This section addresses Articles 6 (the exercise of jurisdiction), 7 (preconditions to the exercise of jurisdiction), 9 (acceptance of the jurisdiction of the Court) and the "further option" for these articles in the current text of the statute. In Part 1 below, we explain the principles which underlie our position on Articles 6, 7 and 9. We then make our recommendation as to appropriate provisions on jurisdiction, and comment on this recommendation and key proposals contained in the current text (Part 2).
The satisfactory resolution of the question of the Court's jurisdiction is critical to the success of the ICC initiative. The objective of the Diplomatic Conference must be to create a strong independent and effective international court that can exercise jurisdiction over genocide, crimes against humanity and war crimes, free from political manipulation. A statute which saddles the Court with inherent susceptibility to such manipulation will not yield the sort of justice that the international community urgently demands. Allowing individual states to select the crimes or types of conduct over which they accept the Court's jurisdiction, or worse, to chose on a case-by-case basis when to allow the Court to proceed and when not to, foments selectivity and arbitrariness.
Legitimate state interests are safeguarded elsewhere in the ICC statute.112 While a state consent regime is therefore unnecessary to meet legitimate interests, such a regime would render the Court vulnerable to the illegitimate interests that recalcitrant states may have in shielding perpetrators of atrocities from the reach of criminal justice. Should the statute provide the framework for states to do so, it would seriously undermine the legitimacy and credibility of the ICC.
The ICC should have jurisdiction over the core crimes of genocide, crimes against humanity, and war crimes. The statute should clearly confer on the ICC the power to prosecute these crimes which are "universal in nature, well recognized in international law as serious breaches of international humanitarian law, and transcending the interest of any one State," irrespective of where they were committed or by whom. By ratifying the statute, states would then confer upon the Court the power that each of them would have individually,113 to investigate and prosecute the crimes subject to universal jurisdiction, without being required to obtain the "acceptance" or "consent" of any State.114 Any other position would result in an ICC, established with the specific role of administering criminal justice when national systems fail, having less jurisdictional ability to fulfil this mandate than any one of the state parties that collectively created it.115
The existence of universal jurisdiction over genocide, crimes against humanity and certain categories of war crimes is well established. Genocide has been acknowledged as subject to universal jurisdiction under customary international law by several commentators116 and in the Third Restatement of Foreign RelationsLaw of the United States.117 The application of universal jurisdiction to crimes against humanity is similarly well established, and can be seen from the jurisdiction of the Nuremberg tribunal118 and from subsequent domestic litigation.119
That war crimes are "crimes ex jure gentium and are thus triable by the Courts of all States"120 has also been widely recognized. 121 The Geneva Conventionsspecifically provide for universal jurisdiction over grave breaches.122 It is now established that such jurisdiction applies in respect of a range of crimes beyond grave breaches, to crimes committed in international and internal armed conflict.123 Some commentators that have noted that the fundamental guarantees of Protocol II are "obviously a matter of `international concern' and therefore also covered by universal jurisdiction."124 As one commentator noted, "[o]nce internal atrocities are recognized as international crimes and thus as matters of major international concern, the right of third states to prosecute violators must be accepted."125
For certain of the war crimes included in the proposed list of crimes in section A, the existence of universal jurisdiction is less clear than for others. In this respect, the ICC statute should adopt a progressive approach, in line with trends towards broadening the scope of crimes under customary international law, particular in internal conflict and the reach of the principle of universal jurisdiction.126 Delegations should recognize the historic opportunity that the creation an ICC represents, to endow the Court with the power necessary to combat impunity in respect of the very egregious crimes within its jurisdiction.
RECOMMENDATION ON ARTICLES 6, 7 AND 9
Articles 6, 7 and 9
· Recommendation: The statute should establish that the Court may exercise its jurisdiction with respect to a crime falling within its jurisdiction, if one of the mechanisms capable of triggering the Court's jurisdiction has been invoked in accordance with the provisions of the statute.127 There should be no additional pre-requisite to the exercise of jurisdiction. The acceptance of the Court's jurisdiction should be inherent in the ratification of the statute. There should be no possibility of "selecting" from among the core crimes, nor of accepting or withholding acceptance on a case-by-case basis. Non-state parties should be able to accept the Court's jurisdiction over a particular case for the purpose of assuming the obligations under the statute; the consent of non-state parties should not, however, be a prerequisite to the Court's exercise of jurisdiction.
