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].

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Crime of Aggression : Fusion of Jus Ad Bellum and Jus In Bello?

Written by Garima Tiwari

The Principality of Liechtenstein became the first country to ratify the Kampala amendments to the Rome Statute of the International Criminal Court (“ICC”) on the crime of aggression. Only one other country, Samoa has ratified the amendments on 25th September, 2012.[i] However, a total of 30 ratifications by States Parties are required as a condition for ICC to exercise jurisdiction over this crime in the future, no earlier than 1 January 2017.[ii] While we await the ratifications, an issue which was raised and would be raised, needs a look – what would be the impact of bringing together –jus in bello and jus ad bellum within the jurisdiction of same court for the crime of aggression?

At the core of the jus in bello is the principle that, regardless of the legality of the armed conflict (as determined by the jus ad bellum), all combatants have the same rights and duties in warfare. [iii] The most concrete distinction between the jus ad bellum and the jus in bello can be found in the Statutes of the Nuremberg and Tokyo Tribunals.[iv] For instance, one decides whether the use of armed force constitutes aggression or self-defence in accordance with jus ad bellum.[v] Extending the reach of international criminal law may generate indirect negative effects from the interaction of the ICC’s potential to prosecute the crime of aggression and the long-standing jus in bello, that body of rules governing how war is waged rather than why war is waged, which is the purview of the jus ad bellum.[vi]

It is contended that while genocide, crimes against humanity and war crimes are jus in bello crimes, dealing with comparatively straightforward factual questions (eg. the occurrence of a massacre, issuance of orders).  Aggression concerns jus ad bellum, and can entail subtle public international law questions, such as self-defence, territorial claims, self-determination or responsibility to protect. [vii] A violation of jus ad bellum is mainly thought to be a matter incurring state responsibility. When it comes to individual criminal responsibility for a violation of jus ad bellum, the definition of aggression has revealed it is a leadership crime, committed by a person “being in a position effectively to exercise control over or to direct the political or military action of a State”.Another way of reading this is that crime of aggression, is based on acts committed by the state, and fundamentally differs from the other three core crimes which are jus in bello crimes directed against particular individuals.[viii] The notion that an individual should be held liable for his or her contribution[ix]to the criminal conduct certainly lies at the heart of the general principles of individual criminal responsibility as provided for in Article 25 of the Rome Statute. [x]

It is no accident that the intellectual ‘father’ of the crime of aggression and the Nuremberg trials, William Chandler, wanted to do away with this distinction altogether,[xi]  thus  demonstrating that the crime of aggression is not easy to combine with the prosecution of violations of jus in bello. There has been rarely any argument which represents a fusion of the jus ad bellum and the jus in bello in aggression as an international crime with individual liability attached to it.[xii]

The legality of the decision to use force necessitates an inquiry into state action, and often involves foreign policy best left outside the court. Decisions regarding jus ad bellum, regardless of whether the defendant is a state or an individual, are laced with political issues and should remain with the U.N. Should the Council after determining the former issue then refer violations of jus in bello to the ICC, that would be appropriate.  Only in this regard is the complementary relationship between jus ad bellum and jus in bello kept intact. [xiii]

The impelling concern that was and still remains is that if the leadership of one party has already been singled out by ICC as the culprit in an armed conflict, what incentive does it have for upholding the jus in bello? [xiv] We need to wait and see how ICC handles the pressure, avoid getting politicized and balance the fusion while keeping itself aware of its purpose.


[ii] Press Release: Liechtenstein first country to ratify the Kampala amendments  on the crime of aggression, http://www.iccnow.org/documents/Press_release_Liechtenstein_-_ratification_Kampala_amendments_crime_of_aggression_EN.pdf

[iii] Gerhard Kemp,Individual Criminal Liability for the International Crime of Aggression,  Supranational Criminal Law Volume 7 (2010)

[iv] Yoram Dinstein,The distinctions between war crimes and crimes against peace,in Yoram Dinstein and Mala Tabory War crimes in International Law (1996) Kluwer Law International, The Hague, 1-18.

