Human Rights Watch Commentary to the 5th Preparatory




Crimes Against Humanity
The Chapeau
Elements of Particular Crimes
War Crimes
Knowledge of the Conflict
Proportionality, Military Advantage


Article 98
Rule 9.9 (b) and (c): Arrangements for Surrender

The June Preparatory Commission will be a particularly challenging negotiating session. As the final session dedicated to the elaboration of the Elements of Crimes and Rules of Procedure and Evidence, time limitations are considerable, as are the tasks outstanding. Human Rights Watch shares the concern and commitment of the vast majority of delegations to see these documents completed and the mandate of the Preparatory Commission fulfilled.

However, it is at least as important for the future of the ICC that attempts to undermine the Statute and its goals be firmly rejected. It is essential that the Elements and the Rules do not deviate from the Statute, constitute a regressive step in the development of international law or put unnecessary obstacles in the way of speedy, fair and effective prosecutions. These principles must be applied equally to all issues still to be resolved by the Preparatory Commission. Particular vigilance will be required to ensure that efforts to undermine the ICC's ability to effectively prosecute crimes of sexual violence are resisted.

In recognition of the shortage of time, this Commentary focuses very selectively on those aspects of the rolling texts of the Elements and Rules of Procedure and Evidence that are matters of particularly serious concern. Certain issues before this PrepCom are matters on which the credibility and effectiveness of the ICC hinge. As explained below, these include attempts to unravel the Statute's key provisions, through a proposed rule to Article 98, and to severely restrict the Court's purview, through wholly unacceptable language in the chapeau to crimes against humanity.(1)

Human Rights Watch looks forward to working closely with delegations as they rise to meet the latest challenge in the creation of an independent and effective international criminal court.


This Commentary focuses on the crimes against humanity provisions to be negotiated at the June session of the Preparatory Commission. It also addresses a very select number of issues from the war crimes provisions negotiated at the last session, which we believe require further consideration. Unless otherwise specified, references to the rolling text in the crimes against humanity section refer to PCNICC/1999/L.5/Rev.1/Add.1, issued following the December session of the PrepCom.


· The detailed elaboration of elements for crimes against humanity is particularly unnecessary given the detailed definitions provided in Article 7 of the Statute itself. It may therefore suffice to rely on the statutory provision or to replicate its terms in the Elements document. Any elaboration beyond the statutory terms must be consistent with international law and practice, including the significant experience of the ad hoc tribunals for the former Yugoslavia and Rwanda in this area.

Article 7 of the ICC Statute sets out in considerable detail the scope of the Court's jurisdiction over crimes against humanity. Article 7(1) enumerates conduct that may constitute a crime against humanity if it meets the threshold of having been "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack." Article 7(2) goes on to specify in detail what constitutes an 'attack' for this purpose, and provides detailed definitions of the vast majority of the enumerated acts. As such, much of what would otherwise be contained in the 'elements' document is already contained in the Statute.

The international criminal tribunals for the former Yugoslavia and Rwanda ('ICTY' and 'ICTR' respectively) have developed extensive experience in the prosecution of crimes against humanity and have made a unique contribution to the development of international law in this field. The elements of crimes against humanity within the jurisdiction of the ICC purposes must be drawn up within the framework of existing international law, reflecting the jurisprudence of the international tribunals in particular while allowing the flexibility for the living body of law to develop in the future. Elements of that jurisprudence are set out, where appropriate, below.

The elements should also be internally consistent, and the texts of the elements of war crimes and crimes against humanity may have to be harmonized. However, when negotiating the crimes against humanity provisions we urge delegates not to feel bound by the text negotiated in the war crimes context. The crimes against humanities negotiations provide an opportunity to create stronger provisions that better reflect international law or practice, for example in relation to slavery(2), and this opportunity should not be lost. The war crimes section can then be brought into line with the improved approach.


The Statute defines the "attack against a civilian population" required for crimes against humanity as meaning "a course of conduct…pursuant to or in furtherance of a State or organizational policy to commit such attacks."(3) The Elements rolling text provides: "[I]t is understood that a 'policy to commit such attack' requires that the State or organization actively promote or encourage such conduct as an attack against a civilian population."

Recommendation: The requirement in the rolling text that a State or organization "actively promote or encourage…" should be deleted from the chapeau. Any elaboration on the meaning of 'policy' must be consistent with the Statute and international law. As such, it should cover policies of toleration, acquiescence, explicit or implicit approval or endorsement, direct or indirect encouragement or promotion.


Inconsistency with the Spirit and Letter of the Statute

The interpretation of "policy" in the rolling text represents a dangerous departure from the letter and spirit of the Statute. The mandate of the Elements exercise is, as has often been recalled, to assist the Court in the application of the Statute,(4) not to alter its substance. The guiding principle of the exercise has been the need to ensure consistency with the Statute. The current text falls foul of this principle and must be unequivocally rejected.

