Targeted Killings: a Summary

Targeted Killings

Currently there is no legal definition of targeted killings in either international or domestic law.[1] ‘Targeted killing’ is rather a descriptive notion frequently used by international actors in order to refer to a specific action undertaken in respect to certain individuals.

Various scholars propose different definitions. Machon, for example, refers to ‘targeted killing’ as an “intentional slaying of a specific individual or group of individuals undertaken with explicit governmental approval,”[2] whereas Solis suggests that for there to be a targeted killing (i) there must be an armed conflict, either international or non-international in character; (ii) the victim must be specifically targeted; (iii) he must be beyond a reasonable possibility of arrest; (iv) the killing must be authorized by senior military commanders or the head of government; (v) and the target must be either a combatant or someone directly participating in the hostilities.[3] But whereas some scholars seek to use a human rights-based definition, [4] others propose those which do not entail the applicability of international humanitarian law. [5]

However, such definitions are incorrect for several reasons. First of all, the definition of a ‘targeted killing’ has to be broad enough as to cover a wide range of practices and flexible enough as to encompass situations within and outside the scope of an armed conflict, thus, being subject to the application of both international human rights law and international humanitarian law, as opposed to the definition provided by some scholars and even states themselves.[6] Secondly, one should bear in mind that defining an act as an instance of ‘targeted killing’ should not automatically render the illegality of such an act at stake.[7] Moreover, the definition also has to cover situations where such an act is carried out by other subjects of international law, rather than only by states.

Therefore, maintaining an element-based approach and synthesizing common characteristics of multiple definitions, it is more advisable to use the one employed by Alston and Melzer, which refers to targeted killings as a use of lethal force by a subject of international law (encompassing non-state actors) that is directed against an individually selected person who is not in custody and that is intentional (rather than negligent or reckless), premeditated (rather than merely voluntary), and deliberate (meaning that ‘the death of the targeted person [is] the actual aim of the operation, as opposed to deprivations of life which, although intentional and premeditated, remain the incidental result of an operation pursuing other aims).[8]

Moreover, being a descriptive notion, ‘targeted killing’ does not entail legal rights and obligations per se. The legality of the actions referred to as an instance of ‘targeted killing’ is rather dependent on the compliance of such an action with the norms of international law applicable to it. As it has been argued before, given its descriptive nature and a broad scope of practices referred to as ‘targeted killings’, the notion is subject to the application of a complex legal framework. The legality of every instance of ‘targeted killing’ is to be assessed on a case-by-case basis, and whether or not a specific targeted killing is legal depends on the context in which it is conducted: in an armed conflict, outside an armed conflict, or in relation to the use of force.[9]

In cases of an armed conflict specific norms of international human rights law seize to apply and are substituted by those of international humanitarian law as lex specialis.[10] Whether a particular targeted killing is legal under international humanitarian law, whose applicability is triggered by the existence of an armed conflict,[11] is determined by several criteria. Firstly, a killing is lawful only when the target is a combatant or a civilian directly participating in hostilities.[12] Additionally, the killing must constitute a military necessity, the use of lethal force must be proportionate to the direct military advantage anticipated, whereas everything feasible must be done to minimize collateral damage and harm to the civilian population.[13] Moreover, these standards apply regardless of the character of an armed conflict.[14]

Whether a particular targeted killing is legal under international human rights law depends on the compliance of the use of lethal force with the requirements of necessity and proportionality. The requirement of necessity implies that there are no other means rather than the use of lethal force in order to prevent the threat to life, whereas proportionality implies that a killing is only legal to protect life.[15] Thus, proportionality limits the permissible level of force based on the threat posed by the suspect to others, whilst necessity imposes an obligation to minimize the level of force used, regardless of the amount that would be proportionate through, for example, the use of warnings, restraint, and capture. [16]

Therefore, the use of lethal force under international human rights law is legal if it is strictly and directly necessary to save life and, thus, ‘targeted killing’ as a deliberate, intentional and premeditated deprivation of life is illegal under international human rights law with killing itself being a sole objective of an operation, unless, such an operation is intended to save the lives of others.

