criminal Court", Cornell Int 'l L. j. 35 (2002), 47 et seq. (80); see also Kim, see note 384, 56; Lietzau, see note 361, 127. 462 Bergsmo, see note 331, 31; A. Zimmermann, "Article 124 - transitional provision", mn. 1 et seq., in: Triffterer, see note 17, offers a chronological overview of the drafting history. 463 Zimmermann, see note above, mn. 5-7. 464 SimilarlyWilmshurst, see note 10, 141. 465 This is implied by the reference of article 124 of the ICC-Statute to "the category of crimes referred to in article 8". Furthermore, this includes prosecution for crimes falling in this time period after the said period has elapsed. Furthermore, it unfortunately, but necessarily includes a situation in which a national of the country having made the declaration commits such crimes on the territory of another state, as otherwise the reference to the nationality of the offender would be meaningless. 466 The use of the word "or" does not lead to an exclusion of either war crimes based on nationality or territorialit y.

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declaration.w/ unless that individual is a national of that state or the crimes were committed on the territory of the said state. Such a declaration under article 124 of the ICC-Statute does not touch upon the power of the Security Council to refer a situation to the ICC and its subsequent exercise of jurisdiction.t'f Furthermore, it can be withdrawn at any point in time and does not necessarily have to be made for the entire seven years that are possible. Claims to the effect that the current mechanism favors States parties over non-States parties rest on a shaky legal basis. The argument put forth is that states, having made a declaration under article 124 of the ICC-Statute, are not subjected to the same obligations as non-States Parties.ts? First of all, advancing this argument is at odds with that country's own proposal for a ten-year opt-out clause. Furthermore, it has been pointed out that the practical effect of this provision is to place the state making such a declaration in the same position as a non-State party with regard to war crirnes.F?

III. Conclusion This tour d'horizon has touched upon some of the most fundamental aspects of - and as evidenced by a similarly fundamental opposition to - the ICC's founding treaty. With the election of the Prosecutor in the spring of 2003, this latest in a series of international adjudicative bodies47 1 has taken yet another step away from its infancy and towards be-

467

468

469 470 471

But see J. Stanley, "Focus: International Criminal Court: A court that knows no boundaries?: The international criminal court treaty is a big achievement but can it deliver what it promises?", The Lawyer, 11 August 1998,8. For a different view see Bourgon, see note 370, 565. Similar to this author's view, Zimmermann, see note 462, mn. 8, in: Triffterer, see note 17. See Scheffer, see note 461; Lietzau, see note 361,131. Brown, see note 377, 876. T. Buergenthal, "Proliferation of International Courts and Tribunals: Is It Good or Bad?", LIlL 14 (2001), 267 et seq.; J. Charney, "The Imp act on the International Legal System of the Growth of International Courts and Tribunals", N. Y. U. j. Int'l L. & Pol. 31 (1999), 697 et seq.; C. Romano, "The Proliferation of International Judicial Bodies: The Pieces of the Puzzle", N. Y. U. j. Int'l L. & Pol. 31 (1999), 709.

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coming fully operational.v? While a number of commentators ponder the fact that the Court's adolescence has taken a considerable amount of time, this can be explained by taking into consideration the political realities in the second half of the 20th century. The Rome Statute represented an important step forward in the codification of international law in various areas - not only in the jurisdictional realm that has been the focus of this comment, but rather in a more general way.473 The fact that over 90 nations have so far ratified the ICC-Statute with all the ramifications that such an operation brings about - and in light of the changes that need to be made in order to accommodate the national implementation - is testament to a certain consensus underlying the treaty. The ICC-Statute is far from being a perfect treaty and there is hardly anyone who would make such a claim. This is the case, however, for almost all international treaties. International negotiation, like narional legislation, is to a considerable extent a give-and-take-exercise.V'' But it should be stressed that the creation of an international treaty is not a race to the bottom in search for the lowest common denominator. 475 Almost each provision of Part 2 of the Rome Statute entitled "Jurisdiction, Admissibility and Applicable Law" may have its defects and may be characterized by concessions, but in the overall context this does not forfeit for the recognition and effectiveness of an international

472

473

474

475

For a highly critical but misguided view of international criminal law see H. Quaritsch, "Nachwort", in: H. Quatrisch (ed.), Carl Schmitt, Das international-rechtliche Verbrechen des Angriffskrieges und der Grundsatz "Nullum crimen, nulla poena sine lege", 1994, 219. Quaritsch, following the lines of Carl Schmitt, believes that international criminal law (referring to the Nuremberg Trials) is a game played by an international legal sect (Glasperlenspiel einer internationalen Juristensekte - translation by author), contravening the very core of minimal rules of legal culture. This however, might also explain that some of the provisions were phrased extremely carefully - forced pregnancy might be one of them - as some of the legislative work will become part of the permanent fabric of the international community's legal landscape. The number of square brackets - reportedly over 1.400 - which were still part of the draft prior to the Rome Conference is testament to the number of contentious points that needed to be resolved. But see Lietzau, see note 361,122.

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criminal judiciary.f" The ICC-Statute's jurisdictional regime concerning the bases of jurisdiction could have been broader - much broader had the German proposal for universal jurisdiction been accepted. It was not - mainly because it was considered genuinely to go a step too far during the Rome conference. Claims have been made that the lack of adjudicative jurisdiction over internal conflicts will severely hamper the ICC in its operation and devalue it as a dog that barks, but doesn't bite. 477 This is certainly a regrettable outcome of the deliberations prior to and during the Rome conference, but it should be remembered that the current scheme represents a compromise which was heavily influenced by countries which have chosen not to become a party to the Rome Statute.f" Moreover, internal conflicts can fall under the jurisdiction of the ICC by way of Security Council referral. Some of the changes that were introduced in order to accommodate concerns by the United States have to be seen in a positive light. Others however were unacceptable, especially considering that the threat to United States citizens is minimal given the extensive safeguards that have been put in place - and that apparently a considerable number of nations have less of a problem recognizing. Conservative commentators even claim that the ICC is an attempt to influence United States military operations indirectly, stating that the "Rome Treaty will become the single most effective brake on international and regional peacekeeping in the 21st century. "479 This so-called chilling effect is not a natural and direct outcome of the ICC-Statute based on its provisions, but rather a - politically motivated - reaction to it. The resultant lack of support - or rather outright opposition - is unnecessary and to some extent selfdefeating. To some degree for example, the crimes covered by the ICCStatute are even part and parcel of United States military handbooks. Recent domestic developments in this area however are the cause for considerable concern.P? 476

477

478 479 480

O. Triffterer, "Der lange Weg zu einer internationalcn Strafgerichtsbarkeir", Zeitschrift fur die gesamte Strafrechtswissenschaft 114 (2002), 321 et seq. (361 et seq.). J. Goldsmith, "The Self-Defeating International Criminal Court", U. Chi. L. R. 70 (2003), 89 et seq.; Wedgwood, see note 388, 199; Lietzau, see note 361, 129. D. Scheffer, "U.S. Polic y and the International Criminal Court ", Cornell Int'l L. J. 32 (1998), 529 et seq. Lietzau, see note 361,127 et seq. According to Department of Defense, Milita ry Commission Instruction No.2, 30 April 2003, US military commission are not to rely on any other

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It would be in the interest of many to find the United States in support of the ICC - and not only because of the perceived lack of military might of those countries which have joined the ICC-Statute. 481 Ousting the United States on this matter will onl y lead to widening what has been called the new transatlantic gap and could lead to a situation that some believe is alread y present. 482 483 It is clear however that participation cannot be achieved at the cost of some of the most

481 482

483

sources than this Instruction when determining e.g. th e content of the term "military objective". The document is available at (4 August 2003). This becomes evident when analyzing section 5D entitl ed "Military Objective" with section 3B entitled "Effect of other Laws" . The former provision reads: "'Military ob jectives' are those potential targets during an armed conflict which, by the ir nature, location, purpose, or use, effectively contribut e to the opposing force's war-fighting or war-sustaining capability and whose total or partial destru ction, capture, or neutralization would constitute a military advantage to the attacker under th e circumstances at the time of the atta ck ". Th e latter provision reads: "No conclusion regarding the app licability or persuasive authority of other bodies of law should be drawn solely from the pr esence, absence, or similarity of particular language in thi s In stru ction as comp ared to other articulations of law". Section 5D is based on art icle 52 (2) of Additional Protocol I, but deviates from that provision in some aspects. Specifically it uses the terminology "war-sustaining" capabilities. This could includ e a wide range of targets , such as, but not limited to , infrastructure and po wer and water supply systems. In addition, the Instruction does not mak e mention of the word "definite" before "mil itary advantage" lowering the threshold for military commanders when att acking a civilian object. Goldsmith, see note 477, 93; similarly Wedgwood, see note 388, 200. The most prominent author holding this view is certainl y R. Kagan, Of Paradise and Power - America and Europe in the Ne w World Order, 2003. But see also J. Bolton, "War and the United States Military: Is there Really ' Law' in Internation al Affairs?", Transnational and Contemporary Problems 10 (2000),1 et seq. It is obvious that statements such as the following from Senator Jesse Helms are not helpful to overcome this gap. "The ICC treaty without a clear U.S. veto [...] will be 'dead on arrival' at the Senate Foreign Relations C ommittee. " B. C rossette, "Helms Vows to Make War on U.N. Court", N ew York Times, 27 March 1998, A9.

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fundamental norms that underlie the international legal landscape, namely equality and accountability'f" At the moment, the ICC has not become fully operational and one can only hope that it will never have to take action as this would either ensure that no atrocities as envisaged by the ICC-Statute have taken place - a prospect that is unlikely to become reality - or that States parties have fulfilled their treaty obligation, i.e. were - according to article 17 of the ICC-Statute - either willing or able to investigate or prosecute the offenders of the most serious crimes. Whether it will be ultimately successful and contribute to world peace 485 or whether "the world will never be the same after the establishment of the International Criminal Court"486 will be a matter of its first cases for which certain scenarios have already been developed.t'" For the time being, it can nevertheless be considered a "gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law" and "an achievement which, only a few years ago, nobody would have thought possible".488

484 But see Lietzau, see note 361, 127; see also the misguided statement by Bolton claiming that the "the [Security] Council is essentially barred from any real role in the ICC's work." J. Bolton, "The Risks and Weaknesses of the International Criminal Court from America's Perspective", Law and Contemporary Problems 64 (2001), 167 et seq. (173). Such a statement is untenable in light of the power to refer a situation to the ICC and the power to suspend any proceedings. 485 B. Ferencz, An International Criminal Court - a Step to World Peace, 1980. 486 M.e. Bassiouni, "Negotiating the Treaty of Rome on the Establishment of an International Criminal Court", Cornell Int'l L. j. 32 (1999),443 (468). 487 P. Bekker! D. Stoelting, "The ICC Prosecutor v. President Medema: Simulated Proceedings before the International Criminal Court", Pepperdine Dispute Resolution Law Journal 2 (2002), 1 et seq.; M. Goldmann/ e. Schneider, "ICC Case Simulation Exercise: Prosecutor v. Five Pilots from Bluelandand Whiteland", German Law Journal 4 (2003), 815et seq. 488 Statement by United Nations Secretary-General Kofi Annan at the Ceremony held at Campidoglio Celebrating the Adoption of the Statute of the International Criminal Court, 18 July 1998, 2. The speech is available at (4 August 2003).

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I. II.

Introduction Organization of the Court 1. The Court 2. The Office of the Prosecutor III. Maxims of the ICC Procedure 1. Fair Trial 2. Prosecution by Public Authority (Officiality Maxim) 3. Accusation Maxim 4. Obligation and Discretion to Prosecute (Legality and Opportunity Maxims) 5. Evidence a. Examination of Facts and Evidence b. Immediacy c. Free Assessment of all Evidence 6. Form a. Public and Oral Hearing b. Efficiency of the Proceeding 7. Cooperation IV. Participants of the ICC Procedure 1. Structure of the ICC Procedure 2. The ICC and the National Courts 3. The Parties a. The Prosecutor aa. The Prosecutor's Functions and Powers to Investigate bb. The Requirement of Objectivity cc. Judicial Review of the Prosecutor's Actions dd . The Functions and Powers of the Prosecutor at Trial b. The Accused c. Parties and Participants of the ICC Procedure 4. Victims

A. von Bogdandy and R. Wolfrum (eds.). Max Planck Yearbook a/United Nations Law. Volume 7.2003,513-552. © 2003 Koninklijke Brill N. V. Printed in the Netherlands.

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Max Planck UNYB 7 (2003) 5. States Parties 6. The UN Security Council Comparison with the Procedure of the ad hoc Tribunals Conclusions

I. Introduction The Rome Statute progressively develops international judicial procedure in criminal matters and, by implication, international procedural law generally. In designing the permanent Court's procedure the international community has confirmed many important choices that the UN Security Council made when it set up the ad hoc Tribunals for the Former Yugoslavia and Rwanda. The legal bases of the Court's procedure are its foundational treaty, the Statute (ICC or Rome Statute),' and the Rules of Procedure and Evidence (RPE).2 The procedure applies across the range of crimes within the jurisdiction of the Court, which guarantees the consistent application of the law.' The Statute defines the procedure of the Court mainly in its Part 5 entitled "Investigation and Prosecution" and in its Part 6 on "The Trial", although the provisions of Part 1 on the exercise of the Court's jurisdiction and on the admissibility of cases are important as is Part 9 of the Statute that deals with cooperation between the Court and the States parties. The Statute's provisions are complemented by the RPE4 and the Regulations of the Court. The RPE spell out many procedural questions that were left to judge-made law under the regime of the ad hoc Tribunals . The RPE of the ad hoc International Criminal Tribunals were the first international procedural and evidentiary codes

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Rome Statute of the International Criminal Court, Doc. A/CONF.183/13 Vol. I. Reprinted in this Volume, see Annex. Rules of Procedure and Evidence, Doc. AlCONF.183/13 Vol. n. And thus, under a classic reading of this formula: N. Luhmann, Das Recht der Gesellschaft , 1993,214 - 238. See article 51 (4) (5) of the Statute. The Explanatory Note to the RPE specifies that, "The Rules of Procedure and Evidence are an instrument for the application of the Rome Statute of the International Criminal Court, to which they are subordinate in all cases.... Direct references to the Statute have been included in the Rules, where appropriate, in order to emphasize the relationship between the Rules and the Rome Statute. ... In all cases, the Rules of Procedure and Evidence should be read in conjunction with and subject to the provisions of the Statute".

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ever adopted and they had to be amended gradually. Under the ICC Statute such judicial rule-making is only marginally possible.> The RPE may be proposed by the Court but must be adopted by the Assembly of States parties (article 51 of the ICC Statute). The purpose of this article is first to analyze the procedure of the Court as it emerges from the said legal bases, for lack of any Court practice at this point in time. The article will start by briefly looking at the organization of the Court (II.). It will then focus on the fundamental policy choices that were made in setting up the Court's procedure (111.), before turning to presenting the resulting structure of the Court procedure and the position of the participants of the procedure (IV.). This will be put in the context of the procedures of the ad hoc Tribunals (V.). The article concludes that this procedure ensures the legitimacy of the Court and also that of the UN Security Council and the States parties to the Rome Statute (VL). The article will thus address two of the criticisms often levied against the ICC: that it actually is counterproductive to the objective of international human rights and humanitarian law enforcement for its chilling effect on states, in particular non parties to the Statute and for its presumed ineffectiveness.

II. Organization of the Court The Statute contains a number of organizational choices that shape the Court's procedure. The organizational design of the Statute allows for the separation and allocation of distinct powers and functions and thus for the working of the Court according to the maxims of the Court's procedure.f

S

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Article 51 (3) of the Statute provides: "After the adoption of the Rules of Procedure and Evidence, in urgent cases where the Rules do not provide for a specific situation before the Court, the judges may, by a two-thirds majority, draw up provisional Rules to be applied until adopted, amended or rejected at the next ordinary or special session of the Assembly of States Parties". Furthermore, the RPE contain an unusual recognition of the concept of judicial precedent. Articl e 21 (2) of the Statute provides that "the Court may apply principles and rules of law as interpreted in its previous decisions". See discu ssion under III.

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1. The Court The ICC is an international organization. The Rome Conference has opted for a system that ensures that the 18 judges making up the Court are independent. The Statute itself specifies the qualifications that the judges must have, detailed provisions on the disqualification of judges (article 41 of the Statute), the removal of judges from the office (article 46), and disciplinary measures (article 47). The RPE further specify the cases and guarantees under which a judge, the Prosecutor, a Deputy Prosecutor, the Registrar and a Deputy Registrar shall be removed from office or shall be subject to disciplinary measures in a case of serious misconduct." The Court's internal organization is functional. The Court is composed of six organs - the Presidency, an Appeals Division, a Trial Division, a Pre-Trial Division, the Office of the Prosecutor, and the Registry (article 34). The Court's judicial function shall be carried out by Chambers (Pre-Trial Chamber, Trial Chamber and Appeals Chambers}? The Trial Chamber renders both the decision on conviction or acquittal and, upon conviction, the sentence. The Assembly of States parties that the Statute provides for is not an organ of the Court but rather a separate institution that has important legislative and administrative but not judicial powers under the Statute.'? The competence of the Assembly of States parties to change both the substantive law (Elements of Crime) and the procedure (RPE) in fact renders the Court more autonomous. The autonomy of a judicial institution relates to the ability of the legislator to change the law it is to apply.'!

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See Rule 24. See article 39. Although the office of the prosecutor is an organ of the Court, it exercises executive rather than judicial functions. Cf. Morrison v. Olson, 487 U.S. 654.

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11

See D.A. Mundis, "The Assembly of States Parties and the Institutional Framework of the International Criminal Court", A]IL 97 (2003), 132 et seq. See N. Luhmann, Legitimation durch Verfahren, 1983. In entrusting the collectivity of the States parties with legislative powers, the Rome Statute follows institutional developments pioneered, i.e., in modern international environmental law. See V. Roben , "Institutional Developments under Modern International Environmental Agreements", Max Plack UNYB 4 (2000), 363 et seq.

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2. The Office of the Prosecutor Article 42 of the Statute provides for the Office of the Prosecutor as an organ of the Court.P The Office is headed by a Prosecutor elected by the Assembly of States parties. P The Prosecutor operates in personal and substantive independence of both the Court and the States parties." It is well known that two tendencies clashed at the Rome ConFerence." Some states'" wanted to grant the power to set investigations and prosecutions in motion to states and the Security Council only; the group of the so-called like-minded countries were advocating the institution of an independent prosecutor capable of initiating proprio motu investigations and prosecutions. The final result was a compromise. First of all, the right to carry out investigations and prosecutions was not left to the authorities of individual states or entrusted to a commission of inquiry or similar bodies. Instead, a prosecutor was envisaged. States had two options: the Nuremberg model, whereby the Prosecutor is an official of the state that has initiated the investigation and prosecution, and is therefore designated by that state and remains under its control, and the Yugoslavia and Rwanda model, whereby the prosecutor is a totally independent body. As an independent and impartial body, the Prosecutor was granted the power to investigate and prosecute ex officio. 17

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15 16 17

See article 42 entitled "The Office of the Prosecutor". Following months of lengthy consultations, the States parties to the Rome Statute elected at the resumed session of the Assembly of States partie s, 2124 April 2003, Mr. Luis Moreno Ocampo of Argentina as prosecutor of the ICC. See Statement for the Press by the President of the Assembly of States Parties to the Rome Statute of the International Criminal Court, HRH Prince Zeid Raad A1 Hussein. But see A . Klip, "State Security and Obtaining Evidence Independently by the Defence", in: H. Roggemann/ P. Sarcevic (eds), National Security and International CriminalJustice, 2003,127 et seq. (131). A. Cassese, "The Statute of the International Criminal Court: Some Preliminary Reflections", EJIL 10 (1999), 144 et seq. (161). Including the United States, China and others. Rule 11 RPE secures the independence in detail. According to this Rule, the Prosecutor may delegate his or her functions exclusively to full staff members of his office but not to so-called gratis personnel within the meaning of article 44 (4) offered by States parties, inter-governmental or non-governmental organizations to the Prosecutor's office.

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III. Maxims of the ICC Procedure In designing the Court procedure, States parties had to make a number of fundamental policy choices concerning the initiation of a process, its conduct and form, and evidence. These choices may be best analyzed through the grid of procedural maxims (or principles) that each denotate certain conceptual choices that a legislator faces in designing a code of criminal procedure. By opting for each maxim the States parties at Rome necessarily rejected an alternative conception of the Court's procedure.

1. Fair Trial The fair trial principle is part of a substantive understanding of the rule of law that comprises fundamental rights. For a trial to be fair, the accused needs to be a subject of the process, not merely its object. He or she has to have the procedural rights and remedies meaningfully to influence the trial, both with respect to evidence and to matters of law. The principle of equality of arms, that is often counted among the relevant principles, is not absolute but relative to the structure of the procedure.I" Fair trial contains several elements specifically important to the defence before International Criminal Tribunals. These include the right to a hearing, assistance of learned counsel, adequate time and facilities for the defence preparations, cross-examination of prosecution witnesses and examination of one's own witnesses. As a legal norm, fair trial is first of all a general standard in need of concretization. Its foremost addressee is the legislator. In interpreting and applying their procedure, courts and tribunals have to ensure that the accused receives a trial that is fair overall. Because of this normative quality of the fair trial principle, it allows judicial oversight of whether a trial has been conducted according to the rule of law. Fair trial is a fundamental human right enshrined in numerous international conventions and part of general international law.!? As such it is binding on the States parties to the Rome Statute. Consistently with this situation, the Statute contains the fair trial principle positioned prominently in article 67, close to the opening of Part 5 of the Statute

18 19

See under IV. 1. See R. Wolfrum/ D. Weissbrodt, (eds), The Right to a Fair Trial, 1998.

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on the trial. 20 States parties were bound both to respect the fair trial requirements in designing the Court's procedure and to include it as a positive norm relevant for the Court's operations.U The Court's organs, namely its judicial divisions and the Prosecutor, have to interpret and apply the Statute and the RPE accordingly. The provision of article 69 (4) of the Statute that the Court may rule on the relevance or admissibility of any evidence on the basis of fair trial understands the principle in this sense. Consistently with the understanding of fair trial as a standard for the overall conduct of a trial, the Statute provides that the accused, or the Prosecutor on his or her behalf, may appeal the decision or the sentence of the Trial Camber on any ground that affects the fairness or reliability of the proceedings or decision (article 81 (1) (b) (iv) of the Statute). Decision or sentence may be reversed if the Appeals Chamber considers that the proceedings appealed from were unfair in a way that affected the reliability of the decision or the sentence (article 83 (2) of the Statute). Beyond the individual rights protection, the guarantee of the fairness of the Court's procedure has a second function. It assures states that their action in the interests of the enforcement of international standards pursuant to a UN Security Council mandate will be limited only to the extent prescribed by the applicable international law standardsv rather than having to fear that any service members be prosecuted unfairly by the international court. The fair trial requirements as implemented by the ICC Statute are thus international democracy in a nutshell. They demonstrate that the interest of the States parties supporting the Court is not necessarily directed at efficiency but rather at fairly trying individuals accused of the atrocities that shock the international conscience. This emphasis on procedural fairness implies that, for procedural reasons, a person considered guilty by many may go free. The idea conveyed is thus that the 20

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22

See arts 21 ICTY Statute, 14 ICPR, 6 ECHR. The applicable rationale here has been most succinctly articulated by the European Court of Human Rights in Strasbourg, which is charged with upholding the European Convention on Human Rights . The Court says that the States parties to the Convention cannot free themselves from their obligations under the Convention by setting up international organizations and transferring powers onto them that would otherwise be exercised at the national level. As a consequence, the Court asserts jurisdiction over the acts of the international organization or at least over its foundational (internationallaw) act. This includes the European Union. See Matthews v. United Kingdom, Judgment of 18 February 1999. Chief among them the laws of war.

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rule of majority and its power is limited by individual rights. Clearly, the human rights guarantees in the trial also strongly reflect on the pretrial procedure and the legitimacy and - by extension of the effectiveness - of the powers that the Court may exercise at that stage.P

2. Prosecution by Public Authority (Officiality Maxim) Under the officiality maxim, it is exclusively for the competent public authority to initiate and conduct criminal proceedings. Private rights of criminal action do not exist. The Statute vests the Court with the authority to prosecute the crimes enunciated in article 5 of the Statute. The Prosecutor itself may start an investigation (article 15 (3) of the Statute). This is not thwarted whenever the Security Council decides, under article 16 of the Statute, to request the Court to defer any investigation or prosecution for a period of 12 months or a shorter period. For the powers of the Security Council are not unfettered. The request may only be made by a resolution adopted under Chapter VII of the UN Charter. Hence the Security Council may request the Court to defer his activity only if it explicitly decides that continuation of his investigation or prosecution may amount to a threat to the peace. The reference in article 16 of the Statute to Chapter VII of the UN Charter indicates that the Security Council acts in a specific capacity that does not interfere with the position of the Prosecutor within the judicial machinery that is the ICC. This does not mean that the international court is vested with the exclusive authority to prosecute these crimes. In fact, the Statute's principle of complementarity indicates that this authority is shared between the Court and the States parties. Investigations may be initiated at the request of a state, but then the Prosecutor must immediately notify all other states, so as to enable those which intend to exercise their jurisdiction to rely upon the principle of complementarity. Investigations may be initiated by the prosecutor but a Pre-Trial Chamber must authorize them and they must be notified to all states. Investigations may be initiated at the request of the Security Council, and in this case the intervention of the Pre-Trial Chamber is not required nor is notification to all states. Clearly, however, the authority to prosecute resides with public authority, be it international or national, to the exclusion of private in23

On the legitimacy function of the ICC procedure see the discussion under V.

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dividuals. Private individuals, in particular the victims of atrocities, may not initiate any proceedings and they may also not challenge the decision of the Prosecutor not to initiate an investigation based on information provided by private individuals. The Court is designed to prosecute the most serious crimes of international concern only, crimes that transcend the personal interests of individuals.

3. Accusation Maxim Under the pure inquisitorial system of criminal justice, the (trial) court itself commences and conducts the investigation of the case. The sale participants in the criminal procedure are the court investigating and deciding the case and the accused. Instituting a prosecutor and making the commencement of the trial depend on his or her charges (accusation) combines the effectiveness of the official prosecution of crimes and the fairness of the pure adversarial system. Protection of the accused is ensured if two independent organs need to reach the conclusion that the accused is guilty of the crimes under investigation. The Statute, without exception, realizes the accusation maxim. Part 5 of the Statute contains the two important hallmarks of the maxim: the trial of an accused depends on the Prosecutor investigating the case and formally bringing charges against the accused. The Statute allocates the investigative function to the Prosecutor exclusively. States parties and the UN Security Council may request the Prosecutor to initiate an investigation (article 13 of the Statute (a) and (b».24 But this power of the States parties and of the UN Security Council is limited. In the instance of such referral, it remains for the Prosecutor to assess, in full independence, whether there is a reasonable basis to commence the investigation (article 53 (1) of the Statute).25 This is the conclusion one arrives at when looking at article 53 (3) which provides that the Pre-Trial Chamber upon application of the Security Council or the state may review the decision of the Prosecutor not to 24

25

Article 14 of the Statute clarifies that the State party may refer the situation to the Prosecutor for the purpose of determining whether one or more persons should be charged with the commission of such crimes . The same is true for a referral by the Security Council. See F. Hoffmeister! S. Knoke, "D as Vorermittlungsverfahren vor dern In ternationalen Strafgerichtshof - Prufstein fur die Effektivitat der neuen Gerichtsbarkeit im Volkerstrafrecht", ZaaRV 59 (1999), 785 et seq.

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proceed with an investigation. The Statute also ensures the continuing exclusive control of the Prosecutor over the investigation by force of article 53 (2) of the Statute. Under this provision, the Prosecutor may decide that there is not a sufficient basis for a prosecution at any point after the commencement of the investigation. The Statute therefore assigns to the Prosecutor the role of an independent and impartial organ responsible for seeing to it that the interests of justice and the rule of law prevail. The Prosecutor may thus bar any initiative of states or even any referral by the Security Council which may prove politically motivated and contrary to the interests of justice. Article 56 (3) (a) of the Statute on the power of the Pre-Trial Chamber to take certain investigative measures on its initiative is only a seeming exception. The PreTrial Chamber asserts a function as a matter of urgency that the Statute in principle assigns to the Prosecutor. Further to the results of the investigation, the Prosecutor needs to charge the accused with specific crimes. This manifestation of the principle of accusation in the Statute entails that the charges as confirmed by the Pre-Trial Chamber at the confirmation hearing are binding for the Trial Chamber. The Trial Chamber may not expand the trial to other persons than the accused and it may not expand it to other crimes of the accused. This is confirmed by article 61 (9) of the Statute, which provides for amendment of the charges confirmed up to the start of the trial. The Court needs to confirm the charges and to commit the accused to trial, thus marking the transfer of control over the proceedings from the prosecutor to the Court. In a direct expression of this transfer of control, article 61 (9) of the Statute requires the permission of the Trial Chamber for the Prosecutor to withdraw the charges after commencement of the trial. Hence, the Prosecutor, the Pre-Trial Chamber and the Trial Chamber independently of each other need to reach the conclusion that the accused is guilty for there to be a conviction.

4. Obligation and Discretion to Prosecute (Legality and Opportunity Maxims) The legality maxim provides that the prosecution is under a strict legal obligation to investigate and to charge each crime that has been committed. The conceptual counterpart of this maxim would grant discretion to the prosecution not to investigate or not to bring charges even if there is a high probability that the accused will be convicted of a crime if tried (opportunity maxim). The legality maxim is often thought to be

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the expression of the rule of law, which would encompass enforcing the law whenever it is violated, and in equality before the law, which would require that equal treatment of the perpetrators of crimes necessitates their equal prosecution. A separate function of the legality maxim is to ensure the independence of the Prosecutor, whose legal obligation to prosecute shields him or her from political pressure not to take certain cases. But the obligation to prosecute crimes cannot be absolute. The case may be of a nature that the prosecution would disproportionately impact upon the accused or that the prosecution would inefficiently allocate the sparse resources of the criminal justice system. The Statute provides for a system of prosecution that may be best described as based on the legality maxim tempered by substantial opportunity elements.i"

The Statute distinguishes between the commencement of an investigation and its conduct. According to article 13 of the Statute, the referral of a case by the UN Security Council or a State party and the initiation of an investigation proprio motu by the Prosecutor will trigger the Court's jurisdiction. Article 53 (1) of the Statute provides that in such case the Prosecutor shall commence the investigation unless he or she concludes that there is no reasonable basis to do so. No reasonable basis exists if, at this point, (a) the information available provides no reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed, (b) the case is or would be inadmissible, and (c) taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. The decision of the Prosecutor not to proceed with the investigation is subject to review by the Pre-Trial Chamber (article 53 (3) (a) of the Statute). Once the investigation is commenced, the Prosecutor may decide not to proceed with it under the conditions set forth in article 53 (2) of the Statute. Article 53 clearly states that there is an obligation to prosecute any case that the Prosecutor is seized of by a state or by the Security Council or of which the Prosecutor takes cognizance proprio motu. The Prosecutor shall initiate proceedings unless the Court is without jurisdiction over the crime, the case is inadmissible or not reasonably founded on the facts, article 53 (1) (a), (b) and article 53 (2) (a), (b) of the Statute. The Statute then deals in detail with, first, the admissibility of the case, i.e. the substantive standards, the notification requirements and 26

See G. Dahm/ J. Delbruck/ R.Wolfrum, Valkerrecht, Volume II3, 2nd edition, 2002, § 199.

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the preliminary rulings and other judicial control procedures (arts 17, 18 and 19 of the Statutej-? Article 19 of the Statute sets forth the procedure for separately challenging the Court's jurisdicrion.P This obligation to prosecute is tempered by the important article 53 (1) (c) and article 53 (2) (c) of the Statute which provide that the Prosecutor need not initiate an investigation if he or she reaches the conclusion that "Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice". This is essentially a discretionary decision that needs to balance interests and to prioritize the overall limited resources of time and personnel. The Statute allocates this power to both the Prosecutor and the Pre-Trial Chamber.I? For the Pre-Trial Chamber may review the Prosecutor's discretionary decision not to proceed with an investigation on its own initiative.P In contrast, any review of the Prosecutor's decision not to commence or not to proceed with an investigation because of lack of substantial basis,

27

See M.H. Arsanjani, "Reflections on the Jurisdiction and Trigger-Mechanism of the International Criminal Court", in: H. von Hebel (ed.), Reflections on the International Criminal Court, Essays in Honour of Adriaan Bos, 1999,57 et seq. (68-70). 28 Any challenge to the jurisdiction of the Court or the admissibility of a case shall take place prior to or at the commencement of the trial (article 19 (4) of the Statute) . Prior to the confirmation of the charges, challenges to the admissibility of a case or challenges to the jurisdiction of the Court shall be referred to the Pre-Trial Chamber, thereafter to the Trial Chamber (article 19 (6) of the Statute) . Challenges to the jurisdiction of the Court or the admissibility after the commencement of the trial require the leave of the Court (Rule 133 RPE). 29 See Rule 110 (2) RPE pursuant to which the decision of the Pre-Trial Chamber not to confirm the decision taken by the Prosecutor under article 53 (1) (c) or (2) (c) of the Statute has the effect that he or she "shall" proceed with the investigation or prosecution. This is different from the effect of the Pre-Trial Chamber's decision under article 53 (3) (a) of the Statute as defined in Rule 108 (2) RPE. Under this latter Rule, the Pre-Trial Chamber may request the Prosecutor to review his or her decision not to initiate an investigation or not to prosecute. 30 Article 53 (2) of the Statute obligates the Prosecutor to inform the Pre-Trial Chamber of the decision not to proceed with an investigation that has been commenced. Rule 105 (4) RPE provides that the Prosecutor shall inform the Pre-Trial Chamber in writing of his or her decision not to commence the investigation if this decision is taken on the basis of article 53 (1) (c) of the Statute.

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lack of jurisdiction or inadmissibility can take place only upon application by a party that has standing. The obligation to prosecute any crime over which the Court is exercising its jurisdiction does not suffer an exception because of article 15 (4) of the Statute . Under this provision, the Pre-Trial Chamber needs to authorize the commencement of the investigation initiated proprio motu by the Prosecutor.'! But this serves to confirm judicially that the pre-conditions of a reasonable basis, jurisdiction and admissibility for prosecution of a case are actually met. Under the Statute, the legality and the opportunity maxims operate on the international and the national levels. The Statute acknowledges that the states' prosecution of the crimes with which the Statute is concerned enjoys priority over the international prosecution.F However, states have to actively assert their priority jurisdiction. Thus, States parties have to prosecute or to hand over the suspect to prosecution by the Court. Their discretion to choose between these two alternatives is unfettered under the Statute; the Statute does not set forth any further requirements in this respect and neither do the RPE .33 Article 17 of the Statute provides that the case shall be inadmissible where it is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is unwilling or unable genuinely to carry out the investigation. Over the course of the investigation, the case needs to be admissible for the investigation to proceed. The Prosecutor has several avenues to clarify the admissibility of a case. This issue will be considered by the Pre-Trial Chamber when it is asked to authorize an investigation initiated proprio motu (article 15 (4) of the Statute). Upon application by the Prosecutor, the Pre-Trial Chamber may also authorize an investigation started by a referral from a state if that or another state has requested the Prosecutor to defer to it within one month of receipt of the notification of the referral by a state (article 18 (2) 2nd sentence of the Statute). The Prosecutor may also review a deferral after six months if the state is unwilling or unable to carry out the investigation and com-

31

32

33

The authorization of the investigation initiated proprio motu needs to be obtained prior to the notification of states of the investigation which article 18 (1) of the Statute imposes on the Prosecutor. See Cassese, see note 15, 158; N . Gillhoff, "National State and International Criminal Justice - How much Sovereignty has to be transferred? ", in: Roggemann/ Sarcevic, see note 14, 91. Rule 51 RPE permits a State party challenging the admissibility of a case to introduce evidence as to the functioning of its court system.

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mence his or her own investigation (article 18 (3) of the Statute).34 After the confirmation of the charges, the admissibility of the case remains open to challenge. Under article 19 (4) the admissibility of a case may be challenged only once. The challenge shall take place prior to or at the commencement of the trial. A state is not barred from bringing the challenge because it neglected to request the Prosecutor to defer to the state's investigation pursuant to article 18 (2) of the Statute. The Statute seeks to ensure that the competent jurisdiction to prosecute and to try be prescribed by law as precisely as possible. This involves the Court's jurisdiction, the determination of the competent division of the Court, and the designation of the concrete Chamber that is to make the ruling. The Court shall satisfy itself that it has jurisdiction in any case brought before it (article 19). Article 19 of the Statute provides for a special procedure to judicially control the jurisdiction of the Court or the admissibility of a case. The jurisdiction of the Court may be challenged by the accused and by states having jurisdiction (article 19 (2)). The Prosecutor's role as an objective administrator of justice is put into relief by the fact that he or she may seek a ruling. The Statute provides for the Pre-Trial Chamber to rule on any challenge prior to the confirmation of the charges while the Trial Chamber is competent after this point in time. Decisions of either Chamber may be appealed to the Appeals Chamber in accordance with article 82 of the Statute. The Statute puts the decision on the precise composition of the competent Chambers into the hands of the Presidency.

5. Evidence The Court's evidence procedure is autonomous from state procedures.l"

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The Statute does not say explicitly that the Prosecutor's decision to commence the investigation pursuant to article 18 (3) needs authorization by the Pre-Trial Chamber. However, article 18 (2) 2nd sentence on the authorization by the Pre-Trial Chamber for an investigation to commence in spite of deferral request would apply by analogy to article 18 (3). At any rate, any investigation initiated by the Prosecutor proprio motu under arts 13 (c) and 15 of the Statute needs to be authorized by the Pre-Trial Chamber. Rule 63 (5) provides that the Chambers shall not apply national laws governing evidence, other than in accordance with article 21.

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a. Examination of Facts and Evidence As a matter of principle, a criminal justice system may impose on the courts the obligation to seek to establish the facts of the case pursuant to the objective of substantive truthfulness. The counter-model is satisfied with the mere formal truth of the facts that have been established pursuant to an overall trial based on the equality of arms of prosecution and the accused. The Statute does not contain any comprehensive obligation for the Trial- or the Pre-Trial Chamber to establish the facts through its own investigation of the case. Article 64 (2) of the Statute on the functions and powers of the Trial Chamber provides that the Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses. But, in performing its functions prior to trial or during the course of trial, the Trial Chamber may, as necessary, order the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties (article 64 (6) (d) of the Statute). Article 69 (3) of the Statute on evidence says that the Court shall have the authority to request of the parties the submission of all evidence that it "considers necessary for the determination of the truth". This is corroborated by the conception of the Prosecutor, an organ of the Court, as an impartial truth seeker or organ of justice-" These provisions, and in particular article 69 (3) of the Statute, obligate the Trial Chamber to base its decision on the objective or substantive truth not on the formal truth that emerges from the action and initiative of the parties. Consistent with this analysis, the Court is not bound by agreements between the parties on evidentiary issues. Under Rule 69 RPE there can be agreement between the Prosecutor and the defence that a particular piece of evidence is not contested. Accordingly, a Trial Chamber may consider such alleged fact proven. But the Chamber may also require a more complete presentation if it considers it to be in the interests of justice, in particular the interests of the victims. The Trial Chamber is also not bound by a guilty plea by the accused .

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See article 54 (1) (a) of the Statute, which provides that "[i]n order to establish the truth", the Prosecutor shall "extend the investigation to cover all facts and evidence related to an assessment of whether there is criminal responsibility under this Statute, and , in doing so, investigate incriminating and exonerating circumstances equally".

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The Statute thus reflects a certain understanding of justice. Equality is the core content of the contingency formula justice. A system that runs its internal operations by way of pieces of information always has several options for doing so; the system's choice is contingent and justice is the contingency formula of the legal system.V b. Immediacy The Trial Chamber shall take immediate cognizance of all evidence that it will base the judgment on. The Statute provides for three different methods of taking the testimony of witnesses. First, the witness testifies in person before the Court. Second, evidence may be given by means of testimony through video or audio linkage in a place outside the courtroom where the witness is present. Finally, witness depositions may be taken outside the courtroom. The use of such depositions as evidence is subject to restrictions. A preference should be entered for hearing witnesses in full court since that will allow the Court to form an opinion on the witness' reliability. The presence of the witness at the trial affords the best guarantee for respecting the accused's right to examine witnesses against him, as enshrined in article 67 (1) (e) of the Statute. c. Free Assessment of all Evidence Article 66 of the Statute defines the general standard of proof. The accused must be proved guilty beyond reasonable doubt. The burden of proof is on the Court. A direct consequence is the in dubio principle under which a fact about which the Trial Chamber remains uncertain needs to be considered not proved. The Trial Chamber is free in the assessment of the evidence submitted by the parties within the confines of the strict evidentiary norms that the Statute and the RPE provide for. The rules of evidence shall apply in proceedings before all Chambers. A Chamber shall have the authority to assess freely all evidence submitted in order to determine its relevance or admissibility (Rule 63 (2) RPE). Corroboration shall not be imposed (Rule 63 (4) RPE). This does not free the Chamber from the obligation to substantiate its findings. The Chamber's judicial assessment does not cover scientific questions. Certain evidence may not be admissible for reasons considered to be of superior interests. The privilege of the accused against self-incrimination is chief among them (article 67 (1) (g) of the Statute). The admissibility 37

Luhmann, see note 3, 222-226.

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of evidence obtained illegally is subject to the conditions set out in article 69 (7) of the Statute.

6. Form a. Public and Oral Hearing The Statute prescribes public and oral hearings in the presence of the accused for the important stages of a proceeding (arts 61 (1), 63,64 (7), 67 (1) of the Statute). This concerns the confirmation hearing and the trial itself. The Statute foresees a proceeding in absentia for the confirmation of the charges before trial. The Pre-Trial Chamber may, upon request of the Prosecutor or on its own motion, hold trial in the absence of the person charged to confirm the charges on which the Prosecutor intends to seek trial when the person has waived his or her right to be present; or fled or cannot be found and all reasonable steps have been taken to secure his or her appearance before the Court and to inform the person of the charges and that a hearing to confirm those charges will be held (article 61 (2) of the Statute).38 In that case, the person shall be represented by counsel where the Pre-Trial Chamber determines that it is in the interest of justice. The importance of the principle of a public and oral hearing is confirmed by the narrow conditions under which proceedings in camera are permissible.t? The Statute does not prescribe hearings for the decisions that the Court may have to take during the Pre-Trial phase of the Court's procedure. This includes the authorization of the commencement of an investigation (article 15 (4) of the Statute) and the review of the Prosecutor's decision not to proceed with an investigation (article 53 (3) of the Statute). The Chamber may hold a hearing.t?

38 39

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The procedure to be followed is set out in detail in Rules 123-125 RPE. See arts 64 (7), 68 of the Statute. Under Rule 72 RPE there may be an in camera procedure to consider the relevance or admissibility of evidence with respect to alleged crimes of sexual violence. Rule 50 on the procedure for authorization of the commencement of the investigation; Rule 55 on proceedings under article 18 (2); Rule 58 on proceedings under article 19.

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b. Efficiency of the Proceeding The Court is to conduct the process efficiently. Both the Statute and the RPE leave ample room for the competent Chamber to decide on the procedure in each case at hand taking into account the requirements of justice and speediness. In the absence of specific guidance by the Statute, the RPE leave it to the discretion of the competent Chamber to decide on the procedure to be followed .