Delegates will recall that the 'policy' reference in the Statute is itself the result of a delicate compromise achieved at the Rome conference. The policy language was included at the final stages of the conference, on the understanding that it was a flexible concept which would provide additional assurance that isolated acts would not be treated as crimes against humanity.(5) It was not intended, and cannot reasonably be construed, to impose a rigorous new jurisdictional threshold, as represented by the 'actively encourage or promote' language.(6)

To present the imposition of an unjustifiable new threshold as an 'understanding' of how the Statute should be interpreted is disingenuous. Delegates are urged in the strongest terms to insist on deleting this gloss or formulating an alternative that encompasses State or organizational policies that are inactive or tacit.

"…actively encourage or promote…"

The attempt to restrict the Court's jurisdiction over crimes against humanity to situations where the prosecutor can prove that a State or organization "actively encouraged or promoted" the attack would seriously curtail the ability to prosecute the most serious international crimes. History attests to many such situations where crimes against humanity have been committed with the toleration, acquiescence, endorsement, or indirect or implicit encouragement or promotion of State authorities.(7) It should be borne in mind that in these situations national justice systems are often themselves reflective of the policy of acquiescence or turning a blind eye, and therefore unable or unwilling to prosecute.(8) If impunity is to be avoided and crimes deterred, it is precisely in these sorts of situations that the ability of the ICC to act will be critical.

Delegates should also bear in mind the onerous evidentiary burden that may be involved in proving a State or organizational policy of 'active' encouragement to commit atrocities. This is especially true in the not infrequent situation where the policy was covert and the State or organization continues to control access to relevant evidence. If the policy requirement is not to pose an insurmountable obstacle, it must be possible to infer the policy from the nature of the attack.(9) In many situations, it would be virtually impossible for the Court to draw an inference of 'active' as opposed to 'tacit' encouragement.(10)

• The Appropriate International Standard: Legal Authorities

International legal authorities have long interpreted crimes against humanity to encompass crimes committed pursuant to a State or organizational policy of toleration or acquiescence, not only active promotion. The Nuremberg Tribunals required only that there be proof of participation in "systematic government organized or approved procedures."(11) Similarly, the 1954 International Law Commission's 'Draft Code of Offences Against the Peace and Security of Mankind' defined the precursor of crimes against humanity as those "inhuman acts…committed…by the authorities of a State or by private individuals acting at the instigation or with toleration of such authorities (emphasis added)." (12)

The jurisprudence of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda also points to a standard considerably more flexible than that in the draft chapeau. Delegates should be guided in particular by the most recent judgment of the ICTY in this respect. In the Kupreskic judgment of 14 January 2000, the Tribunal Stated that "[t]he need for crimes against humanity to have been at least tolerated by a State, Government or entity is stressed in national and international case-law" (emphasis added).(13) The judgment goes on to State that "[t]he available case-law seems to indicate that some sort of explicit or implicit approval or endorsement by State or governmental authorities is required" (emphasis added).(14)

Likewise, in both of the earlier cases of Akayesu(15) and Tadic(16), the criminal Tribunals emphasized that for conduct to rise to the level of crimes against humanity, it must have a connection to a policy that is "preconceived" or "consciously pursued" by a State or organization. Neither, however, has required that this policy be 'actively' pursued.

Recommendation 2: In the final sentence of the Chapeau, the phrase "such conduct as an attack" should be deleted and replaced with "such attack," in order not to appear to limit the Court to situations where there was a policy to carry out the particular acts in question.

Commentary: The final phrase of the chapeau should be revised to ensure that the Elements are consistent with the Statute and do not purport to limit the Court's jurisdiction. The policy required by the Statute is a "policy to commit such attack" not a policy to carry out certain specific acts, as the current rolling text indicates. The fact that a State or organization may not have had a policy to commit the particular type of atrocity inflicted should not preclude the Court's jurisdiction where there was a policy to attack the civilian population. Such specific policies may rarely exist and, where they do, would be extremely difficult to prove given that policies to commit crimes against humanity are generally covert in nature.

Delegates will recall that the wording of the Statute is quite deliberate in this respect. An earlier draft of the provision, proposed by Canada during the Rome diplomatic conference, referred to a "policy to commit such acts." This phrasing met with considerable concern that Prosecutors would then have to show not merely that the State or organization had a policy to commit crimes against humanity but that it had a policy to commit those specific acts.(17) As a result of these concerns, the "policy to commit such attack" language was adopted.(18)

These concerns remain as valid today, and delegates should ensure consistency with the Statute and prevent valuable gains achieved during the Rome diplomatic process being undermined in the Elements document.


Article 7(1)(i): Enforced Disappearance of Persons

The rolling text for this crime includes the following Elements:

3. The accused arrested, detained or abducted one or more persons, whether lawfully or unlawfully;

5. The accused subsequently refused, or was aware of a refusal, to acknowledge the deprivation of freedom or to give information on the fate or whereabouts of such person or persons;

6. The accused intended to remove such person or persons from the protection of the law for a prolonged period of time.

The definition and interpretation of enforced disappearance in international instruments(19) is rooted in the understanding that the crime is most often committed by a network of collaborating people, generally pursuant to a State policy. As these international instruments address State responsibility, to date there is little jurisprudence on individual responsibility for the crime of enforced disappearance.(20) However, it is worthy of note that the decisions and judgments of the Inter-American Commission of Human Rights(21) and the Inter-American Court of Human Rights,(22) which recognize an affirmative duty on States to prosecute those responsible for enforced disappearances, do not distinguish between the criminal responsibility of organizers of enforced disappearance and of their agents. Each of them can be responsible for the crime by performing one or more of the requisite Elements, and delegates should ensure that the Elements adequately reflect this.

