I have chosen to focus
on one of the shorter provisions in the Rome Statute,
which, despite its potential
for influencing the effective functioning
of the ICC regime, has not been
been the subject of much academic
scrutiny to date.
This provision is Article 88.
The Rome Statute contains
a limited number of positive
obligations directed at States Parties.
Most of such obligations
can be found in Part 9 of the Statute,
which covers issues pertaining to cooperation with the Court.
Article 88 on ‘Availability of procedures under national law’ reads:
“States Parties shall ensure
that there are procedures available
under their national law
for all of the forms of cooperation
which are specified under this Part”.
Therefore, by virtue of Article 88,
States undertake to make sure
that procedures are available
in their national laws enabling them
to comply with the Court’s cooperation regime.
Article 88 encapsulates the obligation
a State has to legislate
in order to enable its national legal system
to respond to ICC requests for effective cooperation.
There is no equivalent provision
on the implementation of substantive law
provisions found in the Statute,
which, in my view, leaves a considerable gap.
Let us now turn to what Article 88 covers.
The drafting history of this provision is not particularly remarkable.
As with many other provisions in the Statute,
during the negotiations at Rome, a compromise was reached
between those who felt
that ICC-State cooperation should be governed by procedures found in the Statute,
and those who opposed this on the grounds of State sovereignty.
The Rome Statute does not dictate
a common international procedure
to be followed by States,
when executing an ICC cooperation request.
The manner of execution rests with the State,
which, under the general obligation to cooperate
with the Court, found in Article 86 of the Statute,
undertakes to do so in accordance with procedures
found in its national law.
In fact, a number of provisions in the
cooperation part of the ICC Statute
make reference to national law.
See for instance, Articles 89(1), 91(4), 91(3), 96(3) and Article 99(1) of the Statute.
However, the existence of Article 88 means
that a State cannot use the absence of national procedures
as an excuse for non-cooperation.
This provision therefore aims to rectify a particular problem
that had arisen in the early practice of the ICTY in particular,
where States used the absence
of relevant national legislation to avoid cooperation.
This is what the drafters wanted to avoid through the inclusion of Article 88.
Furthermore, Article 88 provides the authority a State needs
to incorporate the Statute nationally;
or at least the cooperation part of the Statute.
There are certain provisions in the Rome Statute
that we cannot expect to find in national legislation.
These sorts of provisions need to be introduced
for the purposes of complying with the Statute.
What I’m thinking of here is for instance
the provision on competing requests
that is, in Article 90 of the Statute.
In that, priority is given to requests
coming from the Court when certain conditions are met;
Or, the rules applicable to the contents
of an ICC request (articles 91 and 96 of the Statute)
which wouldn’t be found at the national level
prior to implementing the ICC Statute.
Article 88 therefore serves
as a gateway to all those provisions
that need to be incorporated.
Other such examples that may be alien
to a number of States, would include
the obligation to surrender a State’s own nationals for instance.
This is not common in some legal systems,
which preclude the extradition of own nationals.
Equally, the limited grounds
on which a State can refuse to execute
execute an ICC cooperation request
I’m referring to here to the provision of national security
and a conflict with a pre-existing
fundamental legal principle
of general application both of
which are found in the Statute
Article 88 therefore provides the basis
on which a State may proceed
with the necessary amendments of existing laws
or with enacting new provisions, where necessary.
Is there an obligation to legislate elsewhere
in international law or in the Rome Statute?
Having examined the scope of Article 88,
the next step will be to investigate
whether an obligation to adopt legislation
exists elsewhere in the Statute.
While the Statute in its Preamble
in the 4th and 6th preambular paragraphs
acknowledges the “duty of every State”
to investigate and prosecute international crimes,
the body of the Statute does not contain
a binding obligation in that respect.
In general treaty law, the preamble may be used
for the purposes of interpretation of a treaty,
but no legal obligation arises therefrom.
An examination of the existence or not
of such an obligation in
international treaty or customary law
is therefore necessary.
A number of provisions in international treaty law
oblige State parties to enact
enact legislation for those who commit
or order war crimes.
Article 49 of the
first Geneva Convention,
Article 50 of the second Geneva Convention,
Article 129 of the third Geneva Convention
and Article 146 of the fourth Geneva Convention,
require the adoption of penal legislation
to cover the crimes of committing or ordering wilful killing,
torture or inhumane treatment
including biological experiments,
wilfully causing great suffering or serious injury to body or health,
extensive destruction and appropriation of property
against one of the protected groups, that is civilians,
wounded, sick, shipwrecked members of the armed forces and prisoners of war
Additional Protocol I to the Four Geneva Conventions
also provides for such an obligation in its Article 86.
In addition, Article 5 of the Genocide Convention stipulates
that State parties “undertake to enact,
in accordance with their respective Constitutions,
the necessary legislation to give effect
to the provisions of the present Convention,
and, in particular, to provide effective penalties
for persons guilty of genocide
or any of the other acts” of genocide.
That the violation of the obligation to prosecute and punish
may entail State responsibility,
has also been established, whereas the obligation to legislate
has been characterised as being part of customary international law.
