Abstract
The overarching argument of this book is that a definition of international terrorism in an international criminal law context will not be functional nor serve the purposes of international criminal justice unless it balances properly State sovereignty considerations and cosmopolitan ideals. The State-centric theory of international law on the one hand, and cosmopolitanism on the other, treat the concept of State sovereignty from different perspectives, with the former emphasising sovereign interests , sometimes at the expense of international criminal justice purposes, and the latter prioritising cosmopolitan aspirations over the respect for State sovereignty. The crime of aggression and international terrorism present aspects that can be addressed in either a pro-State sovereignty or a pro-cosmopolitan context. This chapter will focus at this differentiation of the treatment of State sovereignty in the context of the UN Charter and the Rome Statute frameworks, focusing on the regime of complementarity enshrined in the latter and contributing thus to our understanding of the differentiated approaches that the Security Council and the ICC follow on issues that touch upon State sovereignty. The effectiveness of the definitions of international crimes as provided into the Rome Statute, and for the purposes of this book, the definition of the crime of aggression and possibly terrorism, will ultimately be determined by whether they will be successful in promoting the cosmopolitan ethos that the ICC represents in an international system of sovereign States which might feel threatened by that ethos.
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Notes
- 1.
Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945) (UN Charter).
- 2.
UNGA 1998.
- 3.
Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) UN Doc. A/CONF. 183/9 (Rome Statute).
- 4.
The conditions of inadmissibility of a case as provided by Article 17(1) of the Rome Statute are: ‘(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; …’.
- 5.
- 6.
For an elaboration on the concept of sovereignty and its historical development see Henley 2011, pp. 1025–1027.
- 7.
- 8.
Ibid., 630.
- 9.
Brus 2002, p. 3.
- 10.
Mégret 2001, p. 257.
- 11.
Jennings 2002, p. 27.
- 12.
- 13.
- 14.
Jennings 2002, p. 29.
- 15.
UN Charter, above n. 1, Preamble. See also Articles 1(2) and 55.
- 16.
Nagan and Hammer 2004, p. 171. While the principle of national self-determination as a manifestation of the sovereignty of the people was asserted from the French revolution, it lost ground during the Cold War era but regained its validity after the demise of the bi-polar model of balance of power (in Pavković and Radan 2003, p. 4).
- 17.
That a State exercises public powers within a territory does not necessarily mean that these powers are sovereign if this happens contrary to the will of the people. In this case, one can talk about violation of the sovereignty of the people. See also Sarooshi 2005, pp. 9–10.
- 18.
Broomhall 2003, p. 52.
- 19.
Cabrera 2011, p. 209.
- 20.
Brown 2005, pp. 497–98.
- 21.
Ibid., p. 501.
- 22.
- 23.
Gregor 1996, p. 96.
- 24.
Brown 2005, p. 501.
- 25.
Teson 1992, pp. 86–7.
- 26.
Cheah 2006, p. 486.
- 27.
- 28.
Pogge 1992, p. 58.
- 29.
Ibid.
- 30.
Ibid., pp. 61–62.
- 31.
- 32.
Archibugi 1995, p. 443.
- 33.
Finch 1979, p. 37.
- 34.
Koller 2008, p. 1050.
- 35.
Archibugi 1995, p. 443.
- 36.
Fouladvand 2012, p. 40.
- 37.
Feldman 2007, p. 1045.
- 38.
Rome Statute, above n. 3, Preamble paras 2 and 4.
- 39.
Feldman 2007, pp. 1065–1069.
- 40.
Ibid., p. 1067.
- 41.
- 42.
Ibid. However, it is obvious that these two types of sovereignty, the absolute supremacy of national order and the unlimited competence of a State to act (inside or outside its territory) are two sides of the same coin. What Kelsen is trying to argue with this distinction is that, although the absolutist view about sovereignty is in any respect antithetical to international law, a State’s freedom of action is not, if conditioned upon certain rules.
- 43.
Ibid., p. 637.
- 44.
UN Charter, above n. 1, Article 3.
- 45.
Ibid., Article 2(7): ‘Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.’
- 46.
Nagan and Hammer 2004, p. 25.
- 47.
UN Charter, above n. 1, Article 2(4).
- 48.
Ibid., Article 1.
- 49.
Ibid., Article 4.
- 50.
Ibid., Article 10.
- 51.
- 52.
UN Charter, above n. 1, Article 27(3). The power of veto is not explicitly mentioned in the UN Charter, however Article 27(3) requires the concurring votes of the five permanent members of the Security Council for the adoption of resolutions that concern non-procedural matters (regulated by Article 27(2)), permitting thus any permanent Member to block the proceedings.
- 53.
Ibid., Article 42.
- 54.
Ibid., Article 24.
- 55.
Ibid., Article 39.
- 56.
