The definition of non-international armed conflict in the Rome statute of the international criminal court: An analysis of the threshold of application contained in article 8(2)(f)

Journal of Conflict and Security Law

Volumn 12, Issue 3, 2007, Pages 419-445

  Cullen, Anthony ^a  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

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EID: 42649135615     PISSN: 14677954     EISSN: 14677962     Source Type: Journal    
DOI: 10.1093/jcsl/krn001     Document Type: Article

References (129)

1. See W. A. Schabas, 'First Prosecutions at the International Criminal Court', (2006) 25 Human Rights Law Journal, 25-40.
2. For an early decision of the court providing an interpretation of 'conflict not of an international character', see Lubanga (ICC-01/ 04-01/06) Decision on the Confirmation of Charges, 29 January 2007, paras 229-237.
3. Report of the International Law Commission on its Forty-Sixth Session, Draft Statute for an International Criminal Court, 2 May-22 July, 1994 (GA, forty-ninth Session, Supplement No. 10 (A/49/10) 1994).
4. United Nations Security Council Resolution 955 Establishing the International Tribunal for Rwanda, UN doc. S/RES/955 (1994), 8 November 1994.
5. Report of the Secretary-General Pursuant to paragraph 5 of Security Council Resolution 955 (1994), UN doc. S/1995/134, 13 February 1995, para. 12.
6. United Nations Security Council Resolution 955 Establishing the International Tribunal for Rwanda, SC Res. 955 (1994).
7. See Prosecutor v Tadic, Decision on the Defence Motion on Jurisdiction, 10 August 1995, ICTY Case No. IT-94-1-AR72.
8. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court; GA, fiftieth Session, Supplemnt No. 22 (A/ 50/22) 1995, para. 74.
9. United Nations General Resolution 50/46 Establishment of an International Criminal Court, UN Doc. A/RES/50/46, 11 December 1995.
10. Report of the Preparatory Committee on the Establishment of an International Criminal Court, vol. I (Proceedings of the Preparatory Committee During March-April and August 1996), GA, fifty-first Session, Supplement No. 22 (A/51/22) 1996, para. 78.
11. Decisions taken by the Preparatory Committee at its session held from 11 to 21 February 1997, A/AC.249/1997/L.5, 1997.
12. Decisions taken by the Preparatory Committee at its session held from 11 to 21 February 1997, A/AC.249/1997/L.5, 1997, p. 12.
13. Decisions taken by the Preparatory Committee at its session held from 1 to 12 December 1997, A/AC.249/1997/L.9/Rev. 1, 1997, p. 12.
14. Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute and Draft Final Act; A/ Conf.183/2/Add.1, 1998, p. 25.
15. A/CONF.183/2, para. 2.
16. Report of the Preparatory Committee on the Establishment of an International Criminal Court; A/CONF.183/2.
17. The parts of the draft Statute relating to non-international armed conflict were referred to as 'sections C and D' by delegates at the Rome Conference. This labelling was kept throughout the negotiations until discussions relating to their inclusion were concluded.
18. The term 'armed conflicts not of an international character' was originally used in the first line of common Article 3 to indicate its field of application. The use of the phrase in the chapeau of sections C and D appeared to signify a replication in the draft Statute of the similar field of application for war crimes committed in situations of non-international armed conflict. This point will be returned to later.
