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Genocide (Article 28B), Crimes Against Humanity (Article 28C), War Crimes (Article 28D) and the Crime of Aggression (Article 28M)

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The African Criminal Court

Part of the book series: International Criminal Justice Series ((ICJS,volume 10))

Abstract

The section on jurisdiction (“International Criminal Jurisdiction of the Court”) in the Annex to the Malabo Protocol contains among the 14 (sic!) crimes or crime groups the four core crimes recognized by the Statute of the International Criminal Court (ICC Statute), i.e., genocide, crimes against humanity, war crimes and the crime of aggression. While these provisions are largely modeled upon those of the ICC Statute, they also extend the latter’s scope, either by broadening the chapeau (in the case of crimes against humanity) or by adding new underlying acts (in the case of genocide, war crimes, and the crime of aggression). At the same time, the opportunity to improve upon certain flaws in the drafting of the crimes contained in the ICC Statute has been missed. The chapter takes a critical look at the changes vis à vis the crimes in the ICC Statute and highlights some of the opportunities for improvement which have been neglected.

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Notes

  1. 1.

    Ambos 2014, p. 11 with references in nn. 68–69.

  2. 2.

    Ambos 2014, p. 14.

  3. 3.

    Akayesu, No. ICTR-96-4-T, para 507.

  4. 4.

    Ibid., para 508.

  5. 5.

    On expressivism in International Criminal Law see Drumbl 2007, pp. 173 et seq. and, more recently, Werkmeister 2015, pp. 272 et seq.; with regard to positive general prevention see Ambos 2013, pp. 71–72.

  6. 6.

    See on the respective discussion Schabas 2009, pp. 153–165.

  7. 7.

    See Article 101 of the Criminal Code of Colombia (“El que con el propósito de destruir total o parcialmente un grupo nacional, étnico, racial, religioso o político, por razón de su pertenencia al mismo, ocasionare la muerte de sus miembros […]” [emphasis added]).

  8. 8.

    See Ambos 2014, pp. 52, 55, 63 et seq.

  9. 9.

    Akayesu, No. ICTR-96-4-T, para 581. See also Pre-Trial Chamber II, Situation in the Republic of Kenya, No. ICC-01/09-19, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, para 80 (31 March 2010): “a campaign or operation carried out against the civilian population”, albeit not limited to a “military operation” (referring to para 3 of the Introduction to Article 7 in the Elements of Crimes, UN Doc. PCNICC/2000/1/Add.2).

  10. 10.

    See Ambos 2014, pp. 58–59.

  11. 11.

    See Ambos, in Triffterer/Ambos 2016, Article 25 marginal no. 9.

  12. 12.

    See in this vein the definition in the Oxford Advanced Learner’s Dictionary 2015, p. 512: “[A] large project, especially one that is difficult.”

  13. 13.

    Garner 2004, p. 572.

  14. 14.

    See e.g. Article 7 of the International Covenant on Civil and Political Rights which distinguishes between the two.

  15. 15.

    European Court of Human Rights, Ireland v. the United Kingdom, 18 January 1978, Case No. 5310/71, para 167.

  16. 16.

    European Court of Human Rights, Tyrer v. UK, Judgment 25 April 1978, Case No. 5856/72, para 30.

  17. 17.

    European Court of Human Rights, Soering v. UK, Judgment 7 July 1989, Case No. 14038/88, para 100.

  18. 18.

    See Grabenwarter 2014, Article 3 marginal no. 4.

  19. 19.

    As defined in Article 7(3) of the ICC Statute.

  20. 20.

    Article 7(1)(h) of the ICC Statute.

  21. 21.

    For a further explanation of the persecution crime see Ambos 2014, pp. 104–108.

  22. 22.

    See Ambos 2014, pp. 118–119.

  23. 23.

    See Dörmann, in Triffterer/Ambos 2016, Article 8 marginal no. 55 (“practical guideline”); see also Tadić, No. ICTY-IT-94-1-T, Opinion and Judgment, 7 May 1997, para 573 and Delalic et al., No. ICTY-IT-96-21-T, Judgment, 16 November 1998, para 195.

  24. 24.

    See Article 56(2) of the Additional Protocol I according to which the protection “shall cease” if the respective installation is used “in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support.”

  25. 25.

    This part reads: “provided that such weapons, projectiles and Materials and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123.”

  26. 26.

    See Article 23(e) of the Annex to the Hague Convention IV (“In addition to the prohibitions provided by special Conventions, it is especially forbidden […] To employ arms, projectiles, or material calculated to cause unnecessary suffering.”) and the Declaration of St. Petersburg of 1868 (stating that legitimate warfare “would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable” and that “the employment of such arms would, therefore, be contrary to the laws of humanity”).

  27. 27.

