The ICC’s Jurisdiction Over War Crimes

Tsilonis, Victor

doi:10.1007/978-3-030-21526-2_5

Victor Tsilonis ORCID: orcid.org/0000-0002-7683-6280²

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Abstract

War crimes clearly could not be omitted from the list of crimes that fall under the ICC’s jurisdiction. While they have been a matter of concern for humanity since ancient times, the question of international jurisdiction over war crimes was first examined in 1919, when the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties examined the existing international legal regime and the principles derived from the 1907 Hague Convention. The actual prosecution of war crimes first took place following the end of World War II before the International Military Tribunals of Nuremberg and Tokyo. Despite the fact that, to a greater or lesser degree, war crimes never ceased to interest legal circles and international news services (Korean war, Vietnam war, war in the former Yugoslavia, first and second Iraq wars etc.), public discourse on the commission of war crimes recently peaked following Navi Pillay’s publication of the findings of a UN inquiry. According to her report, Syrian President Bashar al-Assad carries great responsibility for the commission of many war crimes on both sides of the conflict, which to this day have led to the death of at least 126,000 people.

The present chapter pays great attention to the analysis and interpretation of the following key terms and phrases of Article 8 ICCRSt: (1) the phrase “unless otherwise provided” and the term “wilful(-ly)” which constitute crucial parameters for the mens rea of war crimes under the ICC’s jurisdiction (2) the terms “armed conflict” in conjunction with the phrase “within the established framework of international law” (3) the terms “in particular”, “as part of a plan or policy” or “as part of a large-scale commission” and (4) the term “namely”. Finally yet importantly, the chapter ends with the examination of the ‘phantom’ Article 124 ICCRSt which constitutes a notable exception to the ICC’s jurisdiction over war crimes.