19. The fate of sections C and D was to be determined by five options inserted in the draft Statute by the Preparatory Committee. The first involved the incorporation of both C and D into the Statute, subject to some adjustments in the wording of the offences listed. The second option proposed doing so with the inclusion of some additional offences. The third option was to delete the chapeau of C and D. The fourth was to delete section D, while the fifth was to delete both C and D. Under the heading of 'Elsewhere in the Statute', another three options had been proposed by the Preparatory Committee. The text of option one was as follows: The jurisdiction of the court shall extend to the most serious crimes of concern to the international community as a whole. The court shall have jurisdiction in respect of the crimes listed in article X (war crimes) only when committed as part of a plan or policy or as part of a large-scale commission of such crimes. (A/CONF.183/2, p. 29) The text of option two was based on that of option one, with some adjustments shifting the emphasis from the existence of a plan or policy to the restriction of the court's subject-matter jurisdiction to the most serious crimes of international concern: The jurisdiction of the court shall be limited to the most serious crimes of concern to the international community as a whole. The court shall have jurisdiction in respect of the crimes listed in article X (war crimes) in particular when committed as a part of a plan or policy or part of a large-scale commission of such crimes. (A/CONF.183/2, p. 30) The third option proposed no provision on threshold. (A/CONF.183/2, p. 30)
20. As Chairman of the Committee of the Whole, Philippe Kirsch opened discussion on 8 July 1998 by requesting comments on a number of issues, including 'sections C and D on armed conflict not of an international character [...] the need for those sections and, if they were included, the threshold for those provisions'. (A/CONF.183/C.1/SR.25, para. 2) Implicit in this remark is an assumption of one threshold for both provisions; see Bureau discussion paper (A/CONF.183/C.1/L.53, 6 July 1998).
21. A/CONF.183/C.1/L.53, 6 July 1998.
22. A/CONF.183/C.1/L.59, 10 July 1998.
23. The Head of the New Zealand delegation, DonMacKay, made the following statement on the matter: 'As to whether armed conflicts not of an international character should be covered by the Statute, failure to include such conflicts would leave a huge gap that would be quite unacceptable to the international community.' A/CONF.183/SR.25, para. 19.
24. A/CONF.183/SR.6, para. 100. The delegation of the United States, led by Ambassador David Scheffer, strongly supported the inclusion of provisions relating to noninternational armed conflict in the draft Statute. Professor Theodor Meron, a distinguished advisor to the US government on matters of international humanitarian law, had been instrumental in getting the issue onto the agenda of the US delegation prior to the Conference. Also present at the Conference as a member of this delegation, Meron played an important role in advancing the position of the United States on the inclusion of provisions governing situations of internal armed conflict. Source: Interview with Ambassador David Scheffer, Galway, 13 July 2003.
25. A/CONF.183/SR.6, para. 34.
26. A/CONF.183/SR.25, para. 55. Expressing a view similar to that of Sierra Leone, Joao Soares Da Gama of Guinea-Bissau stated that he 'attached prime importance to the inclusion of sections C and D, since his country continued to suffer from noninternational armed conflicts.' (A/CONF.183/ C.1/SR.28, para. 77)
27. In addition to the United States, Finland, Sierra Leone and Guinea-Bissau, other delegations voicing support for the incorporation of provisions relating to non-international armed conflict included Albania, Andorra, Argentina, Armenia, Australia, Bangladesh, Benin, Bosnia and Herzegovina, Botswana, Brunei Darussalam, Bulgaria, Burkina Faso, Canada, Cape Verde, Chile, Colombia, Congo, Costa Rica, Croatia, Cyprus, Czech Republic, Ecuador, Estonia, Ethiopia, Gabon, Georgia, Hungary, Israel, Japan, Jordan, Lithuania, Malta, Mozambique, Namibia, New Zealand, Nicaragua, Philippines, Republic of Korea, Romania, Russian Federation, SanMarino, Senegal, Slovakia, Slovenia, South Africa (speaking on behalf of the Southern African Development Community), Switzerland, Trinidad and Tobago, Uganda, the United Kingdom (speaking on behalf of the European Union, the Central and Eastern European countries associated with the European Union, the associated country of Cyprus and the European Free Trade Association countries of Iceland and Norway), Venezuela and Zambia.
28. The minority of delegations opposed to the inclusion of provisions relating to noninternational armed conflict included states, such as Algeria, Burundi, China, India, Indonesia, Iraq, Libyan Arab Jamahiriya, Nepal, Oman, Pakistan, Saudi Arabia, Syrian Arab Republic, Thailand, Turkey and Vietnam.