[v]  Machteld Boo, Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court, School of Human Rights Research , 6

[vi] Beth Van Schaack,The Grass That Gets Trampled When Elephants Fight: Will the Codification of the Crime of Aggression Protect Women?(2010) ExpressO Available at:  http://works.bepress.com/beth_van_schaack/3

[vii] Darryl Robinson, ICC Review Conference Opens in Kampala; Features Intriguing Hybrid Character, May 31,2010 available at http://www.ejiltalk.org/icc-review-conference-opens-in-kampala-features-intriguing-hybrid-character/

[viii] Anderson, The Rise of International Criminal Law: Intended and Unintended Consequences’, 20 EJIL (2009) 331, at 354.

[ix] David Rodin, War & Self-Defense (2002) Clarendon Press, Oxford, 167at  173

[x] Steven Nicholas Haskos, An Argument for the Deletion of the Crime of Aggression from the Rome Statute

of the International Criminal Court, 23 Pace Int’l L. Rev. 249 (2011)

Available at: http://digitalcommons.pace.edu/pilr/vol23/iss1/7

[xi] See the letter reprinted in Bush, ‘The “Supreme Crime” and its Origins: The Lost Legislative History of

the Crime of Aggressive War’, 102 Columbia L Rev (2002) 2324, at 2402.

[xii] Christopher Greenwood ,Scope of Application of Humanitarian Law in Dieter Fleck (ed) The Handbook of Humanitarian Law in Armed Conflicts (1995) Oxford University Press, Oxford, 39 – 63

[xiii] James Nicholas Boeving, Aggression, International Law, and the ICC: An Argument for the Withdrawal of Aggression from the Rome Statute, 43 COLUM. J. TRANSNAT‟L  L. 557, 582-3 (2005).

[xiv] Andreas Paulus, Second Thoughts on the Crime of Aggression, Eur J Int Law (2009) 20 (4),1117-1128.

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

An Assessment of Kampala: Final Comments

 Written by: Professor William Schabas [1]

The Kampala Review Conference of the Rome Statute provides a much-needed shot of legal adrenaline to the International Criminal Court. Several of the achievements at Kampala were relatively minor and inconsequential. Fortunately, they are dwarfed by the stunning accomplishment of the amendments of aggression, adopted in extremis early Saturday morning. Until about 1030 PM Friday night, I could not find anybody prepared to wager a significant sum of money on the likelihood of a positive outcome.

While much credit is due to the impressive diplomatic skills, and determination, of Christian Wenaweser, Prince Zeid and Stefan Barriga, who were the architects of the negotiations, personalities alone do not account for the result. At the Rome Conference, and for some years afterwards, I used to say that the Court was protected by a guardian angel. But this was just a metaphor for the fact that the Court, and international criminal justice, is – to paraphrase Victor Hugo – ‘an idea whose time has come’. And nothing can stop it. For some years, with the Court’s activity in the doldrums, I had lost sight of the guardian angel. But he/she was certainly in evidence last Friday and Saturday.

This time, though, the idea is a narrow one, and it is built around the crime of aggression. One striking difference with the Rome Conference was the relative absence of the NGOs at Kampala. They were there in a formal sense, especially at the beginning of the Conference, when the proceedings looked more like an academic seminar or a political meeting than a treaty negotiation. But many of them were quite indifferent to the incorporation of aggression into the Statute. I am struck by the resemblance of their attitude to the American position, which treats aggression as a bit tangential from the core mission of the Court, which is to promote human rights through the prosecution of the other core crimes, namely genocide, crimes against humanity and war crimes. Even the High Commissioner for Human Rights, who actually attended part of the Kampala Conference, has yet to issue a statement signaling the achievement of incorporating the crime of aggression in the Rome Statute.

Nothing could be more mistaken, however. The wise judges at Nuremberg described aggressive war as the supreme crime, encompassing the evil of all the others. What Kampala does is refocus our attention onto the importance of the prohibition of war – on the jus ad bellum. This is an important and helpful correction, and it is to be hoped that the message of Kampala will slowly percolate through the human rights discourse.

