Fichl 15 Web

State Sovereignty and
International Criminal Law

Morten Bergsmo and LING Yan (editors)
State Sovereignty
and International Criminal Law
2012
Torkel Opsahl Academic EPublisher
Beijing
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ISBN 978-82-93081-35-7
Dedicated to the memory of Professor LI Haopei
and his service to international law
PUBLICATION SERIES PREFACE
The Torkel Opsahl Academic EPublisher is pleased to release State Sov-
ereignty and International Criminal Law in its Publication Series. The
book deals with a topic which champions of the international criminal jus-
tice movement should strive to appreciate also from the perspective of
States that have reservations about the extensive reach of contemporary
war crimes justice. The chapters were originally prepared in the context of
the FICHL LI Haopei Lecture Series. The anthology is published in sepa-
rate Chinese and English versions. R. Frazier Lowell, NIE Jingjing,
SONG Tianying and XUE Ru have assisted with translations.
FAN Yuwen has provided invaluable and noble assistance with the
Chinese version. We also thank Dr. YI Ping, ZHANG Xin and ZHANG
Yueyao for their assistance.
Morten Bergsmo
Editor-in-Chief
Kiki A. Japutra
Executive Editor
i
FOREWORD BY CHRISTIAN TOMUSCHAT
This anthology is important for several reasons. First, it brings together a
diversity of quality contributions on difficult current topics such as the
reach of universal criminal jurisdiction for serious international crimes,
immunity of State officials in respect of such crimes, and the conse-
quences of the criminalisation of aggression in the context of the Rome
Statute of the International Criminal Court. These are three clusters of
controversy subject to intense discussions in international courts, between
governments, and among academics. The present book contributes to
those discussions.
Secondly, the theme of the anthology is State Sovereignty and In-
ternational Criminal Law. This formulation speaks less to those who are
already persuaded of the value of international criminal justice, than to
those States and actors who have reservations about how fast and far it
has developed. By engaging the laden concept of ‘state sovereignty’, the
book reaches out to everyone interested in international criminal law, in-
viting an inclusive and responsible dialogue on the need to balance the
development of international criminal law with legitimate state interests.
The editors suggest that time has come to “consolidate the significant
gains in the development of international criminal law since 1993” rather
“than further development at the risk of over-extension”. Coming from
two Chinese and European professors in international criminal law – both
of whom have been involved in the field since 1993 – this suggestion calls
for further reflection. Indeed, the time has come to take stock and re-
assess what has been achieved twenty years after the establishment of the
International Criminal Tribunal for the former Yugoslavia and ten years
after the coming into force of the Rome Statute of the International
Criminal Court. The widespread feeling of satisfaction with the institu-
tionalisation of international criminal justice should not blind our eyes for
the necessity of carefully pondering the strengths and the shortcomings of
this new wing of the constitution of the international community.
The chapters of this book were all prepared in the context of the LI
Haopei Lecture Series of the Forum for International Criminal and Hu-
manitarian Law. This Series seeks to foster dialogue among international
lawyers in China, Europe and elsewhere. The quality and topicality of this
iii
anthology suggests that the Series is succeeding. Its great merit is to pro-
vide Chinese scholars with a voice that will be heard everywhere in the
legal world. Unfortunately, for many decades, China was de facto ex-
cluded from debates about topics of paramount importance for humankind
although, as the largest nation on the globe, its views and arguments are
indispensable when universal standards of conduct are being elaborated. It
may be hoped that contacts as those established by the Forum within the
framework of its Lecture Series will continue and expand their reach, fa-
cilitating dialogue and co-operation between international lawyers in
China and Europe as well as more widely.
Christian Tomuschat
Emeritus Professor, Humboldt University
Former Member, International Law Commission
iv
TABLE OF CONTENTS
Publication Series Preface ........................................................................ i
Foreword by Christian Tomuschat ......................................................... iii
1. On State Sovereignty and Individual Criminal Responsibility

for Core International Crimes in International Law ......................... 1
By Morten Bergsmo and LING Yan
2. The Life and Contributions of Professor LI Haopei....................... 13

By WANG Houli
3. Brief Analysis of a Few Controversial Issues

in Contemporary International Criminal Law ................................ 21
By ZHOU Lulu
3.1. The Crime of Aggression......................................................... 22
3.1.1. The Definition of Crimes of Aggression................... 25
3.1.2. Precondition for the Court to Exercise
Jurisdiction over Crimes of Aggression .................... 29
3.2. Universal Jurisdiction .............................................................. 35
3.2.1. Background of the Question...................................... 35
3.2.2. Review and Analysis................................................. 38
3.2.2.1. What About Using the ‘Principle
of Sovereignty’ as the Theoretical
Basis of Universal Jurisdiction?................ 40
3.2.2.2. What About Taking the ‘Principle
of Obligation Erga Omnes’
(the Common Interest of Humanity)
as the Theoretical Basis of Universal
Jurisdiction? .............................................. 42
3.2.2.3. What About the Theory of Combating
Criminal Activity and Ensuring
that Crimes Never Go Unpunished
v
Being the Theoretical Basis
of Universal Jurisdiction? ......................... 43
3.2.3. Case Analysis ............................................................ 45
3.3. Criminal Immunity of State Officials Abroad.......................... 46
3.3.1. The Institution of Immunity in International
Law............................................................................ 46
3.3.2. Analysis ..................................................................... 49
3.3.2.1. Regarding Criminal Immunity
Enjoyed by State Officials
in Other Countries ..................................... 49
3.3.2.2. The Criminal Immunity of State
Officials before International
Criminal Tribunals .................................... 51
4. Has Non-Immunity for Heads of State Become a Rule

of Customary International Law?................................................... 55
By LIU Daqun
4.1. Challenge to the Rule of Heads of State Immunity.................. 56
4.2. Immunity before National Courts ............................................ 60
4.3. Immunity of the Head of State before International
Courts and Tribunals................................................................ 63
4.4. The Difference between the International
ad hoc Tribunals and the ICC .................................................. 68
4.5. Security Council Referrals ....................................................... 70
4.6. Conclusion ............................................................................... 73
5. Immunity for State Officials from Foreign Jurisdiction

for International Crimes ................................................................. 75
By JIA Bingbing
5.1. Introduction.............................................................................. 75
5.2. Criminal versus Civil Jurisdiction............................................ 78
5.3. Universal Jurisdiction .............................................................. 79
5.4. Immunity for State Officials .................................................... 82
5.5. Immunity versus Treaty Crimes............................................... 86
5.6. Immunity versus Violations of Jus Cogens ............................. 88
5.7. International Jurisdiction.......................................................... 92
5.8. Conclusions: A Hierarchy of Rules?........................................ 93
vi
6. International Criminal Court: A Judicial Guarantee
for International Peace and Security?............................................. 97
By GUO Yang
6.1. Introduction.............................................................................. 97
6.2. Definition of the Crime of Aggression .................................... 99
6.2.1. Act of Aggression ................................................... 101
6.2.2. Crime of Aggression ............................................... 107
6.2.2.1. A Leadership Crime................................ 108
6.2.2.2. Actus Reus and Mens Rea
of the Crime ............................................ 110
6.2.2.3. The Threshold Clause ............................. 112
6.2.3. Understandings Regarding the Crime
of Aggression: Is Humanitarian Intervention
Excluded?................................................................ 114
6.3. Conditions for the Court’s Jurisdiction over the Crime
of Aggression......................................................................... 116
6.3.1. Introduction ............................................................. 116
6.3.2. Analysis................................................................... 119
6.4. Conclusion ............................................................................. 125
7. Universal Jurisdiction for Core International Crimes .................. 129

By Erkki Kourula
7.1. Introduction............................................................................ 129
7.2. The Idea of Universal Jurisdiction......................................... 130
7.3. Challenges in the Exercise of Universal Jurisdiction
in Relation to Core International Crimes ............................... 131
8. The Connotation of Universal Jurisdiction

and its Application in the Criminal Law of China ....................... 149
By MA Chengyuan
8.1. Introduction............................................................................ 149
8.2. Universal Jurisdiction Based on Customary
International Law................................................................... 155
8.2.1. Definition ................................................................ 155
8.2.2. Characteristics ......................................................... 157
8.2.2.1. The Subject of this Jurisdiction
is Every State .......................................... 157
vii
8.2.2.2.This Jurisdiction Applies to Crimes
in Customary International Law.............. 159
8.2.2.3. This Jurisdiction Applies to Crimes
Committed by Foreigners Abroad
not Against this State or its Citizens ....... 161
8.2.2.4. This Jurisdiction can be Exercised
in absentia ............................................... 162
8.2.2.5. Statutory Limitations
are not Applicable when Exercising
this Jurisdiction ....................................... 163
8.2.2.6. International Crimes
can be Prosecuted Retroactively
when Applying this Jurisdiction.............. 164
8.3. Universal Jurisdiction Based on International Treaty ............ 165
8.3.1. Definition ................................................................ 165
8.3.2.1. The Subject of this Jurisdiction
is the States Parties of a Treaty ............... 166
8.3.2.2. The Manifestation of this Jurisdiction
is the Clause or Principle
of Aut Dedere Aut Judicare..................... 168
8.3.2.3. This Jurisdiction Applies
to the Crimes Defined
in International Treaties .......................... 171
8.3.2.4. This Jurisdiction cannot be Exercised
in absentia ............................................... 172
8.3.2.5. This Jurisdiction cannot be Exercised
Retroactively ........................................... 173
8.4. Universal Jurisdiction Based on Domestic Law .................... 174
8.4.1. Definition ................................................................ 174
8.4.2.1. The Object of this Jurisdiction
is the Foreign Suspect Found
in the State............................................... 177
8.4.2.2. This Jurisdiction Requires Inability
to Extradite.............................................. 178
8.4.2.3. This Jurisdiction Applies to All
Crimes Able to be Extradited.................. 178
8.4.2.4. This Jurisdiction has to Conform
to the Principle of Double
Criminality .............................................. 179
viii
8.5. Application of Universal Jurisdiction
in the Criminal Law of China ................................................ 180
8.5.1. Universal Jurisdiction in the Criminal Law
of China................................................................... 180
8.5.2. Problems in Application of Universal
Jurisdiction in China ............................................... 182
8.5.2.1. Universal Jurisdiction Based
on Customary International
Law is Not Incorporated
in the Criminal Law of China ................. 183
8.5.2.2. China Violates its International
Obligation by Not Transforming
Crimes in International Treaties
into its Criminal Law .............................. 183
8.5.3.3. Universal Jurisdiction Prescribed
in Article 9 Conflicts
with the Principle of Legality
in Article 3 .............................................. 185
8.5.3.4. Prosecution of International Crime
with Other Classification
in the Criminal Law Violates
the Principle of Prohibition
of Analogy .............................................. 186
8.6. Conclusion ............................................................................. 187
9. Universal Jurisdiction Before the United Nations

General Assembly: Seeking Common Understanding
under International Law ............................................................... 191
By ZHU Lijiang
9.1. Introduction............................................................................ 191
9.2. The Way to New York........................................................... 192
9.3. Procedural Progress in New York.......................................... 200
9.4. Common Understanding in the UNGA.................................. 204
9.4.1. Opinio Juris............................................................. 206
9.4.1.1. Definition of Universal Jurisdiction........ 207
9.4.1.2. Rationale of Universal Jurisdiction......... 210
9.4.1.3. Crimes Subject to Universal
Jurisdiction.............................................. 212
9.4.1.4. Preconditions to the Exercise
of Universal Jurisdiction. ........................ 216
ix
9.4.1.5.
Establishment of an International
Regulatory Body ..................................... 219
9.4.2. State Practice ........................................................... 220
9.5. Concluding Remarks.............................................................. 221
10. The International Criminal Court and Immunities

under International Law for States Not Party
to the Court’s Statute.................................................................... 223
By Claus Kreß
10.1. Introduction............................................................................ 223
10.2. The Decisions of 4 March 2009 and 12 December 2011
in the Case Against Al Bashir and the Dissent
by the African Union Commission ........................................ 227
10.3. Legal Analysis........................................................................ 230
10.3.1. An Initial Critique of the Decision
of 4 March 2009 ...................................................... 231
10.3.2. Negotiating Article 98(1) of the ICC Statute .......... 231
10.3.3. The Purpose and the Operation of Article 98(1)
of the ICC Statute and a Further Critique
of the Decision of 4 March 2009............................. 233
10.3.4. The Immunities Covered by Article 98(1)
of the Statute............................................................ 236
10.3.5. A Short Digression: Article 98(1)
and the Immunity Rights of States Parties .............. 238
10.3.6. Article 98(1) of the Statute and International
Law Immunities of Persons of States Not
Party to the Statute .................................................. 239
10.3.6.1. The ‘Security Council Avenue’
for Arriving at an Exception
to the International Law Immunity
Ratione Personae .................................... 240
10.3.6.2. The ‘Customary Law Avenue’
for Arriving at an Exception
to the International Law Immunity
Ratione Personae .................................... 243
10.4. Concluding Remarks.............................................................. 262
x
Index..................................................................................................... 267
Torkel Opsahl Academic EPublisher ................................................... 277
Other Volumes in the FICHL Publication Series................................. 279
xi
1
______
On State Sovereignty and Individual Criminal
Responsibility for Core International Crimes
in International Law
Morten Bergsmo * and LING Yan **
In his 2011 study On China, Dr. Henry A. Kissinger describes how – in
the wake of the end of the Soviet Union – a “new political dispensation in
the West” emerged from 1990 onwards, whereby a “new concept insisted
that the world was entering a ‘post-sovereign’ era” 1, characterised, it was
thought at the time, by the rule of some aspects of international law over
traditional State sovereignty. He witnessed how a “mood of triumphal-
ism” began to descend on Washington in 1990–1991, 2 in response to the
political changes taking place in the former Soviet Union and Eastern
Europe. It was in that climate that civil society and other actors called for
the establishment of the International Criminal Tribunal for the former
*
Morten Bergsmo is Visiting Professor, Peking University Law School; Visiting Fel-
low, Stanford University; Researcher, University of Oslo; and ICC Consultant and
Co-ordinator of the ICC Legal Tools Project. He was formerly Visiting Professor,
Georgetown University Law Center (2010–2012); Fernand Braudel Senior Fellow,
European University Institute (2011 Spring); Visiting Scholar, U.C. Berkeley (2010
Spring); Senior Researcher, PRIO (2006–2009); Special Adviser to the Office of the
Director of Public Prosecution of Norway (2007–2008); Senior Legal Adviser and
Chief of the Legal Advisory Section, ICC Office of the Prosecutor (2002–2005); Co-
ordinator of the establishment of the ICC Office of the Prosecutor (2002–2003); Legal
Adviser, ICTY (1994–2002); and Legal Adviser, U.N. Commission of Experts for the
former Yugoslavia established pursuant to Security Council resolution 780 (1992)
(1993–1994). He represented the ICTY to the U.N. negotiation process to establish
the ICC (1996–2002).
**
LING Yan is Professor at the Faculty of International Law at China University of
Political Science and Law (2004–), Director of its Research Center for International
Criminal Law and Humanitarian Law (www.rcicl.org/english/index.asp), and Deputy
Director of its Institute of Air and Space Law. She has worked as a legal officer for
the ICTR (1998–2004). She is Co-Director of the FICHL LI Haopei Lecture Series.
1
Henry Kissinger, On China, Allen Lane, London, 2011, pp. 454–455.
2
Ibid., p. 436.
FICHL Publication Series No. 15 (2012) – page 1

State Sovereignty and International Criminal Law
Yugoslavia (‘ICTY’) to adjudicate serious violations of international hu-

manitarian law in the former Yugoslavia, the one European State where
political tension and violence descended into armed conflicts in the early
1990s. Enveloped in its prevailing rhetoric at the time, the establishment
of the Tribunal was agreed by consensus in the United Nations Security
Council in May 1993, with lukewarm support from some members of the
Council, including France and the United Kingdom, but to the general
acclaim of human rights civil society and international lawyers world-
wide.
The renaissance of contemporary international criminal justice can-
not be extricated from this historical context, partially characterised as it
was by “post-sovereign” rhetoric and aspiration. Although United Nations
Security Council Resolution 827 (1993) 3 establishing the ICTY was
adopted 15-0, a variety of interests must have motivated States when they
constructed the legal bases of the ICTY and, the following year, the
Rwanda Tribunal (‘ICTR’). For most European States, supporting the es-
tablishment of the Tribunals was almost a matter of equal treatment under
the Nuremberg legacy: Just as Germany after World War II had to live
with the International Military Tribunal at Nuremberg, so the republics of
the former Yugoslavia had to live with the ICTY. Others may have gone
along out of mere exasperation at the inefficiency of traditional means to
prevent and respond to atrocities: We might as well try an international
tribunal and see if it will work better than the measures of the past. Others
again accepted the establishment of the ICTY only when promised that
the work to set up a permanent international criminal court would be ac-
celerated, in part as a response to the argument of the late Slobodan
Miloševiü that the ICTY represented selective justice, targeted against the
Serbs. 4 Moreover, an analysis of the explanations of vote after Resolution
827 (1993) was adopted shows that several Security Council members
actually had significant reservations although they voted in favour, sug-
gesting that intense diplomacy had preceded the vote.
Regardless of the diversity of interests motivating capitals at the
time of the vote, this form of international judicial intervention by resort
3
For a persistent URL of the text, see http://www.legal-tools.org/doc/0bff83/.
4
Mr. Thorvald Stoltenberg (then Co-Chairman of the Steering Committee of the Inter-
national Conference for the former Yugoslavia and Special Representative of the U.N.
Secretary-General for the former Yugoslavia) has recounted to the author Morten
Bergsmo that this question was raised in capitals at the time.

On State Sovereignty and Individual Criminal Responsibility
for Core International Crimes in International Law
to Security Council action under Chapter VII of the United Nations Char-
ter would have been perceived differently in different States. In a trium-
phant Washington, many may have perceived the ICTY and ICTR as af-
firmations of “those principles which inevitably affect the way Americans
view and react to events in other countries”, reflecting a “simple faith in
the enduring value of those principles and their universal applicability”. 5
Conveniently, the party to the ex-Yugoslav conflicts suspected of having
committed most violations was an ally of Russia, the former and at that
time introverted enemy of the United States. It was meant to be a rela-
tively inexpensive ‘post-sovereign’ intervention, in a situation where the
Security Council and its permanent members could control both the over-
all scope and duration of the Tribunal’s work.
For many Europeans, on the other hand, the Security Council’s ju-
dicial intervention confirmed the binding nature of the Nuremberg Princi-
ples on which their post-World War II order had been constructed. It was
an affirmation that binding international law is indeed the basis of restora-
tion and maintenance of international peace and security. It was a wel-
come reiteration of the modern European article of faith that only by con-
straining the nation State through a thick web of international law can the
unprecedented evil generated by European States through two world wars
be prevented from recurring. The Tribunals – and later the International
Criminal Court (‘ICC’) – reflected the secular salvation that European
States embraced following the end of World War II, as a protection
against their inherent capacity for wrongdoing.
For many Africans the establishment of the ICTR showed that the
United Nations was willing to respond judicially in equal measure to
mass-atrocity against African civilians as to European victimisation in the
former Yugoslavia. Many more persons had been killed in Rwanda in
1994 than in the immediately preceding armed conflicts in the former
Yugoslavia. The ICTR became a positive measure of equal treatment after
the earlier establishment of the ICTY.
The establishment of the Rwanda and ex-Yugoslavia Tribunals
would have been perceived in quite a different light in some capitals out-
side the African and Western groups of States. For example, in the largest
nation, China, the exercise of foreign jurisdiction over her territory is al-
5
Former U.S. President George H.W. Bush, as quoted by Henry A. Kissinger, 2011, p.
417, supra note 1.

most universally associated with the catastrophic outcome of the 1839

Opium War and more than one hundred years of intervention and instabil-
ity. In the words of Dr. Kissinger, “the traumatic event of China’s history
was the collapse of central authority in China in the nineteenth century,
which tempted the outside world into invasion, quasi-colonialism, or co-
lonial competition and produced genocidal levels of casualties in civil
wars, as in the Taiping Rebellion”. 6 It would lack historical awareness to
expect Chinese to welcome imposed external criminal jurisdiction as
compatible with the national interest.
Importantly, Chinese and European citizens and officials may there-
fore have negative and positive biases respectively towards contemporary
international judicial intervention for equally valid and tragic historical
reasons. ‘Post-sovereignty’ – to borrow from Dr. Kissinger – may mean
peace and order to some, and war and suffering to others. It is not easy for
those engaged in either paradigm to always appreciate the differences of
approach and their background. Understanding the other side on our own
terms only, may well lead to misunderstanding and unnecessary dis-
agreement.
This anthology seeks to foster a better mutual understanding among
Chinese, European and other international lawyers of the relationship be-
tween State sovereignty and international criminal law. Not only do the
two co-exist, but they cannot exist without each other. Criminal justice
presupposes sovereign States. Punishment is an evil imposed by the
community through the State to prevent another evil – the crime – thereby
seeking to protect the community. This requires the existence of a State,
that it has a criminal law and criminal justice institutions, and that the
State acts through these institutions in the form of investigation, prosecu-
tion, adjudication and administration of sentence. International criminal
justice depends equally on States, to establish and accept the jurisdiction
in question, fund the institution, give it access to information required to
build criminal cases, to arrest and transfer suspects, and to serve sen-
tences.
State sovereignty and international criminal justice are in other
words two faces of one coin. But they are minted to speak a different lan-
guage, to different constituencies, and this can lead to conceptual tension.
The chapters of this book illustrate this tension in learned and real ways.
6
Ibid., p. 423.

The book emphasises three main areas of tension: (1) It considers in some
detail the immunity of State officials incriminated by evidence of atroci-
ties from the exercise of foreign or international criminal jurisdiction. To
which extent can immunity be invoked to shield State officials from
criminal responsibility for suspected core international crimes? (2) With
the closing down of the ad hoc international criminal tribunals as they
complete their work, attention is unavoidably shifting to the exercise of
national jurisdiction over core international crimes, including by States
not directly affected by the said crimes. The scope of so-called universal
jurisdiction for such crimes remains relevant to perceptions of State sov-
ereignty. (3) Could the amendments to the Statute of the ICC at its 2010
Review Conference with regard to the crime of aggression – preparing the
ground for its future investigation, prosecution and adjudication by the
ICC – exacerbate tensions between the interests of State sovereignty and
accountability?
The book succeeds in bringing together a diversity of qualified per-
spectives on these issues, from government lawyers, judges in interna-
tional jurisdictions, law professors of different backgrounds, and from
other non-State actors.
In Chapter 3 below – entitled Brief Analysis of a Few Controversial
Issues in Contemporary International Criminal Law – Dr. ZHOU Lulu
considers how international criminal law has entered a new stage of de-
velopment with the establishment of the ICC. Against the expanding case
law of the international criminal jurisdictions during the past ten years and
the changing international situation, certain important theories of interna-
tional criminal law are being re-evaluated. The chapter discusses each of
the three above-mentioned controversial issues in contemporary interna-
tional criminal law: the crime of aggression, universal jurisdiction, and
criminal immunity for State officials in foreign countries. After careful
analysis, Dr. ZHOU concludes that (1) the amendments on the crime of
aggression adopted by the 2010 ICC Review Conference could challenge
international security and stability; (2) absolute universal jurisdiction is
only applicable to the crime of piracy, and it has no solid legal basis and
is harmful to international relations if applied arbitrarily; and (3) the im-
munity of State officials in foreign states is different from that before in-
ternational criminal courts. Under current international law, she con-
cludes, State officials still enjoy criminal immunity in foreign States.

In Chapter 4 – Has Non-Immunity for Heads of State Become

a Rule of Customary International Law? – Judge LIU Daqun discusses
sovereign immunity for heads of State under customary international law.
He explains how sovereign immunity is a well-established rule of interna-
tional law, and argues that with significant doubts over the extent of State
practice and opinio juris in this regard, it cannot yet be said that non-
immunity for heads of State has become a rule under customary interna-
tional law. Such immunity is complex, involving issues linked to interna-
tional criminal tribunals and domestic courts, the contracting parties to the
ICC Statute and non-States Parties, the nature of the alleged crimes, inter-
national judicial co-operation, and the role of the Security Council of the
United Nations. He argues that a referral from the Security Council is the
most effective way for the ICC to have jurisdiction over non-States Par-
ties, since its resolution adopted pursuant to Chapter VII could remove the
immunity of the head of a non-contracting State to the ICC Statute. It de-
pends on its political will whether the Security Council could or would
like to adopt a resolution requesting all States to co-operate with the ICC
to arrest and transfer fugitives or removing the immunity of the head of
State.
In Chapter 5 – Immunity for State Officials from Foreign Jurisdic-
tion for International Crimes – Professor JIA Bingbing explains how im-
munity for State officials is part of State immunity, and that there is dis-
agreement in practice and theory over the granting of State immunity in
cases of international crimes. He shows how current practice still places
State immunity on a higher level to other rules of international law that
found national jurisdiction, as opposed to international jurisdiction, and
ventures to explain how this may be due to the unchanged foundation of
the international order based in the United Nations Charter. He writes that
any denial of State immunity of foreign officials by a national court,
without a basis in international law, “will challenge the fundamental prin-
ciples of that order, and, on its own, will not likely generate new rules of
customary law”.
In Chapter 6 – International Criminal Court: A Judicial Guarantee
for International Peace and Security? – GUO Yang discusses the devel-
opment of a legal framework for the crime of aggression in the context of
the ICC Statute. After more than sixty years of efforts since the end of
World War II, the international community adopted a definition of the
crime of aggression and the conditions under which the ICC could exer-

cise its jurisdiction over the crime. He describes how these amendments
of the ICC Statute are acclaimed by some scholars and States as a mile-
stone for the development of international criminal law. He argues that
this may serve as warning shots for aggressive States and “could contrib-
ute to strengthening international peace and security”. However, he ex-
plains, the amendments are also criticised by some as insufficient in that
they do not satisfy the principle of specialty, so they cannot serve the pur-
pose of prevention and punishment of the crime. He argues that the condi-
tions provided by the amendments pose further challenges to the current
international peace and security regime. By analysing the adopted defini-
tion and conditions for the exercise of jurisdiction, he explores whether
the definition actually covers only traditional wars between States, which,
he says, could be viewed as a cautious reinforcement of the current re-
gime of international peace and security within the United Nations sys-
tem. He concludes that granting the ICC the capacity to legally review the
use of force by States will not make the world less safe than it is today.
Judge Erkki Kourula lucidly opens Chapter 7 – Universal Jurisdic-
tion for Core International Crimes – by suggesting that “[u]niversal juris-
diction is a valuable tool in the fight against impunity”, while acknowl-
edging that “there still exists a divergence of views on its purpose, defini-
tion, usefulness and indeed its exercise in practice”. He proceeds to dis-
cuss some of the challenges that have emerged in recent years as far as the
application of universal jurisdiction is concerned in the prosecution of
core international crimes, from the perspective of the differing approaches
taken in national jurisdictions and in the European Union and the African
Union more widely, the differing political perspectives, to the role of in-
ternational courts and tribunals in the overall fight against impunity for
such crimes. He addresses issues such as the lack of a uniform position on
universal jurisdiction between States in general, the question of converg-
ing jurisdictions and subsidiarity, immunities of State officials, and the
overall feasibility of prosecutions based on universal jurisdiction. He con-
cludes by observing that further work to ensure the effective implementa-
tion of the principle of universal jurisdiction for core international crimes
“will be welcome”, given that its application in practice remains contro-
versial. At present, he writes, “thanks to the universality principle together
with the International Criminal Court and other institutions of interna-
tional criminal justice, the international community will continue fighting
impunity in a genuine spirit of humanity”.

In Chapter 8 – The Connotation of Universal Jurisdiction and its

Application in the Criminal Law of China – Professor MA Chengyuan
gives a detailed exposé on the status of universal jurisdiction in the Chi-
nese legal system. He explains how universal jurisdiction, as the comple-
ment of territorial and nationality jurisdiction, usually refers to the crimi-
nal jurisdiction which a State exercises over a crime committed abroad by
a foreigner. Like the previous author, he acknowledges that, though uni-
versal jurisdiction is well-established in both theory and practice, there
have been controversies among scholars of different States as to its con-
notation and categories. He opines that universal jurisdiction is the crimi-
nal jurisdiction that a State can exercise over a crime committed abroad
by a foreigner not against this State or its citizens in accordance with in-
ternational law or domestic criminal law. Importantly, he divides univer-
sal jurisdiction into three categories based on different legal sources: (1)
universal jurisdiction based on customary international law, (2) universal
jurisdiction based on international treaty, and (3) universal jurisdiction
based on domestic law. Each has its characteristics. The universal juris-
diction stipulated by Article 9 of the Criminal Law of China is based on
international treaty. As such, he argues, it can neither apply to crimes in
customary international law, nor to crimes committed abroad by foreign-
ers not provided in international criminal conventions. Insofar as China
has not transformed most of the crimes stipulated by these conventions
into its Criminal Law, he claims that she has violated the principle of
pacta sunt servanda and the obligations arising from these conventions.
Furthermore, he concludes, as there are no such crimes in the Criminal
law of China, to prosecute these crimes in accordance with international
conventions will violate the principles of nullum crimen sine lege and
nulla poena sine lege, as well as the principle of prohibition of analogy.
In Chapter 9 – Universal Jurisdiction Before the United Nations
General Assembly: Seeking Common Understanding under International
Law – Professor ZHU Lijiang gives a detailed account of the discussions
in the United Nations General Assembly on universal jurisdiction in re-
cent years. The process was largely advanced by the Group of African
States. By the end of 2011, 74 States had made statements on universal
jurisdiction before the Sixth Committee of the General Assembly, and 61
States had submitted their reports on relevant legislative and judicial prac-
tice to the United Nations Secretary-General. Professor ZHU explains
how these statements and reports reflect opinio juris and State practice in

the formation of rules under customary international law in relation to

universal jurisdiction. The statements focus on the following issues: the
definition of universal jurisdiction (including the necessity of covering
civil universal jurisdiction, the nature of jurisdiction of an international
criminal court or tribunal, and the relationship of universal jurisdiction
with the principle of aut dedere aut judicare); the rationale of universal
jurisdiction under international law; the categories of crimes falling within
the scope of universal jurisdiction; the preconditions to the exercise of
universal jurisdiction (including the requirement of presence of suspects
in the territory of the forum State; subsidiarity vis-à-vis the criminal juris-
diction of the State where the crimes were committed, the State whose
national is the suspect or victim, and an international criminal court or
tribunal; respect for the fundamental principles in Article 2 of the Charter
of the United Nations; and the immunity of foreign officials from criminal
jurisdiction of foreign courts); the necessity of establishing an interna-
tional regulatory body on universal jurisdiction; and the necessity of mov-
ing the discussion on universal jurisdiction to the International Law
Commission. Having examined the relevant statements and reports, Pro-
fessor ZHU opines that under present customary international law it can
only be safely asserted that universal jurisdiction has been firmly estab-
lished as a right of sovereign States and that it has its own rationale under
international law. However, he argues, its definition, the crimes falling
within its scope, and the preconditions to its exercise “remain unclear un-
der the present customary international law”. His analysis suggests that
this is the common understanding that has been achieved among the 74
States that had made statements in the General Assembly by August 2012.
He cautions prudence in dealing with issues involving universal jurisdic-
tion, not “confusing lex ferenda with lex lata”. The development of the
law depends on opinio juris and practices of States. Against that back-
ground, he expresses the hope that more States will make statements on
universal jurisdiction before the Sixth Committee and submit descriptions
of their practices to the Secretary-General of the United Nations.
In the final Chapter 10 – The International Criminal Court and Im-
munities under International Law for States Not Party to the Court’s Stat-
ute – Professor Claus Kreß describes how the international law of immu-
nities is in fashion, having been at the heart of two recent judgments of
the International Court of Justice, being the subject of two recent resolu-
tions adopted by the Institut de Droit International as well as a topic to

which the International Law Commission is currently addressing its atten-

tion. This necessarily generates a considerable amount of scholarly writ-
ing. He discusses two closely related questions in proceedings before the
International Criminal Court. The first question is “whether international
law immunities of States not party to the Statute of the ICC prevent the
latter from exercising its jurisdiction over an incumbent Head of State,
Head of Government, Foreign Minister and certain other holders of high-
ranking office of such a State. Only if this first question is answered in the
negative does the second question arise, which is whether such interna-
tional law of immunities precludes the ICC from requesting a State Party
to arrest and surrender a suspect who falls into one the above-listed cate-
gories and who is sought by an arrest warrant issued by the Court”. Pro-
fessor Kreß points out that both questions are highly relevant insofar as
ICC Pre-Trial Chamber I decided on 4 March 2009 that the Court is not
prevented by Sudan’s immunity under international law from exercising
its jurisdiction over the incumbent President of this non-party State, Al
Bashir. More than two years later, a differently composed Pre-Trial
Chamber I specified in two decisions that the Court is also not precluded
from requesting the States Parties of Chad and Malawi to arrest Al Bashir
during his visit to their country and to surrender him to the Court. Shortly
thereafter, on 9 January 2012, the African Union Commission expressed
its serious concern and disagreement with the decisions of the Chamber.
Professor Kreß acknowledges that:
[…] at times, the maintenance of the international legal or-
der, on the one hand, and the stability of inter-State relations,
on the other hand, may prove to be conflicting goals.
Clearly, the international criminal proceedings against Al
Bashir adversely affect the stability of the relations of all
those States which support those proceedings, with the State
of Sudan, as long as Al Bashir stays in power. At the same
time, however, those criminal proceedings aim at the main-
tenance and at the strengthening of the noyau dur of the in-
ternational legal order.
He concludes by recognising that “international criminal law stricto
sensu comes at a price with respect to the stability of inter-State rela-
tions”, but that “this price is worth paying, provided that the scope of ap-
plication of substantive international criminal law stricto sensu will not be
diluted, but remains confined to the conduct that constitutes a fundamen-
tal assault to the noyau dur of the international legal order”.

The nine chapters described above were prepared in the context of

the FICHL LI Haopei Lecture Series. 7 In Chapter 2 – The Life and Con-
tributions of Professor LI Haopei – Ambassador WANG Houli gives us a
glimpse into the life of service to international law of the late LI Haopei
(1906–1997), one of the leading international lawyers of China who
ended his long career as a Judge of the ICTY in The Hague. Professor LI
Haopei embodies lifelong service to international law through govern-
ment, teaching, research and translation, diplomacy, and international ju-
dicial institutions. To him there could have been little doubt that both
sides of the tension between State sovereignty and international criminal
justice are fundamentally important. It is for those of us who seek to serve
in Professor LI’s legacy, to further diffuse this tension, by that helping to
consolidate the significant gains in the development of international
criminal law since 1993 when he took up his work in The Hague as an
ICTY Judge. Such consolidation – rather than further development at the
risk of over-extension – may now be called for. To use a metaphor he may
have appreciated: The ancient pines that adorn the courtyards of Confu-
cius’ Mansion in Qufu not only have crowns that have attracted enthusi-
asm for generations, but they have weathered storms because their root
systems extend horizontally several times wider than the width of the
canopy. Similarly, the stem and roots of international criminal law and
justice draw nourishment from the soil of State sovereignty. This should
not be ignored as the champions of the international criminal justice
movement seek to extend and branch out the reach of substantive and per-
sonal jurisdiction for core international crimes.
7
For information, see http://www.fichl.org/li-haopei-lecture-series/ with sub-pages that
contain information on the purpose and organisation of the Series, as well as the life
and service to international law of the late Professor LI Haopei.

2
______
The Life and Contributions
of Professor LI Haopei*
WANG Houli **
I am very happy to have been invited to contribute some words to the an-
thology State Sovereignty and International Criminal Law published in
honour of the late Professor LI Haopei’s service to international law. I
feel that offering these words is not only an honour but also my duty.
Professor LI Haopei and I had enjoyed a rich relationship, and were
very close to one another. In the beginning, Professor LI was my teacher
when I was at the Dongwu University Law School in Shanghai. After
that, we became colleagues in the Department of Treaty and Law at the
Ministry of Foreign Affairs. And next, he became my neighbour in the
Guang Huali dormitory at the Ministry of Foreign Affairs. Finally, he was
my comrade at the May Seventh Cadre School of the Ministry of Foreign
Affairs. I am very familiar not only with Professor LI, but also with his
wife and his family members. Professor LI has left a deep impression on
me, and I have learned a lot through my experiences with him.
Professor LI graduated from the Shanghai Dongwu University Law
School in 1928, after which he studied abroad in England, and when he
returned to China in 1939 he served as the dean and as a professor in the
Law Department at the University of Wuhan. He was then appointed by
Zhejiang University to found the Law School of Zhejiang University. He
also served as a professor and the dean of the school. After the People’s
Republic of China was established in 1949, he served as a committee
*
This chapter is adapted from a text prepared as a speech in the FICHL LI Haopei Lec-
ture Series. It has been translated by R. Frazier Lowell.
**
WANG Houli, Legal Adviser to the Ministry of Foreign Affairs, China. Formerly,
President of the China Society of International Law; Ambassador to Libya and First
Secretary at the Chinese Embassy in the former Soviet Union; and Director-General
of the Department of Treaty and Law, Ministry of Foreign Affairs.

member in the Legislative Affairs Office of the State Council, a senior

researcher at the Institute of International Relations, and a professor at the
China Foreign Affairs University. Throughout his service, he has trained
many qualified legal experts in China, and has made quite a contribution
to the building of our legal system.
In order to improve the quality of work done by the Department of
Treaty and Law, the Ministry of Foreign Affairs transferred Professor LI
to the Ministry of Foreign Affairs from his position at the Foreign Affairs
University to serve as a legal advisor, assigning him to a position in the
Department of Treaty and Law. At that time there was a Legal Advisory
Office at the Department of Treaty and Law, and those serving were made
up of the most well known experts in law and diplomacy. The duties and
functions of a legal advisor is to provide advice and take part in discus-
sions tackling major difficult issues that may arise when dealing with cer-
tain diplomatic legal cases, and to conduct research and write reports re-
garding major practical international legal problems. Most of the time
Professor LI and I had spent working together was at the Department of
Treaty and Law at the Ministry of Foreign Affairs.
Professor LI is an authoritative figure in the realm of Chinese legal
studies, and is also exceptionally well known on the international level as
well. He had rich experience in legal studies, was well versed in many
subjects, was familiar with the scholarship both of China and that of
abroad, and had quite wide horizons. He was well versed in such realms
as civil law, criminal law, international law, private international law, and
comparative law. His research was wide in scope and deep in nature, and
practically covered all the areas of legal studies. He was not only ex-
tremely familiar with law both inside and outside of China, but he also
had a strong command of many foreign languages: English, French, Ger-
man, Russian and Latin, and possibly even Japanese.
He had published many books related to private international law,
nationality law, and the law of treaties, all of which have been chosen as
teaching materials and reference materials by university law departments.
He had also translated foreign works into Chinese, such as the Napoleonic
Code, German Criminal Code, Martin Wolff’s Private International Law,
Alfred Verdross’ International Law, the Soviet Law of Evidence, and the
Judgment of the International Military Tribunal for the Trial of German
Major War Criminals. Through these efforts, Professor LI introduced for-
eign law and different schools of thought to China.

The Life and Contributions of Professor LI Haopei
While working at the Department of Treaty and Law at the Ministry

of Foreign Affairs, he provided valuable suggestions and views in regards
to important and difficult international law cases, which proved to be in-
dispensable in correctly managing these cases. After undertaking careful
and meticulous research, he would take the initiative in providing valu-
able suggestions regarding whether or not China should become a signa-
tory in certain international conventions. On occasion, he had taken part
in international diplomatic conferences discussing international law as a
delegation member representing the Chinese government, and at these
meetings had raised his own constructive and legally sound viewpoints.
At different times, Professor LI had written and published high
quality articles that have provided unique insight.
I asked him in 1985 to give four months of lectures for the entire
department officers. His book entitled Introduction to the Law of Treaties
is not only an excellent guide for the Department of Treaty and Law at the
Ministry of Foreign Affairs towards a better understanding of the law of
treaties, it has also been recognised as a classic work on Chinese interna-
tional law, has been awarded first prize by the National Book Foundation,
and has been recommended as a must-read for graduate students of law.
Professor LI was appointed as an editorial board member and chief
editor for the Private International Law section in the Encyclopedia
Sinica, Volume of Law .
In 1985, Professor LI Haopei was elected as a member of the Insti-
tute of International Law.
Professor LI had a voracious appetite for learning. In his office, he
had huge volumes of books on his enormous bookshelf and on both sides
of his desk. He checked out more books than any other member of the
Ministry of Foreign Affairs Library and the Department of Treaty and
Law Reference Room. We would often see him struggling to carry huge
stacks of books back to his office.
Professor LI held high expectations of himself and his students in
the classroom, was very meticulous with details, only made statements
that could be backed up with solid evidence, and understood legal matters
very well. When I would go to his office to ask for consultation in regards
to specific legal cases or for advice about a certain academic question, he
would always immediately put to one side the work that he was busy
with, politely ask me to sit, and in a warm and modest way, would slowly

and patiently respond to each of my questions, giving me a detailed ex-

planation. Sometimes, he would decide to come to my office afterword,
and would pass off to me a written document that either added further ex-
planation to the case or question which I had brought to him, or provided
his legal basis or citation of the source from which he derived his explana-
tion. This sort of serious and responsible attitude, as well as his rigorous
attitude toward learning, often moved me very deeply. I believe that any-
one who works in law should definitely learn from and adhere to Profes-
sor LI’s serious attitude towards scholarship.
I would like to take a moment to point out some of Professor LI’s
personal qualities that were seen through the work that he did, which
were: Integrity, a strong conscience and a belief in a job well done. The
way that we traditionally handle cases at the Department of Treaty and
Law, is that when we come across major and difficult legal cases involv-
ing foreign relations, the leader of the department will call all of the legal
advisors together to discuss the matter. Those who take part in the meet-
ing will earnestly work to understand the spirit of the policy, work out the
main points in the case, and express one’s own opinion from the aspects
of politics, diplomacy, and law. Under normal circumstances, everyone’s
opinion, including that of Professor LI, will be essentially the same, or
similarly be expressed from different angles. But sometimes Professor LI
would express a distinct opinion with a solid argument that was very dif-
ferent from others expressed, and he would persistently adhere to his ar-
gument. Even if in the end his suggestion was not adopted, I would still
very much value his input, and would gain even more respect for his per-
sonal character. He would approach each case completely from his own
understanding and from a strict legal perspective, and even if his opinion
was different from that of the group, or even from that of the leader in
charge, he would still refuse to change his stance and simply echo the
opinions of the others. I believe, regardless of whether his suggestion was
adopted or not, that this kind of spirit, character, and style should be rec-
ognised and encouraged by others. After all, the purpose and job of advi-
sors is to raise one’s own sound and reasonable arguments. Different
viewpoints, even if they are the viewpoints of the minority, sometimes
prove to be more important and more valuable towards the correct man-
agement of the case.
Professor LI worked at the Department of Treaty and Law at the
Ministry of Foreign Affairs for exactly 30 years, from 1963 to 1993. I be-

gan working at the Department of Treaty and Law before him, and left the
Department in 1989 to work abroad, working with the Professor for a total
of 26 years. I have benefited greatly from my time spent working with
him, and he has left a great impression on me. He is my senior who I have
the utmost respect for, a man with exemplary conduct and a noble charac-
ter, and was a kind, affable, outstanding scholar of law.
Professor LI was very serious and responsible in his work, was very
meticulous when it came to details, and even when he was assigned to
physical labour with the Cadre School, he would work hard and enjoy the
physical exercise at the same time. In November of 1969, during the Cul-
tural Revolution, cadres from the Ministry of Foreign Affairs were sent
together in big groups with those of the other central offices located in
Beijing to take part in rural labour. At that time, the Department of Treaty
and Law had been eliminated, with the entire staff being sent to take part
in manual labour, regardless of age, and including elderly expert consult-
ants. Professor LI and I were sent at the same time, first to Hunan prov-
ince, after which we were transferred to the Shanggao County Ministry of
Foreign Affairs May Seventh Cadre School in Jiangxi Province. At the
Cadre School in Jiangxi, Professor LI and I were assigned to the vegetable
team, with the primary responsibility of planting vegetables and managing
the fields. Because Professor LI was over the age of 60 at the time, he
took care of the lighter physical labour, pulling and digging up weeds in
the vegetable patches, and while waiting for the cabbage to ripen, he
would remove by hand insects and pests from outside and inside the
leaves. Even though it was light physical labour, it was still very trialling
for Professor LI, bending his back under the burning sun, in addition to
wearing thick glasses to help with his near-sightedness. But even so, he
paid as meticulous of attention to detail as ever when picking out the in-
sects, carefully pulling out each furry insect with a small pair of tongs and
placing them in a small water bottle. The small vegetable bugs in the
vegetable patches that he worked in were rarely able to escape these
tongs.
For every task that Professor LI Haopei put his mind to, that he
thought was suitable for him, he was always able to carefully see through
to the end. In addition to his daily reading and writing, he would also
make sure to take time for exercise. In 1986, when he was giving a pres-
entation to the students of the Department of Law at his alma mater in
Suzhou, he made a point to emphasise: “On the one hand, you must take

time for exercise in order to enhance your physical fitness, and on the
other hand you must seize every moment to engage yourself in learning”.
This was also his motto in life. When I was working with him at the De-
partment of Treaty and Law at the Ministry of Foreign Affairs, whenever
it came time for work-break exercises, everyone would see a white-haired
elderly man on the roof-porch outside the office hallway concentrating
intently on his Tai Chi. This elderly man was Professor LI.
He would always walk to and from work. From his home in Guang
Huali he would walk to the Ministry of Foreign Affairs located in Dongsi.
At a fast pace, this would take about 45 minutes, and he would make this
walk in all four seasons, and even through the wind and rain. Knowing
that he was quite elderly, I contacted the secretary for administrative ser-
vices, and asked that they assign a driver to take Professor LI and the
former director SHAO Tianren to and from work. Professor LI accepted
the ride to work, but when he entered the office building he would not
take the elevator, instead preferring to work his way up the adjacent stair-
case with the help of the handrail, and without stopping for rest would
make his way up six stories to his office, sometimes with a big briefcase
loaded with heavy books in the other hand.
In 1993, Professor LI was elected to serve as a judge in the U.N. ad
hoc International Criminal Tribunal for the former Yugoslavia. At the
time he was 87, which possibly is the highest aged judge that any interna-
tional court has ever selected to oversee his or her first case. Even at this
venerable age, his physical condition, energy for work, and mental capac-
ity were no less than those younger than him, except for the fact that he
was a little hard at hearing. His broad and profound legal knowledge, rich
work experience, serious attitude toward work, amazing capacity for for-
eign languages, and his great modesty and integrity of character, won him
the respect and admiration of his colleagues at the court.
We would like to thank Norwegian scholar, Professor Morten
Bergsmo, for organising this series of lectures and seminars, which is en-
titled LI Haopei in commemoration of the contributions Professor LI has
made toward the development of international law and international
criminal justice, and through this series of seminars we would also like to
encourage the development and dissemination of international law
throughout the world. I hope that today’s young students of law will in-
herit and carry forward LI Haopei’s strict scholarly spirit and upright

character, and become outstanding experts of law at the national and also
international level.

3
______
Brief Analysis of a Few Controversial Issues
in Contemporary International Criminal Law*
ZHOU Lulu **
Ten years ago, with the establishment of the International Criminal Court,
international criminal law entered a new stage of development. For ten
years, with the experience of international criminal trials growing richer
every day and with the changing international situation, certain important
theories of international criminal law are being re-evaluated. This paper
aims primarily at discussing three controversial issues in contemporary
international criminal law: the crime of aggression, universal jurisdiction,
and criminal immunity for state officials in foreign countries.
*
Translated by R. Franzier Lowell, revised by ZHOU Lulu. The author notes that this
article only represents her personal view and does not represent the position or opin-
ion of the Department or Ministry she serves.
**
ZHOU Lulu is Director of the Treaty Division of the Department of Treaty and Law,
Ministry of Foreign Affairs of China. She graduated from China University of Politi-
cal Science and Law in 1997. She obtained a Master’s degree from Hong Kong Uni-
versity in 2004 and a Ph.D. from Renmin University in 2007. She has represented the
Chinese Government or been a member of Chinese delegations on many bilateral or
multilateral occasions, such as the negotiation between China and Peru regarding the
Agreement on Mutual Legal Assistance in Criminal Affairs, the consultation of the
U.N. framework on the Convention on Protection of all Persons from Enforced Dis-
appearance. ZHOU has written, co-authored, edited or co-translated several books
(including Research on the Fundamental Principles of Contemporary International
Criminal Law, The International Criminal Court: A Commentary on the Rome Stat-
ute, and International Criminal Court). She has also published several articles (in-
cluding Inspiration of the New Development of EU Extradition System, Research on
the Provisions Regarding the Relationship between ICC and UN Security Council,
The Obligations Erga Omnes and its impact on International Criminal Law, The Le-
gal Impact of the Amendment of Crime of Aggression – from the Angle of the Condi-
tions of the ICC to Exercise Its Jurisdiction).

3.1. The Crime of Aggression

On 11 June 2010, States Parties of the Rome Statute of the International
Criminal Court (hereinafter referred to as the ‘Rome Statute’) attending
the Review Conference adopted by consensus 1 the sixth resolution on the
amendments to the crime of aggression. These amendments laid out the
definition, conditions for exercising jurisdiction, and elements of the
crime of aggression, as well as an understanding of the amendments.
After the amendments regarding the crime of aggression were
adopted, some scholars experienced a feeling of encouragement, thinking
that this had not only realised the long-cherished hope of the international
community to establish a common definition for the crime of aggression,
but also protected the independence of the International Criminal Court,
and established a foundation on which the Court may exercise jurisdiction
over crimes of aggression in the future. However, issues of dispute that
arose during the negotiation process cannot be resolved simply because
the amendments were adopted. It still needs in-depth analysis to deter-
mine whether the amendments will actually serve as a reasonable and ef-
fective basis for future trials, and play a role in pursuing those account-
able for crimes of aggression, with the goal of maintaining world peace.
The potential impact of the amendments on contemporary international
politics and the international legal system should not be ignored.
The history of establishing and defining the crime of aggression can
be traced back to the formulation of the Treaty of Versailles in 1919. Af-
ter World War I, representatives of the five victorious nations met at the
Palace of Versailles outside Paris to draft the terms of the German Peace
Treaty (the ‘Treaty of Versailles’), trying to establish an orderly post-war
framework as well as hold the criminals initiating wars accountable. 2 But
1
France did not associate herself with the consensus, and did not oppose the adoption
of the amendments.
2
A committee to investigate who had started the war and also to enforce punishment of
these culprits – the committee which was under the leadership of a ten-member coun-
cil made up of members of the five nations that had come together to draft the Treaty
of Versailles – stated the following: “All those residing in enemy states, regardless of
the seniority of rank, and including the national leadership, as long as they have vio-
lated the laws of war or those of customary practice, or have violated humanitarian
law, all must be held criminally responsible”. The committee divided all types of
criminal actions into two basic categories: (1) instigating world war and working in
co-ordination with acts of war; (2) violating the laws of war or those of customary

in Contemporary International Criminal Law
for various reasons, 3 the efforts to hold those who had committed interna-
tional crimes accountable were in vain.
After World War II, the Nuremberg Tribunal and the International
Military Tribunal for the Far East were established to hold war criminals
in Germany and Japan accountable for their crimes. Both Tribunals in-
cluded ‘crimes against peace’ in the crimes under their jurisdiction. This
was the prototype or formal origin of the crime of aggression. However,
the Nuremberg Charter and the Far East Military Tribunal Charter only
simply ruled that planning, initiating or carrying out war of aggression
constitutes a crime against peace. The two Charters failed to stipulate in
detail either the components of wars of aggression or the elements of
crimes against peace. 4 In spite of this, the Nuremberg Tribunal deter-
mined that Karl Dönitz committed crimes against peace; 5 and the Far East
Tribunal found 25 individuals guilty of crimes against peace. 6
practice, or having violated humanitarian law. See Bassiouni, International Criminal

Law, 1999, vol. 2, p. 316.
3
This includes the fact that the German Emperor had fled to Holland and was given
asylum by that country.
4
In 1945 countries including the U.S., England, France and the former Soviet Union
concluded the Agreement for the Prosecution and Punishment of the Major War
Criminals of the European Axis (also referred to as the ‘Charter of the Nuremberg
Tribunal’), establishing the Nuremberg International Military Tribunal, holding indi-
viduals criminally responsible for crimes against peace, war crimes, and crimes
against humanity. Crimes against peace referred to “planning, preparation, initiation
or waging of a war of aggression, or a war in violation of international treaties,
agreements or assurances, or participation in a common plan or conspiracy for the ac-
complishment of any of the foregoing” (see Article 6, Section 8 of the Nuremberg
Charter). In 1946, countries such as China, the U.S., and the former Soviet Union
completed the Far East Military Tribunal Charter in order to punish Japanese crimi-
nals for their war crimes, defining crimes against peace and in Article 5, Section 1 in-
corporating the same description given in the above-mentioned Nuremberg Charter.
5
See selections from Karl Dönitz’s pleading of innocence, available at
http://warstudy.com/history/world_war/german_navy_strategy/034.xml, last accessed
on 13 October 2012.
6
On 12 November 1948, the Far East Tribunal announced the decision with regards to
25 Class-A war criminals, stating that they are responsible for crimes against peace,
war crimes and crimes against humanity, and sentenced seven individuals to death by
hanging, 16 individuals to life imprisonment, and two individuals to limited prison
sentences. See “Zhanfan Yongyuan shi Zhanfan, Fananzhe Bibai” (War Criminals
will always be War Criminals, Those who Try to Reverse the Verdict are Doomed to

The United Nations has committed to end all forms of aggressive

war ever since its establishment. In 1946, the United Nations General As-
sembly adopted Resolution 95(1), unanimously confirming the principles
of international law outlined in the Nuremberg Charter. In 1950, the In-
ternational Law Commission codified the Principles of the Nuremberg
Tribunal based on Resolution 95(1), stating in the sixth principle that
crimes against peace “are punishable as crimes under international law”,
using the same definition contained in the Nuremberg Charter.
Following this, the international community continued its ongoing
efforts to establish a clear definition of crimes of aggression. But since
this was all taking place during the Cold War, the process was slow. After
many years of hard work, the U.N. General Assembly adopted Resolution
3314 on 14 December 1974, which included a definition of ‘aggression’,
and also listed certain manifestations of crimes of aggression. But U.N.
General Assembly resolutions are not legally binding, and so the given
definitions were unable to serve as a legal basis for determining crimes of
aggression. After this, international legal academia, including the Interna-
tional Law Commission, continued to search for a possible definition of
crimes of aggression with the U.N. General Assembly’s Resolution as a
starting point. But there was no substantial progress.
In 1998, the Diplomatic Conference to discuss the establishment of
the Statute of the International Criminal Court took place in Rome, where
crimes of aggression and other crimes such as war crimes, genocide, and
crimes against humanity were included in the jurisdiction of the Statue.
However, because of irreconcilable differences among the parties on the
definition of crimes of aggression as well as the conditions for the Court
to have jurisdiction over such crimes, the Conference had no choice but to
leave the articles concerning crimes of aggression to be decided at a later
date. The Conference only decided that in principle, after the articles in
question were established, the Court would be able to exercise jurisdiction
over crimes of aggression. 7
After the Rome Statute entered into force in 2002, a Special Work-
ing Group on the Crime of Aggression was established, and became a
main mechanism for a new round of negotiations on crimes of aggression.
Failure), available at http://www.china.com.cn/chinese/zhuanti/rbzf/897592.htm, last

accessed on 13 October 2012.
7
See the Rome Statute, Article 5(2).

Parties became involved in heated debates revolving around such issues

as the definition of crimes of aggression, elements of such crimes, condi-
tions for jurisdiction, and the issue of how such articles should enter into
force. The amendments pertaining to the crime of aggression as stated in
Resolution 6 were finally adopted at the 2010 ICC Review Conference
held in Uganda.
3.1.1. The Definition of Crime of Aggression

During the discussions in the crime of aggression Special Working Group,
two main opinions were raised regarding how crime of aggression should
be defined. The first opinion was that there should be a specific definition
of crime of aggression, and specific aggressive actions should be listed.
This would mainly adhere to the Definition of Aggression attached to the
U.N. General Assembly Resolution 3314 (XXIX). The other opinion was
that a generic definition of crimes of aggression should be established
based on Article 6, Section 1 of the Nuremberg Charter on crimes against
peace, which stated:
[…] in order to realize the purpose of this statute and in ac-
cordance with the UN Security Council’s previous determi-
nation of act of aggression, the crime of aggression refers to
the following: planning, preparation, initiation or waging of
a war of aggression. 8
Through years of negotiations, the parties have essentially reached a
consensus to consider both approaches to definition together. Before de-
termining the criminal responsibility of an individual carrying out crimes
of aggression, it must first be decided whether or not there existed an act
of aggression by a state.
The current definition provided by the amendments on the crime of
aggression reflects three characteristics of such crime, namely: (1) spe-
cific contextual element for crimes of aggression, (2) leader’s crime, and
(3) threshold requirements.
1. Contextual element for the crime of aggression. Crimes of aggres-
sion are not carried out by one or more individuals, and individual
criminal activity must occur against the backdrop of the invasion by
a nation or group. To put it another way, crime of aggression by the
8
See Special Working Group on the Crime of Aggression discussion paper, 3 June
2005, Princeton Meeting.

individual must happen within the context of acts of aggression.

This is also the chief characteristic distinguishing crime of aggres-
sion from other core crimes. In fact, the main reason why it is so
difficult to establish the definition of the ‘crime of aggression’ is
that this crime closely relates to justice of war, and also with inter-
national peacekeeping missions. 9 Maintaining peace and determin-
ing aggressive behaviour is an extremely difficult task of a political
nature. Different nations and ethnic groups may understand and
comprehend the same behaviour or situation differently, based on
their own historical and cultural background or value system, possi-
bly coming to opposite conclusions on the nature of the behaviour
in question. For example, actions seen as separatism by one country
may be seen by another country as a struggle for human rights; 10
actions in opposition to foreign oppression, which are part of a
struggle for national liberation, may be seen by another nation as
terrorism that needs to be suppressed. 11 In the process of discussing
the crime of aggression, some countries have proposed the inclusion
of such variations as economic invasion and cultural invasion, 12 but
these proposals have not been included because of insurmountable
differences of opinion amongst the parties involved. Despite the
fact that the possible forms of acts of aggression are virtually infi-
nite, it is still essential to determine the existence of an act of ag-
gression as a precondition to pursuing individual responsibility for
crimes of aggression. Obtaining the competence to determining the
existence of acts of aggression is like holding the key that can initi-
ate a proceeding against an aggressor.
2. A crime by leaders. Acts of aggression and wars of aggression are
both acts of states, which both require national military forces,
equipment and sources in order to be carried out. This means that
9
See Carsten Stahn, “The ‘End’, the ‘Beginning of the End’ or the ‘End of the Begin-
ning’? Introducing Debates and Voices on the Definition of ‘Aggression’”, in Leiden
Journal of International Law, 2010, vol. 23, pp. 875–876.
10
For example, the so-called ‘struggle for independence’ by the Chechen nationalists; in
the eyes of its regional authority, it may be considered as activities of separatism by
the central government of Russia.
11
The conflict between Palestine and Israel is a classic example.
12
MA Chengyuan, “Guoji Xingfa Lun” (International Criminal Law Theory), in China
University of Political Science and Law Publishing House, 2008, p. 285.

having the opportunity to plan, prepare for, initiate or wage a war of

aggression, and thus take part in the above-mentioned activities,
does not reside in the common individual, but in a leader who is of
a certain higher rank, and who has the capability, credentials and
opportunity to control, command or influence the state’s decision or
military forces. This is what the amendments on the crime of ag-
gression refer to as an individual “in a position effectively to exer-
cise control or to direct the political or military action of a state”.
Emphasis is placed on the fact that the crime of aggression is a
crime that it is specifically committed by a leader and it is done so
in order to apply different treatment to those who participate in, as a
mere material fact, acts of aggression and those who play a leading
role in acts of aggression. In practice, many low ranking soldiers
will take part in specific acts of aggression by simply following
military orders, but they know nothing about the intention, scale
and goals of the overall act of aggression. Therefore, differentiation
between the particular individual who participates in acts of aggres-
sion and those who are responsible for launching the aggressive ac-
tion is not only a technical legal issue, but rather relates to the judi-
cial policy of how crimes of aggression should be effectively pun-
ished and prevented.
3. Threshold requirements. There are certain threshold requirements
contained in the definition of the crime of aggression, that is, only
when the act of aggression “by its character, gravity and scale, con-
stitutes a manifest violation of the Charter of the United Nations”,
will the crime of aggression apply. This threshold requirement
originates from the fact that customary international law only con-
siders serious acts of aggression like ‘aggressive war’ to be crimes
of aggression or crimes against peace. This fact can be verified by
referring to such documents as the Nuremberg Charter, the Far East
Military Tribunal Charter, U.N. General Assembly Resolution
95(I), the Nuremberg principles of international law, as well as the
1970 Declaration of Friendly Relations.13 These documents clearly
point out that “aggressive war is a crime against peace”. Section 5,
Article 2 of U.N. General Assembly Resolution 3314 confirms this
position, differentiating between war of aggression and act of ag-
13
Principle 1(2) of the Friendly Relations Declaration of 1970.

gression, stipulating that “a war of aggression is a crime against in-

ternational peace, aggression gives rise to international responsibil-
ity”. Existing international law does not provide a clear standard of
justification on how to define whether a war of aggression has taken
place. In practice we can only make this distinction according to the
limited criteria for judging the legitimacy of war usually found in
customary international law, which shows that only wars of self-
defence or wars undertaken under collective security mechanism
outlined in the U.N. Charter are legitimate wars. 14 The trend to dif-
ferentiate between ‘war of aggression’ and ‘act of aggression’ is ad-
justed in the Draft Code of Crimes against the Peace and Security of
Mankind. 15 The International Law Commission explained in detail
why it tried to eliminate the differentiation between aggressive war
and aggressive actions in the first reading comments on the Draft
Code. 16 This viewpoint of the Commission was partially accepted
during the discussions held by the Special Working Group for
crimes of aggression with minor modification. The Special Work-
ing Group did not differentiate between aggressive war and aggres-
sive actions, but instead divided aggressive actions into different
categories, creating a threshold requirement for aggressive acts that
may constitute crimes of aggression, which is what the current
14
Using force in self-defence or with the authorisation of the Security Council under the
collective security system are two legitimate reasons for use of force under the U.N.
Charter (Article 51 of the U.N. Charter).
15
Draft of 1991, Articles 15 and 16.
16
The International Law Commission noted a distinction between war of aggression and
act of aggression, and summarised in its report that:
[…] some members felt that the notion of a war of aggression indi-
cated the level of magnitude required for the conduct to result in
individual criminal responsibility […] however, other members re-
jected this distinction as artificial or spurious for the following rea-
sons: the concept of war is a relative concept; wars of aggression
inevitably include acts of aggression; the distinction between the
seriousness and the legal consequences of the two was misleading
and unsustainable in practice; […] the emphasis on wars of aggres-
sion was misplaced since declarations of war no longer existed in
international relations […].
See International Law Commission, “Report of the Commission to the General As-
sembly on the work of its forty-seventh session”, in Yearbook of the International
Law Commission, 1995, vol. II, part II, para. 63.

amendment has described as “by its character, gravity and scale,

constitutes a manifest violation of the Charter of the United Na-
tions”. The Special Working Group’s approach to this matter can to
some extent be seen as a confirmation of customary international
law.
The author believes that the amendment specifying threshold re-
quirements for crimes of aggression is, on the one hand, rational to some
degree because it not only conforms to the distinction between ‘unlawful
offences’ and ‘international crime’, but also keeps in mind the reality that
international judicial institutions, with no enforcement forces and limited
resources, have to concentrate their efforts on the most serious crimes and
criminals. But on the other hand, these threshold requirements leave great
discretion to prosecutors and judges which could lead to abuse, and at the
same time does not fulfil the principle of peaceful settlement of interna-
tional disputes under international law that requires all states to do every-
thing possible to refrain from use of force, regardless of how minor scale
it may be.
3.1.2. Precondition for the Court to Exercise Jurisdiction

over Crimes of Aggression
This issue is essentially of the same nature as that of identifying the insti-
gator of an act of aggression, and also that of the relationship between the
Court and the Security Council. This is the most difficult issue to over-
come during discussions on the crime of aggression.
According to the Rome Statute, there are three triggering mecha-
nisms of the Court’s jurisdiction: referral by a State Party, by the Security
Council and proprio motu initiation of investigation. During negotiations
in the Working Group and the Review Conference, the issue of precondi-
tions primarily focused on that of referrals by State Parties and proprio
motu initiation. The international community has seen two widely differ-
ing viewpoints on this issue.
One view states that Article 39 of the U.N. Charter clearly grants
the U.N. Security Council the competence to decide whether or not ag-
gression or aggressive acts have occurred. Therefore, the Security Council
has the competence to determine the existence of a threat to the peace,
breach of the peace or act of aggression; and it is the only institution that
has the competence to determine acts of aggression. Maintaining the in-

dependence of the International Criminal Court cannot prevail over the

collective security system or derogate from or jeopardise the competence
of the Security Council to maintain peace and security. To these ends,
only on the condition that the Security Council has determined an act of
aggression can the Court have jurisdiction over crimes of aggression. Fail-
ing that, the Court may not obtain jurisdiction over such crimes. Those
who hold this opinion are primarily the five permanent members of the
Security Council.
Another viewpoint suggests that the Security Council is a political
institution, and if its affirmation that crimes of aggression have taken
place is a precondition for the Court to exercise its jurisdiction, this will
result in the work of the Court becoming impaired by politics, making it
impossible to guarantee the independence of the judiciary. Those who
hold this opinion consider that, although the U.N. Charter assigns respon-
sibility for maintaining peace and security to the Security Council, it has
not specified that it is the only institution that has the competence to de-
termine the existence of an act of aggression, and institutions such as the
International Court of Justice and the U.N. General Assembly may also
discuss affairs involving aggression. Those who hold this viewpoint are
primarily countries from Latin America and Africa.
At a later stage of the ICC Review Conference in 2010, the Chair
presented a room paper with a green light proposal, which gave more
flexibility to the Security Council to determine acts of aggression as a
condition for the Court to exercise its jurisdiction. 17 According to this
proposal, where there is a State Party referral or proprio motu initiation of
investigation, and no determination of an act of aggression has been made
by the Security Council, the Court can exercise its jurisdiction when the
Security Council has requested the Prosecutor to proceed with the investi-
gation. It is up to the Security Council to give the green light to the Prose-
cutor. This option did not obtain unanimous support. Those favouring that
the Security Council should not be able to serve as a filter – represented
by Argentina, Brazil and Switzerland – submitted a further proposal, ac-
cording to which, and under the same scenario, the Court could exercise
17
2010 Conference Room Paper submitted by the Chair of the Review Conference, see
Stefan Barriga and Claus Kreß (eds.), Crime of Aggression Library: the Travaux Pre-
paratoires of the Crime of Aggression, Cambridge University Press, 2012, p. 730,
para. 4.

its jurisdiction when the Pre-trial Chamber has authorised the com-
mencement of an investigation. 18 This proposal was later developed into a
red light proposal by the President of the Conference. 19
In the end, the ICC Review Conference adopted the current text for
exercising jurisdiction over crimes of aggression on the basis of the ‘red
light proposal’, which states that conditions for jurisdiction are specifi-
cally separated into two categories: The first is that, in regards to cases
(situations) referred to the Court by the Security Council, the Court may
exercise jurisdiction over anything that involves crimes of aggression,
regardless of whether the involved countries are States Parties to the
Court, or whether they have accepted the jurisdiction of the Court. The
second is for referral by States Parties or proprio motu initiation of inves-
tigations when the prosecutor has to identify whether the Security Council
has determined an act of aggression. If the Council has done so, the
prosecutor may continue with an investigation; if the Council fails to do
so within a period of six months – unless the Pre-Trial Chamber of the
Court gives authorisation and the Council has not suspended the investi-
gation – the prosecutor may continue investigating the crime of aggres-
sion. 20
With the above-mentioned preconditions for the Court’s exercise of
jurisdiction, France did not associate herself with the consensus when the
amendments were adopted by consensus. And China, the U.S. and Russia
18
Ibid., p. 741.
19
In the 2010 President’s second paper, there are two alternatives on the exercise of
jurisdiction over the crime of aggression (state referral and proprio motu initiation):
Alternative 1: in the absence of such a determination, the Prosecutor may not proceed
with the investigation in respect of a crime of aggression [unless the Security Council
has, in a resolution adopted under Chapter VII of the Charter of the United Nations,
requested the Prosecutor to proceed with the investigation].
Alternative 2: where not such determination is made within six months after the date
of notification, the Prosecutor may proceed with the investigation in respect of a
crime of aggression, provided that Pre-Trial Division has authorised the commence-
ment of the investigation in respect of a crime of aggression in accordance with the
procedure contained in Article 15 [and the Security Council does not decide other-
wise]. See Stefan Barriga and Claus Kreß (eds.), Crime of Aggression Library: the
Travaux Preparatoires of the Crime of Aggression, Cambridge University Press,
2012, p. 782.
20
See Resolution 6, RC/Res. 6, attachment no. 1, adopted by the Review Conference on
11 June 2010.

stated their position, expressing their disagreement or dissatisfaction with

the amendments from different angles. The author believes that, while the
preconditions may seem to have maintained the independence of the
Court, in actuality, they greatly impact the international legal and political
system, adding more destabilising factors to international peace and secu-
rity. This is because of the following reasons.
Firstly, the issue of preconditions involves the interpretation of Ar-
ticle 39 of the Charter of the United Nations. The author is of the view
that since the Charter empowers the Security Council and no other institu-
tion with the competence to maintain peace and security, naturally the
task of determining acts of aggression – which is closely related to peace
and security – has been assigned to the Council. The fact that it is difficult
for the Council to make decisions on aggression is a very complicated
issue involving international politics. Sometimes those decisions involve
nations that have a huge impact on international or regional stability. The
foundation of the Charter of the United Nations is the collective security
mechanism, and the veto possessed by the permanent members of the Se-
curity Council is an inseparable part of this system. It could be said that,
even though the U.N. cannot possibly prevent all wars, it can still play a
role in preventing large-scale wars that threaten world peace and security
from happening. 21 In situations where the Security Council cannot come
to a decision by consensus and the ICC is empowered with the authority
to determine acts of aggressions, the concurrent competences will dero-
gate from the role of the Security Council and the post-World War II in-
ternational security system established pursuant to the United Nations
Charter. It will cast doubt on the real effectiveness of the amendments on
the crime of aggression on the maintenance of peace and security by pun-
ishing criminals of crimes of aggression.
Secondly, although the Security Council is a political organ, it does
not necessarily neglect to exercise its power to determine the existence of
aggression. In history, the Security Council had adopted some resolutions
on aggression, condemning the aggressive acts of some countries. For ex-
ample, from 1973 to 1987, the Security Council adopted resolutions con-
demning ‘aggressive acts’ or ‘act of aggression’ by South Africa against
21
The veto that the five permanent members of the Security Council possess produces
strategic contention and balancing. Since World War II, there has not been a world
war or a large-scale regional war involving many nations.