It is recognized that, as for all crimes in Part Two of the Statute, Article 25 of the Statute addresses the question of differing degrees of individual criminal responsibility. An individual may be directly involved in the execution of some elements of the crime and only indirectly involved in others, in accordance with the forms of criminal responsibility set out in article 25(3) of the Statute.(23) However, it is suggested that, given the inherently collective nature of this particular crime, and the notorious difficulty in proving its perpetration, some further clarification along the lines highlighted below is necessary to assist the Court in the application of Article 7(1)(i), and ensure that all those responsible for this crime against humanity can be brought to justice.

Recommendation 1: It should be clarified that "the accused…detained… one or more persons" in the third element of the rolling text encompasses not only responsibility for the initial act of detention but also for subsequent continuing detention.

In cases of enforced disappearances, the initial arrest, detention or abduction of the person may long precede the ongoing refusals to acknowledge the deprivation of liberty and may be perpetrated by persons other than those responsible for the ongoing detention. The Elements should ensure that someone responsible for the ongoing detention could be criminally liable (provided all other Elements are satisfied) even if that person did not initially detain the victim. In this situation, the person responsible for the ongoing detention is not an unwitting jailer--he or she must be shown to refuse to acknowledge the deprivation of liberty and intend to remove the person from the protection of the law.

Recommendation 2: The fifth element of the rolling text should cover not only situations where the perpetrator refused to acknowledge the deprivation of liberty or was aware that there had been such a refusal, but also situations where the perpetrator was aware that such refusal would occur in the ordinary course of events.

Commentary: The fifth element of this crime in the rolling text currently provides that "the accused subsequently refused, or was aware of a refusal, to acknowledge the deprivation of freedom or to give information on the fate or whereabouts of such person or persons."

The difficulty with the formulation that "the accused …was aware of a refusal" is the apparent requirement that the accused be aware of the fact that a "refusal" had already occurred. In reality, the accused may fall out of the picture immediately upon completion of the initial abduction, with the subsequent refusal falling perhaps to the relevant authorities or other link in the criminal chain. It should be sufficient that an individual responsible for the initial act of abduction, for example, carried out with the intention to remove the victim from the protection of the law,(24) be aware that a subsequent refusal to acknowledge the victims' whereabouts would ensue in the ordinary course of events.(25)


Article 7(1)(h): Persecution

Article 7(1) of the ICC Statute provides for the Court to have jurisdiction over "persecution against an identifiable group or collectivity on political, racial … or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court." Article 7(2) goes on to define persecution for the purpose of the ICC as "…the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity."

The key elements of persecution for ICC purposes are therefore set out in the Statute itself. Delegates are encouraged against further delimitation. In particular, they are urged to reject any attempt to raise the threshold for the Court's jurisdiction over this crime against humanity.

• 'Universally recognized' rights

Recommendation: Footnote 22 of the rolling text notes that "some delegations want to add the concept of universal recognition to qualify 'fundamental rights'". The 'universally recognized' language is an attempt to significantly raise an extremely high statutory threshold, and should be rejected.(26)

Comment: As set out above, the Statute provides that the grounds on which persecution occurs, beyond those specified in Article 7, must be 'universally recognized'. There is no suggestion however that the rights infringed must also be universally recognized. Rather, the Statute is explicit that there must be a 'severe deprivation' of 'fundamental rights'. The addition of the proposed language would therefore be inconsistent with the Statute.

The statutory requirement of severe deprivation of fundamental rights is already extremely strict. Delegates should be vigilant against further restriction which may rob persecution of its meaning as a separate crime against humanity. It is well-established that the essence of persecution lies in the underlying discrimination.(27) Persecution may comprise a host of violations of human rights which in themselves are not egregious, but which amount to crimes against humanity when committed with the requisite discriminatory intent.(28) As noted in the recent judgment of the ICTY in the case of The Prosecutor vs. Blaskic, the nature and gravity of the crime of persecution derive not from the severity of acts, but from the intent with which they are carried out.(29)

Moreover, the scope of "universally recognized rights" is unclear and confusing. There is no consensus as to what would constitute 'universal' recognition, still less as to which rights might fall within this category. Seeking to restrict the definition in this way would obfuscate rather than clarify the scope of the crime, inconsistent with the objective of the Elements document, which is to assist the Court in the application of the Statute. Delegates are urged to take care not to render meaningless the Court's jurisdiction over persecution by reducing it to the commission of a restricted and ill defined group of human rights violations.

'Belonging' to the group

Recommendation: The reference to the person or persons having been targeted by reason of their "belonging to" an identifiable group or collectivity may restrict the Statute and should be revised.(30) Instead, the wording of the Statute itself should be replicated. It provides that the individuals were targeted "by reason of the identity of [a] group or collectivity".


