Prosecuting Treaty Crimes in the ICC
Article by: Ishita Chakrabarty
The proposal made by several nations during the Rome Conference, to give the International Criminal Court [‘ICC’] subject-matter jurisdiction over treaty crimes failed after a comparative analysis against core crimes. (See, Findlay, M., Kuo, L. B., & Wei, L. S. (2013). International and comparative criminal justice: A critical introduction. New York: Routledge, 88-89). The ICC intends to exercise its contentious jurisdiction only with respect to the ‘most serious crimes of concern to the international community as a whole’. Thus, the jurisdiction of the Court is limited to the core crimes mentioned under articles 5 (1) (a)-(d).
This article intends to show that the ICC’s jurisdiction can be extended to treaty crimes wherever necessary to meet its objective and reasons.
Justifying the Inclusion of Treaty Crimes
It is widely accepted that the Court does not function as a “panacea for all ills” and the enforcement of treaty crimes is left to the State’s law enforcement agencies (See, Paola Gaeta, International Criminalization of Prohibited Conducts in Antonio Cassese (ed.), The Oxford Companion of International Criminal Justice, Oxford University Press, 2009, p. 63).
The primary reason for leaving treaty crimes to State enforcement is because they have not yet found their way into customary international law. Even if treaty crimes were permitted under customary international law, only crimes committed on the territory of contracting parties (to the relevant treaties) would be punishable (See, TRIFFTERER, O. & AMBOS, K. (2016), The Rome Statute of the International Criminal Court: a commentary, 113).
All these reasons are problematic for the following reasons:
Firstly, the ICC is supposed to primarily rely on its own Statute and draw on externalities on ‘clear methodological grounds.’ In other words, the application of principles of customary international law which have developed over a considerable period of time may be used only if it is fitting the court’s own jurisprudence (See, Volker Nerlich, The status of ICTY and ICTR precedent in proceedings before the ICC, in Carsten Stahn and Goran Sluiter (eds.), The Emerging Practice of the International Criminal Court, Martinus Nijhoff Publishers, 2009, p. 325).
I would cite a few examples here. The Statute differs from its ad-hoc counterparts in the inclusion of phrases such as ‘for the purpose of facilitating’ as a precursor to liability under aiding and abetting, which otherwise requires only knowledge (See, S Finnin, Mental Elements under Article 30 of the Rome Statute of the International Criminal Court: A Comparative Analysis, 61 International & Comparative Law Quarterly 325, 354 (2012)).
Further, the ad-hoc tribunals also dismiss any policy requirements as part of their chapeau elements with respect to Crimes Against Humanity (CAH) under the belief that such policy is not a requirement under customary international law. The Rome Statute on the contrary, mandates a state or organizational policy to convert ordinary crimes into CAH. Also, even though the ICC Statute might reflect state’s opinio juris, Article 7(1)(h) of the Statute (the crime of persecution) is not considered customary international law. Again, though the definitions of crimes under the Statute may vary with the existing definitions under international law, Article 10 of the same statute emphasizes the drafters’ intention to not affect, prejudice or limit the existing definitions. It empowers the ICC to base its decisions on internationally recognized human rights.
Secondly, one could recourse to Article 7(1) (k) of the Statute that allows the inclusion of “other inhumane acts” as a CAH. The interpretation of Article 7(1)(k) reveals that “other inhumane acts” is an international crime by itself and its specific categories need not be separately criminalized. Article 7(1) (k) keeps the possibility of adapting the Statute to new forms of cruelty, by focusing on actions and not substances. One of the most important developments in the ICC in this regard came with the case of Dominic Ongwen, where forced marriage (otherwise considered in consonance with sexual slavery and rape) was charged as a CAH under Article 7(1)(k) of the Statute. This example again shows that treaty crimes – if they fulfill the requirements of a ‘widespread and systematic attack” – could fall under the broad sweep of Article 7(1)(k).
Thirdly, treaty crimes exist in the Rome Statute under different nomenclatures, either as a CAH or as a War Crime, such as Apartheid. Some jurists believe the ICC favors thematic prosecutions with regards to offences that have been under enforced, such as those relating to sexual violence or the use of child soldiers in conflicts. One jurist argues that the ICC’s structure allows it to prosecute crimes which may not be universally regarded as such but equally deserve to be condemned.
Finally, the ICC has adopted a cautioned approach towards excessive reliance on the traveaux, especially where the provisions were purposely formulated to avoid too much precision (See, SINCLAIR, I. M. (1984). The Vienna Convention on the Law of Treaties. Manchester, Manchester University Press, p. 142). For instance, the traveaux fails with subject matters that were likely dropped because of time constraints, such as issues regarding the liability of legal persons. For these reasons, it would do good to focus more on the statutory language and revert to the traveaux only where imperative.
Living up to its commitment to address the ‘the most serious crimes of concern’
Take the case of the post-election violence in Kenya for instance. The ICC stood up to the defense’s contention of recognition of post-election violence acts as a “gradual downscaling of seriousness.” At the same time, they authorized investigations on the ground where the acts committed by an association of individuals such as business men, politicians and local leaders, could not be classified as isolated acts or incidences of sporadic violence.
Similarly, the Pre-Trial Chamber authorized investigations in Darfur, Sudan, where the defendant killed about twelve peacekeepers and wounded eight other victims- a comparatively low number of direct victims.
A similar reasoning was adopted in the situation in Georgia in the context of gravity. The authorization showed the intention of the court to engage on a qualitative analysis rather than a quantitative analysis of gravity which is often ambiguous.
Several others opine that the court should evaluate the entire context of the act, or “situational gravity” and whether the acts as a whole gives rise to social alarm in the community. The acts which otherwise fulfill the requirements of systematism or organizational policy must not be left unexamined merely because an identified perpetrator’s acts may lack the specific threshold (See, Heller, K. J. (2009), Situational gravity under the Rome Statute, in C. Stahn & L. van den Herik (Eds.), Future perspectives on international criminal justice. The Hague: TMC Asser Press).
National systems are prone to violence, intimidation, and bribery from members of the state system itself and from organized groups who engage in treaty crimes. The ICC could always attempt to strike a balance between removal of this impunity and any concerns about unduly encroaching the sovereignty of any state by taking recourse to principles of ‘positive complementarity’. Joshua Lam in his articleprovides a perfect example by recalling the situation in Guinea. In that case, the ICC oversaw the domestic investigations and prosecutions and analyzed whether they were compliant with internationally recognized standards. This way, the opposition from the states could also be reduced on the exercise of its jurisdiction.
It is imperative to interpret the Statute in favor of inclusion of at least those crimes whose perpetration has overarching implications for the wider community or are in the nature of delicta juris gentium. To allay any fears of injustice, it must be noted that the ICC’s exercise of jurisdiction over treaty crimes would not be problematic since it is highly unlikely that the actor would be ignorant that his acts possess elements of criminality. For instance, the commission of acts amounting to terrorism would involve terrorizing civilians, causing ‘great pain and suffering’ and acts of like nature. The actor is then warned of the criminal act and cannot plead that he had no notice.
About the Author:
Ishita Chakrabarty is currently in the fourth year of her study at Hidayatullah National Law University, Raipur, India. She holds a penchant for International Humanitarian Law and International Criminal Law and wishes to pursue them as her Masters subjects. She previously authored and published an article with the Queen Mary Law Journal and interned in the capacity of a student researcher with Justice Indu Malhotra, Judge, Supreme Court of India and at the Commonwealth Human Rights Initiative.