The ICC and its Jurisdiction ― Myths, Misperceptions and Realities

In: Max Planck Yearbook of United Nations Law Online

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  • 1 See e.g. A/ES-10/186 of 30 July 2002, Report of the Secretary-General pre- pared pursuant to General Assembly Resolution A/RES/ES-10/10; Human Rights Watch, Vol. 14, No. 3 (E), Israel, the Occupied West Bank and Gaza Strip, and the Palestinian Authority Territories - Jenin: IDF Military Force, May 2002; Amnesty International, Israel and the Occupied Territories - Shielded from scrutiny: IDF violations in Jenin and Nablus, November 2002, (4 August 2003). 2 J. Huggler, "Israel's new Defence Minister 'guilty of war crimes'", The In- dependent, 4 November 2002, 2; BBC Monitoring, "UN Arab group urges discussion of Jenin report at General Assembly on 5 August", 2 August 2002, Westlaw File WL 24808442; Agence France-Presse, "Iran calls on US to distance itself from Israel" , 15 April 2002, Westlaw File WL 2386405. 3 The Nation, "Israel and the ICC", 1 July 2002, 7 quoting Israel's Attorney- General Elyakim Rubinstein who reported to a Knesset committee that Is- raelis might be charged and indicted by the ICC after it convenes on 1 July 2002 for acts committed during operation "Defensive Shield" and for set- tling in the occupied territories.

  • 4 Doc.A/CONF.183/13 Vol. I. Entry into force 1 July 2002 [hereonafter ICC-Statute]. Reprinted in this Volume. See Annex. 5 This aspect in and of itself is not a novelty brought about by the ICC. Prior to the establishment of the ICC, numerous international instruments per- taining to humanitarian law existed and were widely ratified. For an over- view of the status of ratification of the Geneva Conventions, see D6parte- ment Federal des Affaires Etrangeres, Protection des victimes de la guerre, (4 August 2003) or International Committee of the Red Cross, Geneva Conventions of 12 August 1949 and Additional Protocols of 8 June 1977.� ratifications, accessions and successions, 13 December 2002, (4 August 2003). See also R.S. Lee, "Introduction", in: R.S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute, Issues - Negotiations - Results, 1999, Iv et seq. (lix). 6 These calls are either based on a misunderstanding of the jurisdictional bases of the ICC or must be considered to be politically motivated. 7 The text of article 16 (2) Basic Law now reads: "No German may be extradited to a foreign country. The law can provide otherwise for extraditions to a member state of the European Union or to an international court of justice as long as the rule of law is upheld". For an overview of the German implementation legislation, see J. Meaner, "Das Gesetz zur Ausfiihrung des Romischen Statuts des Internationalen

  • Strafgerichtshofes", Neue Justiz 2002, 347 et seq.; H. Satzger, "Das neue Volkerstrafgesetzbuch - Eine kritische Wiirdigung", Neue Zeitschrift fiir Strafrecht 2002, 125 et seq. 8 See e.g. the decision of the French Conseil Constitutionnel, Decision No. 98-408 DC, Traite portant statut de la Cour penale internationale, 22 Janu- ary 1999. The Constitutional Council found the ICC-Statute to be incom- patible with those provisions of the French Constitution pertaining to the responsibility of the President of the Republic, government officials and members of the French Parliament. A subsequent constitutional amend- ment resolved these problems. See No. 1462, Assemble Nationale, Projet de Loi constitutionnelle, inserant au titre VI de la Constitution un article 52-3 et relatif a la Cour penale internationale, enregistree a la Presidence de 1'Assemblee nationale le 11 mars 1999. This constitutional amendment in- troduced article 52-3 which reads: "La Republique peut reconnaitre la juri- diction de la Cour penale internationale dans les conditions prewes par le traite signe le 18 juillet 1998. [The Republic may recognize the jurisdiction of the International Criminal Court as provided by the treaty signed on 18 July 1998.]" 9 A. Zimmermann, "The Creation of a Permanent International Criminal Court", in: J. Frowein/ R. Wolfrum (eds), Max Planck UNYB 2 (1998), 169 et seq. (170); Ph. Kirsch/ J. Holmes, "The Birth of the International Crimi- nal Court", CYIL 36 (1998), 3 et seq. (22). 10 E.g. E. Wilmshurst, "Jurisdiction of the Court", in: Lee, see note 5, 127, referring solely to arts 12-16 of the ICC-Statute. A similar view is promul- gated by R. Goldstone, "Terrorists can be brought to justice only by legal means", The Independent, 2 October 2001, 5. 11 Such an understanding is implicit in the most recent commentary on the ICC-Statute. See A. Cassese/ P. Gaeta/ J. Jones, T'he Rome Statute of the International Criminal Court: A Commentary, Volume I-III, 2002, viii et seq. A similar definition is contained in Black's Law Dictionary, "Jurisdic- tion", in: B. Garner (ed.), Black's Law Dictionary, 7th edition, 2000, 687: "[A] court's power to decide a case or issue a decree".

  • 12 C. Blakesley, "Extraterritorial Jurisdiction", in: M. Cherif Bassiouni (ed.), International Criminal Lazv - Volume II, 2nd edition, 1999, 33 et seq. (36). Blakesley stresses the interdependence of ratione tertiis, ratione personae, ratione materiae and ratione temporis, while using a narrow conception of the term "jurisdiction" itself. His definition of jurisdiction - "the authority to effect legal interests" - has to be seen before this background. 13 A similar argument can be advanced by way of article 19 (4) of the ICC- Statute which deals with challenges to jurisdiction and article 58 (1) of the ICC-Statute which deals with the issuance of arrest warrants or a summons to appear. 14 S. Rosenne, The Law and Practice of the International Court, 1920-1996, 3rd edition, Volume II - Jurisdiction, 1997, 536 et seq. In the case of the ICJ, Rosenne points out that the Court follows a unitary concept of the term "jurisdiction" and that the distinction between ratione personae, rati- one materiae or the scope of the jurisdiction ratione temporis is merely a matter of systematic presentation.

  • ls A/CONF 183/10 of 17 July 1998, Final Act of the United Nations Diplo- matic Conference of Plenipotentiaries on the Establishment of an Interna- tional Criminal Court, 8 et seq. 16 For an overview of the definitional difficulties see C. Walter, "Defining Terrorism in National and International Law", (4 August 2003). 17 See e.g. A. Zimmermann, "Article 5 - Crimes within the Jurisdiction of the Court", mn.l, in: 0. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 1999; P. Robinson, "The Missing Crimes", in: Cassese et al., see note 11, 497 et seq. 18 A/RES/44/39 of 4 December 1989, International Criminal Responsibility of Individuals and Entities engaged in Illicit Trafficking in Narcotic Drugs across National Frontiers and other Transnational Criminal Activities: Es- tablishment of an International Criminal Court with Jurisdiction over such crimes. The relevant portion of the resolution reads: "[...J 1. Requests the International Law Commission, when considering at its forty-second session the item entitled "Draft Code of Crimes against the Peace and Security of Mankind", to address the question of establishing an international criminal court or other international criminal trial mecha- nism with jurisdiction over persons alleged to have committed crimes which may be covered under such a code of crimes, including persons en- gaged in illicit trafficking in narcotic drugs across national frontiers, and to devote particular attention to that question in its report on that session [...]". For an overview of the various crimes that were considered to be part of the ratione materiae of the ICC see International Law Commission, Ana- lytical Guide to the Work of the International Law Commission - 7.4, Draft Code of Crimes Against the Peace and Security of Mankind (Part II),

  • 1998, -4.htm> (4 August 2003). On the Draft Code of Crimes Against the Peace and Security of Mankind, see generally J. Allain/ J. Jones, "A Patchwork of Norms: A Commentary on the 1996 Draft Code of Crimes against the Peace and Security of Man- kind", EJIL 8 (1997), 100 et seq. and K. Ambos, "Establishing an Interna- tional Criminal Court and an International Criminal Code - Observations from an International Criminal Law viewpoint", EJIL 7 (1996), 519 et seq. 19 Report of the Committee on the Establishment of a Permanent Interna- tional Criminal Court, GAOR 50th Sess., Suppl. No. 22 (Doc. A/50/22), 11. 20 H. v. Hebel/ D. Robinson, "Crimes within the jurisdiction of the Court", in: R.S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, 2001, 79 et seq. (80). 21 PCNICC/2000/1/Add.l, Report of the Preparatory Commission for the International Criminal Court - Addendum, Part I - Finalized draft text of the Rules of Procedure and Evidence of 2 November 2000. 22 PCNICC/2000/1/Add.2, Report of the Preparatory Commission for the International Criminal Court - Addendum, Part II - Finalized draft text of the Elements of Crimes of 2 November 2000. z3 A/CONF 183/10, Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court done at Rome, 17 July 1998, 9. 24 R.S. Lee, "An Assessment of the ICC Statute", Fordham Int'l L. J. 25 (2002), 750 et seq. (750).

  • 25 D. Robinson/ H. van Hebel, "Reflections on the Elements of Crimes", in: Cassese et al., see note 11, 219 et seq. (220). 26 P. Kirsch/ V Oosterveld, "The Preparatory Commission for the Interna- tional Criminal Court", Fordham Int'l J. L. 25 (2002), 563 et seq. (564); D. Scheffer, "A Negotiator's Perspective on the International Criminal Court", Mil. L. Rev. 167 (2000), 1 et seq. (5). 27 Report of the Preparatory Committee on the Establishment of the Interna- tional Criminal Court, Volume I (Proceedings of the Preparatory Com- mittee during March-April and August 1996), GAOR 51st Sess., Suppl. No. 22 (Doc. A/51/22), 16. 28 Report of the Preparatory Committee, see above, 17, para. 56. 29 D. Pfirter, "The Position of Switzerland with Respect to the ICC Statute and in particular the Elements of Crimes", Cornell Int'l L. J. 32 (1999), 499 et seq. (502). 30 Pfirter, see above 29, 502. 3t Pfirter, see note 29, 502.

  • 32 Pfirter, see note 29, 502 stating that the elaboration of the Elements of Crimes "has confused and complicated matters"; M. Politi, "Elements of Crimes", in: Cassese et al., see note 11, 443 et seq. (448). 33 Pfirter, see note 29, 502. 34 H v Hebel, "Status of Elements of Crimes under the Statute", in: Lee, see note 20, 4 et seq. (6). 35 J. Delbruck/ R. Wolfrum, Volkerrecht, Part I/3, 2nd edition, 2002, 1145. 36 Article 51 of the ICC-Statute. 3� Article 9 (1) of the ICC-Statute reads: "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". [Emphasis added]. 38 S. Rosenne, "Poor Drafting and Imperfect Organization: Flaws to Over- come in the Rome Statute", Va. J. Int'l L. 41 (2000), 164 et seq. (168). Al- though the author points out that article 21 ICC-Statute mentions that the Court "shall apply" the Elements of Crimes, this provision is merely a list of sources of law to be applied and despite its language is not to be under- stood as binding. A similar argument is advanced by H. v Hebel, in: Cassese et al., see note 11, 3 et seq. (8). One might also argue that read in combination with article 9 (3) of the ICC-Statute - dealing with the Ele- ments' consistency with the Statute itself, the Elements of Crimes are to have a subsidiary character with the ICC-Statute being the yardstick they have to measure up to. 39 Proposals made prior to the final version contained considerably stronger language which would have had a binding effect. Doc. A/CONF.183/C.1/ L.69 and Doc. A/CONF.183/C.1/L.8. Both of these documents proposed that the Elements "shall be applied by the Court in reaching determinations as to guilt".

  • 40 During the preparatory process, "elements of crimes" were first suggested by the United States in 1996. Report of the Preparatory Committee, see note 27. The final Preparatory Committee session prior to the Rome Con- ference saw another attempt by the United States, when it submitted a pro- posal calling for a binding document containing the Elements of Crimes. See Proposal Submitted by the United States, Elements of Offences for the International Criminal Court, Doc. A/AC.249/1998/DP 11 of 2 April 1998. Another proposal by the United States was tabled at the beginning of the Rome Conference. See Proposal Submitted by the United States, Annex on Definitional Elements for Part Two Crimes, Doc. A/CONF 183/C.1/L.10 of 19 June 1998. A final proposal was submitted towards the end of the Diplomatic Conference. Proposal Submitted by the United States Con- cerning the Bureau Proposal, Doc. A/CONF.183/C.1/L.69 of 14 July 1998. 41 v. Hebel, see note 34, 3 et seq. (8); Politi, see note 32, 473. 42 Delbruck/ Wolfrum, see note 35, 1145; Politi, see note 32, 473. 43 Statute of the International Criminal Tribunal for the former Yugoslavia, pursuant to S/RES/827(1993) of 25 May 1993. 44 Statute of the International Criminal Tribunal for Rwanda, pursuant to S/RES/955 (1994) of 8 November 1994. 45 D. Sarooshi, "The Powers of the United Nations International Criminal Tribunals", in : J. Frowein/ R. Wolfrum (eds.), Max Planck UNYB 2 (1998), 141 et seq. (143 et seq.). 46 Delbrack/ Wolfrum, see note 35, 1146; Politi, see note 32, 473. 47 IT-95-17/1-T, Prosecutor v. Furundzija of 10 December 1998, paras 165 et seq. and especially para. 173.

