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DOI: 10.1163/170873811X563947

This article assesses the African Union’s (AU) concerns about Article 16 of the Rome Statute of the International Criminal Court (ICC). It seeks to articulate a clearer picture of the law and politics of deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC, or the Council) to invoke Article 16 to suspend the processes initiated by the ICC against President Omar Al Bashir of Sudan. The UNSC’s failure to accede to the AU request led African States to formally withhold cooperation from the ICC in respect to the arrest and surrender of the Sudanese leader. Given the AU’s continued concerns, and the current impasse, fundamental questions have arisen about the Council’s authority to exercise, or not exercise, its deferral power. This culminated into a November 2009 African proposal for an amendment to the Rome Statute to empower the UN General Assembly to act should the UNSC fail to act on a deferral request after six months. Although ICC States Parties have so far shown limited public support for the AU’s proposed amendment to the deferral provision, this article examines its merits because a failure to engage the “Article 16 problem” could impact international accountability efforts in the Sudan, and further damage the ICC’s credibility in Africa. This unresolved issue also has wider significance given that the matters underlying the tension – how ICC prosecutions may be reconciled with peacemaking initiatives and the role and power of the Council in ICC business – will likely arise in future situations from around the world.

ISBN: 2210-9730

International humanitarian law governs the conduct of participants in an armed conflict. In order to determine whether it applies to situations of violence it is necessary to assess first of all whether the situation amounts to an ‘armed conflict’. However, international humanitarian law does not recognize a unitary concept of armed conflict but, rather, recognizes two types of armed conflicts: international and non-international. This chapter examines the history of the distinction between these two categories of armed conflict, the consequences of the distinction and whether it still has validity. The chapter then discusses legal concepts relevant to the two categories, including the differences between a non-international conflict and other violence, extraterritorial hostilities by one State against a non-state armed group and conflicts in which multinational forces are engaged. All these concepts are relevant to the understanding of the case studies which are the focus of the rest of the book.

ISBN: 978-0-19-965775-9

DOI: 10.1093/ejil/chq080

This article examines the extent to which state officials are subject to prosecution in foreign domestic courts for international crimes. We consider the different types of immunity that international law accords to state officials, the reasons for the conferment of this immunity and whether they apply in cases in which it is alleged that the official has committed an international crime. We argue that personal immunity (immunity ratione personae) continues to apply even where prosecution is sought for international crimes. Also we consider that instead of a single category of personal immunity there are in fact two types of such immunity and that one type extends beyond senior officials such as the Head of State and Head of Government. Most of the article deals with functional immunity (immunity ratione materiae). We take the view that this type of immunity does not apply in the case of domestic prosecution of foreign officials for most international crimes. However, we reject the traditional arguments which have been put forward by scholars and courts in support of this view. Instead we consider the key to understanding when functional immunity is available lies in examining how jurisdiction is conferred on domestic courts.

ISBN: 0938-5428

The Oxford Companion to International Criminal Justice is the first major reference work to provide a complete overview of this emerging field. Its nearly 1100 pages are divided into three sections. In the first part, 21 essays by leading thinkers offer a comprehensive survey of issues and debates surrounding international humanitarian law, international criminal law, and their enforcement. The second part is arranged alphabetically, containing 320 entries on doctrines, procedures, institutions and personalities. The final part contains over 400 case summaries on different trials from international and domestic courts dealing with war crimes, crimes against humanity, genocide, torture, and terrorism. With analysis and commentary on every aspect of international criminal justice, this Companion is designed to be the first port of call for scholars and practitioners interested in current developments in international justice.

