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Redrawing the Line? Serious Crimes of Concern to the International Community beyond the Rome Statute
Published online by Cambridge University Press: 17 November 2015
Abstract
International criminal law, like all areas of law, must continue to evolve to reflect contemporary realities. This article demonstrates that the current subject matter jurisdiction of the International Criminal Court under the Rome Statute is very much an artefact of history, and it argues that the historical and reactive line that the statute draws between “core” international crimes and other serious international or transnational crimes is inadequate. In order to ensure that international criminal law continues to evolve in a reasoned and principled manner, states need to better articulate the criteria by which conduct is included within the category of “the most serious crimes of concern to the international community as a whole.” Using a primarily inductive approach, the article considers a number of such criteria that have been considered over the years. It concludes that, when assessed in the context of their systematic and organized perpetration, many other serious international and transnational crimes raise some of the same concerns that underpin the current core international crimes, suggesting that it may be time for the international community to consider redrawing the line.
Résumé
Le droit pénal international, comme tous les domaines du droit, doit continuer à évoluer pour refléter les réalités contemporaines. Cet article démontre que la compétence ratione materiae de la Cour pénale internationale, selon le Statut de Rome, est un artefact de l’histoire, et fait valoir que la ligne historique et réactive tracée dans le Statut entre les “principaux” crimes internationaux et d’autres crimes graves, soient internationaux ou transnationaux, est désuet. Afin de veiller à ce que le droit pénal international continue à évoluer de manière raisonnée et fondée sur des principes, l’auteure soutient que les États doivent mieux articuler les critères selon lesquels certains actes sont inclus dans la catégorie des “crimes les plus graves qui touchent l’ensemble de la communauté internationale.” En utilisant une approche principalement inductive, l’article considère un certain nombre de ces critères qui ont été examinés au cours des années. Il conclut que, lorsqu’évalués dans le contexte de leur perpétration systématique et organisée, de nombreux autres crimes graves, tant internationaux que transnationaux, soulèvent certaines des mêmes préoccupations qui sous-tendent les principaux crimes internationaux actuels. Cette analyse suggère qu’il est peut-être temps que la communauté internationale retrace la ligne les séparant.
Keywords
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- Articles
- Information
- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 52 , October 2015 , pp. 129 - 183
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- Copyright © The Canadian Yearbook of International Law/Annuaire canadien de droit international 2015
References
1 Rome Statute of the International Criminal Court, 17 July 1997, 2187 UNTS 3, preamble [Rome Statute] [emphasis added].
2 Ibid, art 5. With respect to the crime of aggression, the court still does not have jurisdiction over this crime until an additional vote is taken in 2017 (so long as thirty states parties have ratified the amendment by that time). Ibid, art 15bis(2)–(3).
3 The exception is the crime of aggression, which is not included in the Statutes of the ICTY or ICTR. Statute of the International Tribunal for the former Yugoslavia, Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (Annex), 3 May 1993, UN Doc S/25704 (1993), arts 2–5 [ICTY Statute]; Statute of the International Criminal Tribunal for Rwanda, 8 November 1994, UN Doc S/RES/955 (1994), Annex, arts 2–4 [ICTR Statute].
