Introduction

This post explores the legal conditions that are required for the International Criminal Court (‘Court’) to investigate and prosecute the illegal use of armed forces between states, prior to the entry into force of the 2010 amendment to the crime of aggression. The amendment will enter into force if at least 30 States Parties ratify it and a decision is taken by two-thirds of States Parties to activate the jurisdiction at any time after 1 January 2017. When this happens, the Court will be empowered to investigate and prosecute the crime of aggression. The post proposes that in the meantime, an innovative judicial interpretation and application of Article 7 (k) of the Rome Statute of the Court may be a provisional measure that could be used to ensure that there is individual criminal responsibility for those who resort to the illegal use of force. Illegal use of force is a breach of both treaty law and international customary law.

The post is motivated by the fact that, although the Charter of the United Nations’ opening sentence expresses the determination of ‘the peoples of the United Nations to save succeeding generations from the scourge of the war’, those who have been responsible for the illegal use of armed force against other sovereign states have literally managed to get off ‘scot free’. The inclusion of the phrase ‘We the peoples of the United Nations’, instead of the traditional phrase ‘The High Contracting Parties’ in the Charter, was supposed to mark a paradigm shift towards the foundation of a new world order centred on safeguarding the welfare of peoples rather than that of states or formal authority of governments. It is, however, disconcerting that although the Nazi leadership was successfully prosecuted for, among other international crimes, the illegal use of force, what was then called crimes against peace, that precedent has not been upheld and, consequently, women and children continue to suffer the devastating effects of illegal use of armed force. There are numerous examples of illegal use of armed forces in contemporary global affairs whose architects have not been held to account. To cite but a few: Russia’s repeated violation of Georgian airspace and aerial bombardment that killed and wounded several civilians in 2002, the US-led invasion of Iraq in 2003, Uganda’s violation of Congolese territory in 2005, as recognised by the ICJ in DRC v. Uganda, and the North Korean shelling of Yeonpyeong Island in 2010.

Conditions under which the illegal legal use of force can be considered to fall under the category of ‘other inhumane acts’ of Crimes against Humanity

The individual acts that can be prosecuted by the Court under crimes against humanity are enumerated in Article 7 (1) (a) to (k) of the Rome Statute. Article 7 (k) refers to the category of ‘other inhumane acts’, and provides flexibility to cover violations of human rights that are not specifically enumerated as criminal acts.[1] The inclusion of this open-ended category of criminal acts is favoured by those who consider that an exhaustive categorisation of crimes would merely create opportunities for the evasion of the letter of the prohibition.[2]The approach goes along with the proposal to consider the illegal use of force as a criminal act that could be prosecuted under crimes against humanity.[3]

The Rome Statute combined with the Elements of Crimes provides the necessary threshold that must be satisfied for an act to be considered an ‘other inhumane act’. This implies that the act of the illegal use of force would have to meet the set threshold before being considered for either investigation to prosecution under the category of ‘other inhumane acts’. The conditions that the act will have to meet are a) the act has to inflict great suffering or serious injury to body or mental or physical health; b) be of similar character/gravity to the listed inhumane acts and c) the perpetrator must have been aware of the factual circumstances that established the character/gravity or the act.[4]

The case law of the two ad hoc international tribunals and the Court contains a list of diverse acts that were considered ‘other inhumane acts’.[5] In the situation in Kenya, the Pre-Trial Chamber II, confirmed that ‘other inhumane acts’ included forced circumcision and genital amputation inflicted upon members of the Luo community as well as acts of cutting and hacking that were committed in the post-election violence in 2008.[6] The variety of acts that both the ad hoc tribunals and the Court were prepared to consider under the category of ‘other inhumane acts’ supports the view that there should be no reason why the illegal use of force could not be included.

There are additional contextual conditions that have to be present in all criminal acts for the Court to have jurisdiction and exercise it. The contextual elements serve the purpose of elevating prohibited acts from being ordinary offences into to being considered as a concern for the international community.

The conditions or jurisdictional threshold for the crimes against humanity are set as follows;

For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack….[7]

This means that the key condition that the illegal use of force has to satisfy to be classified as a crime against humanity is that it has to be committed as part of a widespread or systematic attack. Widespread is understood as referring to the quantitative nature of the crime in terms of the number of victims and not necessarily the number of acts committed[8] whereas systematic is considered to refer to the level of organization of the crime and whether it follows a regular pattern based on a common policy involving substantial public or private resources.[9] Accordingly, any isolated or sporadic misbehaviour, irrespective of being heinous and horrendous, may not qualify as a crime against humanity.[10]

Conclusion

There are obviously challenges associated with the proposition put forward in this post. This is because the definition of crimes against humanity in the Rome Statute has some grey areas that still require clarification. Both the jurisdictional and material elements of crimes against humanity need to be calibrated before serious consideration is given to prosecuting the illegal use of force. This includes refining the requirement that the object of the attack has to be ‘any civilian population’. The definition of civilian in the context of the Rome Statute’ crimes against humanity is still a contentious issue. It is hoped that such clarity will be achieved if a current campaign by a group of academics, judges and practitioners to develop a Convention on Crimes against Humanity under the leadership of Professor Leila Nadya Sadat, proves to be successful.  Perhaps such a convention would put to rest some of the unsettled definitional challenges that crimes against humanity faces.

Still the post maintains that while the world awaits the entry into force of the aggression crime, there is a possibility to prosecute illegal use of force under the category of ‘other inhumane acts’ in Article 7 of the Rome Statute. There is obviously no authority to support such proposition although there seem to be no valid reason for not doing so. It does not seem that doing so would violate the principle of nullum crimen sine lege. This is because since the category was first included in Article 6 (c) of the Nuremburg Charter, then in the Control Council Law No 10, in the Statutes of the ad hoc tribunals and the Rome Statute, it appears to have been elevated to the status of customary international law.

[1]William A. Schabas, The International Criminal Court -A Commentary on the Rome Statute (Oxford University Press 2010) at p.119

[2]Kupreškic et al. (IT-95-16-T), Judgement, 14 January 2000, para 563

[3][3]Benjamin B. Ferencz, ‘A New Approach to Deterring Illegal Wars’ (Benjamin B Ferencz, 2011) <http://www.benferencz.org/index.php?id=4&article=106&gt; accessed 03 July

[4] See Margaret M. deGuzman, ‘Crimes Against Humanity ’ in William A Schabas and Nadia Bernaz (eds), Routledge Handbook of International Criminal Law (Routledge 2011) at p 134, Rome Statute Article 7 (1) (k) and Elements of Crimes Article (7) (1) (k) 1-5

[5] Some of the cases include Tadić(IT-94-1-T), Judgement,7 May 1997 para.728 (beatings and other acts of violence) Also: Akayesu (ICTR-96-4-T) Judgement, 2 September 1998 para (forced undressing and parading in public); Brima (SCSL-2004-16-A) Judgement, 22 February 2008, para 202 ( force marriage)

[6]Situation in Kenya (ICC-01/09), Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010 ,para 116

[7] Rome Statute Article 7 (1)

[8]Kai Ambos, ‘Crimes Against Humanity and the International Criminal Court ’ in Leila Nadya Sadat (ed), Forging A Convention for Crimes Against Humanity (Cambridge University Press 2011) at p.284, see also Al Bashir (ICC-02/05-01/09) , Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, para 81

[9]Akayesu (ICTR-96-4-T) Judgement, 2 September 1998 , para 580

[10]Antonio Casesse, ‘ Crimes Against Humanity ’ in Antonio Casesse, Paola Gaeta and John R.W D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary vol 1A (Oxford University Press 2009) at p.357