A call to arms: Fundamental dilemmas confronting the interpretation of crimes in the Rome Statute of the international criminal court

European Journal of International Law

Volumn 21, Issue 3, 2010, Pages 543-583

  Grover, Leena ^a  

^a UNIVERSITY OF COLOGNE   (Germany)

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EID: 78149366593     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chq057     Document Type: Article

References (224)

1. UN Doc A/CONF.183/9; 2187 UNTS 90.
2. The Court also has jurisdiction to try persons for the crime of aggression. However, it is unable to exercise this jurisdiction until a definition for this crime is adopted, conditions for the exercise of jurisdiction over this crime are adopted, and all relevant amendments enter into force. These matters were on the agenda for the Review Conference of the Rome Statute, which was held in Kampala in June 2010. The final outcome, Res RC/Res 6, was adopted by consensus on 11 June. However, owing to its newness, it was not possible to incorporate an analysis of this outcome into this contribution.
3. H.L.A. Hart, The Concept of Law (1961).
4. This term is borrowed from Sands, 'Treaty, Custom and the Cross-fertilization of International Law', 1 Yale Human Rights & Development LJ (1998) 85
5. Statute of the International Criminal Tribunal for the former Yugoslavia, UN Doc S/RES/827, annex ('ICTY Statute'); Statute of the International Criminal Tribunal for Rwanda, UN Doc S/RES/955, annex ('ICTR Statute')
6. ICC-ASP/1/3 (part II-B), adopted by consensus
7. UN Doc A/CONF.39/27; 1155 UNTS 331.
8. Even though the ICTY and ICTR Statutes are not technically treaties, both tribunals have held that the interpretive rules in the Vienna Convention are relevant and applicable to their work: Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ICTY-94-1-AR72, 2 Oct. 1995, at para. 18 ('Tadić Jurisdiction Decision').
9. Prosecutor v. Erdemović, Judgment, Joint Separate Opinion of Judges McDonald and Vohrah, ICTY-96-22-A, 7 Oct. 1997, at para. 3.
10. Prosecutor v. Bagosora et al., Decision on the Admissibility of the Prosecutor's Appeal from the Decision of a Confirming Judge Dismissing an Indictment against Theoneste Bagosora and 28 Others, ICTR 98-37-A, 8 June 1998, at paras 28-29.
11. Prosecutor v. Delalić et al., Judgment, ICTY-96-21-T, 16 Nov. 1998, at para. 1161.
12. On the merits of the reasons given by the ICTY and ICTR for applying the Vienna Convention to their Statutes see Schabas, 'Interpreting the Statutes of the Ad Hoc Tribunals', in L.C. Vohrah (ed.), Man's Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (2003), at 847, 849-852.
13. On the Court accepting the applicability of the Vienna Convention see Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Prosecutor's Application for Extraordinary Review of the Pre-Trial Chamber I's 31 Mar. 2006 Decision Denying Leave to Appeal, ICC-01/04-168, 13 July 2006, at paras 33-42.
14. Cited in Bitti, 'Article 21 of the Statute of the International Criminal Court and the Treatment of Sources of Law in the Jurisprudence of the ICC', in C. Stahn (ed.), The Emerging Practice of the International Criminal Court (2009), at 281, 295.
15. For an argument of this nature made in respect of the interpretation of international human rights treaties see Christoffersen, 'Impact on General Principles of Treaty Interpretation', in M.T. Kamminga and M. Scheinin (eds), The Impact of Human Rights Law on General International Law (2009), at 37.
16. This definition takes its inspiration from the study in D.N. MacCormick and R.S. Summers (eds), Interpreting Statutes: A Comparative Study (1991).
17. A legal methodology may be defined 'as a systemic general approach to the duly purposive and consistent execution of a recurrent type of major task arising in the making or application of law': R.S. Summers, Form and Function in a Legal System: A General Study (2006), at 241.
