1. Ius ad bellum & ius in bello: Hague law and Geneva law
There is a distinction between ius ad bellum and ius in bello, the first
regarding the waging of war, the latter regarding warfare. Armed
conflict is governed by the Hague law on one hand, aiming to curb the
conduct of hostilities, and Geneva law, aiming to protect the victims of
an armed conflict.
Both the Hague law and Geneva law are recognized as a fundamental part
of customary international law, as the Court states in para 79, 80 of
the Nuclear Weapons Advisory Opinion (a reference to the 1949 Corfu
Channel case is made):
"It is undoubtedly [..] rules of humanitarian law applicable in armed
conflict are so fundamental to the respect of [..] "elementary
considerations of humanity", that the Hague and Geneva Conventions are
to be observed by all States, whether or not they have ratified the
conventions that contain them, because they constitute intransgressible
principles of international customary law" (para 79). Furhermore, the
Court notes that these principles of humanitarian law are part of ius
cogens (para 83).
From this follows that, regardless of the act of ratification by States,
the rules codified in the Hague and Gevena Conventions apply to armed
conflict, because these conventions embody the rules of customary
international law.
1.2. The Hague law
Since the 1868 St. Petersburg Declaration, the Hague law has
incorporated conventions to outlaw certain types of weaponry, as the
1993 Chemical Weapons Convention is one of these coventions being
considered part of the Hague law.
1.3. Geneva Conventions and their Additional Protocols
The four Geneva Conventions are, in a particular order, as follows:
Convention I: protection of wounded and sick members of armed forces;
Convention II: protection of wounded, sick and shipwrecked members of armed forces at sea;
Convention III: treatment of prisoners of war;
Convention IV: protection of civilians
The three additional protocols are:
AP I: detailed rules of protection of victims in international armed conflicts (IAC);
AP II: regulation of non-international armed conflicts (NIAC);
AP III: rules on additional distinctive emblem of the red crystal
2. The scope of humanitarian law: defining an armed conflict
There always uncertainty on the precise scope of humanitarian
international law. Common Article 2 of the Geneva Convention provides
that the Convention "shall apply to all cases of declared war or any
other armed conflict which may arise between two or more of the High
Contracting Parties, even if the state of war is not recognized by one
of them".
Hence, the concept of an "armed conflict" has to be defined. The ICTY
Appeals Chamber does so in the 1995 Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction in the Tadić case (2 October 1995): "..we
find that 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. Humanitarian law extends beyond the cessation of hostilities"
(para 70).
As you might have noticed, the threshold for a NIAC
is higher than is the case with an IAC. Humanitarian international law
applies at the very moment of any act of force between States- with
respect to international humanitarian law, one could say it is "war at
first shot", as Common Article 2 of the Geneva Convention implicitly
makes clear. NIACs, on the other side, require "protracted or
large-scale armed violence" for international humanitarian law to be
applicable.
2.1. Lotus doctrine and si omnes clause
The
rationale behind this distinction is State sovereignty. International
law would foremost be applied in conflicts between States, or High
Contracting Parties to the Conventions. A si omnes clause has a very limited scope, stipulating
that provions could only apply if States, party to a conflict, were both
parties to the convention that would be applied. According
the Lotus doctrine, only the specific prohibition of methods of warfare
would govern interstate conflicts; otherwise, much was permissible.
2.2. Martens' clause
Фёдор Фёдорович Мартенс, Fjodor Martens, designed the general savings
clause. This clause is included in Article 1(2) of AP I; furthermore,
Common art. 2 of the Geneva Convention expressly rejects the si omnes
clause. It does so by stating "Although one of the Powers [to a
conflict] may not be a party to the present Convention.."
Note that paras 1-3 from Art. 60 of the VCLT do not apply to provisions
relating to humanitarian treaties, Art. 60(5) VCLT. This provision
stresses the importance of international humanitarian law: treaties
concerning humanitarian law should not be terminated along the line of
material breach by another party.
3. Principles of humanitarian law
Four principles underlie the rules of international humanitarian law as expressed in the conventions and additional protocols:
I. Principle of distinction;
II. Principle not to cause unnecessary suffering/ humanity principle;
III. Principle of military necessity and proportionality;
IV. Principle of precaution.
3.1. Principle of distinction
A distinction must be drawn between combatants ( defined by art. 43 of
AP I) and civilians (defined by Art. 50 AP I). A civilian is any person
who does not belong to one of the categories referred to in Art. 4
(A)(1)(2)(3) and (6) of Convention III and art. 43 of AP I. Unless they
take direct part in hostilities, civilians shall enjoy protection (Art.
51 (3) AP I). As Articles 48 (basic rule), 51(2) and 52(2) express,
civilians cannot lawfully be made objects of attack. Note that enemies
hors de combat will be safeguarded by Art. 41 of AP I; Article 41(2) AP I
defines persons hors de combat which cannot be made objects of attack.
A combatant cannot be deprived of his right to be combatant, whether he
has violated rules of international law or not, Art. 44(2) AP I. Members
of the armed forces of a Party to a conflict, have the right to
participate directly in hostilities, Art. 43(2) AP I. Any combatant as
defined in Art. 43, who falls into the power of an adverse Party, shall
enjoy the prisoner-of-war-status, Art 44(1) AP I. If a combatant fails
to distinguish himself from civilians, Art. 44(3) AP I, he will not
enjoy the prisoner-of-war-status, Art. 44(4) AP I; however, he will be
given the equivalent of the protection accorded by Convention III and AP
I. In order to garantuee as much protection as possible to all
categories of combatants and non-combatants, main rule prescribes that
anyone who cannot be considered a combantant in line with Art. 43 AP I,
will be considered a civilian, Art. 50 AP I.
Civilians that take part in hostilities, become objects of attack (Art.
51(3) AP I), but they will not enjoy the status of prisoner-of-war when
captured; if article 4 of Geneva Convention III does not apply, Article
45(3) in conjunction with Article 75 AP I affords the person, who is not
entitled to prisoner-of-war-statues, the right to protection.
Otherwise, Geneva Convention IV may apply.
There is a difference between civilians taking part in organized
hostilities and civilians participating in levée en masse. The latter,
spontaneously participating in non-organized hostilities, do become
prisoners-of-war in the event of being captured, Article 4A (6) of
Geneva Convention III.
Indiscriminate attacks are prohibited, Art. 51(4) and (5) AP I. Some
conventions are designed to expressly prohibit the use of certain
weaponry, such as the 2010 Convention on Cluster Munitions.
The Threat and use of nuclear weapons Advisory Opinion of 8 July
1996 discusses both the principles of distinction and the principle not
to cause unnecessary suffering in paras 95-97. The Court's summary of
the principles that constitute "the fabric of humanitarian law" is to be
found in para 78.
3.2. Principle not to cause unnecessary suffering (humanity)
Necessity cannot be invoked to justify military actions at any cost, as
Martens' clause aims to codify. The basic rules in Art. 35 of AP I
stress this principle not to cause unnecessary suffering as a result of
warfare. From the application of Common Article 3 follows that the
humanity principle applies to NIACs as well.
Regarding Common Article 3, the ICJ notes in the Nicaragua case that:
"The importance of the principles that the Geneva Conventions and other
relevant instruments purport to codify is [..] demonstrated by Articles
63, 62, 142 and 158 of Geneva Conventions I, II, III and IV
respectively. These provisions allow for state parties to denounce the
conventions unilaterally. However, the denunciation: "Shall in no way
impair the obligations which the parties to the conflict shall remain
bound to fulfil by virtue of the principle of the law of nations, as
they result from the usages among civilized peoples, from the laws of
humanity and the dictates of public conscience" (para 218).
3.3. Principle of military necessity and proportionality
As the Court states in the Threat or use of nuclear weapons Advisory
Opinion, it is prohibited to use weapons causing the combatants
unnecessesary harm, that is to say, a harm greater than unavoidable to
achieve legitimate military objectives (para 78).
The last sentence of Art. 51(5)(b) AP I classifies "attacks that are
excessive in relation to the military advantage anticipated" as
indiscriminate and therefore prohibited.
To NIACs, customary international law imposes on parties to the conflict
an equal obligation to refrain from causing greater harm than
unavoidable to achieve military objectives.
3.4. Principle of precaution
The principles of humanity and military necessity imply the principle to
take precautionary measures. In the conduct of military operations,
Art. 57 AP I stipulates that constant care shall be taken to spare
civilians and civilian objects. While AP I does not apply to NIACs,
customary international law imposes on the parties to a NIAC the
obligation to take precautions in order to prevent unnessary suffering.
4. NIACs
4.1. Defining NIACs and the application of Common Art. 3
On deciding whether the armed conflict in the Tadić
case could be considered an international armed conflict, the Appeals
Chamber in the Judgment of 15 July 1999 stated that "in order to
attribute the acts of military or paramilitary groups to a State, it
must be proved that the State wields overall control [..]" (para 131).