7. Cooperation A maxim of evidence specific to the Rome Statute is the cooperation of the ICC with the States parties to the Statute. There are two basic models of cooperation. First, the inter-state model, whereby the relations between the international court and states are shaped on the pattern of inter-state judicial cooperation in criminal matters. The second model could be termed supra-state. Under this model, the international court is empowered to issue binding orders to states and, in case of noncompliance, may set in motion enforcement procedures. The international court is given the final say on evidentiary matters: states are not allowed to withhold evidence on grounds of self-defined national interests or to refuse to execute arrest warrants or other court orders . The ICTY and ICTR based on the Chapter VII authority of the Security Council follow this coercive model through judge-made rules on the general bases of their statutes." The specific practice as it relates to arrest warrants and orders for transfer of an accused, requests for assistance, subpoenas to whom they may be addressed, the required breadth and specificity, the penalties for non-cooperation, were left to the judges to define. In contrast, the ICC follows a largely state-centred approach. In the case of the ICC, state cooperation is crucial to the effectiveness of the judicial process.t- The decisions, orders and requests of international criminal courts can only be enforced by others, namely national authorities. The Court's enforcement jurisdiction is not limited to the State party having delegated its territorial or personal jurisdiction to the ICC. Rather, it extends to all States parties. States parties have to

41

42

Article 29 lCTY Statute and article 28 ICTR Statute. Cassese, see note 15, 164-167.

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cooperate.P They have to provide for proper forms of cooperation under their respective national laws. In any event, the Court's requests for cooperation are self-executing and are to be complied with (article 93 of the Statute). The Statute assumes that the taking of evidence, execution of summons and warrants is to be undertaken by state officials. In the event of non-cooperation, article 87 (7) provides that "the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council"." A crucial provision for the effectiveness of the Court's procedure is article 90 of the Statute on competing extradition requests. The provision distinguishes between several scenarios. If the requesting state is a State party, the requested state shall give priority to the request from the Court, (article 90 (2». If the requesting state is not a State party the Statute provides for a general priority of the Court's request (article 90 (4» . If there is an international extradition treaty and thus formally conflicting international law obligations, then the requested state has to balance the interests involved, (article 90 (6) 2nd sentence). This is the traditional rule for resolving conflicting extradition requests under the general international law of judicial cooperation. The Statute does not specify a hierarchy in case of competing requests for extradition. The Court's request thus does not automatically prevail. Under article 90 (6), (7) of the Statute, a State party may decide between compliance with the request from the Court and compliance with the request from a non-party State with which the State party has entered into an extradition treaty. The Court may take preliminary measures.P A crucial point of the ICC procedure, particularly given the nature of the cases that come under the jurisdiction of the Court is the bar of national security to any taking of evidence." A direct consequence of the ICC's 43

44

45

46

Nothing stands in the way, however, for the Security Council to consider an instance of non-cooperation a threat to international peace and security even if the Council had not previously referred the case to the Court. First enunciated by the ICTY in the Appeals Chamber decision in Blaskic (subpoena) Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18July 1997, Appeals Chamber. The Statute and the RPE do not specify whether these preliminary requests are binding on the States parti es. In analogy to the argumentation of the ICJ in the LaGrand case the answer must be in the affirmative. See article 72 of the Statute on "Protection of national security information "; O . Triffterer, "Security Interests of the Community of States, Basis and Justification of an International Criminal Ju risdiction versus Protec-

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presumption that the primary responsibility for the prosecution of the crimes that fall under the Statute, is that the Statute imposes an obligation on the Court to assist national authorities.

IV. Participants of the ICC Procedure These maxims yield the structure and the position of the participants of the ICC procedure.

1. Structure of the ICC Procedure The Statute marks three distinct procedural phases: pre-trial, trial, and appeal. The pre-trial phase may be subdivided in two phases, the investigation and the confirmation hearing.t/ The end of the pre-trial phase is marked by the decision of the Prosecutor to bring formal charges or not at the close of the investigation. The decision not to proceed with the investigation is solely within the competence of the Prosecutor. No confirmation by the Pre-Trial Chamber is needed. The decision to discontinue the case does not have res iudicata effect (article 53 (4) of the Statute) . The judicial review procedures provided at this stage primarily have a subjective purpose. They serve to enforce the rights that each State party and the Prosecutor have to trigger an investigation by the Prosecutor. For there to be enforcement of the objective legality maxim, the Statute would have had to grant standing to each State party. In case the investigation has not led to discontinuation of the case, article 61 of the Statute prescribes a confirmation hearing the object of which being the judicial confirmation of the charges to be brought by the Prosecutor. This intermediate procedure chiefly serves a control function. The separate judicial decision opens up the chance for the accused to be spared the main trial and the stigma it carries. In line with this purpose, the public may be excluded from the hearing . The Statute allocates the function to the Pre-Trial Chamber so that the Trial Chamber will not be

47

tion of National Security Information, Article 72 Rome Statute", in: Roggemannl Sarcevic, see note 14, 53. In order to emphasize the importance of the confirmation hearing one may speak of an intermediate phase.

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prejudiced for the actual tria1. 48 For the accused's procedural position, the importance of the intermediate proceeding lies in the fact that he or she will receive a copy of the document containing the charges, be informed of the Prosecutor's evidence and thereafter have the chance to present fresh evidence in his or her defence. In deciding whether to confirm the charges, the Pre-Trial Chamber shall apply a standard obviously higher than the reasonable basis test that needs to be met for the investigation to proceed: there needs to be sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged (article 61 (7) of the Statute). The Pre-Trial Chamber needs to be convinced of the Court's jurisdiction and the admissibility of the case. Upon confirmation of the charges, the Pre-Trial Chamber uno actu commits the accused to trial. The President of the Court will then designate the Trial Chamber for the case. It corresponds to the spirit of the competence of the Pre-Trial Chamber for the confirmation hearing that the actual Trial Chamber designated for the case does not comprise any judge that sat on the Pre-Trial Chamber. The confirmation of the charges marks the transfer of competence from the Pre-Trial Chamber to the Trial Chamber Division of the Court to rule on preliminary issues of jurisdiction and admissibility (article 19 (6) of the Statute) . The decision of the Pre-Trial Chamber to confirm the charges is not subject to appeal. The decision not to confirm the charges may be appealed by the Prosecutor. Trial is mandatory. For the structure of the trial phase, a crucial first juncture is the decision to have a unitary process where the court (the Trial Chamber) decides both on the verdict and, in case of a conviction, the sentence, on the basis of a single hearing. The overall structure is rather modelled on the civil law system insofar as the trial and sentencing phases are integrated.t? There is no separate sentencing phase. The Court's procedure 48

49

Under the German criminal justice system, the trial court is competent to confirm the charges but only the professional judges not the jurors will sit on the court for this purpose. While in some criminal justice systems in the United States the same judge who tries a case is likely to have reviewed the minutes of the prior grand jury proceeding, the evidence presented to the grand jury is usually only the bare minimum necessary to obtain the indictment. Although there may have been hearings before the trial, such hearings generally relate to the admissibility of evidence, and they rarely permit or require the attorneys to explore the merits of the substantive case. The ITCY originally followed the different model of designing the trial and the sentencing phases as separate procedural phases.

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under the ICC combines structural elements of the inquisitorial and the adversarial processes. 50 The inquisitorial process puts both the investigation and the actual conduct of the trial into the hands of the court. In the two principal models of criminal justice, the adversarial and the inquisitorial, the role of the judge differs. The adversarial model, exemplified by the American and British systems, assumes that justice is best served by giving the prosecutor and defense counsel primary responsibility for the development and presentation of their own cases. In this model, the judge is a neutral and detached magistrate whose function is to mediate and resolve the opposing parties' inevitable conflicts. Reacting to both the legal and evidentiary presentations and contentions of the parties, the judge determines the law and, when required, finds the facts. In the inquisitorial model, exemplified by the French and German criminal justice systems, the judge has primary responsibility not only for determining the relevant facts but also for gathering and eliciting those facts. The parties assist the judge in this task, but their role is only secondary and supportive. 51 The different approaches of the two models are most striking in the context of a trial. In an inquisitorial trial, the initiative for both calling and questioning witnesses lies with the judge, who relies on a dossier compiled (at least theoretically) under judicial supervision in the pre-trial investigative and charging phases. The prosecutor and defense counsel aid the judge in developing the facts. In an adversarial trial, each side calls its own witnesses and vigorously cross-examines those called by the other. The judge supervises the presentations of the parties, assuring that the trial is fair and that it adheres to the applicable rules of procedure and evidence. If the trial is by jury, the judge pro-

50

51

On the contrasts between the inquisitorial and adversarial (or accusatorial) models, see A.S. Goldstein/ M. Marcus, "The Myth of Judicial Supervision in 'Three Inquisitorial' Systems: France, Italy and Germany", Yale L. j. 87 (1977),240 et seq. (242-243) note 7, and the literature cited therein. In 1989 Italy abandoned its inquisitorial system in favor of an adversarial one. See L.S. Fassler, "The Italian Penal Procedure Code: An Adversarial System of Criminal Procedure in Continental Europe", Colum j. Transnat'l L. 29 (1991),245 et seq. There is substantial literature though detailing that in these systems, too, the use of practical legal and extra-legal compromises which permit shortcuts to full-blown fact-finding at trial and which substantially limit judicial control of the investigative, pre-trial and trial process. See ].H. Langbein/ L.L. Weinreb, "Continental Criminal Procedure: Myth and Reality", Yale L.]. 87 (1978),1549 et seq.

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vides the jury with legal guidance, and the fact-finder - whether the judge or jury - determines the verdict based solely upon the evidence presented by the opposing parties. Without a dossier or its equivalent, the judge in the adversarial system - like the jury - usually knows little more than the broad outlines of the evidence until it is presented during the trial. The differences between the inquisitorial and adversarial models are equally evident in their attitude toward the disposal of cases without trial. At least as a theoretical matter, the inquisitorial model requires that every case receives a full judicial inquiry and that the disposition of the case be whatever the facts so found demand. It does not permit a compromise in which a defendant's admissions and an agreed upon disposition substitute for a trial and verdict. By contrast, the reliance the adversarial model places upon the parties to protect and advance their respective positions makes permissible, and even desirable, an outcome upon which they can mutually agree through the guilty plea and plea bargaining. It is clear, however, that in order to function effectively, a system based on either model must assure that the model's assumptions have some basis in fact and, to the extent that they do not, that some compensation is made for the inadequacies of court or counsel. The effectiveness of the inquisitorial process, however, is outweighed by the danger that the court will be psychologically disposed to lean towards a guilty verdict. The pure adversarial model where the investigation is left to the parties and the court's role is limited to leading the proceeding, cannot ensure that the verdict is based on substantive factual truth as opposed to purely procedural factual truth. In an adversarial system, on the other hand, if one or both of the parties are not effective advocates, a judge seeking to be "neutral and detached" might fail to take a more active role in the proceedings. Thus, important factual or legal aspects of the case, favoring either or both sides, might remain inadequately explored or even entirely undeveloped. The ICC procedure is structured on the adversarial process model but contains such substantial elements of the inquisitorial model that it yields a mixed process system. The Statute follows the adversarial process model by allocating the tasks of investigation and actual trial to two different bodies, i.e. the Prosecutor and the Court (the Pre-Trial Chamber). This section will examine to what extent the ICC procedure limits the judge to the reactive role contemplated by the adversarial model, and it will examine whether and how judicial intervention may compensate for the failures of the parties to play their assigned roles ade-

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quately in a particular case.52 The main structural provision of the Statute of the trial phase is contained in article 64 (8) (b). This provision defines the court's role at the trial. It gives the presiding judge of the Trial Chamber the task of giving directions for the conduct of proceedings. Only if the presiding judge does not give directions under article 64 (8) of the Statute, the Prosecutor and the defense shall agree on the order and manner in which the evidence shall be submitted to the Trial Chamber (Rule 140 RPE). The Trial Chamber is not charged with examining the case and raising relevant evidence. Rather the parties, the Prosecutor and the accused are to submit the evidence supporting their case. The procedure is thus adversarial in that the Prosecutor and the accused control the proceeding including the presentation of evidence at trial. But the adversarial system is strongly attenuated by two structural elements. First is the role that the Statute assigns to the Court. The court does not examine the case in order to assess whether there is criminal responsibility. But it gives the court powers that preclude control of the parties over the facts and evidence. Chief among these is the power of the Court to request the parties to provide additional evidence and the power of the court to block any evidentiary understandings of 52

Throughout the American criminal justice system, the principles of the adversarial model are respected by the assumption that at trial the prosecutor and the defense attorney can themselves best pre sent the opposing views of fact and law. On the one hand, trial and appellate rules generally uphold convictions even if they result from defense strategies that seem, at least in retrospect, to have been unhelpful to the defendant's case. On the other hand, convictions are reversed in which the court has unnecessarily intervened in the course of the trial. In some cases, however, judicial intervention is deemed necessary either to enhan ce the truth-seeking process or to protect the accused's right to an effective defense. Certain state systems recognize a more active role to the judge. The New York Court of Appeals, for instance, has recognized a variety of situations in which judicial intervention is appropriate: "when it clearly appears to the judge that for one reason or another the case is not being presented intelligibly to the jury, the judge is not required to remain silent. On the contrary, the judge may, by questions to a witne ss, elicit relevant and important facts". A trial judge may "seize the affirmative, when proper and necessary, to clarify perplexing issues, to develop significant factual information, to enforce propriety, orderliness, decorum and expedition in trial" . All of these observations by the New York Court of Appeals, however, carry with them a warning: "In the last analysis .. . [the judge] must be guided by the principle that his function is to protect the record, not to make it" .

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the Parties. These powers of the court correspond to the structural decision of the Statute for a single court to conduct the proceeding and to enter the verdict. A second structural element of inquisitorial process is that the Statute does expressly bar the Prosecutor from the role of the incriminator.P The "parties" to the ICC procedure are asymmetrical both with respect to their rights and to their obligations. And there are other participants as well. The ICC procedure can thus be described as semi-adversarial. The accused acquires a right to an acquittal as a result of a full trial. There is also the possibility for appeal (article 82 of the Statute). Appeal and enforcement of the jugdment may be added depending on the outcome of the trial.

2. The ICC and the National Courts It is clearly the task of the judicial divisions of the Court to safeguard

the rights of all participants. This includes the rights of the individual (the accused and other persons). Any investigative measure involving the infringement of the right to personal freedom requires permission by the Pre-Trial Chamber. Also, the exceptional power of the Prosecutor to take specific investigative steps within the territory of a State party without having secured the cooperation of that state under Part 9 is subject to confirmation by the Pre-Trial Chamber (article 57 (3) (d) of the Statutej." Witnesses are currently the most important type of evidence in front of the ad hoc Tribunals. The laws of all International Criminal Tribunals provide judges with the power to order the attendance of witnesses. The judges' power to order the attendance of witnesses is contained in the Statute and the Rules. The ICC has the power to issue arrest warrants.55 However, the 53

54

55

Aside from the obligation to investigate the exculpatory facts and evidence and the extensive disclosure obligation the Prosecutor's special role is also evidenced by the fact that the Prosecutor may appeal a Trial Chamber decision of acquittal or conviction or against sentence on its own behalf and on behalf of the accused (article 81 (1),(2) of the Statute). The investigative measures may be authorized only if the state is clearly unable to execute a request for cooperation due to the unavailability of any authority or any component of its judicial system competent to execute the request for cooperation under Part 9 of the Statute. As do the ad hoc International Criminal Tribunals.

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rights of the accused require certain safeguards for the issuance of such warrants. These safeguards are often reflected in the law of the International Criminal Tribunals by providing for specific procedures, such as the requirement that the accused be provided with certain minimum information during his or her arrest. In the ICTY and ICTR only judges have the power to issue arrest warrants. 56 The right of the participants to challenge a Court decision is the technical mechanism through which the Statute ensures that the various participants may actively enforce the rights and the position they have under the Statute. It is an indispensable tool for ensuring that the proceedings be under the rule of law as adjudicated autonomously by the Court. This can be demonstrated with the arrest power crucial both for the effective proceeding of the Court and the fairness of the trial that is better served by trial in the presence of the accused . The Statute therefore provides for a detailed arrest procedure. Article 58 provides that solely the Pre-Trial Chamber may issue a warrant of arrest of a person. This power of the Court is made conditional on an application by the Prosecutor. The standard is the reasonable basis test that is the prevalent in the pre-trial phase. As an alternative to seeking an arrest warrant, the Prosecutor may submit an application requesting that the Pre -Trial Chamber issue a summons for the person to appear (article 58 (7) of the Statute). The Statute do cs not provide for an emergency power of the Prosecutor.V The crucial arrest proceedings in the custodial state are regulated separately in article 59, which refers to the general provisions on cooperation between the Court and the States parties contained in Part 9 of the Statute. This provision addresses the State party that has actual control over the person regardless of whether that state, being a party to the Statute, fulfills the precondition to the exercise of the Court's jurisdiction within the meaning of article 12 of the Statute. In fact, the state requested need not be a party to the Statute at all but may enter into an ad hoc arrangement, an agreement or any other appropriate basis on the basis of article 87 (5) of the Statute. Article 59 (2) pro56

In contrast to the International Military Tribunals in Nuremberg and Tokyo, where only the prosecutors had such power. Under the IMT's Statutes, the power of the judges was provided only after the commencement of the trial procedure. During the investigation, the prosecutors of the four Allies were solely responsible for the designation of the accused persons and for the preparation and even the final approval of the indictments. Arts 14 (b) and (c), art. 15 (b) and (c) Nuremberg Statute. 57 As it is foreseen under, e.g., the human rights standards of the German Basic Law, article 13.

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vides a second judicial protection insofar as the person arrested in the custodial state shall be brought promptly before a judicial authority. Based on the concept of judicial protection through inter-level cooperation.l" the person arrested shall be brought promptly before the competent national court. That court will have to rule on the external legality of the arrest.t? not on its internal legality decided previously by the international court. The model is not just that of classic horizontal judicial cooperation. Part 9 provides for an important reserve function of the Assembly of the States in the actual operation of the Statute. For the Court may refer a case of non-cooperation by a state to the Assembly of States. The decision of that body is binding on the state concerned. While neither the Statute nor the RPE provide so explicitly, this is the sound interpretation of the Court's procedure. Article 87 (7) lists the Security Council and the Assembly of States Parties as the relevant venues for the Court to turn to after finding a state to be in noncompliance with the request for cooperation. Most importantly, direct investigative steps may be carried out by the Prosecutor. The Prosecutor in fact assumes a reserve or subsidiary function here that is very much in line with the Statute's approach to the issue of jurisdiction allocation between the international and the national level. Secondly, the Court is in charge of safeguarding the sovereign rights of States parties. Investigative steps of the Prosecutor on the territory of a State party are thus subject to prior authorization by the Court, thus safeguarding the right of States parties, the institutional equilibrium of Prosecutor, States parties, the Assembly of States Parties, and the Trial Chamber.

58

Vertical inter-level judicial cooperation has been a long-standing feature of European integration. See V. Roben, Die Einwirkung der Rechtsprechung des Europdiscben Gerichtshofs auf das Mitgliedstaatliche Ver/ahren, 1998. Recently, the German Federal Constitutional Court has relied on this con cept to explain the applicable constitutional standards for prosecution of an alleged case of genocide in the Former Yugoslavia in the German courts. 59 See article 59 (2) (a) of the Statute that the warrant applies to that person, (b) the person has been arrested in accordance with the proper procedures and (c) the person's rights have been respected. This needs to be read in conjunction with article 88 of the Statute according to which States parties shall ensure that there are procedures available under their national law for all forms of cooperation specified.

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3. The Parties a. The Prosecutor The central function of the Prosecutor is executive, that is the investigation of crimes under the Statute. In addition, the Prosecutor may propose amendments to the Elements of Crimes (article 9 (2) (c) and to the RPE (article 51 (2) (c) of the Statute). The position of the Prosecutor under the ICC procedure hinges on three elements: the independence in the conduct of an investigation, the judicial control of important decisions of the Prosecutor, and the obligation on the prosecutor of objectivity. aa. The Prosecutor's Functions and Powers to Investigate

Arts 13 (c), 15 in conjunction with arts 53, 54 of the Statute set out the function and powers of the Prosecutor in the investigative phase of the case. The Statute does not define what it considers an "investigation and prosecution". It indicates, however, that "investigation" involves an action that may be taken with respect to a situation or an individual while "prosecution" involves actions taken with respect to a specific person, in other words a prosecution is an investigation at a more advanced stage.s? According to article 15 (3) of the Statute, the Prosecutor may initiate investigations proprio motu that trigger the jurisdiction of the Court under article 13 (c). After evaluating the available information and irrespective of the source of the relevant information, the Prosecutor must initiate the investigation, unless there is no reasonable basis to proceed under the Statute (article 15 (3) and article 53 (1) of the Statute, Rule 48 RPE). The Prosecutor is independent from the UN Security Council. Under article 13 (b), the UN Security Council can trigger the jurisdiction of the Court by alerting the prosecutor to situations in which one or more of the crimes listed in article 5 "appears to have been committed". But the further decisions of the Prosecutor to initiate an investigation, and to proceed with it, are subject to the criteria set forth in the Statute only and cannot be overridden by the Security Council acting under Chapter VII of the Charter. The Statute accords the Prosecutor the power to initiate an investigation and to collect evidence upon his

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Cf. arts 13, 14, 15, 18 (1) (2),19 of the Statute.

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or her interpretation of both the law and the facts.61 Once commenced, the Prosecutor must proceed with the investigation unless there is no reasonable basis to do so. bb. The Requirement of Objectivity

The Prosecutor may, on behalf of the accused, appeal the decision or the sentence of the Trial Chamber on any ground that affects the fairness or reliability of the proceedings or decision (article 81 (1) (b) (iv) of the Statute). cc. Judicial Review ofthe Prosecutor's Actions

Many of the important decisions of the Prosecutor can be challenged in the Pre-Trial Chamber. Importantly, the power of the Prosecutor to commence an investigation proprio motu is subject to authorization by the Pre-Trial Chamber applying the same standard as the Prosecutor (arts 15 (4) and 53 (4) of the Statute). This is true with respect to decisions of the Prosecutor negatively not to proceed with an investigation which are subject to control by the Pre-Trial Chamber, which shall apply the same standards as the Prosecutor. The Pre-Trial Chamber's ruling is definitive only with respect to the issue of the reasonable basis for an investigation. The assessment of jurisdiction and admissibility is expressly designated as preliminary by the Statute. The Pre-Trial Chamber reviews the Prosecutor's decisions upon request only. But the Prosecutor's decisions not to proceed with an investigation based on the ground that "the prosecution is not in the interests of justice" (article 53 (1) (c) and (2) (c)) are an exception since the Pre-Trial Chamber may review them on its own initiative. The decision of the Prosecutor to discontinue an investigation started proprio motu on the ground that there is no reasonable basis for a case is not open to review. However, if either a State party or the UN Security Council then refers this situation to the Prosecutor they would have standing to challenge any discontinuation of the investigation . Given these mechanisms the Statute thus

61

The Statute permits the Prosecutor to do the following: Conduct a preliminary examination, evaluate the information made available, seek "information from States, organs of the United Nations, intergovernmental or nongovernmental organizations, or other reliable sources that he or she deems appropriate", and receive "written or oral testimony at the seat of the Court" (article 15 (2) of the Statute).

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assumes that the work of the Prosecutor is closely followed if not monitored by the States parties and the UN Security Council. This cooperation assumption works two ways.62 Through this cooperation, the Statute implements the officiality maxim as implemented through complementary prosecution on the international and the national level. According to article 17 (1) of the Statute it is for the Court to rule that the case is inadmissible for reasons of complementary action at the national level. In order to have certainty on this issue, the Prosecutor may seize the Pre-Trial Chamber. This forces the potentially competent States parties to declare their intentions with regard to the case concerned. Specific investigative actions may be challenged in court and thus may be subject to judicial review. dd. The Functions and Powers of the Prosecutor at Trial

Part 6 on the Trial contains no specific provision regarding the Prosecutor. Rather, the functions and powers set out in the previous Part 5 on Investigation and Prosecution carryover. At trial, the Prosecutor has to present all the facts and evidence relevant to whether there is criminal responsibility under this Statute. This encompasses both incriminating and exonerating circumstances. The Prosecutor also has extensive disclosure obligations. Although structured symmetrically, the position of the Prosecutor under the Statute ensures that disclosure is primarily an instrument of the accused. It is quite consistent, then, that the Statute and the RPE set forth extensive disclosure provisions.P b. The Accused The Statute regards the accused as a subject of the proceedings. The accused necessarily is the object of the court's criminal jurisdiction and certain infringements of his personal freedom and bodily integrity. But the Statute ensures that the accused has active and passive procedural

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See text at note 3l. See article 67 (2) of the Statutefor the Trial and Rule 83 RPE. Rule 76 RPE provides for pre-trial disclosure relating to prosecution witnesses, Rule 77 RPE for inspection of material in possession or control of the Prosecutor. Rule 81 RPE is concerned with the restrictions on disclosure. Neither the Statute nor the RPE define the appropriate venue for judicially challenging the decisions of the Prosecutorunder these Rules.

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rights that allow him or her to influence the proceedings.v' The position of the accused is firmly rooted in the principle of fair trial (article 67 of the Statute) that flanks the presumption of innocence (article 66). Equivalent protection is afforded to persons subject to an investigation (article 55 of the Statutej/" Furthermore, the Statute contains a number of human rights guarantees applicable to the criminal proceedings. Among them is the right to personal freedom that is protected by the strict standards for any arrest procedures in the interest of personal freedom." Article 67 guarantees the accused the right to a fair trial.67 The right to a fair trial contains several elements which are specifically important to the defence before International Criminal Tribunals. The most important of these rights are: the assistance of learned counsel, adequate time and facilities for the defence preparations, cross-examine prosecution witnesses and examine one's own witnesses. The use of the word "accused" in the Statute, instead of "everyone" in the conventions does not mean that only formally accused persons are beneficiaries of that right. The Statute leaves the terminology of accused for those whose charges have been confirmed. In article 61 (9) of the Statute on the confirmation hearing, the term "accused" appears for the first time, after a consistent use of the word "person" in the preceding paragraphs.P Article 67 (1) of the Statute summarizes the active rights of the accused at trial. Chief among them is the right of the accused to a public hearing. Under this principle, the Court may base its decision solely on facts and evidence on which the accused has had a chance to take a position. At the trial, the accused's right to be heard is pervasively guaranteed. At the pre-trial stage, the accused's right to be heard by the Court is guaranteed through standing to challenge the major decisions of the Prosecutor in court (Pre-Trial Chamber). The Statute does not allow trials in absentia (arts 63 (1),67 (1) (d) of the Statute), except under the condi64 65

66

67

68

See, in particular, article 64 (2) of the Statute. See, generally, on the human rights relevance of the pre-trial period, R. Grote, "Protection of Individuals in the Pre-Trial Procedure", in: Wolfrum/ Weissbrodt, see note 19, 699 et seq. See article 58 of the Statute according to which solely a judicial authority not the prosecutor may issue the arrest warrant under conditions set forth by law (in the instance: international treaty law). See article 21 ICTY Statute, article 14 ICCPR, article 6 ECHR. See K.S. Gallant, "The Role and Powers of Defense Counsel in the Rome Statute of the International Criminal Court", Int'l Law. 34 (2000), 21 et seq.

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tions set forth in article 63 (2).69 However, when the accused is tried in absentia, counsel for the accused should be permitted to participate.I? Further minimum guarantees are the defence rights, in particular to have adequate time and facilities for the preparation of the defence and to communicate freely with the counsel of the accused's choosing in confidence, (article 67 (1) (b) of the Statute). Important under the Statute's system, the accused has the right to examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her; the accused shall also be entitled to raise defences and to present other evidence admissible under this Statute, (article 67 (1) (e) of the Statute). The Prosecutor shall, of its own motion and as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of the prosecution evidence." This fundamental premise is reflected in many provisions of the Statute. According to article 19 (2) (a), the accused may bring a challenge to the admissibility of a case on the grounds referred to in article 17 of the Statute or a challenge to the jurisdiction of the Court. The position of the accused is largely identical to that of a person for whom a warrant of arrest or a summons to appear has been issued un69

70

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This procedure has been used in the proceedings against Karadzic, Mladic and several others. See S. Furuya, "Rule 61 Procedure in the International Criminal Tribunal for the Former Yugoslavia: A Lesson for the ICC", LIIL 12 (1999), 635 et seq. But d. ICTY proceedings against Karadzic. This disclosure requirement of the Statute is considerably stricter than that under United States constitutional standards. The leading case on the prosecutorial duty is Brady v. Maryland. In separate trials, the petitioner and a companion were convicted of first degree murder and sentenced to death. At his trial, the petitioner admitted participating in the crime but claimed that his companion had done the actual killing. Prior to trial, the petitioner's attorney requested that the prosecution allow him to examine the companion's extrajudicial statement. One such statement, in which the companion admitted the actual killing, was withheld by the prosecution and did not come to the petitioner's attention until his conviction was confirmed by the state appellate court. The Supreme Court held that: "The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or the bad faith of the prosecution ".

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der article 58 of the Statute. The defence may raise the issue. Although one of the requirements of fair trial is the equality of arms of the parties, that principle needs to be interpreted in the light of the structural decisions of the Statute. The fact that the Prosecutor is an organ of the Court thus does not raise questions.F With regard to the position of the defence at a hearing in The Hague, an analysis of the provisions of the Statute and the RPE for the ICC indicate that the procedural position of the defence is equal to that of the prosecution. The Statute requires the defence to take the initiative regarding the collection of evidence in its own case. While the Statute is silent on the rights of the defence at this stage." the RPE contain several important specifications. The defence must be entitled to submit requests of evidentiary action to the Prosecutor using the latter's special powers under the Statute. However, the Statute does not provide for judicial review of the Prosecutor's decision on such a request. Throughout the proceedings, the case presented by the prosecution has to satisfy a standard defined by the Court.Z" This is so with respect to the commencement of an investigation (article 15), the taking of certain particularly important investigative measures (warrant of arrest, summons to appear). The role of the defence counsel is to challenge the prosecutor's evidence and witnesses, its theory of culpability and occasionally the jurisdiction of the court itsel£.75 The Court procedure supports the defence. This includes assisting arrested persons, persons to whom article 55 (2) of the Statute applies and assisting the accused in obtaining legal assistance. The Court procedure provides for the assignment of legal assistance (article 55 (2) (c) of the

72

73

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But see A. Klip, "State Security and Obtaining Evidence Independently by the Defence", in: Roggemann/ Sarcevic, see note 14,127 et seq. (131). The existing law and practice of the ICTY may be instructive. The Court's RPE provide that a state, which has failed to comply with obligations under the Statute, may be reponed to the UN Security Council by the President. The Prosecutor may conduct investigations and may request states to take provisional measures . At the request of either party, or proprio motu states must co-operate with the Tribunal promptly. Depositions may be taken at the request of either party, but only the Trial Chamber may so order. In the ]elsisic case, the ICTY-Trial Chamber terminated the hearing after the initial presentation of the case by the prosecution on the ground that it had not satisfied the standards imposed by the Trial Chamber. Gallant, see note 68.

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Statute and Rule 21 RPE).76 Rule 22 RPE sets out the conditions for appointment and qualifications of Counsel for the defence.?" In the performance of their duties, Counsel for the defence shall be subject to the Statute, the Rules, the Regulations, and the Code of Professional Conduct for Counsel (Rule 22 (3) RPE). Rule 20 RPE obliges the Registrar to organize the staff of the Registry in a manner that promotes the rights of the defence consistent with the principle of fair trial as defined in the Statute." The accused is further protected by the active role that the Statute imputes for the Pre-Trial Chamber. Under article 57 (3) (b), the PreTrial Chamber may issue such orders upon the accused, including measures such as those described in article 56, or seek such cooperation pursuant to Part 9 as may be necessary to assist the person in the preparation of his or her defence. This is in parallel to the power of the PreTrial Chamber to issue such orders and warrants as may be required for the purposes of the investigation at the request of the Prosecutor (article 57 (3) (a)), which is extended to investigating any exonerating circumstances.

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Subject to arts 55 (2) (c) and 67 (1) (d) of the Statute, criteria and procedures for assignment of legal assistance shall be established in the Regulations, based on a proposal for the Registrar, following consultations with any independent representative body of counsel or legal associations (Rule 21). The person shall freely choose his or her counsel from this list. The decision to refuse a request for assignment of counsel by the Registrar is subject to review by the Presidency of the Court whose decision shall be final. A counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. According to Rule 20 RPE, the registrar has specific responsibilities relating to the rights of the defence consistent with the principle of fair trail. This includes providing support, assistance and information to all defence counsel appearing before the Court and, as appropriate, support for professional investigators necessary for the efficient and effective conduct of the defence. The Registrar is also to assist arrested persons, persons to whom article 55 (2) of the Statute applies, and the accused in obtaining legal advice and the assistance of legal counsel.

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c. Parties and Participants of the ICC Procedure This overview allows us to restate the point made earlier that the Statute models the positions not of the parties but of the participants. It needs to be stated clearly that this increases the impartiality of the procedure. The independence of the Court from the UN Security Council and the States parties, its commitment to the overall rule of law, and the substantive fairness of the Court's proceedings depend on the institution of the Prosecutor. The Statute and the RPE implement human rights standards, not just in standing for things like fair trial etc., but in actually devising new procedural mechanisms to flesh out the concept of human rights. The "participation" that is thus imputed to the accused is related to human dignity.

4. Victims The ICC Statute assigns the victims of atrocities a role in the procedure,"? There cannot be a cause of action for the victims or a right to challenge the core function of the Court which is to take on crimes of concern to the international community. Victims can neither refer a situation to the Prosecutor nor do they have standing before the PreTrial Chamber for the review of the Prosecutor's decision not to proceed with an investigation. Victims may, of course, submit information to the Prosecutor in order for him or her to initiate an investigation on that basis. But the Statute acknowledges the fact that the Court proceedings affect the victims of alleged atrocities. Under article 65 (4), the Trial Chamber may request additional information if this is required "in the interests of the victims". Importantly, the Statute provides that the victim may make submissions and be represented at all stages of the Court proceedings. Article 15 (3) of the Statute provides that "victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence" regarding the reasonableness or otherwise of proceeding with an investigation. Under article 19, victims may also make submissions in proceedings with respect to jurisdiction or admissibility. Victims may also take part in the trial proceedings. First, they may set out in court their "views" and "concerns" on mat79

See Cassese, see note 15, 167; T. van Boven, "The Position of the Victim in the Statute of the International Criminal Court", in: Hebel, see note 27, 77 et seq. (85-90).

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ters of fact and law pursuant to article 68 (3). The victims are allowed to take part in such proceedings either in person, or through their legal representative, on matters relevant to the proceedings.f? The second modality of the victims' participation in the trial proceedings concerns the possibility for the victims to seek reparation, restitution, compensation or rehabilitation (article 75 (1) and (3) of the Statute).

5. States Parties The Statute vests States parties with crucial roles in the procedure. Any State party may request the initiation of an investigation by referring a case to the Prosecutor. No further nexus is required. In particular, a state's referral power is neither hindered by nor does it depend on the state having jurisdiction over the case. Opening this avenue broadens the sources of information for the Prosecutor and turns the states into functional assistants of the Prosecutor. The Statute is based on the idea that prosecution by the state having jurisdiction over the case is in principle preferable to prosecution by the ICC. Hence the complementarity principle allows that state to stop the Court from prosecuting any case as long as the state's own prosecution is genuine. Seen from the perspective of the Court, this issue concerns the admissibility of a case. It receives a separate treatment under the Statute. The admissibility of the Court's case depends on the action of the states. Their action could cover either the case of an ongoing investigation or a closed investigation. A State party may also take up investigating a case under examination by the Prosecutor thus rendering the case inadmissible. The Statute defines certain rights of the states at the trial. Finally, states have a large evidentiary role. They are to cooperate with the Prosecutor's or the Court's requests for the production of evidence. Moreover, the Assembly of States parties - the collective decision making body of the States parties - retains the important function of enforcing the obligation incumbent on States parties to comply with a request for cooperation by the Court.

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Rules 89 through Rule 93 RPE contain specific provision s on the participation of victims in the proceedings. Under Rule 90 RPE, a victim may be represented by a legal representative.

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6. The UN Security Council The UN Security Council is put on a footing similar to the States parties. It may trigger an investigation, challenge its discontinuation and ensure that international cooperation works. However, these are functions essentially external to the judicial proceedings. The Prosecutor's - and by extension the Court's independence - is not called into question by the power of the UN Security Council, which may request the ICC not to investigate or proceed with a prosecution when it concludes that judicial action, or the threat of it, might harm the Council's efforts to maintain international peace and security pursuant to the UN Charter (article 16 of the Statute). This does not thwart the balanced relation between political entities (states and the Security Council) and the Prosecutor as an "administrator of justice" under the Statute. A Security Council deferral under article 16 does not cover steps that are considered proceedings undertaken before the commencement of the investigation.!' Article 16 suggests that the Security Council may also stop an investigation or a prosecution that is already underway. The correct understanding of the effects of such a decision is procedural and preliminary.V A defendant thus remains indicted. Measures taken to ensure the protection of any person or to preserve evidence are not barred since they are based on action taken before the deferral procedure and thus come under the status quo. 83 Pursuant to arts 13 (c) and 15, the Prosecutor can initiate investigations proprio motu after the end of the initial 12-month deferral period. However, the Prosecutor is seriously hampered if Member States of the UN consider themselves prevented from cooperating with the Prosecutor under para. 3 of S/RES/1422. 84

8!

82 83

84

See M. El Zeidy, "The United States Dropped the Atomic Bomb of Article 16 of the ICC Statute: Security Council Power of Deferrals and Resolution 1422", Vand.]. Transnat'l L. 35 (2002),1503 et seq. (1513). See El Zeidy, see above, 1514. See L. Condorelli, "Relationship of the Court with the United Nations", in: A. Cassese et aI. (eds), The Rome Statute of the International Criminal Court, 2002, 654. S/RES/1422 (2002) of 12 July 2002, in its operative part, states the following: "(1) [The Security Council requests], consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1July 2002 not commence or proceed with investigation or prosecution

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v: Comparison with the Procedure of the ad hoc Tribunals No equivalent to these provisions allowing victims to have a role in the administration of justice before the Court exists in the ICTY and the ICTR Statutes. The ad hoc Tribunals are in a vertical relationship to all states. The basis for this vertical relationship lies in the creation of the ad hoc Tribunals through Security Council resolutions under Chapter VII of the Charter.

VI. Conclusions The ICC serves to enforce judicially certain values considered indispensable for a peaceful world. This requires autonomy and transparency. This specific function of the Court is reflected in its procedure. The autonomy is to a large extent the consequence of transparency. The legal bases of the Court's procedure structure the roles of the participants transparently because they can be explained and analyzed in terms of procedural maxims. The ICC procedure is the product of the effective use of the comparative law method. As such, the method injects a specific technical -legal - legitimacy to the Court. The core feature of the Court's procedure as analyzed here is that it provides legitimacy not only to the Court but also to efforts of the international community of states to legislate in this highly sensitive area of overlapping claims of national sovereignty, human rights and UN Security Council jurisdiction. There are two prominent - and overlapping features of the ICC procedure that emerge from the analysis above and that bear highlighting for their legitimizing import. The first feature is that the Court procedure involves all relevant actors with a stake in whether, at which venue and how an atrocity is investigated and prosecuted. Because of the legal bases as laid out in this article, the Court will reach the verdict on an accused's guilt or innocence through highly elaborate proceedings with a prominent involvement of the accused. The obvious explanation would be the predominance of the common of any such case, unless the Security Council decides otherwise. (2) [expresses] the intention to renew the request in paragraph 1 under the same conditions each 1 July for further 12 month-periods for as long as may be necessary. (3) Decides that Member States shall take no action inconsistent with paragraph 1 and with their international obligations".

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law in international procedure in general and, specifically, the precedent of the ad hoc Tribunals' procedure. However, more fundamentally, this procedural choice enhances the functionality of the Court as a central institution of the international community of states. Proceeding adversarily also has a high chance to engage the participants and thus to enable them to accept the decision reached.s- Proceeding adversarily renders visible the fact that the Court institutionalizes conflict and their collectively binding decisions.P With respect to this educational effect, aside from the crucial Non-Party states, the people who need to be convinced of the substantive values the violation of which is criminalized in arts 5 through 7 of the Rome Statute, are not just the perpetrators but also the population supporting the organization of which the perpetrator was part. Paradoxically, this also ensures that the procedure is concentrated on the correct application of the law. Since the role of all actors with a political interest is defined by the procedure, their potential impact on the procedure is confined. As such, the Court provides an indispensable function for the political enforcement of the same values. Through this set-up, the international community of states as the international legislator is legitimized. As such, its legitimacy depends on the openness to all relevant factors. In reality this cannot be the case. The permanent Court's procedure ensures that those concerned by the political decision will participate at least in its application. This provides legitimate avenues of critique and reduces the complexity of the political system.87 But, through this set-up, the Court in fact has also an important function for the overall legitimacy of the Security Council. The limited role that the ICC procedure accords the UN Security Council should not be seen as an expression of distrust in the Council but rather as an expression of the proper understanding of the Council's operating as a political body. The fundamental political decision was for the Security Council to legislate through the Statutes of the ad hoc Tribunals and to design such tribunals as a means to restore peace and security to (civil) war ravaged areas. These choices were followed by the international community of states. Also novel, and worthy of comment is the balanced relation between the international community as a legislator,

85 86

87

See Luhmann, Legitimation durch Verfahren, 1989,55-136. The provision of a central institution for the articulation and decision presupposes that the world society is structured to a degree incompatible with a Hobbesian view of international relations. Luhmann, see note 85, 242-248.

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the Court, and the international community as judicial enforcer, the latter example showing that the cooperation is two way. This procedure would appear to insulate the Court from two main objections levied against it in particular by the United States. The broad jurisdiction of the Court is balanced by the complementarity principle and the guarantee of a fair trial of the accused. Both structural elements are secured by the design of the Court's procedure. The second is that the Court's lack of effective enforcement machinery made its claim to law-based prosecution of human rights abuses a charade.P This genuine concern seems unfounded. The procedure's effectiveness has been demonstrated. The effectiveness will be enhanced by the Court's legitimacy that accrues to it because of the procedure as designed by the Statute and the Court's RPE.

88

See J. Goldsmith, "The Self-defeating International Criminal Court", U. Chi. L. R. 70 (2003), 89 et seq.

The Relevance of the Rome Statute of the International Criminal Court for Amnesties and Truth Commissions! Anja Seibert-Fohr

I. II. III.

IV,

V. VI.

Introduction Are the States Parti es Obliged to Prosecute Domestically under the Statute? Jurisdiction of th e Court De spite an Amnesty ? 1. Th e Drafting of the Statute 2. Amnesties und er Article 17 3. Truth Commission s under Article 17 a. C riminal versus N on -criminal Investigation b. The Meaning of Unwillingness to Pros ecut e c. Th e Relevance of State Obligations to Prosecute d. Th e Competen ce of the ICC e. The Effects of Inadmissibilit y on Third Part y Jurisdiction Alternative Options to De al with Amnesties 1. Denial of Investigation for Lack ing Interest of Justi ce? 2. Discretion Regarding proprio motu Investigation s 3. Deferral of Investigation du e to a Security Council Resolution The Effect of the Rom e Statute on N ational Amne sties Concluding Remarks and Outlook

I. Introduction The international community in the last decades has intensified its efforts to create international mechanisms for prosecuting and punishing Thi s article forms part of an ongoing S.J.D. proj ect by the author at the George Washington University Law School.