29. For the drafting history of Geneva Conventions of 1949, see Final Record of the Diplomatic Conference of Geneva of 1949 (vols. 1-4 Federal Political Department, Berne, 1950).
30. For the drafting history of the Additional Protocols of 1977 see Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974-1977) (vols. 1-14 Federal Political Department Berne 1978).
31. See comments made by Mr. Perera of the Sri Lanka delegation during the thirty-fifth meeting of the Committee of the Whole. A/CONF.183/C.1/ SR.35, para. 44.
32. See also, Mohamed M. El Zeidy, 'The Principle of Complementarity: A New Machinery to Implement International Criminal Law', (2002) 23 Michigan Journal of International Law 869
33. Mohamed M. El Zeidy, 'The Ugandan Government Triggers the First Test of the Complementarity Principle: An Assessment of the First State's Party Referral to the ICC', (2005) 5 International Criminal Law Review 83.
34. A/CONF.183/C.1/SR.27, para. 5.
35. A/CONF.183/C.1/SR.5, para. 107.
36. Speaking on behalf of the Egyptian delegation, Sayed Kassem El Masry stated that 'he did not favour the inclusion of sections C and D, but could consider section C if safeguards such as non-interference in the internal affairs of States, a higher threshold and the guarantees contained in Additional Protocol II to the Geneva Conventions of 1949 were stipulated.' A/CONF.183/C.1/SR.5, para. 115. A similar position was voiced by Bahrain's Minister for Justice and Islamic Affairs, Khalid Bin AM Abdullah Al- Khalifa: He found the thresholds in sections C and D difficult to accept because there was no positive definition of non-international conflicts. An exact definition of internal conflicts would be required, along the lines of Additional Protocol II to the Geneva Conventions of 1949, and great care must be taken not to interfere in the internal affairs of States. (A/CONF.183/C.1/SR.27, para. 21)
37. A/CONF.183/C.1/L.59 (10 July 1998).
38. A/CONF.183/C.1/L.59 (10 July 1998).
39. A/CONF.183/C.1/L.59 (10 July 1998).
40. The field of application stipulated in Article 1(1) has been criticised by a number of scholars for narrowing unnecessarily the scope of protection provided by Additional Protocol II; see A. Cullen, 'Key Developments Affecting the Scope of Internal Armed Conflict in International Humanitarian Law', (2005) 183 Military Law Review 65, 94-97
41. C. Greenwood, 'A Critique of the Additional Protocols to the Geneva Conventions of 1949', in H. Durham and T. L. H. McCormack (eds.), The Changing Face of Conflict and the Efficacy of International Humanitarian Law (1999) 19
42. A. Eide, 'The New Humanitarian Law in Non-International Armed Conflict', in A. Cassese (ed.), The New Humanitarian Law of Armed Conflict (1979) 308.