  • 48 IT-96-23-T & IT-96-23/1-T, Prosecutor v. Kunarac of 22 February 2001, para. 436. In this judgment, the Trial Chamber states that " [t]he jurisdiction to prosecute rape as [a violation] of the laws or customs of war pursuant to Article 3 of the Statute, including upon the basis of common Article 3 to the 1949 Geneva Conventions, is also clearly established". a9 A/RES/260 A (III) of 9 December 1948, UNTS Vol. 78 No. 1021. Hereo- nafter Genocide Convention. 50 Robinson/ van Hebel, see note 25, 223. 51 Zimmermann, see note 9, 171. 52 W Schabas, "National Courts Finally Begin to Prosecute Genocide, the 'Crime of Crimes'", Journal of International Criminal Justice 1 (2003), 39 et seq. (41 et seq.). 53 Schabas, see above, 59 admits however that there was only "one truly clear- cut case of genocide since 1948, that of the physical destruction of

  • Rwanda's Tutsi minority over three months in 1994, [...]."; A. Zahar, "Command Responsibility of Civilian Superiors for Genocide", LJIL 14 (2001), 591 et seq. (591). 54 United Nations War Crimes Commission, Law Reports of Trials of War Criminals VII (1948), Trial of Obersturmbannfnhrer Rudolf Franz Ferdi- nand Hoss, 11 et seq. (24-26). ss A.G. Israel v. Eichmann, ILR 36 (1968), 18 et seq. (34) - District Court de- cision ; A.G. Israel v. Eichmann, ILR 36 (1968), 277 et seq. - Supreme Court decision. 56 For an account of the events surrounding the abduction, see M. Lippman, "Genocide: The Trial of Adolf Eichmann and the Quest for Global Jus- tice", Buffalo Human Rights Law Review 8 (2002), 45 et seq. s� Prosecutor v. Djajic, Bavarian Supreme Court, Judgment of 23 May 1997, reprinted in: Neue Juristische Wochenschrift 1998, 392 et seq. The Bavarian Supreme Court acquitted the defendant of the count of Genocide on the grounds of lack of mens rea. Bavarian Supreme Court, 3 St 20/96, Judg- ment of 23 Mai 1997, Neue Juristische Wochenschrift 1998, 392 et seq.; see commentary by K. Ambos, Case Note, Neue Zeitschrift fur Strafrecht 1998, 138 et seq. Other judgments by German courts include German Su- preme Court, 3 StR 215-98, judgment of 30 April 1999, Neue Zeitschrift fur Strafrecht 1999, 396 et seq.; German Supreme Court, 3 StR 244/00, Judg- ment of 21 February 2001, Neue Juristische Wochenschrift 2001, 2732 et seq.; German Supreme Court, 3 StR 372/00, Judgment of 21 February 2001, Neue Juristische Wochenschrift 2001, 2728 et seq. 58 Federal Court of Canada, Mugesera v. Canada (Minister of Citizenship and Immigration), 2001 FCT 460. For the initial decision of the Canadian Im- migration and Refugee Board, Revue Universelle de droits de l'homme 7 (1996), 195 et seq. For a comment to the latter decision, W Schabas, "De- nial of Residence Status to Alien on Grounds of Genocide - Application of Refugee Convention - Duty to Extradite under Genocide Convention - Use of NGO-Reports and Experts in Municipal Proceedings", AJIL 93 (1999), 529 et seq. In the Akayesu judgment, the ICTR made passing refer- ence to the Leon Mugesera, ICTR-96-4-T, Prosecutor v. Akayesu, Judg- ment of 2 September 1998, paras 100 and 149.

  • s9 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports 1951 15 et seq. (23). 60 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports 1993, 325 et seq. The same view was taken by the Secretary-General of the United Nations in his report to the Security Council, Doc. S/25704, Report pursuant to para. 2 of S/RES/ 808 (1993) of 3 May 1993, 12, para. 45. 61 The General Assembly in 1982 declared that the events surrounding the Sabra and Shatila refugee camps situated at Beirut constituted "an act of genocide." A/RES/37/123 D of 16 December 1982, The situation in the Middle East,. However, a resolution cannot be considered to have judicial character, but especially in this instance has to be considered a political statement. This view is echoed by the ICTY in IT 95-10-T, Prosecutor v. G. Jelisie, Judgment of 14 December 1999, para. 83. 62 prosecutor v. Akayesu, see note 58. 63 It should be noted however that both the Statute of the ICTY and the Stat- ute of the ICTR include both article II and III of the Genocide Convention.

  • 64 L. Bruun, "Beyond the 1948 Convention - Emerging Principles of Geno- cide in Customary International Law", Maryland Journal of International, Law and Trade 17 (1993), 193 et seq. (207); B. v Schaack, "The Crime of Political Genocide: Repairing the Genocide Convention's Blind Spot", Yale L. J. 106 (1997), 2259 et seq. (2280 et seq.). 65 W Schabas, Genocide in International Law, 2000, 145; M. Lippman, "Genocide: The Crime of the Century. The Jurisprudence of Death at the Dawn of the New Millennium", Houston Journal of International Law 23 (2001), 467 et seq. (485). 66 Report of the International Law Commission on the Work of its 48th Ses- sion, 6 May - 26 July 1996, GAOR 51st Sess., Suppl. No. 10 (Doc. A/51/10), 87. /; 67 Report of the Internationale Law Commission, see note 66, 87. 68 In a decision of the German Constitutional Court of 2000, the Court had pronounced that "the statutory definition of genocide defends a supra- individual object of legal protection, i.e. the social existence of the group [...]. The intent to destroy the group [...] extends beyond physical and bio- logical extermination [...]. The text of the law does not therefore compel the interpretation that the culprit's intent must be to exterminate physically at least a substantial number of the members of the group", BVerfG 2 BvR 1290/99, available at (4 August 2003).

  • 69 IT 98-33-T, Prosecutor v. Krstic, Judgment of 2 August 2001, para. 580; C. Hoss/ R. Miller, "German Federal Constitutional Court and Bosnian War Crimes: Liberalizing Germany's Genocide Jurisprudence", GYIL 44 (2001), 576 et seq. (601-610). 70 Prosecutor v. Akayesu, see note 58, para. 511. �1 Prosecutor v. Akayesu, see note 58, para. 511. 72 Vienna Convention on the Law of Treaties, 23 May 1969, UNTS Vol. 1155 No. 18232. 73 The Delalic Judgment alludes to this principle, see IT 96-21-T, Prosecutor v. Delalic of 16 November 1998, para. 412.

  • 74 IT-98-33-T, Prosecutor v. Krstic, Judgment of 2 August 2001, para. 580. In the Delalic judgment, the ICTR specifically laid out the requirements set out by international criminal law, Prosecutor v. Delalic, see note 73, para. 402 et seq. The ICTR, in a later judgment and through a different trial chamber, found that the Tutsis did constitute a different ethnic group the Hutus, thereby circumventing the problem posed by the finding of Trial Chamber I in the Akayesu Judgment. See ICTR-95-1-T, Prosecutor v. Ka- yashima and Ruzindana, Judgment of 21 May 1999, para. 523. 75 P. Drost, The Crime of State, Volume II - Genocide, 1959, 123. 76 v. Schaack, see note 64, 2272. �� Prosecutor v. Akayesu, see note 58, para. 516; ICTR 97-23-S, Prosecutor v. J. Kambanda, Judgment and Sentence of 4 September 1998; ICTR-95-1-T, Prosecutor v. C. Kayashima and O. Ruzindana, Judgment of 21 May 1999, para. 91; ICTR-96-3, Prosecutor v. G. Rutaganda of 6 December 1999, para. 59 et seq.; A. Cassese, "Genocide", in: Cassese et al., see note 11, 335 et seq. (338); Schabas, see note 65, 215 and 217 et seq. The Appeals Cham- ber in the Jelisic case held that the terms dolus specialis and special intent could be used interchangeably, IT-95-10-A, Prosecutor v. Goran Jelisie, Judgment of 5 July 2001, 18 et seq.

  • �8 O. Triffterer, "Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such", LJIL 14 (2001), 399 et seq. (400). Thus, the opin- ion that "[w]hether Article 30 applies to acts of genocide remains an open question'' is at least doubtful, D. Nersessian, "The Contours of Genocidal Intent: Troubling Jurisprudence from the International Criminal Tribu- nals", Tex. Int'l L. J. 37 (2002), 231 et seq. (265). 79 Article 30 of the ICC-Statute. 80 Triffterer, see note 78, 400. 81 Triffterer, see note 78, 401. 82 Report of the International Law Commission, see note 66, 87; Hoss/ Miller, see note 69, 603, fn. 150. National criminal codes might differ with regard to this element however, see K. Ambos, Der Allgemeine Teil des Volkerstrafrechts, 2002, 412. 83 Elements of Crimes, see note 22, 6-8. This phrase is the last element in each of the subsections (a)-(e). 84 Article 7ICC-Statute.

  • 85 V. Oosterfeld, "The Elements of Genocide - II. The Context of Genocide", in: Lee, see note 20, 45. 86 Oosterfeld, see above, 45. 87 Article 36 ICC-Statute makes specific reference to the qualifications of the judges and their election. The ICC would be competent to deal with situa- tions that do not necessarily require the existence of an armed conflict, be it an international or internal one. 88 See note 38. 89 Only very few cases are conceivable in this respect, as was pointed out in the discussion of the Preparatory Commission, see Schabas, see note 65, 209. 90 The Statutes of the ICTY and ICTR took a different approach in that they included both article III of the Genocide Convention as well as a general provision on participation. This might explain some inconsistencies in a number of cases before the ICTR, see Schabas, see note 65, 265.

  • 91 See article III (b) of the Genocide Convention. 9z A. Cassese, "Genocide", in: Cassese et al., see note 11, 335 et seq. (347). 93 See e.g. the concurring opinion of Justice Jackson in Krulewitch v. United States, 336 U.S. 440, who noted that "[t]he doctrine does not commend it- self to civil-law countries, despite universal recognition that an organized society must have legal weapons for combating organized criminality [...]. Jackson referred to F. Sayre, "Criminal Conspiracy", Harv. L. R. 35 (1922), 393 (427), who stated - in 1922 - that conspiracy "is utterly unknown to the Roman law; it is not found in modern Continental codes; few Conti- nental lawyers ever heard of it"; G. Fletcher, "The Storrs Lectures: Liberals and Romantics at War. The Problem of Collective Guilt", Yale L. J. 111 (2002), 1499 et seq. (1512). 94 W Schabas, "Article 6 - Genocide", mn. 16, in: Triffterer, see note 17. 95 W Schabas, see note 94, 116, mn. 16. However, Schabas' claim that the in- consistency of the ICC-Statute with the Genocide Convention in this re- gards "appear to be inadvertent" are refuted by the drafting history of the

  • ICC-Statute. See A. Eser, "Individual Criminal Responsibility", in: A. Cassese et al., see note 11, 767 et seq. (802). 96 See generally on the issue of command responsibility Ambos, see note 82, 666 et seq.; T. Wu/ Y Kang, "Criminal Liability for the Actions of Subor- dinates - the Doctrine of Command Responsibility and its Analogues in United States Law", Harv. Int'l L. J. 38 (1997), 272 et seq. 97 See e.g. N. Laviolette, "Commanding Rape: Sexual Violence, Command Responsibility, and the Prosecution of Superiors by the International Criminal Tribunals for the Former Yugoslavia and Rwanda", CYIL 36 (1998), 93 et seq. 98 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 4 (1948), 1 et seq.; B. Landrum, "The Yamashita War Crimes Trial: Command Responsibility Then and Now", Mil. L. Rev. 149 (1995), 293 et seq. 99 lq, G. Israel v. Eichmann - District Court decision, see note 55. 100 IT-95-5-I, Prosecutor v. R. Karadzic and Ratko Mladic, Indictment. 101 Schabas, see note 94, mn. 4. 102 Cassese, "Genocide", in: Cassese et al., see note 11, 335 et seq. (348).

  • l03 This is what Cassese seems to imply when he states that "[i]t may be ar- gued that Article 28 constitutes an exception to that which is provided for in Article 30 [..]". Cassese, "Genocide", in: Cassese et al., see note 11, 335 et seq. (348). l04 Article 28 (a) (i) and (ii) ICC-Statute. ios Article 28 (b) ICC-Statute. 106 K. Ambos, "General Principles of Criminal Law in the Rome Statute", Criminal Law Forum 10 (1999), 1 et seq. (19); WA. Schabas, "General Principles of Criminal Law", European Journal of Crime and Criminal Justice 4 (1998), 84 et seq. tm Similar to the view taken here, Zahar, see note 53, 613.

  • ios A. G. Israel v. Eichmann - District Court decision, see note 55, 179 et seq. l09 Prosecutor v. Akayesu, see note 58, para. 541. no IT-95-5-I, Prosecutor v. R. Karadzic and Ratko Mladic, Indictment, para. 33. 111 Wu/ Kang, see note 96, 278. 112 W Schabas, "The Jelisié Case and the Mens Rea of the Crime of Genocide", LJIL 14 (2001), 125 et seq. (139) and Schabas, see note 65, 9 calls it the "crime of crimes". It has also been described as "the ultimate crime and the gravest violation of human rights it is possible to commit." E/CN.4/Sub.2/1985/6, Benjamin Whitaker, Special Rapporteur, Review of Further Developments in Fields with Which the Sub-Commission Has

  • Been Concerned, Revised and Updated Report on the Question of the Pre- vention and Punishment of the Crime of Genocide, Human Rights Com- mission, Sub-Commission on the Prevention of Discrimination and Pro- tection of Minorities, 38th Sess., 5. 113 Zimmermann, see note 9, 172; van Hebel/ Robinson, see note 20, 90. na These precedents included the Nuremberg and Tokyo Charters, but also the statutes of the two international criminal tribunals which were operat- ing at the time, the ICTY and the ICTR. Moreover, the Draft Code of Crimes Against the Peace and Security of Mankind, prepared under the auspices of the International Law Commission served as a another source. All of these sources are contained in M.C. Bassiouni, "Crimes Against Humanity", in: M.C. Bassiouni (ed.), International Criminal Law - Vol- ume I, 2nd edition 1999, 521 (563 et seq.). See also Delbruck! Wolfrum, see note 35, 1094. tts M. Lippman, "Crimes Against Humanity", Boston College Third World Law Journal 17 (1995), 171 et seq. (271).

  • 116 Various opinions exist in this regard, cf. L. Green, "The Law of Armed Conflict and the Enforcement of International Criminal Law", Annuaire Canadien de Droit International27 (1984), 1 et seq. (7); L. Green, "Human Rights and the Law of Armed Conflict", Isr. Y. B. Hum. Rts 10 (1980), 9 et seq. (10); but also K. Chaney, "Pitfalls and Imperatives: Applying the Les- sons of Nuremberg to the Yugoslav War Crimes Trials", Dick. J. Int'l L.14 (1995), 57 et seq. It seems however, that caution should prevail in this re- gard. While the term humanity is innate in earlier codifications, only some of them concern the well-being of the civilian population, such as the St. Petersburg Declaration of 1868, Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, reprinted in: A. Roberts/ R. Guelffs (eds.), Documents on the Laws of War, 3rd edition, 2000, 53 et seq. ll Similar wording was included in article 5 (c) of the Charter of the Interna- tional Military Tribunal for the Far East. Schwarzenberger raises doubts about whether the Nuremberg Charter was declaratory at the time of its inception; G. Schwarzenberger, The Law of Armed Conflict, 1968, 498. 118 The wording "in connection with any crime within the jurisdiction of the Tribunal" ties crimes against humanity to other criminal acts set forth in this, thereby limiting the jurisdiction of the Tribunal. 119 See B. van Schaack, "The Definition of Crimes Against Humanity: Re- solving the Incoherence", Colum. J. Transnat'l L 37 (1999), 787 et seq. (795 et seq.); Lippman, see note 115, 173, The purpose of the Martens Clause was to act as a catch-all clause which was to curb the action of military

  • commanders for which no prohibition existed. See Delbru'ck/ Wolfrum, see note 35, 1087. 120 For a more thorough discussion see II. 1. c. bb. aaa. 121 M.C. Bassiouni, Crimes Against Humanity in International Criminal Law, 2nd edition, 1999, 41 et seq. 122 E. Schwelb, "Crimes Against Humanity", BYIL 23 (1946), 178 et seq. (183); R. Clark, "Crimes against Humanity at Nuremberg", in: G. Gins- burgs/ V. Kudriavtsev (eds), The Nuremberg Trials and International Law, 1990, 177 et seq. (197). 123 L. Sunga, Individual Responsibility in International Law for Serious Hu- man Rights Violations, 1992, 68. See also Clark, see note 122, 199; M.C. Roberge, "Jurisdiction of the Ad Hoc Tribunals for the Former Yugoslavia and Rwanda over Crimes Against Humanity and Genocide", Int'l Rev. of the Red Cross 321 (1997), 651 et seq. (654). 124 L. Sunga, "The Crimes within the Jurisdiction of the International Crimi- nal Court (Part II, Articles 5-10)", European Journal of Crime, Criminal Law and CriminalJustice 6 (1998), 61 et seq. (68).

