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The Territorial Jurisdiction of the International Criminal Court — A Jurisdictional Rule of Reason for the ICC?

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Abstract

The territorial scope of the jurisdiction of the International Criminal Court was an issue which was hotly debated prior to the adoption of the Rome Statute. Yet, in the first 10 years of the Court’s operation the negotiators’ concerns with regard to a jurisdictional overreach seem to have been misplaced. To date, the interpretation and application of Article 12(2) (a) of the Rome Statute — the key provision in this context — have remained uncontroversial. This practice, however, has left certain important questions untouched, and particularly the issue of jurisdiction in cases of the partial commission of a crime on State Party territory. In this context, the question is how little of an international crime should take place on State Party territory for the ICC to have jurisdiction. It is hereby suggested that in order to answer this question, the Court may have recourse to the jurisdictional rule of reason developed by Francis Mann in the context of his work on state jurisdiction and antitrust law. In this context, it is suggested that the Court would have jurisdiction over any case or situation that would have a sufficiently strong connection with the territory of a State Party. The meaning of a ‘sufficiently strong connection’ — an essential ‘reasonableness’ approach, showing the absence of an abuse of rights or arbitrariness — would then need to be specified on a case-by-case basis.

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References

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  16. See infra, section 5.2.

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  18. Ibid., p. 44.

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  20. Mann, supra n. 17, pp. 44–45.

  21. Ibid., p. 16.

  22. Ibid.

  23. Ibid., p. 30.

  24. Ibid.

  25. Ibid., p. 46.

  26. Ibid.

  27. Ibid., pp. 46–47.

  28. Ibid., p. 47.

  29. Ibid., p. 16.

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  33. K. Kittichaisaree, International Criminal Law (Oxford, Oxford University Press 2001) p. 39, who adheres to the view that criminal jurisdiction is primarily territorial, while extraterritorial jurisdiction, in the form of nationality or other jurisdictional rules, may also be exercised.

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  36. Case concerning Certain Criminal Proceedings in France (Democratic Republic of the Congo v. France), Pleadings, Session of 28 April 2003, ICJ Rep. (2003) p. 4, para. 10.

  37. Ibid., p. 4, para. 11.

  38. Mr. Timothy Kirkhope, Under-Secretary of State, Home Office, debates on the Jurisdiction (Conspiracy and Incitement) Bill, House of Commons, reported in 68 BYIL (1997) p. 575 at p. 576.

  39. Ibid., p. 577. See also the Judgment of the Judicial Committee of the Privy Council in the case of Somchai Liangsiripraesert v. United States, 29 ILM (1990) p. 1390 at p. 1396: ‘Asabroad general statement it is true to say that English criminal law is local in its effect and that the common law does not concern itself with crimes committed abroad.’

  40. Libman v. The Queen, [1985] 2 SCR 178, 200 (Supreme Court of Canada). The facts involved telephone solicitation from the suspect’s employees in Canada to potential investors in the United States, selling virtually worthless shares in gold mines in Central America. The victims wired the money to Panama and Costa Rica, where the suspect collected his share. The issue was whether the Canadian courts had jurisdiction to try the telephone fraud, considering that the victims were US nationals, the money was sent to Central America and the actual deprivation of property took place beyond Canada. The Court found that it had jurisdiction on the basis of a ‘real and substantial link’ to the case. The Canadian Supreme Court, however, seems to have made an important oversight when it stated that ‘Just what may constitute a real and substantial link in a particular case, I need not explore. There are ample links here. The outer limits of the test may, however, well be coterminous with the requirements of international comity [emphasis added].’ As explained in the work of none less than Hersh Lauterpacht, Robert Jennings and Francis Mann, comity indicates discretion, whereas law signifies legal obligations. It is international law that provides the limits to jurisdictional assertions, rather than a question of courtesy, amity, neighbourly feeling and reciprocity. H. Lauterpacht, ‘Allegiance, Diplomatic Protection and Criminal Jurisdiction over Aliens’, 8 Cambridge LJ (1947) p. 330 at p. 331; F. Mann, ‘The Doctrine of International Jurisdiction Revisited after 20 Years’, in FA. Mann, ed., Further Studies in International Law (Oxford, Clarendon 1990) p. 72; R. Jennings, ‘The Limits of State Jurisdiction’ (1962), in Collected Writings of Sir Robert Jennings, Vol. 2 (The Hague, Kluwer Law International 1998) pp. 887–888, fn. 5. For a clearer example of application, in the case concerning the extradition of Mr. Lépine to the United States, the Supreme Court of Canada considered that the refurbishing in Florida of an aircraft that would carry cocaine from Colombia to Canada via the United States, the agreement to do so and to fly it to Colombia to pick up drugs for delivery in Nova Scotia, together with the fact that the said aircraft landed in US territory even before the landing that led to the arrest, constituted ‘a real and substantial link’ to the United States, which were thus considered to have legitimately exercised jurisdiction against the appellant for conspiracy to distribute cocaine. United States v. Lépine, Supreme Court of Canada, Judgment of 24 February 1994, 1 SCR 286 (1994), per LaForest J, para. 15 of the Judgment.