Zambia and neighbouring countries like Angola or Namibia. 22 In 1977,

the Security Council adopted Resolution 405, which “strongly condemns
the act of armed aggression penetrated against the Republic of Benin on
16 January 1977”. 23 In 1985, the Security Council, by adopting Resolu-
tion 573, drew:
[…] attention to the serious effect which aggression carried
out by Israeli and all acts contrary to the Charter [...], con-
demns vigorously the act of armed aggression perpetrated by
Israel against Tunisian territory in flagrant violation of the
Charter of United Nations, international law and norms or
conduct [...]. 24
Iraq is an example often cited during the discussion on the crime of
aggression to prove the Security Council’s political nature and inability to
determine the existence of an act of aggression. On 2 August 1992, Iraq
invaded Kuwait and the Security Council adopted several resolutions
condemning the invasion without using the term of aggression. 25 How-
ever, in this author’s view, the sanction measures taken against Iraq in
those resolutions were even more severe than those in previous resolu-
tions using the term aggression against South Africa and Israel. At the
same time, in Resolution 667 (1990), the Security Council considers “the
act of Iraq to order the closure or consular mission in Kuwait and with-
draw privileges and immunities of these missions and personals […] con-
stitute aggressive acts and flagrant violation of international law […]”. 26
After comparing the above-mentioned instances, it seems to this au-
thor that the Security Council is very cautious in selecting its wording like
‘aggressive’, ‘aggression’, ‘invasion’ or others, and it relies on compre-
22
In Security Council Resolution 326 (1973), “the Security Council is […] convinced
recent provocative and aggressive acts perpetrated by the illegal regime against Zam-
bia aggravate the situation […]”. In Security Council Resolution 387 (1976), “the Se-
curity Council [is] gravely concerned at the act of aggression committed by South Af-
rica against the People’s Republic of Angola and the violation of its sovereignty and
territorial integrity”. Other similar condemnation can be found in Security Council
Resolutions 546 (1984), 571 (1985), 568 (1985), and 572 (1985).
23
Security Council Resolution 405 (1977).
24
25
From Security Council resolutions 660 (1990) to 666 (1990).
26

hensive assessments, including factual details, intention and effect of act,

degree of intrusion, et cetera, before it reaches its conclusion.
Thirdly, some delegations argue that they do not deny the Security
Council’s competence to determine acts of aggression, but that this is not
the Council’s exclusive competence, but that both the General Assembly
and the International Court of Justice have concurrent competence. It
must be pointed out that both the General Assembly and International
Court of Justice are very different from ICC. The International Court of
Justice is a judicial body within the United Nations framework and can
only exercise its jurisdiction with the consent and acceptance of the state
concerned. On the other hand, the ICC is an independent institution out-
side United Nations system with the aim of pursuing individual responsi-
bility. The ICC may exercise its jurisdiction even without the consent of
the state concerned. Moreover, the prosecution system of the ICC follows
the Tokyo Tribunal style and not that of Nuremberg in that the prosecu-
tion is decided by a single prosecutor rather than by a prosecution com-
mittee with several prosecutors, the latter being less likely to be abused.27
To date, some influential powers or regional powers such as the USA,
Russia, China, India, Egypt and Israel have not participated in the ICC.
With only one trial completed after ten years and even more doubt ex-
pressed by some African countries, 28 the ICC has not proven its effective-
ness as expected. Comparing with the General Assembly, it has adopted
resolutions involving aggression 29 by 193 member states of the U.N.
Those resolutions entail a political and moral impact other than the likely
negative effects on the states or individuals concerned. Moreover, the
General Assembly’s role in determining aggression, if there is any, is very
restrictive since it has to terminate once the Security Council intervenes.
27
In the International Military Tribunal for the Far East, the U.S., the U.K., USSR and
China all assigned a prosecutor, each prosecutor had a vote, and would be the chair of
the prosecution committee in turn. According to such a system, all prosecution deci-
sions are made by the majority agreement of prosecutors. See JIAN Songji, “The Ret-
roactive Power for ICC to Exercise its Jurisdiction over Crime of Aggression”, in
Study of Law, 2008, vol. 9, p. 70.
28
For more discussions on this, see David Hoile, The International Criminal Court:
Europe’s Guantanamo Bay?, African Research Centre, 2010.
29
See General Assembly Resolution 377(v). See also General Assembly Resolution
2074 (xx), 17 December 1965.

The Security Council’s role in the determination of aggression is not

comparable to that of the General Assembly.
Fourthly, allowing the International Criminal Court to identify ag-
gressive behaviour will create new institutional defects. The current
amendments on the crime of aggression give the Court the competence to
determine acts of aggression. This gives the impression that the independ-
ence of the Court has been maintained, but it must be pointed out that
when the Court and the Security Council both have competence to deter-
mine acts of aggression, it is possible that they would come to different
conclusions. Under these circumstances, the amendments on the crime of
aggression are unable to co-ordinate the opposing standpoints of the Court
and the Security Council. The Security Council may find that a state has
committed acts of aggression and therefore decide to impose sanctions,
and the Court as an independent judicial institution may on the other hand
determine that an act of aggression has not taken place (even though this
is not very likely to occur). This may result in disapproval or challenge
from states towards the Security Council. And according to Article 103 of
the Charter of the United Nations the duty under the Charter takes prior-
ity, which means that ICC States Parties have to ignore the Court’s deter-
mination rather than respect it. However, if the Court rules that a state has
committed acts of aggression and the Security Council has not made a
similar determination, or if Security Council, in accordance with the
Rome Statute, simply orders the Court to suspend the investigation in
question, this will not only weaken the authority of the Court, but inhibit
any punitive measures taken against the state that has been found to have
committed an act of aggression by the Court. Until then, not only will the
international community be faced with the disorder brought on by the lack
of clear right-or-wrong standards, the fragmentation of international law
will be exacerbated which may stimulate states to more go their own
ways. In the long term, this will be harmful to preventing acts of aggres-
sion and maintaining international legal order.
3.2. Universal Jurisdiction
3.2.1. Background of the Question

In recent years, the international community has discussed intensely the
topic of universal jurisdiction. Since the end of the last century when the
United Kingdom arrested former President Augusto Pinochet of Chile

based on an extradition request from Spain, 30 western nations and human

rights organisations have been advocating universal jurisdiction for hu-
man rights cases, stating that the serious encroachment of human rights is
a crime that is a threat to the international community, that those who vio-
late human rights are the common enemy of the people, and that every
nation, as a representative of the international community, has the right to
prosecute and try such cases. On this basis, these advocates have rejected
the traditional principle of sovereign immunity.
In practice some countries that have applied ‘universal jurisdiction’
in a biased way have met with strong objections or opposition from the
affected countries, resulting in diplomatic disputes. Meanwhile, individu-
als from nations who seek to apply universal jurisdiction frequently and
actively may themselves become involved in accusations one day. For
example, officials such as former U.S. President Bush, former British
Prime Minister Blair, and former Israeli Prime Minister Sharon have been
subjected to calls for criminal investigation in Europe by human rights
organisations. But under pressure from the U.S., 31 some European coun-
tries have taken measures to adjust policy on universal jurisdiction 32 so as
30
Pinochet was originally a Chilean Army Chief of Staff. In 1973, he became president
through a military coup. In 1990, he peacefully transferred power to Irwin, the winner
of the 1989 presidential election, and was appointed as a life-long senator. In 1998,
Pinochet travelled to a hospital in United Kingdom using his diplomatic passport. At
this time, a Spanish judge issued an international order of arrest, seeking punishment
for murder and encroachment of the human rights of Spaniards during Pinochet’s
term in office. The English authorities decided to detain Pinochet. Chile raised a com-
plaint about the issue. The British courts went through several proceedings to deter-
mine whether Pinochet had immunity, and whether he should be extradited to Spain.
In the end, the British House of Lords and the Court of Appeal ruled that Pinochet
does not have immunity, and that the crimes he was alleged to have committed were
sufficient basis for his extradition. The British Ministry of the Interior refused Spain’s
request on the basis of Pinochet’s poor health, and allowed Pinochet to return to
Chile.
31
Former U.S. Secretary of Defence Rumsfeld expressed that, if Belgium did not abol-
ish the order that contained clauses referring to “the right of universal jurisdiction”,
NATO headquarters in Brussels would be moved elsewhere. See http://china.findlaw.
cn/bianhu/xingfazhishi/xsgxq/pubianguanxiaquan/1028.html, last accessed on 13 Oc-
tober 2012.
32
In March 2003, Belgium modified a 1993 order and allowed investigative institutions
to use arguments such as that the criminal act did not take place in Belgium or that the
suspect is not a citizen of or in Belgium, in order to refuse to try certain cases relating

to avoid accusation of allies. These conflicting scenarios further exposed

the double standard of universal jurisdiction. It must therefore be consid-
ered carefully.
In October 2009, the sixty-fourth session of the U.N. General As-
sembly Sixth Committee started its first debate on the principle of univer-
sal jurisdiction through a proposal raised by the representative of Rwanda
on behalf of the African Group. 33 Due to the diversity of opinion no con-
sensus could be reached. This reflects the fact that nations have different
views on the legal position and application of universal jurisdiction. The
fact that some nations advocate the application of universal jurisdiction
for certain controversial cases has generated serious concerns for other
nations.
The session of the U.N. General Assembly Sixth Committee
adopted a resolution requiring that the U.N. Secretary-General invite each
member state to provide information and opinions about the scope and
application of the principle of universal jurisdiction, including applicable
international accords, domestic laws and information obtained through the
practice of legislation. This is meant to help build consensus through the
exchange of ideas and information, and to strengthen the rule of interna-
tional law and to reach the necessary balance of stability and order in in-
ternational relations.
In 2010, the U.N. Secretary-General invited each nation to express
its opinions on universal jurisdiction, and by July he published a report
summarising these ideas. A total of 44 nations provided information and
opinions, the results of which highlighted the fact that there are still major
differences amongst states as to what universal jurisdiction entails. Re-
viewing the oral discussions held by the General Assembly over the years,
the U.K. and France are supporters of the universal jurisdiction, but in-
clined to take some self-refraining measures. For example, in the U.K., it
should be the prosecutor who decides to initiate proceedings involving
universal jurisdiction; and in France the suspect must be within French
territory in order for a case to be brought forward. In the U.S., even
though there are crimes that can be tried under universal jurisdiction such
to war crimes, crimes against humanity, and homicide. By doing this, Belgium modi-
fied the 1993 order that claimed universal jurisdiction.
33
See document A/64/452, “The scope and application of the principle of universal ju-
risdiction”.

as genocide, torture and other crimes specified in anti-terror treaties, the

country did not clearly support universal jurisdiction. It did, however,
emphasise the importance of states to share their experiences with each
other. Russia is against the excessive application of universal jurisdiction.
African and Latin American countries express that they agree with uni-
versal jurisdiction, but request that it be applied in a restricted manner.
Universal jurisdiction is an important unresolved question that the
International Court of Justice faces. In 2002, the ICJ intentionally avoided
expressing its opinions on universal jurisdiction in the Arrest Warrant
case (The Democratic Republic of Congo v. Belgium). Some judges nev-
ertheless attempted to express their views on whether universal jurisdic-
tion is in conformity with current international law. In the case of the Re-
public of Congo v. France, which is before the Court when this is being
written, one of the controversial points concerns universal jurisdiction.
The cases of Belgium v. Senegal and Germany v. Italy are also closely
entwined with questions of universal jurisdiction and immunity. The issue
of “either extradite or prosecute” which is on the agenda of the Interna-
tional Law Commission also touches on universal jurisdiction. Both the
International Court of Justice and the International Law Commission
show great caution when dealing with universal jurisdiction.
3.2.2. Review and Analysis

The prevailing view is that the concept of universal jurisdiction originates
in the consideration of jurisdiction in international law regarding the
crime of piracy.34 With the end of World War II and the occurrence of
certain major international crimes thereafter, some countries and scholars
widened the scope of application for universal jurisdiction to other serious
crimes, for example war crimes and crimes against humanity. However,
34
Customary international law dictates that universal jurisdiction may be applied to
pirates on the basis that (1) the nature of the actions that pirates partake in can be seen
to indicate that these individuals have abandoned their original national citizenship,
and have therefore become stateless individuals; (2) actions of piracy have a certain
level of mobility, therefore pirates can only be punished when the international com-
munity co-ordinates its actions; and (3) historically, each nation requires a full offen-
sive against the crime of piracy. See ZHENG Lei, “Lun Haidaozui Pubian Guanxiaq-
uan Jizhi de Juxianxing yu Biange” (Limits and Changes in Institutions Charged with
Universal Jurisdiction for the Crime of Piracy), in Zhongguo Haishangfa Niankan
(China Maritime Law Yearly), June 2009, vol. 20, issues 1 and 2.

the Eichmann case 35 and the Pinochet case are both seen as cases where
universal jurisdiction has been applied. 36 In 2001, a meeting at Princeton
University proposed some principles for universal jurisdiction, pointing
out that universal jurisdiction is applicable to “piracy, the crime of slav-
ery, war crimes, and crimes against peace, crimes against humanity,
genocide, and torture”. 37
Nations, scholars and NGOs that advocate universal jurisdiction
rely on the following theoretical bases. The first is the principle of sover-
eignty. The Permanent Court of International Justice affirmed the sover-
eign principle in the Lotus case, saying that sovereign states may act in
any way they wish so long as they do not contravene an explicit prohibi-
tion. 38 The application of this principle – an outgrowth of the Lotus case –
established the theoretical foundation of extraterritorial jurisdiction. The
second is that there exists the ‘obligation erga omnes’ or the ‘common
interests of mankind’, 39 therefore there is a necessity to exercise jurisdic-
tion over cases that infringe on the common interests of the international
community. The third is the necessity towards countering criminal activ-
ity, to ensure that criminal activity does not go unpunished and avoid al-
lowing criminals to ride above the law.
35
Adolf Eichmann was a general for Nazi Germany during World War II. In 1942, he
was assigned the task of carrying out the final plan for massacring the Jewish people.
After he was captured by the U.S. military, he managed to escape to Argentina. In
1961, Mossad operatives learned of his location, captured him, and secretly trans-
ported him to Israel.
36
“Pubian Guanxiaquan yu Guojia Zhuquan de Guanxi (4)” (The Relationship between
Universal Jurisdiction and National Sovereignty, 4), available at http://china.findlaw.
cn/bianhu/zhuanti/pubianguanxiaquan/55609_4.html, last accessed on 13 2FWREHU
2012.
37
See the attachments to the note submitted by Canada and Holland in 2001 to the U.N.
General Assembly that mention the principles proposed by the meeting at Princeton
University (A/56/667).
38
LIU Ye, “Guojifa shang de ‘Hehua Hao’ Yuanze” (The Lotus Principle and Interna-
tional Law), http://bjgy.chinacourt.org/public/detail.php?id=94739, last accessed on
15 October 2012.
39
The concept of the ‘common interests of mankind’ originates from ‘obligation erga
omnes’. In 1970 the International Court of Justice ruled in the Barcelona Traction
case that the obligations a country has toward the international society is different
from the obligations a country has toward another country, because the international
community involves important common interests.

The majority believes that universal jurisdiction is applied, or

claimed to be applied, by a state where the most serious crime is commit-
ted and when there is no connection of interests (‘link point’) between the
forum state and place of crime, nationality or residence of the suspect or
the victims or national interest. But when considering and applying re-
lated theories, we find that the international community in fact does not
have a common understanding of when ‘universal jurisdiction’ is applica-
ble, the most obvious evidence of which is that there exist two forms of
universal jurisdiction: ‘relative universal jurisdiction’ and ‘absolute uni-
versal jurisdiction’. The former requires that the suspect is found within
the territory of the forum state in order for universal jurisdiction to be ex-
ercised, so it requires some connection, namely the location where the
suspect is found. The latter does not require any connection. Clearly, there
is a significant difference between the conditions of applicability of these
two forms of ‘universal jurisdiction’ and the target to which it may be ap-
plied.
Can ‘universal jurisdiction’ actually be without limits? The author
believes that in international law only the crime of piracy is applicable to
a limitless, absolute form of universal jurisdiction (‘universal jurisdiction
in absentia’) that is free of conditions such as link points. The establish-
ment of universal jurisdiction should be limited to situations clearly al-
lowed by international law, and should also be limited by international
law. To put it in another way, absolute universal jurisdiction is permissi-
ble, in international law, to be exercised only over crimes of piracy, and
should not be universally exercised over other crimes. Absolute universal
jurisdiction, once exercised without limitation, will provoke nations to
misuse their jurisdictions, and will stimulate political abuse of such juris-
diction, causing instability in international relations. Even for the three
above-mentioned theoretical bases of universal jurisdiction, when ana-
lysed together with (absolute) universal jurisdiction, there will always be
imperfections in theory and practice.
3.2.2.1. What About Using the ‘Principle of Sovereignty’

as the Theoretical Basis of Universal Jurisdiction?
According to principles of sovereignty in international law, a nation has
jurisdiction over crimes committed within its territory, which refers to
‘the principle of territory’. Besides this, under certain circumstances, a
nation also has jurisdiction based on the nationality of the suspect (‘posi-

tive principle of territory’), the nationality of the victim (‘negative princi-

ple of territory’) or the nation’s security or other important interests (‘pro-
tective principle of territory’). Bearing in mind that the sovereignty of
each nation is equal, every nation may decide to exercise jurisdiction
based on the principles of territory or the individual or national interests.
Therefore in cases involving link points with various nations, there will
unavoidably be conflicting jurisdictions among different nations. Under
these circumstances, any nation who exercises its jurisdiction purely out
of its own will, regardless of the opinions and propositions of other na-
tions, may offend the sovereignty of other nations. This is in breach of the
principle of equality of sovereign nations, and may cause conflicts be-
tween nations.
In fact, the principle established by Lotus case has already been re-
vised and modified. In the Arrest Warrant case, the International Court of
Justice analysed the domestic law of Holland, Germany and France and
concluded that these countries do not have laws allowing for jurisdiction
over suspects that are not found within their territory. 40 In fact, the times
have changed in several respects since the Lotus case was tried.
First, International communication is getting more and more inte-
grated, and globalisation has made communication between countries
more intricate and complex. These days the activities of one nation will
affect other nations on many levels, and concepts like global governance
and co-ordination are now more ingrained among people. Arbitrary exer-
cise of sovereignty will cause the infraction of the sovereignty of other
nations.
Secondly, international criminal law permits specific judicial insti-
tutions to exercise jurisdiction over criminal activity outside of a nation’s
territory, but it does not empower any nation with that kind of jurisdic-
tion. According to the principle of sovereign equality, a nation may de-
termine and carry out jurisdiction only when it does not violate the sover-
eignty of other nations. Therefore, the establishment and exercise of juris-
diction by one nation should only be allowed when there is an appropriate
link between the case and the forum state, and should be restricted in a
reasonable way.
40
Judgment of 14 February 2002, Arrest Warrant case of 11 April 2000 (Democratic
Republic of Congo v. Belgium), available at http://www.legal-tools.org/doc/c6bb20/.

3.2.2.2. What About Taking the ‘Principle of Obligation

Erga Omnes’ (the Common Interest of Humanity)
as the Theoretical Basis of Universal Jurisdiction?
This theory seems to be very convincing, but there is some uncertainty
involved that needs to be pointed out. First of all, what are the connota-
tions and denotations of ‘the common interest of humanity’? The Interna-
tional Court of Justice has in the Barcelona Traction case put forward the
concept of ‘obligations erga omnes’ 41 and to some degree strengthened
the legal basis for ‘the common interest of humanity’. In 1970, U.N. Gen-
eral Assembly Resolution 2749 – the Declaration of Principles Governing
the Seabed and Ocean Floor – was adopted by 108 states, providing that
the deep seabed should be preserved for peaceful purposes and is the
‘common heritage of mankind’. 42 In 1982, this ‘common heritage of man-
kind’ concept was said to relate to “the seabed and ocean floor and subsoil
thereof, beyond the limits of national jurisdiction” under Article 136 of
the United Nations Convention on the Law of the Sea (‘UNCLOS’). 43
However, these concepts and the ways in which they are referred to have
neither clearly defined what is included in the ‘common interests of man-
kind’ nor established who is qualified to represent all of mankind in exer-
cising jurisdiction. Therefore, if a country claims to represent all of man-
kind in exercising jurisdiction over other countries and their citizens, re-
gardless of how morally-sound the argument may be, it still lacks legal
basis. 44 In practice, arbitrarily claiming to represent the interests of the
entire international community or of all of humanity in bringing other na-
tions to trial will only cause legislative disorder and the prevalence of
hegemonic actions.
The only consensus that the international community has reached is
that any nation may represent all of humanity in exercising jurisdiction
over acts of piracy that occur on the high seas. This is also the only crime
41
Judgment of 5 February 1970, Barcelona Traction, Light and Power Company, Lim-
ited (Belgium v. Spain), available at http://www.legal-tools.org/doc/75e8c5/.
42
UNGA Resolution 2749 (XXV), para. 1, U.N. Doc. A/RES/25/2749 (12 December
1970).
43
United Nations Convention on the Law of the Sea Art. 1, para. 1, 10 December 1982,
in UNTS, vol. 1833, p. 397.
44
Luc Reydams, “The Rise and Fall of Universal Jurisdiction”, http://papers.ssrn.com/
so13/papers.cfm?abstract-id=1553734, last accessed on 12 September 2012.

that is permitted clearly in international law. Article 105 of the United

Nations Convention on the Law of the Sea of 1982 states:
On the high seas, or in any other place outside the jurisdic-
tion of any State, every State may seize a pirate ship or air-
craft, or a ship or aircraft taken by piracy and under the con-
trol of pirates, and arrest the persons and seize the property
on board. The courts of the State that carried out the seizure
may decide upon the penalties to be imposed […].
This provision of universal jurisdiction, which is aimed at piracy,
also reflects customary international law and rules. It is worth taking note
that universal jurisdiction over piracy emphasises that it takes place “on
the high seas or any other place that is outside the jurisdiction of any
State”. This point shows that the international community is very cautious
when it comes to matters of universal jurisdiction, and works to avoid
contradictions in the jurisdictional exercise of states.
3.2.2.3. What About the Theory of Combating Criminal Activity

and Ensuring that Crimes Never Go Unpunished Being
the Theoretical Basis of Universal Jurisdiction?
Jurisdiction is an important and integral part of sovereign states. Exercis-
ing jurisdiction is equivalent to exercising sovereignty. For a state, to ex-
ercise jurisdiction over a criminal act or an individual, is to take punitive
measures on behaviours that are deemed to be wrong or harmful to the
public order or security or interests of the people of that state. Punishment
is in essence reflecting the relationship between a sovereign state and the
victimised party. Therefore, whether or not a state exercises jurisdiction is
in reality closely related to how the state makes judgments of morality, its
social conscience and desire to contribute to the public good, and also its
overall social culture. A behaviour that constitutes a crime in one state –
such as euthanasia, homosexuality and polygamy – may not necessarily
be considered a crime in the eyes of another state. Specifically because of
this, a state should not casually attempt to extend its jurisdiction over cer-
tain activities or incidents taking place in other states or towards citizens
of other countries.
When examining treaties concerning the punishment of current
transnational or international crimes – including those concerning indi-
vidual criminal responsibility for crimes in fields such as human rights
and humanitarianism – we find that the jurisdiction established by the re-

lated treaties complements the traditional jurisdictional rights of each na-

tion. The purpose is that when it is necessary – when the state in which
the criminal suspect is located or when the state in which the criminal acts
were committed or the state in which the suspect is a citizen believes that
there is a necessity to punish such criminal activity – the punishment of
the crime is made possible through the co-operation of the country in
which the suspect is located. The exercise of this kind of jurisdiction re-
quires many conditions to be met, including the following.
1. It is only exercised over specific crimes defined in international
treaties, and can only be exercised towards parties of the treaty. In
other words, being a party to a treaty is prima facie evidence of that
state agreeing that the activities indicated in the treaty are criminal,
and to combat the crimes through co-operation with other parties.
2. Under the condition that the suspect is appearing in the state’s terri-
tory and that state refuses to extradite to other states, which means
to strictly follow the principle of ‘either extradite or prosecute’.
3. Following the complementarity rule, it means to respect the priority
of the principle of territorial jurisdiction and national jurisdiction.
When a concerned state finds a suspect located within its borders, it
should immediately notify the country in which the crime was
committed or the country in which the suspect is a citizen, and do
everything possible to facilitate the extradition of the suspect to that
state. When it is necessary, it may discuss conditions for extradition
with such states.
4. There should be no exception of jurisdictional immunity, and the
rules of immunity under international law should not be violated.
According to international law, jurisdictional immunities are
granted to heads of state or government and other officials. Review-
ing provisions of treaties related to combating transnational crimes,
there is no clear rule that deprives the immunity of foreign offi-
cials. 45
45
There are stipulations in the Statute of the International Criminal Court that suggest
that having official status is unrelated to the application of the above-stated law. But
the jurisdiction of the International Criminal Court as an international judicial agency
is different from that of individual sovereign nations. The jurisdiction of the Interna-
tional Criminal Court is not that of universal jurisdiction. Since its jurisdiction is
aimed towards the crimes stipulated in specific treaties, its jurisdiction comes from

3.2.3. Case Analysis

We must be cautious when dealing with universal jurisdiction and prevent
its misuse that will cause disorder in the judicial system. There have in
practice already been many cases of abusive application of universal ju-
risdiction. The examples of such misuse show that universal jurisdiction is
always of secondary importance to political considerations, and is used to
shield those with certain political ambitions.
1. The first case of inappropriate use of universal jurisdiction can be
found in the process of combating piracy, which is already unani-
mously accepted to be target of universal jurisdiction. In recent
years, pirates originating in Somalia have become a serious prob-
lem, but no state shows willingness to solve the problem by exercis-
ing universal jurisdiction in their domestic courts. The Canadian
and Dutch navies have released pirates after capturing them. 46 This,
once again, illustrates the weakness of using a concern to ‘ensure
crimes do not go unpunished’ as a principle and basis of universal
jurisdiction.
2. The second case is the misuse of universal jurisdiction by Belgium.
Belgium issued an order of arrest against the foreign minister of
Congo, which then decided to take Belgium to the International
Court of Justice. Belgium lost the case, with the Court ruling that
this was an offence of the immunity enjoyed by the foreign minister
of Congo. In addition to this, as mentioned above, under pressure
from the U.S. and Israel, Belgium had no choice but to revise its
domestic law and add certain limitations to its exercise of universal
jurisdiction. The United Kingdom also restricted its domestic
courts’ ability to exercise universal jurisdiction against her allies.
This proves that the overriding objective of universal jurisdiction is
not purely justice-oriented. Its application is always fraught with
political motivation and may be misused through politics. 47
the transferring of sovereignty from the involved nations, and is not held automati-
cally by the Court.
46
“Somali Haidao bei Zhua hou you bei Shifang” (Somali pirates released after cap-
ture), available at http://news.sohu.com/20090420/n263487071.shtml, last accessed
on 13 2FWREHU 2012.
47
Belgian officials admit that its universal jurisdiction law (which allows for universal
jurisdiction) may be misused, and may become a tool to accomplish the political goals

3.3. Criminal Immunity of State Officials Abroad

A principle often mentioned in recent years in the field of international
criminal law, which seems to be recognised by the Rome Statute, is the
principle of ‘irrelevance of official capacity’. This is somewhat connected
to the question of the criminal immunity of state officials abroad, but the
two are not exactly the same.
3.3.1. The Institution of Immunity in International Law

The institution of immunity in international law includes state immunity,
diplomatic and consular immunities, and immunity of special missions.
There are both connections and differences among these different immu-
nities. Diplomatic immunities and immunities of special mission are com-
paratively clear because they have already been laid out rather completely
in international treaties, 48 so this chapter will not analyse them further.
When it comes to state immunity and the immunity of officials, the pri-
mary basis is customary international law. This is also a controversial is-
sue.
State immunity refers to a state being free from the administrative
or legislative jurisdiction of other countries. There are two primary
schools of thought that provide the theoretical basis for this: One is the
‘principle of sovereign equality’, which mandates that sovereigns are
equal and as such have no jurisdiction over one another. The second is the
‘principle of comity’ of states, which entails refraining from exercising
judicial powers over other states in order to encourage respectful interna-
tional relations. In practice, the former has been more readily accepted. 49
of those in power, see “Wanguo Guanxiaquan Fa Guande tai Kuan? Fang Bilishi
Zhuhua Dashi” (Is the Universal Jurisdiction Law Applied to Loosely? Interview with
the Belgian Ambassador to China), available at http://news.sohu.com/39/89/
news211148939.shtml, last accessed on 13 October 2012.
48
This is primarily referring to the Vienna Convention on Diplomatic Relations of 1961,
the Vienna Convention on Consular Relations of 1963, and the United Nations Con-
vention on Special Missions of 1969. The scope, rights and obligations of the above
conventions are relatively clear.
49
ZHANG Xiaosheng, “Guojifa shang de Tequan yu Huomian Zhidu Bijiao” (Compari-
son of the Regimes of Privilege and Immunity in International Law), available at
http://www.rmlt.com.cn/qikan/2011-03-25/18918.html, last accessed on 13 October
2012.

In practice, state immunity has meant that the court of one state
cannot try cases in which a foreign state is called to be the defendant. As
for the concept of a state, in addition to referring to the state itself, it can
also include the state’s government and institutions, as well as officials
and other representatives who represent the state in dealing with certain
matters. 50 For quite a long time after the principle of state immunity came
about there was no differentiation between a state representative’s civil or
commercial and criminal actions. In other words, all the official activities
of the officials enjoyed immunity. This point can be deduced from the
immunities enjoyed by diplomatic representatives or special missions.
As states involved themselves more and more in commercial activi-
ties and individual officials took advantage of their powers to do what
they wished without restraint, the international community gradually be-
gan to differentiate between the different actions taken by the state and
state officials. One way is to differentiate between two types of state be-
haviour, namely the behaviour of the rulers (‘act jure imperii’) and the
behaviour of the management (‘act jure gestionis’), 51 and another way is
to differentiate between normal or legal activities of officials in fulfilling
their jobs and activities that may constitute an international crime. The
former differentiation served to advocate the restricted immunity theory
of the 1960s and 1970s and encouraged it being put into practice, and the
latter affirmed principles of irrelevance of official capacity that was estab-
lished by the two international military tribunals with the end of World
War II.
After World War II, in light of its cruelty and how massively de-
structive it was, the international community began to pursue the criminal
responsibility of state leaders, government officials, and military and po-
litical leaders of the Axis Countries that were primarily responsible for
starting the war, and committing acts of genocide and crimes against hu-
manity. During the Nuremberg trials, the team of defence lawyers at the
50
United Nations Convention on Jurisdictional Immunities of States and Their Property,
2004, Article 2(1)(b).
51
Before the twentieth century, the Italian and Belgian courts had already developed a
theoretical basis for immunity grounded on this differentiation. See Francesco Fran-
cioni, “International Law as a Common Language of National Courts”, in Texas In-
ternational Law Journal, 2001, vol. 36, issue 3, p. 595. For the Belgian case, see U.
Verhoeven, “Immunity from Execution of Foreign States in Belgium Law”, Nether-
lands Year Book of International Law, 1979, vol. 10, pp. 73, 76.

time argued that the activities of the accused were acts of state. This was
rejected by the Tribunal in its judgment, stating:
[…] crimes against international law are committed by men,
not abstract entities, and only by punishing individuals who
commit such crimes can the provisions of international law
be enforced […]. 52
According to the Tribunal, only by punishing the individual who
had committed such crimes would the stipulations of international law be
effectively carried out. Article 6 (responsibility of accused) of the Interna-
tional Military Tribunal for the Far East Charter states that,
[…] neither the official position, at any time, of an accused,
nor the fact that an accused acted pursuant to order of his
government or of a superior shall, of itself, be sufficient to
free such accused from responsibility for any crime with
which he is charged, but such circumstances may be consid-
ered in mitigation of punishment if the Tribunal determines
that justice so requires.
The above judgment and the regulations laid out in the Charter of
the United Nations have not only clarified the legality of pursuing an offi-
cial’s individual responsibility in committing international crimes, it also
marks the establishment of the principle of the irrelevance of official ca-
pacity. This principle was affirmed by the U.N., General Assembly in
1946 as one of the Nuremberg Principles. 53 The Rome Statute, which was
adopted in 1998, has a similar provision stating that the rank or position
of the actor will have no effect on the criminal responsibility thus pur-
sued. 54 The above seems to make clear that, in the field of international
criminal law, state officials cannot enjoy criminal immunity for interna-
tional crimes, and are subject to jurisdiction of international tribunals.
However, has international law completely denied the criminal immunity
of state officials stationed abroad? The author believes that this conclu-
sion cannot be reached so easily. Immunities from international tribunals’
52
Antonio Cassese, “Affirmation of Principles of International Law Recognized by the
Charter of the Nuremberg Tribunal, the General Assembly resolution 95(I)”, available
at http://untreaty.un.org/cod/avl/ha/ga_95-I/ga_95-I.html, last accessed on 13 October
2012.
53
In 1946, the General Assembly adopted Resolution 95(1), “Affirmation of the Princi-
ples of International Law Recognized by the Charter of the Nuremberg Tribunal”.
54
Rome Statute, Article 27.

jurisdiction are not the same as immunities from foreign jurisdiction. Un-
der some circumstances, the criminal immunity of state officials is still
applicable. 55
3.3.2. Analysis
In discussing the criminal immunity enjoyed by state officials abroad, two
different situations need to be distinguished. One is the criminal immunity
enjoyed by state officials when abroad, and the other is the criminal im-
munity enjoyed by state officials in international courts.
3.3.2.1. Regarding Criminal Immunity Enjoyed by State Officials

in Other Countries
There is currently no treaty that clearly denies the principle of immunity
before domestic courts handling international criminal cases, regardless of
whether these are immunities enjoyed by states or state institutions. 56
Customary international law still acknowledges the immunity of a foreign
state and its representatives, that is, state officials. This can be explained
from a few different angles.
First of all, looking at the theoretical basis for the immunity enjoyed
by state officials, we find that the goal and reason for granting state offi-
cials immunity is the same as for granting diplomats or consular officials
immunity: The immunity is granted to the state which the official repre-
sents 57 with the intention that the official will be able to better carry out
his function as a representative of his state, which promotes contact be-
tween states and the stability of international relations. Therefore, as long
as there is no major change of the fundamental principle of equal sover-
eignty in the international legal system, the criminal immunity of officials
should not be denied.
55
This part does not discuss the topic of immunity enjoyed by state officials within their
own country.
56
J. Verhoeven, United Nations Treaty Series, vol. 1465, no. 24841, p. 125.
57
There are primarily three kinds of theoretical basis for diplomatic privileges and im-
munities: (1) the theory of representation; (2) the theory of professional necessity; and
(3) the theory of extraterritoriality. The former two are more widely accepted. Gong
Renren, “Historical origins of the principle of jurisdictional immunities of States”, in
China Legal Science, 1991, vol. 5, p. 90.

Secondly, certain treaties that are aimed at combating criminal ac-

tivity, such as the Convention on the Elimination of All Forms of Racial
Discrimination, the Convention against Torture, and the Convention on
the Prevention and Punishment of Crimes against Internationally Pro-
tected Persons, including Diplomatic Agents, require the punishment of
individuals who commit related crimes, and have affirmed the principle of
‘either extradite or prosecute’ to that end. However, the ‘right to prose-
cute’ (or ‘jurisdiction’) which is included in this principle should be car-
ried out only when the suspect is not extradited, with the precondition still
being that jurisdiction of the state in which the official is a citizen or the
state in which the crime was committed is respected. Moreover, under the
principle of ‘either extradite or prosecute’, even if the forum state’s juris-
diction is well-established, this does not deny the existence of immunity,
and the lack of immunity does not imply that jurisdiction is admissible. 58
Next, the immunity of state officials in foreign countries is only a
procedural immunity, and does not entail the elimination of the responsi-
bility or liability of those officials totally and thoroughly. This is to say
that, the fact that officials enjoy criminal immunity in foreign state is only
to spare them from the law enforcement procedures in that foreign state,
and does not indicate that the behaviour of the officials conforms to na-
tional laws of the forum state. The objective of granting immunity is to
maintain the stability of international relations, and is not to shield crimi-
nals. The state that assigns the officials may pursue their criminal respon-
sibility according to its law, or choose to give up the immunity of its offi-
cial so that the foreign state may exercise its jurisdiction. Therefore, even
though many international treaties that are aimed at preventing and pun-
ishing certain serious crimes have provided the principle of ‘either prose-
cute or extradite’, by which a state may extend its jurisdiction over for-
eign officials, this should not influence the immunity provided by cus-
tomary international law.
Fourth, international judicial practice has confirmed the criminal
immunity enjoyed by officials in foreign state. The International Court of
Justice affirmed that ministers of foreign affairs, heads of state and heads
of government all enjoy immunity from the criminal jurisdiction of for-
eign nations in its judgment in the Arrest Warrant case. Besides these
58
Preliminary Report on Immunity of State Officials from Foreign Criminal Jurisdic-
tion, A/CN.4/601, para. 61.

three kinds of officials, the Court did not exclude criminal immunity for
other officials in foreign states, and left room for interpretation by the in-
ternational community in accordance with existing international law. 59
After the judgment in the Arrest Warrant case, some countries continued
to confirm the principle of criminal immunity of officials in foreign states,
for example, in the United Kingdom, expanding the kind of foreign offi-
cials who can enjoy criminal immunity to other high-ranking officials
than heads of state, heads of the government, and foreign ministers, in-
cluding defence and commerce ministers. Other than this, Belgium has
also revised its national laws famous for universal jurisdiction, providing
that jurisdiction can be exercised unless international law has not been
violated. 60 In March 2012, the International Court of Justice in the case of
Germany v. Italy confirmed that the activities of German Generals tried in
an Italian domestic court were in fact international crimes, but even if one
believes that the Italian court is trying cases involving violations of jus
cogens, the immunity which is affirmed in customary international law is
not affected. By denying the immunity enjoyed by Germany’s armed
forces under customary international law, the Italian court had in fact vio-
lated Italy’s international obligation to Germany.61
3.3.2.2. The Criminal Immunity of State Officials

before International Criminal Tribunals
In comparison with the criminal immunity before foreign states, it seems
rather difficult for state officials to claim criminal immunity before inter-
national criminal tribunals, such as the two International Military Tribu-
nals, the International Criminal Tribunal for the former Yugoslavia, and
the International Criminal Court. It is particularly difficult when the state,
as national state of the official or territorial state of the crime, is a party to
the international criminal tribunal or has accepted its jurisdiction. This is
because the jurisdiction of international criminal tribunals is granted by its
State Parties, and is the result of a yielding of jurisdiction by the sover-
eign nation. Therefore, for the international criminal tribunals to exercise
jurisdiction over a certain case, it can be understood that the State Party
59
Judgment of 14 February 2002, supra note 40.
60
A/CN.4/601, para. 39.
61
Judgment of 3 February 2012 on Jurisdictional Immunities of the State (Germany v.
Italy: Greece intervening), available at http://www.legal-tools.org/doc/674187/.

has already waived criminal immunity for its officials once and for all at
the time of joining the treaty that establishes the tribunal.
The Rome Statute differentiates between criminal immunity en-
joyed by officials before foreign states and before the Court itself. As
stated in the Statute,
[…] the Court may not proceed with a request for surrender
or assistance which would require the requested State to act
inconsistently with its obligations under international law
with respect to the State or diplomatic immunity of a person
or property of a third State, unless the Court can first obtain
the cooperation of that third State for the waiver of the im-
munity. 62
This, in reality, is the legal basis for States Parties of the Rome
Statute to grant state officials of non-States Parties with immunity. For
example, after the International Criminal Court issued an arrest warrant
against Sudanese President Omar Al Bashir in 2009, he travelled to Chad
and Kenya neither of which arrested him on the basis of Article 98 of the
Rome Statute. In the Assembly of States Parties of the Rome Statute in
2009, African countries proposed to explore clarification of the relation-
ship between Article 27 and Article 98 of the Rome Statute. The driving
force behind this initiative was, on the one hand, to respond to the ‘Article
98 agreements’ concluded by the U.S. and other countries 63 and, on the
other hand, to clarify the legal duties undertaken by the States Parties to-
wards different subjects (that is, either the Court or third party) of the
treaty concerning official immunity. Although the African proposal was
not accepted at the meeting and had no opportunity to be discussed,64 it
62
Article 98(1) of the Rome Statute.
63
This refers to the bilateral agreements between the U.S. and other nations which are
aimed at avoiding the jurisdiction of the International Criminal Court over certain in-
ternational crimes that the U.S. is involved in, on the basis of Article 98(2) of the
Rome Statute. See ZHOU Zhenjie and QU Xuewu, “‘Meiguo 98 tiao Xieding’ Guo-
jifa Xiaoli Pingxi” (“America’s Article 98 Agreement” and an Analysis of the Effec-
tiveness of International Law), available at http://www.iolaw.org.cn/2009/
shownews.asp?id=3846, last accessed on 13 October 2012.
64
There are two main reasons why most nations taking part in the meeting (primarily
European countries) were unwilling to respond in a positive way: One was that they
were not willing to depreciate the legal basis for the U.S.’s ‘Article 98 agreements’;
another was that they were not willing to reopen discussions and thus damage the bal-
ance achieved in the deliberations for the Rome Statute.

has clearly proved the existence of the two different kinds of criminal
immunity of foreign officials. It also makes the point rather clear that,
even for the ICC States Parties, granting criminal immunity to the offi-
cials of a third state in accordance with international legal norm other than
the Statute is to a certain extent permitted under the Statute.

4
______
Has Non-Immunity for Heads of State Become
a Rule of Customary International Law?
LIU Daqun *
I had the privilege and honour to work with late Judge LI Haopei when I
joined the Treaty and Law Department of China’s Ministry of Foreign
Affairs more than 30 years ago. Later, I took over his position as a judge
of the Appeals Chamber of the International Criminal Tribunals for the
former Yugoslavia and for Rwanda. Judge LI Haopei’s contribution to the
development of international criminal law in China and to the work of the
United Nations ad hoc Tribunals has been invaluable. Judge LI, who was
an extremely wise and perceptive judge, as well as a scholar with an un-
paralleled understanding of international law, was a kind and gentle per-
son, respected by his colleagues for his enlightening views and admired
for his strong belief in the cause of justice. It is of particular significance
to hold FICHL LI Haopei Seminars in China, where he spent most of his
career, and in a time when international law is undergoing rapid develop-
ment, especially in the area of immunity of heads of states.
Whether heads of states have immunity before criminal tribunals
when facing prosecution of international crimes is currently a hotly de-
bated topic in both academic and judicial circles. This subject is interest-
ing as well as demanding – just as Cryer et al. aptly put it,
[…] the interplay of international criminal law and immuni-
ties is complex, and the jurisprudence and authorities have
been described as perplexing, contradictory, confused or in-
coherent. 1
*
LIU Daqun is Judge of the Appeals Chamber of the International Criminal Tribunals
for the former Yugoslavia (‘ICTY’) and Rwanda (‘ICTR’). The views expressed in
this article do not reflect the views of any organisations or governments. The author
would like to thank Mr. Chris Callan, an intern in ICTY, for his research and assis-
tance. The author would also like to express his great pleasure in contributing to the
FICHL LI Haopei Lecture Series.
1
Robert Cryer, et al., An Introduction to International Criminal Law and Procedure,
second edition, 2010, p. 532, in turn citing Rosanne van Alebeek, “The Pinochet

This chapter will address the current legal status of heads of state
immunity in relation to criminal prosecution for international crimes in
both national and international courts, in order to explore whether the
non-immunity of heads of state has become a rule of customary interna-
tional law. Any discussion on immunities in civil proceedings and state
immunity will be left aside since they are beyond the scope of this chap-
ter.
4.1. Challenge to the Rule of Heads of State Immunity

Sovereign immunity is a well-established rule in international law. In
2002, the International Court of Justice (‘ICJ’) reaffirmed the importance
of this principle in the Arrest Warrant case. Three judges in their joint
separate opinion stress that “immunities are granted […] to guarantee the
proper functioning of the network of mutual inter-State relations, which is
of paramount importance for a well-ordered and harmonious international
system”. 2 This reflects the principle of par in parem imperium non habet,
the idea that an equal has no power over an equal, establishes that one
state should not adjudicate on the conduct of another state. The principle
is imperative in facilitating positive, workable international relations be-
tween states and maintaining global political stability and security.
Heads of states have historically been seen as the personification of
the state and as a result were granted absolute immunity. This meant that
a head of state could effectively act with impunity under international
law, without fear of prosecution. The personal immunity (ratione perso-
nae), as compared to functional immunity (ratione materiae) attaches to
limited and particular personals in a state, normally the heads of state or
government as well as the Minister of Foreign Affairs in order to ensure
the freedom to conduct the relations between States. The ICJ holds that
this type of immunity applies not only in relation to official acts, but also
in relation to private acts, stating that “throughout the duration of his or
Case: International Human Rights Law on Trial”, in British Yearbook of International

Law, 2001, vol. 71, no. 29, p. 47; J. Craig Barker, “The Future of Former Head of
State Immunity After Ex Parte Pinochet”, in International and Comparative Law
Quarterly, 1999, vol. 48, p. 938.
2
International Court of Justice, Arrest Warrant of 11 April 2000 (Democratic Republic
of the Congo v. Belgium), Joint Separate Opinion of Judges Higgins, Kooijmans and
Buergenthal, 14 February 2002, p. 86, para. 75, available at http://www.legal-
tools.org/doc/23d1ec/.

Has Non-Immunity for Heads of States Become
her office, he or she when abroad enjoys full immunity from criminal ju-
risdiction and inviolability”. 3 Over time, the inviolability of heads of state
as an individual has become divorced from the inviolability of the state
itself, and recently the impunity of heads of state has been challenged.
In recent decades, with the advent of the human rights
movement, States have taken stronger and stronger steps to
prosecute international criminals. This emboldened State
practice has brought to the fore many hidden or unresolved
questions as to the boundaries between principles of ac-
countability and immunity, and has engendered a reassess-
ment and restriction of the scope of immunities. 4
In fact, this trend started as early as 1919, following the end of
World War I, when the former German Kaiser William II was indicted by
the Allies for prosecution before a special tribunal under the terms of the
Treaty of Versailles. 5 Although he was never placed on trial, this ap-
peared to herald a new approach to heads of state immunity, although it
should be noted that such trial could be only possible through the signing
of the Treaty and therefore through a waiver from Germany.
Later, after the Second World War, the International Military Tri-
bunals (‘IMT’) sitting in Nuremberg and Tokyo were established. Article
7 of the Charter of the International Military Tribunal of Nuremberg states
that:
The official position of defendants, whether as Heads of
State or responsible officials in Government Departments,
shall not be considered as freeing them from responsibility
or mitigating punishment. 6
The Nuremberg Tribunal reaffirmed this principle in its judgement
of 1 October 1946, stating that:
The principle of International Law, which under certain cir-
cumstances protects the representatives of a State, cannot be
applied to acts which are condemned as criminal by Interna-
3
International Court of Justice, Arrest Warrant of 11 April 2000 (Democratic Republic
of the Congo v. Belgium), Judgement of 14 February 2002, para. 54, available at
http://www.legal-tools.org/doc/c6bb20/.
4
Supra note 1.
5
Treaty of Versailles, Article 227, 28 June 1919.
6
United Nations, Charter of the International Military Tribunal Article 7, 8 August
1945, in UNTS, vol. 82, p. 284.

tional Law. The authors of these acts cannot shelter them-

selves behind their official position in order to be freed from
punishment in appropriate proceedings. 7
In 1950, the United Nations General Assembly adopted the “Princi-
ples of International Law Recognised in the Charter of the Nuremberg
Tribunal and in the Judgment of the Tribunal”. 8 Of particular note, Prin-
ciple III, which as Professor Cassese argues has come to acquire the status
of customary international law, 9 states:
The fact that a person who committed an act which consti-
tutes a crime under international law acted as Head of State
or responsible Government official does not relieve him
from responsibility under international law. 10
The ad hoc tribunals constituted by the United Nations Security
Council reapplied this principle, with the identical phrasing of both Arti-
cle 7(2) of the International Criminal Tribunal for the former Yugoslavia
(‘ICTY’) Statute and Article 6(2) of the International Criminal Tribunal
for Rwanda (‘ICTR’) Statute stating that the “official position of any ac-
cused person, whether as Head of State or Government or as a responsible
Government official, shall not relieve such person of criminal responsibil-
ity nor mitigate punishment”. 11
The ICTY held that these provisions were declaratory of customary
international law:
Individuals are personally responsible, whatever their offi-
cial position, […] even if they are heads of State or govern-
7
The Trial of German Major War Criminals, Proceedings of the International Military
Tribunal sitting at Nuremberg, Part 22 (22 August 1946 – 1 October 1946), para. 447.
8
General Assembly, Official Records, fifth session, Supp. No. 12, U.N. Doc. A/1316
(1950).
9
Antonio Cassese, International Criminal Law, second edition, Oxford University
Press, 2008, p. 305.
10
Documents of the second session including the report of the Commission to the Gen-
eral Assembly, Yearbook of International Law Commission, U.N. Doc.
A/CN.4/SER.A/1950/Add.1, 6 June 1957, vol. 2, no. 1, p. 375, available at
http://untreaty.un.org/ilc/publications/yearbooks/1950.htm, last accessed on 30 July
2012.
11
Statute of the International Criminal Tribunal for the former Yugoslavia, Art. 7(2),
Security Council (‘S.C.’) Res. 827, U.N. Doc. S/Res/827, 25 May 1993; Statute of the
International Criminal Tribunal for Rwanda, Art. 6(2), S.C. Res. 955, U.N. Doc.
S/Res/955, 8 November 1994.

ment ministers: Article 7(2) of the Statute and article 6(2) of

the Statute of the International Criminal Tribunal for
Rwanda […] are indisputably declaratory of customary in-
ternational law. 12
In its Draft Code of Crimes against the Peace and Security of Man-
kind, 13 the International Law Commission adopted the same principle.
Article 7 of the Draft Code, entitled “Official Position and Responsibility”
states that the “official position of an individual who commits a crime
against the peace and security of mankind, even if he acted as Head of
State or Government, does not relieve him of criminal responsibility or
mitigate punishment”.
The Special Court for Sierra Leone (‘SCSL’) came to the conclu-
sion that “the principle seems now established that the sovereign equality
of states does not prevent a Head of State from being prosecuted before an
international criminal tribunal or court”. 14
Similarly, the International Criminal Court (‘ICC’) itself concluded
that:
The international community’s commitment to rejecting im-
munity in circumstances where international courts seek ar-
rest for international crimes has reached a critical mass. If it
ever was appropriate to say so, it is certainly no longer ap-
propriate to say that customary international law immunity
applies in the present context. 15
12
Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Judgment, 10 December 1998,
para. 140, available at http://www.legal-tools.org/doc/e6081b/; see also Prosecutor v.
0LORãHYLü, Case No. IT-99-37-PT, Decision on Preliminary Motions, 8 November
2001, para. 28, available at http://www.legal-tools.org/doc/f15771/.
13
Report of the Commission to the General Assembly on the work of its forty-eighth
session, 1996, 2(2), in Yearbook of International Law Commission vol. 1, no. 26,
U.N. Doc. A/CN.4/SER.A/1996/Add.1, Part 2, 1996, available at http://untreaty.un.
org/ilc/publications/yearbooks/1996.htm, last accessed on 30 July 2012.
14
Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-01-I-059, Decision on
Immunity from Jurisdiction, 31 May 2004, para. 52, available at http://www.legal-
tools.org/doc/3128b2/.
15
Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision
Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Ma-
lawi to Comply with the Cooperation Requests Issued by the Court with Respect to
the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, 12 December 2011, para.
42, available at http://www.legal-tools.org/doc/476812/.

It would be tempting to use Professor Cassese’s words to conclude that:

In the present international community respect for human
rights and the demand that justice be done wherever human
rights have been seriously and massively put in jeopardy,
override the principle of respect for state sovereignty. The
new thrust towards protection of human dignity has shattered
the shield that traditionally protected state agents. 16
In international courts and tribunals, “practice has been consistent,
in that no serving head of state has been recognised as being entitled to
rely on jurisdictional immunities”. 17 This is especially true for the con-
tracting States Parties to the Rome Statute of the International Criminal
Court (‘Rome Statute’ or ‘ICC Statute’). With the ratification of the Rome
Statute, they have accepted all the provisions in the Statute, including Ar-
ticle 27 on the irrelevance of official capacity.
4.2. Immunity before National Courts

Considering what has already been said about state sovereignty and the
idea that one state should not adjudicate on the conduct of another state,
the position on immunities taken by national courts, which exist on a
horizontal level, is necessarily different from that of international courts
or tribunals which operate on a vertical level. With respect to national
criminal courts, “the operating principle in general international law is
that a serving head of state is entitled to absolute immunity from the juris-
diction of such courts, unless it has been waived by the state con-
cerned”. 18 Sands, acting as amicus curiae before the Special Court for
Sierra Leone (‘SCSL’), argued that “before a national criminal court, a
serving head of state is entitled to immunity under customary interna-
tional law, even in respect of international crimes”. 19
16
Antonio Cassese, 2008, supra note 9, p. 308.
17
The Prosecutor v. Charles Ghankay Taylor, Case SCSL-2003-01-I, Submissions of
the Amicus Curiae on Head of State Immunity, para. 2, available at http://www.legal-
tools.org/doc/fdc405/.
18
This question was at the heart of the decision by the SCSL in Prosecutor v. Charles
Ghankay Taylor, Case No. SCSL-03-01-I-059, Decision on Immunity from Jurisdic-
tion, 31 May 2004, para. 52, available at http://www.legal-tools.org/doc/3128b2/.
19
The Prosecutor v. Charles Ghankay Taylor, Case SCSL-2003-01-I, Submissions of
the Amicus Curiae on Head of State Immunity, para. 118(1), available at http://www.
legal-tools.org/doc/fdc405/.

In the Arrest Warrant case, the ICJ made very plain that customary
international law provided for absolute immunity for incumbent heads of
state before foreign national courts, even where they were accused of in-
ternational crimes. It said that:
The Court has carefully examined State practice, including
national legislation and those few decisions of national
higher courts […]. It has been unable to deduce from this
practice that there exists under customary international law
any form of exception to the rule according immunity from
criminal jurisdiction and inviolability to incumbent Ministers
for Foreign Affairs [or by analogy to heads of state], where
they are suspected of having committed war crimes or
crimes against humanity. 20
It further said that:
The Court has also examined the rules concerning the im-
munity or criminal responsibility of persons having an offi-
cial capacity contained in the legal instruments creating in-
ternational criminal tribunals […]. It finds that these rules
likewise do not enable it to conclude that any such an excep-
tion exists in customary international law in regard to na-
tional courts. 21
This proposition found support from Lord Browne-Wilkinson in Pinochet
(No. 3) who, on this point, explained that “[i]t is a basic principle of inter-
national law that one sovereign state does not adjudicate on the conduct of
a foreign state”. 22
With respect to the proposition that incumbent heads of state have
absolute personal immunity even if accused of committing an interna-
tional crime,
Judicial opinion and state practice on this point are unani-
mous, and no case can be found in which it was held that a
state official possessing immunity ratione personae is sub-
ject to the criminal jurisdiction of a foreign state when it is
20
Supra note 3, 2002, para. 58.
21
Ibid.
22
House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Oth-
ers, ex parte Pinochet Ugarte (No. 3), 2000, 1 AC 147, para. 201.

alleged that he or she has committed an international

crime. 23
It is a requirement of customary international law that a domestic
court of one state must respect the immunity of the heads of another state,
unless the second state waives this immunity. In Hissène Habré case be-
fore the domestic court of Senegal, Mr. Hissène Habré, the former head of
state of Chad, did not benefit from any immunity. In an October 2002 let-
ter to the Belgian judge investigating the charges against Habré, Chad’s
justice minister, Djimnain Koudj-Gaou, wrote, “Hissène Habré cannot
claim to enjoy any form of immunity from the Chadian authorities”. Ac-
cording to the ICJ, state representatives “cease to enjoy immunity from
foreign jurisdiction if the State which they represent or have represented
decides to waive that immunity”. 24
In the relationship between States Parties to the ICC Statute, one
State Party may abrogate the head of state immunity of another State
Party in order to fulfil its obligations under the Rome Statute. When a
state ratifies the ICC Statute, it accepts all the obligations of the statute,
including Article 27, which provides that heads of state of contracting
parties are not immune from prosecution under the Rome Statute. Article
27(2) states that immunities, “whether under national or international
law”, shall not bar the Court from exercising its jurisdiction. This is par-
ticularly relevant to the process of arresting and surrendering indictees – if
Article 27 applied only to trials before the ICC and not to the ability of
national authorities from States Parties for the trial of the accused and for
the implementation of arrest warrants, the whole structure of the ICC
Statute would be meaningless.
As for the relationship between a contracting party and a non-
contracting state, it is submitted that the immunity of officials from non-
contracting states must still be respected under customary international
law by domestic courts seeking to implement ICC arrest warrants, since
the ICC Statute, as a treaty, cannot remove immunity of non-contracting
states. According to Article 34 of the Vienna Convention on the Law of
Treaties (‘VCTL’), “a treaty does not create either obligations or rights
23
Dapo Akande, “International Law Immunities and the International Criminal Court”
(hereinafter ‘Immunities and the ICC’), in American Journal International Law, 2004,
vol. 98, p. 411.
24

for a third State without its consent”. Although, Article 38 of the VCTL
does not preclude “a rule set forth in a treaty from becoming binding upon
a third State as a customary rule of international law, recognized as
such”, 25 non-immunity of the heads of state has not yet become a rule of
customary international law.
4.3. Immunity of the Head of State before International Courts

and Tribunals
The immunity of heads of states before international courts and tribunals
is a very complicated issue. The recent case law in this area may be a
good start for comments.
On 12 December 2011, the Pre-Trial Chamber (‘PTC’) of the ICC
rendered the Decision Pursuant to Article 87(7) of the Rome Statute on
the Failure by the Republic of Malawi to Comply with the Cooperation
Requests Issued by the Court with Respect to the Arrest and Surrender of
Omar Hassan Ahmad Al Bashir. 26 In the decision, having purportedly
considered all the existing evidence, the Pre-Trial Chamber held “that
customary international law creates an exception to Head of State immu-
nity when international courts seek a Head of State’s arrest for the com-
mission of international crimes”. 27 In support of this proposition, the PTC
made a number of assertions. First it stated that “immunity for Heads of
State before international courts has been rejected time and time again
dating all the way back to World War I”. 28 Second, it stated that “there
has been an increase in Head of State prosecutions by international courts
in the last decade [indicating that] initiating international prosecutions
against Heads of State [has] gained widespread recognition as accepted
practice”. 29 Third, it stated that “the Statute now has reached 120 States
Parties in its 9 plus years of existence, all of whom have accepted having
25
See Articles 34 and 38 of the Vienna Convention of Law of Treaties.
26
Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision
Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Ma-
lawi to Comply with the Cooperation Requests Issued by the Court with Respect to
the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, 12 December 2011,
available at http://www.legal-tools.org/doc/476812/.
27
Ibid. para. 43.
28
Ibid. para. 38.
29
Ibid. para. 39.

any immunity they had under international law stripped from their top
officials”. 30 Fourth, it said that since 120 states “have ratified this Statute
and/or entrusted the Court with exercising ‘its jurisdiction over persons
for the most serious crimes of international concern’”, it would be “fa-
cially inconsistent” for immunity to overrule this purpose. 31
With due respect, I would like to make some comments on the find-
ings of the PTC of the ICC. First, while it is reasonable to conclude that
an individual head of state cannot escape criminal responsibility and that
this can be considered a rule of customary international law, it does not
mean that person no longer has immunity from the jurisdiction of the tri-
bunal. As Akande writes, to “say that official capacity does not exclude
criminal responsibility is not necessarily to say that the person may not be
immune from the jurisdiction of particular tribunals”. 32 After all, immu-
nity acting as a procedural bar to prevent jurisdiction, does not pronounce
on the legality or illegality of a particular act. It is submitted that the exis-
tence of a right does not necessarily mean that this right may be exercised.
Although the subject matter jurisdiction of the ICC covers the interna-
tional crimes listed in the Statute, the exercise of this jurisdiction might be
barred by several factors, inter alia, head of state immunity.
The ICC’s second argument is that:
Subsequent to 14 February 2002, international prosecutions
against Charles Taylor, Muammar Gaddafi, Laurent Gbagbo
and the present case [Al Bashir] show that initiating interna-
tional prosecutions against Heads of State have gained wide-
spread recognition as accepted practice. 33
With respect, the use of the term “widespread recognition” should be
taken with a grain of salt. After all, this is something of a circular argu-
ment given that Muammar Gaddafi, Laurent Gbagbo and Al Bashir were
30
Ibid. para. 40.
31
Ibid. para. 41, citing Rome Statute of the International Criminal Court Art. 1, 17 July
1998, in UNTS, vol. 2187, p. 3 (hereinafter ‘Rome Statute’).
32
Dapo Akande, “ICC Issues Detailed Decision on Bashir’s Immunity (…At long
Last…) But Gets the Law Wrong”, in EJIL: Talk!, 5 December 2011, available at
http://www.ejiltalk.org/icc-issues-detailed-decision-on-bashir%e2%80%99s-immuni
ty-at-long-last-but-gets-the-law-wrong/, last accessed on 13 October 2012 (hereinafter
‘ICC Gets the Law Wrong’).
33
Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, para. 39,
supra note 26.

indicted by the ICC itself, albeit under a Security Council Referral. Fur-
ther, at least in the case of Gaddafi and Gbagbo, it is arguable that they
had lost their mandate for power by popular vote and would have had
their immunity waived in any case. This leaves the case of Charles Taylor
indicted as a serving head of state, which, by itself can hardly be used as
widespread recognition of accepted practice. Moreover, the reasoning in
the decision of the Special Court for Sierra Leone (‘SCSL’) has some
fundamental flaws, since the SCSL only relies on its “truly international”
nature and the immunity enjoyed by the sitting head of state according to
international law does not apply before an international criminal court. As
a matter of fact, the SCSL was not established by the Security Council
pursuant to Chapter VII, as was the case with the ICTY and ICTR. In-
stead, the SCSL owes its existence to the treaty signed by the United Na-
tions and the Government of Sierra Leone. Liberia was not a party to the
treaty and did not waive the immunity of her head of state. The “truly in-
ternational nature” of the Court can therefore hardly be a legitimate justi-
fication to abrogate the immunity of the heads of state of non-contracting
states.
The ICC’s conclusion that there is widespread recognition of the
practice of initiating prosecutions against heads of state is all the more
troubling considering that the PTC bases its third argument on the weight
of state practice, pointing to the 120 States Parties to the Rome Statute, all
of whom “have accepted having any immunity they had under interna-
tional law stripped from their top officials”. 34 It is true that those 120
States Parties have renounced the immunity of their own heads of state,
but it would be a mistake to conclude that there is enough evidence of
state practice to establish a new customary international law rule binding
on all. As Schabas states, “the Court may have more than half the States
in the world, but it does not represent half the population of the world”.35
Akande emphasises the importance of this point, stating:
[…] that it is only parties to the ICC Statute that have waived
the international law immunities […] of their senior officials
[…] nothing in the Statute can affect the immunities that the
34
Ibid., para. 40.
35
William A. Schabas, Obama, Medvedev and Hu Jintao may be Prosecuted by Interna-
tional Criminal Court, Pre-Trial Chamber Concludes, PhD Studies in Human Rights,
15 December 2011, available at http://humanrightsdoctorate.blogspot.com/2011/12/
obama-medvedev-and-hu-jintao-may-be.html, last accessed on 13 October 2012.

officials of nonparties would otherwise enjoy. Accordingly,

Article 98 of the Statute represents an instruction to the
Court and to ICC parties not to interfere with those officials
of nonparties who ordinarily possess immunity in interna-
tional law. 36
Article 98(1) of the ICC Statute states:
The Court may not proceed with a request for surrender or
assistance which would require the requested State to act in-
consistently with its obligations under international law with
respect to the State or diplomatic immunity of a person or
property of a third State, unless the Court can first obtain the
cooperation of that third State for the waiver of the immu-
nity. 37
Indeed, the existence of both Article 27(2) and Article 98 of the Rome
Statute may be a tacit acceptance by the drafters that the non-immunity of
the head of state is not a rule of customary international law, as it gives
deference to those non-States Parties.
Even among the States Parties to the Rome Statute, there are sig-
nificant differences of opinion as to heads of state immunity, and there-
fore evidence of opinio juris negates the PTC’s evidence of widespread
state practice to a certain extent. For example, in the wake of the Pre-Trial
Chamber’s decision, the African Union Commission issued a press re-
lease 38 disagreeing with the decision. The African Union called on the
Security Council to suspend the accusations, and that the Arab League
also condemned the ICC’s actions. 39 This is quite a significant show of
36
Immunities and the ICC, 2004, supra note 23, p. 433.
37
Rome Statute, supra note 31.
38
Press Release, African Union Commission, On the decisions of Pre-Trial Chamber I
of the International Criminal Court (ICC) pursuant to Article 87(7) of the Rome Stat-
ute on the alleged failure by the Republic of Chad and the Republic of Malawi to
comply with the Cooperation Requests issued by the Court with respect to the Arrest
and Surrender of President Omar Hassan Al Bashir or the Republic of The Sudan, Af-
rican Union Press Release No. 002/2012, 9 January 2012, available at www.au.int/
en/sites/default/files/PR-%20002-%20ICC%20English.pdf, last accessed on 13 Octo-
ber 2012.
39
See http://news.bbc.co.uk/2/hi/7517393.stm, last accessed on 13 October 2012.

dissent toward the ICC’s argument. According to Akande, 40 the PTC also
fails to have regard to the national legislation of the States Parties, much
of which draws a distinction between the immunity of the States Parties to
the Statute and the immunities of the non-States Parties. This must further
weaken the reasoning of the ICC.
While the ICJ in the Arrest Warrant case was seized of the question
of the immunity of a Senior Official before a national court, it did make
some comments, which suggested that immunity would not necessarily be
a bar before international courts or tribunals. It stated that:
The immunities enjoyed under international law by an in-
cumbent or former Minister for Foreign Affairs do not repre-
sent a bar to criminal prosecution in certain circumstances
[…] an incumbent or former Minister for Foreign Affairs
may be subject to criminal proceedings before certain inter-
national criminal courts, where they have jurisdiction. 41
It even went on to say that “Examples include the International
Criminal Tribunal for the former Yugoslavia, and the International Crimi-
nal Tribunal for Rwanda […] and the future International Criminal Court
created by the 1998 Rome Convention”. 42 On the surface, the ICJ ap-
peared to draw a clear distinction between the level of immunity before a
national court and the level of immunity before an international court.
This has been read by some to mean that international tribunals must
automatically overrule immunities. Such a reading would have been op-
posed by Judge Shahabuddeen, however, who stated in a case before the
ICTY, “In my view, however, there is no substance in the suggested
automaticity of disappearance of the immunity just because of the estab-
lishment of international criminal courts”. 43
On closer examination, the ICJ’s statement appears to do nothing
more than to confirm that specifically where an international court has
jurisdiction, it is possible to remove immunities from a head of state, es-
40
Dapo Akande and Sangeeta Shah, “Immunities of State Officials, International
Crimes and Foreign Domestic Courts”, in European Journal of International, 2010,
vol. 21, Law 815.
41
42
Ibid.
43
Prosecutor v. Krstiü, Case No. IT-98-33-A, Decision on Application for Subpoenas,
Dissenting Opinion of Judge Shahabuddeen, 1 July 2003, para. 11, available at
http://www.legal-tools.org/doc/7635c3/.

pecially in the case where the head of state of a State Party to the Rome
Statute is indicted by the ICC. It does not explicitly say that immunities
no longer exist before any international courts and tribunals, in particular
with regard to non-contracting states.
Even if one were to assume that the ICJ meant to imply that there
may be no head of state immunity before an international tribunal, its fail-
ure to fully define what constitutes an international court remains prob-
lematic. Indeed, taken to its full conclusion, no one could say that what
Schabas hypothesises may not be true:
[…] if there is no immunity before any international criminal
court […] would it be possible for Nauru, Monaco, Andorra,
[…] and the Palestinian Authority to join together and create
an international criminal tribunal where the President of the
United States would be stripped of the immunity he would
otherwise possess before the national courts of those coun-
tries? 44
This might seem far-fetched, but undeniably there remain signifi-
cant doubts over the status of head of state immunity in international law.
4.4. The Difference between the International ad hoc Tribunals

and the ICC
When discussing the effectiveness of the international tribunals, as well as
the issue of head of state immunity, it is normal to compare the situation
of the ICTY and ICTR with that of the ICC. But in practice they are quite
different. There are great differences in the creation of the ICTY, ICTR
and ICC, which means that they cannot in general be considered like for
like. The ICTY and ICTR were established by Security Council resolu-
tions pursuant to Chapter VII of the U.N. Charter, and they are regarded
as the subsidiary organs of the Security Council. Therefore, the ICTY and
ICTR enjoy a legal basis that rests on Chapter VII of the U.N. Charter.
Their judges can and have issued binding orders to states. When
conducting statutory investigations on the territory of states, the
prosecution services of these Tribunals have not sought permission as
44
Schabas, 2011, supra note 35.

such from the states concerned. Under Article 25 of the U.N. Charter, 45 all
U.N. member states are obliged to accept and implement the decisions of
the Security Council adopted pursuant to Chapter VII, and this obligation
prevails over other treaty obligations in accordance with Article 103 of
the U.N. Charter. 46
In contrast, the ICC cannot base its orders and decisions on Chapter
VII of the U.N. Charter. The implementation of its work depends entirely
on state co-operation, and three permanent members of the U.N. Security
Council – China, Russia and the United States, among a number of
powerful states, are not members of the ICC system. While the ICTY and
ICTR established by the Security Council may execute its mandate under
Chapter VII of the U.N. Charter, the ICC can only occasionally rely on
the Council, and even not to the same extent.
Article 87(7) of the ICC Statute provides that:
[w]here a State Party fails to comply with a request to coop-
erate by the Court contrary to the provisions of this Statute
[…] the Court may make a finding to that effect and refer the
matter to the Assembly of States Parties or, where the Secu-
rity Council referred the matter to the Court, to the Security
Council.
In practice, however, the extent to which the Security Council will
take action on these referrals remains to be seen. On 27 August 2010 and
on 12 May 2011, Pre-Trial Chamber I of the ICC issued three decisions
informing the Security Council and the Assembly of States Parties to the
Rome Statute about Omar Al Bashir’s visits to the Republic of Kenya, the
Republic of Chad and Djibouti, “in order for them to take any measure
they may deem appropriate”. 47 On 25 October 2010 and on 1 December
2010, the Judges also issued two decisions requesting the Republic of
Kenya and the Central African Republic to inform the Chamber about any
45
Article 25 of the U.N. Charter reads: “The Members of the United Nations agree to
accept and carry out the decisions of the Security Council in accordance with the pre-
sent Charter”.
46
Article 103 of the U.N. Charter reads: “In the event of a conflict between the obliga-
tions of the Members of the United Nations under the present Charter and their obli-
gations under any other international agreement, their obligations under the present
Charter shall prevail”.
47
Report of the International Criminal Tribunal, United Nations General Assembly,
sixty-sixth session, 19 August 2011, A/66/309, para. 25.

problem which would impede or prevent the arrest and surrender of Omar
Al Bashir in the event that he visited these countries. 48 To date, the Secu-
rity Council has taken no action at all in this matter. “In other words, the
Security Council has not given the ICC a carte blanche in the matter of
judicial cooperation”. 49
In contrast, the ICTY, the ICTY indicted 161 suspects and all of
them have been arrested and surrendered to the seat of the Tribunal own-
ing to the co-operation of all the states in the world. In the case of non co-
operation, the Security Council did take action (although it is far from a
firm precedent) to compel the former Yugoslavia to “cooperate fully” 50
with the ICTY, which leads to the arrest and transfer of the President of
Serbia and MonWHQHJUR6ORERGDQ0LORãHYLü, to The Hague.
4.5. Security Council Referrals

The increasing prosecution of sitting heads of states before the ICC seem-
ingly owes much to the process of Security Council referrals to the ICC in
conjunction with Chapter VII of the U.N. Charter and Article 13(b) of the
ICC Statute.
Referrals from the Security Council have been the most effective
way for the ICC to have jurisdiction over the sitting head of state of a
non-contracting state to the ICC. To date, the ICC has issued arrest war-
rants for two sitting heads of states, Sudanese President Al Bashir and
Gaddafi of Libya, following UNSC resolutions referring the situations in
Darfur and Libya to the Court. But neither was arrested and transferred to
The Hague. One of the fugitives even travelled to several countries, some
of which are States Parties to the ICC, and took part in many international
conferences. 51 Under the Security Council referrals, there will be two sce-
narios, the prosecution and trial before the ICC and arrest and surrender of
the fugitives to the seat of the Court, respectively involving two kinds of
48
ICC Press Release, 19 October 2011, ICC-CPI-20111019, PR 733.
49
Paola Gaeta, “Does President Al Bashir Enjoy Immunity From Arrest?”, in Journal of
International Criminal Justice, vol. 7, May 2009, pp. 315-332.
50
S.C. Res. 1199, on the situation in Kosovo (FRY), para. 13, U.N. Doc. S/RES/1199,
23 September 1998.
51
BBC News Africa, “Sudan’s Bashir offers help to Libya during criticised visit”, 7
January 2012, available at http://www.bbc.co.uk/news/world-africa-16454493, last
accessed on 30 July 2012.

states, the States Parties to the ICC Statute and the non-contracting par-
ties.
The ICC, in its decision to issue an arrest warrant for Al Bashir,
stated that “the Security Council […] has […] accepted that the investiga-
tion into the said situation, as well as any prosecution arising therefrom,
will take place in accordance with the statutory framework provided for in
the Statute”. 52 In other words, if a referral is made to the ICC, the Rome
Statute provisions will become operative on the State concerned, regard-
less of whether it is a State Party to the Rome Statute. If the fugitive falls
within the jurisdiction of the ICC, the ICC will apply Article 27 in every
case referred. In effect those individuals indicted by the ICC after a situa-
tion has been referred would not be entitled to claim head of state immu-
nity as a bar to jurisdiction before the ICC, even if they are not from
States Parties.
Therefore, the point remains that the key state, that is, the state to
which the head of state belongs, is bound to comply with the Court. If it is
a State Party to the ICC, it is bound by its treaty obligations. If it is a non-
contracting state, it is bound by the primacy of the U.N. Charter and by
Articles 25 and 103 of the U.N. Charter to accept and carry out the deci-
sions of the Security Council. Consequently the Rome Statute (including
Article 27) will apply to that State, meaning that a sitting head of state can
be legally indicted and subsequently will not be entitled to claim immu-
nity as a bar to jurisdiction before the ICC.
Furthermore, it is generally understood that the Security Council
may affect the rights of states when taking measures of which it deems to
be necessary for the maintenance of international peace and security. 53
Consequently, the Security Council has the power to “decide explicitly or
by implication that even immunities ratione personae do not constitute a
bar to the cooperation of States in the execution of requests made by the
52
Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09-3, Decision
on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad
Al Bashir (Public Redacted Version), 4 March 2009, available at http://www.legal-
tools.org//e79f78/.
53
Article 41 of the U.N. Charter reads: “The Security Council may decide what meas-
ures not involving the use of armed force are to be employed to give effect to its deci-
sions, and it may call upon the Members of the United Nations to apply such meas-
ures”.