    See International Court of Justice, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996, paras 74-87 (while not finding a specific rule regarding nuclear weapons, see also infra note 51, the Court refers to the principles and rules of international humanitarian law, especially the principles of humanity and distinction).

  28. 28.

    See Customary International Humanitarian Law I 2005, rule 70, p. 237 (“The use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering is prohibited.”) and rule 71, p. 244 (“The use of weapons which are by nature indiscriminate is prohibited.”). See also rule 73, p. 256 (“The use of biological weapons is prohibited.”) and rule 74, p. 259 (“The use of chemical weapons is prohibited.”). See also Cottier and Křivánek, in Triffterer and Ambos 2016, Article 8 marginal no. 566 (distinguishing between two approaches: “On the one hand, a general principle of humanitarian law prohibits the use of means of warfare that cause superfluous injury or unnecessary suffering or are inherently indiscriminate, leaving it to practice to specify what types of weapons and other means of warfare are thereby excluded. On the other hand, certain weapons are banned per se under specific treaties and customary international law.”) and Dörmann, in Triffterer and Ambos 2016, Article 8 marginal no. 203 (“The ICJ in its advisory opinion on nuclear weapons has equated the use of indiscriminate weapons with a deliberate attack on civilians.”).

  29. 29.

    See Cottier and Křivánek, in Triffterer and Ambos 2016, Article 8 marginal no. 571; see also ibid., marginal no. 609 (arguing that the “provided that” part is superfluous, “since States Parties to the Rome Statute are free to add new crimes to the Rome Statute regardless of this specific provision.”).

  30. 30.

    See in contrast Article 8 (2)(e)(vi) of the ICC Statute and here para (e)(vii).

  31. 31.

    Lubanga, No. ICC-01/04-01/06-803-tEN, para 277.

  32. 32.

    Ambos 2014, p. 179.

  33. 33.

    Von Hebel and Robinson 1999, p. 118.

  34. 34.

    See Junod 1987, marginal no. 4462. See also Akayesu, No. ICTR-96-4-T, para 625; Prosecutor v. Musema, No. ICTR-96-13-T, Trial Chamber Judgment, para 256 (27 January 2000).

  35. 35.

    See Article 22 of the ICC Statute and Ambos 2013, pp. 88–95.

  36. 36.

    The provision reads: “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.”

  37. 37.

    The provision prohibits “unjustifiable delay in the repatriation of prisoners of war or civilians.” See also Article 20 of the Annex to the Hague Convention IV.

  38. 38.

    See Article 16 of the Geneva Convention III (“all prisoners of war shall be treated alike by the Detaining Power, without any adverse distinction based on race”) and Article 85(4)(c) of the Additional Protocol I (prohibiting “practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination”). See also Article 4 of the Annex to the Hague Convention IV (prisoners of war “must be humanely treated”.).

  39. 39.

    See Article 11 of the Geneva Convention IV (“In no circumstances may hospital and safety zones be the object of attack. They shall be protected and respected at all times by the Parties to the conflict.”). See also Article 60(1) of the Additional Protocol I and Article 25 of the Annex to the Hague Convention IV.

  40. 40.

    See Article 13 of the Geneva Convention III (“Prisoners of war must at all times be humanely treated.”). See also Article 6 of the Annex to the Hague Convention IV (the tasks of the prisoners “shall not be excessive”).

  41. 41.

    See Article 62 of the Geneva Convention III (prisoners “shall be paid a fair working rate of pay by the detaining authorities direct”).

  42. 42.

    The provision reads: “Collective penalties […] are prohibited.” See also Article 75(2)(d) of the Additional Protocol I (“The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents: […] collective punishments.”). See also Article 50 of the Annex to the Hague Convention IV.

  43. 43.

    It defines as a “grave breach” “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”. See also Article 21 of the Hague Convention IV (“obligations of belligerents with regard to the sick and wounded are governed by the Geneva Convention.”), Article 46 and Article 47 of the Annex to the Hague Convention IV.

  44. 44.

    The provision reads: “Starvation of civilians as a method of combat is prohibited.” See also Article 23 of the Geneva Convention IV.

  45. 45.

    See Article 28 of the Geneva Convention IV (“The presence of a protected person may not be used to render certain points or areas immune from military operations.”) and Article 17 of the Additional Protocol II (“Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.”). See also Article 83 of the Geneva Convention IV.

  46. 46.

    See Article 50 of the Geneva Convention I (prohibiting “willfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”). Article 13(2) of the Additional Protocol II protects the “civilian population as such, as well as individual civilians” from attacks. See also Article 23 of the Hague Convention IV.

  47. 47.

    See Article 11 of the Geneva Convention IV and Article 25 of the Hague Convention IV.

  48. 48.