There is nothing in the Statute to support the view that persecution can only be committed against persons who were members of or 'belonged to' the identifiable targeted group. The Statute contains the more flexible criterion that the persecution was by reason of the identity of the group. In the vast majority of cases, including those that have come before the ICTY,(31) persecution does involve violations against people who are members of the targeted group. But "persecution against a group or collectivity" could also encompass persecution of those who sympathize with or provide support to the group, such as those who assisted the Jews and suffered persecution during the Second World War. Persecution may therefore result not from their 'belonging to' the identifiable group or collectivity but from their actual or perceived association with it.(32) Such persecution would be covered by the statutory definition, but may be excluded by the elements as currently drafted. The Elements should be brought into line with the Statute to avoid any inconsistency or inadvertent omission in this regard.


Article 7(1)(f): Torture

See also Article 8(2)(a)(ii)-1

Recommendation: The elements of torture should not include a reference to the purpose for which the torture is committed.


Article 7(2) of the Statute contains a definition of torture, which does not include any purpose requirement. This was one of two departures from the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, 1984.(33) Since the Diplomatic Conference, it has been noted by commentators closely involved in negotiations that the definition of torture in the Statute "is based on the Torture Convention, but it is not restricted to acts of public officials [and] [m]oreover, there is no requirement of any particular purpose…"(34) The current rolling text for the crime against humanity of torture does not include a purpose requirement, and this should be supported. We note with some concern the footnote reference to the fact that some delegations favor the inclusion of a purpose requirement.(35) We urge instead that delegates respect the text of the Statute and refrain from inserting additional requirements, however framed, to the Elements.


Article 7(1)(c): Crime Against Humanity of Enslavement

Article 7(1)(g)-2: Crime Against Humanity of Sexual Slavery

See also Article 8(2)(b)(xxii)-2: War Crime of Sexual Slavery

The rolling texts for each of these crimes include an element which provides that "[t]he accused exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty."

Recommendation: The illustrative lists of slavery like practices in the rolling text of the crime against humanity of enslavement and sexual slavery should be deleted. If such lists are retained, they should be expanded to include the most common forms of modern day slavery-like practices. The war crimes text should be brought into line with these amendments.


The current rolling text for the crime against humanity of slavery seeks to limit the scope of the Statute, which reflects a long established definition of slavery as contained in international instruments.(36) This is inconsistent with the objective of the Elements document and should be rejected.

• Modern Slavery-like Practices

By restricting the examples of enslavement to traditional forms of slavery involving commercial transaction, and other 'similar' forms of deprivation of liberty, the text fails to embrace slavery-like practices in the modern world. If the Court's jurisdiction over this crime is to be meaningful, it must encompass practices such as debt bondage and forced labor.(37)

As commentators on the statutory provision have recently noted, "[g]iven the horrors of enslavement during the Second War World War and the new forms of enslavement practiced in former Yugoslavia and Rwanda, it is difficult to believe that the drafters intended to restrict the Court's jurisdiction to a merely symbolic one over the traditional forms of slavery where legislation provided that one human being had the right to own another human being as a mere chattel." They go on to note that "…[h]ad the Court existed in 1945, under such a restrictive reading it would not have had jurisdiction over the persons who used slave labor in Nazi Germany."(38)

• 'The Illustrative Approach'

We recognize that the lists in the rolling text are illustrative and not exhaustive. However, the use of "such as" language is generally construed as limiting the scope of the definition to conduct of a similar nature to that specified in the list. In the rolling text 'deprivations of liberty' are specifically restricted to deprivations of a 'similar nature' to those set out in the list. In this case the common element to all of the examples--which may be perceived as the essential common element-- is the commercial exchange involved.

Delegates are urged to refrain from this illustrative approach. Examples are not elements. They do not therefore belong in this document, as reflected in the fact that the Elements document does not generally provide examples of the sort of conduct encompassed in the statutory definition. Moreover, these examples seek to crystallize the definitions and limit the Court based on specific, and in this case very selective, experience.

The essence of slavery lies in the exercise of the power of ownership, as reflected in the Statute and international law. Slavery involves limitations on the individual's autonomy, and in the case of sexual slavery specifically on the power to decide matters relating to one's own sexuality, in a manner and to a degree that corresponds to the exercise of a power of ownership. If any further elaboration on the statutory definition is sought, it should be along these lines.

There is no necessary link with 'transactions', still less with transactions of a commercial nature, and lists that appear to indicate otherwise should be deleted. In this respect, delegates may be guided by the Foca case currently before the ICTY.(39) In that case, the victims were detained in private apartments,(40) subjected to rape and forced to work. There is nothing in the indictment to suggest that commercial exchange was an essential component of their enslavement. It is worthy of note that this is the first case before an ad hoc international criminal tribunal in which an accused has been charged with enslavement. Delegates should ensure that the current elements do not impede similar prosecutions of the crime of slavery by the ICC.