Court for arrest and surrender”. 54 “It is generally accepted that the Secu-
rity Council in the exercise of its powers under Chapter VII of the U.N.
Charter is competent to remove the immunity of serving heads of State”.55
This view is reinforced by the proposition that “[b]y referring a situation
[…] the Security Council vests the ICC with the necessary authority to
exercise its jurisdiction […] and thereby makes article 27 applicable to
office-holders of non-States parties”. 56
As for the arrest and surrender of the fugitives, the “statutory
framework provided for in the Statute” also indicates the application of
Article 98 for international co-operation, especially with the non-
contracting state to the ICC Statute. In such case, the ICC should first ob-
tain the co-operation of the state to which the indictee belongs for the
waiver of the immunity.
As mentioned before, the ICC was set up by a treaty, which theo-
retically, only has the binding force over the States Parties, but not over
the non-contracting states. As one scholar explains, a “referral by the Se-
curity Council is simply a mechanism envisaged in the Statute to trigger
the jurisdiction of the ICC: it does not and cannot turn a state non-party to
the Statute into a state party”. 57 Nothing in the Statute supports the view
that a referral by the Security Council turns the ICC into a subsidiary or-
gan of the Security Council, as is the case with the ICTY and the ICTR.
The obligations of States Parties to co-operate with the ICC remain ‘only’
treaty obligations, irrespective of how the jurisdiction of the Court has
been triggered, including in the case of a Security Council referral. 58
54
Claus Kress and Kimberly Prost, “Article 98 (Cooperation with respect to waiver of
immunity and consent to surrender)”, in Otto Triffterer (ed.), Commentary on the
Rome Statute of the International Criminal Court: Observers’ Notes, Article by Arti-
cle, second Edition, 2008, p. 1613.
55
Dapo Akande, “The Bashir Indictment: Are Serving Heads of State Immune from
ICC Prosecution?”, in Oxford Transitional Justice Research Working Paper Series,
30 July 2008, p. 2, available at www.csls.ox.ac.uk/documents/Akande.pdf, last ac-
cessed on 13 October 2012.
56
Tilman M. Dralle, “The Legal Nature of Security Council Referrals to the ICC and
Muammar Gaddafi’s Immunity from Arrest”, June 2011, p. 3, available at
http://www.tilman-dralle.de/pdf/Gaddafi_Immunity_International_Criminal_Court_
Security_Council_Referral.pdf, last accessed on 13 October 2012.
57
Supra note 46, p. 324
58
Supra note 46.

It is submitted that the Statute will only be binding where the Secu-
rity Council expressly requires all the member states of the United Na-
tions to comply with ICC requests, in which case Article 103 of the U.N.
Charter requires that member States give primacy to the obligations under
the U.N. Charter. In every referral to date, the Security Council has ex-
pressly required the State of which the head of state is a national comply
with the ICC requests, 59 without issuing the similar requests to the non-
contracting states to the ICC Statute. According to paragraph 2 of Secu-
rity Council Resolution 1593 (2005), only “Sudan and all the parties to
the conflict” shall co-operate fully with the Court, while other states and
regional and international organisations are just “urged” to co-operate
with the ICC, which is not mandatory.
If the Security Council would like to make an arrest warrant effec-
tive, it may adopt a resolution requesting all states, including non-
contracting states, to co-operate with the ICC and surrender the fugitives
to the ICC. This might be the only effective way to compel a non-
contracting state to carry out such an arrest warrant.
4.6. Conclusion
Sovereign immunity is a well-established rule of international law. Un-
doubtedly, there has been and continues to be a change in the balance be-
tween the law of immunities and international criminal law, in favour of
the latter. The ICC was not wrong to point out that there are a greater
number of prosecutions against heads of state. However, with significant
doubts over the extent of state practice and opinio juris in this regard, it
cannot yet be said that non-immunity for heads of state has become a rule
under customary international law.
Taking into account customary international law and the latest de-
velopments in this area, if an indictee falls under the domestic jurisdiction
of a state, and both that state and the state to which the indictee belongs
are contracting parties to the ICC Statute, the host state may refuse the
indictee’s claim of immunity because of its treaty obligation under the
Statute and the principle of complementarity. If the host state is a con-
tracting party to the ICC Statute, while indictee is from a non-contracting
59
See, e.g., S.C. Res. 1593, para. 2, U.N. Doc. S/RES/1593, 31 March 2005 (stating that
“the Government of Sudan […] shall cooperate fully with and provide any necessary
assistance to the Court and the Prosecutor pursuant” [emphasis added]).

state, it remains the case that head of state immunity under customary in-
ternational law takes precedence over international criminal law unless
the indictee’s state waives her immunity, taking into consideration the
findings of the ICJ in the Arrest Warrant case. If an indictee was brought
before an international tribunal such as ICC, which has been given the
mandate to disregard such immunity, the claim of immunity may probably
be rejected, regardless of whether the indictee is from a contracting party
to the ICC Statute. Finally, regarding the arrest and surrender of fugitives
to the ICC, if both the requested state and the third state are contracting
parties to the Statute, they should “co-operate fully with the Court in its
investigation and prosecution of crimes within the jurisdiction of the
Court”. Especially, Article 86 and Article 27 of the Statute should be fully
respected. In the case that the requested state is a contracting party to the
Statute, while the third state is not, under Article 98(1) of the Rome Stat-
ute, the ICC cannot issue a request for surrender or assistance to a State
Party “which would require the requested State to act inconsistently with
its obligations under international law with respect to the State or diplo-
matic immunity of a person or property of a third State”. The only way
the Court can proceed with such a request is to get the third state to waive
the immunity in question. 60
A referral from the Security Council is the most effective way for
the ICC to have jurisdiction over non-States Parties, since its Resolution
adopted pursuant to Chapter VII could remove the immunity of the head
of state of a non-contracting state to the Rome Statute. Whether the Secu-
rity Council could or would like to adopt a resolution requesting all the
states to co-operate with the ICC to arrest and transfer the fugitives or re-
moving the immunity of the head of state depends on its political will. At
the very least, the unanimous adoption of the Security Council Resolution
referring the situation in Libya to the ICC provides some hope that this
may be possible. 61
60
Rome Statute, Art. 98(1).
61
S/Res/1970 (2011), 26 February 2011.

5
______
Immunity for State Officials from Foreign
Jurisdiction for International Crimes
JIA Bingbing *
5.1. Introduction
Immunity for state officials is a part of state immunity and still generally
obtains in criminal or civil proceedings instituted against them before na-
tional courts. The official capacity of the officials cannot be lightly as-
sumed away in such proceedings, and the capacity attaches regardless of
the perceived nature of the acts of such persons. A debate exists in prac-
tice and theory over the granting of state immunity in cases of interna-
tional crimes. The current practice, however, still places state immunity
on a higher level to other rules of international law that ground national
jurisdiction, as opposed to international jurisdiction. This may be due to
the unchanged foundation of the international order based in the U.N.
Charter. Any denial of state immunity of foreign officials by a national
court, without support of general state practice, will raise questions re-
garding the soundness of the fundamental principles of that order, and
will not likely generate new rules of customary law in terms of state prac-
tice.
A word is first said of the usage to be employed in this context.
Immunity for state officials, while slightly longish, is adequate for the
present purposes, and it is also recognised that it is an aspect of state im-
munity. 1 Further, it is not considered to be equivalent to diplomatic im-
*
JIA Bingbing, D.Phil. (Oxon.), is Professor of International Law at the Tsinghua
University Law School since 2004. He was Legal Officer, the Appeals Chamber of
the ICTY, 2002–2004; Legal Officer, Trial Chamber III of the ICTY, 2000–2002; As-
sociate Legal Officer in the Appeals Chambers of the ICTY and of the ICTR, 1998–
2000; and Law Clerk in the Appeals Chambers of the ICTY and ICTR, 1996–1998.
He has published extensively in international law and serves as a member of several
editorial boards.
1
Arthur Watts, “The Legal Position in International Law of Heads of States, Heads of
Governments and Foreign Ministers”, in Recueil des Cours, 1994-III, vol. 247, p. 35.

munities. It arises where state officials, other than diplomats or head of

state or government, are concerned in civil or criminal cases brought in
foreign jurisdictions. Although the acts that give rise to the cases are those
of individuals, these acts have been explicitly carried out in the official
capacity so that they equally represent the acts of the state. In one author-
ity’s words, “[a] state can only act through servants and agents; their offi-
cial acts are the acts of the state; and the state’s immunity in respect of
them is fundamental to the principle of state immunity”. 2 Indeed, the
Draft Articles of the ILC on Responsibility of States for International
Wrongful Acts (‘ILC Draft Articles’) adopted by the International Law
Commission (‘ILC’) in 2001, states in Article 4 that:
1. The conduct of any State organ shall be considered an
act of that State under international law, whether the
organ exercises legislative, executive, judicial or any
other functions, whatever position it holds in the or-
ganization of the State, and whatever its character as an
organ of the central government or of a territorial unit
of the State.
2. An organ includes any person or entity which has that
status in accordance with the internal law of the State. 3
The fundamental principle of those draft articles is that “[e]very in-
ternationally wrongful act of a State entails the international responsibility
of that State”. 4 There is no question about the attributability of such re-
sponsibility to the State in question.
The 2004 U.N. Convention on Jurisdictional Immunities of States
and Their Property (hereinafter ‘the 2004 Convention’) also provides, un-
der Article 2(1)(b)(iv), that the term ‘State’ includes “representatives of
the State acting in that capacity”. 5 This convention chiefly provides for
“the immunity of a State and its property from the jurisdiction of the
courts of another State”. 6 Again, the attributability of the responsibility
for the official acts of individuals is beyond question, in that the immunity
2
Jones v. Ministry of the Interior of the Kingdom of Saudi Arabia and Another, United
Kingdom House of Lords, 2006, vol. 26, Opinions of 14 June 2006, para. 30 (per
Lord Bingham of Cornhill).
3
UNGA, A/RES/56/83, adopted 12 December 2001, with Annex.
4
Article 1.
5
UNGA, A/Res/59/38, adopted on 2 December 2004.
6
Article 1.

Immunity for State Officials from Foreign Jurisdiction
for International Crimes
of the officials derives from that of the State on whose behalf they act, to
the extent as allowed by the 2004 Convention.
State immunity, in the light of the existing rules of attributability of
state responsibility, can be either ratione personae, as in the case of, typi-
cally, heads of State, 7 or ratione materiae, or both, depending on the cir-
cumstances of each case in which immunity is pleaded. In practice, prob-
lems of immunities may arise in cases involving the class of officials
other than heads of State or government or those covered by the law of
diplomatic immunities and privileges, due to the apparent lack of specific
rules to cover a wide range of positions, ranks, and titles held by such of-
ficials and known to governments of the world.
In principle, the personal scope of state immunity is to be deter-
mined by the rule of attribution of state responsibility in international
law, 8 which point is confirmed by the ILC Draft Articles and the 2004
Convention. Where state immunity is assured, immunity for state officials
is equally guaranteed as a corollary. The tension in this regard, however,
lies with the cases in which immunity for state officials, though often to
obtain, has been challenged, especially in national jurisprudence, on the
ground of violations of peremptory rules of international law and of a dis-
tinction between the immunity of a state and that of its officials as per-
sons. This state of tension has been the defining feature of the topic for
the past twenty years. 9
Before we proceed with the immunity theme, two jurisdictional is-
sues faced by national courts are to be considered. After all, state immu-
nity as a procedural bar is to be pleaded before national courts; whereas
before international criminal tribunals or the International Criminal Court
(‘ICC’), it has had no standing due to a consistent pattern of practice that
denies it in such fora. This practice of denial has a good claim to reflect
7
Cf. Art. 3(2), the 2004 Convention. But practice may admit into this category other
high-ranking officials: R. Kolodkin, “Second Report on Immunity of State Officials
from Foreign Criminal Jurisdiction”, U.N. Doc. A/CN.4/631, 10 June 2010, paras. 7
and 94(i).
8
As, for instance, the ILC Special Rapporteur stated in his report on this matter, “an
official performing an act of a commercial nature enjoys immunity from foreign
criminal jurisdiction if this act is attributed to the State”: R. Kolodkin, 2010, supra
note 7, para. 94(e).
9
A. Gattini, “War Crimes and State Immunity in the Ferrini Case”, in Journal of Inter-
national Criminal Justice, 2005, vol. 3, p. 233.

customary law. The two issues are the following: is the plea applicable to
all plaints without any distinction between criminal and civil causes of
action? This first issue closely links with the second, which entails an ex-
cursion into the contemporary controversy surrounding the application of
the principle of universal jurisdiction (‘U.J.’).
5.2. Criminal versus Civil Jurisdiction

Jurisdiction in international law is the authority or power of a state under
the law to regulate conduct in matters not exclusively of domestic con-
cern. 10 A discussion of issues of jurisdiction is essentially concerned with
the limits of the legal competence of a State or other regulatory authorities
to enact, apply, and enforce rules of conduct upon persons. In Mann’s
word, 11 it is referred to the function of law in regulating and delimiting
the respective competences of States. 12 International law imposes limits
on the exercise of state jurisdiction without differentiating whether it is
concerned with criminal or civil matters. 13
The fundamental question in this context is always whether there
exists “a sufficiently close connection” between certain matters and a par-
ticular legal system seeking to govern them or a particular sovereign
qualified to regulate them. 14 Similar rules that embody the connection ex-
ist in all fields of international law. 15 Conceptually, the matter seems to be
10
This is no different from the well-established meaning of the word in domestic law,
such as the U.S. system: J. Beale, “The Jurisdiction of a Sovereign State”, in Harvard
Law Review, 1923, vol. 36, p. 241.
11
F.A. Mann, “The Doctrine of Jurisdiction in International Law”, in Recueil des Cours,
1964-I, vol. 111, p. 15.
12
Quoting: C. Rousseau, “Principes de droit international public”, in Recueil des Cours,
1958-I, vol. 93, p. 394.
13
Cf. Arrest Warrant of 11 April 2000, Democratic Republic of the Congo v. Belgium,
Judgment of 14 February 2002 (hereinafter ‘Arrest Warrant’), ICJ Reports, 2002, p. 3,
para 51, available at http://www.legal-tools.org/doc/c6bb20/. The Institute of Interna-
tional Law also understood the term ‘jurisdiction’ as embracing “criminal, civil and
administrative” matters: Third Commission, Resolution on the Immunity fro Jurisdic-
tion of the State and of Persons who Act on Behalf of the State in case of International
Crimes, IDI Napoli Session, 2009, Art. I(2), available at http://www.idi-
iil.org/idiE/resolutionsE/2009_naples_01_en.pdf, last accessed on 13 October 2012.
14
F.A. Mann, “The Doctrine of International Jurisdiction Revisited after Twenty
Years”, in Recueil des Cours, 1984-I, vol. 186, p. 28.
15
Ibid., p. 29.

quite straightforward. In his article, BIN Cheng draws a finer distinction

between two elements of jurisdiction, namely, ‘jurisfaction’ and ‘jurisac-
tion’. 16 It is with the second element of jurisdiction that immunity is con-
cerned, because it deals with the way in which state jurisdiction is exer-
cised within and without a state’s borders. In this general sense, there is
no difference as far as is concerned the effect of immunity upon the exer-
cise of any particular kind of state jurisdiction. 17 But for individuals in
positions of government, it seems that the developments related to the
criminal side of the competence are increasingly worrisome. This concern
could be seen in the recent inclusion of the topic of U.J. in the agenda of
the United Nations General Assembly (‘UNGA’), 18 and in the Secretary-
General’s Report of 29 July 2010, with 44 governments’ observations re-
corded. 19
As recent practice that has involved the plea of state immunity oc-
curs mostly in national jurisdiction, in which recourse to the principle of
U.J. is often seen, a brief look at the practice is warranted.
5.3. Universal Jurisdiction

It is not intended to lay out the state of the current law of U.J., 20 but to
remark on two points that are necessary for further discussion. The first
point has to do with the difficulty encountered by states seeking to de-
velop rules for the exercise of U.J. in a domestic context. U.J. is to be ex-
ercised by the forum state where criminal or tort proceedings are initiated,
and one question above all would require an immediate solution, namely,
on what basis and against whom U.J. is exercised. Secondly, uncertainty
16
B. Cheng, “The Extra-Territorial Application on International Law”, in Current Legal
Problems, 1965, vol. 18, p. 136.
17
Arthur Watts, 1994-III, supra note 1, p. 106: immunity from suit applies to officials in
respect of matters arising on their official visits and for matters arising prior to the
visits.
18
The UNGA adopted Resolution 64/117 on 16 December 2009, requesting the Secre-
tary-General to invite member States to submit observations on a series of issues fal-
ling under the agenda item of the scope and application of the principle of universal
jurisdiction for the sixty-fifth session of the UNGA.
19
Those observations can be found at http://www.un.org/en/ga/sixth/65/ScopeAppUni
Juri.shtml, last accessed on 13 October 2012.
20
S.H. Yee, “Universal Jurisdiction: Concept, Logic and Reality”, in Chinese Journal of
International Law, 2011, vol. 10, pp. 503–530.

clearly surrounds any claim in practice for a larger scope for U.J. than that
of and through treaty-based mechanisms. If that claim is made, immunity
will become its first hurdle.
The first point concerns an ongoing dispute between those states
exercising U.J. and those whose nationals are at the receiving end of the
exercise. While jurisdiction, and especially its implementation in respect
of criminal matters, have never been short of controversy, the active resort
to U.J. – as distinct from other heads of jurisdiction that have already en-
joyed wide acceptance among states as a matter of customary law – by a
few countries in recent years over alleged international crimes has
touched a raw nerve of the states whose nationals have been affected. This
development has highlighted one aspect of the debate at the international
level: namely, where treaties are non-applicable, is there a customary law
basis for the exercise of U.J.? 21 If the customary basis is not recognised,
U.J. cannot be exercised in that situation. Otherwise, immunity comes
into play on an equal footing to the alleged customary law basis of U.J.
The preceding discussion gives rises to the second point. It appears
that the law of U.J. as a whole is uncertain at its present stage of devel-
opment, as testified to by the decision in the Arrest Warrant case. 22 In the
Arrest Warrant case, the International Court of Justice, or ICJ, could not
find any customary rule that denied immunity to a serving foreign minis-
ter while he was suspected of having committed war crimes or crimes
against humanity. 23 The Court stated that:
[…] although various international conventions or the pre-
vention and punishment of certain serious crimes impose on
States obligations of prosecution or extradition, thereby re-
quiring them to extend their criminal jurisdiction, such ex-
tension of jurisdiction in no way affects immunities under
customary international law, including those of Ministers for
Foreign Affairs. These remain opposable before the courts of
21
Cf. Institute of International Law, Resolution on Universal Criminal Jurisdiction with
Respect to the Crime of Genocide, Crimes against Humanity and War Crimes,
adopted 26 August 2005 during the Krakow session, Annuaire (Tome II), vol. 71, p.
297.
22
Arrest Warrant, supra note 13, para. 15 (which shows that there was no link between
Belgium and the crimes alleged of the Congolese Foreign Minister).
23
Ibid., para. 58.

a foreign State, even where those courts exercise such a ju-

risdiction under these conventions. 24
The judgment, by a vote of 13 to 3, found that:
[…] the issue against Mr. Abdulaye Yerodia Ndombasi of
the arrest warrant of 11 April 2000, and its international cir-
culation, constituted violations of a legal obligation of the
Kingdom of Belgium towards the Democratic Republic of
the Congo, in that they failed to respect the immunity from
criminal jurisdiction and the inviolability which the incum-
bent Minister for Foreign Affairs of the Democratic Republic
of the Congo enjoyed under international law. 25
It then required Belgium to cancel the warrant and to so inform the
parties to which it had been circulated. What has transpired from the case
is that the claim by some countries to exercise U.J. in spite of that uncer-
tainty in state practice lies at the root of the recent cases in which the plea
of state immunity has been invoked.
The implications of the findings of the Court are thought-
provoking. 26 For, U.J. based in treaty in general and on the conventional
obligation of aut dedere aut judicare in particular has to give way to the
customary rules of immunity. Is customary law superior to treaties? If so,
what is the reason? Furthermore, the first point raised above seems to add
another twist to this question. Supposing the law of immunities and that of
U.J. are both customary in nature, can they cancel each other out, thus
implying an equality in terms of validity? Or the customary law of immu-
nity prevails over that of U.J., thus implying a hierarchy within customary
law, leaving aside the issue of jus cogens? Those questions could only be
answered after we consider, in the next section, the nature of the state
immunity law.
In brief, the current practice in respect of U.J. is as inconsistent as it
is still developing. 27 Apart from a list of well-known treaties, 28 the evolv-
24
Ibid., para. 59.
25
Ibid., para. 78.
26
For instance, Antonio Cassese, “When may Senior State Officials Be Tried for Inter-
national Crimes? Some Comments on the Congo v. Belgium Case”, in European
Journal of International Law, 2002, vol. 13, pp. 853–875.
27
The AU-EU Expert Report on the Principle of Universal Jurisdiction, Council of the
European Union Secretariat, Brussels, 16 April 2009, 8672/1/09 Rev.1, para. 24, pp.
24–25.

ing nature of that practice can also be seen through the litigations in the
U.S. brought on the basis of the Alien Tort Statute and claims for civil
damages elsewhere in the world for international crimes. 29 Universal civil
or tort jurisdiction, as an alternative to criminal jurisdiction, may likewise
trigger the plea of state immunity by the respondent. To illustrate, in a
case involving a claim for civil liability for torture by state officials, Jones
v. Saudi Arabia, the House of Lords of the U.K. upheld state immunity, 30
but it also intended to deny it in criminal proceedings where the Conven-
tion against Torture (or ‘CAT’), 31 in its view, created an exception to the
general rules of immunity. 32 The British court would only recognise an
exception to state immunity by virtue of a specific multilateral treaty to
which the U.K. is a party. 33 What is the rationale of the immunity for
state-officials that makes it so powerful a plea in national courts?
5.4. Immunity for State Officials

The rationale of state immunity as a whole has been well explained by
Marshall CJ in The Schooner Exchange v. McFadddon:
This perfect equality and absolute independence of sover-
eigns, and this common interest compelling them to mutual
intercourse, and an interchange of good offices with each
other, have given rise to a class of cases in which every sov-
ereign is understood to waive the exercise of a part of that
complete exclusive territorial jurisdiction, which has been
stated to be the attribute of every nation. 34
28
S.H. Yee, 2011, supra note 20, pp. 512–519.
29
Cf. H. Fox, The Law of State Immunity, second edition, Oxford University Press,
2008, pp. 356–362, 583–590.
30
Supra note 2, para. 33 (per Lord Bingham of Cornhill): “Where applicable, state im-
munity is an absolute preliminary bar, precluding any examination of the merits. A
state is either immune from the jurisdiction of a foreign court or it is not”.
31
“Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment”, in United Nations Treaty Series, 1984, vol. 1465, p. 85 (entry into force
26 June 1987).
32
Supra note 2, para. 33 (per Lord Bingham of Cornhill).
33
Whereas the ICJ did not consider that such treaties as the ICC Statute would be suffi-
cient, in terms of customary law, to displace immunity: Arrest Warrant, para. 58 (“It
finds that these rules likewise do not enable it to conclude that any such an exception
exists in customary international law in regard to national courts.”).
34
The Schooner Exchange v. McFaddon, 1812, 7 Cranch 116.

The European Court of Human Rights has reached a similar conclusion,

that:
[…] sovereign immunity is a concept of international law,
developed out of the principle par in parem non habet im-
perium, by virtue of which one State shall not be subject to
the jurisdiction of another State. The Court considers that the
grant of immunity to a State in civil proceedings pursues the
legitimate aim of complying with international law to pro-
mote comity and good relations between States through the
respect of another State’s sovereignty. 35
Immunity for the officials other than heads of state or government
is mainly functional in nature, 36 especially when that immunity is relevant
to matters arising during official visits or missions. 37 The ICJ noted in
2008 that international law did not recognise personal immunities of the
officials as concerned in Djibouti v. France case, namely, the procureur
général and the Head of National Security of the Republic of Djibouti. 38
There is also the scholarly view that the 2004 Convention endorses the
functional immunity for acts performed in an official capacity.39
But the scope of this functionality is in fact larger, as the ICJ stated
in 2002, in respect of a matter that did not arise during any official visits,
that:
The Court accordingly concludes that the functions of a Min-
ister for Foreign Affairs are such that, throughout the dura-
tion of his or her office, he or she when abroad enjoys full
immunity from criminal jurisdiction and inviolability. That
immunity and that inviolability protect the individual con-
cerned against any act of authority of another State which
35
Al-Adsani v. U.K., Application No 35763/97, Judgment of 21 November 2001, Inter-
national Law Reports vol. 123, p. 24, para. 54.
36
Cf. Art. 3(1), the 2004 Convention. Also see, Djibouti and France’s submissions in:
Certain Questions of Mutual Assistance in Criminal Matters, Djibouti v. France, ICJ
Reports 2008, p. 177, paras. 187 and 189.
37
Arthur Watts, 1994-III, supra note 1, pp. 103, 107. Also see, R. Kolodkin, 2010, su-
pra note 7, para. 94(h).
38
ICJ Reports, 2008, p.177, para. 194.
39
D. Stewart, “The Immunity of State Officials under the UN Convention on Jurisdic-
tional Immunities of States and Their Property”, in Vanderbilt Journal of Transna-
tional Law, 2011, vol. 44, p. 1056.

would hinder him or her in the performance of his or her du-

ties. 40
This confirms the view that incumbent foreign ministers, as heads
of state and government and diplomatic agents, enjoy personal immunity
under both treaties and customary law. 41 The Court did not define, and
there has been no certainty with regard to, the class of officials that may
come under this type of immunity.
The functional character aside, the absoluteness of immunity from
criminal jurisdiction accruing to State officials is unmistakable. 42 It is not
possible that, if immunity of a foreign government from criminal jurisdic-
tion before a court of the forum state is assured, international law with-
holds that immunity from those officials who have carried out the instruc-
tions of that government that give rise to the exercise of that jurisdiction.
Even their acts beyond governmental instructions are recognised by the
law to be covered by immunity, due to the official capacity in which the
acts were carried out. 43 Officials are servants, agents or organs of a gov-
ernment; and in view of the recent cases from the ICJ, high-ranking offi-
cials may just be able to presume that they are clothed with immunity due
to official capacity. 44 This could be another guise of personal immunity,
in that the official capacity is determined by the rank of the official con-
cerned in this regard. To recognise his or her immunity, the court relies on
the official capacity as provided by the rank. The rank naturally attaches
to the person in question, and the two cannot be separated without a
proper process of demotion by the government which appoints the person
to the office. A foreign court cannot presume lightly that the person is not
protected by immunity. The preceding view also applies to the situation in
which the person acts in a presumably private capacity. The official cap
40
Arrest Warrant, supra note 13, para. 54; see also, ibid., Joint Separate Opinion of
Higgins, Kooijmans, and Buergenthal, para. 75.
41
Cf. C. Keitner, “Foreign immunity after Samantar”, in Vanderbilt Journal of Transna-
tional Law, 2011, vol. 44, pp. 841–842.
42
R. Kolodkin, 2010, supra note 7, p. 54.
43
Art. 7, ILC Draft Articles: “The conduct of an organ of a State or of a person or entity
empowered to exercise elements of the governmental authority shall be considered an
act of the State under international law if the organ, person or entity acts in that capac-
ity, even if it exceeds its authority or contravenes instructions”.
44
Arrest Warrant, supra note 13, para. 59. The statement of the Court in the paragraph
did not distinguish between acts in official and in private capacity.

stays on the person’s head until it is legally removed. It is, however, rec-
ognised that there is a debate over the personal immunity of officials be-
low the rank of foreign minister. 45 As things stand, 46 immunity of this
type has been upheld in favour of the officials implicated in criminal or
civil damage cases initiated in several countries. 47 In parallel to this fact,
it may be noted that state immunity is increasingly relied on by officials
or agents or their governments in cases in which the accused are not pre-
sent in the forum state, and their deeds have been committed outside that
country. 48 This increase in the use of the plea of state immunity results
from the widening use of national jurisdiction over foreign state officials.
As for the concerns with impunity that may ensue, international law
does not leave the matter undecided to the detriment of the victims, re-
flecting the maxim that ubi jus ibi remedium. The ICJ explicitly stated in
the Arrest Warrant case that:
[…] while jurisdictional immunity is procedural in nature,
criminal responsibility is a question of substantive law. Ju-
risdictional immunity may well bar prosecution for a certain
period or for certain offences; it cannot exonerate the person
to whom it applies from all criminal responsibility. 49
45
R. Kolodkin, 2010, supra notes 7, paras. 35 and 94; R. van Alebeek, The Immunity of
States and Their Officials in International Criminal Law and International Human
Rights Law, Oxford University Press, 2008, pp. 192–195.
46
Art. 31(1), Convention on Special Missions, adopted 8 December 1969 by the UNGA,
entry into force 21 June 1985, in UNTS, vol. 1400, p. 231. As of writing, it had 38
States Parties: see further http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY
&mtdsg_ no= III-9&chapter=3&lang=en, last accessed on 29 March 2012.
47
C. Tomuschat, “The International Law of State Immunity and its Development by
National Institutions”, Vanderbilt Journal of Transnational Law, 2011, vol. 44, pp.
1133–1139 (the Italian Corte di Cassazione’s jurisprudence is noted as one of a kind
in this field, failing to garner support in other legal systems).
48
The Lozano case (or the Calipari case), Corte di Cassazione (Sez I penale), 24 July
2008, No. 31171, reported by G. Serra in Italian Yearbook of International Law,
2008, vol. 18, pp. 346–351. The Corte stated to the effect that, as a matter of univer-
sally accepted custom, acts by states organs in the discharge of their functions are
immune from civil or criminal jurisdiction of a foreign State: quote by P. Palchetti,
“Some Remarks on the Scope of Immunity of Foreign State Officials in the Light of
Recent Judgments of Italian Courts”, in Italian Yearbook of International Law, 2009,
vol. 19, p. 87.
49
Arrest Warrant, supra note 13, para. 60.

Indeed, the Court had the firm view that state immunity does not serve as
an exonerating factor in terms of the individual responsibility – if proved
beyond reasonable doubt – of the person enjoying the immunity. In the
instant case, the ICJ recognised that prosecution may still be mounted if
the person in question ever found himself in four specific situations. 50
Logically, there is no problem with this approach, for immunity and re-
sponsibility are two separate categories, unconnected with each other. 51
More importantly, as will be mentioned in next section, state im-
munity may be subject to exceptions contained in treaties to which the
forum state and the state whose officials are subject to complaints before
the former’s courts are both parties. 52
The ultimate effect of the plea of State immunity is therefore ex-
plained as such that “[w]here state immunity is applicable, the national
court has no jurisdiction to exercise” 53, and that “[w]here applicable, state
immunity is an absolute preliminary bar, precluding any examination of
the merits. A state is either immune from the jurisdiction of a foreign
court or it is not”. 54
5.5. Immunity versus Treaty Crimes

It is a fact that treaties on criminal matters do not often provide for the
level of immunity to be enjoyed by a person who may fall under the pur-
view of the treaties. This is for good reason, as has been shown in the
quotes in the preceding section from the English case. But there are trea-
ties that do refer to rules of the international law of immunity. Article
98(1) of the Rome Statute of the International Criminal Court (hereinafter
‘Rome Statute’) provides:
The Court may not proceed with a request for surrender or
assistance which would require the requested State to act in-
consistently with its obligations under international law with
respect to the State or diplomatic immunity of a person or
property of a third State, unless the Court can first obtain the
50
Ibid., para. 61.
51
Ibid., para. 59.
52
As for the view that immunity is exception to state jurisdiction, see Section 5.8. be-
low.
53
Jones v. Saudi Arabia, 2006, supra note 2, para. 24 (per Lord Bingham of Cornhill).
54
Ibid., para. 33.

cooperation of that third State for the waiver of the immu-

nity.
The clause probably covers both customary rules of state or diplo-
matic immunity and treaties. The rule of the law of treaties that deals with
the status of third states is responsible for the provision of Article 98(1), 55
even though Article 27 of the Rome Statute declares that the Statute ap-
plies to “all persons without any distinction based on official capacity”,
and that immunities under national or international law “shall not bar the
Court from exercising its jurisdiction over such a person”. While the
crimes proscribed under the Statute may have parallel existences in the
Statute and customary law, the Statute does not see its jurisdiction going
beyond itself, and in light of Article 98(1), it actually treats the crimes as
treaty-based. However, as the Statute concedes by virtue of Article 98(1),
neither the substantive crimes under the Statute nor the statutory jurisdic-
tion over them can give the ICC the extra authority to proceed with a case
involving a third State in spite of the law of immunity.
This digression to the Rome Statute raises yet another question.
Many of the crimes of the Statute partake of a jus cogens character inde-
pendently of the Statute. 56 Could that undermine state immunity? It goes
without saying that the Rome Statute itself and the ICC cannot do so due
to the terms of Article 98(1). Do national courts dealing with allegations
of such crimes find themselves in any different situation?
Before we take on the question just raised, there is another point
about the relations between immunity and treaty-based jurisdiction. As
Lord Bingham observed in Jones v. Saudi Arabia, with regard to the
famed Pinochet case (No. 3),
[…] the essential ratio of the decision, as I understand it, was
that international law could not without absurdity require
criminal jurisdiction to be assumed and exercised where the
Torture Convention conditions were satisfied and, at the
same time, require immunity to be granted to those properly
charged. 57
55
Art. 34, Vienna Convention on the Law of Treaties, 1969.
56
F.i.D. Shelton, “International Law and ‘Relative Normativity’”, in M. Evans (ed.),
International Law, second edition, Oxford University Press, 2008, p. 165.
57
Supra note 2, 2006, para. 19 (per Lord Bingham of Cornhill).

The convention in question took away immunity as far as contract-

ing parties to the convention are concerned, and the courts of those coun-
tries cannot consequently recognise immunity in the circumstances. Thus,
immunity may be subject to the exception of a multilateral treaty to which
both the forum state and the state that claims immunity before the for-
mer’s court are parties. The reason is likely to be that a treaty as lex spe-
cialis can circumvent the customary law rules of immunity between the
forum state and the state that claims immunity on behalf of its representa-
tives or agents. This line of reasoning seems to be irreproachable, but its
applicability is likely to depend on the actual terms of relevant treaties.
Some treaties, for instance, are understood to require a contracting party
to enforce its terms on the premise that the deeds that require the party to
implement the terms are committed on its soil or within the scope of its
jurisdiction. 58 The 2004 Convention has also affirmed this venue of court
proceedings in relation to the plea of state immunity. Article 12 provides:
Unless otherwise agreed between the States concerned, a
State cannot invoke immunity from jurisdiction before a
court of another State which is otherwise competent in a pro-
ceeding which relates to pecuniary compensation for death
or injury to the person, or damage to or loss of tangible
property, caused by an act or omission which is alleged to be
attributable to the State, if the act or omission occurred in
whole or in part in the territory of that other State and if the
author of the act or omission was present in that territory at
the time of the act or omission.
Further, were it applied to a case like the Arrest Warrant case, the
existence of a treaty-based crime may not persuade the Court in accepting
the reasoning to the detriment of the customary rule of state immunity.
5.6. Immunity versus Violations of Jus Cogens

The conclusion of the recent case law, national or international, which
involves the law of state immunity, is that immunity still shrouds state
officials from even cases involving alleged breaches of jus cogens, and
the cases may be criminal or civil. Further, immunity as a procedural bar
58
Ibid., para. 20 (referring to the U.S.’ understanding II(3) regarding Art. 14(1) of the
Convention against Torture 1984, available at http://treaties.un.org/pages/ViewDeta
ils.aspx?src=TREATY&mtdsg_no=III-9&chapter=3&lang=en, last accessed on 13
October 2012.

does not allow a forum state’s courts to deal with a substantive law issue,
such as the existence vel non of an international crime. 59 But differing
views are not unknown. 60 In Al-Adsani v. U.K., the European Court of
Human Rights (Grand Chamber) held that:
The Court, while noting the growing recognition of the over-
riding importance of the prohibition of torture, does not ac-
cordingly find it established that there is yet acceptance in
international law of the proposition that States are not enti-
tled to immunity in respect of civil claims for damages for
alleged torture committed outside the forum State. 61
The seven dissenting judges, however, did not subscribe to this
“understatement”; rather, they dissented on this very point, by holding
that a jus cogens rule, such as the prohibition against torture, lifted the
jurisdictional bar of state immunity, by reason of the former’s character as
a jus cogens rule, which is placed higher in the hierarchy of rules of inter-
national law. 62 If, on the strength of state practice, such a hierarchy exists
between the rule against torture and the rule of state immunity, this state-
ment holds true. The majority obviously did not think so.
It is clear that, at their current stage of development, rules of jus co-
gens are to be found in the substantive part of international law, but that
rules of U.J. and state immunity partake more of a procedural character.
State practice has yet to recognise any obligation erga omnes to exercise
U.J. over claims arising from alleged breaches of peremptory norms of
international law. The gap between the latter norms and their enforcement
by states individually is plain to see. This is the case even though there is
in reality an obvious link between the doctrine of U.J. and jus cogens, in
that the exercise of U.J. is currently deemed as mainly concerned with
violations of international law which affect “the interests of the interna-
59
The European Court of Human Rights took a slightly different view of this: Al-Adsani
v. U.K., 2001, supra note 35, para. 58.
60
It is arguable that jus cogens may remove immunity: Antonio Cassese, International
Law, second edition, 2005, p. 208.
61
Al-Adsani v. U.K., 2001, supra note 35, para. 66. The Court accepted that torture was
prohibited by jus cogens: ibid., para. 61.
62
Ibid., pp. 49–50, paras. 1–3.

tional community as a whole”, which characteristic is essential for the

identification of a jus cogens rule. 63
The question relevant to this section, then, is whether an alleged
violation of jus cogens can found the personal and subject-matter jurisdic-
tion of a court, national or international, over it. That question has been
considered by the ICJ in the case between the Democratic Republic of the
Congo and Rwanda. 64 Regarding the argument made by the Congo to
found the Court’s jurisdiction on the basis of the jus cogens against geno-
cide, the ICJ held that:
[…] the fact that a dispute relates to compliance with a norm
having such a character [--jus cogens], which is assuredly the
case with regard to the prohibition of genocide, cannot of it-
self provide a basis for the jurisdiction of the Court to enter-
tain that dispute. Under the Court’s Statute that jurisdiction
is always based on the consent of the parties. 65
A similar conclusion was reached by the Court in respect of the same ar-
gument made in relation to Rwanda’s reservation to the Convention on
Racial Discrimination. 66
What is interesting is the view of the Court that jurisdiction is not
affected by the nature of a dispute that pertains to a norm of the jus co-
gens type. Given the difference between substantive and procedural law,
where the ICJ could not found its jurisdiction procedurally, it cannot con-
sider the merits of the dispute. A violation of jus cogens rules is not sub
judice until the ICJ passes the stage of jurisdiction and admissibility. In-
deed, it would seem to follow from the finding of the Court that the juris-
diction over jus cogens violations would not exist even without the plea of
state immunity, because of the lack of the consensual basis between the
parties for the Court to claim jurisdiction.
This state of the law of state immunity has been reaffirmed during
the proceedings of the Case concerning Jurisdictional Immunities of the
63
Art. 53, Vienna Convention on the Law of Treaties of 1969. Also see, Barcelona
Traction (second phase) (Belgium v. Spain), ICJ Reports 1970, pp. 3, 32.
64
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Re-
ports, 2006, p. 6.
65
Ibid., para. 64.
66
Ibid., para. 78.

State (Germany v. Italy: Greece Intervening) , just decided by the ICJ. 67

The case deals with, among others, the conflict between state immunity
and certain jus cogens rules. In the Application of 22 December 2008,
Germany stated that:
In the instant case, the dispute concerns in particular the ex-
istence, under customary international law, of the rule that
protects sovereign States from being sued before the civil
courts of another State. 68
And that:
Germany’s only objective is to obtain a finding from the
Court that to declare claims based on those occurrences as
falling within the domestic jurisdiction of Italian courts, con-
stitutes a breach of international law. 69
The conflict with the rules of immunity has been summed up in the Italian
statement in its Counter-Memorial of 22 December 2009:
Italy subscribes to the idea that immunity and jus cogens
rules on human rights and humanitarian law can generally
coexist in the international legal system. However, there is a
substantive inconsistency in the legal system if immunity is
used by a State responsible for grave breaches of interna-
tional law in order to avoid its responsibility. 70
The argument was reasonable enough, but there is one problem.
Supposing the plea of state immunity is a procedural bar to jurisdiction,
no court can proceed to the merits stage of a claim without facing the plea
first. To argue about a substantive inconsistency would be equivalent of
saying that jus cogens prevail over the plea, and can found jurisdiction
regardless. Then, the first phase before the Court regarding jurisdiction
and admissibility is superfluous. That would be unlikely to be accepted by
states or international judicial bodies whose jurisdiction is, as a matter of
principle, consensual, in view of the current structure of the international
67
Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Gen-
eral List No. 143, Judgment of 3 February 2012, available at http://www.legal-
tools.org/doc/674187/. The written and oral pleadings in this case are available at
http://www.icj-cij.org/docket/index.php?p1=3&p2=3&code=ai&case=143&k=60, last
accessed on 13 October 2012.
68
Germany’s Application, para. 2.
69
Ibid., para. 3.
70
Para. 4.67.

judicial order. The revision of the consensual nature of such order is by no

means impossible, 71 but its complete removal cannot be attained without
changing, above all, the Statute of the ICJ. The removal itself would
surely be a change of the foundation of the U.N. Charter.
Applying its reasoning in the Arrest Warrant and Armed Activities
cases, the ICJ stated in its judgment of 3 February 2012, with regard to
the relations between the law of state immunity and the jus cogens of in-
ternational crimes that:
The two sets of rules address different matters. The rules of
State immunity are procedural in character and are confined
to determining whether or not the courts of one State may
exercise jurisdiction in respect of another State. They do not
bear upon the question whether or not the conduct in respect
of which the proceedings are brought was lawful or unlaw-
ful. 72
The distinction between procedural and substantive law was unmistakably
dominant in the reasoning. The Court then stated:
A jus cogens rule is one from which no derogation is permit-
ted but the rules which determine the scope and extent of ju-
risdiction and when that jurisdiction may be exercised do not
derogate from those substantive rules which possess jus co-
gens status, nor is there anything inherent in the concept of
jus cogens which would require their modification or would
displace their application. 73
To resolve this issue by reliance on the distinction referred to above
may require further study to justify its singular role in stopping a case of
this type from moving beyond the jurisdiction phase.
5.7. International Jurisdiction

What has been said above in respect of the relations between state immu-
nity and national jurisdiction is not necessarily applicable in the context of
international criminal jurisdiction, as the matter has been treated differ-
ently in inter-state relations and the bodies of international criminal jus-
71
The United Nations Convention on the Law of the Sea, Section 2, Part XV.
72
Supra note 39, para. 93.
73
Ibid., para. 95.

tice. 74 The difference lies, above all, with the issue of attributability of a
wrongful deed committed by a state official. However, in the international
context, individual responsibility as a matter of substantive law is not af-
fected by the availability of immunity to the individual official in ques-
tion. There, the situation has long become clear, in that immunity, per-
sonal or functional, has been denied since the Nuremberg Charter. 75
A related question is with the referral power of the U.N. Security
Council as envisaged by the Rome Statute. Such a resolution of referral
can divest an official of even a non-State Party to the Statute of the plea of
immunities in his defence, 76 but may also reiterate the immunities enjoyed
by a non-State Party’s officials in spite of the referral. 77 The customary
law of state immunity will, in short, be qualified by the resolution.
5.8. Conclusions: A Hierarchy of Rules?

From the proceeding survey of the current judicial practice, it seems that a
more fundamental question has been latent therein. There is the presump-
tion that in the international legal order, there is a hierarchy of rules.
Rules are therefore categorised according to certain biding principles of
the system, and some rules are superior to all the rest. The question, as
shown above in the vibrant mixture of cases for and against state immu-
nity, is more with which are the rules of jus cogens than whether jus co-
gens trump ordinary rules of customary law and treaties. If the position
against state immunity is being advocated by a single jurisdiction, it is not
to be taken as authoritative in the determination of the state of the law in
this regard, even less so where the contrary practice in recognising that
immunity remains, as it is, overwhelming.
It is suggested that, while the scope of jus cogens is generally
vague, some rules of this category have withstood the test of time to re-
main as part of the foundation of the contemporary international order. It
74
G. Schwarzenberger, International Law as Applied by International Courts and Tri-
bunals, vol. II, The Law of Armed Conflict, Stevens and Sons, 1968, p. 518.
75
Art. 7, the Nuremberg Charter; Art. 6, the Tokyo Charter. Also see, Antonio Cassese,
International Criminal Law, Oxford University Press, 2003, pp. 267–271.
76
Cf. Dapo Akande, “The Legal Nature of Security Council Referrals to the ICC and its
Impact on Al Bashir’s Immunities”, in Journal of International Criminal Justice,
2009, vol. 7, pp. 340–342.
77
UNSC, S/RES/1593 (2005) (re Darfur situation), operative paragraphs 2 and 6.

is also suggested that the rules would contain such as the one of sover-
eignty equality. That may indeed be an explanation for the curious reality
that immunity can become a formidable wall to resist the surging waves
of personal complaints and foreign prosecutions, both of which can be
and have been clearly grounded in international law. 78 Not so long ago, a
powerful explanation for this reality has been given by an authority in the
following terms: 79
State immunity is a procedural rule going to the jurisdiction
of a national court. It does not go to substantive law; it does
not contradict a prohibition contained in a jus cogens norm
but merely diverts any breach of it to a different method of
settlement. Arguably, then, there is no substantive content in
the procedural plea of State immunity upon which a jus co-
gens mandate can bite.
However, the authority has left many questions unanswered. It may
therefore be inquired, besides those questions raised by her, 80 as to
whether inter-state relations are in possession of a degree of superiority
over the needs to punish serious international crimes. The answer is
probably in the affirmative for the moment, as evidenced by the recent
cases of U.J., and by the terms of Article 98(1) of the Rome Statute.81
What is the possible reason?
The system of nation-states has been and remains a basic structure
underlying the international legal order; no alternative building blocks
have been found to be capable of replacing it. The system of international
law, being the language that are spoken in communication with nations,
peoples, entities, organisations, and individuals, is premised on the pri-
macy of national sovereignty and of course, the equality of sovereign
78
Claus Kreß and Kimberly Prost, “Article 98”, in Otto Triffterer (ed.), Commentary on
the Rome Statute of the International Criminal Court: Observers’ Notes, Article by
Article, second edition, C.H. Beck, 2008, p. 1609.
79
H. Fox, The Law of State Immunity, Oxford University Press, 2002, p. 525. This view
has not been revised in the second edition of her treatise: second edition, 2008, pp.
151–152.
80
Some have been addressed by subsequent practice: H. Fox, 2008, supra note 29, pp.
152–156.
81
J. Kleffner, “The Impact of Complementarity on National Implementation of Substan-
tive International Criminal Law”, in Journal of International Criminal Justice, 2003,
vol. 1, pp. 105–106.

states. 82 Immunity derived from such fundamentals could not possibly be

abandoned without shaking the very foundation of the current interna-
tional order as moulded by the U.N. Charter. Jus cogens, it may be re-
membered, emanates from that order, and norms of this category would
have to be created, applied and revised on that and only that basis. Other-
wise, there will be no jus cogens norms that can have a meaningful and
effective existence, if they are wrought by others than states. Further to
this premise, it may also be added that for states at different stages of de-
velopment following their vow to abide by the obligations of the U.N.
Charter upon entry into that legal order, it is not through the variation of
the basic principles of the current Charter by unilateral action independent
of the Charter, but rather, the amendment procedures entrenched in the
Charter, that the basic principles of the Charter may be revised to reflect
the changing times, or jus cogens may be established with universal rec-
ognition.
To achieve the above goal, it is helpful to consider state immunity
as an exception to the even more fundamental feature of sovereignty –
jurisdiction. 83 However, the practice, for one reason or another, has hard-
ened the granting of various degrees of state immunity into a rule of cus-
tomary law, 84 changeable through customary law, no less. It takes con-
crete form, for instance, not only in the 2004 Convention,85 but in numer-
ous national legislations, let alone international and national case-law. 86
Further, if state immunity as such is conceived for the collective benefits
of inter-state relations, which are typically bilateral, there may just be an-
other question arising as to whether the collective benefits of often two
countries enjoy a higher status in relation to other rules of international
law. In other words, there would still be a hierarchy involved in this con-
sideration. In addition, how to assess the benefits or their reverse, the
harms, arising in such inter-state relations could give rise to more ques-
82
Art. 2(1), the U.N. Charter.
83
L. Caplan, “State Immunity, Human Rights, and Jus Cogens: A Critique of the Nor-
mative Hierarchy Theory”, in American Journal of International Law, 2003, vol. 97,
pp. 751–757.
84
Ibid., 776.
85
Cf. Art. 5 of the convention, as a general principle, that “[a] State enjoys immunity, in
respect of itself and its property, from the jurisdiction of the courts of another State
subject to the provisions of the present Convention”.
86
L. Caplan, 2003, supra note 83, pp. 765–770.

tions in practice, as subjectivity will inevitably creep in when the assess-

ment is made before a court.
The reality of the current state of the law of state immunity, includ-
ing immunity of state officials, is not that different from what obtained
when modern international law reached its early stage of maturity before
1945. While the world community has come a long way since the 1960s,
states, due to different stages of development, still look up to the U.N.
Charter as the basic instrument that regulates inter-state relations. The
speed with which the world has advanced may not be that fast. At that
moment, the very authority on the law of state immunity uttered the fol-
lowing inimitable words:
One sovereign being in no respect amenable to another, and
being bound by obligations of the highest character not to
degrade the dignity of his nation, by placing himself or its
sovereign rights within the jurisdiction of another, can be
supposed to enter a foreign territory only under an express
license, or in the confidence that the immunities belonging to
his independent sovereign station, though not expressly
stipulated, are reserved by implication, and will be extended
to him. 87
87
Supra note 34.

6
______
International Criminal Court: A Judicial
Guarantee for International Peace and Security?
GUO Yang *
6.1. Introduction
On 11 June 2010, after two-week heated negotiations, around 4,600 dele-
gates from States, intergovernmental and non-governmental organisations
concluded the First Review Conference of the Rome Statute of Interna-
tional Criminal Court 1 (hereinafter referred to as the ‘Statute’ or ‘Rome
Statute’) in Kampala, Uganda. The Conference adopted by consensus the
Amendments to the Statute so as to integrate into the Statute the definition
of the ‘crime of aggression’ and the conditions under which the Interna-
tional Criminal Court (hereinafter referred to as ‘ICC’ or the ‘Court’)
could exercise its jurisdiction over the crime. 2
Based on Article 6 of the Charter of the International Military Tri-
bunal (London, 8 August 1945) 3 and the jurisprudence of the Nuremberg
*
GUO Yang, Ph.D. candidate, China University of Political Science and Law; Legal
Officer, Regional Delegation for East Asia of the International Committee of the Red
Cross (‘ICRC’). The opinions expressed in this chapter are those of the author and not
necessarily the institution he works for.
1
On 17 July 1998, the international community adopted the Rome Statute, the legal
basis for establishing the first permanent International Criminal Court. The Statute en-
tered into force on 1 July 2002 and the ICC was established accordingly. The Court
has jurisdiction over the crime of aggression, the crime of genocide, crimes against
humanity and war crimes. Available at http://www.icc-cpi.int/Menus/ICC/
about+the+Court/, last accessed on 13 October 2012; see also the Rome Statute, Arti-
cle 5, fn. 1.
2
ICC Press Release, ICC-ASP-20100612-PR546; for a detailed description of the ne-
JRWLDWLRQ VHH &ODXV .UHȕ DQG /HRQLH YRQ +ROW]HQGRII ³7KH .DPSDOD &RPSURPLVH
on the Crime of Aggression”, in Journal of International Criminal Justice, 2010, vol.
8.
3
Agreement for the Prosecution and Punishment of the Major War Criminals of the
European Axis, and Charter of the International Military Tribunal, London, 8 August
1945, available at http://www.icrc.org/ihl.nsf/FULL/350?OpenDocument, last ac-
cessed on 13 October 2012.

Trial, the Amendments define the ‘crime of aggression’ as an act of ag-

gression in a manifest violation of the U.N. Charter committed by politi-
cal or military leader. As for the conditions under which the Court may
exercise its jurisdiction with respect to the crime, the Amendments pro-
vide that the Security Council of the U.N. may, acting under Chapter VII
of the U.N. Charter, refer a situation of aggression to the Court; and the
latter can therefore entertain its jurisdiction with respect to the States in
question. The Amendments further authorise the Prosecutor to, subject to
the approval of the Pre-Trial Division, proceed with an investigation on
the crime of aggression upon State referral or proprio motu even if the
Security Council, after being informed of the situation, does not make de-
termination of aggression within six months. However, under the afore-
mentioned circumstances, the Court has no jurisdiction over the crime of
aggression committed by nationals of non-States Parties or within the ter-
ritory of non-States Parties and it also has no jurisdiction over the crime
with respect to States Parties that have made a declaration of non-
acceptance of the Court’s jurisdiction over the crime. 4
The adoption of the Amendments was acclaimed by some States
and scholars as a breakthrough for the development of international
criminal law, but received criticism and doubts from other States and
scholars as well. Its significance as a milestone for international criminal
law lies in that it will serve as a warning to aggressive States and their
leaders. It is an achievement of more than sixty years of efforts by the in-
ternational community in the maintenance of international peace and se-
curity through justice following the trials at Nuremberg and Tokyo. Criti-
cisms went firstly to the content of the definition, which is considered
ambiguous and not in line with the essential criminal law principles of
legality and specialty. It was also argued that the definition will make
more difficult the use of force to end the very crimes the Court is charged
with prosecuting, namely war crimes, crimes against humanity and crimes
of genocide. It would thus divert the Court from its core mission of pro-
tection of human rights. In particular, the provisions which authorise the
Prosecutor to proceed with an investigation of the crime without a deci-
4
Review Conference, RC/Res.6 Annex I, available at http://www.icc-cpi.int/iccdocs/
asp_docs/Resolutions/RC-Res.6-ENG.pdf, last accessed on 17 October 2012.

International Criminal Court:
A Judicial Guarantee for International Peace and Security?
sion from the Security Council are considered as a serious challenge to

the current regime of international peace and security. 5
Through an analysis of different opinions on the definition of the
crime and the conditions for the Court’s jurisdiction in the Amendments,
the author of this chapter modestly presents his thoughts on these issues.
6.2. Definition of the Crime of Aggression

Negotiations on the crime of aggression were among the most difficult
parts of the making of the ICC. Being concerned that the legal constraints
imposed by this crime would hamper their freedom of military
humanitarian interventions, some States argued that aggression should not
be included in the Court’s jurisdiction. Arab States seemed eager to define
the crime on the basis of UNGA Resolution 3314 (XXIX) so as to ensure
that the right of self-determination was recognised as an exculpatory
defence against the crime. States from the European Union and the Non-
Aligned Movement made it clear that the Statute was unacceptable
without jurisdiction over the crime of aggression. 6 By the end of the
United Nations Diplomatic Conference of Plenipotentiaries on the
5
.UHȕ DQG YRQ +ROW]HQGRII supra note 2; David Scheffer, “State Parties Ap-
prove New Crimes for International Criminal Court”, in ASIL Insight, 22 June 2010,
vol. 14, issue 16; Benjamin B. Ferencz, “Ending Impunity for the Crime of Aggres-
sion”, in Case Western Reserve Journal of International Law, 2009, vol. 41, p. 281;
“Statement by Chinese Delegation after the Adoption of the Crime of Aggression at
the Review Conference”, in Chinese Journal of International Law, 2010, p. 475 (the
speaker of this Statement is not identified in the Journal ᶘ࣋ߋ˖Ā䇪ǉഭ䱵ࡁ
һ⌅䲒㖇傜㿴㓖ǊѝⲴ‫⮕ץ‬㖚āˈ䖭Ҿǉѝഭഭ䱵⌅ᒤ࠺˄2010˅Ǌˈц⭼⸕
䇶ࠪ⡸⽮ 2011 ᒤ⡸ˈㅜ 25–46 亥(YANG Lijun, “On the Crime of Aggression un-
der the Rome Statute”, in Chinese Yearbook of International Law, World Affairs
Press, 2010, p. 25–46); ઘ䵢䵢˖Ā䈅᷀‫⮕ץ‬㖚ᶑⅮⲴ⌅ᖻᖡ૽üüԕഭ䱵ࡁһ⌅
䲒㇑䗆‫⮕ץ‬㖚ⲴᶑԦѪ㿶䀂āˈ䖭Ҿǉѝഭഭ䱵⌅ᒤ࠺˄2010˅Ǌˈц⭼⸕䇶
ࠪ⡸⽮ 2011 ᒤ⡸ˈㅜ 47–54 亥(ZHOU Lulu, “An Analysis on the Impacts of the
Provisions on Crime of Aggression—in the Perspective of the Conditions for the
Court’s Jurisdiction”, in Chinese Yearbook of International Law, World Affairs Press,
2010, pp. 47–54); ⦻⿰ẵ˖Ā‫⮕ץ‬㖚ᇊѹ৺‫⮕ץ‬㖚㇑䗆Ⲵ‫ߣݸ‬ᶑԦ䰞仈āˈ䖭Ҿ
ǉ㾯ᆹ᭯⋫ᆖ䲒ᆖᣕǊ2012 ᒤ 3 ᴸ⡸ˈㅜ 102–106 亥(WANG Xiumei, “Defini-
tion of Crime of Aggression and the Conditions for the Court’s Jurisdiction”, in Jour-
nal of Xi’an Politics Institute, March 2012, pp. 102–106.
6
Benjamin B. Ferencz, “Enabling the International Criminal Court to Punish Aggres-
sion”, in Washington University Global Studies Law Review, 2007, vol. 6, p. 558.

Establishment of an International Criminal Court in Rome in 1998, there

were still many irreconcilable points of view over the crime of aggression,
in particular in regard of the proper role of the Security Council in
determining an act of aggression and how to define the crime so as to
satisfy the principle of legality. 7 In order to break the stalemate and adopt
the Statute, States finally came up with a compromise by listing the crime
of aggression, along with genocide, crimes against humanity and war
crimes, as the crimes within the Court’s jurisdiction, but at the same time
stipulating that the Court could not exercise its jurisdiction over the crime
of aggression until a provision defining the crime and setting up the
conditions for jurisdiction was adopted in accordance with the Statute. 8
Following this compromise, the Preparatory Commission for the ICC 9 and
the Special Working Group on the Crime of Aggression (‘SWGCA’) 10
were established by the Diplomatic Conference and the Assembly of State
Parties to the Statute in 1998 and 2002 respectively to seek a
reconciliation of the conflicting views over the crime. States Parties as
well as non-States Parties were invited to take part in all the sessions of
these two institutions. After ten years of hectic efforts at the Preparatory
Commission and the SWGCA, proposals on the provisions on aggression
were finally drafted at the SWGCA in 2009 11, submitted to the Statute’s
First Review Conference for discussion in 2010, and were adopted by the
State Parties by consensus at the last moment of the Conference.
7
Michael O’Donovan, “Criminalizing War: Toward a Justifiable Crime of Aggres-
sion”, in British Columbia International and Comparative Law Review, 2007, vol. 30,
pp. 515–517.
8
Paragraph 2 of Article 5 of the Statute (before modification). It reads: “The Court
shall exercise jurisdiction over the crime of aggression once a provision is adopted in
accordance with articles 121 and 123 defining the crime and setting out the conditions
under which the Court shall exercise jurisdiction with respect to this Crime. Such a
provision shall be consistent with the relevant provisions of the Charter of the United
Nations”. Now this clause was deleted in accordance with RC/Res.6, Annex I of 11
June 2010. See, footnote I of Article 5 of the Statute.
9
Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court, Annex I, Resolution F, para. 7,
U.N. Doc. A/CONF.183/10, 17 July 1998.
10
Continuity of work in respect of the crime of aggression, ICC-ASP/1/Res.1, adopted
at the third plenary meeting on 9 September 2002.
11
Report of the Special Working Group on the Crime of Aggression, Doc. ICC-
APS/7/SWGA/2 (2009).

As for the definition of the crime of aggression, the key issue that
needs to be determined is the link between ‘acts of aggression’ of a State
and individual criminal responsibility. The strengthening of accountability
for acts of aggression with an enforcement measure based on individual
criminal responsibility is considered as a major contribution of the Nur-
emberg and Tokyo Trials to international criminal law. 12 Acts of aggres-
sion are breaches of international peace and security that can only be
committed by a State. On the other hand, the perpetrator of the crime of
aggression can only be an individual. These are the customary rules estab-
lished by the military trials following World War II. 13 Therefore, acts of
aggression are the precedent for the crime of aggression and the latter is a
corollary of the former. 14 The crime of aggression introduced by the
Amendments confirms these principles established by the World War II
trials.
6.2.1. Act of Aggression

Paragraph 2 of Article 8 bis introduced by the Amendments provides that:
For the purpose of this Statute, ‘act of aggression’ means the
use of armed force by a State against the sovereignty, territo-
rial integrity or political independence of another State, or in
any other manner inconsistent with the Charter of the United
Nations. Any of the following acts, regardless of a declara-
tion of war, shall, in accordance with United Nations Gene-
ral Assembly Resolution 3314 (XXIX) of 14 December
1974, qualify as an act of aggression:
1. The invasion or attack by the armed forces of a State of
the territory of another State, or any military occupa-
tion, however temporary, resulting from such invasion
12
Roger S. Clark, “Amendments to the Rome Statute of the International Criminal
Court Considered at the first Review Conference on the Court, Kampala, 31 May –
11June 2010”, in Goettingen Journal of International Law, 2010, vol. 2, p. 695.
13
G.A. Resolution 95(1): Affirmation of the Principles of International Law Recognized
by the Charter of the Nuremberg Tribunal; see also, Antonio Cassese, “Affirming of
the Principles of International Law Recognized by the Charter of the Nuremberg Tri-
bunal”, in United Nations Audiovisual Library of International Law, 2009, available
at http://untreaty.un.org/cod/avl/pdf/ha/ga_95-I/ga_95-I_e.pdf, last accessed on 17
October 2012.
14
Ferencz, 2007, supra note 6, pp. 561–562.

or attack, or any annexation by the use of force of the

territory of another State or part of thereof;
2. Bombardment by the armed forces of a State against the
territory of another State or the use of any weapons by a
State against the territory of another State;
3. The blockade of the ports or coasts of a State by the
armed forces of another State;
4. An attack by the armed forces of a State on the land, sea
or air forces, or marine and air fleet of another State;
5. The use of armed forces of one State which are within
the territory of another State with the agreement of the
receiving State, in contravention of the conditions pro-
vided for in the agreement or any extension of their pre-
sence in such territory beyond the termination of the
agreement;
6. The action of a State in allowing its territory, which it
has placed at the disposal of another State, to be used
by the other State for perpetrating an act of aggression
against a third State;
7. The sending by or on behalf of a State of armed bands,
groups, irregulars or mercenaries, which carry out acts
of armed force against another State of such gravity as
to amount to the acts listed above, or its substantial in-
volvement therein. 15
15
Supra note 5. The English version of the Statute has been modified according to the
Resolution. However, the Chinese translation of the Resolution concerning the act of
aggression (“‫⮕ץ‬㹼Ѫ”ᱟᤷаഭ֯⭘↖࣋ᡆԕ䘍৽ǉ㚄ਸഭᇚㄐǊⲴԫօަԆ
ᯩᔿ‫ץ‬⣟ਖаഭⲴѫᵳǃ亶൏ᆼᮤᡆ᭯⋫⤜・Ⲵ㹼Ѫ”) is inconsistent with the
English version (the official Chinese version available at http://www.icc-
cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-CHN.pdf, last accessed on 13 October
2012). From the Chinese translation we may conclude that violations against the sov-
ereignty, territory integrity or political independence in a manner other than the use of
armed forces (i.e., the so-called economic aggression) could also qualify as act of ag-
gression. However, from the acts of aggression listed afterwards, the elements of
crime of aggression annexed to the Resolution and opinions expressed during the
process of negotiation, the reasonable conclusion should be that the act of aggression,
as a precondition for the crime of aggression, is targeting at the use of armed forces
by State. Therefore, the appropriate Chinese version of the act of aggression should be:
‫⮕ץ‬㹼Ѫᱟᤷаഭ֯⭘↖࣋‫ץ‬⣟ਖаഭⲴѫᵳǃ亶൏ᆼᮤᡆ᭯⋫⤜・ᡆԕ䘍৽
ǉ㚄ਸഭᇚㄐǊ ⲴަԆᯩᔿ֯⭘↖࣋Ⲵ㹼ѪǄ

This clause is actually a combination of Articles 1 and 3 of UNGA

Resolution 3314 (XXIX), which was considered as the best compromise
the SWGCA could reach since they reflected current customary interna-
tional law. 16 In terms of structure, the definition is a combination of a ge-
neric description and a list of specific acts. The proponents of this meth-
odology argued that the generic description would allow the Court to fit
unforeseen situations of aggression into the definition, while the list is
specific enough to provide practical guidance. Thus, it could not only sat-
isfy the principle of legality but also encompass unforeseen scenarios at
the time of negotiation, which is important to the Court’s proper function
of retribution and deterrence. 17 In particular, the reference to Resolution
3314 in the sentence, namely ‘in accordance with the United Nations
General Assembly Resolution 3314 (XXIX) of 14 December 1974’, is of
creative ambiguity in that it allows the Court, subject to the relevant pro-
visions of the Statute, to rely on articles other than those of 1 and 3 in the
Annex of the Resolution for the purpose of determining an act of aggres-
sion. 18
However, the integration of the Articles and the reference to the
UNGA Resolution of 3314 (XXIX) was criticised as well. 19 First, Reso-
lution 3314 was adopted to provide guidance for the Security Council –
an international executive organ – in its determination of the existence of
an act of aggression and thus, was clearly political not legal in nature. It
was not aimed at establishing individual criminal responsibility and there-
16
Roger S. Clark, “Negotiating Provisions Defining the Crime of Aggression, its Ele-
ments and the Conditions for ICC Exercise of Jurisdiction over It”, in European
Journal of International Law, 2009, vol. 20, p. 1103; Major Kari M. Fletcher, “Defin-
ing the Crime of Aggression: Is There an Answer to the International Criminal
Court’s Dilemma?”, in Air Force Law Review, 2010, vol. 65, p. 259.
17
Devyani Kacker, “Coming Full Circle: The Rome Statute and the Crime of Aggres-
sion”, in Suffolk Transnational Law Review, 2010, vol. 33, p. 264; O’Donovan, 2007,
supra note 7, pp. 524–529.
18
Claus .UHȕDQG/HRQLHYRQ+ROW]HQGRUII³7KH.DPSDOD&RPSURPLVHRQWKH&ULPH
of Aggression”, in Journal of International Criminal Justice, 2010, vol. 8, p. 1191;
however, it is asserted the Article 2, which accords prime facie effect to any first use
of armed force, shall not guide the judicial work of the Court.
19
Oscar Solera, “The Definition of the Crime of Aggression: Lessons Not-Learned”, in
Case Western Reserve Journal of International Law, 2010, vol. 42, pp. 804–810; Ma-
jor Kari M. Fletcher, 2010, supra note 16, p. 260; Michael J. Glennon, “The Blank-
Prose Crime of Aggression”, in Yale Journal of International Law, 2010, vol. 35, p.
97.

fore, does not satisfy the principle of legality. Because of its ambiguity,
the International Law Commission refused to integrate this definition into
its Draft Code of Crimes against the Peace and Security of Mankind. Even
the Security Council has never made any reference to the definition in its
resolutions on situations when it has made a determination of aggression.
Secondly, the reference made to the Resolution also creates confusion as
to the real role of the Resolution. If the reference is interpreted as the in-
tegration of the Annex of the Resolution as whole, then the list of acts of
aggression should be open and non-exhaustive because the Security
Council, based on Article 4 of the Annex, may determine that acts other
than those listed in Article 3 constitute aggression. Therefore, what would
happen if the Security Council decides to add a new act of aggression to
the list? If the Court follows the Council’s new decision, its independence
will be put at risk, the ambiguity of the definition will be further enhanced
and the principle of legality will suffer further damage, which is clearly in
violation of Article 22 of the Statute. 20 But if the Court refuses to take
into consideration of the new acts of aggression defined by the Security
Council, the reference will then loose its value. Last but not least, the
combination of the generic description and the list could also lead to con-
fusion in term of application. If the list is considered as exhaustive and the
only crimes to be addressed by the Court, the generic description will be
made redundant; however, if the generic description is considered to be
clear enough to satisfy the principle of legality, the list will then be re-
dundant. In this regard, it is suggested the list, according to the spirit of
the Resolution, shall be open and illustrative but should be subject to the
limitation set up by the generic description. 21
Clearly, the purpose of defining ‘act of aggression’ is to assess the
legality of the use of forces by States, based on Article 2(4) of the U.N.
Charter. Article 2(4) explicitly prohibits the threat or use of force against
20
Article 22 of the Statute; it concerns the principle of nullum crimen sine lege. Para-
graph 1 of the Article provides that “a person shall not be criminally responsible […]
unless the conduct in questions constitutes, at the time it takes place, a crime within
the jurisdiction of the Court”. Paragraph 2 of the Article requires that “in case of am-
biguity, the definition shall be interpreted in favour of the person being investigated,
prosecuted or convicted”. Therefore, if the act of aggression determined by the Secu-
rity Council is not within the list, it could be argued that it is also not a crime listed
within the Statute and thus, not within the jurisdiction of the Court either; see
Fletcher, 2010, supra note 16, p. 260.
21
Kacker, 2010, supra note 17, pp. 264–265.

the territorial integrity, or political independence of any State, or in any

other manner inconsistent with the Purpose of the United Nations. How-
ever, the generic definition of ‘act of aggression’ in the Amendments con-
tains some departure from Article 2(4), due to its importation of Resolu-
tion 3314. Firstly, it qualifies ‘force’ with ‘armed’ and thus, was consid-
ered by some scholars to have limited its scope of application, that is, acts
of force other than armed force, such as economic force or computer at-
tacks would not come within the scope of the definition. Secondly, beside
the protection of political independence and territorial integrity, the defi-
nition in the Amendment also protects ‘sovereignty’, which is far from
being specific and would expand the scope of the prohibition in Article
2(4). Thirdly, the meaning of the phrase ‘in other manner inconsistent
with the U.N. Charter’ needs to be clarified. Last but not least, by choos-
ing ‘act of aggression’ rather than ‘war of aggression’ as used by the Nur-
emberg Charter, this relatively low-threshold of acts of aggression in the
Amendments could provide opportunity for abuse of procedure before the
Court through referring any dispute involving use of armed force to the
Court. All these ambiguities impose doubts on the judicial applicability of
the definition. This might then make the list of acts of aggression a valu-
able supplement. However, even though the list is specific, it only ad-
dresses traditional armed conflicts among States and cannot accommodate
emerging forms of use of forces, such as terrorist attack or aiding armed
insurgents. 22 It was even argued that “sovereignty, territorial integrity and
political independence” are not the only assets the crime of aggression
should protect. All cases of use of forces in international relations are
against the purpose or spirit of Article 2(4). Therefore, the definition of
aggression should be “the use of force against another State”. 23
As far as the structure of the definition is concerned, the combina-
tion of a generic description and a specific list, as argued by some schol-
ars, could incorporate the strengths of both approaches. 24 However, this
methodology is a Sword of Damocles for it can still be argued that it takes
22
Ibid., p. 269; Glennon, 2010, supra note 20, pp. 96–99. Some scholars are of the opin-
ion that the term of ‘force’ in Article 2(4) does not cover any possible kind of force,
but is, according to the correct and prevailing view, limited to armed force. See Bruno
Simma, The Charter of the United Nations: A Commentary, second Edition, Oxford
University Press, 2002, p. 117.
23
Solera, 2010, supra note 19, pp. 813–815.
24
Kacker, 2010, supra note 17, p. 264.

the weaknesses of both as well. Putting two definitions with built-in am-
biguities and limits side by side can still double ambiguities or limits.
Taking into consideration that ambiguity created by compromise is the
nature of the international law-making process and is faced by all the in-
ternational institutions, technical ambiguities could be clarified through
the Court’s cautious jurisprudence in the future.
The content of the definition of ‘act of aggression’ actually indi-
cates the extent to which the States are willing to subject the use of force
to the legal review by the Court. It is clear from the Amendments that
States intend only to address the issue of use of force among themselves,
namely inter-state armed conflicts, under the umbrella of ‘act of aggres-
sion’. This then requires a State act as a peculiar element on the crime of
aggression compared to other crimes under the Statute. 25 In the context of
the current international security context, this definition fulfils the pur-
pose of Article 2(4) and the U.N., that is, “to save succeeding generations
from the scourge of war, which twice in our lifetime has brought untold
sorrow to mankind”. 26
However, it has been argued that the situation of international secu-
rity has changed compared to the time when the U.N was founded. As
stated in the report entitled A more secure world: Our shared responsibil-
ity by the Secretary-General’s High-level Panel on Threats, Challenges
and Change, there were fewer inter-state wars in the past 60 years and the
war between great powers was avoided. Internal armed conflicts, terror-
ism and trans-national organised crime are now the threats to security
faced by the international community. These non-traditional security
threats are mainly or substantially generated by non-State actors. The
rules regulating use of force by non-State actors have not been developed
to the same level as those for States. Therefore, it is recommended that
legal reform be adopted to tackle such non-traditional threats. 27 According
to a survey done by the International Institute of Strategic Studies, there
are currently eighty-four different non-State actor groups in the Middle
East and North Africa alone. 28 Some of these groups, such as Al-Qaida,
25
.UHȕDQGYRQ+ROW]HQGRUII 2010, supra note 18, p. 1190.
26
Preamble and Article 1 of the U.N. Charter.
27
A more secure world: Our shared responsibility, A/59/565, 13 December 2004.
28
Steve Beytenbrod, “Defining Aggression: An Opportunity to Curtail the Criminal
Activities of Non-State Actors”, in Brook Journal of International Law, 2011, vol. 36,
no. 2, p. 648.

have the capacity to launch an attack against States on their own. It has
also been argued that international practice shows that non-State actors
could launch an armed attacked in the sense of Article 51 of the U.N.
Charter and thus, States could invoke a right of self-defence against those
non-State armed attacks. 29 Therefore, to adopt a definition still limiting an
‘act of aggression’ as an illegal use of force among States equals turning a
blind eye to the already changed international security situation. The op-
portunity to progressively develop international criminal law was missed.
On the other hand, a definition of ‘act of aggression’ highlighting a
State’s act is also at variance with the principles of international criminal
law established since the Nuremberg Trial. These principles include that
non-State actors can incur criminal responsibility, both independently and
through a joint crime with a State. International criminal law focuses on
the individual, irrelevant of his or her affiliation. 30
As far as acts of aggression are concerned, the scenario that a State
commits aggression through non-State actors could be classified within
the situation defined by sub-paragraph (g) of the list. An independent ‘ag-
gression’ committed by non-State actors seemingly falls out of both the
list and the definition. In this regard, it should be born in mind that as a
secondary rule, the criminalisation of acts of aggression is subject to the
limitation set up by the primary rule regulating the use of force, namely
Article 2(4) of the Charter, which was considered the starting point to
reach consensus. Before the primary rules have developed to reflect con-
temporary developments, it is unrealistic to cure imperfection through the
backdoor of the secondary rule, namely international criminal law. 31
6.2.2. Crime of Aggression

The ‘crime of aggression’ is defined by paragraph 1 of Article 8 bis as:
[…] planning, preparation, initiation or execution, by a per-
son in a position effectively to exercise control over or to di-
rect the political or military action of a State, of an act of ag-
29
&ODXV .UHȕ ³6RPH 5HIOHFWLRQ RQ WKH ,QWHUQDWional Legal Framework Governing
Transnational Armed Conflicts”, in Journal of Conflict and Security Law, 2010, vol.
15, pp. 247–248.
30
Beytenbrod, 2011, supra note 28, pp. 674–675.
31
.UHȕDQGYRQ+ROW]HQGRUII 2010, supra note 18, pp. 1190, 1193.

gression which, by its character, gravity and scale, consti-

tutes a manifest violation of Charter of the United Nations.
This definition is based on Article 6 of the 1946 London Charter of the
International Military Tribunal (‘IMT’). The Charter defined ‘crime
against peace’ as “planning, preparation, initiation or waging of a war of
aggression, or a war in violation of international treaties, agreements or
assurances […]”. 32
The definition of the crime of aggression presents the following
characteristics.
6.2.2.1. A Leadership Crime

According to the definition, a crime of aggression can only be committed
by those persons who hold a position allowing them to effectively exer-
cise control or direct the political or military action of a State. It can be
concluded that only those persons in a de jure or de facto leadership posi-
tion have the chance to fulfil the ‘effective control or direct’ criteria. This
leadership element is in accordance with the nature and purpose of the
crime. Acts of aggression as acts of a State are of a collective nature and
the purpose of the criminalisation of aggression is to prevent and punish
the use of armed force as a tool of State foreign policy. Therefore, the
perpetrators of the crime can only be those persons who have the capacity
to influence, shape or control the military or political policy of States and
the leadership element then becomes the connecting point between the
individual criminal liability and the act of aggression. The requirement of
the leadership element for the crime of aggression was affirmed by the
jurisprudence of the Nuremberg Trial and General Assembly 95(1), as
well as recognised by scholars. 33 The leadership element of the crime is
further strengthened and clarified by inclusion of Article 25, paragraph 3
bis, according to which, in respect of the crime of aggression, persons
charged with any form of responsibility, namely committing, ordering,
soliciting, inducing, aiding, et cetera, shall be those who can also effec-
tively exercise control over or direct the political or military action of a
32
Supra note 2; Article 6, Charter of the International Military Tribunal. London, 8 Au-
gust 1945.
33
Larry May, Aggression and Crimes Against Peace, Cambridge University Press,
2008, pp. 232–233; Claus Kress, “The Crime of Aggression before the First Review
of the ICC Statute”, in Leiden Journal of International Law, 2007, vol. 20, p. 855.