UN Charter, above n. 1, Article 24(2): ‘In discharging these duties [concerning its responsibility for the maintenance of international peace and security] the Security Council shall act in accordance with the Purposes and Principles of the United Nations…’. See also Kelsen 1950, pp. 294–95.
- 57.
Brus 2002, p. 8.
- 58.
Broomhall 2003, p. 58.
- 59.
Ibid., p. 61.
- 60.
Broomhall 2003, pp. 152–54. In the case of the ICTR, two incidents are worth noticing: in the first one, while the newly-formed Rwandan government invited the Security Council to establish the tribunal and engaged to cooperate, it then voted against the resolution adopting its Statute, on the basis of the temporal jurisdiction of the tribunal (post-genocide revenge killings by the Tutsis would fall into its jurisdiction) and of its failure to apply the death penalty. The second one involves an order of the ICTR Appeals Chamber to release a suspect whose rights of fair trial had been violated. In response, the Rwandan government promised to suspend its cooperation with the tribunal. The Prosecutor applied for a review of the decision for release and finally the Chamber reversed its initial decision. In the case of the ICTY, Croatia was mostly unwilling to extradite its nationals to the tribunal or to provide evidence. It finally agreed to surrender to the tribunal Tihomir Blaskić and Zlatko Aleksovski, after the US’s threats to block international loans. In the Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (1999), the ICTY stated that there was ‘a pattern of non-compliance, including the failure to defer to the competence of the Tribunal, failure to execute warrants, failure to provide evidence and information and the refusal to permit the Prosecutor and her investigators into Kosovo’, paras 91–99.
- 61.
Rome Statute, above n. 3, Articles 86–102.
- 62.
Broomhall 2003, p. 61.
- 63.
It is more accurate to speak of a qualified or quasi-universal jurisdiction . Article 12(2) of the Rome Statute provides that the ICC may exercise its jurisdiction when the territorial State or the State of nationality of the accused (or both) are Parties to the Statute or have accepted its jurisdiction ad hoc. However, this jurisdictional link with the territorial or nationality State is not required in case of a Security Council referral of a situation to the ICC Prosecutor under Chapter VII of the UN Charter (Rome Statute, above n. 3, Articles 12 and 13). Besides, some of the crimes of the Rome Statute, such as the grave breaches of the Geneva Conventions (Rome Statute, above n. 3, Article 8(2a)), are subject to universal jurisdiction anyway. On the other hand, some national legislations relating to the implementation of the Rome Statute provisions either adopt the jurisdictional bases explicitly referred to in the Rome Statute or clearly establish universal jurisdiction. On national implementation of the Rome Statute substantive law see Kleffner 2003, p. 86.
- 64.
Philippe 2006, p. 375, where he argues that the principle of complementarity is the means through which to enforce universal jurisdiction for international crimes.
- 65.
As was also noted in Chap. 1, the international crimes under the ICC’s jurisdiction (genocide , war crimes , crimes against humanity and the crime of aggression) will be hereinafter referred to as Article 5 crimes .
- 66.
Rome Statute, above n. 3, Article 17.
- 67.
This third condition complements Article 20(3) of the Rome Statute, concerning the ne bis in idem principle.
- 68.
Rome Statute, above n. 3, Article 17(1): ‘(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;…’.
- 69.
Rome Statute, above n. 3, Article 20(3).
- 70.
Ibid., Article 17(2).
- 71.
Ibid., Article 17(3).
- 72.
Trahan 2012, pp. 581–82.
- 73.
Ibid.
- 74.
- 75.
Rome Statute, above n. 3, Article 17(2): ‘In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable…’.
- 76.
Benzing 2003, p. 613. According to Article 17(3) of the Rome Statute, inability is determined by three factors: whether, due to a total or substantial collapse or unavailability of its national judicial system the State is (i) unable to obtain the accused, (ii) unable to obtain the necessary evidence and testimony or (iii) otherwise unable to carry out its proceedings. In the ICC, Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Decision on the admissibility of a case against Saif Al-Islam Gaddafi, 31 May 2013, Case No. ICC-01/11-01/11-344-Conf (Gaddafi Admissibility Decision) para 200, the Pre-Trial Chamber held that the ability of a State to genuinely carry out proceedings ‘must be assessed in the context of the relevant national system and procedures… [and] in accordance with the substantive and procedural criminal law applicable in Libya’.
- 77.
Rome Statute, above n. 3, Article 17(3).
- 78.