43. A/CONF.183/C.1/SR.33, para. 14.
44. A/CONF.183/C.1/SR.35, para. 37.
45. A/CONF.183/C.1/SR.35, para. 77.
46. A/CONF.183/C.1/SR.35, para. 60.
47. A/CONF.183/C.1/SR.34, para. 94.
48. A/CONF.183/C.1/SR.33, para. 24.
49. A/CONF.183/C.1/SR.33, para. 68.
50. The head of the United Kingdom Delegation, Franklin Berman, stated that 'it was important to avoid setting a threshold so high as to remove from the court's jurisdiction the very cases that had given rise to such grave concerns of late.' (A/CONF.183/C.1/SR.33, para. 80.) Likewise, Tuvako Manongi of the Tanzanian Delegation stated that the new threshold was too high 'to allow the Court to play any meaningful role in the situations of non-international armed conflict with which the international community was increasingly faced.' (A/CONF.183/C.1/SR.35, para. 49) The Head of the New Zealand Delegation, Don McKay, expressed a similar concern to those voiced by the representatives of Britain and Tanzania: 'The fundamental problem raised by article 5 quater was the new chapeau of section D, which would leave very serious gaps in the Statute. It should either be deleted or tightened up.' (A/CONF.183/C.1/ SR.34, para. 22) In addition to the criticisms expressed by the representatives of the United Kingdom, Tanzania and New Zealand, opposition to the new threshold was furthermore voiced by the representatives of Austria, United States, Germany, Norway, South Africa, Switzerland, Uganda, Samoa, Trinidad and Tobago, Spain, the Russian Federation, Australia, Mexico, Sudan, Sierra Leone, Italy, Canada, Denmark, Hungary, Estonia, Slovenia, Zimbabwe, Bosnia and Herzegovina, Finland, Romania and Lithuania.
51. This was also the view of the ICRC. The last speaker to address the Committee of the Whole on the matter was Louise Doswald-Beck of the ICRC: With regard to armed conflicts not of an international character, she pointed out that, under the new threshold added to section D, many conflicts, and indeed most internal armed conflicts, would not be covered, and that many atrocities would thus not be triable under the Statute. Furthermore, many of the acts listed in section D were recognised as crimes by customary law. It was therefore most important that section D should not be omitted. (A/CONF.183/C.1/SR.36, para. 52)
52. A/CONF.183/C.1/SR.36, para. 2.
53. A/CONF.183/C.1/SR.34, para. 60.
54. This point was made by the Australian representative, Geoffrey James Skillen, who was opposed to the additional language in the chapeau of section D of Article 5 quater: 'It would not cover conflicts between two or more dissident groups or those in which the dissident group failed to meet the criteria of responsible command or territorial control.' (A/ CONF.183/C.1/SR.34, para. 107)
55. A/CONF.183/C.1/SR.33, para. 37.
56. A/CONF.183/C.1/SR.34, para. 48.
57. A/CONF.183/C.1/SR.35, para. 31.
58. A/CONF.183/C.1/SR.35, para. 54.
59. A/CONF.183/C.1/SR.35, para. 57.
60. A/CONF.183/C.1/SR.35, para. 64.
61. A/CONF.183/C.1/SR.36, para. 6.
62. A/CONF.183/C.1/SR.36, para. 20.
63. A/CONF.183/C.1/L.62 (13 May 1998).
64. A/CONF.183/C.1/SR.35, para. 8.
65. Prosecutor v Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, ICTY Case No. IT-94-1-AR72.
66. Ibid., para. 70.
67. The significance of the change in wording for the interpretation of Article 8(2)(f) will be discussed later.
68. During the twenty-eighth meeting of the Committee of the Whole, João Soares Da Gama of the Guinea-Bissau delegation stated that 'he attached prime importance to the inclusion of sections C and D, since his country continued to suffer from noninternational armed conflicts.' (A/CONF.183/C.1/SR.28, para. 77)
69. A/CONF.183/C.1/SR.34, para. 94.
70. A/CONF.183/C.1/SR.35, para. 23.
71. A/CONF.183/C.1/SR.35, para. 23.
72. A/CONF.183/C.1/SR.35, para. 79.
73. A/CONF.183/C.1/SR.36, para. 30.
74. A/CONF.183/C.1/SR.36, para. 42.
75. A/CONF.183/C.1/SR.37, para. 53.
76. Speaking on behalf of the UN Secretary-General, Hans Corell emphasised the limited time available to the Committee of the Whole at its thirty-fourth session: The Secretary-General was following the negotiation process very carefully and was confident of a positive outcome to the Conference. However, time was running short. Unless a solution to the major outstanding substantive issues emerged very soon, it would be difficult to assemble and coordinate all the provisions in such a way that the Statute would be ready for adoption later in the week... [The Secretary-General] urged those delegations that were still insisting on very firm positions to make every possible effort to work with other delegations to find common ground. The Secretary-General sincerely hoped that the necessary consensus would emerge, and that it would be possible to adopt the Statute of the International Criminal Court during the Conference. (A/CONF.183/C.1/SR.34, para. 1)
77. The thirty-fifth meeting of the Committee of the Whole began at 18:05 pm on Monday, 13 July 1998. The Committee concluded consideration of the Bureau's discussion paper at 22:50 pm the same day.