State. 34 Accordingly, secondary perpetrators do not fall within the juris-

diction of the Court, that is, an ordinary soldier of the aggressor state can-
not be criminalised as an aider under Article 25. 35 Taking into considera-
tion the reality that broad categories of persons are nowadays more or less
involved in the State’s efforts put into the war (that is, the farmer culti-
vates food for the army, and citizens work in the ammunition factory, et
cetera), the limits put on by the leadership element seem fitting and
proper. The collective nature of aggression should not impose a collective
penalty to all of those involved, especially those only involved remotely.
Even though there is no disagreement on the leadership element as
a requirement for the crime, there are controversies over the scope of this
element. The opponents of the terms of ‘control’ or ‘direct’ are of the
opinion that these terms are a misinterpretation of the jurisprudence of the
Nuremberg Trial. 36
Firstly, the Nuremberg Tribunal applied a ‘shape’ or ‘influence’
standard rather than that of ‘effective control or direct’ to define the re-
sponsible persons for the crime. The application of such standard for the
crime could be summarised as: (1) the person had the knowledge that an
aggressive war was intended; (2) the person who possess such a knowl-
edge must be in a position to shape or influence the aggressive policy,
namely have the ability to further, hinder or prevent the policy; (3) the
person defined by (1) and (2) took action to further the aggressive policy.
Therefore, a person without the ability to shape or influence an aggressive
policy, who just takes part in the furtherance of the policy, cannot be
charged with crime of aggression because his act shows that there is a
lack of criminal intent for the aggression. 37 The standard of ‘shape or in-
fluence’ is seemingly less strict than that of ‘effective control or direct’.
By applying the former, the persons who are not part of State apparatus,
such as influential economic actors, could be charged with the crime. By
applying the latter, only those forming the leadership circles of a State
could be charged because the term ‘control’ refers to power over the
34
Supra note 4; R.C. Res. 6 and Article 25(3) bis.
35
.UHȕDQGYRQ+ROW]HQGRUII 2010, supra note 18, p. 1189.
36
Kevin Jon Heller, “Retreat From Nuremberg: The Leadership Requirement in the
Crime of Aggression”, in European Journal of International Law, 2007, vol. 18, p.
479.
37
Ibid., p. 487.

commission of the acts and the term ‘direct’ connotes actual direction at
an operative level. 38 On the other hand, the case law of the International
Military Tribunals clearly established that not only the leaders of the ag-
gressor State but also persons in the private economic sector as well as
citizens of a third State can be charged with the crime of aggression, and,
as stated above, no requirement of ‘effective control or direct’ was im-
posed on those persons. Therefore, the standard of ‘effective control or
direct’ is not a proper reflection of the precedents established by the
IMT. 39 In order to address this discrepancy, it was suggested to clearly
state in the travaux préparatoires that the intent of the drafters behind the
‘effective control or direct’ standard is to adopt comprehensively the Nur-
emberg positions. 40
It was also argued that the ‘effective control or direct’ standard is
anything but clear. In a democratic society, “it is almost impossible to
pinpoint responsibility for a certain action to just a few individuals since
large numbers of bureaucrats are usually involved in preparing and shap-
ing decisions”. 41 However, it was stressed by some scholars that the lead-
ership element is Article 8bis should focus on de facto control or direc-
tion, not on formal status. Therefore, it could extend to business or even
religious leaders. It is a stricter but proper standard compared to that of
the Nuremberg Trial because the latter is too broad in that it could cover
too large a group of persons in democratic societies. But the extension of
this requirement to all forms of participation under Article 25 is consid-
ered by the same scholars as an improper reduction of the effects of this
clause. 42
6.2.2.2. Actus Reus and Mens Rea of the Crime

The term ‘actus reus’ refers to the wrongful deed that comprises the
physical components of a crime. It was argued that an ‘act of aggression’
requires co-ordination and co-operation among varied parties and some of
these activities are not obviously illegal, such as financial preparation,
38
Ibid., p. 491.
39
Heller, 2007, supra note 36, pp. 480–486.
40
Kress, 2007, supra note 33, p. 855.
41
Glennon, 2010, supra note 19, p. 100.
42
Kai Ambos, “The Crime of Aggression after Kampala”, in German Yearbook of In-
ternational Law, 2010, vol. 53, pp. 463–509.

production of ammunitions and even move or mobilisation of the armed

forces. Only being put into the overall context of the aggression can their
illegal nature be ascertained? Therefore, only participation in planning the
aggression can qualify as actus reus with respect to the crime of aggres-
sion. 43 The Amendment follows this logic but, based on Article 6 of the
Nuremberg Charter, expands the scope of participation to cover planning,
preparation, initiation and execution.
It was suggested during the negotiation to delete the terms ‘plan,
prepare, initiate or execute’ because Article 25 addresses all kinds of par-
ticipation in the crime and the use of these terms could blur the difference
between the primary and secondary perpetrators. Those insisting on the
use of these terms argued that they reflected the typical form of the crime,
highlighted the action to be criminalised and thus, could play an effective
deterrence role. It was also stressed by the negotiators that the mere plan-
ning without actual execution of the aggression planned should not be
charged since mere planning cannot be considered as a use of armed force
inconsistent with the U.N. Charter and cannot satisfy the requirement that
the Court shall only prosecute the gravest breaches of international law.44
On the other hand, it could be concluded from the list of acts of aggres-
sion and the discussions during the negotiations that an attempted aggres-
sion is not intended for prosecution nor an inchoate conspiracy to commit
aggression without a following, actual act of aggression. 45 The Elements
of crime adopted at the Review Conference affirm that the crime of ag-
gression is based on act of aggression that has been committed. 46
The term ‘mens rea’ refers to the wrongful state of mind that com-
prises the mental component of a crime. According to the jurisprudence of
the Nuremberg Trial, the mere knowledge of the aggressive policy was
not enough to impose criminal responsibility on a person. The perpetrator
must aim at advancing the policy by what he or she chose to do. Without
this intent, there will be no sufficient link between the perpetrator’s action
and the perpetration of the war and thus, it would be unfair to convict
43
May, 2008, supra note 33, pp. 230, 232–233.
44
Kacker, 2010, supra note 17, pp. 266–267.
45
Clark, 2009, supra note 16, pp. 1108–1109.
46
Supra note 4, paragraph 3 of the Elements in Annex II requires that “The act of ag-
gression […] was committed”.

such a person. 47 In this regard, the negotiators agreed that Article 30 of

the Statute should be applied to the crime of aggression. This Article re-
quires that a person shall be criminally responsible only if the crime is
committed with intent and knowledge. Knowledge means awareness that
a circumstance exists or a consequence will occur in the ordinary course
of events. The term ‘intent’ connotes that a person means to engage in the
conduct or cause the consequence or is aware that the consequence will
occur in the ordinary course of events. 48 The requisite criminal intent is
essential to the crime of aggression because all nations are preparing for
war in one or another way, but not all of them are doing the preparation
with the intention for an aggressive war. 49 Also as stated earlier, an act of
war involves varied parties, but not all of them are participating with the
intent to further the aggressive policy. Only those who, not only possess-
ing the awareness of the aggressive plan, but also meaning to further the
plan through what they choose to do or not to do, can be charged with the
crime of aggression. It shall also be noted that the knowledge of the ag-
gressive context refers to the awareness of the factual circumstances es-
tablishing the illegality of the use of force and not a legal evaluation of
those factual circumstances. 50
It was suggested that the crime of aggression contains a specific in-
tent for the perpetrators of the crime who would always aim at obtaining a
strategic advantage over opponents or changing the status quo. 51 This
proposal, which would greatly narrow down the scope of the crime, was
not accepted by the negotiating States.
6.2.2.3. The Threshold Clause

Paragraph 1 of Article 8bis contains what is known as a ‘threshold
clause’, which is meant to grant jurisdiction to the Court only in the cases
where the act of aggression “by its character, gravity and scale, constitutes
a manifest violation of the Charter of the United Nations”. Therefore,
some acts may constitute ‘act of aggression’ according to paragraph 2, but
47
May, 2008, supra note 33, pp. 251, 254.
48
Paragraph 2 of Article 30 of the Statute.
49
Fletcher, 2010, supra note 16, p. 259.
50
Ambos, 2010, supra note 42; supra note 5, paragraphs 5 and 6 of the Elements in
Annex II of the RC/Res. 6.
51
Solera, 2010, supra note 19, pp. 815–819.

not ‘crime of aggression’ in paragraph 1 of the same article if they do not

violate the Charter manifestly.
In the process of negotiations, this threshold clause was considered
valuable in that it limits the Court’s jurisdiction to the most serious acts of
aggression and it is also a compromise of years of heated negotiations al-
lowing for widest possible support. In order to address this issue of grav-
ity, it was further recommended to clarify the test for the crime as fol-
lows:
1. The commission of aggression must be widespread or systematic;
2. It involves a relatively large number of victims or imposes severe
injury upon civilian populations or combatants in violation of the
laws and customs of armed conflicts.
Therefore, a so-called minor use of forces such as border skirmishes
or cross border artillery attack and other similar situations could be ex-
cluded from the definition of the crime. 52
However, the opponents of the insertion of such a threshold clause
argued that the Preamble, Articles 1, 5 and 17 of the Statute have already
required that only the most serious crimes be included in the Court’s ju-
risdiction; it is unreasonable and illogical to further classify the acts of
aggression into manifest or non-manifest violations of the Charter since
they are all violations of the Charter and thus, merit the same treatment. 53
On the other hand, the qualifiers provided by the threshold clause do not
provide the requisite specificity or precision. Applying it to the same case
by different persons could lead to different conclusions. They are of a
subjective nature, fail to provide ‘ascertainable standards of guilt’ and
therefore do not satisfy the criminal law principles of legality or spe-
cialty. 54
As for the question whether the same standard shall be applied to
act of aggression and the crime of aggression, it is worth noting that act of
aggression aims at establishing State responsibility for the illegal use of
force, while the crime of aggression is meant to impose criminal respon-
52
Keith A. Petty, “Criminalizing Force: Resolving the Threshold Question for the
Crime of Aggression in the Context of Modern Conflict”, in Seattle University Law
Review, 2009, vol. 33, p. 118.
53
Fletcher, 2010, supra note 17, pp. 257–258; Kacker, 2010, supra note 18, pp. 267–
268.
54
Glennon, 2010, supra note 20, pp. 101–102.

sibility on individual persons. The former presents a nature of civil law

while the latter is criminal law in nature. It is worthwhile to apply a less
strict standard for act of aggression as that would make it difficult for
States to justify illegal use of force, while a restrictive definition of crime
of aggression will be more in line with the requirement of criminal justice,
in particular the protection of human rights. 55
6.2.3. Understandings Regarding the Crime of Aggression:

Is Humanitarian Intervention Excluded?
During the process of negotiations, it was asserted that the crime of ag-
gression should only cover manifest and undisputed violations of the
Charter and exclude the borderline or grey area cases, such as humanitar-
ian intervention, anticipatory self-defence and mere border incursion for
anti-terror warfare. 56 It was even argued that an exception of humanitarian
necessity should be established for the crime of aggression under the Stat-
ute. 57
Out of concerns for unilateral humanitarian intervention, the U.S.
Delegation insisted at the Conference that the crime of aggression under
Article 8bis should not cover military action aiming to prevent war
crimes, crimes against humanity or genocide because they are not mani-
fest violations of the U.N. Charter and seek to prevent the very crimes the
Statute is designed to deter. 58 Upon U.S. insistence, understandings re-
garding the crime of aggression were adopted, the following points of
which are particularly noteworthy: 59
6. […] aggression is the most serious and dangerous
form of illegal use of force; and that a determination
whether an act of aggression has been committed re-
55
May, 2008, supra note 34, Chapter 5 and pp. 213–214.
56
Andreas Paulus, “Second Thoughts on the Crime of Aggression”, in European Jour-
nal of International Law, 2010, vol. 20, no. 4, p. 1121; Elizabeth Wilmshurst, “Ag-
gression”, in R Cryer, et al. (eds.), An Introduction to International Criminal Law and
Procedural, 2007, p. 268.
57
Christopher P. Denicola, “A Shield for the Knight of Humanity: the ICC should
Adopt a Humanitarian Necessity Defense to the Crime of Aggression”, in University
of Pennsylvania Journal of International Law, 2008, vol. 30, p. 641.
58
Statement by the U.S. Delegation, available at http://www.state.gov/s/l/releases/re
marks/142665.htm, last accessed on 17 October 2012.
59
Supra note 4, RC/Res.6, Annex III.

quires consideration of all the circumstances of each

particular case, including the gravity of the acts con-
cerned and their consequences, in accordance with the
Charter of the United Nations.
7. […] in establishing whether an act of aggression con-
stitutes a manifest violation of the Charter of the
United Nations, the three components of character,
gravity and scale must be sufficient to justify a mani-
fest determination. No one component can be signifi-
cant enough to satisfy the manifest standard by itself.
Can unilateral humanitarian intervention be excluded from the
scope of the crime of aggression based on these understandings? Firstly,
unilateral humanitarian intervention involves use of armed force against
sovereignty and territorial integrity without U.N. authorisation. It could be
reasonably described as a violation of the U.N. Charter. It is also difficult
to differentiate, in terms of gravity, character or scale, acts of humanitar-
ian intervention from acts of aggression listed in paragraph 2 of Article
8bis. Therefore, acts of humanitarian intervention could constitute acts of
aggression, which seems to make paragraph 7 of the Understandings a
useless justification for humanitarian intervention. 60 The proponent for
the ‘humanitarian intervention exception’ may still argue that the inter-
vention is to prevent international crimes, that it aims to produce positive
consequences for the international community and for the population of
the State in questions as well and, thus, should be excluded from the
scope of the crime based on paragraph 6 of the Understandings. However,
paragraph 6 requires that the determination of the gravity and conse-
quences be made in accordance with the U.N. Charter. The unilateral hu-
manitarian intervention, as stated before, clearly does not accord with the
rules regulating use of force provided by the U.N. 61
60
Larry May, “The International Criminal Court and the Crime of Aggression: Aggres-
sion, Humanitarian Intervention and Terrorism”, Case Western Reserve Journal of In-
ternational Law, 2009, vol. 41, p. 334. Prof. Glennon is of the opinion that no legal
consideration may serve as a justification for aggression under Article 8bis; Glennon,
2010, supra note 19, pp. 88–90.
61
The insertion of “in accordance with the Charter of the United Nations” was done
upon the insistence of the Iranian Delegation to limit its scope to what is permitted
under the Charter; see, William A. Schabas, “Kampala Diary 10/6/10 The ICC Re-
view Conference: Kampala 2010”, available at http://iccreviewconference.blogspot.
com/, last accessed on 31 July 2012.

In addition, the legal status and effects of the Understandings for

the Court are unclear. Firstly, the Understandings are not part of the Stat-
ute and cannot be considered as a treaty. Therefore, they do not belong to
the applicable law of the Court as provided by Article 21 of the Statute
and are not binding on the Court. 62 It should also be noted that the Under-
standings are not necessarily a reflection of the attitudes and understand-
ings of the States Parties to the Statute since it was adopted under the in-
sistence of a non-State Party. Under these circumstances, there exist rea-
sonable doubts as to whether the Understandings could be relied upon as
reference for the interpretation of the Article 8bis.
6.3. Conditions for the Court’s Jurisdiction over the Crime

of Aggression
6.3.1. Introduction
The conditions for the Court to exercise its jurisdiction over the crime of
aggression are provided as follows in Article 15bis and ter: 63
Article 15 bis Exercise of jurisdiction over the crime of ag-
gression (State referral, proprio motu)
1. The Court may exercise jurisdiction over the crime of
aggression in accordance with article 13, paragraphs
(a) and (c), subject to the provisions of this article.
2. The Court may exercise jurisdiction only with respect
to crimes of aggression committed one year after the
ratification or acceptance of the amendments by thirty
States Parties.
3. The Court shall exercise jurisdiction over the crime of
aggression in accordance with this article, subject to a
decision to be taken after 1 January 2017 by the same
majority of States Parties as is required for the adop-
tion of an amendment to the Statute.
4. The Court may, in accordance with article 12, exer-
cise jurisdiction over a crime of aggression, arising
from an act of aggression committed by a State Party,
62
According to Article 21 of the Statute, the applicable law for the Court includes in the
first place, the Statute, Elements of Crimes, its rules of Procedure and Evidence and in
the second place, applicable treaties and principles and rules of international law.
63
Supra note 4, Annex I, RC/Res.6.

unless that State Party has previously declared that it

does not accept such jurisdiction by lodging a declara-
tion with the Registrar. The withdrawal of such a dec-
laration may be effected at any time and shall be con-
sidered by the State Party within three years.
5. In respect of a State that is not a party to this Statute,
the Court shall not exercise its jurisdiction over the
crime of aggression when committed by that State’s
nationals or on its territory.
6. Where the Prosecutor concludes that there is a reason-
able basis to proceed with an investigation in respect
of a crime of aggression, he or she shall first ascertain
whether the Security Council has made a determina-
tion of an act of aggression committed by the State
concerned. The Prosecutor shall notify the Secretary-
General of the United Nations of the situation before
the Court, including any relevant information and
documents.
7. Where the Security Council has made such a determi-
nation, the Prosecutor may proceed with the investiga-
tion in respect of a crime of aggression.
8. Where no such determination is made within six
months after the date of notification, the Prosecutor
may proceed with the investigation in respect of a
crime of aggression, provided that the Pre-Trial Divi-
sion has authorized the commencement of the investi-
gation in respect of a crime of aggression in accor-
dance with the procedure contained in article 15, and
the Security Council has not decided otherwise in ac-
cordance with article 16.
9. A determination of an act of aggression by an organ
outside the Court shall be without prejudice to the
Court’s own findings under this Statute.
10. This article is without prejudice to the provisions re-
lating to the exercise of jurisdiction with respect to
other crimes referred to in Article 5.
Article 15 ter Exercise of jurisdiction over the crime of ag-
gression (Security Council referral)

1. The Court may exercise jurisdiction over the crime of

aggression in accordance with article 13, paragraph
(b), subject to the provisions of this article.
2. The Court may exercise jurisdiction only with respect
to crimes of aggression committed one year after the
ratification or acceptance of the amendments by thirty
States Parties.
3. The Court shall exercise jurisdiction over the crime of
aggression in accordance with this article, subject to a
decision to be taken after 1 January 2017 by the same
majority of States Parties as is required for the adop-
tion of an amendment to the Statute.
4. A determination of an act of aggression by an organ
outside the Court shall be without prejudice to the
Court’s own findings under this Statute.
5. This article is without prejudice to the provisions re-
lating to the exercise of jurisdiction with respect to
other crimes referred to in Article 5.
Under Article 15bis and ter the Court may exercise its jurisdiction
over the crime of aggression under the following circumstances: acting
under Chapter VII, the Security Council of the U.N. may refer a situation
concerning aggression to the Court; a State Party may refer a situation
concerning aggression to the Court or the Prosecutor of the Court may
initiate an investigation proprio motu. These clauses are actually affirma-
tions of Article 13 of the Statute and received general consensus during
the negotiations. 64
However, as for the scope of the jurisdiction, an important distinc-
tion was made between, on one hand, State referral or the Prosecutor’s
initiation of an investigation and, on the other hand, the Security Coun-
cil’s referral. Under the former scenario, in order to protect the non-States
Parties’ nationals from the jurisdiction of the Court with respect to the
crime of aggression, paragraph 2 of Article 15bis provides that the Court
cannot exercise its jurisdiction when the crime is committed by a non-
State Party’s national or on a non-State Party’s territory. This amendment
was considered to have provided the protection long sought by non-State
Parties. At the same time, paragraph 4 of Article 15bis expunges those
States Parties having declared their non-acceptance of the new crime of
64
Fletcher, 2010, supra note 16, p. 247; Kacker, 2010, supra note 17, p. 272.

aggression from the Court’s jurisdiction. These concessions are expected

to be able to facilitate the acceptance of the amendment. Under the latter
scenario, that is referral from the Security Council acting under Chapter
VII of the Charter, the Court may exercise its jurisdiction over the crime
of aggression with respect to any State, whether it has accepted the
Court’s jurisdiction or not. 65
As for the State referral or investigations initiated by the Prosecu-
tor, if the latter believes that there is a reasonable basis to proceed with
the investigation, he or she shall first ascertain whether the Security
Council has made a determination of an act of aggression with respect to
the State concerned. The Prosecutor shall also notify the Security Council
of the situation. When the Security Council has made a determination of
an act of aggression with respect to the State, the Prosecutor may proceed
with the investigation but the determination is not binding for the State. If
the Security Council does not make such a determination within six
months after the receipt of the Prosecutor’s notification, the Prosecutor
may proceed with the investigation provided that he or she gets the au-
thorisation from the Pre-Trial Division, but the Security Council could
defer the investigation under Article 16 of the Statute. Consensus was also
reached during the Review Conference that the authorisation from the
Pre-Trial Division shall be a majority agreement of all the judges consti-
tuting the Division. 66
6.3.2. Analysis
During the process of negotiations on the crime of aggression, the condi-
tions for the Court’s jurisdiction on the crime, in particular whether the
Court should proceed with the investigation in the absence of a determina-
tion of aggression by the Security Council, was considered as the ‘ques-
tion of questions’. 67 This question is actually tackling the issues of what
role the Security Council should play in the case of a State referral or a
Prosecutor’s proprio motu investigation. The core issue is whether the
Court should independently proceed with an investigation in the absence
of a determination of aggression by the Security Council. The essence of
the issue is how to keep the balance between the independence of the
65
Scheffer, 2010, supra note 5.
66
Ibid.
67
.UHȕDQGYRQ+ROW]HQGRUII 2010, supra note 18, pp. 1208.

Court and the authority of the Security Council with respect to the deter-
mination of aggression. States – in particular the permanent members of
the Security Council – were deeply divided on this issue during the nego-
tiations.
It is understandable that there will be no conflict between the Secu-
rity Council and the Court when the former refers a situation to the latter.
In these circumstances, the States concerned are also under obligation to
co-operate with the Court since the referral is made by the Security Coun-
cil acting under Chapter VII of the Charter. 68
Therefore, the real question is what kind of role the Security Coun-
cil should play in the case of a State referral or an investigation initiated
by the Prosecutor. In order to address this issue, the Amendment firstly
requires that the Prosecutor should ascertain whether the Security Council
has made a determination of aggression with respect to the State in ques-
tion or not. If the Security Council had made such a determination, the
Prosecutor can then proceed with the investigation but the determination
of the Council is not binding on the Court.
The above-mentioned seemingly reasonable solution still creates
problems in practice. Firstly, since its inception, the Security Council has
only issued determinations of acts of aggression with respect to situations
concerning South Africa and Angola (1967), Israeli bombing of the head-
quarters of the Palestine Liberation Organization (‘PLO’) in Tunisia
(1985), and an armed aggression by mercenaries against Benin (1977).
‘Threat to international peace or security’ is the term more frequently
used by the Council for situations of conflicts. 69 Therefore, due to the
scarce practice of the Council with respect to such determinations, we
could reasonably foresee that the chances for the Prosecutor to proceed on
the basis of the Council’s determination are rather slim. As for the Coun-
cil’s determinations of ‘threat to international peace and security’ or
‘breach of peace’, they cannot serve as a basis for the Prosecutor to pro-
ceed with an investigation since there is no such authorisation in the Stat-
68
Ferencz, 2009, supra note 5, p. 286; Kacker, 2010, supra note 17, p. 277.
69
Troy Lavers, “Determining the Crime of Aggression: Has the Time Come to Allow
the International Criminal Court its Freedom?”, in Albany Law Review, 2008, vol. 71,
pp. 304–305; supra note 17: according to Devyani Kacker, there are only 31 resolu-
tions of the Council condemning acts of aggression, most of which concern South Af-
rica and Rhodesia (pp. 275–276).

ute. 70 It shall be further noted that the determination of the Council is only
a matter of procedure and not binding on the Court. Thus, if the determi-
nation of the Council and the Court are in conflict, the reputation and
credibility of both institutions will be at risk. What should the Court do if
the Council decides that no aggression has taken place in a given situa-
tion? Can such a determination serve as a justified defence for the State or
defendant before the Court? The logical answer to these questions should
be that the determination of the non-existence of aggression is also not
binding for the Court, just as that of the existence of aggression. Then,
faced with the embarrassing situation that the Prosecutor proceeds with
the investigation despite its determination of the non-existence of aggres-
sion, the Security Council could possibly rely on Article 16 of the Statute
to defer the proceedings before the Court.
However, it is in fact equally difficult for the Council to make a de-
termination of non-existence of aggression as is aggression. The more
frequent scenario we could foresee is that the Council could not make any
decision due to the internal political dynamics within the Council. It is
exactly out of this concern that the Amendments further authorise the
Prosecutor to proceed with the investigation if the Council has not made a
determination of aggression within six months after being notified of the
situation. This clause is the one that aroused the most heated debate over
the authority of the Council and the independence of the Court during the
negotiations.
Those who support an exclusive authority of the Council with re-
spect to the determination of aggression argued that Articles of 20 and 39
of the Charter grant exclusive authority to the Council in terms of deter-
mination and enforcement with respect to maintenance of international
peace and security. Article 5 of the Statute provides that the crime of ag-
gression under the Statute shall be in line with the Charter. Therefore, a
determination of aggression by the Council shall be the precondition for
70
It was suggested that when the Security Council makes a determination of threat to
international peace and security or breach of peace, the procedural shall be launched
to determine whether aggression has been committed or not for the sake of prosecu-
tion of the crime under the ICC. And the determination of aggression could be done
by the International Court of Justice or the ICC; see David Scheffer, “A Pragmatic
Approach to Jurisdictional and Definitional Requirements for the Crime of Aggres-
sion in the Rome Statute”, in Case Western Reserve Journal of International Law,
2009, vol. 41, pp. 404–408.

the Court to exercise its jurisdiction over the crime of aggression. On the
other hand, aggression is normally a highly controversial political issue
and the Court, a judicial organ, is not a suitable institute to deal with this
political problem. The Council is the right political institution to address
the issue of aggression, and its determination can facilitate the mainte-
nance of international peace and security and the co-operation of the
States needed by the Court with respect to prosecution of the crime of ag-
gression. 71
Those who oppose the ‘dictatorship’ of the Council with respect to
the crime of aggression and insist on the independence of the Court ar-
gued that the Council’s authority to determine acts of aggression is estab-
lished under the Charter for international peace and security purposes, and
not for the purpose of individual criminal responsibility. The former is a
political issue and the latter is a legal one. The Council, as a political or-
gan, is not suitable for the legal assessment of the crime of aggression.
What is more, the Charter only grants ‘primary’ but not ‘exclusive’ au-
thority to the Council with respect to the maintenance of international
peace and security. To make the Council’s determination of an act of ag-
gression a precondition for the Court’s jurisdiction actually violates the
principle of equal sovereignty of the Charter for it puts the permanent
members of the Council in an advantageous position over other members
of the U.N. In practice, the institutions of the U.N. other than the Council,
such as the ICJ and the General Assembly, have made declarations of ag-
gression in situations concerning Korea, Namibia and in the cases of
Nicaragua v. U.S. (1986), ‘oil platform case’ (Iran v. U.S., 2003), and
Congo v. Uganda (2005). To require the Court to abide by a decision of a
political organ will reduce the accused’s chance of defence before the
Court and thus, harm the principle of justice as well as the independence
and credibility of the Court. The discussions during the negotiations indi-
cated that insistence of the exclusive authority of the Council with respect
to act of aggression would break the consensus and also could not get the
support of the majority. It was also agreed during the negotiations that the
Court would not be bound by decisions of an organ outside of the Court
and the Council is also not bound by the Articles on the crime of aggres-
sion in the Statute. The relationship between the Court and the Council
shall be firstly independent from each other in terms of their respective
71
Fletcher, 2010, supra note 16, p. 250; Kacker, 2010, supra note 17, pp. 277–278.

functions, but also complementary to each other in that one is to make

peace through justice and the other does the same through international
politics. 72
Some scholars are of the opinion that there always exists a dilemma
for the relations between the Court and the Council: to integrate the
Council into the Court procedure may violate the principle of criminal
justice, while to exclude it from the procedure might create even more
problems. As a political organ, the Security Council has a lot of discretion
for its decisions and function and does not show a coherent practice,
which makes the Council’s decision very unpredictable and hard for
States to rely on as guidance for their action. Therefore, to integrate the
Council’s decision as part of the decision of the Court would violate the
principle of specialty of criminal justice. But as stated before, to authorise
the Prosecutor to proceed with the case in disregard of the decisions of the
Council will put the reputation and credibility of both institutions at risk if
their decisions conflict each other. It will also put the States into a di-
lemma when faced with conflicting decisions because they are required to
give priority to the obligations from the Council under Article 103 of the
Charter, which could hinder their co-operation with the Court. On the
other hand, inactions by the Council does not necessarily mean that it has
no opinion on the issue, but could imply that an aggression has taken
place, that it has doubts on the matter, or that it has other concerns over its
action for the sake of international peace and security. The intervention of
the Court under these circumstances might not be a contribution to peace
and security. Last but the least, it is inappropriate for the Statute to impose
a time limit for the Council’s action, as such a limitation could only be
established by modification of the Charter. 73
72
Mark S. Stein, “The Security Council, the International Criminal Court, and the
Crime of Aggression: How Exclusive is the Security Council’s Power to Determine
Aggression?” in Indiana International and Comparative Law Review, 2005–2006,
vol. 16, no. 1; Niels Blokker, “The Crime of Aggression and the United Nations Secu-
rity Council”, in Leiden Journal of International Law, 2007, vol. 20, pp. 867–894;
Fletcher, 2010, supra note 16, p. 250; Kacker, 2010, supra note 17, p. 27 .UHȕDQG
von Holtzendorff, 2010, supra note 18, p. 1208; Lavers, 2008, supra note 69.
73
Glennon, 2010, supra note 19, pp. 102–109; Kacker, 2010, supra note 17, p. 277; the
cases of Sudan and Congo were cited to show that for the sake of international peace
and security, the Security Council does not take action.

The Amendments adopted at the Conference show that those sup-

porting the independence of the Court have prevailed and the Court will
become an institution additional to the Council assessing the legality of
States’ use of force.
Last but not least, the limits imposed on the Court’s jurisdiction
over the crime of aggression are worth noting. Firstly, the number of
States concerned could be limited. As stated before, not only non-State
Parties are excluded from the Court’s jurisdiction, but also not all States
Parties are covered by the jurisdiction of the Court over the crime of ag-
gression. According to the Resolution adopting the Amendments, the lat-
ter are subject to ratification or acceptance and will enter into force in ac-
cordance with Article 121, paragraph 5. 74 Therefore, the Amendments
were considered by the drafters as amendments to the crimes under the
Statute and only accepting States Parties are bound. In this regard, it was
suggested that the Amendments should enter into force for all States Par-
ties either under paragraph 3 of Article 121, which requires adoption of
the amendment by consensus or a two-thirds majority, or under paragraph
4 of the same Article, which requires acceptance by a seven-eighth major-
ity. The reason for using the procedure under Article 121(3) is that Article
5(2) of the Statute simply requires adoption of the crime of aggression,
which is exactly addressed by Article 121(3). State Parties have accepted
the Court’s jurisdiction under Article 5 – including the crime of aggres-
sion – when they became parties to the Statute. Therefore the Amend-
ments are not really an amendment to Article 5 as defined by Article
121(5), and thus should not be subject to further acceptance by States Par-
ties. The reason for using the procedure under Article 121(4) is that due to
domestic requirements the Amendments could be subject to ratification or
acceptance by the States Parties. Only a procedure for entry into force for
all the States Parties can satisfy equality among them, which is also the
intention of the Statute drafters. 75 Due to policy considerations, these sug-
gestions were not adopted by the negotiators. 76
74
Supra note 4, OP1.
75
Astrid Reisinger Coracini, “The International Criminal Court’s Exercise of Jurisdic-
tion Over the Crime of Aggression – at Last…in Reach…Over Some”, in Goettingen
Journal of International Law, 2010, vol. 2, no. 2, pp. 763–766.
76
Ibid.

Secondly, a temporal limitation is also imposed on the Court’s ju-

risdiction. The Court may exercise its jurisdiction only with respect to a
crime of aggression committed one year after the acceptance of the
Amendments by thirty States Parties, which is further subject to a deci-
sion to be taken after 1 January 2017 by the same majority of States Par-
ties required for the adoption of an amendment to the Statute.77 Accord-
ingly, even if thirty States Parties have accepted the Amendments before
31 December 2016, the Court cannot exercise its jurisdiction over crime
of aggression if the States Parties cannot reach a decision after 1 January
2017. And vice versa, even if the States Parties can reach such a decision
after 1 January 2017, the Court can still be prevented from entertaining its
jurisdiction over the crime if less than thirty States Parties have accepted
the Amendments. Taking into consideration the fact that, at the time of
writing, only one State Party has accepted the Amendments 78 two years
after their adoption, and the divide among States during the negotiations,
it is hard to foresee when the Court can exercise its jurisdiction over the
crime of aggression.
6.4. Conclusion
The States’ views on the crime of aggression are a reflection of their pol-
icy of war or use of armed force, which is further dependent on their
global perspective on inter-state relations. If States hold the perception
that their relations are competitive in nature and a zero-sum game, con-
flicts between the States shall, then, be a normal feature of international
relations and war can be used as tool of foreign policy. As a result, ag-
gression is considered as neutral in legal terms and a reality for inter-state
relations. This is the situation of the nineteenth century during which war
was firmly ensconced as a routine feature of international life and was
considered an institution of international law. If States view their relations
as basically of peaceful co-existence, then to breach such a peaceful situa-
tion requires some justification. A breach of peace without justification
will be condemned, even punished, by the international community of
States. Born in ancient times, and waning during the eighteenth and nine-
teenth centuries, the just-war ideology has had its revival under the U.N.
77
Paragraphs 2 and 3 of Article 15bis and ter.
78
Liechtenstein is the first State that has ratified the Amendment and deposited its in-
struments of ratification to the U.N. on 8 May 2012, ICC-ASP-20120509-PR793.

Charter, namely armed force can only be used for the sake of peace and
security, in case of self-defence, or collective security. 79 Accordingly, the
criminalisation of aggression and the ensuing individual responsibility
have also been established as a basic institution of modern international
law. 80
However, as an enforcement mechanism of the international secu-
rity regime, the criminalisation of aggression could not be isolated from
the reality of the international politics. When the victorious States were
reconstructing the international security regime, they were not willing to
rely totally on an international organisation for their security and were
keen to reserve their prerogative of use of force because it concerns their
safety and survival. Therefore, whether to use force or not is more a pol-
icy consideration and it is much better or easier to address this issue
through political channels. 81 At the same time, the privileges enjoyed by
the great powers within the collective security regime – the Security
Council – are primary considerations for these powers’ undertakings in
the name of international peace and security because those privileges
shelter them for their military actions. Therefore, the idea that another in-
stitution, in addition to the Security Council, is to be established to evalu-
ate the use of force by the State will definitely be opposed by those pow-
ers. 82 Lastly, to put issues of both jus ad bellum and jus in bello 83 into the
jurisdiction of the same Court could arouse dilemmas for their applica-
tion: when a State involved in an armed conflict faces a potential charge
79
Stephen C. Neff, War and Law of Nations, Oxford University Press, 2005. The author
gives a detailed description of historical development of the nature of war: war as in-
strument of justice (just war), war as an institution of international law and neo just
war under the U.N. Charter.
80
Henry L. Stimson, The Nuremberg Trial: Landmark in Law, Foreign Affairs, 1947.
81
Ferencz, 2009, supra note 5, p. 286; Noah Weisbord, “Conceptualizing Aggression”,
in Duke Journal of Comparative and International Law, vol. 20, pp. 1–3.
82
Ferencz, 2009, supra note 5, p. 286.
83
Jus ad bellum and jus in bello are considered to be two separate branches of rules
regulating armed conflicts. The former addresses situations under which the resort to
armed forces is allowed while the latter deals with the behaviour of the parties to the
conflicts, such as prohibition of attacking civilians and protection of prisons of war,
etc. Violation of the former could constitute crime of aggression and violation of the
latter could constitute war crimes. See, Robert Kolb and Richard Hyde, An Introduc-
tion to the International Law of Armed Conflicts, Hart Publishing, 2008, Chapter 2
and 3.

of aggression, can we still expect that State to abide by the rules of armed
conflicts during a war where it is deemed to be the aggressor? 84 There-
fore, taking into consideration the reality of international politics and the
concerns and divides among States over the regulation of the use of force,
the difficulties of the negotiations do not come as a surprise.85
The military trials after the WWII and the foundation of the U.N.
have established a common maxim for international law and politics, that
is, war as an instrument of State foreign policy is abolished and declared
illegal and the core interest of the international community is to save the
generations to come from the scourge of war. Thus, the U.N. endeavours
to prevent war through political channels while the international criminal
justice aims at punishing those who have seriously violated the rules regu-
lating the use of force. They are complementary to each other in protect-
ing the core interest of the international community. 86
Last, but not least, it is not only the responsibility of the Great Pow-
ers to maintain international peace and security, but the desire and respon-
sibility of all States. The establishment of the International Criminal Court
marked a breakthrough for the development of international criminal law
since WWII. Since its inception, the Court has become an indispensable
player in international relations through its judicial activities. 87 In spite of
all the difficulties, the Amendments were adopted. It will not only en-
hance the Court’s capacity with regard to international peace and security,
but also complete the regime of collective security with a judicial tool.
Therefore, the adoption of the Amendments may be deemed not only as a
warning to ‘aggressive policy makers’, but also as a response to the inef-
ficiency of the Security Council, which is controlled by the Great Powers
and refuses to be reformed to address the changing security situation.
Even though we still need to wait and see whether the Court will live up
to the expectations of the supporters of the Amendments after 1 January
2017, we are at least assured that the State leaders will now think twice
84
Andres Paulus, “Second Thoughts on the Crime of Aggression”, in European Journal
of International Law, 2009, vol. 20, p.1127.
85
Glennon, 2010, supra note 19.
86
William Eldred Jackson, “Putting the Nurnberg Law to Work”, in Foreign Affairs,
1947.
87
David Kaye, “Who’s Afraid of the International Criminal Court?”, in Foreign Affairs,
May/June 2011.

before they resort to force in dealing with international disputes, which

will definitely not make the world less safe than it is today.

7
______
Universal Jurisdiction
for Core International Crimes
Erkki Kourula *
7.1. Introduction
Universal jurisdiction is a valuable tool in the fight against impunity. Al-
though it is not a new concept under international law, there still exists a
divergence of views on its purpose, definition, usefulness and indeed its
exercise in practice. This chapter does not aim to exhaustively discuss all
issues pertaining to universal jurisdiction. Having first addressed the issue
from a more general perspective, it primarily discusses some of the chal-
lenges that have emerged in recent years as far as the application of uni-
versal jurisdiction is concerned in the prosecution of core international
crimes, from the perspective of the differing approaches taken in national
jurisdictions (and, for example, by the E.U. and A.U. in general), and the
differing political perspectives, to the role of international courts and tri-
bunals in the overall fight against impunity for such crimes. Issues ad-
dressed include the lack of a uniform position on universal jurisdiction as
between States in general, the question of ‘overlapping’ jurisdictions and
subsidiarity, immunities of State officials, and the overall feasibility of
prosecutions based on universal jurisdiction.
*
Erkki Kourula serves as Judge of the Appeals Chamber of the ICC. He holds a Ph.D.
in international law from the University of Oxford. He has held various research posi-
tions in international law, including international humanitarian law and human rights,
and has acted as a professor of international law. He has been Director General for
Legal Affairs of the Ministry of Foreign Affairs of Finland, as well as a judge in
Finland dealing with criminal cases. Judge Kourula followed closely the develop-
ments leading to the establishment of the ICTY and ICTR and was actively involved
in the negotiations of the Rome Statute (1995–1998) as head of the Finnish Delega-
tion to the Preparatory Committee and the Rome Conference on the Establishment of
the ICC.

7.2. The Idea of Universal Jurisdiction

Under international law, the concept of universal jurisdiction enables do-
mestic courts to punish perpetrators of those crimes which are so heinous
that they are considered to amount to crimes against the international
community as a whole, irrespective of where they occurred or the nation-
ality of the perpetrator or victims. 1 In other words, universal jurisdiction
provides a basis for ensuring responsibility regardless of the place where
the crime was committed and irrespective of any link of active or passive
nationality, or other grounds of jurisdiction recognised by international
law. As such, universal jurisdiction is an important tool for ending the
impunity of perpetrators of the most serious crimes of international con-
cern. The term ‘universal jurisdiction’ has been defined as follows:
[…] universal criminal jurisdiction is the assertion by one
state of its jurisdiction over crimes allegedly committed in
the territory of another state by nationals of another state
against nationals of another state where the crime alleged
poses no direct threat to the vital interests of the state assert-
ing jurisdiction. In other words, universal jurisdiction
amounts to the claim by a state to prosecute crimes in cir-
cumstances where none of the traditional links of territorial-
ity, nationality, passive personality or the protective princi-
ple exists at the time of the commission of the alleged of-
fence. 2
1
Malcolm N. Shaw, International Law, sixth edition, Cambridge University Press,
2008, p. 668.
2
A.U.-E.U. Expert Report on the Principle of Universal Jurisdiction, issued 16 April
2009, 8672/1/09, REV 1, available at http://ec.europa.eu/development/icenter/reposi
tory/troika_ua_ue_rapport_competence_ universelle_EN.pdf, last accessed on 30 July
2012 (hereinafter ‘A.U.-E.U. Expert Report’), Annex, para. 8. For other definitions of
universal jurisdiction see e.g.: Principle 1.1 of The Princeton Principles on Universal
Jurisdiction, 2001, available at http://lapa.princeton.edu/hosteddocs/unive_jur.pdf, last
accessed on 27 August 2012; Resolution on ‘Universal Jurisdiction with regard to the
crime of genocide, crimes against humanity and war crimes’, Institute of International
Law, 2005, para. 1; F. Jessberger, “Universal Jurisdiction”, in Antonio Cassese et al.
(eds.), The Oxford Companion to International Criminal Justice, Oxford University
Press, 2009, p. 555; Cedric Ryngaert, Jurisdiction in International Law, Oxford Uni-
versity Press, 2008, p. 101; Gerhard Werle, Principles of International Criminal Law,
TMC Asser Press, The Hague, 2005, p. 59; Christopher C. Joyner, “Arresting Impu-
nity: The Case for Universal Jurisdiction in Bringing War Criminals To Accountabil-
ity”, in Law and Contemporary Problems, vol. 59, no. 4, pp. 164 et seq.; Antonio

Universal Jurisdiction for Core International Crimes
The concept of universal jurisdiction is said to be based on custom-

ary 3, as well as conventional 4, international law. Conventional sources,
referring to universal jurisdiction when a suspect is present on the terri-
tory of a State, include the Convention against Torture of 1984, the Con-
vention against Enforced Disappearance of 2006 and the grave breaches
provisions of the 1949 Geneva Conventions. 5 A related concept, often
also contained in such conventions, is that of aut dedere aut judicare, that
is, the obligation for States to either prosecute the case in question or ex-
tradite the person to a State that will prosecute. 6 As has been stated, “a
state party to one of the treaties in question is not only bound to empower
its criminal justice system to exercise universal jurisdiction but is further
bound actually to exercise that jurisdiction by means of either considering
prosecuting or extraditing”. 7
7.3. Challenges in the Exercise of Universal Jurisdiction in Relation

to Core International Crimes
Achieving the goal of putting an end to core international crimes and
prosecuting those responsible for them is now aimed at on both the inter-
national and national levels. 8
Internationally, the advent of international criminal institutions such
as the International Criminal Tribunals for the former Yugoslavia and
Rwanda (‘ICTY’ and ‘ICTR’, respectively) and, importantly, the perma-
Cassese, “Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Uni-
versal Jurisdiction”, in Journal of International Criminal Justice, 2003, vol. 1, p. 589;
Christopher K. Hall, “The Role of Universal Jurisdiction in the International Criminal
Court Complementarity System”, in Morten Bergsmo (ed.), Complementarity and the
Exercise of Universal Jurisdiction for Core International Crimes, Torkel Opsahl
Academic EPublisher, Oslo, 2010, pp. 202 et seq.
3
See R. Cryer, H. Friman, D. Robinson and E. Wilmshurst, International Criminal
Law and Procedure, Cambridge University Press, 2007, p. 44; Werle, 2005, supra
note 2, p. 59. A.U.-E.U. Expert Report, Annex, para. 9, see supra note 2.
4
See A.U.-E.U. Expert Report, Annex, para. 9, see supra note 2; see also Philippe
Sands, “International Law Transformed? From Pinochet to Congo…?”, in Leiden
Journal of International Law, 2003, vol. 16, pp. 42 et seq.
5
A.U.-E.U. Expert Report, Annex, para. 9, see supra note 2.
6
Ibid., para. 11; Hall, 2010, pp. 204–205, see supra note 2.
7
8
Ibid., para. 28.

nent International Criminal Court (‘ICC’), has signalled a clear commit-

ment by the international community to end impunity for such crimes.
The Preamble to the Rome Statute states, inter alia,
Determined to put an end to impunity for the perpetrators of
these crimes and thus to contribute to the prevention of such
crimes.
The ICC’s role is intended to form part of the overall goal to end
impunity. Part, in the sense that it was not intended that it should act
alone. The Preamble also states:
Affirming that the most serious crimes of concern to the in-
ternational community as a whole must not go unpunished
and that their effective prosecution must be ensured by tak-
ing measures at the national level and by enhancing interna-
tional cooperation,
[…]
Recalling that it is the duty of every State to exercise its
criminal jurisdiction over those responsible for international
crimes,
[…]
Emphasizing that the International Criminal Court estab-
lished under this Statute shall be complementary to national
criminal jurisdictions.
In this sense, the ICC is intended to act alongside States who are
primarily entrusted with the task of prosecuting the crimes falling within
the jurisdiction of the Court: at this time, genocide, crimes against human-
ity and war crimes. 9 The question arises as to the extent to which those
States have to date achieved this goal and how their role interplays with
that of the ICC. In addition, one may question whether the ICC’s jurisdic-
tion and the application of the principle of universal jurisdiction overlap.
Are these two systems compatible? Is international justice best served by
having both systems function simultaneously?
There are arguments both in favour of the exercise of universal ju-
risdiction and arguments against. Included in the former, are the fact that
often the crimes in question are committed in places “where they cannot
be prevented or punished easily”, or are “committed within the territory of
9
Article 5 of the Rome Statute.

a particular state caught up in internal conflict”. 10 States where crimes are

committed may also lack the resources to investigate and prosecute the
crimes or be unwilling or unable to do so. 11 The exercise of universal ju-
risdiction may also act as a catalyst for investigations or prosecutions in-
ternationally or nationally,12 it can “help to fill a small part of the global
impunity gap” 13, and it can create a change in how these crimes are seen
both by the public and governments. 14 Arguments against the exercise of
universal jurisdiction include the fear that prosecutions based on universal
jurisdiction would be politically motivated or infringe on State sover-
eignty, that the principle of double jeopardy may be jeopardised (and that
“[u]niversal jurisdiction favours the rights of the victim over the rights of
the accused”) 15, and that the place of local concern should have primacy.
(“The very idea that a totally disconnected country would bring the case is
an offence to the jurisdictions that have the primary responsibility to re-
solve the conflicts inherent in the trial.” 16)
In 2008, ministers of the A.U. and E.U. met to discuss “universal
jurisdiction in the context of the relationship between the A.U. and E.U.”,
agreeing “to set up a technical ad hoc expert group to clarify the respec-
tive understanding on the African and EU side on the principle of univer-
sal jurisdiction”. 17 The resulting report aimed at describing the exercise of
universal jurisdiction, outlining the understandings of the African and
European States 18 and making recommendations. 19
10
Joyner, pp. 166–167, see supra note 2.
11
AMICC, Questions & Answers on the ICC and Universal Jurisdiction.
12
Hall, 2010, pp. 212 et seq., see supra note 2.
13
Hall, 2010, pp. 214 et seq., see supra note 2.
14
Hall, 2010, p. 202, see supra note 2.
15
George P. Fletcher, “Against Universal Jurisdiction”, in Journal of International
Criminal Justice, 2003, vol. 1, p. 580.
16
Fletcher, 2003, p. 583, see supra note 15.
17
A.U.-E.U. Expert Report, paras. 1 and 2, see supra note 2. Six independent experts
were appointed: Professor Antonio Cassese (Italy), Professor Pierre Klein (Belgium),
Dr. Roger O’Keefe (Australia), Dr. Mohammed Bedjaoui (Algeria), Dr. Chaloka
Beyani (Zambia) and Professor Chris Maina Peter (Tanzania); all experts served in
their personal capacities. See A.U.-E.U. Expert Report, paras. 5–7.
18
A.U.-E.U. Expert Report, Annex, paras. 33–38 in respect of African concerns and
paras. 39–45 in respect of European concerns, see supra note 2.
19
Ibid., para. 4.

In relation to African concerns, it was reported that, although they

welcomed the principle in and of itself, there were constraints and con-
cerns as to its application: “national legal and international constraints on
the capacity of many African States” 20 to prosecute the crimes were said
to exist while in addition it was reported that, as observed by some mem-
bers of the International Law Commission, the “assertion by national
courts of the principle of universal jurisdiction has led to misunderstand-
ings and to aggravation of inter-state tensions, and has given rise to per-
ceptions of abuse on political or other grounds”. 21 African States consid-
ered that “they [had] been singularly targeted in the indictments and ar-
rests of their officials and that the exercise of universal jurisdiction by
European states [was] politically selective against them”. 22 They also had
concerns about the manner of issuance of indictments (frequently by
“low-level judges, often sitting alone”), the public issuance of indictments
and disregard for immunities of sitting state officials. 23
As far as European States were concerned, the report found that
they “view the exercise of universal jurisdiction as an essential weapon in
the fight against impunity for serious crimes of international concern” 24
and “an important measure of last resort” in situations where “the state
where the crime has allegedly been committed and the state(s) of national-
ity of the suspect and victims are manifestly unwilling or unable to prose-
cute”. 25 The E.U. experts, in response to some of the African concerns,
noted that “criminal proceedings initiated against African State officials
on the basis of universal jurisdiction represent[ed] only a part of the total
number of times when universal jurisdiction [was] invoked as a basis for
jurisdiction by EU Member States” and that proceedings had been insti-
tuted or sought against nationals from other regions of the world, although
“[i]n many cases, proceedings [had] been discontinued out of respect for
the immunities accorded state officials by international law”. 26 The report
found that E.U. Member States:
20
Ibid., para. 33.
21
Ibid., para. 34.
22
Ibid., para. 34.
23
Ibid., paras. 35–38.
24
Ibid., para. 39.
25
Ibid., para. 39.
26
Ibid., para. 40.

[…] emphasize the need for African states to institute pro-

ceedings against suspected perpetrators of serious crimes of
international concern, whether on the basis of universal ju-
risdiction or of other, more traditional bases of jurisdiction,
e.g. territoriality, nationality, passive personality, etc. 27
Although the report noted extradition requests made by some Afri-
can States expressing their intent to prosecute such crimes, generally
based on territoriality or nationality, the inability of the requested state to
comply was noted, because they could not “satisfy themselves that certain
fundamental human rights guarantees would be respected on the surren-
der” of those persons. 28
Out of this report came a number of recommendations (17 in all)
which the experts were required to make “with a view to fostering better
mutual understanding between the AU and EU regarding universal juris-
diction”. 29 Generally, it was recommended that States should strive to put
an end to core international crimes and prosecute those responsible, to
prosecute treaty crimes when party to such treaties and to ensure that they
have implementing legislation in place. 30
The scope and application of the principle of universal jurisdiction
is also under discussion within the Sixth Committee of the General As-
sembly. The issue was included on the agenda of the sixty-fourth session
in 2009 31 and since then has been discussed at the sixty-fifth and sixty-
sixth sessions in 2010 and 2011, respectively. 32 In the latter session, it
was noted that “there was controversy surrounding the principle”:
Some delegations noted that universal jurisdiction involved
complex issues of a legal, political and diplomatic nature.
Indeed, delegations expressed different views on the scope
of universal jurisdiction and its application, highlighting that
it was in these aspects that most concerns existed. It was also
27
Ibid., para. 44.
28
Ibid., para. 45.
29
Ibid., para. 46.
30
Ibid., paras. 46 et seq.
31
See http://www.un.org/en/ga/sixth/64/UnivJur.shtml#, last accessed on 29 August
2012.
32
See http://www.un.org/en/ga/sixth/65/ScopeAppUniJuri/shtml and http://www.un.org/
en/ga/sixth/66/ScopeAppUniJuri/shtml, last accessed on 27 August 2012.

noted that the principle was viewed as some as incipient,

lacking clarity in its scope and how it was applied. 33
Issues discussed ranged from “the importance of agreeing on a
definition of universal jurisdiction and the need to distinguish it from
other related concepts, such as international criminal jurisdiction, the ob-
ligation to extradite or prosecute, as well as other related principles and
rules of international law”, the crimes covered by the principle, the appli-
cation of universal jurisdiction (including the emphasis on “the need for
the judicious and responsible application of the principle”), immunities
and the conditions for the application of universal jurisdiction. 34 A work-
ing group would be established at the sixty-seventh session, in 2012, “to
continue to undertake a thorough discussion of the scope and application
of universal jurisdiction”. 35
Some of the above concerns are discussed below. One may see that
although moves have been taken at the national level to prosecute those
responsible for core international crimes on the basis of universal jurisdic-
tion, differing approaches of States create challenges.
Although many States have now enabled domestic courts to expand
their jurisdiction and prosecute international crimes under the universality
principle, 36 the manner in which this has been approached has differed.37
Some examples of cases brought or sought under universal jurisdiction
are 38 the cases of: President Augusto Pinochet in London and Spain; 39
Sister Maria Kisito and Sister Gertrude, in Belgium; Nikola Jorgiü and
Novislav Djajiü in Germany; in Chad Hissène Habré in Belgium; Donald
33
See http://www.un.org/en/ga/sixth/66/ScopeAppUniJuri/shtml, last accessed on 27
August 2012.
34
Ibid.
35
Ibid.
36
See Hall, 2010, pp. 217–223, see supra note 2.
37
For an overview of the approaches taken in African and E.U. States, see A.U.-E.U.
Report, Annex, paras. 15– 27, see supra note 2. See also Naomi Roht-Arriaza, “Uni-
versal Jurisdiction: Steps Forward, Steps Back”, Leiden Journal of International Law,
2004, vol. 17, p. 375; Hall, 2010, pp. 217 et seq. and pp. 226 et seq., see supra note 2.
38
AMICC, “Questions & Answers on the ICC and Universal Jurisdiction”. See also
Katherine Gallagher, “Universal Jurisdiction in Practice: Efforts to Hold Donald
Rumsfeld and Other High-level United States Officials Accountable for Torture”, in
Journal of International Criminal Justice, 2009, vol. 7, no. 5, p. 1087.
39
Sands, 2003, p. 37, see supra note 5.

Rumsfeld in Belgium. In terms of legislative moves, those taken by, for

example, Belgium and Spain have been well-documented, and more ex-
pansive legislation in those jurisdictions has since been amended and re-
duced in scope. 40 In general, legal limitations to the exercise of universal
jurisdiction that may be found in national legislation may include: that the
person is present on the territory of the prosecuting State; that prosecution
be initiated by the Attorney General; that there is respect for immunities;
that universal jurisdiction only applies to crimes committed in a specific
conflict; that the crimes may only be prosecuted in the higher courts. 41
Looking more closely at one of these limitations, in terms of the re-
quirement of presence, under the broad notion (or what has been named
‘absolute universal jurisdiction’), the State may prosecute the person irre-
spective of where the crime occurred or the nationality of the perpetrator
or victim, as well as regardless of the presence of the accused on the terri-
tory of that State. 42 Under the narrow notion (‘conditional universal juris-
diction’), 43 the State may prosecute the person only if he or she is present
on the territory of that State. 44 The issue essentially is whether, for the
exercise of universal jurisdiction, the presence of the accused on the terri-
tory (so-called ‘forum deprehensionis’) is required as a condition. 45 Dif-
ferent degrees of ‘presence’ are also argued for, for example, simple cap-
ture or residence, with one writer stating that “[i]t would be self-defeating
to add conditions which would render universal jurisdiction akin to a tra-
40
See e.g. Cassese, 2003, p. 589, see supra note 2; Roht-Arriaza, 2004, p. 375, see su-
pra note 37; Gallagher, 2009, pp. 1087, see supra note 38; Roozbeh (Rudy) B. Baker,
“Universal Jurisdiction and the Case of Belgium: A Critical Assessment”, in ILSA
Journal of International and Comparative Law, 2009–2010, vol. 16, no. 1, p. 141.
41
A.U.-E.U. Expert Report, Annex, paras. 18 and 24, see supra note 2; see also Hall,
2010, pp. 223 et seq., see supra note 2.
42
Antonio Cassese, International Criminal Law, first edition, Oxford University Press,
2003, pp. 286–287.
43
See Cassese, 2003, pp. 284–292, see supra note 42; see also Cassese, 2003, pp. 589–
595, see supra note 2.
44
Cassese, 2003, pp. 285–286, see supra note 43; Cassese, 2003, pp. 592–593, see su-
pra note 2. Antonio Cassese, “When may senior state officials be tried for interna-
tional crimes? Some comments on the Congo v. Belgium Case”, in European Journal
of International Law, 2002, vol. 13, no. 4, pp. 855 et seq.
45

ditional connecting factor, and thus lose its specificity and raison
d’être”. 46
Another problem arises in the face of overlapping claims to juris-
diction over a suspected person. In this sense, the question arises as to
whether it can be determined that a particular State has a principal interest
in exercising its jurisdiction if the State where the crime was committed
or the State of nationality of the suspect or victim(s) is willing and able to
exercise jurisdiction, in addition to a State claiming the right under uni-
versal jurisdiction over the crime in question. Does a State claiming the
right to exercise universal jurisdiction have any obligation to defer to a
State with a “closer” connection to the crime? The A.U.-E.U. Expert Re-
port states:
Positive international law recognises no hierarchy among the
various bases of jurisdiction that it permits. In other words, a
state which enjoys universal jurisdiction over, for example,
crimes against humanity is under no positive legal obligation
to accord priority in respect of prosecution to the state within
the territory of which the criminal acts occurred or to the
state of nationality of the offender or victims. 47
Principal 8 of the Princeton Principles on Universal Jurisdiction al-
lows the custodial state to make a decision on whether to prosecute or ex-
tradite based on a list of criteria, including the place of commission of the
crime and nationality of the suspect and victims, though there is no obli-
gation to extradite. 48 It has been argued that if more than one State wishes
to prosecute,
[…] the state with custody seeking to exercise universal ju-
risdiction would normally have a better claim than the terri-
torial state to act on behalf of the international community,
since the presence of the suspect outside the territorial state
46
Georges Abi-Saab, “The Proper Role of Universal Jurisdiction”, in Journal of Inter-
national Criminal Justice, 2003, vol. 1, p. 596.
47
A.U.-E.U. Expert Report, Annex, para. 14, see supra note 2; see also Cedric Ryn-
gaert, “Applying the Rome Statute’s Complementarity Principle: Drawing Lessons
from the Prosecution of Core Crimes by States Acting under the Universality Princi-
ple”, in Criminal Law Forum, 2008, vol. 19, no. 1, p. 153, which concludes that, al-
though desirable, the application of the subsidiarity principle is not required by inter-
national law.
48
Available at http://lapa.princeton.edu/hosteddocs/unive_jur.pdf, last accessed on 27
August 2012.

creates a presumption that the authorities of the territorial

state are not acting with due diligence to investigate and
prosecute. Failure to transmit an extradition request would
be compelling evidence that the territorial state was not seri-
ous. 49
Such a view is, however, not uncontested, arguments being made
for example that the principle of subsidiarity has already developed as a
legal concept. 50 In terms of the merits of such a concept, it can be argued
that, in practice, in prosecuting serious crimes of international concern,
States should accord priority to territoriality as a basis of jurisdiction “as a
matter of policy”, in view of the fact that the object of such crimes princi-
pally is the State where the crimes have been committed and that there-
fore that State has to be considered as the one most directly affected by
the crime. The ninth recommendation of the A.U.-E.U. Report finds as
follows:
In prosecuting serious crimes of international concern, states
should, as a matter of policy, accord priority to territoriality
as a basis of jurisdiction, since such crimes, while offending
against the international community as a whole by infringing
universal values, primarily injure the community where they
have been perpetrated and violate not only the rights of the
victims but also the general demand for order and security in
that community. In addition, it is within the territory of the
state of alleged commission that the bulk of the evidence will
usually be found. 51
Under this concept, the exercise of universal jurisdiction is, there-
fore, premised on the failure of the territorial or national State (the State
having a primary interest) to start proceedings, and should, therefore, not
be activated if one of those States initiates proceedings. This idea comes
across in paragraphs 3(c) and (d) of the Resolution on “Universal criminal
jurisdiction with regard to the crime of genocide, crimes against humanity
and war crimes” of 2005, issued by the Institute of International Law:
49
Hall, 2010, p. 230, see supra note 2.
50
&ODXV .UHȕ ³Universal Jurisdiction over International Crimes and the Institut de
Droit international”, in Journal of International Criminal Justice, 2006, vol. 4, no. 3,
pp. 589–595. See also Cassese, 2003, pp. 593–594, see supra note 2. See also Abi-
Saab, 2003, p. 596, see supra note 46.
51
A.U.-E.U. Expert Report, Annex, R9, see supra note 2.

c) Any State having custody over an alleged offender

should, before commencing a trial on the basis of uni-
versal jurisdiction, ask the State where the crime was
committed or the State of nationality of the person con-
cerned whether it is prepared to prosecute that person,
unless these States are manifestly unwilling or unable to
do so. It shall also take into account the jurisdiction of
international criminal courts. 52
d) Any State having custody over an alleged offender, to
the extent that it relies solely on universal jurisdiction,
should carefully consider and, as appropriate, grant any
extradition request addressed to it by a State having a
significant link, such as primarily territoriality or na-
tionality, with the crime, the offender, or the victim,
provided such State is clearly able and willing to prose-
cute the alleged offender. 53
It is argued, in favour of subsidiarity, that:
The territorial or national State may indeed be a better forum
in light of the proximity of the evidence, the knowledge of
the accused and the victims, and the better perspective which
it has on all circumstances surrounding the crime. […]
Moreover, the entrenchment of the rule of law in States with
historically weak judicial systems, typically developing
countries, requires that bystander States with stronger judi-
cial systems, typically industrialized countries, enable the
former States to assume their responsibility in putting an end
to a culture of impunity. […] Although prosecutions on the
basis of the universality principle may have a catalytic effect
on home State prosecutions, bystander States should exercise
appropriate restraint in case the home State is able and will-
ing to investigate and prosecute a situation in which a core
crime has been committed. 54
It has also been argued by the same author that:
[…] subsidiarity should not be resorted to by national prose-
cutors and courts as a welcome tool to get rid of diplomati-
52
Available at http://www.idi-iil.org/idiE/resolutionsE/2005_kra_03_en.pdf, last access-
ed on 13 October 2012.
53
Ibid.; see also A.U.-E.U. Expert Report, Annex, para. 46, R12, see supra note 2.
54
Ryngaert, 2008, pp. 157–158, see supra note 47.

cally awkward cases. Subsidiarity should instead be under-

stood as a responsibility or even duty, of bystander States to
mete out justice, in the interests of the victims and the inter-
national community, where the territorial or national State
has failed or refused to do so. 55
It is noteworthy that the subsidiarity principle has been implicitly
referred to by three judges in the Arrest Warrant case. In their separate
opinion they noted that a “State contemplating bringing criminal charges
based on universal jurisdiction must first offer to the national State of the
prospective accused person the opportunity itself to act upon the charges
concerned”. 56 Another example of the subsidiarity principle in practice
was the decision of the Audencia Nacional in the case of the Decision of
the Spanish Supreme Court concerning the Guatemala Genocide Case,
where the Spanish Supreme Court concluded that the Spanish Courts
could apply universal jurisdiction only if neither the territorial State nor
the perpetrator’s home State genuinely exercised jurisdiction. 57
The idea is not wholly different to that enshrined in the Rome Stat-
ute. 58 In terms of subsidiarity as between States and complementarity as
between the ICC and national jurisdictions, both are intended to provide a
legal basis for the investigation and prosecution of international crimes of
the most serious concern when this is not taking place elsewhere. As seen
above, the ICC “shall be complementary to national criminal jurisdic-
tions”. 59 Under this principle, national courts in principle have priority
over the jurisdiction of the ICC, and the Court is intended to act as a last
resort when national legal systems of States are, inter alia, unable or un-
55
Ibid., pp. 156–157.
56
International Court of Justice, Case Concerning the Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium), Judgment, 14 February 2002, ICJ
Reports 2002, Joint separate opinion of Judges Higgins, Kooijmans and Buergenthal,
p. 80, para. 59, available at http://www.legal-tools.org/doc/23d1ec/.
57
Spanish Supreme Court, Decision of the Spanish Supreme Court concerning the Gua-
temala Genocide Case, 25 February 2003, Decision No. 327/2003, available at
http://www.derechos.org/nizkor/guatemala/ doc/stsgtm.html, last accessed on 30 July
2012.
58
See also Ryngaert, 2008, p. 153, see supra note 47.
59
Preamble and Article 1 of the Rome Statute; see also Sands, 2003, pp. 40 et seq., see
supra note 4.

willing to exercise jurisdiction. 60 The idea is, therefore, that in principle

national jurisdictions will step up and that only in the event that they do
not, will the ICC. For example, Article 17(1)(a) of the Rome Statute pro-
vides that, a case shall be determined inadmissible where “[t]he case is
being investigated or prosecuted by a State which has jurisdiction over it,
unless the State is unwilling or unable genuinely to carry out the investi-
gation or prosecution”.
In terms of which States could challenge the admissibility of a case
before the ICC, Article 17 of the Rome Statute clearly refers to “a State
which has jurisdiction over” the case. It remains to be seen how the ICC
will interpret this should a challenge come from a State based on a claim
of universal jurisdiction, something which to date has not happened; it
could be argued that if a State claims to have universal jurisdiction over a
case which also falls within the jurisdiction of the ICC, and if the situation
satisfies the requirements of Article 17 of the Rome Statute, the ICC
could declare a case to be inadmissible before it. Indeed it has been ar-
gued, “when the term ‘jurisdiction’ of states is used in the Rome Statute,
it means jurisdiction permitted or required under international law, includ-
ing universal jurisdiction [save in certain cases in articles 18 and 19]”.61
In this case, the scope for national prosecutions of the crimes falling
within the jurisdiction of the ICC would be great and, together with the
words of the Rome Statute preamble (see above), could indeed encourage
States to exercise their (universal) jurisdiction over these serious interna-
tional crimes. It is argued that “an interpretation providing the broadest
possible protection of victims of crimes under international law over al-
ternative interpretations which would restrict the scope of the obligations
recognised by states” is favoured. 62 On the other hand, it has also been
argued in terms of complementarity, that although there is priority of ju-
risdiction of national courts where they “have a traditional connecting fac-
60
Article 17 of the Rome Statute; see also International Criminal Court, The Prosecutor
v. Germain Katanga et al., Judgment on the Appeal of Mr. Germain Katanga against
the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the
Case, ICC-01/04-01/07-1497, 25 September 2009, available at http://www.legal-
tools.org/doc/ba82b5/.
61
Hall, 2010, pp. 207 and 209 et seq., see supra note 2.
62
Hall, 2010, p. 212, see supra note 2; see also Louise Arbour, “Will the ICC have an
Impact on Universal Jurisdiction”, in Journal of International Criminal Justice, 2003,
vol. 1, p. 585.

tor with the crime”, there would be no priority of jurisdiction of a national

court when based on universal jurisdiction:
[…] in exercising universal jurisdiction the state does not act
in its own name uti singulus, but in the name of the interna-
tional community (as with the institution of action popu-
laris). However, once this community develops its own spe-
cialized organs to fulfil precisely these same tasks, they take
precedence over states acting as their surrogates. 63
As far as immunities of State officials are concerned, as seen in the
A.U.-E.U. Expert Report, African concerns were that:
[…] in so far as the indictment of sitting state officials is
concerned, there is disregard for immunities enjoyed by state
officials under international law. Consequently, any such in-
dictment severely constrains the capacity of African states to
discharge the functions of statehood on the international
plane. 64
The A.U.-E.U. Expert Report ultimately recommends as follows:
[…] those national criminal justice authorities considering
exercising universal jurisdiction over persons suspected of
serious crimes of international concern are legally bound to
take into account all the immunities to which foreign state
officials may be entitled under international law and are con-
sequently obliged to refrain from prosecuting those officials
entitled to such immunities. 65
Concerns in this regard have also been expressed during the discus-
sions of the Sixth Committee. It was stated that,
[…] there was a delicate balance to be struck between the
prevention of impunity and the free exercise of sovereignty
by agents of the State, whereby immunity of State officials
would be the exception to the applicability of jurisdiction. 66
As far as immunities are concerned, the Case Concerning the Arrest
Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)
63
Abi-Saab, 2003, p. 601, see supra note 46.
64
65
A.U.-E.U. Expert Report, Annex, R8, see supra note 2.
66
Available at http://www.un.org/en/ga/sixth/66/ScopeAppUniJuri/shtml, last accessed
on 27 August 2012.

of 14 February 2002 of the International Court of Justice is relevant

wherein it was found, inter alia, that:
[…] the functions of a Minister for Foreign Affairs are such
that, throughout the duration of his or her office, he or she
when abroad enjoys full immunity from criminal jurisdiction
and inviolability. That immunity and that inviolability pro-
tect the individual concerned against any act of authority of
another State which would hinder him or her in the perform-
ance of his or her duties. 67
As far as the Rome Statute is concerned, Article 27 is entitled
“[i]rrelevance of official capacity” (see also Article 98) and provides:
1. [The Rome] Statute shall apply equally to all persons
without any distinction based on official capacity. In
particular, official capacity as a Head of State or Gov-
ernment, a member of a Government or parliament, an
elected representative or a government official shall in
no case exempt a person from criminal responsibility
under this Statute, nor shall it, in and of itself, constitute
a ground for reduction of sentence.
2. Immunities or special procedural rules which may at-
tach to the official capacity of a person, whether under
national or international law, shall not bar the Court
from exercising its jurisdiction over such a person.
The Appeals Chamber has yet to issue any decision specifically on this
issue.
In relation to trials in absentia, complete agreement on its use in
cases where universal jurisdiction is invoked is also not present, with
some systems rejecting the idea of trying a person when he or she is not
present at the proceedings while others provide for that possibility. 68 One
may also note Article 14(3)(d) of the International Covenant on Civil and
Political Rights granting every person the right “to be tried in his pres-
67
Reports 2002, para. 54, available at http://www.legal-tools.org/doc/c6bb20/.
68
Reports 2002, Joint separate opinion of Judges Higgins, Kooijmans and Buergenthal,
p. 79, para. 56, available at http://www.legal-tools.org/doc/23d1ec/; see A.U.-E.U.
Expert Report, para. 10, supra note 2.

ence, and to defend himself in person or through legal assistance of his

own choosing”. 69
Certain practical challenges may also arise in the exercise of uni-
versal jurisdiction. 70 In this respect, two practical difficulties have been
highlighted. First, collecting evidence with regard to crimes committed
abroad in particular when the State where the crimes are alleged to have
taken place refuses to co-operate. 71 This can also be aggravated in situa-
tions where the crimes occurred a long time ago while, in addition, even
in cases in which that State wishes to co-operate, such co-operation may
require a treaty basis (under the law of the State exercising jurisdiction).
The A.U.-E.U. Expert report states that “[a] second practical limitation is
the awareness on the part of many prosecuting authorities and courts of
the diplomatic sensitivities at stake when the conduct of a serving, and in
some cases former, state official is involved”. 72 This is of course related
to the issue of immunities referred to above. It can also be very costly and
technically very difficult to successfully prosecute cases of universal ju-
risdiction.
Another difficulty is that which arises in relation to co-operation be-
tween States in the event of extradition and co-operation requests. Differ-
ing national legislation can be problematic and raise obstacles to the ful-
filment of such requests. 73 As found in the course of an expert meeting in
The Hague in November 2011,
[…] it was generally felt that there was, indeed, a [legal gap
in the international legal framework concerning mutual legal
assistance between States for the national adjudication of in-
ternational crimes] and that a further exploration of the issue
was necessary. 74
69
International Covenant on Civil and Political Rights, 19 December 1966, Article
14(3)(d), in UNTS, vol. 999, pp. 171, 177; see also Gabriel Bottini, “Universal Juris-
diction after the Creation of the International Criminal Court”, in Journal of Interna-
tional Law and Politics, vol. 36, p. 523.
70
71
Ibid., para. 25.
72
Ibid., para. 25.
73
See also Hall, 2010, pp. 224 et seq., see supra note 2.
74
“A Legal Gap? Getting the evidence where it can be found: Investigating and prose-
cuting international crimes”, Report of an expert meeting in The Hague, 22 November
2011, HIIL and Government of the Netherlands, p. 2.