Comment: The purpose of an international criminal court is to bring to justice perpetrators of egregious crimes. Through ratifying the statute, states should confer on the Court the jurisdiction to fulfil this mandate. As the crimes in question are of universal concern and should be subject to universal jurisdiction, the ICC should be able to prosecute these crimes, as any of the states ratifying the statute might, without any requirement of state consent.
Opt-in regime: the `selection' of core crimes
Under Article 7, Option 1 of the statute, the Court will only have automatic jurisdiction over genocide.128 It will be able to exercise jurisdiction over crimes against humanity and war crimes only where all of the following states have accepted the Court's jurisdiction over the specific crime(s) in question: the custodial state, the state on whose territory the crime was allegedly committed, a state that has requested surrender of the suspect, the state of nationality of the victim, and the state of nationality of the suspect. In addition to providing stateswith the option to be selective in deciding which crimes they wish to recognize the Court's jurisdiction over,129 Article 9 provides for the further option of recognizing the Court's jurisdiction of "particular conduct," or "for a specified period of time."130 This would result in what certain delegates refer to as the "a la carte" approach to the jurisdiction of the Court.
As noted above, universal jurisdiction applies to genocide, crimes against humanity and war crimes. Distinguishing between these core crimes, or allowing states to pick and choose, is as legally unjustifiable as it is offensive to the egregious nature of all of these offences.
Moreover, on a practical level, as crimes against humanity and war crimes almost always accompany genocide, a Court which has the competence to try the latter crime should have the competence to try the former crimes. Much of the investigation and evidence will overlap for these crimes in any given situation, so trying them together has the advantage of efficiency. An "a la carte" approach would lead to confusion as to the scope of the Court's jurisdiction and to the Court having jurisdictions over different crimes for different offenders. It would further run the risk that crimes would not be prosecuted in the most appropriate way-a given act may be prosecuted as one crime over which the Court's jurisdiction is accepted by all the relevant states when it would more appropriately be characterized as another within the Court's jurisdiction, but in respect of which acceptance has been withheld.131
We therefore urge delegates to adopt an approach in line with Article 7 of the "further option for Articles 6, 7, 10 and 11[10 bis],"132 and include no provision for accepting jurisdiction over particular crimes or for particular conduct.
State consent in individual cases
Particularly inconsistent with the notion of an effective and independent court is the proposal that specified state parties should be required to consent to the exercise of the Court's jurisdiction in particular cases.133 Article 7, Option 2 provides for all of the following states to have to have "accepted the exercise of the jurisdiction of the Court with respect to the case in question": the state of custody, the state on whose territory the crimes were committed, any state that has requested surrender of the suspect, the state of nationality of the victim and nationality of the suspect or accused.134
Such a provision, which contains no limitations on the grounds on which that consent might be granted or withheld, invites interference with justice in politically "inconvenient" cases. Requiring the state on whose territory the crime is committed, for example, or of the nationality of the suspect, to "consent" to the jurisdiction of the Court renders illusory hopes for an effective court. Such a provision flouts the reality that the worst war criminals are often protected by, or indeed act on behalf of, states. Delegations are urged in the strongest terms to oppose the inclusion of any such provision.
The proposal that a state might at the same time accept the Court's jurisdiction over all crimes through ratification, but then be required to "consent" or not consent to the exercise of that jurisdiction on a case-by-case basis, is absurd. The ability to subsequently withhold consent renders meaningless the original supposed "acceptance" of the Court's jurisdiction.
In this respect, as in the foregoing provision on the selection of crimes, Article 7 of the "further option for Articles 6, 7, 10 and 11[10 bis]"135 is favorable since it contains no provision for state party consent.
Non- state parties and the exercise of jurisdiction
Consent should not be a prerequisite to the exercise of jurisdiction. The proposal put forward in the Article 9 "further option"136 which would not require the consent of any states, party or non-party, to establish the Court's jurisdiction per se,137 should be supported. There is support for this view in international law, which would allow state parties through the statute to confer on the Court the power to exercise jurisdiction over these crimes of universal jurisdiction. Moreover, the provisions of the statute in this respect are critical to ensuring that perpetrators of these very serious crimes be brought to justice.
