Is the ICC still having teething problems?

Journal of International Criminal Justice

Volumn 4, Issue 3, 2006, Pages 434-441

  Cassese, Antonio ^a  

^a UNIVERSITY OF FLORENCE   (Italy)

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[No Author keywords available]

Indexed keywords

EID: 33750234772     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mql033     Document Type: Note

References (13)

1. As is well known, aggression is provided for in abstracto in Article 5 of the ICC Statute, but it is doubtful that agreement on the definition of the crime will ever emerge among the contracting states. Aggression occurs frequently, however, in the world community, although states and the UN often refrain from resorting to this notion. Recently, judge Bruno Simma, in his excellent Separate Opinion in the Case Concerning Armed Activities on the Territory of the Congo (International Court of justice, judgment of 19 December 2005), rightly took issue with the Court's majority for refraining from characterizing the massive use of force in 1998-1999 by Uganda against the Democratic Republic of Congo as aggression (qua state delinquency; the question of aggression as a crime was not at issue). See Simma's Separate Opinion, §2-3 (online: www.icj-cij.org; visited 22 May 2006).
2. Alberico Gentile, De iure belli libri tres (Hanoviae, 1612), photographic reproduction (Classics of International Law, 1, Oxford: Clarendon Press, 1933), Book 1, Chapter 12 (at 87-88; see the English translation ibid., vol. 2, at 54). Gentile, after citing Aristotle's dictum in History of Animals that 'dog does not eat dog' (canis caninam non est), writes the words cited above in the text with regard not to states but to individuals, and within the context of the question of why men have such a strong propensity for waging war against other men. Gentile assails the notion that 'it is the nature of all men to make war' (a natura omnibus esse, bellum gerere). In his view 'there is no natural repugnance between man and man. There is not even antipathy between brutes of the same species; therefore these should be none between men' (hominibus cum hominibus non est repugnantia per naturam. Sed neque antipathia est inter animalia ejusdem speciei. Igitur nec sit inter homines). In his opinion the origin of conflict and war is elsewhere: It is through 'the fault of the human race that dissensions arise, since mankind is uneasy and untamed (inquies et indomitum, and always engaged in a struggle for freedom or glory or dominion (semper in certamine libertatis, aut gloriae, aut dominationis agit)'.
3. See P. Gaeta, 'Is the Practice of "Self-Referrals" a Sound Start for the ICC?', in 2 Journal of International Criminal Justice (2004), 949-952.
4. In §8 of the resolution, the Security Council invited the Prosecutor 'to address the Security Council within three months of the date of adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution'.
5. See Report, at 2.
6. See Report, at 4.
7. See Report, at 8. In his first report to the Security Council (of 29 June 2005) the Prosecutor had stated that'since the referral the Prosecutor has held two meetings (in April and May [2005]) in the Netherlands with officials of the Government of Sudan. These meetings were exploratory in nature, involving discussions relating to the situation in Darfur, ICC procedures and the general policies and stWategies of the OTP' (Report, at 5: Online: www.icc-cpi.org; visited 4 May 2006). See also the statement made the same day by the Prosecutor to the Security Council (at 4, ibid).
8. See Report, at 9.
9. See Report, at 9.
10. See Report, at 10.
11. 'If the International Criminal Court wants to carry out observation tasks, in cooperation with the Sudanese judicial authorities, in order to feel relieved and certain, the Sudanese government has no problems or objections. However, if it wants to begin any procedures to try Sudanese citizens, this is unacceptable' (http://english.aljazeera.net/NR/exeres/ 554FAF3A-B267-427A-B9EC-54881BDEOA; visited 4 May 2006).
12. The Minister said that the ICC had no jurisdiction to try Sudanese people: 'We have the national law authority ... The government is willing and able to try these cases' (http://newsvote.bbc.co.uk/mpapps/ pagetools/Print/news.bbc.co.uk/1/hi/world/Africa/4; visited 4 May 2006).
13. In her statement of 5 May 2006, made after a visit to the Sudan, Louise Arbour, the High Commissioner of Human Rights noted the following: 'The human rights crisis in Darfur was the reason for my first visit to Sudan. A year and a half later the situation is just as critical, and in some respects worse. There are continuing attacks on civilians, raids and pillaging of villages and rape and gender-based violence...[according to] reports by human rights monitors, relief workers and Sudanese and international non-governmental organizations (NGOs) [...] the violence in Darfur has recently reached a level not seen since late 2003 and 2004 [...] I also heard reports of increased involvement of rebel groups in attacks against civilians, looting and causing massive displacement, reportedly as a result of infighting [...]. A particularly worrying development is the proliferation of armed groups (with no clear allegiances or political aims) engaged in criminal activity [...]. Despite a number of measures taken by the authorities, notably the establishment of special courts and committees, impunity remains the norm in most cases of human rights violations in Darfur [...]. I also heard reports of increased involvement of rebel groups in attacks against civilians, looting and causing massive displacement, reportedly as a result of infighting [...]. A particularly worrying development is the proliferation of armed groups [with no clear allegiances or political aims] engaged in criminal activity. In discussing the critical situation in Darfur with Sudanese local and national authorities I was struck, as I was during my first visit, by their efforts to minimize the gravity of the problem [...]'. The High Commissioner concluded as follows: 'It is important for the ICC to exercise its mandate with relation to Darfur robustly and visibly, with the full cooperation of the GNU [Sudanese Government of National Unity] and the support of the international community, especially in light of the fact that Sudanese efforts at establishing accountability and ensuring justice and reparation for the victims and survivors of the conflict have so far proved inadequate'. (Text online: http://www.ohchr.org/english/press/newsFrameset-2htm; visited 20 May 2006.)