Although its scope is limited, Geneva Convention Common Art. 3 applies
to NIACs. In the Decision on the Defence Motion for Interlocutory Appeal
on Jurisdiction of 2 October 1995 in the Tadić
case, the ICTY Appeals Chamber makes clear that a higher threshold has
to be passed for an internal conflict to qualify as a NIAC (para 70).
In the Tadić trial of 7 May 1999,
the ICTY Trial Chamber has set out which requirements have to be met in
order to pass the threshold for the application of rules regarding a
NIAC: "The test applied to the existence of an armed conflict for the
purpose of the rules contained in Common Article 3 focuses on two
aspects of a conflict: the intensity of the conflict and the
organization of the parties to the conflict" (para 562).
4.2. NIACs and AP II
Many of the provisions of AP II represent customary international law.
The threshold in Additional Protocol II (which governs NIACs) can be
derived from Article 1(1) AP II:
"..organized armed groups
which, under responsible command, exercise such control over a part of
its territory as to enable them to carry out sustained and concerted
military operations".
The scope of AP II is, thus, limited, as
Article 1(2) AP II puts it: "This Protocol shall not apply to situations
of internal disturbances and tensions such as riots, isolated and
sporadic acts of violence."
Like I noted before, the explanation
for the restricted reading of the regulation of NIACs is State
sovereignty. Also, States might not want to qualify internal conflicts
with armed (rebel) groups as NIACs, for qualifying a conflict as such,
implicitly means recognizing and eventually legitimizing the existence
and actions of those groups.
5. The value of humanitarian law
What is exactly the value of international humanitarian law? Although
the (codification of) customary international law aims to guarantee
human rights and stems from universal human ideals of what global
society should be like, it goes to show that many (non-) state actors
don't live up to guarantee those rights. When non-State actors and
States lack natural authority, one could image well how these actors
resort to the threat with or use of violence and how they would rely on
an arms race to scare off future, existent or imaginary enemies; living
up to their human rights commitments would be the last to be concerned
about. In practice, non-compliance is the rule rather than the
exception. Even if all parties to a (human rights) treaty give their
consent to be bound, there will always be ambiguity when conflicts
arise. That is why many of the rules of international law apply in
theory, but not in practice.
Recommended reading:
Typology of armed conflicts in international humanitarian law, S. Vité, March 2009;
International Humanitarian Law, H.P. Gasser, March 2011, available at Oxford PIL.
Posts tonen met het label Mercedes Bouter rechten. Alle posts tonen
Posts tonen met het label Mercedes Bouter rechten. Alle posts tonen
zondag 5 maart 2017
zaterdag 4 maart 2017
On the jurisdiction of ICC, Tribunals and domestic courts
1. International Criminal Courts
1.1. Why is the prosecution of individuals for crimes against humanity, deemed controversial?
The prosecution of war criminals by the Nuremberg Tribunal (IMT) made clear that the category of "crimes against humanity" (the category of "violation of peace" alike) would interfere with a state's sovereignty with respect to domestic jurisdiction and governmental activities, such as the waging of war. Also, the category of "crimes against humanity" would be contary to the universal principle "nullum crimen sine lege" (Art. 22 Rome), as no such category of crimes was recognized before the IMT was set up.
The first international case to give rise to a wide recognition of individual responsibility for war crimes, whether they were committed on an international scale or within the boundaries of a state, was the Tadic case of the ICTY.
1.2. How is the jurisdiction of the ICC defined?
The jurisdiction ratione personae of the ICC is limited to individuals. The Court has jurisdiction over natural persons pursuant to the Statute, according to Article 25 of the Rome Statute. The International Criminal Court was established by the Rome Statute. The jurisdiction of the ICC is based on the principle of complementarity, as Article 1 of the Rome Statute reads. The primacy of domestic courts with respect to exercising jurisdiction over crimes, implies that the ICC only has jurisdiction when a State is unwilling or unable genuinely to carry out the investigation or prosecution, as Art. 17 ( Issues of admissibility) of the Rome Statute makes clear.
1.2.1. material jurisdiction
The substantive component of international criminal law, making up the material jurisdiction, consists of four core crimes, as Article 5 of Rome puts it: "The jurisdiction shall be limited to the most serious crimes of concern to the community as a whole. The Court has jurisdiction with respect to: the crime of genocide, crimes against humanity, war crimes and the crime of aggression".
1.2.2. core crimes
Conviction of the individual for committing core crimes, requires the fulfilment of actus reus and mens rea. With respect to actus reus, the crimes of genocide, war crimes and crimes against humanity are covered by articles 6-8 of the Rome Statute, the category of war crimes being the most elaborate. For an individual to be prosectuted and ultimately convicted for the crime of genocide, the decisive criterion is to be found in Article 2 of the Genocide Convention: the requirement of an intent to destroy has to be met.
The ICTY in the Krstić (pronunciation: kerr-steech) case has set out that the term "in part", as meant in Article 3 of the Genocide Convention, contains a substantiality requirement. The Trial Chamber determined that Krstic had the intent to kill, thus, the requirements of Art. 4(2)(a) of the Rome Statute have been met (para 598 case IT-98-33-T, Prosecutor v. Krstić). Although the ICTY Appeals Chamber in the Judgment of 19 April 2004 acknowledges that the Trial Chamber should have exressed its reasoning more carefully (para 22), the remark is made that the Trials Chamber was correct when determining that the part of the group that has been killed, was "substantial" as with respect to the crime of genocide.
In concluding that some members of the VRS Main Staff had intented to destroy this substantial part of a group, the Trial Chamber did not depart from the legal requirements for genocide (para 38).
For an individual to be prosecuted for crimes against humanity, a "specific intent" exists when there is "knowledge of the attack". This is a less strict criterion than is the "intent to destroy" requirement for prosecuting one for the crime of genocide.
How does one determine, however, when the individual has had the "intent to kill"? The mental element as such, mens rea, is described in Article 30(2) of the Rome Statute of the ICC: a person has intent where (a) in relation to conduct, that person means to engage in the conduct; (b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of the events.
The grounds for excluding criminal responsibility are to be found in Articles 31 and 32 of the Rome Statute. Article 33 provides possible grounds for the exclusion of criminal responsibility; paragraph 1 gives a negative formula: "..shall not relieve that person of responsibility, unless..." one of the three options in (a)(b)(c) applies.
1.2.3. temporal jurisdiction
The first of the general principles of criminal law, as laid down in part 3 of the Rome Statute, define the temporal jurisdiction of the ICC: from "nullum crime sin lege", "nulla poena sine lege" and the non-retroactivity ratione personae, follows that the Court has no jurisdiction with respect to criminal activities committed prior to the entry into force of the Rome Statute, see Art. 11 along with 24 of the Rome Statute.
1.2.4. territorial and personal jurisdiction
The Court can exercise its jurisdiction if a state within the territory of which the conduct has taken place, is a party to the Rome Statute or has accepted the ICC's jurisdiction in accordance with paragraph 3 (Art. 12 Rome Statute). From this follows that the ICC can exercise jurisdiction if the state of which an accused individual is a national, is a party to the Rome Statute or has accepted its jurisdiction as set out.
Note that the limitation of territorial and personal jurisdiction does not apply to the situations as provided for in Articles 13(b) and 15 ter of the Rome Statute.
1.2.5. no universal jurisdiction
No universal jurisdiction of the ICC is recognized; with respect to its complementary role, Article 12(2) of the Rome Statute provides that State consent is a precondition to the exercise of jurisdiction by the ICC.
1.3. What are the conditions for action by the ICC?
There are three ways to enable the ICC's jurisdiction, Article 13 of the Rome Statute:
1. A State Party may refer a situation to the Prosecutor, in accordance with Article 14 of the Rome Statute (Art. 13(a) Rome);
2. The Security Council of the UN, acting under Chapter VII of the UN Charter, may refer a situation to the Prosecutor (Art. 13(b) Rome);
3. The Prosecutor may initiate investigations proprio motu (Article 13(c) in conjunction with Article 15 Rome).
Note that referral by a State Party and investigation proprio motu by the Prosecutor, Article 13(a) and (c) Rome, are subject to the conditions in Article 12(2)(a)(b) of the Rome Statute.
2. How do the jurisdiction of the ICC and the Tribunals differ in relation to domestic courts?
As said before, the nature of the jurisdiction of the ICC is complementary; the Court has no primacy, as states have first responsibility, unless they are unwilling or genuinely unable to carry out investigation or prosecution, which is an issue of admissibility. Once a case is genuinely being investigated or prosecuted by a domestic court, the case will no longer be admissible before the ICC: look up relevant Articles 1 and 17-19 of Part 2 of the Rome Statute.
No such conditions are imposed on the Criminal Tribunals; the International Criminal Tribunal of the former Yugoslavia shall have primacy over national courts, in accordance with Art. 9(2) of the ICTY. The same holds good for the Rwanda Criminal Tribunal, as Article 8(2) of the ICTR (UNICTR) was a mere predecessor of the concurrent jurisdiction provisions in the ICTY.