On the question of non-state parties, it is critical to distinguish between establishing jurisdiction of the ICC, and establishing the duty of states to cooperate with the Court. Non-state parties are not bound by a statute which they have not ratified: they have no duties towards the Court. The ICC could not enter the territory of non-state party without its consent, for example, and could not demand transfer of an accused.
Since the ICC will depend on states' cooperation in order to fulfil its investigatory and prosecutorial mandate, this may in certain cases signify that, where a non-state party refuses to recognize the Court's jurisdiction and thereby agree to cooperate, an investigation will not, in practice, come to fruition. But this is a practical question of cooperation, not a legal basis for limiting the Court's jurisdiction. Moreover, it is not necessarily the case that prosecution will be impossible in the circumstances outlined. In the theoretical situation where both the state of custody and the state of territory are non-state parties and refuse to cooperate in a particularcase, sufficient evidence may be available in third states which are cooperating with the Court. The suspect might leave the state in which he or she is absconding and go to another state, at which stage he or she could be brought within the reach of the Court. The importance of prosecuting these egregious crimes demands that this possibility be available to the Court.
Requiring the consent of either or both the state of custody and the state of territory, as required by the "further option for Articles 6, 7, 10 and 11[10 bis],"138 is unjustifiable. Given that any state might exercise jurisdiction over these crimes, under universal jurisdiction, there is no convincing legal justification for distinguishing the territorial and custodial states, as states whose consent is required, from any other state.139 In any event, no state's consent should be necessary to prosecute egregious crimes of universal jurisdiction: the international community already shares the interest and in many cases the obligation to do so. The legal integrity of the statute underpinning the establishment of the Court demands that this particular manifestation of the requirement of state consent be deleted.
Non-state parties wishing to accept the jurisdiction of the court on an ad hoc basis, for example so as to have the right to refer cases to the court, should be able to do so. In doing so, they must thereby assume the duty of cooperation under Part 9 of the statute, as provided for in Article 7(3) of the "further option for Articles 6, 7, 10 and 11[10 bis]." Consistent with the position set out above, states consent would relate to their assumption of the obligations under the statute, but would not be a prerequisite to jurisdiction.
JURISDICTION OVER MINORS
· Recommendation: The International Criminal Court should have no jurisdiction over persons who were under the age of eighteen at the time they are alleged to have committed a crime which would otherwise come within the jurisdiction of the Court.140
Comment: The punitive purpose of the Court is fundamentally at odds with the rehabilitative purpose of international standards on juvenile justice. Children accused of committing crimes are entitled under international law to adjudication by specialized juvenile justice systems, whose principle goal is rehabilitation and promotion of the well-being and best interests of the young person, rather than retribution.141 The Court, however, is conceived of as an extraordinary court, to try persons charged with committing or ordering the most egregious offenses. It serves an essentially punitive function, the primary penalty being imprisonment, and is therefore a wholly inappropriate forum for the adjudication of children.
Much discussion has already focused on the age of criminal responsibility,142 and on the related issue of sentencing of minors,143 reflecting widely divergent views on the issues. We support the position of UNICEF and delegations that recommend the age of responsibility be set at eighteen years for crimes within the jurisdiction of the Court. However, rather than becoming enmeshed in attempting to agree on an age of criminal responsibility, on drawing up specialized procedural mechanisms for adjudicating minors, and on appropriate rehabilitative correctional measures for minors, the Court's limited resources would be far better used in pursuit of justice for more serious adult offenders.
As the report of the U.N. Secretary General's expert on the Impact of Armed Conflict on Children noted, children are rarely autonomous actors in the commission of crimes such as those covered by the statute.144 Where appropriate, under the principle of command responsibility, the Court could impose accountability on those who knowingly disregarded the commission of crimes by their subordinates who were children.145
In cases where adults deliberately used persons under the age of eighteen to commit crimes within the jurisdiction of the Court, such gross exploitation of childrenshould be considered as an aggravating factor in sentencing.146 This would also deter adults from using children as instruments for the perpetration of crimes in order to escape criminal liability and accountability generally.
112 Legitimate state interests, for example in the prosecution of crimes within its jurisdiction, are more than adequately protected by the firm principle of complementarity enshrined in Article 15. It ensures that, where a state is willing and able to do so, the ICC cannot interfere with its ability to perform its proper domestic judicial function. Note that the ability to challenge admissibility on this basis applies to both state parties and non-state parties. No consent of any state, party or non-party, should be required for the exercise of the Court's jurisdiction.