Whilst certain provisions of the Geneva Conventions
as well as the Genocide Convention may well have achieved
the status of customary law,
one may cast some doubt as to whether
the obligation to legislate is indeed customary.
Even if this were the case,
the examples I have just mentioned
would not cover all of the crimes found in the ICC Statute;
for crimes against humanity in particular,
a legislative gap would remain.
Several other arguments have been put forward
in support of the view that
the implementation of the substantive law
part of the Statute constitutes
an obligation for State parties.
Some argue that that the “overwhelming practice
of States parties to the Rome Statute to implement
the substantive law clearly establishes
an agreement, understood as a common understanding
about the meaning of the treaty as requiring them to do so”
in accordance with the rules of interpretation
of international treaties found in Article 31(3)(b)
of the Vienna Convention.
This position, albeit certainly appealing, is in my view, flawed.
In order to accept that subsequent State practice
constitutes a good indication of the State Parties’
understanding of the meaning of the treaty,
the practice needs to be consistent
and adopted by all such Parties to the treaty.
Although this does not mean that all State Parties
need to be engaged in such practice,
it is hard to see what would qualify as tacit
acceptance of the additional positive obligation of the State to legislate
in the field of substantive criminal law;
except to, in fact, enact relevant legislation.
In addition, in order for the subsequent practice
to be classed as reliable source of treaty interpretation,
there should not exist a clear difference of opinion between State Parties.
Whilst it cannot be said that
the States which have included the provisions on substantive law
law in their implementing legislations
have done so because they perceive this to be an obligation,
some State Parties clearly stipulated
that they do not consider this to be a legally binding duty,
whereas others have only adopted legislation
covering solely the cooperation regime.
This highlights the difference in opinion
and militates against a finding
that the subsequent practice of State parties
would be a good reference point
regarding an obligation to legislate.
Another argument in support of the position
that the Rome Statute ought to be interpreted
as if containing a positive obligation
to implement the substantive part of the Statute
is an interpretation in light of its object and purpose.
Whilst it is true that the ultimate purpose of
the ICC Statute is the “ending of the practice of impunity”,
the text of the Statute
is not concerned with how
this overarching goal will be achieved nationally,
and deals solely with the international
dimension of the prosecution of international crimes.
With the exception of compelementarity,
all other references to national procedures in the Statute
are aimed at facilitating co-operation with the ICC
at the international level.
State Parties therefore have absolute discretion
as to how they deal with national prosecutions,
if indeed they decide to prosecute.
An argument based on the object
and purpose of the Statute to support
national implementation of crimes
would therefore not be very helpful.
In addition, academic opinion is sufficiently uniform
behind the fact that
there is no clear obligation in the Statute
as it stands to introduce the substantive provisions of the Statute
into the national legal systems.
One academic rightly observes
“that one cannot impose any
duty upon States unless
unless it has been explicitly laid
down and agreed upon by them.
A mere reference in the Preamble
would not suffice to derive
any legally binding duty.”
Moreover, others point out
that “state parties are not strictly
obliged to change their domestic laws
to ensure parity with the statute
in all aspects of domestic criminal law and procedure
in order to avail themselves of the complementarity regime.”
Whereas yet another notes that “the Statute
contains no specific obligation
on States to implement the Statute's
provisions per se.”
States will, nevertheless,
still have to check whether their own legal systems
are sufficiently well equipped to meet
the standards set by the Statute,
and indeed whether they will need to adapt
their existing laws or adopt new ones.
Even those who consider implementation
to be driven by the threat
of the ICC exercising its jurisdiction,
do not recognise an
an obligation to enact legislation in the Statute.
The question therefore remains:
To legislate or not to legislate?
Despite the absence of an existing explicit,
legal obligation, a number of
States have incorporated the crimes
into their domestic legal systems.
A quick look through the National Implementing Legislation Database,
which I have curated for over a decade now
and which forms part of the ICC’s Legal Tools Project,
reveals that of those States
that have specifically enacted legislation,
most have incorporated the crimes.
This may be attributed to a
number of reasons, including convenience,
good international citizenship
or the very catalytic effect of complementarity.
Convenience lies in the use of a single legislative process
to incorporate all relevant Statute provisions.
As States are required, under the Statute,
to provide for national procedures
with regard to the cooperation regime,
by virtue of article 88
a single legislative
process to review or adopt
all ICC-related legislation
is both cost and time efficient.
Moreover, States wishing to demonstrate
that they take an active part in the fight
against impunity were quick to adopt
crimes legislation as part of
their wider international role,
coupled with the realisation that the ICC
due to limited finances
can only prosecute a handful of cases.
As a result, the bulk of the work
remains at the national level.
But none of the above reasons is
as strong an incentive as complementarity.
Complementarity is the result of a delicate balance
between the quest for ICC supremacy and State sovereignty.
Much has been written on the principle and its ramifications.
Complementarity was adopted with the view to safeguarding State sovereignty
but it can be seen as an equitable
tool of allocating jurisdiction between the Court and States.