The relationship between national and international legal orders has been divided into three, principal theories: (i) the monistic view which advocates the supremacy of national law over the international, (ii) the dualistic view which advocate that international law and national law are ‘independent of each other in their validity’ (Kelsen 1959–1960, p. 629) and therefore can be valid simultaneously and (iii) the monistic view which places international law above the various national legal systems. The dualistic theory started to lose ground after the second half of the 20th century and in its place, the monistic theory of international law supremacy over national legal systems started to emerge. The Vienna Convention on the Law of Treaties, (opened for signature 23 May 1969, 1155 UNTS 331, entered into force 27 January 1980) under Article 27, provides that a State party to a treaty cannot invoke national legislation as justification for non-compliance with its treaty obligations. Also, Article 88 of the Rome Statute provides that the national legal systems of its States Parties shall have in place procedures which allow all forms of cooperation, as envisaged by Part 9 of the Rome Statute, for the purposes of the ICC. The incorporation in domestic legislations of international rules as such is also another manifestation of the monistic theory of the primacy of international law over national legal orders. For a thorough analysis of these theories see Cassese 2005, pp. 213–237.
- 79.
Benzing 2003, p. 614.
- 80.
Doherty and McCormack 1999, p. 152; Kleffner 2003, p. 89. However, Colombia opposed to this interpretation. See also Declaration of Colombia upon ratification of the Rome Statute (1998) that ‘the word “otherwise” […] refers to the obvious absence of objective conditions necessary to the conduct of trial’ and that ‘none of the provisions of the Rome Statute alters the domestic law applied by the Colombian judicial authorities in exercise of their domestic jurisdiction within the territory of the Republic of Colombia’.
- 81.
Ibid.
- 82.
Kleffner 2003, p. 95. In the Gaddafi Admissibility Decision, above n. 76, para 88, the Pre-Trial Chamber held that domestic prosecutions under the category of ordinary crimes can be considered sufficient provided though that the case covers the same conduct as the one to be charged by the ICC Prosecutor. A discussion on the ‘same person, same conduct’ test as has been applied by the ICC will follow in the next section.
- 83.
- 84.
Benzing 2003, p. 616.
- 85.
Rome Statute, above n. 3, Preamble paras 4, 6.
- 86.
Kleffner 2003, p. 93.
- 87.
Ibid.
- 88.
Ibid., p. 94.
- 89.
Newton 2011, p. 320.
- 90.
International Criminal Court Act 2001 c 17.
- 91.
Newton 2011, p. 321.
- 92.
As was the case with ICC, Prosecutor v Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-8, which will be commented below.
- 93.
Hirondelle News Agency 2008.
- 94.
Article 259(1bis) of the Swiss Criminal Code, 21 December 1937 (status as of 1 May 2013) provides that public provocation to commit genocide is prosecutable only when genocide has taken place in whole or in part in Switzerland without criminalising incitement to commit genocide abroad. Also Article 264k(1) provides that a superior could be held responsible only for crimes he was aware that a subordinate has committed or will commit and failed to act. The Rome Statute establishes liability for superiors also in cases where a superior ‘should have known’ that the forces under his or her command have committed or will commit Article 5 crimes (Article 28(a)(i)).
- 95.
Report of International Federation of Human Rights 2006.
- 96.
Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the period of Democratic Kampuchea, 10 August 2001, amended 27 October 2004 (2001 Law).
- 97.
The chapeau of the definition of crimes against humanity (Article 5 of 2001 Law) is taken from the UNSC 1994, Article 3.
- 98.
Report of International Federation of Human Rights 2006, p. 21. Article 5 of the 2001 Law, above n. 96, omits some material acts included in Article 7 of the Rome Statute, above n. 3: enforced disappearances, sexual violence other than rape and the crime of apartheid.
- 99.
Ibid. Article 5(2) of 2001 Law, above n. 96, includes extermination, enslavement, deportation, persecutions and other inhumane acts as constitutive elements of crimes against humanity without any definition of these terms. The crime of torture is defined, not according to Article 7 of the Rome Statute, above n. 3, but according to Article 500 of the 1955 Cambodian Criminal Code (Article 3 of the 2001 Law, above n. 96).
- 100.
Mégret 2011, p. 363.
- 101.
Ibid.
- 102.
Rome Statute, above n. 3, Preamble.
- 103.
Kleffner 2003, p. 93.
- 104.
Rome Statute, above n. 3, Preamble para 4.
- 105.
Benzing 2003, p. 603.
- 106.
ICC, Situations under investigation 2017.
- 107.
McAuliffe 2013, p. 215.
- 108.
Mégret 2011, p. 376.
- 109.
Ibid.
- 110.
McAuliffe 2013, p. 215.
- 111.
ICC, Prosecutor v Thomas Lubanga Dyilo, Under Seal Decision of the Prosecutor's Application for a Warrant of Arrest, Article 58, 10 February 2006, Case No. ICC-01/04-01/06-8 (Lubanga decision) paras 35–37.
- 112.
Ibid., para 33.
- 113.
Ibid., para 38.
- 114.
Ibid., para 34.
- 115.
Ibid., para 37.
- 116.