It is customary international law that States have the right to use force to maintain domestic order. [17] However, a targeted killing conducted in the territory of another state might violate the principle of sovereignty and amount to aggression,[18] which is prohibited by Article 2(4) of the UN Charter.[19] Nonetheless, there are certain exceptions justifying such an extra-territorial use of force. An extra-territorial targeted killing does not violate the principle of sovereignty either if the state whose sovereignty is at stake consents, [20] or if the targeting state has a right to use force in self-defense in response to an ‘armed attack’ as provided for by Article 51 of the UN Charter. [21] The second exception entails the following prerequisites: the second state is either responsible for an armed attack against the first state[22] or the second state is unwilling or unable to stop armed attacks against the first state emanating from its territory. [23]

Moreover, the use of lethal force in self-defense in response to an ‘armed attack’ must also comply with the principles of necessity and proportionality. Proportionality requires that a state acting defensively employ no more force than reasonably required to overcome the threat. In the context of cross-border operations, this limitation means that the scale and nature of the force employed cannot exceed that which is necessary. [24]

Article 38(1)(b) of the Statute of the International Court of Justice accepts ‘international custom’ as a source of law, [25] but only where this custom signifies a general practice which constitutes opinio juris, i.e is accepted as law. [26] As it has been argued above, ‘targeted killings’ do not have a legal definition and, thus, are not treated as such by states.[27] Given the absence of such a treatment, we can reasonably argue that there is no opinio juris present and that there is, thus, no rule of customary international law emerging. Moreover, the legal framework governing targeted killings contains jus cogens, i.e. peremptory norms from which no derogation is possible and which can be modified only by subsequent norms of general international law of the same character. [28] What is most important in this context is that only several subjects of international law cannot create jus cogens and thereafter impose their interpretation on the majority of States. [29]

Therefore, both insignificant contemporary state practice and the absence of opinio juris do not attest the emergence of a rule of customary international law nor do they provide any justification for such actions, which are rather governed by the legal framework described above.

Written by Jan Guardian


[1]       Philip Alston, The CIA and Targeted Killings Beyond Borders , 2 Harv. Nat’l Sec. J. 283 (2011)(hereinafter Alston, Targeted Killings), p. 295.

[2]       Matthew J. Machon, Targeted Killing as an Element of U.S. Foreign Policy in the War on Terror. Fort Leavenworth, KS: School of Advanced Military Studies, 2006, p. 20.

[3]       Gary D. Solis. The Law Of Armed Conflict: International Humanitarian Law in War. Cambridge: Cambridge University Press, 2010 (hereinafter Solis, Law of Armed Conflict), pp. 542-43.

[4]       L. Gross. Moral Dilemmas Of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict. Cambridge: CambridgeUniversity Press, 2010, p. 106.

[5]       Michael 5 Solis, Law of Armed Conflict, supra note 3.

[6]       See e.g., Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02. IsrSC 57(6) (2006), p. 285.

[7]       Alston, Targeted Killings, supra note 1, pp. 297-298.

[8]       U.N. Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Addendum: Study on Targeted Killings, U.N. Doc. A/HRC/14/24/Add.6, May 28, 2010 (prepared by Philip Alston), paras. 1, 10; Nils Melzer. Targeted Killing in International Law. Oxford: OxfordUniversity Press, 2008, pp. 3-4 [online][accessed 26 February 2013].

[9]       Alston, Targeted Killings, supra note 1, p. 300.

[10]     Alston, Targeted Killings, supra note 1, p. 301.

[11]     See e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 J.C.J 226, July 8, 1996 [online][accessed 26 February 2013].

[12]     Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 3, Aug. 12., 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Convention I][online][accessed 26 February 2013]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 3, Aug. 12., 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85, [hereinafter Geneva Convention II][online][accessed 26 February 2013]; Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III][online][accessed 26 February 2013]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV][online][accessed 26 February 2013].