A. von Bogdandy and R Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 7, 2003, 553-590. © 2003 Koninklijke Brill N. V. Printed in the Netherlands.

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individuals accused of particularly grave human rights violations. The establishment of the Criminal Tribunals for the Former Yugoslavia and Rwanda was intended to ensure that perpetrators of the most serious crimes are being brought to justice.l The Security Council in establishing the tribunals explained that it was: "Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them, Convinced that in the particular circumstances ... the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the process of national reconciliation and to the restoration and maintenance of peace ... "3 More recently the Special Court for Sierra Leone was established to "contribute to the process of national reconciliation and to the restoration and maintenance of peace.?" It has the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law.5 A major landmark in the development to provide for international accountability is the Rome Statute of the International Criminal Court (lCC).6 The Statute in its Preamble affirms "that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by 2

3 4

5

6

The Criminal Tribunal for the Former Yugoslavia was established by Resolution of the UN Securit y Council S/RES/827 (1993) of 25 May 1993 on the basis of Chapter VII of the UN Charter, and the one for Rwanda by S/RES/955 (1994) of 8 November 1994. Ibid . The Special Court for Sierra Leone was established on the basis of an Agreement between the UN and the Government of Sierra Leone pursuant to S/RES/1315 (2000) of 14 August 2000. See the Preamble. For the Agreement see Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, Doc. S12000/915 of 4 October 2000. The Court made its first indictments in March 2003. Article 1 of the Statute of the Special Court for Sierra Leone, at http://www.sierra-leone.org/specialcourtstatute.html - It is interesting to note that the Statute in article 10, contrary to the Rome Statute, explicitly provides that an amnesty granted for crimes falling under the Court's jurisdiction shall not bar prosecution by the Special Court. Doc. NCONF.183 /13 Vol. I. Entry into force 1 July 2002. Reprinted in this Volume, see Annex.

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taking measures at the national level and by enhancing international cooperation". By creating the ICC the signatory states were "determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes". Impunity for serious human rights violations is a worldwide phenomenon. It has many faces, from singular incidents to systematic grants of impunity. The last decades have witnessed a broad range of amnesties all over the world ." The reasons for granting amnesties are manifold: authoritarian regimes provide for self-amnesties in order to escape future punishment. In such instances amnesty is used to hush up the truth of past crimes. Sometimes an amnesty is proclaimed for offences committed by political opponents in order to neutralize opposition.f In other cases amnesties are seen as a valuable means for the transition from civil war to democracy. The renunciation of criminal prosecution is therefore occasionally used as a bargaining chip for peace and security;" The UN brokered peace agreement for Haiti, for example, provided for an amnesty in order to end the Cedras regime. to There are also conditional forms of amnesty, like the South African Truth and Reconciliation Commission process where individualized amnesty is granted for a complete disclosure of the crimes committed.'! The purpose of such mechanisms is to enable a society which was torn apart

7

For a detailed analysis of different amnesty regimes, N . Roht-Arriaza, Impunity and Human Rights in International Law and Practice, 1995, 73 et seq. 8 L. Joinet, Study on amnesty laws and their role in the safeguard and promotion of human rights, Doc. E/CNA/Sub.2/1985/16, paras 33-37. He gives a careful analysis of the various rationals for providing an amnesty. 9 For this issue see Anonymous, "Human Rights in Peace Negotiations", HRQ 18 (1996), 249 et seq. to Governors Island Agreement. See the Report of the UN Secretary General on Haiti reproducing the agreement, Doc. AI47/975-SI26063. 11 The crimes must be proportional to the ends sought and deemed to be political acts. Promotion of National Unity and Reconciliation Act 34 of 1995. See also K. Asmal, "Truth, Reconciliation and Justice: The South African Experience in Perspective", Modern Law Review 63 (2000), 1 et seq.; G. Werle, "Without Truth, No Reconciliation, The South African Rechtsstaar and the Apartheid Past", VRU 29 (1996), 58 et seq. For further reflections on Truth Commissions, see e.g. S. Landsman, "Alternative Responses to Serious Human Rights Abuses: Of Prosecution and Truth Commissions", Law & Contemp. Probs 59 (1996), 81 et seq.; J.D. Tepperman, "Tru th and Consequences", Foreign Aff. 81 (2002), 128 et seq.

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during a prolonged period of civil unrest to come to terms with their past and to make the transition to peace and democracy. Investigation and disclosure of past abuses are sought as an alternative to prosecution to satisfy the victim's interests and the quest for some form of accountability while at the same time providing for reconciliation by the decision not to prosecute. It is not difficult to predict that such forms of amnesty will be put into question once an international tribunal exercises jurisdiction. A state's intent to keep certain offences from criminal punishment may be jeopardized by international prosecution. The need to allow for reconciliation is likely to conflict with the aim of the Rome Statute to fight impunity. One of the several reasons brought forward by the United States for its decision of 6 May 2002 to notify the UN Secretary General of its intent not to become a party to the treaty despite its earlier signature was that the Rome Statute did not take due account of the need for accepting amnesties under certain conditions.F It was argued that a democratic decision between prosecution and national reconciliation should be respected and not made by the ICC. 13 But the Rome Statute according to the United States threatened the transition from oppression to democracy." This reading of the Statute has not been unchallenged. There are divergent views on how the Rome Statute should be read. Some commentators argue that the ICC does not have the right to review amnesty legislation 15 while others hold that the States parties to the Statute are even prevented from granting an amnesty in the first place.ls

12

13 14

15

16

The notification is reprinted at http://www.state.gov/r/pa/prs/ps/2002/ 9968.htm - The reasons given by the Under Secretary for Political Affairs in his remarks to the Center for Strategic and International Studies on 6 May 2002 can be found at http;//www.state.gov/p/9949.htrn - See also A. Seibert-Fohr, "The Fight against Impunity under the International Covenant on Civil and Political Rights", Max Planck UNYB 6 (2002), 301 et seq. (303). See reasons given by the Under Secretary for Political Affairs, ibid. Ibid. M.H. Arsanjani, "The International Criminal Court and National Amnesty Laws", PROC. of the 93rd ANN. Meeting, 93 ASILPROC 65, 67 (1999). A. Schlunck, Amnesty versus Accountability: Third Party Intervention Dealing with Gross human rights Violations in International and non International Conflicts, 2000, 28-29. Benvenuti argues that "[i]t is rational to think that the words "taking measures at the national level" include enacting any legislation necessary to provide effective penal sanctions for per-

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Now that the Court has been established it can be expected that these questions will come up in a case where charges are brought for crimes which are covered by a domestic amnesty law. Whereas it is unlikely that a state which has proclaimed an amnesty will initiate prosecution by the ICC, the prosecutor may take up the matter proprio motu, the UN Security Council may refer it to the Court'? or a state, which did not proclaim the amnesty but whose national the accused offender is, may initiate proceedings. IS In such a case the Court will need to explore how amnesties need to be dealt with under the Rome Statute. This is why this article tries to elaborate the relationship of the Rome Statute to the proclamation of an amnesty and to the establishment of a truth commission process. The first part will examine whether the Statute prevents States parties from proclaiming an amnesty. In the second part the question of whether the ICC has jurisdiction to deal with cases that are covered by a national amnesty will be analyzed. The possible options of the Court in dealing with amnesties and truth commissions will be evaluated as well as the effects of the Rome Statute on such amnesties. The analysis will show that the interpretation of the complimentarity principle plays an important role in determining whether the Court may act despite the proclamation of a national amnesty. This principle provides that the ICC will not be seized of a case if a state exercises effective jurisdiction over the crimes concerned. It therefore determines the relationship between the ICC and domestic procedures.l? It will be argued that the Statute in pursuing the fight against impunity does not rule out entirely alternative forms of accountability. It leaves the Court with a limited leeway not to interfere with truth commission processes while blanket

17

18

19

sons committing or ordering to be committed serious crimes". See also P. Benvenuti, "Complementarity of the International Criminal Court to National Criminal Jurisdiction", in: F. Lattanzi/ William A. Schabas (eds), Essays on the Rome Statute of the International Criminal Court, Vol. 1, 1999,21-22. This is not very likely because of political considerations. The same is true for referrals by states. See A. O 'Shea, Amnesty for Crimes in International Law and Practice, 2002, 123-124. For the question whether the Prosecutor may decline the proprio motu initiation of investigations on the basis of article 15, see below. J.T. Holmes, "Complementarity: National Courts versus the ICC", in: A. Cassese/ P. Gaeta! J.R.WD. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. 1,2002,667 et seq.

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amnesties that do not provide for any investigatory mechanisms should be disregarded .

II. Are the States Parties Obliged to Prosecute Domestically under the Statute? It has been argued that the recognition of the ICC's jurisdiction implies the obligation of the States parties to either prosecute domestically the crimes for which the Court has jurisdiction or to submit the relevant cases to the ICC. 2o Such an obligation would leave practically no room for amnesties or truth commission procedures for crimes covered by the Rome Statute. However, in contrast to the conventions based on the traditional concept of aut dedere aut judicare,21 the Rome Statute does not include an explicit provision on the obligation to either prosecute or extradite the accused offender. 22 There is merely some reference in the Preamble which affirms that the "effective prosecution" of the most serious crimes of concern to the international community "must be ensured by taking measures at the national level and by enhancing international cooperatiori'V! The States parties also recall in the Preamble that "it is the duty of every State to exercise its criminal jurisdiction

20 21

22

Schlunck, see note 16. Benvenuti, see note 16. International Convention for the Suppression of Terrorist Bombings, 1997, article 6, para. 4, ILM 37 (1998), 249 et seq.; Hague Convention for the Suppression of Unlawful Seizure of Aircraft, article 7, UNTS Vol. 860 No. 12325; Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971, article 7, UNTS Vol. 974 No. 14118; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1973, arts 7-8, UNTS Vol. 1035 No. 15410, International Convention against the Taking of Hostages, 1979, article 8, UNTS Vol. 1316 No. 21931; Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, article 10, ILM 27 (1998), 668 et seq. This interpretation seems to be shared by Judges Higgins, Kooijmanns and Buergenthal of the ICJ who pointed out in their Joint Separate Opinion in the Case Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) that jurisdiction "may be exercised [by states] on a voluntary basis" under the Rome Statute . Joint Separate Opinion, para. 51 (2002).

23

Para. 4 of the Preamble .

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over those responsible for international crimes".24 But there is no provision on prosecuting duties by the States parties in the operative part of the Statute. To interpret article 29 which provides that "[t]he crimes within the jurisdiction of the Court shall not be subject to any statute of limitations" as a substantive obligation to prosecute would clearly go beyond the text of this provision. 25 Though the drafters acknowledged that there were preexisting responsibilities of the states to prosecute the crimes as defined in arts 6 to 8 of the Statute-" the Statute does not incorporate these obligations.27 They exist as part of international treaties and customary international law independent of the Statute. This reading is supported by article 25 para. 4 of the Statute which provides that "no provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law". While this provision is primarily intended to explain that international prosecution of individual perpetrators does not exclude the States parties' international accountabil-

24 Para. 6 of the Preamble. 25 It is already questionable whether this provision may be read as prohibiting

26

27

statutes of limitations or whether it merely operates as a rejection to a State party's denial to surrender on the basis of a statutory limitation in its domestic criminal legislation . See W. A. Schabas, "Article 29", in: O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 1999, 523 et seq. (525-526, para . 7). Some delegations in the Preparatory Committee expressed the "view that the establishment of the Court did not by any means diminish the responsibility of States to investigate and prosecute criminal cases. .... According to this view, the establishment of such a court was itself a manifestation of states exercising their obligations to prosecute vigorously perpetrators of serious crimes." Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vo!. 1, Proceedings of the Preparatory Committee, GAOR, 51st Sess., Supp!. No. 22, Doc. A/51122, page 36, para . 156. Most of the crimes covered by the Statute require domestic prosecution under other treaties, like the Genocide Convention, the Apartheid Convention, the Torture Convention and the Geneva Conventions, or under customary international law. This, however, does not render the question whether the Rome Statute prohibits the proclamation of an amnesty futile. If a duty to prosecute had been part of the Rome Statute and an amnesty could not be validly proclaimed by a State party it would have to be disregarded by the ICC automatically.

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ity under the principles of state responsibility-" it also clarifies that the Statute leaves untouched State party obligations under customary international law and under other treaties, as the Genocide Convention. It neither excludes such obligations nor does it incorporate these . That the domestic prosecution is not interfered with is also evidenced in article 80. It provides that the Statute neither affects domestic penalties nor such domestic laws which do not provide for penalties prescribed in the Rome Statute. The State parties may choose the penalties in the process of domestic prosecution.s? Under the Statute they are neither obliged to prosecute nor to impose a certain penalty. Indeed, it is not the objective of the Rome Statute, which is concerned with international prosecution and not with the international enforcement of state obligations, to deal with prosecuting duties by the States parties. Though there is a duty to surrender perpetrators to the ICC30 and though a State party may avoid surrender by instituting domestic prosecution.l! there is no genuine duty to prosecute in the Statute because it sets up an entirely different system distinct from the obligation of aut dedere aut judicare. The aut dedere aut judicare principle is based on the idea that the prosecution of perpetrators is ultimately secured by obliging all states to either try or extradite perpetrators. It provides for an interaction of the different domestic regimes in which one will ultimately have to prosecute the accused. Under the Statute, however, there is no need for a duty of states to prosecute because it is based on the idea that if domestic prosecution on which it primarily relies fails the ultimate safeguard is through international prosecution anyway.V The ICC is therefore meant to supplement - not to enforce - domestic prosecution.

28

K. Ambos, "Article 25", in: Triffterer, see note 25, 475 et seq. (490, para. 37).

29 This provision concerns in particular penalties other than those provided for in the Statute. SeeR.E. Fife, "Article 80", in: Triffterer, see note 25,1009 et seq. (1014). 30 Seearticle 89. 31 In this case the case would need to be declared inadmissible pursuant to article 17 para. 1, subpara. a. 32 There is an indispensable obligation to surrender perpetrators to the Court on request pursuant to article 89.

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III. Jurisdiction of the Court Despite an Amnesty? Though the Rome Statute does not oblige the States parties to prosecute crimes domestically there is still the question about the possible effects of an amnesty on the jurisdiction of the ICC. Has the Court jurisdiction despite an amnesty or is it binding upon the ICC?

1. The Drafting of the Statute During the drafting of the Rome Statute no agreement could be reached on how amnesties should be treated. Some delegations felt that the Statute should address the issue of amnesties and provide guidelines on the matter, indicating the circumstances in which the ICC might ignore or intervene ahead of a national amnesty.P A provision was proposed which would have permitted the prosecution of a person by the ICC despite an earlier trial by a domestic court, if a "manifestly unfounded decision on the suspension of the enforcement of a sentence or on a pardon, a parole or a commutation of the sentence excludes the application of any appropriate form of penalty".34 The idea was to prevent perpetrators from going unpunished. A similar proposal tried to exclude the application of the ne bis in idem rule in case of an amnesty." But there was also the proposal of a provision in the Preparatory Committee that would have prevented the Court from exercising its jurisdiction if the case at issue had been the subject of a national decision, for example if the case had been addressed in an official investigation, without giving the Court the ability to review the genuine nature of the proceedings.V This proposal was made to prevent the Court from in-

33 34 35

36

GAOR, 50th Sess., Suppl. No. 22, Doc. A/50/22, 9, para . 46; GAOR, 51st Sess., Suppl. No. 22, Doc. A/51122, 7, para. 160. Doc. AlCONF.18312/Add.1, 46, article 19. The proponents of this proposal expressed the view that the exception of subpara. b of today's article 20 should extend to parole, pardon, amnesty etc. Report of the Preparatory Committee on the Establishment of an In ternational Criminal Court, Vol. 1, Proceedings of the Preparatory Committee during March-April and August 1996, GAOR, 51st Sess., Suppl. No. 22, Doc. A/51122, 40, para. 174. This alternative proposal for complementarity read: "The Court has no jurisdiction where the case in question is being investigated or prosecuted, or has been prosecuted, by a State which has jurisdiction over it". Doc.

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tervening when a national political decision is taken in a particular case." The United States circulated a "non-paper" suggesting that the responsible proclamation of an amnesty by a democratic government was relevant for the admissibility of a case." None of these contradictory proposals, however, entered the final text of the Statute so that there is no explicit provision on amnesties.I? There is also no provision on amnesties in the finalized draft text of the Rules of Procedure and Evidence adopted by the Preparatory Commission for the International Criminal Court.t?

It has been argued that many delegations had sympathy with the South African model of amnesty in return for truthful confession." However, to elaborate a provision that would legitimize such amnesties while preventing amnesties such as the ones which had been accorded by South American dictators had proved elusive.V The lack of a provision on amnesties in the Rome Statute has been criticized as giving rise to ambiguity and fear has been expressed that the matter may not be handled discreetly.v' The fact that the issue was left sublingual would endanger democratic transitions." Whether this is an accurate reading needs to be analyzed with a view to the generally applicable rules of the Statute.

37

38 39

40

41 42 43 44

A/CONF.183/2/Add.1, 42. Seealso Groupe de travail sur la complernentarite et Ie mecanisme d'enclenchernent, Doc. AIAC.249/1997IWG.3/CRP.2. Doc. A/CONF.183121Add.1, 42.

R. Wegdwood, "The International Criminal Court: An American View", EJIL 10 (1999), 93 et seq. (96). It was too difficult to arrive at a compromise solution. Therefore the proposal on amnesties was dropped following to the coordinator's recommendation. SeeJ.T. Holmes, "The Principle of Complementarity", in: R.S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute, 1999, 41 et seq. (59). For further discussion of the drafting history regarding amnesties, see ibid., 51-52; S.A.Williams, "Article 17", in: Triffterer, see note 25, 383, 389 para. 13. According to Benvenuti the issue was merely postponed to be determined by the Prosecutor and the Court, see Benvenuti, see note 16,46. Report of the Preparatory Commission of the International Criminal Court, Addendum, Part. I, Doc. PCNICC/2000/1/Add.l . W.A. Schabas, An Introduction to the International Criminal Court, 2001, 68-69. Ibid. Wedgwood, see note 38. Ibid.

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2. Amnesties under Article 17 As laid down in the Preamble of the Statute, its States parties are determined to put an end to impunity for perpetrators of the most serious crimes which are of concern to the international community as a whole .45 The ICC is intended to provide for punishment where domestic prosecution fails. This is a rather far-reaching aim that seems to cover any case of criminal impunity including amnesties.w Argument has been made that the Court does not have the right to review the acts of national legislatures, such as amnesties.V If the ICC, however, was generally barred from considering crimes falling under its jurisdiction in case of a national amnesty the system set up by the Rome Statute could be seriously undermined and evaded by the simple proclamation of a national amnesty.t" Therefore, the effectiveness of the system requires at the very minimum certain barriers for the acceptance of national amnesties. The central provision of the Rome Statute which determines whether national proceedings are sufficient to render a case inadmissible for the ICC is article 17. It provides in para. 1: Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

45 46

47

48

See paras 4 and 5 of the Preamble. The Preamble lead Bruer-Schafer to conclude that the Court generally has jurisdiction despite a national amnesty. A. Bruer-Schafer, Der Internationale Strafgericbtsbo], 2001, 349. Arsanjani, see note 15. According to Hafner, Boon, Riibesame and Huston there is, therefore, no obligation of the ICC to respect national amnesties. G. Hafner! K. Boon/ A. Riibesame/ J. Huston, «A Response to the American View as Presented by Ruth Wedgwood", EJIL 10 (1999),108 et seq. (111).

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Max Planck UNYB 7 (2003)

(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a tri al by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court. Returning to the question whether the ICC should evaluate national amnesties the following should be taken into account. Th e question to be addressed under article 17 is not about the legality of a national amnesty but about whether the Court has jurisdiction.t? The ICC is explicitly required to determine whether a case is inadmissible. It has to do so by evaluating whether one of the grounds for inadmissibility is given. If it finds an unwillingness or inability of a state to prosecute an offender and that the case is of sufficient gravity, admissibility follows from this provision. Admittedly, the int ernati onal prosecution may undermine the effectiveness of a national amnest y law.50 But in th e absence of a specific provision on amnestie s the Court has to det ermine the admissibility of a case on the basis of articl e 17. If the Court proceeds with the prosecution it is the result of the principles laid down in article 17. The power of the Court to determine that a national amnesty is irrelevant for the matter of international prosecution and to go forward despite the proclamation of an amn esty the refore follows from the Court's power to determine admissibility on the basis of complementarity.51 The Court is thus called upon to determine wh ether an amnest y qualifies as one of the situations described in article 17 resulting in inadmissibility. This provision distinguishes between four different factual settings. Pursuant to para. 1, subparas a and b, a case is inadmissible if a national investigation or prosecution is or has taken place unless there is a genuine unwill ingness or inability to carry out the investigation or prosecution. The requ irement that "[t]he case has been investigated [emphasis added]"52 indicates that a case by case study by the 49

50 51

52

The Appeals Chamber o f the Yugoslavia Tribunal in Prosecutor v. Tadic by evaluating its jurisdiction even went into th e qu estion of competencecompetence, Case No. IT-94-1-AR72, Appeals Chamber, D ecision on the Defense Motion for Int erlocuto ry App eal on Jurisdiction , 1995, 6. For the effects of the Rome Statute on amnesties, see below. The fact that article 17 refers to the particular case makes clear that this provision applies to all cases whether the failure to pr osecut e is based on a national amn esty law or an individualized decision of a court or prosecutor. Article 17 para.l , subpara. b. See also subpara. a.

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authorities is required. Therefore, if an amnesty precludes even an individual investigation of the cases, covered inadmissibility cannot be argued on the basis of these subparagraphs. 53 This also applies to article 17 para. 1, subpara. c which refers to the ne bis in idem rule. It provides that no person shall be tried by the ICC for conduct for which the person has been "tried by another Court". Where an amnesty excludes a priori the performance of a trial the provision is clearly not applicable.Y There seems to be more room to argue that a case is inadmissible if a person is amnestied after a conviction is pronounced because the requirement of a trial is met in these cases.55 But taking the underlying idea of the ne bis in idem rule 56 there is reason to argue that a trial which is in fact nullified by a later amnesty does not trigger this rule and therefore cannot render a case inadmissible for the ICC,57 The only basis on which inadmissibility could be argued with respect to amnesties which do not provide for an investigation is the last alternative of article 17 para. 1. Subpara. d provides that a case is inadmissible if it "is not of sufficient gravity to justify further action by the Court". It is doubtful whether this provision is generally applicable to all cases covered by an amnesty.58 The purpose of this provision is to

53

54

55 56

57 58

See also R. Wolfrum, in: G. Dahm/ J. Delbriick/ R. Wolfrum, Volkerrecht, 2nd edition, 2002, 1156. He points out that the ICC requires at least an investigation regardless of whether a national amnesty violates international law. C. Van den Wyngaen/ T. Ongena, "Ne bis in idem Principle, Including the Issue of Amn esty", in: Cassese et al., see note 19, 705, 726; N. RohtArriaza, "Amnesty and the International Criminal Court", in: D. Shelton (ed.), International Crimes, Peace, and Human Rights, The Role of the International Criminal Court, 2000,77,80. Article 17 para. 1, subpara. c neither covers situations where conditional amnesty is granted in case of confession before a truth commission. It is already questionable whether such proceedings can be considered a trial as envisaged by article 20 para. 3. Since article 20 refers to "another court", it seems to require that it is an institution similar to the ICC, hence a criminal court. See also M. Scharf, "The Amnesty Exception to the Jurisdiction of the International Criminal Court", Cornell Int'l L. j. 32 (1999), 507 et seq. (525). A truth commission, at least, does not qualify as a court, Van den Wyngaen/ Ongena, see above. Anicle20. But see Van den Wyngaert/ Ongena, see note 54. But see Schabas, see note 41.

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Max Planck UNYB 7 (2003)

exclude individual cases that, though constituting one of the crimes defined in arts 6 to 8, do not amount to a serious crime which is of concern to the international community. The case itself has to be of minor gravity to render it inadmissible under this provision. The gravity needs to be determined on the basis of the specifics of the alleged crime. It may be reduced due to the particular facts of the crime or due to less serious consequences. But taking into account that the Court's jurisdiction is limited to crimes which are deemed to be the most serious in nature, inadmissibility on the basis of the gravity of a case should be interpreted narrowly providing for an exception only in limited cases. The proclamation of an amnesty does not alter the gravity of the individual cases covered. The character and seriousness of the crime does not change. The suffering by the victims is equally grave with or without the proclamation of an amnesty. Considerations that an amnesty facilitated the transition to peace seem out of place when it comes to the gravity of a case. After all, evaluating the gravity is not a question of appropriateness of prosecution. It is one which is informed by the seriousness of the alleged crime itself. The decision that a case is not of sufficient gravity is to be distinguished from the rules concerning the initiation of an investigation by the Prosecutor. 59 Article 53 provides that the Prosecutor shall among others consider whether an investigation would serve the interests of justice.s? Contrary to this provision, article 17, which determines the admissibility of a case, is not the right place to deal with questions of appropriateness that is informed by circumstances outside the crime. There is another argument against assuming inadmissibility on the basis of article 17 para. 1, subpara. d.61 If a national amnesty precludes every form of investigation, the very minimum requirement for dealing with the crimes for which the ICC has jurisdiction, there has not been any coming to terms with the past which might reduce the need for the Court's involvement. In such cases further action by the Court is in59 60

61

See Chapter IV, 1. Article 53, para. 1, subpara. c and para. 2, subpara. c. Para. 1, subpara. c provides that the Prosecutor shall take into account the gravity of the crime and decide whether "there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice". The term "nonetheless" indicates that there may be circumstances that reduce the interest of justice despite an unchanged gravity of the crime. This argument applies especially to those who argue that the gravity of a case needs to be evaluated on the basis of the exceptional circumstances that led to the proclamation of an amnesty.

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deed justified. After all, subpara. d should not be applied in a way that renders the requirements of the other subparas, especially the conduct of an investigation, meaningless. Therefore, the application of subpara, d should be reserved to exceptional cases where the crime committed was of minor gravity in order not to undermine the jurisdiction of the ICC. A domestic amnesty, however, does not warrant the conclusion that a case is inadmissible due to insufficient gravity of the case. The conclusion that cases covered by an amnesty without investigatory mechanism are admissible for the ICC leads to the question whether this also applies to amnesties which provide for an investigation by a truth commission.

3. Truth Commissions under Article 17 Taking into account that article 17 gives special attention to the conduct of an investigation there seems to be more room to argue that a truth and reconciliation process as a form of extrajudicial proceedings satisfies the requirements for complimentarity therefore excluding a trial by the ICC. Whether this is accurate depends on the question whether procedures that rule out criminal prosecution but set up an alternative mechanism provide for the accountability envisaged by the Rome Statute. a. Criminal versus Non-criminal Investigation

As indicated above, a case is inadmissible if it is being or has been investigated or prosecuted by a state unless the state is or was unwilling to carry out the investigation or prosecution.V The first question to be addressed is whether a truth commission mechanism constitutes an investigation as envisaged by article 17. Since this provision requires that the case at issue is or has been investigated, an individualized case-bycase study is necessary. There has been discussion as to whether a criminal investigation is necessary.v If this was the case a truth commis-

62

63

During the process of inquiry article 17, para. 1, subpara. a is relevant while subpara. b is applicable after the completion of the inquiry. Scharf, see note 54, 525. Roht-Arriaza argues that criminal justice is the goal of the investigation envisaged by article 17. Roht-Arriaza, see note 54, 77,79. See also Holmes, in: Lee, see note 39, 77. But according to Wolfrum

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sion as an alternative to criminal prosecution would not satisfy the requirements of article 17 para. 1, subparas a and b with the result that a case that has been dealt with by such a mechanism would be admissible under this provision. It has been argued that article 17 envisages cases in which investigation is conducted with intent to criminally prosecute and punish the offenders and where prosecution fails due to insufficient evidence.v' But its text does not rule out non-criminal investigations. Instead it refers to investigation or prosecution.P It is not specified that the decision not to prosecute needs to be based on the factual outcome of the investigation. 66 Even if it is argued that the provision envisages investigations leading to a decision whether or not to prosecute, this would exclude only a truth commission mechanism that generally provides for criminal impunity independent of the outcome of the investigation. But it would still cover case-by-case investigations resulting in an individualized grant of criminal impunity which, like in the case of South Africa, depends on an admonition by the offender. Another argument brought forward to require a criminal investigation is the provision of article 17 para. 2. 67 This provision gives guidance for the evaluation whether a state is unwilling to prosecute. Such unwillingness results in the admissibility of a case despite the conduct of an investigation or prosecution. Article 17 para. 2 provides:

64

65 66 67

a criminal investigation is not necessary under article 17. Wolfrum, see note 53,1156. This is the position taken by O 'Shea who concludes that a decision to grant amnesty to the accused never does affect the jurisdiction of the ICC. According to him the failure to prosecute based on amnesty amounts to an inability to prosecute. O'Shea, see note 17, 126. Article 17 para. 1, subpara. a. See subpara. b. Scharf, see note 54, 525; O 'Shea, see note 17. See also J. Gavron, "Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court", ICLQ 51 (2002), 91 et seq. (111). But see Broomhall who argues that "an amnesty granted in the context of a 'tru th commi ssion ' process could be con sidered an 'investigation' followed by a bona fide decision not to proceed for purposes of article 17 (1)(b)" . B. Broomhall, "The International Criminal Court: A Checkli st for National Implementation", in: Association Internationale de Droit Penal (ed.), ICC Ratification and National Implementing Legislation, 1999, 113 et seq. (144).

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In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. The reference to an intent to bring the person concerned to justice in subparas band c has been interpreted as indicating that a criminal investigation is necessary." It is already questionable whether intent to bring a person to justice requires an investigation aiming at the prosecution of the accused or whether alternative forms of accountability are also permissible. Furthermore, there is reason to doubt that para. 2 limits a priori the possible avenues of investigation envisaged by para. 1 of article 17. It merely gives guidance as to the second element, namely whether there is an unwillingness to prosecute. Only if there is an unjustified delay or a lack of independence which is inconsistent with an intent to bring a person to justice can it be concluded that there was unwillingness. A lacking of intent to bring a person to justice alone does not suffice.s? To conclude that a criminal investigation is required would therefore go beyond the scope of para. 2. It is, therefore, more appropriate to ask first whether an investigation has taken place without limiting it to criminal investigations and then to inquire whether the state is or was unwilling to prosecute. Under this reading a truth commission mechanism providing for individualized amnesty satisfies the requirement of an investigation so that the admissibility of a case depends on the question whether there was unwillingness of the state to prosecute. 68 69

Ibid. Only if the proceedings were made for shielding the accused from criminal responsibility pursuant to article 17 para. 2, subpara . a or if subparas b or c are met, an unwillingness can be assumed.

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Max Planck UNYB 7 (2003)

b. The Meaning of Unwillingness to Prosecute To determine unwillingness, the Court will have to consider whether there has been a shielding from criminal responsibility, an unjustified delay or any bias in the proceedings. In most cases truth commissions are not problematic for reason of delay or bias which would render a case admissible for prosecution by the Court.P Therefore, if the investigation by a truth commission is conducted independently, impartially and in a timely manner the unwillingness to prosecute rendering the case admissible depends on the question whether the proceedings by the truth commission or the national decision not to prosecute had the purpose of shielding persons from criminal responsibility." Some authors argue that the grant of criminal impunity is made clearly with such an intent." However, if criminal punishment is waived by a truth commission in the interest of re-establishing peace the purpose is not to shield individual persons but to serve a greater objective at the expense of criminal justice. The non-prosecution is merely a means to this end. This suggests that a state in such cases is not unwilling genuinely to carry out the prosecution as required by article 17.73 The decision of the ICC, therefore, will ultimately depend on an evaluation whether the shielding of the perpetrators was the genuine purpose of the truth commission mechanism or whether non prosecution was used as a means to achieve a legitimate higher purpose.

70

71

72

73

According to subpara. c a case is admissible despite the conduct of an investigation if th e proceedings were or are not conducted independently or impartially and in a manner inconsistent with an intent to bring the person concerned to justice. These are cumulative requirements so that unwillingness pursuant to this provision fails if there is either no intent to bring the offender to justice or if the proceedings are independent and impartial. Broomhall, see note 67, 145. Since both requirements stand side by side, impartiality cannot be derived from the mere lack of intent to criminally prosecute. See article 17 para. 2, subpara. a. According to Gavron the shielding is the intended consequence of an amnesty. Gavron, see note 67, 111. Dugard argues that an amnesty results from an unwillingness of the state to prosecute. J. Dugard, "Dealing with Crimes of a past Regime. Is Amnesty still an Option", L]I L 12 (1999), 1014 et seq. See article 17 para. 1, subparas a and b. Schabas, see note 41,69; Wolfrum, see note 53, 1156.

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To be clear, it is not sufficient to maintain that the waiver of criminal responsibility was a means to an end. In determining a legitimate purpose for the waiver of criminal punishment special attention should be given to the purpose of the Rome Statute. Taking into account that it is intended to put an end to impunity for the most serious crimes, the exception for truth commissions should be narrowly interpreted.?" However, if it is in the interest of peace and security and if prevention of future crimes is not put into question - the reasons given in the Preamble for the establishment of the ICC75 - a truth commission mechanism should be more readily accepted." Not to prosecute is sometimes the necessary means to achieve peace and security." Especially in situations where transition to peace and security depends on the abandonment of prosecution, argument can be made against prosecution by the ICC. 78 The drafters of the Rome Statute were aware of this problem and wanted the complementarity regime to take account of national reconciliation initiatives entailing legitimate offers of amnesty or internationally structured peace."? Not to criminally prosecute in such instances where it is necessary to establish peace does not result in blank impunity because accountability may also be realized by non-judicial efforts even if they fall short of criminal prosecution. For the ICC to accept a truth commission mechanism as sufficient it is therefore necessary that it was established to serve peace and security. This issue needs to be determined on the basis of the particular factual situation in a counrry.'" If there is a responsible democratic decision 74

75 76 77

78 79

80

Scharf, see note 54, 527. Paras 3 and 5 of the Preamble. This is the reason given in para. 5 of the Preamble for the fight against impunity. See C. Villa-Vicencio, "Why perpetrators should not always be prosecuted: Where the International Criminal Court and Truth Commissions meet", Emory Law Journal 49 (2000), 205 et seq. (221). Scharf, see note 54, 526. GAOR, 51st Sess., Supp. No. 22, Doc. N51122, 37, para . 160. Broornhall who maintains that the determination under article 17 para. 2, subpara. a needs to be made on the basis of all circumstances, including the reasons for the decision not to prosecute. Broomhall, see note 67, 145. For the scope of the ICC's evaluation, see J.E. Mendez, "National Reconciliation, Transnational Justice, and the International Criminal Court", Ethics & Int'l Af! 15 (2001), 25 et seq. (43). He accords to the state a strong presumption in favour of deferring to its amnesty if efforts have been made to live up to international obligations.

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that seeks to reconcile the demand for justice with a pressing need for reconciliation by establishing an alternative mechanism of inquiry dealing with the past and thereby providing for the prevention of future atrocities and if there is an alternative form of redress for the victims, argument can be made that the decision was not made for the purpose of shielding persons from criminal responsibility. The more provision is made for the attainment of justice, for example by a mechanism to discover the truth and attribute individual responsibility to the perpetrators of the crimes and by alternative sanctions, the more reluctant the ICC should be to interfere. In such instances the Court may conclude that the ultimate goal of the Rome Statute to provide for the most attainable peace and justice has already been served." After all, under the complimentarity principle only such cases are admissible that have not been dealt with satisfactory on the national level. Whether domestic procedures are satisfactory needs to be determined by taking due account of the purpose of the Rome Statute.F The more serious a crime is, however, the more likely peace and security will be affected and the more reluctant the ICC should be to refrain from international prosecution.P It is questionable whether an amnesty for acts of genocide paralleled by an investigatory procedure may render a case inadmissible at all. The fact that genocide is one of the most serious offences that affects humanity as a whole is an important factor to be taken into account when evaluating the indispensability of international prosecution for genocide. c. The Relevance of State Obligations to Prosecute The argument has been made that the Court should not defer to an amnesty (including conditional amnesties) if the state proclaiming the am81

82

83

See also Scharf who established a catalogue of several criteria to guide the ICC. Scharfarguesthat the ICC should be reluctant to defer to an amnesty in situations involving violations of international conventions that create obligations to prosecute. Scharf, seenote 54, 526 et seq. Consequently complementarity does not only apply to national criminal prosecution but also to other internal processes of accountability. Dugard argues that apart from genocide, grave breaches of the Geneva Conventions and war crimeswere not appropriate for an amnesty. Dugard, see note 72, 1015. Scharfwants the ICC to consider whether the offences at issue constitute grave breaches of the Geneva Conventions or genocide, for which there is an international obligation to prosecute. Scharf, see note 54, 526.

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nesty acted contrary to an obligation to prosecute under another international convention.s" Such an obligation exists for most crimes for which the ICC has jurisdiction so that the Court would need to interfere with a broad range of truth and reconciliation processes.f" While the Conventions on genocide, torture, apartheid and the Geneva Conventions are addressed to states and not to international institutions, it could be argued that states which are bound under these conventions to punish offenders of serious crimes were barred from raising objections against the jurisdiction of the ICC on the basis of the respective international norm. After all the purpose of the ICC is to come in where a State party fails to prosecute the most serious offenses . The Rome Statute in its Preamble affirms that "the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation". 86 However, the substantive duty of a state to prosecute domestically derived from another treaty should be distinguished from the question whether the ICC as an international tribunal has jurisdiction.V There is no automatism that triggers the jurisdiction of the Court as soon as a state proclaims an amnesty contrary to its obligation to prosecute. Jurisdiction cannot be derived from such substantive provisions. The Genocide Convention in its article VI, for example, provides that perpetrators of acts of genocide "shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction" (emphasis added). Whether the international court has jurisdiction must be determined on the basis of the Rome Statute. As pointed out earlier, the duty to prosecute domestically has not been incorporated into the Rome Statute. Furthermore, the jurisdiction of the ICC under the Rome Statute is a limited one, limited not only to

84

85 86

87

J. Dugard,

"Possible Conflicts of Jurisdiction with Truth Commissions", in: Cassese et aI., see note 19, 693 et seq. (703) ; Scharf, see note 54, 526; Roht-Arriaza, see note 54, 78. See note 27. Scharf argues that the Preamble suggest that deferring a prosecution because of a national amnesty would be incompatible with the purpose of the Court. Scharf, see note 54, 522. According to Wolfrum the ICC does not have the competence to probe an amnesty on the basis of public international law. Wolfrum, see note 53,1156.

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certain crimes, but also by the principle of complementarity. Article 17 explicitly provides for certain exceptions to the Court's jurisdiction. If article 17 excludes the ICC's jurisdiction for certain cases it does not matter whether a State party under a different international norm is obliged to prosecute certain crimes dornestically.P As indicated above, in very limited circumstances the overall goal of the Statute to protect peace and security may better be served by not interfering with a domestic alternative mechanism of dealing with past crimes. In such cases, criminal prosecution by the ICC is no longer warranted despite the occurrence of grave crimes.s? That the existence of a duty to prosecute does not per se determine the admissibility of a case is also evidenced by the fact that the ICC may exercise its jurisdiction even if the state where the crime occurred can justify the failure to prosecute with the lack of an international norm requiring domestic prosecution. The assertion that a duty to prosecute does not render a case automatically admissible for the ICC, however, does not prevent the Court from considering the underlying idea of such international obligations.i? The fact that an international treaty reflecting customary international law mandates domestic prosecution of certain crimes is an indication for the belief that the punishment of such crimes due to their gravity is within the interest of the international community and necessary for global peace and security which the ICC seeks to protect. As indicated above, the nature of the charges evaluated by other sources of international law should be taken into account when determining the admissibility of a case despite a national amnesty." This does not mean that all serious crimes which require domestic prosecution under international law need to be prosecuted by the ICC. Instead, the seriousness needs to be balanced against the interest in peace and reconciliation pursued by a truth commission. If international law in the interest of 88 89

90

91

Similar G. Meintjes, "Domestic Amnesties and International Accountability", in: Shelton, see note 54, 83 et seq. (90). In such cases the concern of the international community warranting prosecution by the ICC is diminished. After all, para . 4 of the Preamble reserves its call for international cooperation to the most serious crimes of concern to the international community. Mendez argues that the ICC will have to judge each case on the basis of the principles of international human rights law. Mendez, see note 80, 42. See also article 21 para . 1, subpara. b which provides that the Court shall apply in the second place applicable treaties and principles and rules of internationallaw. Scharf, see note 54, 524.

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establishing lasting peace and security provides for minimum requirements for the acceptance of an amnesty, for example the conduct of an investigation, such requirements should be taken into consideration by the ICC when determining whether a conditional amnesty may be accepted in the interest of reestablishing peace. d. The Competence of the ICC Under the above analysis, article 17 leaves the Court with a certain margin to argue that under limited and compelling circumstances a case that is subject to an individualized inquiry by a truth commission is inadmissible despite a waiver of criminal punishment.V Doubts have been expressed as to whether the ICC is the most competent and appropriate institution to assess the necessity of an amnesty or truth commission process.v To counter this argument it is necessary to have a closer look to the functions of the ICC. The Court will have to evaluate the factual situation - a function which is not unusual for a court - and it will need to determine whether non-prosecution was used to be a means to achieve a purpose for which the Rome Statute stands. Since it is the ICC's mandate to ensure that the framework of the Rome Statute is not undermined and to enhance its lasting goals the Court seems to be the proper institution to deal with such issues." What the Court does in 92

Inadmissibility can, however, not be argued on the basis of article 17 para. 1, subpara. c which requires that the person concerned has already been tried for the same conduct referring to the ne his in idem rule of article 20. It is already questionable whether a truth commission process can be considered a trial as envisaged by arts 17 para. 1, subpara. c and article 20 para. 3. Trial by "another court" and the reference in article 20 to criminal responsibility seems to envisage a criminal trial. Van den Wyngaert/ Ongena, see note 54, 727. A truth commission, at least, does not qualify as a court which is the institution explicitly referred to in article 20. Gavron, see note 67, 109; Dugard, see note 84, 702; Scharf, see note 54, 525. But see G.K. Young, "Amnesty and Accountability", U.C.D.L. Rev. 35 (2002), 427 et seq. (469). 93 Gavron, see note 67, 112. 94 Hafner, Boon, Riibesame and Huston argue that the ICC represents the interest of the world community in the prosecution of international crimes for which it has jurisdiction and that it therefore is the competent institution to balance the interests for ensuring reconciliation with the interest in prosecution. Hafner! Boon/ Riibesame/ Huston, see note 48, 113. But Ellis who proposes a Third Party Advisory Council to provide recommendations on whether a country is able to carry out proceedings envisaged by

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these instances is not to arrive at a political decision but to determine its jurisdictional reach on the basis of the guidelines provided by article 17 and the Preamble of the Rome Statute.j" As mentioned earlier, the power of the Court to monitor judicial processes of a state is inherent in the complimentarity rule of article 17 which explicitly requires the Court to determine its jurisdictional reach.96 e. The Effects of Inadmissibility on Third Party Jurisdiction

There has been discussion on whether the admissibility decision of the Court is binding on all States parties so that they are prevented from initiating domestic criminal procedures if the Court holds that a case is inadmissible.V If the ICC decides not to prosecute a case which is subject to a truth commission process on the basis of article 17, those states which do not agree with such procedures may be inclined to step in and take up criminal proceedings either on the basis of the nationality of the victim or of the accused or on the basis of universal jurisdiction. Well before the establishment of the ICC there were instances where criminal proceedings were initiated by the authorities of a state with regard to crimes which had been amnestied by the state where they had been committed. One example is Spain which started investigation of crimes against Spanish nationals despite the Chilean amnesty degree. These proceedings led Spanish authorities to issue an arrest warrant for Chile's former head of state General Augusto Pinochet who received medical treatment in the United Kingdom." Taking these instances together

article 17. M.S. Ellis, "The International Criminal Court and its Implications for Domestic Law and National Capacity Building", Fla.]. Int'l L. 15 (2002),215 et seq. (240). 95 The state proclaiming the amnesty may be accorded a certain margin of appreciation in the evaluation of the factual circumstances provided it makes a good faith-effort to provide for accountability while re-establishing peace and security. Mendez, see note 80, 43. 96 Mendez holds that the Rome Statute is clear in placing responsibility on the ICC for deciding whether a domestic amnesty should bar international prosecution. Mendez, see note 80, 39. 97 For the discussion of this issue see Arsanjani, see note 15,68. 98 The immunity issue was dealt with by the House of Lords. N.S. Rodley, "Breaking the Cycle of Impunity for Gross Violations of Human Rights: The Pinochet Case in Perspective", Nordic j. Int'l L. 69 (2000), 11 et seq.; J. Brohmer, "Immunity of a Former Head of State General Pinochet and the House of Lords: Part Three", LjIL 13 (2000), 229 et seq.