The report found that although there had been ‘impressive progress’
in the last ten years in the criminalisation of crimes under the Rome Stat-
ute into domestic law,
[…] the gap at the heart of the exploration conducted with
the expert meeting relates to the procedural issues: interna-
tional legal cooperation between States that want to prose-
cute nationally. International cooperation in criminal matters
is paramount for effective national prosecutions relating to
mass atrocities. As the highly experienced prosecutor, Siri
Frigaard, said in her key-note address: “rarely, and if ever,
will all witnesses and evidence be found in the state that is
conducting the prosecution”. It is therefore of the utmost im-
portance that the international legal framework for coopera-
tion in criminal matters in this domain facilitates and stimu-
lates this aspect of complementarity. 75
It was pointed out that “the prosecution of war crimes was an ex-
tremely resource intensive endeavour” and that “[k]ey to this is the legal
assistance from other states”. 76 It was also pointed out “that greater coop-
eration in international criminal matters from States would lead to fewer
instances of impunity”. 77 It was agreed “that the nature of the legal gap
merits further exploration in light of the shared view that there should not
be any safe havens in respect of international crimes and that the system
to deal with these crimes should be as efficient and as effective as possi-
ble”. 78 Three issues for further exploration were specifically identified:
jurisdiction, mutual legal assistance and extradition. It was also agreed to
continue working on the issue and to try to involve more States in the
process. 79 A second meeting should be held in 2012. 80
Another challenge arising out of differing national legislation or
approaches to universal jurisdiction can be that in relation to double jeop-
ardy. It has been said that “the risk of double jeopardy becomes even
more acute with the exercise of universal jurisdiction, raising the spectre
of an accused being hounded ‘in one court after another until the victims
75
Ibid., p. 3.
76
Ibid., p. 4.
77
Ibid., p. 4.
78
Ibid., p. 5.
79
Ibid., pp. 5–6.
80
Ibid., p. 6.

are satisfied that justice has been done’”, or where the State most con-
cerned with the crimes committed would not be satisfied with a trial else-
where. 81 It was stated that,
[…] the supposed cure of joining ne bis in idem with univer-
sal jurisdiction would be worse than the disease. It would
give the first court to hear the case the power to decide the
fate of the accused and the whole world would have to defer
to their possibly idiosyncratic judgment. 82
The argument against this is that this “assumes a positive conflict of
jurisdiction between fora competing for the prosecution of international
crimes”, ignoring the fact that actually “universal jurisdiction has been a
jurisdiction of last resort, a fail-safe solution called for by urgency and
necessity”. 83
Finally, as stated, the establishment of the ICTY, ICTR and ICC in
particular, represented innovative achievements in the pursuit of justice.
However, the exercise of jurisdiction, including universal jurisdiction, by
national jurisdictions over core international crimes, can only be positive
in the fight against impunity for the commission of these crimes. One
could argue that the ICC, with its principle of complementarity, will en-
courage States to exercise universal jurisdiction over core international
crimes; this would provide additional venues for the prosecution of these
crimes to those of the territorial or national State. 84 In addition, the ICC
81
Abi-Saab, 2003, p. 599, see supra note 46, referring to a view by Fletcher, 2003, p.
580, see supra note 15, who himself refers to the cases of Finta and Ariel Sharon.
82
Fletcher, 2003, p. 584, see supra note 15.
83
Abi-Saab, 2003, p. 599, see supra note 46.
84
AMICC, Questions & Answers on the ICC and Universal Jurisdiction:
In some cases, the existence of the ICC may result in fewer uses of
universal jurisdiction. States lacking necessary resources and suffi-
ciently capable legal systems may be inclined to hand over cases to
the ICC rather than try such cases in their own courts. However,
the Court will increase awareness of atrocities and thus may stimu-
late greater usage of universal jurisdiction. States with well devel-
oped judiciaries and laws providing for universal jurisdiction may
be encouraged to exercise their jurisdiction more frequently, pre-
ferring to control the prosecutorial process rather than giving the
task to the Court. Other states may be motivated to take the neces-
sary steps to allow them to try cases within the ICC’s jurisdiction
and thus enact implementing legislation that incorporates aspects
of the Rome Statute. Overall, the Court can provide an example

has a limited jurisdiction. 85 For example, its subject-matter jurisdiction is

“limited to the most serious crimes of concern to the international com-
munity”. 86 The crimes within the Court’s jurisdiction are genocide, crimes
against humanity, war crimes and aggression. 87 It is also limited in terms
of time, in that it only has jurisdiction with respect to crimes committed
after the entry into force of the Rome Statute, 88 which took place on 1
July 2002. And, it is also limited in terms of which persons it can prose-
cute, in that it only has jurisdiction when one of the crimes was commit-
ted on the territory of a State Party to the Rome Statute or by a national of
a State Party, when a State accepted the Court’s jurisdiction under Article
12(3) of the Statute or if the Security Council has referred a situation to
the Court. 89 Contrary to this, national jurisdictions may have jurisdiction
to prosecute all other crimes that do not fall within the jurisdiction of the
ICC, for example those committed prior to the entry into force of the
Rome Statute. Thus, even if the ICC does not have jurisdiction, individual
States may still prosecute perpetrators of international crimes under do-
mestic laws based on universal jurisdiction. 90
Having considered some of the challenges in respect of the applica-
tion of universal jurisdiction, it seems clear that its application in practice
remains controversial. Further work to ensure its effective implementation
will be welcomed. However, at present, the international community will
continue fighting impunity in a genuine spirit of humanity.
and encouragement to states for their own exercise of jurisdiction

to prosecute serious international crimes, and states will likely con-
tinue to exercise universal jurisdiction to prosecute cases not ad-
dressed by the Court.
85
86
Article 5 of the Rome Statute. See also Article 1.
87
Articles 6–8bis of the Rome Statute respectively.
88
Article 11 of the Rome Statute.
89
Articles 12 and 13.
90
AMICC, Questions & Answers on the ICC and Universal Jurisdiction:
Proponents of universal jurisdiction believe that both systems will
serve international justice by providing states with more choices.
In that way, the Court and universal jurisdiction, each operating
where the other may not, may be said to be separate pieces of a
comprehensive approach to ending impunity for perpetrators of se-
rious international crimes.

8
______
The Connotation of Universal Jurisdiction
and its Application in the Criminal Law of China
MA Chengyuan *
8.1. Introduction
Jurisdiction is one of the fundamental rights of a state. 1 It concerns the
power of the state to affect people, property and circumstances and re-
flects the basic principles of state sovereignty, equality of states and non-
interference in domestic affairs. 2 Jurisdiction can be divided into different
categories on different bases and universal jurisdiction is one of them.
Universal jurisdiction is also called the ‘principle of universal juris-
diction’ or the ‘universality principle’. Essentially, it is a jurisdiction ex-
ercised by state over criminal matters, though some scholars think there
has existed now a so-called ‘universal civil jurisdiction’. 3 Traditionally,
*
MA Chengyuan is Professor of Law at China University of Political Science and
Law, where he is the Assistant Dean of the Faculty of International Law. He holds a
Doctor of Law and Master of Law from this University. He is a Member of the Coun-
cil of the International Law Association of China. He was Visiting Scholar in the
Law Center of Georgetown University U.S. from August 1993 to October 1994 and in
the Law School of Nottingham University from January to June 2000.
1
WANG Tieya, International Law, 1981, p. 93.
2
Malcolm N. Shaw, International Law, fifth edition, Cambridge University Press,
2005, p. 572.
3
Some scholars hold the opinion that universal jurisdiction contains both universal
criminal jurisdiction and universal civil jurisdiction. See M.C. Bassiouni, Interna-
tional Criminal Law, second edition, Transnational Publishers, 1999, pp. 343–390;
Luc Reydams, Universal Jurisdiction: International and Municipal Legal Perspec-
tives, Oxford University Press, 2003, p. 2; Jane E. Stromseth, Accountability for
Atrocities: National and International Responses, Transnational Publishers, 2003, p.
379; LIU Daqun, “Universal Jurisdiction in International Criminal Law”, in Peking
University Comparative and International Law Review, 2006, vol. 4, no. 2, p. 18;
ZHU Lijiang, Universal Jurisdiction over War Crimes in Non-International Armed
Conflicts and International Law, Law Press, Beijing, 2007, p. 4. The so-called univer-
sal civil jurisdiction refers mainly to the jurisdiction based on the Alien Tort Claims
Act (‘ATCA’) (28 USC §1350) of the United States, which is also called the Alien
Tort Statute (‘ATS’). The ATCA was adopted in 1789 as part of the original Judiciary

the state relies on the ‘territorial principle’ or ‘nationality principle’ to

exercise criminal jurisdiction over crimes committed either within its ter-
ritory or by its citizens. However, as the time goes on, the state finds
sometimes it is necessary to exercise jurisdiction over foreigners in re-
spect of acts committed entirely abroad and without substantial connec-
tion with the state itself or its citizens. Thus, universal jurisdiction
emerges as is required.
By textual research, the wording of ‘universal jurisdiction’ in Eng-
lish might appear in international legal instruments and literature only in
1920s, 4 but “historically, the thought of universal jurisdiction may be
traced back to the European international and criminal law forerunner in
the sixteenth or seventeenth century, even to the period of Roman Law”. 5
Someone says, at the beginning of the seventeenth century, Hugo Grotius,
the famous Dutch jurist, initiated and proved the principle of universal
jurisdiction from the angle of the natural law. 6 But accurately speaking, in
his book, The Law of War and Peace, published in 1625, Grotius only
Act, which reads: “The district courts shall have original jurisdiction of any civil ac-
tion by an alien for a tort only, committed in violation of the law of nations or a treaty
of the United States”. This Act is notable for allowing U.S. courts to hear human
rights cases brought by foreign citizens for conduct committed outside the U.S. From
1789 to 1980, the Act lay relatively dormant – only two courts based jurisdiction on
it. But after 1980, several cases have been heard in the U.S. courts. Apart from the
ATCA, the Torture Victim Protection Act of 1991 (‘TVPA’; Pub. L., pp. 102–256, 12
March 1992, codified at 42 USCA §1350 note) is another U.S. act that allows victims
of certain international law violations, or their representatives, to bring a civil action
against those responsible in federal district court. Under the TVPA, “an individual
who, under actual or apparent authority, or color of law, of any foreign nation, sub-
jects an individual to: (1) torture will, in a civil action, be liable for damages to that
individual; or (2) extrajudicial killing will, in a civil action, be liable for damages to
the individual’s legal representative, or to any person who may be a claimant in an ac-
tion for wrongful death”. But even these two Acts are positive in promoting the re-
spect to human rights, the unilateral legislation and the limited judicial practice of the
United States are impossible to make it a counterpart to universal jurisdiction in
criminal matters.
4
See ZHU Lijiang, Universal Jurisdiction over War Crimes in Non-International
Armed Conflicts and International Law, Law Press, Beijing, 2007, p. 5.
5
Ibid., pp. 3–5.
6
See CHEN Zhonglin, “The Principle of Universal Jurisdiction in the Criminal Law of
China: Theoretical Interpretation of Article 9 of the Criminal Law”, in Journal of
Huaiyin Teachers College, 2004, vol. 4, p. 470.

expresses the view of aut dedere aut punire. 7 And some authors even
doubt whether aut dedere aut punire is initiated by Grotius himself. 8
In the Law of War and Peace, Grotius expounds the issue of return-
ing of escaped criminals. He says:
Since as a matter of fact states are not accustomed to permit
other states to cross their borders with an armed force for the
purpose of exacting punishment, and since such a course is
inexpedient, it follows that the state in which he who has
been found guilty dwells ought to do one of two things.
When appealed to it should either punish the guilty person as
he deserves, or it should entrust him to the discretion of the
party making the appeal. The latter course is rendition, a
procedure most frequently mentioned in historical narra-
tives. 9
Having analysed some of the examples, he points out that all the
examples nevertheless must be interpreted in the sense that a people or
king is not absolutely bound to surrender a culprit, but either to surrender
or to punish him. 10 Finally, he points out:
What we have said with regard to the surrender or punish-
ment of guilty parties applies not merely to those who have
always been subjects of the state in which they are at the
7
See MA Chengyuan, International Criminal Law, China University of Political Sci-
ence and Law Press, 2008, p. 221. But Bassiouni thinks that the expression of aut
dedere aut punire is inconsistent with the principle of legality, and suggests that it
shall be changed to aut dedere aut judicare. See M.C. Bassiouni, “Human Rights in
the Context of Criminal Justice”, in Duke Journal of Comparative and International
Law, 1973, vol. 3, p. 235.
8
The sixteenth-century Spanish author Covarruvias studied the practice of the medie-
val Italian city-states which generally recognised the jurisdiction of the criminal
courts of both the locus delicti and the place of domicile of the offender. In Chapter II
of his book Practicorum Quaestionalen, Covarruvias defended the proposition that
the judex deprehensionis had a duty either to punish or extradite all dangerous crimi-
nals “judex requisitus vel remittere tenetur, vel delinquentem ipsum punire”. G. Guil-
laume, the judge of the International Court of Justice, points out that the paternity of
the maxim aut dedere aut judicare (extradite or try) comes to Covarruvias and not to
Grotius as common opinion holds. See Reydams, 2003, supra note 3, p. 29.
9
Hugo Grotius, The Law of War and Peace, 1925, Claredon Press, Oxford, p. 527,
translated by Francis W. Kelsey.
10
See ibid. p. 528.

time found, but also to those who after having committed a

crime have fled to another state for refuge. 11
Following Grotius, the famous Swiss jurist Vattel also regards ex-
tradition as a way of avoiding state responsibility for the acts of private
individuals. He expresses as follows:
Since the sovereign should not permit his subjects to trouble
or injure the subjects of another state, much less be so bold
as to offend a foreign power, he should force the offender to
repair the evil, if that can be done, or punish him as an ex-
ample to others, or finally, according to the nature and cir-
cumstance3 of the case, deliver him up to the injured state,
so that it may inflict due punishment upon him […]. A sov-
ereign who refuses to repair the evil done by one of his sub-
jects, or to punish the criminal, or, finally to deliver him up,
makes himself in a way an accessory to the deed, and be-
comes responsible for it. 12
Piracy is the first crime that was brought under universal jurisdic-
13
tion. Malcolm N. Shaw points out: “universal jurisdiction over piracy
has been accepted under international law for many centuries and consti-
tutes a long-established principle of the world community”. 14 Since piracy
constituted a threat against the safety of ships navigating at sea, as well as
persons and property on board, states started to enact domestic laws on
the punishment of piracy from a long time ago, and the 1536 Offenses at
Sea Act made by the United Kingdom is one of the earliest. 15 Article 1,
Section 8 of the Constitution of the United States provides: “the Congress
shall have power […] to constitute tribunals inferior to the Supreme
Court; to define and punish piracies and felonies committed on the high
seas, and offenses against the law of nations”.
On the basis of domestic legislation and judicial practice of states,
there gradually formed the rule in modern international law to exercise
11
Ibid. p. 529.
12
M.C. Bassiouni, Introduction to International Criminal Law, Transnational Publisher,
2003, p. 341.
13
MA, 2008, supra note 7, p. 221.
14
Shaw, 2005, supra note 2, p. 470.
15
See Wikipedia, “Offences at Sea Act 1536”, available at http://en.wikipedia.org/wiki/
Offences_at_Sea_Act_1536, last accessed on 15 July 2012.

universal jurisdiction over piracy. L. Oppenheim expresses his view as

follows:
A pirate and his vessel loss ipso facto by an act of piracy
their national character and the protection of their flag state.
Every maritime state has by a customary rule of the Law of
Nations the right to punish pirates. And the vessels of all na-
tions, whether men-of war, other public vessels, or mer-
chantmen, can on the Open Sea chase, attack, seize, and
bring the pirate home for trial and punishment by the courts
of their own country. 16
The U.S. jurist Henry Wheaton also says, “pirates are the enemy of the
nations and it is the common sense of the nations to seize and punish
them. The war ships of every nation can seize pirates at sea, bring them
home and surrender them to their courts for trial”. 17
Slave-trading is another crime which was brought under universal
jurisdiction in the period of modern international law. Since the twentieth
century, especially after World War II, the mutual exchange and influence
in politics, economy, law and culture among states have greatly increased,
which has caused the progress towards the same direction. The interna-
tional community has forged bit by bit the common interest and produced
relatively consistent moral standards and the same value orientation. Be-
cause some international crimes are so serious that they have shocked the
conscience of peoples of the world and caused great damage to the inter-
est of the international community, they are regarded the crimes against
human beings by states. These crimes have been brought under universal
jurisdiction one after the other, and the punishment for them has become
important content of jus cogens. 18
Unlike the other jurisdiction principles, the purpose of universal ju-
risdiction is not to protect the well-being of a given state or its citizens,
but that of international community. In the contemporary world, the main-
tenance of international peace and security, protection of fundamental
human rights and freedom, and safeguard of international well-being and
order constitute the common interest of the international community, and
16
L. Oppenheim, International Law: A Treatise, Longmans, Green, and Co., New York,
1905, p. 330.
17
Henry Wheaton, Elements of International Law, Sampson Low, London, 1864, p. 112
(translated by William M.P. Matin).
18
See LIU, 2006, supra note 3, p. 14.

states have formed common sense on it. At the same time, because of
rampant international crimes and the limitation of national criminal laws,
characterised by the territoriality and nationality, universal jurisdiction
emerges as times require. 19
Although there are still a few states or scholars who hold a nega-
tive, even contrary opinion on universal jurisdiction, 20 the principle of
universal jurisdiction has been well established in the theory of interna-
tional law and the legislation and judicial practice of states.
However, the problem now is that because scholars in international
law and criminal law have had different views on the connotation of uni-
versal jurisdiction, they cannot reach an agreement on the definition of
universal jurisdiction. Professor ZHU Lijiang says, “[…] now the opin-
ions on the definition of universal jurisdiction are so controversial that it
must be clarified and unified in order not to make the arguments more
complicated”. 21 It appears that the present definitions of universal juris-
diction are made in its narrow, broad and broader sense. 22 Scholars usu-
ally give a general definition to universal jurisdiction and then divide it
into different categories according to the extent or conditions of its appli-
cation. Antonio Cassese, an Italian jurist and the first President of the
ICTY, divides ‘universal jurisdiction’ into ‘absolute universal jurisdic-
tion’ and ‘conditioned universal jurisdiction’. 23 Luc Reydams separates it
into three categories, namely, ‘the co-operative general universal jurisdic-
tion’, ‘the co-operative limited universal jurisdiction’, and ‘the unilateral
limited universal jurisdiction’ 24; and Marc Henzelin makes it ‘unilateral
universal jurisdiction’, ‘representative universal jurisdiction’ and ‘abso-
lute universal jurisdiction’. 25 Professor ZHU Lijiang also gives a general
definition of ‘universal jurisdiction’, and then based on his study and
analysis of the clauses, which reflect universal jurisdiction in the criminal
laws of states, divides them into three categories: ‘clauses of universal
19
See MA, 2008, supra note 7, p. 219.
20
See LIU, 2006, supra note 3, pp. 18–22.
21
ZHU, 2007, supra note 4, p. 38.
22
See ZHU, 2007, supra note 4, pp. 418–419; ZHANG Zhihui, International Criminal
Law, 2009, p. 76.
23
Antonio Cassese, International Criminal Law, Oxford University Press, 2003, p. 285.
24
Reydams, 2003, supra note 3, pp. 28–42.
25

jurisdiction based on treaties’, ‘clauses of universal jurisdiction based on

customary international law’ and ‘representative jurisdiction clauses’.26
It is the opinion of the author that the divided views among jurists
of the definition and categories of universal jurisdiction lie in their diver-
gent understandings of its extent of application, and that again stems from
their divided opinions of its legal sources. On the basis of study and
analysis of different views of scholars and provisions of both international
treaties and domestic criminal laws, the author will first divide universal
jurisdiction into three categories: (1) universal jurisdiction based on cus-
tomary international law, (2) universal jurisdiction based on international
treaty, and (3) universal jurisdiction based on domestic law, and then ex-
pound respectively the definition and characteristics of each of the catego-
ries. Finally, after a general definition of universal jurisdiction is offered,
a brief exposition will be made on the application of the universality prin-
ciple in the criminal law of China. It is the hope of this author that the
elaboration of universal jurisdiction in this chapter will be academically
beneficial to the study of this subject.
8.2. Universal Jurisdiction Based on Customary International Law
8.2.1. Definition
Universal jurisdiction based on customary international law is the crimi-
nal jurisdiction that every state can exercise over the crime in customary
international law committed abroad by a foreigner 27 not against this state
or its citizens.
Customary international law, or international custom, is one of the
important sources of international law. Professor WANG Tieya says:
International custom is the oldest and most original source of
international law. There was international custom in history
before international treaty was concluded. In a sense, it could
be regarded as the most important source of international
law. 28
Article 38(1)(b) of the Statute of the International Court of Justice
provides that: “international custom, as evidence of a general practice ac-
26
Ibid., pp. 30–37.
27
Note that the word ‘foreigners’ in this paper includes stateless persons.
28
See WANG, 1981, supra note 1, p. 13.

cepted as law”. In accordance with this provision, international custom

has two elements, that is: (1) material element, and (2) psychological ele-
ment. The material element refers to the actual behaviour of state, and the
psychological element means that such behaviour is accepted as law by
states.
The formation of international custom has had a gradual pro-
cess, because it not only needs states to repeat similar beha-
viour, but also that they think the repeat of such behaviour is
out of legal obligations. 29
International custom as a source of international law has been
broadly accepted by states. To fulfil the obligations originating from in-
ternational custom, many states provide in their constitutions or constitu-
tional instruments that international custom constitutes a part of national
law. 30 For example, after the ratification of the Rome Statute of the Inter-
national Criminal Court (‘Rome Statute’), the Parliament of the Republic
of South Africa enacted the Implementation of the Rome Statute of the
International Criminal Court Act 2002. Article 2 of the Act provides that:
In addition to the Constitution and the law, any competent
court in the Republic hearing any matter from the application
of this Act must also consider and, where, appropriate, may
apply:
(a) Conventional international law, and in particular the
Statute;
(b) Customary international law; and
(c) Comparable foreign law.
This provision is consistent with Article 21(1) of the Rome Statute,
which stipulates that the applicable law of the International Criminal
Court includes customary principles and rules of international law.
29
Ibid., p. 14.
30
See Robert Jennings and Arthur Watts (eds.), Oppenheim’s International Law, vol. I,
1995, pp. 32–45, translated by WANG Tieya et al.; ZHOU Zhonghai et al., Interna-
tional Law Review, Law Press, 2001, pp. 111–121. But the states newly getting inde-
pendence in the movement of decolonisation take a sceptical view towards customary
international law, because they were not involved in the forming process. Their con-
stitutions seldom contain provisions about the position of international custom in do-
mestic legal systems. Before 1990s, the former Soviet Union and the other socialist
countries in Eastern Europe took the same attitude. See BAI Guimei, International
Law, 2006, pp. 73–74.

But up to now, neither the Constitutional Law nor the Criminal Law
of China contains any provision as to the position or application of inter-
national custom in Chinese laws. At the same time, Chinese authors have
held different views on it. 31
8.2.2. Characteristics
Universal jurisdiction based on customary international law possesses the
following characteristics.
8.2.2.1. The Subject of this Jurisdiction is Every State

Because of the universal application of international custom, the subject
of universal jurisdiction based on customary international law is each and
every state. Judge LIU Daqun of the ICTY points out that universal juris-
diction means every state has the jurisdiction over the person alleged to
have committed an international crime, without regard to where the crime
was committed, the nationality of the alleged or the victim, even without
regard to whether the alleged is present in the territory of the state exercis-
ing such jurisdiction or not. 32 Here the universal jurisdiction referred to by
Judge LIU is obviously universal jurisdiction based on customary interna-
tional law, because its subject is “every state”.
The provision on the jurisdiction over piracy in the United Nations
Convention on the Law of the Sea clearly reflects this characteristic. Arti-
cle 105 of the Convention provides as follows:
On the high seas, or in any other place outside the jurisdic-
tion of any state, every state may seize a pirate ship or air-
craft, or a ship taken by piracy and under the control of pi-
31
ZHANG Zhihui holds the argument that international treaty is the only source of in-
ternational criminal law. Since international custom cannot meet the requirement of
the principle of legality, it cannot be a source of international criminal law. See
ZHANG, 2009, supra note 22, pp. 23–25. This argument confuses the relationship of
international treaty and international custom, as well as the relationship of interna-
tional law and domestic law. In fact, neither international treaty, nor international cus-
tom can be applied in municipal law without being combined with it by either trans-
formation or incorporation. Although Article 9 of the Criminal Law of China requires
the application of the law to crimes provided in the treaties ratified by China, practi-
cally, the Chinese court can hardly exercise criminal jurisdiction over some of the
crimes because they have not been provided as crimes in the Criminal Law of China.
32
LIU, 2006, supra note 3, p. 12.

rates, and arrest the persons and seize the property on board.
The courts of the state which carried out the seizure may de-
cide upon the penalties to be imposed, and may also deter-
mine the action to be taken with regard to the ships, aircraft
or property, subject to the rights of third parties acting in
good faith.
In this article, the Convention emphasises that ‘every state’ has the
right to fight against piracy instead of ‘states parties’. This has fully illus-
trated that piracy is one of the crimes in customary international law, and
all the states are authorised to exercise criminal jurisdiction over it.
However, although the subject of universal jurisdiction – based on
customary international law – is every state, before the adoption of the
Rome Statute, there were only a few states which incorporated such a
clause in their domestic legislation. 33 Israel and Belgium are typical
among them. Israel enacted the Nazis and Nazi Collaborators (Punish-
ment) Act in 1950 for the purpose of punishing Nazi war criminals 34, al-
though as a state, Israel did not exist during World War II. The Belgian
parliament passed the Act concerning the Punishment of Grave Breaches
of International Humanitarian Law in 1993, and made amendment to it in
1999 after ratifying the Rome Statute. Article 7 of the Act provides:
The Belgian courts shall be competent to deal with breaches
provided for in the present Act, irrespective of where such
breaches have been committed.
In respect of breaches committed abroad by a Belgian na-
tional against a foreigner, no filing of complaint by the for-
eigner or his family or official notice by the authority of the
country in which the breach was committed shall be re-
quired.
According to Professor ZHU Lijiang, this Article embodies univer-
sal jurisdiction based on customary international law. 35 But it is worth
noting that after the conclusion of the Rome Statute, many contracting
states have made their domestic legislation containing articles of universal
jurisdiction based on customary international law.
33
34
MA, 2008, supra note 7, p. 225.
35
ZHU, 2007, supra note 4, at 125.

In judicial practice, the 1961 trial of Eichmann, 36 the 1993 trial of

Demjanjuk in Israel and the 2001 trial of the Rwandan nuns in Belgium 37
are famous cases in applying this kind of universal jurisdiction. 38
8.2.2.2. This Jurisdiction Applies to Crimes in Customary

International Law
The crimes over which universal jurisdiction is exercised are crimes in
customary international law. But since international custom is unwritten
law, sometimes it is hard to tell which crimes are crimes in customary in-
ternational law. Professor WANG Tieya says that international custom is
formed in diplomatic relations of states, the practice of international or-
ganisations and organs and internal activities of states. They indicate the
wills and practice of states and constitute evidence of international cus-
tom. 39 So, in order to find out which crimes are crimes in customary in-
ternational law, much research has to be done. Based on the two elements
of international custom – if the general practice and opinio juris of states
and international organisations indicate that an act constitutes an interna-
tional crime, and there is no such practice or opinio juris to the contrary –
it would be identified as a crime under universal jurisdiction based on
The ‘universal jurisdiction’ defined in the Princeton Principles on
Universal Jurisdiction 40 forged by the Princeton Project on Universal ju-
36
See MA, 2008, supra note 7, pp. 226–229.
37
See David A. Tallman, “Universal Jurisdiction: Lessons from Belgium’s Experience”,
in Jane E. Stromseth (ed.), Accountability for Atrocities: National and International
Responses, Transnational Publisher, 2003, pp. 386–388.
38
See more cases in supra note 4, pp. 114–215.
39
40
The “Princeton Principles on Universal Jurisdiction” document was prepared by the
Princeton Project on Universal jurisdiction sponsored by Princeton University’s Pro-
gram in Law and Public Affairs and the Woodrow Wilson School of Public and Inter-
national Affairs, the International Commission of Jurists, the American Association
for the International Commission of Jurist, the Urban Morgan Institute for Human
Rights, and the Netherland Institute of Human Rights. The Project convened at
Princeton University in January 2001 an assembly of scholars and jurists from around
the world. On 27 January 2001, those assembled arrived at a final text, the “Princeton
Principles on Universal Jurisdiction”. It can be said to be an important civil codifica-
tion on the principle of universal jurisdiction. See Stephen Macedo (ed.), Universal

risdiction is the universal jurisdiction based on customary international

law. 41 Principle I of the Princeton Principles on Universal Jurisdiction
provides:
For purpose of these Principles, universal jurisdiction is
criminal jurisdiction based solely on the nature of the crime,
without regard to where the crime was committed, the na-
tionality of the alleged or convicted perpetrator, the national-
ity of the victim, or any other connection to the state exercis-
ing such jurisdiction.
According to Principle II of the Princeton Principles on Universal
Jurisdiction, serious crimes under international law include: (1) piracy; (2)
slavery; (3) war crimes; (4) crimes against peace; (5) crimes against hu-
manity; (6) genocide; and (7) torture.
The late Judge Cassese of the ICTY argued that ‘international
crimes’ are the actions which violate customary international law rules.
Those rules are aimed at protecting the interest of the international com-
munity as a whole and thus have binding force on all states and individu-
als. 42 In his opinion, international crimes include piracy, war crimes,
crimes against humanity (especially genocide), torture, aggression and
crimes of terrorism. 43
Compared with the crimes enumerated in the Princeton Principles
on Universal Jurisdiction, Judge Cassese’s list of crimes in customary in-
ternational law does not include slavery, but adds crimes of terrorism. It is
worth noting that in both material and psychological elements, originating
from slave trading, slavery has undoubtedly become one of the crimes in
customary international law. As to crimes of terrorism, since there are al-
ways widely divided opinions among states, international organisations
and scholars on its definition and contents, it is still hard to prove that it
has become a crime in customary international law. In the Princeton Prin-
ciples on Universal Jurisdiction, the list of serious crimes is explicitly il-
Jurisdiction: National Courts and the Prosecution of Serious Crimes under Interna-
tional Law, University of Pennsylvania Press, 2004, pp. 18–25.
41
See Macedo, ibid., p. 26.
42
Antonio Cassese, International Law, Oxford University Press, 2001, p. 246.
43
Ibid., pp. 246–247.

lustrative, not exhaustive, and terrorism, apartheid and drug crimes are
listed as candidates of serious crimes for future inclusion. 44
In brief, piracy, slavery, aggression, war crimes, crimes against hu-
manity, genocide and torture have acquired material and psychological
elements as international custom. States and international organisations,
including the United Nations, consistently condemn these crimes and in-
ternational legal systems have been established to prevent and punish
them. Undoubtedly, they have become crimes in customary international
law. With the progress of the international community and the develop-
ment of international criminal law, more crimes will be included in the
future.
8.2.2.3. This Jurisdiction Applies to Crimes Committed

by Foreigners Abroad not Against this State or its Citizens
Universal jurisdiction based on customary international law serves as a
complement to territorial, nationality and protective jurisdiction of states.
It is aimed at crimes in customary international law committed by for-
eigners abroad, not against the state exercising jurisdiction or its citizens.
Professor WANG Tieya defines universal jurisdiction as this:
According to the provisions of international law, because
some international crimes injure universally the international
peace and security and interest of mankind, every state has
the right to exercise jurisdiction over them, no matter where
the crime is committed and what nationality the criminal
has. 45
Except a few 46, most Chinese scholars have also incorporated “no
matter where the crime is committed and what nationality the criminal
has” or similar expressions as part of their definitions of universal juris-
diction. 47
44
See Macedo, supra note 40, p. 31.
45
46
See HAN Depei, Contemporary International Law, 1992, p. 123; ZHU, 2007, supra
note 4, p. 14.
47
See ZHU Qiwu, The Theory and Practice of International Law in China, Law Press,
Beijing, 1998, p. 85; SHAO Jing (ed.), International Law, 2000, p. 44; DUAN Muz-
heng (ed.), International Law, Peking University Press, 2000, p. 73; LIANG Shuying
(ed.), International Law, China University of Political Science and Law Press, 2011,
p. 62; GAO Mingxuan and ZHAO Bingzhi (eds.), Criminal Law of China, vol. I,

But as to this author’s opinion, such an expression is not accurate or

appropriate, because “no matter where the crime is committed and what
nationality the criminal has” must include the situation that the crime is
committed within the territory of the state claiming criminal jurisdiction
or the criminal is the citizen of that state. However, what must be clarified
is that, even for an international crime, if it is committed within the terri-
tory of the state exercising jurisdiction or the criminal is the citizen of that
state, the jurisdiction that this state exercises over the crime is that of ter-
ritorial or nationality jurisdiction rather than universal jurisdiction. So
universal jurisdiction based on customary international law is only di-
rected against the foreigner who has committed the international crime
abroad, which produces no substantial impact on the interest of the state
exercising criminal jurisdiction or that of its citizens. It is not against the
international crime committed within the territory of the state or the crime
committed by its citizen.
8.2.2.4. This Jurisdiction can be Exercised in absentia

Generally, the prerequisite for a state to exercise criminal jurisdiction is
that the suspect or defendant is within the territory of that state. But in
exercising universal jurisdiction based on customary international law, the
state may sometimes claim jurisdiction over a foreign suspect not present
in its territory. This is so-called ‘universal jurisdiction in absentia’ and it
has been provided in the domestic laws of some states.
After the ratification of the Rome Statute, New Zealand enacted its
International Crimes and International Criminal Court Act in 2000. Sec-
tion 8 of the Act is as follows:
Jurisdiction in respect of international crimes
(1) Proceedings may be brought for an offense […]
(c) against section 9 (genocide) or section 10
(crimes against humanity)or section 11 (war
crimes) regardless of
(i) the nationality or citizenship of the person
accused; or
1998, Law Press, p. 48; ZHAO Bingzhi et al. (eds.), International Criminal Law,
2004, p. 57; ZHANG Zhihui, International Criminal Law, 2009, pp. 76–77; JIA Yu,
International Criminal Law, 2004, p. 59; among others. This sort of expression is also
popular in definitions given by foreign authors.

(ii) whether or not any act forming part of the

offense occurred in New Zealand; or
(iii) whether or not the person accused was in
New Zealand at the time that the act con-
stituting the offense occurred or at the
time a decision was made to charge the
person with an offense.
Universal jurisdiction based on customary international law is also
provided in domestic laws of other states, including Germany. But view-
ing it as a whole, most states only exercise criminal jurisdiction over in-
ternational crimes when the suspects are present in their territories. 48
Belgium’s prosecution of Ariel Sharon, the former Prime Minister
of Israel, and the arrest warrant issued against Abdoulaye Yerodia Ndom-
basi, the Foreign Minister of the Democratic Republic of the Congo, are
very famous cases claiming universal jurisdiction in absentia over crimes
in customary international law. 49 Because of the arrest warrant issued
against its Foreign Minister, the Democratic Republic of the Congo insti-
tuted proceedings against Belgium before the International Court of Jus-
tice (‘ICJ’) asking for the annulment of the warrant. On 14 February
2002, the ICJ delivered its judgment unfavourable to Belgium. 50 There are
such cases in the courts of France and other states as well. 51
8.2.2.5. Statutory Limitations are not Applicable when Exercising

this Jurisdiction
Unlike the general situation, in contemporary international criminal law,
the statutory limitation provided in domestic laws is not applicable when
exercising universal jurisdiction based on customary international law to
prosecute international crimes. On 26 November 1968, the Assembly of
the United Nations adopted the Convention on the Non-applicability of
Statutory Limitations to War Crimes and Crimes against Humanity. Arti-
48
See ZHU, 2007, supra note 4, p. 231. What Professor ZHU studies is universal juris-
diction in absentia over war crimes in civil war; but for other crimes in customary in-
ternational law, the situation is roughly the same.
49
See David A. Tallman, 2003, supra note 37, pp. 389–394.
50
See Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
Judgment of 14 February 2002, available at http://www.legal-tools.org/doc/c6bb20/.
51
Ibid.

cle 1 of the Convention declares that no statutory limitations shall apply

to war crimes (particularly the “grave breaches” enumerated in the Ge-
neva Conventions of 12 August 1949 for the protection of war victims),
crimes against humanity and genocide, irrespective of the date of their
commission. Then Article 3 has the following provision:
The State Parties to the present Convention undertake to
adopt, in accordance with their respective constitutional
processes, any legislative or other measures necessary to en-
sure that statutory or other limitations shall not apply to the
prosecution and punishment of the crimes referred to in Arti-
cles 1 and 2 of the Convention and that, where they exist,
such limitations shall be abolished.
The Council of Europe adopted the European Convention on the
Non-applicability of Statutory Limitations to Crimes against Humanity
and War Crimes on 25 January 1974. It contains similar provisions to
those of the U.N. Convention.
On 5 June 2000, the United Nation Transitional Administration in
East Timor promulgated Regulation No. 2000/15 on the Establishment of
Panels with Exclusive Jurisdiction over Serious Criminal Offenses. Arti-
cles 4 to 7 define crimes under the jurisdiction of the panels. They are
genocide, crimes against humanity, war crimes and torture. Then in Arti-
cle 17(1), it provides that the serious criminal offenses defined in the pre-
sent regulation shall not be subject to any statute of limitations. 52
8.2.2.6. International Crimes can be Prosecuted Retroactively

when Applying this Jurisdiction
‘Non-retroactivity of law’ is a well-established legal principle. But be-
cause of the seriousness of the crimes in customary international law,
states can enact their domestic laws and prosecute these crimes retroac-
tively. In 1950, Israel passed the Nazis and Nazi collaborators (Punish-
ment) Act for the purpose of punishing Nazi war criminals. This act ap-
plies retroactively to crimes against Jewish people, crimes against human-
ity and war crimes committed during the period of the Nazi regime in an
enemy country. A person who has committed these crimes is liable to se-
52
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious
Criminal Offenses, UNTAET/REG/2000/15, 6 June 2000, available at http://www.
un.org, last accessed on 27 August 2012.

vere punishment. In fact, after World War II, many Allied countries
adapted their domestic laws to prosecute and punish war criminals of the
Axis states. China also promulgated its Judicial Regulations on War
Crimes and brought Japanese war criminals to trial according to Chinese
laws and regulations, as well as international treaties acceded to by China.
In the 1980s, considering that some persons who committed serious
war crimes in Europe during World War II might have entered their terri-
tories and become citizens or residents, the United Kingdom, Canada,
Australia, the Netherlands and some other countries amended their origi-
nal legislation or enacted new laws and applied them retroactively to
crimes committed by Nazi war criminals. For example, Australia enacted
the War Crimes Act in 1945 and promulgated the War Crimes Amend-
ment Act in 1988. According to Article 9 of the Amendment Act, “a per-
son who on or after 1 September 1939 and on or before 8 May 1945 and
whether as an individual or as a member of an organization committed a
war crime is guilty of an indictable offense against this Act”. But Article
11 of the Act provides that a person shall not be charged with an offense
against this Act unless he or she is an Australian citizen or a resident of
Australia or of an external territory.
8.3. Universal Jurisdiction Based on International Treaty
8.3.1. Definition
‘Universal jurisdiction based on international treaty’ is the criminal juris-
diction that a contracting state of a treaty can exercise over the interna-
tional crime defined in that treaty, which is committed abroad by a for-
eigner not against this state or its citizens.
International treaty is the other important source of international
law. Professor LI Haopei points out: “treaty is the consensus of expres-
sion of at least two states in which they intend to create, amend or abolish
each other’s rights and obligations according to international law”. 53 In
the period of modern international law, the major source of international
law is international custom. But because treaty is written law and its con-
clusion is comparatively faster, it can to a certain extent avoid disputes
between or among states and thus meets better the needs of international
relations. From the twentieth century, the number of international treaties
53
LI Haopei, Introduction to the Law of Treaties, Law Press, 1987, p. 1.

concluded has increased greatly. Treaties have become more and more
important among the sources of international law.
Pacta sunt servanda is a significant legal principle and the basis of
binding force of treaties as well. A treaty is the consensus of the free wills
of states parties, as Professor LI Haopei says: “for a treaty concluded le-
gally, in the period of validity, the states parties are obliged to perform the
obligations in good faith. This is called pacta sunt servanda, or Sanctity
of Treaties in international law. Pacta sunt servanda is the most important
fundamental principle in the law of treaties”. 54
The international treaties that seek to prevent and punish interna-
tional crimes are usually called “conventions of international criminal
law”. Generally, this kind of conventions will: (1) define what the crimi-
nal activity is, (2) request the contracting states to make it a crime in do-
mestic law, (3) provide their jurisdiction over the crime, and (4) impose
the obligations upon them to co-operate in investigation, prosecution and
punishment of the crime. Due to the fact that, in some circumstances,
these conventions permit contracting states to exercise jurisdiction over
the defined crimes committed by foreigners abroad not against the state
exercising jurisdiction or its citizens, such a jurisdiction is provided with
the character of universality. For example, Article 6(5) of the Interna-
tional Convention for the Suppression of Terrorist Bombings of 1998
provides: “this Convention does not exclude the exercise of any criminal
jurisdiction established by a State Party in accordance with its domestic
law”.
‘Universal jurisdiction based on international treaty’ possesses the follow-
ing characteristics.
8.3.2.1. The Subject of this Jurisdiction is the States Parties

of a Treaty
Different from “universal jurisdiction based on customary international
law”, the subject of universal jurisdiction based on international treaty is
the contracting states, instead of every state. This is determined by the
principle of pacta tertiis nec nocent nec prosunt. Since a treaty is con-
54
Ibid., p. 329.

cluded by contracting states in accordance with international law to define

their rights and obligations, it can only have binding force for states par-
ties, producing no effects for third states. 55 The origin of the principle of
pacta tertiis nec nocent nec prosunt can be traced back to Roman Law. 56
In contemporary international law, it embodies the fundamental principle
of equality of state sovereignty. Article 34 of the Vienna Convention on
the Law of Treaties has also confirmed the principle of pacta tertiis nec
nocent nec prosunt: “A treaty does not create either obligations or rights
for a third State without its consent”.
To fulfil the purpose of prevention and punishment of international
crimes, all conventions of international criminal law have explicitly stipu-
lated jurisdiction of the contracting states. For example, Article 9 of the
International Convention for the Suppression of Acts of Nuclear Terror-
ism (2005) provides respectively the criminal jurisdiction that the states
parties ‘shall’ or ‘may’ exercise:
1. Each state party shall take such measures as may be
necessary to establish its jurisdiction over the offenses
set forth in article 2, when:
(a) The offense is committed in the territory of that
State; or
(b) The offense is committed on board a vessel fly-
ing the flag of that State or an aircraft which is
registered under the laws of that State at the time
the offense is committed; or
(c) The offense is committed by a national of that
State.
2. A State Party may also establish its jurisdiction over
any such offense when:
(a) The offense is committed against a national of
that State; or
(b) The offense is committed against a State or gov-
ernment facility of that State abroad, including
an embassy or other diplomatic or consular
premises of that State; or
55
See ZHOU Zhonghai (ed.), International Law, 2008, p. 246.
56
See SHAO Jing (ed.), International Law, 2000, p. 341.

(c) The offense is committed by a stateless person

who has his or her habitual residence in the terri-
tory of that State; or
(d) The offense is committed in an attempt to com-
pel that State to do or abstain from doing any act;
or
(e) The offense is committed on board an aircraft
which is operated by the Government of that
State.
In fact, the jurisdiction set forth in Article 9(1) and (2) of the Con-
vention is actually the defined jurisdiction, which is claimed to be exer-
cised only by those states parties that have some substantial connection
with the crime. However, Article 9(5) provides the possibility for other
states parties to exercise criminal jurisdiction over the crime. It reads,
“[…] this Convention does not exclude the exercise of any criminal juris-
diction established by a State Party in accordance with its national law”.
8.3.2.2. The Manifestation of this Jurisdiction is the Clause

or Principle of Aut Dedere Aut Judicare
It is generally acknowledged that the principle of aut dedere aut judicare
(‘extradite or prosecute’) in contemporary international criminal law
originates from the idea of aut dedere aut punire initiated by Grotius in
the Law of War and Peace. 57 For the first time, the clause of aut dedere
aut judicare is explicitly stipulated in the Convention for the Suppression
of Unlawful Seizure of Aircraft of 1970 (‘The Hague Convention’). Arti-
cle 7 of the Convention reads as follows:
The Contracting State in the territory of which the alleged
offender is found shall, if it does not extradite him, be
obliged, without exception whatsoever and whether or not
the offense was committed in its territory, to submit the case
to its competent authorities for the purpose of prosecution.
Those authorities shall take their decision in the same man-
ner as in the case of any ordinary offense of a serious nature
under the law of that State.
Hereafter, the same or similar expression of aut dedere aut judicare
has been incorporated in many conventions of international criminal
57

law. 58 It seems that now aut dedere aut judicare has become a regular
clause in this category of international conventions. Article 11(1) of the
newly concluded International Convention for the Suppression of Acts of
Nuclear Terrorism also stipulates:
The State Party in the territory of which the alleged offender
is present shall, in case to which article 9 applies, if it does
not extradite that person, be obliged, without exception
whatsoever and whether or not the offense was committed in
its territory, to submit the case without undue delay to its
competent authorities for the purpose of prosecution, through
proceedings in accordance with the laws of that State. Those
authorities shall take their decision in the same manner as in
the case of any other offense of a grave nature under the law
of that State.
The scholars in different states hold divided opinions on the issue
whether aut dedere aut judicare is a rule of customary international law
or that of conventional law. But undoubtedly, it imposes such an explicit
obligation upon the states parties: the state in whose territory the suspect
is present can only choose to extradite him to other contracting states or
prosecute him by itself. 59 If the state chooses to prosecute him and the
crime he committed has no connection either of territory or nationality
with this state, the jurisdiction it exercises surely has the character of uni-
versality.
58
Article 7 of the Convention for the Suppression of Unlawful Acts against the Safety
of Civil Aviation (1971); Article 7 of the Convention on the Prevention and Punish-
ment of Crimes against Internationally Protected Persons, including Diplomatic
Agents (1973); Article 8(1) of the International Convention against the Taking of
Hostages (1979); Article 9 of the Convention on the Physical Protection of Nuclear
Materials (1980); Article 7(1) of the Convention against Torture and Other Cruel, In-
human or Degrading Treatment or Punishment (1984); Article 10(1) of the Conven-
tion for the Suppression of Unlawful Acts against the Safety of Maritime Navigation
(1988); Article 3(4) of the Protocol for the Suppression of Unlawful Acts against the
Safety of Fixed Platforms Located on the Continental Shelf (1988); Article 4(2) of the
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
(1988); Article 8(1) of the International Convention for the Suppression of Terrorist
Bombings (1998); Article 10(1) of the International Convention for the Suppression
of Financing Terrorism (1999); Article 16(10) of the United Nations Convention
against Transnational Organized Crime (2000).
59
See ZHU, 2007, supra note 4, pp. 26–27.

Professor ZHU Lijiang points out that most of the Continental law
states stipulate the clause of universal jurisdiction based on international
treaty in their criminal laws. The clause usually provides that if a valid
international treaty requires the criminal law of the state be applied to the
defined act, the criminal law of the state should apply to it regardless of
whether the criminal act has any connection (such as territory, nationality
or state interest) with it or not. The purpose of the provision is to conform
to the trend that more and more conventions of international criminal law
have contained the clause of aut dedere aut judicare which reflects the
character of universal jurisdiction. 60
Article 689(1) of the French Code of Criminal Procedure provides
as follows:
In accordance with the international Conventions quoted in
the following articles, a person guilty of committing any of
the offences listed by these provisions outside the territory of
the Republic and who happens to be in France may be prose-
cuted and tried by French courts. The provisions of the pre-
sent article apply to attempts to commit these offences, in
every case where attempt is punishable.
Article 4(2) of the Criminal Code of Japan stipulates:
In addition to the provisions of Article 2 through the preced-
ing Article, this Code shall also apply to anyone who com-
mits outside the territory of Japan those crimes prescribed
under Part II which are governed by a treaty even if commit-
ted outside the territory of Japan.
The Criminal Law of China contains the clause of universal juris-
diction based on international treaty too. Article 9 of the Criminal Law
reads as follows:
This Law is applicable to the crimes prescribed in the inter-
national treaties concluded or acceded to by the People’s
Republic of China and over which the People’s Republic of
China has criminal jurisdiction within its obligation in ac-
cordance with the treaties.
Lastly, and most importantly, all the conventions of international
criminal law with the clause of aut dedere aut judicare also contain such a
clause as mentioned above in the International Convention for the Sup-
60
Ibid. p. 32.

pression of Acts of Nuclear Terrorism: “This Convention does not ex-

clude the exercise of any criminal jurisdiction established by a State Party
in accordance with its national law”. This kind of clause also manifests
the quality of universal jurisdiction in addition to the clause of aut dedere
aut judicare.
8.3.2.3. This Jurisdiction Applies to the Crimes Defined

in International Treaties
Universal jurisdiction based on international treaty applies to crimes de-
fined in conventions of international criminal law. As to what kind of
convention is an international criminal law convention, Professor Bas-
siouni’s opinion is that there are ten penal characteristics which, if found,
even singularly, in any convention, is sufficient to make it an international
criminal law convention. These penal characteristics are as follows:
1. explicit or implicit recognition of proscribed conduct as constituting
an international crime, or a crime under international law, or a
crime;
2. implicit recognition of the penal nature of the act by establishing a
duty to prohibit, prevent, prosecute, punish, or the like;
3. criminalisation of the proscribed conduct;
4. duty or right to prosecute;
5. duty or right to punish the proscribed conduct;
6. duty or right to extradite;
7. duty or right to co-operate in prosecution, punishment (including
judicial assistance);
8. establishment of a criminal jurisdiction basis;
9. reference to the establishment of an international criminal court or
international tribunal with penal characteristics;
10. no defence of superior order. 61
Having analysed 281 conventions of international criminal law up
to then, Bassiouni induces 28 international crimes. They are (1) aggres-
sion; (2) genocide; (3) crimes against humanity; (4) war crimes; (5)
unlawful possession, use or emplacement of weapons; (6) theft of nuclear
61
M.C. Bassiouni, Introduction to International Criminal Law, Transnational Publisher,
2003, p. 115.

materials; (7) mercenarism; (8) apartheid; (9) slavery and slave-related

practices; (10) torture and other forms of cruel, inhuman or degrading
treatment; (11) unlawful human experimentation; (12) piracy; (13) aircraft
hijacking and unlawful acts against international air safety; (14) unlawful
acts against the safety of maritime navigation and the safety of platforms
on the high seas; (15) threat and use of force against internationally pro-
tected persons; (16) crimes against United Nations and associated person-
nel; (17) taking of civilian hostages; (18) unlawful use of the mail; (19)
attacks with explosives; (20) financing of terrorism; (21) unlawful traffic
of drugs and related drug offenses; (22) organised crime; (23) destruction
and/or theft of national treasures; (24) unlawful acts against certain inter-
nationally protected elements of the environment; (25) international traf-
fic in obscene materials; (26) falsification and counterfeiting; (27) unlaw-
ful interference with submarine cables; and (28) bribery of foreign public
officials. 62
According to the study of this author, there are 27 crimes in the
conventions of international criminal law, 63 plus the crime of acts of nu-
clear terrorism based on the International Convention for the Suppression
of Acts of Nuclear Terrorism. Of all the crimes stipulated in the conven-
tions of international criminal law, some belong to the crimes in custom-
ary international law. In this case, the provisions of conventions may be
regarded as important evidence of the existence of international custom.
Jurisdiction over these crimes cannot only be exercised by states parties in
accordance with the conventions, but also non-States Parties according to
8.3.2.4. This Jurisdiction cannot be Exercised in absentia

Unlike universal jurisdiction based on customary international law, juris-
diction based on international treaty cannot be exercised in absentia. Gen-
erally, the conventions of international criminal law require that the pre-
requisite for a State Party to claim jurisdiction over a crime is the pres-
ence of the suspect in its territory. The clause of aut dedere aut judicare
has proved this too, because if the suspect is not present within the terri-
tory of the State Party, there is not such a problem of extradition or prose-
cution. Article 9(2) of the International Convention for the Suppression of
62
Ibid., pp. 116–117.
63

the Financing of Terrorism provides: “upon being satisfied that the cir-
cumstances so warrant, the State Party in whose territory the offender or
alleged offender is present shall take the appropriate measures under its
domestic law so as to ensure that person’s presence for the purpose of
prosecution or extradition”. Article 10(1) of the Convention has the provi-
sion as follows:
The State Party in the territory of which the alleged offender
is present shall, in case to which article 7 applies, if it does
not extradite that person, be obliged, without exception
whatsoever and whether or not the offense was committed in
its territory, to submit the case without undue delay to its
competent authorities for the purpose of prosecution, through
proceedings in accordance with the laws of that State. Those
authorities shall take their decision in the same manner as in
the case of any other offense of a grave nature under the law
of that State.
Because of the requirement of the conventions of international
criminal law, the states which have accepted universal jurisdiction based
on international treaty, including China, usually stipulate in their legisla-
tion that the pre-condition to exercise jurisdiction over crimes defined in
international conventions is the presence of the suspect within their terri-
tories. 64 Professor GAO Mingxuan says:
In accordance with Article 9 of the Criminal Law of China,
for the crime stipulated in an international treaty concluded
or acceded to by China, provided the alleged offender is
found in China, China will exercise the criminal jurisdiction
within its obligation in accordance with the treaty, without
regard to whether the alleged offender is a Chinese citizen or
not, and whether the crime was committed within the terri-
tory of China or not. It means that the Criminal Law of
China has established universal jurisdiction over the crimes
defined in international treaties. 65
8.3.2.5. This Jurisdiction cannot be Exercised Retroactively

Different from universal jurisdiction based on customary international
law, universal jurisdiction based on international treaty cannot be retroac-
64
See ZHU, 2007, supra note 4, p. 231.
65
GAO and ZHAO (eds.), 1998, supra note 47, p. 53.

tively exercised over crimes committed before the treaty concerned comes
into force. This is determined by the principle of “non-retroactivity of
law”. Professor WEI Min points out:
Generally, a treaty starts to apply from the date when it goes
into effect. In principle, a treaty has no retroactive effect.
That is to say, for any acts or facts done before the date of
the treaty’s coming into force, the provisions of the treaty do
not have binding force to the states parties. Of course, some
treaties explicitly provide that they apply to situations that
previously existed. This is an exceptional issue. 66
Article 28 of the Vienna Convention on the Law of Treaties thus
provides the principle of non-retroactivity of treaties:
[U]nless a different intention appears from the treaty or is
otherwise established, its provisions do not bind a party in
relation to any act or fact which took place or any situation
which ceased to exist before the date of the entry into force
of the treaty with respect to that party.
Professor BAI Guimei regards Article 9 of the Convention as the
application of inter-temporal law in international treaties. 67
In accordance with the principle of non-retroactivity of law, neither
can a State Party of an international treaty exercise jurisdiction over the
crime committed before the treaty’s entry into force, nor can it exercise
jurisdiction over the crime committed before its ratification of or acces-
sion to the treaty, unless there are exceptional provisions otherwise.
8.4. Universal Jurisdiction Based on Domestic Law
8.4.1. Definition
Universal jurisdiction based on domestic law is the criminal jurisdiction
that a state exercises over the crime committed abroad by a foreigner not
against this state or its citizens, in case he is found in the state and extradi-
tion is not available.
The legal source of this jurisdiction is the legislation of some states,
specifically, the clause of representative jurisdiction in criminal laws of
66
WANG, 1981, supra note 1, p. 240.
67
See BAI, 2006, supra note 30, p. 177.

Germany and some other states in north and middle-east Europe. 68 Sec-
tion 7(2) of the German Criminal Code provides as follows:
German criminal law shall apply to other offenses committed
abroad if the act is a criminal offense at the locality of its
commission or if that locality is not subject to any criminal
jurisdiction, and if the offender:
1) was German at the time of the offense or became
German after the commission; or
2) was a foreigner at the time of the offense, is discov-
ered in Germany and, although the Extradition Act
would permit extradition for such an offense, is not
extradited because a request for extradition within a
reasonable period of time is not made, is rejected, or
the extradition is not feasible.
The Criminal Code of the Republic of Turkey stipulates representa-
tive jurisdiction clause too. Article 12(1) and (2) provide respectively the
situations that a foreigner found in Turkey committed a crime in a foreign
country causing injury to Turkey and to a Turkish citizen or a legal entity,
and Article 12(3)–(4) is the situation causing injury to another foreigner.
The provision reads as follows:
(3) If the aggrieved party is a foreigner, he is tried upon re-
quest of the Ministry of Justice in case of existence of
the following conditions;
1) Where the offense requires punishment with a
minimum limit of less than three years imprison-
ment according to the Turkish Laws;
2) Where there is no extradition agreement or the
demand of extradition is rejected by the nation
where the crime is committed or the person ac-
cused of a crime holds citizenship.
(4) A foreigner who is convicted of an offence in a foreign
country within the scope of first subsection, or the ac-
tion filed against him is extinguished or the punishment
is abated, or the offence committed is not qualified for
68
See ZHU, 2007, supra note 2, p. 33. But as for universal jurisdiction based on domes-
tic law, Chinese scholars hold divided opinion. See HAN, 1992, supra note 46, p.
122; LIU, 2006, supra note 3 pp. 9–10; LIN Xin and LI Qiongying, International
Criminal Law, 2005, pp. 53–55.

the prosecution, then a new trial can be filed in Turkey

upon request of the Ministry of Justice.
Universal jurisdiction based on domestic law stems from two theo-
ries of criminal law. One is the theory of continued offense, and the other
is the universal theory of crime. The first theory means that a thief contin-
ues his offense wherever he takes the stolen object, so he could be pun-
ished according to the law of the place where he is detained.69 In accor-
dance with the second theory, since a crime is invariably an injury to the
community, no matter where it is committed or what nationality the
criminal possesses, every state has the right to exercise jurisdiction over it
and suppress it. 70 The famous Italian jurist Beccaria expresses his idea as
follows:
There are always those who think, that an act of cruelty
committed, for example, at Constantinople may be punished
at Paris, for this abstracted reason, that he who offends hu-
manity should have enemies in all mankind, and be the ob-
ject of universal execration, as if judges were to be the
knights errant of human nature in general, rather than
guardians on particular conventions between men. 71
Although in the light of Professor Bassiouni’s understanding Beccaria
himself does not endorse this position, 72 he does believe that an extremely
effective measure to prevent crimes is to give offenders no place to escape
to. 73
Generally speaking, universal jurisdiction based on domestic law
shows an idealistic thought of universal criminal law, or a kind of thought
‘to hold justice for God’ as is said in Chinese. The applicability of this
jurisdiction is extensive. Actually, it covers the contents of the two cate-
gories of universal jurisdiction discussed above. But if a state claims ju-
risdiction over all the crimes, including international or domestic, com-
mitted abroad by foreigners, it will invariably conflict with the jurisdic-
tion, even sovereignty of other states. Meanwhile, the investigation,
prosecution and interrogation of the state claiming jurisdiction over these
69
See Luc Reydams, 2003, supra note 3, p. 29.
70
See HAN, 1992, supra note 46, p. 122.
71
Cesare Beccaria-Bonesana, An essay on Crimes and Punishments, 2005, p. 76, trans-
lated by HUANG Feng.
72
See M.C. Bassiouni, 2003, supra note 61, p. 336.
73
See supra note 71, p. 76.

crimes will invariably have difficulties in international criminal co-

operation, as well as problems of judicial cost or efficiency. As Professor
ZHU Lijiang says, this kind of universal jurisdiction is the distinctive
practice of some continental law states in north and middle-east Europe
with Germany as the centre. Since its application demands some essential
conditions, it has not been generally accepted in either treaties or custom-
ary international law.
8.4.2.1. The Object of this Jurisdiction is the Foreign Suspect Found

in the State
The object of universal jurisdiction based on domestic law is the foreign
suspect who committed a crime in a foreign state, but is discovered in the
state exercising jurisdiction. Neither a foreign suspect not present within
the territory of the state, nor a citizen of the state who committed a crime
abroad and escaped back thereafter, is the object of this jurisdiction. Some
scholars hold the opinion that the principle of representative jurisdiction
applies not only to a foreign suspect found in the state, but also to a citi-
zen of this state who escaped back after the commission of a crime
abroad. On the request of the foreign state concerned, the state should
bring him before its court for trial. 74
It should be pointed out that this interpretation of representative ju-
risdiction is different from the concept of universal jurisdiction based on
domestic laws of some states, more accurately, based on the clause of rep-
resentative jurisdiction in the criminal laws of some states. First, the ob-
ject of universal jurisdiction based on domestic law is the foreign suspect
found in the state-claiming jurisdiction, not the citizen of that state who
committed a crime abroad and escaped back. Second, the jurisdiction ex-
ercised by a state over its citizen who committed a crime abroad is nation-
ality jurisdiction, not universal jurisdiction based on domestic law. Lastly,
the exercise of universal jurisdiction based on domestic law does not need
a request from the foreign state concerned as the prerequisite.
Universal jurisdiction based on domestic law is different from the
transfer of criminal proceedings too. As one of the forms of penal co-
74
See LIN Xin and LIU Nanlai (eds.), Study of International Criminal Law Issues,
2000, p. 235; LIN Xin and LI Qiong Ying, International Criminal Law, 2005, p. 54.

operation in contemporary international criminal law, the transfer of

criminal proceedings generally means when a person committed a crime
abroad and escaped to his native state, on the request of the state where
the crime was committed, the court of the native state exercises criminal
jurisdictions over the crime in accordance with the international agree-
ment concluded between them. 75 Actually, because the state where the
crime was committed cannot get the suspect extradited due to the princi-
ple of non-extradition of nationals, it has to give up its territorial jurisdic-
tion and request the native state of the suspect to exercise nationality ju-
risdiction over the crime. Since the suspect is the citizen of the state exer-
cising jurisdiction and the transfer of proceedings is carried out on the
basis of international agreement, the transfer of criminal proceedings is a
different concept from that of universal jurisdiction based on domestic
law or the clause of preventative jurisdiction.
8.4.2.2. This Jurisdiction Requires Inability to Extradite

Before exercising universal jurisdiction based on domestic law over the
crime done by the foreign suspect, the state claiming jurisdiction must
seek to extradite him to other states which may have jurisdiction over the
crime according to the territorial, nationality or protective principle. Only
when extradition is not available, can the state exercise criminal jurisdic-
tion. The situations which make the extradition not available include that
no state has made the request of extradition; the requesting state has not
concluded an extradition treaty with the requested state, and the latter can
only extradite to the states with which it has concluded extradition trea-
ties; and the request of extradition has been rejected due to the dissatisfac-
tion of conditions able to be extradited.
8.4.2.3. This Jurisdiction Applies to All Crimes Able

to be Extradited
Unlike universal jurisdiction based on customary international law and
international treaty which only apply to international crimes, the crimes to
which universal jurisdiction based on domestic law is applied are exten-
sive. “It is not limited to a few international crimes. In fact, it applies to
75
See ZHAO Bingzhi et al. (eds.), Punishment of Transnational and Transregional
Crimes, China Gangzheng Press, 1999, p. 20.

all the crimes able to be extradited, including common crimes”. 76 In inter-

national practice the extradition treaties and laws of states have provided
the crimes able to be extradited. Generally speaking, they are serious
crimes. For example, Article 7 of the Extradition Law of China stipulates
as follows:
Request for extradition made by a foreign state to the Peo-
ple’s Republic of China may be granted only when it meets
the following conditions;
(1) the conduct indicated in the request for extradition
constitutes an offence according to the laws of both
the People’s Republic of China and the Requesting
State; and
(2) where the request for extradition is made for the pur-
pose of instituting criminal proceedings, the offence
indicated in the request for extradition is, under the
laws of both the People’s Republic of China and the
Requesting State, punishable by a fixed term of im-
prisonment for one year or more or by any other heav-
ier criminal penalty; where the request for extradition
is made for the purpose of executing a criminal pen-
alty, the period of sentence that remains to be served
by the person sought is at least six months at the time
when the request is made.
8.4.2.4. This Jurisdiction has to Conform to the Principle of Double

Criminality
Double criminality is an important principle in extradition, and one of the
conditions for extradition too. Double criminality means that extradition
could only be granted when the act as the reason of extradition constitutes
a crime by the laws of both the requesting and requested states. “It is the
manifestation of the principle of legality in the field of international
criminal cooperation”. 77
When a state exercises universal jurisdiction based on domestic law
over the crime committed abroad by a foreigner found in the territory of
this state, it should also conform to the principle of double criminality. If
76
See ZHU, 2007, supra note 4, p. 35.
77
HUANG Feng, Rules and Practices of International Judicial Cooperation in Criminal
Matters, 2008, p. 7.

the alleged act does not constitute a crime by either the law of the state in
whose territory the foreigner is found, or by the law of the state in whose
territory the act was carried out, the state could not claim criminal juris-
diction over it.
8.5. Application of Universal Jurisdiction in the Criminal Law

of China
8.5.1. Universal Jurisdiction in the Criminal Law of China

The principle of universal jurisdiction is a long-established principle in
international law. But after 1949, because the People’s Republic of China
was relatively closed to the outside world and for ideological reasons, the
Chinese government basically took a sceptical, even negative, attitude
towards the principle. The first Criminal Law of China promulgated in
1979 contains no provision of universal jurisdiction either. Professor ZHU
Lijiang points out that before the end of the 1980s, even the beginning of
the 1990s, almost all Chinese scholars were against the concept of univer-
sal jurisdiction, regarding it as the manifestation of imperialism and he-
gemonism, as well as an infringement of state sovereignty.78 But this con-
clusion might not be so objective because even at that time, many Chinese
scholars in international law still made an objective introduction to and
appreciation of the principle of universal jurisdiction. 79
On 10 September 1980, China acceded to the Convention for the
Suppression of Unlawful Seizure of Aircraft and the Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation. After
that, China acceded to a succession of conventions of international crimi-
nal law, including the International Convention on the Elimination of All
Forms of Racial Discrimination, the International Convention on the Sup-
pression and Punishment of the Crime of Apartheid, the Single Conven-
tion on Narcotic Drugs (1961), and the Convention on Psychotropic Sub-
stances (1971).
78
See ZHU, 2007, supra note 4, pp. 343–344.
79
See WANG, 1981, supra note 1, p. 94; ZHOU Gengsheng, International Law, vol. II,
Commercial Press, 1981, pp. 493–496; ZHU Lisong, International Law, 1985, pp.
175–177; WEI Min and LUO Xiangwen (eds.), Law of the Sea, 1987, pp. 210–215;
ZHOU Zhonghai, International Law of the Sea, 1987, pp. 145–146; BAI Guimei et
al., International Law, 1988, p. 66; HUANG Huikang, A Course in International
Law, 1989, p. 39.

