Good afternoon,
my name is Leila Sadat.
I am a Professor of Law
and Director of the Whitney R. Harris
World Law Institute at
Washington University in St. Louis, Missouri.
It's my pleasure to record this short
segment for the International Center
for Research and Policy on
article 10 of the
International Criminal Court Statute.
I had the privilege of attending
many of the meetings that
led up to the negotiation
of the Rome Statute in 1998.
Those meetings were conducted
in the United Nations and
it was a meeting of
what they called a Preparatory Committee
that was State representatives,
government representatives, and
their delegations, who came together government representatives, and
their delegations, who came together
to try to work out the details
of what would eventually become
the International Criminal Court.
Professor M. Cherif Bassiouni was
representing the government of Egypt
in those negotiations and
one day in 1997, when the war
crimes provisions of the Statute
were being negotiated,
Professor Bassiouni took the floor
and he proposed the addition to
this Statute of a provision
known as Article Y.
And Article Y,
which eventually became article 10
of the Rome Statute for
the International Criminal Court,
reads as follows--and
I am going to actually read
the text because every word is
important and it is quite short.
Article 10 says, "Nothing in this Part"
-which is the part on jurisdiction-
"shall be interpreted as limiting or
prejudicing in any way existing
or developing rules of international law
for purposes other than this Statute."
So, what does this provision mean?
And how does it relate to the
definitions of crimes which are
all preceded in articles 6, 7 and 8
by "the crimes are defined for
the purpose of the Statute"
and article 21 of the Statute,
which says that the Court and its
judges are to apply first
and foremost the text.
Essentially what Prof. Bassiouni
was trying to do on that
day in December 1997,
and what Article 10 represents,
is an effort, essentially,
to separate the Rome Statute
from customary international law in a
manner that permits the continued
development of customary international law
in progressive fashion
outside the Statute.
What was happening on
that day in New York was that
the war crimes provisions were
being negotiated and there was
the possibility of a certain chapeau
element being added to the
war crimes prevention that
would have essentially required that
they be committed as part
of a plan or policy.
That of course would
have been very limiting.
It would have taken an
element from crimes against humanity
that was introduced which many
objected to, this so-called policy
element, and put it into
the war crimes provisions
where it had never been before.
Concern then that codification
of war crimes, crimes against
humanity and genocide might be
regressive as the ICC Statute
continued to develop rather than
progressive as many international
justice enthusiasts hoped.
Prof. Bassiouni's idea was
to say, "look, we're going to
codify the crimes for the
purpose of this international
courts application, but that doesn't
prejudice in any way their
existence either in other treaties
or their continued development in
customary international law.
Now, article 10, by its terms,
does not limit itself
just to war crimes.
Some commentators have suggested
it should only be applied in
war crimes area but it's in
the part of the Statute on
jurisdiction and definitions of crimes,
and, clearly, it's meant to apply
to all three crimes:
crimes against humanity, genocide,
war crimes and one day perhaps
the crime of aggression.
What does it mean as
a practical matter?
Well, the difficulty with trying
to separate the Rome Statute
itself from customary international law, to separate the Rome Statute
itself from customary international law,
as all of you probably know,
one piece of evidence we look
for in establishing whether
a provision is constitutive of
customary international law is to
look for widely ratified treaties.
And, if you find that provision
in widely ratified treaties,
it is thought that would be
evidence of custom.
The Rome Statute has 124 States Parties,
it was negotiated amongst
165 odd States, and most States
even if not ratifying the Statute,
have actually accepted
at least the war crimes and
crimes against humanity and
genocide provisions of the Statute
either in another treaty such as
the Geneva Conventions of 1949
for war crimes,
the Genocide Convention of 1948
for the Genocide Convention,
or crimes against humanity which is
the most difficult because
there is no universal treaty
yet criminalizing it except
the Rome Statute.
So here we have a widely
ratified piece of international legislation
that by its own terms endeavors
to separate itself from
customary international law.