  41. Solicitor-General v. Reid, [1997] 3 NZLR 617, 631–632 (New Zealand Court of Appeals).

  42. In Re Jorgic, Federal Republic of Germany, Federal Constitutional Court (BVerfG), 12 December 2000, 135 1LR p. 152.

  43. Although in Rosenstein the Supreme Court of Israel stated that this is only one of the pertinent considerations to be taken into account, rather than a hard-and-fast ‘rule of decision’. Ze’ev Rosenstein v. Israel, Appeal Judgment of 30 November 2005 (Extradition), Crim. A. 4596/05, reported in Oxford Reports on International Law in Domestic Courts (hereinafter: ILDC) 159 (IL 2005), para. 46.

  44. American Law Institute, supra n. 34, p. 254, section 403. The reasonableness analysis, in the opinion of those authors, ‘has emerged as a principle of international law as well’. For the same approach in the field of private international law, G. Born, ‘Reflections on Judicial Jurisdiction in International Cases’, 17 Georgia JICL (1987) p. 1 at p. 19.

  45. Morgan, supra n. 32, p. 250.

  46. The use of the word ‘conduct’ in Art. 12(2)(a) is best attributed to a drafting oversight in Rome, as opposed to a conscious effort on the part of the drafters to limit the Court’s jurisdiction by excluding jurisdiction based on the territory where the consequences of the crime took place.

  47. Office of the Prosecutor, Report on the Activities Performed during the First Three Years (June 2003–June 2006), 12 September 2006, p. 7, available at www.icc-cpi.int/NR/rdonlyres/D76A5D89-FB64-47A9-9821-725747378AB2/143680/OTP_3yearreport20060914_English.pdf (last visited 23 August 2011). Further, W.A. Schabas, ‘Prosecutorial Discretion v. Judicial Activism at the International Criminal Court’, 6 JICJ (2008) p. 731 at p. 752.

  48. Usually, as the situations referred to the Court have been uncontroversial as far as territorial jurisdiction is concerned, the Chambers involved have paid very limited attention to the territorial aspect of the Court’s jurisdiction. See entirely indicatively, Prosecutor v. Katanga, Case No. ICC-01/04-01/07, Warrant of Arrest, Pre-Trial Chamber I, 2 July 2007, p. 3; Prosecutor v. Mathieu Ngudjolo Chui, Case No. ICC-01/04-02/07, Warrant of Arrest, Pre-Trial Chamber I, 6 July 2007, p. 3; Situation in Uganda, Case No. ICC-02/04, Warrant of Arrest for Joseph Kony issued on 8 July 2005 as amended on 27 September 2005, Pre-Trial Chamber II, 27 September 2005, para. 34; Situation in Centr. Afr. Rep., Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Pre-Trial Chamber III, 10 June 2008, para. 11. Evidently, since at the time of writing no final decisions from a Trial Chamber have yet been issued, it is premature to speak of a general cursory examination of Art. 12. However, the fact that no objections on territorial jurisdiction have been filed and the fact that the cases occurred squarely within the territory of the States Parties involved suffice to suggest that the Court’s territorial jurisdiction will not be at the forefront of the Court’s case law at any time soon.

  49. Case C-334/00 Fonderie Officine Meccaniche Tacconi SpA v. Heinrich Wagner Sinto Maschinenfabrik GmbH (HWS), [2002] ECR I-7357, para. 20.

  50. Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 0/1972 L 299/32-42.

  51. Case C-21/76 Handelskwekerij Bier v. Mines de potasse d’Alsace, [1976] ECR 1735, paras. 17–23.

  52. Tacconi, supra n. 49, paras. 20–21.

  53. Ibid.

  54. Indicatively, X. v. Austria, Appl. No. 1931/63, Decision of 2 October 1964, 7 Yearbook of the European Convention on Human Rights (1964) p. 212 at p. 222; Maaouia v. France, Appl. No. 39652/98, Judgment of 5 October 2000, 33 EHRR (2001) p. 1037, para. 34.