ISBN: 978-0-19-923832-3

This paper focuses on the conditions which ought to exist before the International Criminal Court can exercise jurisdiction over the crime of aggression. In particular, it addresses (i) whether the Court should be competent to exercise jurisdiction where the alleged aggressor State has either not accepted the amendment on aggression, or is not a party to the ICC Statute and (ii) whether ICC jurisdiction on aggression should be made dependent on the prior approval of the United Nations Security Council. The first issue is referred to here as the “consent problem” and the second the “Security Council problem/issue”. This paper argues that the consent problem raises a fundamental question of deeper significance than the textual or perhaps technical issues concerning the way in which the amendment concerning aggression might come into force under Article 121 of the Statute. The consent problem raises fundamental issues about the nature of the ICC as an international tribunal and about the principles governing the competence of international tribunals under international law. In particular, the consent issue raises important questions about the jurisdiction of international tribunals over non-consenting States and whether the ICC is to be regarded as bound by rules of international law that would ordinarily bind other international tribunals. This paper, outlines and explains the principle of consent as applied to the competence of international tribunals. There is a detailed discussion, in Section 2, of the application of the principle to cases before international tribunals where the tribunal is called upon to determine the rights and obligations of States not before the tribunal. In particular, this section discusses the Monetary Gold principle enunciated by the International Court of Justice. According to that principle, the Court will not adjudicate on a case where the Court would be required, as a necessary prerequisite, to adjudicate on the rights or responsibilities of a non-consenting and absent third State. It is argued that this principle is simply an application of the more general principle of consent and that the principle is derived from the more fundamental principle of the independence of States, i.e. the idea that States are not subject to external authority of other States or institutions created by other States. The paper argues, in Section 3, that because a determination that an individual has committed the crime of aggression requires a prior determination that a State has committed an act of aggression and a breach of the UN Charter, the ICC would act in violation of the consent principle in cases contemplated by the aggression amendment. The paper then turns, in Section 4, to an examination of whether the consent principle and the Monetary Gold principle (which is an application of that more general principle) are applicable to international criminal tribunals in general and to the ICC in particular. Referring to the case law of other tribunals, it is argued that these principles apply to all international tribunals and that the form in which the proceedings involving adjudication of the responsibilities of other States takes place is irrelevant to their application. Section 5 examines which States are to be regarded as non-consenting States for the purpose of the application of the consent principle. I then turn to the Nuremberg and Tokyo precedents in Section 6. I argue that the establishment and operation of these tribunals would not support the view that a rule has developed permitting departure from the consent principle in international criminal tribunals. I argue that neither tribunal was truly international and that in any event, in both cases, there was the consent of the relevant sovereign authority. The paper considers, in Section 7, whether the jurisdiction of the ICC over aggression can be justified on the basis of a transfer of authority from the State that is the alleged victim of aggression. It is argued that though victim States can prosecute for aggression and though transferred jurisdiction is an appropriate justification for the jurisdiction of the ICC in general, the principles and precedents which support transfers of jurisdiction to international tribunal do not apply to aggression. Section 8 returns to the Security Council issue and considers whether prior determination by the Council (or by the General Assembly or ICJ) would fall within an exception to the Monetary Gold principle. It is argued that the best way to expand the jurisdiction of the Court to non-consenting States while respecting the principle of consent is by referral of situations to the Court by the Council. When the consent problem is taken into account, the role of the Security Council in making referrals to the ICC with regard to aggression is not a limit on the competence of the Court. Rather the Security Council comes to the aid of the Court and expands its jurisdiction to situations where the ICC would otherwise be legally incompetent to act. On this view, giving the Security Council almost exclusive competence with regard to aggression cases is not to be regarded as a problem to be overcome, but rather as a means of overcoming an existing problem. The final section is the main theoretical contribution of the piece, considering whether the deviation from the consent principle contemplated with regard to the ICC’s jurisdiction over aggression is to be regarded as an evolution of the law or instead a violation.