The International Tribunals have another main advantage over the ICC in common: the permanent status of the ICC demands from the Court that individuals only be prosecuted for or convicted of crimes that meet the condition of nullum crime sini lege in accordance with Article 22 of the Rome Statute. No such provisions are to be found in the ICTY and ICTR: the International Criminal Tribunals are able to respond to recent activities, regardless of a strict ex ante codification of crimes that the individual could be convicted of.
3. How is the responsibility of the individual addressed?
3.1. Individually or jointly committed crimes and contribution to the commission of crimes
An individual should be held criminally responsible and liable for punishment for a crime within the jurisdiction of the ICC, if that person:
1. Commits such a crime, whether as an individual, jointly with another or through another person
(art. 25(3)(a) Rome Statute);
2. For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists
(art. 25(3)(c) Rome Statute);
3. In any other way contributes to the commission or attempted commission of such a crime. Such contribution shall be intentional and shall either be made with the aim of furthering the criminal activity or be made in the knowledge of the intention of the group to commit the crime
(art. 25(3)(d)(i)(ii) Rome Statute).
3.2. Responsibility of commanders
A person shall be held criminally responsible if that person:
1. Orders, solicits or induces the commission of such a crime (art. 25(3)(b) Rome Statute);
2. A commander shall be held responsible for crimes committed by forces under his effective command and control, where that military commander either knew or should have known that the forces were committing such crimes and that military commander failed to take necessary and reasonable measures within his power to prevent or repress their commission [..] (Art. 28 Rome Statute).
3.3. Persons pursuant to superior orders
The fact that a crime is committed by a person, pursuant to an order of a Government or a superior, shall not relieve that person of responsibility, unless that person was under a legal obligation to obey, the person did not know that the order was unlawful and the order was not manifestly unlawful (Article 33(1)(a)(b)(c) Rome Statute). However, the crime of genocide and crimes against humanity are manifestly unlawful; thus, a person cannot be relieved from responsibility with respect to such crimes (Art. 33(2) Rome Statute).
3.4. State responsibility
Article 25(4) provides that no provision in the Rome Statute relating to individual responsibility shall affect the responsibility of States under international law.
4. How can a state exercise domestic jurisdiction over international crimes?
The principles from which state jurisdiction is derived, are territoriality, protection, nationality and universality.
4.1. Territoriality principle
Regarding the territoriality principle, a distinction can be drawn between the subjective territoriality (initiation of a crime) and the objective territoriality/ effects doctrine (fulfilment of a criminal offence). If two states are concerned, both the state in which the crime was initiated and the state in which the crime was executed, are entitled to exercise their jurisdiction.
4.2. Nationality principle
The active nationality principle implies that a state may exercise its jurisdiction over its own nationals, regardless of the territory on which a crime was committed.
The passive nationality principle aims to protect a state's own nationals against offences, even if they are committed by another national in another state. Exercising passive nationality would interfere with the right of another state to exercise its territorial jurisdiction.
4.3. Protective principle
The protective principle implies that a state can exercise jurisdiction over non-nationals in the territory of another state. The requirement is that an offender commits a crime that affects the vital interests of a state.
4.4. Universality principle
Certain crimes are so grave in nature, that a universal protection against the commission of such crimes is required, regardless of territoriality and nationality issues. From this follows that states need to exercise universal jurisidiction with respect to the prosecution of offenders.
Note that treaty law imposes on states, party to a treaty, the obligation to exercise universal jurisdiction regarding the repression of universally recognized, grave crimes. The crimes of genocide and torture are crimes of such gravity. Article 6 of the Genocide Convention stipulates that an offender shall be tried by a competent tribunal, which may exercise its jurisdiction over the territory of the Party State in which the crime of genocide was committed. The preamble to the Torture Convention reads that "the desire is to make more effective the struggle against torture and other cruel treatment throughout the world". Article 7 of the Torture Convention stipulates that the State Party submit the case to its competent authorities for the purpose of prosecution, assumed that the requirements from Art. 4-6 have been met (territory issues).
5. The jurisdiction of the ICTY and ICTR
While the ICC and Neuremberg Tribunal were established by a treaty, the ICTY and ICTR were established by binding Resolutions of the UN Security Council, acting under the provisions of Chapter VII of the UN Charter. Recall that Articles 7 and 8 of the ICTY and ICTR Statutes provide the Tribunals with both territorial and temporal jurisdiction.
5.1. The Appeals Chamber in the Tadić case of 2 October 1995: Kompetenz-Kompetenz
Concerning its jurisdiction, the Appeals Chamber in the Tadić Interlocutory Appeal of 2 October 1995 remarks that, according to the principle of "Kompetenz-Kompetenz" or "la compétence de compétence", the Tribunal has the incidental or inherent competence jurisdiction to determine its own jurisdiction (para 18). It is a necessary component of in the exercise of the judicial function of the tribunals and as such, this practice was accepted by general international law.
With respect to the questioning of the power of the UNSC to set up ICTY by means of a resolution, the Appeals Chamber determines that the legal basis is to be found in the authority of the Security Council, as was decided by the (paras 32-38 and 40).
5.2. Questioning the primacy of International Tribunals
Although the Tribunals have concurrent jurisdiction with domestic courts, the Tribunals have primacy with respect to the prosecution of international crimes, as laid down in Articles 8 of the ICTR Statute and 9 of the ICTY Statute.
The second ground of appeal in the 1995 Tadić Decision on the Defence Motion by the ICTY Appeals Chamber attacks the primacy of the International Tribunal over domestic courts (para 49).
However, the plea of State sovereignty must be dismissed. The Appeals Chamber provides us with several important considerations.
The public revulsion against similar offences [crimes against humanity] brought about the establishment of an international judicial body by an organ of an organization representing the community of nations: the Security Council. This organ is empowered and mandated, by definition, to deal with trans-boundary matters which may affect "international peace and security". It would be a travesty of law, should the concept of State sovereignty be allowed to be raised succesfully against human rights. When an international tribunal such as the present one is created, it must be endowed with primacy over national courts. Otherwise, there would be a danger of international crimes being characterised as "ordinary crimes" (para 58).
6. Do HRSO enjoy immunity before the ICC and Tribunals?
One final remark on the immunity of HRSO from foreign jurisdiction. It should be clear that an incumbent HRSO or a former HRSO with respect to crimes committed in acting out official capacities, cannot enjoy immunity before the ICC and the International Tribunals. Article 27 of the Rome Statute stresses that HRSO do not enjoy immunity before the ICC; Articles 7(2) of the ICTY and 6(2) of the ICTR read that the "official position of any accused person, whether as Head of State of Government, shall not relieve such person of criminal responsibility nor mitigate punishment".
1.1. Why is the prosecution of individuals for crimes against humanity, deemed controversial?
The prosecution of war criminals by the Nuremberg Tribunal (IMT) made clear that the category of "crimes against humanity" (the category of "violation of peace" alike) would interfere with a state's sovereignty with respect to domestic jurisdiction and governmental activities, such as the waging of war. Also, the category of "crimes against humanity" would be contary to the universal principle "nullum crimen sine lege" (Art. 22 Rome), as no such category of crimes was recognized before the IMT was set up.
The first international case to give rise to a wide recognition of individual responsibility for war crimes, whether they were committed on an international scale or within the boundaries of a state, was the Tadic case of the ICTY.
1.2. How is the jurisdiction of the ICC defined?
The jurisdiction ratione personae of the ICC is limited to individuals. The Court has jurisdiction over natural persons pursuant to the Statute, according to Article 25 of the Rome Statute. The International Criminal Court was established by the Rome Statute. The jurisdiction of the ICC is based on the principle of complementarity, as Article 1 of the Rome Statute reads. The primacy of domestic courts with respect to exercising jurisdiction over crimes, implies that the ICC only has jurisdiction when a State is unwilling or unable genuinely to carry out the investigation or prosecution, as Art. 17 ( Issues of admissibility) of the Rome Statute makes clear.
1.2.1. material jurisdiction
The substantive component of international criminal law, making up the material jurisdiction, consists of four core crimes, as Article 5 of Rome puts it: "The jurisdiction shall be limited to the most serious crimes of concern to the community as a whole. The Court has jurisdiction with respect to: the crime of genocide, crimes against humanity, war crimes and the crime of aggression".
1.2.2. core crimes
Conviction of the individual for committing core crimes, requires the fulfilment of actus reus and mens rea. With respect to actus reus, the crimes of genocide, war crimes and crimes against humanity are covered by articles 6-8 of the Rome Statute, the category of war crimes being the most elaborate. For an individual to be prosectuted and ultimately convicted for the crime of genocide, the decisive criterion is to be found in Article 2 of the Genocide Convention: the requirement of an intent to destroy has to be met.