18. International Law Commission (ILC), Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, finalized by M. Koskenniemi, UN Doc A/CN.4/L.682 (2006), at 181
19. Kamminga, 'Final Report on the Impact of International Human Rights Law on General International Law', in Kamminga and Scheinin
20. ILC, 'Reports of the International Law Commission on the second part of its seventeenth session and on its eighteenth session', in Yrbk Int'l Law Comm (1966), ii, at 219-220
21. See Van Damme, in this volume
22. Wessel, 'Judicial Policy-Making at the International Criminal Court: An Institutional Guide to Analyzing International Adjudication', 44 Columbia J Transnat'l L (2006) 377
23. Prosecutor v. Tadić, Judgment, ICTY-94-1-A, 15 July 1999, at para. 296 ('Tadić Judgment').
24. Prosecutor v. Krnojelac, Judgment, Separate Opinion of Judge Schomburg, ICTY-97-25-A, 17 Sept. 2003, at para. 13.
25. Barayagwiza v. Prosecutor, Decision, Separate Opinion of Judge Shahabuddeen, ICTR-97-19-AR72, 3 Nov. 1999, at s. 4.
26. Prosecutor v. Blagojević et al., Judgment, ICTY-02-60-A, 9 May 2007, at para. 281
27. Prosecutor v. Kupreškić et al., Judgment, ICTY-95-16-T, 14 Jan. 2000, at para. 569
28. Prosecutor v. Krstić, Judgment, ICTY-98-33-T, 2 Aug. 2001, at para. 496
29. Kanyabashi v. Prosecutor, Decision on the Defence Motion for Interlocutory Appeal on the Jurisdiction of Trial Chamber I, Joint and Separate Opinion of Judges McDonald and Vohrah, ICTR-96 -15-A, 3 June 1999, at para. 13.
30. Prosecutor v. Furundžija, Judgment, ICTY-95-17/1-T, 10 Dec. 1998, at para. 183.
31. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc S/25704, at para. 34. In contrast to the ICTY Statute, the Secretary-General admitted that Art. 4 of the ICTR Statute goes somewhat beyond custom by including violations of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (1977) (Additional Protocol II), 1125 UNTS 609 (Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994), UN Doc S/1995/134, at para. 12). On this point, it is interesting to note that Rwanda acceded to Additional Protocol II on 19 Nov. 1984.
32. However, unlike the judges in Delalić, MacCormick and Summers define authoritative aids as including non-binding materials, such as official regulations and similar statutes in other jurisdictions
33. See, e.g., Art. 21 Rome Statute.
34. Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Art. 19(2)(a) of the Statute of 3 Oc. 2006, ICC-01/04-01/06-772, 14 Dec. 2006, at para. 34, ICC-01/04-01/06-772, at para. 34, cited in Bitti, supra note 8; Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) [2003] ICJ Rep 161. Based on the Court's reasoning and in the context of a case raising a procedural issue, Bitti defines a gap in the Rome Statute as follows: 'a gap in the Statute may be defined as an "objective" which could be inferred from the context or the object and purpose of the Statute, an objective which would not be given effect by the express provisions of the Statute or the Rules of Procedure and Evidence, thus obliging the judge to resort to the second or third source of law - in that order - to give effect to that objective. In short, the subsidiary sources of law described in Article 21 (1) (b) or (c) cannot be used just to add other procedural remedies to the Statute and the Rules of Procedure and Evidence'.
35. [30] See, e.g., Prosecutor v. Kony et al., Decision on the Prosecutor's Position on the Decision of Pre-Trial Chamber II to Redact Factual Descriptions of Crimes in the Warrants of Arrest, Motion for Reconsideration, and Motion for Clarification, ICC-02/04-01/05-60, 28 Oct. 2005, at para. 19, cited in Bitti.
36. Robinson, 'The Identity Crisis of International Criminal Law', 21 Leiden J Int'l L (2008) 925
37. Danner and Martinez, 'Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law', 93 California L Rev (2005) 75
38. A. Cassese, International Criminal Law (2nd edn, 2008), at 36 ff.
39. On the imprecise meaning of human dignity see McCrudden, 'Human Dignity and Judicial Interpretation of Human Rights', 19 EJIL (2008) 655
40. On the evolutive interpretation of human rights treaties see Bernhardt, 'Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights', 42 German Yrbk int'l L (1999) 11
41. Fitzmaurice, 'Dynamic (Evolutive) Interpretation of Treaties', 21 Hague Yrbk Int'l L (2008) 10
42. R. Provost, International Human Rights and Humanitarian Law (2002), at 136.
43. J. Pictet, Development and Principles of International Humanitarian Law (1985).
44. See generally Meron, 'International Law in the Age of Human Rights', 301 Recueil des cours (2003), at 24 ff
45. International Military Tribunal (Nuremberg), Judgment and Sentences, 41 AJIL (1947) 172, at 217, emphasis added
46. A. Ashworth, Principles of Criminal Law (4th edn, 2003), at 81-82.
47. Ashworth, 'Interpreting Criminal Statutes: a Crisis of Legality?', 107 LQR (1991) 419, at 420 ff
48. Cassese, 'The Statute of the International Criminal Court: Some Preliminary Reflections', 10 EJIL (1999) 144, at 152
49. Broomhall, 'Article 22', in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (2008), at 713, 713-717.
50. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court (1995), UN Doc A/50/22, at paras 52 and 57, and Report of the Preparatory Committee on the Establishment of an International Criminal Court (Proceedings of the Preparatory Committee during Mar.-Apr. and Aug. 1996), i, UN Doc A/51/22, at paras 52, 180, and 185, cited in Lamb.