[13]     Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), art. 51, June 8, 1977, 1125 U.N.T.S. 3 [online][accessed 26 February 2013]; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), art. 13, June 8, 1977, 1125 U.N.T.S. 609 [online][accessed 26 February 2013].

[14]     Ibid.

[15]    See e.g., Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth U.N. Congress on Prevention of Crime and Treatment of Offenders, Havana., Cuba, Aug. 27-Sept. 7, 1990.

[16]     U.N. Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions (prepared by Philip Alston), U.N. Doc. A/61/311, September 5, 2006, pp. 42-44.

[17]     Malcolm Shaw, International Law, 6th ed. Cambridge: Cambridge University Press, 2008, p. 1126.

[18]     UN General Assembly, Definition of Aggression, A/RES/3314, December 14, 1974, art. 1 [online][accessed 26 February 2013].

[19]     United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI (hereinafter UN Charter), art. 2(4) [online][accessed 26 February 2013].

[20]     See, e.g., Ian Brownlie, International Law and the Activities of Armed Bands, 7 Int’l & Comp. L. Q. 712, (1958) hereinafter Brownlie, Armed Bands), p. 732.

[21]     UN Charter, supra note 19, art. 51.

[22]     Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice (ICJ), 9 July 2004, ICJ Rep 136, para 139 [online][accessed 26 February 2013].

[23]     Nils Melzer, Targeted Killing supra note 8, p. 288.

[24]     Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), December 19, 2005 , J.C.J. 116, para. 147 [online][accessed 26 February 2013].

[25]     United Nations, Statute of the International Court of Justice, 18 April 1946, art. 38(1)(b) [online][accessed 26 February 2013].

[26]     North Sea Continental Shelf Case (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), International Court of Justice (ICJ), 20 February 1969, ICJ Reports 1969, para. 77 [online][accessed 26 February 2013].

[27]     Alston, Targeted Killings, supra note 1, p. 295.

[28]     M. Cherif Bassiouni, International Crimes: ‘Jus Cogens’ and ‘Obligatio Erga Omnes’. In: Law and Contemporary Problems. Vol. 59, No. 4, p. 68.

[29]     C. Tomuschat, Obligations Arising for States Without or Against their Will, 241 Recueil des Cours (1993), p. 307.

Somewhat Short of a Universal Jurisdiction

Universal Jurisdiction

Article 105 of the United Nations Convention on the Law of the Sea of 1982[1] allows any State either on the high seas, or in any other place outside the jurisdiction of any State, to seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board as to decide upon the penalties to be imposed, and to determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.[2] This rule which has been codified only in the XX century is called ‘universal jurisdiction’ or the ‘universality principle’.[3]

However, as of today despite the universal acceptance of this rule as one of the oldest international customs[4] the issue of the practical implementation of the universal jurisdiction of states based on the aforementioned principle is extremely serious. In the absence of clear legal regulations governing its use, universal jurisdiction not only reduces the effectiveness of international struggle against piracy but in many cases is a limiting factor.

The universality principle is a unique legal phenomenon: in contrast to other types of international jurisdiction, universal jurisdiction is not based on the idea of sovereignty or acquiescence of a state, rather it strives to overcome them. Therefore, universal jurisdiction is often defined as one that might be exercised by a state against the will of others who possess either territorial or other forms of jurisdiction. The universal jurisdiction doctrine stems from the fact that some crimes are so dangerous both for each and every state and international legal order in general that their perpetrators should not enjoy impunity by resorting to the principle of respect for state sovereignty and inviolability of borders.[5]

Up-to-date, the vast majority of scholars are of the view that piracy is the only crime whose universal jurisdiction enjoys customary status. However, despite the fact that universal jurisdiction over piracy has existed for years there has been an extremely small number of judicial cases on piracy initiated by resort to this principle. Unfortunately, the fact that many states still do not allow their courts to exercise universal jurisdiction over pirates only worsens the situation.[6]

Moreover, any state which has such a jurisdiction may voluntarily abandon it in favor of another state.[7] Given such a situation, a fair state abandoning its jurisdiction would assume that the requiring state has a jurisdictional priority, whereas an unfair state would consider the feasibility of its actions on bringing the perpetrators to justice instead of being guided by the aim of protecting its citizens or fulfilling its international obligations. In any case the result will be the same: criminals might remain at large and continue their criminal craft.