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with the increased willingness of some states to assume universal jurisdiction, as evidenced for example in the Belgium legislation?", the question will eventually arise whether the decision of the ICC not to prosecute certain cases covered by a truth commission process would bar national courts of other states from prosecuting these cases. Argument has been made that the interest of the world community in the prosecution of the crimes enumerated by the Rome Statute rests with the ICC and therefore no longer with the States parties. 100 There is, however, nothing in the Rome Statute that supports this assumption. While the reasons given by the Court may convince a third state not to exercise jurisdiction the mere fact that the Court determines that a case is inadmissible under article 17 has no binding effect on the States parties to the Statute. The only provision that inhibits a State party from prosecution is article 20 para. 2. It provides that cc [no] person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court." A decision by the Court that a case is inadmissible on the basis of complementarity is neither a conviction nor an acquittal. Therefore, the Rome Statute does not provide that the decision is binding on other States parties. The question whether third states may go forward prosecuting crimes despite an amnesty proclaimed by the country where they were committed is one which has to be determined on the basis of the rules of jurisdiction. Arguably, the fact that the ICC concluded that it had no jurisdiction because a prosecution was not in the interest of peace and

99

100

A 1993 Belgium law entrusted Belgium courts with jurisdiction over offences such as grave breaches of the Geneva Conventions, their Additional Protocols, and crimes against humanity, regardless of where the offence was committed. Law of 16June 1993 "concerning the Punishment of Grave Breaches of the International Geneva Conventions of 12 August 1949 and of Protocols I and II of 8 June 1977 Additional Thereto", as amended by the Law of 19 February 1999 "concerning the Punishment of Serious Violations of International Humanitarian Law". An arrest warrant issued on the basis of this law was at issue before the ICJ in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo o. Belgium), Judgment of 14 February 2002. The law was amended by the Belgian Parliament in 2003 restricting the scope of the law so that a link to Belgium-like the nationality of the victim or the alleged criminal-is now required . Hafner! Boon! Riibesame! Huston, see note 48, 113.

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security may inform the question whether there is a universal interest in the prosecution and thus whether a state has universal jurisdiction.l?'

I~

Alternative Options to Deal with Amnesties

Since the Court according to the above analysis has jurisdiction for a broad range of cases covered by an amnesty, especially those that have not been subject to an investigation, the question remains whether the Prosecutor and the Court in addition to article 17 are given the option or are even obliged not to prosecute such crimes on other grounds.

1. Denial of Investigation for Lacking Interest of Justice?

If a matter covered by an amnesty is referred to the Court pursuant to article 13, the Prosecutor may refrain from prosecution despite admissibility if it would not serve the interests of justice. Article 53 para. 1, subpara. c provides that the Prosecutor in the pre-investigatory stage may determine that there is no reasonable basis to proceed because "[tjaking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice". Similarly, upon investigation, the Prosecutor may conclude that there is not a sufficient basis for prosecution because "[a] prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime".102 The ultimate decision lies with the Pre-Trial Chamber of the Court.P' A number of commentators cite this provision as providing the Court with the necessary flexibility to defer to an amnesty despite the admissibility of cases covered by an amnesty or alternative mecha-

101 Ibid. For the issue of universal jurisdiction, see also G. Meintjes/ J. E. Mendez, "Reconciling Amnesties with Universal Jurisdiction", International Law Forum 2 (2000), 76 et seq.; R. Boed, "The Effect of a Domestic Amnesty on the Ability of Foreign States to Prosecute Alleged Perpetrators of Serious Human Rights Violations", Cornell j. Int'l L. 33 (2000),297 et seq. 102 Article S3 para. 2, subpara. c. 103 Article S3 para. 3, subpara. b.

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nism.l?' There is, however, reason to doubt, whether article 53 is the appropriate legal basis for these issues. Though it lists a number of casespecific factors that indicate whether the prosecution is in the interest of justice, like the gravity of the crime, the age and the role of the alleged perpetrator, it does not refer to situations where an amnesty is granted for the purpose of reconciliation. 105 Instead it explicitly requires the consideration of the interests of the victims. Since unconditional amnesties without investigatory mechanism usually compromise the interests of the victims for the sake of reconciliation it is difficult to argue that international prosecution is not in the interest of justice taking due account of the victims' interests. Apart from the interests of the victims, it is questionable whether justice itself is better served by deferring to a national amnesty. It is rather peace and security than justice that is served by the proclamation of an amnesty. 106 It has been argued that amnesty is a political act, in which the element of justice in a judicial sense does not figure. 107 To require justice in such a strict sense is probably not appropriate. 108 Justice may also be served by alternative means of establishing accountability.l09 Arguably, the inquiry process by a truth commission already serves the interest of justice'J? and there is no additional need for international prosecution. However, if no investigation has taken place the interest of the victims in obtaining justice can hardly be served. These considerations are already part of the evaluation under article 17. 111 Ac104 Dugard, see note 72,1014; Gavron, see note 67,110; Roht-Arriaza, see note 54,81; R.J. Goldstone/ N. Fritz, "In the Interests of Justice' and Independent Referral: The ICC Prosecutor's Unprecedented Powers", LJIL 13 (2000), 655 et seq. (662). 105 Roht-Arriaza, see note 54, 81. 106 To my mind "justice" in this context is not a "fluid notion of the protection of the rights of man". See the different definitions of justice outlined by O'Shea. O'Shea, see note 17, 317. Considering the purpose of the Rome Statute as expressed in the Preamble it rather describes the necessity of holding someone accountable for crimes committed. O'Shea argues that article 53 is about the "justice of the case". Ibid. 107 Arsanjani, see note 15,67. 108 Goldstone/ Fritz, see note 104, 662. 109 The term restorative justice is used to distinguish such forms from retributive justice. 110 Gavron, see note 67,110. III It is interesting to note that the authors who favour a decision by the prosecutor on the basis of article 53 ultimately refer to factors that also in-

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cording to the above given interpretation of article 17, a case covered by a conditional amnesty is inadmissible under certain circumstances. There does not seem to be additional room for the Court's discretion to defer to national amnesties for the interest of justice.U- If the analysis under article 17 reveals that the Court has jurisdiction despite the conduct of an investigation in the interest of peace and security, it can hardly be argued that the prosecution is not in the interest of jusrice.U'' Therefore, if a case is referred to the Court which is covered by an amnesty and if the case is admissible according to the above given interpretation of article 17 - for example due to a lack of investigation the Prosecutor should not defer to the amnesty relying on article 53.

2. Discretion Regarding proprio motu Investigations In cases where a matter, for political considerations, is not referred to the Court by a State partyl14 or by the Security Council, the Prosecutor is left with the decision whether to start investigations proprio motu. The Prosecutor may receive information from victims, their families, international organizations or non-governmental organizations. It has been argued that article 15 gives the Prosecutor the power to decline to

form the above given interpretation of article 17, namely the gravity of the crime concerned, the interests of the victims, whether a quasi-judicial inquiry has taken place and whether the amnesty was granted by the offenders themselves. Dugard, see note 84, 703; Goldstone/ Fritz, see note 104, 665. 112

113

The Prosecutor would run counter to the general framework of the Statute that intents to end impunity (Preamble, para. 5.) and provides that the Court shall have jurisdiction under article 17 para. 1, subparas a and b if not even an investigation has taken place if he denied investigations of cases covered by a national unconditional amnesty where no such domestic investigation has taken place. If, however, one follows a more rigid interpretation of article 17 not providing for any exception for truth commissions, article 53 is the only alternative for a discretionary power of the ICC not to prosecute crimes covered by an amnesties. Dugard, see note 72, 1014. According to Dugard the Court may also have regard to an amnesty in mitigating the sentence. Ibid., 1014.

114 Such a referral depends on the requirements of article 14.

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exercise her or his discretion to prosecute proprio motu with the argument that a domestic amnesty should not be interfered with. ll5 Article 15 para. 1 indicates that the Prosecutor is provided with a fairly wide discretion as to whether to initiate investigations proprio motu. There is, however, reason to doubt whether this discretion should be used by the Prosecutor to generally abstain from prosecuting crimes which have been amnesties without the conduct of a domestic investigation process. In exercising her or his discretionary powers the Prosecutor is well advised to take account of the framework set by article 17. As indicated above there may be cases which are inadmissible for the ICC to deal with because a truth and reconciliation is in process or has been conducted. If, however, no investigation has taken place, a case is admissible and an investigation by the Prosecutor should not be denied because of the national amnesty. The consideration that certain alternative mechanisms of accountability should not be interfered with in the interest of peace and security can be taken care of under article 17.116 To go beyond this provision would nullify the investigation requirement that is at least an emerging rule of international law ll7 and explicitly referred to in article 17. In any case it is doubtful whether the decision to defer to an amnesty should be made by the Prosecutor. The Prosecutor's task is to "analyse the seriousness of the information received"118 and to submit to the Pre-Trial Chamber a request for authorization of an investigation if he concludes that "there is a reasonable basis to proceed with an investigation...".119 This is an evidentiary test, not one of appropriateness.P? The seriousness is concerned with the nature of the alleged crime as well as the strength of the incrimination contained in the information.F! To determine the seriousness of the information and the reasonable basis for an investigation the Prosecutor needs to determine

115 Dugard, seenote 72,1014. 116 Dugard who argues that it is possible that a genuine amnesty may be protected by prosecutorial discretion, reads article 17 more narrowly and argues that it is difficult to argue that conditional amnesties do not result from an unwillingness to prosecute. This is why he tries to solve the problem by applying arts 15 and 53. Dugard, see note 84, 702. 117 Seibert-Fohr,see note 12, 328 seq. 118 Article 15 para. 2. 119 Article 15 para. 3. 120 M. Bergsmol J. Pejic,"Article 15», in: Triffterer, see note 25, 365. 121 Ibid.

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whether the facts before him justify the conclusion that there is reasonable ground that an investigation may lead to a conviction. This concerns primarily the questions whether the information is reliable, whether the matter can be qualified as a crime as defined in arts 6 to 8 of the Statute, how serious the alleged crime was and whether an investigation may provide the factual basis for prosecution.F? Article 15 therefore does not seem to be the right place to deal with political considerations on amnesties.V' To sum up, the question whether crimes that fall under a national amnesty should be prosecuted by the ICC should preferably, be dealt with on the basis of article 17, rather than on arts 15 or 53. 124 Article 17 with the requirement of an investigation and the factors spelled out to determine a state's unwillingness to prosecute gives better guidance for the issues at stake than the provisions on the initiation of an investigation. l2 S It thereby refutes the above cited criticism that the issue of amnesty was left to the unfettered discretion of the ICC or its Prosecutor. 126

122

123

124 125

126

According to Hoffmeister and Knoke questions about the Coun's jurisdiction and the admissibility do not matter at this stage. F. Hoffmeister! S. Knoke, "Das Vorermittlungsverfahren vor dem Internationalen Strafgerichtshof - Prufstein fur die Effektivitat der neuen Gerichtsbarkeit im Volkerstrafrecht", ZaoRV 59 (1999), 785 et seq. (792). Bergsmoand Pejic while talking about an unconditional and discretionary initiation right of the Prosecutor point out that the exercise must be guided by the principle of the most serious crimes of international concern. Bergsmo/ Pejic, see note 120,364-365, paras 9 and 13. The preference for a solution under anicle 17 may be especially appealing for lawyers with a civil law background where the evidence guides predominantly the decision of the prosecutor while public interests play an important rule in common law jurisdictions. For this difference, see Gavron, see note 67, 110. But see Roht-Arriaza, see note 54, 81; Goldstone/ Fritz, see note 104, 662. This is not to oblige the Prosecutor to investigate and prosecute any case for which the ICC has jurisdiction. But once a case is admissible the selection should not be guided by political considerations like the reasons to sustain the effectiveness of a national amnesty. Seenote 38.

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3. Deferral of Investigation due to a Security Council Resolution There is still one option which will prevent the ICC from considering a case covered by an amnesty even if the case is admissible under the Rome Statute. The Court will be barred from investigation and prosecution pursuant to article 16 if the Security Council adopts a resolution under Chapter VII of the UN Charter requesting the Court not to proceed with the proceedings for a period of 12 months. 127 The request may be renewed. The reference to Chapter VII indicates that a threat to peace pursuant to article 39 of the UN Charter is necessary for such a request. It has been argued that a situation in which refusal to recognize a national amnesty constitutes a threat to international peace was difficult to conremplate.P" But if the ICC proceeded despite an amnesty which forms part of a UN brokered peace agreement and which is the only means to end a serious conflict, the transition to peace might be weakened due to massive protests in the respective country, or even earlier the parties to the conflict might be less willing to accept such an agreement. This provides ample argument for the power of the Security Council to request a stay of prosecution in order not to jeopardize a peace agreement that includes an amnesty provision.V? This does not mean that the ICC is automatically bound by every such resolution of the Security Council. Article 16 of the Statute prevents the Court from investigation and prosecution only if a resolution was "adopted under Chapter VII of the Charter of the United Nations ...". If the requirements of these Charter provisions are obviously not met a resolution cannot be considered as being adopted under them. One commentator has gone so far as to maintain that the ICC generally has a competence to assess whether the Security Council acted

127

128

129

For details on the prerequisites for such a resolution and on its limits, Scharf, see note 67, 523. According to Gavron article 16 should not be invoked to secure permanent respect for an amnesty law because it was intended to be a temporary measure. Gavron, see note 67,109. Dugard, see note 72,1014. But later he said that a situation was not inconceivable in which the trial by the ICC of a former dictator who had been granted national amnesty threatened international peace. Dugard, see note 84, 702. Gavron who ignores that a situation may deteriorate without the deferral by the Security Council. Gavron, see note 67,109. Roht-Arriaza argues that the breach of the peace requirement has been construed broadly in recent years. Roht-Arriaza, see note 54, 80.

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in conformity with the requirements by the Charter.P? But to accord to the Court a broad supervisory function seems to go too far. Though the Court has the power to determine the scope of its jurisdiction, the different functions of the two institutions should be kept in mind. The Security Council seems better placed to determine whether there is a threat to international peace. Therefore, it should be accorded a margin of appreciation regarding these factual determinations.P!

~

The Effect of the Rome Statute on National Amnesties If there is no request for deferral by the Security Council, the Court, once it adopts the above given analysis of the Rome Statute, will be able to prosecute a broad range of crimes covered by unconditional national amnesties. The effect will be that offenders who were promised not to be prosecuted by national authorities will be held accountable internationally. While the failure to prosecute itself does not conflict with the Rome Statute, the Statute sets up a number of cooperation duties which may run counter to the promise of impunity given by a government in connection with an amnesty. For example, article 86 requires the States parties to cooperate fully with the Court in its investigation and prosecution. The States parties shall comply with requests for arrest and surrender pursuant to article 89. A State party may not deny the surrender of an accused with reference to a national amnesty. Though article 89

130

131

Scharf, see note 54, 523. He refers to the decision of the Appeals Chamber of the Yugoslavia Tribunal in the Tadic case. However, this case was somewhat different since the Tribunal was established by a Security Council resolution and by assessing this resolution the Appeal Chamber legitimized its jurisdiction in the first place. In the case of the ICC, however, jurisdiction is established by the Rome Statute. Only the exception of article 16 makes it necessary to make a finding on the Security Council's competence. Roht-Arriaza doubts whether the Security Council can order the deferral if there is an international obligation to prosecute the crimes concerned because it is bound by the principles of the UN including human rights . The order of deferral does, however, not necessarily conflict with human rights law. Human rights law does not provide for an absolute prohibition of amnesties and the duty of states to prosecute certain crimes does not necessarily mean that these crimes must be prosecuted by the ICC. Roht-Arriaza, see note 54, 80.

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takes account of the national procedures for surrender, uz this only concerns procedural rules but not substantive provisions on criminal responsibility like amnesty laws. 133 Other obligations under the Rome Statute which may conflict with an amnesty providing for a halt of investigation are the duties to cooperate under article 93. States parties are required under this provision to provide the identification and whereabouts of persons and to comply with requests for the taking of evidence, questioning, service of documents, examination of places, execution of searches and seizures, provision of documents and other types of assistance in relation to investigations or prosecutions. The request may not be refused with the argument that an amnesty law prohibits such cooperation. Similar to article 89 the reference to national procedures cannot be interpreted as making room for such argument. This also applies to other forms of assistance which is required unless prohibited by domestic law.134 The reference to domestic law is to be understood as a clarification that other forms of assistance are only required if such forms are not generally prohibited under domestic law.135 Otherwise, the whole mechanism of cooperation and surrender could be rendered meaningless by the proclamation of a domestic statute prohibiting assistance to the Court. If the State party is reluctant to surrender the alleged perpetrators or to fulfill other cooperative obligations it will pose practical problems for the Court which depends to a certain degree on the cooperation of

132

133

134 135

It provides that the States parties "shall, in accordance with ... the procedure under their national law, comply with requests for arrest and surrender". During the drafting of this provision the view was expressed in the Ad Hoc Committee on the Establishment of an International Criminal Court that "national authorities should not have the right to examine the warrant in relation to substantive law, while certain formal requirements might be made." Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, GAOR, 50th Sess., Suppl. No. 22, Doc. A/50/22, 40, para. 212. See also C. Kreii/K. Prost, "Article 89", in: Triffterer; see note 25,1074, para 14. Article 93 para. 1, subpara. 1. A similar provision is to be found in article 99 para. 1 according to which the procedure or executing requests of assistance shall be "in accordance with the relevant procedure under the law of the requested State". This provision like the above mentioned article 89 para. 1 only refers to procedural rules but not to substantive provisions on criminal responsibility as in the case of amnesty legislation.

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the state on whose territory the crimes were committed and where the accused is present to obtain evidence and secure the attendance of the accused and of the witnesses.P> But such practical considerations have not prevented its predecessors from exercising jurisdiction anyhow. In conclusion the following can be said. An amnesty is not per se in violation of the Rome Statute. But nor does it prevent the ICC automatically from exercising its jurisdiction under the Statute. Only under limited circumstances is a case which is subject to a truth commission process inadmissible. If this is not the case and if the Court has jurisdiction a State party has to abide by the Court's requests to surrender the accused or to execute cooperative functions in the prosecution.P? The States parties will be obliged to provide assistance for the international prosecution even if this runs counter to the earlier promise not to prosecute and perhaps not to extradite the offenders. These obligations have the potential of rendering a domestic amnesty ineffective . Even if the grant of amnesty is limited to the promise that national authorities will refrain from prosecution, the underlying idea is to prevent prosecution entirely. Amnesty legislation may even include a provision on non-extradition for the crimes covered. Despite such potential conflicts, the State cannot justify noncompliance with the Rome Statute by referring to internal legal restraints.P" Eventually the exercise of jurisdiction by the Court in cases of unjustifiable amnesties may have an impact on the future practice of states for the grant of amnesties.P? The States parties to the Statute or those planning to become a party may out of political considerations be inclined to avoid international prosecution by the ICC by abstaining from amnesties or drafting mechanisms in line with the basis requirements set out above .l '? This underlines once more the importance of the Rome Statue for the future use of amnesties. It does not only render amnesties ineffective but may even influence future state practice. After all, the individual state is no longer the only sovereign body making final decisions over the prosecution of certain crimes. Though the Rome Statute does not mandate domestic prosecution the ICC has the power

136 137 138 139 140

O'Shea, see note 17, 127. As spelled out in article 93. See also article 46 para . 1 of the Vienna Convention on the Law of Treaties. Mendez, see note 80, 39. For an analysis of the implications of the Rome Statute for domestic law, Ellis, see note 94, 215.

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to take up certain cases even if the national authorities have decided against prosecution.lf

VI. Concluding Remarks and Outlook The analysis of the Rome Statute shows a complex picture of how amnesties and truth commissions processes need to be dealt with by the ICC. The underlying idea of the Statute that perpetrators of the most serious crimes should not go unpunished, makes clear that the ICC is not automatically bound to defer to national amnesties.I'" This view was also taken by the French Conseil Constitutionnel when it was asked by the French President and Prime Minister to decide whether ratification of the Rome Statute required prior revision of the French Constitution.I" The Court held that the ICC could be validly seized with a case covered by an amnesty. The jurisdictional power of the ICC to deal with such cases was derived from the complementarity principle. 144 The prosecution of such cases by the ICC would conflict with the French sovereign power to grant amnesties. The Court concluded that this power together with other judicial powers of the Court conflicted with the "essential conditions for the exercise of national sovereignty" which is protected by the French Constitution. The decision led to an amendment of the French Constitution permitting and therefore clearing the way for ratification of the Statute.I" This amendment has been interpreted by a commentator as demonstrating France's willingness to limit its national sovereignty and to make the exercise of sov-

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It goes without saying that the requirements of article 17 have to be met and that the crime must be one for which the Court has jurisdiction. The proposal that the Court shall not have the power to intervene when a national decision has been taken in a particular case (Doc. A/CONF.18312/ Add.l, 42) was finally not adopted. Decision of January 22, 1999, No. 98-408 DC, 1999 J.O. 1317, - See also B. Rudolf, "Statute of the International Criminal Court", AJIL 94 (2000),391 et seq. The Court explained its decision with the limited list of reasons for declaring a case inadmissible in article 17. See new article 53-2 inserted by Constitutional Law 99-568 of July 8,1999.

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ereignty consistent with the international standard that perpetrators of serious crimes should not go unpunished. 146 Whether the ICC has jurisdiction to deal with cases covered by an amnesty or truth commission mechanism needs to be determined on the basis of the delicate balance struck by article 17 of the Rome Statute. Since the conduct of a domestic investigation into past crimes is the very minimum requirement, cases which are subject to an unconditional amnesty are usually admissible under this provision. The picture is different when it comes to truth commission mechanisms which provide for an investigation. Article 17 leaves the Court with a limited leeway not to prosecute offenders when an individualized amnesty has been granted by a national truth commission in the interest of reestablishing peace and security.l"? While it is clear that an investigation is the minimum requirement, the Court will need to elaborate specific guidelines to determine whether the truth commission process shows a genuine unwillingness to bring alleged criminals to justice or whether it satisfies the demand for accountability under the Starute.v" At least as long as the decision of a State party to grant conditional amnesty is in accordance with the international legal standards the Court should not interfere.U? At the same time the Court should be guided by the overall purpose of the Rome Statute to protect peace and security. Account should be taken of the fact that the Rome Statute deals with the most serious human rights violations. In order not to undermine the general framework of the Rome Statute, the national decisions to provide for a truth commission instead of criminal prosecution should be followed only under limited circumstances. The text of the Statute thus gives the ICC the necessary but at the same time limited latitude to deal with amnesties adequately. The above 146

147

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Rudolf, see note 143,395. To understand the Rome Statute as providing for prosecution for all cases of amnesties for the crimes falling within the jurisdiction of the ICC, however, is not in accordance with the above given interpretation of article 17. According to Scharf the Statute reflects "creative ambiguity" permitting the Court a certain leeway to recognize an amnesty exception to the court. Scharf, see note 54, 522 with further reference. The drafters did not adopt the earlier proposal rendering a case inadmissible in case of domestic investigations without regard to the genuine nature of the proceedings. Instead, by adopting the final text of article 17 they indicated that the purpose will need to be scrutinized by the Court. For the rejected proposal (Doc. A/CONF,18312/Add.1, 42), see note 36. Mendez, see note 80, 43.

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given interpretation makes sure that democratic transition in a principled way is not precluded - a fear that has been expressed by some authors and the United States.150 The decision between prosecution and reconciliation will not be made by the Court. But the democratic decision granting conditional amnesty will be respected if it is within the interest of the lasting goals the Statute seeks to attain. Even if a case covered by an amnesty is admissible there is still the option that the Security Council asks the Court not to proceed with the prosecution if there is a threat to peace. The legitimacy and credibility of the Court will, among other things, depend on how the Court will deal with the issue of amnesties. Article 17 with the emphasis on investigation and the factors spelled out to determine a state's unwillingness to prosecute read in context with the Preamble of the Rome Statute provides the Court with the necessary judicial guidelines in making these determinations. A Protocol to the Rome Statute has been proposed in order to provide, among other things, for an exception to international prosecution by the ICC for situations covered by an amnesty. In the author's words the Protocol genuinely seeks to reestablish peace and security and tries to reconcile "necessary and human rights- sensitive amnesties with the developing framework for global justice".151 Taking into account that the drafters of the Rome Statute could not agree on a specific provision on amnesties, the chances for an additional protocol on this issue are quite limited. The law on amnesties is a very complex issue. The decision whether a national amnesty should be accepted by the international community requires a delicate balancing of interests which differ from case to case. A general abstract provision in the Statute providing for a general exception to the Court's jurisdiction in case of a national amnesty is hard to imagine and was probably not feasible. l s2 Even if a treaty spelling out international rules for the adoption of amnesties is deemed to be desirable, the need that the ICC accepts certain types of amnesties can be accommodated by an interpretation of article 17 which is informed by the purpose of the Statute as spelled out in the Pream-

150 See note 12. 151 O'Shea, see note 17, 336. Young asks for a provision on amnesties in the Rules of Procedure and Evidence. Young, see note 92, 477.

152 This is also because the international law on amnesties is a developing one. Holmes argues that "some subjectivity had to be retained to give the Court latitude on which to base its decision of finding unwillingness". Holmes, in: Lee, see note 39, 50-51.

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ble.15J Article 17 gives sufficient breadth to deal adequately with this difficult issue.'>' It thereby reflects the intent of many drafting delegations to accept good faith amnesties granted in the context of a truth commission like the one in South Africa while rejecting bad faith amnesties as the ones granted by South American dictators. ISS The solution ultimately needs to be arrived at on a case by case analysis.

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IS5

O'Shea's need for a protocol is due to a very restrictive reading of article 17 leading to the Court's jurisdiction even in all cases covered by truth commission mechanisms. O'Shea, see note 17, 126. This was the view of some delegations who argued that an additional provision on amnesties was not necessary because the provisions on admissibility could give the Court sufficient breadth to examine such cases. Holmes, in: Lee, see note 39, 60. Schabas, see note 41, 68-69.

The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity Markus Benzing

I. II.

Introduction The Nature of the Principle of Complementarity 1. Adm issibility v. Jurisdiction 2. The Rationale of Complementarity III . Article 17 Analysed: The Substance of the Principle 1. Article 17 (1)(a) a. Unwillingness aa, Article 17 (2)(a) bb. Article 17 (2)(b) cc. Article 17 (2)(c) b. Inability (Article 17 (3» 2. Article 17 (1)(b) 3. Complementarity and ne his in idem (Article 17 (1)(c» 4. Gravity of the Offence (Article 17 (1)(d» IV The Pro cedural Framework 1. The Court as Arbiter over the Complementarity Regime 2. Duty of the Prosecutor to Inform States under Article 18 3. Request by States to Defer Investigation 4. Complementarity and the Security Council 5. Burden and Standard of Proof 6. Waiver of Complementarity V Conclusion

A. von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Volume 7, 2003, 591-632. © 2003 Koninklijke Brill N. V. Printed in the Netherlands.

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I. Introduction The Preamble of the Rome Statute of the International Criminal Court! and article 1 refer to the International Criminal Court (ICC) as an international institution that "shall be complementary to national criminal jurisdictions'V This complementary relationship between the ICC and national criminal jurisdictions means that, as opposed to the two ad hoc Tribunals;' the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) the ICC does not have primary jurisdiction over national authorities," but plays a subsidiary role and supplements the domestic investigation and prosecution of the most serious crimes of international concern.t The Court is only meant to act when domestic authorities fail to take the necessary steps in the investigation and prosecution of crimes enumerated under article 5 of the Statute. The Statute does not explicitly use or define the term "complementarity" as such; however, the term has been adopted by many negotiators of the Statute, and later on by commentators to refer to the entirety of norms governing the complementary relationship between the ICC and national jurisdictions.f

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Preamble, para. 10 of the Rome Statute, reprinted in this Volume, see Annex. As to the negotiation history of the relevant norms, see S.A. Williams, "Article 17", in: O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article, 1999, MN 1 et seq. Arts 9 (1) ICTY Statute and 8 (2) ICTR Statute. Including courts, investigating authorities, prosecution and international co-operation in criminal matters, d. I. Tallgren, "Completing the International Legal Order", Nord.]. Int'l L. 67 (1998),107 et seq. (120). M.A. Newton, "Comparative Complementarity: Domestic Jurisdiction Consistent With the Rome Statute of the International Criminal Court", Mil. L. Rev. 167 (2001), 20 et seq. (26). "Complementarity" in the present context is thus understood in a "narrow" sense and does not reflect the wider complementary relationship between the Court and states in that, even where the Court exercises its jurisdiction, it will have to rely on the co-operation of national states to investigate under Part 9 of the Statue: d. H. Duffy/ J. Huston, "Implementation of the ICC Statute: International Obligations and Constitutional Considerations", in: C. Kreil/ F. Lattanzi, The Rome Statute and Domestic Le-

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Apart from the jurisdictional regime established by the Statute," the principle of complementarity is the salient instrument to delineate the exercise of jurisdiction by the ICC from that of national authorities, including national courts.f and as such may well prove to be one of the most contentious features of the Statute in its application. Bearing this in mind, it is clear why the principle of complementarity has been described as essential for the acceptance of the Statute by states", and is often referred to as the underlying principlel'', the cornerstone'! of the Statute, or the key concept of the ICC, which permeates the entire structure and functioning of the Court.F It will require the Court's attention from a very early stage, given that the Prosecutor has to take into consideration the issue of complementarity as early as when he or she thinks about initiating an investigation'? and that, following this decision (and, in cases of poprio motu investigations, an authorisation by the Pre-Trial Chamber to proceed under article 15 (4)), article 18 provides for the possibility to institute preliminary proceedings regarding admissibility.

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gal Orders, Vol. 1 (General Aspects and Constitutional Issues), 2000, 29 et seq. To this see the article of M. Wagner in this Volume. Cf. Report of the Preparatory Committee on the Establishment of an International Criminal Court, GAOR 51st Sess., Suppl. No. 22 (Doc . A!51122), para. 153. Cf. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, GAOR 50th Sess., Suppl. No. 22 (Doc. A!50!22), para. 29; W. Bourdon! E. Duverger, La Cour penale internationale: Le statut de Rome, 2000, 94. ].1. Charney, "International Criminal Law and the Role of Domestic Prosecutions", AJIL 95 (2001), 120 et seq. (120). E. La Haye, "The Jurisdiction of the International Criminal Court: Controversies over the Preconditions for Exercising its Jurisdiction", NILR 46 (1999), 1 et seq. (8); B. Swart! G. Sluiter, "The International Criminal Court and International Criminal Co-operation", in: H.A.M. von Hebel! ].G. Lammers! J. Schukking (eds), Reflections on the International Criminal Court, 1999,91 et seq. (105). M. Bergsmo, "Occasional Remarks on Certain State Concerns about the Jurisdictional Reach of the International Criminal Court, and Their Possible Implications for the Relationship between the Court and the Security Council", Nord. J. Int'l L. 69 (2000), 87 et seq. (96); O. Solera, "Complementary jurisdiction and international criminal justice", Int'l Rev. of the Red Cross 84 (2002), 145 et seq. (147). Article 53 (l)(b) and Rule 48 of the Rules of Procedure and Evidence.

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The present article does not purport to describe conclusively the principle in all its substantive and procedural aspects, but rather seeks to contribute to the discussion on one of the most opalescent notions of the Statute.

II. The Nature of the Principle of Complementarity 1. Admissibility v, Jurisdiction Article 17 establishes the substantive rules that constitute the principle of complementarity. The Statute defines the question of complementarity as pertaining to the admissibility of a case rather than to the jurisdiction of the Court. As is the case with other international judicial institutions, such as the IC] or human rights courts, the issues of admissibility and jurisdiction in the sense of competence in the pending case have to be distinguished, even though both concepts are closely related .l" The Court cannot exercise the jurisdiction that it has if a case is inadmissible.P thus, the principle of complementarity does not affect the existence of jurisdiction of the Court as such, but regulates when this jurisdiction may be exercised by the Court!", Article 17 thus functions as a barrier to the exercise of jurisdiction.V The Rules of Procedure and Evidence of the ICC recognise this by providing that the Court shall rule on any challenge to its jurisdiction first before dealing with matters of adrnissibility.P

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17 18

Cf. G. Fitzmaurice, The Law and Procedure of the International Court of Justice, Vol. 2, 1986,438-439. J. T. Holmes, "Complementarity: National Courts versus the ICC", in: A. Cassese/ P. Gaeta/ J.R.WD. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, 2002, Vol. 1,667 et seq. (672). J. Crawford, "The drafting of the Rome Statute", in: P. Sands (ed.), From Nuremberg to The Hague: The Future of International Criminal Justice, 2003, 109 et seq. (147). Seen like this, the heading of article 12 of the Statute is strictly speaking a misnomer, since it does not concern the exercise of jurisdiction, but the existence of it. Holmes, see note 15, 672. Rule 58 (4): "The Court shall rule on any challenge or question of jurisdiction first and then on any challenge or question of admissibility".

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2. The Rationale of Complementarity The Statute establishing the ICC is an international, multilateral treaty. According to article 31 of the Vienna Convention on the Law of Treaties, provisions of a treaty shall be interpreted, inter alia, with regard to its object and purpose.!? In order to understand the principle of complementarity and to facilitate and structure the interpretation of the different provisions that define the concept substantively and procedurally, it seems pertinent to enquire about the rationale of cornplernentarity.P The most apparent underlying interest that the complementarity regime of the Court is designed to protect and serve is the sovereignty both of State parties and third states.I! Under general international law, states have the right to exercise criminal jurisdiction over acts within their jurisdiction.F The exercise of criminal jurisdiction can indeed be said to be a central aspect of sovereignty itself.23

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23

The rules of interpretation codified in article 31 of the Vienna Convention on the Law of Treaties are also valid under customary international law: G. Dahm/ J. Delbruck/ R. Wolfrum, Volkerrecht, 2002, 640. The following discussion relates mainly to article 17 (l)(a) and (b) and the procedural scaffolding relating to these subparas; article 17 (c) and (d) operate within a somewhat different purview (see under IV. 6.). In essence, it is these two factors that are normally referred to when the "principle of complementarity" and its theoretical background are analysed. Bergsmo, see note 12, 99; R.E . Fife, "The International Criminal Court Whence It Came, Where It Goes", Nord. j. Int'l L. 69 (2000), 63 et seq. (72). D.D. Ntanda Nsereko, "The International Criminal Court: Jurisdictional and Related Issues", Criminal Law Forum 10 (1999), 87 et seq. (117); ICTY, Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Separate Opinion Judge Sidhwa, reprinted in: A. Klip/ G. Sluiter, Annotated Leading Cases of International Criminal Tribunals, Vol. 1 (The International Criminal Tribunal for the Former Yugoslavia 1993-1998), 97 et seq. (121, para. 83). This was also stressed during the negotiations leading to the adoption of the Statute: Report of the Preparatory Committee on the Establishment of an International Criminal Court, see note 8, para. 155. Cf. 1. Brownlie, Principles of Public International Law, 5th edition, 1998, 289 and 303. See ibid. to the different bases on which states may exercise jurisdiction.

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As distinct from the right of states to exercise criminal jurisdiction over crimes contained in the Statute, the Preamble refers to the duty of every state (not limited to States parties) to exercise its criminal jurisdiction over those responsible for international crimes .I" A purpose of the complementarity principle may thus be to ensure that states abide by that duty, either by prosecuting the alleged perpetrators themselves, or by providing for an international prosecution in case of their failure to do so. The declaratory wording of the Preamble may suggest that this duty precedes the coming into force of the Statute ("recalling that it is the duty").25 While such a duty unquestionably exists with regard to some international crimes-" it is questionable whether it covers all crimes in their different facets under the Statute, especially as regards crimes against humanity." Be that as it may, it is clear that the principle of complementarity was designed to allow for the prosecution of such crimes at the international level where national systems are not doing what is necessary to avoid impunity and to deter a future commission of crimes. Moreover, and independent from the existence of a duty to prosecute, the complementarity regime is surely designed to encourage states to exercise their jurisdiction and thus make the system of international criminal law enforcement more effective. 28

24

Preamble, para. 6. Duffy/ Huston, see note 6, 31. 26 On this question see the article of A. Seibert-Fohr, in this Volume; A. Zimmermann, "Auf dem Weg zu einem deutschen Volkerstrafgeserzbuch Entstehung, volkerrechtlicher Rahmen und wesentliche Inhalte", ZRP 35 (2002), 97 et seq. (98); M.P. Scharf, "The Amnesty Exception to the Jurisdiction of the International Criminal Court", Cornel/Int'l L. j. 32 (1999), 507 et seq. (514 et seq.); J. Dugard, "Possible Conflicts of Jurisdiction with Truth Commissions", in: Cassese/ Gaeta/ Jones, see note 15, 693 et seq. (698) who concludes that international law is moving towards a duty to prosecute. 27 The Preamble may indeed recognise this by using the term "international crimes", as opposed to "crimes within the jurisdiction of the court" contained in arts 14, 15 or 53 (1). "International crimes" may thus refer to those crimes for which a duty to prosecute exists under other instruments in international law. 28 P. Kirsch, "La Cour penale internationale face it la souverainete des Etats", in: A. Cassese/ M. Delmas-Marty, Crimes internationaux et [uridictions internationales, 2002, 31 et seq. (34); D. Sarooshi, "The Statute of the International Criminal Court", ICLQ 48 (1999), 387 et seq. (395); Duffy/ Huston, see note 6,31.

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The second interest, potentially rivalling with the concept of state sovereignty, is the interest of the international community in the effective prosecution of international crimes." the endeavour to put an end to impunity, and the deterrence of the future commission of such crirnes.t? A primary concern of the Statute, and specifically the complementarity principle, is thus to strike an adequate balance between this interest and state sovereignty. Apart from these two core concepts, other possible rationales are also to be taken into consideration. For instance, it may be argued that the Court is an institution entrusted with the protection ofhuman rights of the accused in the national enforcement of international criminal justice, and that this mandate is expressly provided for, or at least implied, in the complementarity principle as defined by arts 17 to 19. Article 17 itself stipulates that, in determining whether a state is unwilling to prosecute, the Court shall have regard to the "principles of due process recognised by international law", begging the question whether the Court could theoretically step in and declare a case admissible if a state fervently and overzealously prosecutes war criminals with blatant disregard for the fair trial rights of the accused. If so, the principle of complementarity may thus enable the Court not only to intervene in cases of inaction of a state, but also in situations where such action leads to breaches of human rights of the accused. The idea of the Court as a protector of fair trial standards is not so far-fetched as it may seem at first glance: for instance, it has been remarked in relation to the notion of "ineffectiveness", a term that was later substituted by "inability" but that fulfilled essentially the same functions within the scheme of complementarity, that the concept was meant to comprise various situations, "including lack of action or absence of good faith in national procedures, instances in which procedures did not guarantee full respectfor the rights of the accused or could not be considered sufficiently irnpartial."31 The accused, it could be said must be protected from victor's justice, granting the Court the right to reconsider the case.V Further-

29

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J.

Meifiner, Die Zusammenarbeit mit dem Internationalen Strafgerichtshof nach dem Riimischen Statut, 2003, 68. Preamble, paras 4 and 5. M. Politi, "The Establishment of an International Criminal Court at the Crossroads: Issues and Prospects After the First Session of the Preparatory Committee", Nouvelles etudes penales 13 (1999), 115 et seq. (143) (emphasis added). Nsereko, see note 22, 116.