4 War crimes, genocide, and crimes against humanity were referred to as “core crimes” throughout the negotiations of the Rome Statute: Philippe Kirsch & Valerie Oosterveld, “Negotiating an Institution for the Twenty-First Century: Multilateral Diplomacy and the International Criminal Court” (2001) 46 McGill LJ 1141 at 1148. Many commentators have adopted this language, often including the crime of aggression as well. See, eg, Boister, Neil, An Introduction to Transnational Criminal Law (Oxford: Oxford University Press, 2012) at 18CrossRefGoogle Scholar; Werle, Gerhard, Principles of International Criminal Law, 2d ed (The Hague: TMC Asser Press, 2009) at 29CrossRefGoogle Scholar; Cryer, Robert, “The Doctrinal Foundations of International Criminalization” in Bassiouni, M Cherif, ed, International Criminal Law: Sources, Subjects and Contents, vol. 1, 3d ed (Leiden: Koninklijke Brill NV, 2008) 107 at 108Google Scholar; Bantekas, Ilias, International Criminal Law, 4th ed (Oxford: Hart Publishing, 2010) at 9Google Scholar; Currie, Robert J & Rikhof, Joseph, International and Transnational Criminal Law, 2d ed (Toronto: Irwin Law, 2013) at 19Google Scholar; Einarsen, Terje, The Concept of Universal Crimes in International Law (Oslo: Torkep Opsahl Academic EPublisher, 2012) at 137–38.Google Scholar
5 Boister observes that “[t]ransnational crime is now a commonly used criminological term to describe cross-border or potentially cross-border crime.” Boister, supra note 4 at 13. While there are a large number of international treaties addressing such crimes (the “suppression conventions,” through which states codify definitions of crimes and commit to criminalizing such conduct domestically), one of the key features of transnational crimes is that the locus of their criminalization lies within the domestic sphere. Cryer, supra note 4 at 109. This differs from international crimes in the strict sense. While there is no universally accepted definition of “international crimes,” there is general agreement that one of their key distinguishing features is that the locus of their criminalization lies in international law directly, such that they are crimes regardless of criminalization at the state level. Boister, supra note 4 at 4, 13–14, 18–19. See also Currie & Rikhof, supra note 4 at 17, 19. Some authors limit their definition of international crimes to those that fall within the jurisdiction of international courts or tribunals (corresponding to the category of “core international crimes”). See, eg, Cryer, Robert et al, An Introduction to International Criminal Law and Procedure, 3d ed (Cambridge: Cambridge University Press, 2014) at 4CrossRefGoogle Scholar. Others include all crimes that are subject to the exercise of universal jurisdiction by states. See, eg, Currie & Rikhof, supra note 4 at 19–20. Another implication of categorization as an international crimes identified by some commentators is a corresponding restriction on some official immunities. See, eg, Cassese, Antonio, International Criminal Law, 2d ed (Oxford: Oxford University Press, 2008) at 12Google Scholar. For a more comprehensive literature review of the variable meanings attached to “international crimes” by different commentators, see Einarsen, supra note 4 at 150–68.
6 Schabas gives drug trafficking as an example, observing that it “may be an ‘international crime’ and ‘contrary to the purposes and principles of the United Nations,’ but it is almost certainly neither a crime against humanity nor a war crime, nor can it be said to rise to the same level of gravity.” William A Schabas, “Punishment of Non-State Actors in Non-International Armed Conflict” (2002–03) 26 Fordham Int’l LJ 907 at 911 [emphasis added].
7 M Cherif Bassiouni, “International Crimes: The Ratione Materiae of International Criminal Law” in Bassiouni, ed, supra note 4, 129 at 131 [Bassiouni, “Ratione Materiae”]. See also M Cherif Bassiouni, “The Discipline of International Criminal Law” in Bassiouni, supra note 4, 3 at 17 [Bassiouni, “Discipline”].
8 Cryer, supra note 4 at 119; see also 127.
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11 Boister cautions about “blaming the boom in transnational crime on globalization,” observing that “transnational crime has a long history.” Boister, supra note 4 at 6.
12 Statement by the President of the Security Council, 24 February 2010, UN Doc S/PRST/2010/4 (2010).
13 The three main accountability mechanisms at the time were payment of compensation, belligerent reprisals, and domestic prosecution of a state’s own nationals, none of which were considered effective. See Theodor Meron, “Reflections on the Prosecution of War Crimes by International Tribunals” (2006) 100 AJIL 551 at 554; Leslie Mansfield, “Crimes against Humanity: Reflections on the Fiftieth Anniversary of Nuremberg and a Forgotten Legacy” (1995) 64 Nordic J Int’l L 293 at 296–97; Matthew Lippman, “Nuremberg: Forty Five Years Later” (1991–92) 7 Conn J Int’l L 1 at 2.
14 See M Cherif Bassiouni, “World War I: ‘The War to End All Wars’ and the Birth of a Handicapped International Criminal Justice System” (2001–02) 30 Denv J Int’l L & Pol’y 244; Lippman, supra note 13 at 4–6.