The principle of universality is enshrined in miscellaneous international acts which theoretically should facilitate its implementation. However, in practice, the existing legal regulations are not sufficient as either to construct the mechanism of appropriate actions or to clarify the meaning of the principle. In this regard the work of the International Law Commission[8] on the synthesis of current practices and the development of common criteria for its contemporary use is deemed to be of an extreme importance.

Yet, the paradoxical situation related to the criminal jurisdiction still remains. Whereas some criminal offences entail the will of several states to exercise their jurisdiction over it, piracy as a crime of serious concern to international legal order does not enjoy the same privilege whilst states refuse to exercise jurisdiction referring to the existence of a right rather than an obligation. Thus, by avoiding proper action states actually shift the burden of punishing those responsible for piracy to states whose vessels or citizens will become victims of this crime the next time it happens. As a result, the principle which was conceived as a guarantee of the inevitability of punishment in practice turns into an instrument enabling states to avoid their international and domestic obligations.

Written by Jan Guardian


[1]       UN General Assembly, Convention on the Law of the Sea, 10 December 1982 [online][accessed 29 December 2012].

[2]       Ibid., art. 105.

[3]       For more information on universal jurisdiction, see: E. Kontorovich, A Positive Theory of Universal Jurisdiction. George Mason Law & Economics Research Paper No. 04-25, Arlington, VA: GeorgeMasonUniversity, 2004.

[4]       W. B. Cowles, Universality of Jurisdiction over War Crimes. 33 (2) California Law Review 189 (1945).

[5]       Mary Robinson, ‘Foreword’, The Princeton Principles on Universal Jurisdiction, PrincetonUniversity Press, Princeton, 2001, p. 16.

[6]       E. Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation, 45(1) Harvard International Law Journal 183 (2004).

[7]       See e.g.: A-G Israel v Eichmann , Supreme Court Judgment of 29 May 1962, (1968) 36 International Law Reports 291, para. 12(d).

[8]       UN General Assembly, Principle of ‘Universal Jurisdiction’ Again Divides Assembly’s Legal Committee. GA/L/3415, Sixty-sixth General Assembly, Sixth Committee, 12 October 2011 [online][accessed 29 December 2012].

Cutting off the Roots: Trafficking in Women from the CIS

Written by Jan Guardian

Trafficking Widespread human trafficking practices is the most disturbing yet common problem for both origin countries and destination countries in the Commonwealth of Independent States (hereinafter CIS).[1] International trafficking in girls and women from the former Union of Soviet Socialist Republics (hereinafter USSR) for purposes of sexual exploitation is a highly organized multi-billion revenue earning business.[2] For many years the main suppliers were represented mostly by African, Latin American and Asian countries, particularly by Thailand and Philippines.[3] However, the supply sources changed drastically throughout the past two decades. In the early 90s victims from the collapsed USSR and the socialist camp substituted their predecessors in many national sex markets as the fall of the USSR served a dam break making millions of potential victims easily accessible for human traffickers. Currently, former Soviet states such as Ukraine and Russia are the major suppliers of women to the international sex industry.[4] Generalized data on different countries of the European Union (hereinafter EU) shows that more than one third of all the women trafficked in 1999 and 2000 represented the CIS region, whereas now these are most of the victims in Germany, Belgium and Austria.[5]

It is extremely difficult to estimate the exact number of women trafficked from the former USSR for purposes of sexual exploitation. The trade is always behind the scenes, the voices of victims are scared into silence and prosecution seems to be somewhat a rarity. It is true that the CIS countries do have reliable statistics on trafficking instances that are declared but nevertheless it is obvious that most of them aren’t. The statistics at hand might be considered as reflecting the situation partially, but one should bear in mind that the real ‘shady’ numbers might exceed the official ones several times.