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more, the original purpose behind the inclusion of the factors of lack of independence and impartiality in article 17 (2)(c) was to relate to procedural fairness and due process.P Were the principle of complementarity designed to cover such situations, this could possibly affect the interpretation of the entire provision. However, the line of reasoning is questionable. The ICC was not created as a human rights court stricto sensu.34 It was established to address situations where a miscarriage of justice and a breach of human rights standards works in favour of the accused and he or she profits from this irregularity by evading a just determination of his or her responsibility. These are the cases envisaged by article 17,35 which attempts to capture and more closely define those scenarios. The same goes for the ad hoc Tribunals, where the inconsistency of national proceedings with standards of a fair trial exceptionally allows the Tribunals to exercise jurisdiction in a ne bis in idem situation only if the defendant benefited from such deviations." Besides, international law provides other, more suitable remedies to address breaches of human rights of the accused in the context of other instruments and institutions.V Were the protection of human rights of the accused in national jurisdictions added to the mandate of the Court, this would indeed add a dimension entirely different from the initial idea for its establishment.V Another possible reason behind the principle may be seen in a right ofthe accused to be prosecuted by domestic authorities and tried before a domestic court, unless those authorities or courts are unable or unwilling to do so. The fact that not only a state, but also the accused or suspect may challenge the admissibility of a case under article 19 (2)(a) and its prominent place (before a challenge brought by states in sub-paras (b) and (c)) may support this conclusion. Whether or not an international legal instrument does indeed create rights of an individual is a 33

Holmes, see note 15, 676. Fife, see note 21, who also correctly points out that this does not mean that the work of the Court may not lead to an increased protection of human rights and that the Court is not obliged to respect human rights when operating itself (67). 35 Bourdon/ Duverger, see note 9, 98. 36 See arts 10 (2) ICTY Statute and 9 (2) ICTR Statute. 37 Bourdon/ Duverger, see note 9. 38 C. Van den Wyngaert/ T. Ongena, "Ne bis in idem Principle, Including the Issues of Amnesty", in: Cassese/ Gaeta/ Jones, see note 15, 705 et seq. (725) in relation to article 20 (3)(b). 34

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difficult question to answer. The ICJ opined in the LaGrand case that article 36 (1)(c) of the Vienna Convention on Consular Relations granted a right to the individual.'? mainly on grounds of the language of the provision in question, which clearly and unambiguously referred to the duty of the state detaining the person to inform the state of nationality as a right of the detainee itself. The Rome Statute does not contain such language. Article 19 (2)(a) should consequently rather be interpreted as vesting the accused or suspect with standing to raise an issue that relates to state sovereignty.t? A right of the accused to be tried before a domestic court is thus not established. The Appeals Chamber of the ICTY, although admittedly operating in the context of primacy, rather than complementarity, reached a similar conclusion in the Tadic Interlocutory Appeal on Jurisdiction: the Chamber rejected the appellant's argument that he had an exclusive right to be tried by national courts under national laws. Given that the ICTY's statutory framework granted the same fair trial rights to the accused as national courts, the transfer of jurisdiction to an international tribunal did not infringe any rights of the accused.'! Finally, a more practical aspect may be a basis of the principle of complementarity: The realisation that the Court's scope for action will necessarily be limited for reasons of resource constraints.V The Rome Statute envisages a network of courts on the national and international level (possibly including hybrid tribunals, similar to those established in Sierra Leone, Kosovo or East Timor). In the fight against impunity, the ICC will only be able to serve as a court of last resort where justice cannot be achieved on a national level. Besides, the complementarity principle pays tribute to the realisation that national authorities are 39

40

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ICJ, LaGrand case (Germany v, United States of America), Judgment of 27 June 2001, ILM 40 (2001), 1069 et seq. (1088, para. 77). See K. OellersFrahm, "Die Entscheidung des IGH im Fall LaGrand - ein Markstein in der Rechtsprechung des IGH", in: T. Marauhn (ed.), Die Rechtsstellung des Menschen im Volkerrecht, 2003, 21 et seq. In this context Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, reprinted in: ILM 35 (1996), 35 et seq. (50, para. 55), where the accused was held to have standing to challenge the jurisdiction of the ad hoc Tribunal on the grounds that it infringed state sovereignty. Ibid. para. 62. ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 14 February 2002, Diss Op. Van den Wyngaert, reprinted in: ILM 41 (2002),536 et seq. (639, para. 65).

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closer to evidence and that the crimes under the jurisdiction of the Court are normally best prosecuted in the state where they have been commined.f' The principle is thus not just "a reluctant concession to realpolitik but a substantive and sound operating rule that recognizes that trials closer to the scene of events at issue have inherent practical as well as expressive value".44 In conclusion, it may be stated that the principle of complementarity has been primarily designed to strike a delicate balance between state sovereignty to exercise jurisdiction and the realisation that, for the effective prevention of such crimes and impunity, the international community has to step in to ensure these objectives and retain its credibility in the pursuance of these aims.t'' At the same time, the principle of complementarity is an implicit restriction of state sovereignty, not because it establishes a duty to prosecute, but because it takes away the possibility for States parties to remain inactive, even under a breach of international law in cases where a duty to prosecute exists under other instruments. The principle thus gives effect to, and indeed completes the idea of an effective decentralised prosecution of international crimes.f

III. Article 17 Analysed: The Substance of the Principle Article 17 sets out the substantive criteria for a determination of the admissibility of a case. Interestingly, it is not formulated in a positive manner ("a case is inadmissible"). This, however, does not per se create

43

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Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, see note 9, para. 31. The availability of evidence argument normally only applies to proceedings in the state of the commission of the crime(s) in questions. ].E. Alvarez, "The New Dispute Settlers: (Half) Truths and Consequences", Tex. Int'l L. J. 39 (2003-2004), 405 et seq. (437); similar: O. Triffterer, "Der lange Weg zu einer internationalen Strafgerichtsbarkeit", Zeitschrift fur die gesamte Strafrechtswissenschaft 114 (2002), 321 et seq. (362). Williams, see note 2, MN 20. See R. Wolfrum, "The Decentralized Prosecution of International Offences Through National Courts", in: Y. Dinstein/ M. Tabory, War Crimes in International Law, 1996, 233 et seq.

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a presumption, in the technical sense of the word," ? in favour of inadrnissibility.f A case is thus inadmissible where one of the four factors enumerated in the first paragraph of article 17 is given. At the same time, article 17 (1) establishes a mandatory but exhaustive list of inadmissibility criteria, i.e. where non of these exists, the case is admissible.'? However, all cases and situations before the Court have to be carefully measured against the factors mentioned in article 17 so as not to circumvent the requirements established in article 17, which reflect the above mentioned compromise between state sovereignty and the effective administration of justice.

1. Article 17 (1)(a) The first requirement provided by article 17 (1)( a) is that a state - both a State party or a non State party - either is investigating or prosecuting the case at hand, or has investigated it and refrained from prosecuting the person concerned. Mere inaction of a state in the face of crimes having been or being committed thus leads to the admissibility of situations and cases before the ICC. 50

47

48

49

50

Meaning that a presumption of inadmissibility would have to be rebutted by the Prosecutor. Such presumptions do to a certain extent exist within the different factors of article 17 (a) to (d). See under IV. 5. It does, however, by its choice of words, create a presumption in favour of action at the level of states: A. Cassese, "The Statute of the International Criminal Court: Some Preliminary Reflections", EJIL 10 (1999),144 et seq. (158). B. Broomhall, International Justi ce and the International Criminal Court: Between Sovereignty and the Rule of Law, 2003, 90; MeiBner, see note 29, 70; Solera, see note 12, 165. It should be mentioned, however that, where a state refrains from instituting investigative proceedings since it is clear that a (e.g. procedural) bar to such proceedings exists and initiation of such proceedings would consequently be futile under national law, this "inaction" is to be measured against article 17 (1)(b). In this case, it should be enough that the authority dealt with the matter at least in terms of considering whether to initiate proceedings. The bar to the proceedings should then be analysed under the terms of "unwillingness" and "inability". Broomhall (see note 49,91) refers to this scenario as falling out of the scope of article 17 (1)(a) to (c) alto gether and thus treats it as alway s admissible without any further qualifications.

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The terms "investigation" and "prosecution" can be defined by recurring to national practice and the experience of the ad hoc Tribunals. The Statute itself, in its Part 5, understands investigation as a procedure to determine whether a crime within the jurisdiction of the Court has been or is being committed and that aims at bringing the alleged perpetrator to criminal justice. It is questionable whether "investigation" can be assigned a broader meaning than criminal investigations to include a "diligent, methodical effort to gather the evidence and ascertain the facts relating to the conduct in question, in order to make an objective determination in accordance with pertinent criteria",51 so as to comprise alternative mechanisms such as truth and reconciliation commissions.V

The next element stipulated by article 17 (l)(a) is that the state that has investigated or is investigating or prosecuting the case has jurisdiction over the case at hand. A state 's (or the accused's or suspect's) claim that a case would be inadmissible does not have to be considered if such jurisdiction is not established. Jurisdiction, in this context, is not limited to the permissibility to exercise jurisdiction under a principle of international law53 but should also be taken to include the actual competence under the respective domestic legal system to adjudicate and enforce a judgement concerning a crime under the jurisdiction of the Court.54 The most problematic part of article 17 (l)(a), and indeed of the complementarity principle as such, is the third prong of the admissibility test, i.e, the exception to inadmissibility: even though a case is investigated or prosecuted by a state which has jurisdiction over it, it can nevertheless be admissible if the state is "unwilling or unable genuinely

51

52

53 54

D . Robinson, "Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court", EjIL 14 (2003), 481 et seq. (SOD). Cf. Seibert-Fohr, see note 26; ].J. Llewellyn, "A Comment on the Complementary Jurisdiction of the International Criminal Court: Adding Insult to Injury in Transitional Contexts?", Dalhousie Law joumal24 (2001), 192 et seq.; Robinson, see note 51. Dahml Delbriickl Wolfrum, see note 19, 1155. MeiBner, see note 29, 75; C. Hall, "Article 19", in: Triffterer, see note 2, MN 11.

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to carry out the investigation or prosecution't.P The notions of "unwilling" and "unable" are disjunccive.P

It may be argued that the credibility of the Court hinges on the interpretation and application of this part of the test. On the one hand, it has often been observed that it is difficult to imagine the Court sitting in judgement over a whole national criminal justice system - a task not easy to fulfil in general and even more awkward to shoulder as a fledgling international institution facing fierce opposition from some flanks. On the other hand, too narrow an interpretation of the terms is likely to provoke criticism from non-governmental organisations and other supporters of the Court that the Court is excessively deferent to states . Applying the terms may well mean walking a judicial tightrope. Even though the apprehension of states and other actors sceptical of the Court's purportedly intrusive character should not be underestimated but taken seriously, it should at the same time be pointed out that, according to the wording of article 17, the Court will always assess the situation in a state merely in relation to a specific case, rather than make a general and all-embracing examination of the system as SUCh.57 Nevertheless, the terms "unwilling" and "unable" make clear that the Court will not simply notarise the exercise of jurisdiction by a state. They require a certain degree of scrutiny of the quality and standard of national proceedings. 58 In interpreting the notions, one may seek guidance in the rule of exhaustion of local rernedies.t? As a caveat, however, it should be men55

It is interesting to observe that this formulation has found its way into anicle 1 (3) of the Statute of the Special Court for Sierra Leone, reprinted in: R. Dixon! K.A.A. Khan! R. May (eds), Archbold, International Criminal Courts, Practice, Procedure and Evidence, 2003, 1182 et seq. 56 Holmes, see note 15, 675. 57 However, it is doubtful whether this will also be the case in relation to inability: to state a total collapse of a national judicial system comes close to "sitting in judgement of an entire national criminal justice system": d. M. Bergsmo, "The Jurisdictional Regime of the International Criminal Court (Part II, Articles 11-19)", European Journal of Crime, Criminal Law and Criminal Justice 6 (1998), 29 et seq. (43). 58 M. Politi, "The Rome Statute of the ICC: Rays of Light and Some Shadows", in: M. Politi! G. Nesi (ed.), The Rome Statute of the International Criminal Court: A Challenge to Impunity, 2001, 7 et seq. (15). 59 C. Stahn, "Zwischen Weltfried en und materieller Gerechtigkeit: Die Gerichtsbarkeit des Internationalen Strafgerichtshofs (IntStGH)", EuGRZ 25 (1998), 577 et seq. (589). L. Caflisch, "Der Internationale Strafgerichtshof:

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tioned that the limits to the principle of the exhaustion of local remedies (ineffectiveness or unavailability) cannot lightl y be drawn upon in order to interpret the terms of unwillingness or inability in article 17, since the expressions "ineffectiveness" and "unavailability" were included in the ILC draft 60 but have not found their way into the Rome Statute for lack of clarity.s' A preliminary question, both with respect to unwillingness and inability, is the meaning of the term "genuinely", which qualifies the actions of a state taken to investigate or prosecute a case. No precedent in international law for the use of the term was quoted during the negotiarions.s- It is questionable whether it adds anything to the terms unwilling and unable. Commentators observe that it proved to be the least subjective concept considered during the negotiationsi'v among other

60

61

62 63

Straftatbestande, Schutz der Menschenrechte, kollektive Sicherheit", Liechtensteinische ]uristen-Zeitung 24 (2003), 73 et seq. (75). The rule of exhaustion of local remedies regulates the admissibility of proceedings before international courts, be it in relation to classical proceedings of diplomatic protection or international human rights remedies. In both areas, the base of the rule is that the state having allegedly committed a breach of international (human rights) law is the first place where the individual should seek a remedy for this breach (proximity argument) and gives the state in question the opportunity to examine and, if necessary, redress, the violation before an international body deals with the matter (safeguard of sovereignty aspect). At the same time, the principle finds its limits where the implementation of quick and efficient justice or the effective and peaceful settlement of disputes take precedence over state sovereignty. The rule is consequently a manifestation of the attempt to reconcile state sovereignty with these values. It should be added that the rule, in addition to relating to procedurallaw, may also have a substantive aspect, see: Report of the ILC, GAOR 56th Sess., Suppl . No. 10 (Doc. A/56/10), Chapter IV (State Responsibility),.304 et seq. (commentary on article 44). Report of the ILC on the work of its 46th Sess. (2 May - 22 July 1994), GAOR 48th Sess., Suppl, No. 10 (Doc. A/49/10), 44, third preambular paragraph. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, see note 9, para. 41; compare also Holmes, see note 15, 674; Williams, see note 2, MN 18; A. Bos, "The Role of an International Criminal Court in the Light of the Principle of Complementarity", in: E. Denters/ N. Schrijver (eds), Reflections on International Law from the Low Countries, 1998,249 et seq. (257). See however article 17 (3), which mentions "unavailability" as one example of inability. Holmes, see note 15,674. Ibid.

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proposals that were considered to be excessively subjective were "effectively", "diligently", and "in good faith" .64 Textually, the term qualifies and possibly objectifies the act of investigating or prosecuting, rather than the ability or willingness to do so. It underlines that only those national criminal proceedings undertaken with the serious intent of eventually bringing the offender to justice shall bar the exercise of jurisdiction by the Court 65 and thus mainly serves to stress the need for effective prosecution already referred to in the Preamble.s" a. Unwillingness In order to give the Court criteria at hand to determine when a state is unwilling to genuinely carry out the investigation or prosecution, article 17 (2) sets out three specific situations of unwillingness. The provision reads: "In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice." The language of article 17 (2) unambiguously requires the Court to take into account the factors listed under paras (a) to (c). Another question is 64

65 66

P. Benvenuti, "Complementarity of the International Criminal Court to National Criminal Jurisdictions", in: F. Lattanzi/ W. Schabas (eds), Essays on the Rome Statute of the International Criminal Court , Vol. 1, 1999, 21 et seq. (42). A. Zimmermann, "The Creation of a Permanent International Criminal Court", Max Planck UNYB 2 (1998), 169 et seq. (220, note 184). Para . 4.

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whether the Court, in determining unwillingness, is limited to these criteria, or whether it may also refer to other, unnamed factors. The text itself does not inevitably point into one direction or the other. The lack of a clarifying addition, such as "inter alia" or "including but not limited to", as used in arts 90 (6) and 97, may be taken to indicate that it is a closed and exhaustive list. 67 The word "consider", however, has been interpreted as having been deliberately chosen in order not to tie the Court's hands in respect to the criteria but to allow it to take other factors into consideration.P In the light of the consideration that "unwillingness" is meant to be an exception to the general rule that a case is inadmissible if the state investigates or prosecutes, the factors specifying the term should be construed narrowly and the list deemed exhaustive. The chapeau of article 17 (2) requires the court to have "regard to the principles of due process recognised by international law" in its assessment of the three factors circumscribing unwillingness. It has been observed that the phrase was introduced to ensure that the Court uses "objective" criteria in its consideration of national procedures". First meant to apply only to the criteria in article 17 (2)(c) (independent or impartial), it was later included in the chapeau of article 17 (2), thus applying to all subparagraphs.P The meaning of the formula is unclear" and needs some further illumination. It could be argued that the reference to due process rights implies that where a trial breaches due process rights of the accused a state is "unwilling" to genuinely carry out the investigation or prosecution. As already mentioned, some authors apparently contend that in case an accused has been convicted in proceedings that breached his or her due

67 68 69

70

71

Holmes, see note 15, 675; MeiBner, see note 29, 72. Robinson, see note 51,500. J.T. Holmes, "The Principle of Complementarity", in: R.S. Lee, The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results, 1999,41 et seq. (53-54). Holmes, see note 69, 54. The original order and context seems to have been "preserved" in article 20 (3)(c), where "due process" only applies to the terms "impartially" and "independently". J. Gurule, "United States Opposition to the 1998 Rome Statute Establishing an International Criminal Court: Is the Court's Jurisdiction Truly Complementary to National Criminal Jurisdictions?" Cornell Int'l L. j. 35 (2001-2002), 1 et seq. (16 (note 61) and 26). Gurule even suggests deleting the passage from the Statute (29 in fine). In relation to article 20 (3) which uses similar words, see Van den Wyngaertl Ongena, see note 38, 725.

Benzing, The Complementarity Regime of the ICC

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process rights, the Court could theoretically step in,72 since the phrase suggests an assessment of the quality of justice from the standpoint of procedural and perhaps even substantive fairness (to the accusedj." However, such a conclusion is doubtful in the light of the above concerning the rationale of the complementarity principle. The Court is not and cannot be a forum to redress human rights breaches of an accused. The normal situation envisaged by article 17 (2)(c) would not prejudice the accused, but, on the contrary, would be to his or her benefit.?"

Given that the Statute grants extensive rights of participation in the proceedings to victims of crimes under the jurisdiction of the Court, another possibility may be to interpret the phrase in the light of the victim's right to have a perpetrator punished under international law. Indeed, some commentators seem to read the reference to "due process" rights as referring to the rights of victims in relation to criminal proceedings.i" The first question to be asked in this respect is whether a victim of an international crime indeed has an individual right under existing international law to see the perpetrator investigated and punished. In the Velasquez Rodriguez case, the Inter-American Court of Human Rights deduced from article 1 (1) of the Convention an obligation of states to "prevent, investigate and punish any violation of the rights recognised by the Conventiorr'v" It is however questionable whether this can be generalised from the regional to the international level.77 For instance, within the framework of the International Cove72

73

74 75

76

77

Gurule, see note 71, 26; I. Tallgren, "Article 20", in: Triffterer, see note 2, MN 29; implicitly also: O. Triffterer, "Legal and Political Implications of Domestic Ratification and Implementation Processes", in: KreBI Lattanzi, see note 6,1 et seq. (14 and 16). W. Schabas, An Introduction to the International Criminal Court, 2001, 68. Gurule, see note 71, 26. R.B. Philips, "The International Criminal Court Statute: Jurisdiction and Admissibility", Criminal Law Forum 10 (1999), 61 et seq. (79); Nsereko, see note 22,116; MeiBner, see note 29,82. Inter-American Court of Human Rights, Velasquez Rodriguez case, 29 July 1988, reprinted in: ILM 28 (1989), 291 et seq. (324, para. 166) (emphasis added). As to the uncertainties generally pertaining to this question see: Civil and Political Rights, Including the Question of Independence of the Judiciary, Administration ofJustice, Impunity, Report of the Independent Expert on the Right to Restitution, Compensation and Rehab ilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms, submitted

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nant on Civil and Political Rights, states generally have the obl igation to protect human life, the physical integrity and freedom of the person, but victims are usuall y not accorded the right that authors of offences against these values be criminally prosecuted by the state." However, the European Court of Human Rights has held that "the notion of an effective remedy for the purposes of Article 13 [ECHR] entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the relatives to the investigatory procedure.Y? Analysed more closely, the Court, far from establishing an individual right to see the perpetrator punished, merely gives the victim the right to have the state conduct an investigation which is capable of leading to punishment. More importantly, this holding seems to be limited to the specific facts of the case, and the right only arises in cases of intentional and direct infringement of the right to personal int egrit y and life;80 the decision itself is restricted to situations where the crime was committed by state agents." The dut y thus cannot be said to appl y generally to all situations covered by the Rome Statute. Finally, the Rome Statute itself does not explicitly provide for such a right of victims . This result is consistent with a textual interpretation of article 17 (2): "due process" rights are generally defined as rights of the accused, not

pursuant to Commission on Human Right s Resolution 1998/43, by Mr. M. Cherif Bassiou ni, Doc. E/CNA/1999/65, 8 Febru ary 1999, especially paras 18 et seq. 78 C. Tomuschat, "H uman Right s and N ation al Truth Commi ssion s", in: P.R. Baehr (ed.), Inn ovation and Inspiration, 1999, 151 et seq. (158); A. SeibertFohr, "The Fight against Impunity under the International Co venant on Civil and Political Right s", Max Planck UNYB 6 (2002), 301 et seq. (312 et seq.) , Human Rights Committe e, Communication N o. 578/1994 (L. de Groot v. The Netherlands), 14 Jul y 1995, Doc. CCPR/C/54/D/578/1994. See, however, the revised final report prepared by Mr. Joinet pursuant to Sub-Commission Deci sion 1996/119, Doc. E/CNA/Sub .2/1997/20/Rev.1, para. 26. 79 European Court of Human Rights, Kaya v. Turkey, 19 February 1998, para. 107; also: D.P.&j.C. v. The United Kingdom, Jud gment, 10 Octob er 2002, para. 107 (emphasis added). 80 C. Droge, Positive Verpflichtungen der Staaten in der Europiiischen Menschenrechtskonvention, 2003, 331. 8! In relation to a possible extension to human rights infringements by private actors pursuant to art icle 13 ECHR d. Droge, see above, 59.

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of the victims.F Under the United States Constitution, for example, the Fifth Amendment (Due Process Clause) guarantees that no person shall "be deprived of life, liberty, or property, without due process of law".83 Also on the international plane, it is a right of the defendant in criminal proceedings.s" Considering the above, the objective of the phrase "having regard to the principles of due process recognised by international law" cannot be to protect the individual (victims or accused) in that a state may be deemed unwilling where it breaches their rights, but may be interpreted to give the Court some criteria at hand in order to interpret the terms used by article 17 (2). Thus, in order to establish what amounts to an "unjustified delay" in article 17 (2)(b), the Court may look at jurisprudence defining such delay under the relevant human rights instruments. In addition, one may look at how courts, under different instruments, have interpreted the duty of a state with respect to the administration of its criminal justice system. However, one has to take into account that the background of these provisions is the protection of the individual exposed to criminal prosecution and thus diverges substantially from the issue determined by article 17. On that premise, the factors enumerated in paras (a) to (c) can be more closely considered. aa. Article 17 (2)(a)

Article 17 (2)(a) requires proof of a purpose of shielding, which is a considerably high threshold and raises the question of how such intent is to

82

83 84

Gurule, see note 71, 26. See also: S. Rosenne, "The Jurisdiction of the International Criminal Court", Yearbook of International Humanitarian Law 2 (1999), 119 et seq. (131). U.S. Constitution, Amendment V. Cf. DeFrancia, "Due Process in International Criminal Courts: Why Procedure Matters", Va. L. R. 87 (2001), 1381 et seq. The same goes for the French version "proces equitable": A. La Rosa, "Reflexions sur l'apport du Tribunal penal international pour l' ex-Yougoslavie au droit a un proces equitable", RGDIP 101 (1997),945 et seq. In relation to fair trial before the ICTY see also: C. HoB, "Das Recht auf ein faires Verfahren und der Internationale Strafgerichtshof fiir das ehemalige jugoslawien: Zwischen Sein und Werden", ZaoRV 62 (2002), 809 et seq.

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Max Planck UNYB 7 (2003)

be proved before the Court.s" By contrast, paras (b) and (c) have more objective criteria as bases, i.e. an unjustified delay or proceedings which are not conducted independently or impartially, and require that these, "in the circumstances" be "inconsistent with an intent to bring the person concerned to justice". In other words, for the latter two provisions, it is not necessary to positively prove that no such intent existed (or, a fortiori, that there was an intent to shield the perpetrator from justice), but mere "inconsistency" with a bona fide investigation and prosecution. 86 To establish a purpose of shielding, it is not sufficient to find that a state only initiated proceedings in order to prevent the Court from acting, since this is clearly permissible under and envisaged by the complementarity regime .V Besides, the Statute clearly encourages and relies on national action. If the state has the intent to establish the relevant facts, to evaluate these facts according to the pertinent laws and, in case of conviction, to impose an adequate sentence, this precludes an intent to shield a person, even if, at the same time, the state wishes to prevent the Court from stepping in. 88

bb. Article 17 (2)(b) To establish an "unjustified delay" in the proceedings, the test must be stricter than one of mere "undue delay" since this expression was considered too Iowa threshold at the Rome Conference."? It is uncertain how such delay should be determined. One core rationale of the complementarity principle being to protect sovereignty, it could be argued that a delay should be assessed by reference to the usual procedures and time-frames within each individual state.90 For reasons of consistency, it

85

86 87

88 89 90

B. Broomhall, "The International Criminal Court: A Checklist for National Implementation", Nouvelles etudes penates 13 (1999), 113 et seq. (145), suggests that the Court take into account "all the circumstances, including the factors taken into account in making a decision not to prosecute, and the manner in which an investigation or prosecution was being undertaken". Cf. Broomhall, see above. L.N. Sadatl S.R. Carden, "The New International Criminal Court: An Uneasy Revolution", Geo. L. J. 88 (2000), 381 et seq. (418). Meiilner, see note 29, 83. Williams, see note 2, MN 17. Holmes, see note 15, 676; Zimmermann, see note 65, 222.

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may however be preferable that a common threshold for all states be accepted, e.g. an average of what is usual in all domestic systems, or the relevant rules regarding the length of criminal procedures in international law.?' If the reference to "due process" rights can be interpreted in the way proposed above, this would speak in favour of the latter interpretation, as well as Rule 51 of the Rules of Procedure and Evidence of the Court, even though it admittedly only explicitly refers to impartiality and independence.V It would then still be possible and in fact necessary to take into consideration the peculiarities of the specific case," but measured against an international standard. A differentiating view would only compare the delay to other international standards where the national system deviates substantially from these standards.?' In all circumstances, the unjustified delay is only an indication of the lacking willingness of the state, which still has to be positively established and of which the judges have to be convinced.P A delay in the proceedings may in particular be justified with rules mandated by human rights instruments. Whenever a delay is caused by the adherence to human rights standards, this cannot be held against the state conducting these proceedings." This may be another example of the significance of the "due process" phrase in article 17 (2). On the other hand, a delay is unjustified where no specific circumstances are

91

92

93

94 9S 96

This, however, again raises the question of comparability of the rationale of these rules which is different from the specific situation in which article 17 operates; see the discussion on the "due process" phrase under III. 1.a. Similar: Holmes, see note 15, 677. Rule 51 reads: "Information provided under article 17: In considering the matters referred to in article 17, paragraph 2, and in the context of the circumstances of the case, the Court may consider, inter alia, information that the State referred to in article 17, paragraph 1, may choose to bring to the attention of the Court showing that its courts meet internationally recognized norms and standards for the independent and impartial prosecution of similar conduct, or that the State has confirmed in writing to the Prosecutor that the case is being investigated or prosecuted. " Just as with the undue delay exception to the exhaustion of local remedies rule : c.F. Amerasinghe, Local Remedies in International Law, 1990, 205. Such peculiarities may be, inter alia, the complexity of the facts or the availability of evidence. MeiBner, see note 29, 84. Ibid., 85. The author owes this thought to Ms. Tatjana Maikowski.

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given which would explain the delay, such as a particularly complex investigation. cc. Article 17 (2)(c)

Article 17 builds on the language of arts 10 (2) of the ICTY and 9 (2) of the ICTR Statutes. However, in the case of the ICC, the terms are not only used in the context of ne bis in idem." determining the question when an accused may be tried by the ICC where he had previously been tried by a national court, but also in relation to admissibility. In the light of what has been said about the rationale of complementarity above, and considering the interpretation given to the "due process" phase in the chapeau of article 17 (2), a lack of impartiality and independence of the proceedings can only lead to the admissibility of a case where these worked in favour of the accused. This interpretation is supported by the ILC commentary to the draft statute for an international criminal court." Keeping this in mind, to define the terms of independence and impartiality, one may look to the jurisprudence of human rights courts. According to the European Court of Human Rights, in order to establish whether a tribunal is independent, regard must be had, inter alia, to the manner of appointment of its members and its term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence.P? As to impartiality, the tribunal must be subjectively free of personal prejudice or bias, and it must be impartial from an objective point of view, i.e. it must offer sufficient guarantees to exclude any legitimate doubt in this

97 98

99

Article 20 (3), Report of the ILC on the work of its 46th Sess. (2 May - 22 July 1994), GAOR 48th Sess., Suppl. No. 10 (Doc. A/49/10), 119. The Commis sion comments on dr aft article 42 (2)(b) which includes impartial or independent proceedings, as follows: "[P]aragraph 2(b) reflects the view that the Court should be able to try an accused if th e previous criminal proceeding for the same acts was really a 'sham' proceeding, possibl y even designed to shield the person from being tried by the Court." It thus seems that proceedings not impartial or independent are the generic term for "shielding", which would be a specifically severe form of partial proceedings. European Court of Human Rights , Morris u. United Kingdom, App. no. 38784/97, Judgment of 26 February 2002, para. 58; see N . Jayawickrama, The Judicial Application of Human Rights Law, 2002, 514.

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respect.P? Regard may also be had to various principles established or endorsed by the UN General Assembly, such as the UN Basic Principles on the Independence of the Judiciary. 101 Considered closely, article 17 (2)(c) establishes two cumulative criteria,102 i.e. (i) the proceedings must fail to be independent or impartial, and (ii) they must be conducted in a manner inconsistent with an intent to bring the alleged perpetrators to justice. One important indication to establish the second criterion may be that the lack of independence or impartiality in fact worked in favour of the accused.

b. Inability (Article 17 (3)) The notion of inability was inserted to cover situations where a state lacks a central government due to a breakdown of state institutions'P' (i.e. the situation of a failed state l 04 ) , or suffers from chaos due to civil war or natural disasters, or any other event leading to public disorder. 105 The Statute identifies three scenarios for inability (i) a state is unable to obtain the accused; (ii) a state is unable to obtain the necessary evidence and testimony for putting the persons allegedly responsible on trial or; (iii) the state is "otherwise unable to carry out its proceedings". Criterion (iii) is the subordinate concept of the other two, and at the same time serves as a generic term capturing all other possible situations. In all three set-ups, the deficiency has to be "due to" the total or substantial collapse or unavailability of the judicial system, thus requiring proof of a causal link in each case.

lCO

101 102 103 104 105

Moms v. United Kingdom, see above; European Court of Human Rights, Findlay v. United Kingdom, App. no. 22107/93, Judgment of 25 February 1997, para. 76; also compare European Court of Human Rights, Castillo Algar v. Spain, App. no. 79/1997/863/1074, Judgment of 28 October 1998, paras 43 et seq. . 1. Tallgren, see note 72, MN 28; Broomhall, see note 85, 145; MeiBner, see note 29,86. M.M. El Zeidy, "The Principle of Complementarity: A New Machinery to Implement International Criminal Law", Mich. J. Int'l L. 23 (2002),869 et seq. (903); Benvenuti, see note 64, 44. Zimmermann, sec note 65, 220. M.H. Arsanjani, "Jurisdiction and TriggerMechanism of the ICC", in: von Hebel! Lammers/ Schukking,see note 11,57 et seq. (70).

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A total collapse of a state's judicial system can be assumed where the state authorities have lost control over its territory to an extent that the administration of justice has broken down completely, or where the authorities, while exercising effective (military or police) control over the territory, do not perform such adrninistration.P" A substantial collapse, which is different from and probably more stringent than a mere "partial" collapse.P? is given only where the state authorities, even though not completely dysfunctional, are not generally capable of ensuring the investigation of the case and the prosecution of the responsible individuals, e.g. by "shifting resources or transferring the trial to other venues"I08 than the one affected by a breakdown.

Unavailability of the national legal system is a separate requirement from a substantial collapse. Taking up the Preamble of the ILC draft,109 the term is originally borrowed from an exception to the rule of exhaustion of local remedies in international law and can in principle be interpreted with regard to the jurisprudence developed in relation to this rule.P? However, it is crucial to see that the exception was established for an individual seeking relief for a wrong done by a state, while in the present context, the question is whether a state has the means and resources to administer justice against one or more individuals. The value of the comparison may thus be limited. However, it can generally be said that a national legal system is unavailable where the authorities for the administration of justice do exist and are generally functional, but cannot deal with a specific case for legal or factual reasons.l!' such as sheer capacity overload. It has been pointed out that a state might be declared "unable" if, under its domestic law, crimes are or can potentially be punished only as "ordinary crimes".112 In the terms of article 17 (3), such a situation

106 Meifiner, see note 29, 86. 107 Since "partial" was rejected as a standard at the Rome Conference, d . Holmes, see note 15, 677. 108 Ibid. 109 Third preambular paragraph: "where such trial procedures may not be available or ineffective" (emphasis added). 110 CF. N.J. Udombana, "So far, so fair: The local remedies rule in the jurisprudence of the African Commission on Human and Peoples' Rights", AjIL 97 (2003), 1 et seq. (22). III Meifiner, seenote 29,87. 112 As to a definition of the category of "ordinary crimes", see ILC Report, see note 98, 118: "The Commission understands that the term 'ordinary

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may be said to constitute a case where the state is "otherwise unable to carry out its proceedings" due to an "unavailability" of its national judicial system for legal reasons.U! The Tadu: Interlocutory Appeal on Jurisdiction Decision indeed suggests that a paramount concern for the creation of international tribunals is to prevent such "trivialisation" of crimes, presumably to avoid revisionisrn.U" The exceptions to the rule of ne bis in idem in articles 10 (2) of the ICTY and 9 (2) of the ICTR Statutes also strive for this proposition.P> Article 17 (2) itself is not clear, yet commentators have reasoned that the system of complementarity at least presupposes that states must have adequate legislation (both in terms of substantive and procedural law) enabling them to genuinely prosecute war criminals according to "proper" categories of crimes.U" Having said that , others have argued that such interpretation

crimes' refers to the situation where the act has been treated as a common crime as distinct from an international crime having the special characteristics of the crimes referred to in article 20 of the Statute [crimes within the jurisdiction of the Court]". 113 L. CondorelIi, "La Cour penale internationale: Un pas de geant (pourvu qu 'il soit accompli ...)", RGDIP 103 (1999), 7 et seq. (21); Meiliner, see note 29,83. 114 Prosecutorv. Tadic, see note 40,51, para. 58. l1S See also Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 of 22 February 1993, Doc. S/25704, 3 May 1993, reprinted in: V. Morris/ M.P. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, Vol. 2, 1995, 3 et seq. (15, para . 66). 116 Benvenuti, see note 64, 45; CondorelIi, see note 113, 19; ]. Kleffner, "The Impact of Complementarity on National Implementation of Substantive International Criminal Law", Journal of International Criminal Justice 1 (2003), 86 et seq. (89). Kleffner contends that the Statute, together with sub sequent state practice, imposes a duty on states to implement the sub stantive law of the Statute into their domestic system. Different in that he only sees a political pressure, as opposed to a legal duty, on states to that effect: H. Satzger, "Das neue Volkerstrafgesetzbuch - Eine kritische Wiirdigung", Neue Zeitscbrijt fur Strafrecht 22 (2002), 125 et. seq. (127); Zimmermann, see note 26, 98, who sees an "Obliegenheit" (non-enforceable legal duty) to incorporate the crimes under article 5 into domestic law; BroomhalI, see note 85, 148: no express obligation and id., see note 49, 86: only an "indirect effect on State practice"; W. Schabas, "Follow up to Rome : Preparing for the Entry Into Force of the International Criminal Court Statute", HRLJ 20 (1999), 157 et seq. (160).

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would undermine the respect for national sovereignty as formulated by the complementarity principle.U ? The problem cannot be solved in isolation from article 17 (l)(c) read in connection with 20 (3). As opposed to the Statutes of the ad hoc Tribunals, the double jeopardy provision of the ICC Statute does not make explicit reference to "ordinary crimes", but rather refers to "conduct also proscribed under article 6, 7 and 8". Even though one might argue that the abandonment of the language used in the respective Statutes of the ad hoc Tribunals does not necessarily mean that the underlying idea as such was also rejected in its entirety.U" it is clear that the different wording must influence the interpretation of the norm. Article 20 (3) is much broader in ambit and also accommodates prosecutions of behaviour falling into the categories of article 5 for crimes where the charges are not classified as "genocide", "war crimes" or "crimes against humaniry'i.U? Taking this into account, it may be argued that a more flexible approach is called for than merely stating that the prosecution of such acts as "ordinary crimes" automatically and without further requirements entails an exception to the rule of double jeopardy. Where the charge chosen by national authorities does not reflect and adequately capture the severity of the perpetrator's conduct.F? or where the national legal system provides for excessively broad defences or statutes of limitation, this may be seen as conflicting with an intent to bring the perpetrator to justice or even to shield him or her from criminal responsibility and thus falls under one of the exceptions of article 20 (3)(a) and (b).121

It is now decisive whether the same should go, for reasons of consistency, for article 17 (3),122 given that article 20 (3) in its formulations 117 118 119

M.A. Newton, see note 5,70. Van den Wyngaertl Ongena, see note 38, 726. Cf. Holmes, see note 69, 59, who refers to the negotiations within the Preparatory Committee, where the majority of states did not agree with the necessity to try crimes as international crimes. Tallgren, see note 72, MN 22 remarks that the notion "ordinary crimes" was rejected because it was not known to many legal systems; Newton, see note 5, 71; Meiliner, see note 29,83.

120 Tallgren, see note 72, MN 27 gives the example of an atrocity amounting to genocide being charges as an assault. 121 Similar, Meifsner, see note 29 , 83. 122 It should be noted that article 20 (3) does not envisage an "inability" option as elaborated in article 17 (3). However, the general considerations are similar.

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is closely related and has been drafted with regard to article 17. 123 It could be argued that it would be a contradiction if one took a different approach to situations where the alleged perpetrator is or has been under investigation, or is being prosecuted, on the one hand (article 17) and the scenario where he or she has already been tried (article 20). However, such difference may be explained b y the greater respect accorded to the sovereignty of the state where a judicial procedure before a court has already been concluded. P' From a factual point of view, it may be also said that several states have incorporated or are incorporating the substantive rules of the Rome Statute with a view to forestalling being declared unwilling by the Court, which may be taken to point to a conviction of these states that punishing crimes under the Statute as "ordinary crimes" is insufficient with regard to article 17. Nevertheless it has rightly been pointed out that the prosecution or conviction of a perpetrator on the charge of an "ordinary crime", such as murder or rape, does not necessarily benefit and privilege him or her.125 Furthermore, to impose such a duty may be tantamount to establishing an obligation of states to prosecute the crimes under the Statute, which the Statute does not establish.F'' Cases where a state is declared unable because its national legislation differs from the substantive provisions of the Rome Statute should therefore be limited to situations where it either does not penalise a conduct proscribed under the Statute at all,127 or where the legislative path chosen by the state does not enable courts to impose an adequate sentence and would lead to a gross understatement of the actual gravity of the offence that falls significa ntly short of the characterisation that act received in the Statute. The first case would possibly even amount to mere inaction of the state, which would m ake the case admissible without having to have recourse to the notions of unwillingness or inability. 128

123 Tallgren, see note 72, MN 29. 124 MeiBner, see note 29, 89. 125 Zimmermann, see note 65, 221; MeiBner, see note 29, 83; Tallgren, see note 72, MN 22. 126 See und er II. 2. 127 See the example given by J.D. van der Vyver, "P ersonal and Territor ial Ju risdiction of the International Criminal Court", Emory Int ernational Law Review 14 (2000), 1 et seq. (95-96). 128 See under III. 1.

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2. Article 17 (1)(b) Article 17 (1)(a) and (b) differ in that para. (a) envisages a situation where the state is still in the process of investigating or prosecuting, whereas para. (b) regulates the case in which the state has concluded an investigation, but has decided not to pursue the case to the stage of criminal prosecution, whether for reasons of procedural or substantive law.129 Article 17 (1)(b) raises the same questions as to a state having jurisdiction and being unwilling or unable as article 17 (1)(a); the analysis pertaining to that provision may therefore be referred to.

3. Complementarity and ne his in idem (Article 17 (1)(c» Article 17 (1)(c) captures the situation where a person has already been tried by another domestic court. It refers to article 20 (2). From the wording of the provision, it is clear that the court proceedings have to be cornpleted.P? However, the omission of the words "for which the person has (...) been convicted or acquitted" which are included in article 20 (1) and (2) suggests a contrario that a final judgement on the merits is not necessary for para. (3). Instead, any termination of the proceedings, e.g. on procedural grounds, would suffice as long as the proceedings have been conducted bona fide before and by the national courts.P! It thus seems that the Statute has taken a different path to the ICTY: in the Tadic case,132 an ICTY Trial Chamber, interpreting article 10 (2) of the ICTY Statute, which also does not contain the relevant phrase, stated that "there can be no violation of non-his-in-idem, under any known formulation of that principle, unless the accused has already been tried. Since the accused has not yet been the subject of a judgment on the merits on any of the charges for which he has been indicted, he has not yet been tried for those charges".133 This may be yet another illustration for the complementary nature of the ICC, in that the Statute Meillner, see note 29, 77. Meifjner, see note 29,78. 131 Tallgren, seenote 72,MN 26. 132 ICTY, Prosecutor v. Tadic, Decision on the Defence Motion on the Principle of Non-Bis-in-Idern, Case IT-94-1-T, 14 November 1995, reprinted in: Klip/ Sluiter, see note 22, 143 et seq. 133 Ibid., para. 24 (emphasis added). 129

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appreciates state sovereignty by posing a greater trust in national systems. The point in time decisive to distinguish between article 17 (l)(b) and (c) is the transition of responsibility for the case and the competence to decide on its progress on the judge.P" Article 20 (3) does not provide for the situation of inability. 135

4. Gravity of the Offence (Article 17 (1)(d» Article 17 (l)(d) is distinct from the other criteria in article 17 (1), as it applies to all cases which are brought before the Court, not just those with respect to which national authorities have already taken action;136 it is not a subsidiary criterion but stands on an equal footing with the other factors enumerated in article 17 (1). The concern leading to the rule was that the Court may be flooded with cases.!" it thus serves purposes of practicability, but is also an expression of the will of states to tackle impunity for the "most serious crimes of concern to the international community as a whole",138 The meaning of "sufficient gravity" is not defined by the Statute and will have to be developed by the Court over time.P? in its application of the term, the Court will enjoy a considerable margin of appreciation.r'? As relevant factors for sufficient gravity, the Court may take into account the degree and magnitude of the wrongdoing, including the extent to which they were planned or part of a general policy.I"! and the detrimental effect the crimes (potentially) had or still have on the social

134 MeiBner, see note 29, 77. 135 This may be due to the fact that the negotiators had in mind that in case of inability there would be no judgment of a nationalcourt at all. 136 Broomhall,see note 85, 144. 137 Benvenuti, see note 64, 43. 138 Preambularpara. 4 (emphasis added). 139 L. Sadat Wexler, "A First Look at the 1998 Rome Statute for a Permanent International Criminal Court: Jurisdiction, Definition of Crimes, Structure and Referrals to the Court", in: M.e. Bassiouni, International Criminal Law, Vol. 3, 2nd edition, 1999,655et seq. (677). 140 Bourdon/ Duverger, see note 9, 96. 141 SadatWexler, see note 139, with reference to the chapeauof article8.

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and cultural fabric of the region or state where they (allegedly) occurred. 142 The policy paper issued by the Office of the Prosecutor.t? taking up suggestions in literature.lt" envisages that the gravity requirement is not exclusively interpreted as relating to the acts that constituted the "crime base" but also to the degree of participation in their commission. This is not necessarily synonymous with a limitation to "high-level perpetrators" from the higher echelons of the state, but can also connote a substantial role in the commission of the crime. It is however debatable whether this additional restriction should be read into article 17 (l)(d), with the consequence that the possibility of the Court to exercise jurisdiction would strictly be limited to these categories, or whether the place better suited for such considerations is the decision of the Prosecutor to abstain from an investigation or prosecution under article 53 (l)(c) and (2)(c).