In order to fulfil the obligations arising from these conventions, es-

pecially from the clause of aut dedere aut judicare, on 23 June 1987, the
Standing Committee of the National People’s Congress of China passed
the Decision on the Exercise of Criminal Jurisdiction over the Crimes
Prescribed in the International Treaties Concluded or Acceded to by the
People’s Republic of China, which provides:
For the crimes prescribed in the international treaties con-
cluded or acceded to by the People’s Republic of China, the
People’s Republic of China shall exercise criminal jurisdic-
tion within its obligation in accordance with the treaties.
This decision fills in the gap of universal jurisdiction in the Crimi-
nal Law of China promulgated in 1979 and provides the legal basis for the
application of universal jurisdiction in China’s domestic law. 80
After the promulgation of this decision, satirically, “Almost all the
Chinese scholars change their mind to support universal jurisdiction”. 81
For some persons in China, the so-called ‘political correctness’ is much
more important than academic study and to echo the government is un-
doubtedly safe and politically correct.
On 28 December 1990, the Standing Committee of the National
People’s Congress of China promulgated the Decision on the Prohibition
against Narcotic Drugs. Article 13(2) of the Decision provides that the
Chinese judicial organs shall have jurisdiction over foreigners who com-
mitted the crimes of smuggling, trafficking, transporting or manufacturing
narcotic drugs outside the territory of China, unless they are extradited
pursuant to the international conventions or bilateral treaties which China
has acceded to or concluded. In order to bring the criminal legislation in
line with the international obligations assumed, Article 9 was added to the
Criminal Law of China as amended on 14 March 1997, stipulating that:
This Law is applicable to the crimes prescribed in the inter-
national treaties concluded or acceded to by the People’s
Republic of China and over which the People’s Republic of
China has criminal jurisdiction within its obligation in ac-
cordance with the treaties.
80
GAO Mingxuan and WANG Xiumei, “Pondering of the Characteristics of Universal
Jurisdiction and its Localization”, in Journal of Rule of Law and Social Development,
2001, vol. 6, p. 23.
81

“This provision has put an end to the situation that the application
of universal jurisdiction has no explicit basis in the Criminal Law of
China, and makes the process of localization of universal jurisdiction tend
to perfection”. 82 Professor GAO Mingxuan says that in accordance with
this provision, China should exercise criminal jurisdiction over all the
crimes prescribed in the international treaties concluded or acceded to by
China, within its obligation undertaken according to the treaties – in case
the criminal is found in China, no matter whether the crime was commit-
ted within the territory of China or not, or whether the criminal is a Chi-
nese citizen or not. 83
The universal jurisdiction in the Criminal Law of China possesses
the following characteristics:
1. It belongs to the universal jurisdiction based on international treaty.
2. The precondition of its exercise is that the Chinese court cannot ex-
ercise criminal jurisdiction based on the territorial, nationality or
protective principles prescribed respectively in Articles 6, 7 and 8
of the Criminal Law of China.
3. It applies to the crimes prescribed in the international treaties con-
cluded or acceded to by China.
4. China exercises criminal jurisdiction over the crimes within its ob-
ligation in accordance with the treaties. It means that, on the one
hand, the reservations to conventions of international criminal law
made by China are not applicable; on the other hand, China should
take the legislative, administrative and judicial measures necessary
to fulfil the obligations originating from the conventions, particu-
larly the obligation of aut dedere aut judicare.
5. As regards procedure, the prerequisite of the exercise of universal
jurisdiction is that the suspect is present in the territory of China
and his extradition is not available.
8.5.2. Problems in Application of Universal Jurisdiction in China

Although universal jurisdiction has been stipulated in Article 9 of the
Criminal Law of China, China has had some problems in its application
which should not be ignored and need to be elaborated here.
82
GAO and WANG, 2001, supra note 80, p. 23.
83
GAO and ZHAO, 1998, supra note 65, p. 53.

8.5.2.1. Universal Jurisdiction Based on Customary International

Law is Not Incorporated in the Criminal Law of China
As discussed above, international custom is one of the sources of interna-
tional law, and many states in their constitutional laws or other legislation
have defined its position and validity in the domestic legal system. How-
ever, although Chinese scholars generally recognise both international
custom and international treaty as sources of international law and inter-
national criminal law, there is no definite provision in the Constitutional
Law of China or other laws on the concept of international custom or its
validity in the Chinese legal system. Consequently, some hold the view
that international custom is not a source of international criminal law, for
it does not conform to the principle of legality. 84
Since there is no provision on international custom in the legisla-
tion, it means that universal jurisdiction based on customary international
law is not accepted in the domestic laws of China. If a crime in customary
international law has not been stipulated in the international treaties con-
cluded or acceded to by China, no matter how serious it is, China has no
jurisdiction over it. For example, because China does not accede to the
international conventions which provide for crimes against humanity and
aggression, it is impossible for China to exercise criminal jurisdiction
over them. But for those crimes in customary international law which are
incorporated in the treaties China has acceded to, such as piracy, genocide
and torture, there is at least the possibility for China to claim jurisdiction
in accordance with Article 9 of the Criminal Law. It is necessary to accept
universal jurisdiction based on customary international law in the Crimi-
nal Law, but it is hard to achieve now.
8.5.2.2. China Violates its International Obligation

by Not Transforming Crimes in International Treaties
into its Criminal Law
As a basic obligation of contracting states, conventions of international
criminal law usually request states parties to stipulate the crimes defined
in the conventions in their criminal laws and impose appropriate penalties
to them. For example, Article 5 of the International Convention for the
Suppression of the Acts of Nuclear Terrorism prescribes as follows:
84
See ZHANG, 2009, supra note 22, pp. 23–25.

Each State Party shall adopt such measures as may be neces-

sary:
(a) To establish as criminal offences under its national law
the offence set forth in article 2;
(b) To make those offences punishable by appropriate pen-
alties which take into account the grave nature of these
offences. 85
At the same time, Article 9 of the Criminal Law of China also stipu-
lates that China shall exercise criminal jurisdiction over the crimes de-
fined within its obligation in accordance with the treaties. It is doubtless
that to prescribe the crimes set forth in conventions of international crimi-
nal law as criminal offences under the Criminal Law of China is within its
obligations according to the conventions, because the clauses defining
international crimes concern the object and purpose of the treaties, and
pursuant to Article 19(3) of the Vienna Convention on the Law of Trea-
ties, states parties are not permitted to make reservation to such clauses.
So it is clear that China has the obligation to act as the conventions re-
quest.
But unfortunately, although the Criminal Law of China has pro-
vided or embodied some international crimes, such as sabotaging means
of transport, hijacking of aircraft, organising, leading or participating in
terror organisations, smuggling, trafficking, transporting or producing
narcotic drugs, illegal holding of narcotic drugs, corruption, bribery,
money laundering, et cetera, most of the crimes prescribed in conventions
of international criminal law concluded or acceded to by China have not
been incorporated in its Criminal Law yet. They include war crimes,
genocide, crimes of racial discrimination, apartheid, torture, crimes
against internationally protected persons, crimes against the safety of
United Nations and associated personnel, piracy, crimes against the safety
of maritime navigation, crimes against the safety of fixed platforms on the
continental shelf, et cetera. For instance, although China ratified the
United Nations Convention on the Law of the Sea in 1996 and committed
itself to suppress piracy on the high seas, by now there is no crime of pi-
racy in its Criminal Law, which has caused confusion in the judicial prac-
tice.
85
United Nations, International Convention for the Suppression of the Acts of Nuclear
Terrorism, available at http://www.legal-tools.org/doc/5891b5/.

In brief, China has not incorporated most of the crimes prescribed

in the conventions of international criminal law it has concluded or ac-
ceded to into its Criminal Law. It is the most conspicuous problem in the
application of universal jurisdiction in China. This situation does not only
violate the principle of pacta sunt servanda, but also the obligations as-
sumed by China in accordance with the international conventions. Profes-
sor CHEN Zhonglin has expressed that if China cannot change the crimes
prescribed in the international treaties that it has concluded or acceded to
in the provisions of its Criminal Law, it is impossible for the judicial or-
gans to exercise universal jurisdiction pursuant to the Criminal Law. In
such a situation, China cannot fulfil its international obligations to sup-
press international crimes either. 86
8.5.3.3. Universal Jurisdiction Prescribed in Article 9 Conflicts

with the Principle of Legality in Article 3
The principle of legality is another basic principle in criminal law. It is
composed of three concrete principles: (1) no crime without a law (nullum
crimen sine lege), (2) no penalty without a law (nulla poena sine lege),
and (3) non-retroactivity of application of laws (no ex post facto applica-
tion of laws). 87 The principle of legality is a very important principle and
it is universally observed by civilised states with the significance to pre-
vent the abuse of judicial powers and to protect fundamental freedom and
human rights. Article 3 of the Criminal Law of China stipulates this prin-
ciple as follows: “[f]or acts that are explicitly defined as criminal act in
law, the offenders shall be convicted and punished in accordance with
law; otherwise, they shall not be convicted or punished”.
As discussed above, since most of the crimes prescribed in conven-
tions of international criminal law concluded or acceded to by China have
not been transformed into the Criminal Law, Article 9 of the Criminal
Law can be understood as China having taken the attitude to incorporate
the conventions of international criminal law in its domestic legal system.
The Chinese courts can prosecute international crimes, even though there
are no such crimes in its Criminal Law. But by doing this, it obviously
86
CHEN, 2004, supra note 6, p. 473.
87
CHEN Weizuo, Latin-Chinese Dictionary of Legal Terms and Maxims, Law Press,
2009, p. 237; Editorial Group, An English-Chinese Dictionary of Law, Zhongguo
shangye chu ban she, 1985, p. 569.

violates the principle of legality. To prosecute a crime in accordance with

the convention of international criminal law which is not prescribed in
criminal law constitutes a violation of the principle of nullum crimen sine
lege. Even if China could prosecute the crime prescribed in the conven-
tion, because such a convention provides only the criminal act without
penalty, to impose the penalty according the Criminal Law of China con-
stitutes a violation of the principle of nulla poena sine lege.
8.5.3.4. Prosecution of International Crime with Other Classification

in the Criminal Law Violates the Principle of Prohibition
of Analogy
If the judicial organs prosecute the crimes in the conventions of interna-
tional criminal law which are not prescribed in the Criminal Law of
China, they violate the principle of nullum crimen sine lege. In practice
sometimes judicial organs substitute crimes in the Criminal Law for inter-
national crimes which have not been listed in it, and institute proceedings
against the offenders. For example, because there is no crime of piracy in
the Criminal Law, the foreign offender is accused of intentional homicide,
intentional injury, sabotaging means of transport, robbery or unlawful de-
tention. Although the purpose of punishing the offenders can be achieved
in this way, it seriously violates the principle of ‘prohibition of analogy’.
The principle of ‘prohibition of analogy’ originates from the inher-
ent connotation of the principle of nullum crimen sine lege. If analogy is
permitted when an act has not been prescribed as a crime in criminal law,
the principle of nullum crimen sine lege will lose its significance com-
pletely. Besides, it is ridiculous to replace piracy by intentional homicide,
intentional injury, sabotaging means of transport, robbery or unlawful de-
tention. In accordance with the United Nations Convention on the Law of
the Sea, as a State Party, China definitely has the right to exercise juris-
diction over piracy, even though the crime is committed by foreigners on
the high seas and not against the state, the citizens or ships of China. But
China has no jurisdiction at all over the crimes such as intentional homi-
cide, intentional injury, sabotaging means of transport, robbery or unlaw-
ful detention which are committed by foreigners on the high seas without
any substantial connection with the state, the citizens or ships of China.
For these crimes, only when they are carried out within the territory of
China, the offenders are Chinese citizens or they cause injury to the state
or citizens of China, can China claim criminal jurisdiction over them. In a

word, there is no legal basis for China to exercise criminal jurisdiction

over international crimes prescribed in the treaties concluded or acceded
to by China by analogising them to the crimes in the Criminal Law of
China.
8.6. Conclusion
Jurisdiction is one of the fundamental rights of the state, by which the
state administers and disposes of people, property and circumstances in
accordance with its sovereignty. Based on its character, jurisdiction of
state can be divided into legislative, administrative and judicial jurisdic-
tion. As for judicial jurisdiction, it is composed of civil and criminal ju-
risdiction. 88
Traditionally, the state exercises mainly territorial and nationality
jurisdiction over crimes carried out within its territory or by its citizens.
But with the lapse of time, it is sometimes necessary for the state to break
the restriction of territorial and nationality principle to exercise criminal
jurisdiction over some crimes committed by foreigners abroad. At the be-
ginning, it is because the crime is committed in a place outside the juris-
diction of any state, or to make it more accurate, in a place where the state
cannot perform its power effectively. 89 Later, it is because certain crimes
possess a grave nature and infringe the common interest of the interna-
tional community. The definition of ‘universal jurisdiction’ given by
Principle I of the Princeton Principles on Universal Jurisdiction makes it
88
See MA Chengyuan and LI Juqian (eds.), International Law, China University of
Political Science and Law Press, 2008, p. 56.
89
When people talk about universal jurisdiction, they often take piracy as an example
and say that historically it takes place on the high seas, which is the place outside the
jurisdiction of any state. After Columbus discovered the New Continent in 1492, in
1493, Pope Alexander VI distributed the oceans of the world to Spain and Portugal
approximately along the meridian line in the Atlantic Ocean. From that time to the es-
tablishment of traditional law of the sea in the nineteenth century, there are lots of
controversies on the legal status of the sea and Grotius published his other famous
book Mare Liberum. The practices of states are confused too. Before the nineteenth
century there was no such division of territorial sea and open sea. It was not correct to
say that piracy was the crime committed in the open sea or in a place outside the ju-
risdiction of any state. See ibid., p. 132.

clear. 90 This signifies the progress of the international community and

international law.
Although universal jurisdiction has been fully established both
theoretically and practically, there are still controversies on the definition
and categories of universal jurisdiction. The major reason is that scholars
have divergent views on the scope of application of universal jurisdiction,
which again originates from their different understanding of its legal
sources. This author’s opinion is to divide universal jurisdiction into three
categories in accordance with the different legal sources. They are: (1)
universal jurisdiction based on customary international law, (2) universal
jurisdiction based on international treaty, and (3) universal jurisdiction
based on domestic law.
Universal jurisdiction based on customary international law is the
criminal jurisdiction that every state can exercise over the crime in cus-
tomary international law committed abroad by a foreigner not against this
state or its citizens. This jurisdiction applies to crimes in customary inter-
national law. Though it is generally exercised when the accused is present
within the territory of the state claiming jurisdiction, sometimes it can
also be exercised in absentia.
Universal jurisdiction based on international treaty is the criminal
jurisdiction that a contracting state of a treaty can exercise over the inter-
national crime defined in that treaty, which is committed abroad by a for-
eigner not against this state or its citizens. The object of this jurisdiction is
the crimes defined in international criminal conventions, and the major
manifestation of this jurisdiction in international treaties is the clause or
principle of aut dedere aut judicare.
Universal jurisdiction based on domestic law is the criminal juris-
diction that a state exercises over the crime committed abroad by a for-
eigner not against this state or its citizens, in case he is found in the state
and extradition is not available. This category of universal jurisdiction is
adopted by Germany and some other European counties and its legal
source is the representative jurisdiction clause in the criminal law. The
prerequisite to exercise this jurisdiction is that the accused is present in
90
For the purpose of these Principles, universal jurisdiction is criminal jurisdiction
based solely on the nature of the crime, without regard to where the crime was com-
mitted, the nationality of the alleged or convicted perpetrator, the nationality of the
victim, or any other connection to the state exercising such jurisdiction.

the territory of the state and it is unable to extradite him to another state.
The crimes applicable are crimes able to be extradited, including both in-
ternational and common crimes. Up to now, it has not been generally ac-
cepted in either international treaties or customary international law. Be-
sides, the transfer of criminal proceedings is not the same as universal ju-
risdiction based on domestic law.
By summarising the common elements of the three definitions of
universal jurisdiction, it is the view of this author that universal jurisdic-
tion is the criminal jurisdiction that a state can exercise over a crime
committed abroad by a foreigner not against this state or its citizens in
accordance with international law or domestic criminal law. This can be
seen as a general definition of universal jurisdiction.
Universal jurisdiction is provided for the first time in Article 9 of
the Criminal Law of the People’s Republic of China in 1997. According
to this Provision, universal jurisdiction in the Criminal Law of China is
universal jurisdiction based on international treaty, which applies only to
crimes defined in the conventions of international criminal law concluded
or acceded to by China. It is a serious problem that China has not trans-
formed most of the crimes in these conventions into its Criminal Law.
This doubtlessly violates the principle of pacta sunt servanda and the ob-
ligations arising from the conventions. Since the Criminal law of China
does not contain the same classifications as the conventions do, Chinese
judicial organs sometimes have to use other classifications in the Criminal
Law than the international crimes proscribed in conventions for the pur-
pose of prosecution. This constitutes a violation of both the principle of
nullum crimen sine lege and the principle of nulla poena sine lege, as well
as the principle of prohibition of analogy.

9
______
Universal Jurisdiction Before the United Nations
General Assembly: Seeking Common
Understanding under International Law*
ZHU Lijiang **
9.1. Introduction
After heated debates for over a decade, the issue of universal jurisdiction
(‘U.J.’) eventually came to the front of the General Assembly of the
United Nations (‘UNGA’), the largest and authoritative international fo-
rum of States in the world. On 18 September 2009, the sixty-fourth
UNGA listed the item of ‘The Scope and Application of the Principle of
Universal Jurisdiction’ in its agenda, 1 and allocated it to the Sixth Com-
mittee. 2 This means that the UNGA is seized of this thorny and controver-
sial issue in international law on criminal jurisdiction of States. It was not
beyond my expectation, because, as early as 2006, in my Ph.D. disserta-
tion at Peking University Law School, I proposed that, as a formal means,
States could raise the issue of U.J. before the UNGA for discussion,
which is conducive to clarifying the scope and application of U.J. 3
Two and a half years since the listing of this issue in the agenda of
the UNGA, it is time to look at what has been achieved in the discussion
of this issue in the UNGA. This is the main purpose of this chapter, which
*
This chapter is a part of the project sponsored by the Chinese National Social Science
Foundation for young scholars, Project No. 11CFX068.
**
ZHU Lijiang, Associate Professor in International Law, Faculty of International Law,
China University of Political Science and Law (‘CUPL’); Researcher, the Research
Center for International Criminal Law and International Humanitarian Law
(‘RCICL’), CUPL, Beijing, People’s Republic of China.
1
“Item 84: The scope and application of the principle of universal jurisdiction”,
A/64/251, p. 7.
2
A/64/252, p. 16.
3
ZHU Lijiang, Universal Jurisdiction over War Crimes in Non-International Armed
Conflicts and International Law (Dui Guonei Zhanzhengzui de Pubian Guanxia yu
Guojifa), Law Press, Beijing, 2007, p. 411.

seeks to identify the result of the discussion on the principle of U.J. in the
UNGA up to now, or, in the terms of Mr. Ulibarri, Chair of the Working
Group on the scope and application of the principle of U.J. in the Sixth
Committee of the UNGA, the “common understanding that was achiev-
able on the scale between the minimalist and maximalist positions”.4 For
this purpose, the chapter will first introduce the way to the UNGA with a
view to telling how this issue was referred to the Assembly. Then, in the
second part, the chapter will introduce the on-going discussions in the
UNGA from the perspective of procedure. In the third part, it attempts to
identify what has been achieved in international law in the UNGA in
terms of the merits of this issue. The last part contains some concluding
remarks.
9.2. The Way to New York

Historically speaking, U.J. is not a new form of criminal jurisdiction of
States permitted under international law. But before World War II, U.J.
was usually considered by traditional international lawyers to be only
against piracy committed on the high seas, an area not subject to jurisdic-
tion of any sovereign State. Immediately after World War II, some inter-
national lawyers began to argue that certain international crimes, such as
genocide, crimes against humanity and war crimes, are similar to piracy in
nature, and that they should also be subject to U.J. of any sovereign State,
though this category of international crimes was different from piracy in
that they were usually committed within the territory of sovereign States. 5
But in reality during the Cold War only a couple of cases related to geno-
cide, crimes against humanity and war crimes were tried on the basis of
the principle of U.J. by some States. The most famous was the Eichmann
case before the Israeli courts. 6 Interestingly, the Israeli representative be-
fore the Sixth Committee of the sixty-fourth UNGA specially pointed out
4
A/C.6/66/SR.17, para. 25.
5
Willard B. Cowles, “Universality of Jurisdiction Over War Crimes”, in California
Law Review, 1945, vol. 33, pp. 177–194.
6
Attorney General of Israel v. Eichmann, District Court of Jerusalem, 12 December
1961; Supreme Court of Israel, 29 May 1962, in International Law Review, vol. 36, p.
5.

Universal Jurisdiction before the United Nations General Assembly:
Seeking Common Understanding under International Law
that even in the Eichmann case Israel has some kind of ‘jurisdictional
links’ with it. 7
The exercise of U.J. by western European States in the period from
the termination of the Cold War to the end of the twentieth century mainly
resulted from the influence of the establishment of the first ad hoc inter-
national criminal tribunal by the U.N. Security Council, the ICTY, in May
1993. 8
Judicial practices on exercise of U.J. emerged in States such as
Germany 9, Switzerland 10, Austria 11, Denmark 12, France 13, Finland 14 and
the Netherlands 15.
7
A/C.6/64/SR.13, para. 20.
8
Gérard Dive, “The Belgian Law Relating to the Repression of Grave Violations of
International Humanitarian Law and the Implementation of the Rome Statute”, in
Matthias Neuner (ed.), National Legislation Incorporating International Crimes: Ap-
proaches of Civil and Common Law Countries, Berliner Wissenschafts-Verlag
GmbH, 2003, p. 165.
9
Prosecutor v. 7DGLü, Bundesgerichtshof, 13 February 1994; Prosecutor v. 'MDMLü,
Bayerisches Oberstes Landesgericht, 23 May 1997; X v. SB and DB, Bundesgericht-
shof, 11 December 1998; Prosecutor v. -RUJLü, Oberstes Landes-gericht Düsselforf,
26 September 1997; Prosecutor v. 6RNRORYLü, Bundesgerichtshof, 21 February 2001.
With regard to the judicial practice in this regard in Germany, see also, Luc Reydams,
Universal Jurisdiction: International and Municipal Legal Perspectives, Oxford Uni-
versity Press, Oxford, 2003, pp. 149–156; see also Ruth Rissing-van Saan, “The
German Federal Supreme Court and the Prosecution of International Crimes Commit-
ted in Former Yugoslavia”, in Journal of International Criminal Justice, 2005, vol. 3,
pp. 381–399.
10
Military Prosecutor v. Gabrež, Tribunal Militaire, Division I, Lausanne, 18 April
1997; see also Andreas R. Ziegler, “In re G”, in American Journal of International
Law, 1998, vol. 92, pp. 78–82.
11
Republic of Austria v. &YMHWNRYLü, Landesgericht, Salzburg, 31 May 1995, available at
http://www.redress.org/documents/annex.html, last accessed on 7 September 2012.
12
3URVHFXWRUY6DULü Østre Landsret, 25 November 1994 (Trial Judgment); Højesteret,
15 August 1995 (Appeal Judgment), reprinted in Ugeskrift for Retsvœsen 1995, 838H.
See also, Yearbook of International Humanitarian Law, 1998, vol. 1, p. 431.
13
Javor et al. v. X, Tribunal de Grande Instance de Paris (examining magistrate), 6 May
1994; Cour d’Appel de Paris, 24 October 1994; Cour de Cassation (chambre criminel-
le), 26 March 1995. See also Brigitte Stern, “In re Javor; In re Munyeshyaka”, in
American Journal of International Law, 1999, vol. 93, p. 527; Brigitte Stern, “La
compétence universelle en France: Le cas des crimes commis en ex-Yugoslavie et au
Rwanda”, in German Yearbook of International Law, 1997, vol. 40, p. 280; Rafaëlle
Maison, “Les premiers cas d’applications des dispositions pénales des Conventions de

Some features appeared in the exercise of U.J. by these States. First,

legislatively speaking, in this period the criminal codes or criminal proce-
dural codes of these States often contained the so-called ‘treaty-based U.J.
article’ 16 or representative jurisdiction article 17. A few States incorporated
the absolute, genuine, pure or unconditional U.J. into their criminal law.
Second, judicially speaking, in this period, the crimes which were subject
to treaty-based U.J. or representative jurisdiction in these States were
mainly the crime of murder or other ordinary crimes in their criminal
codes, rather than genocide, crimes against humanity or war crimes be-
cause only a few western European States had these core international
crimes in their criminal law. Third, all the exercise of U.J. in this period
by these western European States was not successful. In the limited avail-
able cases, the accused was set free due to lack of the provision of geno-
cide, crimes against humanity or war crimes in their criminal codes. Fi-
nally, in this period, the accused who were charged or tried on basis of
U.J. were predominantly from former Yugoslavia.
Then, at the turn of the century, nationals of other States, in particu-
lar those of former colonies, became the target of the exercise of U.J. by
Genève par les jurisdictions internes”, in European Journal of International Law,

1995, vol. 6, pp. 260–273.
14
Ari-Matti Nuutila, “Implementation of the Rome Statute in Finnish Law”, in Matthias
Neuner (ed.), National Legislation Incorporating International Crimes: Approaches
of Civil and Common Law Countries Berliner Wissenschafts-Verlag GmbH, 2003, p.
87.
15
Prosecutor v. Kneseviü, Examining Magistrate, 1 December 1995; Hoge Raad der
Niederlanden, 11 November 1997; see also Yearbook of International Humanitarian
Law, 1998, vol. 1, p. 601.
16
The so-called ‘treaty-based U.J. article’ is usually a provision in the criminal law of a
country in which the State exercises criminal jurisdiction over a case on the basis of
an international treaty ratified by that country, even if the case has no any link with
that State in territory, nationality or special State interest. Quite a number of States
have such a U.J. provision in their criminal codes or criminal procedure codes.
17
The representative article is usually an article in the criminal law of a State in which
the State exercises criminal jurisdiction over a foreign suspect present in its territory
on the condition that no request to extradition has been made by any foreign State or
such request has been rejected, even if the case has no link with that State in territory,
nationality or special State interest. As a representative article, a ratified international
treaty is not required to be present. A number of European States, in particular the
central and eastern European States or Nordic States have such a provision in their
criminal law.

western European States. Quite a number of African nationals were tar-

geted by the exercise of U.J. by their former European colonial powers.
Among them were some political figures of African States. This gave rise
to diplomatic disputes between them. Among others, three disputes have
been referred to the International Court of Justice (‘ICJ’) in The Hague.
The first dispute is the well-known Arrest Warrant case, in which
originally the Democratic Republic of the Congo (‘DRC’) requested the
Court to adjudicate, inter alia, the legality of the exercise of U.J. over the
then Congolese Foreign Minister by Belgium on basis of the Belgian Act
on Punishment of Grave Breaches of International Humanitarian Law,
which empowered the Belgian courts to exercise criminal jurisdiction
over any grave breaches of IHL, regardless of where they were commit-
ted. Unfortunately, the DRC abandoned the request during the oral sub-
missions so the ICJ did not deliver an answer in its judgment in 2002, al-
though quite a number of judges expressed their views on the Belgian
style of U.J. legislative provision in their separate or dissenting opin-
ions. 18
In the second case, just after the delivery of the judgment in the Ar-
rest Warrant case, the Democratic Republic of the Congo (‘DRC’) re-
quested the ICJ to adjudicate that the investigation and prosecution by the
French authorities against the President and other political leaders of the
DRC for alleged crimes against humanity and torture on basis of the
treaty-based U.J. article in the French Criminal Procedural Code was ille-
gal. Regrettably, the ICJ removed the case from the list on the request of
the DRC, 19 thus losing another golden opportunity to examine the legality
of the French style treaty-based U.J. in this case.
Unlike the previous two cases in which both plaintiffs were former
colonies of both defendants respectively, the third case was filed by a
former colonial power, namely Belgium, against a former French colo-
nial, the Republic of Senegal. Belgium seemingly wishes to compel Sene-
gal to exercise treaty-based U.J. over Mr. Hissène Habré, former Presi-
dent of Chad who has been living in Senegal for over a decade, for the
18
ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
available at http://www.legal-tools.org/doc/c6bb20.
19
ICJ, Order of 16 November 2010 (Republic of the Congo v. France: Case Concerning
Certain Criminal Proceedings in France), available at http://www.legal-tools.org/
doc/422994/.

alleged crimes of torture and crimes against humanity in Chad, by re-

questing the Court to adjudicate and declare that Senegal violates its obli-
gations under the Convention against Torture and customary international
law. On 20 July 2012, the Court declared that Senegal must, without fur-
ther delay, submit the case of Mr. Hissène Habré to its competent authori-
ties for the purpose of prosecution, if it does not extradite him. 20
Another couple of incidents in relation to U.J. eventually annoyed
Rwanda, which pushed forward collective action of African States. In
November 2006, a French investigating judge in Paris issued an arrest
warrant against nine Rwandan citizens, including Rose Kabuye, the then
Chief of Protocol of the Rwandan President, for allegedly being involved
in the shooting down of an airplane carrying Rwanda’s former President,
Juvenal Habyarimana and Burundi’s former President, Cyprien Ntayamira
in 1994, which sparked the massacre that claimed the lives of 800,000 to
1,000,000 persons. 21 The issuance of the arrest warrant was criticised by
the Rwandan government as “baseless and unfounded”. 22 Rwanda then
severed diplomatic relations with France. In February 2008, a Spanish
investigating judge also issued an indictment charging 40 current or
former high-ranking Rwandan military officials with serious crimes
including genocide, crimes against humanity, war crimes and terrorism,
perpetrated over a period of 12 years, from 1990 to 2002, against the
civilian population, and primarily against members of the Hutu ethnic
group. While the investigations were initially based on complaints from
families of nine Spaniards who were killed, harmed or disappeared during
the period at issue, the indictment was subsequently expanded to include
crimes committed against Rwandan and Congolese victims, based on the
U.J. doctrine. 23
20
ICJ (Belgium v. Senegal: Questions relating to the Obligation to Prosecute or Extra-
dite), available at http://www.icj-cij.org/docket/index.php?p1=3&p2=3&code=bs&
case=144&k=5e, last accessed on 7 September 2012.
21
The full-text of the arrest warrant is available at http://rud-urunana.org/documenta
tion%5CBruguiereArrestWarrants.pdf, last accessed on 13 October 2012.
22
Available at http://www.minaffet.gov.rw/index.php?id=886&tx_ttnews%5Btt_news
%5D=55&cHash= a1600843ce217f5052270a5209cfdd24, last accessed on 7 Septem-
ber 2012.
23
“The Spanish Indictment of High-ranking Rwandan Officials”, in Journal of Interna-
tional Criminal Justice, 2008, vol. 6. pp. 1003–1011.

In response to these incidents, in April 2008, a conference of Afri-

can Union (‘A.U.’) Ministers of Justice and Attorneys-General was held
in Addis Ababa at the A.U.’s Headquarters. The Conference requested the
Commission of the A.U. to undertake a study on the application and scope
of the principle of U.J. The report was prepared and presented to the elev-
enth Assembly of the A.U. through its Executive Council in July 2008, in
Sharm El-Sheikh, Egypt. The eleventh Assembly adopted a decision on
the report, putting it plainly that the “political nature and abuse of the
principle of universal jurisdiction by judges from some non-African States
against African leaders, particularly Rwanda, is a clear violation of the
sovereignty and territorial integrity of these States”. The decision pointed
out that “there is need for establishment of an international regulatory
body with competence to review and/or appeals arising out of abuse of the
principle of universal jurisdiction by individual States”. It requested the
Chairperson of the A.U. to table the matter before the U.N. Security
Council and the U.N. General Assembly for consideration, further re-
quested the Chairperson of the A.U. to urgently facilitate a meeting be-
tween the A.U. and E.U. to discuss the matter with a view to finding a
lasting solution to this problem and in particular to ensuring that those
warrants are withdrawn and are not executable in any country.24
In accordance with the decision, the A.U. began to discuss the issue
of U.J. with the E.U. On 16 September 2008, the tenth meeting of the
A.U.-E.U. Ministerial Troika was held in Brussels. 25 Nevertheless, irre-
spective of the request by the A.U. that no warrant on the basis of U.J. be
executed in any country, in particular E.U. States, and irrespective of the
meeting being held between the A.U. and E.U., on 9 November 2008, the
German authorities arrested Mrs. Rose Kabuye, Chief of Protocol to the
Rwandan President in Frankfurt while she was traveling on business, exe-
cuting the arrest warrant of a French investigating judge. After the arrest,
Rwanda expelled the German ambassador and ordered his envoy in Berlin
24
Decision on the Report of the Commission on the Abuse of the Principle of Universal
Jurisdiction, Assembly/AU/Dec.199 (XI), available at http://www.africa-union.org/
root/au/conferences/2008/june/summit/dec/ASSEMBLY%20DECISIONS%20193%2
0-%20207%20(XI).pdf, last accessed on 7 September 2012.
25
The eleventh meeting was held in Addis Ababa and the A.U.-E.U. expert report on
the principle of U.J. was delivered in April 2009, Council of the European Union, the
A.U.-E.U. Export on the Principle of Universal Jurisdiction, Doc. 8672/1/09 REV 1,
16 April 2009.

to return to Kigali for consultations. Furthermore, the Rwandan Prime

Minister managed to bring together all African ministers of justice in Ki-
gali and called for “a unified stand to fight neo-colonialism spearheaded
by foreign judges hiding under international law”. 26
This incident further put incentives to the determination of the A.U.
to refer the issue of U.J. to the U.N. On 21 January 2009, the Permanent
Representative of Tanzania to the U.N. addressed the Secretary-General
(‘UNSG’) in his capacity as the Chair of the A.U. requesting that an addi-
tional item – “Abuse of the Principle of Universal Jurisdiction” – be in-
cluded in the agenda of the sixty-third UNGA. The request was made on
behalf of the Group of the African States. 27 Annexed to the request was an
explanatory memorandum which set out the reasons for such a request,
that is, “the extent of the application of [the principle of universal jurisdic-
tion] has never been discussed at the level of the United Nations”, and
that “there is no widespread state practice”. 28 It recognised that “the Afri-
can Union fully subscribes to and supports the principle of universal ju-
risdiction within the context of fighting impunity as well as the need to
punish perpetrators of genocide, crimes against humanity and war crimes,
it is however opposed to the selective and abusive application of the prin-
ciple against African leaders”. It further underlined that “any continued
abuse of this principle could potentially endanger not only the respect for
international law and the conduct of international relations, but also
threaten the political, economic and socio-economic development of Afri-
can States”. 29
On 1–3 February 2009, the twelfth Assembly of the A.U. was held
in Addis Ababa. The Assembly adopted a decision on the implementation
of its decision on the abuse of the principle of the U.J. The decision un-
derscored that an A.U. speaking with one voice is the appropriate collec-
tive response to counter the exercise of power by strong States over weak
States, and requested the Chairperson of the A.U. to follow up on this
26
E. Musoni, AU Justice Ministers Protest Abuse of Universal Jurisdiction, New York
Times, 5 November 2008, available at http://allafrica.com/stories/200811050742.html,
last accessed on 7 September 2012.
27
A/63/237, 3 February 2009, p. 1.
28
Ibid., p. 2, para. 4.
29

matter with a view to ensuring that it is exhaustively discussed at the level

of the U.N. Security Council and General Assembly. 30
Then, during the meeting of the General Committee held on 18 Feb-
ruary 2009, Tanzania requested the postponement of the discussion on the
proposed item because some delegations raised concerns about the title of
the proposed item. Following extensive consultations and agreement with
concerned delegations, on 29 June 2009, Tanzania requested the inclusion
in the agenda of the sixty-third UNGA of an additional item entitled “The
Scope and Application of the Principle of Universal Jurisdiction”. 31 In
contrast with the request of 21 January 2009, the request of 29 June 2009
further explained in the explanatory memorandum that the purpose of re-
ferring the issue of U.J. for discussion in the UNGA is to establish “regu-
latory provisions for its application”. 32 On 10 September 2009, Tanzania,
on behalf of the States members of the U.N. that are members of the
Group of African States, formally submitted a draft decision entitled ‘The
Scope and Application of the Principle of Universal Jurisdiction’ to the
sixty-third UNGA. The draft decision reads,
[t]he General Assembly decides to include in the agenda of
its sixty-fourth session the item entitled “Scope and applica-
tion of the principle of universal jurisdiction” and recom-
mends that it be considered by the Sixth Committee at that
session. 33
At the 105th plenary meeting of the sixty-third UNGA on 14 Sep-
tember 2009, a draft decision was adopted by consensus. This entailed
that the UNGA was seized of the issue of U.J. for the first time. The dis-
cussion of U.J. was thus to be made at the level of the UN. The represen-
tative of Rwanda stated after the adoption of the decision that “it is there-
fore imperative that a clear universal mechanism be established to ensure
the impartial and appropriate application of the principle of universal ju-
risdiction”. 34 The representative of Sweden explained after the adoption
of the decision on behalf of the E.U. that “the discussion about universal
30
Assembly/AU/Dec. 213 (XII).
31
A/63/237/Rev.1, 23 July 2009, p. 1.
32
33
A/63/L.100, 10 September 2009.
34
A/63/PV.105, 14 September 2009, p. 10.

jurisdiction is, first and foremost, a legal subject that rightly belongs in
the Sixth Committee”. 35 On 18 September 2009, the sixty-fourth UNGA
listed the item of “The Scope and Application of the Principle of Univer-
sal Jurisdiction” in its agenda, 36 and allocated it to the Sixth Committee. 37
9.3. Procedural Progress in New York

The Sixth Committee considered the item at its twelfth, thirteenth and
twenty-fifth meetings, on 20 and 21 October and on 12 November 2009.
At its twelfth meeting on 20 October 2009, the representatives of 27
States and State groups made statements, including Australia (on behalf of
CANZ), Tunisia (on behalf of Group of African States), Mexico (on be-
half of Rio Group), Iran (on behalf of MNACs), Switzerland, El Salvador,
Costa Rica, Swaziland, South Africa, China, the Democratic Republic of
the Congo, Guatemala, Kenya, Slovakia, Thailand, Peru, Norway, Tanza-
nia, France, Austria, Germany, Finland, Sudan, Slovenia, Belgium, Libya
and Lebanon. 38 At its thirteenth meeting on 21 October 2009, the repre-
sentatives from 17 States joined the statements, including Indonesia, the
United Kingdom, Algeria, Spain, Russia, Israel, Burkina Faso, the United
States, Liechtenstein, Rwanda, Togo, Malaysia, Senegal, Nigeria, Italy,
Ethiopia and Argentina. 39 At its twenty-fifth meeting on 12 November
2009, the representative of Rwanda introduced a draft resolution entitled
“The scope and application of the principle of universal jurisdiction”. The
draft resolution:
1. Requests the Secretary-General to invite Member States
to submit, before 30 April 2010, information and obser-
vations on the scope and application of the principle of
universal jurisdiction, including information on the
relevant applicable international treaties, their domestic
legal rules and judicial practice, and to prepare and
submit to the General Assembly, at its sixty-fifth ses-
sion, a report based on such information and observa-
tions;
35
Ibid.
36
A/64/251, p. 7.
37
A/64/252, p. 16.
38
A/C.6/64/SR.12.
39
A/C.6/64/SR.13.

2. Decides that the Sixth Committee shall continue its

consideration of the scope and application of the princi-
ple of universal jurisdiction, without prejudice to the
consideration of related issues in other forums of the
United Nations;
3. Decides to include in the provisional agenda of its
sixty-fifth session the item entitled “The scope and ap-
plication of the principle of universal jurisdiction”. 40
The draft resolution was adopted by the Committee without a
vote. 41 It was further adopted in the plenary meeting of the sixty-fourth
U.N. General Assembly on 16 December 2009. 42
On 29 July 2010, the U.N. Secretary-General submitted his report
in accordance with the above Resolution of the UNGA. 43 The report indi-
cated that responses were received from 44 States, including: Armenia,
Australia, Austria, Azerbaijan, Belarus, Belgium, Bolivia, Bulgaria, Cam-
eroon, Chile, China, Costa Rica, Cuba, Cyprus, the Czech Republic,
Denmark, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Iraq,
Israel, Italy, Kenya, Kuwait, Lebanon, Malaysia, Malta, Mauritius, the
Netherlands, New Zealand, Norway, Peru, Portugal, South Korea,
Rwanda, Slovenia, South Africa, Sweden, Switzerland, Tunisia and the
United States. 44 At its second plenary meeting on 17 September 2010, the
sixty-fifth U.N. General Assembly, on the recommendation of the General
Committee, decided to include the item of the scope and application of
U.J. in its agenda and to allocate it to the Sixth Committee. The Sixth
Committee considered the item at its tenth, eleventh, twelfth, twenty-
seventh and twenty-eighth meetings, on 13, 14 and 15 October, as well as
on 5 and 11 November 2010, respectively. At its tenth meeting on 13
October 2010, representatives of eight States and State groups made
statements, including Iran (on behalf of MNACs), Chile (on behalf of Rio
Group), Malawi (on behalf of Group of African States), Canada (on
behalf of CANZ), Egypt, Guatemala, Belarus and Peru. 45 At its eleventh
40
A/C.6/64/L.18.
41
A/64/452.
42
A/64/PV.64; A/64/117.
43
A/65/181.
44
The responses from these States are available at http://www.un.org/en/ga/sixth/65/
ScopeAppUniJuri.shtml, last accessed on 7 September 2012.
45
A/C.6/65/SR.10.

meeting on 14 October 2010, representatives of 27 States made

statements, including Libya, Rwanda, Norway, Thailand, South Korea,
the Czech Republic, Senegal, Spain, Slovenia, China, Algeria, Argentina,
the Democratic Republic of the Congo, Cuba, the United States, Belgium,
Tanzania, Lebanon, Viet Nam, Finland, Russia, the Netherlands, Ghana,
Tunisia, Ethiopia, El Salvador, Germany and South Africa. 46 At its
twelfth meeting on 15 October 2010, representatives of 13 States and
observers made statements, including Iran, Chile, Israel, Brazil, Sweden,
Venezuela, Sudan, Malaysia, the United Kingdom, India, Liechtenstein,
Lesotho, Nigeria and the ICRC. 47 On 3 November 2010, Ghana
introduced a draft resolution. 48 In contrast with the previous Resolution
drafted by Rwanda and adopted in the sixty-fourth UNGA and its Legal
Committee, this draft resolution contained some new developments, as
explained by the representative of Ghana in the twenty-seventh meeting
of the Legal Committee on 5 November 2010, of which two points are
notable in the preamble: first, the preamble recognised the diversity of
views expressed by States and the need for further consideration towards
a better understanding of the topic; second, the preamble noted the view
expressed by States that the legitimacy and credibility of the use of uni-
versal jurisdiction were best ensured by its responsible and judicious ap-
plication consistent with international law. In the operative part, para-
graph 2 included a decision to establish a working group of the Commit-
tee at the forthcoming session. It was understood that the Secretariat
would prepare a compilation of treaties and decisions of international tri-
bunals that were relevant to the activities of the working group. In accor-
dance with paragraph 3, the invitation to submit information to the Secre-
tary-General, which had previously been extended to Member States, now
included “relevant observers, as appropriate”. The phrase should be un-
derstood to include Palestine, the Holy See, the ICRC and INTERPOL.49
This draft resolution was adopted at the twenty-eighth meeting of the Le-
gal Committee of the sixty-fifth UNGA on 11 November 2010, 50 further
46
A/C.6/65/SR.11.
47
A/C.6/65/SR.12.
48
A/C.6/65/L.18.
49
A/C.6/65/SR.27, paras. 37–38.
50
A/C.6/65/SR.28.

adopted in the fifty-seventh plenary meeting of the sixty-fifth UNGA on 6

December 2010. 51
On 20 June 2011, the U.N. Secretary-General submitted a second
report on the scope and application of the principle of U.J. in accordance
with the UNGA Resolution. The report indicated that responses were
received from 17 States, including Argentina, Azerbaijan, Bosnia and
Herzegovina, Botswana, Colombia, Cyprus, El Salvador, Lebanon,
Lithuania, Paraguay, the Philippines, Slovenia, Spain, Sweden,
Switzerland and the United Kingdom. 52 Responses were also received
from the following observers: the A.U., the Council of Europe, the ILO,
the IMO, the Organization for the Prohibition of Chemical Weapons, and
the ICRC. 53 The Sixth Committee considered the item at its twelfth,
thirteenth, seventeenth and twenty-ninth meetings, on 12 and 21 October,
as well as 9 November 2011 respectively. At its twelfth meeting on 12
October 2011, representatives of 28 States and State groups made
statements, including Iran (on behalf of MNACs), Chile (on behalf of Rio
Group), Australia (on behalf of CANZ), Qatar (on behalf of Arab Group),
Kenya (on behalf of Group of African States), Egypt, Switzerland,
Norway, Guatemala, Colombia, El Salvador, Peru, Cuba, Sudan, Ethiopia,
Russia, the Democratic Republic of the Congo, Swaziland, Belgium,
Zambia, Venezuela, Malaysia, Algeria, Senegal, Rwanda, Argentina,
Israel and the Czech Republic. 54 At its thirteenth meeting on 12 October
2011, representatives of 20 States and observers made statements,
including Sri Lanka, China, South Africa, Sweden, Indonesia, Greece,
Chile, the United Kingdom, Finland, Burkina Faso, Kenya, Spain, Ireland,
Iran, the Netherlands, the United States, Brazil, Tunisia, Mozambique,
South Korea and ICRC. 55 At its seventeenth meeting on 21 October 2011,
the Chair of the Working Group on the scope and application of the
principle of the U.J. (established at its first meeting on 3 October 2011 by
the Sixth Committee) from Costa Rica introduced its work to the
Committee. The Working Group had held three meetings, on 13, 14 and
51
A/65/33.
52
The responses from these States are available at http://www.un.org/en/ga/
sixth/66/ScopeAppUniJuri.shtml, last accessed on 13 October 2012.
53
A/66/93.
54
A/C.6/66/SR.12.
55
A/C.6/66/SR.13.

20 October 2011, conducting its work in the framework of informal con-

sultations against the backdrop of the plenary debate at the twelfth and
thirteenth meetings of the Sixth Committee on 12 October 2011.56
At the twenty-ninth meeting, on 9 November 2011, the
representative of the Democratic Republic of the Congo introduced a draft
resolution. 57 Operative paragraph 4 was orally revised to read as follows:
“4. Decides that the Working Group shall be open to all Member States
and that relevant observers to the General Assembly will be invited to
participate in the work of the Working Group”. At the same meeting, the
Committee adopted the draft resolution, as orally revised, without a vote.
Under the draft resolution, the UNGA would invite Member States and
relevant observers, as appropriate, to submit information and observations
before 30 April 2012 on the scope and application of U.J., including,
where appropriate, information on the relevant applicable international
treaties, their domestic legal rules and judicial practice; and would further
request the UNGA to prepare and submit to the UNGA, at its sixty-
seventh session, a report based on such information and observations. The
Assembly would moreover decide that the Sixth Committee shall continue
its consideration of the item, without prejudice to the consideration of the
topic and related issues in other forums of the UN. For this purpose, a
working group of the Sixth Committee would be established at the sixth-
seventh session to continue to undertake a thorough discussion of the
scope and application of universal jurisdiction. The Assembly would
decide that the working group shall be open to all Member States and that
relevant observers to the General Assembly be invited to participate in the
work of the working group. The draft resolution was adopted by the
UNGA on 9 December 2011. 58
9.4. Common Understanding in the UNGA

The ICJ pointed out in Nuclear Weapons case that,
General Assembly resolutions, even if they are not binding,
may sometimes have normative value. They can, in certain
circumstances, provide evidence important for establishing
the existence of a rule or the emergence of an opinio juris.
56
A/C.6/66/SR.17, para. 15.
57
A/C.6/66/L.19.
58
A/RES/66/103.

To establish whether this is true of a given General Assem-

bly resolution, it is necessary to look at its content and the
conditions of its adoption; it is also necessary to see whether
an opinio juris exists as to its normative character. Or a se-
ries of resolutions may show the gradua1 evolution of the
opinio juris required for the establishment of a new rule. 59
As regards the scope and application of the principle of U.J., the
UNGA only adopted three resolutions on this issue in three years 2009–
2011. 60 In terms of the content of these three resolutions, no clear and
specific merits on the scope and application of the principle of U.J. have
been stated in them. Rather, the UNGA simply, on the one hand, “reaf-
firmed its commitment to the purposes and principles of the Charter of the
UN, to international law and to an international order based on the rule of
law, which is essential for peaceful coexistence and cooperation among
States”, 61 and on the other hand, “reiterated its commitment to fighting
impunity, and noting the views expressed by States that the legitimacy and
credibility of the use of universal jurisdiction are best ensured by its re-
sponsible and judicious application consistent with international law”. 62
In terms of the process of adoption of these three resolutions, all three
were adopted without vote in the UNGA. Accordingly, it is premature and
difficult to see any opinio juris on the scope and application of the princi-
ple of U.J. from these three resolutions of the UNGA.
Nevertheless, this status quo in the resolutions of the UNGA does
not prejudice the identification of possible rules in customary interna-
tional law in this regard. The statements made by States before the Sixth
Committee of the UNGA are a good source to know the opinio juris of
States with regard to such possible rules, and the description of legislative
and judicial practices in their responses is an important window to state
practice. The ICJ Statute defines customary international law as the rules
constituted by “a general practice accepted as law”. 63 In the Nicaragua
case, the ICJ confirmed that a custom is constituted by two elements, the
objective one of “a general practice”, and the subjective one “accepted as
59
ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July
1996, para. 70.
60
A/RES/64/117; A/RES/65/33; A/RES/66/103.
61
A/RES/64/117; A/RES/65/33; A/RES/66/103.
62
A/RES/65/33; A/RES/66/103.
63
Statute of the International Court of Justice, in UNTS, vol. 33, p. 993.

law”, or the so-called ‘opinio juris’. 64 To prove the existence of an inter-

national custom both elements must be simultaneously present.
9.4.1. Opinio Juris

As far as opinio juris is concerned, the statements made before the Sixth
Committee is its main evidence. According to my statistics, 74 States
have expressed their views on the scope and application of the principle
of U.J. through the statements made before the Sixth Committee, covering
not only both A.U. and E.U. States, but also States from other continents.
As seen from these statements, it is a common denominator that U.J., as a
principle of international law on national criminal jurisdiction, is not con-
troversial per se. This can be illustrated by the Decision of the A.U. on
this principle. The preamble of this decision recognised that “universal
jurisdiction is a principle of international law whose purpose is to ensure
that individuals who commit grave offences such as war crimes and
crimes against humanity do not do so with impunity and are brought to
justice, which is in line with Article 4(h) of the Constitutive Act of the
African Union”. 65 The Explanatory Memorandum of Tanzania on the re-
quest to list the issue of U.J. on the agenda of the UNGA also stated that
the “principle of universal jurisdiction is well established in international
law”. 66 The Chair of the Working Group in the Sixth Committee on this
issue also pointed out that “no delegation had rejected the concept of uni-
versal jurisdiction”. 67 He further noted that, “a wide majority of delega-
tions had acknowledged the importance of universal jurisdiction as a tool
in the fight against impunity for the most serious crimes against human-
ity”. 68 However, he also underlined that, “the approaches to its meaning,
scope and application had been many and varied”. 69 This is also reflected
64
ICJ (Nicaragua v. USA: Military and Paramilitary Activities in and against Nicara-
gua), Judgment of 27 June 1986, para. 184, available at http://www.legal-
tools.org/doc/046698/.
65
Decision on the Report of the Commission on the Abuse of the Principle of Universal
Jurisdiction, Assembly/AU/Dec.199 (XI), available http://www.africa-union.org/
root/au/conferences/2008/june/summit/dec/ASSEMBLY%20DECISIONS%20193%2
0-%20207%20(XI).pdf, last accessed on 7 September 2012.
66
A/63/237/Rev.1, Annex, para. 1.
67
A/C.6/66/SR.17, para. 18.
68
Ibid.
69
Ibid.

in the preamble of the resolutions of the UNGA in 2010 and 2011. Both
recognised “diversity of views expressed by States and the need for fur-
ther consideration towards a better understanding of the scope and appli-
cation of universal jurisdiction”. 70 Nevertheless, it is still possible to ex-
amine each point involving U.J. which have been made by delegates of
States, State groups or observers one by one.
9.4.1.1. Definition of Universal Jurisdiction

Of the 74 States that have made statements on the scope and application
of principle of U.J. before the Sixth Committee, 49 States did not make a
statement on the definition of U.J.; four States said that there is no well-
recognised definition of U.J.; 71 and 21 States expressed their understand-
ings of definition of U.J. Of these 21 States, 19 said that U.J. is a form of
criminal jurisdiction that can be exercised even if the forum State has no
link in territory (place of crime), nationality (of suspect or victim), or spe-
cial state interest with the crimes concerned. 72 Only the U.S. and the De-
mocratic Republic of the Congo pointed out that U.J. is based on the pres-
ence of the suspect in the territory of the forum State, although they
agreed that the forum State does not need to have a link of territory (place
of crime), nationality (of suspect or victim), or special state interest with
the crimes concerned. 73 It can therefore be said that the common under-
70
A/RES/65/33; A/RES/66/103.
71
Those four States and State groups which stated that there is no well-recognised defi-
nition of U.J. included France (A/C.6/64/SR.12, para. 76), Malawi (on behalf of
Group of African States) (A/C.6/65/SR.10, para. 60), Norway (A/C.6/65/SR.11, para.
7), and Ethiopia (A/C.6/66/SR.12, para. 39).
72
Australia (on behalf of CANS) (A/C.6/64/SR.12, para. 10; A/C.6/66/SR.12, para. 6);
Switzerland (A/C.6/64/SR.12, para. 22); El Salvador (A/C.6/64/SR.12, para. 25);
South Africa (A/C.6/64/SR.12, para. 39); Austria (A/C.6/64/SR.12, para. 79); Malay-
sia (A/C.6/64/SR.13, para. 37); Canada (on behalf of CANS) (A/C.6/65/SR.10, para.
63); Belarus (A/C.6/65/SR.10, para. 74); South Korea (A/C.6/65/SR.11, para. 13);
Belgium (A/C.6/65/SR.11, para. 41); Russia (A/C.6/65/SR.11, para. 56; A/C.6/66/
SR.12, para. 41); Venezuela (A/C.6/65/SR.12, para. 19; A/C.6/66/SR.12, para. 57);
U.K. (A/C.6/65/SR.12, para. 30; A/C.6/66/SR.13, para. 24); Lesotho (A/C.6/65/
SR.12, para. 38); Colombia (A/C.6/66/SR.12, para. 26); Greece (A/C.6/66/SR.13, pa-
ra. 16); Burkina Faso (A/C.6/66/SR.13, para. 30); Ireland (A/C.6/66/SR.13, para. 40);
Mozambique (A/C.6/66/SR.13, para. 57).
73
U.S. (A/C.6/64/SR.13, para. 24; A/C.6/65/SR.11, para. 37; A/C.6/66/SR.13, para. 48);
the Democratic Republic of the Congo (A/C.6/65/SR.11, para. 29).

standing or maximum common denominator of definition of U.J. among

those 21 States is that the forum State does not need any link of territory
(place of crime), nationality (of suspect or victim), or special state interest
with the crimes concerned.
In order to further clarify the definition of U.J., the following points
have been made in the discussions of the Sixth Committee. First, with re-
gard to the nature of U.J., a couple of States said that U.J. could play a
role in both criminal and civil law, 74 but more States considered U.J. as a
form of jurisdiction in criminal law, or requested to focus the discussion
in the Sixth Committee on criminal law. 75
Second, with regard to the relationship between U.J. and jurisdic-
tion of international criminal courts or tribunals, a few States said that
U.J. is also a form of jurisdiction of international criminal courts or tribu-
nals, in particular the International Criminal Court (‘ICC’), 76 but many
more States said that U.J. shall not be confused with the jurisdiction of
international criminal courts or tribunals, including the ICC. 77
Third, with regard to the relationship between U.J. and aut dedere
aut judicare (or the obligation to extradite or prosecute), a diversity of
views has been presented. Some States said that U.J. shall not be confused
with aut dedere aut judicare because they are different from each other. 78
74
Costa Rica (A/C.6/64/SR.12, para. 29).
75
Austria (A/C.6/64/SR.12, para. 80); U.S. (A/C.6/64/SR.13, para. 24; A/C.6/64/SR.13,
para. 37; A/C.6/66/SR.13, para. 48); Peru (A/C.6/65/SR.10, para. 80; cf. A/C.6/66/
SR.12, para. 33).
76
El Salvador (A/C.6/64/SR.12, para. 26); Ghana (A/C.6/65/SR.11, para. 65).
77
Australia (on behalf of CANZ) (A/C.6/64/SR.12, para. 9); Mexico (A/C.6/64/SR.12,
para. 18); South Africa (A/C.6/64/SR.12, para. 39); Kenya (A/C.6/64/SR.12, para.
62); Slovakia (A/C.6/64/SR.12, para. 64); Thailand (A/C.6/64/SR.12, para. 68;
A/C.6/65/SR.11, para. 11); Peru (A/C.6/64/SR.12, para. 69; A/C.6/65/SR.10, para.
78); France (A/C.6/64/SR.12, para. 78); Austria (A/C.6/64/SR.12, para. 80); Finland
(A/C.6/64/SR.12, para. 89; A/C.6/65/SR.11, para. 51); Slovenia (A/C.6/64/SR.12, pa-
ra. 97); U.K. (A/C.6/64/SR.13, para. 6; A/C.6/65/SR.12, para. 30); Liechtenstein
(A/C.6/64/SR.13, para. 29; A/C.6/65/SR.12, para. 37); Rwanda (A/C.6/64/SR.13, pa-
ra. 31); Togo (A/C.6/64/SR.13, para. 35); Chile (on behalf of Rio Group)
(A/C.6/65/SR.10, para. 57; A/C.6/66/SR.12, para. 4); Guatemala (A/C.6/65/SR.10,
para. 71); Colombia (A/C.6/66/SR.12, para. 27); Cuba (A/C.6/66/SR.12, para. 34);
Russia (A/C.6/66/SR.12, para. 42); Venezuela (A/C.6/66/SR.12, para. 59).
78
China (A/C.6/64/SR.12, para. 48; A/C.6/65/SR.11, para. 25; A/C.6/66/SR.13, para.
5); Austria (A/C.6/64/SR.12, para. 82); Malaysia (A/C.6/64/SR.13, para. 37); Chile
(A/C.6/65/SR.10, para. 57); Peru (A/C.6/65/SR.10, para. 78); Thailand (A/C.6/65/

They even explained how they differ. For example, China said (aut
dedere aut judicare) is a treaty obligation applicable only to States Parties
to the instrument in question. Such treaties always set out the specific
conditions under which the obligation applied, and those conditions dif-
fered from one treaty to another. 79 Thailand said U.J. is a basis for juris-
diction only and did not itself imply an obligation to submit a case for po-
tential prosecution. In that sense, universal jurisdiction was quite distinct
from the obligation to extradite or prosecute, which is primarily a treaty
obligation whose implementation is subject to conditions and limitations
set out in a particular treaty containing the obligation. Any attempt to ex-
ercise treaty-based criminal jurisdiction against a non-State Party would
therefore have no legal basis. 80 Israel said that the existence in an interna-
tional treaty of an obligation to extradite or prosecute does not imply that
a given offence amounts to a serious crime under international law that is
necessarily subject to U.J. 81 Australia (on behalf of CANZ) said that the
obligation to extradite or prosecute is usually a mandatory one, imposed
by convention, whereas U.J. functions as an entitlement. 82 Malaysia said
that aut dedere aut judicare does not in itself establish U.J. for a treaty-
based offence any more than the inclusion of such a provision in domestic
extradition legislation or bilateral extradition treaties would do. 83 While
some States admitted that U.J. is different from aut dedere aut judicare,
they highlighted that they a have mutual link or partly overlap. 84 For ex-
ample, South Korea observed that if a State is a signatory to treaties con-
taining the obligation to prosecute or extradite, it might exercise jurisdic-
SR.11, para. 10); South Korea (A/C.6/65/SR.11, para. 14; A/C.6/66/SR.13, para. 58);
Sweden (A/C.6/65/SR.12, para. 15); Venezuela (A/C.6/65/SR.12, para. 19; A/C.6/66/
SR.12, para. 59); Argentina (A/C.6/65/SR.11, para. 27; A/C.6/66/SR.12, para. 72);
Malaysia (A/C.6/65/SR.12, para. 29; A/C.6/66/SR.12, para. 62); U.K. (A/C.6/65/
SR.12, para. 30); India (A/C.6/65/SR.12, para. 34); Chile (on behalf of Rio Group)
(A/C.6/66/SR.12, para. 4); Australia (on behalf of CANZ) (A/C.6/66/SR.12, para. 7);
Colombia (A/C.6/ 66/SR.12, para. 27); Cuba (A/C.6/66/SR.12, para. 34); Israel
(A/C.6/66/SR.12, para. 75).
79
A/C.6/64/SR.12, para. 48; A/C.6/65/SR.11, para. 25; A/C.6/66/SR.13, para. 5.
80
A/C.6/65/SR.11, para. 10.
81
A/C.6/65/SR.12, para. 9; A/C.6/66/SR.12, para. 75.
82
A/C.6/66/SR.12, para. 7; see also Colombia (A/C.6/ 66/SR.12, para. 27).
83
84
Thailand (A/C.6/64/SR.12, para. 66); Finland (A/C.6/64/SR.12, para. 90); Czech Re-
public (A/C.6/65/SR.11, para. 17).

tion over a crime otherwise entirely unrelated to it. 85 Argentina stated that
the two principles are not identical, but there is some overlap where a
State unconnected with an offence other than through the mere presence
of the offender in its territory decides, in accordance with the aut dedere
aut judicare principle, not to grant extradition but to prosecute solely on
the basis of U.J. 86 Sweden said that states would not have that an obliga-
tion if they lacked jurisdiction, and the obligation is therefore inextricably
linked with U.J. 87 There were also a few States which simply said that the
relationship between U.J. and aut dedere aut judicare needs to be care-
fully considered. 88
9.4.1.2. Rationale of Universal Jurisdiction

Many States made statements on the rationale of U.J. The absolute major-
ity of these States held the view that U.J. is valuable for the international
community in the fight against impunity. 89 Some States highlighted that it
85
86
A/C.6/66/SR.12, para. 72.
87
A/C.6/66/SR.13, para. 11.
88
Indonesia (A/C.6/64/SR.13, para.1); Russia (A/C.6/64/SR.13, para. 16); Israel
(A/C.6/64/SR.13, para. 18); Guatemala (A/C.6/65/SR.10, para. 73).
89
Australia (on behalf of CANZ) (A/C.6/64/SR.12, para. 10; A/C.6/66/SR.12, para. 6);
Switzerland (A/C.6/64/SR.12, para. 22; A/C.6/66/SR.12, para. 16); El Salvador
(A/C.6/64/SR.12, para. 25; A/C.6/65/SR.11, para. 72); Costa Rica (A/C.6/64/SR.12,
para. 27); South Africa (A/C.6/64/SR.12, para. 38; A/C.6/66/SR.13, para. 8); Democ-
ratic Republic of the Congo (A/C.6/64/SR.12, para. 52; A/C.6/65/SR.11, para. 29;
A/C.6/66/SR.12, para. 46); Guatemala (A/C.6/64/SR.12, para. 58; A/C.6/66/SR.12,
para. 22); Kenya (A/C.6/64/SR.12, para. 61; A/C.6/66/SR.12, para. 13; A/C.6/66/
SR.13, para. 34); Slovakia (A/C.6/64/SR.12, para. 64); Thailand (A/C.6/64/SR.12, pa-
ra. 66); Peru (A/C.6/64/SR.12, para. 69; A/C.6/65/SR.10, para. 78; A/C.6/66/SR.12,
para. 33); Norway (A/C.6/64/SR.12, para. 72; A/C.6/65/SR.11, para. 6; A/C.6/66/
SR.12, para. 19); France (A/C.6/64/SR.12, para. 76); Austria (A/C.6/64/SR.12, para.
81); Germany (A/C.6/64/SR.12, para. 85; A/C.6/65/SR.11, para. 73); Finland (A/C.6/
64/SR.12, para. 89; A/C.6/65/SR.11, para. 54; A/C.6/66/SR.13, para. 29); Slovenia
(A/C.6/64/SR.12, para. 97; A/C.6/65/SR.11, para. 24); Tunisia (A/C.6/64/SR.12, para.
99; A/C.6/65/SR.11, para. 69; A/C.6/66/SR.13, para. 54); Belgium (A/C.6/64/SR.12,
para. 102; A/C.6/65/SR.11, para. 41; A/C.6/66/SR.12, para. 52); Libya (A/C.6/64/
SR.12, para. 105; A/C.6/65/SR.11, para. 1); Indonesia (A/C.6/64/SR.13, para. 1;
A/C.6/66/SR.13, para. 10); Iran (A/C.6/64/SR.13, para. 5); U.K. (A/C.6/64/SR.13, pa-
ra. 7; A/C.6/66/SR.13, para. 24); Algeria (A/C.6/64/SR.13, para. 8; A/C.6/65/SR.11,
para. 26); Spain (A/C.6/64/SR.13, para. 9; A/C.6/66/SR.13, para. 37); Russia (A/C.6/
64/SR.13, para. 14; A/C.6/65/SR.11, para. 57; A/C.6/66/SR.12, para. 41); Liechtens-

is the heinous nature of the crimes concerned that make U.J. acceptable
under international law. 90 There were also some States which said that
U.J. is also conducive to redressing the plight of victims of those heinous
crimes. 91 Therefore, the benefit to the fight against impunity could be
considered a common understanding of the rationale of U.J. among the
States that have made statements before the Sixth Committee.
tein (A/C.6/64/SR.13, para. 26; A/C.6/65/SR.12, para. 35); Rwanda (A/C.6/64/SR.13,

para. 32; A/C.6/65/SR.11, para. 4; A/C.6/66/SR.12, para. 69); Togo (A/C.6/64/SR.13,
para. 35); Malaysia (A/C.6/64/SR.13, para. 37); Italy (A/C.6/64/SR.13, para. 46); Et-
hiopia (A/C.6/64/SR.13, para. 47; A/C.6/66/SR.12, para. 38); Chile (on behalf of Rio
Group) (A/C.6/65/SR.10, para. 57; A/C.6/66/SR.12, para. 4); Malawi (on behalf of
Group of African States) (A/C.6/65/SR.10, para. 61); Canada (on behalf of CANZ)
(A/C.6/65/SR.10, para. 63); Egypt (A/C.6/65/SR.10, para. 69; A/C.6/66/SR.12, para.
15); Guatemala (A/C.6/65/SR.10, para. 70); Belarus (A/C.6/65/SR.10, para. 74);
South Korea (A/C.6/65/SR.11, para. 13; A/C.6/66/SR.13, para. 58); the Czech Repu-
blic (A/C.6/65/SR.11, para. 16); Argentina (A/C.6/65/SR.11, para. 27; A/C.6/66/
SR.12, para. 76); Viet Nam (A/C.6/65/SR.11, para. 46); Ghana (A/C.6/65/SR.11, pa-
ra. 63); Chile (A/C.6/65/SR.12, para. 6; A/C.6/66/SR.13, para. 21); India (A/C.6/65/
SR.12, para. 34); Lesotho (A/C.6/65/SR.12, para. 38); Nigeria (A/C.6/65/SR.12, para.
40); Iran (on behalf of MNACs) (A/C.6/66/SR.12, para. 2); Qatar (A/C.6/66/SR.12,
para. 10); Sudan (A/C.6/66/SR.12, para. 35); Zambia (A/C.6/66/SR.12, para. 54); Se-
negal (A/C.6/66/SR.12, para. 67); Sweden (A/C.6/66/SR.13, para. 10); Greece (A/C.
6/66/SR.13, para. 16); Burkina Faso (A/C.6/66/SR.13, para. 31); Ireland (A/C.6/66/
SR.13, para. 41); the Netherlands (A/C.6/66/SR.13, para. 46); Brazil (A/C.6/66/SR.
13, para. 49); Mozambique (A/C.6/66/SR.13, para. 57); the ICRC (A/C.6/66/SR.13,
para. 64).
90
Australia (on behalf of CANZ) (A/C.6/64/SR.12, para. 10); Mexico (on behalf of the
Rio Group) (A/C.6/64/SR.12, para. 18); Switzerland (A/C.6/64/SR.12, para. 22); El
Salvador (A/C.6/64/SR.12, para. 25); Kenya (A/C.6/64/SR.12, para. 61); Thailand
(A/C.6/64/SR.12, para. 66); Norway (A/C.6/64/SR.12, para. 72; A/C.6/65/SR.11, pa-
ra. 6); France (A/C.6/64/SR.12, para. 76); Germany (A/C.6/64/SR.12, para. 85); Slo-
venia (A/C.6/64/SR.12, para. 97; A/C.6/65/SR.11, para. 24); Mexico (A/C.6/64/
SR.13, para. 12); Liechtenstein (A/C.6/64/SR.13, para. 26); Egypt (A/C.6/65/SR.10,
para. 69; A/C.6/66/SR.12, para. 15); Belarus (A/C.6/65/SR.10, para. 74); Venezuela
(A/C.6/65/SR.12, para. 19); Malaysia (A/C.6/66/SR.12, para. 61); Indonesia (A/C.6/
66/SR.13, para. 10); Brazil (A/C.6/66/SR.13, para. 49).
91
Slovenia (A/C.6/64/SR.12, para. 97; A/C.6/65/SR.11, para. 24); Germany (A/C.6/64/
SR.12, para. 85); Belgium (A/C.6/64/SR.12, para. 102); Sweden (A/C.6/66/SR.13, pa-
ra. 10).

