The International Criminal Court in Search of its Purpose and Identity

Triestino Mariniello

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317703082
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The International Criminal Court (ICC) is the first permanent international criminal tribunal, which has jurisdiction over the most serious crimes of concern to the international community as a whole: genocide, crimes against humanity, war crimes, and crime of aggression. This book critically analyses the law and practice of the ICC and its contribution to the development of international criminal law and policy.

The book focuses on the key procedural and substantive challenges faced by the ICC since its establishment. The critical analysis of the normative framework aims to elaborate ways in which the Court may resolve difficulties, which prevent it from reaching its declared objectives in particularly complex situations. Contributors to the book include leading experts in international criminal justice, and cover a range of topics including, inter alia, terrorism, modes of liability, ne bis in idem, victims reparations, the evidentiary threshold for the confirmation of charges, and sentencing. The book also considers the relationship between the ICC and States, and explores the impact that the new regime of international criminal justice has had on countries where the most serious crimes have been committed. In drawing together these discussions, the book provides a significant contribution in assessing how the ICC's practice could be refined or improved in future cases. The book will be of great use and interest to international criminal law and public international law.

Part I

Crimes and modes of liability

1 The case for inclusion of terrorism in the jurisdiction of the International Criminal Court

Harmen van der Wilt and Inez Braber

Introduction

Large parts of Africa are currently plagued by endemic violence. These conflicts differ in intensity and causes, but have some features in common. While the official government is involved in most cases, the contenders include a motley crowd of militias, armed rebel groups and protagonists of organized crime, vying for power and resources. Moreover, the parties do not only carry out attacks against each other, but also often terrorize the civilian population. These dire situations epitomize the growing problem of failed States.

A number of these situations are investigated or prosecuted by the ICC. Some of them have even been referred by the States themselves, which suggests that they deem themselves insufficiently equipped to enforce the criminal laws rigorously within their sovereign realm.¹ Until now, the ICC’s efforts to administer justice on the African continent have not been a stroll in the park. Initially triggered by the Court’s decision to issue an arrest warrant against Sudan’s incumbent president Omar Al Bashir, the ICC and African States have embarked on a course of increasing animosity.² The AU has been a harsh critic of the Court, accusing it of ‘neo-colonialism’ and bias and urging member States not to co-operate with the Court.³ African States, such as Chad and Malawi, have indeed followed suit by withholding assistance from the Court. Scholars have censured the Prosecutor’s selection of accused, pointing in particular to the practice of ‘self-referrals’, which would serve as a convenient tool for governments to draw attention to the misdeeds of their adversaries, while keeping out of reach themselves.⁴ The result has been controversial international criminal justice, developing at a slow pace, with only a small number of accused in the docks.⁵

This chapter argues that, even if the relations and ensuing co-operation with African States significantly improves, the ICC’s ability to prosecute non-State actors would still be structurally hampered, at least in cases where such actors operate outside the context of an armed conflict. After all, the subject matter jurisdiction of the ICC includes – apart from genocide – war crimes and crimes against humanity, which require either the existence of an armed conflict or a powerful organization with State-like features. Although the authors acknowledge that expanding the Court’s jurisdiction to include a separate crime of terrorism is not a panacea that solves all problems, we move to defend that position for two reasons. First of all, intermittent terrorist attacks on civilians in a context of virtual anarchy breeds similar human suffering and social disruption as analogous attacks in an armed conflict and it would therefore be rather arbitrary to make jurisdiction dependent on the existence of an armed conflict. Second, the impotence of the State to protect its own citizens has always been advanced as one of the strongest justifications for legal intervention by the international community – next to the State’s oppression of its citizens – and the former is precisely the situation that many parts of Africa currently face. In short, we think it is time that terrorism enters the realm of international crimes stricto sensu.

This chapter is structured in the following manner: first we discuss terrorism as a war crime. We then investigate the question of where international humanitarian law (IHL) draws the line between erratic outbursts of violence and armed conflict. Next we explore the issue of whether terrorism might be qualified as a crime against humanity. We go on to address why terrorism in peacetime has been excluded from the jurisdiction of the ICC, while also touching upon the vexing task of rendering a satisfactory definition of terrorism. We will then briefly discuss the similarities between terrorism and war crimes/crimes against humanity. Lastly, we conclude with some reflections.

Terrorism as a war crime⁶

It is a fallacy to argue that terrorism can only legally be considered as a criminal offence in peacetime. Article 4(d) of the Statute of the ICTR explicitly qualifies ‘acts of terrorism’ as a serious violation of article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims and of Additional Protocol II thereto of 8 June 1977 over which the ICTR has jurisdiction. Given that the ICTR only has jurisdiction over offences committed in a non-international armed conflict, the Statute qualifies terrorism as a war crime in a non-international armed conflict.⁷ Whereas terrorism is not explicitly mentioned in the Statute of the ICTY, the Appeals Chamber of the ICTY concluded in Galić that terrorization of the civilian population, committed during an armed conflict, has crystallized into a war crime under customary international law.⁸ The ICTY Appeals Chamber affirmed the ruling of the Trial Chamber that terrorization of the civilian population constituted a serious infringement of a rule of international humanitarian law, to wit Article 51(2) of the First Additional Protocol that prohibits ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’.⁹ The Trial Chamber had already clarified that the relevant provisions in the Additional Protocols purported to extend the protection of civilians from terrorism, as Article 33 of Geneva Convention IV had only a limited scope, protecting a subset of civilians in the hands of the Occupied Power.¹⁰ Consequently, Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II address all persons – belligerents, civilians and organized groups alike – and implore them to renounce from acts of terrorism in the territory of the parties to an armed conflict.¹¹ That the violation of these essential rules of international humanitarian law entailed individual criminal responsibility could, in the opinion of the ICTY Appeals Chamber, be inferred from ‘state practice indicating an intention to criminalize the prohibition, including statements by government officials and international organizations, as well as punishment of violations by national courts and military tribunals’.¹² After a comprehensive scrutiny of these instruments and decisions, the Appeals Chamber concluded that customary international law indeed imposes individual criminal liability for violations of the prohibition of terrorist acts against a civilian population.