  • 125 See M. Boot, "Article 7 - Crimes against Humanity, mn. 127", in: Triffterer, see note 17. 126 D. Robinson, "Defining Crimes Against Humanity at the Rome Confer- ence", AJIL 93 (1999), 43 et seq. (46). 127 M.C. Bassiouni, "Crimes Against Humanity", in: M.C. Bassiouni (ed.), International Criminal Law, 2nd edition 1999, 41 states that the "definition

  • in the Nuremberg charter fitted the unforeseen and unforeseeable depreda- tions which had occurred between 1932-1945". Delbriick/ Wolfrum, see note 35, 1097 ; V. Morris/ M. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, 1995, 239. 128 The ICTY stated in its Tadic decision on the trial chamber level, that "[d]espite this precedent, the inclusion of the requirement of an armed conflict deviates from the development of the doctrine after the Nuremberg Charter, beginning with Control Council Law No. 10, which no longer links the concept of crimes against humanity with an armed conflict." See IT-94-1-T Prosecutor v. Dusko Tadie of 7 May 1997, para. 618. A similar argument is advanced in the Report of the Secretary-General, see note 60, para. 47. Bassiouni, see note 127, 70 argues that the Nuremberg Charter was "the final step of a steady progressive historical development and evo- lution of international criminal responsibility for harmful conduct com- mitted against civilian populations irrespective of nationality, but subject to the condition that the violation be linked to the initiation and conduct of war." However, following the Nuremberg trials, "this connection to war was removed in Control Council Law No. 10, and in subsequent historical developments". 129 United States v. Ohlendorf, Trials of War Criminals Before the Niirnberg Military Tribunals under Control Council Law No. 10, Vol. 4, 49. This de- cision was based on Control Council Law No. 10, which did not require such a nexus any more, see note 128. 130 The outcome of this discussion can also be derived from article 7 (2) (a), which speaks of a "course of conduct [...] pursuant to or in furtherance of a State or organizational policy to commit such attack".

  • 13t van Hebel/ Robinson, see note 20, 94. t3z The content of these terms were defined by the ICTR in its Akayesu Judg- ment, see note 58, para. 580: "The concept of 'widespread' may be defined as massive, frequent, large scale action, carried out collectively with consid- erable seriousness and directed against a multiplicity of victims", while [t]he concept of 'systematic' may be defined as thoroughly organised and following a regular pattern on the basis of a common policy involving sub- stantial public or private resources''. 133 The chapeau of article 3 of the statute of the ICTR reads in its relevant part: "The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds [...]." 13a See especially Prosecutor v. Dusko Tadic, see note 128, paras 645 et seq. (647). There the trial chamber cites numerous authorities, ranging from an- other trial chamber's finding in the Vukovar Hospital Decision case, and more conclusively, the various statements by the ILC in the process leading to the Rome conference. 13s W J. Fenrick, "Should Crimes Against Humanity Replace War Crimes?", Colum. J. Transnat'l L. 37 (1999), 767 et seq. (777). i36 prosecutor v. Akayesu, see note 58, para. 579. However, the French version of the ICTR statute suggests a conjunctive rather than a disjunctive read- ing, essentially raising the threshold for the application of the crime to a considerably extent: "Dans le cadre dune adieux generalise et systematic

  • [...]." However, the trial chamber declared that "[s]ince Customary Inter- national Law requires only that the attack be either widespread or system- atic, there are sufficient reasons to assume that the French version suffers from an error in translation. 13� M. de Guzman, "The Road from Rome: The Developing Law of Crimes against Humanity", HRQ 22 (2000), 335 et seq. (375); Fenrick, see note 135, 777; Delbruck/ Wolfrum, see note 35, 1096. 13s van Hebel/ Robinson, see note 20, 96. 139 Bassiouni, see note 127, 255 argues that without such a governmental or organizational policy, crimes against humanity could simply not be carried out. Similarly, Morris and Scharf assert that this element requires a "sys- tematic plan or general policy". Morris/ Scharf, see note 127, 79 et seq. 1� Prosecutor v. Dusko Tadic, see note 128, para. 653. 141 van Hebel/ Robinson, see note 20, 97.

  • 142 L. Wexler, The International Criminal Court and the Transformation of International Law -Justice for the New Millenium, 2002, 152. la3 van Hebel/ Robinson, see note 20, 96. 1� Public Prosecutor v. Menten, International Law Review 75 (1981), 362 et seq. (363). las Federation Nationale Des D6portis Et Internes Resistants Et Patriots And Others v. Barbie, 20 December 1985, ILR 78 (1988), 124 et seq. la6 Touvier, 1 June 1995, ILR 100 (1995), 337 et seq. (340). lay Regina v. Finta, [1994] 1 S.C.R., 701 (814). 148 International Military Tribunal for the Far East, 1 November 1948, B. R61ing/ C. Ruter, The Tokyo Judgment, Volume 1, 1977, 1 et seq. (32 et seq.).

  • 149 Zimmermann, see note 9, 179. 150 A. Cassese, "Crimes Against Humanity", in: Cassese et al., see note 11, 353 et seq. (375). 151 For a list of cases, see Zimmermann, see note 9, 178 et seq. and Cassese, "Crimes Against Humanity", in Cassese et al., see note 11, 353 et seq. (368). 152 Lippman, see note 115, 171 who defines crimes against humanity before the background of discriminatory grounds; it should be borne in mind that this article was written well prior to the Rome Conference. 153 The relevant provision of the ICTR statute - article 3 - states that "[t]he International Tribunal for Rwanda shall have the power to prosecute [...] crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds [...]." 154 ILC, Draft Code of Offences against the Peace and Security of Mankind, 1954, ILCYB 1954, Vol. II, 112 et seq. Article 2 (10) of the 1954 Draft Code reads: "Inhuman acts such as murder, extermination, enslavement, deportation or persecutions, committed against any civilian population on social, political, racial, religious or cultural grounds by the authorities of a State or by pri- vate individuals acting at the instigation or with toleration of such authori- ties''. 155 D. Johnson, "Draft Code of Offenses against the Peace and Security of Mankind", ICLQ 4 (1955), 445 et seq.

  • 156 According to article 7 (1) (h), the criminal act consists of "(persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under interna- tional law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court [...]". 157 Robinson, see note 126, 46. 158 Prosecutor v. Dusko Tadic, see note 128, paras 650 et seq. 159 IT-94-1-A, Prosecutor v. Dusko Tadic, Judgment of 5 July 1999, para. 283. 160 Prosecutor. Dusko Tadic, see note 159, para. 284. 161 Prosecutor v. Dusko Tadic, see note 159, para. 285. 16z prosecutor v. Dusko Tadic, see note 159, paras 287 et seq. and para. 293. However, the Appeals Chamber noted that its own view was "not in keeping with the Report of the Secretary-General and the statements made by three members of the Security Council before the Tribunal's Statute was adopted by the Council", all of which had at least made mention of the need for these elements to be present. See Report of the Secretary-General, see note 60, para. 48.

  • 1� Zimmermann, see note 9, 176; Amnesty International, The International Criminal Court: Making the Right Choices - Part 1 of 1 January 1997, 46. 164 Robinson, see note 126, 47. 165 Similar to the view of this author, A. Cassese, "Crimes Against Humanity", in: Cassese et al., see note 11, 353 et seq. (373); Sunga, see note 124, 72. For a different view - based on a characterization of the terms "widespread" and "systematic'' as objective elements - see ELSA, Handbook on the draft Statute for an International Criminal Court, May 1998, 25.

  • 166 The ICTY and ICTR charters differ slightly from the Nuremberg formu- lation, which stated that persecutions would have to be based on "political, racial or religious grounds", while the ICTY and ICTR statutes use a con- junctive terminology. 167 The first alternative - deportation - means the "forced removal of people from one country to another", see Bassiouni, see note 127, 312. 168 van Hebel/ Robinson, see note 20, 98. Two judgments by the ICTR and the ICTY have reached similar conclusions as to the elements of murder. The trial chamber in the Akayesu case stated that murder - the unlawful, inten- tional killing of a human being - consisted of three elements, namely (1) the victim is dead, (2) the death resulted from an unlawful act or omission of the accused or a subordinate, and (3) at the time of the killing the accused or a subordinate had the intention to kill or inflict bodily harm on the de- ceased having known that such bodily harm is likely to cause the victim's death, and is reckless whether death ensues or not. Prosecutor v. Akayesu, see note 58, para. 587 et seq.

  • 169 Report of the International Law Commission, see note 66, 97. 170 Report of the International Law Commission, see note 66. Similarly, IT-98- 33-T, Prosecutor v. Krstic, Judgment of 2 August 2001, para. 503 which found that for "the crime of extermination to be established, [...] there must be evidence that a particular population was targeted and that its members were killed or otherwise subjected to conditions of life calculated to bring about the destruction of a numerically significant part of the population". l Slavery Convention, LNTS Vol. 60 No. 1414. 172 Elements of Crimes, see note 22, 10. m3 prosecutor v. Kunarac, Trial Chamber, see note 48, para. 118. 174 previously, the General Assembly had recognized the severe problem of enforced disappearances in A/RES/47/133 of 18 December 1992, Declara- tion on the Protection of all Persons from Enforced Disappearances. 175 Wexler, see note 142, traces the inclusion back to the experience in Latin America, C. Hall, "Article 7 - Crimes against Humanity", mn. 73 et seq., in: Triffterer, see note 17, attributes the inclusion to the Nacht und Nebel

  • Erlass (Night and Fog Decree) of 7 December 1941. In light of the consid- erable amount of such acts, specifically in Latin America, the former proposition seems more likely. 176 Zimmermann, see note 9, 184. 177 Article 7 (2) (i) of the ICC-Statute reads: "Enforced disappearance of per- sons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organiza- tion, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time". Articles II of the Inter-American Convention on the Forced Disappearance of Persons of 9 June 1994, states: "For the purposes of this Convention, forced disappearance is considered to be the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of informa- tion or a refusal to acknowledge that deprivation of freedom or to give in- formation on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees". 179 Hall, see note 175, mn. 124, in: Triffterer, see note 17. 1so Wexler, see note 142, 158. 181 Doc. E/CN.4/1997/34, Report of the Working Group on Enforced or In- voluntary Disappearances, Question of Human Rights of All Persons Sub-

  • jected to Any Form of Detention or Imprisonment - Question of Enforced or Involuntary Disappearances, 13 December 1996. isz Report of the Committee on the Establishment of a Permanent Interna- tional Criminal Court, see note 19, 17; W Schabas, An Introduction to the International Criminal Court, 2001, 39; van Hebel/ Robinson, see note 20, 101. is3 van Hebel/ Robinson, see note 20, 101. 184 Sunga, see note 124, 73. tas Bassiouni, see note 127, 327. Delbruck/ Wolfrum, see note 35, 1088 point out that the prohibited conduct within crimes against humanity is for the most part included in national penal codes. 186 Both the ICTY and ICTR statutes merely contained the wording 'perse- cutions on political, racial and religious grounds". Contrary to the analysis of Schabas, see note 182, 39, the Nuremberg Charter was more elaborate and the ICC-Statute resembles it more closely when it criminalized "perse- cutions on political, racial or religious grounds in execution of or in con- nection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated" 187 It is unclear what purpose the distinction between group and collectivity serves. Neither article 7 (2) (g) ICC-Statute nor the Elements of Crimes provide any guidance on this issue. If one were to assume that it meant a people as a whole, such a meaning could be subsumed under the element "group". The same is true if collectivity is to be understood as an associa- tion of individuals who share an ideological basis. Thus, every collectivity could be subsumed under the term group, but not vice versa.

  • 188 The definition set out in article 7 (2) (g) of the ICC-Statute - apart from in- cluding a subjective element which would have to be present in any case - does not clarify the rather imprecise provision in section 1, as it reads: "'Persecution' means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity [...]". This wording begs the question what is to be under- stood by "severe". The mere "disadvantage to an identifiable group or col- lectivity or their individual members" being "an obvious consequence of a severe form of discrimination" obscures the meaning of crimes against hu- manity. Rather, severity should be understood to amount to a higher threshold in the sense of a certain level that correlates to the stigmatic meaning attached to crimes against humanity. This is supported by the quotations from the Nuremberg tribunal found in the Trial Chamber's finding in the Tadic case, Prosecutor v. Dusko Tadic, see note 127, para. 704 et seq.; Y. Dinstein, "Crimes Against Humanity After Tadic", LJIL 13 (2000), 373 et seq. (382) comes to a similar conclusion about the relation- ship between the crimes in section 1 and their "definitions" in section 2. 189 The Trial Chamber in the Furundzija case refers to the German term Bes- timmtheitsgrundsatz and the Latin phrase nullum crimen sine lege stricta. See Prosecutor v. Furundzija, see note 47, para. 177. Hall, see note 175, mn. 71, in: Triffterer, see note 17, takes a much more liberal view, basing his ar- gument on the overall purpose of the Rome Statute. However, while the ICC-Statute aims at restricting the number of cases of impunity, it must still adhere to the principle of nullum crimen sine lege, nulla poena sine lege in order to forego any allegations that have plagued the prior tribunals. 19o Such a construction lifts persecution out of the quandary that otherwise it might be no more than an auxiliary crime (although such an interpretation would still carry an added amount of stigma to the conduct in question) and which would make this category of crimes essentially self-referential.

