To Kill a Man with a Joystick

Written by: Teymour Aslam

With hindsight, it appears that the horrific events of September 11th, 2001, may have triggered a paradigm shift between established geopolitical alliances, altering conventional perceptions of, and existing relations between nation states, the manner in which international relations are conducted, and perhaps most relevantly, the utilisation of unconventional military tactics in situations which are becoming increasingly difficult to classify as conventional or traditional armed conflicts under IHL.  Continue reading

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How High are High Officials: Analyzing Obama’s Speech on Syria

The early hours of August 21, 2013 saw a drastic turn in the Syrian conflict as a chemical weapons attack on civilians living in the agricultural belt around Damascus took place. Three days after the attack, medical charity Medecins Sans Frontieres confirmed that three hospitals it supports in Damascus had treated about 3,600 patients with “neurotoxic symptoms” on the day of the attack; 355 of these had died.[1] Ever since there’ve been mutual accusations of the use of chemical weapons by the countering parties, namely Assad’s regime and the rebels,[2] which also caused a split of views and stances on the international plane. Yet, despite the absence of the forthcoming United Nations [hereinafter UN] report on the attack,[3] the parties to the conflict and the international community are all of no doubt that the attack has taken place. 10 days after the beginning of the political turmoil within the ‘concerned’ international community President Obama issued a statement on Syria accusing the Assad’s regime of the attack on its own people and calling for a targeted military strike to deter the regime from using the chemical weapons ever again.[4]

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Superior Orders under the Rome Statute: a Flawed Development

Individual criminal responsibility for the violation of the provisions of International Humanitarian Law is the matter of International Criminal Law. The latter, in turn, envisages different forms of responsibility for the crimes committed as well as certain grounds upon which one may be relieved of the aforementioned responsibility. Article 33 of the Rome Statute of the International Criminal Court deals with individual responsibility in cases of superior orders or the prescription of law and states that:

1.         The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

(a)     The person was under a legal obligation to obey orders of the Government or the superior in question;

(b)     The person did not know that the order was unlawful; and

(c)     The order was not manifestly unlawful.

2.         For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.[1]

Several interesting issues should be pointed in respect to this. First, in order to relieve one of individual criminal responsibility under Article 33 its conditions (a), (b) and (c) have to be met cumulatively. Moreover, Article 33 won’t be of much help when committing a crime of genocide or a crime against humanity pursuant to an order of the government or a superior. Thus, given that the Rome Statute currently envisages only three crimes which fall under the jurisdiction of the Court (genocide, war crimes, crimes against humanity), meeting the aforementioned criteria cumulatively arguably relieves a person of criminal responsibility only for the committal of war crimes.

One should bear in mind that this provision of the Rome Statute is different from those of the Charter of the International Military Tribunal (the Nuremberg Tribunal), the Charter of the International Criminal Tribunal for the former Yugoslavia and the Charter of the International Criminal Tribunal for Rwanda which provided for individual criminal responsibility of subordinates notwithstanding the circumstances. The decision of the ICTY on the case of Dražen Erdemović is notable in this regard. On the 16 of July 1995 Dražen Erdemović, a soldier of the 10th Sabotage Detachment, and others received an order to execute 1000-1200 men and boys who had surrendered to the members of the Bosnian Serb police or army near Srebrenica. Erdemović allegedly resisted the order, but was then told that he either shot them, or hand his gun to another, and join those to be killed. Erdemović followed the order and performed the execution. He was brought before the ICTY and found guilty notwithstanding the circumstances since the ICTY Charter did not contain provisions on the relief of criminal responsibility.[2] This was fortunately fixed in the Rome Statute, yet, one might argue that the latter has its own flaws.

Since the provisions of Resolution RC/Res.6[3] adopted at the Kampala Conference and amending the Rome Statute do not affect Article 33, one can reasonably argue that meeting its three criteria cumulatively also relieves one of criminal responsibility for the committal of the crime of aggression. The definition of the crime of aggression is set in Article 8 bis (1) of the Rome Statute:

For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

To narrow it down a bit in order for there to be a crime of aggression there has to be an act of aggression which constitutes a manifest violation of the UN Charter. Bearing in mind that the three criteria have to be met cumulatively a person is relieved of criminal responsibility only if the order of a superior or the government is not manifestly unlawful. If these two statements are put together, the following question arises: can an order to perform an act constituting a manifest violation of the UN Charter be not manifestly unlawful? I doubt it.

Moreover, as argued by P. Gaeta, “if the performance of an order by a superior implies the commission of a war crime, the order cannot but be considered manifestly unlawful, given the very serious nature of the conduct prohibited by the international rules on such crimes. The illegality of an order which constitutes a grave breach of the 1949 Geneva Convention (such as the order to kill, torture or threat inhumanely persons protected by the Conventions) is obvious.”[4]

Therefore, the provision of Article 33(1)(c) of the Rome Statute read in conjunction with Article 33(2) is arguably futile since it can hardly be applied to any crime at all, however, in the absence of any judicial practices in this respect it is hard to tell whether the ICC will unconditionally decline the challenges raised under it. Moreover, currently the Court primarily focuses on superiors and given that it operates in a highly charged political atmosphere and still has to assert itself within the international community the application of Article 33(1)(c) is not likely to happen within the near future.