The ICTY in the Krstić (pronunciation: kerr-steech) case has set out that the term "in part", as meant in Article 3 of the Genocide Convention, contains a substantiality requirement. The Trial Chamber determined that Krstic had the intent to kill, thus, the requirements of Art. 4(2)(a) of the Rome Statute have been met (para 598 case IT-98-33-T, Prosecutor v. Krstić). Although the ICTY Appeals Chamber in the Judgment of 19 April 2004 acknowledges that the Trial Chamber should have exressed its reasoning more carefully (para 22), the remark is made that the Trials Chamber was correct when determining that the part of the group that has been killed, was "substantial" as with respect to the crime of genocide.
In concluding that some members of the VRS Main Staff had intented to destroy this substantial part of a group, the Trial Chamber did not depart from the legal requirements for genocide (para 38).
For an individual to be prosecuted for crimes against humanity, a "specific intent" exists when there is "knowledge of the attack". This is a less strict criterion than is the "intent to destroy" requirement for prosecuting one for the crime of genocide.
How does one determine, however, when the individual has had the "intent to kill"? The mental element as such, mens rea, is described in Article 30(2) of the Rome Statute of the ICC: a person has intent where (a) in relation to conduct, that person means to engage in the conduct; (b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of the events.
The grounds for excluding criminal responsibility are to be found in Articles 31 and 32 of the Rome Statute. Article 33 provides possible grounds for the exclusion of criminal responsibility; paragraph 1 gives a negative formula: "..shall not relieve that person of responsibility, unless..." one of the three options in (a)(b)(c) applies.
1.2.3. temporal jurisdiction
The first of the general principles of criminal law, as laid down in part 3 of the Rome Statute, define the temporal jurisdiction of the ICC: from "nullum crime sin lege", "nulla poena sine lege" and the non-retroactivity ratione personae, follows that the Court has no jurisdiction with respect to criminal activities committed prior to the entry into force of the Rome Statute, see Art. 11 along with 24 of the Rome Statute.
1.2.4. territorial and personal jurisdiction
The Court can exercise its jurisdiction if a state within the territory of which the conduct has taken place, is a party to the Rome Statute or has accepted the ICC's jurisdiction in accordance with paragraph 3 (Art. 12 Rome Statute). From this follows that the ICC can exercise jurisdiction if the state of which an accused individual is a national, is a party to the Rome Statute or has accepted its jurisdiction as set out.
Note that the limitation of territorial and personal jurisdiction does not apply to the situations as provided for in Articles 13(b) and 15 ter of the Rome Statute.
1.2.5. no universal jurisdiction
No universal jurisdiction of the ICC is recognized; with respect to its complementary role, Article 12(2) of the Rome Statute provides that State consent is a precondition to the exercise of jurisdiction by the ICC.
1.3. What are the conditions for action by the ICC?
There are three ways to enable the ICC's jurisdiction, Article 13 of the Rome Statute:
1. A State Party may refer a situation to the Prosecutor, in accordance with Article 14 of the Rome Statute (Art. 13(a) Rome);
2. The Security Council of the UN, acting under Chapter VII of the UN Charter, may refer a situation to the Prosecutor (Art. 13(b) Rome);
3. The Prosecutor may initiate investigations proprio motu (Article 13(c) in conjunction with Article 15 Rome).
Note that referral by a State Party and investigation proprio motu by the Prosecutor, Article 13(a) and (c) Rome, are subject to the conditions in Article 12(2)(a)(b) of the Rome Statute.
2. How do the jurisdiction of the ICC and the Tribunals differ in relation to domestic courts?
As said before, the nature of the jurisdiction of the ICC is complementary; the Court has no primacy, as states have first responsibility, unless they are unwilling or genuinely unable to carry out investigation or prosecution, which is an issue of admissibility. Once a case is genuinely being investigated or prosecuted by a domestic court, the case will no longer be admissible before the ICC: look up relevant Articles 1 and 17-19 of Part 2 of the Rome Statute.
No such conditions are imposed on the Criminal Tribunals; the International Criminal Tribunal of the former Yugoslavia shall have primacy over national courts, in accordance with Art. 9(2) of the ICTY. The same holds good for the Rwanda Criminal Tribunal, as Article 8(2) of the ICTR (UNICTR) was a mere predecessor of the concurrent jurisdiction provisions in the ICTY.
The International Tribunals have another main advantage over the ICC in common: the permanent status of the ICC demands from the Court that individuals only be prosecuted for or convicted of crimes that meet the condition of nullum crime sini lege in accordance with Article 22 of the Rome Statute. No such provisions are to be found in the ICTY and ICTR: the International Criminal Tribunals are able to respond to recent activities, regardless of a strict ex ante codification of crimes that the individual could be convicted of.
3. How is the responsibility of the individual addressed?
3.1. Individually or jointly committed crimes and contribution to the commission of crimes
An individual should be held criminally responsible and liable for punishment for a crime within the jurisdiction of the ICC, if that person:
1. Commits such a crime, whether as an individual, jointly with another or through another person
(art. 25(3)(a) Rome Statute);
2. For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists
(art. 25(3)(c) Rome Statute);
3. In any other way contributes to the commission or attempted commission of such a crime. Such contribution shall be intentional and shall either be made with the aim of furthering the criminal activity or be made in the knowledge of the intention of the group to commit the crime
(art. 25(3)(d)(i)(ii) Rome Statute).
3.2. Responsibility of commanders
A person shall be held criminally responsible if that person:
1. Orders, solicits or induces the commission of such a crime (art. 25(3)(b) Rome Statute);
2. A commander shall be held responsible for crimes committed by forces under his effective command and control, where that military commander either knew or should have known that the forces were committing such crimes and that military commander failed to take necessary and reasonable measures within his power to prevent or repress their commission [..] (Art. 28 Rome Statute).
3.3. Persons pursuant to superior orders
The fact that a crime is committed by a person, pursuant to an order of a Government or a superior, shall not relieve that person of responsibility, unless that person was under a legal obligation to obey, the person did not know that the order was unlawful and the order was not manifestly unlawful (Article 33(1)(a)(b)(c) Rome Statute). However, the crime of genocide and crimes against humanity are manifestly unlawful; thus, a person cannot be relieved from responsibility with respect to such crimes (Art. 33(2) Rome Statute).
3.4. State responsibility
Article 25(4) provides that no provision in the Rome Statute relating to individual responsibility shall affect the responsibility of States under international law.
4. How can a state exercise domestic jurisdiction over international crimes?
The principles from which state jurisdiction is derived, are territoriality, protection, nationality and universality.
4.1. Territoriality principle
Regarding the territoriality principle, a distinction can be drawn between the subjective territoriality (initiation of a crime) and the objective territoriality/ effects doctrine (fulfilment of a criminal offence). If two states are concerned, both the state in which the crime was initiated and the state in which the crime was executed, are entitled to exercise their jurisdiction.
4.2. Nationality principle
The active nationality principle implies that a state may exercise its jurisdiction over its own nationals, regardless of the territory on which a crime was committed.
The passive nationality principle aims to protect a state's own nationals against offences, even if they are committed by another national in another state. Exercising passive nationality would interfere with the right of another state to exercise its territorial jurisdiction.
4.3. Protective principle
The protective principle implies that a state can exercise jurisdiction over non-nationals in the territory of another state. The requirement is that an offender commits a crime that affects the vital interests of a state.
4.4. Universality principle
Certain crimes are so grave in nature, that a universal protection against the commission of such crimes is required, regardless of territoriality and nationality issues. From this follows that states need to exercise universal jurisidiction with respect to the prosecution of offenders.
Note that treaty law imposes on states, party to a treaty, the obligation to exercise universal jurisdiction regarding the repression of universally recognized, grave crimes. The crimes of genocide and torture are crimes of such gravity. Article 6 of the Genocide Convention stipulates that an offender shall be tried by a competent tribunal, which may exercise its jurisdiction over the territory of the Party State in which the crime of genocide was committed. The preamble to the Torture Convention reads that "the desire is to make more effective the struggle against torture and other cruel treatment throughout the world". Article 7 of the Torture Convention stipulates that the State Party submit the case to its competent authorities for the purpose of prosecution, assumed that the requirements from Art. 4-6 have been met (territory issues).
5. The jurisdiction of the ICTY and ICTR
While the ICC and Neuremberg Tribunal were established by a treaty, the ICTY and ICTR were established by binding Resolutions of the UN Security Council, acting under the provisions of Chapter VII of the UN Charter. Recall that Articles 7 and 8 of the ICTY and ICTR Statutes provide the Tribunals with both territorial and temporal jurisdiction.
5.1. The Appeals Chamber in the Tadić case of 2 October 1995: Kompetenz-Kompetenz
Concerning its jurisdiction, the Appeals Chamber in the Tadić Interlocutory Appeal of 2 October 1995 remarks that, according to the principle of "Kompetenz-Kompetenz" or "la compétence de compétence", the Tribunal has the incidental or inherent competence jurisdiction to determine its own jurisdiction (para 18). It is a necessary component of in the exercise of the judicial function of the tribunals and as such, this practice was accepted by general international law.
With respect to the questioning of the power of the UNSC to set up ICTY by means of a resolution, the Appeals Chamber determines that the legal basis is to be found in the authority of the Security Council, as was decided by the (paras 32-38 and 40).