Ibid., para 39.
- 117.
Ibid., para 29.
- 118.
Schabas 2008a, p. 757.
- 119.
Jurdi 2011, p. 264.
- 120.
Schabas 2008b, pp. 32–33.
- 121.
McAuliffe 2013, pp. 220–21.
- 122.
Schabas 2008a, p. 743.
- 123.
ICC, Prosecutor v Germain Katanga, Case No. ICC-01/04-01/07-4.
- 124.
ICC, Prosecutor v Germain Katanga, Decision on the Evidence and Information Provided by the Prosecution for the Issuance of a Warrant of Arrest for Germain Katanga, 6 July 2006, Case No. ICC-01/04-01/07-4, paras 3, 10.
- 125.
Ibid., para 18.
- 126.
ICC, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Motion Challenging the Admissibility of the Case by the Defence of Germain Katanga, pursuant to Article 19(2)(a) of the Statute, 11 March 2009, Case No. ICC-01/04-01/07-949 paras 31–37.
- 127.
ICC, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case, 16 June 2009, Case No. ICC-01/04-01/07, para 77.
- 128.
On how international institutions practically function in a privileging way towards State sovereignty see Kahn 2000, p. 10.
- 129.
Nouwen 2011, pp. 212–214.
- 130.
- 131.
Mégret 2006, pp. 49–51.
- 132.
Rome Statute, above n. 3, Article 17.
- 133.
Rome Statute, above n. 3, Article 12(2): ‘[…] (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national.’
- 134.
Princeton Project on Universal Jurisdiction 2001, Principle 2(1).
- 135.
- 136.
International Law Commission 1996, Article 8: ‘…Jurisdiction over the crime set out in Article 16 shall rest with an international court. However, a State referred to in Article 16 is not precluded from trying its nationals for the crime set out in that article.’
- 137.
Clark 2011, p. 726.
- 138.
Scharf 2012, p. 364.
- 139.
PCIJ, SS Lotus (France v Turkey), Judgment, 1927, PCIJ Series A No. 10.
- 140.
Ibid., para 46.
- 141.
Scharf 2012, p. 380.
- 142.
Trahan 2012, p. 587.
- 143.
For a discussion concerning over-zealous national prosecutions see Trahan 2012, pp. 594–601.
- 144.
Mégret and Samson 2013, p. 573.
- 145.
Ibid., p. 586. About Rome Statute’s safeguards concerning due process protection see Fry 2012.
- 146.
Morris 2001, pp. 14–15.
- 147.
Resolution RC/Res. 6, Annex I, Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression, 11 June 2010 (Kampala Resolution ) Article 8bis: ‘For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character , gravity and scale , constitutes a manifest violation of the Charter of the United Nations.’
- 148.
Van Schaack 2012, p. 149.
- 149.
UN Charter, above n. 1, Article 39: ‘The Security Council shall determine the existence of any threat to the peace , breach of the peace , or act of aggression …’.
- 150.
- 151.
Van Schaack 2012, p. 151.
- 152.
Kampala Resolution , above n. 147, Article 15bis (6) and (8).
- 153.
Rome Statute, above n. 3, Article 27.
- 154.
Wrange 2010, p. 594; Mégret 2011, p. 383 where he argues that immunity laws might be a legitimate reason for non-prosecution on a horizontal plane and between States but not before an independent international institution. See also Rome Statute, above n. 3, Article 98(1) where it states that without a waiver of immunity by the State whose national is being accused, the Court cannot proceed with a request for surrender or assistance.
- 155.
Broomhall 2003, p. 140. France and Germany have dealt with this issue by making amendments which either allow the surrender to the ICC but not the domestic prosecution of a person entitled to immunities (France) or allow both the surrender and prosecution after authorisation of the parliament (Germany).
- 156.
Ibid., pp. 141–45.
- 157.
As emphasised by Van Schaack, a national definition for aggression might for example reject the ‘leadership requirement ’ of the crime or the threshold of ‘manifest violation ’ or even permit the prosecution of ‘attempted aggression’, issues that have been decided upon after careful and rigorous negotiations by the ASP. Van Schaack 2012, p. 152.
- 158.
Kampala Resolution , above n. 147, Annex III ‘Understandings regarding the amendments to the Rome Statute of the International Criminal Court on the crime of aggression’.
- 159.
Van Schaack 2012, p. 155.
- 160.
Ibid., p. 160.
- 161.
Koh 2010.
- 162.
Scharf 2012, p. 365.
- 163.
Kress and von Holtzendorff 2010, p. 1216.
- 164.
Van Schaack 2012, p. 161.
- 165.
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Margariti, S. (2017). State Sovereignty, Cosmopolitanism and the International Criminal Court. In: Defining International Terrorism. International Criminal Justice Series, vol 15. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-204-0_2
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