As a practical matter,
it might not matter in many cases
because before the International Criminal Court
itself, the judges are directed
to apply the Rome Statute itself
and article 10 largely is not
going to be problematic,
although one can imagine
defense counsel arguing perhaps
for a more limiting definition
coming from another text.
Article 10 wouldn't
seem to permit that.
What about a more progressive
interpretation coming from
outside the Rome Statute,
either from the ad hoc tribunals,
or another treaty,
or customary international law?
While the judges of the Rome Statute
have already in their early
decision suggested that
they are going to look
to the four corners of the Statute
that they have been charged to apply,
not to prejudice the development
of law outside the Statute
but because they're commanded
to apply the treaty text.
So, it seems that within
the Rome Statute we have a
self-contained system, where we
only look to outside law,
customary or treaty, where
there are gaps or ambiguities
in the Statute itself.
Now, what about national jurisdictions?
How does this play out for them?
Well I've argued in an article,
that was part of a Festschrift,
actually, for Professor Cherif Bassiouni
at DePaul Law School, it was published
many years ago, that what he
and the drafters of the Statute were
trying to do was create a
floor that is, it's a minimum.
It's rather like the human
rights instruments.
States can become more protective.
So, for example, with respect to
the crime of genocide, they could
add a proviso that would criminalize
the destruction of political
groups or social groups.
They could call that genocide.
It would be more progressive
than the Genocide Convention
and the Rome Statute, and article 10
seems clearly to be a nod to them
from the ICC system
that they should feel encouraged
and able to do that.
But here is a slight complication,
and I am not sure we know
exactly how to resolve this.
The Rome Statute of course
is law for the States Parties to the treaty,
124 at this point in time.
But the Security Council can apply
Rome law to every human being
in the world, even individuals living
on the territories, or who have
the nationality of States not party
to the Rome Statute.
Now, that's un-controversial jurisdictionally
if these jus cogens crimes are
universally codified and accepted.
But, what that would mean
was that essentially Rome Law has
become customary international law because
otherwise it is hard to understand
how the Security Council can apply
Rome Law to somebody in Sudan
or somebody in Libya, as it has
done actually, or potentially somebody
in Syria one day-States that
haven't ratified the treaty-unless that
law binds every human
being in the world.
And so one of the difficulties
of this separation of Rome law
from non-Rome law is that
it's difficult after a while
to have it both ways.
It's difficult to argue that
the Rome Statute is just law
that applies within the Rome Statute
system, when in fact the prescriptive
that is the legislative part of the Statute,
and even the Court's jurisdiction
in the case of Security Council referrals,
applies to all the human beings
in the world not just those covered
explicitly by the treaty
law in the Rome Statute.
Of course, this was intended
by the drafters and what
one sees in the combination of
sort of the general structure of
international law and article 10
is this desire to permit the Rome Statute
itself and law outside the
Rome Statute to coexist and
mutually reinforce each other-to end up
with a body of law that rather than
being fragmented becomes unified.
How this is going to play out
in the future is uncertain.
It is clear that many national jurisdictions
and many international courts
now in fact cite the Rome Statute
as evidence of customary international law,
particularly with respect to
crimes against humanity which as
I mentioned is not yet codified in
an international treaty.
So, whether the drafters
intended the Rome Statute to
become evidence of custom,
it seems that as a practical matter
the codification has produced
a Statute that is now taken as
a practical matter to be
customary international law.
States can still innovate,
international tribunals could
presumably still innovate,
but at some point, defense counsel is
going to have a good argument
that you can only have one
or two maybe codifications,
not 193 different variants,
plus ad hoc tribunals,
plus the Rome Statute.
That is one of the curiosities of
article 10 of the Rome Statute,
designed not to enshrine in
the Statute negative elements,
but to allow for progressive development.
How it's going to play out in
the future is yet to be discovered.
Thank you so much.
It's a pleasure to have been
able to record this short vignette
on article 10, which is the
subject of great interest to me
and I look forward to
future interactions.
Thank you.