9.4.1.3. Crimes Subject to Universal Jurisdiction

Determining which crimes are subject to U.J. has been one of the most
controversial issues. Many of the States that have made statements on
scope and application of U.J. have expressed their views on which crimes
can be subject to U.J. As of the sixty-sixth UNGA session, 41 States,
State groups and observers have expressed their views on the crimes sub-
ject to U.J. The following table was made to list the crimes which those
States, State groups and observers said fall within the scope of U.J.
War Crimes
Aggression
Terrorism
Hijacking
Genocide
Torture
Slavery
Piracy
CAH
No. States Source
Australia A/C.6/64/SR.
1. X X X X X X
(CANZ) 12, para. 10
A/C.6/64/SR.
2. Costa Rica X X X X
12, para. 29
A/C.6/64/SR.
3. South Africa X X X X X
12, para. 43
A/C.6/64/SR.
4. China X
12, para. 48
A/C.6/64/SR.
5. DRC X X X X
12, para. 54
A/C.6/64/SR.
6. Kenya X X X X
12, para. 61
A/C.6/64/SR.
7. Slovakia X X X X X X
12, para. 64
A/C.6/64/SR.
8. Thailand X X X
12, para. 67
A/C.6/64/SR.
9. Austria X X X X X
12, para. 81

A/C.6/64/SR.
10. Germany X X X
12, para. 85
A/C.6/64/SR.
11. Sudan X X
12, para. 95;
A/C.6/64/SR.
12. Slovenia X X X X X X
12, para. 96
A/C.6/64/SR.
13. Belgium X X X X
12, para. 102
A/C.6/64/SR.
14. Burkina Faso X X
13, para. 23
A/C.6/64/SR.
15. U.S. X X X X
13, para. 25
A/C.6/64/SR.
16. Liechtenstein X X X X
13, para. 26
A/C.6/64/SR.
17. Senegal X X X X
13, para. 38
Malawi A/C.6/65/SR.
18. X X
(GAS) 10, para. 60
A/C.6/65/SR.
19. Egypt X X X X
10, para. 68
A/C.6/65/SR.
20. Belarus X X X X X X
10, para. 75
A/C.6/65/SR.
21. Cuba X
11, para. 35
A/C.6/65/SR.
22. Russia X X X
11, para. 56
A/C.6/65/SR.
23. Ghana X X
11, para. 62

A/C.6/65/SR.
24. El Salvador X X X X
11, para. 71
A/C.6/65/SR.
25. Chile X X X X
12, para. 6
A/C.6/65/SR.
26. Sweden X X X X
12, para. 15
A/C.6/65/SR.
27. Malaysia X X
12, para. 27
A/C.6/65/SR.
28. U.K. X X
12, para. 31
A/C.6/65/SR.
29. Lesotho X X X
12, para. 38
A/C.6/65/SR.
30. ICRC X
12, para. 42
A/C.6/66/SR.
31. Kenya (GAS) X X X
12, para. 12
A/C.6/66/SR.
32. Colombia X X X
12, para. 27
A/C.6/66/SR.
33. Zambia X X X
12, para. 54
A/C.6/66/SR.
34. Algeria X X X X X X
12, para. 66
A/C.6/66/SR.
35. Sri Lanka X X X X X
13, para. 1
A/C.6/66/SR.
36. Indonesia X
13, para. 14
A/C.6/66/SR.
37. Greece X
13, para. 16

A/C.6/66/SR.
38. Ireland X X
13, para. 40
A/C.6/66/SR.
39. Iran X
13, para. 42
A/C.6/66/SR.
40. Mozambique X X X
13, para. 57
South A/C.6/66/SR.
41. X X
Korea 13, para. 58
26 11 25 23 31 16 1 1 1
Note: CAH = crimes against humanity; CANZ = Canada, Australia, and New Zea-
land; GAS = Group of African States; ICRC = International Committee of the
Red Cross.
The table shows that the most well-recognised crimes subject to

U.J. by the 41 States, State groups and observers are war crimes (31), pi-
racy (26), genocide (25), and crimes against humanity (23). Since piracy
is an international crime that has been unanimously accepted by the inter-
national community as falling within the scope of U.J., I assume the
States, State groups and observers which did not mention piracy in their
statements also accept piracy. Several States or State groups only men-
tioned piracy and did not mention genocide, crimes against humanity and
war crimes. They pointed out that genocide, crimes against humanity and
war crimes do not fall within the scope of U.J. For example, China said
that apart from piracy there is no unanimity among States and therefore
no established customary law about which crimes are subject to universal
jurisdiction. 92 Ghana observed that there is a growing corpus of interna-
tional standards aimed at combating impunity for such offences as torture,
human trafficking, crimes against humanity, war crimes and genocide,
and that some has wrongly interpreted that welcome trend as justifying
the exercise under customary law of universal jurisdiction over those
crimes. 93 Sudan stated that there is a misconception that if States are sig-
92
A/C.6/65/SR.11, para. 25.
93
A/C.6/65/SR.11, para. 63.

natories to the Universal Declaration of Human Rights and parties to the

Convention on the Prevention and Punishment of the Crime of Genocide
and the Convention against Torture and Other Cruel, Inhuman or Degrad-
ing Treatment or Punishment, their citizens are automatically subject to
the principle of universal jurisdiction. Not only is that contention aca-
demically and intellectually false, it also ignores the noble intentions of
the drafters of those instruments who had believed that they were stating
general principles rather than enacting laws that would be enforced by
national courts against the citizens of other States. 94
Against this background, it can be safely deduced from the state-
ments made by the 41 States, State groups and observers that piracy falls
within the scope of U.J., and that there is disagreement among these
States as to whether genocide, crimes against humanity and war crimes
also fall within the scope of U.J.
9.4.1.4. Preconditions to the Exercise of Universal Jurisdiction

Several preconditions to the exercise of U.J. have been discussed before
the Sixth Committee of the UNGA since 2009. The first precondition is
whether it is necessary for the suspect of the crimes concerned to be pre-
sent in the territory of the forum State in order to exercise U.J. In this re-
gard, 15 States and State groups said that the suspect must be present in
order to exercise U.J. 95 Costa Rica even said that so-called ‘absolute uni-
versal jurisdiction’, whereby trials are conducted in the absence of the
accused, and imposition of the death penalty should be prohibited. 96 No
State or State groups clearly said that the suspect does not need to be pre-
sent. While the Netherlands said she also requires the presence of the sus-
pect in her territory in order to exercise U.J., further research could be
94
A/C.6/64/SR.12, para. 95.
95
Australia (on behalf of CANZ) (A/C.6/64/SR.12, para. 11); Switzerland (A/C.6/64/
SR.12, para. 23); Costa Rica (A/C.6/64/SR.12, para. 27); Peru (A/C.6/64/SR.12, para.
70); France (A/C.6/64/SR.12, para. 77); Iran (A/C.6/64/SR.13, para. 4; A/C.6/65/
SR.12, para. 5; A/C.6/66/SR.13, para. 43); Israel (A/C.6/64/SR.13, para. 21; A/C.6/
65/SR.12, para. 10; A/C.6/66/SR.12, para. 75); U.S. (A/C.6/64/SR.13, para. 24); Can-
ada (on behalf of CANZ) (A/C.6/65/SR.10, para. 66); Egypt (A/C.6/65/SR.11, para.
14); Spain (A/C.6/65/SR.11, para. 21); the Democratic Republic of the Congo (A/C.6/
65/SR.11, para. 29); the Netherlands (A/C.6/65/SR.11, para. 60; A/C.6/66/SR.13, pa-
ra. 46); Ethiopia (A/C.6/66/SR.12, para. 40); Greece (A/C.6/66/SR.13, para. 17).
96
A/C.6/64/SR.12, para. 27.

done on this point. 97 Considering the very limited number of States and
State groups that has expressed a position on this point and its importance
it is still too early to say that there has up to now been a common under-
standing on this point among the 74 States, State groups and observers
before the Sixth Committee.
The second precondition is whether the exercise of U.J. shall be
subsidiary, complementary or residual to criminal jurisdiction of other
States, including territorial jurisdiction of the State where the crimes con-
cerned have been committed, active personality jurisdiction of the State
whose national is a suspect of the crimes concerned, or passive personal-
ity jurisdiction of the State whose national is a victim of the crimes con-
cerned, as well as even the ICC. In this regard, 35 States, State groups and
observers made statements in the affirmative. 98 No State, State groups or
observers object to the principle of subsidiary or complementarity. Ac-
cordingly, it can be said that to observe this principle is almost one of
common understandings of the 74 States, State groups and observers
which made statements on scope and application of U.J. before the Sixth
Committee.
97
98
Australia (on behalf of CANZ) (A/C.6/64/SR.12, para. 11; A/C.6/66/SR.12, para. 6);
Costa Rica (A/C.6/64/SR.12, para. 29); Kenya (A/C.6/64/SR.12, para. 61; A/C.6/66/
SR.13, para. 34); Germany (A/C.6/64/SR.12, para. 86); Belgium (A/C.6/64/SR.12,
para. 102); the United Kingdom (A/C.6/64/SR.13, para. 6; A/C.6/65/SR.12, para. 32);
Algeria (A/C.6/64/SR.13, para. 8); Spain (A/C.6/64/SR.13, para. 10); Liechtenstein
(A/C.6/64/SR.13, para. 26; A/C.6/65/SR.12, para. 35); Canada (on behalf of CANZ)
(A/C.6/65/SR.10, para. 64); Egypt (A/C.6/65/SR.10, para. 68); Guatemala (A/C.6/65/
SR.10, para. 70); Peru (A/C.6/65/SR.10, para. 78; A/C.6/66/SR.12, para. 33); Norway
(A/C.6/65/SR.11, para. 6); Slovenia (A/C.6/65/SR.11, para. 23); Algeria (A/C.6/65/
SR.11, para. 26; A/C.6/66/SR.12, para. 65); Cuba (A/C.6/65/SR.11, para. 36); Viet
Nam (A/C.6/65/SR.11, para. 46); Tunisia (A/C.6/65/SR.11, para. 69); Chile (A/C.6/
65/SR.12, para. 7; A/C.6/66/SR.13, para. 20); Israel (A/C.6/65/SR.12, para. 10;
A/C.6/66/SR.12, para. 75); the ICRC (A/C.6/65/SR.12, para. 42; A/C.6/66/SR.13,
para. 64); Qatar (on behalf of Arab Group) (A/C.6/66/SR.12, para. 9); Colombia
(A/C.6/ 66/SR.12, para. 26); El Salvador (A/C.6/66/SR.12, para. 31); Sudan
(A/C.6/66/SR.12, para. 36); Ethiopia (A/C.6/66/SR.12, para. 38); Argentina
(A/C.6/66/SR.12, para. 71); Sri Lanka (A/C.6/66/SR.13, para. 3); Indonesia
(A/C.6/66/SR.13, para. 13); Greece (A/C.6/66/SR.13, para. 17); Finland
(A/C.6/66/SR.13, para. 27); Iran (A/C.6/66/SR. 13, para. 43); Brazil (A/C.6/66/SR.13,
para. 49).

The third precondition issue is whether the exercise of U.J. shall not
violate fundamental principles of international law, including the equality
of State sovereignty, the non-intervention in the internal affairs of other
States, and the immunity of high officials from foreign criminal jurisdic-
tions. Thirty-seven States and State groups said that the fundamental prin-
ciples including equality of State sovereignty and non-intervention in in-
ternal affairs shall not be ignored in the exercise of U.J., almost all of
them are from Africa, Asia and Latin America.99 No State, State groups or
observers said that such fundamental principles can be violated. With re-
gard to the specific rule of immunity of high officials, 32 States and State
groups said that the immunity of high officials from foreign criminal ju-
risdiction shall be respected in the exercise of U.J., almost all are from
Africa, Asia and Latin America. 100 While seven States and State groups
99
Tunisia (on behalf of Group of African States) (A/C.6/64/SR.12, para. 14); Iran (on
behalf of Movement of Non-Alignment Countries) (A/C.6/64/SR.12, para. 20;
A/C.6/65/SR.10, para. 55; A/C.6/66/SR.12, para. 1); Sudan (A/C.6/64/SR.12, para.
93; A/C.6/66/SR.12, para. 35); Tunisia (A/C.6/64/SR.12, para. 101; A/C.6/65/SR.11,
para. 69; A/C.6/66/SR.13, para. 54); Lebanon (A/C.6/64/SR.12, para. 104); Indonesia
(A/C.6/64/SR.13, para. 1); Iran (A/C.6/64/SR.13, para. 2); Algeria (A/C.6/64/SR.13,
para. 8; A/C.6/66/SR.12, para. 65); Russia (A/C.6/64/SR.13, para. 14; A/C.6/65/
SR.11, para. 57); Togo (A/C.6/64/SR.13, para. 35); Senegal (A/C.6/64/SR.13, para.
40; A/C.6/65/SR.11, para. 19); Ethiopia (A/C.6/64/SR.13, para. 47; A/C.6/66/SR.12,
para. 38); Malawi (on behalf of Group of African States) (A/C.6/65/SR.10, para. 59);
Egypt (A/C.6/65/SR.10, para. 69); Belarus (A/C.6/65/SR.10, para. 76); Libya
(A/C.6/65/SR.11, para. 1); China (A/C.6/65/SR.11, para. 25); Cuba (A/C.6/65/SR.11,
para. 34); Viet Nam (A/C.6/65/SR.11, para. 46); Iran (A/C.6/65/SR.12, para. 4; A/C.
6/66/SR.13, para. 44); Venezuela (A/C.6/65/SR.12, para. 18; A/C.6/66/SR.12, para.
57); Qatar (on behalf of Arab Group) (A/C.6/66/SR.12, para. 11); Kenya (on behalf of
Group of African States) (A/C.6/66/SR.12, para. 12); Egypt (A/C.6/66/SR.12, para.
15); Colombia (A/C.6/66/SR.12, para. 28); Swaziland (A/C.6/66/SR.12, para. 49);
Zambia (A/C.6/66/SR.12, para. 55); Malaysia (A/C.6/66/SR.12, para. 63); Senegal
(A/C.6/66/SR.12, para. 68); Argentina (A/C.6/66/SR.12, para. 71); Sri Lanka (A/C.6/
66/SR.13, para. 1); South Africa (A/C.6/66/SR.13, para. 8); Greece (A/C.6/66/SR.13,
para. 17); Burkina Faso (A/C.6/66/SR.13, para. 30); Kenya (A/C.6/66/SR.13, para.
35); Brazil (A/C.6/66/SR.13, para. 49); Mozambique (A/C.6/66/SR.13, para. 56).
100
Tunisia (on behalf of Group of African States) (A/C.6/64/SR.12, para. 14); Iran (on
behalf of MNACs) (A/C.6/64/SR.12, para. 20; A/C.6/65/SR.10, para. 55; A/C.6/
66/SR.12, para. 1); China (A/C.6/64/SR.12, para. 48; A/C.6/65/SR.11, para. 25; A/C.
6/66/SR.13, para. 5); South Africa (A/C.6/64/SR.12, para. 55; A/C.6/66/SR.13, para.
8); Sudan (A/C.6/64/SR.12, para. 94; A/C.6/65/SR.12, para. 22; A/C.6/66/SR.12, pa-
ra. 37); Tunisia (A/C.6/64/SR.12, para. 101); Lebanon (A/C.6/64/SR.12, para. 104);
Indonesia (A/C.6/64/SR.13, para. 1); Iran (A/C.6/64/SR.13, para. 5; A/C.6/65/SR.12,

said that the issue of immunity is a separate issue which has been and
shall be dealt with by the International Law Commission in Geneva,
though they agreed that it should be respected. 101 In such a situation, it
can be said that it is a common understanding that national courts, while
exercising U.J., shall respect the immunity of high officials from jurisdic-
tion under international law, regardless of whether the immunity issue is
separate from U.J.
9.4.1.5. Establishment of an International Regulatory Body

The proposal to establish an international regulatory body was put for-
ward by the eleventh Assembly of A.U. in 2008, and was introduced to
the UNGA by Tanzania on behalf of Group of African States on 29 June
2009. 102 As of 2011, five States expressed their consent to such a pro-
posal, most of them are African States. 103 However, this proposal was re-
jected by nine European States on the grounds that it will jeopardise the
principle of the independence of the judiciary. They prefer to settle dis-
putes arising from the exercise of U.J. through the present institutions,
para. 4; A/C.6/66/SR.13, para. 45); Spain (A/C.6/64/SR.13, para. 9); Russia (A/C.
6/64/SR.13, para. 14; A/C.6/66/SR.12, para. 43); Togo (A/C.6/64/SR.13, para. 35);
Senegal (A/C.6/64/SR.13, para. 39; A/C.6/65/SR.11, para. 19; A/C.6/66/SR.12, para.
68); Ethiopia (A/C.6/64/SR.13, para. 47; A/C.6/66/SR.12, para. 40); Malawi (on be-
half of Group of African States) (A/C.6/65/SR.10, para. 59); Egypt (A/C.6/65/SR.10,
para. 69); Belarus (A/C.6/65/SR.10, para. 76); Libya (A/C.6/65/SR.11, para. 1); Alge-
ria (A/C.6/65/SR.11, para. 26; A/C.6/66/SR.12, para. 65); the Democratic Republic of
the Congo (A/C.6/65/SR.11, para. 32); Cuba (A/C.6/65/SR.11, para. 34; A/C.6/66/
SR.12, para. 34); Viet Nam (A/C.6/65/SR.11, para. 46); Ghana (A/C.6/65/SR.11, pa-
ra. 66); Venezuela (A/C.6/65/SR.12, para. 20; A/C.6/66/SR.12, para. 59); Kenya (on
behalf of Group of African States) (A/C.6/66/SR.12, para. 12); Colombia (A/C.6/66/
SR.12, para. 29); Peru (A/C.6/66/SR.12, para. 33); Swaziland (A/C.6/66/SR.12, para.
51); Zambia (A/C.6/66/SR.12, para. 56); Sri Lanka (A/C.6/66/SR.13, para. 1); Brazil
(A/C.6/66/SR.13, para. 51); Mozambique (A/C.6/66/SR.13, para. 56).
101
France (A/C.6/64/SR.12, para. 78); Austria (A/C.6/64/SR.12, para. 82); Finland (A/C.
6/64/SR.12, para. 90); Canada (on behalf of CANZ)(A/C.6/65/SR.10, para. 67); Nor-
way (A/C.6/65/SR.11, para. 8; A/C.6/66/SR.12, para. 21); Belgium (A/C.6/65/SR.11,
para. 42; A/C.6/66/SR.12, para. 53); Sweden (A/C.6/65/SR.12, para. 17).
102
See Section 9.2.
103
Swaziland (A/C.6/64/SR.12, para. 34); Sudan (A/C.6/64/SR.12, para. 95); Rwanda
(A/C.6/65/SR.11, para. 5); Algeria (A/C.6/65/SR.11, para. 26; A/C.6/66/SR.66); Chi-
le (A/C.6/65/SR.12, para. 8; A/C.6/66/SR.13, para. 23).

such as the ICJ. 104 Therefore, it seems that this proposal is one of the most
controversial points, especially between African and European States. In
such a situation, it can be said that there was no common understanding
on whether it is necessary to establish such a body.
9.4.2. State Practice

Even if arguably opinio juris on the definition, scope and application of
U.J. has been formalised from the available materials provided by the
States, State groups or observers in the Sixth Committee, a customary rule
of international law could not be found without the support of state prac-
tice. As the ICJ put in the Nicaragua case,
[t]he mere fact that States declare their recognition of certain
rules is not sufficient for the Court to consider these as being
part of customary international law […] Bound as it is by
Article 38 of its Statute […] the Court must satisfy itself that
the existence of the rule in the opinio iuris of States is con-
firmed by practice. 105
As far as U.J. is concerned, the most important state practice is the
legislative and judicial practices of States. In terms of legislative or pre-
scriptive practice, among about 90 States that have responded to the
UNSG, the majority provides for so-called treaty-based U.J. in their do-
mestic law. As summarised by the UNSG in his first report,
[i]t was noted, at least in one case, by a Government that its
courts had universal jurisdiction over any crime falling
within the category of international or cross-border crimes,
such as genocide, war crimes, crimes against humanity, tor-
ture, money-laundering, piracy and drug trafficking
(Rwanda). In another instance, it was noted that universal ju-
risdiction was not enshrined in the law, while observing fur-
ther that domestic legal rules and judicial practice had not
adopted the principle (Lebanon). In most cases, however,
references were made to penal or criminal codes, codes of
104
Slovakia (A/C.6/64/SR.12, para. 65); Finland (A/C.6/64/SR.12, para. 92; A/C.6/66/
SR.13, para. 29); Belgium (A/C.6/64/SR.12, para. 103; A/C.6/65/SR.11, para. 43);
Liechtenstein (A/C.6/64/SR.13, para. 28; A/C.6/65/SR.12, para. 37); Italy (A/C.6/64/
SR.13, para. 45); the Czech Republic (A/C.6/65/SR.11, para. 16; A/C.6/66/SR.77);
the Netherlands (A/C.6/65/SR.11, para. 60; A/C.6/66/SR.13, para. 46); the United
Kingdom (A/C.6/66/SR.13, para. 25); Ireland (A/C.6/66/SR.13, para. 41);
105
ICJ (Nicaragua v. U.S.), Judgment of 27 June 1986, para. 184, supra note 64.

criminal procedure and specific legislation which had given

effect to international obligations, as providing the basis for
the exercise of universal jurisdiction. 106
In other words, U.J. legislation or prescription with no treaty basis
is exceptionally rare at the present stage. What is worse, if the legislative
or prescriptive practice of States is mainly treaty-based U.J. provisions,
judicial practice implementing such provisions is more rare among the
States that have responded to the UNSG. As summarised from the re-
sponses by the UNSG in his first report,
[i]n some instances, it was noted that there had been no cases
of application of universal jurisdiction (e.g., Armenia, Bo-
livia, Chile, the Czech Republic, El Salvador, Estonia,
Kenya, Malta, Peru, Slovenia), that no prosecutions had been
pursued under legislation providing for universal jurisdiction
(e.g., New Zealand), that the courts rarely exercised it (e.g.,
Republic of Korea), or that no one had been convicted since
the legislation containing crimes for which universal juris-
diction would be asserted entered into force (e.g., Azerbai-
jan, the Netherlands). It was also noted that there had been
no cases in which extradition had been requested on the basis
of universal jurisdiction (e.g., Peru). 107
The number of States that reported cases in relation to U.J. to the
UNSG is very limited, including Peru, Belgium, China, Denmark, France,
Rwanda, the Netherlands, South Korea and Switzerland. It should be
noted that in the very few judicial cases reported by these States, often
one or two mainly relate to the execution of treaty-based U.J. provisions
in domestic law.
9.5. Concluding Remarks

In my observation, outside the context of the relevant treaties in relation
to the fight against international crimes, what can be safely said at the
present stage is that the principle of universal jurisdiction may have crys-
tallised in customary international law as a whole, but it is hard to say that
its definition, scope and application are clear in customary international
law. Perhaps this reflects the common understanding of the issue of uni-
versal jurisdiction among States in the U.N. General Assembly at the pre-
106
A/65/181, para. 34.
107
A/65/181, para. 55.

sent stage. Many arguments are simply publicists’ teachings, staying at

the level of legal doctrine in international law. In this matter, we should
be prudent and cautious, not confusing lex lata with lex ferenda. Whether,
and how, to make such principles a reality in customary international law
depends on the will and actual practice of States. In this regard, it is hoped
that more States will express their views or submit their legislative or ju-
dicial information to the Sixth Committee of the U.N. General Assembly.
Nevertheless, it should be noted that the international community
has woken up during the past decade. With the emergence of a common
understanding of universal jurisdiction in the U.N. General Assembly and
a growing practice of universal jurisdiction, new customary international
law on its definition, scope and application could be formalised in a rela-
tively short period.

10
______
The International Criminal Court
and Immunities under International Law
for States Not Party to the Court’s Statute
Claus Kreß *
10.1. Introduction
The international law of immunities is en vogue. It has been at the heart of
two recent judgments of the International Court of Justice (‘ICJ’) 1, has
been the subject of two recent resolutions adopted by the Institut de Droit
International (‘IDI’) 2, and is one of the topics to which the International
*
Claus Kreß (Dr. jur. Cologne; LL.M. Cantab.) is Professor for Criminal Law and
Public International Law. He holds the Chair for German and International Criminal
Law and he is Director of the Institute of International Peace and Security Law at the
University of Cologne while he rejected calls to the University Regensburg and the
Max-Planck-Institute for International, European and Regulatory Procedural Law in
Luxembourg. His prior practice was in the German Federal Ministry of Justice on
matters of criminal law and international law. Since 1998 he has been representing
Germany in the negotiations regarding the International Criminal Court. He was
member of the Expert Group on the German Code of Crimes under International Law
(2000/2001) and he acted as War Crimes Expert for the Prosecutor General for East
Timor (2001), as Head of the ICC’s Drafting Committee for the Regulations of the
Court (2004) and as a sub-coordinator in the negotiations on the crime of aggression.
Claus Kreß is co-editor of several law journals, including the Journal of International
Criminal Justice. He is Life Member of Clare Hall College at the University of Cam-
bridge and Member of the Academy of Sciences and Arts of Northrhine-Westfalia.
1
International Court of Justice, Jurisdictional Immunities of the State (Germany v. It-
aly: Greece Intervening), Judgment, 3 February 2012, available at http://www.legal-
tools.org/doc/674187/; ICJ, Case Concerning the Arrest Warrant of 11 April 2000
Reports 2002, p. 3, available at http://www.legal-tools.org/doc/c6bb20/; the interna-
tional law of immunities was also touched upon in International Court of Justice (Dji-
bouti v. France: Case Concerning Certain Questions of Mutual Assistance in Crimi-
nal Matters), Judgment, 4 June 2008, ICJ Reports 2008, p. 177, available at
http://www.legal-tools.org/doc/7b6a80/.
2
Institut de droit international, Resolution on the Immunity from Jurisdiction of the
State and of Persons Who Act on Behalf of the State in case of International Crimes,

Law Commission (‘ILC’) is currently addressing its attention. 3 All of

these developments have sparked, as one would suspect, a considerable
amount of scholarly writing. 4
Napoli Session 2009, Third Commission, available at http://www.idi-iil.org/

idiE/resolutionsE/2009_naples_01_en.pdf, last accessed on 17 July 2012; Institut de
droit international, Les immunités de jurisdiction et d’exécution du chef d’Etat et de
gouvernement en droit international, Vancouver Session 2001, Thirteenth Commis-
sion, available at http://www.idi-iil.org/idiF/resolutionsF/2001_van_02_ fr.PDF, last
accessed on 17 July 2012.
3
For a summary of the work, see International Law Commission, Report on the Work
of its sixty-third session, A/66/10, paras. 102–203 (Chapter VII – Immunity of State
officials from foreign criminal jurisdiction); for the first three reports of Special Rap-
porteur Roman Anatolevich Kolodkin, see International Law Commission, Third Re-
port on immunity of State officials from foreign criminal jurisdiction, 24 May 2011,
A/CN.4/646; Second report on immunity of State officials from foreign criminal juris-
diction, 10 June 2010, A/CN.4/631; Preliminary report on immunity of State officials
from foreign criminal jurisdiction, 29 May 2008, A/CN.4/601; for a voluminous
memorandum prepared by the Secretariat at the request of the ILC, see International
Law Commission, Immunity of State officials from foreign criminal jurisdiction, 31
March 2008, A/CN.4/596.
4
The following is a selection of more recent publications; for a leading treatise of the
subject as a whole, see Lady Hazel Fox, The Law of State Immunity, second ed., Ox-
ford University Press, Oxford, 2009; for a most thorough monograph on international
immunity rights and international criminal law, see Helmut Kreicker, Völkerrecht-
liche Exemtionen. Grundlagen und Grenzen völkerrechtlicher Immunitäten und ihre
Wirkungen im Strafrecht (two volumes), Duncker and Humblot, Berlin, 2007; for two
other recent monographs, see Rosanne van Alebeek, The Immunity of States and their
Officials in International Criminal Law and International Human Rights Law, Oxford
University Press, Oxford, 2008; Ellen L. Lutz and Caitlin Reiger (eds.), Prosecuting
Heads of State, Cambridge University Press, Cambridge, 2009; for another detailed
study, see Advisory Committee on Issues of Public International Law, Advisory Re-
port on the Immunity of Foreign State Officials, Advisory Report No. 20, 2011, avail-
able at http://www.rijksoverheid.nl/documenten-en-publicaties/rapporten/2011/10/19/
advies-inzake-de-immuniteit-van-buitenlandse-ambtsdragers.html, last accessed on 17
July 2012; for some important shorter analyses, see Chimène I. Keitner, “Foreign Of-
ficial Immunity and the ‘Baseline’ Problem”, in Fordham Law Review, 2011–2012,
vol. 80, p. 605; Joanne Foakes, “Immunity for International Crimes? Developments in
the Law on Prosecuting Heads of States in Foreign Courts”, in Chatham House brief-
ing paper, IL BP 2011/02; Beth Stephens, “Abusing the Authority of the State: Deny-
ing Foreign Official Immunity for Egregious Human Rights Abuses”, in Vanderbilt
Journal of Transnational Law, 2011, vol. 44, p. 1163; Dapo Akande and Sangeeta
Shah, “Immunities of State Officials, International Crimes, and Foreign Domestic
Courts”, in European Journal of International Law, 2010, vol. 21, p. 815; Mary Mar-
garet Penrose, “The Emperor’s Clothes: Evaluating Head of State Immunity Under

The International Criminal Court and Immunities under International Law
It would be pretentious to confront the subject as a whole within the

limited scope of a chapter as this. I shall therefore narrowly confine my
considerations to one single facet of the broad theme, and shall discuss
two closely interrelated questions pertaining to international law immu-
nity rights in proceedings before the International Criminal Court
(‘ICC’). 5 The first question is whether international law immunities of
States not party to the Statute of the ICC (‘Statute’) prevent the latter from
exercising its jurisdiction over an incumbent Head of State, Head of Gov-
ernment, Foreign Minister and certain other holders of high-ranking office
of such a State. Only if this first question is answered in the negative does
the second question arise, which is whether such international law of im-
International Law”, in Santa Clara Journal of International Law, 2009–2010, vol. 7,

p. 85; Gionato Piero Buzzini, “Lights and Shadows of Immunities and Inviolability of
State Officials in International Law: Some Comments on the Djibouti v. France
Case”, in Leiden Journal of International Law, 2009, vol. 22, p. 455; Mark A. Sum-
mers, “Diplomatic Immunity Ratione Personae: Did the International Court of Justice
Create a New Customary Law Rule in Congo v. Belgium?”, in Michigan State Journal
of International Law, 2007–2008, vol. 16, p. 459; Natalino Ronzitti, “L’immunità
funzionale degli organi stranieri dalla giurisdizione penale: Il caso Calipari”, in Ri-
vista di diritto internatzionale, vol. XCI, 2008, p. 1033; Sarah M. H. Nouwen, “The
Special Court for Sierra Leone and the Immunity of Taylor: The Arrest Warrant Case
Continued”, in Leiden Journal of International Law, 2005, vol. 18, p. 645; Philippe
Sands, “International Law Transformed? From Pinochet to Congo?”, in Leiden Jour-
nal of International Law, 2003, vol. 16, p. 37; Antonio Cassese, “When May Senior
State Officials be Tried for International Crimes? Some Comments on the Congo v.
Belgium Case”, in European Journal of International Law, 2002, vol. 18, p. 853;
Steffen Wirth, “Immunity for Core Crimes? The ICJ’s Judgment in the Congo v. Bel-
gium Case”, in European Journal of International Law, 2002, vol. 13, p. 877; Andrea
Bianchi, “Immunity versus Human Rights: The Pinochet Case”, in European Journal
of International Law, 1999, vol. 10, p. 237; Christian Dominicé, “Quelques observa-
tions sur l’immunité de jurisdiction pénale de l’ancien Chef d’Etat”, in Révue Gé-
nérale de Droit International Public, 1999, vol. 103, p. 297.
5
Specifically on (aspects relating to) those questions, see Dapo Akande, “The Legal
Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immu-
nities”, in Journal of International Criminal Justice, 2009, vol. 7, p. 333; Paola Gaeta,
“Does President Al Bashir Enjoy Immnuity from Arrest?”, in Journal of International
Criminal Justice, 2009, vol. 7, p. 315; Robert Uerpmann-Wittzack, “Immunität vor
Internationalen Strafgerichtshöfen”, in Archiv des Völkerrechts, 2006, vol. 44, p. 33;
Dapo Akande, “International Law Immunities and the International Criminal Court”,
in The American Journal of International Law, 2004, vol. 98, p. 407; Vanessa Kling-
berg, “(Former) Heads of State Before International(ized) Criminal Courts: the Case
of Charles Taylor Before the Special Court for Sierra Leone”, in German Yearbook of
International Law, 2003, vol. 46, p. 537.

munities precludes the ICC from requesting a State Party to arrest and
surrender a suspect who falls into one the above-listed categories and who
is sought by an arrest warrant issued by the Court.
Both questions have recently acquired, almost literally, burning
practical relevance. On 4 March 2009, ICC Pre-Trial Chamber I decided
that the Court is not prevented by Sudan’s immunity under international
law from exercising its jurisdiction over the incumbent President of this
non-party State, Al Bashir. 6 More than two years later, on 12 and 13 De-
cember 2011, a differently composed Pre-Trial Chamber I specified (or, if
this way to put it is preferred: added) in two decisions that the Court is
also not precluded from requesting the States Parties of Chad and Malawi
to arrest Al Bashir during his visit to their country and to surrender him to
the Court. 7 Shortly thereafter, on 9 January 2012, the African Union
Commission voiced its “deep regret” about, and its “total disagreement”
with, the “ill-considered” and “self-serving” decisions of December
2011. 8
6
International Criminal Court, The Prosecutor v. Omar Hassan Ahmad Al Bashir
(“Omar Al Bashir”), Decision on the Prosecution’s Application for a Warrant of Ar-
rest against Omar Hassan Ahmad Al Bashir, 4 March 2009, ICC-02/05-01/09-3,
paras. 41–45, available at http://www.legal-tools.org/doc/e79f78/.
7
Cour Pénal Internationale (‘CPI’), Le Procureur International Criminal Court, Le Pro-
cureur c. Omar Hassan Ahmad Al Bashir, Décision rendue en application de l’article
87–7 du Statut de Rome concernant le refus de la République du Tchad d’accéder aux
demandes de cooperation délivrées par la Cour concernant l’arrestation et la remise
d’Omar Hassan Ahmad Al Bashir, 13 December 2011, ICC-02/05-01/09-140, avail-
able at available at http://www.legal-tools.org/doc/c33d51/; International Criminal
Court, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision Pursuant to Arti-
cle 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply
with the Cooperation Requests Issued by the Court with Respect to the Arrest and
Surrender of Omar Hassan Ahmad Al Bashir, 12 December 2011, ICC-02/05-01/09-
139, available at http://www.legal-tools.org/doc/476812/.
8
Press Release of 9 January 2012 on the Decisions of Pre-Trial Chamber I of the Inter-
national Criminal Court (‘ICC’) pursuant to Article 87(7) of the Rome Statute on the
Alleged Failure by the Republic of Chad and the Republic of Malawi to Comply with
the Cooperation Requests Issued by the Court with respect to the Arrest and Surrender
of President Omar Hassan Al Bashir of the Republic of the Sudan; on file with the au-
thor.

10.2. The Decisions of 4 March 2009 and 12 December 2011

in the Case Against Al Bashir and the Dissent by the African
Union Commission
In its decision of 4 March 2009, Pre-Trial Chamber I determined:
[…] the current position of Omar Al Bashir as Head of a
state which is not a party to the Statute, has no effect on the
Court’s jurisdiction over the present case. 9
The Chamber advanced four considerations in support of this de-
termination. 10 It referred, firstly, to the goal to end impunity, as referred to
in the Statute’s Preamble. Secondly, it quoted Article 27 of the Statute.
Thirdly, it seemed to indicate that the sources of applicable law listed in
Article 21(1)(a) of the Statute, if relied upon within the spirit of Articles
31 and 32 of the Vienna Convention on the Law of Treaties and Article
21(3) of the Statute, left no lacuna to be filled by reference to the sources
listed in Article 21(1)(b) and (c) of the Statute. 11 Fourthly, the Chamber
stated that:
[…] by referring the Darfur situation to the Court, pursuant
to article 13(b) of the Statute, the Security Council of the
United Nations has also accepted that the investigation into
the said situation, as well as any prosecution arising there-
from, will take place in accordance with the statutory
framework provided for in the Statute, the Elements of
Crimes and the Rules as a whole.
On 6 March 2009 and 21 July 2010, respectively, the Registry ad-
hered to the Chamber’s instruction to request all States Parties to arrest
and surrender Al Bashir. 12
In its decision of 12 December 2011, the same (but differently
composed) Chamber found that the Republic of Malawi had failed to co-
9
Supra note 6, para. 41.
10
Ibid., paras. 42–45.
11
The formulation of the pertinent paragraph 44 of the decision is somewhat oracular so
that its ‘interpretation’ involves a degree of speculation.
12
International Criminal Court, The Prosecutor v. Omar Hassan Ahmad Al Bashir
(“Omar Al Bashir”), ICC-02/05-01/09-7, Request to All States Parties to the Rome
Statute for the Arrest and Surrender of Omar Al Bashir, 6 March 2009, available at
http://www.legal-tools.org/doc/24341e/; Supplementary Request to All States Parties
to the Rome Statute for the Arrest and Surrender of Omar Al Bashir, 21 July 2010,
ICC-02/05-01/09-96, available at http://www.legal-tools.org/doc/66e485/.

operate with the Court by failing to arrest and surrender Al Bashir to the
Court. 13 This finding is based on the convictions that: (1) there is no in-
ternational law immunity of a State not party to the Statute in respect of
proceedings before the ICC 14 and (2) the “unavailability of immunities
with respect to prosecutions by international courts applies to any act of
cooperation by States which forms an integral part of those prosecu-
tions”. 15 In support of the first conviction, the Chamber takes the view
that there is a customary international law exception (even) to Head of
State immunity when international courts seek a Head of State’s arrest for
the commission of crimes under international law and that therefore Arti-
cle 98(1) of the Statute did not prevent the Court from proceeding with a
request for surrender in the present case. 16 In support of the second con-
viction, the Chamber opines that:
[…] when cooperating with this Court and therefore acting
on its behalf, States Parties are instruments for the enforce-
ment of the jus puniendi of the international community
whose exercise has been entrusted to this Court when States
have failed to prosecute those responsible for the crimes
within this jurisdiction. 17
In its decision of 13 December 2011 pertaining to the Republic of
Chad and presenting the same legal issues, the Chamber referred back to
the decision it had rendered the day before 18 so that the legal analysis that
follows in this chapter can focus on the latter decision.
The decisions of 12 and 13 December 2011 provoked a vigorous
dissent by the African Union Commission. The press release dated 9
January 2012, by which this dissent was communicated to the world, con-
tains the following passages:
13
ICC, 2011, supra note 7, in fine.
14
Ibid., para. 18.
15
Ibid., para. 44.
16
Ibid., para. 43.
17
Ibid., para. 46.
18
Cour Pénal Internationale, Le Procureur International Criminal Court, Le Procureur c.
Omar Hassan Ahmad Al Bashir, Décision rendue en application de l’article 87-7 du
Statut de Rome concernant le refus de la République du Tchad d’accéder aux deman-
des de cooperation délivrées par la Cour concernant l’arrestation et la remise d’Omar
Hassan Ahmad Al Bashir, 13 December 2011, ICC-02/05-01/09-140, para. 13, avail-
able at http://www.legal-tools.org/doc/c33d51/.

Following these Decisions of ICC Pre-Trial Chamber I, the

African Union Commission expresses its deep regret that the
decision has the effect of:
(i) Purporting to change customary international law in re-
lation to immunity ratione personae;
(ii) Rendering Article 98 of the Rome Statute redundant,
non-operational and meaningless;
(iii) Failing to address the critical issue of removal or non
removal of immunities by the UN Security Council
resolution 1593(2005), which referred the situation in
Darfur to the ICC. […]
As a general matter, the immunities provided for by interna-
tional law apply not only to proceedings in foreign domestic
courts but also to international tribunals: states cannot con-
tract out of their international legal obligations vis-à-vis third
states by establishing an international tribunal. Indeed, con-
trary to the assertion of the ICC Pre-Trial Chamber I, article
98(1) was included in the Rome Statute establishing the ICC
out of recognition that the Statute is not capable of removing
an immunity which international law grants to the officials
of States that are not parties to the Rome Statute. This is be-
cause immunities of State officials are rights of the State
concerned and a treaty only binds parties to the treaty. […]
The Security Council has not lifted President Bashir’s im-
munity either; any such lifting should have been explicit,
mere referral of a “situation” by the UNSC to the ICC or re-
questing a state to cooperate with the ICC cannot be inter-
preted as lifting immunities granted under international law.
The consequence of the referral is that the Rome Statute, in-
cluding article 98, is applicable to the situation in Darfur. 19
The preceding summary demonstrates a sharp disagreement be-
tween Pre-Trial Chamber I and the African Union Commission. The lat-
ter’s dissent does not clearly distinguish between the two legal questions I
have formulated in the introduction to my chapter and its precise legal
position leaves room for interpretation. My reading is that the Commis-
sion gives a negative answer already to my first question, although with
one qualification. The Commission appears to take the view that interna-
tional law immunities of States not party to the Statute prevent the ICC
19
Supra note 8.

from exercising its jurisdiction over an incumbent Head of State, unless

the Security Council has explicitly stipulated to the contrary in a resolu-
tion based on Chapter VII of the U.N. Charter. While Pre-Trial Chamber I
has consistently given a negative answer to my first question, the above
summary has revealed a remarkably different reasoning if the decision of
4 March 2009 is compared with the ones of 12 and 13 December 2011.
While the latter postulate a special customary international law exception
to international law immunities with respect to proceedings before inter-
national criminal courts, any reference to customary international law is
conspicuously absent from the former decision. The former instead relies
on the Statute itself and on the legal effect of a Security Council referral.
The decisions of 4 March 2009 and of 12–13 December 2011 also differ
in how they deal with my second introductory question. While this ques-
tion has received an explicit treatment leading to a negative answer in the
decisions of 12 and 13 December 2011, it was not specifically addressed
in the decision of 4 March 2009. Yet, already in this decision the Cham-
ber instructed the Registry to “proceed with a request for surrender” di-
rected to all States Parties to borrow the words used in Article 98(1) of the
Statute. In sum, the picture that results from the preceding summary is of
considerable complexity.
10.3. Legal Analysis

In the following legal analysis, I shall make an attempt to disentangle the
legal issues at stake. 20 In order to do so, I shall seek to clarify how Article
98(1) of the Statute relates to the international law of immunities outside
the realm of the Statute, and how Article 98(1) of the Statute should be
applied. I shall then separately explore the ‘Security Council avenue’ and
the ‘customary law avenue’ to avoid the application of the prohibition
contained in Article 98(1) of the Statute even in case of an incumbent
Head of a State not party to the Statute. I shall begin, however, with a
20
It builds on and develops Claus Kreß and Kimberly Prost, “Article 98”, in Otto
Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court,
C.H. Beck/Hart/Nomos, second ed., 2008, pp. 1601–1614; and on Claus Kreß,
“Commentary on the Decision on Immunity from Jurisdiction (Prosecutor v. Taylor)”,
in André Klip/Göran Sluiter (eds.), Annotated Leading Cases of International Crimi-
nal Tribunls, Volume IX: The Special Court for Sierra Leone, Intersentia, Antwerp-
Oxford, 2006, p. 202.

brief comment on the first three considerations advanced in the Pre-Trial

Chamber’s decision of 4 March 2009.
10.3.1. An Initial Critique of the Decision of 4 March 2009

It is not clear from the wording of the pertinent passages of this decision
whether the four considerations advanced in support of its conclusion on
the immunity issue are to form one composite legal argument or whether
they should provide for different legal bases to independently reach the
same conclusion. While the latter reading of the decision is possible, it
would not make for a convincing legal argument, because neither Article
27(2) of the Statute nor the Statute’s Preamble can per se affect the (im-
munity) rights of those States which are not party to the Statute. 21 For this
reason, it is also unhelpful in the specific context at stake to say that a
Chamber of the ICC cannot resort to international law outside the realm
of the Statute where the latter does not leave a lacuna. The Statute as such
simply cannot give a comprehensive legal answer to a question that im-
plies the rights of States not party to it. It follows that the persuasiveness
of the decision of 4 March 2009 depends on the strength of the reference
to the Security Council referral. Unfortunately, the Pre-Trial Chamber did
not develop what I shall call the ‘Security Council avenue’.
10.3.2. Negotiating Article 98(1) of the ICC Statute

As we have seen, the African Union Commission, in its protest against the
decisions of 12 and 13 December 2011, relied heavily on Article 98(1) of
the Statute and this provision is indeed relevant when it comes to the ar-
rest of the Head of a State not party to the Statute for the purpose of the
latter’s surrender to the ICC. According to the African Union Commis-
sion,
[A]rticle 98(1) was included in the Rome Statute establishing
the ICC out of recognition that the Statute is not capable of
21
The Pre-Trial Chamber’s reference to the Preamble may have been influenced by a
very similar reference made by Dapo Akande in his important and influential article
Akande, 2004, supra note 5, pp. 423–424. Contrary to the Pre-Trial Chamber, how-
ever, Akande carefully confines the legal effect per se of both the Preamble and Arti-
cle 27 of the ICC Statute to the legal relationship between the Court and States Parties
and between States Parties.

removing an immunity which international law grants to the

officials of States that are not parties to the Rome Statute. 22
This statement requires some qualification.
While it is true that the drafters of Article 98(1) of the Statute 23
were certain that a provision of the Statute could not take away a right
under international law of a State not party to it, the inclusion of Article
98(1) of the Statute does not express the drafter’s recognition of a cus-
tomary international law immunity for the Head of such States that would
prevent the Court from exercising its jurisdiction or at least prevent it
from requesting such a person’s surrender to a State Party. Instead, Article
98(1) of the Statute has been carefully worded so as to avoid any view on
this question of general international law. 24
Perhaps it is useful to recall the drafting history of Article 98(1) of
the Statute. The issue of conflicting immunities was a rather late arrival in
the negotiations on Part 9 and even the 1998 Draft Statute did not explic-
itly refer to the matter. 25 One group of delegations took the view that de-
velopments in general international law had substantively reduced, if not
eliminated, immunities with respect to crimes under international law
with respect to proceedings before the ICC. However, on the insistence of
some other delegations a provision on possibly conflicting immunities
was included. Yet, this inclusion did not occur, as consensus could not be
reached on the existence of certain immunities under general international
law. In Rome, there was simply no time for such a debate and so the ob-
vious way out was to not take a purely procedural decision on the matter
and instead to include an open-ended reference to general international
law as it exists at the given moment in time.
It is perhaps also worth stating that those delegations which were
sceptical about the inclusion of Article 98(1) of the Statute eventually saw
merit in having this provision. They felt that there is little evidence in
State practice that immunity rights pertaining to State or diplomatic prem-
22
Supra note 8.
23
Having been the member of the German delegation to the Rome Conference, who was
in charge of the negotiations on Part 9 of the Statute, I was among those drafters.
24
See Akande, 2004, supra note 5, p. 656.
25
Article 87, Option 2(e) of the 1998 Draft Statute can be read as to contain an implicit
reference to the matter; for the formulation, see Kreß and Prost, 2008, supra note 20,
p. 1602, marginal note 1.

ises or property had suffered from an exception pertaining to investigative

or other measures relating to proceedings for crimes under international
law. They also recognised that Article 27(2) of the Statute does not cover
those rights. This explains why, perhaps surprisingly for those not present
in Rome, State or diplomatic immunities concerning property were the
main driving force behind Article 98(1) of the Statute, and this explains
why the term ‘third State’ in Article 98(1) of the Statute refers not just to
States not party to the Statute, but to any State other than the requested
State. 26
One important first conclusion can be drawn from the drafting and
negotiation history of Article 98(1) of the Statute. In and of itself, this
provision provides no basis for a presumption that a certain international
law immunity exists. This holds even truer with respect to an international
law immunity covering a certain category of persons. In the same vein, it
follows that the interpretative presumption that a treaty provision should
retain an independent scope of application is inapplicable in the special
case of Article 98(1) of the Statute because, at least with respect to the
“State and diplomatic immunity of a person”, there was a widespread ex-
pectation and hope among the drafters that the open-ended reference to
international law in Article 98(1) of the Statute would leave the prohibi-
tion formulated herein “redundant, non-operational and meaningless” to
borrow the words used by the African Union Commission.
10.3.3. The Purpose and the Operation of Article 98(1) of the ICC
Statute and a Further Critique of the Decision of 4 March
2009
The purpose of Article 98(1) of the Statute is to prevent a State Party from
being confronted by a conflict between the duties; on the one hand, to co-
operate with the Court, and, on the other hand, to respect the international
law immunities of other States. Yet, as the preceding summary of the
drafting history was to demonstrate, there was uncertainty in Rome on the
extent to which any such conflict could at all arise, and Article 98(1) of
the Statute is no more than a procedural device to avoid a conflict of du-
ties in case there should be one.
26
Ibid., p. 1602, marginal note 9.

The way this procedural device has been construed is remarkable,

because it is the Court that has been entrusted by the drafters with the
competence to determine, as the cases arise, whether or not a request to
co-operate could place the State Party concerned in a situation of conflict-
ing duties. This decision is reflected in the wording of Article 98(1) of the
Statute because the prohibition contained therein is directed to the Court.
The latter may proceed with a request for surrender or assistance only af-
ter it has determined that the requested State could not run into a conflict
of duties as a result of the request. Rule 195, sub-Rule 1, of the Rules of
Procedure and Evidence confirms that this is the way Article 98(1) is
meant to operate because this sub-rule requires the State Party concerned
to provide the Court with “any information relevant to assist the Court in
the application of Article 98”. 27
It is noteworthy that the drafters of Article 98(1) of the Statute and
of Rule 195, sub-Rule 1, of the Rules of Procedure and Evidence were
fully aware that the Court would be able to make an authoritative deter-
mination only vis-à-vis States Parties, and that States not party would not
be bound by any decision of the Court under Article 98(1) of the Statute.
This provision therefore implies the remarkable decision by States Parties
to entrust the Court with the power to make a decision about the existence
or non-existence of “legal obligations [of those States] under international
law with respect to the State or diplomatic immunity of a person or prop-
erty”. Article 98(1) of the Statute therefore provides a powerful piece of
evidence for the determination of States Parties to establish a system of
collective justice with a strong vertical component. It would seem that a
good number of States Parties have accurately translated the procedural
scheme in Article 98(1) of the Statute into their respective piece of im-
plementing legislation. The fact that some other States Parties may have
acted differently is no sufficient reason to consider the emergence of a
subsequent practice deviating from the texts of Article 98(1) of the Statute
and Rule 195, sub-Rule 1, of the Rules of Procedure and Evidence. 28
27
For the same view, see Akande, 2004, supra note 5, pp. 431–432, who, in addition,
mentions Article 119(1) of the Statute in this context.
28
For a collection of country reports on the implementation of the co-operation duties
flowing from the Statute, see Claus Kreß, Bruce Broomhall, Flavia Lattanzi, and
Valeria Santori (eds.), The Rome Statute and Domestic Legal Orders. Volume II:
Constitutional Issues, Cooperation and Enforcement, Nomos/ilSirente, Baden-
Baden/Ripa di Fagnano Alto, 2005; for States which have legislated in line with Arti-

In its decision of 12 December 2011, the Pre-Trial Chamber fully

captures the way Article 98(1) of the Statute is meant to apply when it
states that “[t]he Republic of Malawi did not respect the sole authority of
this Court to decide whether immunities are applicable in a particular case
[emphasis added]”. 29 It is impossible to give similar praise to the decision
of 4 March 2009 issued by the same but differently composed Pre-Trial
Chamber. In the five paragraphs of the latter decision dealing with the
immunity issue, there is no mentioning of Article 98(1). In defence of this
silence, it cannot be said that those paragraphs only deal with my first in-
troductory question as to whether the Court may exercise its jurisdiction
over the Head of a State not party to the Statute and that those paragraphs
do not concern the triangular legal relationship between the Court, the
State Party to whom a request is made, and the non-State party that is the
sole subject matter of Article 98(1) of the Statute. To the contrary, the de-
cision of 4 March 2009 goes well beyond my first introductory question
and squarely addresses the above-mentioned triangular relationship by
directing the Registrar to prepare co-operation requests for States Parties
to arrest and surrender Al Bashir. The decision of 4 March 2009 should
therefore have addressed my second introductory question, and to not
have even begun to do so constitutes a significant omission. 30 The 12 De-
cember 2011 decision must therefore be read as the subsequent and laud-
able attempt to fill a regrettable gap in the earlier decision of the same
Chamber.
cle 98(1) of the Statute, see, by way of example, Canada (Kimberly Prost and Darryl
Robinson, ibid., pp. 61–62), Germany (Claus Kreß and Jan MacLean, ibid., p. 140;
New Zealand (Juliet Hay, ibid., pp. 254–255); for States whose implementing legisla-
tion would seem to leave room for a national decision in conflict with that made by
the Court, see again by way of example, Australia (Helen Brady, ibid., pp. 18–19);
Switzerland (Jürg Lindemann and Olivier Thormann, ibid., p. 440); United Kingdom
(Peter Lewis, ibid., p. 463).
29
ICC, 2011, supra note 7, para. 11.
30
For the same critique, see Akande, 2009, supra note 5, p. 337; even irrespective of the
missing analysis of Article 98(1) of the Statute, the five paragraphs of the 4 March
2009 decision dealing with the immunity issue are of a deplorably poor quality com-
pared to the importance and sensitivity of the question.

10.3.4. The Immunities Covered by Article 98(1) of the Statute

As was stated before, Article 98(1) of the Statute deals with international
law 31 of immunities with respect to persons or properties, and the concern
for the latter category of immunities was the driving force behind its in-
clusion in the Statute. The example that figured most prominently in the
negotiations was the customary inviolability of diplomatic premises as
codified in Article 22 of the Vienna Convention on Diplomatic Relations.
As far as persons are concerned, the term ‘State immunity’ in Arti-
cle 98(1) of the Statute requires some explanation. In the more recent
scholarly debate, an argument has been made that, contrary to what was
stated by the ICJ in the Djibouti v. France case 32, a clear conceptual dis-
tinction should be drawn between State immunity in civil proceedings and
immunity of State officials ratione materiae in criminal proceedings. 33
The sophisticated considerations underlying this argument do certainly
have merit and the ICJ has made it clear in its 3 February 2012 judgment
on the Jurisdictional Immunities of the State case that the international
law of immunities may recognise this distinction. 34 Yet, the postulated
distinction cannot be made with respect to the term ‘State immunity’ in
Article 98(1) of the Statute because this provision is part of the legal
framework for criminal proceedings and because the latter term explicitly
also refers to persons. The term ‘State immunity’ in Article 98(1) of the
Statute therefore covers the international law immunity ratione materiae
of a State official.
31
The reference to “obligations under international law [emphasis added]” makes it
plain that Article 98(1) of the Statute does not address domestic legal order immuni-
ties.
32
ICJ, 2008, supra note 1, p. 242, para. 188.
33
Gionato Piero Buzzini, “Lights and Shadows of Immunities and Inviolability of State
Officials in International Law: Some Comments on the Djibouti v. France Case”, in
Leiden Journal of International Law, 2009, vol. 22, p. 463, drawing on Natalino Ron-
zitti, “L’immunità funzionale degli organi stranieri dalla giurisdizione penale: Il caso
Calipari”, in Rivista di diritto internatzionale, vol. XCI, 2008, p. 1039.
34
International Court of Justice, Jurisdictional Immunities of the State (Germany v. It-
aly: Greece Intervening), Judgment, 3 February 2012, para. 91, available at
http://www.legal-tools.org/doc/674187/; for an excellent analysis of the limited im-
portance of this judgment for the international legal situation in criminal proceedings,
see Helmut Kreicker, “Die Entscheidung des Internationalen Grichtshofs zur Staaten-
immunität - Auswirkungen auf das (Völker-) Strafrecht?”, in Zeitschrift für Interna-
tionale Strafrechtsdogmatik, 2012, vol. 7, p. 116.

It must further be asked whether the term ‘State immunity’ also

covers the international law immunity ratione personae of Heads of State,
Heads of Government, Foreign Ministers and certain other holders of
high-ranking office of such a State. This was at the heart of the ICJ’s
judgment in the Arrest Warrant case. 35 While the ICJ did not elaborate in
this case on the distinction between the international law immunities ra-
tione materiae et personae of State officials in criminal proceedings, it
emphasised this distinction in the subsequent Djibouti v. France case. 36
The distinction between international immunities ratione materiae et per-
sonae would also seem to be generally accepted in State practice and in
international legal scholarship. 37 Important and generally recognised as it
thus is, the distinction between the international immunity of persons in
criminal proceedings ratione materiae et personae does not require the
interpreter of Article 98(1) of the Statute to confine this provision’s con-
cept of ‘State immunity of a person’ to international law immunities ra-
tione materiae. While both the scope and the rationale of the two types of
immunities are different, the Special Rapporteur of the ILC on the subject
of “immunity of State officials from foreign criminal jurisdiction” is right
to say that “[t]he State stands behind both the immunity ratione personae
of its officials from foreign jurisdiction and their immunity ratione mate-
riae”. 38 It is therefore warranted to construe the term of ‘State immunity
of a person’ in Article 98(1) of the Statute so as to cover both interna-
tional law immunities ratione materiae et personae. To do otherwise
would have the odd consequence that the most powerful international law
immunity, and so the one most likely to give rise to the conflict of duties
that Article 98(1) of the Statute seeks to avoid, would, except for the dip-
lomatic immunity ratione personae, remain uncovered. The resulting la-
cuna would then have to be filled by applying either the concept of ‘State
35
I shall not in this essay explore the meaning to be given to the words “certain other
holders of high-ranking office of such a State” which the ICJ used in ICJ, 2002, supra
note 1, pp. 20–21, para. 51.
36
ICJ, 2008, supra note 1, pp. 240–244, paras. 181–197.
37
By way of example, see, for the practice of the United States of America, Harold
Hongju Koh, “Foreign Official Immunity After Samantar: A United States Govern-
ment Perspective”, in Vanderbilt Journal of Transnational Law, 2011, vol. 44, pp.
1153–1154; for a useful exposition of the distinction, which he states is “usually
drawn”, see Roman Anatolevich Kolodkin, Preliminary report on immunity of State
officials from foreign criminal jurisdiction, 29 May 2008, A/CN.4/601, paras. 78–83.
38
Kolodkin, ibid., para. 94.

immunity of a person’ or that of ‘diplomatic immunity of a person’ by

way of analogy to, for example, Heads of State.39 Instead of resorting to
this complicated and artificial solution, it is suggested to interpret the term
‘State immunity of a person’ in Article 98(1) of the Statute so that it cov-
ers both international law immunities ratione materiae et personae.
10.3.5. A Short Digression: Article 98(1) and the Immunity Rights

of States Parties
It is perhaps useful to restate that the scope of application of Article 98(1)
of the Statute is not confined to the triangular legal relationship between
the Court, a State Party to whom a request is made, and a State not party
to the Statute. 40 Rather, the provision also covers the situation where the
request for arrest and surrender concerns an official of a ‘third’ State
Party present on the territory of another State Party (to whom a request
from the Court is directed) or where the request for co-operation other
than surrender is directed to the State or diplomatic property of a ‘third’
State Party which is located on the territory of another State Party (to
whom the Court has directed its request). 41
In the first situation, the prohibition contained in Article 98(1) of
the Statute will remain redundant, non-operational and meaningless be-
cause the ‘third’ State Party concerned has already waived its immunity
right by virtue of his acceptance of Article 27(2) of the Statute. It is not
convincing to interpret this provision more narrowly to the effect that it
applies only to the legal relationship between the Court and States Par-
ties. 42 If such an interpretation were accepted, Article 27(2) of the Statute
would enable the Court to issue an arrest warrant against a national of a
39
For an illuminating argument on the importance of the diplomatic immunity ratione
personae for the international law immunity ratione personae in general, see Mark A.
Summers, “Diplomatic Immunity Ratione Personae: Did the International Court of
Justice Create a New Customary Rule in Congo v. Belgium?”, in Michigan State
Journal of International Law, 2007–2008, vol. 16, p. 459.
40
For a different, albeit unconvincing view, see Paola Gaeta, “Official Capacity and
Immunities”, in Antonio Cassese, Paola Gaeta and John R.W.D. Jones (eds.), The
Rome Statute of the International Criminal Court: A Commentary, Oxford University
Press, Oxford, 2002, p. 991; Gaeta, 2009, supra note 5, p. 328.
41
Akande, 2004, supra note 5, p. 423; Kreß and Prost, 2008, supra note 20, p. 1606,
marginal note 9.
42
For a different view, see Kreicker, 2007, supra note 4, p. 1391.

State Party otherwise protected by an international law immunity, but Ar-

ticle 98(1) of the Statute would still require the Court to obtain a waiver
of immunity from this State Party before it could issue a request to arrest
or surrender to another State Party on whose territory the person sought is
present. In light of the fact that the Court has no enforcement powers and
that the State Party whose official is sought by an ICC arrest warrant will
typically be reluctant to co-operate with the Court when a higher ranking
official is sought by it, the need to obtain a waiver of immunity from this
State Party would often pose an insurmountable obstacle to the surrender
of the person concerned to the Court. This means that the practical effect
of Article 27(2) of the Statute would be largely nullified if this provision
governed only the relationship between the Court and the national State
Party of the suspect. To avoid such nullification in light with the Statute’s
overarching aim to end impunity, the waiver contained in Article 27(2) of
Statute must extend to the triangular relationship between the Court, the
requested State Party and the ‘third’ State Party. 43
The situation is different with respect to, say, the diplomatic prem-
ises of a ‘third’ State Party because such property is not covered by the
waiver contained in Article 27(2) of the Statute. Here, Article 98(1) of the
Statute may require the Court, depending on its evaluation of the existing
general international law, to first turn to the ‘third’ State Party in order to
obtain its ‘co-operation for the waiver of the immunity’.
10.3.6. Article 98(1) of the Statute and International Law

Immunities of Persons of States Not Party to the Statute
Having clarified the legal ground so far, I shall now turn my attention to
the burning question raised by the case against Al Bashir before the ICC.
It concerns the international immunity right of a State not party to the
Statute with respect to its incumbent Head of State. As the African Union
Commission rightly states, the immunity at stake is that ratione perso-
nae. 44 In its judgment on the Arrest Warrant case, the ICJ recognised that
43
This argument has already been well made by Akande, 2004, supra note 5, pp. 423–
425.
44
The case would in addition concern the immunity ratione materiae of the State of
Sudan with respect to acts of its Head of State if Al Bashir’s conduct, which forms the
subject matter of the proceedings before the Court, were to be qualified as official for
the purposes of the international law on immunities. Despite its most significant prac-
tical importance, I shall not deal with this controversial question of qualification in

the international immunity protection ratione personae is subject to an

exception for crimes under international law that are prosecuted in domes-
tic criminal proceedings. On the basis of this decision, the non-application
of the prohibition contained in Article 98(1) of the Statute requires an ex-
ception from the immunity right ratione personae of the State of Sudan,
which is specifically designed to cover the proceedings before the ICC.
There are two conceptually distinct avenues to arrive at such an ex-
ception. The first one is to rely on the legal effect of the Security Council
referral of the situation of Darfur (Sudan) to the Court. This avenue was
alluded to, but not explained in any detail, by the Pre-Trial Chamber in its
decision of 4 March 2009. The second one is to refer to a customary in-
ternational law exception to otherwise existing international law immuni-
ties of persons for the specific purpose of criminal proceedings before an
international criminal court. This avenue was chosen by the Pre-Trial
Chamber in its decisions of 12 and 13 December 2011. The African Un-
ion Commission rejected both avenues.
In the analysis that follows, I shall explore both possible avenues.
In doing so, I shall keep my two introductory questions in mind, and shall
each time distinguish between the bipartite legal relationship between the
Court and the State not party to the Statute, and the triangular legal rela-
tionship between the Court, the State Party to whom a request is made,
and the third State not party to the Statute.
10.3.6.1. The ‘Security Council Avenue’ for Arriving

at an Exception to the International Law Immunity
Ratione Personae
The African Union Commission rightly accepts that the Security Council,
based on its powers under Chapter VII of the U.N. Charter, may decide
that otherwise existing international law immunity rights do not apply
this essay and I shall also not deal with the equally important related question,
whether an international criminal law exception from the international immunity pro-
tection ratione materiae in cases of an alleged crime under international law exists
under customary international law. Such an exception would cover both foreign do-
mestic and international criminal proceedings and it could, within its reach, make the
prohibition of Article 98(1) of the Statute “redundant, non-operational and meaning-
less”. Suffice it to say that such an exception would not solve the issue in the case of
Al Bashir that goes beyond the reach of the customary international exception in ques-
tion.

with respect to certain proceedings before the ICC. The Commission,

however, holds that such a decision must be taken explicitly. This view is
unconvincing. Nothing in the U.N. Charter and more particularly in its
Chapter VII makes the validity of such a decision by the Security Council
dependent on the fact that is has been expressed explicitly. Nor is the ICC
bound by its Statute and more particularly by Article 98(1) to accept a
Security Council decision on the non-applicability of an immunity right
only if this decision has been made explicitly. Whether or not the Security
Council has decided that an otherwise existing international law immunity
shall not apply with respect to certain proceedings before the ICC, is
therefore a matter of construction of the relevant Security Council resolu-
tion.
Security Council Resolution 1593 of 31 March 2005 45, by which
the Council referred the situation in Darfur to the ICC, does not contain a
provision that deals explicitly with the international immunity rights of
the State of Sudan. The second operative paragraph of the resolution,
which is based on Chapter VII of the U.N. Charter, reads as follows:
Decides that the Government of Sudan and all other parties
to the conflict in Darfur, shall cooperate fully with and pro-
vide any necessary assistance to the Court and the Prosecutor
pursuant to this resolution and, while recognizing that States
not party to the Rome Statute have no obligation under the
Statute, urges all States and concerned regional international
organizations to cooperate fully.
As we have seen, the Pre-Trial Chamber, in its decision of 4 March 2009,
took this to mean that:
[...] the Security Council of the United Nations has also ac-
cepted that the investigation into the said situation, as well as
any prosecution arising therefrom, will take place in accor-
dance with the statutory framework provided for in the Stat-
ute, the Elements of Crimes and the Rules as a whole.
This is a sensible inference in light of the fact that the Security
Council not only referred the situation in Darfur to the Court, but that it
also required the State of Sudan to “cooperate fully” with the Court. By
borrowing the terms used in Article 86 of the Statute, the Security Council
expresses its intention to place the State of Sudan in a legal situation
45
S/RES/1593 (2005), 31 March 2005.

analogous to that of a State Party for the purposes of the proceedings that
result from the referral. It would go too far to demand that the Security
Council goes one step further and specifies that the Court should proceed
as if Article 27(2) of the Statute applied to the State of Sudan. Rather, this
effect is implied in the resolution. 46 This holds all the more true as the
Security Council could not be under any doubt that the Court would wish
to focus its investigation on those allegedly most responsible for the
crimes and that its investigation would thus likely concentrate on high
ranking officials of the State of Sudan. 47
The question remains whether the Security Council’s implicit deci-
sion to render inapplicable any international law immunity of the State of
Sudan for the proceedings resulting from the referral extends beyond the
relationship between the Court and the State of Sudan to the triangular
relationship between the Court, a State Party requested to co-operate with
the Court, and the State of Sudan. According to one commentator, this is
not the case. 48 Under this analysis, the Court was legally empowered to
issue an arrest warrant against Al Bashir, but, in accordance with Article
98(1) of the Statute, it should have obtained a waiver of immunity from
the State of Sudan before requesting a State Party to arrest and surrender
this high level suspect. This position is unconvincing. The better view
flows naturally from the above-explained interpretation of Article 27(2) of
the Statute. 49 The same interpretation must hold true when the Security
Council, acting under Chapter VII of the U.N. Charter, places a State not
party to the Statute in a legal situation analogous to that of a State Party.50
46
This argument has already been well put by Akande, 2009, supra note 5, pp. 340–342.
47
Helmut Kreicker, “Der Präsident des Sudan vor dem Internationalen Strafgerichtshof
– ein Verstoß gegen das Völkerrecht? Überlegungen zur völkerrechtlichen Immunität
von Staatsoberhäuptern anlässlich des Haftbefehlsantrages gegen Omar al-Bashir”, in
Humanitäres Völkerrecht – Informationsschriften, 2008, vol. 21, pp. 161–162.
48
Gaeta, 2009, supra note 5, p. 329.
49
Supra Section 10.3.5.
50
For the correct view, see again Akande, 2009, supra note 5, pp. 340–342; Kreicker,
2008, supra note 47, p. 163, argues that, whatever the correct interpretation of Article
27(2) of the Statute is, Resolution 1593 (2005) implies the decision to render any in-
ternational law immunity of the State of Sudan inapplicable also for the purpose of an
arrest executed by a requested State Party. For this reason alone, the prohibition con-
tained in Article 98(1) of the Statute is irrelevant in the case of Al Bashir. It must be
presumed, so the argument goes, that the Security Council wished to act consistently

To conclude, the Pre-Trial Chamber, in its 4 March 2009 decision,

alluded to a possible avenue to overcome any immunity challenge by the
State of Sudan both for the Court’s arrest warrant against Al Bashir and
any subsequent request by the Court to a State Party to arrest and surren-
der Al Bashir. It is thus particularly unfortunate that the Chamber pre-
sented its argument in such a superficial and incomplete fashion.
10.3.6.2. The ‘Customary Law Avenue’ for Arriving at an Exception

to the International Law Immunity Ratione Personae
As we have seen, in its decisions of 12 and 13 December 2011, the Pre-
Trial Chamber did not remedy the shortcomings of the 4 March 2009 de-
cision issued by the same (but differently composed) bench by setting out
the ‘Security Council avenue’ in a comprehensive manner. Instead, it fol-
lowed the ‘customary law avenue’ to explain that Al Bashir does not en-
joy immunity before the Court and that the latter could request Malawi
and Chad to arrest and surrender the suspect without the need to first ob-
tain a waiver of immunity from Sudan pursuant to Article 98(1) of the
Statute. There is much more than a technical difference between the two
explanations offered by the same Chamber. While the ‘Security Council
avenue’ is open only in case of a Security Council referral, the ‘customary
law avenue’ does not require Security Council action. It could be availed
whenever the Court may exercise its jurisdiction over an incumbent Head
of State not party to the Statute in accordance with Article 12(2) of the
Statute. For this practical reason alone, it is important to give close atten-
tion to the ‘customary law avenue’ for setting aside any international law
immunities of incumbent Heads of State, Heads of Government, Foreign
Ministers and certain other holders of high-ranking office of States not
party to the Statute. Such an exception would apply to proceedings before
the ICC and enable authorities of a State Party to arrest and surrender a
suspect falling into one of the aforementioned categories when trying to
adhere to such a request made by the Court.
10.3.6.2.1. The Relationship between the ICC and the State of Sudan
Importantly, the Pre-Trial Chamber, when setting out the ‘customary law
avenue’ in its decision of 12 December 2011, did not challenge the ICJ’s
by not only activating the ICC’s jurisdiction, but by also eliminating any potential key
obstacle to an effective exercise of this jurisdiction over those most responsible.

decision in the Arrest Warrant case that incumbent Heads of States,

Heads of Governments, Foreign Ministers and certain other holders of
high-ranking office enjoy immunity ratione personae in criminal proceed-
ings in a foreign State even in cases of an alleged crime under interna-
tional law. Instead, the Pre-Trial Chamber set out a customary law excep-
tion from the immunity right ratione personae for the specific and limited
purpose of proceedings before an international criminal court. The Pre-
Trial Chamber could feel encouraged by the ICJ’s decision in the Arrest
Warrant case to draw such a distinction between national and interna-
tional criminal proceedings for crimes under international law. In that
case, the ICJ held that:
[…] an incumbent or former Minister of Foreign Affairs may
be subject to criminal proceedings before certain interna-
tional criminal courts, where they have jurisdiction. Exam-
ples include the International Criminal Tribunal for the for-
mer Yugoslavia, and the International Criminal Tribunal for
Rwanda, established pursuant to Security Council resolu-
tions under Chapter VII of the United Nations Charter, and
the future International Criminal Court created by the 1998
Rome Convention. The latter’s Statute expressly provides, in
Article 27, paragraph 2, that ‘immunities or special proce-
dural rules which may attach to the official capacity of a per-
son, whether under national or international law, shall not
bar the Court from exercising its jurisdiction over such a per-
son. 51
It is well known that this passage is an obiter dictum and that the
Court included it in its judgment without adducing State practice based on
opinio juris in support of it and without in any other way explaining and
justifying its content. These facts, however, do not warrant the following
suggestion:
[T]he statement by the ICJ that international immunities may
not be pleaded before certain international tribunals must be
read subject to the condition (1) that the instruments creating
those tribunals expressly or implicitly remove the relevant
immunity, and (2) that the state of the official concerned is
bound by the instrument removing the immunity. 52
51
ICJ, 2002, supra note 1, pp. 25–26 (Nr. 61).
52
Akande, 2004, supra note 5, p. 418.