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Notes

1.
The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, Recommendation, Report Presented to the Preliminary Peace Conference, 29 March 1919, (1920) 14 (1-2) AJIL 95-154. However, the contemporary term “war crimes” is mentioned only once in the Report: “In this class the Commission has considered acts not strictly war crimes, but acts which provoked the war or accompanied its inception, such, to take outstanding examples, as the invasion of Luxemburg and Belgium”, page 118. There are nevertheless plenty of formulations that come close to the term “war crime”: “crimes relating to war” 117, “crimes contrary to the laws and customs of war” 142, “certain acts violating the laws and customs of war to be crimes” 146.
2.
I. Black “Bashar al-Assad implicated in Syria war crimes, says UN” The Guardian (London, 2 December 2013) < https://www.theguardian.com/world/2013/dec/02/syrian-officials-involved-war-crimes-bashar-al-assad-un-investigators > (last accessed 8 January 2019).
3.
A. Clapham, Brierly’s Law of Nations, 7th edn (Oxford University Press, Oxford 1994).
4.
Forbidding the use of nuclear weapons is such a thorny issue that even the ICJ stated that it cannot make a judgment on this particular matter! “[I]n view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”, ICC Opinion on the Legality of the Threat οr Use of Nuclear Weapons, 8 July 1996 < https://www.icj-cij.org/files/case-related/95/095-19960708-ADV-01-00-EN.pdf > (last accessed 8 January 2019).
5.
One of the main reasons that India did not sign the ICCRSt. UN Doc. A/CONF.183/SR.9 para 16.
6.
Article 8(2)(b)(xxvi) ICCRSt: Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
Article 8(2)(e)(vii) ICCRSt: Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities.
This particular war crime was the subject of the first ICC decision in the case of Thomas Lubanga Dyilo, which led to the accused’s sentence to 14 years imprisonment. The Prosecutor v Thomas Lubanga Dyilo, Judgment, ICC-01/04-01/06-2842, 14 March 2012, Trial Chamber I < http://www.icc-cpi.int/iccdocs/doc/doc1379838.pdf > (last accessed 8 January 2019). See also: Victor Tsilonis, “Thomas Lubanga Dyilo: A Wavering Step for the International Criminal Court” in Angeliki Pitsela (ed) Criminological Quests: Honorary Volume for Professor Stergios Alexiadis (Sakkoulas 2010) 1039 [in Greek].
7.
Article 8(2)(b)(iii) ICCRSt: 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.
8.
Article 8(2)(a) ICCRSt. See also Articles 49 to 52 of the First Convention, 50 to 53 of the Second, 129 to 131 of the Third, and 146 to 149 of the Fourth Geneva Convention of 12 August 1949 <https://www.icrc.org/en/doc/assets/files/publications/icrc-002-0173.pdf&usg=AOvVaw2QEScZEGFSn17zoEBkQhNs> (last accessed 8 July 2019).
9.
Article 8(2)(b) ICCRSt.
10.
Article 8(2)(c) ICCRSt.
11.
Article 8(2)(e) ICCRSt.
12.
Anna Triponel & Stephen Pearson, “African States and the International Criminal Court: A Silent Revolution in International Criminal Law” (2010) 12 J. L. & Soc. Challenges 65, 72.
13.
The roots of this particular provision can be found in Article 23(d) of the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land < https://ihl-databases.icrc.org/ihl/INTRO/195 > (last accessed 8 January 2019), and is today considered binding for the parties to an international armed conflict. According to the Oxford English Dictionary, this phrase originates from an order by the commander of a victorious army that it “will not quarter (house)” captured enemy combatants. Therefore, none can be taken prisoner and all enemy combatants must be killed. A second, equally prominent, source given for the phrase is Shakespeare Oth. II. iii. 171, where “no quarter” means refusal to enter into an agreement (relations) with an enemy attempting to surrender. “I do not know. Friends all but now, even now, In quarter, and in terms, like bride and groom”.
14.
ICTY, The Prosecutor v Kronjelac, Judgment IT-97-25-T, 15 March 2003, paras 350-360; The Prosecutor v Naletelic and Martinovic, Judgment IT-98-34-T, 31 March 2003 paras 250–261.
15.
W. A. Schabas, The International Criminal Court: A Commentary on The Rome Statute (OUP 2010) 214.
16.
ibid 217.
17.
E. Simeonidou-Kastanidou et al, Τα Εγκλήματα Πολέμου: οι διεθνείς υποχρεώσεις της Ελλάδας και τα αναγκαία μέτρα προσαρμογής [War Crimes: The International Obligations of Greece and the Necessary Adjustment’s Measures] (Nomiki Vivliothiki, Thessaloniki 2006), 230-231.
18.
ibid, emphasis added.
19.
Article 8(2)(b)(vii) -1, Article 8(2)(b)(vii)-2, Article 8(2)(b)(vii)-4 ICCRSt.
20.
Elements of Crimes, Article 8(2)(b)(vii)-1, Article 8(2)(b)(vii)-2, Article 8(2)(b)(vii)-4.
21.
A. Eser, “Mental Elements: Mistake of Fact and Mistake of Law” in A. Cassese et al. (ed) The Rome Statute of the International Criminal Court: A Commentary, vol I (OUP 2002) 933.
22.
The Elements of Crimes were adopted pursuant to Article 9(1) ICCRSt by a two-thirds majority of the members of the Assembly of States Parties and may be amended according to Article 9(2) by the same majority. According to Article 9(3) ICCRSt, however, “[t]he Elements of Crimes and amendments thereto shall be consistent with this Statute”. It appears that the Elements of Crimes, which until then were unknown to most States as a legal instrument, were a proposal made by the US delegation to assist the Court in the interpretation and application of Articles 6, 7 and 8 ICCRSt. Andreas Zimmermann, International Criminal Law and the Current Development of Public International Law (Duncker & Humblot, 2003) 19-20.