51. Nullum Crimen, Nulla Poena Sine Lege in International Criminal Law', in A. Cassese et al. (eds), The Rome Statute of the International Criminal Court: A Commentary (2002), i, at 733, 747.
52. See, e.g., Ambos, 'Nulla Poena Sine Lege in International Criminal Law', in R. Haveman and O. Olusanya (eds), Sentencing and Sanctioning in Supranational Criminal Law (2006), at 17.
53. Arts. 7(1)(g) ('any other form of sexual violence of a comparable gravity') and (k) ('other inhumane acts of a similar character') leave the list of crimes against humanity in the Rome Statute somewhat open-ended. See also Art. 8(b)(xxii) and (e)(vi) on sexual violence as a war crime.
54. ICC-ASP/1/3, adopted by the ASP on 9 Sept. 2002.
55. K. Gallant, The Principle of Legality in International and Comparative Criminal Law (2009).
56. Kreß, 'Nullum crimen, nulla poena sine lege', in R. Wolfrum (ed.), Max Planck Encyclopedia Public Int'l L (forthcoming, on file with author).
57. Ritter von Feuerbach, 'The Foundations of Criminal Law and the Nullum Crimen Principle', 5 J Int'l Crim Justice (2007) 1005
58. von Liszt, 'The Rationale for the Nullum Crimen Principle', 5 J Int'l Crim Justice (2007) 1009
59. Bassiouni, 'Principles of Legality in International and Comparative Criminal Law', in M.C. Bassiouni (ed.), International Criminal Law (2008), i, at 73.
60. Haveman, 'The Principle of Legality', in R. Haveman, O. Kavran, and J. Nicholls (eds), Supranational Criminal Law: A System Sui Generis (2003), at 39.
61. Hall, 'Nulla Poena Sine Lege', 47 Yale LJ (1937) 165
62. Jeffries, Jr., 'Legality, Vagueness, and the Construction of Penal Statutes', 71 Virginia L Rev (1985) 189.
63. Mokhtar, 'Nullum Crimen, Nulla Poena Sine Lege: Aspects and Prospects', 26 Statute L Rev (2005) 41
64. J. Raz, The Authority of Law (1979), at 214-215.
65. E.g., Art. 7(1)(k) ('other inhumane acts of a similar character').
66. App. No. 14307/88, Kokkinakis v Greece, ECHR (1994) Series A, No. 260-A, at para. 52.
67. See Art. 32(2) Rome Statute.
68. US v. Davis, 576 F2d 1065, at 1069 (3d Cir. 1978) (Aldisert, J. concurring), cited in Paust, 'Nullum Crimen and Related Claims', 25 Denver J Int'l L & Policy (1997) 321, at 325
69. '[t]he effect of strict construction of the provisions of a criminal statute is that where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of construction fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself' (emphasis added)
70. Shahabuddeen, 'Does the Principle of Legality Stand in the Way of Progressive Development of Law?', 2 J Int'l Crim Justice (2004) 1007
71. The example Cassese gives is where judges try to determine whether use of a particular weapon offends the general principle prohibiting the use of weapons that are inherently indiscriminate or cause unnecessary suffering. In doing so, they look at weapons prohibitions in treaties to see which weapons have been prohibited for this reason. Judges may then compare the characteristics of these weapons with the characteristics of the new weapon to determine whether the latter violates the aforementioned general principle.
72. One example that Broomhall gives of this is where the Rome Statute and Elements of Crimes do not clearly define the elements that need to be proven in light of a particular set of facts. Here, other provisions of the Statute and Elements may be consulted to aid the Court in its reasoning.
73. The unprecedented detail of Arts 6, 7, and 8 of the Rome Statute will, it is hoped, go a long way to attenuating this problem
74. Emphasis added. This is not to say that the principle of legality is unacceptably compromised: see the introduction to crimes against humanity in the Elements of Crimes.