At the March session of the PrepCom, Human Rights Watch was concerned to note the reluctance of delegates to change the current language regarding sexual slavery in the context of the war crimes negotiations.(41) Another opportunity exists to address these issues in the context of the crimes against humanity negotiations. We urge delegates to take advantage of the opportunity to press for satisfactory language that will not undermine the court's ability to meaningfully prosecute crimes of this nature in the modern context.



Recommendation: The language in the rolling text requiring a subjective evaluation by the accused as to the existence of an armed conflict should be deleted.

In the Human Rights Watch Commentary to the March 2000 PrepCom, we set out in detail why we believed that "the elements should not impose, directly or indirectly, any burden on the prosecutor to prove that the accused knew of the existence of an armed conflict or of its character as international or non-international". We recognize that the rolling text (PCNICC/1999/L.5/RT3) seeks to find a compromise between opposing views on this matter. It provides, as a final element for each crime, that "[t]he accused was aware of the factual circumstances that established the existence of an armed conflict." This formulation is subject to several qualifications, as set out in the introduction to rolling text RT2.(42) Unfortunately, this formulation together with its qualifications continue to give cause for serious concern.

The nexus requirement that undoubtedly exists between conduct and conflict, must be assessed according to an objective evaluation. This should be distinguished from a requirement that the accused must have made a subjective evaluation as to that nexus, as required by the current text.(43) Such a requirement is not supported by the Statute(44) or international practice.(45)

We recognize that the subjective knowledge requirement has been softened and 'clawed back' in the course of negotiations, as represented by the introduction to rolling text RT2. However, in addition to being confusing and apparently contradictory, these provisions do not adequately address the underlying concerns. In many situations, the fact that the crimes are committed in an armed conflict will indeed be quite apparent, and as RT 2 notes, the Court will be able to infer the knowledge of the accused from the surrounding facts and circumstances. It would, however, be shortsighted to assume that this will always be the case.

The evaluation by the accused that the Prosecutor will have to prove, as to the "factual circumstances that established the existence of an armed conflict," may involve subtle and complex distinctions. Delegates have sought to avoid involving the accused in such evaluations by specifically excluding any requirement that the accused made a legal evaluation(46) or that he or she knew the nature of the conflict as international or non-international.(47) However, it is suggested that the required evaluation - that the facts point to the existence of an armed conflict, as opposed to a series of riots for example - gives rise to many of the same complex issues as an evaluation of law. The stage at which an internal disturbance becomes a conflict is often unclear(48) and the distinction between the two may be as difficult to draw as the distinction between international and non-international armed conflict. As such, the attempts to qualify the knowledge requirement are insufficient to assuage real concerns as to the potential practical implications of this text.

Moreover, as a point of principle, there is no unfairness in treating the question of commission in the context of an armed conflict as a free standing jurisdictional element for the determination of the Court, any more than there would be in leaving to the Court the question of whether a murder was committed in one state or another. Most acts that are susceptible to prosecution as war crimes are, by their nature, illegal in any context. There can be no principled basis for excluding torturers and rapists who reasonably believed their deeds took place in the context of civil disturbance rather than armed conflict. While it may be that for certain crimes some degree of knowledge of the conflict is implicitly required to satisfy the mens rea requirement, this is not the general rule. Any such specific mental element prerequisite can be addressed on a crime by crime basis.

Finally, it should be noted that the rolling text does not pass muster with the objective of the elements document which is "to assist the Court in the application of the Statute."(49) The text is at best confusing and superfluous, and at worst an obstacle to prosecution for which no compelling legal justification has been tendered. The common final element for each war crime should therefore be deleted.


Recommendation: Delegates should oppose the provision in footnote 1(50) which states that "concrete and direct overall military advantage….may or may not be temporally or geographically related to the object of the attack."

Comment: The remark in the rolling text that the legitimate "overall" military benefits "may or may not be temporally or geographically related to attack gives some cause for concern. While the doctrine of "overall" military advantage does not necessitate the most immediate temporal or geographic nexus between the attack and the anticipated gain, it is wrong to suggest there need be no connection whatsoever. Delegates should register their opposition to this potentially all-encompassing formulation, which provides ample scope for abuse. An attack that causes civilian loss of life cannot be justified by a military advantage many months or even years later. Such an interpretation would render meaningless the important requirement that the advantage must be "concrete and direct."





The proposed rule for article 98 circulated by the U.S. delegation at the last PrepCom should be firmly and unequivocally rejected, and the footnote indicating that one delegation may propose an addition to the rule should be deleted.


A delicate compromise was reached on the wording of rule 9.18 relating to Article 98(51) at the December session of the Preparatory Commission. Despite this, a footnote was inserted at the March session indicating that "one delegation may present future proposals" on Article 98.

A two-part proposal was circulated by the United States delegation during the March session. The first part comprises text for insertion in the Relationship Agreement between the ICC and the U.N. which would radically alter the ICC jurisdictional regime agreed to in Rome.(52) The proposed relationship agreement prevents the Court from seeking the surrender or accepting custody of an accused, when the accused was acting subject to the overall direction of a non-party state, except when that state or the Security Council agree to let the prosecution proceed. This is in striking violation of many articles of the Statute, including Article 12 (Preconditions to the Exercise of Jurisdiction), Article 16 (Role of the Security Council) and Article 27 (Irrelevance of Official Capacity).