5.2. Questioning the primacy of International Tribunals
Although the Tribunals have concurrent jurisdiction with domestic courts, the Tribunals have primacy with respect to the prosecution of international crimes, as laid down in Articles 8 of the ICTR Statute and 9 of the ICTY Statute.
The second ground of appeal in the 1995 Tadić Decision on the Defence Motion by the ICTY Appeals Chamber attacks the primacy of the International Tribunal over domestic courts (para 49).
However, the plea of State sovereignty must be dismissed. The Appeals Chamber provides us with several important considerations.
The public revulsion against similar offences [crimes against humanity] brought about the establishment of an international judicial body by an organ of an organization representing the community of nations: the Security Council. This organ is empowered and mandated, by definition, to deal with trans-boundary matters which may affect "international peace and security". It would be a travesty of law, should the concept of State sovereignty be allowed to be raised succesfully against human rights. When an international tribunal such as the present one is created, it must be endowed with primacy over national courts. Otherwise, there would be a danger of international crimes being characterised as "ordinary crimes" (para 58).
6. Do HRSO enjoy immunity before the ICC and Tribunals?
One final remark on the immunity of HRSO from foreign jurisdiction. It should be clear that an incumbent HRSO or a former HRSO with respect to crimes committed in acting out official capacities, cannot enjoy immunity before the ICC and the International Tribunals. Article 27 of the Rome Statute stresses that HRSO do not enjoy immunity before the ICC; Articles 7(2) of the ICTY and 6(2) of the ICTR read that the "official position of any accused person, whether as Head of State of Government, shall not relieve such person of criminal responsibility nor mitigate punishment".
zaterdag 25 februari 2017
A brief description of the use of force in self-defence
Before considering whether the right to exercise self-defence justifies
any measures taken by a State, let's take at look at the general rule of
international law regarding the use of force. The general prohibition
of the use of force is provided by Article 2 para 4 of the UN Charter.
Two exceptions to this prohibition are (1) authorization by the UN
Security Council (Article 42 UN Charter) and (2) self-defence (Article
51 of the UN Charter).
As can be learned from the Advisory Opinion on the Threat and Use of Nuclear Weapons from 8 July 1996, paragraph 41, the submission of exercise of the right of self-defence to conditions of necessity and proportionality, is a rule of customary international law. Referring to the Nicaragua case, the ICJ states that "there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law", see also paragraph 51 and paras 73-77 of the Oil Platforms case. The Oil Platforms case also makes clear that the principle of necessity is a strict and objective condition that leaves States no discretion.
Thus, the three requirements to invoke self-defence, (known as the "Caroline test") as can be derived from the 1842 letter from Webster to Ashburton, are: the other state must have performed an armed attack (1), self-defence was necessary to respond to it (2) and the self-defence was proportionate (3) (see also, paras 229-237 Nicaragua). Moreover, Art. 51 of the UN Charter requires that measures taken shall be reported to the Security Council immediately.
Different regimes for the UN Charter and customary international law (Caroline test)?
While measures taken in either reactive or anticipatory self-defence would have to comply with the requirements of necessity and proportionality, Art. 51 of the UN Charter stipulates that self-defence can only be invoked after the occurrence of an armed attack.
The Caroline test, formulating the requirements of customary international law, leaves the possibility that one invokes a state of necessity if an imminent threat has been established, the necessity of the self-defence is instant and a state has no other means left to it than a use of force. Both the necessity and proportionality principle imply that states have to confine themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or impose punishment on the attacker.
Note that time is another condition of importance, as in the Nicaragua case, the measures taken several months after the major offense, could not be said to "correspond to a necessity justifying the action" (para 237).
Asssuming that any measures taken have not yet failed the necessity test, the next question is, if the proportionality principle has been met. The Court states in the Oil Platforms case that "the scale of the whole operation has to be judged in order to assess, whether the response ["self-defence"] was proportionate" (para 77).
A problem arises when an attack was performed by a non-state actor [rebel groups, for instance]. Is their conduct attributable to a state? A strict, traditionalist approach was applied in Nicaragua (demanding "effective control", paras 115-116), subsequently in Armed Activities on the Territory of The Congo (paras 146, 147) and the Genocide case of 2007 (Bosnia and Herzegovina vs. Serbia and Montenegro, para 406).
Provided that a state has delivered arms to a rebel group (Nicaragua) and although providing training and military support to a rebel group might violate customary international law (Armed Activities Congo/ Uganda), the conclusion that follows from these cases is that State could not be held responsible and that the self-defence plea had to be rejected for these reasons.
Not everything has been said yet. A lot of controversy still surrounds the question, whether the right to self-defence could be invoked against non-state actors, assuming that their conduct cannot be attributable to a state. It is rather unsure whether or not the traditionalist approach still applies. Hence, in practice, the right to invoke self-defence against non-state actors is no longer categorically rejected.
As can be learned from the Advisory Opinion on the Threat and Use of Nuclear Weapons from 8 July 1996, paragraph 41, the submission of exercise of the right of self-defence to conditions of necessity and proportionality, is a rule of customary international law. Referring to the Nicaragua case, the ICJ states that "there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law", see also paragraph 51 and paras 73-77 of the Oil Platforms case. The Oil Platforms case also makes clear that the principle of necessity is a strict and objective condition that leaves States no discretion.
Thus, the three requirements to invoke self-defence, (known as the "Caroline test") as can be derived from the 1842 letter from Webster to Ashburton, are: the other state must have performed an armed attack (1), self-defence was necessary to respond to it (2) and the self-defence was proportionate (3) (see also, paras 229-237 Nicaragua). Moreover, Art. 51 of the UN Charter requires that measures taken shall be reported to the Security Council immediately.
Different regimes for the UN Charter and customary international law (Caroline test)?
While measures taken in either reactive or anticipatory self-defence would have to comply with the requirements of necessity and proportionality, Art. 51 of the UN Charter stipulates that self-defence can only be invoked after the occurrence of an armed attack.
The Caroline test, formulating the requirements of customary international law, leaves the possibility that one invokes a state of necessity if an imminent threat has been established, the necessity of the self-defence is instant and a state has no other means left to it than a use of force. Both the necessity and proportionality principle imply that states have to confine themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or impose punishment on the attacker.
Note that time is another condition of importance, as in the Nicaragua case, the measures taken several months after the major offense, could not be said to "correspond to a necessity justifying the action" (para 237).
Asssuming that any measures taken have not yet failed the necessity test, the next question is, if the proportionality principle has been met. The Court states in the Oil Platforms case that "the scale of the whole operation has to be judged in order to assess, whether the response ["self-defence"] was proportionate" (para 77).
A problem arises when an attack was performed by a non-state actor [rebel groups, for instance]. Is their conduct attributable to a state? A strict, traditionalist approach was applied in Nicaragua (demanding "effective control", paras 115-116), subsequently in Armed Activities on the Territory of The Congo (paras 146, 147) and the Genocide case of 2007 (Bosnia and Herzegovina vs. Serbia and Montenegro, para 406).
Provided that a state has delivered arms to a rebel group (Nicaragua) and although providing training and military support to a rebel group might violate customary international law (Armed Activities Congo/ Uganda), the conclusion that follows from these cases is that State could not be held responsible and that the self-defence plea had to be rejected for these reasons.
Not everything has been said yet. A lot of controversy still surrounds the question, whether the right to self-defence could be invoked against non-state actors, assuming that their conduct cannot be attributable to a state. It is rather unsure whether or not the traditionalist approach still applies. Hence, in practice, the right to invoke self-defence against non-state actors is no longer categorically rejected.
An extensive reading of the lawful termination of treaties and the Gabčíkovo-Nagymaros case
The Vienna Convention contains general provisions on suspension and
termination of treaties, in particular Articles 54 to 62 VCLT.
Before I am going to discuss the infamous Gabčíkovo-Nagymaros (pronunciation: Gab-chi-co-vah/ Nagee-marosh) case, I will first make a disctinction between formal and substantive grounds for termination or suspension of a treaty.
1.1. Formal grounds for termination or suspension of a treaty
The formal grounds for termination of treaties is provided by articles 54 to 59 VCLT. These include termination in conformity with the provisions of the treaty and termination by consent of all the parties after consultation (art. 54) and termination or suspension of the operation of the treaty implied by conclusion of a later treaty (art. 59).
1.2. Material grounds for termination
Articles 60 to 62 VCLT provide the substantive or material grounds for termination or suspension of a treaty. The ICJ affirms that the rules laid down by the Vienna Convention on the Law of Treaties concerning termination of a treaty relationship on account of breach, may in many respects be considered as a codification of existing customary law on the subject (see the Namibia Advisory Opinion of 1971, p. 47).
Note that articles 60-62 VCLT provide three options to justify unilateral termination of a treaty:
1. inadimplenti non est adimplendum;
2. force majeure;
3. rebus sic stantibus;
The first one being the actual "material breach" by the other contracting party.