78. Prosecutor v Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, ICTY Case No. IT-94-1-AR72, para. 70.
79. Scholars who support the interpretation of one uniform threshold applicable in noninternational armed conflict include Theodor Meron, Michael Bothe and Claus Kress. See T. Meron, 'The Humanization of Humanitarian Law', (2000) 94 AJIL 239, 260
80. M. Bothe, 'War Crimes', in A. Cassese, P. Gaeta, J. R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002) 423
81. and C. Kress, 'War Crimes Committed in Non-International Armed Conflict and the Emerging System of International Criminal Justice', (2001) 30 IYBHR 103, 118. Scholars who interpret a new threshold of application include Marco Sassoli and Antoine Bouvier, and Rene Provost
82. see M. Sassoli and A. Bouvier (eds.), How Does Law Protect in War (vol. 1, 2nd edn., 2006) 110
83. R. Provost, International Human Rights and International Humanitarian Law (2002) 268-269. Debate on the interpretation of Article 8(2)(f) will be examined in greater detail in Section 3.2.
84. Vienna Convention on the Law of Treaties, 1155 UNTS 331, 8 ILM 679, entered into force on 27 January 1980. On the issue of interpretation see I. Sinclair, The Vienna Convention on the Law of Treaties (2nd edn., 1984) 114-158. For the drafting history of provisions from the Vienna Convention relating to the interpretation of treaties
85. see S. Roseanne, The Law of Treaties: A Guide to the Legislative History of the Vienna Convention (1970) 214-223
86. R. G. Wetzel and D. Rauschning (eds.), The Vienna Convention on the Law of Treaties: Travaux Perparatoire (1978) 237-263.
87. This rule of interpretation is recognised as customary international law, see La Grand case (Germany v United States of America) Judgment of 27 June 2001, General List No. 104, para. 99.
88. The different schools of thought on the interpretation of Article 8(2)(f) will be returned to below in Section 4(A).
89. The Conference was due to close on 17 July and the Bureau's proposal for an additional threshold was only discussed before the Committee of the Whole on 13 July 1998.
90. See works cited, op. cit., fn. 37.
91. See above, Section 3(A)(i).
92. Ibid.
93. T. Meron, War Crimes Law Comes of Age (1998) 309.
94. W. A. Schabas, An Introduction to the International Criminal Court (3rd edn., 2007) 116.
95. Sassoli and Bouvier, op. cit., fn. 74.
96. See also Provost, op. cit., fn. 74.
97. Schabas, op. cit., fn. 83.
98. Ibid., p. 131.
99. Meron, loc. cit., fn. 74.
100. T. Meron, 'Crimes under the Jurisdiction of the International Criminal Court', in H. A. M. von Hebel et al. (eds.), Reflections on the ICC (1999) 54. According to the Trial Chamber in the Slobodan Milošević case before the ICTY, 'Article 8 is not only consistent with the Tadic test, but also incorporates part of the Tadic Jurisdiction Appeals Decision into its own definition of "war crimes".' Prosecutor v Slobodan Milošević, Decision on Motion for Judgment of Acquittal, Trial Chamber, 16 June 2004, Case No. IT-02-54-T, para. 20. Available at .
101. Bothe, loc. cit., fn. 74.
102. Ibid., p. 418, states that: The systematic order of Article 8 (crimes in connection with an international armed con- flict/crimes in connection with non-international armed conflict) involves the need to determine two different thresholds: That between an international and non-international armed conflict and that between an armed conflict and a situation which does not at all constitute an armed conflict within the meaning of subparagraphs (c) or (e). The latter threshold is regulated by subparagraphs (e) and (f) for subparagraphs (c) and (e), respectively.