The second part contains a proposal for a rule on Article 98 for inclusion in the Rules of Procedure and Evidence. The text of the rule for Article 98, if accepted, will purport to make any de facto amendment to the Statute's jurisdictional regime contained in the future Relationship Agreement binding on the Court. It provides that "[t]he Court shall proceed with a request for surrender or an acceptance of a person into the custody of the Court only in a manner consistent with its obligations under the relevant international agreement."

The proposed Rule is manifestly inconsistent with article 98. Under the pretext of creating a procedural rule, it constitutes an attempt to amend the Statute through the Rules. This is in violation of the stipulation in Article 51(4) that "[t]he Rules of Procedure…shall be consistent with this Statute" and the amendment procedure provided for in Article 121.

Article 98 contemplates the Court deferring to agreements between states that preclude surrender to the ICC. The US proposal for Article 98 goes far beyond that, requiring that the Court also defer to other relevant international agreements between the ICC and the UN, or the ICC and states.(53) In addition to opening the door to overriding key provisions of the Statute through the vehicle of the relationship agreement, the Rule may leave the Court vulnerable to potentially endless efforts by states to achieve special accommodation through subsequent 'international agreements' with the ICC.

An additional departure from Article 98, albeit one of less radical import, is that while Article 98 precludes the Court from proceeding with a request, the proposed rule goes further, also precluding "acceptance into the custody of the Court." Thus, in the circumstances set out in the US proposed relationship agreement, even where a state seeks voluntarily to surrender a suspect to the Court, the Court would be unable to receive the suspect, absent the consent of the state of nationality or Security Council.

This Rule seeks to create a back-door route for modifying initially, Article 98, and subsequently, the jurisdictional provisions that lie at the heart of the Statute. As such, the acceptance of this proposal would pave the way for the unraveling of the Statute's key provisions through the Relationship Agreement, or other agreement subsequently entered into with the Court. It is critical to the effectiveness and independence of the ICC that it be definitively rejected.


Recommendation: The Rule should clarify that a person shall be surrendered to the Court by the date and in the manner determined by the Court, upon consultation between the authorities of the requested State and the Registrar.

Commentary: The rule in the current rolling text provides that "(b) [t]he person shall be surrendered to the Court by the date and in the manner agreed upon between the authorities of the requested State and the Registrar" (emphasis added). It goes on to provide that "(c) [i]f the circumstances prevent the surrender of the person by the date agreed, the authorities of the requested State and the Registrar shall agree upon a new date and manner…."

As currently drafted, this rule appears to be inconsistent with the Statute, which clearly provides that States are obliged to cooperate with the Court and comply with requests for arrest and surrender.(54) In issuing its binding requests, the Court may consult with the State and will take into account all the circumstances, including any legitimate special difficulties that arise in the execution of the request. A consultation process for the resolution of any difficulties is specifically written into the Statute in article 97,(55) as well as appearing elsewhere in part 9 in relation to particular issues involving surrender of persons.(56)

Ultimately, however, the question is not one of consensus between the State and Court and it is critical that it is not presented as such. Rather, it is a matter of the Court's authority and a State party's obligation. At the end of the consultation process, even if the State party does not 'agree' to a particular deadline for surrender but would prefer several months more, if the Court determines otherwise, it is obliged to comply with the Court's request. This fundamental tenet of the Statute must not be undermined in the Rules.

We recognize that it was not the intention of delegations to undermine the obligations which are the linchpin of the cooperation regime, but simply to reflect the fact that the Court and State will have to be engaged to resolve the practical aspects of the fulfillment of those obligations. This is not, however, the net effect of this rule. The small suggested amendment would remove any ambiguity, protect the important principle of State parties' obligations, consistent with the Statute, and better reflect what we understand to be the intention of the majority of delegations.

1See the recommendations and comments set out below in relation to these and other key issues.

2The rolling text reflects an outdated notion of the ways in which slavery can be committed. It seeks to limit the court's jurisdiction to situations where "[t]he accused exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty." See recommendation and comment, infra.

3 Article 7(2) of the Statute.

4 Article 9 of the Statute.

5 Since the Rome conference, one commentator who was instrumental in the drafting of this part of the Statute has noted that "…explicit recognition of this policy element was essential to the compromise on crimes against humanity. It is the existence of a policy that unites otherwise unrelated inhumane acts, so that it may be said that in the aggregate they collectively form an 'attack'. Delegations supporting the compromise explained that the policy element was intended as a flexible test…. " (emphasis added.) See Darryl Robinson, Crimes within the Jurisdiction of the Court, in The International Criminal Court, The Making of the Rome Statute, Roy S. Lee, ed. 1999, at 96, 97. This rationale reflects the ICTY judgment in the Prosecutor v. Dusko Tadic, 36 I.L.M. 908 (1997) 944, that crimes against humanity "are not isolated, random acts of individuals but rather result from a deliberate attempt to target a civilian population. Traditionally this requirement was understood to mean that there must be some form of policy to commit these acts."