113 The Nuremberg Judgment reasoned that: "The signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the Trial. In doing so, they have done together what any one of them might have done singly....(emphasis added)," "International Military Tribunal (Nuremberg), Judgment and Sentences," American Journal of International Law, vol.41, (1947), p.216.
114 The ICC will in fact have a mandate that is far more universal in its scope than that of the Nuremberg tribunal; given the number of states involved in creating this historic institution, its permanence and general geographic application, and the crimes covered by it.
115 See John Dugard, "Obstacles in the Way of An International Criminal Court," Cambridge Law Journal , vol.56, no.2, (1997), p.337, where the author points out that state consent would mean that the "court actually has less power to bring to justice the suspect than either the territorial state or the custodial state, each of which could bring the suspect to justice without the consent of any other state." By virtue of universal jurisdiction, this applies also to any other state.
116 Kenneth C. Randall, "Universal Jurisdiction Under International Law," Texas Law Review, vol.66, (1988), p.131.
117 Restatement of the Law (Third), Foreign Relations of the United States, (American Law Institute, 1987), para.404: "Universal jurisdiction to punish genocide is widely accepted as a principle of customary law."
118 Article 6(c) of the Charter of the International Military Tribunal for the Trial of the Major War Criminals stated that crimes against humanity were "within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated." As the U.S. Sixth Circuit Court explained in the case of Demanjanjuk v. Petrovsky, 776 F.2d 571, 582 (6th Cir. 1985), referring to Nuremberg: "it is generally agreed that the establishment of these tribunals and their proceedings were based on universal jurisdiction."
119 Attorney General of Israel v. Eichmann, in International Law Review, vol. 36, p.50 (Israel District Court, Jerusalem 1961), hereinafter Eichmann. The District Court of Jerusalem explained how "the State of Israel's `right to punish' the accused derives... from two cumulative sources: a universal source (pertaining to the whole of mankind) which vests the right to prosecute and punish crimes of this order in every state within the family of nations; and a specific national source...." Israel's Supreme Court found, similarly, that there was "full justification for applying here the principal of universal jurisdiction since the international character of "crimes against humanity"... dealt with in this instant case is no longer in doubt..." (Israel Supreme Court, 1962)
120 British Manual of Military Law, cited in M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (Netherlands: Martinus Nijhoff Publishers, 1992), p.520.
121 See, for example, Frits Kalshoven, The Law of Warfare, (1973), p.119, cited in Theodor Meron, "International Criminalization of Internal Atrocities," American Journal of International Law, vol.89, (July 1995), p.572, which states that "in customary international law, jurisdiction over war criminals is universal." Also the Restatement, ibid, lists "piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism...(emphasis added)" as subject to universal jurisdiction.
122 The common articles of the Geneva Conventions, ibid, include the statement that "Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches [of the present Convention], and shall bring such persons, regardless of their nationality, before its own courts..."
123 For example, Article 3 was held to be subject to universal jurisdiction in the Military and Paramilitary Activities in and Against Nicaragua case (Nicaragua v. United States), International Court of Justice, (1994), p.392.
124 Meron, "International Criminalization of Internal Atrocities," p.559.
125 Meron, ibid., p.576.
126 Acknowledging developments in the area of law, Professor Meron writes: "until very recently, the accepted wisdom was that neither common Article 3 (which is not among the grave breaches provisions of the Geneva Conventions) nor Protocol II (which contains no provisions on grave breaches) provided a basis for universal jurisdiction, and that they constituted, at least on the international plane, an uncertain basis for individual criminal responsibility. Meron, "International Criminalization of Internal Atrocities," p.559.
127 For recommendations on specific trigger mechanisms, see Section D of this document.
128 We note that the proposal at Article 9, Option 2, even envisions removing genocide from the Court's inherent jurisdiction.
129 This would appear to allow states to not only select between genocide, crimes against humanity and war crimes for the purpose of recognizing the jurisdiction of the Court, but also to select particular acts within these categories for the same purpose. The obvious risk is that states will simply not accept jurisdiction over the crimes that they or other "friendly" states will be accused of committing, thus avoiding the Court's jurisdiction while receiving the political gain of being seen to be party to the ICC statute and generally accepting the jurisdiction of the Court.
