Jurisdiction of the Court

Genocide is recognized as a uniquely grave crime, both in scale of human atrocity and in its uniquely high intent requirement. The definition of genocide in Article 6 of the Rome Statute is drawn directly from that of the Genocide Convention of 1948: “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such,” including killing members of the group; causing serious bodily or mental harm; deliberately inflicting conditions designed to destroy the group in whole or in part; imposing measures to prevent childbirth within the group; or forcibly transferring children of the group to another group. The word “genocide” was coined in 1943 from the Greek word genos (race, nation, tribe) and the Latin suffix –cide (killing) to describe Nazi atrocities during the Holocaust (Byron 2004: 143). The Genocide Convention, which entered into force in 1951, obligates states to outlaw genocide and take measures to prevent it.

The definition of genocide under the Genocide Convention has not been altered for sixty years. The definition includes a specific intent requirement (“intent to destroy in whole or in part”) that creates a high threshold for a perpetrator’s mental state. In addition, the offense must be against members of a group with the group, and not the individuals, as the ultimate target. A number of delegates of the Like-Minded Group argued for broadening the 1948 Convention definition of genocide on the basis that it was unnecessarily restrictive, to include, for instance, intent to destroy a culture. The conservative position prevailed because the Genocide Convention’s definition was so well-established, though the supporters of a more progressive definition subsequently succeeded in expansively defining “crimes against humanity ” to cover situations that fall outside of the definition of genocide (McCormack 2004: 181).

Unlike the crime of genocide , crimes against humanity have never been codified in a widely accepted treaty, and as a result, negotiations to define the term at the Rome Conference were protracted. As defined in Article 7, crimes against humanity includes any number of specific acts such as murder, extermination, torture, rape, sexual slavery, persecution “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (Stewart 2014: 129). As stated above, although the Nuremberg and Yugoslavia trials considered “crimes against humanity” to be not entirely distinct from war crimes , the jurisprudence of the Rwanda tribunal made clear that crimes against humanity do not need to take place in armed conflict. The consensus at the Rome Statute completed the separation of the two categories of crimes, and included different elements. Crimes against humanity also include the crime of apartheid , as defined by the Apartheid Convention of 1973, defined as an institutionalized regime of systematic oppression, segregation, and domination of one racial group over another, as was practiced in South Africa between 1948 and 1994.

The definition of crimes against humanity is distinct from the definition of genocide in several ways. Both genocide and crimes against humanity may take place in peacetime or armed conflict and both may be committed by state or non-state actors. Genocide must be targeted at a particular “social, ethnical, racial, or religious group,” while crimes against humanity must only affect a “civilian” population. Unlike genocide, crimes against humanity do not require specific intent to destroy a group, only an intent to commit the particular act in question and knowledge of the broader context in which it takes place (Stewart 2014: 206). The Rome Conference also clearly distinguished crimes against humanity from war crimes . Unlike crimes against humanity, war crimes do not need to be part of a widespread or systematic attack on a civilian population, nor do they require official support or knowledge from the government. By contrast, a war crime may constitute only a single incident, but must be carried out during an armed conflict (ibid.: 216). The expansiveness and flexibility of the definition of “crimes against humanity” may make it especially useful in prosecutions to deter future conduct, and the category may subsume the definition of genocide, from which it is only distinguished by a lower intent requirement. Crimes against humanity will often serve as an alternative charge against perpetrators who are also accused of genocide (Murray 2011: 611–615).

The definition of war crimes is not as clear and distinct as genocide , as it relates to a broader pattern of conduct occurring during armed conflict, but it is narrower than crimes against humanity as it is, like genocide, largely codified in international treaties. War crimes under the Rome Statute are grouped into two categories: grave breaches of the 1949 Geneva Conventions, and other serious violations of the laws and customs of war. As to the first category, only crimes committed in an international armed conflict and against protected persons (usually non-combatants of the enemy state), as per the Geneva Conventions, fall within the jurisdiction of the Court. Protected persons would include civilians as well as prisoners of war or surrendered enemy troops, but would not include enemy soldiers in combat. The second category is broader, and includes war crimes codified in other international instruments, such as pillage, employing poisoned weapons and asphyxiating gasses, use of exploding or ricocheting bullets, killing a combatant who has surrendered, forced population transfers, scientific experimentation, or attacking buildings of religious, cultural, or historical experience, to name only a few (Venturini 2001: 96–100).

The war crimes clause includes a unique “opt-out” provision in Article 124, which allows any ratifying state to declare that they will not accept the jurisdiction of the Court with regard to war crimes alleged to have been committed by their nationals or on their territories for a period of up to seven years. This is a grave restraint on the Court’s jurisdiction, but one that was politically necessary to allow states to accept the Rome Statute without the prospect of surrendering members of their own armed forces in conflicts that were ongoing when the Rome Statute entered into force. In reality, the practical impact of this clause has been marginal, as only two countries have invoked the opt-out clause, France and Colombia ; at this point, both of their opt-outs have been lifted or expired. During the Rome Conference, France and the United States expressed concern that the war crimes provisions would fall heavily on their nationals as they were actively involved in many peacekeeping missions overseas (Venturini 2001: 96; Tabak 2009: 1069–1070, 1074).