  55. Engel and others v. The Netherlands, Appl. Nos. 5100/71, 5101/71, 5102/71, 5354/72, 5370/72 (Plenary), Judgment of 8 June 1976, paras. 80–82.

  56. Situation in Dem. Rep. Congo, Case No. ICC-01/04, Judgment 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’, Appeals Chamber, 13 July 2006, Separate and Partly Dissenting Opinion of Judge Pikis, para. 29.

  57. See as regards, for example, modes of liability in the Lubanga case, F. Jessberger, ‘A Substantive Criminal Law Perspective’, in ‘Discussion’, 6 Journal of International Criminal Justice (2008) p. 763 at 778.

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  58. Prosecutor v. Dražen Erdemović, IT-96-22, Judgment, ICTY, Appeals Chamber, 7 October 1997, Separate and Dissenting Opinion of Judge Cassese, paras. 2–6.

  59. Lubanga Extraordinary Review Appeal, supra n. 14, paras. 27–38.

  60. Ibid., para. 24. An additional problem is the Court that would ‘normally exercise jurisdiction’; for this issue, see the approach in Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision on the Practices of Witness Familiarisation and Witness Proofing, Pre-Trial Chamber I, 8 November 2006, paras. 35–40.

  61. For example, Strafgesetzbuch [Penal Code], 13 November 1998, Reichsgesetzblatt I, 945, 3322, § 9 (Ger.), provides as follows: ‘Section 9 Place of the Act (1) An act is committed at every place the perpetrator acted or, in case of an omission, should have acted, or at which the result, which is an element of the offense, occurs or should occur according to the understanding of the perpetrator. (2) Incitement or accessoryship is committed not only at the place where the act was committed, but also at every place where the inciter or accessory acted or, in case of an omission, should have acted or where, according to his understanding, the act should have been committed. If the inciter or accessory in an act abroad acted domestically, then German criminal law shall apply to the incitement or accessoryship, even if the act is not punishable according to the law of the place of its commission.’ The official translation is reproduced at www.iuscomp.org/gla/statutes/StGB.htm#9 (last visited 12 December 2011). Similarly, in Switzerland, Schweizerisches Strafgesetzbuch [Criminal Code] 21 December 1937, SR 757 (1938), as amended by Gesetz, 4 October 1991,.AS 2465 (1992), Art. 8 (Switz.), provides as follows: ‘Article 8 1. Un crime ou un délit est réputé commis tant au lieu où l’auteur a agi ou aurait dû agir qu’au lieu où le résultat s’est produit. 2. Une tentative est réputée commise tant au lieu où son auteur l’a faite qu’au lieu où, dans l’idée de l’auteur, le résultat devait se produire.’ The official text is reproduced at www.admin.ch/ch/f/rs/c311_0.html (last visited 12 December 2011).

  62. Assembly of States Parties, Report of the Special Working Group on the Crime of Aggression, ICC-ASP/7/20, Annex III, para. 28, Seventh Session of the Assembly of States Parties (14–22 November 2008); Assembly of States Parties, Report of the Special Working Group on the Crime of Aggression, ICC-ASP/7/SWGCA/2, paras. 38–39, 7th Session of the Assembly of States Parties (Second Resumption) (9–13 February 2009); Assembly of States Parties, Informal Inter-sessional Meeting on the Crime of Aggression hosted by the Liechtenstein Institute on Self-Determination, Woodrow Wilson School, at the Princeton Club, New York, from 8 to 10 June 2009, ICC-ASP/8/ INF.2, para. 5, Non-Paper by the Chairman on the conditions for the exercise of jurisdiction.

  63. Well-known cases include Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (1976, 9th); Mannington Mills v. Congoleum Corporation, 595 F.2d 1287, 1297–1298 (3rd Circ., 1979); Laker Airways Ltd. v. Sabena, 731 F.2d 909, 937–938, 950 (DC Cir., 1984); Rio Tinto Zinc Corpn v. Westinghouse, [1978] AC 547, 639 (Eng.) (per Lord Diplock); a useful collection on the topic is produced by V. Lowe, Extraterritorial Jurisdiction, An Annotated Collection of Legal Materials (Cambridge, Grotius 1983).

  64. American Law Institute, supra n. 34, p. 254, section 403.

  65. Ibid., p. 246.

  66. J. Velu and R. Ergec, La Convention européenne des Droits de l’Homme (Brussels, Bruylant 1990) p. 441, no. 519: ‘s’il est un concept à contenu variable, réfractaire à toute approche dogmatique, c’est bien celui de “raisonnable”’. Further, N. MacCormick, ‘On Reasonableness’, in C. Perelman and R. Vander Elst, Les notions à contenu variable en droit (Brussels, Bruylant 1984) pp. 131–156; J. Salmon, ‘Le concept de raisonnable en droit international public’, in D. Bardonnet, et al., Mélanges offerts à Paul Reuter: le droit international: unité et diversité (Paris, Pedone 1981) pp. 448–478.