2. Material grounds for termination or suspension of a treaty and Gabčíkovo-Nagymaros Does Hungary's termination of the 1977 Treaty between Hungary and Czechoslovakia, meet the requirements under Article 60 to 62 VCLT? This is the main question in the G-N case, for Hungary invokes no less than five grounds in an attempt to justify its unilateral termination of the Treaty.
These grounds are, in no particular order: a state of necessity, material breach of the treaty by Czechoslovakia, impossibility of performance of the treaty, a fundamental change of circumstances and the development of new norms of international environmental law. Before I am going to discuss the state of necessity, I will highlight the three material grounds that are covered by art. 60-62 VCLT.
2.1. Inadimplenti non est adimplendum (art. 60 VCLT)
A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating or suspending the treaty, art. 60 (1). A material breach is, as follows from
art. 60(3)(a)(b):
a. a repudiation of the treaty not sanctioned by the present Convention;
b. the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
In the Gabĉikovo-Nagymaros case, the Court has to decide on whether Hungary's invocation of material breach by Czechoslovakia is justified:
It is up to the Court to decide, whether there has been a material breach, rather than just a grave breach:
The Court is of the view that it is only a material breach of the treaty itself, by a State party to the treaty, which entitles the other party to rely on it as a ground for terminating the treaty. The violation of other treaty rules of general international law may justify the taking of certain [counter]measures by the injured State, but it does not constitute a ground for termination under the law of treaties (para 106);
Hungary, by its own conduct, had prejudiced its right to terminate the Treaty; this would still have been the case even if Czechoslovakia, by the time of the purported termination, had violated a provision essential to the accomplishment of the object and purpose of the Treaty (para 110).
The material breach must have taken place in order to justly invoke such breach:
Hungary's main argument for invoking a material breach of the Treaty was the construction and putting into operation of Variant C [by Czechoslovakia]. As the Court has found, Czechoslovakia violated the Treaty only when it diverted the waters [...]. Czechoslovakia did not act unlawfully in constructing the works that would lead to the putting into operation of Variant C.
In the Court's view, the notification of termination by Hungary was premature. No breach of the Treaty had yet taken place and Hungary was, therefore, not entitled to invoke such breach as a ground for termination (para 108).
Czechoslovakia has breached its treaty obligations, but only when putting Variant C into operation (para 78 and 82). The preparations on the territory of Czechoslovakia had not yet led to a material breach, therefore, Hungary's invocation of a material breach by Czech. was premature. Thus, the Court rejects the invocation of material breach/ inadimplenti by Hungary.
2.2 Supervening impossibility of performance (art. 61 VCLT) (force majeure/ Act of God)
As described by Article 61 VCLT, a party may invoke the impossibility of performance as a ground for termination of a treaty, if the impossibility results from the permanent disappearance or destruction of an object, indispensable for the execution of the treaty. A temporary impossibility is not sufficient for termination of the treaty. If the impossibility of performance results from that party's own breach, the ground of supervening impossibility may not be invoked (art. 61 (2) VCLT). Judging the G-N case, this means that Hungary was not entitled to invoke Article 61 para 1 VCLT, for the impossibility of performance stems from Hungary's own "omission" (para 102-103). In other words, this ground implies a mere "Act of God".
2.3. Rebus sic stantibus: fundamental change of circumstances (art. 62 VCLT)
A fundamental change of circumstances with regard to those existing at the time of the conclusion of the treaty, which was completely unforeseen by the parties, may not be invoked, para 1, unless:
a. the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty;
b. the effect of the change is radically to transform the extent of obligations still to be performed.
You'll have noticed the essential grounds for invoking a fundamental change of circumstances: the circumstances have to be fundamentally different, compared to the original circumstances at the time of the conclusion, and the change itself has to be completely unforeseen by either of the parties. Minor changes that do not relate to the consent to be bound or to the obligations to be performed, cannot justify the invocation of a fundamental change. A de facto material breach may be invoked.
In G-N, the Court recalls the Fisheries Jurisdiction case on Article 62 of the VCLT. As Hungary argued, the events which would have constituted a fundamental change, were specified as profound changes of a political nature, the Project's diminishing economic viability, the progress of environmental knowledge and new norms of environmental law.
In the Court's view, the prevalent political conditions were thus not so closely linked to the object and purpose of the Treaty, that they constituted an essential basis for the consent of parties and, in changing, radically altered the extent of obligations still to be performed. The profitablity of the Project was not bound to such an extent that the obligations of the parties would have radically transformed as a result. The development of environmental knowlegde and law cannot be said to have been completely unforeseen. The changed circumstances advanced by Hungary are not of such a nature, that their effect would radically transform the extent of the obligations to accompish Project G-N. Article 62 of the VCLT is a clear indication that the plea can only apply in exceptional cases (para 104).
3. State of necessity (art. 33 (now: 25) of the Draft Articles on State Responsibility)
Not under the scope of the VCLT, but under the scope of the International Responsibility of States, the Court will consider the question of whether there was a state of necessity which would have permitted Hungary to suspend and abandon works that it was commited to perform in accordance with the Treaty.
A state of necessity may be invoked if:
a. the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril;
b. the act did not seriously impair an essential interest of the State towards which the obligation existed.
In the G-N case, the Court considers, first of all, that the state of necessity is a ground, recognized by customary internationa law for precluding the wrongfulness of an act not in conformity with an international obligation. Such ground can only be accepted on an exceptional basis. The state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied. The State concerned is not the sole judge of whether those conditions have been met (para 51-52).
The Commission indicated that one should not, in [..] context, reduce an "essential interest" to a matter only of the "existence" of the State and that the whole case has to be judged in the light of the particular case (para 53) (i.o. words: the existence has to be objective) .
However serious the uncertainties might have been, they could not, alone, establish the objective existence of a "peril" in the sense of a component element of a state of necessity. The mere apprehension of a possible peril could not suffice. The extremely grave and imminent peril must have been a threat to the interest at the actual time (para 54).
Considering the situation at Nagymaros (Hungary), the Court notes that the dangers were mostly of a long-term nature and, above all, that they remained uncertain. The peril invoked by Hungary had already materialized to a large extent for a number of years, so that it could not, in 1989, represent a peril arising entirely out of the G-N Project. Even if the construction of the G-N Project would have created serious risks, Hungary had means available to it, other than suspension and abandonment of the works, of responding to that situation (para 55).
However grave it might have been, it would accordingly have been difficult to see the alleged peril as sufficiently certain and therefore "imminent" in 1989 . Hungary should have resorted to other means in order to respond to the dangers that it apprehended. In particular, within the framework of the original Project, Hungary seemed to be in position to control (para 56).
At the time of concluding the Treaty, Hungary was presumably aware of the situation as then known, when it assumed its original obligations. The Court cannot fail to note the positions taken by Hungary after the entry into force of the 1977 Treaty. Hungary asked that the works should go forward more slowly, then asked for the works to be speeded up, only to suspend and abandon them three months later.
The conclusion is that Hungary would not have been permitted to rely upon the state of necessity in order to justify its failure to comply with its treaty obligations, as it had helped, by act or omission, to bring it about (para 57).
Before I am going to discuss the infamous Gabčíkovo-Nagymaros (pronunciation: Gab-chi-co-vah/ Nagee-marosh) case, I will first make a disctinction between formal and substantive grounds for termination or suspension of a treaty.
1.1. Formal grounds for termination or suspension of a treaty
The formal grounds for termination of treaties is provided by articles 54 to 59 VCLT. These include termination in conformity with the provisions of the treaty and termination by consent of all the parties after consultation (art. 54) and termination or suspension of the operation of the treaty implied by conclusion of a later treaty (art. 59).
1.2. Material grounds for termination
Articles 60 to 62 VCLT provide the substantive or material grounds for termination or suspension of a treaty. The ICJ affirms that the rules laid down by the Vienna Convention on the Law of Treaties concerning termination of a treaty relationship on account of breach, may in many respects be considered as a codification of existing customary law on the subject (see the Namibia Advisory Opinion of 1971, p. 47).
Note that articles 60-62 VCLT provide three options to justify unilateral termination of a treaty:
1. inadimplenti non est adimplendum;
2. force majeure;
3. rebus sic stantibus;
The first one being the actual "material breach" by the other contracting party.
2. Material grounds for termination or suspension of a treaty and Gabčíkovo-Nagymaros Does Hungary's termination of the 1977 Treaty between Hungary and Czechoslovakia, meet the requirements under Article 60 to 62 VCLT? This is the main question in the G-N case, for Hungary invokes no less than five grounds in an attempt to justify its unilateral termination of the Treaty.
These grounds are, in no particular order: a state of necessity, material breach of the treaty by Czechoslovakia, impossibility of performance of the treaty, a fundamental change of circumstances and the development of new norms of international environmental law. Before I am going to discuss the state of necessity, I will highlight the three material grounds that are covered by art. 60-62 VCLT.