  • 191 Crimes against humanity were interpreted broadly during the Nuremberg trials, as is evident from the following statement by Francis de Menthon, the French prosecutor at Nuremberg. He regarded crimes against humanity as "crimes against the human status (la condition humaine)", which he de- fined in relevant part as "all those faculties, the exercising and developing of which rightly constitute the meaning of human life." Judgment of the International Military Tribunal sitting at Nuremberg, 30 September 1946, in: Trial of Major War Criminals, 1947, Vol. 4, 364. 19z See discussion in the Trial Chamber's judgment in the Furundzija case, see Prosecutor v. Furundzija, see note 47, paras 174 et seq., especially para. 186; B. Bedont/ K. Hall Martinez, "Ending Impunity for Gender Crimes Under the International Criminal Court", Brown Journal of World Affairs 6 (1999), 65 et seq.; C. Steains, "Gender Issues", in: Lee, see note 20, 357. 193 The Furundzija finding in this matter is the culmination of a series of find- ings both by the ICTR and the ICTY. The ICTR in the Akayesu case found that rape was the "physical invasion of a sexual nature, committed on a per- son under circumstances which are coercive". It thereby avoided a techni- cal analysis, stating "that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts". See Prosecutor v. Akayesu, see note 58, para. 688. This finding was confirmed

  • by the ICTY in its Delalic judgment, Prosecutor v. Delalic, see note 73, para. 479. 194 Prosecutor v. Furundzija, see note 47, paras 178. 195 prosecutor v. Furundzija, see note 47, paras 179-182. 196 Prosecutor v. Furundzija, see note 47, paras 178. 19� Prosecutor v. Furundzija, see note 47, paras 185. 198 Steains, see note 192, 368; Wexler, see note 142, 159. 199 The Trial Chamber in the Akayesu case held that "[s]exual violence which includes rape, is considered to be any act of a sexual nature which is com- mitted on a person under circumstances which are coercive." Prosecutor v. Akayesu, see note 58, para. 688.

  • 200 This wording was inserted to avert concerns that sexual harassment and genital mutilation would fall under the jurisdiction of the ICC. Wexler, see note 142, 159. 201 Bassiouni, see note 127, 331 points out that the Nuremberg tribunal sub- sumed torturous acts under "other inhumane acts". 202 N. Rodley, The Treatment of Prisoners under International Law, 2nd edi- tion, 1999, 74; E. Peters, Torture, 1996, 62; Rosalyn Higgins, "Derogations under Human Rights Treaties", BYIL 48 (1976-77), 281 et seq. (282), refer- ring to the norm under customary international law; J. Paust et al., Inter- national Criminal Law - Cases and Materials, 2nd edition, 2000, 13; Re- statement (Third) of Foreign Relations Law of the United States, § 702 comment n; Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (941); Siderman de Blake v. Republic of Argentina, 965 F2d 699 (714). 203 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UNTS Vol. 1465 No. 24841.

  • 204 This requirement was repeatedly confirmed however in the Kunarac case - both by the Trial Chamber as well as the Appeals Chamber. See Prosecutor v. Kunarac, Trial Chamber, see note 48 and IT-96-23 & IT 96-23/1-A, Prosecutor v. Kunarac et al., Judgment, Appeals Chamber, 12 June 2002, para. 148. For a different view - promulgated prior to the Rome Confer- ence - see Zimmermann, see note 9, 181. 205 Prosecutor v. Kunarac, Trial Chamber, see note 48, 22 February 2001, para. 497 and IT-96-23 & IT-96-23/1-A; Prosecutor v. Kunarac et al,, Judgment, Appeals Chamber, 12 June 2002, para. 153. 206 Hall, see note 175, mn. 107, in: Triffterer, see note 17. 207 Sunga, see note 124, 74. 208 Bassiouni, see note 127, 364. 209 However, the ILC took a different view in 1991, when it stated that the practice is "nowadays so deeply condemned by the world's conscience that it [is] conceivable for the Commission to exclude it from a code which punishes the most abominable crimes that jeopardize the peace and security of mankind", ILCYB 1991, Vol. II, 2, 102.

  • 210 This was the reason for various countries pressing for the inclusion of that crime, particular African nations but also Bangladesh, India and Trinidad and Tobago. Doc. A/CONF.183/C.1/L.12 of 22 June 1998. 211 Of 30 November 1973, UNTS Vol. 1015 No. 14861. Hereonafter Apart- heid Convention. ztz The Apartheid Convention in article V allows for trials "by a competent tribunal of any State Party to the Convention [...] or by an international penal tribunal [...]." 213 Similarly, Hall, see note 175, mn. 116, in: Triffterer, see note 17. However, Hall contemplates that the provision lacks - to some degree - specificity and must be seen as a residual norm. However, the term apartheid does have a relatively long and pronounced history in international law, as evi- denced by numerous resolutions passed by both the General Assembly and the Security Council. R. Clark, "Apartheid", in: M.C. Bassiouni (ed.), In- ternational Criminal Low - Volume II, 2nd edition, 1999, 643 et seq. Moreover and in light of this, the claim that it might have to be construed on a residual basis leaves out of consideration the specific stigma that at- taches to the crime of apartheid. While article 7 (1) (k) of the ICC-Statute does refer to other crimes within article 7 (1) of the ICC-Statute, it does so to establish the necessary threshold that individual acts must reach. 214 Article 7 (2) (h) of the ICC-Statute.

  • 215 van Hebel/ Robinson, see note 20, 102; Wexler, see note 142, 158. zi6 Prosecutor u Dusko Tadic, see note 127, para. 729; IT-95-14-T, Prosecutor v. Blaskic, Judgment of 3 March 2000, para. 243. 217 As a full discussion of each of the various forms of war crimes included in the ICC-Statute would go beyond the scope of this paper, only the most relevant and legally problematic features of this norm are discussed. 218 See e.g. article 6 (b) of the Nuremberg Charter, which reads: "war crimes: namely, violations of the laws or customs of war. Such viola- tions shall include, but not be limited to, murder, ill-treatment or deporta- tion to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity [...]." While the relevant provisions in the statutes of the ICTY and ICTR are more detailed, they are still considerably shorter than article 8 of the ICC- Statute.

  • 219 van Hebel/ Robinson, see note 20, 103 and 106 for a brief discussion of the issues prior to the Rome Conference. 220 van Hebel/ Robinson, see note 20, 103. zzi Convention (IV) Respecting The Laws and Customs of War on Land (Hague IV) of 18 October 1907, Martens NRG 2eme serie, Vol. XXVI, 949 et seq. 222 Geneva Convention (1) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, UNTS Vol. 75 No. 970; Geneva Convention (II) for the Amelioration of the Con- dition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, UNTS Vol. 75 No. 971; Convention (III) Relative to the Treatment of Prisoners of War of 12 August 1949, UNTS Vol. 75 No. 972; Convention (IV) Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, UNTS Vol. 75 No. 973. 223 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, UNTS Vol. 1125 No. 17512; Protocol Addi- tional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977, UNTS Vol. 1125 No. 17513. These countries included France, India, Indonesia, Israel, Pakistan, Turkey, the United Kingdom and the United States. 224 See article 8 (2) (c) and (e) ICC-Statute.

  • 225 Doc. A/AC.249/1997/WG.1/DP of 14 February 1997. zz6 Doc. A/AC.249/1997/WG.1/DP2 of 14 February 1997. zz7 van Hebel/Robinson, see note 20, 106. 228 See each of the Elements of Crimes, see note 22, article 8 - War Crimes. zz9 pyosecutor v. Tadic, see note 128, para. 573. z3o pyosecutor v. Tadic, see note 128, para. 572; similarly, the Appeals Chamber had declared in its prior ruling on jurisdictional issues that such a nexus must exist, see IT-94-1-AR72, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, para. 67. z3i van Hebel/ Robinson, see note 20, 107.

  • z32 Zimmermann, see note 9, 187. z33 van Hebel/ Robinson, see note 20, 107. 234 Wexler, see note 142, 161; M. Bothe, "War Crimes", in: Cassese et al., see note 11, 398; W Fenrick, "Article 8 - War Crimes", mn. 4, in: Triffterer, see note 17; for a different view see Sunga, see note 124, 76. It would appear that states are more willing to prosecute isolated incidents, thus barring such acts from the adjudication by the ICC on the basis of the compli- mentarity principle according to article 17 of the ICC-Statute. z3s Zimmermann, see note 9, 187.

  • 236 The provision furthermore incorporates almost verbatim article 2 of the ICTY-Statute. z3� Article 8 (2) (a) (i) of the ICC-Statute. 238 Article 8 (2) (a) (ii) of the ICC-Statute. z39 Article 8 (2) (a) (iv) of the ICC-Statute. 240 See II. 1. c. bb. bbb.

  • 241 prosecutor v. Delalic, see note 73, para. 494; similarly Prosecutor v. Furund- zija, see note 47, para. 162. In this decision the Trial Chamber found that torture "(i) consists of the infliction, by act or omission, of severe pain or suffering, whether physical or mental; in addition (ii) this act or omission must be intentional; (iii) it must aim at obtaining information or a confes- sion, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person; (iv) it must be linked to an armed conflict; (v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a state or any other authority-wielding entity. 242 prosecutor v. Akayesu, see note 58, para. 593. 243 Article 8 (2) (a) (viii) of the ICC-Statute. 244 Article 8 (2) (a) (vi) of the ICC-Statute. 245 Article 8 (2) (a) (iii) of the ICC-Statute. It is argued that while this prohibi- tion is a special case of torture, it differs from that prohibition in that there do not need to be lasting consequences from the act or omission. Del- briick/ Wolfrum, see note 35, 1056. 246 IT-95-14/2-T, Prosecutor v. Kordic of 26 February 2001, paras 312-313. See also the Trial Chamber judgment in the Blaskic case which stated that "[t]he Prosecution must establish that, at the time of the supposed deten- tion, the allegedly censurable act was perpetrated in order to obtain a con- cession or gain an advantage," IT-95-14-T, Prosecutor v. Blaskic of 3 March 2000, para. 158.

  • 247 In this, the ICC-Statute deviates from the ICTY-Statute which - in its arti- cle 3, Violations of the laws or customs of war - uses the wording "[s]uch wording shall include, but not be limited to", which the Appeals Chamber in the Tadic case understood to be "merely illustrative, but not exhaustive," see Prosecutor v. Dusko Tadic, see note 230, para. 87. zas protocol for the Prohibition of the Use in War of Poisonous, or Other Gases, and of Bacteriological Methods of Warfare, LNTS Vol. 94 No. 2138. 249 Delbriick/ Wolfrum, see note 35, 1058; W Fenrick, "Article 8 - War Crimes", mn. 20, in: Triffterer, see note 17. 250 Differentiation according to M. Bothe, "War Crimes", in: Cassese et al., see note 11,397 et seq.

  • z5i It is worth noting that the destruction of civilian property is only permissi- ble when "imperatively demanded by the necessities of war." See article 8 (2) (b) (xiii) of the ICC-Statute. 252 Article 8 (2) (b) (vii) and article 8 (2) (b) (xi) of the ICC-Statute. 253 Article 52 (2) of Additional Protocol I defines military objects being limited "to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruc- tion, capture or neutralization, in the circumstances ruling at the time, of- fers a definite military advantage". 254 Article 8 (2) (b) (iv) of the ICC-Statute. 255 M. Bothe, "War Crimes", in: Cassese et al., see note 11, 398. This problem was raised in the NATO bombing of a TV station in Belgrade, as well as certain infrastructure. See e.g. R. Wright, "Combating Civilian Casualties: Rules and Balancing in the Developing Law of War", Wake Forest Law Re- view 38 (2003), 129 et seq.; H. Reinhold, "Target Lists: A 1923 Idea with Application for the Future", Tulsa Journal of Comparative and Interna- tiortal Law 10 (2002), 1 et seq. (27); A. Laursen, "NATO, the War over Kosovo, and ICTY Investigation", Am. U. Intl L. Rev. 17 (2002), 765 et seq. (790); S. Belt, "Missiles over Kosovo: Emergence, Lex Lata, of a Cus- tomary Norm Requiring the Use of Precision Munitions in Urban Areas", Naval Law Review 47 (2000), 115 et seq. 256 In a footnote, the Elements of Crimes, see note 22, explains that "[t]he ex- pression 'concrete and direct overall military advantage' refers to a military advantage that is foreseeable by the perpetrator at the relevant time. Such advantage may or may not be temporally or geographically related to the object of the attack. The fact that this crime admits the possibility of lawful incidental injury and collateral damage does not in any way justify any violation of the law applicable in armed conflict. It does not address justifi- cations for war or other rules related to jus ad bellum. It reflects the pro-

  • portionality requirement inherent in determining the legality of any mili- tary activity undertaken in the context of an armed conflict". Wexler, see note 142, 165 considers this explanation to be inconsistent with the wording of the ICC-Statute. 257 See note 116. zss ICJ Reports 1996, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 226 et seq. (248). The ICJ held that no weapon- specific prohibition existed in international law and hence that nuclear weapons as such were not prohibited. The ICJ's finding provided for some exceptional circumstances in its opinion, see 256. It would have been highly problematic to formulate such a prohibition for nuclear weapons, as this would have had to be based on existing customary international law given the ICJ's opinon, which itself is based on and reflects customary interna- tional law in this regard.

  • 259 Article 8 (2) (b) (xix) of the ICC-Statute. 260 The lack of an exhaustive list could prove to be a positive aspect, as States parties will be able to agree on certain weapons which should fall under this prohibition, such as chemical and biological weapons, anti-personnel mines or laser-blinding weapons. zbt Article 8 (2) (b) (ix) of the ICC-Statute. Such protected objects include buildings dedicated to religion, education, art and science, but also hospi- tals. 262 Bothe, see note 256, 410. z� A/RES/49/59 of 15 December 1994, Convention on the Safety of United Nations and Associated Personnel. See A. Bouvier, "Convention on the Safety of United Nations and Associated Personnel: Presentation and Analysis", Int'l Rev. of the Red Cross 309 (1995), 638 et seq.

  • 264 Bothe, see note 256, 411 draws the attention to the problem of when peace- keepers enjoy such a status. Such a determination would have to be made taking into account the legitimizing source for the action taken, i.e. the es- tablishment by the competent United Nations organ. 265 van Hebel/ Robinson, see note 20, 112; Bothe, see note 256, 413; see also A. Imseis, "On the Fourth Geneva Convention and the Occupied Palestinian Territory", Harv. Int'l L. J. 44 (2003), 65 et seq. 266 Israel Ministry for Foreign Affairs, Israel and the International Criminal Court, Office of the Legal Adviser to the Ministry of Foreign Affairs, June 2002, (4 August 2003). 267 See generally K. Askin, "Prosecuting Wartime Rape and other Gender- Related Crimes Under International Law: Extraordinary Advances, En- during Obstacles", Berkeley Journal of International Law 21 (2003), 288 et seq.; J. Gardam/ M. Jarvis, Women, Armed Conflict and International Law, 2001; K. Boon, "Rape and Forced Pregnancy Under the ICC Statute: Hu- man Dignity, Autonomy and Consent", Colum. Hum. Rts. L. Rev. 32 (2001), 625 et seq.; C. Maravilla, "Rape as a war crime: the implications of the International Criminal Tribunal for the Former Yugoslavia's decision in Prosecutor v. Kunarac, Kovac, & Vukovic on international humanitarian law", Florida Journal of International Law 13 (2001), 321 et seq.