130 Article 9, Option 2, paragraphs (2) and (3) respectively.
131 For example, if someone commits torture and a state does not recognize the Court's jurisdiction for torture but does for bodily injury, while a prosecution can quite properly proceed in respect of the latter, it would not be the most appropriate basis for a prosecution of the conduct in question. This invites the development of confusion and uncertainty in the Court's practice and jurisprudence, and could jeopardize the principle of legal certainty.
132 This further option is based on a proposal submitted by the delegation of the United Kingdom.
133 Note that one proposal within paragraph 3 of the second option of Article 7, provides that if one of the states has not indicated whether it gives such acceptance, the Court may not exercise jurisdiction; this would establish a presumption against the Court's ability to function.
134 Each of the states listed is in brackets, as is entire Option 2.
135 This further option is based on a proposal submitted by the delegation of the United Kingdom.
136 This option was the proposal of the Federal Republic of Germany, presented at the sixth Preparatory Committee for the Establishment of an International Criminal Court.
137 On this point alone do we depart from the provisions of the "further option" referred to above.
138 The United Kingdom proposal.
139 If the basis upon which their consent is required is that they themselves have jurisdiction, according to universal jurisdiction, all states should have to consent, thus ensuring the unequivocal paralysis of the ICC. If the justification is the practical point addressed in the preceding paragraph, this is not a basis for excluding jurisdiction, but is a cooperation question dealt with elsewhere in the statute.
140 This proposal was put forward by delegations during the December 1997 PrepCom, and is referenced in footnote 3 of A/AC.249/1998/CRP.13, on applicable penalties. Rather than treating the issue as one of establishing an age of responsibility, delegates proposed that the matter be approached as a jurisdictional issue, and proposed that the Court not have jurisdiction over persons under the age of eighteen. Human Rights Watch supports this approach.
141 See Convention on the Rights of the Child, Article 40(1); U.N. Standard Minimum Rules for the Administration of Juvenile Justice ("Beijing Rules"), Articles 5.1, 14.2, 17.1, 26; International Covenant on Civil and Political Rights, Articles 10(3) and 14(4); American Convention on Human Rights, Article 5(5); European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1)(d); African Charter on the Rights and Welfare of the Child, Article 17(3). The Commentary to Article 17 of the Beijing Rules is particularly on point: "Whereas in adult cases, and possibly also in cases of severe offences by juveniles, just desert and retributive sanctions might be considered to have some merit, in juvenile cases such considerations should always be outweighed by the interest of safeguarding the well-being and the future of the young person."
142 Current proposals regarding the establishment of an absolute or presumptive age of criminal responsibility, range from setting the age at thirteen to twenty-one years. See A/CONF.183/2/Add.1, 14 April 1998, Article 26, on age of responsibility.
143 The statute envisions imprisonment as the primary penalty, leaving open the possibility of life sentencing and even the death penalty for minors. This is incompatible with established international juvenile justice standards. While proposals also exist for special sentencing measures for young persons, Human Rights Watch finds them to be inadequate; one of the proposals sets 20 years as the maximum imprisonment term for persons under the age of eighteen. See A/CONF.183/2/Add.1, 14 April 1998, Article 75, on applicable penalties
144 "One of the most disturbing and difficult aspects of children's participation in armed conflict is that, manipulated by adults, they may become perpetrators of war crimes including rape, murder, and genocide." Report of Graca Machel, Expert of the Secretary-General of the United Nations, on the impact of armed conflict on children, A/51/306, para. 250 [emphasis added].
145 See A/CONF.183/2/Add.1, 14 April 1998, Article 25, on command responsibility.
146 The Working Group on Penalties incorporated "the use of minors in the commission of the crime" in a non-exhaustive list of factors to be considered by the Court in determination of the sentence. See A/AC.249/1997/WG.6/CRP.3/Rev, on determination of the sentence. Article 26 of the draft statute, A/CONF.183/2/Add.1, on determination of the sentence, does not contain the non-exhaustive list of factors. We recommend that the use of minors in the commission of the crime should be considered as a factor in assessing "the gravity of the crime," as should the targeting of children as victims of crimes.
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