It is interesting to analyse the relationship of this provision with article 5 (1), pursuant to which the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. This is often interpreted to confine the jurisdiction of the Court to such acts which would fall under article 5 (l)(a) to (c), but additionally are of an especially high gravity and severity.P" If this were so, the question of inadmissibility under article 17 (l)(d) would never arise, at least not within the procedural framework of the Court.l'" rendering the provision essentially redundant. It is submitted that the reference in article 5 to "the most serious crimes" is merely a general characterisation of the crimes that are set out in this norm, thus clarifying that genocide, crimes against humanity, war crimes and aggression are, per se, and without having regard to any specific occurrence of such crimes, the most serious crimes of concern to the international community as a whole. The chapeau of article 5 (1) does not restrict the Court's jurisdiction more than paras (a) to (d) of article 5 (1) read in connection with arts 6 to 8. With this interpretation, article 17 (l)(d) retains its relevance by giving the Court the possibility to distinguish between different levels of crimes within its jurisdiction. 142 143 144 145 146

MeiBner, see note 29, 79. <www.icc-cpi.int/otp/policy.php>. SadatWexler, see note 139. Newton, see note 5, 39; similar: A. Zimmermann, "Article 5", in: Triffterer, see note 2, MN 9. Cf. Rule 58 (4).

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rv: The Procedural Framework The procedural framework':" relating to complementarity is intricate and primarily designed to reconcile the two opposing maxims of effective operation of the Court and preservation of states' right to investigate and prosecute. The sovereignty-protecting aspect of the principle is "strengthened" by the possibility of challenging the admissibility of a case at a very early stage in the proceedings, which is counterbalanced by the one-month preclusion period provided for in article 18 (2) and the limitation for bringing such challenges in article 18 (7).148 The exact development of the procedure to be followed with regard to a challenge to the admissibility of a case has been described in detail elsewhere.l"? Some important issues should, however, be highlighted.

1. The Court as Arbiter over the Complementarity Regime The procedural regime governing complementarity is clearly based on the assumption that it is the Court as a judicial bod y ls 0 itself that determines conclusively whether or not a case is admissible, including all necessary criteria for such determination. 151 However, as opposed to its jurisdiction, it is not per se obliged to consider the matter on its own initiative, but may raise the issue proprio motu (article 19 (1)) if it wishes to. 152

147

148 149

150 151

152

Arts 18, 19 and Rules 51 to 62 of the Rules of Procedure and Evidence. Compare Holmes, see note 15,681-682. Bergsmo, see note 57; Holmes, see note 15; C. KreB, "Rornisches Statut des Internationalen Strafgerichtshofs - Vorbemerkungen", in: H . Griitzner/ P.G. Potz (eds), Internationaler Rechtshilfeverkehr in Strafsachen, 2nd edition, 2002, Vor III 26, MN 22 et seq.; MeiBner, see note 29,89 et. seq. I.e. the Chambers of the Court. Cf. Dahm/ Delbriick! Wolfrum, see note 19, 1155; G.S. Goodwin-Gill, "Crime in International Law: Obligations Erga Omnes and the Duty to Prosecute", in: Goodwin-Gill/ S. Talmon, The Reality of International Law, Essays in Honour of Ian Brownlie, 1999, 199 et seq. (221); KreB, see note 149, MN 23; Fife, see note 21, 68; MeiBner, see note 29,69. Cf. Broomhall, see note 49, 88.

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2. Duty of the Prosecutor to Inform States under Article 18 Under article 18 (1), the Prosecutor has an obligation to notify states when a State party has referred a situation to the Court or where he or she initiates an investigation proprio motu .153 Under the clear wording of the provision, this duty exists also vis-a-vis non-States parties.P" The norm thus provides for a right for third states, i.e, states that are not party to the treaty. 155 The duty to notify only extends to such states as, "taking into account the information available, would normally exercise jurisdiction over the crimes concerned". It thus begs the question which states are included by that phrase. A possible interpretation may be that it indeed includes all states that have incorporated universal jurisdiction regarding the crimes under article 5 of the Statute in their domestic jurisdiction. l s6 In practice, however, few states actually do prosecute alleged perpetrators under the principle of universality in the absence of any specific link to the crime .P? Thus, "normally" could and should be interpreted to refer to actual state practice. One may further argue that the term "normally" limits the number of states to be notified to those 153

154

155

156 157

It is not applicable for Security Council referrals under article 13 (b). The duty to inform arises as soon as the Prosecutor has concluded that there is a reasonable basis to proceed with an investigation under article 53 (1), or, in the case of an initiation proprio motu, when the Pre-Trial Chamber has authorised such commencement under article 15 (4), see S. Fernandez de Gurrnendi/ H. Frirnan, "The Rules of Procedure and Evidence of the International Criminal Court", Yearbook of International Humanitarian Law 3 (2000), 289 et seq. (295). Cassese, see note 48, 159; El Zeidy, see note 103, 907; E. David, "La Com penale internationale: une Com en liberte surveille?" , International Law Forum du droit international 1 (1999),20 et seq. (26); S. Rosenne, "The Jurisdiction of the International Criminal Court", Yearbook of International Humanitarian Law 2 (1999),119 et seq. (131). The question is governed by article 36 (1) and (2) Vienna Convention on the Law of Treaties which makes the coming into existence of a right dependent on the express or presumed assent of the third state in question. Stahn, see note 59, 589. Schabas, see note 116, 160. A particularly topical case is Belgium: see <www.hrw.org/press/2003/08/belgium080103.htm>. See also National Prosecution of International Crimes from a Comparative Perspective, Project of the Max Planck Institute for Foreign and International Criminal Law, Freiburg, <www.iuscrim.mpg.delforsch/straf/projekte/nationalstraf verfolgung2_e.html>.

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which, apart from having jurisdiction over the case, have some type of additional link to the crime in question.P'' and that link is known to the Prosecutor ("according to the information available").159 In the interest of expediency and effectiveness of international criminal proceedings and of preventing abuse, it is desirable to keep the number of states to be informed limited to a reasonable number.ls? Moreover, in the absence of an obligation of states to inform the Office of the Prosecutor of their domestic jurisdictional regime, it is hardly conceivable that the Office be obliged to ascertain which states have established universal jurisdiction within their domestic legal system before launching an investigation. Such a link exists where the state in question would be entitled to exercise jurisdiction under traditional international law criteria, i.e, as the state of nationality of the alleged offender; where the crime occurred on the territory of the said state; and where nationals of that state are amongst the victims of the crime. A link can also be made where the suspect or accused resides or is present in the territory of that state. 161 It may also apply where states have informed the Court that they have established and are exercising universal jurisdiction with regard to crimes within the jurisdiction of the Court, even where no such specific connection exists. An even more restrictive interpretation of the norm has been advocated, concluding that the complementarity principle as such, i.e. not only the duty to inform under article 18, merely applies to states which

158 Kref], see note 149, MN 25; implicitly: G. Palmisano, "The ICC and Third States", in: Lattanzi/ Schabas, see note 64,391 et seq. (399, note 18).

159 One may also ask what "available" information means, i.e. whether it only

160 161

refers to information that is already in the possession of the Prosecutor or whether he or she has to make further inquiries. In order to give effect to the protection of state sovereignty accorded by article 18, the Prosecutor must make a reasonable effort to determine whether such links exist. This should be less onerous than to require the Prosecutor to establish whether a state has provided for universal jurisdiction under its national legal system. Bos, see note 61, 258. This differs from the other criteria in that it is not per se a requirement for jurisdiction under international law; however, it has been used in national law to regulate the exercise of universal jurisdiction. For Germany, see C. HoB/ R. Miller, "German Federal Constitutional Court and Bosnian War Crimes: Liberalizing Germany's Genocide Jurisprudence", GYIL 44 (2001),576 et seq. (596 et seq.).

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have such a link. 162 Only these states, it is argued, may reasonably be presumed to be in a position to successfully collect evidence of the alleged crimes and enforce a judgement. 163 Furthermore, it is maintained that the central goal of the Statute, i.e. the effective repression of crimes under the jurisdiction of the Court, could be frustrated if every state were able to invoke the complementarity principle regardless of the strength of the link or the probability of obtaining the accused and recovering the evidence. However, one should differentiate between the applicability of the principle as such on the one hand, and the duty of the Prosecutor to inform as well as the right of states to bring challenges on the other hand, which is just a corollary designed to give the states concerned an opportunity of raising objections at as early a stage as possible. As observed, this right is coupled with a preclusion period of one month, after the lapse of which no such challenges may be brought, which fosters legal certainty in that area and prevents a waste of resources. Moreover, article 19 (2)(b) does not in any way restrict the number of states entitled to bring challenges to the admissibility of a case, a right not dependent on previous notification.

If once accepts the reasoning offered above, one has to consequently pose the question of the legal consequences of non-notification. Such non-notification may happen (a) following the interpretation given as to the scope of this duty above, because the state in question did not have a specific link to the crime in question, or (b) because of a breach of the Prosecutor's duty to notify such states which can point to a link. Article 18 (2) does not provide for any legal consequences of this situation. The problem arising is whether the time limit of one month for information that the state is investigating or has investigated the situation still applies. General principles in national systems suggest that the time limit is at least not appli cable where the failure to notify constituted a breach of the Prosecutor's obligations.

3. Request by States to Defer Investigation Article 18 (2) provides that, within one month of receipt of a notification under article 18 (2), states, again including non-States parties, may inform the Court that they have investigated or are investigating the 162 163

Benvenuti, see note 64, 48. F. Lattanzi, "Competence de la Cour penale internationale et consentement des Etats", RGDIP 103 (1999) 425 et seq. (430-431).

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crime. "Within its jurisdiction" must be construed to mean that the state actually has jurisdiction under its domestic legal system lest article 18 be used to delay proceedings. This is in line with the interpretation of article 17 (1)(a) and (b) and the requirement laid down in article 19 (2)(b). The Prosecutor has to comply with the request ("shall") inasmuch as he or she needs to challenge it by seeking an authorisation to proceed with the Pre-Trial Chamber (article 18 (2) in fine). This also applies in situations where the state has only initiated investigations after having been notified by the Prosecutor. The Statute does not regulate the question of in how far a state has to substantiate the claim that (a) it has jurisdiction and (b) is investigating or has investigated. Rule 53 merely provides that a state 164 shall make the request for deferral in writing and provide information concerning its investigation. The Prosecutor may then request additional material. However, this rule seems to be intended solely to put the Prosecutor in a position to consider seeking an authorisation under article 18 (2) in fine, rather than giving the Prosecutor the right to evaluate the material submitted by the state and to reject a request for deferral. According to the clear wording, the Prosecutor has to comply with the request; questions of evidence and the burden of proof do not arise until proceedings before the Pre-Trial Chamber under article 18 (2) and Rules 54 and 55 have been initiated by the Prosecutor,

4. Complementarity and the Security Council The issue of admissibility has to be considered also in connection with the triggering mechanisms of the Court. Article 17 establishes substantive criteria for admissibility without clarifying its relationship with the different triggering options provided in article 13. The relationship between the Security Council referring a situation to the Court and the application of the complementarity regime is particularly unclear. While article 18 does not apply to Security Council referrals, article 19 clearly does. 165 Still, it has been argued that the complementarity regime as

164 165

Rule 53, from its text, applies both to States parties and non-States parties. Holmes, see note 15,683; Bourdon/ Duverger, see note 9,106.

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such does not apply to such a referral.l 66 A majority of scholars, however, contends that it does. 167

It is imaginable that the Security Council, in a resolution referring a situation to the Court, may declare a situation admissible, e.g. by declaring a state unable or unwilling to investigate or prosecute, raising the question whether the Court would be bound by such a decision of the Council. Reference to the ICC being intended as an independent and impartial international organisation with the power to determine its own comperencet'f is not sufficient as such: the independence of the Court and its judges only exists within the ambit of the legal framework established by the Statute and does not per se preclude the influence of other organs on questions of jurisdiction and admissibility.P? However, the Statute presupposes that the Court will apply the complementarity principle to Security Council referrals, in particular since article 53 (1)(b) requires the Prosecutor to have regard to the admissibility of the case when deciding whether to initiate an investigation also if the case has been referred to the Court by the Security Council.V? The fact that article 18 does not refer to the Security Council can be explained by the reason that a resolution would be public and consequently states would be informed without the Prosecutor having to act. However, the problem cannot be considered by an exclusive reference to the Statute; the obligation of states and the Court with regard to the UN Charter must also be taken into consideration. While some argue that the Court would not be bound by a determination of admissibility by the Security Council since Arts 24, 25 and 103 of the Charter of the United Nations only address UN Member States, not interna-

166 167

168

169 170

Dixon/ Khan/ May, see note 55, 30, § 2-41; Newton, see note 5, 49. Holmes, see note 15,683; Benvenuti, see note 64, 41; Cassese, see note 48, 159; M.H. Arsanjani, "The Rome Statute of the International Criminal Court", A]IL 93 (1999),22 et seq. (28); F. Hoffmeister/ S. Knoke, "Das Vorermittlungsverfahren vor dem Internationalen Strafgerichtshof - Prufstein fur die Effektivitat der neuen Gerichtsbarkeit im Volkerstrafrecht", ZaoRV 59 (1999), 785 et seq. (798); Sadat/ Carden, seenote 87, 417. G.H. Oosthuizen, "Some preliminary remarks on the relationship between the envisaged International Criminal Court and the UN Security Council", NILR 46 (1999) 313 et seq. (326). Cf. article 16 and the ongoing discussions on the crime of aggression. P. Gargiulo, "The Controversial Relationship Between the International Criminal Court and the Security Council", in: Lattanzi/ Schabas, see note 64, 67 et seq. (84).

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tional organisations.F! others correctly contend that decisions of the Security Council under Chapter VII of the UN Charter are binding on international organisations.P? at least inasmuch as they are established by UN Member States.V' since states cannot vest an international organisation with more powers than they themselves have l 74 and must not circumvent their own duties under the UN Charter by creating an international organisation which exercises its duties in contradiction to the United Nations and its organs.I" However, it seems reasonable to say that the Security Council may only "utilise" an international organisation by way of Chapter VII resolutions within the framework set by the treaty establishing that organisatioml-" if one accepts this reasoning, it then follows that, since states have created the ICC as a complementary institution and retained the right to investigate and prosecute unless deemed unwilling or unable by the Court, the Security Council may not ignore that restriction on the Court's scope of action. Having said that, from a more practical viewpoint, it is highly unlikely that the Court would disagree with a determination by the Council in the light of its persuasive weight. It is a different issue whether UN Member States are under an obligation not to bring a challenge to admissibility in case of such determination, given that the Council acts on behalf of all Members States and these are bound by its resolutions. Indeed, the case has been made for such a reading.l" Moreover, a UN Member State may be under the obligation to defer to the jurisdiction of the Court.V" However, even if this were the case, this would not prevent the court from making a de171 172

173

174

175 176

177 178

Arsanjani, see note 167. R.H. Lauwaars, "The Interrelationship Between United Nations Law and the Law of Other International Organizations", Mich. L. Rev. 82 (19831984), 1604 et seq. (1605-1606). As to the situation of non-member states see generally R. Bernhardt, "Article 103", in: B. Simma, The Charter of the United Nations: A Commentary, 2nd edition, Vol. 2, 2002, 1292 et seq. (1298). Cf. E. de Wet, "Judicial Review as an Emerging General Principle of Law and its Implications for the International Court of Justice", NILR 47 (2000),181 et seq. (194). Meiliner, see note 29,105. Ibid. The que stion raises complex questions of the law of int ernational institutions which are beyond the scope of this article. See also: P. Sands/ P. Klein, Bowett's Law of International Institutions, 2001, 460 et seq. Newton, see note 5, 49. Oosthuizen, see note 168, 328.

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termination of inadmissibility proprio motu or pursuant to a challenge by the accused.

5. Burden and Standard of Proof Even though article 17 establishes a general "presumption" for state action, this only emphasises the fact that national authorities should primarily deal with the matter.l/? The negative formulation ("shall determine that a case is inadmissible") does not in and of itself give any indication as to the burden of proof in admissibility proceedings. In order to establish which party bears the onus in admissibility proceedings, one has to look at each subpara. of article 17 (1). The Rules of Procedure and Evidence do not further clarify the matter. The way article 17 (1)(a) and (b) are devised ("unless"), it is apparent that the burden to show the unwillingness or inabilityls? of a state to genuinely investigate or prosecute rests with the Prosecutor.l''! This is true for both article 18 and 19 proceedings before the Court. 182 A presumption for admissibility to be rebutted by the state that claims inadmissibility may be established if that state fails to respond to a request by the Prosecutor under article 18 (5)183 or to provide information concerning its investigation in accordance with Rule 53 of the Rules of Procedure and Evidence. 184 On the other hand, a plain reading of article 17 suggests that the state itself bears the onus to show (a) that it is investigating or prose179

180

181 182

183 184

Cassese speaks of a "presumption in favour of action at the level of states", see note 48. In the context of inability, it should be noted that, even though the concept of "unavailability" of national systems may be interpreted with reference to the unavailability of domestic remedies in the exhaustion of the local remedies rule, the burden of proof still lies on the Prosecutor to show that the national system is not available, as opposed to human rights law, d. Velasquez Rodriguez case, see note 76,305, para. 59. Holmes, see note 15, 677; Bergsmo, see note 57, 43; id., see note 12, 96; Philips, see note 75, 77; Stahn, see note 59, 589; Llewellyn, see note 52, 202. Bourdon/ Duverger, see note 9,100; Ntanda Nsereko, see note 22,117. Holmes, see note 15,682. In the light of the pacta tertiis rule, this can only apply to States parties. It is furthermore questionable whether the suspect or accused should bear the consequences of a failure of a state to comply with its obligations to inform where he or she initiates the admissibility proceedings under article 19 (1)(a).

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curing, or has investigated the case, 185 and (b) that it has jurisdiction over the case, 186 since these requirements are not contained in the phrase commencing with " unless" . The same goes for authorisation proceedings following a request for deferral under 18 (2) and 19. Another interesting question is whether the burden of proof is reversed where it is the suspect or accused that challenges the admis sibility of a case under article 19 (2)(a). It may be argued that art icle 66 (2) effects such reversal. However, article 66 (2) only refers to the question of guilt of the accused, not to issues of admissibility of proceedings; as discussed above, article 19 (2)(a) merely provides the suspect or accused with standing to assert that state sovereignty was infringed. Thus, the accused or suspect bears the onus to show that the state investigating or prosecuting him or her, or having done so, has jurisdiction over the case. As to the standard of proof, the negotiating history evidences that the judges will have to be convinced "beyond reasonable doubt", given that it proved impossible during the negotiations to incorporate a proposal to let reasonable doubts as to th e genuineness of a state's efforts to prosecute suffice. 187

6. Waiver of Complementarity To ask whether a state m ay "waive" its right to investigate and claim complementarity as a bar to admissibility is as much an interesting as a practical legal question, co nsidering that the Office of th e Prosecutor has issued a policy pap er in which it refers to a consensual division of labour and th e sharing of burden between states and the Court,I88 and taking into account that at least one State party has legislated for the possibility to abstain from exercising its jurisdiction in favour of a prosecution by the ICC if such restraint is in th e int erests of jusrice.l"? 185 Fife, see note 21, 72. 186 MeiBner, see note 29, 71. 187 H.P. Kaul, "Towards a Permanent International Criminal Court, Some Observations of a N egotiator ", HRL] 18 (1997), 169 et seq. (172). 188 <www.icc-cpi.int/otp/policy.php>, 4, last paragraph. 189 Section 28 of the German law on co-operation with the International Criminal Court. Cf. C. KreB, "Gesetz iiber die Zusammenarbeit mit dern In rern atio nalcn Strafgerichtshof", in: Griitzn er/ Por z, sec note 149, III 26, MN 15.

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Possible grounds for such a waiver are well conceivable, for instance if the case is of international importance and/or politically too sensitive for the state to handle it itself. 190 If one reads the complementarity principle as a safeguard of national sovereignty in the form of the right to prosecute, then it is indeed convincing to argue that a state, by declining to exercise the right, under general international law, may waive its primacy and so enable the Court to act. 191 If, however, the complementarity principle did not exclusively protect state sovereignty, but also created a right for the individual (cf. article 19 (2)(a)), then such a waiver by a state would not be possible, as the state cannot unilaterally take away a right of a person that it has agreed to in a multilateral instrument. Given that, as concluded above, the Statute does not grant such right to the individual, a waiver should be possible, if only limited to a state's own right to prosecute; other states (also) having jurisdiction may naturally still raise objections. Neither is a "waiver" of complementarity proscribed where a duty to exercise criminal jurisdiction over those responsible for international crimes exists. 192 Handing over the prosecution to the international plane would not amount to a breach of an international obligation since the state in question would fulfil its obligation by ensuring that the Court investigates and adjudicates the crimes, provided that the Court does actually initiate proceedings. In considering the question of waiver, however, one must differentiate between the gravity requirement (article 17 (1)(d)) and ne his in idem (article 17 (1)(c)) on the one hand, and inability or unwillingness on the other hand (article 17 (a) and (b)).193 The requirements of sufficient gravity and ne his in idem are important to the validity of a prosecution before the ICC, and to this extent seem quasi-jurisdictional.l?' Both ne his in idem and the gravity requirement are not limited in their rationale to the protection of the right of states to prosecute. More importantly, ne his in idem reflects a fundamental principle of fair trial of

190 Duffyl Huston, seenote 6,32. 191 Solera, see note 12, 159; Newton, see note 5, 68-69; G. Seidell C. Stahn, "Das Statut des Weltstrafgerichtshofs, Ein Uberblick iiber Entstehung, Inhalt und Bedeutung", Jura 21 (1999), 14 et seq. (16). A waiver of rights is generally recognised under international law: Ch. Rousseau, Droit international public, Vol. 1, 1970, 428 et seq. 192 Seenote 26. 193 L.N. Sadat, Th e Int ernational Criminal Court and the Transformation of

International Law, 2002, 125-126.

194 Ibid.; Meiilner, seenote 29,74.

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the accused recognised under international law.195 It is thus not conceivable that by "waiving" its right to prosecute, a state could vitiate these requirements.l'" The Court would still have to rule the case to be inadmissible. In light of the above, it is also unproblematic to only partially "waive complementarity". If a state can waive a right in its entirety, then it can also decide in how far and to what extent it wants to give up certain rights (argumentum a maiore ad minus). The complementarity principle remains open to a consensual approach inasmuch as it is permissible to let the Court deal with some (e.g. the most serious) cases and leave the investigation of other (lower-level) perpetrators to the national state.

"\T. Conclusion The complementarity regime of the Court has some interesting implications which have not been specifically addressed in this contribution, and that will not be easy to resolve in practice. To name but a few, it is obvious that the Court is completely dependent on the co-operation of states for the proper discharge of its functions . It is less clear how the Court will be able to co-operate with a state that it has just declared unable or unwilling to deal with the case at hand itself (complementarity paradoxl.!'" Another topical issue is how truth and reconciliation commissions, amnesties and pardons should be dealt with. 198 The principle has received much praise and much criticism. For some, it signifies an ingenious solution to a deadlock in negotiations between sovereignty -anxious states and those who wished the Court to take a more active and prominent role. For others, it is an excessive concession to state sovereignty, potentially endangering the success of the endeavour to establish the first permanent international institution with jurisdiction over the most serious international crimes. Only the application of complementarity in practice will show whether it will indeed hamper the Court in pursuing its main goal, to ensure that "the most serious crimes of concern to the international

195 196 197 198

A. Cassese, International Criminal Law, 2003, 319 et seq. MeiBner, see note 29, 73. Cf. Bergsmo, see note 12, 98. Cf. Seibert-Fohr, see note 26, and Robinson, see note 51.

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community as a whole must not go unpunished" and to contribute to the deterrence of future perpetrators from committing international crimes. Thus, without taking sides in this controversy, the essential results of the discussion of complementarity offered here may be summarised as follows: 1. Complementarity is designed to find a balance between the sovereign right of all states to exercise criminal jurisdiction over acts within their jurisdiction and the interest of the international community in the effective prosecution of international crimes, the avoidance of impunity and the deterrence of future crimes within the jurisdiction of the Court. 2. Besides being a diplomatic compromise, it is also a recognition of the fact that the resources of the ICC will be limited and that the Court, due to its permanent and global nature, will not be able to act in every case where a crime within the jurisdiction of the Court is committed. 3. Acknowledging that the effective prosecution of international crimes depends on action on the national level, the Statute operates as a catalyst encouraging states to investigate and prosecute crimes under the jurisdiction of the Court. 4. States may generally waive their right to raise complementarity as a bar to the admissibility of the case. The principle permits a flexible approach to co-operation between states and the ICC. 5. The complementary nature of the ICC requires that the Court, in particular the Office of the Prosecutor, monitors the situation in states with a view to identifying possible situations in which the goals of the Statute are in danger of being disregarded.

Annex

Appeals Division Pre.ident of the ICC and rour other judge.

Offlce of the Registrar of the Trial Division no less than siJ.judges

Trial Chamber three judges .ludgments and Sentences

Pre-Trial Division no less than six judges

Office or CheProseeeter independent rrum .11 other ol'l"n. of the ICC

o Markus Wagner, Diagram of the International Criminal Court's Procedure and Organization

International

Criminal Court

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

Preamble The States Parties to this Statute, Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time, Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, Recognizing that such grave crimes threaten the peace, security and well-being of the world, Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the nationallevel and by enhancing international cooperation, Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes, Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain 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 U nited Nations, Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State, Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with

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jurisdiction over the most serious crimes of concern to the international community as a whole, Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions, Resolved to guarantee lasting respect for and the enforcement of international justice, Have agreed as follows:

Part 1. Establishment of the Court Article 1 The Court An International Criminal Court ("the Court") is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.

Article 2 Relationship of the Court with the United Nations The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf.

Article 3 Seat of the Court 1. The seat of the Court shall be established at The Hague in the Neth-

erlands ("the host State").

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2. The Court shall enter into a headquarters agreement with the host

State, to be approved by the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf. 3. The Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute.

Article 4 Legal status and powers of the Court 1. The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. 2. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.

Part 2. Jurisdiction, Admissibility and Applicable Law Article 5 Crimes within the jurisdiction of the Court 1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression. 2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

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Article 6 Genocide For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

Article 7 Crimes against humanity 1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in con-

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nection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.. 2. For the purpose of paragraph 1:

(a) "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; (b) "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; (c) "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; (d) "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law; (e) "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; (f) "Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; (g) "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

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(h) "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; (i) "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 3. For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above.

Article 8 War crimes 1. The Court 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. 2. For the purpose of this Statute, "war crimes" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) Wilful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Wilfully causing great suffering, or senous injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

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Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages. (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion; (vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive em-

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blems of the Geneva Conventions, resulting in death or serious personal injury; (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; Intentionally directing attacks against buildings dedi(ix) cated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; Subjecting persons who are in the power of an adverse (x) party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; Killing or wounding treacherously individuals be(xi) longing to the hostile nation or army; Declaring that no quarter will be given; (xii) Destroying or seizing the enemy's property unless (xiii) such destruction or seizure be imperatively demanded by the necessities of war; (xiv) Declaring abolished , suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; Compelling the nationals of the hostile party to take (xv) part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war; Pillaging a town or place, even when taken by assault; (xvi) (xvii) Employing poison or poisoned weapons; (xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; Employing bullets which expand or flatten easily in (xix) the human body, such as bullets with a hard envelope

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which does not entirely cover the core or is pierced with incisions; (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the internationallaw of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123; (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; (xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions; (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities. (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid

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down their arms and those placed bors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, In particular humiliating and degrading treatment; (iii) Taking of hostages; (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (iii) Intentionally directing attacks against personnel , installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (v)

Pillaging a town or place, even when taken by assault;

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(vi)

(vii)

647

Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;

Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; (viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; (ix) Killing or wounding treacherously a combatant adversary; (x) Declaring that no quarter will be given; (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medicalor scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict; (f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature . It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. 3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.

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Article 9 Elements of Crimes 1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two-

thirds majority of the members of the Assembly of States Parties. 2. Amendments to the Elements of Crimes may be proposed by: (a) Any State Party; (b) The judges acting by an absolute majority; (c) The Prosecutor. Such amendments shall be adopted by a two -thirds majority of the members of the Assembly of States Parties. 3. The Elements of Crimes and amendments thereto shall be consistent with this Statute.

Article 10 Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.

Article 11 Jurisdiction ratione temporis 1. The Court has jurisdiction only with respect to crimes committed

after the entry into force of this Statute. 2. If a State becomes a Party to this Statute after its entry into force,

the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.

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Article 12 Preconditions to the exercise of jurisdiction 1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. 2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national. 3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

Article 13 Exercise of jurisdiction The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

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Article 14 Referral of a situation by a State Party 1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. 2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.

Article 15 Prosecutor 1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. 2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court. 3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence. 4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case. 5. The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the

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Prosecutor based on new facts or evidence regarding the same situation. 6. If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence.

Article 16 Deferral of investigation or prosecution No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

Article 17 Issues of admissibility 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court.

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2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a)

The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;

(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c)

The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

Article 18 Preliminary rulings regarding admissibility 1. When a situation has been referred to the Court pursuant to article 13 (a) and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an investigation pursuant to articles 13 (c) and 15, the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States.

2. Within one month of receipt of that the Court that it is investigating or others within its jurisdiction with may constitute crimes referred to in

notification, a State may inform has investigated its nationals or respect to criminal acts which article 5 and which relate to the

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information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State's investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation. The Prosecutor's deferral to a State's investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State's unwillingness or inability genuinely to carry out the investigation. The State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with article 82. The appeal may be heard on an expedited basis. When the Prosecutor has deferred an investigation in accordance with paragraph 2, the Prosecutor may request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any subsequent prosecutions. States Parties shall respond to such requests without undue delay. Pending a ruling by the Pre-Trial Chamber, or at any time when the Prosecutor has deferred an investigation under this article, the Prosecutor may, on an exceptional basis, seek authority from the Pre-Trial Chamber to pursue necessary investigative steps for the purpose of preserving evidence where there is a unique opportunity to obtain important evidence or there is a significant risk that such evidence may not be subsequently available. A State which has challenged a ruling of the Pre-Trial Chamber under this article may challenge the admissibility of a case under article 19 on the grounds of additional significant facts or significant change of circumstances.

Article 19 Challenges to the jurisdiction of the Court or the admissibility of a case 1. The Court shall satisfy itself that it has jurisdiction in any case

brought before it. The Court may, on its own motion, determ ine the admissibility of a case in accordance with article 17.

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2. Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by: (a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58; (b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or (c) A State from which acceptance of jurisdiction is required under article 12. 3. The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13, as well as victims, may also submit observations to the Court. The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1 (c). 4. A State referred to in paragraph 2 (b) and (c) shall make a challenge at the earliest opportunity. 5. Prior to the confirmation of the charges, challenges to the admissibility of a case or challenges to the jurisdiction of the Court shall be referred to the Pre-Trial Chamber. After confirmation of the charges, they shall be referred to the Trial Chamber. Decisions with respect to jurisdiction or admissibility may be appealed to the Appeals Chamber in accordance with article 82. 6. If a challenge is made by a State referred to in paragraph 2 (b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with article 17. 7. Pending a ruling by the Court, the Prosecutor may seek authority from the Court: (a) To pursue necessary investigative steps of the kind referred to in article 18, paragraph 6;

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(b) To take a statement or testimony from a witness or complete the collection and examination of evidence which had begun prior to the making of the challenge; and (c) In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58. 9. The making of a challenge shall not affect the validity of any act performed by the Prosecutor or any order or warrant issued by the Court prior to the making of the challenge. 10. If the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17. 11. If the Prosecutor, having regard to the matters referred to in article 17, defers an investigation, the Prosecutor may request that the relevant State make available to the Prosecutor information on the proceedings . That information shall, at the request of the State concerned, be confidential. If the Prosecutor thereafter decides to proceed with an investigation, he or she shall notify the State to which deferral of the proceedings has taken place.

Article 20 Ne his in idem 1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court. 2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court. 3. No person who has been tried by another court for conduct also proscribed under article 6,7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

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(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

Article 21 Applicable law 1. The Court shall apply:

(a) In the first place, this Statute, Elements of Cr imes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed confl ict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with internationallaw and internationally recognized norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status .

Part 3. General Principles of Criminal Law Article 22 Nullum crimen sine lege

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1. A person shall not be criminally responsible under this Statute un-

less the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 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. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.

Article 23 Nulla poena sine lege

A person convicted by the Court may be punished only in accordance with this Statute.

Article 24 1. No person shall be criminally responsible under this Statute for

conduct prior to the entry into force of the Statute. 2. In the event of a change in the law applicable to a given case prior to

a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.

Article 2S Individual criminal responsibility 1. The Court shall have jurisdiction over natural persons pursuant to this Statute. 2. A person who commits a crime within the jurisdiction of the Court

shall be individually responsible and liable for punishment in accordance with this Statute. 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

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(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsibl e; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime; (e) In respect of the crime of genocide, directly and publicly incites others to commit genocide; (f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose. 4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.

Article 26 Exclusion of jurisdiction over persons under eighteen The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.

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Article 27 Irrelevance of official capacity 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Article 28 Responsibility of commanders and other superiors In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the .jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecunon.

(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by

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subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded informat ion which clearly indicated , that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective respons ibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

Article 29 Non-applicability of statute of limitations The crimes within the jur isdiction of the Court shall not be subject to any statute of limitations.

Article 30 Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for puni shment for a crime with in the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of th is article, " knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary cours e of events. "Know " and "knowingly" shall be construed accordingly.

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Article 31 Grounds for excluding criminal responsibility 1. In addition

to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person's conduct:

(a) The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law; (b) The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxi cation, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court; (c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph; (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person's control.

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2. The Court shall det ermine the applicability of the grounds for ex-

cluding criminal responsibility provided for in this Statut e to the case before it. 3. At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in para graph 1 where such a ground is derived from applicable law as set forth in article 21. The proc edures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidenc e.

Article 32 Mistake of fact or mistake of law 1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. 2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding cr iminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33.

Article 33 Superior orders and prescription of law 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Go vernment or of

a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes

against humanity are manifestly unlawful.

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Part 4. Composition and Administration of the Court Article 34 Organs of the Court The Court shall be composed of the following organs: (a) The Presidency; (b) An Appeals Division, a Trial Division and a Pre-Trial Division; (c) The Office of the Prosecutor; (d) The Registry.

Article 35 Service of judges 1. All judges shall be elected as full-time members of the Court and shall be available to serve on that basis from the commencement of their terms of office. 2. The judges composing the Presidency shall serve on a fullntime basis as soon as they are elected. 3. The Presidency may, on the basis of the workload of the Court and in consultation with its members, decide from time to time to what extent the remaining judges shall be required to serve on a full-time basis. Any such arrangement shall be without prejudice to the provisions of article 40. 4. The financial arrangements for judges not required to serve on a full-time basis shall be made in accordance with article 49.

Article 36 Qualifications, nomination and election of judges 1. Subject to the provisions of paragraph 2, there shall be 18 judges of the Court. 2. (a) The Presidency, acting on behalf of the Court, may propose an increase in the number of judges specified in paragraph 1, indicating the reasons why this is considered necessary and appro-

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priate. The Registrar shall promptly circulate any such proposal to all States Parties. (b) Any such proposal shall then be considered at a meeting of the Assembly of States Parties to be convened in accordance with article 112. The proposal shall be considered adopted if approved at the meeting by a vote of two thirds of the members of the Assembly of States Parties and shall enter into force at such time as decided by the Assembly of States Parties. (c) (i)

Once a proposal for an increase in the number of judges has been adopted under subparagraph (b), the election of the additional judges shall take place at the next session of the Assembly of States Parties in accordance with paragraphs 3 to 8, and article 37, paragraph 2;

(ii) Once a proposal for an increase in the number of judges has been adopted and brought into effect under subparagraphs (b) and (c) (i), it shall be open to the Presidency at any time thereafter, if the workload of the Court justifies it, to propose a reduction in the number of judges, provided that the number of judges shall not be reduced below that specified in paragraph 1. The proposal shall be dealt with in accordance with the procedure laid down in subparagraphs (a) and (b). In the event that the proposal is adopted, the number of judges shall be progressively decreased as the terms of office of serving judges expire, until the necessary number has been reached.

3. (a) The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices. (b) Every candidate for election to the Court shall: (i)

Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or

(ii) Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a profes-

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sional legal capacity which is of relevance to the judicial work of the Court; (c) Every candidate for election to the Court shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court.

4. (a) Nominations ot candidates for election to the Court may be made by any State Party to this Statute, and shall be made either: (i) By the procedure for the nomination of candidates for appointment to the highest judicial offices in the State in question; or (ii) By the procedure provided for the nomination of candidates for the International Court of Justice in the Statute of that Court. (iii) Nominations shall be accompanied by a statement in the necessary detail specifying how the candidate fulfils the requirements of paragraph 3. (b) Each State Party may put forward one candidate for any given election who need not necessarily be a national of that State Party but shall in any case be a national of a State Party. (c) The Assembly of States Parties may decide to establish, if appropriate, an Advisory Committee on nominations. In that event, the Committee's composition and mandate shall be established by the Assembly of States Parties. 5. For the purposes of the election, there shall be two lists of candidates: List A containing the names of candidates with the qualifications specified in paragraph 3 (b) (i); and List B containing the names of candidates with the qualifications specified in paragraph 3 (b) (ii). A candidate with sufficient qualifications for both lists may choose on which list to appear. At the first election to the Court, at least nine judges shall be elected from list A and at least five judges from list B. Subsequent elections shall be so organized as to maintain the equivalent proportion on the Court of judges qualified on the two lists. 6.

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(a) The judges shall be elected by secret ballot at a meeting of the Assembly of States Parties convened for that purpose under article 112. Subject to paragraph 7, the persons elected to the Court shall be the 18 candidates who obtain the highest number of votes and a two-thirds majority of the States Parties present and voting. (b) In the event that a sufficient number of judges is not elected on the first ballot, successive ballots shall be held in accordance with the procedures laid down in subparagraph (a) until the remaining places have been filled. 7. No two judges may be nationals of the same State. A person who, for the purposes of membership of the Court, could be regarded as a national of more than one State shall be deemed to be a national of the State in which that person ordinarily exercises civil and political rights. 8.

(a) The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for: (i) The representation of the principal legal systems of the world; (ii) Equitable geographical representation; and (iii) A fair representation of female and male judges. (b) States Parties shall also take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children. 9.

(a) Subject to subparagraph (b), judges shall hold office for a term of nine years and, subject to subparagraph (c) and to article 37, paragraph 2, shall not be eligible for re-election. (b) At the first election, one third of the judges elected shall be selected by lot to serve for a term of three years; one third of the judges elected shall be selected by lot to serve for a term of six years; and the remainder shall serve for a term of nine years. (c) A judge who is selected to serve for a term of three years under subparagraph (b) shall be eligible for re-election for a full term . 10.Notwithstanding paragraph 9, a judge assigned to a Trial or Appeals Chamber in accordance with article 39 shall continue in office to

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complete any trial or appeal the hearing of which has already commenced before that Chamber.

Article 37 Judicial vacancies 1. In the event of a vacancy, an election shall be held in accordance with article 36 to fill the vacancy. 2. A judge elected to fill a vacancy shall serve for the remainder of the predecessor's term and, if that period is three years or less, shall be eligible for re-election for a full term under article 36.

Article 38 The Presidency 1. The President and the First and Second Vice-Presidents shall be elected by an absolute majority of the judges. They shall each serve for a term of three years or until the end of their respective terms of office as judges, whichever expires earlier, They shall be eligible for re-election once. 2. The First Vice-President shall act in place of the President in the event that the President is unavailable or disqualified. The Second Vice-President shall act in place of the President in the event that both the President and the First Vice-President are unavailable or disqualified. 3. The President, together with the First and Second Vice-Presidents, shall constitute the Presidency, which shall be responsible for: (a) The proper administration of the Court, with the exception of the Officc of the Prosecutor; and (b) The other functions conferred upon it in accordance with this Statute. 4. In discharging its responsibility under paragraph 3 (a), the Presi-

dency shall coordinate with and seek the concurrence of the Prosecutor on all matters of mutual concern.

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Article 39 Chambers 1. As soon as possible after the election of the judges, the Court shall organize itself into the divisions specified in article 34, para-

graph (b). The Appeals Division shall be composed of the President and four other judges, the Trial Division of not less than six judges and the Pre-Trial Division of not less than six judges. The assignment of judges to divisions shall be based on the nature of the func tions to be performed by each division and the qualifications and experience of the judges elected to the Court, in such a way that each division shall contain an appropriate combination of expertise in criminal law and procedure and in international law. The Trial and Pre-Trial Divisions shall be composed predominantly of judges with criminal trial experience. 2.

(a) The judicial functions of the Court shall be carried out in each division by Chambers. (b) (i) The Appeals Chamber shall be composed of all the judges of the Appeals Division; (ii) The functions of the Trial Chamber shall be carried out by three judges of the Trial Division; (iii) The functions of the Pre-Trial Chamber shall be carried out either by three judges of the Pre-Trial Division or by a single judge of that division in accordance with this Statute and the Rules of Procedure and Evidence; (c) Nothing in this paragraph shall preclude the simultaneous constitution of more than one Trial Chamber or Pre-Trial Chamber when the efficient management of the Court's workload so reqUlres.

3. (a) Judges assigned to the Trial and Pre-Trial Divisions shall serve in those divisions for a period of three years, and thereafter until the completion of any case the hearing of which has already commenced in the division concerned. (b) Judges assigned to the Appeals Division shall serve in that division for their entire term of office.

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4. Judges assigned to the Appeals Division shall serve only in that division. Nothing in this article shall, however, preclude the temporary attachment of judges from the Trial Division to the Pre-Trial Division or vice versa, if the Presidency considers that the efficient management of the Court's workload so requires, provided that under no circumstances shall a judge who has participated in the pre-trial phase of a case be eligible to sit on the Trial Chamber hearing that case.

Article 40 Independence of the judges 1. The judges shall be independent in the performance of their functions. 2. Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence. 3. Judges required to serve on a full-time basis at the seat of the Court shall not engage in any other occupation of a professional nature. 4. Any question regarding the application of paragraphs 2 and 3 shall be decided by an absolute majority of the judges. Where any such question concerns an individual judge, that judge shall not take part in the decision.

Article 41 Excusing and disqualification of judges 1. The Presidency may, at the request of a judge, excuse that judge

from the exercise of a function under this Statute, in accordance with the Rules of Procedure and Evidence.

2. (a) A judge shall not participate in any case in wh ich his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investi-

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gated or prosecuted. A judge shall also be disqualified on such other grounds as may be provided for in the Rules of Procedure and Evidence. (b) The Prosecutor or the person being investigated or prosecuted may request the disqualification of a judge under this paragraph. (c) Any question as to the disqualification of a judge shall be decided by an absolute majority of the judges. The challenged judge shall be entitled to present his or her comments on the matter, but shall not take part in the decision.

Article 42 The Office of the Prosecutor 1. The Office of the Prosecutor shall act independently as a separate organ of the Court, It shall be responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court. A member of the Office shall not seek or act on instructions from any external source. 2. The Office shall be headed by the Prosecutor. The Prosecutor shall have full authority over the management and administration of the Office, including the staff, facilities and other resources thereof. The Prosecutor shall be assisted by one or more Deputy Prosecutors, who shall be entitled to carry out any of the acts required of the Prosecutor under this Statute. The Prosecutor and the Deputy Prosecutors shall be of different nationalities. They shall serve on a full-time basis. 3. The Prosecutor and the Deputy Prosecutors shall be persons of high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases. They shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. 4. The Prosecutor shall be elected by secret ballot by an absolute majority of the members of the Assembly of States Parties. The Deputy Prosecutors shall be elected in the same way from a list of candidates provided by the Prosecutor. The Prosecutor shall nominate three candidates for each position of Deputy Prosecutor to be filled. Unless a shorter term is decided upon at the time of their election, the

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6. 7.