    See Article 4(2)(f) of the Additional Protocol II (prohibiting “at any time and in any place whatsoever: […] slavery and the slave trade in all their forms.”). See also Article 13 of the Geneva Convention III, Article 62 of the Geneva Convention III, Article 49 of the Geneva Convention IV.

  49. 49.

    See Article 4(2)(b) of the Additional Protocol II (prohibiting “at any time and in any place whatsoever: […] collective punishments.”). See also Article 87 of the Geneva Convention III, Article 33 of the Geneva Convention IV, Article 50 of the Annex to the Hague Convention IV (“No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.”).

  50. 50.

    See Article 4(2)(g) of the Additional Protocol II (prohibiting “at any time and in any place whatsoever: […] pillage.” See also Article 51 of the Geneva Convention II, Article 21, Article 46, Article 47 of the Annex to the Hague Convention IV.

  51. 51.

    See International Court of Justice, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996, para 105 2(A) and (B) (“There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons […]. There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such.”).

  52. 52.

    Ibid., 2(C) (“A threat or use of force by means of nuclear weapons that is contrary to Article 2, para 4, of the Charter of the United Nations and that fails to meet all the requirements of Article 51 is unlawful.”).

  53. 53.

    Ibid., 2(E).

  54. 54.

    See Article 35(2) of the Additional Protocol I and Article 35(3) of the Additional Protocol I (regarding “widespread, long-term and severe damage to the natural environment”). See also supra note 26.

  55. 55.

    See already supra note 25.

  56. 56.

    See Sects. 8 to 12 of the Völkerstrafgesetzbuch; for an English translation see: http://www.department-ambos.uni-goettingen.de/index.php/forschung/projekte/translations.

  57. 57.

    Critical Ambos 2014, pp. 188, 208–210.

  58. 58.

    See Werle and Jeßberger 2014, p. 544; see also Ambos 2014, pp. 199, 211.

  59. 59.

    On this resolution see Ambos 2014, pp. 197, 202–204.

  60. 60.

    The text reads (the underlined part is newly added): “The following shall constitute acts of aggression, regardless of a declaration of war by a State, group of States, organizations of States, or non-State actor(s) or by any foreign entity.”.

  61. 61.

    See Ambos 2014, pp. 125–126. For a non-exhaustive list of relevant factors see Lubanga, No. ICC-01/04-01/06-2842, para 537: “the force or group’s internal hierarchy; the command structure and rules; the extent to which military equipment, including firearms, are available; the force or group’s ability to plan military operations and put them into effect; and the extent, seriousness, and intensity of any military involvement”.

  62. 62.

    Article 46C of the Malabo Protocol (Annex).

  63. 63.

    International Court of Justice, Nicaragua v. U.S., Judgment 27 June 1986, available under: http://www.icj-cij.org/docket/files/70/6503.pdf, para 115 (“For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.”).

  64. 64.

    Ibid., para 115 (“The Court has taken the view [paragraph 110 above] that United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua.”).

  65. 65.

    Ibid., para 109.

  66. 66.

    Ibid., para 110.

  67. 67.

    Ibid., para 113, 114.

  68. 68.

    Ibid., para 241, 242.

  69. 69.

    Ibid., para 115.

  70. 70.

    Ibid.

  71. 71.

    Ibid., para 116.

  72. 72.

    Ibid., para 116, 119, 122.

  73. 73.

    Ibid., para 114.

  74. 74.

    Ibid., para 115.

  75. 75.

    Ibid., para 106-112.

  76. 76.

    See Ambos 2014, p. 136.

  77. 77.

    Prosecutor v. Duško Tadić, Judgment 15 July 1999, Case No. IT-94-1-A, available under: http://www.icty.org/x/cases/tadic/acjug/en/tad-aj990715e.pdf, para 103.

  78. 78.

    Ibid., para 131.

  79. 79.

    Ibid., para 137 (“Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law.”).

  80. 80.

    See ibid., para 132; see also Ambos 2014, p. 136.

  81. 81.

    Ibid., para 131 (“However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law.”).

  82. 82.

    Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, available at http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.

  83. 83.

    Ibid., Article 8.

  84. 84.

    See Article 46Ebis(2) providing for jurisdiction based on active and passive personality and the protection principle.

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Acknowledgments

The author would like to thank Professors Ademola Abass, Florian Jeßberger, Dire Tladi, and Gerhard Werle as well as Mr. Selemani Kinyunyu for their critical comments. I also wish to thank my research assistant Ms. Jasmin Marjam Rezai-Dubiel for her invaluable assistance in preparing this chapter.

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Ambos, K. (2017). Genocide (Article 28B), Crimes Against Humanity (Article 28C), War Crimes (Article 28D) and the Crime of Aggression (Article 28M). In: Werle, G., Vormbaum, M. (eds) The African Criminal Court. International Criminal Justice Series, vol 10. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-150-0_3

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