The trafficking routes are promptly known for the increasing number of women from the CIS region. Estimated 0,5 million women from Central and Eastern Europe are exploited sexually in the EU member states.[6] According to German data, nearly ninety percent of the women trafficked to Germany in 1998 originated from the Eastern Europe.[7] The Ministry of Internal Affairs of Ukraine estimated that the number of women trafficked from Ukraine for the past decades amounted to 400,000, whereas NGOs claim this figure to be much higher.[8]

According to the International Organization on Migration about five hundred thousand Ukrainian and Russian women were trafficked to Western Europe during 1991-1998.[9] Some statistics show that the number of women trafficked from Kyrgyzstan to Europe and Near East annually amount to 4,000; roughly 5,000 are trafficked annually from Kazakhstan.[10] Moldova, Ukraine and Russia currently occupy the leading position in trafficking women to the Western Europe. Approximately 50 to 100 thousand Moldovan citizens, more than 100 thousand Ukrainians and 500 thousand Russians are prostituting abroad with 80% of them being victims of trafficking.[11]

This being the case, one might reasonably question these figures given the national[12] and international,[13] individual and joint legislative efforts of the CIS member states on combating human trafficking. Moreover, with these arguably effective legal frameworks in place and the number of kidnappings for trafficking for purposes of subsequent sexual exploitation tending to zero,[14] it is highly likely that the majority of women trafficked from the CIS are recruited either through fraud, deception, and other enticements that exploit real social and financial needs, or in consent with the victims.[15] Lack of economic opportunities pushes citizens of the CIS countries away to seek for any kind of jobs anywhere,[16] mostly with single, unemployed females between the ages of 16 and 30 being at risk.[17] Impoverished women seeking employment and opportunities for the future abroad are lured by advertising images of a beautiful life beyond the borders of their homelands and are somewhat forced to make the choices that turn them into victims of human trafficking. The prime cause, thus, lies mostly in the realm of how to feed oneself and is better termed a survival strategy.[18]

Therefore, investing efforts in the prevention of human trafficking by the CIS member states requires not only introducing effective legislation in counteracting it and providing potential victims with access to information about their rights and threats of illegal employment,[19] but rather it requires enhancing national socio-economic environments, for poverty and despair are the main roots of the problem in the region at stake.[20]


[1]       Irina Ivakhnyuk, Migration in the CIS Region: Common Problems and Mutual Benefits. UN/POP/MIG/SYMP/2006/10. 28 June 2006 [hereinafter Ivakhnyuk, Migration], p. 4.

[2]       See e.g.: Patrick Besler, Forced Labor and Human Trafficking: Estimating the Profits. International Labor Office, 2005, p. 14.

[3]       Martti Lehti, Trafficking in women and children in Europe. HEUNI Paper No. 18. Helsinki, 2003 [hereinafter Lehti, Trafficking], p.8.

[4]       Donna M. Hughes, The ‘Natasha’ Trade: The Transnational Shadow Market of Trafficking in Women. Journal of International Affairs 53(2), Spring 2000 [hereinafter Hughes, Trade], p. 626.

[5]       United Nations Office on Drugs and Crime, Trafficking in Persons to Europe for Sexual Exploitation. Extracts from “The Globalization of Crime – A Transnational Organized Crime Threat Assessment” Report, p. 2

[6]       Rombola, M., The Causes of the High Rate of Sex Trafficking from Central and Eastern European Nations to Western Europe. Unpublished Research Report Submitted to The University of Sydney.

[7]       Hughes, Trade, supra note 4, p. 627.

[8]       David Masci, Human Trafficking and Slavery: the Issues. The CQ Researcher 14(12), 26 March 2004, p. 277.

[9]       Stanislava Buchovska, Trafficking in Women: Breaking the Vicious Cycle. In: Making the Transition Work for Women in Europe and Central Asia, Marnia Lazreg (ed.), World Bank Discussion Paper No. 411. 2000, p. 85.