  • 268 van Hebel/ Robinson, see note 20, 117. 269 Delbriick/ Wolfrum, see note 35, 1065. 270 See Prosecutor v. Furundzija, see note 47, para. 172; Prosecutor v. Delalic, see note 73, para. 496; Prosecutor v. Kunarac, Trial Chamber, see note 48, para. 436 et seq. 271 A/51/306, Impact of armed conflict on children, Promotion and Protection of the Rights of Children, Note by the Secretary-General, Impact of Armed Conflict on Children, Report of the Expert of the Secretary- General, Ms. Graça Machel, submitted pursuant to A/RES/48/157 of 26 August 1996, 13; S. Bald, "Searching for a Lost Childhood: Will the Special Court of Sierra Leone Find Justice for Its Children", Suffolk Transnational Law Review 23 (2000), 499 et seq.; S. Maslen, "Relevance of the Conven- tion on the Rights of the Child to Children in Armed Conflict", Transnat'l L. f� Contemp. Probs 6 (1996), 329 et seq. 272 van Hebel/ Robinson, see note 20, 117 et seq. 273 �S/44/25 of 20 November 1989, Convention on the Rights of the Child.

  • 274 See further, Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts - Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of 25 May 2000, which in its article 1 proscribes that: "States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities." The Optional Protocol has been ratified by 52 states and has entered into force on 12 February 2000. Under the Elements of Crimes, see note 22, article 8 - War Crimes, the mental element for this crime is lowered to include negligence, thus consid- erably enlarging the possible number of superiors who could be liable for this crime. z�s T. Seyboldt, "Major Armed Conflict", Sipri Yearbook 2002 - Armaments, Disarmament and International Security, 2002, 21 et seq. (23) and for a more detailed analysis, M. Eriksson/ M. Sollenberg/P Wallensteen, "Ap- pendix 1A. Patterns of major armed conflicts, 1990-2001", Sipri Yearbook 2002 - Armaments, Disarmament and International Security, 2002, 63 et seq. 276 van Hebel/ Robinson, see note 20, 105. 277 Bothe, se note 256, 417.

  • 278 C. Kress, "War crimes committed in non-international armed conflict and the emerging system of international criminal justice", Isr. Y. B. Hum. Rts 30 (2001), 103 et seq. (107). 279 See ICJ Reports 1986, 14 et seq. (114), Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America). However, the wording of the judgment is indicative in that the ICJ considers these norms to be such a yardstick not only in inter- national armed conflict, but also in internal conflicts. It stated that common article 3 of the Geneva Conventions "defines certain rules to be applied in the armed conflict of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court's opinion, reflect, what the Court in 1949 called 'elementary considerations of humanity' [...]", referring to the Corfu Channel Case. 280 Prosecutor v. Dusko Tadic, see note 230, para. 134. 281 Prosecutor v. Akayesu, see note 58, para. 608. Zs2 Prosecutor v. Dusko Tadic, see note 280, para. 94. The ICTY stated that in order for a violation to be serious, "it must constitute a breach of a rule protecting important values, and the breach must involve grave conse- quences for the victim''. The ICTY mentions one example for such a lack

  • of a serious breach, elaborating that "for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a 'serious violation of international humanitarian law' although it may be regarded as falling foul of the basic principle laid down in Article 46, paragraph 1, of the Hague Regulations (and the corresponding rule of customary international law) whereby 'private property must be respected' by any army occupying an enemy territory; [...]". 283 A. Zimmermann, "Article 8 - War Crimes", mn. 264, in: Triffterer, see note 17. 284 van Hebel/ Robinson, see note 20, 119. 285 Bothe, see note 255, 420. But see D. Momtaz, "War Crimes in Non- International Armed Conflicts Under the Statute of the International Criminal Court", Yearbook of International Humanitarian Law 2 (1999), 177 et seq. (185 et seq.).

  • z86 Bothe, see note 255. 287 Delbriick/ Wolfrum, see note 35, 1067. 288 Again, one possible explanation is that of the outcome of the discussion on the inclusion of certain conduct having taken place in a highly politicized atmosphere. 289 Zimmermann, "Article 8 - War Crimes", mn. 264, in: Triffterer, see note 17; Momtaz, see note 285, 191. 290 See in this regard also Prosecutor v. Dusko Tadic, see note 280, para. 70; C. Greenwood, "The development of International Humanitarian Law by the

  • International Criminal Tribunal for the former Yugoslavia", Max Planck UNYB 2 (1998), 97 et seq. (118). 291 Dropping this requirement is sensible in the light of the historical forth- coming of the 1977 Additional Protocol II as an international treaty, but also in light of the purpose of the ICC-Statute and the rising number of internal conflicts, where sometimes fighting does not take place between a rebel group and governmental authorities, but rather between such groups. The inclusion of the current wording still allows for the prosecution of such crimes in cases such as Somalia or Lebanon, which is impossible had the wording of Protocol II been adopted. 292 Zimmermann, see note 283, mn. 334 points out that Additional Protocol II included the wording sustained, which required that fighting would have had to be carried out on a continuous basis. For a different view see Del- briick/ Wolfrum, see note 35, 1069. z93 Prosecutors v. Tadic, see note 280, para. 70.

  • z94 Delbru'ck/ Wolfrum, see note 35, 1070. One practical example may be the application of torturous methods or degrading treatment taking place out- side of the context of an armed conflict, by a private citizen directed to- wards another private citizen. z95 prosecutor v. Delalic, see note 73, para. 193. z96 Elements of Crimes, see note 22, article 8 - War Crimes, Introduction. 297 van Hebel/ Robinson, see note 20, 121. 298 Bothe, see note 256, 424 for more examples as well as Zimmermann, see note 283, mn. 343, who goes further in that he considers all conduct pro- hibited by common article 3 of the Geneva Conventions - i.e. those in- cluded in article 8 (2) (c) of the ICC-Statute - which constitutes a peremp- tory norm according to article 53 of the Vienna Convention on the Law of Treaties, and thus non-derogable. 299 Zimmermann, see note 283, mn. 343.

  • 300 For a thorough historical analysis see B. Ferencz, Defining International Aggression, 1975, Vols I and II. See also Sunga, see note 124, 64 et seq.; Y. Dinstein, War, Aggression and Self Defense, 3rd edition, 106 et seq.; A. Carpenter, "The International Criminal Court and the Crime of Aggres- sion", NordicJ. Int'l L. 64 (1995), 223 et seq. 301 G. Westdickenberg/ O. Fixson, "Das Verbrechen der Aggression im Romischen Statut des Internationalen Strafgerichtshofes", in: J. Frowein/ K. Scharioth/ I. Winkelmann/ R. Wolfrum, Verhandeln fur den Frieden - Negotiating for Peace, Liber Amicorum 2"ono Eitel, 2003, 483 et seq. (483). 302 G. Gaja, "The Long Journey towards Repressing Aggression", in: Cassese et al., see note 11, 433. 303 International Military Tribunal (Nuremberg) - Judgment and Sentences, AJIL (1947), 172 et seq. (186). Most commentators share this view, calling it "the mega-crime"; T. Meron, "Defining Aggression for the International Criminal Court", Suffolk 2"ransnational Law Review 25 (2001), 1 et seq. (4) or the "arch-crime which most menaces international society"; A. Cassese, "The Statute of the International Criminal Court: Some Preliminary Re- flections", EJIL 10 (1999), 144 et seq. (146); see also J. Bush, "The Supreme Crime and its Origins", Colum. L. R. 102 (2002), 2324 et seq.

  • 3� Article 3 of A/RES/3314 (XXIX) of 14 December 1974, Annex: Definition of Aggression, provides: "Any of the following acts, regardless of a decla- ration of war, shall, subject to and in accordance with the provisions of ar- ticle 2, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military oc- cupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof, (b) Bombardment by the armed forces of a State against the terri- tory of another State or the use of any weapons by a State against the ter- ritory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. See B. Ferencz, "Ag- gression", in: R. Bernhardt (ed.), EPIL Vol. I (1992), 58 et seq. 305 See ICJ Reports 1986, 14 et seq. (103), Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), in which the ICJ declared that article 3 (g) of the Annex to A/RES/3314 (XXIX) "may be taken to reflect customary international law." 306 Although an analysis of the various alternatives indicates that others might fall under this category as well.

  • 307 Meron, see note 303, 9-10; Zimmermann, see note 9, 201. Both authors ar- gue in favor of basing any definition of the crime of aggression more firmly in customary international law. 308 But see F. Mayer, "Angriffskrieg und curopiisches Verfassungsrecht - Zu den rechtlichen Bindungen von Auf3enpolitik in Europa", AVR 41 (2003), Issue 3 (forthcoming, on file with author). 309 Emphasis added. See Delbruck/ Wolfrum, see note 35, 1047 and 1049; Din- stein, see note 300, 118; Draft Report on the 8th Sess. of the Preparatory Commission 24 September - 5 October 2001 Coalition for an International Criminal Court of 7 October 2001, 5 et seq.; Westdickenberg/ Fixson, see note 301, 489 do not share this view, but conclude from the word "crime" in article 5 (2) of the Annex to A/RES/3314 (XXIX) a basis for construing this norm to invoke state responsibility as well as individual criminal re- sponsibility. 310 See A/RES/3314 (XXIX) of 14 December 1974, operative clause 4. 311 See article 6 (a) of the Nuremberg Charter. Similar language was used in article 5 (a) of the Tokyo Charter.

  • 312 See the contribution by R. Wolfrum in this volume. 3t3 Zimmermann, see note 17, mn. 28 in: Triffterer, see note 94, takes a cau- tious stance requiring that such a determination must have taken place by the Security Council. Similarly, Westdickenberg/ Fixson, see note 301, 517. 314 Doc. A/AC/.249/1997/WG.1/DP.6; Westdickenberg/ Fixson, see note 301, 503. 31s See Section 80 of the German criminal code which prohibits the prepara- tion of a war of aggression. The norm is only infrequently used by German courts and one of the few statements rendered so far has not brought about much clarification. See Landgericht K61n, Neue Zeitschrift fiir Strafrecht 1 (1981), 261 et seq.

  • 316 Westdickenberg/ Fixson, see note 301, 484; M.C. Bassiouni/ B. Ferencz, "The Crime Against Peace", in: M.C. Bassiouni (ed.), International Crimi- nal Law - Volume II, 2nd edition 1999, 313 et seq. (347). 3l Cassese, see note 303, 147 states that "the ICC is likely to start out on the wrong footing'' should the Assembly of States parties not be able to agree on a definition for the crime of aggression. For a more optimistic view, see Sunga, see note 124, 66; I. K. Muller-Schieke, "Defining the Crime of Ag- gression under the Statute of the International Criminal Court", LJIL 13 (2001), 409 et seq. (428). 318 S. Fernandez de Gurmendi, "The Working Group on Aggression at the Preparatory Commission for the International Court", Fordham Int'l L. J. 25 (2002), 589 et seq. (604). 319 For an overview of the discussion on the definition of terrorism, see Report of the Ad Hoc Committee on International Terrorism, GAOR 28th Sess., Suppl. No. 28 (Doc. A/9028), 11-12; A.P. Schmid, Political Terrorism: A Research Guide, 2nd edition 1988; R. Higgins, "The General International Law of Terrorism", in: R. Higgins/ M. Flory (eds), International Law and Terrorism, 1997, 13 et seq. (28); R. Baxter, "A Skeptical Look at the Con- cept of Terrorism", Akron Law Review 7 (1974), 380 et seq.; W Laqueur, "We Can't Define 'Terrorism,' but We Can Fight it", The Wall Street Jour- nal, 15 July 2002, A12; G. Levitt, "Is 'Terrorism' Worth Defining?", Ohio Northern University Law Review 13 (1986), 97 et seq. (97); Walter, see note 16; L. Rene Beres, "The Legal Meaning of Terrorism for the Military Commander", Conn. J. Int'l L. 11 (1995), 1 et seq. (4); M.C. Bassiouni,

  • "International Terrorism", in: M.C. Bassiouni (ed.), International Criminal Law - Volume I, 2nd edition 1999, 765 et seq. (769). 320 It was this crime that lead to the resumption of the discussion about the creation of an international criminal court in 1989. Thus, the issue of inclu- sion of this crime was taken up again in Rome. Despite the fact that drug trafficking is a criminal act under most domestic legislation, the majority of countries felt that this conduct did not reach the level of heinousness and gravity that would be necessary to include it in the current statute. More- over, practical problems were cited as reasons for leaving such crimes to national courts. See Report of the Preparatory Committee on the Estab- lishment of the International Criminal Court, see note 27, 27. 32i Report of the Preparatory Committee on the Establishment of the Interna- tional Criminal Court, see note 27, 27. 3� P. Robinson, "The Missing Crimes", in: Cassese et al., see note 11, 497 (521). The proposal for the inclusion of this crime was raised several times prior to and during the Rome Conference, but never received sufficient support. 3z3 See article 7 (1) (j) of the ICC-Statute. 3za See article 7 (1) (f) and article 8 (2) (a) (ii) of the ICC-Statute. 3zs See article 8 (2) (b) (iii) of the ICC-Statute. 3z6 van Hebel/ Robinson, see note 20, 87. 3z7 van Hebel/ Robinson, see note 20, 87. 3zs Final Act of the Conference, Resolution E, Doc. A/CONF.183/C.1/L.76/ Add. 14 of 17 July 1998, 8.

  • 329 See note 319. 330 Wilmshurst, see note 10, 127. Wilmshurst's comments pertain solely to arts 12-16. 33i M. Bergsmo, "The Jurisdictional Regime of the International Criminal Court", (Part II, Article 11-19), European Journal of Crime, Criminal Law and CriminalJustice 6 (1998), 29 et seq. (30); similarly Kirsch/ Holmes, see note 9, 26. 332 H.P. Kaul/ C. Krei3, "Jurisdiction and Cooperation in the Statute of the International Criminal Court: Principles and Compromises", Yearbook of International Humanitarian Law 2 (1999), 143 et seq. (155). 333 See the contribution by V. Roben in this volume. 334 See the contribution by B. Fassbender in this volume.