Written by Jan Guardian


[1]       UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, Article 33 [online][accessed 31 July 2013].

[2]       Prosecutor v. Dražen Erdemović (Sentencing Judgement), IT-96-22-Tbis, International Criminal Tribunal for the former Yugoslavia (ICTY), 5 March 1998 [online][accessed 31 July 2013].

[3]       Kampala Review Conference, Resolution RC/Res. 6, 13th Plenary Meeting, June 11, 2010, I.C.C. Doc. RC/Res. 6 [online][accessed 31 July 2013].

[4]       Paola Gaeta, The Defence of Superior Orders, 10 EJIL 172 (1999), p. 185 [online][accessed 31 July 2013].

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.

Some Challenges Facing the Crime of Aggression

Written by: Regina Paulose

The efforts by the international community to formalize the crime of aggression as a “core crime” should be applauded.[1] The atrocities that have resulted from different degrees of conflict have legitimated the need for this particular crime, especially since its first formal appearance at Nuremburg.  As with all crimes, the interpretation of its elements will develop as cases are brought forward. However, there are two issues that will deserve a closer examination by the ICC.

How will “self defense” be interpreted?

In article 2 of the UN Charter, states shall refrain from the threat or use of force against the “territorial integrity or political independence of any state.”[2] There are exceptions that are used to deviate from this accepted international legal principle. The first is article 42, which authorizes the Security Council to take measures to maintain and restore international peace and security.[3] Article 51 gives all nations the “collective right of self defense” if a member is attacked.[4]  The issue of self defense is broad, and so this post now focuses on three specific sub issues.

First, how will self defense be determined? How will article 51 be interpreted when it is clearly different from self defense in a “regular” criminal context? At what stage in the proceedings will a determination be made that a country was acting in self defense? Will the ICC Prosecutors make a determination be made prior to charges being filed, or will the onus be on the defendant to raise that as a defense during the course of the case? What period of time would be allowed for a self defense claim to be valid if raised under article 51?

This leads to the second issue, how will history play a part in these proceedings? For example, in the wars between India and Pakistan, it would be difficult for a Prosecutor to isolate a single event, without looking at the history between the two countries. (Of course there are other problems with this particular situation – like whether Pakistan is in “effective control” of the groups that attack the Indian army at the Line of Control). In the same vein, whose historical lenses will the ICC use to evaluate a self defense claim?

Finally, will physical responses to verbal provocations be considered legitimate acts of self defense? The status quo has many situations, e.g., Israel and Iran, North Korea and South Korea, which are ripe to examine. Of course, international criminal law mandates that self-defense is only lawful if it is necessary and proportionate, but the international community has not come to a consensus on “anticipatory” self defense and its appropriateness.[5] It seems evident that the ICC will create new ground in terms of interpretation with regard to article 51 and its limits.

Are SOFA’s (Status of Forces Agreements) prosecutable?

Article 8bis (2) (e) provides the following:

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.

Many countries utilize SOFA’s to conduct military exercises, afford military protection, and to utilize certain space in a receiving country for another country to operate their military bases. It does not take a hefty imagination to think of different hypothetical scenarios which could fall under this provision. What is difficult to grasp is how violations of these agreements in reality can be criminal acts. The language of the article states “in contravention of the conditions provided for in the agreement.”

The majority (if not all) violations of SOFA agreements would amount to contractual disputes. As with all contracts, state parties would have certain protocols in place in case of a breach. How would the ICC handle situations where SOFA agreements would in essence, lock out the ICC? What could preclude parties from agreeing on terms that parties will not prosecute cases before the ICC, but instead, agree to settle through other means? Does the ICJ have a role in this scenario if the contractual dispute involves two state parties and the jurisdictional reach of the ICC?

Another interesting point to be examined is whether military exercises, such as “war games” are prosecutable under the language of this article.  This particular provision will certainly provide interesting debates.  It is hard to fathom that the Security Council, (the permanent members) would provide referrals under this provision, given their military strength and postures.

In Conclusion

As the international criminal law community waits for more parties to ratify the crime of aggression, scholars will continue to study and debate this core crime and its elements. By 2017, these discussions will have allowed for a vibrant exchange of ideas and interpretation surrounding the issues that have been raised by interesting legal and political critiques. As the international community has responded to the Lubanga decision, it is predicted that the same will occur for the first case that tackles the crime of aggression.


[1] For good background reading on Article 8bis see Jennifer Trahan, The Rome Statutes Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference, International Criminal Law Review 11 (2011) 49-104.

[2] Article 2, para 4, UN Charter

[3] Article 42, Chapter 7, UN Charter

[4] Article 51, Chapter 7, UN Charter

[5] Cryer, Friman, Robinson, and Wilmhurst, An Introduction to International Criminal Law and Procedure, 323, (2010), citing Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), (2005), ICJ Rep, para 147