6 See Rodney Dixon, Crimes against Humanity-para. (2)a, in Commentary to the Rome Statute, Triffterer, ed. 1999, where the author observes that "the policy element only requires that the acts of individuals alone, which are isolated, uncoordinated, and haphazard, be excluded."

7 For example, in a series of cases the State of Honduras was found responsible for the practice of enforced disappearances, which was recognized to involve groups or individuals "…acting with the authorization, support, or acquiescence of the State," as defined in the Inter-American Convention on Forced Disappearance of Persons, Art. #2, or "acting…on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government," as defined in the General Assembly Declaration on the Protection of All Persons from Enforced Disappearance. See, for example, the Velásquez Rodriguez Case, Inter-Am. Ct. H.R., Ser. C., No. 4, para.. 131 (1988), reprinted in 9 Hum. Rts. L.J. 212 (1988).

The widespread practice of disappearances is but one well-recognized example of how crimes against humanity have been carried out with State acquiescence.

Note also that in the Akayesu case the ICTR found that "…by his presence, his attitude and his utterances, Akayesu encouraged such acts, one particular witness testifying that Akayesu, addressed the Interahamwe who were committing the rapes and said that 'never ask me again what a Tutsi woman tastes like.' In the opinion of the Chamber, this constitutes tacit encouragement to the rapes that were being committed."

The present rolling text would exclude situations of 'tacit' encouragement. Supra, para. 706.

8 The Inter-American Court has noted, in the Velasquez Rodriguez case, supra, p.22, that:

[w]hen queried . . . the authorities systematically denied any knowledge of the detentions or the whereabouts or fate of the victims…Executive and Judicial Branches either denied the disappearances or were incapable of preventing or investigating them, punishing those responsible, or helping those interested discover the whereabouts and fate of the victims or the location of their remains.

9The ICTY has stated that "such a policy need not be formalized and can be deduced from the way in which the acts occur." The Tadic case, supra, para. 944.

10 The Akayesu case, para. 704 to 706, supra.

11 Theodor Meron, War Crimes Law Comes of Age, 92 A.J.I.L. 462,467 (1998) (citing 3 TRIAL OF WAR CRIMINALS BEFORE THE NURENBURG TRIBUNALS 982 (1951)).

12 International Law Commission, Draft Code of Offences Against the Peace and Security of Mankind, Art. 11, U.N. GAOR, 9th Session, Supp. No. 9, at 11, U.N. Doc. A/2693 (1954).

13 The Prosecutor v. Kupreskic, 14 January 2000, IT-95-16-T.

14 Ibid, para. 552.

15 Prosecutor v. Jean-Paul Akayesu, International Criminal Tribunal for Rwanda, Case No. ICTR-96-4-T (2 Sept. 1998).

16 Supra.

17 See Darryl Robinson, Crimes within the Jurisdiction of the Court, in Roy S. Lee, supra, at 96. The specific example given is that there must be no requirement of a policy to rape, where rape is carried out pursuant to a policy to attack the civilian population. See Darryl Robinson, ibid at 95, 96, footnote 47.

18 See Darryl Robinson, ibid at 96.

19 Enforced disappearance has been recognized as a crime against humanity in a variety of recent international instruments, most notably the Declaration on the Protection of All Persons from Enforced Disappearance (U.N. GA Res. 47/133, U.N. GAOR, 47th Sess., Supp. No. 49, at 207, U.N. Doc. A/47/49 (1992)), the Inter-American Convention on the Forced Disappearance of Persons (OEA Doc. AG/RES. 1256 (XXIV-0/94), 9 June 1994), the ILC Draft Code of Crimes, and the proposed International Draft Convention on the Protection of All Persons from Forced Disappearance (U.N. Doc. E/CN.4/Sub.2/1998/WG.1/CRP.2 (14 Aug. 1998)).

20 Enforced disappearance was not included in the Nuremberg Charter, although an individual ordering disappearances was convicted of the crime as a war crime (see Commentary on the Rome Statute of the International Criminal Court, ed. Otto Triffterer, Article 7(1)(i), margin no. 73).

21 See e.g., Chumbivilcas v. Perú, Case 10.559, Report No. 1/96, Inter-Am.C.H.R., OEA/Ser.L/V/II.91 Doc. 7 at 136 (1996).

22 See e.g., Velásquez Rodríguez Case, Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988)).

23 For example, an individual who organizes enforced disappearances may be held directly responsible for Elements 1, 2, 4, 5 and 6 of the rolling text, and indirectly for element 3 through the acts of an intermediate agent, as specified in article 25(3)(a) or (b) of the Statute.

24 This 'intention' requirement itself would be satisfied if the accused were aware that the denial of the protection of the law would result in the ordinary course of events, as per Article 30.

25 This reflects Article 30 of the Statute, which provides that for a 'consequence' element, the relevant mens rea requirement may be satisfied by awareness that the consequence would result in the ordinary course of events.

26 This language reflects the U.S. proposal (DP 4Add.1, Article 7(1)(h)(3)) which sought to raise the threshold from "deprivation of fundamental rights contrary to international law," in Article 7(2)(g) to deprivation of "fundamental rights universally recognized under international law."