  • 335 Article 12 (1) of the ICC-Statute stipulates that a State party "accepts the jurisdiction of the Court with respect to the crimes referred to in article 5". This mechanism is sometimes called "automatic" or "inherent" jurisdic- tion. Neither of these terms seems accurate and furthermore does not add anything in a substantive sense, as there are no crimes for which a non- automatic jurisdictional mechanism exists. The way the provision is now phrased, it simply refers to the jurisdiction ratione materiae contained in article 5 (1) of the ICC-Statute over which the ICC as a matter of fact has jurisdiction. 336 P. Kirsch/ D. Robinson, "Referral by States Parties", in: Cassese et al., see note 11, 619 et seq. (619) point to the lack of precedent in this field. 33� During the negotiating process the wording was changed from crimes to situations. This must be considered as a fortunate decision, as it will allow the prosecutor to investigate not only an individual act, but rather the context in which the conduct in question took place, thereby possibly finding other perpetrations or extenuating circumstances. Moreover, this would have increased the burden upon the State party to be more specific than might be possible for that state. 33s The term "situation" is probably best understood in a broad sense, i.e. re- ferring to a conflict as a whole or a discernable part of this conflict. In this regard, both temporal as well as geographic limitation seem possible al- though not necessarily desirable. 339 Article 14 (1) of the ICC-Statute; moreover, section 2 of this provision asks states to submit, as far as possible supporting information to the Prosecu- tor. 3's' See L. Condorelli/ S. Villalpando, "Referral and Deferral by the Security Council", in: Cassese et al., see note 11, 627 et seq. for a detailed analysis.

  • 3at prosecutor v. Tadic, see note 230, para. 33 et seq. The Appeals Chamber concluded this section of its analysis by stating that "[i]n sum, the estab- lishment of the International Tribunal falls squarely within the powers of the Security Council under Article 41." 3a2 See II. 4. b. 3a3 It is to be hoped that such a scenario will not become reality. Apart from the outright affront such a move would constitute towards the ICC if it were able to exercise its jurisdiction, the costs would be almost prohibi- tively high. The budget for the ICTY in the biennium 2002-2003 amounted to US$ 223,169,800. See International Criminal Tribunal for the former Yugoslavia, The ICTY at a Glance, 7 August 2003, (4 August 2003). See also International Court of Justice, Address by H.E. Judge Gilbert Guillaume, President of the Inter- national Court of Justice, to the United Nations General Assembly of 26 October 2000, t Guillaume-GA55-20001026.htm> (4 August 2003), in which former ICJ President Guillaume compared the budgets of the ICJ and the ICTY. However, given the relatively large number of ratifications and the necessity to garner support not only from the other P5, but also four more Security Council members, and considering in addition the - at least so far - relatively positive stance of at least one Member State of the Security Council with regard to the ICC, this is an unlikely prospect. 3� However, given the aspirations of the ICC-Statute, which proclaims in its Preamble that the "most serious crimes of concern to the international community as a whole must not go unpunished" and that there must be an "end to impunity for the perpetrators of these crimes", not including this option as it stands right now would have led to serious gaps in the jurisdic- tion of the ICC. For the discussion on this issue see Bergsmo, see note 331, 36; Condorelli/ Villalpando, see note 340, 627.

  • 345 D. Scheffer, "The United States and the International Criminal Court", AJIL 93 (1999), 12 et seq. (17); M. Bergsmo/ J. Pejic, "Article 15 - Prose- cutor", mn. 1, in: Triffterer, see note 17; Kirsch/ Holmes, see note 9, 26; S. Fernandez de Gurmendi, "The Role of the International Prosecutor", in: Lee, see note 5, 175 (177); E. LaHaye, "The Jurisdiction of the Interna- tional Criminal Court: Controversies over the Preconditioning for Exer- cising Its Jurisdiction", NILR 46 (2000), 1 et seq. (15); M. Arsanjani, "Re- flections on the Jurisdiction and Trigger Mechanism of the International Criminal Court", in: H. von Hebel/ G. Lammers/ J. Schukking, Reflections on the International Criminal Court, 1999, 57 et seq. (66). See for a com- prehensive study on the Role of the Prosecutor, L. Arbour/ A. Eser/ K. Ambos/ A. Sanders (eds), The Prosecutor of a Permanent International Criminal Court - International Workshop in Co-operation with the Office of the Prosecutor of the International Criminal Tribunals (ICTY and ICTR), 2000. 346 The term initiate is not to be confused with the actual commencement of investigations. This is evident by the wording of article 15 (4) of the ICC- Statute, which states that: "[i]f the Pre-Trial Chamber, upon examination of the request and the sup- porting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation [...]". 34� There are a number of ways that a Prosecutor could be made aware of a situation which could warrant her/his attention. The Prosecutor could truly act on her/his own initiative or a situation could be brought to the attention of the Prosecutor by non-governmental organizations or indi- viduals, but also by States parties which do not have the necessary infor- mation, but which nevertheless want the situation to be investigated by the Prosecutor. 34$ Kirsch/ Holmes, see note 9, 26. 349 Bergsmo/ Pejic, see note 345, mn. 11, in: Triffterer, see note 17; similarly Delbriick/ Wolfrum, see note 35, 1153 and Zimmermann, see note 9, 214.

  • 350 According to this provision, the Prosecutor will have to submit a request for authorization for an investigation to the Pre-Trial Chamber and cannot commence an investigation without its approval. F. Hoffmeister/ S. Knoke, "Das Vorermittlungsverfahren vor dem Internationalen Strafgerichtshof", ZaoRV 59 (1999), 785 et seq. (793); P. Kirsch/ D. Robinson, "Initiation of Proceedings by the Prosecutor", in: Cassese et al., see note 11, 657 et seq. (663) even go as far as stating that due to the various safeguards, the proce- dure according to article 15, the principle of subsidiarity under article 17 and the provisions pertaining to the qualification and disqualification of ICC officials, the independent prosecutor should be seen as "the least poli- ticized trigger mechanism" (emphasis in orginial). 351 European Treaty System No. 005, Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950. In the years since the inception of the European Convention on Human Rights, only 13 state to state complaint procedures have been instituted. See C. Grabenwarter, Europdische Menschenrechtskonvention - Ein Studienbuch, 2003, 61. 352 Until the time of writing, no state complaints according to article 41 of the International Covenant on Civil and Political Rights have been submitted. See International Covenant on Civil and Political Rights of 16 December 1966, UNTS Vol. 999 No. 14668. The same is true for the state complaint procedure under the American Convention on Human Rights. See Ameri- can Convention on Human Rights of 11 November 1969, UNTS Vol. 1144 No. 17955. 353 At a recent conference in mid-2002, the Prosecutor indicated that his office had received almost 500 communications after 1 July 2002. From this stag- gering number the Prosecutor would closely examine only one, namely the situation in the Democratic Republic of the Congo. See International Criminal Court, Press conference of the Prosecutor - Communications, 24 July 2003, (4 August 2003).

  • 35a A/CONF.183/2/Add.l of 14 April 1998. However, it was clear that states would be excluded from the jurisdiction of the ICC, see article 23 (5) and (6) of the proposed statute in Doc. A/CONF.183/2/Add.1, Report of the Preparatory Committee on the Establishment of an International Criminal Court - Addendum of 14 April 1998. Arsanjani, see note 345, 61 et seq. 355 M. Frulli, "Jurisdiction Ratione Materiae", in: Cassese et al., see note 11, 527 (528). 356 G. Heine, Die strafrechtliche Verantwortlichkeit von Unternehmen - von individuellem Fehlverhalten zu kollektiven Fehlentwicklungen, insbeson- dere bei Grossrisiken, 1995. 35� Article 12 (2) (b) of the ICC-Statute reads: "2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute

  • or have accepted the jurisdiction of the Court in accordance with para- graph 3: [...] (b) The State of which the person accused of the crime is a national." 358 Various systems were debated, such as an "opt-in" or "opt-out" regime. For an overview of the various proposals in this regard, see Wilmshurst, see note 10, 128 et seq.; S. Williams, "Article 12 - preconditions to the exercise of jurisdiction", mn. 3 et seq., in: Triffterer, see note 17; Arsanjani, see note 345, 59. 359 Proposal put forth by Germany in the preparatory process, Doc. A/AC.249/1998/DP.2 of 23 March 1998. For the view of the proponents of this view, both of whom where part of Germany's delegation to the Rome Conference, see Kaul/ Krefi, see note 332, 145. This view is strongly op- posed by the Head of the US Delegation to the Rome Conference, see Scheffer, see note 345, 18. 36o This suggestion was presented by the United States in A/CONF.183/C.1/ L.70 of 14 July 1998. 36i W Lietzau, "International Criminal Law After Rome: Concerns from a U.S. Military Perspective", Law and Contemporary Problems 64 (2001), 119 et seq. (128) calls the notion of such a "balance" misplaced, as "it fails to give adequate recognition to the Role of the Security Council or appro- priate consideration to the court's role in existing international frame- works." Lietzau claims that "it might be argued that the Rome Treaty combines the worst of both worlds." But see P. Kirsch, "Keynote Address, Symposium - The International Criminal Court: Consensus and Debate on the International Adjudication of Genocide, Crimes Against Humanity, War Crimes, and Aggression", Cornell Int'l L. J. 32 (1999), 437 et seq. (439).

  • 362 See note 344 and accompanying text. 3� ICJ Reports 1955, 4 et seq. (23 et seq.), Nottebohm (Second Phase), Jugdgment, 4. four a discussion of this matter, see II. 2. c. 36s Article 12 (2) (a) ICC-Statute reads: "I ... the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (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 regis- tration of that vessel or aircraft; [...]."

  • 366 Article 1 of the ICTY statute reads: "Article 1- Competence of the International Tribunal The International Tribunal shall have the power to prosecute persons re- sponsible for serious violations of international humanitarian law commit- ted in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute". 36� Article 1 of the ICTR statute reads: "Art. 1- Competence of the International Tribunal for Rwanda The International Tribunal for Rwanda shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States, be- tween 1 January 1994 and 31 December 1994, in accordance with the provi- sions of the present Statute". 36s For the purpose of this analysis the state in or over which the conduct commenced.

  • 369 See Blakesley, see note 12, 43 et seq. giving extensive examples on various scenarios. 370 S. Bourgon, "Jurisdiction Ratione Loci", in: Cassese et al., see note 11, 559 et seq. (567). 3m For a different view, see Schabas, see note 182, 63 arguing that the ICC- Statute is silent on this matter. However, at least one of the examples given, an order to take prisoners given in a non-State party with no action taken pursuant to this order, would in this author's view not give rise to jurisdic- tion. 3�z In cases in which a vessel was attacked on the high seas, it is submitted that the effects principle should apply, i.e. the effect on the target vessel should be considered to trigger jurisdiction, a construction which is in line with the above-mentioned scenario spawning action in more than one state. 3� It is however unlikely that the Security Council will characterize such a situation as threat to international peace and security and institute such proceeding. The range of cases that could trigger such action by the Secu- rity Council has to be considered to be extremely narrow; nevertheless, the

  • wide discretion that the Security Council enjoys in its determination whether such a situation exists, should be borne in mind. See M. Kosken- niemi, "The Police in the Temple - Order, Justice and the UN: A Dialecti- cal View", EJIL 6 (1995), 325 et seq. (342); J. Frowein/ N. Krisch, in: B. Simma (ed.), The Charter of the United Nations - A Commentary, Volume I, 2nd edition, 2002, Article 41, mn. 11. 374 This does not preclude the exercise of jurisdiction of States parties or non- States parties into their domestic legal system. 3�s LaHaye, see note 345, 18 et seq.; Kaul/ Kref3, see note 332, 145 et seq.; J. Paust, "The Reach of ICC Jurisdiction over Non-Signatory Nationals", Uand. J. Int'l L. 33 (2000), 1 et seq.; M. Morris, "High Crimes and Miscon- ceptions : The ICC and Non-Party States", Law and Contemporary Prob- lems 64 (2001), 13 et seq.; M. Scharf, "The ICC's Jurisdiction over the Na- tionals of Non-State Party States: A Critique of the U.S. Position", Law and Contemporary Problems 64 (2001), 67 et seq.; J. van der Vyver, "Per- sonal and Territorial Jurisdiction of the International Criminal Court", Emory International Law Review 14 (2000), 1 et seq.; R. Wedgwood, "The International Criminal Court: An American View", EJIL 10 (1999), 93 et seq. (99); G. Hafner/ K. Boon/ A. Rubesame/ J. Huston, "A Response to the American View as Presented by Ruth Wedgwood", EJIL 10 (1999), 108 et seq. (115); G. Danilenko, "The Statute of the International Criminal Court and Third States", Mich. J. Int'l L. 21 (2000), 445 et seq.; B. Brown, "U.S. Objections to the Statute of the International Criminal Court", In- ternational Law and Politics 31 (1999), 855 et seq. (868 et seq); J. Taulbee, "A Call to Arms Declined: The United States and the International Crimi- nal Court", Emory International Law Review 14 (2000), 105 et seq.

  • 376 The arguments were advanced by a number of states and are exemplified by Scheffer, see note 345, 18. These countries included China, India and the United States. India for example stated: "[b]ut while we tried, unsuccessfully, to ensure that the Court would be free from political influence, and its Statute in full conformity with the Law of Treaties, on the penultimate day of the Conference, the purists resur- rected and forced into the Statute the concept of universal or inherent ju- risdiction, which too makes a mockery of the distinction between States parties and those who choose not to be bound by a treaty. It is truly un- fortunate that a Statute drafted for an institution to defend the law should start out straying so sharply from established international law. Before it tries its first criminal, the ICC would have claimed a victim of its own - the Vienna Convention on the Law of Treaties". See Explanation of Vote by Mr. Dilip Lahiri, Head of Delegation of India, on the Adoption of the Statute of the International Criminal Court,17 July 1998, (4 August 2003). 3�� The obligations of States parties to the ICC-Statute are to provide funding (article 117 ICC-Statute), evidence (article 93 ICC-Statute) and other forms of cooperation to the ICC (article 109 (1) ICC-Statute) and surrender and transfer of indicted persons to the ICC (article 89 (1) ICC-Statute).

  • 3�8 D. Scheffer, "The International Criminal Court: The Challenge of Jurisdic- tion", Proceedings of the Ninety-Third Annual Meeting of the American Society of International Law 93 (2000), 68 et seq. (70). 3�9 Scharf, see note 375, 98 extends this argument further on the problems posed by anti-terrorist conventions, referring to the Yunis decision of the United States Court of Appeals for the D.C. Circuit. United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991). 3so Similarly Danilenko, see note 375, 459. 381 See only Blakesley, see note 12, 43 et seq. and 61 et seq. 3ez Paust, see note 375, 2; M. Arsanjani, "The Rome Statute of the Interna- tional Criminal Court", AJIL 96 (1999), 22 et seq. (26); Hafner et al., see note 375, 117. For a different view, see Morris, see note 375, 45 claiming that there is no customary international law basis for the delegation of ter- ritorial jurisdiction and concluding the purported lawfulness of such dele- gation is a "legal innovation", see 47. 3s3 Similarly Danilenko, see note 375, 460; Scharf, see note 375, 99. This ap- plies to a number of conventions, such as the 1949 Geneva Conventions, the 1958 Geneva Convention of the High Seas, UNTS Vol. 450 No. 6465, the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft, UNTS Vol. 860 No. 12365, the 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, UNTS Vol. 974 No. 14118 and the 1979 International Convention Against the Taking of Hos- tages, A/RES/146 of 18 December 1979.