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  67. CL. Blakesley, ‘Extraterritorial Jurisdiction’, in M.Ch. Bassiouni, ed., International Criminal Law, Vol. 2, 3rd edn. (Leiden, Martinus Nijhoff 2008) pp. 94–95 (referring to the difficulties in understanding reasonableness between Anglo-American and other lawyers).

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  68. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS p. 331, 8 ILM (1969) p. 679, Art. 31(3)(c), which provides that ‘3. There shall be taken into account, together with the context: … (c) any relevant rules of international law applicable in the relations between the parties.’ From ICJ jurisprudence on the topic, Oil Platforms (Iran v. United States), Judgment of 6 November 2003, ICJ Rep. (2003) p. 161 at p. 182, para. 41. The locus classicus by now for the interpretation of the Statute in ICC jurisprudence is the Lubanga Extraordinary Review Appeal, supra n. 14, para. 33.

  69. For the status of the rule under customary law, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Judgment of 27 June 1986, ICJ Rep. (1986) p. 14 at p. 106, para. 202.

  70. Para. 8 of the Preamble to the Rome Statute provides that ‘Emphasizing 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.’ One could potentially argue here that, since the States Parties are not allowed to violate this principle, neither can the Court, which operates by delegation of authority from these states. For the value of the Preamble in the context of interpretation, see Art. 31(2) VCLT and the Lubanga Extraordinary Review Appeal, supra n. 14.

  71. For non-intervention and jurisdiction, see recently M. Jamnejad and M. Wood, ‘The Principle of Non-Intervention’, 22 Leiden JIL (2009) p. 345 at p. 347 and from earlier studies H.D. Wolswijk, ‘Locus Delicti and Criminal Jurisdiction’, 66 NILR (1999) p. 361 at p. 381. For the binding effect of general rules of international law on international organizations, Interpretation of Agreement of 25 March 1951 between WHO and Egypt, Advisory Opinion of 20 December 1980, ICJ Rep. (1980) pp. 89–90, para. 37.

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  72. In Re Jorgic, supra n. 42, p. 152.

  73. Ibid., p. 165. The German Federal Constitutional Court stated that ‘With regard to the prohibition on interference with State sovereignty that is enshrined in both customary and treaty law (Article 2(1) of the UN Charter), the Federal Constitutional Court has required some reasonable nexus with Germany when subjecting to German law all acts performed in a foreign territory and therefore outside German territory. What constitutes a reasonable nexus is dependent on the particular nature of the subject of regulation…’ Further, Evgeny Adamov v. Federal Office of Justice, Switzerland, Federal Tribunal, Judgment of 22 December 2005, ATF 132 II 81, para. 3.4.3, ILDC 339 (CH 2005) (‘In accordance with the general principles of international law, a domestic criminal justice system should avoid intervening in the internal affairs of other States’).

  74. Particularly in cases of universal jurisdiction, national courts were torn on the issue of whether rules of criminal jurisdiction are rules of procedure or of substance — in the latter case subject to the principle of legality. See the discussion in R. v. Finta, Canada (1989), 82 ILR p. 425, Judgment (High Court of Justice); R. v. Finta (1992), 98 ILR p. 520, Judgment (Can. Ont. CA); R. v. Pinta (1994), 104 ILR p. 284, Judgment (SCC); R. Wijngaarde and R.A. Hoost v. Desire Delano Bouterse, Court of Appeal of Amsterdam, 20 November 2000, 32 NYIL (2001) p. 266; Idem, Appeal in Cassation in the Interests of the Law, Supreme Court of the Netherlands, 18 September 2001, 32 NYIL (2001) p. 282; Arbitragehof [Constitutional Court], decision no. 73/2005, 20 April 2005, ILDC 9 (BE 2005) (Bel.).

  75. Ould Dah v. France, Appl. No. 13113/03, 17 March 2009. This ruling should be taken with a pinch of salt; first, the finding that Art. 7 does not apply to questions of jurisdiction is an obiter dictum and, secondly, it does not refer to Arts. 22–24 ICC Statute, which would purport to exclusively regulate legality for the purposes of the Statute. The best position seems to be that Arts. 22–24 ICC Statute apply only to the substantive definitions of crimes under the Statute. M. Boot, Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court (Antwerp, Intersentia 2002) pp. 378–379. Contra W. Schabas, An Introduction to the International Criminal Court, 3rd edn. (Cambridge, Cambridge University Press 2007) p. 201, who leaves this possibility open.