75. Clear definition of the law in accordance with the legality principle requires that 'the individual can know from the wording of the relevant provision, and if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him liable'
76. Consideration could be given to whether an exception should be made for avoiding absurd results arising from unusual facts which could not have been intended by a 'rational legislator'
77. And Bell Express Vu Limited Partnership v. Rex [2002] 2 SCR 559, at paras 26-30. Akande suggests that, where an ambiguity exists, the legality principle bars resort to travaux préparatoires pursuant to Art. 32 VCLT to resolve it in a manner unfavourable to the suspect or accused.
78. 'Sources of International Criminal Law', in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (2009), at 41, 45.
79. Van Schaack, 'Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals', 97 Georgetown LJ (2008) 119, at 189
80. This evolution bears some resemblance to that experienced in countries where common law offences were gradually codified in or displaced by criminal law statutes
81. Arsanjani, 'The Rome Statute of the International Criminal Court', 93 AJIL (1999) 22, at 28-29
82. Perrin, 'Searching for Law While Seeking Justice: The Difficulties of Enforcing International Humanitarian Law in International Criminal Trials', 39 Ottawa L Rev (2008) 367, at 398
83. Jessberger, 'Bad Torture - Good Torture? What International Criminal Lawyers may Learn from the Recent Trial of Police Officers in Germany', 3 J Int'l Crim Justice (2005) 1059
84. Citing therein for reaching the same conclusion: Gaeta, 'May Necessity be Available as a Defence for Torture in the Interrogation of Suspected Terrorists?', 2 J Int'l Crim Justice (2004) 785
85. On the inapplicability of exclusionary grounds in a case before the Court see also Art. 31(2) Rome Statute and Eser, 'Article 31', in Triffterer.
86. Report of the Preparatory Committee on the Establishment of an International Criminal Court (1998), UN Doc A/CONF.183/2/Add.1, at 47 (fn. 63), 48.
87. Hafner and Binder, 'The Interpretation of Article 21(3) ICC Statute Opinion Reviewed', 9 Austrian Rev Int'l and Eur L (2004) 163, at 166-167
88. Roht-Arriaza, 'Letter to the Office of the Prosecutor on the meaning of Article 21(3)', 14 Dec. 2004, at 2.
89. [999] UNTS 171 (1966)
90. Verhoeven, 'Article 21 of the Rome Statute and the Ambiguities of Applicable Law', 33 Netherlands Yrbk Int'l L (2002) 3, at 17
91. Gallant, 'Individual Human Rights in a New International Organization: The Rome Statute of the International Criminal Court', in M.C. Bassiouni (ed.), International Criminal Law (1999), at 693, 702-703.
92. Emphasis added
93. Art. 53 VCLT.
94. Provides: 'The exercise of the rights provided for in paragraph 2 of this article [which includes freedom of expression] carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals' (emphasis added). On this point, it is interesting to note that the travaux préparatoires for the Genocide Convention reveal a clear intent to exclude hate speech from the definition of this crime and that the ICTR Appeals Chamber held that there is no norm under customary international law criminalizing hate speech.
95. See Nahimana et al. v. Prosecutor, Judgment, ICTR-99-52-A, 28 Nov. 2007, at paras at 221-223, and 376.
96. Orentlicher, 'Criminalizing Hate Speech in the Crucible of Trial: Prosecutor v. Nahimana', 12 New England J Int'l & Comp L (2005) 17.
97. Cassese, 'The Influence of the European Court of Human Rights on International Criminal Tribunals - Some Methodological Remarks', in M. Bergsmo (ed.), Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjørn Eide (2003), at 157.
98. Koskenniemi, 'Study on the Function and Scope of the Lex Specialis Rule and the Question of "Self Contained Regimes"' (2004), UN Doc ILC(LVI)/SG/FIL/CRD.1 and Add.1, at 4.
99. Cited in Droege, 'Elective Affinities? Human Rights and Humanitarian Law', 90(871) Int'l Rev of the Committee of the Red Cross (2008) 501, at 524
100. I am grateful to Thomas Weigend for both of these observations
101. Von Hebel and Robinson, 'Reflections on the Elements of Crimes', in R.S. Lee et al. (eds), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), at 219, 228, emphasis added.
102. [999] UNTS 171. See Art. 72 Rome Statute.