  • 384 It is however questionable to base the legality of the territoriality principle as embodied in article 12 of the ICC-Statute on customary international law. But see Y Sok Kim, "The Preconditions to the Exercise of the Juris- diction of the International Criminal Court: With Focus on Article 12 of the Rome Statute", Journal of International Law and Practice 8 (1999), 47 et seq. 385 Similarly Scharf, see note 375, 110. 386 International Military Tribunal, see note 303, 216. 38� Doc. A/56/10, Suppl. No. 10, International Law Commission, Draft Arti- cles on Responsibility of States for Internationally Wrongful Acts, adopted by the ILC at its 53rd Sess. (2001). 38g T. Meron, "The Court We Want", Washington Post, 13 October 1998, A15; Morris, see note 375, 15; R. Wedgwood, "The Irresolution of Rome", Law and Contemporary Problems 35 (2001), 193 et seq. (199). Wedgwood claims that "enthusiasts" would not recognize "where the charged conduct con- sists of the faithful execution of official policy, the state remains a real party in interest and the matter is closely akin to the jurisdictional prerequisite of an 'indispensible party'." In this Wedgwood blurs the distinction between legal obligations and public policy. The latter is not free from scrutiny through the former. One should bear in mind the statement by R. Gold- stone, former Prosecutor for the ICTY and ICTR who stated that "I really have difficulty understanding that policy. What the United States is saying is, 'In order to be peacekeepers [...] we have to commit war crimes.' That's what the policy boils down to." US Stance Contradictory, former UN

  • Prosecutor Says, Terry Viva, 17 June 1998, 7. The statement is also available at (4 August 2003). 389 Brown, see note 375, 869. Brown argues further that equating the two con- cepts might be a "clever rhetorical device, but as legal reasoning it is com- pletely untenable". 390 Article 17 ICC-Statute. See II. 4. c. for more detail. 39t Hafner et al., see note 375, 118. 39z S. HRG. 105-724, Is a U.N. International Criminal Court in the U.S. Na- tional Interest, Hearing before the Subcommittee on International Opera- tions of the Committee on Foreign Relations, United States Senate, 105th Congress, 2nd Session, 23 July 1998. Senator Rod Grams states that "[t]his court claims universal jurisdiction", 1; similar statement by Senator Jesse Helms, referring to the Rome Statute's "universal jurisdiction provision", 7, and statement of Senator John Ashcroft to the effect that "[t]he Court's claim to universal jurisdiction smacks of arrogance". However, these state- ments do not take into account that the jurisdiction of the ICC does not incorporate the principle of universality, unless of course one proscribes to the understanding of universality put forth by Senator Rod Grams, 1, who defines this term as "the right to prosecute United States citizens even though the U.S. is not a party to the treaty."

  • 393 Delbriick/ Wolfrum, see note 35, 1152. 394 The passive personality principle applies when the victim(s) of criminal conduct is a/are national(s) of a State party. 395 See note 356. 396 One example for an international adjudicative body that has made a pro- nouncement to that effect is the finding of the European Commission of Human Rights in the case of De Becker v. Belgium, Application No. 214/56 of 27 March 1962, Yearbook of the European Commission of Hu- mare Rights 2 (1962), 214 et seq. The commission found that the European Convention did not take effect retroactively, but rather that it would only have prospective effect. 39� Vierena Convention on the Law of Treaties, UNTS Vol. 1155 No. 18232. Its Article 28 reads: "Unless a different intention appears from the treaty or is otherwise estab- lished, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the en- try into force of the treaty with respect to that party." 398 There is a fundamental distinction between article 11 of the ICC-Statute and article 24 of the ICC-Statute. The former is concerned with the issue of procedural legislative retroactive assumption of jurisdiction, while the lat- ter deals with retroactive substantive criminalization. Thus, while it is pos- sible that any given conduct could be subsumed under any of the crimes

  • mentioned in article 5 of the ICC-Statute, article 11 of the ICC-Statute would still bar the Court from assuming jurisdiction over the conduct in question. 399 The ICC-Statute as an international treaty deviates from its ad hoc prede- cessors in the 1990s in this respect. The ICTR's temporal jurisdiction was limited by article 2 of the ICTR-Statute for the time period between 1 January 1994 and 31 December 1994, while the ICTY-Statute allows for an open-ended jurisdiction, stating in its article 1 that: "[t]he International Tribunal shall have the power to prosecute persons re- sponsible for serious violations of international humanitarian law commit- ted in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute". 400 Article 126 (1) of the ICC-Statute. aot On this day, Bosnia and Herzegovina, Bulgaria, Cambodia, the Democratic Republic of Congo, Ireland, Jordan, Mongolia, Niger, Romania and Slova- kia submitted their instruments of ratification formally. 402 For an overview of the current ratification status, see United Nations, United Nations Treaty Database - Multilateral Treaties Deposited with the Secretary-General, Rome Statute of the International Criminal Court, 17 July 1998, (4 August 2003).

  • ao3 For the legislative changes that were made to accommodate the ICC's re- quirements, United Nations Treaty Database, see note 402; Coalition for an International Criminal Court, Country Information, (5 August 2003). See also text accompanying foot- notes 7 and 8, above. Similar to the language used in article 126 (1) of the ICC-Statute, section 2 provides: "For each State ratifying, accepting, approving or acceding to this Statute after the deposit of the 60th instrument of ratification, acceptance, approval or accession, the Statute shall enter into force on the first day of the month after the 60th day following the deposit by such State of its instrument of ratification, acceptance, approval or accession." aos Similar S. Williams, "Article 11 - Jurisdiction ratione temporis", mn. 9, in: Triffterer, see note 17. 406 S. Bourgon, "Jurisdiction Ratione Temporis", in: Cassese et al., see note 11, 543 et seq. (549); S. Singh, "The Future of International Criminal Law: The International Criminal Court (ICC)", Touro International Law Review 10 (2000), 1 et seq. (9). 407 Similarly to the view of this author Schabas, see note 182, 57.

  • 408 The requirements for such a declaration however should be regarded restrictively. Such a declaration would have to specify the time for which it operates, the crime or situation it refers to and without conditions. Simi- larly Bourgon, in: Cassese et al., see note 11, 551. 409 Such violations are committed prior to the entry into force of the Statute, but have effects that continue even afterwards, or violations that are com- menced prior to the entry into force of the Statute and deemed to be 'con- tinued' afterwards. R. Pangalangan, "Article 24 - Non-retroactivity ratione personae", mn. 13, in: Triffterer, see note 17; similarly, P. Saland, "Interna- tional Criminal Law Principles", in: Lee, see note 5, 189 et seq. (197); Ar- sanjani, see note 345, 64; Schabas, see note 182, 59 make mention of this problem, without however offering solutions. 410 Most authors mention the crime of genocide in this regard, referring to the decision of the ICTR Appeals Chamber in 2000, ICTR-99-52-A, Ngeze and Nahimana v. Prosecutor, Decision on the Interlocutory Appeals of 5 September 2000. The Appeals Chamber found however that conduct prior to 1 January 1994 which would allow to prove genocidal intent, was admis- sible. Another such crime under the jurisdiction of the ICC is the forcible transfer of population according to article 8 (2) (b) (viii) of the ICC- Statute. D. Blumenthal, "The Politics of Justice: Why Israel Signed the In- ternational Criminal Court Statute and What the Signature Means", Ga. J. Int'l f� Comp. L. 30 (2002), 593 et seq. (609).

  • 4U K. Gallant, "Jurisdiction to Adjudicate and Jurisdiction to Prescribe in In- ternational Criminal Courts", Villanova Law Review 48 (2003), 763 et seq. (811) describes an example that confirms this author's view. A national of a non-State party commits crimes within the jurisdiction of the ICC on the territory of that state, which afterwards becomes a party to the ICC- Statute. Gallant calls it absurd that in such a situation the perpetrator should be able to rely on the bar to temporal jurisdiction for states be- coming a State party after the entry into force of the Rome Statute accord- ing to article 11 (2) ICC-Statute.

  • 412 P. Saland, see note 409, 200 et seq. ai3 Schabas, see note 182, 64. 414 R. Clark/ O. Triffterer, "Article 26 - Exclusion of jurisdiction over persons under eighteen", mn. 9 and mn. 20, in: Triffterer, see note 17. 415 See note 409 et seq. and accompanying text. 416 Similarly Clark/ Triffterer, see note 414, who mentions other problems, e.g. attempt and effects. See M. Frulli, "The Special Court for Sierra Leone. Some Preliminary Comments", EJIL 11 (2000), 857 et seq. (866) outlining that the Special Court does have jurisdiction over offenders at the age of 15. However, offenders between the age of 15 and 17 are subject to a special regime for juvenile offenders. See article 7 entitled "Jurisdiction over per- sons of 15 years of age" of the Statute of the Special Court, which reads: "1. The Special Court shall have no jurisdiction over any person who was under the age of 15 at the time of the alleged commission of the crime. Should any person who was at the time of the alleged commission of the crime between 15 and 18 years of age come before the Court, he or she shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child. 2. In the disposition of a case against a juvenile offender, the Special Court shall order any of the following: care guidance and supervision orders, community service orders, counselling, foster care, correctional, educa-

  • tional and vocational training programmes, approved schools and, as ap- propriate, any programmes of disarmament, demobilization and reintegra- tion or programmes of child protection agencies". 417 Cassese, see note 303, 153. 418 Report of the Committee on the Establishment of a Permanent Interna- tional Criminal Court, see note 19, 28. The view taken by some commen- tators, namely that "[m]ember States of the International Criminal Court have rejected a role for the U.N. Security Council" is untenable in light of the ICC-Statute. But see M. Abramowitz/ P Williams, "Peace Before Prosecution?", Washington Post, 25 August 2003, A17. 419 C. Hall, "The First and Second Session of the UN Preparatory Committee on the Establishment of an International Criminal Court", AJIL 91 (1997), 182 et seq.

  • 420 Report of the Committee on the Establishment of a Permanent Interna- tional Criminal Court, see note 19. azi Article 27 of the Charter of the United Nations. 422 Cassese, see note 303, 163; S. Heselhaus, "Resolution 1422 (2002) des Si- cherheitsrates zur Begrenzung der Tatigkeit des Internationalen Straf- gerichtshofs", ZaoRV 62 (2002), 907 et seq. (923); for a different view see Condorelli/ Villalpando, see note 340, 647. az3 S/PV.4772, SCOR 58th Sess., 4772nd Mtg., 12 June 2003. 424 Critical with regard to this requirement, Wedgwood, see note 375, 97, call- ing it a "palace revolution". 425 The term "investigation or prosecution" should be construed bearing in mind the provisions of Part 5 - Investigation and Prosecution. Neverthe- less, in the context of article 16 ICC-Statute it is submitted that such a con- struction finds its limits when such a preliminary examination constitutes a threat to international peace and security. 426 It is highly problematic to call for a judicial review on the level of the ICC on resolutions of the Security Council. B. Martenczuk, "The Security Council, the International Court and Judicial Review: What Lessons from

  • Lockerbie ?", EJIL 10 (1999), 517 et seq. (545). But see Condorelli/ Villal- pando, see note 340, 650. 427 M. Bergsmo/ J. Pejic, "Article 16 - Deferral of investigation or prosecu- tion", mn. 15, in: Triffterer, see note 17. 428 See note 352. 429 Condorelli/ Villalpando, see note 340, 652; Amnesty International, Inter- national Criminal Court - The unlawful attempt by the Security Council to give US citizens Permanent impunity from international justice, May 2003, AI Index: IOR 40/006/2003, 50. 43o P. Koring, "Canada, other allies blast immunity push Bush administration wants peacekeepers shielded from prosecutions of war crimes", The Globe and Mail, 22 June 2002, A16; C. Lynch, "European Countries Cut Deal to Protect Afghan Peacekeepers", The Washington Post, 20 June 2002, A 15; J. Dempsey/ C. Hoyos, "Europe - UN seeks to ease world court tensions", Financial Times, 28 June 2002, P6; C. Lynch, "Bush Promises to Try To Save Bosnia Mission; U.S. Immunity to War Court Is Key", The Washing- ton Post, 3 July 2002, A 16; "ICC row threatens UN mission in Bosnia", The Globe and Mail of 3 July 2002, A10; J. Ibbitson, "Canada condemns world court compromise U.S. wins peacekeepers one-year grace from war- crimes prosecution by new body", The Globe and Mail, 13 July 2002, Al l; O. Burkeman/ R. Norton-Taylor, "Newborn world court fights for sur- vival - US demands for legal immunity put peacekeeping operations at risk", The Guardian, 1 July 2002, 15. 43t For highly detailed and thorough analysis see Heselhaus, see note 422. See also C. Stahn, "The Ambiguities of Security Council Resolution 1422 (2002)", EJIL 14 (2003), 85 et seq.; C. Jayaraj, "The International Criminal Court and the United States: Recent Legal and Policy Issues", Indian Jour- nal of International Law 42 (2002), 489 et seq. (499 et seq.); Z. Deen- Racsmany, "The ICC, peacekeepers and Resolution 1422: Will the Court

  • Defer to the Council?", NILR 49 (2002), 353 et seq. (355); Report by Am- nesty International, see note 429, which gives a very detailed chronological overview. Arguments made by countries during a Special Plenary Session of the Preparatory Commission are available on a country-by-country ba- sis. See Coalition for an International Criminal Court, Government Re- sponses to US-proposed Security Council Resolution on ICC and Peacekeeping, Special Plenary Sess., Preparatory Commission for the ICC of 3 July 2002, (4 August 2003). 432 L. Axworthy, "International Criminal Court - Stop the U.S. foul play - Any illusions that Washington sought real global co-operation to fight evil was dispelled in the UN", The Globe and Mail, 17 July 2002, A13. 433 Heselhaus, see note 422, 915 argues convincingly that the immunity under this resolution is limited to peace-keeping operations on the basis of the wording and the historic forthcoming of S/RES/1422 (2002). Furthermore, it should be noted that such operations do not include acts of self-defense according to Article 51 of the Charter of the United Nations. M. Byers, "Terrorism, the Use of Force and International Law", ICLQ 51 (2002), 401 et seq. (402). 4s4 U.N. Ends Wrangle Over U.S. Immunity, New York Times, 13 July 2002, Al; C. Lynch, "U.S. Wins 1-Year Shield From War Crimes Court", Wash- ington Post, 13 July 2002, A16; J. Dempsey, "Little applause on criminal court deal", Financial Times, 15 July 2002. 4ss This is confirmed by the subsequent resolutions that were passed immedi- ately after S/RES/1422, namely S/RES/1423 of 12 July 2002, which ex- tended the mandate of the United Nations Mission in Bosnia and Herze- govina (UNMIBH) and S/RES/1424 of 12 July 2002, which extended the mandate of the United Nations Mission of Observers in Prevlaka (UN- MOP).