[10]     Trafficking in Persons in Central Asia: The Scope of the Problem and the Appropriate Responses. Regional Central Asia Conference “Combating Trafficking in Human Beings – Regional Response” Jointly organized by the OSCE and the Republic of Kazakhstan. Astana, Kazakhstan 18-19 May 2006.

[11]     Lehti, Trafficking, supra note 3, p. 29.

[12]     For an overview of the current national CIS member states’ legislation on the offence of trafficking in persons see: UN Office on Drugs and Crime, Global Report on Trafficking in Persons, February 2009, available at: http://www.unhcr.org/refworld/docid/49997ae45.html [accessed 1 November 2012], pp. 205-231.

[13]     CIS Council of Heads of States, Program on Co-operation of States Members of the Commonwealth of Independent States in Combating Trafficking in Human Beings for 2011-2013, 10 December 2010, available at: http://cis.minsk.by/reestr/ru/index.html#reestr/view/text?doc=2980 [accessed 1 November 2012].

[14]     Graeme R. Newman, The Exploitation of Trafficked Women. Problem-Oriented Guides for Police; Problem-Specific Guides Series, Guide No. 38, p. 10.

[15]     Cwikel, J., B. Chudakov, M. Paikin, K. Agmon & RH Belmaker (2004). Trafficked female sex workers awaiting deportation: comparison with brothel workers. Archives of Women’s Mental Health 7(4), pp. 243-249.

[16]     Kireyev, A. (2006) The Macroeconomics of Remittances: the Case of Tajikistan. International Monetary Fund Working Paper 06/02. Washington, D.C.

[17]     See generally: U.S. Department of State, Trafficking in Persons Report 2010. 14 June 2010, available at: http://www.state.gov/j/tip/rls/tiprpt/2010/142759.htm [accessed 1 November 2012].

[18]     Ivakhnyuk, Migration, supra note 1, p. 7.

[19]     Mukomel, V., Migration policies of Russia: the post-Soviet contexts. Moscow: Institute for Sociology of the RussianAcademy of Sciences. 2005, p. 15.

[20]     See e.g.: BelTA, Belarusian legislation in counteracting human trafficking one of CIS’ most effective. 3 June 2008, available at: http://news.belta.by/en/news/society?id=230643 [accessed 1 November 2012].

Reaching Mutual Consensus: ICC, ICJ and the Crime of Aggression

Written by Jan Guardian

International Criminal CourtNone should underestimate the significance of the outcome of the first Review Conference on the Rome Statute of the International Criminal Court (hereinafter ICC),[1] namely, the adoption of a resolution[2] amending the Rome Statute that includes a definition of the crime of aggression[3] and the conditions under which the Court, in the future, could exercise jurisdiction with respect to the crime.[4] Whereas the definition of the crime of aggression is rather clear and was laid down a while ago by the Special Working Group on the Crime of Aggression,[5] and the preconditions for the exercise of the jurisdiction over the crime by the ICC raise minor concerns, if any at all, there are still some ambiguities in respect to the hypothetical possibility of the ICC and the International Court of Justice (hereinafter ICJ) reaching different conclusions in their decisions regarding the unlawful use of force and, thus, establishing either the presence or the absence of an act of aggression.

Given that the ICC is fully seized with the crime of aggression in any particular situation and that by the time the ICC proceeds to a verdict on a prosecution for the crime of aggression the Security Council has likely already made any conflicting decision possible,[6] the ICC judges are authorized to make their own determinations on aggression, since such, made by an organ outside the ICC “shall be without prejudice to the Court’s own findings” under the Rome Statute.[7] Hence, if the case is subject to simultaneous consideration by the ICC and the ICJ, there is ample risk that this will amount to inconsistent decisions.