Those who are keen on the aggression issue are very troubled by the seven-year delayed entry into force. It would be a mistake to exaggerate the significance of this. Entry into force of amendments to treaties always takes time. The amending procedure is quite arcane, and even without the seven-year rule this would take a long time in any case. Although the amendment requires thirty ratifications and a positive decision by the States parties, this should not pose a serious problem, and both conditions should be fulfilled by 1 January 2017 or shortly thereafter.

Then, the result will be much better than had the Conference to what many thought was the appropriate amending process. Because the amendment will apply to all States parties, and not just those who have ratified it, provided of course they have not made an opt-out declaration. There may be some of these, but there is no cause for pessimism here. There will be a high political price to pay for any government that considers making an opt-out declaration. It is a price that many will prefer not to pay.

Nor should we lose sight of the incentive that the amendments create for States that have not joined the Court. According to article 15bis, a non-party State is immune from the Court’s jurisdiction over the crime of aggression. The Court cannot punish crimes committed by its nationals or on its territory. Some States will welcome this because it will insulate their nationals, but many will realize that they are being deprived of the deterrent power of the Rome Statute, in that aggression committed on their territory and against them totally escapes the jurisdiction. Hopefully, some of them will appreciate the interest in joining the Court because of this added layer of protection.

I am reminded of the importance that the first President of the Court, Philippe Kirsch, attached to the work on the crime of aggression. My recollection is that he felt it was important not only to show to States that the reference to aggression in article 5(1) had some substance behind it. He also explained that incorporating aggression in the Statute would help convince some States to join the institution. He was right at the time, and his vision has now borne fruit.

Those who are unhappy with the Court’s new mandate will try to pick holes in the legality of the amendments. It is true that they reflect some creative approaches, but everything passes what Roger Clark calls the ‘straight face test of advocacy’. Legal academics who support the Court, and the amendments, can assist judges in the future with reassurances that the amendments actually work. The Statute as adopted in Rome had its share of ambiguities. The Kampala Conference was able to find a workable way forward.

Beyond the adoption of the aggression amendments, there is really not much else to say about the Kampala Conference. It is of course positive to have repaired an oversight in the war crimes provisions. However, the amendment to article 8 is symbolic, and it is doubtful that it will ever lead to prosecutions. There have, to date, never been any international prosecutions for the use of such weapons. It is occasionally pointed out that Saddam Hussein used poison gas at Halabja, but it is absurd to suggest that the failure to recognize the use of such weapons as an international crime means that there is an impunity gap for such atrocities. They can be prosecuted as crimes against humanity and even genocide. Years from now, people will point the prohibited weapons issue at Kampala with irony, noting that the States Parties were able to address the prohibition of relatively archaic weapons that are rarely if ever used in modern combat, but that they could not deal with the important issues: anti-personnel mines, cluster munitions, depleted uranium weapons and, of course, nuclear weapons.

The Conference agreed to leave article 124 alone. The importance of this provision was always exaggerated, especially by the human rights NGOs. Amnesty International called it a ‘licence to kill’, but never attempted to provide evidence that could back up such a hyperbolic claim. Arguably, article 124 helped smooth the ratification of two States parties. If it can do this trick again over the next five years, then it will be worth leaving it in the Statute. And if it cannot prompt further ratifications, then how can it be claimed that any harm was done?

What the Conference failed to do was talk about the Court and its performance. There may have been good policy reasons for doing so. Perhaps Kampala was not the right place for a stocktaking on the activities, results and operations of the Court. But this subject cannot be avoided forever.


[1] Written on June 17, 2010, and posted after the close of the Kampala Conference. The original post can be found at: http://iccreviewconference.blogspot.com/. Professor Schabas regular blog can be found at: http://humanrightsdoctorate.blogspot.com/ 

 William Schabas  is Professor of international law at MiddlesexUniversity in London. He also holds appointments at LeidenUniversity, where he is professor of international criminal law and human rights, the National University of Ireland Galway, where he is emeritus professor of human rights and chairman of the Irish Centre for Human Rights, and the Law Institute of the ChineseAcademy of Social Sciences, where he has the title of honorary professor. He is a member of the RoyalIrishAcademy, an Officer of the Order of Canada, and recipient of several honorary degrees.