Against this backdrop, complementarity represents an opportunity
for States to enact legislation
on the crimes and associated provisions
even if this is purely to avoid the ICC’s jurisdiction.
As the ICC may take over
from national jurisdiction only if it is established that a State
with jurisdiction over the crimes is unwilling or unable
genuinely to investigate and prosecute those crimes
(see Article 17 of the Statute),
it is necessary to examine whether the absence
of a satisfactory national legal framework
would prima facie indicate the unavailability of the State
to deal with the crimes under the Statute.
The key to effective national exercise of jurisdiction is
found in the genuineness of the proceedings.
Given that the Statute does not prescribe a
particular approach to be adopted nationally,
the form the legislation may
take is left to the State in question.
It is a common practice, for instance, to prosecute
core crimes as ordinary crimes
at the national level.
For example, as murder, rape etc.
Many States have endorsed this approach.
The famous trial of Lt. Calley
for the My Lai massacre in Vietnam,
was classed as a premeditated murder
and assault with intent to murder,
whereas the Abu Graib cases included
charges of indecent acts,
dereliction of duties, maltreatment and assault.
Prosecuting the case as an ordinary crime
does not render the State unwilling or unable automatically.
It is the quality of the process that matters.
The ICC itself has dealt with these issues
in its jurisprudence arising out of the situation in Libya for example.
This does not mean, however, that common criminal law provisions
will always be suitable for
the prosecution of certain conducts criminalised by the Rome Statute.
For example, it is questionable whether all
forms of persecution as a crime against humanity
would be covered by ordinary criminal law provisions.
The same holds true with some of the war crimes,
such as the crime of improper use of the flag of truce,
transfer of the own civilian population
on the occupied territory, denial of quarter etc.
In addition, not all of the modes of individual criminal responsibility,
such as command responsibility
or joint criminal enterprise
can be found in national legal orders.
Defences should also be reviewed as part of this process.
In the above cases, it may be impossible
for a State to prosecute and the admissibility criteria
found in the Statute could be satisfied,
leading to a trial before the ICC.
Treating core crimes as ordinary crimes
will not always be appropriate.
The acknowledgement of the gravity of the crimes
is an important part of the judicial process
involving core crimes with
this element having been
incorporated also into the Statute.
At the national level, this element is equally important.
International crimes carry an additional stigma
which distinguishes them from ordinary crimes.
Ordinary crimes usually ignore the seriousness of the violations of international law.
As such, the gravity of the crimes
should be observed, through the enactment of national legislation.
An added reason in favour of enacting
legislation to include substantive law
is a shift in the policy on complementarity.
With the emphasis on positive complementarity,
implementing legislation takes centre stage.
For positive complementarity to work, it is not enough
to rely on the OTP to steer
national processes towards more investigations and prosecutions.
Although the Prosecutor’s power of leverage
and persuasion will undoubtedly influence national activity,
such encouragement runs the risk of becoming a paper exercise
if there is no clear national
legislative framework in place which will
enable States to exercise criminal jurisdiction.
If the emphasis on positive complementarity were to succeed,
a more systematic approach towards empowering national legal orders is needed.
Introducing an obligation to enact
legislation for instance, would considerably reduce
State claims that prosecutions are impossible
due to the absence of national legislation.
Such an approach would encourage not only
closer but also more meaningful
interaction between the national and international levels.
The result of this would be allocation of ICC resources
to those cases only that bear
the greatest gravity together with greater involvement of national courts.
The enactment of legislation as a means of materialising positive
complementarity is therefore
more pressing than ever.
With a number of the situations currently before the ICC
originating from self-referrals, i.e. States referring the situation in their own countries,
poses more questions on complementarity.
The possibility of a State refraining from prosecutions altogether,
allowing the ICC to take over,
had not been envisaged when the Statute was drafted.
An obligation to provide for legislation for core crimes
would not alleviate this position.
Although it is hard to say that the absence of such
an obligation encourages the so-called
“inaction scenario”, it is
hoped that some States in certain
circumstances may be less inclined
to abstain from any activity,
if legislation were to be in place.
I guess my discussion above confirms that the Rome system
of justice, which has the ICC at its centre,
would be strengthened if there were an obligation in the Statute to incorporate
substantive law to complement the
existing obligation to enact legislation
legislation for cooperation, currently
found in Article 88 of the Statute.
To conclude: De lege ferenda, it might be worth considering
in a future amendment of the Statute,
to include an obligation for
a State to enact legislation
also for the substantive law provisions.
Whether expanding Article 88 is the right home for such an amendment
or introducing a new provision to that respect,
will need to be discussed further.
However, the issue that remains be more pressing
is that of the content of legislation.
Having legislation that not only fully serves
a State’s cooperation obligations
under the Rome Statute but
also enables it to effectively
investigate and prosecute, is
key to the success of the international
criminal justice system comprised
of the Court and States operating alongside each other to fight impunity.
Of the current membership of the Court, just over
half of the State Parties to the Statute,
have implemented it at the national level.
Striving for universality of implementation is important,
if the Court is to succeed in its functions.
And Article 88 plays its part in it. Thank you!