The classic example of a similar decisional inconsistency between the judicial bodies of the international legal order is that of the ICJ and the International Criminal Tribunal for the former Yugoslavia in Nicaragua[8] and Tadić[9]cases, largely referred to in the legal literature as one of the inconsistencies leading to the fragmentation of international law.[10] The consequence of such an occurrence in the cases brought before the ICJ and the ICC appears to be particularly problematic given the highly-charged political atmosphere in which the ICC has been operating during the years, its fragile credibility and a lack of a proper institutional hierarchy within the international legal system.[11] Yet, the point is not to take a stand in favor of either of the two bodies, but rather to create a functional and logical system that would eliminate any discrepancies at an early stage of the proceedings in the case of aggression, which is deemed to be especially important in the light of the tensions between the states concerned.

A reasonable suggestion would, thus, be for the ICC to request the General Assembly to seek an advisory opinion from the ICJ pursuant to Article 96(a) of the United Nations Charter (hereinafter UN Charter)[12] and Article 65(1) of the ICJ Statute,[13] or to be so authorized by the General Assembly to request such an opinion proprio motu at any time pursuant to Article 96(b) of the UN Charter[14] as to enable the ICC to use the findings of the ICJ and for such a request to be a precondition for the exercise of the jurisdiction by the ICC.

It is worth mentioning, that this option was included in the Discussion Paper proposed by the Coordinator of the Preparatory Commission for the ICC[15] but was somehow dismissed later on. One of the main arguments against this option was that “because the determination of the existence of an act of aggression is a matter that affects the responsibility of a particular State that it is inappropriate as a subject of a request for an advisory opinion.”[16] However, this is quite arguable in the light of the fact that (1) the issue of an advisory opinion does not trigger state responsibility per se, and that (2) the interstate dispute at stake and subsequent determination of state responsibility will only be subject of consideration of the same judicial body that issued the advisory opinion, namely the ICJ, which is well-known for its consistency. Therefore, the request of the advisory opinion of the ICJ by the ICC in cases concerning the crime of aggression seems to be a logical choice, but the question whether, if at all, this scheme will be put into operation remains.

 


[1]       UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.unhcr.org/refworld/docid/3ae6b3a84.html [accessed 12 October 2012].

[2]       Rev. Conf. of the Rome Statute, 13th plenary meeting, June 11, 2010, I.C.C. Doc. RC/Res. 6 (advance version) (June 16, 2010)[hereinafter RC/Res. 6].

[3]       Ibid., Annex I, art. 8 bis (1).

[4]       Ibid., Annex I, art. 15 bis, 15 ter.

[5]       David Scheffer, States Parties Approve New Crimes for International Criminal Court. ASIL Insights, Vol. 14, Issue 16, June 22, 2010, p. 5.

[6]       Mark Stein, The Security Council, the International Criminal Court, and the Crime of Aggression: How Exclusive is the Security Council’s Power to Determine Aggression?. IND. INT’L & COMP. L. REV., Vol. 16, Issue 1 (2005), p. 33.

[7]       RC/Res. 6, supra note 2, Annex I, art. 15 bis (9), art. 15 ter (4).

[8]       Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, International Court of Justice (ICJ), 27 June 1986.

[9]       Prosecutor v. Dusko Tadic (Appeal Judgment), IT-94-1-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 15 July 1999.

[10]     Enzo Cannizzaro, Interconnecting International Jurisdictions: A Contribution from the Genocide Decision of the ICJ. European Journal of Legal Studies, Issue 1 (2007), p. 4.

[11]     International Law Commission, Report of the International Law Commission, 58th session (1 May – 9 June and 3 July – 11 August 2006), 2006, A/CN.4/L.682, para. 51.

[12]     United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI [hereinafter UN Charter], art. 96(a).

[13]     United Nations, Statute of the International Court of Justice, 18 April 1946, art. 65(1).

[14]     UN Charter, supra note 12, art. 96(b).

[15]     Preparatory Commission for the International Criminal Court, Definition of the crime of aggression and conditions for the exercise of jurisdiction: Discussion paper proposed by the Coordinator, 9th session (8-19 April, 1-12 July 2002), 2002, PCNICC/2002/WGCA/RT.1, para. 4.

[16]     Crime of Aggression: Statement by the United States, September 26, 2001.