27 The Prosecutor vs. Kupreskic, supra, para. 607.

28 On the need for discriminatory intent as an element of persecution, see the decision of the Appeals Chamber of the ICTY in the Prosecutor vs. Tadic case (Tadic appeal), 7 May 1997, IT-94-I-T, overturning the Trial Chamber decision in this respect.

29 The Prosecutor vs. Tihomir Blaskic, IT-95-14-T, 3 March 2000 p.79, para. 235. The Tribunal noted that "It is the specific intent to cause injury to a human being because he belongs to a particular community or group, rather than the means employed to achieve it, that bestows on it its individual nature and gravity and which justifies its being able to constitute criminal acts which might appear in themselves not to infringe directly upon the most elementary rights of a human being, for example, attacks on property. " (emphasis added).

30 See Article 7(1)(h), indent 4.

31 The language of the ICTY judgments reflects the fact that in the cases before the Tribunal, such as the Blaskic case, supra, the victims of persecution were members of the group in question, who were persecuted because they belonged to the targeted group.

32 Sympathizers may form a separate 'identifiable group' that was itself the focus of persecution, but depending on the factual circumstances, a Court may take the view that there is no separate identifiable group, as required by the Statute.

33 The other departure, as noted, infra, is that the definition in the Statute is not restricted to acts of public officials.

34 Herman von Hebel & Daryl Robinson, "Crimes within the Jurisdiction of the Court", The International Criminal Court: The Making of the Rome Statute", ed. Roy Lee, p.99.

35 See footnote 12, L.5/Rev.1Add.2.

36Convention against Slavery 1926 and Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956. The I.L.C. Comment on the 1996 Draft Code of Crimes against the Peace and Security of Mankind, defines enslavement as "establishing or maintaining over persons a status of slavery, servitude or forced labor contrary to well-established and widely recognized standards of international law." (Report of the International Law Commission on the Work of its Forty Eighth session, UN.GAOR, 51 Sess., Supp.)

37 Note that the I.L.C. Comment on the 1996 Draft Code of Crimes against the Peace and Security of Mankind, ibid., specifically includes forced labor within the definition of enslavement.

38 Boot, Dixon and Hall, Crimes Against Humanity in Triffterer, ed., 1999, p. 134.

39 The Prosecutor v. Dragoljub Kunarac and Radomir Kovac, Case IT-96-23-PT (2 December 1999).

40 The indictment notes that although they had keys to the apartment, they were not in any meaningful sense in a position to flee.

41 It should be noted however, that at the December Prepcom many delegations expressed the view that the current list was overly restrictive.

42 The introduction to RT2 provides that "there is no requirement of a legal evaluation by the accused;…there is no requirement for awareness by the accused of the facts that established the character of the conflict as international or non-international;…there is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms 'took place in the context of and was associated with'."

43 The objective test is satisfied by the penultimate element which appears in relation to each crime in the rolling text, providing that "the conduct took place in the context of and was associated with an international conflict." It should be noted, however, that the introduction to RT2 provides that the new subjective knowledge requirement in question "is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms 'took place in the context of and was associated with'." This is confusing, apparently contradictory and renders the knowledge requirement superfluous.

44 The fact that there is nothing in the war crimes provisions of the Statute itself to suggest that the accused must make any kind of evaluation as to the existence of a conflict stands in contrast to the crimes against humanity provisions, which specifically impose the requirement that the crimes were "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack" (emphasis added). Article 7(1) of the Statute.

45 The ICTY and ICTR have treated the questions of the existence and nature of a conflict as relevant only to the applicability of the relevant law. In the Tadic case the Tribunal indicated that "[t]he only question, to be determined in the circumstances of each individual case, is whether the offences were closely related to the armed conflict as a whole"(emphasis added).

46 The introduction to RT2 provides that "there is no requirement of a legal evaluation by the accused.…"

47 The introduction to RT2 also provides that "there is no requirement for awareness by the accused of the facts that established the character of the conflict as international or non-international."

48 The fact that many conflicts are mischaracterized as internal disturbances, in an attempt to deny the applicability of the standards of international humanitarian law applicable to armed conflicts, further illustrates some of the likely difficulties in proving that the accused in fact knew that there was a conflict, in the face of clear indications from his or her state to the contrary.

49 Article 9.

50 RT3, supra.

51 Rule 9.18 of the rolling text provides: "When a requested State notifies the Court that a request for surrender or assistance raises a problem of execution in respect of article 98, the requested State shall provide any information relevant to assist the Court in the application of article 98. Any concerned third State or sending State may provide additional information to assist the Court."

52 As this first part of the U.S. proposal is not on the agenda for this PrepCom it is not addressed in detail this Commentary.

53 Note that the proposal refers to the Court deferring consistently with "its", that is, the Court's, obligations under a "relevant international agreement."

54 Article 89 provides that "State parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender."

55 See Article 97 headed "Consultations".

56 Article 89(2) provides for consultations where a ne bis in idem issue is raised and Article 91(4) provides that the State shall consult on special requirements of a State's national law.