103. ICRC Commentary on the Geneva Conventions of 1949, p. 49.
104. 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, Article 19(1).
105. Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II to the 1980 Convention as amended on 3 May 1996), Article 1(3).
106. 2001 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Whichmay be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Article 1(3).
107. 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, Article 22.
108. Additional Protocol II, Article 1(1).
109. 'The High Contracting Parties, Recalling that the humanitarian principles enshrined in Article 3 common to the Geneva Conventions of 12 August 1949, constitute the foundation of respect for the human person in cases of armed conflict not of an international character'. Additional Protocol II, preambular para. 1.
110. ICRC Commentary on Additional Protocol II, p. 1350.
111. ICRC Commentary on Additional Protocol II, p. 1350.
112. Emphasis added.
113. See Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute and Draft Final Act
114. A/Conf.183/2/Add.1, 1998, p. 26
115. Report of the Inter-Session Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands
116. A/AC.249/1998/L.13, 1998, p. 28
117. Decisions taken by the Preparatory Committee at its session held from 1 to 12 December 1997, A/AC.249/1997/L.9/Rev. 1, 1997, p. 12
118. Decisions taken by the Preparatory Committee at its session held from 11 to 21 February 1997, A/AC.249/1997/L.5, 1997, p. 12
119. and Report of the Preparatory Committee on the Establishment of an International Criminal Court, vol. II (Compilation of Proposals), GA, fifty-first Session, Supplement No. 22, A/51/22, 1996, p. 62.
120. See Prosecutor v Lubanga (Case No. ICC-01/04-01/06), Décision sur la confirmation des charges, 29 January 2007, para. 230.
121. Cited in K. Dormann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (2003) xiii.
122. J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (vols. I and II, 2005).
123. The customary status of provisions in 8(2)(c) is covered in the following rules listed in ibid., vol. I: Rules 87-90 (pp. 306-319), 96 (pp. 334-336) and 99-100 (pp. 334-370). For the customary status of provisions in 8(2)(e)
124. see ibid.: Rules 1 (pp. 3-8), 30 (pp. 102-104), 33 (pp. 112-114), 38-40 (pp. 127-135), 52 (pp. 182-185), 93-94 (pp. 323-330), 136-137 (pp. 482-488), 129 (pp. 459-460), 65 (pp. 221-226), 46 (pp. 161-163), 92 (pp. 320-323) and 50 (pp. 175-177).
125. See ibid., vol. II: Rules 87-90 (pp. 1986-2161), 96 (pp. 2262-2285), 99-100 (pp. 2328-2493), 1 (pp. 3-66), 30 (pp. 574-587), 33 (pp. 640-659), 38-40 (pp. 723-803), 52 (pp. 1076-1122), 93-94 (pp. 2190-2246), 136-137 (pp. 3109-3142), 129(B) (pp. 2908-2942), 65 (pp. 1368-1457), 46 (pp. 915-929), 92 (pp. 2167-2189), and 50 (pp. 1000-1029).
126. Article 8(2)(e).
127. This would also be consistent with the Elements of Crimes, which states that the war crimes listed in 8(2) 'shall be interpreted within the established framework of the law of armed conflict'.
128. According to the ICTR Trial Chamber in the Akayesu case, '[t]he four Geneva Conventions_as well as the two Additional Protocols... were adopted primarily to protect the victims as well as potential victims of armed conflicts'. Prosecutor v Jean Paul Akayesu, Judgment, Appeals Chamber, 1 June 2001, Case No. ICTR-96-4, para. 630.
129. Trial of Major War Criminals before the International Military Tribunal, Nuremburg, 14 November 1945-1 October 1946, vol. I, p. 221.