103. Art. 9(3) and (1) Rome Statute, emphasis added.
104. Kirsch, 'Foreword', in K. Dörmann et al., Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), at xiii.
105. Citing US Reference Paper, 'Elements of Offenses for the International Criminal Court', submitted to Preparatory Committee, 27 Mar. 1998.
106. Clark, 'Building on Article 8(2)(b)(xx) of the Rome Statute of the International Criminal Court: Weapons and Methods of Warfare', 12 New Crim L Rev (2009) 366
107. On the convergence and divergence of the definition of genocide in the Rome Statute and customary international law see, e.g., von Hebel and Robinson, 'Crimes within the Jurisdiction of the Court', in R.S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (1999), at 79.
108. McCormack and Robertson, 'Jurisdictional Aspects of the Rome Statute for the new International Criminal Court', 23 Melbourne U L Rev (1999) 25
109. For the same regarding crimes against humanity see, e.g., Boot, Dixon, and Hall, 'Article 7', in Triffterer 167.
110. Robinson, 'The Elements for Crimes Against Humanity', in R.S. Lee et al. (eds), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), at 57.
111. Gaeta, 'The Defence of Superior Orders: The Statute of the International Criminal Court versus Customary International Law', 10 EJIL (1999) 172, at 190
112. Kress, 'War Crimes Committed in Non-International Armed Conflict and the Emerging System of International Criminal Justice', 30 Israel Yrbk Human Rights (2000) 103
113. Jennings, 'The Progressive Development of International Law and its Codification', 24 British Yrbk Int'l L (1947) 301
114. O. Schachter, International Law in Theory and Practice (1991), at 66-68.
115. Lauterpacht, 'Codification and Development of International Law', 49 AJIL (1955) 16, at 17
116. On the different meanings of codification in common and civil law traditions see J.L. Brierly, The Basis of Obligation in International Law and Other Papers (1958), at 338-339.
117. M.E. Villiger, Customary International Law and Treaties (1985), at 126.
118. H.W.A. Thirlway, International Customary Law and Codification (1972), at 28.
119. Dinstein, 'Interaction between Customary International Law and Treaties', 322 Recueil des cours (2006) 243, at 366
120. Wolfke, 'Can Codification of International Law be Harmful?', in J. Makarczyk (ed.), Essays in International Law in Honour of Judge Manfred Lachs (1984), at 313, 314.
121. Citing Brierly, 'The Future of Codification', 12 British Yrbk Int'l L (1931) 1, at 3
122. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Merits Judgment [1986] ICJ Rep 14, at 85
123. Baxter, 'Treaties and Custom', 129 Recueil des cours (1970-I) 25, at 32; Arts 38 and 43 VCLT
124. This distinction is of 'central importance in the context of sources'
125. North Sea Continental Shelf Cases (Germany v. Denmark; Germany v. The Netherlands) [1969] ICJ Rep 3, at paras 60-82.
126. Schachter, 'Entangled Treaty and Custom', in Y. Dinstein (ed.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (1989), at 717, 718.
127. Thirlway, 'The Law and Procedure of the International Court of Justice: 1954-1989, Part Two', 61 British Yrbk Int'l L (1990) 1, at 94
128. H.W.A. Thirlway, International Customary Law and Codification (1972), at 21These indicia are variously identified as having probative value, although some commentators disagree on the relative weight to be given to each of them.
129. 'As the number of parties to a treaty increases, it becomes more difficult to demonstrate what is the state of customary international law dehors the treaty.. .. As the express acceptance of the treaty increases, the number of states not parties whose practice is relevant diminishes.'
130. In the author's view, the Rome Statute's temporal jurisdiction for Security Council referrals related to crimes in Arts 6, 7, and 8 is limited to crimes committed after the Rome Statute's entry into force on 1 July 2002
131. SC Res 1593 (2005), 31 Mar. 2005; Art. 13(b) Rome Statute.
132. Art. 12(3) Rome Statute. Such a declaration may be lodged by a non-state party where a state party has referred a situation to the Court (Art. 13(a)) or the Prosecutor has initiated an investigation in respect of the crime (Art. 13(c)).
133. Gallant, 'Jurisdiction to Adjudicate and Jurisdiction to Prescribe in International Criminal Courts', 48 Villanova L Rev (2008) 763
134. For a different explanation see Sadat and Carden, 'The New International Criminal Court: An Uneasy Revolution', 88 Georgetown LJ (2000) 381, at 406 ff
135. Sadat, 'Custom, Codification and Some Thoughts about the Relationship Between the Two: Article 10 of the ICC Statute', 49 DePaul L Rev (2000) 909, at 919-920, and 923
136. Art. 38 VCLT.
137. R.F. Roxburgh, International Conventions and Third States (1917), at 29, 111 (a state cannot incur legal obligations under a treaty to which it is not a party).