23.
Emphasis added. Bemba (ICC-01/05-01/08), Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para 136 < https://www.icc-cpi.int/CourtRecords/CR2009_04528.PDF > (last accessed 8 January 2019).
24.
ibid para 136, 353.
25.
W. A. Schabas, The International Criminal Court: A Commentary on The Rome Statute (OUP 2010) 475; G.Werle, Principles of International Criminal Law (TMC Asser Press, 2005), 108; M. Kelt and H. von Hebel, “General Principles of Criminal Law and the Elements of Crimes” in R.S. Lee (ed) The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley, N.Y.: Transnational Publishers, 2001) 29-30; A. Cassese, International Criminal Law (OUP 2003) 176.
26.
K. J. Heller, “Mistake of Legal Element, the Common Law, and Article 32 of the Rome Statute” (2008) 6 JICJ 419, 435-436; T. Weigend, “The Harmonization of General Principles of Criminal Law” (2004) 19 Nouvelles Etudes Penale 319, 327; K. Ambos, Der Allgemeine Teil des Völkerstrafrechts (Duncker and Humblot, 2002) 789.
27.
Here of course the phrase “absolute majority of all state parties” refers to the state parties that approved the ICC Statute; those States that eventually decided not to sign at the 1998 Conference of Rome include the USA, China, Israel and Russia.
28.
Article 9 - Elements of Crimes
1. 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. 2.
  Amendments to the Elements of Crimes may be proposed by:
  1. (a)
    Any State Party;
  2. (b)
    The judges acting by an absolute majority;
  3. (c)
    The Prosecutor.
  Such amendments shall be adopted by a two-thirds majority of the members of the Assembly of States Parties.
3. 3.
  The Elements of Crimes and amendments thereto shall be consistent with this Statute.
29.
Indicative of this is the fact that the legislators of the ICCRSt at the Rome Conference rejected a different version of Article 9 ICCRSt, which simply stated that the Elements of Crimes “will be applied” by the ICC. Consequently the present from of Article 9 ICCRSt was adopted, which states that the Elements of Crimes “shall assist the Court in the interpretation and application of articles 6, 7, 8 and 8 bis” and that “the Elements of Crimes and amendments thereto shall be consistent with this Statute” (para 1 & 3). This of course happened in order to more clearly define the role of the ICC and the prominent position of its Statute and to avoid any attempts to override it. D.K. Piragoff, “Article 30: Mental Element” in O. Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article (Nomos, 1999) 529; M. Kelt and H. von Hebel, “General Principles of Criminal Law and the Elements of Crimes” in R.S. Lee (ed) The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers, 2001) 7, 24.
30.
G. Werle, Principles of International Criminal Law (TMC Asser Press, 2005) 108.
31.
Article 8(2)(b)(vii) -1, 8(2)(b)(vii) -2, 8(2)(b)(vii)-4 ICCRSt.
32.
Elements of Crimes, Article 8(2)(b)(vii)-1, 8(2)(b)(vii)-2, 8(2)(b)(vii)-4.
33.
Article 8(2)(a) ICCRSt.
34.
Article 8(2)(b) ICCRSt.
35.
Article 8(2)(c) ICCRSt.
36.
Article 8(2)(e) ICCRSt.
37.
N. N. Sadat, The International Criminal Court and the Transformation of International Justice (Transnational Publishers, 2002) 161.
38.
V. Tsilonis, “Monsters in the Mist” (2011) 8 Intellectum 7-8 < http://www.intellectum.org/en/2011/12/13/terata-stin-omixl/ > (last accessed 8 January 2019).
39.
R. Kolb and R. Hyde, An Introduction to the International Law of Armed Conflicts (OUP 2008) 75-76.
40.
That is not the case for the interpretation of Article 7 ICCRSt on crimes against humanity, as analysed in Chap. 4.
41.
J. H. Whitten, “They’re Getting Away with Murder: How the International Criminal Court Can Prosecute U.S. Private Security Contractors for the Nisour Square Tragedy and Why It Should” (2012) 11 Washington University Global Studies Law Review 503, 505.
42.
J. Guan, “The ICC’s Jurisdiction over War Crimes in Internal Armed Conflicts: An Insurmountable Obstacle for China’s Accession?” (2010) 28 Penn St. Int’l L. Rev. 703, 715.
43.
H. Von Hebel & D. Robinson, “Crimes within the Jurisdiction of the Court” in Roy S. Lee (ed) The International Criminal Court: The Making of the Rome Statute Issue, Negotiations, Results (Kluwer Law International 1999) 105.
44.
ibid 107.
45.
ibid 108.
46.
The current author has criticised the fact that the term “international community” essentially refers to the decisions made by global powers, often just the USA alone. V. Tsilonis, “Taming the Waves of International Criminal Justice: The Paradox of Serving (in) Justice through (un)Just Means and the Saddam Hussein’s Case” in M. Zirk-Sadowski & B. Wojciechowski (ed) Dia-Logos (Volume 11) Multicentrism as an Emerging Paradigm in Legal Theory (Peter Lang Publications 2009) 271-289; Noam Chomsky, Who Rules the World? (Metropolitan Books/Henry Holt & Co 2016).
47.