Article 8 of the Rome Statute does not mention terrorism as a war crime. However, both State officials and non-State actors could be exposed to the ICC’s jurisdiction if they have been involved in ‘intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities’, which is qualified as a war crime both in international armed conflicts (Article 8(2)(b)(i) of the Rome Statute) and in non-international armed conflicts (Article 8(2)(e)(i) of the Rome Statute). The actus reus corresponds with mainstream definitions of terrorism, but the specific intent to ignite fear in or intimidate the civilian population is absent. Another war crime that closely resembles an act of terrorism in peace time is hostage-taking, which requires an intention ‘to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons’.¹³ Although terrorism does not feature as a separate offence in the Rome Statute, there are equivalent war crimes that materially cover the same unlawful conduct. One could even wonder whether the comprehensive regulation of war crimes which is predicated on the rich normative framework of international humanitarian law does not obviate the need for identifying terrorism as a distinct war crime.¹⁴ However, if the ICC’s jurisdiction with respect to the crime of terrorism – and arguably other international criminal tribunals as well – is dependent on the existence of an armed conflict, it is obviously of paramount importance to inquire when the threshold of armed conflict is reached. It is to this question that we will now turn.

Armed conflict as a legal category under IHL and ICL

The necessity of defining and delineating the concept of armed conflict emerged when the State Parties negotiating the terms of the Geneva Conventions of 1949 decided to include a ‘codex’ on minimum provisions that the parties to a non-international armed conflict had to observe in view of the protection of non-combatants. While section 2 of this well-known Common Article 3 expressly stipulated that its application would not affect the legal status of the Parties, some States expressed concern, arguing that these proposals would bestow moral legitimacy upon criminal groups and hamper governments in their measures of legitimate repression. It was feared that the arrangement would ‘cover all forms of insurrections, rebellion and the break-up of states and even plain brigandage’.¹⁵ In an effort to allay the apprehensions of opponents, a Special Committee of the Diplomatic Conference confirmed that Common Article 3 would not include ‘terrorism’ and incidental riots or insurrections, but would instead only apply ‘to conflicts which, though internal in character, exhibited the features of real war’.¹⁶ With regard to the actors, the Special Committee alluded to well-organized insurgents who wield control over (part of) the territory and population and have the power to contend the State’s monopoly of violence.

In their attempt to enhance the protection of civilians and other vulnerable categories during hostilities, the international criminal tribunals have considerably widened the scope of the concept ‘armed conflict’. While an exhaustive analysis of this intriguing topic is beyond the ambit of this chapter, we will briefly refer to some decisions that highlight the difference with the prior approach.¹⁷

In Tadić, the ICTY Appeals Chamber entered into uncharted waters and propounded a definition that would serve as an authoritative point of departure for later judgments. According to the Appeals Chamber, an armed conflict exists ‘whenever there is a resort to armed forces between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’.¹⁸ In relation to non-international armed conflicts, the definition clarified two aspects. First of all, armed conflicts can occur without any involvement of the official government and can therefore occur between insurgent groups inter se. This extension of the scope of Additional Protocol II, which only applies if the central government is one of the warring parties, reflects the sensitivity of the problem of failed States.¹⁹ Second, in order to qualify as an armed conflict, two cumulative conditions must be satisfied: a) the armed forces should display a certain level of organization, and b) the fighting should have a certain degree of intensity. As these criteria are clearly still rather vague, they require further elaboration and interpretation in practice.²⁰

In Limaj, the Trial Chamber had the opportunity to flesh out these standards when determining whether an armed conflict had existed between the Kosovo Liberation Army (KLA) and Serbian armed forces.²¹ The organizational strength of the KLA was measured in terms of its capacity to wield internal control over its people, to formulate and execute concerted military action and to operate in unity with respect to its external relations.²² The Trial Chamber also shed light on the requirements in the realm of intensity of the conflict, mentioning, among others, the frequency and seriousness of armed clashes, the mobilization of elite military groups and the effects on the civilian population.²³

In helpfully summarizing the factors that should be taken into account when assessing the intensity of the hostilities, the Trial Chamber in Boskoski & Tarculovski frequently referred to the Limaj judgment:

the number of civilians forced to flee from the combat zones; the types of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these...

Table of contents

• Cover Page
• Half Title page
• Routledge Research in International Law
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Contributors
• Abbreviations
• ‘One, no one and one hundred thousand' Reflections on the multiple identities of the ICC
• Part I Crimes and modes of liability
• Part II Rights of the accused and of victims
• Part III The relationship between the International Criminal Court and States
• Part IV Applicable law and judicial creativity
• Index