The crime of aggression is the successor to the crimes against peace prosecuted at Nuremberg , and generally includes planning, preparation, initiation, or waging of a war of aggression or a war in violation of international treaties. In 1974, the UN General Assembly adopted by consensus a resolution defining aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State,” including invasion, blockade or bombardment, or military occupation. At the Rome Conference, the negotiating parties agreed that aggression should be included among the core crimes, but they could not reach a consensus on how to define the crime or the role the Security Council should play in determining when it had taken place, as the UN Charter authorizes the Security Council to safeguard UN members from hostile or aggressive war. The Rome Statute left the issue open, providing in Article 5(2) that the crime could be prosecuted once a definition had been adopted and the Statute amended. This was accomplished at the Review Conference held in Kampala , Uganda , in July 2010, and the crime is now defined in the Rome Statute as a new Article 8–bis (“bis” meaning “twice,” a second Article 8). The actual implementation of this provision was deferred for an additional seven years, to 2017 (Stewart 2014: 219–220).

The United States was a principal opponent of a definition of aggression that could implicate senior political or military officials of non-member states, given the extensive military role that the United States plays in humanitarian interventions and other foreign wars. The American delegations to the Assembly of States Parties in 2009 and to the Kampala Review Conference in 2010 were heavily focused on the definition of aggression, and, unlike the initial drafting of the Rome Statute in 1998, the United States found solid support for its position from the four other permanent Security Council members. This united front of major powers was enough to make several significant modifications to the Court’s jurisdiction over aggression at the Kampala Review Conference and the resulting amendment (Fairlie 2011: 552–556). Article 8-bis as negotiated at Kampala has several distinctive features. First, the definition encompasses both an “act of aggression,” which is committed by a state, and a “crime of aggression,” which is committed by an individual. An individual cannot be charged with the “crime” of aggression unless the state carries out an “act” of aggression. An individual acting alone without the support of the state cannot be prosecuted—thus, terrorists or insurgents are ineligible. Second, the crime is limited to leaders who exercise control over an armed force; an ordinary soldier cannot be prosecuted. Third, the act of aggression must be a “manifest” violation of the UN Charter, which limits jurisdiction to only the most serious or flagrant cases (Trahan 2011: 55–60). The Kampala compromise also determined that no investigations or prosecutions can take place for aggression until January 1, 2017, and after one year passes following ratification of the amendments by 30 countries.

The Kampala Review Conference also made several important compromises to how the Court would acquire jurisdiction over defendants for purposes of the crime of aggression , which formed the new Article 15-bis (state referral and proprio motu power) and Article 15- ter (Security Council referral). The Kampala Review Conference ultimately created a separate, tailored jurisdictional regime for the crime of aggression that differs from the other three core crimes, sacrificing the Rome Statute ’s uniformity for the sake of political compromise with the powerful permanent members of the Security Council (Jurdi 2013: 12–14). Article 15-bis states that the Court cannot acquire jurisdiction over non-members who are accused of aggression, and allows member states to opt out of jurisdiction over the crime of aggression, to satisfy both the United States (a non-member) and France (a member). For non-members and members that opt out of Article 15-bis, a state cannot refer another state for committing a crime of aggression and the Prosecutor may not open a case of her own initiative against that state, which differs from the other core crimes. In addition, the Court can only acquire jurisdiction based on state referral or prosecutorial initiative if the Security Council has not acted on the act of aggression within six months, a “filter” mechanism to require Security Council involvement. Article 15-ter confirms that the Security Council essentially has the first option to determine whether an act of aggression occurred and to grant the Court jurisdiction (Trahan 2011: 82–85). However, some scholars have suggested that giving the Security Council such a prominent role over the jurisdiction of the crime of aggression compromises the Court’s autonomy and subordinates the universal nature of international law to major power interests. The increased role of the Security Council in prosecutions for aggression reflects the highly political nature of the crime (Trotter 2012: 360).

Under international law, diplomats, heads of state, foreign ministers, and other senior state officials typically have immunity from prosecution when in foreign countries, although this immunity attaches only to the office and not to the person, and may allow prosecution when an officeholder leaves his or her position. In addition, international law recognizes immunity from prosecution for official acts of state, and attaches to any person acting on behalf of the government. The Rome Statute sharply curtails these traditional immunities for the purpose of prosecuting international crimes. The official position of alleged perpetrators does not exempt them from individual responsibility for acts that are crimes under international law. The Torture Convention prohibiting official or state-sanctioned torture and the Geneva Conventions prohibiting war crimes committed in international armed conflict both remove traditional immunities for state officials. The Rome Statute does as well (Akande 2006: 47–55).