138. ILC, 'Draft Statute for an International Criminal Court', Report of the International Law Commission on its forty-sixth session, 2 May-22 July 1994, UN GAOR, Supp. 10, A/49/10 (1994), at 43.
139. Accordingly, Arts 12(2) and 13(b) of the Rome Statute result in the Court having jurisdiction over 'core crimes' committed anywhere in the world irrespective of any relevant treaty being ratified.
140. On this possibility see 'Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court' (1998), UN Doc A/CONF.183/10, Annex I, Res E.
141. Kirsch, 'Customary International Humanitarian Law, its Enforcement, and the Role of the International Criminal Court', in L. Maybee and B. Chakka (eds), Custom as a Source of International Humanitarian Law: Proceedings of the Conference to mark the Publication of the ICRC Study 'Customary International Humanitarian Law' (2006), at 79, 80.
142. Scheffer, 'The United States and the International Criminal Court', 93 AJIL (1999) 12, at 16
143. Kirsch and Holmes, 'The Birth of the International Criminal Court: The 1998 Rome Conference', 36 Canadian Yrbk Int'l L (1998) 3, at 38
144. Cryer, 'Of Custom, Treaties, Scholars and the Gavel: The Influence of International Criminal Tribunals on the ICRC Customary Law Study', 11 J Conflict & Security L (2006) 239, at 251
145. citing R. Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (2005), Chs 5-6.
146. W.A. Schabas, An Introduction to the International Criminal Court (2nd edn, 2004), at 28.
147. Meron, 'Customary Law', in A. Dworkin and R. Gutman (eds), Crimes of War 2.0: What the Public Should Know (2007).
148. Hunt, 'The International Criminal Court - High Hopes, "Creative Ambiguity" and an Unfortunate Mistrust in International Judges', 2 J Int'l Crim Justice (2004) 56, at 67: '[t]he numerous compromises which were made in order to obtain agreement have, however, caused the Statute and the Elements of Crimes to diverge substantially from the actual content of customary international law as it existed at the time'
149. G. Werle, Principles of International Criminal Law (2005), Preface.
150. Consider in this regard exclusion of the prohibition against the use of weapons of mass destruction
151. Referring to this as a 'decodifying effect' and citing J. Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (2002), at 58.
152. (concerned about retrograde elements freezing legal development); Amnesty International, International Criminal Court: The Failure of States to Enact Effective Implementing Legislation (2004)
153. K. Kittichaisaree, International Criminal Law (2001), at 52. Recall that, when the draft of Art. 10 was discussed in Rome, agreement had not yet been reached on including the crime of aggression in Art. 5: Triffterer, 'Article 10'.
154. Schabas, 'Customary Law or "Judge-Made" Law: Judicial Creativity at the UN Criminal Tribunals', in J. Doria, H.-P. Gasser, and M.C. Bassiouni (eds), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (2009), at 77.
155. Others have suggested that Art. 10 only cuts one way so as to prevent retrogressive but not progressive definitions of crimes in the Rome Statute from influencing custom: Dinstein.
156. E.g., the Statute of the Iraqi Special Tribunal, enacted by the Coalition Provisional Authority (US and UK), and the governing regulations for the Special Panels for Serious Crimes within the District Court of Dili, enacted by the UN Transitional Administration in East Timor ss 4-6 of UNTAET Reg 2000/15), replicate the definitions of genocide, other crimes against humanity, and war crimes in the Rome Statute. Further, the UN Security Council referred the situation in Darfur, Sudan, to the Court, although Sudan has not ratified the Rome Statute: UN Doc S/RES/1593 (2005).
157. Symposium: National Implementation of the Rome Statute of the International Criminal Court, 16 Finnish Yrbk Int'l L (2005)
158. Art. 21(1)(b) Rome Statute.
159. This point is also made by Cryer, 'Royalism and the King: Article 21 of the Rome Statute and the Politics of Sources', 12 New Crim L Rev (2009) 390
160. See also McLachlan, 'The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention', 54 Int'l Comp LQ (2005) 279
161. Chodosh, 'An Interpretive Theory of International Law: The Distinction Between Treaty and Customary Law', 28 Vanderbilt J Transnat'l L (1995) 973, at 1001-1002
162. This presumption of Baxter's was conceived of as a way to address situations where a treaty which is mainly declaratory of custom but not entirely is applied to a non-state party. However, it appears equally useful as an interpretive presumption in the present context.