8.

9.

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Prosecutor and the Deputy Prosecutors shall hold office for a term of nine years and shall not be eligible for re-election. Neither the Prosecutor nor a Deputy Prosecutor shall engage in any activity which is likely to interfere with his Or her prosecutorial functions or to affect confidence in his or her independence. They shall not engage in any other occupation of a professional nature. The Presidency may excuse the Prosecutor or a Deputy Prosecutor, at his or her request, from acting in a particular case. Neither the Prosecutor nor a Deputy Prosecutor shall participate in any matter in which their impartiality might reasonably be doubted on any ground. They shall be disqualified from a case in accordance with this paragraph if, inter alia, they have previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted. Any question as to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by the Appeals Chamber. (a) The person being investigated or prosecuted may at any time request the disqualification of the Prosecutor Or a Deputy Prosecutor on the grounds set out in this article; (b) The Prosecutor or the Deputy Prosecutor, as appropriate, shall be entitled to present his or her comments on the matter; The Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children.

Article 43 The Registry 1. The Registry shall be responsible for the non-judicial aspects of the

administration and servicing of the Court, without prejudice to the functions and powers of the Prosecutor in accordance with article 42. 2. The Registry shall be headed by the Registrar, who shall be the prin-

cipal administrative officer of the Court. The Registrar shall exercise his or her functions under the authority of the President of the Court.

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3. The Registrar and the Deputy Registrar shall be persons of high

moral character, be highly competent and have an excellent knowledge of and be fluent in at least one of the working languages of the Court. 4. The judges shall elect the Registrar by an absolute majority by secret ballot, taking into account any recommendation by the Assembly of States Parties. If the need arises and upon the recommendation of the Registrar, the judges shall elect, in the same manner, a Deputy Registrar. s. The Registrar shall hold office for a term of five years, shall be eligible for re-election once and shall serve on a full-time basis. The Deputy Registrar shall hold office for a term of five years or such shorter term as may be decided upon by an absolute majority of the judges, and may be elected on the basis that the Deputy Registrar shall be called upon to serve as required. 6. The Registrar shall set up 'i!. Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence.

Article 44

Staff 1. The Prosecutor and the Registrar shall appoint such qualified staff as

may be required to their respective offices. In the case of the Prosecutor, this shall include the appointment of investigators. 2. In the employment of staff, the Prosecutor and the Registrar shall ensure the highest standards of efficiency, competency and integrity, and shall have regard, mutatis mutandis, to the criteria set forth in article 36, paragraph 8. 3. The Registrar, with the agreement of the Presidency and the Prosecutor, shall propose Staff Regulations which include the terms and conditions upon which the staff of the Court shall be appointed, remunerated and dismissed. The Staff Regulations shall be approved by the Assembly of States Parties.

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4. The Court may, in exceptional circumstances, employ the expertise

of gratis personnel offered by States Parties, intergovernmental organizations or non-governmental organizations to assist with the work of any of the organs of the Court. The Prosecutor may accept any such offer on behalf of the Office of the Prosecutor. Such gratis personnel shall be employed in accordance with guidelines to be established by the Assembly of States Parties.

Article 45 Solemn undertaking

Before taking up their respective duties under this Statute, the judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall each make a solemn undertaking in open court to exercise his or her respective functions impartially and conscientiously.

Article 46 Removal from office 1. A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or the

Deputy Registrar shall be removed from office if a decision to this effect is made in accordance with paragraph 2, in cases where that person: (a) Is found to have committed serious misconduct or a serious breach of his or her duties under this Statute, as provided for in the Rules of Procedure and Evidence; or (b) Is unable to exercise the functions required by this Statute. 2. A decision as to the removal from office of a judge, the Prosecutor or a Deputy Prosecutor under paragraph 1 shall be made by the Assembly of States Parties, by secret ballot: (a) In the case of a judge, by a two-thirds majority of the States Parties upon a recommendation adopted by a two-thirds majority of the other judges; (b) In the case of the Prosecutor, by an absolute majority of the States Parties;

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(c) In the case of a Deputy Prosecutor, by an absolute majority of the States Parties upon the recommendation of the Prosecutor. 3. A decision as to the removal from office of the Registrar or Deputy Registrar shall be made by an absolute majority of the judges. 4. A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar whose conduct or ability to exercise the functions of the office as required by this Statute is challenged under this article shall have full opportunity to present and receive evidence and to make submissions in accordance with the Rules of Procedure and Evidence. The person in question shall not otherwise participate in the consideration of the matter.

Article 47 Disciplinary measures A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar who has committed misconduct of a less serious nature than that set out in article 46, paragraph 1, shall be subject to disciplinary measures, in accordance with the Rules of Procedure and Evidence.

Article 48 Privileges and immunities 1. The Court shall enjoy in the territory of each State Party such privileges and immunities as are necessary for the fulfilment of its purposes. 2. The judges, the Prosecutor, the Deputy Prosecutors and the Registrar shall, when engaged on or with respect to the business of the Court, enjoy the same privileges and immunities as are accorded to heads of diplomatic missions and shall, after the expiry of their terms of office, continue to be accorded immunity from legal process of every kind in respect of words spoken or written and acts performed by them in their official capacity. 3. The Deputy Registrar, the staff of the Office of the Prosecutor and the staff of the Registry shall enjoy the privileges and immunities and facilities necessary for the performance of their functions, in ac-

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cordance with the agreement on the privileges and immunities of the Court. 4. Counsel, experts, witnesses or any other person required to be present at the seat of the Court shall be accorded such treatment as is necessary for the proper functioning of the Court, in accordance with the agreement on the privileges and immunities of the Court. 5. The privileges and immunities of: (a) A judge or the Prosecutor may be waived by an absolute majority of the judges; (b) The Registrar may be waived by the Presidency; (c) The Deputy Prosecutors and staff of the Office of the Prosecutor may be waived by the Prosecutor; (d) The Deputy Registrar and staff of the Registry may be waived by the Registrar.

Article 49 Salaries, allowances and expenses The judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall receive such salaries, allowances and expenses as may be decided upon by the Assembly of States Parties. These salaries and allowances shall not be reduced during their terms of office.

Article 50 Official and working languages 1. The official languages of the Court shall be Arabic, Chinese, English, French, Russian and Spanish. The judgements of the Court, as well as other decisions resolving fundamental issues before the Court, shall be published in the official languages. The Presidency shall, in accordance with the criteria established by the Rules of Procedure and Evidence, determine which decisions may be considered as resolving fundamental issues for the purposes of this paragraph. 2. The working languages of the Court shall be English and French. The Rules of Procedure and Evidence shall determine the cases in which other official languages may be used as working languages.

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3. At the request of any party to a proceeding or a State allowed to in-

tervene in a proceeding, the Court shall authorize a language other than English or French to be used by such a party or State, provided that the Court considers such authorization to be adequately justified.

Article 51 Rules of Procedure and Evidence 1. The Rules of Procedure and Evidence shall enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties. 2. Amendments to the Rules of Procedure and Evidence may be proposed by: (a) Any State Party; (b) The judges acting by an absolute majority; or (c) The Prosecutor. Such amendments shall enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties. 3. After the adoption of the Rules of Procedure and Evidence, in urgent cases where the Rules do not provide for a specific situation before the Court, the judges may, by a two-thirds majority, draw up provisional Rules to be applied until adopted, amended or rejected at the next ordinary or special session of the Assembly of States Parties. 4. The Rules of Procedure and Evidence, amendments thereto and any provisional Rule shall be consistent with this Statute. Amendments to the Rules of Procedure and Evidence as well as provisional Rules shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted or who has been convicted. 5. In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.

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Article 52 Regulations of the Court 1. The judges shall, in accordance with this Statute and the Rules of Procedure and Evidence, adopt, by an absolute majority, the Regulations of the Court necessary for its routine functioning. 2. The Prosecutor and the Registrar shall be consulted in the elaboration of the Regulations and any amendments thereto. 3. The Regulations and any amendments thereto shall take effect upon adoption unless otherwise decided by the judges. Immediately upon adoption, they shall be circulated to States Parties for comments. If within six months there are no objections from a majority of States Parties, they shall remain in force.

Part 5. Investigation and Prosecution Article 53 Initiation of an investigation 1. The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether: (a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; (b) The case is or would be admissible under article 17; and (c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber. 2. If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because:

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(a) There is not a sufficient legal or factual basis to seek a warrant or summons under article 58; (b) The case is inadmissible under article 17; or (c) A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime; the Prosecutor shall inform the Pre-Trial Chamber and the State making a referral under article 14 or the Security Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion. 3.

(a) At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the PreTrial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision. (b) In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the PreTrial Chamber. 4. The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information .

Article 54 Duties and powers of the Prosecutor with respect to investigations 1. The Prosecutor shall: (a) In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally; (b) Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in ar-

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ticle 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children; and (c) Fully respect the rights of persons arising under this Statute. 2. The Prosecutor may conduct investigations on the territory of a State: (a) In accordance with the provisions of Part 9; or (b) As authorized by the Pre-Trial Chamber under article 57, paragraph 3 (d). 3. The Prosecutor may: (a) Collect and examine evidence; (b) Request the presence of and question persons being investigated, victims and witnesses; (c) Seek the cooperation of any State or intergovernmental organization or arrangement in accordance with its respective competence and/or mandate; (d) Enter into such arrangements or agreements, not inconsistent with this Statute, as may be necessary to facilitate the cooperation of a State, intergovernmental organization or person; (e) Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents; and (f) Take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence.

Article 55 Rights of persons during an investigation 1. In respect of an investigation under this Statute, a person:

(a) Shall not be compelled to incriminate himself or herself or to confess guilt; (b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;

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(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and (d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute. 2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned: (a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court; (b) To remain silent, without such silence being a consideration in the determination of guilt or innocence; (c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and (d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

Article 56 Role of the Pre-Trial Chamber in relation to a unique investigative opportunity 1.

(a) Where the Prosecutor considers an investigation to present a unique opportunity to take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for the purposes of a trial, the Prosecutor shall so inform the Pre-Trial Chamber.

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(b) In that case, the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence. (c) Unless the Pre-Trial Chamber orders otherwise, the Prosecutor shall provide the relevant information to the person who has been arrested or appeared in response to a summons in connec tion with the investigation referred to in subparagraph (a), in order that he or she may be heard on the matter. 2. The measures referred to in paragraph 1 (b) may include: (a) Making recommendations or orders regarding procedures to be followed; (b) Directing that a record be made of the proceedings; (c) Appointing an expert to assist; (d) Authorizing counsel for a person who has been arrested, or appeared before the Court in response to a summons, to participate, or where there has not yet been such an arrest or appearance or counsel has not been designated, appointing another counsel to attend and represent the interests of the defence; (e) Naming one of its members or, if necessary, another available judge of the Pre-Trial or Trial Division to observe and make recommendations or orders regarding the collection and preservation of evidence and the questioning of persons; (f) Taking such other action as may be necessary to collect or preserve evidence. 3.

(a) Where the Prosecutor has not sought measures pursuant to this article but the Pre-Trial Chamber considers that such measures are required to preserve evidence that it deems would be essential for the defence at trial, it shall consult with the Prosecutor as to whether there is good reason for the Prosecutor's failure to request the measures. If upon consultation, the Pre-Trial Chamber concludes that the Prosecutor's failure to request such measures is unjustified, the Pre-Trial Chamber may take such measures on its own initiative. (b) A decision of the Pre-Trial Chamber to act on its own initiative under this paragraph may be appealed by the Prosecutor. The appeal shall be heard on an expedited basis.

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4. The admissibility of evidence preserved or collected for trial pursu-

ant to this article, or the record thereof, shall be governed at trial by article 69, and given such weight as determined by the Trial Chamber.

Article 57 Functions and powers of the Pre-Trial Chamber 1. Unless otherwise provided in this Statute, the Pre-Trial Chamber shall exercise its functions in accordance with the provisions of this article. 2. (a) Orders or rulings of the Pre-Trial Chamber issued under articles 15,18,19,54, paragraph 2,61, paragraph 7, and 72 must be concurred in by a majority of its judges. (b) In all other cases, a single judge of the Pre-Trial Chamber may exercise the functions provided for in this Statute, unless otherwise provided for in the Rules of Procedure and Evidence or by a majority of the Pre-Trial Chamber. 3. In addition to its other functions under this Statute, the Pre-Trial Chamber may: (a) At the request of the Prosecutor, issue such orders and warrants as may be required for the purposes of an investigation; (b) Upon the request of a person who has been arrested or has appeared pursuant to a summons under article 58, issue such orders, including measures such as those described in article 56, or seek such cooperation pursuant to Part 9 as may be necessary to assist the person in the preparation of his or her defence; (c) Where necessary, provide for the protection and privacy of victims and witnesses, the preservation of evidence, the protection of persons who have been arrested or appeared in response to a summons, and the protection of national security information; (d) Authorize the Prosecutor to take specific investigative steps within the territory of a State Party without having secured the cooperation of that State under Part 9 if, whenever possible having regard to the views of the State concerned, the Pre-Trial Chamber has determined in that case that the State is clearly unable to execute a request for cooperation due to the unavailabil-

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ity of any authority or any component of its judicial system competent to execute the request for cooperation under Part 9. (e) Where a warrant of arrest or a summons has been issued under article 58, and having due regard to the strength of the evidence and the rights of the parties concerned, as provided for in this Statute and the Rules of Procedure and Evidence, seek the cooperation of States pursuant to article 93, paragraph 1 (k), to take protective measures for the purpose of forfeiture, in particular for the ultimate benefit of victims.

Article 58 Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear 1. At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that: (a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (b) The arrest of the person appears necessary: (i) To ensure the person's appearance at trial, (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings , or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances. 2. The application of the Prosecutor shall contain: (a) The name of the person and any other relevant identifying information; (b) A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed; (c) A concise statement of the facts which are alleged to constitute those crimes;

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(d) A summary of the evidence and any other information which establish reasonable grounds to believe that the person committed those crimes; and (e) The reason why the Prosecutor believes that the arrest of the person is necessary. The warrant of arrest shall contain: (a) The name of the person and any other relevant identifying information; (b) A specific reference to the crimes within the jurisdiction of the Court for which the person's arrest is sought; and (c) A concise statement of the facts which are alleged to constitute those crimes. The warrant of arrest shall remain in effect until otherwise ordered by the Court. On the basis of the warrant of arrest, the Court may request the provisional arrest or the arrest and surrender of the person under Part 9. The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest by modifying or adding to the crimes specified therein. The Pre-Trial Chamber shall so amend the warrant if it is satisfied that there are reasonable grounds to believe that the person committed the modified or additional crimes. As an alternative to seeking a warrant of arrest, the Prosecutor may submit an application requesting that the Pre-Trial Chamber issue a summons for the person to appear. If the Pre-Trial Chamber is satisfied that there are reasonable grounds to believe that the person committed the crime alleged and that a summons is sufficient to ensure the person's appearance, it shall issue the summons, with or without conditions restricting liberty (other than detention) if provided for by national law, for the person to appear. The summons shall contain: (a) The name of the person and any other relevant identifying information; (b) The specified date on which the person is to appear; (c) A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed; and (d) A concise statement of the facts which are alleged to constitute the crime.

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The summons shall be served on the person.

Article 59 Arrest proceedings in the custodial State 1. A State Party which 'has received a request for provisional arrest or

for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9. 2. A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that: (a) The warrant applies to that person; (b) The person has been arrested in accordance with the proper process; and (c) The person's rights have been respected. 3. The person arrested shall have the right to apply to the competent

authority in the custodial State for interim release pending surrender. 4. In reaching a decision on any such application, the competent authority in the custodial State shall consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b). 5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make recommendations to the competent authority in the custodial State. The competent authority in the custodial State shall give full consideration to such recommendations, including any recommendations on measures to prevent the escape of the person, before rendering its decision. 6. If the person is granted interim release, the Pre-Trial Chamber may

request periodic reports on the status of the interim release. 7. Once ordered to be surrendered by the custodial State, the person

shall be delivered to the Court as soon as possible.

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Article 60 Initial proceedings before the Court 1. Upon the surrender of the person to the Court, or the person's appearance before the Court voluntarily or pursuant to a summons, the Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed, and of his or her rights under this Statute, including the right to apply for interim release pending trial. 2. A person subject to a warrant of arrest may apply for interim release pending trial. If the Pre-Trial Chamber is satisfied that the conditions set forth in article 58, paragraph 1, are met, the person shall continue to be detained. If it is not so satisfied, the Pre-Trial Chamber shall release the person, with or without conditions. 3. The Pre-Trial Chamber shall periodically review its ruling on the release or detention of the person, and may do so at any time on the request of the Prosecutor or the person. Upon such review, it may modify its ruling as to detention, release or conditions of release, if it is satisfied that changed circumstances so require. 4. The Pre-Trial Chamber shall ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor. If such delay occurs, the Court shall consider releasing the person, with or without conditions. 5. If necessary, the Pre-Trial Chamber may issue a warrant of arrest to secure the presence of a person who has been released.

Article 61 Confirmation of the charges before trial 1. Subject to the provisions of paragraph 2, within a reasonable time after the person's surrender or voluntary appearance before the Court, the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her counsel. 2. The Pre-Trial Chamber may, upon request of the Prosecutor or on its own motion, hold a hearing in the absence of the person charged

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to confirm the charges on which the Prosecutor intends to seek trial when the person has: (a) Waived his or her right to be present; or

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(b) Fled or cannot be found and all reasonable steps have been taken to secure his or her appearance before the Court and to inform the person of the charges and that a hearing to confirm those charges will be held. In that case, the person shall be represented by counsel where the Pre-Trial Chamber determines that it is in the interests of justice. Within a reasonable time before the hearing, the person shall: (a) Be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial; and (b) Be informed of the evidence on which the Prosecutor intends to rely at the hearing. (c) The Pre-Trial Chamber may issue orders regarding the disclosure of information for the purposes of the hearing. Before the hearing, the Prosecutor may continue the investigation and may amend or withdraw any charges. The person shall be given reasonable notice before the hearing of any amendment to or withdrawal of charges. In case of a withdrawal of charges, the Prosecutor shall notify the Pre-Trial Chamber of the reasons for the withdrawal. At the hearing, the Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. The Prosecutor may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial. At the hearing, the person may: (a) Object to the charges; (b) Challenge the evidence presented by the Prosecutor; and (c) Present evidence.

7. The Pre-Trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. Based on its determination, the Pre-Trial Chamber shall:

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(a) Confirm those charges in relation to which it has determined that there is sufficient evidence, and commit the person to a Trial Chamber for trial on the charges as confirmed; (b) Decline to confirm those charges in relation to which it has determined that there is insufficient evidence; (c) Adjourn the hearing and request the Prosecutor to consider: (i) Providing further evidence or conducting further investigation with respect to a particular charge; or (ii) Amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court. 8. Where the Pre-Trial Chamber declines to confirm a charge, the Prosecutor shall not be precluded from subsequently requesting its confirmation if the request is supported by additional evidence. 9. After the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges. If the Prosecutor seeks to add additional charges or to substitute more serious charges, a hearing under this article to confirm those charges must be held. After commencement of the trial, the Prosecutor may, with the permission of the Trial Chamber, withdraw the charges. 10. Any warrant previously issued shall cease to have effect with respect to any charges which have not been confirmed by the PreTrial Chamber or which have been withdrawn by the Prosecutor. 11. Once the charges have been confirmed in accordance with this article, the Presidency shall constitute a Trial Chamber which, subject to paragraph 9 and to article 64, paragraph 4, shall be responsible for the conduct of subsequent proceedings and may exercise any function of the Pre-Trial Chamber that is relevant and capable of application in those proceedings.

Part 6. The Trial Article 62 Place of trial Unless otherwise decided, the place of the trial shall be the seat of the Court.

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Article 63 Trial in the presence of the accused 1. The accused shall be present during the trial.

2. If the accused, being present before the Court, continues to disrupt

the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required . Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.

Article 64 Functions and powers of the Trial Chamber 1. The functions and powers of the Trial Chamber set out in this article shall be exercised in accordance with this Statute and the Rules of Procedure and Evidence. 2. The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses. 3. Upon assignment of a case for trial in accordance with this Statute, the Trial Chamber assigned to deal with the case shall: (a) Confer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings; (b) Determine the language or languages to be used at trial; and (c) Subject to any other relevant provisions of this Statute, provide for disclosure of documents or information not previously disclosed, sufficiently in advance of the commencement of the trial to enable adequate preparation for trial. 4. The Trial Chamber may, if necessary for its effective and fair functioning, refer preliminary issues to the Pre-Trial Chamber or, if necessary, to another available judge of the Pre-Trial Division. 5. Upon notice to the parties, the Trial Chamber may, as appropriate, direct that there be joinder or severance in respect of charges against more than one accused.

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6. In performing its functions prior to trial or during the course of a trial, the Trial Chamber may, as necessary: (a) Exercise any functions of the Pre-Trial Chamber referred to in article 61, paragraph 11; (b) Require the attendance and testimony of witnesses and production of documents and other evidence by obtaining, if necessary, the assistance of States as provided in this Statute; (c) Provide for the protection of confidential information; (d) Order the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties; (e) Provide for the protection of the accused, witnesses and victims; and (f) Rule on any other relevant matters. 7. The trial shall be held in public. The Trial Chamber may, however, determine that special circumstances require that certain proceedings be in closed session for the purposes set forth in article 68, or to protect confidential or sensitive information to be given in evidence. 8.

(a) At the commencement of the trial, the Trial Chamber shall have read to the accused the charges previously confirmed by the Pre-Trial Chamber. The Trial Chamber shall satisfy itself that the accused understands the nature of the charges. It shall afford him or her the opportunity to make an admission of guilt in accordance with article 65 or to plead not guilty. (b) At the trial, the presiding judge may give directions for the conduct of proceedings, including to ensure that they are conducted in a fair and impartial manner. Subject to any directions of the presiding judge, the parties may submit evidence in accordance with the provisions of this Statute. 9. The Trial Chamber shall have, inter alia, the power on application of a party or on its own motion to: (a) Rule on the admissibility or relevance of evidence; and (b) Take all necessary steps to maintain order in the course of a hearing. 10.The Trial Chamber shall ensure that a complete record of the trial, which accurately reflects the proceedings, is made and that it is maintained and preserved by the Registrar.

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Article 65 Proceedings on an admission of guilt 1. Where the accused makes an admission of guilt pursuant to article 64, paragraph 8 (a), the Trial Chamber shall determine whether: (a) The accused understands the nature and consequences of the admission of guilt; (b) The admission is voluntarily made by the accused after sufficient consultation with defence counsel; and (c) The admission of guilt is supported by the facts of the case that are contained in: (i) The charges brought by the Prosecutor and admitted by the accused; (ii) Any materials presented by the Prosecutor which supplement the charges and which the accused accepts; and (iii) Any other evidence, such as the testimony of witnesses, presented by the Prosecutor or the accused. 2. Where the Trial Chamber is satisfied that the matters referred to in paragraph 1 are established, it shall consider the admission of guilt, together with any additional evidence presented, as establishing all the essential facts that are required to prove the crime to which the admission of guilt relates, and may convict the accused of that crime. 3. Where the Trial Chamber is not satisfied that the matters referred to in paragraph 1 are established, it shall consider the admission of guilt as not having been made, in which case it shall order that the trial be continued under the ordinary trial procedures provided by this Statute and may remit the case to another Trial Chamber. 4. Where the Trial Chamber is of the opinion that a more complete presentation of the facts of the case is required in the interests of justice, in particular the interests of the victims, the Trial Chamber may: (a) Request the Prosecutor to present additional evidence, including the testimony of witnesses; or (b) Order that the trial be continued under the ordinary trial procedures provided by this Statute, in which case it shall consider the admission of guilt as not having been made and may remit the case to another Trial Chamber.

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Any discussions between the Prosecutor and the defence regarding modification of the charges, the admission of guilt or the penalty to be imposed shall not be binding on the Court.

Article 66 Presumption of innocence 1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. 2. The onus is on the Prosecutor to prove the guilt of the accused. 3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.

Article 67 Rights of the accused 1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks; (b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence; (c) To be tried without undue delay; (d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against

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him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute; (f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks; (g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence; (h) To make an unsworn oral or written statement in his or her defence; and (i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal. 2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.

Article 68 Protection of the victims and witnesses and their participation in the proceedings 1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. 2. As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and

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witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness. Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence. The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in article 43, paragraph 6. Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. A State may make an application for necessary measures to be taken in respect of the protection of its servants or agents and the protection of confidential or sensitive information.

Article 69 Evidence 1. Before testifying, each witness shall, in accordance with the Rules of Procedure and Evidence, give an undertaking as to the truthfulness of the evidence to be given by that witness. 2. The testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or in the Rules of Procedure and Evidence. The Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by

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means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused. The parties may submit evidence relevant to the case, in accordance with article 64. The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth. The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence. The Court shall respect and observe privileges on confidentiality as provided for in the Rules of Procedure and Evidence. The Court shall not require proof of facts of common knowledge but may take judicial notice of them. Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if: (a) The violation casts substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings. When deciding on the relevance or admissibility of evidence collected by a State, the Court shall not rule on the application of the State's national law.

Article 70 Offences against the administration of justice 1. The Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally: (a) Giving false testimony when under an obligation pursuant to article 69, paragraph 1, to tell the truth; (b) Presenting evidence that the party knows is false or forged;

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(c) Corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence; (d) Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties; (e) Retaliating against an official of the Court on account of duties performed by that or another official; (f) Soliciting or accepting a bribe as an official of the Court in connection with his or her official duties. 2. The principles and procedures governing the Court's exercise of jurisdiction over offences under this article shall be those provided for in the Rules of Procedure and Evidence. The conditions for providing international cooperation to the Court with respect to its proceedings under this article shall be governed by the domestic laws of the requested State. 3. In the event of conviction, the Court may impose a term of imprisonment not exceeding five years, or a fine in accordance with the Rules of Procedure and Evidence, or both.

4. (a) Each State Party shall extend its criminal laws penalizing offences against the integrity of its own investigative or judicial process to offences against the administration of justice referred to in this article, committed on its territory, or by one of its nationals; (b) Upon request by the Court, whenever it deems it proper, the State Party shall submit the case to its competent authorities for the purpose of prosecution. Those authorities shall treat such cases with diligence and devote sufficient resources to enable them to be conducted effectively.

Article 71 Sanctions for misconduct before the Court 1. The Court may sanction persons present before it who commit mis-

conduct, including disruption of its proceedings or deliberate refusal to comply with its directions, by administrative measures other than

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imprisonment, such as temporary or permanent removal from the courtroom, a fine or other similar measures provided for in the Rules of Procedure and Evidence. 2. The procedures governing the imposition of the measures set forth in paragraph 1 shall be those provided for in the Rules of Procedure and Evidence.

Article 72 Protection of national security information 1. This article applies in any case where the disclosure of the informa-

tion or documents of a State would, in the opinion of that State, prejudice its national security interests. Such cases include those falling within the scope of article 56, paragraphs 2 and 3, article 61, paragraph 3, article 64, paragraph 3, article 67, paragraph 2, article 68, paragraph 6, article 87, paragraph 6 and article 93, as well as cases arising at any other stage of the proceedings where such disclosure may be at issue. 2. This article shall also apply when a person who has been requested to give information or evidence has refused to do so or has referred the matter to the State on the ground that disclosure would prejudice the national security interests of a State and the State concerned confirms that it is of the opinion that disclosure would prejudice its national security interests.

3. Nothing in this article shall prejudice the requirements of confidentiality applicable under article 54, paragraph 3 (e) and (f), or the application of article 73. 4. If a State learns that information or documents of the State are being, or are likely to be, disclosed at any stage of the proceedings, and it is of the opinion that disclosure would prejudice its national security interests, that State shall have the right to intervene in order to obtain resolution of the issue in accordance with this article.

5. If, in the opinion of a State, disclosure of information would prejudice its national security interests, all reasonable steps will be taken by the State, acting in conjunction with the Prosecutor, the defence or the Pre-Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means. Such steps may include:

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(a) Modification or clarification of the request; (b) A determination by the Court regarding the relevance of the information or evidence sought, or a determination as to whether the evidence, though relevant, could be or has been obtained from a source other than the requested State; (c) Obtaining the information or evidence from a different source or in a different form; or (d) Agreement on conditions under which the assistance could be provided including, among other things, providing summaries or redactions, limitations on disclosure, use of in camera or ex parte proceedings, or other protective measures permissible under the Statute and the Rules of Procedure and Evidence. 6. Once all reasonable steps have been taken to resolve the matter through cooperative means, and if the State considers that there are no means or conditions under which the information or documents could be provided or disclosed without prejudice to its national security interests, it shall so notify the Prosecutor or the Court of the specific reasons for its decision, unless a specific description of the reasons would itself necessarily result in such prejudice to the State's national security interests. 7. Thereafter, if the Court determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused, the Court may undertake the following actions: (a) Where disclosure of the information or document is sought pursuant to a request for cooperation under Part 9 or the circumstances described in paragraph 2, and the State has invoked the ground for refusal referred to in article 93, paragraph 4: (i) The Court may, before making any conclusion referred to in subparagraph 7 (a) (ii), request further consultations for the purpose of considering the State's representations, which may include, as appropriate, hearings in camera and ex parte; (ii) If the Court concludes that, by invoking the ground for refusal under article 93, paragraph 4, in the circumstances of the case, the requested State is not acting in accordance with its obligations under this Statute, the Court may refer the matter in accordance with article 87, paragraph 7, specifying the reasons for its conclusion; and

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(iii) The Court may make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances; or (b) In all other circumstances: (i) Order disclosure; or (ii) To the extent it does not order disclosure, make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances.

Article 73 Third-party information or documents If a State Party is requested by the Court to provide a document or information in its custody, possession or control, which was disclosed to it in confidence by a State, intergovernmental organization or international organization, it shall seek the consent of the originator to disclose that document or information. If the originator is a State Party, it shall either consent to disclosure of the information or document or undertake to resolve the issue of disclosure with the Court, subject to the provisions of article 72. If the originator is not a State Party and refuses to consent to disclosure, the requested State shall inform the Court that it is unable to provide the document or information because of a pre-existing obligation of confidentiality to the originator.

Article 74 Requirements for the decision 1. All the judges of the Trial Chamber shall be present at each stage of the trial and throughout their deliberations. The Presidency may, on a case-by-case basis, designate, as available, one or more alternate judges to be present at each stage of the trial and to replace a member of the Trial Chamber if that member is unable to continue attending. 2. The Trial Chamber's decision shall be based on its evaluation of the evidence and the entire proceedings. The decision shall not exceed the facts and circumstances described in the charges and any

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amendments to the charges. The Court may base its decision only on evidence submitted and discussed before it at the trial. 3. The judges shall attempt to achieve unanimity in their decision, failing which the decision shall be taken by a majority of the judges. 4. The deliberations of the Trial Chamber shall remain secret. 5. The decision shall be in writing and shall contain a full and reasoned statement of the Trial Chamber's findings on the evidence and conclusions. The Trial Chamber shall issue one decision. When there is no unanimity, the Trial Chamber's decision shall contain the views of the majority and the minority. The decision or a summary thereof shall be delivered in open court.

Article 75 Reparations to victims 1. The Court shall establish principles relating to reparations to, or in

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respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state th e principles on which it is acting. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79. Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States. In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1.

6. A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article. 7. Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law.

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Article 76 Sentencing 1. In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence. 2. Except where article 65 applies and before the completion of the trial, the Trial Chamber may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence, in accordance with the Rules of Procedure and Evidence. 3. Where paragraph 2 applies, any representations under article 75 shall be heard during the further hearing referred to in paragraph 2 and, if necessary, during any additional hearing. 4. The sentence shall be pronounced in public and, wherever possible, in the presence of the accused.

Part 7. Penalties Article 77 Applicable penalties 1. Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute: (a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. 2. In addition to imprisonment, the Court may order: (a) A fine under the criteria provided for in the Rules of Procedure and Evidence; (b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.

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Article 78 Determination of the sentence 1. In determining the sentence, the Court shall, in accordance with the

Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person. 2. In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime. 3. When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with article 77, paragraph 1 (b).

Article 79 Trust Fund 1. A Trust Fund shall be established by decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims. 2. The Court may order money and other property collected through fines or forfeiture to be transferred, by order of the Cou rt, to the Trust Fund. 3. The Trust Fund shall be managed accord ing to criteria to be determined by the Assembly of States Parties.

Article 80 Non-prejudice to national application of penalties and national laws Nothing in this Part affects the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribed in this Part.

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Part 8. Appeal and Revision Article 81 Appeal against decision of acquittal or conviction or against sentence 1. A decision under article 74 may be appealed in accordance with the

Rules of Procedure and Evidence as follows: (a) The Prosecutor may make an appeal on any of the following grounds: (i) Procedural error, (ii) Error of fact, or (iii) Error of law; (b) The convicted person, or the Prosecutor on that person's behalf, may make an appeal on any of the following grounds: (i) Procedural error, (ii) Error of fact, (iii) Error of law, or (iv) Any other ground that affects the fairness or reliability of the proceedings or decision.

2. (a) A sentence may be appealed, in accordance with the Rules of Procedure and Evidence, by the Prosecutor or the convicted person on the ground of disproportion between the crime and the sentence; (b) If on an appeal against sentence the Court considers that there are grounds on which the conviction might be set aside, wholl y or in part, it may invite the Prosecutor and the convicted person to submit grounds under article 81, paragraph 1 (a) or (b), and may render a decision on conviction in accordance with article 83;

(c) The same procedure applies when the Court, on an appeal against conviction only, considers that there are grounds to reduce the sentence under paragraph 2 (a). 3.

(a) Unless the Trial Chamber orders otherwise, a convicted person shall remain in custody pending an appeal;

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(b) When a convicted person's time in custody exceeds the sentence of imprisonment imposed, that person shall be released, except that if the Prosecutor is also appealing, the release may be subject to the conditions under subparagraph (c) below; (c) In case of an acquittal, the accused shall be released immediately, subject to the following: (i) Under exceptional circumstances, and having regard, inter alia, to the concrete risk of flight, the seriousness of the offence charged and the probability of success on appeal, the Trial Chamber, at the request of the Prosecutor, may maintain the detention of the person pending appeal; (ii) A decision by the Trial Chamber under subparagraph (c) (i) may be appealed in accordance with the Rules of Procedure and Evidence. 4. SJbject to the provisions of paragraph 3 (a) and (b), execution of the decision or sentence shall be suspended during the period allowed for appeal and for the duration of the appeal proceedings. I

Article 82 Appeal against other decisions 1. Either party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence: (a) A decision with respect to jurisdiction or admissibility; (b) A decision granting or denying release of the person being investigated or prosecuted; (c) A decision of the Pre-Trial Chamber to act on its own initiative under article 56, paragraph 3; (d) A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings. 2. A decision of the Pre-Trial Chamber under article 57, paragraph 3 (d), may be appealed against by the State concerned or by the Prosecutor, with the leave of the Pre-Trial Chamber. The appeal shall be heard on an expedited basis.

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3. An appeal shall not of itself have suspensive effect unless the Appeals Chamber so orders, upon request, in accordance with the Rules of Procedure and Evidence. 4. A legal representative of the victims, the convicted person or a bona fide owner of property adversely affected by an order under article 75 may appeal against the order for reparations, as provided in the Rules of Procedure and Evidence.

Article 83 Proceedings on appeal 1. For the purposes of proceedings under article 81 and this article, the Appeals Chamber shall have all the powers of the Trial Chamber. 2. If the Appeals Chamber finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error, it may: (a) Reverse or amend the decision or sentence; or (b) Order a new trial before a different Trial Chamber. For these purposes, the Appeals Chamber may remand a factual issue to the original Trial Chamber for it to determine the issue and to report back accordingly, or may itself call evidence to determine the issue. When the decision or sentence has been appealed only by the person convicted, or the Prosecutor on that person's behalf, it cannot be amended to his or her detriment. 3. If in an appeal against sentence the Appeals Chamber finds that the sentence is disproportionate to the crime, it may vary the sentence in accordance with Part 7. 4. The judgement of the Appeals Chamber shall be taken by a majority of the judges and shall be delivered in open court. The judgement shall state the reasons on which it is based. When there is no unanimity, the judgement of the Appeals Chamber shall contain the views of the majority and the minority, but a judge may deliver a separate or dissenting opinion on a question of law. 5. The Appeals Chamber may deliver its judgement in the absence of the person acquitted or convicted.

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Article 84 Revision of conviction or sentence 1. The convicted person or, after death, spouses, children, parents or one person alive at the time of the accused's death who has been given express written instructions from the accused to bring such a claim, or the Prosecutor on the person's behalf, may apply to the Appeals Chamber to revise the final judgement of conviction or sentence on the grounds that: (a) New evidence has been discovered that: (i) Was not available at the time of trial, and such unavailability was not wholly or partially attributable to the party making application; and (ii) Is sufficiently important that had it been proved at trial it would have been likely to have resulted in a different verdict; (b) It has been newly discovered that decisive evidence, taken into account at trial and upon which the conviction depends, was false, forged or falsified; (c) One or more of the judges who participated in conviction or confirmation of the charges has committed, in that case, an act of serious misconduct or serious breach of duty of sufficient gravity to justify the removal of that judge or those judges from office under article 46. 2. The Appeals Chamber shall reject the application if it considers it to be unfounded. If it determines that the application is meritorious, it may, as appropriate: (a) Reconvene the original Trial Chamber; (b) Constitute a new Trial Chamber; or (c) Retain jurisdiction over the matter, with a view to, after hearing the parties in the manner set forth in the Rules of Procedure and Evidence, arriving at a determination on whether the judgement should be revised.

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Article 85 Compensation to an arrested or convicted person 1. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. 2. When a person has by a final decision been convicted of a criminal offence, and when subsequently his or her conviction has been reversed on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the nondisclosure of the unknown fact in time is wholly or partly attributable to him or her. 3. In exceptional circumstances, where the Court finds conclusive facts showing that there has been a grave and manifest miscarriage of justice, it may in its discretion award compensation, according to the criteria provided in the Rules of Procedure and Evidence, to a person who has been released from detention following a final decision of acquittal or a termination of the proceedings for that reason.

Part 9. International Cooperation and Judicial Assistance Article 86 General obligation to cooperate States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

Article 87 Requests for cooperation: general provisions 1.

(a) The Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate chan-

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nel as may be designated by each State Party upon ratification, acceptance, approval or accession. Subsequent changes to the designation shall be made by each State Party in accordance with the Rules of Procedure and Evidence. (b) When appropriate, without prejudice to the provisions of subparagraph (a), requests may also be transmitted through the International Criminal Police Organization or any appropriate regional organization. 2. Requests for cooperation and any documents supporting the request shall either be in or be accompanied by a translation into an official language of the requested State or one of the working languages of the Court, in accordance with the choice made by that State upon ratification, acceptance, approval or accession. Subsequent changes to this choice shall be made in accordance with the Rules of Procedure and Evidence. 3. The requested State shall keep confidential a request for cooperation and any documents supporting the request, except to the extent that the disclosure is necessary for execution of the request. 4. In relation to any request for assistance presented under this Part, the Court may take such measures, including measures related to the protection of information, as may be necessary to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their families. The Court may request that any information that is made available under this Part shall be provided and handled in a manner that protects the safety and physical or psychological well-being of any victims, potential witnesses and their families. 5.

(a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis. (b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.

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6. The Court may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate. 7. Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.

Article 88 Availability of procedures under national law States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.

Article 89 Surrender of persons to the Court 1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their nationallaw, comply with requests for arrest and surrender. 2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne his in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.

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3. (a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender. (b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain: (i) A description of the person being transported; (ii) A brief statement of the facts of the case and their legal characterization; and (iii) The warrant for arrest and surrender; (c) A person being transported shall be detained in custody during the period of transit; (d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State; (e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time. 4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

Article 90 Competing requests 1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person's surrender, notify the Court and the requesting State of that fact.

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2. Where the requesting State is a State Party, the requested State shall

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give priority to the request from the Court if: (a) The Court has, pursuant to article 18 Or 19, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or (b) The Court makes the determination described in subparagraph (a) pursuant to the requested State's notification under paragraph 1. Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal with the request for extradition from the requesting State but shall not extradite the person until the Court has determined that the case is inadmissible. The Court's determination shall be made on an expedited basis. If the requesting State is a State not Party to this Staturethe requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court, if the Court has determined that the case is admissible. Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may, at its discretion, proceed to deal with the request for extradition from the requesting State. In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to: (a) The respective dates of the requests; (b) The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and (c) The possibility of subsequent surrender between the Court and the requesting State.

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7. Where a State Party which receives a request from the Court for the

surrender of a person also receives a request from any State for the extradition of the same person for conduct other than that which constitutes the crime for which the Court seeks the person's surrender: (a) The requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the request from the Court; (b) The requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to surrender the person to the Court or to extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in question. 8. Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision.

Article 91 Contents of request for arrest and surrender 1. A request for arrest and surrender shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record , provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).

2. In the case of a request for the arrest and surrender of a person for whom a warrant of arrest has been issued by the Pre-Trial Chamber under article 58, the request shall contain or be supported by: (a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location; (b) A copy of the warrant of arrest; and (c) Such documents, statements or information as may be necessary to meet the requirements for the surrender process in the requested State, except that those requirements should not be

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more burdensome than those applicable to requests for extradition pursuant to treaties or arrangements between the requested State and other States and should, if possible, be less burdensome, taking into account the distinct nature of the Court. 3. In the case of a request for the arrest and surrender of a person already convicted, the request shall contain or be supported by: (a) A copy of any warrant of arrest for that person; (b) A copy of the judgement of conviction; (c) Information to demonstrate that the person sought is the one referred to in the judgement of conviction; and (d) If the person sought has been sentenced, a copy of the sentence imposed and, in the case of a sentence for imprisonment, a statement of any time already served and the time remaining to be served. 4. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.

Article 92 Provisional arrest 1. In urgent cases, the Court may request the provisional arrest of the

person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91. 2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain: (a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location; (b) A concise statement of the crimes for which the person's arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the cnme; (c) A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and

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(d) A statement that a request for surrender of the person sought will follow. 3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible. 4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date.

Article 93 Other forms of cooperation 1. States Parties shall, in accordance with the provisions of this Part

and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions: (a) The identification and whereabouts of persons or the location of items; (b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court; (c) The questioning of any person being investigated or prosecuted; (d) The service of documents, including judicial documents; (e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court; (f) The temporary transfer of persons as provided in paragraph 7; (g) The examination of places or sites, including the exhumation and examination of grave sites; (h) The execution of searches and seizures; (i) The provision of records and documents, including official records and documents;

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(j) The protection of victims and witnesses and the preservation of evidence; (k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and (I) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court. The Court shall have the authority to provide an assurance to a wit ness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State. Where execution of a particular measure of assistance detailed in a request presented unde~ paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security. Before denying a request for assistance under paragraph 1 (I), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.

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(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled: (i)

The person freely gives his or her informed consent to the transfer; and

(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree. (b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.