Abstract:

The article considers whether the obligations of states, which have been referred to the International Criminal Court (ICC) by the United Nations Security Council, are the same as the cooperation obligations of states parties to the ICC Statute. It is argued that despite the lack of clarity in the resolutions referring the situation in Darfur and in Libya to the ICC, the better view is that the obligation imposed on Sudan and Libya to �cooperate fully� with the ICC should be regarded as an obligation to cooperate in accordance with the provisions of the ICC Statute. This means that those states are entitled to benefit from those limited provisions of the ICC Statute that permit a refusal to cooperate with the Court or permit the state to postpone the execution of a request by the Court for assistance. The article also considers the interaction between the obligations of states to cooperate with the ICC and domestic proceedings against those sought for ICC prosecution. It considers the extent to which the obligation of cooperation may be suspended by an admissibility challenge and addresses whether the permission to suspend the obligation of cooperation may extend to a suspension of the obligation to surrender an accused person to the ICC.

ISBN: 1478-1387

The International Court of Justice (ICJ) has held that Article VI of the Genocide Convention imposes an implicit obligation on Contracting Parties to cooperate with an “international penal tribunal” that has jurisdiction over persons charged with genocide. Although it was envisaged in the drafting of the Convention that acceptance of such jurisdiction would occur by treaty, the ICC is to be regarded as a competent international penal tribunal under the Genocide Convention even in cases where the ICC exercises jurisdiction on the basis of a Security Council referral. This creates an obligation on parties to cooperate with the ICC where an accused person is charged with genocide. However, under the jurisprudence of the ICJ this obligation of cooperation only arises where the contracting party in question has not only accepted the jurisdiction of the tribunal but also has a pre-existing obligation to cooperate. Applying this precedent would mean that in the Bashir case, only those States that are parties to the ICC Statute have an obligation of cooperation under the Genocide Convention. However, a teleological interpretation of the Convention would permit use of the Genocide Convention as a basis for creating an obligation of cooperation for non-parties since they must be deemed to have accepted the jurisdiction of the ICC over the case by virtue of a binding Security Council resolution conferring such jurisdiction. Relying on the Genocide Convention as a basis for a cooperation would open up alternative arguments allowing ICC parties (and non-parties if the teleological interpretation were adopted) to bypass immunities otherwise provided for in international law.

This article examines the jurisdiction of the International Criminal Court (ICC) over nationals of states not party to the ICC Statute. The article first addresses the US argument that the exercise of ICC jurisdiction over nationals of non-parties without the consent of that non-party would be contrary to international law. The author considers the principles which support the delegation of criminal jurisdiction by states to international tribunals and discusses the precedents for such delegations. It is further argued that the exercise of ICC jurisdiction over acts done pursuant to the official policy of a non-party state would not be contrary to the principle requiring consent for the exercise of jurisdiction by international tribunals. Finally, the article explores the limits to the jurisdiction of the ICC over non-party nationals. In particular, the article addresses the circumstances in which ICC parties are precluded from surrendering nationals of non-parties to the ICC.

DOI: 10.1093/jicj/mqp034

This article considers whether states are obliged or permitted to arrest Sudanese President Omar al Bashir pursuant to a warrant of arrest issued by the International Criminal Court (ICC). The article considers the extent to which the ICC Statute removes immunities which would ordinarily be available to state officials. It is argued that the removal of the immunity by Article 27 of the ICC Statute applies also at the national level, when national authorities act in support of the ICC. The article examines the application of Article 98 of the ICC Statute and considers the legal nature of Security Council referrals to the ICC. It is argued that the effect of the Security Council referral is that Sudan is to be regarded as bound by the ICC Statute and thus by Article 27. Given that the Statute operates in this case not as a treaty but by virtue of being a Security Council resolution, the removal of immunity operates even with regard to non-parties. However, since any (implicit) removal of immunity by the Security Council would conflict with customary international law and treaty rules according immunity to a serving head of state, the article considers the application of Article 103 of the United Nations (UN) Charter in this case.

ISBN: 1478-1387

This publication reproduces, in a collection of seminal works on collective security, an article first published in (1996) 8 African Journal of International Comparative Law. The chapter examiners the role and record of the international court in the settlement of disputes which are likely to affect international peace.