163. N. Rescher, Presumption and the Practices of Tentative Cognition (2006), at 1.
164. French, 'Treaty Interpretation and the Incorporation of Extraneous Legal Rules', 55 Int'l Comp LQ (2006) 281, at 282-283
165. Separate Opinion of Judge Buergenthal, at 270, para. 28.
166. Separate Opinion of Judge Higgins, at 225, para. 49 (see also para. 47).
167. Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, 4 Mar. 2009.
168. At para. 126, emphasis in the original.
169. [78] UNTS 277 (1948)
170. Kress, 'The Crime of Genocide and Contextual Elements', 7 J Int'l Crim Justice (2009) 297
171. I am grateful to Thomas Weigend for this observation
172. Art. 9(1) Rome Statute provides: 'Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8' (emphasis added).
173. Emphasis added
174. Arts 21 and 22 Rome Statute
175. Lietzau, 'Checks and Balances and Elements of Proof: Structural Pillars for the International Criminal Court', 32 Cornell Int'l LJ (1999) 477, at 482
176. The Elements of Crimes may in places cause more confusion than clarification (see, e.g., nn 5 and 6). The Elements are also said to be creatively ambiguous in places, most famously in respect of the war crime of a direct or indirect civilian population transfer by the Occupying Power into, within, or outside the occupied territory (Art. 8(2)(b)(viii)). Footnote 44 to the Elements of Crimes states, 'The term "transfer" needs to be interpreted in accordance with the relevant provisions of international humanitarian law.'
177. Triffterer, 'Can the "Elements of Crimes" Narrow or Broaden Responsibility for Criminal Behaviour Defined in the Rome Statute?', in C. Stahn and G. Sluiter (eds), The Emerging Practice of the International Criminal Court (2009), at 381, 383.
178. Emphasis added (the meaning of 'otherwise provided' in Art. 30 was not agreed upon at the Rome Diplomatic Conference).
179. Arts 6, 7(1)(k), 7(2)(b), 7(2)(e), 7(2)(f), 7(2)(h), 7(2)(i), 8(2)(b)(i), (ii), (iii), (iv), (ix), (xxiv), (xxv), as well as 8(2)(e)(i), (ii), (iii), and (iv)
180. Art. 8(2)(a)(i), (iii), (vi) and (b)(xxv).
181. Art. 8(2)(a)(iv).
182. I am grateful to Roger Clark for this point. Wantonly is not defined, but the concept of treachery is.
183. Art. 28(a)(i).
184. Triffterer, 'The New International Criminal Law - its General Principles Establishing Individual Criminal Responsibility', 32 Thesaurus Acroasium (2003) 633, at 699
185. Triffterer, 'Command Responsibility, Article 28 Rome Statute, an Extension of Individual Criminal Responsibility for Crimes Within the Jurisdiction of the Court - Compatible with Article 22, nullum crimen sine lege?', in O. Triffterer (ed), Gedächtnisschrift für Theo Vogler (2004), at 213.
186. Art. 25(3)(c).
187. Emphasis added
188. Werle and Jessberger, '"Unless Otherwise Provided": Article 30 of the ICC Statute and Mental Elements of Crimes under International Criminal Law', 3 J Int'l Crim Justice (2005) 35
189. Kelt and von Hebel, 'General Principles of Law and the Elements of Crimes', in Elements of Crimes 29-30: 'States were generally reluctant to deviate from article 30 if this would result in a higher mens rea but flexible if it would lead to a lower one.'
190. Kress, 'The Crime of Genocide under International Law', 6 Int'l Comp L Rev (2006) 461, at 485
191. Heller, 'Mistake of Legal Element, the Common Law, and Article 32 of the Rome Statute: A Critical Analysis', 6 J Int'l Crim Justice (2008) 419, at 435-436
192. 'The words "otherwise provided" in Article 30 can only mean in the Statute'. In an earlier publication, Triffterer hinted at these words having a wider scope: '[t]he wording in article 30 paragraph 1 "unless otherwise provided", covers expressly mentioned exceptions as well as those which can be deduced from the definitions of the crimes or the description of their appearances, as listed, for instance in article 25. .. the exception must be clearly visible, expressly or by inferences from the wording. Otherwise, such an extensive interpretation is prohibited by article 22.