8. (a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request. (b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence. (c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence. 9.

(a) (i)

In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.

(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90. (b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the

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717 to

the third State or

10.

(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State. (b) (i) The assistance provided under subparagraph (a) shall inelude, inter alia: a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and b. The questioning of any person detained by order of the Court; (ii) In the case of assistance under subparagraph (b) (i) a: a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State; b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68. (c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.

Article 94 Postponement of execution of a request in respect of ongoing investigation or prosecution 1. If the immediate execution of a request would interfere with an on-

going investigation or prosecution of a case different from that to which the request relates, the requested State may postpone the execution of the request for a period of time agreed upon with the Court. However, the postponement shall be no longer than is neces-

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sary to complete the relevant investigation or prosecution in the requested State. Before making a decision to postpone, the requested State should consider whether the assistance may be immediately provided subject to certain conditions. 2. If a decision to postpone is taken pursuant to paragraph 1, the Prosecutor may, however, seek measures to preserve evidence, pursuant to article 93, paragraph 1 (j),

Article 95 Postponement of execution of a request in respect of an admissibility challenge Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19.

Article 96 Contents of request for other forms of assistance under article 93 1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a). 2. The request shall, as applicable, contain or be supported by the following: (a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request; (b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided; (c) A concise statement of the essential facts underlying the request; (d) The reasons for and details of any procedure or requirement to be followed;

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(e) Such information as may be required under the law of the requested State in order to execute the request; and (f) Any other information relevant in order for the assistance sought to be provided. 3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law. 4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.

Article 97 Consultations Where a State Party receives a request under this Part in relation to which it identifies problems which may impede or prevent the execution of the request, that State shall consult with the Court without delay in order to resolve the matter. Such problems may include, inter alia: (a) Insufficient information to execute the request; (b) In the case of a request for surrender, the fact that despite best efforts, the person sought cannot be located or that the investigation conducted has determined that the person in the requested State is clearly not the person named in the warrant; or (c) The fact that execution of the request in its current form would require the requested State to breach a pre-existing treaty obligation undertaken with respect to another State.

Article 98 Cooperation with respect to waiver of immunity and consent to surrender 1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State,

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unless the Court can first obtain the cooperation of that third State for the waiver of the immunity. 2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

Article 99 Execution of requests under articles 93 and 96 1. Requests for assistance shall be executed in accordance with the relevant procedure under the law of the requested State and, unless prohibited by such law, in the manner specified in the request, including following any procedure outlined therein or permitting persons specified in the request to be present at and assist in the execution process. 2. In the case of an urgent request, the documents or evidence produced in response shall, at the request of the Court, be sent urgently. 3. Replies from the requested State shall be transmitted in their original language and form. 4. Without prejudice to other articles in this Part, where it is necessary for the successful execution of a request which can be executed without any compulsory measures, including specifically the interview of or taking evidence from a person on a voluntary, basis, including doing so without the presence of the authorities of the requested State Party if it is essential for the request to be executed, and the examination without modification of a public site or other public place, the Prosecutor may execute such request directly on the territory of a State as follows: (a) When the State Party requested is a State on the territory of which the crime is alleged to have been committed, and there has been a determination of admissibility pursuant to article 18 or 19, the Prosecutor may directly execute such request following all possible consultations with the requested State Party; (b) In other cases, the Prosecutor may execute such request following consultations with the requested State Party and subject

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to any reasonable conditions or concerns raised by that State Party. Where the requested State Party identifies problems with the execution of a request pursuant to this subparagraph it shall, without delay, consult with the Court to resolve the matter. 5. Provisions allowing a person heard or examined by the Court under article 72 to invoke restrictions designed to prevent disclosure of confidential information connected with national security shall also apply to the execution of requests for assistance under this article.

Article 100 Costs 1. The ordinary costs for execution of requests in the territory of the requested State shall be borne by that State, except for the following, which shall be borne by the Court: (a) Costs associated with the travel and security of witnesses and experts or the transfer under article 93 of persons in custody; (b) Costs of translation, interpretation and transcription; (c) Travel and subsistence costs of the judges, the Prosecutor, the Deputy Prosecutors, the Registrar, the Deputy Registrar and staff of any organ of the Court; (d) Costs of any expert opinion or report requested by the Court; (e) Costs associated with the transport of a person being surrendered to the Court by a custodial State; and (f) Following consultations, any extraordinary costs that may result from the execution of a request. 2. The provisions of paragraph 1 shall, as appropriate, apply to requests from States Parties to the Court. In that case, the Court shall bear the ordinary costs of execution.

Article 101 Rule of speciality 1. A person surrendered to the Court under this Statute shall not be proceeded against, punished or detained for any conduct committed prior to surrender, other than the conduct or course of conduct

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which forms the basis of the crimes for which that person has been surrendered. 2. The Court may request a waiver of the requirements of paragraph 1 from the State which surrendered the person to the Court and, if necessary, the Court shall provide additional information in accordance with article 91. States Parties shall have the authority to provide a waiver to the Court and should endeavour to do so.

Article 102 Use of terms For the purposes of this Statute: (a) "surrender" means the delivering up of a person by a State to the Court, pursuant to this Statute. (b) "extradition" means the delivering up of a person by one State to another as provided by treaty, convention or national legislation.

Part 10. Enforcement Article 103 Role of States in enforcement of sentences of imprisonment 1.

(a) A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons. (b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part. (c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court's designation.

2. (a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days' no-

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tice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110. (b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1. 3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following: (a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence; (b) The application of widely accepted international treaty standards governing the treatment of prisoners; (c) The views of the sentenced person; (d) The nationality of the sentenced person; (e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement. 4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.

Article 104 Change in designation of State of enforcement 1. The Court may, at any time, decide to transfer a sentenced person to a prison of another State. 2. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement.

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Article 105 Enforcement of the sentence 1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall

be binding on the States Parties, which shall in no case modify it. 2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person .

Article 106 Supervision of enforcement of sentences and conditions of imprisonment 1. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners. 2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement. 3. Communications between a sentenced person and the Court shall be unimpeded and confidential.

Article 107 Transfer of the person upon completion of sentence 1. Following completion of the sentence, a person who is not a na-

tional of the State of enforcement may, in accordance with the law of the State of enforcement, be transferred to a State which is obliged to receive him or her, or to another State which agrees to receive him or her, taking into account any wishes of the person to be transferred to that State, unless the State of enforcement authorizes the person to remain in its territory.

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2. If no State bears the costs arising out of transferring the person to another State pursuant to paragraph 1, such costs shall be borne by the Court. 3. Subject to the provisions of article 108, the State of enforcement may also, in accordance with its national law, extradite or otherwise surrender the person to a State which has requested the extradition or surrender of the person for purposes of trial or enforcement of a sentence.

Article 108 Limitation on the prosecution or punishment of other offences 1. A sentenced person in the custody of the State of enforcement shall not be subject to prosecution or punishment or to extradition to a third State for any conduct engaged in prior to that person's delivery to the State of enforcement, unless such prosecution, punishment or extradition has been approved by the Court at the request of the State of enforcement. 2. The Court shall decide the matter after having heard the views of the sentenced person. 3. Paragraph 1 shall cease to apply if the sentenced person remains voluntarily for more than 30 days in the territory of the State of enforcement after having served the full sentence imposed by the Court, or returns to the territory of that State after having left it.

Article 109 Enforcement of fines and forfeiture measures 1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law. 2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited , without prejudice to the rights of bona fide third parties.

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3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.

Article 110 Review by the Court concerning reduction of sentence 1. The State of enforcement shall not release the person before expiry of the sentence pronounced by the Court. 2. The Court alone shall have the right to decide any reduction of sentence, and shall rule on the matter after having heard the person. 3. When the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced . Such a review shall not be conducted before that time. 4. In its review under paragraph 3, the Court may reduce the sentence if it finds that one or more of the following factors are present: (a) The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions; (b) The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or (c) Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence. 5. If the Court determines in its initial review under paragraph 3 that it is not appropriate to reduce the sentence, it shall thereafter review the question of reduction of sentence at such intervals and applying such criteria as provided for in the Rules of Procedure and Evidence.

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Article 111 Escape

If a convicted person escapes from custody and flees the State of enforcement, that State may, after consultation with the Court, request the person's surrender from the State in which the person is located pursuant to existing bilateral or multilateral arrangements, or may request that the Court seek the person's surrender, in accordance with Part 9. It may direct that the person be delivered to the State in which he or she was serving the sentence or to another State designated by the Court.

Part 11. Assembly of States Parties Article 112 Assembly of States Parties 1. An Assembly of States Parties to this Statute is hereby established.

Each State Party shall have one representative in the Assembly who may be accompanied by alternates and advisers. Other States which have signed this Statute or the Final Act may be observers in the Assembly. 2. The Assembly shall: (a) Consider and adopt, as appropriate, recommendations of the Preparatory Commission; (b) Provide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court; (c) Consider the reports and activities of the Bureau established under paragraph 3 and take appropriate action in regard thereto; (d) Consider and decide the budget for the Court; (e) Decide whether to alter, in accordance with article 36, the number of judges; (f) Consider pursuant to article 87, paragraphs 5 and 7, any question relating to non-cooperation; (g) Perform any other function consistent with this Statute or the Rules of Procedure and Evidence. 3.

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(a) The Assembly shall have a Bureau consisting of a President, two Vice-Presidents and 18 members elected by the Assembly for three-year terms. (b) The Bureau shall have a representative character, taking into account, in particular, equitable geographical distribution and the adequate representation of the principal legal systems of the world. (c) The Bureau shall meet as often as necessary, but at least once a year. It shall assist the Assembly in the discharge of its responsibilities. The Assembly may establish such subsidiary bodies as may be necessary, including an independent oversight mechanism for inspection, evaluation and investigation of the Court, in order to enhance its efficiency and economy. The President of the Court, the Prosecutor and the Registrar or their representatives may participate, as appropriate, in meetings of the Assembly and of the Bureau. The Assembly shall meet at the seat of the Court or at the Headquarters of the United Nations once a year and, when circumstances so require, hold special sessions. Except as otherwise specified in this Statute, special sessions shall be convened by the Bureau on its own initiative or at the request of one third of the States Parties. Each State Party shall have one vote. Every effort shall be made to reach decisions by consensus in the Assembly and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute: (a) Decisions on matters of substance must be approved by a twothirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting; (b) Decisions on matters of procedure shall be taken by a simple majority of States Parties present and voting . A State Party which is in arrears in the payment of its financial contributions towards the costs of the Court shall have no vote in the Assembly and in the Bureau if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The Assembly may, nevertheless, permit such a State Party to vote in the Assembly and in the Bureau if it is satisfied

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that the failure to pay is due to conditions beyond the control of the State Party. 9. The Assembly shall adopt its own rules of procedure. 10.The official and working languages of the Assembly shall be those of the General Assembly of the United Nations.

Part 12. Financing Article 113 Financial Regulations Except as otherwise specifically provided, all financial matters related to the Court and the meetings of the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be governed by this Statute and the Financial Regulations and Rules adopted by the Assembly of States Parties.

Article 114 Payment of expenses Expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be paid from the funds of the Court.

Article 115 Funds of the Court and of the Assembly of States Parties The expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, as provided for in the budget decided by the Assembly of States Parties, shall be provided by the following sources: (a) Assessed contributions made by States Parties; (b) Funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council.

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Article 116 Voluntary contributions Without prejudice to article 115, the Court may receive and utilize, as additional funds, voluntary contributions from Governments, international organizations, individuals, corporations and other entities, in accordance with relevant criteria adopted by the Assembly of States Parties.

Article 117 Assessment of contributions The contributions of States Parties shall be assessed in accordance with an agreed scale of assessment, based on the scale adopted by the United Nations for its regular budget and adjusted in accordance with the principles on which that scale is based.

Article 118 Annual audit The records, books and accounts of the Court, including its annual financial statements, shall be audited annually by an independent auditor.

Part 13. Final Clauses Article 119 Settlement of disputes 1. Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court. 2. Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations

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on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court.

Article 120 Reservations No reservations may be made to this Statute.

Article 121 Amendments 1. After the expiry of seven years from the entry into force of this Statute, any State Party may propose amendments thereto. The text of any proposed amendment shall be submitted to the SecretaryGeneral of the United Nations, who shall promptly circulate it to all States Parties. 2. No sooner than three months from the date of notification, the Assembly of States Parties, at its next meeting, shall, by a majority of those present and voting, decide whether to take up the proposal. The Assembly may deal with the proposal directly or convene a Review Conference if the issue involved so warrants. 3. The adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties. 4. Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them . 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.

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6. If an amendment has been accepted by seven-e ighths of States Parties in accordance with paragraph 4, any State Part y which has not accepted the amendment may withdraw from th is Statute with immediate effect, notwithstanding article 127, paragraph 1, but subject to article 127, paragraph 2, by giving noti ce no later than one year after the entry into force of such amendment. 7. The Secretary-General of the United Nations shall circulate to all States Parties any amendment adopted at a meeting of the Assembly of States Parties or at a Review Conference.

Article 122 Amendments to provisions of an institutional nature 1. Amendments to provisions of this Statute wh ich are of an exclusively institutional nature, namely, article 35, article 36, paragraphs 8 and 9, articl e 37, article 38, article 39, paragraphs 1 (first two sentences),2 and 4, article 42, paragraphs 4 to 9, article 43, paragraphs 2 and 3, and articles 44, 46, 47 and 49, may be proposed at any time, notwithstanding articl e 121, paragraph 1, by any State Part y. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations or such ot her person designated by the Assembly of States Parties who shall promptly circulate it to all States Parties and to others participating in the Assembly. 2. Amendments und er this article on which consensus cannot be reached shall be adopted by the Assembly of States Parties or by a Review Conference, by a two-thirds majority of States Parties. Such amendments shall enter into force for all States Parti es six months after their adoption by the Assembly or, as the case may be, by the Conference.

Article 123 Review of the Statute 1. Seven years after the entry into force of this Statute the Secretary-

General of the United Nations shall convene a Review Conference to consider any amend ments to this Statute. Such review may include, but is not limited to, the list of crimes contained in article 5.

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The Conference shall be open to those participating in the Assembly of States Parties and on the same conditions. 2. At any time thereafter, at the request of a State Party and for the purposes set out in paragraph 1, the Secretary-General of the United Nations shall, upon approval by a majority of States Parties, convene a Review Conference. 3. The provisions of article 121, paragraphs 3 to 7, shall apply to the adoption and entry into force of any amendment to the Statute considered at a Review Conference.

Article 124 Transitional Provision Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.

Article 125 Signature, ratification, acceptance, approval or accession 1. This Statute shall be open for signature by all States in Rome, at the headquarters of the Food and Agriculture Organization of the United Nations, on 17July 1998. Thereafter, it shall remain open for signature in Rome at the Ministry of Foreign Affairs of Italy until 17 October 1998. After that date, the Statute shall remain open for signature in New York, at United Nations Headquarters, until 31 December 2000. 2. This Statute is subject to ratification, acceptance or approval by signatory States. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations.

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3. This Statute shall be open to accession by all States. Instruments of

accession shall be deposited with the Secretary-General of the United Nations.

Article 126 Entry into force 1. This Statute shall enter into force on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations. 2. For each State ratifying, accepting, approving or acceding to this Statute after the deposit of the 60th instrument of ratification, acceptance, approval or accession, the Statute shall enter into force on the first day of the month after the 60th day following the deposit by such State of its instrument of ratification, acceptance, approval or accession.

Article 127 Withdrawal 1. A State Part y may, by written notification addressed to the Secretary -G eneral of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date. 2. A State shall not be discharged , by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute , including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and pro ceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.

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Article 128 Authentic texts The original of this Statute, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States. IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Statute. DONE at Rome, this 17th day of July 1998.

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Book Reviews Jochen Abr.

Froweinl Klaus Schariothl Ingo Winkelmannl Rudiger Wolfrum (eds): Verhandeln fur den Frieden - Negotiating for Peace Liber Amicorum Tono Eitel Springer-Verlag, 2003, XIII + 866 pages

It is unusual for a career diplomat to be honoured with a Festschrift. But then Tono Eitel is no ordinary diplomat, having had an exceptional career. As personal assistant to Egon Bahr in the late sixties and early seventies, he became intimately involved in the negotiations leading to the Moscow Treaty and to the Grundlagenvertrag, milestones in Willy Brandt's Ostpolitik. In the early eighties, he headed the German delegation at the United Nations Law of the Sea Conference. Ten years later, he became Head of the Legal Department of the Auswiirtiges Amt, following in the footsteps of Hermann Mosler and Carl-August Fleischhauer, who were later elected to the IC]. As Legal Adviser, Tono Eitel drew on his knowledge of the law as well as on his considerable political skills and instinct to advise the German Government on issues of public international law. During this time he was made an Honorary Professor at Bochum University. In 1995, he was appointed Germany's Permanent Representative to the United Nations, a position he held until his retirement in 1998. He assumed the rotating Presidency of the United Nations Security Council during Germany's non-permanent membership of that body in 1995/1996.

Tono Eitel continues to serve the German Government in various capacities, notably as the Commissioner for the return of cultural objects displaced during World War II and Occupation. He also played a significant role in the campaign for the election of Bruno Simma to the IC] in 2002. The Festschrift is divided into four parts: "United Nations", "International Treaty Law - International Law of the Environment - InternaA. von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook ofUnited Nations Law, Volume 7, 2003, 737-742. © 2003 Koninklijke Brill N. V Printed in the Netherlands.

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tional Courts", "Law of the Sea", and "EU Law, Constitutional Law, German Reunification". The collection of essays - roughly one half written in English, the other half in German - thus reflects Tono Eitel's career as a lawyer and a diplomat. The reader will find a stimulating mix of essays by academics and practitioners on themes central to current international law and United Nations law. Many of the essays were written under the impression of the events of 11 September 2001 and the Iraq crisis of 2002/2003. In fact, "September 11" and the Iraq crisis are the underlying themes in no less than ten of the essays, demonstrating the profound impact these events have had (and continue to have) on the use of force under international law and on the role of the United Nations Security Council. In "Effectiveness and Legitimacy of the United Nations Security Council", Celso Amorim gives us a first-hand account of the debate on Security Council reform. That debate has reached a practical standstill, with little hope of progress under the present generally ambivalent attitude of the United States towards the United Nations. It comes as no surprise that Amorim argues for a stronger role for the United Nations Security Council, whose legitimacy would have to be enhanced by a more equitable geographical representation. United Nations reform is also the theme of lngo Winkelmann's contribution "Das Postulat einer stdrkeren Beteiligung des Siidens am Sicherheitsrat der Vereinten Nationen". Over the years, Germany has been one of the foremost advocates for a Security Council that is both more efficient and representative of today's international community, not least because of her (Germany's) own aspirations towards permanent member status. Winkelmann is of the opinion that the call for a European seat on the Council is "under the present circumstances neither helpful nor realistic". Rather, Germany's (and the EU's) focus should be on a European "bench" comprising more permanent European Member States than the present two. Winkelmann's scepticism has received new nourishment from the recent Iraq crisis, whe.« the rift between the EU Member States presently on the Council (the United Kingdom and Spain on the one hand, France and Germany on the other) was all too apparent. Approaching the subject from another angle, Christian Tomuschat "Die Europdiscbe Union als ein Akteur in den intemationalen Beziehungen" reaches the same conclusion: the United Nations will remain for the foreseeable future an assembly of states, and nobody in the United Nations will be inclined to elevate the EU to membership

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status. One might add that "nobody in the United Nations" includes at least some of the EU members themselves: the UK's Foreign Minister Jack Straw stating very clearly in a speech as recently as 19 May 2003 that "the UN is and will remain an association of sovereign nation states". Tomuschat makes a number of practical suggestions how, in his view, and in the context of the planned EU reform, the Union could assume a stronger role as a "player" in international relations: a clear-cut legal personality, an improved decision-making process and joint overseas representations. The EU's role within the United Nations is also the theme of "Die Gemeinsame Aufien- und Sicherheitspolitik (GASP) der Europdischen Union im Rahmen der Vereinten Nationen" by Ernst Sucharipa, who, as Austria's former Permanent Representative to the United Nations, gives a first-hand account on how CFSP "works" in New York and where its limits lie. The legal bases for the use of force in international relations are the focus of Jost Delbriick's contribution entitled" Right v. Might - Great Power Leadership in the Organized International Community of States and the Rule of Law". Delbriick traces the role of the Great Powers back to the classical period of the international system, thus putting into perspective the concept and philosophy underlying the UN Charter, which is based on the power substrate of the Great Powers represented in the Security Council. Delbriick maintains that the legal foundations of the peace order established by the UN Charter has survived the chain of cases of deviant state practice by the Great Powers and other states. Faced with the present unilateralist approach of the United States, however, a United Nations based order has come under threat. Delbriick calls for the full commitment of those Member Sates possessing the necessary resources and potential. He concludes: what is needed is "good leadership under law, not above the law". The various threats posed to the contemporary legal order are also the subject of Nabil Elaraby's "Some Reflections on the Role of the Security Council and the Prohibition of the Use of Force in International Relations: Article 2 (4) Revisited in Light of Recent Developments". Elaraby is an advocate of a restrictive interpretation of Article 51 of the UN Charter, calling into question the concepts of "anticipatory selfdefence" and "pre-emption". Elaraby is also critical of a Security Council exceeding its competencies: the problem confronting the international community at present is "how to inject limitations on the Security Council's freedom of action". Elaraby calls for the introduction of a degree of judicial review of the actions of the Security Council in or-

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der to ensure that the vast powers vested in the Council are carried out in conformity with the principles of international law. However, the determination of the existence of a threat to the peace should remain the sole prerogative of the Council, a political determination which by its nature is not justiciable. Thomas Franck examines the question" Is the UN. Charter a Constitution?" In his view, four characteristics of the Charter, namely "perpetuity, indelibleness, primacy, and institutional autochthony" make it more proximate to a constitution than to an ordinary treaty. Franck makes the point that this is not simply an academic question. As a constitution, the Charter should be read broadly so as to advance, rather than encumber, its institutional ability to accomplish the purposes for which it was created. Being a "living tree", a constitution develops its own customary law of interpretation, contributing to the ability of the Organization to continue to reinvent itself in the face of new challenges. The issue of interpretation, this time of Security Council resolutions, is also addressed by Jochen Abr. Frowein in "Issues of Legitimacy around the United Nations Security Council". Citing Resolutions 1154 (1998) and 1441 (2002) on Iraq, Frowein criticizes the Security Council for adopting resolutions to which, from the very beginning, different interpretations were put forward as to the justification of the use of force. Indeed, one might add, these resolutions - in particular Resolution 1441 (2002) - were only adopted because they were open to different interpretations. Frowein points out that the danger created by unilateral interpretation of Security Council resolutions in the most important area of use of force should not be underestimated, as this constitutes a real threat to the legitimacy of the Security Council. Another issue of legitimacy surrounding the Security Council about which Frowein has serious misgivings is the adoption of Resolution 1422 (2002), which requests the ICC, initially for a period of one year, not to commence or proceed with the investigation or the prosecution of any case concerning officials or personnel of United Nations operations from a state not a party to the Rome Statute. Frowein sides with those states which during the debates in the Security Council, expressed doubts whether this is a resolution within the framework of Chapter VII of the UN Charter and calls the resolution "an extremely dubious decision". This view is echoed by Claudia Fritsche "Security Council Resolution 1422: Peacekeeping and the International Criminal Court" and by Andreas Zimmermann "Acting under Chapter VII (...) - Resolution 1422 and Possible Limits of the Powers of the Security Council". Ac-

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cording to Fritsche, the greatest casualties of Resolution 1422 are the credibility of the Security Council and of peace-keeping operations. Zimmermann, who points to the fact that a first attempt (by France) to exclude Security Council mandated operations from the jurisdiction of the ICC had already been made during the drafting of the Rome Statute, refers to the many critical statements, both by United Nations Member States and by the United Nations Secretary-General during the discussions leading to the adoption of Resolution 1422. Both Fritsche and Zimmermann express their hope that Resolution 1422 will not be renewed when it comes up for review in the summer of 2003 (Resolution 1487 was passed on 12 June 2003. However, in contrast to Resolution 1422, it was not passed unanimously). While the ICC, according to article 5 of the Rome Statute, does have jurisdiction over the crime of aggression, it cannot yet exercise this jurisdiction. Gerd Westdickenberg and Oliver Fixson, in their essay "Das Verbrechen der Aggression im Rbmischen Statut des Intemationalen Strafgerichtshofes", draw on their intimate involvement in the negotiations and discussions over the years to give an in-depth analysis of the problems of defining this particular crime and of setting out the conditions under which the Court should exercise its jurisdiction. The authors call for a realistic approach in trying to seek a consensus by the year 2009, when the first Review Conference of the States Parties to the Rome Statute is to take place. As Westdickenberg and Fixson point out, considerable restraint should be exercised in defining the crime of aggression not least in order to protect the Court's functioning and integrity. International Humanitarian Law and the fight against international terrorism are the focus of contributions by Dieter Fleck, Wolff Heintschel von Heinegg, Thomas Mensah and Rudiger Wolfrum. While admitting that major questions remain unanswered or disputed, Fleck ("Humanitarian Protection Against Non-State Actors") maintains that there is no need to revise the laws of war in light of September 11. Heintschel von Heinegg (" Das maritime ius in bello im 21. [abrhundert"), on the other hand, foresees a development that could lead to major changes in the Law of Maritime Warfare, caused by various "asymmetries" (actors, technologies, applicable laws). Mensah ("Suppression of Terrorism at Sea: Developments in the Wake of the Events of 11 September 2001"), in reviewing the various initiatives in strengthening the fight against terrorism at sea, argues that it is essential that the legitimate interests of flag states, coastal and port states, shipping and cargo interests, and the fundamental human rights of persons on board

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a ship or interested in its operation are not unduly compromised as a result of these initiatives. Wolfrum examines the various actions mandated by the Security Council in the fight against terrorism and their impact on the Law of the Sea. In "Fighting Terrorism at Sea: Options and Limitations under International Law" he points out that these actions, such as the maritime interdiction operations in the framework of the US-led Operation "Enduring Freedom", are designed to deal with a particular situation only, and that they may not be sustainable over the long term. What is needed is a comprehensive agreement which allows for the inspection of goods transported by sea and their monitoring without unduly burdening shipping, as well as improved possibilities to investigate ships on the high seas and within the exclusive economic zones if there is a sustained suspicion that they may support terrorist activities. In an interesting aside, Wolfrum is critical of a Standing Order of the German Ministry of Defence, according to which the German Navy may not pursue pirate vessels - not even on the high seas - nor may they free a merchant ship already under the control of pirates. The author argues that this restriction is neither compatible with Germany's obligations under the Law of the Sea, nor with a proper reading of the German law as laid out by the German Constitutional Court. Amongst the many other outstanding essays in the Festschrift, special mention should finally be made of Bruno Simma's "Staatenuerantwortlichkeit und Menschenrechte im ILC-Entwurf 2001". Simma, who had been a member of the ILC before being elected to the IC] in 2002, takes us through the different revisions of the ILC's Draft Articles on State Responsibility as they relate to erga omnes obligations and the protection of human rights. This is a very timely subject, as it demon strates that international law today does not accept the proposition of unlimited sovereignty. At the same time, Simma's essay serves as a reminder of the difficulties encountered in the "progressive development of international law" (d. Article 13 of the UN Charter). Dr. Christophe Eick, LL.M., Berlin

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Marrack Goulding (ed.): Peacemonger John Murray Publishers , 2002, XXI + 378 pages For about seven years (1986 to 1993), Marrack Goulding was in charge of peacekeeping operations in the United Nations Secretariat. As a direct predecessor to "the legendary" (p. 3) Brian Urquhart he held a prominent post during the tenure of both Perez de Cuellar and Boutros Boutros-Ghali, Kofi Annan was his successor before taking over the Secretary-Generalship. Goulding's time in office marks the transformation of world politics induced by (and leading to) the end of the Cold War. This transformation also had direct consequences for the practice of peacekeeping. In 1986 Goulding had to take care of five operations with roughly 10.000 personnel in the field. By 1993 the numbers had changed dramatically: now thirteen operations with 55.000 personnel were in place; the expenditure for peacekeeping operations had risen from US$ 240 million to US$ 2.7 billion. In 1988 the UN peacekeepers had received the Nobel Peace Prize but the limitations and shortcomings of this tool of world organization were becoming increasingly obViOUS.

The book is subdivided into eighteen chapters arranged under five broad headings. Goulding portrays the peculiarities and specific constellations of about a dozen conflicts scattered all over the globe. "Relics from the Past" for example deals - among others - with Cyprus and Lebanon whereas "New Opportunities" focuses on Namibia or Cambodia. In "New Threats" the challenge of collapsing states (Somalia and Haiti) as well as the conflict in Yugoslavia is analyzed. Goulding masters his material with a remarkable ability to outline the characteristic features of a given conflict in a concise and readable way. Witness for example his account of the situation in Lebanon: "Think of Lebanon as a cockpit. But it is not a normal cockpit. The fights are not single combats between two cocks; they are fights between teams of cocks, in everchanging alliances (... ). Inside the cockpit there are several resident teams of cocks. The four principal ones are the Maronite Christians, the Sunni Muslims, the Shi'ite Muslims and the Druze, a heretical Islamic sect. There are other lesser teams of cocks. Each team includes some fighting cocks, called 'militias' (...). Sometimes teams fight within themselves and split into two or more smaller teams (... ). Around the cockpit there are several gamblers. The principal ones are Israel, Syria, Iran and the Palestine Liberation Organization (PLO). Lesser ones are Egypt, Iraq and Jordan. Like the resident teams, the gamblers' objective is to accumulate and control assets in the Lebanese cockpit. Three of A. von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook a/United Nations Law, Volume 7, 2003. 743-747. © 2003 Koninklijke Brill N. V. Printed in the Netherlands.

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them (Israel, Syria and the PLO) have, or have had, their own fighting cocks in the cockpit. But all of them also hire the services of one or more of the resident teams, as do Iran and the lesser gamblers". (p. 58) In his analysis, Goulding draws from entries in his diary, letters to his family as well as accounts of meetings and negotiations. His itinerary amidst the different missions consists of a multitude of visits and travels, intense shuttle diplomacy, drafting sessions for reports, dealings with troop-contributing countries and the day-to-day procedure of international bureaucracy. Goulding claims to write "with a frankness that is not customary in the United Nations" (p. 341). He apologizes in advance for possibly hurting former colleagues and persons involved in the various missions: "But as the writing proceeded it became clear that the drawing of conclusions and the definition of precepts that would enhance the United Nations' efficacy would be impeded if I did not write frankly about the performance of individuals, myself included". (p. x) The inclusion of the author among the objects of scrutiny and criticism is no hollow promise. There are various examples when Goulding unreservedly blames himself for his own misjudgernents, failures and shortcomings. A constant feature of his description of work in the Secretariat is for example the rivalry between the departments and Under-SecretariesGeneral on the one side and the Secretary-General and his core staff and personal advisers on the other side. These tensions are exemplified in Goulding's relationship with Giandomenico Picco, who worked as de Cuellar's Assistant for Special Assignernents and at various times (for example in the hostage negotiations in Lebanon) crossed lines with Goulding, who even speaks of the so-called "palace guard" (p. 238) that at times undermined his own efforts. The exclusion or inclusion in delegations, travels etc. from this point of view is a measure for administrative standing and Goulding does not avoid speaking of "personal setback]s]" (p. 121) when for example negotiations are being driven from his field of competence. The "absence of clearly defined divisions of labour between the Under-Secretaries-General and the SecretaryGeneral's personal staff and between the Under-Secretaries-General themselves" (p. 208) thus led to "turf warfare" (p. 210). It is, however, impressive to see that Goulding sticks to his aim of an unbiased view on the United Nations when he still shows respect for qualities of even his adversaries. This accounts for a good deal of the authenticity that his report can claim. Negative coordination and, the lack of coherent guidance due to the dispersal of responsibilities between departments made the management

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of peacekeeping even more daunting and underline a common feature of international bureaucracy: "All multinational bureaucracies are rent by jealousy, intrigue and the clash of personalities. This is not surprising: the officials concerned come from varied backgrounds; most of them are loyal to the institution they serve but they also have loyalities to their own countries; and they often have differing perceptions of the people and situations with which they deal" (p. 174). This judgement however does not distract from Goulding's insistence on the unmatched quantity of courage, idealism and enthusiasm he found among United Nations staff. He himself stresses the fact that insistence on his independence from his "home country" made him "something of a misfit on the 38th floor" (p. 6) since the Secretary-General at times may want to utilize his U nder-Secretary-General's ties with and channels to his respective home country and administration. The requirement of internationalloyalty thus becomes a constant tightrope walk. The need to keep a delicate balance also permeates other features of the work at the United Nations. Goulding gives various examples of "UN speak" (p. 32), diplomatic language that tries to reconcile the irreconcilable . Nearly all negotiations offered "terminological pitfalls" (p. 49, fn. 49) that could endanger substantial progress on the diplomatic front. But even within the Secretariat, language had to be guarded in face of power structures: "Boutros-Ghali shared Perez de Cuellar's view about the Secretary-General's right to decide what he will recommend to the Member States. But, like Perez de Cuellar, he respected power and usually preferred to give in privately to the Five rather than be shot down in flames by them in the Security Council" (p. 180) . But such mechanisms in the end led to problematic wording of United Nations resolutions: "I often used to feel that more heed would be given to the Security Council's resolutions and statements if they were fewer, shorter and less distant from reality (... )" (p. 188). A little bit later Goulding postulates: "The length of resolutions is a reliable indicator of UN impotence" (p. 197). This is not the least problem peacekeeping operations have to face. Goulding conceptualizes different types of peacekeeping: traditional peacekeeping operations (e.g. UNIKOM in Iraq/Kuwait), preventive peacekeeping (e.g. UNPROFOR in Macedonia), multifunctional peacekeeping (e.g. UNTAC in Cambodia) and complex emergency peacekeeping (e.g, UNPROFOR in Bosnia) (pp. 15-16). In general, Goulding favours a reluctant understanding of the purpose and aim of peacekeeping: "The peacekeepers' task is not to use force to end a war or impose the will of the international community" (p. ix). Peacekeep-

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ers have to observe the requirements of neutrality and impartiality; two terms on whose difference Goulding writes : "The answer I usually gave was that 'impartiality' was about judgement and 'neutrality' about action. Impartiality means applying common standards in judging the behaviour of two hostile parties and not condoning acts by one that are condemned if committed by the other. Neutrality means not taking action that would serve one side's interest and damage the other's" (p. 222). This may cause considerable confusion in the field: "Peacekeeping can require military commanders to accept operational arrangements which make little sense from the military point of view" (p. 160). A more general observation in this context is the ever-present "sensitivity about sovereignty" (p. 22) that emerges as a core problem of Goulding's time in office. He witnesses a considerable change of the "international ethos" (p. 24) with regard to the definition of purely internal affairs of a state and the requirement of consent for peacekeeping operations that is linked to the scope and legitimacy of sovereignty attributed to various actors in a given conflict . It is in this and other dimensions that peacekeeping emerges as an "ethical enterprise" (p. xi). Against the background of his experience, Goulding sums up: "Pious and naive though it may sound, I believe that the shortcomings which have been described in this book will be corrected only if the United Nations can find a way back to the ethical role defined in its Charter" (p. 343). This way back needs action from both the Secretariat and Member States. Regarding the Secretariat, Goulding draws the conclusion: "[W]e in the Secretariat adjusted too slowly to the demands of the new types of conflict which proliferated after the end of the Cold War" (p. 17). Due to the lack of resources and the rise in quantity and complexity of operations "an undeniable decline in the quality of our performance" (p. 138) could be observed. With a view to his personal responsibility, Goulding deplores the fact that unresolved administrative issues that probably could have been settled in the eighties were aggravated and exposed by the turmoil and stretch of capabilities at the beginning of the nineties. Regarding the obligations of Member States he points to the need for continuous support regarding resources, information and political support that alone can keep peacekeeping on track. The resoluteness to confront even the smallest denials and neglect of obligations by the conflicting parties must be met by the constant search for face-saving options for all concerned. Goulding clearly utters warnings against the "illusions of grandeur" (p. 344) that for a short time were attached to the possibilities of peacekeeping. But he nonetheless identifies the vital role peacekeeping

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can play in the search for peaceful resolutions of conflicts and the range of successes that could be achieved. The theory and practice of peacekeeping need constant adaption: "Peacekeeping was (and still is, to a lesser extent) an unwritten art practised by an organization whose collective memory is not strong" (p. 125). With his account of seven crucial years in the history of the United Nations Goulding adds to the collective memory of the organization. In that sense one may also take his description of Urquhart as a valid description of Goulding's own achievement: "Urquhart's courage, intelligence and political streetwisdom had made him a model international civil servant, committed to the multilateral ideal, but realistic, and often very funny, about the shortcomings of the institutions and individuals charged with putting it into practice" (p. 3). Dr. Manuel Frohlich, Assistant Professor, Jena

Beitrage zum auslantlisch'en,."... offentlichen Recht und Volkerrecht -w.,

Veroffentlichungen des Max-Planck-Instituts fUrausl.iindisches offent liches Recht und Volkerrecht A. Bodnar, M. Kowalski, K. Raible, F. SChorkopf(Eds)

R. Wolfrum, N. Matt (Eds)

The Emerging Constitutional Law of the European Union

Conflicts in International Environmental Law

German and Polish Perspectives

Thi s volum e is an imp ort ant contribution to both th eoretic al and pra ctic al appro aches to solve co ntradic tions and conflicts between th e approaches, principles, objectives and regulation s of international enviro n m ental agre em ent s. The issue of the coordina tio n and streamlining of environme ntal agre ements is of growing importance regardi ng th e increasing number of international regulation s on th e one hand and the urgen cy for effective instruments in the light of continuing enviro nm ent al degr adat ion on th e other.

Young lawyer s from different academic cent res in Ge rmany and Poland comment on th e ongo ing con st itutional debate in th e EU. Each of the more than 20 ar ticles is dedi cated to a spe cific theme , i.e. human right s, institutional design, curr ent and future fu nction of the EU, homogeneity and iden tity, secu rity an d defence po licy. home policy and com mo n values. Similarities as well as differe nces in the pe rsp ectives of an old EU Me mber State on the one hand and an EU Member State-to-be on the othe r hand are revealed. 2003. IX. 595 p. HardcoverE 99.95; sFr 155; [ 70 ISBN 3-540·40424-4 (Vol. 163)

J. A. Frowein, K. Scharioth , I.Winkelmann , R. Wolfrum (Eds)

Verhandeln fur den Frieden Negotiating for Peace Liber Amicorum Tono Eitel T he an niversa ry volume in honou r o f 'limo Eitel's 70t h bi rt hday is a collectio n of essays by disli nguished inte rnational law experts as well as prom inen t Ger man and for eign dipl om ats and other specialists. T he issues dea lt with cover a rang e of themes relating to internat ional and con stitution al law as well as Ge rma n reunificati on . Several contributions of par ticu lar interest focus on the United Nations Security Counc il, th e law of the sea, human rights an d the fight against terr orism . The subjects covered are all reflected in the vario us stages of Tono Eitel's career. He not o nly played an imp ortant part in nego tiating the so-ca lled Easte rn Treaties with the Soviet Union, Poland and Czechoslovakia as well as th e Unit ed Nations Convention on the Law of th e Sea, but also served as Legal Adviser of the Fede ral For eign Office and as Germa ny's ambass ado r to the Uni ted Natio ns.

2003. XI, 213S. Hardcover E 64.95;sFr 101; £ 50 ISBN 3·540-40520-8 (Vol. 1641

C.Walter, S. Voneky, V. Roben, F. Schorkopf

Forthcoming

Terrorism as a Challenge for National and International Law: Security vs. Liberty? T he event s of II September 2001 have pr ovok ed reaction s (worldwide) to fight terror ist activities in nation al legal orders. Th ey have also led to significant developm ents in int ernation al law with respect to co mbat te rror ism by mi lita ry an d non-milita ry acti on . ThL< book adr esses th e issues raised in a co mpreh ensive manner. It com prises co unt ry reports with analyses of the developm ent s in a n umber of counties wh ich ha ve been selected on the basis of the ir involvement in anti-terrori st activities. Based on th ese country repor ts it trac es new developments in the de finition of inter nationa l terrorism, ad resses the issue of huma n rights protec tion under new anti-te rro rist legislation and examines th e recen t developm ent s towards intern atio nal military action against te rro rism .

2003. XIII, 866 S. Hardcover € 121.45; sFr 19650 ; [ 8S ISBN 3·540-40073·7 (Vol. 162)

Please orde r through your boo kseller or orde rS@spr inge r.de All Euro and GBP prices are net-pri ces subject to local VAT, e.g. in Germa ny 7% VAT for books. Prices and oth er d etails are subject to change w uhout notice. d&p . 009543x

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Zeitschrift fur auslandisches offentliches Recht und Volkerrecht -ZaoRV Heidelberg Journal of International Law Founded by Victor Bruns Edited in cooperation with Rudolf Bernhardt, Karl Doehring, Jochen Abr. Frowein, Gunther Jaenicke, Helmut Steinberger by Armin von Bogdandy, Rudiger Wolfrum Managing editor: Professor Dr. Ulrich Beyerlin The editorial programme of the ZaoRV

Articles and notes on fundamental and topical issues of public international law, European law, and foreign and comparative public law. Among the main topics are the United Nations collective security system, the international protection of human rights, as well as recent developments in international economic law, the law of the sea and international environmental law. The spectrum of analyses in comparative law reaches from the East and Central European states and the USA to South Africa, Israel and Japan. Annual reports on government practice and jurisprudence concerning international law in the Federal Republic of Germany are provided in each volume. Manuscripts and review copies should be sent to: Redaktion MPI fur Volkerrecht, Im Neuenheimer Feld 535, D-69120 Heidelberg, e-mail: [email protected]. Manuscripts will only be accepted if they have not been published elsewhere; the views expressed are strictly those of the author. Prices: 4 issues and index per year (about 900 pages): Euro 166.-/ SFr 324.65 (plus Euro 9.60 for postage and handling) Single issues: Euro 43.40/SFr 84.90 Index: Euro 23.-/SFr 46.15 W. Kohlhammer GmbH, Hcl~briihlstraBe69, 70565 Stuttgart

Marine Issues From a Scientific, Political and Legal Perspective

edited by Peter N. Ehlers Elisabeth Mann- Borgese Rudiger Wolfrum Assistant Editor: Cristina HoB

This volume collects a number of essays and articles from about twenty experts in various fields connected to marine environmental issues. These essays were first presented at the XXVIII Pacem in Maribus Conference held in December 2000, at the International Tribunal of the Law of the Sea in Hamburg, Germany. The purpose of the Conference was to enhance awareness of the European public, governments, the private sector and academia about the importance of responsible ocean and coastal management based on ocean science. Reflecting the innovative interdisciplinary approach of the conference , these volume groups contributors from leading biologists, political scientists, geographers, and jurists according to specific regional relevance and not along strict disciplinary lines. This approach allows the experts to treat marine issues concerning regions such as the North Sea, the Baltic Sea, or the Black Sea in a comprehensive manner. This collection could become an essential instrument for scholars and scientists working within the field of marine environmental issues.

Kluwer Law International, The Hague Hardbound, ISBN 90-411-1740-7 February 2002 , 352 pp. EUR 102.00 I USD 94.00 I GBP 64.00