2.1. Inadimplenti non est adimplendum (art. 60 VCLT)
A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating or suspending the treaty, art. 60 (1). A material breach is, as follows from
art. 60(3)(a)(b):
a. a repudiation of the treaty not sanctioned by the present Convention;
b. the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
In the Gabĉikovo-Nagymaros case, the Court has to decide on whether Hungary's invocation of material breach by Czechoslovakia is justified:
It is up to the Court to decide, whether there has been a material breach, rather than just a grave breach:
The Court is of the view that it is only a material breach of the treaty itself, by a State party to the treaty, which entitles the other party to rely on it as a ground for terminating the treaty. The violation of other treaty rules of general international law may justify the taking of certain [counter]measures by the injured State, but it does not constitute a ground for termination under the law of treaties (para 106);
Hungary, by its own conduct, had prejudiced its right to terminate the Treaty; this would still have been the case even if Czechoslovakia, by the time of the purported termination, had violated a provision essential to the accomplishment of the object and purpose of the Treaty (para 110).
The material breach must have taken place in order to justly invoke such breach:
Hungary's main argument for invoking a material breach of the Treaty was the construction and putting into operation of Variant C [by Czechoslovakia]. As the Court has found, Czechoslovakia violated the Treaty only when it diverted the waters [...]. Czechoslovakia did not act unlawfully in constructing the works that would lead to the putting into operation of Variant C.
In the Court's view, the notification of termination by Hungary was premature. No breach of the Treaty had yet taken place and Hungary was, therefore, not entitled to invoke such breach as a ground for termination (para 108).
Czechoslovakia has breached its treaty obligations, but only when putting Variant C into operation (para 78 and 82). The preparations on the territory of Czechoslovakia had not yet led to a material breach, therefore, Hungary's invocation of a material breach by Czech. was premature. Thus, the Court rejects the invocation of material breach/ inadimplenti by Hungary.
2.2 Supervening impossibility of performance (art. 61 VCLT) (force majeure/ Act of God)
As described by Article 61 VCLT, a party may invoke the impossibility of performance as a ground for termination of a treaty, if the impossibility results from the permanent disappearance or destruction of an object, indispensable for the execution of the treaty. A temporary impossibility is not sufficient for termination of the treaty. If the impossibility of performance results from that party's own breach, the ground of supervening impossibility may not be invoked (art. 61 (2) VCLT). Judging the G-N case, this means that Hungary was not entitled to invoke Article 61 para 1 VCLT, for the impossibility of performance stems from Hungary's own "omission" (para 102-103). In other words, this ground implies a mere "Act of God".
2.3. Rebus sic stantibus: fundamental change of circumstances (art. 62 VCLT)
A fundamental change of circumstances with regard to those existing at the time of the conclusion of the treaty, which was completely unforeseen by the parties, may not be invoked, para 1, unless:
a. the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty;
b. the effect of the change is radically to transform the extent of obligations still to be performed.
You'll have noticed the essential grounds for invoking a fundamental change of circumstances: the circumstances have to be fundamentally different, compared to the original circumstances at the time of the conclusion, and the change itself has to be completely unforeseen by either of the parties. Minor changes that do not relate to the consent to be bound or to the obligations to be performed, cannot justify the invocation of a fundamental change. A de facto material breach may be invoked.
In G-N, the Court recalls the Fisheries Jurisdiction case on Article 62 of the VCLT. As Hungary argued, the events which would have constituted a fundamental change, were specified as profound changes of a political nature, the Project's diminishing economic viability, the progress of environmental knowledge and new norms of environmental law.
In the Court's view, the prevalent political conditions were thus not so closely linked to the object and purpose of the Treaty, that they constituted an essential basis for the consent of parties and, in changing, radically altered the extent of obligations still to be performed. The profitablity of the Project was not bound to such an extent that the obligations of the parties would have radically transformed as a result. The development of environmental knowlegde and law cannot be said to have been completely unforeseen. The changed circumstances advanced by Hungary are not of such a nature, that their effect would radically transform the extent of the obligations to accompish Project G-N. Article 62 of the VCLT is a clear indication that the plea can only apply in exceptional cases (para 104).
3. State of necessity (art. 33 (now: 25) of the Draft Articles on State Responsibility)
Not under the scope of the VCLT, but under the scope of the International Responsibility of States, the Court will consider the question of whether there was a state of necessity which would have permitted Hungary to suspend and abandon works that it was commited to perform in accordance with the Treaty.
A state of necessity may be invoked if:
a. the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril;
b. the act did not seriously impair an essential interest of the State towards which the obligation existed.
In the G-N case, the Court considers, first of all, that the state of necessity is a ground, recognized by customary internationa law for precluding the wrongfulness of an act not in conformity with an international obligation. Such ground can only be accepted on an exceptional basis. The state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied. The State concerned is not the sole judge of whether those conditions have been met (para 51-52).
The Commission indicated that one should not, in [..] context, reduce an "essential interest" to a matter only of the "existence" of the State and that the whole case has to be judged in the light of the particular case (para 53) (i.o. words: the existence has to be objective) .
However serious the uncertainties might have been, they could not, alone, establish the objective existence of a "peril" in the sense of a component element of a state of necessity. The mere apprehension of a possible peril could not suffice. The extremely grave and imminent peril must have been a threat to the interest at the actual time (para 54).
Considering the situation at Nagymaros (Hungary), the Court notes that the dangers were mostly of a long-term nature and, above all, that they remained uncertain. The peril invoked by Hungary had already materialized to a large extent for a number of years, so that it could not, in 1989, represent a peril arising entirely out of the G-N Project. Even if the construction of the G-N Project would have created serious risks, Hungary had means available to it, other than suspension and abandonment of the works, of responding to that situation (para 55).
However grave it might have been, it would accordingly have been difficult to see the alleged peril as sufficiently certain and therefore "imminent" in 1989 . Hungary should have resorted to other means in order to respond to the dangers that it apprehended. In particular, within the framework of the original Project, Hungary seemed to be in position to control (para 56).
At the time of concluding the Treaty, Hungary was presumably aware of the situation as then known, when it assumed its original obligations. The Court cannot fail to note the positions taken by Hungary after the entry into force of the 1977 Treaty. Hungary asked that the works should go forward more slowly, then asked for the works to be speeded up, only to suspend and abandon them three months later.
The conclusion is that Hungary would not have been permitted to rely upon the state of necessity in order to justify its failure to comply with its treaty obligations, as it had helped, by act or omission, to bring it about (para 57).
Reservations to treaties: Advisory Opinion on the Genocide Convention
3. The Advisory Opinion of 28 May 1951 on the Genocide Convention
Let's take a closer look at the Advisory Opinion of 28 May 1951, on Reservations to the Convention on the prevention and punishment of the crime of genocide. The concerned actors are States to a multilateral treaty. The Court of Justice gives the impression that a multilateral treaty can be divided into multiple bilateral treaties, as it is up to States to decide whether they wish to enforce the treaty between certain other States.
The General Assembly raises the following questions:
I. Can the reserving State be regarded as being a party to the Convention, while still maintaining its reservation if the reservation is objected by one or more parties to the Convention, but not by others?
II. If the answer to question I is the affirmative, what is the effect of the reservation as between the reserving State and:
a. the parties which object to the reservations?
b. those which accept it?
III. What would be the legal effects as regards the answer to question I if an objection to a reservation is made:
a. by a signatory which has not yet ratified?
b. by a State entitled to sign or accede but which has not yet done so?
3.1. Answers
On Question I:
A State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention, but not by others, can be regarded as being a party to the Convention, if the reservation is compatible with the object and purpose of the Convention; otherwise, that State cannot be regarded as being a party to the Convention.
On Question II:
a. If a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is not a party to the Convention;
b. If, on the other hand, a party accepts the reservation as being compatible with the object and purpose of the Convention, it can in fact consider that the reserving State is a party to the Convention.
On Question III:
a. An objection to a reservation made by a signatory State which has not yet ratified the Convention can have the legal effect indicated in the reply to Question I, only upon ratification. Until that moment, it merely serves as a notice to the other State of the eventual attitude of the signatory State;
b. An objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so, is without legal effect.
3.2. Conclusion
The Advisory Opinion seems somewhat dissatisfying. It is pretty much up to contracting States whether a reservation is deemed tolerable or not, regarding the object and purpose of the Convention- given that certain reservations are not excluded in the Convention itself. However, take a closer look at the Advisory Opinion and you will find the raison d'être of the convention, extensively described at page 22 to 25.
As page 24 reads:
" The object and purpose of the Genocide Convention imply that it was the intention of the General Assembly and of States which adopted it, that as many States as possible should participate. The complete exclusion from the Convention of one or more States would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis".
4. Is a reservation to article IX of the Genocide Convention compatible with its object and purpose?
4.1. Armed Activities on the Territory of the DR of the Congo, Judgment, Jurisdiction of the Court and Admissibility of the Application, 3 February 2006
Abstract. The Republic of Rwanda requests the Court to declare that (1): the Court lacks jurisdiction over the claims brought against the Republic of Rwanda by the DR of the Congo. The Court is required to address only the questions of whether it is competent to hear the dispute [...] (para 13, 14). I am going to highlight the considerations of the utmost importance (regarding a reservation to art. IX of the Genocide Convention, sidelining the jurisdiction of the Court).