Krissa Lanham, “A Paradox of Prediction: The ICC’s Effect on US Humanitarian Policy in The Sudan” (2005) 2 (1) Eyes on the ICC, 83-98. Of course, the fact that the USA did not oppose the UNSC Resolution on the situation in Darfur and allowed the referral of the situation in Sudan to the ICC had nothing to do with a change in their stance towards the ICC, but simply served their own interests in Africa. This is verified by the stance they have retained to this day. See for example the 2008 speech of the Bush Administration Legal Adviser John Bellinger where he clarified that: “In a nutshell, I will argue that the United States’ fundamental concerns about the ICC have been remarkably consistent across successive Administrations and Congresses controlled by both Democrats and Republicans. And in the absence of significant changes to the Rome Statute to address these concerns, it is unlikely that the United States will become a party to the Rome Statute any time in the foreseeable future. Accordingly, the future of the relationship between the United States and the ICC will be defined mainly by the extent to which the United States and ICC supporters can agree to disagree about the Rome Statute and find constructive and practical ways to work together to advance our shared interest in promoting international criminal justice.” John. B. Bellinger, “The United States and the International Criminal Court: Where We’ve Been and Where We’re Going” (Remarks to the DePaul University College of Law) < https://2001-2009.state.gov/s/l/rls/104053.htm > (last accessed 8 January 2019).
48.
American Service-Members’ Protection Act of 2002 < https://2001-2009.state.gov/t/pm/rls/othr/misc/23425.htm > (last accessed 8 January 2019).
49.
J. H. Whitten “They’re Getting Away with Murder: How the International Criminal Court Can Prosecute U.S. Private Security Contractors for the Nisour Square Tragedy and Why it Should” (2012) 11 Wash. U. Global Stud. L. Rev. 503-522.
50.
Article 10 ICCRSt: 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.
51.
“Under customary international law, war crimes do not have to be committed as part of a plan or policy or large-scale set of crimes and it would be illogical and not policy serving to impose a limitation by interpreting the phrase ‘in particular’ differently than its ordinary meaning.” Jordan J. Paust, “The International Criminal Court Does Not Have Complete Jurisdiction Over Customary Crimes Against Humanity and War Crimes” (2010) 43 J. Marshall L. Rev. 681, 701.
52.
W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (OUP 2010) 199.
53.
ibid 200.
54.
Mahnoush H. Arsanjani, “The Rome Statute of the International Criminal Court” (1999) 93 AJIL 22, 33.
55.
Nonetheless, the letter itself reads ambiguously: “For war crimes, a specific gravity threshold is set down in Article 8(1), which states 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 threshold is not an element of the crime, and the words ‘in particular’ suggest that this is not a strict requirement. It does, however, provide Statute guidance that the Court is intended to focus on situations meeting these requirements. According to the available information, it did not appear that any of the criteria of Article 8(1) were satisfied.” Luis-Μoreno Ocampo, OTP Letter to Senders for the situation in Iraq, 9 February 2006 < http://www.iccnow.org/documents/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf > (last accessed 8 January 2019). Daniel Benoliel & Ronen Perry, “Israel, Palestine and the ICC” (2010) 32 MJIL 73, 93.
56.
ICC Appeals Chamber, Judgement on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I Entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58” ICC-01/04 13 July 2006 para 70 < https://www.icc-cpi.int/CourtRecords/CR2006_01807.PDF > (last accessed 8 January 2019).
57.
ICC Pre-Trial Chamber II, Bemba Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08, 15 June 2009, para 211 < https://www.icc-cpi.int/CourtRecords/CR2009_04528.PDF > (last accessed 8 January 2019).
58.
G. Venturini, “War Crimes in International Armed Conflicts” in Mario Politi & Giuseppe Nesied (eds) The Rome Statute of the International Criminal Court: A Challenge to Impunity (2001) 95-99.
59.
M. M. de Guzman, “How Serious Are International Crimes? The Gravity Problem In International Criminal Law” (2012) 51 Colum. J. Transnat’l L. 18, 23.
60.
ibid.
61.
ibid.
62.
R. McClure, “International Adjudication Options in Response to State-Sponsored Cyberattacks Against Outer-Space Satellites” (2012) 18 New Eng. J. Int’l & Comp. L. 431, 436.
63.
J. J. Praust, “The International Criminal Court Does Not Have Complete Jurisdiction Over Customary Crimes Against Humanity and War Crimes” (2010) 43 JMLR, (681) 701.
64.
ibid.
65.
Jordan J Paust, “Commentary on Parts 1 and 2 of the Zutphen Intersessional Draft” in Leila Sadat Wexler (ed) Observations on the Consolidated ICC Text Before the Final Session of the Preparatory Committee, 13bis Nouvelles Etudes Penales 27, 29.
66.
International Law Commission, Final Report (1994) 36-37, 42-43.
67.
W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (OUP 2010) 1193.
68.
ibid 1193.
69.
E. Wilmshurst, “Jurisdiction of the Court” in R. S. Lee (ed), The International Criminal Court: The Making of the Rome Statute (Kluwer Law International, 1999) 139-141.
70.
This “grace” period for crimes allegedly committed by French citizens or in French territory expired on 30 June 2009. Its revocation was submitted by the French representative on 13 August 2008, although the document itself is dated 15 June 2008. ibid 1193-1194.
71.
W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, 1192, 1994.
72.
ibid 1194.

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Tsilonis, V. (2019). The ICC’s Jurisdiction Over War Crimes. In: The Jurisdiction of the International Criminal Court. Springer, Cham. https://doi.org/10.1007/978-3-030-21526-2_5

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DOI: https://doi.org/10.1007/978-3-030-21526-2_5
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