193. Hinting at this possibility is Elewa Badar, 'The Mental Element in the Rome Statute of the International Criminal Court: A Commentary from a Comparative Perspective', 19 Crim L Forum (2008) 473, at 500..
194. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Confirmation of Charges, ICC-01/04-01/06, 29 Jan. 2007, at paras 356-359.
195. Art. 8(2)(b)(xxvi) Rome Statute.
196. Weigend, 'Intent, Mistake of Law and Co-perpetration in the Lubanga Decision on Confirmation of Charges', 6 J Int'l Crim Justice (2008) 471, at 474
197. 'Grossly misstate the position of the drafters of both the Statute and the Elements when they conclude that "[i]n most cases, the mental element is 'otherwise provided"': 'Elements of Crimes in Early Confirmation Decisions of Pre-Trial Chambers of the International Criminal Court', 6 New Zealand Yrbk Int'l L (2008) 209, at 213, n. 14.
198. In the literature, the terms contemporaneity and inter-temporality (or intertemporality) are often used interchangeably, although a distinction has on occasion been drawn between the two concepts
199. Art. 31(3)(c) VCLT.
200. Island of Palmas Case (The Netherlands v. United States), 2 RIAA, (1928), ii, 831, at 845.
201. Rights of Passage over Indian Territory (Portugal v. India), Judgment [1960] ICJ Rep 6, at 37.
202. The Grisbadarna Case (Norway v. Sweden) 11 RIAA (1909) 147, at 159-160.
203. North Atlantic Coast Fisheries Case (Great Britain/United States), 11 RIAA (1910) 167, at 196
204. Abu Dhabi Arbitration [1951] ICJ Rep 144; Rights of Nationals of the United States of America in Morocco (France v. United States of America), Judgment [1952] ICJ Rep 176, at 185-187.
205. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, Advisory Opinion [1971] ICJ Rep 16, at 31
206. Gabćíkovo-Nagymaros Project (Hungary/Slovakia), Judgment [1997] ICJ Rep 7, at paras 104 and 112
207. Aegean Sea Continental Shelf Case (Greece v. Turkey), Judgment [1978] ICJ Rep 3, at 33-34.
208. Waldock, 'Third Report on the Law of Treaties', Yrbk Int'l L Commission (1964), ii, 5, at 8 ff (draft Art. 56).
209. ILC, Summary Records 729th Meeting, Yrbk Int'l L Commission (1964), i, 33 (and an interesting ensuing discussion)
210. See also Mr. Pal's comments at 35, para. 4.
211. J. Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (2003), at 264-265 with respect to the WTO Agreement.
212. Jessup, 'The Palmas Island Arbitration', 22 AJIL (1928) 739 (pointing out that an evolutive approach would undermine legal certainty)
213. Higgins, 'Some Observations on the Inter-Temporal Rule in International Law', in J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century - Essays in Honour of Krysztof Skubiszewski (1997), at 173
214. Higgins, 'Time and the Law: International Perspectives on an Old Problem', 46 Int'l Comp LQ (1997) 501, at 515-519
215. Institut de Droit International, 'The Intertemporal Problem in Public International Law', 56 Annuaire de L'Institut de Droit International (1975) 536, at s. 4.
216. T.O. Elias, The International Court of Justice and Some Contemporary Problems (1983), at 127-129.
217. Pointing out that the interpretation of human rights provisions in an evolutive manner is not an exception to the inter-temporal principle but application of it, consistent with the intention of parties
218. Thirlway, 'The Law and Procedure of the International Court of Justice: 1954-1989, Part One', 60 British Yrbk Int'l L (1989) 1, at 143
219. Emphasis added
220. See Art. 7(1)(g) Rome Statute.
221. See Arts. 7(1)(d) and (2)(d) Rome Statute.
222. Oosterveld, 'The Elements of Genocide', in R. S. Lee et al. (eds), Elements of Crime, at 41, 43.
223. Wald, Interview for The Third Branch (2002), available at: www.uscourts.gov/ttb/mar02ttb/interview.html (accessed 21 Apr. 2010).
224. Bolton, Former Under Secretary for Arms Control and International Security, 'The United States and the International Criminal Court', Remarks to the Federalist Society in Washington, DC 2002, available at: www.iccnow.org/documents/USBoltonFedSociety14Nov02.pdf (accessed 21 Apr. 2010).