  • a36 See e.g. Remarks by H.E. Ambassador P. Heinbecker, Permanent Repre- sentative of Canada to the UN, at the UN Security Council open debate on the situation in Bosnia and Herzegovina (New York, USA) of 10 July 2002, Doc. S/PV4568, SCOR 57th Sess., 4568th Mtg of 10 July 2002, 2. For the second part of the debate, see Doc. S/PV 4568 (Resumption 1), Security Council, SCOR 57th Sess., 4568th Mtg of 10 July 2002. 437 It is ironical in some sense that United States troops were not even in dan- ger of coming under the jurisdiction of the ICC regarding the mission in Bosnia-Herzegovina, as the ICTY would enjoy primary jurisdiction. In- deed, at the time the resolution was passed, no United States troops would have been subject to the jurisdiction of the ICC. Coalition for an Interna- tional Criminal Court, Chart and explanation illustrating zero exposure of US peacekeepers to ICC's jurisdiction, July 2002, (4 August 2003). a38 Doc. S/PV.4772, see note 423, 3. Similar statements were made by a number of nations throughout this open debate in the Security Council. In addi- tion, UN peacekeeping operations are traditionally based on so-called Status of Forces Agreements (SOFAs). See M. Zwanenburg, "The Statute for an International Criminal Court and the United States: Peacekeepers under Fire?", EJIL 10 (1999), 124 et seq. (127). 439 these clauses state: "Determining that operations established or authorized by the United Na- tions Security Council are deployed to maintain or restore international peace and security, Determining further that it is in the interests of international peace and se- curity to facilitate Member States' ability to contribute to operations estab- lished or authorized by the United Nations Security Council, [...]."

  • aao F. Lattanzi, "La Corte penale internazionale: una sfida per le giurisdizione degli Stati", Diritto Pubblico Comparato ed Europeo, 2002 - III, 1365 et seq. (1372). 441 Stahn, see note 433, 88-89 arguing that while such a construction would possibly be compatible with the wording of article 16 of the ICC-Statute, it runs counter to its purpose and its systematic position. 442 S/RES/1422 (2002) of 12 July 2002, operative clause 2. aa3 The United States proposal read in its relevant part: "The Security Council, Acting under Chapter VII of the Charter, 1. Requests, consistent with the provisions of Article 16 of the Rome Stat- ute, that the ICC for a twelve-month period shall not commence or pro- ceed with any investigations or prosecutions involving current or former officials or personnel from a contributing State not a party to the Rome Statute for acts or omissions relating to UN established or authorized op- erations ; 2. Decides by this resolution, acting consistent with Article 16 of the Rome Statute, that on July 1 of each successive year, the request not to commence or proceed with investigations or prosecutions as set forth in paragraph 1 shall be renewed and extends during successive twelve-month periods thereafter unless the Security Council decides otherwise and directs the Secretary-General to communicate these annual requests of the Security Council to the ICC; 3. Decides that Member States shall take no actions, such as arrest or sur- render, inconsistent with the requests set forth in paragraphs 1 and 2."

  • 444 Numerous countries made statements to that effect in the debate prior to the voting procedure on S/RES/1422, see Coalition for an International Criminal Court, see note 431. �5 See Coalition for an International Criminal Court, Statements made or en- dorsed by Governments in the Open Meeting of the Security Council Dis- cussion of the Proposed Renewal of Resolution 1422 of 12 June 2003, [pre- pared by the NGO Coalition for the International Criminal Court], (4 August 2003). 446 Doc. S/PV.4772, see note 423. 447 Doc. S/PV.4772, see note 423, e.g. statement made by the representative of New Zealand, 6. 448 Doc. S/PV.4772, see note 423, 3. �9 Doc. S/PV.4572, SCOR 57th Sess., 4572nd Mtg of 12 July 2002.

  • aso SC/7789, Press Release, Security Council Requests One-Year Extension of UN Peacekeeper Immunity from International Criminal Court, Adopts Resolution 1487 (2003) by 12-0-3 (France, Germany, Syria); Secretary- General Says Continued Annual Adoption Could Undermine Court, Council, 12 June 2003, (4 August 2003). 451 S/RES/1497 (2003) of 1 August 2003. Its operative clause 7 reads: "7. Decides that current or former officials or personnel from a contribut- ing State, which is not a party to the Rome Statute of the International Criminal Court, shall be subject to the exclusive jurisdiction of that con- tributing State for all alleged acts or omissions arising out of or related to the Multinational Force or United Nations stabilization force in Liberia, unless such exclusive jurisdiction has been expressly waived by that con- tributing State; [...]." 452 Doc. S/PV.4803, SCOR 58th Sess., 4803rd Mtg of 1 August 2002, 5. See es- pecially the statement by the representative of Germany arguing that this resolution "goes far beyond what the Council decided just a few weeks ago in resolution 1487 (2003)." This assessment must be underscored, as opera- tive clause 7 does not only preclude the jurisdiction of the ICC, but also of any potential national legal system. It is however questionable to state that such an operative clause is contrary to international law as the French rep- resentative has claimed. as3 See note 448.

  • 454 J. Holmes, "Complimentarity: National Courts versus the ICC", in: Cassese et al., see note 11, 667 (667). 455 See the contribution of M. Benzing in this Volume. 456 Article 9 of the ICTY Statute provides for "Concurrent jurisdiction" and reads: "1. The International Tribunal and national courts shall have concurrent ju- risdiction to prosecute persons for serious violations of international hu- manitarian law committed in the territory of the former Yugoslavia since 1 January 1991. 2. The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evi- dence of the International Tribunal". A similar provision exists in article 8 of the ICTR Statute and article 8 of the Special Court for Sierra Leone. 457 Article 17 (1) b of the ICC-Statute. 458 See the commentary by G. Arangio-Ruiz, made during the 1994 meeting of the International Law Commission. He stated: "There was an enormous difference between ICJ and the proposed inter- national criminal court. The compulsory jurisdiction of ICJ affected States in their relations with one another as sovereign states. The jurisdiction of the international criminal court would affect States in the exclusive "con- trol" that they exercised over their nationals and most particularly over their leaders or officials. The very fabric of states would be penetrated; there would be a break in the veil of their sovereignty in that they would sending individuals in high Government posts to the court for trial and possible sentencing. [...] [T]he individual who might be brought before the court, tried, condemned and compelled to serve a sentence could be a head

  • of State, a prime minister, the supreme commander of the armed forces or the minister of denfense of any given country," ILCYB 1994, Vol. 1, 33-34. 459 Until the time of writing, two states have made declarations pursuant to article 124 of the ICC-Statute, namely France and Colombia. United Na- tions, Multilateral Treaties, see note 402. The French declaration reads: "Pursuant to article 124 of the Statute of the International Criminal Court, the French Republic declares that it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory". The Colombian declaration reads: "[...] Availing itself of the option provided in article 124 of the Statute and subject to the conditions established therein, the Government of Colombia declares that it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by Colombian nationals or on Colombian territory". 46o pn the one hand, it is claimed that this provision is an extension of the ICC's jurisdictional basis, see Lietzau, see note 361, 131 with scathing criti- cism, calling it either "a thoughtless error" or "at worst [...] an unabashed attempt to further isolate the United States in the final hours of the nego- tiation by drawing away one or more permanent members of the Security Council, which had otherwise held fairly consistent views on jurisdictional issues. On the other hand, the Standing Committee of the Parliamentary Assembly of the Council of Europe has urged Council of Europe Member States not to make such a declaration. See Standing Committee of the Par- liamentary Assembly of the Council of Europe, International Criminal Court Recommendation 1408, 26 May 1999, (4 August 2003).

  • 461 Other countries wanted an "opt-in" mechanism instead of an "opt-out" clause. See e.g. Senate Hearing, see note 392, statement by D. Scheffer, 13. The current wording is the result of a compromise that narrowed the more acceptable "opt-out" system to war crimes. Other schemes have been pro- posed, but were not accepted, see e.g. D. Scheffer, "Staying the Course with the International Criminal Court", Cornell lnt'1 L. J. 35 (2002), 47 et seq. (80); see also Kim, see note 384, 56; Lietzau, see note 361, 127. 462 Bergsmo, see note 331, 31; A. Zimmermann, "Article 124 - transitional provision", mn. 1 et seq., in: Triffterer, see note 17, offers a chronological overview of the drafting history. 4� Zimmermann, see note above, mn. 5-7. 4� Similarly Wilmshurst, see note 10, 141. 465 This is implied by the reference of article 124 of the ICC-Statute to "the category of crimes referred to in article 8". Furthermore, this includes prosecution for crimes falling in this time period after the said period has elapsed. Furthermore, it unfortunately, but necessarily includes a situation in which a national of the country having made the declaration commits such crimes on the territory of another state, as otherwise the reference to the nationality of the offender would be meaningless. 466 The use of the word "or" does not lead to an exclusion of either war crimes based on nationality or territoriality.

  • 467 But see J. Stanley, "Focus: International Criminal Court: A court that knows no boundaries?: The international criminal court treaty is a big achievement but can it deliver what it promises?", The Lawyer, 11 August 1998, 8. a6s For a different view see Bourgon, see note 370, 565. Similar to this author's view, Zimmermann, see note 462, mn. 8, in: Triffterer, see note 17. a69 See Scheffer, see note 461; Lietzau, see note 361, 131. 470 Brown, see note 377, 876. am T. Buergenthal, "Proliferation of International Courts and Tribunals: Is It Good or Bad?", LJIL 14 (2001), 267 et seq.; J. Charney, "The Impact on the International Legal System of the Growth of International Courts and Tribunals", N.Y. U. J. Int'l L. & Pol. 31 (1999), 697 et seq.; C. Romano, "The Proliferation of International Judicial Bodies: The Pieces of the Puz- zle", N. Y. U. J. Int'l L. & Pol. 31 (1999), 709.

  • a�z For a highly critical but misguided view of international criminal law see H. Quaritsch, "Nachwort", in: H. Quatrisch (ed.), Carl Schmitt, Das inter- national-rechtliche Verhrechen des Angriffskrieges und der Grundsatz "Nullum crimen, nulla poena sine lege", 1994, 219. Quaritsch, following the lines of Carl Schmitt, believes that international criminal law (referring to the Nuremberg Trials) is a game played by an international legal sect (Glasperlenspiel einer internationalen Juristensekte - translation by author), contravening the very core of minimal rules of legal culture. 473 This however, might also explain that some of the provisions were phrased extremely carefully - forced pregnancy might be one of them - as some of the legislative work will become part of the permanent fabric of the inter- national community's legal landscape. 474 The number of square brackets - reportedly over 1.400 - which were still part of the draft prior to the Rome Conference is testament to the number of contentious points that needed to be resolved. 475 But see Lietzau, see note 361, 122.

  • 476 0. Triffterer, "Der lange Weg zu einer internationalen Strafgerichts- barkeit", Zeitschrift fur die gesamte Strafrechtswissenschaft 114 (2002), 321 et seq. (361 et seq.). 477 J. Goldsmith, "The Self-Defeating International Criminal Court", U. Chi. L. R. 70 (2003), 89 et seq.; Wedgwood, see note 388, 199; Lietzau, see note 361, 129. a�g D. Scheffer, "U.S. Policy and the International Criminal Court", Cornell Int'l L. J. 32 (1998), 529 et seq. 479 Lietzau, see note 361, 127 et seq. 480 According to Department of Defense, Military Commission Instruction No. 2, 30 April 2003, US military commission are not to rely on any other

  • sources than this Instruction when determining e.g. the content of the term "military objective". The document is available at (4 August 2003). This becomes evident when analyzing section 5D entitled "Military Ob- jective'' with section 3B entitled "Effect of other Laws". The former provision reads: "'Military objectives' are those potential targets during an armed conflict which, by their nature, location, purpose, or use, effectively contribute to the opposing force's war-fighting or war-sustaining capability and whose total or partial destruction, capture, or neutralization would constitute a military advantage to the attacker under the circumstances at the time of the attack". The latter provision reads: "No conclusion regarding the applicability or persuasive authority of other bodies of law should be drawn solely from the presence, absence, or simi- larity of particular language in this Instruction as compared to other ar- ticulations of law". Section 5D is based on article 52 (2) of Additional Protocol I, but deviates from that provision in some aspects. Specifically it uses the terminology "war-sustaining" capabilities. This could include a wide range of targets, such as, but not limited to, infrastructure and power and water supply sys- tems. In addition, the Instruction does not make mention of the word "definite" before "military advantage" lowering the threshold for military commanders when attacking a civilian object. 48i Goldsmith, see note 477, 93; similarly Wedgwood, see note 388, 200. The most prominent author holding this view is certainly R. Kagan, Of Paradise and Power - America and Europe in the New World Order, 2003. But see also J. Bolton, "War and the United States Military: Is there Really 'Law' in International Affairs?", Transnational and Contemporary Prob- lems 10 (2000), 1 et seq. 4s3 It is obvious that statements such as the following from Senator Jesse Helms are not helpful to overcome this gap. "The ICC treaty without a clear U.S. veto [...] will be 'dead on arrival' at the Senate Foreign Relations Committee." B. Crossette, "Helms Vows to Make War on U.N. Court", New York Times, 27 March 1998, A9.

  • 484 But see Lietzau, see note 361, 127; see also the misguided statement by Bolton claiming that the "the [Security] Council is essentially barred from any real role in the ICC's work." J. Bolton, "The Risks and Weaknesses of the International Criminal Court from America's Perspective", Law and Contemporary Problems 64 (2001), 167 et seq. (173). Such a statement is untenable in light of the power to refer a situation to the ICC and the power to suspend any proceedings. 485 B. Ferencz, An International Criminal Court-a Step to World Peace, 1980. 486 M.C. Bassiouni, "Negotiating the Treaty of Rome on the Establishment of an International Criminal Court", Cornell Int'l L. J. 32 (1999), 443 (468). 487 P. Bekker/ D. Stoelting, "The ICC Prosecutor v President Medema: Simu- lated Proceedings before the International Criminal Court", Pepperdine Dispute Resolution Law Journal 2 (2002), 1 et seq.; M. Goldmann/ C. Schneider, "ICC Case Simulation Exercise: Prosecutor v. Five Pilots from Blueland and Whiteland", German Law Journal4 4 (2003), 815 et seq. 488 Statement by United Nations Secretary-General Kofi Annan at the Cere- mony held at Campidoglio Celebrating the Adoption of the Statute of the International Criminal Court, 18 July 1998, 2. The speech is available at (4 August 2003).

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