Whether or not correct as a description of the existing law, this is

simply not what the ICJ has said. To the contrary, the ICJ’s dictum, on the
face of it, supports the distinction drawn by the Pre-Trial Chamber and
only if one reads the ICJ’s ‘international criminal courts dictum’ as it is
worded, it substantially adds to the same Court’s separate ‘waiver dictum’
that immunity ratione personae does not apply in a case of waiver of that
immunity. 53
The ICJ’s ‘international criminal courts dictum’, in its literal form,
had been followed and developed by the Special Court for Sierra Leone in
its 2004 Charles Taylor jurisdiction decision. Therein, the Special Court
held:
[T]he principle seems now established that the sovereign
equality of states does not prevent a Head of State from be-
ing prosecuted before an international criminal tribunal or
court. 54
Interestingly, even the Special Rapporteur of the ILC on the subject
of “immunity of State officials from foreign criminal jurisdiction”, who
has otherwise formulated cautious views (to put it rather mildly), holds
the opinion that:
[i]mmunity from international criminal jurisdiction appears
to be fundamentally different from immunity from national
criminal jurisdiction. 55
China has made a similar statement in the Sixth Committee of the
United Nations General Assembly in 2008. The relevant sentence reads as
follows:
Immunity from criminal jurisdiction of a foreign State was
not the same as immunity from international criminal juris-
diction such as that of the International Criminal Court, and
the two should not be linked. 56
53
“[T]hey [the high-ranking State officials qualifying for immunity ratione personae]
will cease to enjoy immunity from foreign jurisdiction if the State which they repre-
sent or have represented decides to waive that immunity”; ICJ, 2002, supra note 1, p.
25.
54
Special Court for Sierra Leone, Prosecutor v. Charles Ghankay Taylor, Decision on
Immunity from Jurisdiction, 31 May 2004, SCSL-2003-01-I, para. 52, http://www.
legal-tools.org/doc/3128b2/, last accessed on 3 October 2012.
55
Kolodkin, 2008, supra note 37, para. 103.
56
A/C.6/63/SR.23, 21 November 2008, para. 35.

10.3.6.2.1.1. Principles
This, of course, provokes the question why international criminal pro-
ceedings should be seen as being “fundamentally different” from their
national counterparts. In fact, there would be no real difference at all if
international proceedings were simply the collective exercise of State
rights to conduct national proceedings. 57 Such a delegation model, how-
ever, is not the most convincing manner to conceptualise international
criminal justice stricto sensu. Instead, international criminal law in the
true (and narrow) sense of the word is ultimately based on the idea of a
jus puniendi of the international community as a whole and, as a matter of
principle, the exercise of this jus puniendi is therefore primarily entrusted
not to States, but to organs of the international community. 58 Those or-
gans constitute the direct embodiment of the ‘collective will’ and offer the
best guarantee that the enforcement of international community values
does not lead to notably hegemonic-abuses. This does not rule out the
power of States to exercise the jus puniendi of the international commu-
nity in the case of crimes under international law, but it explains the pos-
sibility that an international criminal court, which acts as an organ of the
international community in conducting proceedings for crimes under in-
ternational law, has wider powers than a national criminal court, which
acts as a mere fiduciary of the common good.
Yet, not every international criminal court qualifies as an organ of
the international community. It is fairly clear, for example, that France
and Germany cannot create an organ of the international community by
setting up a joint criminal court on the basis of a bilateral treaty. 59 The ICJ
is likely to have alluded to this fact by confining its “international tribu-
nals dictum” to “certain international criminal courts” [emphasis added]
and it is a shortcoming of the 12 December 2011 decision of the Pre-Trial
Chamber not to have accordingly confined its ‘customary law avenue’.
This brings us to the question of which international criminal courts may
57
For such a view, see Akande, 2004, supra note 5, p. 417.
58
International criminal law stricto sensu must ultimately be rooted in customary inter-
national law of a general nature; for the full exposition of this view, see Claus Kreß,
“International Criminal Law”, in Rüdiger Wolfrum (ed.), The Max Planck Encyclope-
dia of Public International Law, vol. V, Oxford University Press, Oxford, 2012,
paras. 10–14.
59
Up to this point, I agree with Nouwen, 2005, supra note 4, p. 656.

qualify as organs of the international community. 60 On an abstract level, it

can be said that only those courts should count, which can make a con-
vincing claim to directly embody the ‘collective will’. This is certainly the
case with international criminal tribunals set up by the Security Council
and the same should hold true for international criminal tribunals which,
as is the case with the Special Court for Sierra Leone, act with that Coun-
cil’s blessing. The case of the ICC is more difficult whenever this Court’s
exercise of jurisdiction has not been triggered by a Security Council refer-
ral. The obvious argument not to treat the ICC as an organ of the interna-
tional community is the lack of (quasi-)universal adherence to the ICC
Statute. On the other hand, it is impossible to deny that the ICC Statute
constitutes a legitimate attempt to establish an organ that directly exer-
cises the international community’s jus puniendi; the treaty has been ne-
gotiated on a universal level, it contains a standing invitation for universal
adherence, and it does not display elements lending themselves to a
(hegemonic) manipulation of the collective will. The fact that the ICC
Statute has attracted a very significant number of ratifications, that the
Security Council has referred two situations threatening international
peace and security to the ICC for investigation, and that the United Na-
tions have endorsed the vision behind Article 2 of the Statute through the
conclusion of the Relationship Agreement between the International
Criminal Court and the United Nations all add further weight to the view
that the ICC in substance, and despite its formal creation by treaty, de-
rives its mandate from the international community.
As a matter of principle, it is therefore possible to draw a distinction
between national criminal proceedings and proceedings before the ICC
with respect to international law of immunities. 61 It is important to add
that the principles outlined so far are not merely scholarly speculations
about ‘natural’ international law. Instead, the ‘international community’ is
a point of reference, not only in the fourth preambular paragraph of the
Statute, but also in Article 53 of the Vienna Convention on the Law of
60
Ibid., p. 657, does not believe a distinction between international criminal courts ac-
cording to the criterion “international community involvement” possible. It is readily
conceded that the elements listed in the following text do not amount to a watertight
concept. Yet, they will yield sensible results in practice and, in addition, they may be
refined in the future.
61
For the contrary view, see Akande, 2004, supra note 5, p. 417; Nouwen, 2005, supra
note 4, p. 657.

Treaties, in the famous ICJ’s dictum on international obligations erga om-

nes in Barcelona Traction case 62, and in Article 48(1)(b) of the ILC’s Ar-
ticles on State Responsibility. 63 Furthermore, there does not appear to be
disagreement with the concept that international criminal law stricto sensu
protects values belonging to the international community as a whole.
Up to this point, I have demonstrated no more than the possibility
that the ICC possesses wider powers than a national criminal court. It is
now necessary to have a closer look at the issue of international law im-
munities, and here again I shall do so on the level of principles first. Al-
most by definition, international criminal law stricto sensu poses a fun-
damental challenge to traditional international law immunities. To crimi-
nalise what is typically state-related conduct tends to run counter to the
old idea of shielding acts of States from foreign judicial scrutiny by
means of a procedural bar. The difficulty of reconciling traditional inter-
national law immunities with the very idea of international criminal law
stricto sensu becomes even more apparent once it is recognised that the
use of the international criminal law instrument is most important in cases
involving those persons who bear the greatest responsibility for what is
typically macro-criminality. For, those persons will often be precisely the
ones in respect of whom traditional immunity protection is strongest. It is
therefore no surprise at all that the International Military Tribunal at Nur-
emberg addressed the challenge upfront and clearly articulated the idea
that the acceptance of an international criminal law stricto sensu implies
the retreat of traditional international law immunities:
The principle of international law, which under certain cir-
cumstances, protects the representatives of a state, cannot be
applied to acts which are condemned as criminal by interna-
tional law. The authors of these acts cannot shelter them-
selves behind their official positions in order to be freed
from punishment in appropriate proceedings. Article 7 of the
Charter expressly declares:
62
ICJ (Belgium v. Spain: Barcelona Traction, Light and Power Company, Limited),
Judgment, 5 February 1970, ICJ Reports 1970, p. 32, paras. 32–33, available at
http://www.legal-tools.org/doc/75e8c5/.
63
James Crawford (ed.), The International Law Commission’s Articles on State Respon-
sibility. Introduction, Text and Commentaries, Cambridge University Press, Cam-
bridge, 2002, p. 276.

“The official position of Defendants, whether as

heads of State, or responsible officials in Government
departments, shall not be considered as freeing them
from responsibility, or mitigating punishment.”
On the other hand the very essence of the Charter is that in-
dividuals have international duties which transcend the na-
tional obligations of obedience imposed by the individual
state. He who violates the laws of war cannot obtain immu-
nity while acting in pursuance of the authority of the state if
the state authorizing action moves outside its competence
under international law. 64
The Nuremberg precedent, therefore, clearly sent out the message
that international criminal law stricto sensu implies an important restric-
tion on the traditional international law concept of State sovereignty.
While it has been, and continues to be, the key function of this concept to
allow scope for moral disagreement within a pluralist international legal
order, and while the international law concept of State sovereignty in-
cludes the protection of States against intrusions into their territory even
in cases of violations of international law 65 , the rules of international
criminal law stricto sensu draw the red line beyond which State sover-
eignty no longer provides an impenetrable shield for those acting on be-
half of the State.
The very idea of international criminal justice stricto sensu, which
is not simply a scholarly speculation about ‘natural’ international law, but
which has been accepted by States at Nuremberg, and which has been re-
vitalised by States since the 1990s, therefore poses a formidable challenge
to traditional international law immunities. Yet, the ICJ has authorita-
tively determined in the Arrest Warrant case that the traditional interna-
tional law immunity ratione personae holds firm in national criminal pro-
ceedings for crimes under international law. It is oversimplified to explain
the Arrest Warrant case’s qualification of the rigorously worded rejection
of immunities by the Nuremberg Tribunal on immunities by saying that,
in criminal proceedings in a foreign State, the right of the State of the of-
64
International Military Tribunal (Nuremberg), Judgment and Sentences, 1 October
1946, in The American Journal of International Law, 1947, vol. 41, pp. 172 and 221.
65
For a thoughtful exposition of this key function, see Brad R. Roth, Sovereign Equality
and Moral Disagreement: Premises of a Pluralist International Legal Order, Oxford
University Press, Oxford, 2011, pp. 3–130.

fender to sovereign equality trumps the jus puniendi of the international

community. A more convincing explanation would refer to the sovereign
right of States to be protected against an abusive (hegemonic) use of the
criminal law instrument by another State in the name of the international
community in those cases where such an abuse would have a seriously
destabilising effect on international relations. The message underlying the
ratio decidendi of the Arrest Warrant decision would seem to be that,
when it comes to persons enjoying international law immunity ratione
personae, the State sovereignty interest to be protected against an abusive
use of the criminal law instrument by a foreign State carries more weight
than the international community’s interest in the fiduciary exercise of
this community’s jus puniendi by such a State. At this point, the balance
may be struck differently in criminal proceedings before a judicial organ
of the international community. Such an organ may, of course, also fail in
its attempt to serve the interests of justice, but the institutional safeguards
against an abuse of the criminal law instrument are such that the interna-
tional community’s interest weighs heavier. In light of the preceding ob-
servations, the truth would appear to lie between the two extremes of say-
ing that the principle of sovereign equality has “no relevance to interna-
tional criminal proceedings which are not organs of a state but derive their
mandate from the international community” 66 and that “[i]t makes little
difference whether foreign states seek to exercise this judicial jurisdiction
unilaterally or through some collective body that the state concerned has
not consented to”. 67 The truth is that there is no ‘fundamental’ difference
between proceedings for crimes under international law conducted by a
State as the fiduciary of the international jus puniendi and by an interna-
tional criminal court that qualifies as an organ of the international com-
munity. There is, however, an appreciable difference regarding the institu-
tional framework for such proceedings that justifies treating the question
of international law immunities differently in both fora.
10.3.6.2.1.2. Practice and Opinio Juris Up to the Pre-Trial

Chamber’s Decision
The considerations so far were situated at the level of general principles.
Although those principles are not the result of scholarly speculation, but
66
Prosecutor v. Charles Ghankay Taylor, 2004, supra note 54, para. 51.
67
Akande, 2004, supra note 5, p. 417.

could be derived from international practice, they are not sufficient per se
to demonstrate that the ‘customary law avenue’ is open under the lex lata.
More specific practice based on opinio juris is needed to make the case.
This does not mean, however, that the above highlighted principles are
irrelevant to the question whether new customary international law has
come into existence. The development of international criminal law since
the 1990s provides clear evidence of the existence of what has been called
‘modern custom’ 68, the ascertainment of which usually involves a degree
of deduction from broader principles such as those established above 69. 70
Where such principles clearly point in the direction of new customary
law, the latter may crystallise without the need to identify a huge amount
of more concrete State practice and verbal State practice (the latter being
almost indistinguishable from opinio juris) and may largely take the place
of hard State practice in the traditional sense. Modern custom may thus
come into existence at a relatively high speed and without a voluminous
body of hard practice confirming the respective rule. Importantly, such
custom will, however, be relatively vulnerable to change if contrary hard
practice occurs. 71
68
The literature on the topic is vast and I do not wish to reproduce a complete list of it
here; for a very useful study with many further helpful references, see Anthea Eliza-
beth Roberts, “Traditional and Modern Approaches to Customary International Law:
A Reconciliation”, in The American Journal of International Law, 2001, vol. 95, p.
757; see also Anja Seibert-Fohr, “Unity and Diversity in the Formation and Relevance
of Customary International Law: Modern Concepts of Customary International Law
as a Manifestation of a Value-Based International Order”, in Andreas Zimmermann
and Rainer Hofmann (eds.), Unity and Diversity in International Law, Duncker and
Humblot, Berlin, 2006, p. 257, 264–270.
69
For some insightful reflections on the matter, see Matthias Herdegen, “Das ‘konstruk-
tive Völkerrecht’ und seine Grenzen: die Dynamik des Völkerrechts als Methoden-
frage”, in Pierre-Marie Dupuy, Bardo Fassbender, Malcolm N. Shaw and Karl-Peter
Sommermann (eds.), Völkerrecht als Wertordnung (Common Values in International
Law); Festschrift für (Essays in Honour of Christian Tomuschat), N.P. Engel Verlag,
Kehl, 2006, p. 899.
70
On the crystallisation of war crimes committed in non-international armed conflicts,
see Claus Kress, “War Crimes Committed in Non-International Armed Conflict and
the Emerging System of International Criminal Justice”, in Israel Yearbook on Hu-
man Rights, 2001, vol. 30, pp. 104–109.
71
On “relative resistance to change” and customary international law, see Michael
Byers, Custom, Power and the Power of Rules, Cambridge University Press, Cam-
bridge, 1999, pp. 157–160.

In its analysis of State practice on this point, the Pre-Trial Chamber,

like the Special Court for Sierra Leone before it 72, referred to Article 7 of
the Charter for the Nuremberg Tribunal, Article 6 of the Charter for the
Tokyo Tribunal, Principle III of the 1950 Nuremberg Principles, Article
7(2) of the ICTY Statute, Article 6(2) of the ICTR Statute and Article 7 of
the 1996 ILC Draft Code of Crimes against the Peace and Security of
Mankind. 73 One may wonder whether the Chamber was justified in rely-
ing on those documents despite the fact that they are all framed in terms
of substantive law and thus do not directly address the immunity issue
like Article 27(2) of the ICC Statute. While it is true that “[i]mmunity
from criminal jurisdiction and individual criminal responsibility are quite
separate concepts” 74 – so that the distinction drawn in the two paragraphs
of Article 27 of the ICC Statute marks progress in the clarity of drafting, it
is also true that the two concepts have not been neatly distinguished in the
earlier practice of international criminal law. 75 Beginning with the Nur-
emberg judgment, as can be seen from the above citation 76, the immunity
issue has been addressed in conjunction with the statutory provision that
confirms the applicability of the substantive law. It is therefore in line
with the historic development that the ILC states in its commentary on
Article 7 of the 1996 Draft Code of Crimes against the Peace and Security
of Mankind:
[…] the absence of any procedural immunity with respect to
prosecution or punishment in appropriate judicial proceed-
ings is an essential corollary of the absence of any substan-
tive immunity or defence. 77
72
Prosecutor v. Charles Ghankay Taylor, 2004, supra note 54, paras. 45–47.
73
ICC, 2011, supra note 7, paras. 24–32.
74
Kolodkin, 2008, supra note 37, para. 66.
75
This point has not received sufficient attention in Nouwen, 2005, supra note 4, pp.
660–668.
76
Cf. the citation preceding fn. 64.
77
Para. 6 of the Commentary on Article 7, in Gabrielle Kirk McDonald and Olivia
Swaak-Goldman (eds.), Substantive and Procedural Aspects of International Crimi-
nal Law, vol. II, part 1, Kluwer Law International, The Hague/London/Boston, 2000,
p. 354; in fn. 3, the ILC further notes:
Judicial proceedings before an international criminal court would
be the quintessential example of appropriate judicial proceedings
in which an individual could not invoke any substantive or proce-

It is also true that the language of the texts cited by the Pre-Trial
Chamber seems to extend to incumbent Heads of States et cetera without
drawing a distinction as to whether the State concerned can be said to
have waived its immunity rights in proceedings before the jurisdiction
concerned. In light of this, the Pre-Trial Chamber was justified to refer to
the aforementioned documents as relevant verbal State practice.
At the same time, it must be recognised that, until the Charles Tay-
lor decision, this verbal State practice did not yield any hard practice as
regards the international immunity ratione personae with the one single
exception of the ICTY’s arrest warrant against the then incumbent Head
of State Slobodan Miloševiü and the ICTY Trial Chamber’s decision con-
firming the jurisdiction of the Tribunal. 78 The precedential value of the
latter decision is somewhat weakened, however, by the fact that the
0LORãHYLü decision did not confront the legal issue of the immunity ra-
tione personae of the Federal Republic of Yugoslavia 79 as a distinct legal
problem. To the contrary, the ICTY Trial Chamber placed the pertinent
paragraphs of their decision under the title “Lack of competence by rea-
son of his status as former President” (emphasis added). As a result, the
decision does not clearly recognise that the 0LORãHYLü precedent exceeds
the denial of immunity ratione materiae concerning the conduct of a for-
mer Head of State before a judicial organ of the international community.
The only judicial decision that explicitly acknowledges setting such
a precedent before the 12 December 2011 decision of the Pre-Trial
Chamber is the Special Court for Sierra Leone’s Decision on Immunity
from Jurisdiction in the Charles Taylor case. 80 Importantly, this prece-
dent, to the best of this commentator’s knowledge, has not provoked a
protest from Member States of the African Union or from any other State.
It is, of course, possible to have different views on these materials
depending on the approach to the ascertainment of customary interna-
dural immunity based on his official position to avoid prosecution

and punishment.
78
ICTY, 3URVHFXWRUY0LORãHYLü, Decision on Preliminary Motion, 8 November 2001,
IT-99-37-PT, paras. 26–34, available at http://www.legal-tools.org/doc/f15771/.
79
Importantly, the Federal Republic of Yugoslavia was not a member State of the
United Nations at the time of 0LORãHYLü’s indictment. The case can thus not be ex-
plained on the basis of an (indirect) waiver of immunity of the State concerned.
80
Prosecutor v. Charles Ghankay Taylor, 2004, supra note 54.

tional law one believes to be the preferable one. 81 Under the modern posi-
tivist approach to customary international law, which I have set out above
for reasons of methodological transparency, a weighty case can be made
for the crystallisation of a customary international criminal law exception
from the international law immunity ratione personae in proceedings be-
fore a judicial organ of the international community. The case builds, as
has been developed in the course of the preceding observations, on the
combined effect of a set of guiding principles pertaining to the concepts
of ‘international community’ and ‘international criminal law stricto
sensu’ as accepted by States over the last decades, on a consistent line of
verbal State practice beginning with the Charter for the Nuremberg Tri-
bunal, on the 0LORãHYLü precedent before the ICTY (though with a some-
what limited effect), on the literal formulation of the ‘international crimi-
nal courts dictum’ of the ICJ in the Arrest Warrant case and on the culmi-
nation of all this in the Charles Taylor decision by the Special Court for
Sierra Leone and the absence of State protest against this decision in any
significant manner. However, it must be added that, according to my ap-
proach to the ascertainment of customary international law, this new cus-
tomary norm has come into existence with a relatively high vulnerability
to change because the hard practice that contributed to its crystallisation is
fairly scarce.
It is therefore necessary to inquire whether subsequent State prac-
tice challenged the new customary law exception to State immunity be-
fore the 12 and 13 December 2011 decisions of Pre-Trial Chamber I.
Clearly, Malawi and Chad have, through their conduct and their legal ob-
81
For a different approach on the subject, see Penrose, 2009–2010, supra note 4, pp.
85–144, who makes the general critique that “modern courts dogmatically overem-
phasize the hollow written words relating to head of state immunity and ignore the
empty actions or actual practice”. There is no explaining away of the methodological
difference between (for example) Penrose’s approach and the one preferred in this
chapter. Two specific comments, however, would seem in place. First, however one
evaluates the international practice in point, since the issuance of the indictment in the
0LORãHYLü case it is no longer possible to speak on ‘empty actions’. Second, Penrose
much overemphasises the fact that the Tokyo precedent on immunity, other than that
of Nuremberg, does not include the Head of State. While the latter is true, there is
nothing in the subsequent practice to suggest that Tokyo instead of Nuremberg should
be followed upon as far as Head of State immunity is concerned. After all, the Gen-
eral Assembly solemnly endorsed the Nuremberg principles soon after the judgment
and did not add any Head of State caveat pertaining to Tokyo.

servations before the Pre-Trial Chamber 82, posed such a challenge and the
same is probably true for the State of Sudan given the latter’s rigorous
opposition to the proceedings before the Court. The opposing practice of
three States cannot, however, on its own, turn back the development of
customary international law as analysed before. It would be different,
though, if all Member States of the African Union and, in particular, those
Member States which are not party to the ICC Statute, had endorsed this
challenge. At its thirteenth Ordinary Session (1–3 July 2009), the Assem-
bly of the African Union, in its Decision 245(XIII) formulated one request
and issued one decision on the subject-matter in question. The Assembly
requested:
[T]he Commission to convene a preparatory meeting of Af-
rican States Parties at expert and ministerial levels but open
to other Member States at the end of 2009 to prepare fully
for the Review Conference of States Parties scheduled for
Kampala, Uganda in May 2010, to address among others, the
following issues, […].
v.) Comparative analysis of the implications of the practical
application of Articles 27 and 98 of the Rome Statute; […].
The Assembly decided:
[…] that in view of the fact that the request by the African
Union [to defer the proceedings initiated against President
Bashir] has never been acted upon, the AU Member States
shall not cooperate pursuant to the provisions of Article 98
of the Rome Statute of the ICC relating to immunities, for
the arrest and surrender of President Omar El Bashir of The
Sudan; […]. 83
It is submitted that these formulations do not amount to the rejec-
tion of the ‘customary law avenue’ by all Member States of the African
Union in a manner that should have prevented Pre-Trial Chamber I to de-
clare this avenue open on 12 and 13 December 2011. The Assembly’s re-
quest to the Commission to prepare a legal analysis does not express a
legal position on the issue, but the wish to form such a position at a later
stage. It is not easy to harmonise this wish with the decision that Member
States of African Union shall not co-operate with the Court. On close in-
82
For these observations, see CPI, 2011, supra note 7, para. 7; ICC, 2011, supra note 7,
para. 8.
83
Assembly/AU/Dec.245(XIII) Rev.1, paras. 8 and 10, 3 July 2009.

spection, however, this decision cannot be read as the articulation of pre-

cisely that legal position which the request to the Commission was meant
to prepare. Instead, the decision is explicitly made “in view of the fact that
the request by the African Union [to defer the proceedings initiated
against President Bashir] has never been acted upon”. It is thus (and
somewhat curiously so) drafted as a political reaction to a prior (political)
decision by the Security Council. It is therefore not possible to read a suf-
ficiently clear, let alone unambiguous position of the Member States of
the African Union into Decision 245 (XIII). This assessment is confirmed
by the Report of the Second Ministerial Meeting on the Rome Statute of
the International Criminal Court (‘ICC’) held on 6 November 2009 the
pertinent passage of which states that,
Articles 27 and 98 of the Rome Statute should be discussed
by the Assembly of States Parties under the agenda item
“stock taking” in order to obtain clarification on the scope
and application of these Articles particularly with regard to
non States Parties. In this regard, there is need to clarify
whether immunities enjoyed by officials of non states parties
under international law have been removed by the Rome
Statute or not. 84
While perhaps not drafted with the utmost legal precision, this pas-
sage clearly does not contain a legal position on our subject matter. In-
stead, the Ministers once more emphasised the “need to clarify” the law.
This may reflect the fact that there appeared to be a lively discussion
among Member States of the A.U. about the right course of action on the
matter. 85 In sum, the practice of the Member States of the African Union
before 12 December 2011 has not been strong enough to change the new
customary law exception to the international law immunity ratione mate-
riae despite the latter’s vulnerability to change.
84
African Union, Min/ICC/Legal/Rpt. (II), p. 4 (R. 4), as annexed to EX.CL/568 (XVI).
85
For an illuminating overview, see Elise Keppler, “Managing Setbacks for the Interna-
tional Criminal Court in Africa”, in Journal of African Law, 2012, vol. 56, pp. 4–6.

10.3.6.2.2. The Triangular Relationship Between the ICC,

the Requested State and the State not Party
to the Statute
At this stage of the analysis again, there is a need to distinguish between
my two introductory questions. Therefore the question remains whether
the ‘customary law avenue’ was also open within the above triangular re-
lationship between the ICC, the requested States of Malawi and Chad, and
the State of Sudan with respect to the arrest and surrender of Al Bashir.
Pre-Trial Chamber I held that this was the case and it argued that,
[…] when cooperating with this Court and therefore acting
on its behalf, States Parties are instruments for the enforce-
ment of the jus puniendi of the international community
whose exercise has been entrusted to this Court when States
have failed to prosecute those responsible for the crimes
within this jurisdiction. 86
This argument is situated at the level of principles and at this level
it is convincing. While the State of arrest and surrender is formally exer-
cising its national authority, it is on substance acting for the Court to as-
sist the latter in the direct enforcement of the jus puniendi of the interna-
tional community. For this reason, there is an important difference be-
tween the Arrest Warrant case, where a State conducts national criminal
proceedings against a person suspected of having committed a crime un-
der international law, and the Al Bashir case, where a State party to the
Statute has been requested by the ICC to arrest and surrender a person
suspected of having committed a crime under international law for pro-
ceedings before the Court. Pre-Trial Chamber I was therefore justified to
believe that the principles underlying the customary law exception to the
international law immunity ratione personae cover the triangular relation-
ship in question.
There is, however, no precedent in hard practice covering this ex-
tension of the ‘customary law avenue’. This raises the methodological
question whether such a precedent is needed to defend the approach cho-
sen by the Pre-Trial Chamber. At this juncture once more, there is cer-
tainly room for disagreement between reasonable international lawyers
depending on how they draw the line between the necessary judicial re-
finement of rules of customary international law and inappropriate ‘judi-
86

cial legislation’. In my view, the extension of the ‘customary law avenue’

from the bilateral relationship between the Court and a State not party to
the Statute to the triangular relationship in question does not constitute the
recognition of a different rule of customary international law, but the de-
limitation of the scope of application of the same customary law excep-
tion to the international law immunity ratione personae. It is therefore
submitted that, in extending the ‘customary law avenue’ to the triangular
relationship in question, Pre-Trial Chamber I did not overstep the confines
of what constitutes legitimate international judicial activity.
10.3.6.2.3. The Practice within the African Union Subsequent

to the 12 and 13 December 2011 Decisions of Pre-Trial
Chamber I
Up to this point of the legal analysis, I have sought to demonstrate that, on
12 December 2011, Pre-Trial Chamber I had a good, although not com-
pelling, case to open the ‘customary law avenue’. At the same time, I
have recognised that the customary law exception underlying this avenue
is not yet firmly grounded in the international legal order, but retains a
relatively high vulnerability to change and has been challenged by at least
three States. In light of this latter fact, I shall now turn to the practice
within the African Union after 13 December 2011 to see whether this
practice has ‘closed the customary law avenue’ shortly after it had been
declared open.
On 9 January 2012, the African Union Commission published its
Press Release criticising the decisions of Pre-Trial Chamber I of 12 and
13 December 2011, the reference of which has repeatedly been made in
the course of this chapter. 87 This Press Release contains a protest against
the ‘customary law avenue’ because the Commission expresses its “deep
regret that the decisions rendered by Pre-Trial Chamber I on 12 and 13
December 2011 have the effect of […] [p]urporting to change customary
international law in relation to immunity ratione personae” [first empha-
sis added]. The African Union has, therefore, through one of its organs,
rejected the opening of the ‘customary law avenue’. This legal position
cannot, however, be attributed to the Member States of the African Union,
because the African Union possesses an international legal personality
which is distinct from that of its Member States, and because nothing in
87
Supra note 18.

the African Union’s Constitutive Act suggests that the Commission is

empowered to formulate and express its legal position on the international
law of immunities on behalf of the Union’s Member States. 88 It is also not
possible to attribute the conduct of the individual members of the Com-
mission to their national States because the Commission constitutes an
integrated (and not an intergovernmental organ) of the African Union.
Finally, there is no evidence that the African Union’s Assembly has
subsequently endorsed the Commission’s legal view. Quite the contrary,
there is evidence of some instances of an African State practice to the
contrary. On 23 January 2012, the High Court of Kenya issued a provi-
sional warrant of arrest against Al Bashir and the Court based its decision
of the request to arrest and surrender by the ICC. 89 In June 2012, the new
President of Malawi, Joyce Banda, announced that the State would not
host Al Bashir during the summit of the African Union. The Republic of
Botswana supported Malawi’s change of position and stated:
The Government of Botswana is deeply concerned about the
pressure exerted by the African Union Commission on the
Government of Malawi to commit to hosting President Al
Bashir at the forthcoming AU summit in July this year. Un-
fortunately, this pressure has consequently led to the Summit
being moved to Addis Ababa, thus depriving Malawi to host
the meeting. Botswana therefore condemns this action as it is
inconsistent with the very fundamental principles of democ-
racy, human rights and good governance espoused by the
AU, and which Malawi upholds. It is our considered view
that Malawi as a sovereign state has the right to make deci-
sions it may deem necessary in fulfilment of her obligations
under both the Rome Statute and the AU. In this regard, Bot-
swana will take the opportunity at the forthcoming AU
Summit to put its case across on this important matter of
principle. 90
In its most recent Decision on the Implementation of the Decisions on the
International Criminal Court, the Assembly:
88
In fact, as Keppler, 2012, supra note 85, vol. 56, p. 4, has shown, the stand taken by
the African Union Commission was not shared by all Member States of the Union.
89
A copy of the arrest is on file with the author.
90
A copy of the Press Release of Botswana’s Ministry of Foreign Affairs and Interna-
tional Cooperation of 12 June 2012 is on file with the author.

[e]ndorses the recommendation of the Meeting of Ministers

of Justice/Attorneys General to approach the International
Court of Justice (ICJ), through the United Nations General
Assembly (UNAG), for seeking an advisory opinion on the
question of immunities, under international law, of Heads of
State and senior state officials from States that are not Parties
to the Rome Statute of ICC [sic] and this regard [sic],
[r]equests the Commission to undertake further study on the
advisability and implications of seeking such advisory opin-
ion from ICJ [sic] and to report thereon to the Executive
Council. 91
This decision does no more than to restate the view of the Member
States of the African Union that the immunity issue is in need of clarifica-
tion and to point to a possible way to achieve it. There is thus clearly no
unanimity within the African Union on the matter and it is likely that the
debate in Africa will continue. Members of the civil societies are taking
an active part in this debate and it remains to be seen whether their argu-
ments may influence their governments. In Malawi, representatives of
national civil society organisations issued a noteworthy statement on 9
June 2012 that contains the following passages:
Informed that the Malawi government decided to not to host
the African Union summit this July following AU’s insis-
tence that our government must accept the attendance of the
Sudanese President, Omar Al Bashir in the face of a warrant
of arrest from the International Criminal Court for war
crimes charges in Darfur where thousands of people have
been killed and displaced;
Noting that earlier Sudan had already requested the AU to
shift the summit to Ethiopia after President Joyce Banda in-
dicated that Malawi would arrest al-Bashir if he came for the
summit. This also followed equal sentiments by other Prin-
cipled African countries such as South Africa, Botswana,
Zambia and Tanzania against Omar Al Bashir’s attendance
of the Summit.
Observing that while we have obligations to abide by deci-
sions of the AU, we are also under obligation to other inter-
national agreements including the Rome Statutes;
91
Assembly/AU/Dec.419(XIX), p. 1 (para. 3), 15/16.7.2012.

Recognizing that the government arrived at the decision with

the primary consideration of what is in the best interests of
Malawians as part of its effort to reposition the country’s im-
age to the international community and in fulfilment of the
international obligations placed on itself under the various
international instruments our government has accented to or
ratified.
[…]
Although it may be understood that the invested resources
into the hosting of the 19th Summit of the AU has gone down
the drain, we are still of the view that the decision is timely
and beyond our government’s control. More so, we believe
that this painful decision demonstrates our government’s
commitment to defending its human rights record and the in-
terests of Malawi against the potential economic gains asso-
ciated with hosting the Summit. 92
To summarise, the decisions of 12 and 13 December 2011 issued by
Pre-Trial Chamber I on the ‘customary law avenue’ have met with the
opposition of the African Union. In view of this practice, it cannot be said
that the two decisions have, as of yet, decisively contributed to consoli-
date the ‘customary law avenue’. Quite to the contrary, the ‘customary
law avenue’ has come under quite severe stress soon after its opening.
Yet, this avenue has not been closed as a result of the African Union
Commission’s protest because the latter has not been endorsed by the
Member States of the African Union. Instead, a number of those Member
States have recently made it clear that they are willing to execute the in-
ternational arrest warrant against Al Bashir. For the time being, the ‘cus-
tomary law avenue’ remains open without providing for an altogether safe
walking ground.
10.3.6.2.4. Another Short Digression: Some Remarks

on the Practice of States Parties on the ‘Customary
Law Avenue’
In the foregoing sections, no distinction has been made between the prac-
tice of States Parties to the Statute and other States. There is an important
92
The Civil Society Statement on Malawi’s Decision’s to Withdraw from Hosting the
19th Summit of the African Union of 9 June 2012 is on file with the author. The above
citation does not correct a couple of typos in the text.

qualification to be added to this analysis. As explained above 93, Article

98(1) of the Statute operates in a remarkably vertical manner and Pre-
Trial Chamber I rightly referred to the Court’s “sole authority to decide
whether immunities are applicable in a particular case”. 94 In light of this
verticality of the Statute’s scheme, it may well be asked whether States
Parties have agreed that the Court acts on their behalf when it comes to
the formation or identification of a customary law exception to the inter-
national law immunity ratione personae for proceedings before the Court.
Irrespective of the answer to this question, the Statute’s vertical scheme at
least implies a duty of States Parties to be loyal to the Court when the lat-
ter has made an attempt to clarify the relevant customary international law
in a way that is not manifestly mistaken. Indeed, it would amount to a
self-contradictory behaviour by States Parties to entrust the Court, by vir-
tue of Article 98(1) of the Statute, with the duty to clarify the relevant
customary international law and to then let the Court down once it has
fulfilled this duty in a manner that is not manifestly erroneous. In light of
the fact that the decisions of 12 and 13 December 2011 constitute an at-
tempt to clarify the law which is not manifestly mistaken, the duty of loy-
alty which States Party owe to the Court with respect to its application of
Article 98(1) of the Statute includes the reasoning underpinning these de-
cisions.
10.4. Concluding Remarks

This chapter has set out and analysed two avenues to explain why the in-
ternational law immunity ratione personae of States not party to the Stat-
ute is inapplicable before the ICC, and why this immunity does also not
prevent the Court from requesting a State party to arrest and surrender a
suspect, who is otherwise enjoying such an immunity. While the ‘Security
Council avenue’ constitutes solid legal ground, the same cannot, as of yet,
be said of the ‘customary law avenue’. According to the view set out in
this chapter, this avenue is now open, but it does not yet offer a solid
walking ground due to the relative scarcity of hard practice in support of it
and because of the African Union Commission’s protest against its open-
ing.
93
Supra Section 10.3.3.
94

I will not pretend that my defence of Pre-Trial Chamber I’s opening

of the ‘customary law avenue’ is a compelling one, and I seriously doubt
that a compelling defence is possible at this stage of the development of
the law. To the contrary, I believe that the current state of customary in-
ternational law leaves room for disagreement between reasonable interna-
tional lawyers. My modest ambition has been to show that the African
Commission went much too far when it criticised the opening of the ‘cus-
tomary law avenue’ by Pre-Trial Chamber I as “ill-considered”.
At this final juncture, I wish to also add that the African Union
Commission’s portrayal of the decisions of 12 and 13 December 2011 as
“self-serving” constitutes an unhappy formulation at best. In fact, it would
have been the easier way out for Pre-Trial Chamber I to confine its rea-
soning to the ‘Security Council avenue’ in order to minimise the risk of
any serious controversy with States not party of the Statute. For this rea-
son alone it is hard to see why Pre-Trial Chamber I should have been
misguided by institutional interests when it entered into the thorny terrain
of customary international law. Very much to the contrary, the ‘customary
law avenue’ is in full harmony with principles which have been solemnly
referred to by States time and again since Nuremberg and which have
been directing the development of international criminal law since then.
Furthermore, the ‘customary law avenue’ makes the ICC less dependent
on the Security Council in order to effectively exercise its jurisdiction
over incumbent Heads of State not party to the Statute. Compared to the
‘Security Council avenue’, the ‘customary law avenue’ thus enables the
Court to exercise its jurisdiction less asymmetrically and such an advance
in the equal application of international criminal law is not “self-serving”,
but serves the legitimacy of the emerging system of international criminal
justice. While this is, of course, a matter of speculation, the said advance
in the equal application of international criminal law may well have been
the most important motivation for Pre-Trial Chamber I on 12 December
2011 not to confine its reasoning to the confirmation of the ‘Security
Council avenue’, but to also open the ‘customary law avenue’ and to even
place it in the foreground.
Whether or not one agrees with the position taken by Pre-Trial
Chamber I on the ‘customary law avenue’, this Chamber’s decisions of 12
and 13 December 2011 have certainly moved the development to a law-
crystallising point. At this important moment in time, the suggestion sub-
mitted by the Member States of the African Union to request the ICJ to

render an advisory decision on the matter deserves the closest attention.

This suggestion does not imply any disloyalty towards the ICC, but duly
recognises the fact that the Court’s “sole authority” under Article 98(1) of
the Statute does not extend to States not party to the Statute. Of course, an
advisory opinion of the ICJ would, by definition, not carry any binding
legal force. The authority of the ICJ, however, is such that it would be
difficult to criticise the ICC if it followed the advice rendered by the ICJ
whatever its content. At the same time, the proceedings before the ICJ
would provide all States with the opportunity to set out their opinio juris
on the matter and the ICJ would be given the chance to clarify its some-
what oracular ‘international criminal courts dictum’ in the Arrest Warrant
judgment. 95 This is not the place to enter into a debate about the technical
details and the best timing for a request for an advisory opinion. It suf-
fices to conclude that the Member States of the African Union are to be
commended for having submitted a most constructive proposal to clarify
the difficult legal question under scrutiny in this chapter.
In November 2008, China stated in the Sixth Committee of the
United Nations General Assembly that the ILC’s topic “Immunity of State
officials from foreign criminal jurisdiction” is “an important one, in view
of the need to maintain the international legal order and the stability of
inter-State relations”. 96 I believe that this statement holds true also with
respect to the topic under consideration in this chapter. To conclude this
chapter, I wish to add that the particular difficulty of the topic of immuni-
ties and international criminal law resides in the fact that, at times, the
maintenance of the international legal order, on the one hand, and the sta-
bility of inter-State relations, on the other hand, may prove to be conflict-
ing goals. Clearly, the international criminal proceedings against Al
Bashir adversely affect the stability of the relations of all those States
which support those proceedings, with the State of Sudan, as long as Al
Bashir stays in power. At the same time, however, those criminal pro-
ceedings aim at the maintenance and at the strengthening of the noyau dur
of the international legal order. The difficult policy question is therefore
where to strike the balance. In its Arrest Warrant case, the ICJ gave pref-
erence to the stability of inter-State relations as far as national criminal
proceedings and the international law immunity ratione personae are con-
95
For this dictum, see ICJ, 2002, supra note 1.
96
A/C.6/63/SR.23, 21 November 2008, para. 32.

cerned. I accept the wisdom of this judgment, not only on legal, but also
on legal policy grounds. In its decisions of 12 and 13 December 2011, the
Pre-Trial Chamber I of the ICC has followed the precedent set by the
Special Court for Sierra Leone and has struck the balance differently as
far as criminal proceedings before a direct judicial embodiment of the in-
ternational community are concerned. I have attempted to show that this
way of ‘striking the balance’ is defensible on legal grounds. I now wish to
add that it seems convincing to so strike the balance on legal policy
grounds. This legal policy view is, however, premised on the expectation
that the scope of substantive international criminal law stricto sensu will
remain strictly and narrowly confined, and that the ICC will refrain from
‘progressively’ developing this body of law without giving due considera-
tion to the consequences in sensitive adjacent fields such as the law of
immunities. The need for such caution is imperative, in particular, with
respect to the interpretation of crimes against humanity.
Taken seriously, international criminal law stricto sensu comes at a
price with respect to the stability of inter-State relations. I believe this
price is worth paying, provided that the scope of application of substan-
tive international criminal law stricto sensu will not be diluted, but re-
mains confined to the conduct that constitutes a fundamental assault to the
noyau dur of the international legal order.

INDEX
A absolute immunity for heads of state,
61
A.U.. See African Union difference with Al Bashir case, 257
A.U.-E.U. Expert Report immunities, 144
African concerns, 134 immunity from criminal jurisdiction of
concerns, 143 foreign nations, 50
recommendations, 135 legality of the exercise of universal
view of European states, 134 jurisdiction, 195
A.U.-E.U. Ministerial Troika, 197 sovereign immunity, principle of, 56
Act concerning the Punishment of Grave subsidiarity principle, 141
Breaches of International treaty-based crime, 88
Humanitarian Law, 158 Assembly of State Parties, 100
act jure gestionis, 47 Assembly of the African Union
act jure imperii, 47 Decision 245 (XIII), 256
act of aggression Ordinary Session (1–3 July 2009), 255
actus reus, 110 attacks with explosives, 172
criminalisation, 107, See Audencia Nacional, 141
criminalisation of aggression Australia, 200, 201, 209
criticism, 103 War Crimes Act (1945), 165
definition, 101 Austria, 200, 201
key issue, 101 aut dedere aut judicare, 81, 131, 168, 208
mens rea, 111 aut dedere aut punire, 151
purpose of criminalisation, 108 Azerbaijan, 201, 203
purpose of defining, 104
action popularis, 143
Acts of Nuclear Terrorism, 171
B
Addis Ababa, 197, 198 BAI Guimei, 174
African Union Commission, 233 Banda, Joyce, 259
aggression, 171 Barcelona Traction case, 42
aircraft hijacking and unlawful acts international obligation erga omnes,
against international air safety, 172 248
Akande, Dapo, 64 Bassiouni, M. Cherif, 171
Al Bashir, Omar, 52, 260 28 international crimes, 171
Al-Adsani v. U.K., 89 Beccaria, 176
Algeria, 200, 202 Belarus, 201
Alien Tort Statute, 82 Belgian Act on Punishment of Grave
Al-Qaida, 106 Breaches of International
apartheid, 172 Humanitarian Law, 195
Argentina, 200, 202, 203, 210 Belgium, 200, 201, 202
Armenia, 201 Belgium v. Senegal, 38
Arrest Warrant case, 41 Bergsmo, Morten, 18
absence of customary rule denying BIN Cheng, 79
immunity, 80 Blair, Tony, 36
Bolivia, 201

Bosnia and Herzegovina, 203 Constitutive Act of the African Union

Botswana, 203, 259 Article 4(h), 206
bribery of foreign public officials, 172 Convention against Enforced
Browne-Wilkinson, 61 Disappearance, 131
Bulgaria, 201 Convention against Torture, 50, 131
Burkina Faso, 200 Convention for the Suppression of
Bush, George W., 36 Unlawful Seizure of Aircraft. See The
Hague Convention
Convention on Jurisdictional Immunities
C of States and Their Property, 76
Cameroon, 201 Convention on the Elimination of All
Canada, 201 Forms of Racial Discrimination, 50
CANZ, 200 Convention on the Non-applicability of
Case Concerning the Arrest Warrant of 11 Statutory Limitations to War Crimes
April 2000. See Arrest Warrant case and Crimes against Humanity, 163
Cassese, Antonio, 154, 160 Convention on the Prevention and
Charles Taylor jurisdiction, 245 Punishment of Crimes against
Charter of the International Military Internationally Protected Persons,
Tribunal including Diplomatic Agents, 50
Article 6, 97 conventions of international criminal law
CHEN Zhonglin, 185 functions, 166
Chile, 201 Costa Rica, 200, 201, 216
China, 200, 201, 202, 209, 215 crime against peace
accession to international conventions, definition, 108
180 crime of aggression
application of universal jurisdiction in characteristics, 25
criminal law, 180 contextual element, 25
Constitutional Law, 157 criticisms, 98
Criminal Law, 157 definition, 25, 98, 107
Criminal Law Article 9, 170 exercise of jurisdiction, 116
Criminal Law characteristics, 182 gravity test, 113
Cultural Revolution, 17 humanitarian intervention exception,
exercise of foreign jurisdiction, 3 115
Extradition Law Article 7, 179 intent, 112
international crimes, 184 Iraq, 33
Judicial Regulations on War Crimes, leadership. See also leadership element
165 leadership element, 26, 108
Opium War (1839), 4 legal constraints, 99
Taiping Rebellion, 4 legality, principle of, 100
Universal Jurisdiction Based on limits of jurisdiction, 124
Customary International Law, 183 precondition to exercise jurisdiction,
violation of international obligation, 29
183 reality of international politics, 127
China Foreign Affairs University, 14 scope, 114
Colombia, 203 scope of jurisdiction, 118
comity, principle of, 46 temporal limitation, 125
Congo v. Uganda, 122 threshold clause, 112
Congo, Democratic Republic of the, 200, threshold requirements, 27
202, 204

Index
unilateral humanitarian intervention, Draft Articles of the ILC on

115 Responsibility of States for
zero-sum game, 125 International Wrongful Acts, 76
crimes against humanity, 171 Draft Code of Crimes against the Peace
Crimes against the Peace and Security of and Security of Mankind, 28, 104
Mankind
Draft Code, 59
crimes against United Nations and
E
associated personnel, 172 E.U.. See European Union
crimes of aggression East Timor
establishment of definition, 24 Regulation No. 2000/15 on the
Criminal Code of Japan Establishment of Panels with
Article 4(2), 170 Exclusive Jurisdiction over Serious
criminal justice Criminal Offenses, 164
requirements, 4 Egypt, 201
criminalisation of aggression Eichmann case, 39
enforcement mechanism, 126 jurisdictional links, 193
Cryer et al., 55 Eichmann, trial of, 159
Cuba, 201, 202 El Salvador, 200, 201, 202, 203
customary law avenue Encyclopedia Sinica Volume of Law, 15
advantages, 263 Estonia, 201
function, 263 Ethiopia, 200, 201, 202
Cyprus, 201, 203 European Convention on the Non-
Czech Republic, 201, 202 applicability of Statutory Limitations
to Crimes against Humanity and War
D Crimes, 164
European Union, 99
Decision of 12 December 2011 (Al
Bashir)
application of Article 98(1), 235
F
Decision of 4 March 2009 (Al Bashir) falsification and counterfeiting, 172
initial critique, 231 financing of terrorism, 172
Security Council avenue, 231 Finland, 200, 201, 202
Declaration of Friendly Relations, 27 forum deprehensionis, 137
Demjanjuk, trial of, 159 France, 200, 201
Democratic Republic of the Congo v. French Code of Criminal Procedure,
Rwanda, 90 170, 195
Denmark, 201 Frigaard, Siri, 146
destruction and/or theft of national
treasures, 172
Diplomatic Conference, 100 G
'MDMLü1RYLVODY, 136 GAO Mingxuan, 173, 182
Djibouti v. France case, 83, 236, 237 General Assembly
Djibouti, Republic of, 83 Principles of International Law
Dongwu University Law School Recognised in the Charter of the
(Shanghai), 13 Nuremberg Tribunal and in the
Dönitz, Karl, 23 Judgment of the Tribunal, 58
double jeopardy, principle of, 133 Resolution 2749, 42
Resolution 3314 (XXIX), 25, 99, 103

Resolution 95(I), 27 Article 9, 167

role in determining aggression, 34 International Convention for the
Sixth Committee, 264, See Sixth Suppression of Terrorist Bombings
Committee Article 6(5), 166
The Scope and Application of the International Convention for the
Principle of Universal Jurisdiction, Suppression of the Financing of
191 Terrorism
Geneva Conventions, 131, 164 Article 10(1), 173
genocide, 171 Article 9(2), 173
German Criminal Code, 14 International Court of Justice
Section 7(2), 175 diplomatic disputes on universal
German Peace Treaty. See Treaty of jurisdiction, 195
Versailles (1919) international criminal courts dictum,
Germany, 200, 201, 202 245
Germany v. Italy private acts, 57
Greece Intervening, 38, 51, 91 International Covenant on Civil and
Gertrude, 136 Political Rights
Ghana, 202, 215 Article 14(3)(d), 144
Grotius, Hugo, 150 International Crimes and International
Group of African States, 200 Criminal Court Act (New Zealand),
Guang Huali (dormitory), 13 162
Guatemala, 200, 201 International Criminal Court
competence to determine act of
aggression, 35
H crimes within jurisdiction of the Court,
Habré, Hissène, 62, 136, 195 132
Habyarimana, Juvenal, 196 customary law avenue, 257
Henzelin, Marc, 154 difference with the international ad
Holy See, 202 hoc tribunals, 68
Diplomatic Conference (1998), 24
jurisdiction over crime of aggression,
I 98
ICC. See International Criminal Court, sole authority under Article 98(1), 264
See International Criminal Court subject-matter jurisdiction, 148
immunities triangular relationship, 257
diplomatic and consular, 46 triggering mechanisms of jurisdiction,
institution, 46 29
persons of states not party to the Rome widespread recognition, 64
Statute, 239 international criminal institutions
Rome Statute Article 98(1), 236 commitment to end impunity, 131
special missions, 46 International Criminal Justice
state officials, 82 waiver dictum, 245
State officials, 84 international criminal justice stricto sensu,
Indonesia, 200 246, 249
Institute of International Law, 15, 139 international criminal law
International Convention for the crime of aggression. See crime of
Suppression of Acts of Nuclear aggression
Terrorism, 172 criminal immunity. See immunities
Article 11(1), 169 universal jurisdiction, 21

Index
international criminal law convention jurisfaction, 79

penal characteristics, 171 just-war ideology, 125
international criminal law stricto sensu,
254
International Criminal Tribunal for
K
Rwanda Kabuye, Rose, 196, 197
equal measure to mass-atrocity, 3 Kenya, 200, 201
International Criminal Tribunal for the Kisito, Maria, 136
former Yugoslavia Kissinger, Henry A., 1
establishment, 2 Koudj-Gaou, Djimnain, 62
international custom Kuwait, 201
material element, 156
psychological element, 156
International Institute of Strategic Studies, L
106 Law of War and Peace, 151
International Law (Alfred Verdross), 14 leadership element
International Law Commission, 59, 76, ‘shape’ or ‘influence’ standard, 109
104, 134 Article 8bis, 110
international law immunity controversies, 109
customary law avenue, 230, 243 effective control or direct, 109
Security Council avenue, 230, 240 requirement, 108
International Military Tribunal for the Lebanon, 200, 201, 203
Trial of German Major War Criminals legality, principle of, 185
(Judgment), 14 lex ferenda, 222
International Military Tribunal of lex lata, 222
Nuremberg, Charter of the LI Haopei, 13, 165
Article 7, 57 Libya, 200, 202
international traffic in obscene materials, Liechtenstein, 200
172 Lithuania, 203
Introduction to the Law of Treaties (LI LIU Daqun, 157
Haopei), 15 London Charter of the International
inviolability of heads of state, 57 Military Tribunal
Iran, 200, 201 Article 6, 108
Iran v. U.S.. See oil platform case Lotus case, 39, 41
Iraq, 201
Israel, 200, 201, 209
Italy, 200, 201 M
Malawi, 201, 235, 259
J Malaysia, 200, 201, 209
Malta, 201
Jiangxi (province), 17 Mauritius, 201
Jones v. Saudi Arabia, 82, 87 May Seventh Cadre School of the
-RUJLü1LNROD, 136 Ministry of Foreign Affairs, 13
judicial intervention mercenarism, 172
negative and positive biases, 4 Mexico, 200
jurisaction, 79 0LORãHYLü decision, 253
jurisdiction 0LORãHYLü6ORERGDQ
elements, 79 MNACs, 200
fundamental rights of a state, 149 mood of triumphalism, 1

N Pinochet, Augusto, 35, 136

piracy, 172
Napoleonic Code, 14 Portugal, 201
National Book Foundation, 15 Preparatory Commission for the ICC, 100
nationality principle, 150 Princeton Principles on Universal
Nazis and Nazi Collaborators Jurisdiction, 138
(Punishment) Act, 158 serious crimes, 160
Ndombasi, Abdoulae Yerodia, 163 universal jurisdiction (definition), 159
Netherlands, 201, 202 Princeton University, 39
New Zealand, 162, 201 Private International Law (Martin Wolff),
Nicaragua case, 205, 220 14
Nicaragua v. U.S.. See Nicaragua case prohibition of analogy, principle of, 186
Nigeria, 200 punishment
Non-Aligned Movement, 99 concept, 4
Norway, 200, 201, 202
Ntayamira, Cyprien, 196
Nuclear Weapons case, 204
R
Nuremberg Charter red light proposal, 31
Article 6, Section 1, 25 responsibility of Great Powers, 127
Nuremberg principles of international law, Reydams, Luc, 154
27 Rio Group, 200
Nuremberg Trial Rome Statute
jurisprudence, 98 adoption of (Kampala) Amendments,
98
O amendments to the crime of
aggression, 22
obiter dictum, 244 Article 12(3), 148
obligation erga omnes, principle of, 39, Article 13(b), 70
42 Article 15bis and ter, 116
Offenses at Sea Act, 152 Article 16, 119
oil platform case, 122 Article 17(1)(a), 142
On China, 1 Article 21(1), 156, 227
Oppenheim, L., 153 Article 27, 62, 87
organised crime, 172 Article 27(2), 233, 242
Article 98, 144
Article 98 agreements, 52
P Article 98(1), 66, 86, 87
pacta sunt servanda, 166 challenging admissibility, 142
pacta tertiis nec nocent nec prosunt, complementarity, 132
principle of, 166 duty of every State, 132
Palestine, 202 effective prosecution, 132
Palestine Liberation Organization, 120 First Review Conference, 97
par in parem imperium non habet, immunities, 144
principle of, 56 Impunity, 132
Paraguay, 203 Kampala, 97
Peking University Law School, 191 Preamble, 132
Peru, 200, 201 purpose of Article 98(1), 233
Philippines, 203 scope of application of Article 98(1),
Pinochet case, 39, 87 238

Index
Rome Statute (Amendments) twenty-fifth meeting (12 November

Article 8(2) bis, 101 2009), 200
Rules of Procedure and Evidence twenty-ninth meeting (9 November
Rule 195(1), 234 2011), 204
Rumsfeld, Donald, 137 slavery and slave-related practices, 172
Russia, 200, 202 Slovakia, 200
Rwanda, 200, 201, 202 Slovenia, 200, 201, 202, 203
South Africa, 200, 201, 202
Implementation of the Rome Statute of
S the International Criminal Court
Schabas, William, 65 Act 2002, 156
Security Council South Korea, 201, 202, 210
Chapter VII, 3 sovereign equality, principle of, 46
dictatorship, 122 Soviet Law of Evidence, 14
exercise of power, 32 Spain, 200, 202, 203
'post-sovereign' invervention, 3 Special Court for Sierra Leone
relationship dilemma with the ICC, fundamental flaws, 65
123 Special Working Group on the Crime of
Resolution 1593 (2005), 73, 241 Aggression, 24, 100
Resolution 326 (1973), 33 state immunity
Resolution 387 (1976), 33 attributability, 93
Resolution 405, 33 attributability of state responsibility,
Resolution 573, 33 77
Resolution 667 (1990), 33 debate in practice and theory, 75
Resolution 827 (1993), 2 jus cogens, scope of, 93
role in State referral and initiation of State immunity
investigation, 120 concept according to Article 98(1),
Senegal, 200, 202 237
Senegal, Republic of, 195 ratione materiae et personae, 237
Shanghai Dongwu University Law ultimate effect, 86
School, 13 state sovereignty
SHAO Tianren, 18 risk of over-extension, iii
Sharm El-Sheikh, 197 State sovereignty
Sharon, Ariel, 36, 163 conceptual tension, 4
Shaw, Malcolm M., 152 ICC Review Conference (2010), 5
Sixth Committee immunity, 5
eleventh meeting (14 October 2010), universal jurisdiction, 5
202 Statute of the International Court of
seventeenth meeting (21 October Justice
2011), 203 Article 38(1)(b), 155
tenth meeting (13 October 2010), 201 subsidiarity principle
thirteenth meeting (12 October 2011), arguments in favour, 140
203 Sudan, 200, 216
twelfth meeting (12 October 2011), Suzhou, 17
203 Swaziland, 200
twelfth meeting (15 October 2010), Sweden, 201, 203, 210
202 Switzerland, 200, 201, 203
twelfth meeting (20 October 2009), Sword of Damocles, 105
200

T of an International Criminal Court in

Rome, 100
taking of civilian hostages, 172 United Nations Secretary-General’s High-
Tanzania, 198, 200, 202, 219 level Panel on Threats, Challenges and
territorial principle, 40, 150 Change, 106
Thailand, 200, 202, 209 United Nations Security Council. See
The Hague Convention Security Council
Article 7, 168 United States, 200, 201, 202
The Schooner Exchange v. McFadddon, universal civil jurisdiction, 149
82 universal jurisdiction
theft of nuclear materials, 172 absolute, 40, 137, 217
threat and use of force against arguments in favour and against, 132
internationally protected persons, 172 based on customary international law,
Togo, 200 155
torture and other forms of cruel, inhuman based on domestic law. See universal
or degrading treatment, 172 jurisdiction based on domestic law
Treaty of Versailles (1919), 22 based on international treaty. See
Tunisia, 200, 201, 202 universal jurisdiction based on
Turkey, Republic of international treaty
Criminal Code Article 12(1) and (2), basis for ensuring responsibility, 130
175 cases of abusive application, 45
catalyst for investigations or
prosecutions, 133
U categories (according to MA
ubi jus ibi remedium, 85 Chengyuan), 155, 188
Ulibarri, 192 categories (according to ZHU Lijiang),
United Kingdom, 200, 203 154
United Nation Transitional challenges, 129
Administration in East Timor, 164 conditional, 137
United Nations conditions of exercise, 44
General Assembly. See General controversy, 135
Assembly conventional sources, 131
Security Council. See Security Council definition, 130
United Nations Charter divergence of views, 129
Article 103, 35, 73 establishment of an international
Article 2(4), 104, 107 regulatory body, 219
Article 27(2), 242 Expert Report. See A.U.-E.U. Expert
Article 39, 29 Report
Article 51, 107 extent of application, 155
Chapter VII, 230 features, 194
foundation, 32 historical concept, 150
interpretation of Article 39, 32 in absentia, 40
United Nations Convention on the Law of lack of resources, 133
the Sea, 157 legal limitations, 137
Article 105, 43 link point, 40
Article 136, 42 obligation to defer, 138
United Nations Diplomatic Conference of overlapping claims, 138
Plenipotentiaries on the Establishment piracy, 153
practical challenges, 145

Index
preconditions to the exercise, 216 unlawful acts against certain

priority to territoriality, 139 internationally protected elements of
proposed principles, 39 the environment, 172
purpose, 206 unlawful acts against the safety of
rationale, 210 maritime navigation and the safety of
relationship between A.U. and E.U., platforms on the high seas, 172
133 unlawful human experimentation, 172
relative, 40 unlawful interference with submarine
requirement of presence, 137 cables, 172
scope and application, 135 unlawful possession, use or emplacement
scope and application (states' opinion), of weapons, 171
207 unlawful traffic of drugs and related drug
slave-trading, 153 offenses, 172
theory of combating crime, 43 unlawful use of the mail, 172
treaty-based, 220 uti singulus, 143
treaty-based article, 194
trials in absentia, 144
universal jurisdiction based on customary
V
international law Vattel, 152
applicability of statutory of limitations, Vienna Convention on Diplomatic
163 Relations
application, 159, 161 Article 22, 236
characteristics, 157 Vienna Convention on the Law of
definition, 155 Treaties
in absentia, 162 Article 19(3), 184
non-retroactivity, 164 Article 28. See
subject, 157 Article 34, 62, 167
universal jurisdiction based on domestic Article 53, 248
law Viet Nam, 202
ability to extradite, 178
definition, 174
double criminality, principle of, 179 W
inability to extradite, 178 WANG Tieya, 155, 159, 161
object, 177 war crimes, 171
universal jurisdiction based on war of aggression
international treaty difference with 'act of aggression', 28
application to crimes, 171 WEI Min, 174
characteristics, 166 Wheaton Henry, 153
definition, 165 William II (German Kaiser), 57
exercise in absentia, 172 Wuhan, University of, 13
manifestation, 168
non-retroactivity, 174
subject, 166 Z
universal jurisdictions
Zhejiang University, 13
self-restraining measures, 37
ZHU Lijiang, 154, 158, 170, 177, 180
universality principle. See universal
jurisdiction

TORKEL OPSAHL ACADEMIC EPUBLISHER
Editors
Professor Morten Bergsmo, Editor-in-Chief
Associate Professor Olympia Bekou, Editor
Mr. Alf Butenschøn Skre, Senior Executive Editor
Assistant Professor CHEAH Wui Ling, Editor
Ms. FAN Yuwen, Editor
Professor Håkan Friman, Editor
Ms. Kiki Anastasia Japutra, Executive Editor
Dr. Kishan Manocha, Editor
Ms. ZHANG Xin, Editor
Editorial Assistants
Mr. Mats Benestad
Mr. Nikolaus Scheffel
Scientific Advisers
Professor Dan Sarooshi, Principal Scientific Adviser for International Law
Professor Andreas Zimmermann, Principal Scientific Adviser for Public International Law
Professor Kai Ambos, Principal Scientific Adviser for International Criminal Law
Dr.h.c. Asbjørn Eide, Principal Scientific Adviser for International Human Rights Law
Editorial Board
Dr. Xabier Agirre, International Criminal Court
Dr. Claudia Angermaier, Austrian judiciary
Ms. Neela Badami, Narasappa, Doraswamy and Raja
Dr. Markus Benzing, Freshfields Bruckhaus Deringer, Frankfurt
Associate Professor Margaret deGuzman, Temple University
Ms. Cecilie Hellestveit, Norwegian Centre for Human Rights
Fellow Pablo Kalmanovitz, Yale University
Mr. Sangkul Kim, Korea University
Associate Professor Jann K. Kleffner, Swedish National Defence College
Associate Professor Kjetil MAl Bashirezinovic Larsen, Norwegian Centre for Human Rights
Mr. Salím A. Nakhjavání, Extraordinary Chambers in the Courts of Cambodia
Professor Hector Olasolo, University of Utrecht
Ms. Maria Paula Saffon, Columbia University
Ms. Torunn Salomonsen, Norwegian Ministry of Justice
Professor Carsten Stahn, Leiden University
Professor Jo Stigen, University of Oslo
Ms. Philippa Webb, Legal Consultant
Ms. WEI Xiaohong, Renmin University of China

Advisory Board
Mr. Hirad Abtahi, Legal Adviser of the Presidency of the International Criminal Court
Ms. Silvana Arbia, Registrar of the International Criminal Court
Professor Emeritus M. Cherif Bassiouni, DePaul University
Associate Professor Olympia Bekou, University of Nottingham
Professor Jon Bing, University of Oslo
Mr. Gilbert Bitti, Senior Legal Adviser, Pre-Trial Division, International Criminal Court
Research Professor J. Peter Burgess, PRIO
Judge Advocate General Arne Willy Dahl, Norway
Professor Emeritus Yoram Dinstein, Tel Aviv University
Professor Jon Elster, Columbia University and Collège de France
Mr. James A. Goldston, Open Society Institute Justice Initiative
Mr. Richard Goldstone, former Chief Prosecutor,
International Criminal Tribunal for the former Yugoslavia
Judge Hanne Sophie Greve, Gulating Court of Appeal, formerly
European Court of Human Rights
Dr. Fabricio Guariglia, Senior Appeals Counsel, Office of the Prosecutor,
International Criminal Court
Professor Franz Günthner, Ludwig-Maximilians-Universität
Mr. Wolfgang Kaleck, European Center for Constitutional and Human Rights
Judge Hans-Peter Kaul, International Criminal Court
Mr. Christopher Keith Hall, Amnesty International
Professor Emeritus Frits Kalshoven, Leiden University
Judge Erkki Kourula, International Criminal Court
Dr. Claus Kreß, Director of the Institute for Criminal Law and Criminal Procedure,
Cologne University
Professor David Luban, Georgetown University
Mr. Juan E. Méndez, Special Adviser to the ICC Prosecutor on Crime Prevention, former
President, ICTJ
Dr. Alexander Muller, Director, The Hague Institute for the Internationalisation of Law
Judge Erik Møse, European Court of Human Rights, former President,
International Criminal Tribunal for Rwanda
Dr. Gro Nystuen, University of Oslo and Norwegian Defence Command and Staff College
Mr. William Pace, Convener, Coalition for the International Criminal Court
0V-HOHQD3HMLü,QWHUQDWLRQDO&RPPLWWHHRIWKH5HG&URVV
Mr. Robert Petit, former International Co-Prosecutor,
Extraordinary Chambers in the Courts of Cambodia
Dr. Joseph Rikhof, Department of Justice, Canada
Maj-Gen (ret’d) Anthony P.V. Rogers, Cambridge University
Professor William A. Schabas, National University of Ireland, Galway
Professor James Silk, Yale Law School
Professor Emeritus Otto Triffterer, Salzburg University
Associate Professor YANG Lijun, International Law Research Center, Chinese Academy
of Social Science
Professor Marcos Zilli, University of Sao Paulo

OTHER VOLUMES IN THE
FICHL PUBLICATION SERIES
Morten Bergsmo, Mads Harlem and Nobuo Hayashi (editors):
Importing Core International Crimes into National Law
Oslo, 2010
FICHL Publication Series No. 1 (Second Edition, 2010)
ISBN 978-82-93081-00-5
Nobuo Hayashi (editor):

National Military Manuals on the Law of Armed Conflict
Oslo, 2010
ISBN 978-82-93081-02-9
Morten Bergsmo, Kjetil Helvig, Ilia Utmelidze and Gorana Žagovec:

The Backlog of Core International Crimes Case Files in Bosnia and Herzegovina
Oslo, 2010
ISBN 978-82-93081-04-3
Morten Bergsmo (editor):

Criteria for Prioritizing and Selecting Core International Crimes Cases
Oslo, 2010
ISBN 978-82-93081-06-7
Morten Bergsmo and Pablo Kalmanovitz (editors):

Law in Peace Negotiations
Oslo, 2010
ISBN 978-82-93081-08-1

Morten Bergsmo, César Rodríguez Garavito, Pablo Kalmanovitz and Maria Paula
Saffon (editors):
Distributive Justice in Transitions
Oslo, 2010
FICHL Publication Series No. 6 (2010)
ISBN 978-82-93081-12-8

Complementarity and the Exercise of Universal Jurisdiction for Core International
Crimes
Oslo, 2010
ISBN 978-82-93081-14-2
Sam Muller, Stavros Zouridis, Morly Frishman and Laura Kistemaker (editors):
The Law of the Future and the Future of Law
Oslo, 2010
ISBN 978-82-93081-27-2
Morten Bergsmo, Alf Butenschøn Skre and Elisabeth J. Wood (editors):

Understanding and Proving International Sex Crimes
Beijing, 2012
ISBN 978-82-93081-29-6

Thematic Prosecution of International Sex Crimes
Beijing, 2012
ISBN 978-82-93081-31-9
Terje Einarsen:
The Concept of Universal Crimes in International Law
Oslo, 2012
ISBN 978-82-93081-33-3

Other Volumes in the FICHL Publication Series
All volumes are freely available as e-books on the FICHL homepage www.fichl.org.
Printed copies may be ordered online at www.amazon.co.uk.

FICHL Publication Series No. 15 (2012):
‘State sovereignty’ is often referred to as an obstacle to criminal justice for core international
crimes by members of the international criminal justice movement. The exercise of State sov-
ereignty is seen as a shield against effective implementation of such crimes. But it is sovereign
States that create and become parties to international criminal law treaties and jurisdictions.
They are the principal enforcers of criminal responsibility for international crimes, as reaf-
firmed by the complementarity principle on which the International Criminal Court (ICC) is
based. Criminal justice for atrocities depends entirely on the ability of States to act.
This volume revisits the relationship between State sovereignty and international criminal
law along three main lines of inquiry. First, it considers the immunity of State officials from the
exercise of foreign or international criminal jurisdiction. Secondly, with the closing down of
the ad hoc international criminal tribunals, attention shifts tto the exercise of national jurisdic-
tion over core international crimes, making the scope of universal jurisdiction more relevant
to perceptions of State sovereignty. Thirdly, could the amendments to the ICC Statute on the
crime of aggression exacerbate tensions between the interests of State sovereignty and ac-
countability?
The book contains contributions by prominent international lawyers including Professor
Christian Tomuschat, Judge Erkki Kourula, Judge LIU Daqun, Ambassador WANG Houli, Dr.
ZHOU Lulu, Professor Claus Kreß, Professor MA Chengyuan, Professor JIA Bingbing, Profes-
sor ZHU Lijiang and Mr. GUO Yang.
ISBN 978-82-93081-35-7

E-mail: info@fichl.org
URL: www.fichl.org/toaep

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State Sovereignty and

International Criminal Law

Morten Bergsmo and LING Yan (editors)

© Torkel Opsahl Academic EPublisher, 2012

1. On State Sovereignty and Individual Criminal Responsibility

2. The Life and Contributions of Professor LI Haopei....................... 13

3. Brief Analysis of a Few Controversial Issues

4. Has Non-Immunity for Heads of State Become a Rule

5. Immunity for State Officials from Foreign Jurisdiction

7. Universal Jurisdiction for Core International Crimes .................. 129

8. The Connotation of Universal Jurisdiction

9. Universal Jurisdiction Before the United Nations

10. The International Criminal Court and Immunities

FICHL Publication Series No. 15 (2012) – page 1

Yugoslavia (‘ICTY’) to adjudicate serious violations of international hu-

FICHL Publication Series No. 15 (2012) – page 2

FICHL Publication Series No. 15 (2012) – page 3

most universally associated with the catastrophic outcome of the 1839

FICHL Publication Series No. 15 (2012) – page 4

FICHL Publication Series No. 15 (2012) – page 5

In Chapter 4 – Has Non-Immunity for Heads of State Become

FICHL Publication Series No. 15 (2012) – page 6

FICHL Publication Series No. 15 (2012) – page 7

In Chapter 8 – The Connotation of Universal Jurisdiction and its

FICHL Publication Series No. 15 (2012) – page 8

the formation of rules under customary international law in relation to

FICHL Publication Series No. 15 (2012) – page 9

which the International Law Commission is currently addressing its atten-

FICHL Publication Series No. 15 (2012) – page 10

The nine chapters described above were prepared in the context of

FICHL Publication Series No. 15 (2012) – page 11

FICHL Publication Series No. 15 (2012) – page 13

member in the Legislative Affairs Office of the State Council, a senior

FICHL Publication Series No. 15 (2012) – page 14

While working at the Department of Treaty and Law at the Ministry

FICHL Publication Series No. 15 (2012) – page 15

and patiently respond to each of my questions, giving me a detailed ex-

FICHL Publication Series No. 15 (2012) – page 16

FICHL Publication Series No. 15 (2012) – page 17

FICHL Publication Series No. 15 (2012) – page 18

FICHL Publication Series No. 15 (2012) – page 19

FICHL Publication Series No. 15 (2012) – page 21

3.1. The Crime of Aggression

FICHL Publication Series No. 15 (2012) – page 22

practice, or having violated humanitarian law. See Bassiouni, International Criminal

FICHL Publication Series No. 15 (2012) – page 23

The United Nations has committed to end all forms of aggressive

Failure), available at http://www.china.com.cn/chinese/zhuanti/rbzf/897592.htm, last

FICHL Publication Series No. 15 (2012) – page 24

Parties became involved in heated debates revolving around such issues

3.1.1. The Definition of Crime of Aggression

FICHL Publication Series No. 15 (2012) – page 25

individual must happen within the context of acts of aggression.

FICHL Publication Series No. 15 (2012) – page 26

having the opportunity to plan, prepare for, initiate or wage a war of

FICHL Publication Series No. 15 (2012) – page 27

gression, stipulating that “a war of aggression is a crime against in-

FICHL Publication Series No. 15 (2012) – page 28

amendment has described as “by its character, gravity and scale,

3.1.2. Precondition for the Court to Exercise Jurisdiction