4.1.1. DR of the Congo vs. Rwanda: arguments on the jurisdiction of the Court
In the DRC's view, the finding of an "absence of a manifest lack of jurisdiction" could be interpreted as an acknowledgement by the Court that is has jurisdiction (para 23).
Rwanda argued in its Memorial that the jurisdiction of the Court under the Genocide Convention was excluded by its reservation to the entirity of Article IX (para 29).
4.1.2. The Court's considerations
The Court will begin by reaffirming that "the principles underlying the Genocide Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation" and that a consequence of that conception is "the universal character both of the condemnation of genocide and of the co-operation required in order to liberate mankind from such an odious scourge". Thus, the Convention enshrines rights and obligations "erga omnes". The mere fact that rights and obligations erga omnes may be at issue in a dispute, would not give the Court jurisdiction to entertain that dispute. The fact that a dispute relates to compliance with a norm of ius cogens character (peremptory norms of general international law) cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court's Statute, that jurisdiction is always based on the consent of the parties (para 64).
The Court notes that is has already found that reservations are not prohibited under the Genocide Convention [refers to the 1951 Advisory Opinion on Reservations]. This legal situation is not affected by the fact that the Statute of the International Criminal Court, in its Article 120, does not permit reservations to that Statute, including provisions relating to the jurisdiction of the International Criminal Court on the crime of genocide. Thus, in the view of the Court, a reservation under the Genocide Convention would be permissible to the extent that such reservation is not incompatible with the object and purpose of the Convention (para 66).
Rwanda's reservation to Article IX of the Genocide Convention bears on the jurisdiction of the Court, and does not affect substantive obligations relating to acts of genocide themselves under that Convention. The reservation of Rwanda in question, meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfilment of the Convention, is not to be regarded as being incompatible with the object and purpose of the Convention (para 67).
As a matter to the law of treaties, when Rwanda acceded to the Genocide Convention and made the reservation in question, the DRC made no objection to it (para 68).
The Court concludes that, having regard to Rwanda's reservations to Article IX of the Genocide Convention, this Article cannot constitute the basis for the jurisdiction of the Court in the present case (para 70).
4.2. Joint Separate Opinion on "Armed Activities on the Territory of Congo"
The judges voted in favour of paragraph 128 of the Judgment on Congo vs. Rwanda. However, their joint separate opinion stresses that some issues do require further consideration.
With regards to paragraph 67 and 72, the judges consider that "..much will depend upon the particular convention concerned and the particular reservation. In some treaties, not all reservations to specific substantive clauses will necessarily be contrary to the object and purpose of the treaty. Some such reservations to particular substantive clauses may be of this character (ICCPR is mentioned). Conversely, a reservation to a specific "procedural" provision in a certain convention, could be contrary to the treaty's object and purpose. For example, the treaty bodies set up under certain United Nations conventions may well be central to the whole efficacy of those instruments ("at the heart of the convenant system")" (para 21).
It is, thus, not self-evident that a reservation to Article IX could not be regarded as incompatible with the object and purpose of the Convention (para 29).
Let's take a closer look at the Advisory Opinion of 28 May 1951, on Reservations to the Convention on the prevention and punishment of the crime of genocide. The concerned actors are States to a multilateral treaty. The Court of Justice gives the impression that a multilateral treaty can be divided into multiple bilateral treaties, as it is up to States to decide whether they wish to enforce the treaty between certain other States.
The General Assembly raises the following questions:
I. Can the reserving State be regarded as being a party to the Convention, while still maintaining its reservation if the reservation is objected by one or more parties to the Convention, but not by others?
II. If the answer to question I is the affirmative, what is the effect of the reservation as between the reserving State and:
a. the parties which object to the reservations?
b. those which accept it?
III. What would be the legal effects as regards the answer to question I if an objection to a reservation is made:
a. by a signatory which has not yet ratified?
b. by a State entitled to sign or accede but which has not yet done so?
3.1. Answers
On Question I:
A State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention, but not by others, can be regarded as being a party to the Convention, if the reservation is compatible with the object and purpose of the Convention; otherwise, that State cannot be regarded as being a party to the Convention.
On Question II:
a. If a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is not a party to the Convention;
b. If, on the other hand, a party accepts the reservation as being compatible with the object and purpose of the Convention, it can in fact consider that the reserving State is a party to the Convention.
On Question III:
a. An objection to a reservation made by a signatory State which has not yet ratified the Convention can have the legal effect indicated in the reply to Question I, only upon ratification. Until that moment, it merely serves as a notice to the other State of the eventual attitude of the signatory State;
b. An objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so, is without legal effect.
3.2. Conclusion
The Advisory Opinion seems somewhat dissatisfying. It is pretty much up to contracting States whether a reservation is deemed tolerable or not, regarding the object and purpose of the Convention- given that certain reservations are not excluded in the Convention itself. However, take a closer look at the Advisory Opinion and you will find the raison d'être of the convention, extensively described at page 22 to 25.
As page 24 reads:
" The object and purpose of the Genocide Convention imply that it was the intention of the General Assembly and of States which adopted it, that as many States as possible should participate. The complete exclusion from the Convention of one or more States would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis".
4. Is a reservation to article IX of the Genocide Convention compatible with its object and purpose?
4.1. Armed Activities on the Territory of the DR of the Congo, Judgment, Jurisdiction of the Court and Admissibility of the Application, 3 February 2006
Abstract. The Republic of Rwanda requests the Court to declare that (1): the Court lacks jurisdiction over the claims brought against the Republic of Rwanda by the DR of the Congo. The Court is required to address only the questions of whether it is competent to hear the dispute [...] (para 13, 14). I am going to highlight the considerations of the utmost importance (regarding a reservation to art. IX of the Genocide Convention, sidelining the jurisdiction of the Court).
4.1.1. DR of the Congo vs. Rwanda: arguments on the jurisdiction of the Court
In the DRC's view, the finding of an "absence of a manifest lack of jurisdiction" could be interpreted as an acknowledgement by the Court that is has jurisdiction (para 23).
Rwanda argued in its Memorial that the jurisdiction of the Court under the Genocide Convention was excluded by its reservation to the entirity of Article IX (para 29).
4.1.2. The Court's considerations
The Court will begin by reaffirming that "the principles underlying the Genocide Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation" and that a consequence of that conception is "the universal character both of the condemnation of genocide and of the co-operation required in order to liberate mankind from such an odious scourge". Thus, the Convention enshrines rights and obligations "erga omnes". The mere fact that rights and obligations erga omnes may be at issue in a dispute, would not give the Court jurisdiction to entertain that dispute. The fact that a dispute relates to compliance with a norm of ius cogens character (peremptory norms of general international law) cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court's Statute, that jurisdiction is always based on the consent of the parties (para 64).
The Court notes that is has already found that reservations are not prohibited under the Genocide Convention [refers to the 1951 Advisory Opinion on Reservations]. This legal situation is not affected by the fact that the Statute of the International Criminal Court, in its Article 120, does not permit reservations to that Statute, including provisions relating to the jurisdiction of the International Criminal Court on the crime of genocide. Thus, in the view of the Court, a reservation under the Genocide Convention would be permissible to the extent that such reservation is not incompatible with the object and purpose of the Convention (para 66).
Rwanda's reservation to Article IX of the Genocide Convention bears on the jurisdiction of the Court, and does not affect substantive obligations relating to acts of genocide themselves under that Convention. The reservation of Rwanda in question, meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfilment of the Convention, is not to be regarded as being incompatible with the object and purpose of the Convention (para 67).
As a matter to the law of treaties, when Rwanda acceded to the Genocide Convention and made the reservation in question, the DRC made no objection to it (para 68).
The Court concludes that, having regard to Rwanda's reservations to Article IX of the Genocide Convention, this Article cannot constitute the basis for the jurisdiction of the Court in the present case (para 70).
4.2. Joint Separate Opinion on "Armed Activities on the Territory of Congo"
The judges voted in favour of paragraph 128 of the Judgment on Congo vs. Rwanda. However, their joint separate opinion stresses that some issues do require further consideration.
With regards to paragraph 67 and 72, the judges consider that "..much will depend upon the particular convention concerned and the particular reservation. In some treaties, not all reservations to specific substantive clauses will necessarily be contrary to the object and purpose of the treaty. Some such reservations to particular substantive clauses may be of this character (ICCPR is mentioned). Conversely, a reservation to a specific "procedural" provision in a certain convention, could be contrary to the treaty's object and purpose. For example, the treaty bodies set up under certain United Nations conventions may well be central to the whole efficacy of those instruments ("at the heart of the convenant system")" (para 21).
It is, thus, not self-evident that a reservation to Article IX could not be regarded as incompatible with the object and purpose of the Convention (para 29).
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