  76. Lubanga Confirmation Decision, supra n. 7, p. 17, para. 34, where the Appeals Chamber indicated that if a matter is exhaustively dealt with in the sources in Art. 21(1)(a), ‘in that case no room is left for recourse to the second or third source of law to determine the presence or absence of a rule governing a given subject’.

  77. The Appeals Chamber has defined the term ‘lacuna’ in the Rome Statute as follows: ‘No gap is noticeable in the Statute with regard to the power claimed [the power to file appeals against decisions of the Pre-Trial Chamber refusing leave to appeal], in the sense of an objective not being given effect to by its provisions. The lacuna postulated by the Prosecutor is inexistent.’ Lubanga Extraordinary Review Appeal, supra n. 14, para. 39.

  78. Prosecutor v. Al-Bashir, Case No. ICC-02/05-01/09-3, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al-Bashir, Pre-Trial Chamber 1, 4 March 2009, p. 18, para. 44, made the following remark: ‘…the consistent case law of the Chamber on the applicable law before the Court has held that, according to article 21 of the Statute, those other sources of law provided for in paragraphs (1)(b) and (1)(c) of article 21 of the Statute, can only be resorted to when the following two conditions are met: (i) there is a lacuna in the written law contained in the Statute, the Elements of Crimes and the Rules; and (ii) such lacuna cannot be filled by the application of the criteria of interpretation provided in articles 31 and 32 of the Vienna Convention on the Law of the Treaties and article 21(3) of the Statute’, referring to its previous decision, Prosecutor v. Lubanga, Case No. ICC-01/04-168, Appeals Chamber, 13 July 2006, paras. 22–24, 32–33, 39.

  79. Prosecutor v. Lubanga, Case No. ICC-01/04-01/06-803-tEN, Decision on the Confirmation of Charges, Pre-Trial Chamber I, 29 January 2007, para. 205. ‘The Chamber observes that neither the Statute nor the Elements of Crimes provide a definition of an international armed conflict for the purposes of article 8(2)(b). Only footnote 34 of the Elements of Crimes states that the terms “international armed conflict” includes military occupation. Accordingly, the Chamber finds that, pursuant to article 21(1)(b) of the Statute, and with due regard to article 21(3) of the Statute, it is useful to rely on the applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict’; ibid., paras. 206–225, the Chamber then had recourse to Common Art. 2 of the Geneva Conventions, ICTY and ICJ jurisprudence.

  80. See supra n. 77.

  81. This would be for example the case for the Netherlands, where under Art. 2 of the Dutch Penal Code ‘The criminal law of the Netherlands is applicable to any person who commits a criminal offence within the Netherlands.’ G. van den Heuvel, et al., eds., The Dutch Penal Code (Littleton, CO, Rothman 1997) p. 35. Similarly for the Republic of Korea, Criminal Code, Art. 2, ‘This Code shall apply both to Korean nationals and to aliens who commit crimes within the territory of the Republic of Korea.’ G Mueller, ed., The Korean Criminal Code (South Hackensack, NJ, Rothman 1960) p. 33.

  82. Wolswijk, supra n. 71, pp. 366–367, 372. This is one of the classic reference works on state criminal jurisdiction.

  83. C. Ryngaert, ‘Territorial Jurisdiction over Cross-Frontier Offences: Revisiting a Classic Problem of International Criminal Law’, 9 International Criminal L Rev. (2009) p. 187 at p. 188.

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  84. M. Hirst, Jurisdiction and the Ambit of Criminal Law (Oxford, Oxford University Press 2003) and his earlier work M. Hirst, ‘Jurisdiction over Cross-Frontier Offences’, 97 LQR (1981) p. 80.

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  85. I. Bantekas, ‘Head of State Immunity in the Light of Multiple Legal Regimes and Non-Self-contained System Theories’, 10 J Conflict and Security L (2005) p. 21 at p. 36.

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  1. International LLB Program, The Hague University of Applied Sciences, The Hague, the Netherlands

    Michail Vagias PhD, LLM (adv) (Hons), LLB (Lecturer, Academy of Management, Law and Safety)

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Vagias, M. The Territorial Jurisdiction of the International Criminal Court — A Jurisdictional Rule of Reason for the ICC?. Neth Int Law Rev 59, 43–64 (2012). https://doi.org/10.1017/S0165070X12000034

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