15 Treaty of Peace between the Allied and Associated Powers and Germany, 28 June 1919, art 228 [Treaty of Versailles].
16 G Gordan Battle, “The Trials before the Leipsic Supreme Court of Germans Accused of War Crimes” (1921) 8 Va L Rev 1; Lippman, supra note 13 at 10–11; Meron, supra note 13 at 557–58; Bassiouni, supra note 14 at 281–85.
17 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, Report Presented in the Preliminary Peace Conference, 29 March 1919, reprinted in (1920) 14 AJIL 95.
18 See Bassiouni, supra note 14 at 262–64.
19 Lippman, supra note 13 at 12–16; Mansfield, supra note 13 at 302–3.
20 Convention for the Creation of an International Criminal Court, 16 November 1937, 7 Hudson 878, 19 League of Nations OJ 37 (1937.VII) (not in force). See Lippman, supra note 13 at 14; Mansfield, supra note 13 at 303.
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22 Charter of the International Military Tribunal, reprinted in (1945) 39 AJIL Supp 258, art 6 [Nuremberg Charter].
23 See Lippman, supra note 13 at 24, 44.
24 See Bassiouni, M Cherif, Crimes Against Humanity in International Criminal Law, 2d ed (The Hague: Kluwer Law International, 1999) at 1.Google Scholar
25 Ibid. at 10, 24–25, 29–30, 69–78.
26 Charter of the International Military Tribunal for the Far East, 26 April 1946, reproduced in C Bevans, ed, Treaties and Other International Agreements of the United States of America 1776–1949, (1968) 4 UST 20; Control Council Law No 10, 20 December 1945, Official Gazette of the Control Council for Germany, No 3, Berlin, 31 January 1946, reprinted in Trials of War Criminals before the Nuremberg Military Tribunal under Control Council Law No 10, vol 1 at xvi. See generally Bassiouni, supra note 24 at 32–37.
27 Lemkin, Raphael, Axis Rule in Occupied Europe (Washington: Carnegie Endowment for International Peace, 1944).Google Scholar
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29 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277.
30 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, [1951] ICJ Rep 15 at 23; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction and Admissibility, Judgment, [2006] ICJ Rep 6 at para 64; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, [2007] ICJ Rep 43 at para 161.
31 The evolution of the International Law Commission’s (ILC) work on such other crimes in the second half of the twentieth century is discussed in more detail later in this article. See text accompanying notes 48–92.
32 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 [Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 [collectively Geneva Conventions].
33 See, eg, Geneva Convention I, supra note 32, arts 49–50.
34 M Cherif Bassiouni, “The International Criminal Court in Historical Context” (1999) 55 St Louis-Warsaw Transatlantic LJ 55 at 63.
35 James Crawford, “The Drafting of the Rome Statute” in Sands, supra note 21, 109 at 119; Kirsch & Oosterveld, supra note 4 at 1145; Bassiouni, “Ratione Materiae,” supra note 7 at 131.
36 Kirsch & Oosterveld, supra note 4 at 1145.
37 Crawford, supra note 35 at 119–20.
38 Eg, Single Convention on Narcotic Drugs, 1961, as Amended by the Protocol Amending the Single Convention on Narcotic Drugs, 1961, 8 August 1975, 976 UNTS 105; International Convention against the Recruitment, Use, Financing and Training of Mercenaries, 4 December 1989, 2163 UNTS 75, annexed to UN Doc A/RES/44/34; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 14 December 1973, 1035 UNTS 167.
39 Bassiouni, “Discipline,” supra note 7 at 23; Boister, supra note 4 at 14; Cryer, supra note 4 at 109.
40 Eg, United Nations Convention against Transnational Organized Crime, 15 November 2000, 2225 UNTS 209; Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, 2237 UNTS 319; Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, 2241 UNTS 507; Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organized Crime, 31 May 2001, 2236 UNTS 208; United Nations Convention Against Corruption, 31 October 2003, 2349 UNTS 41.
41 Charter of the United Nations, 26 June 1945, 1 UNTS 16 [UN Charter].
42 SC Res 827 (1993), UN Doc S/RES/827 (1993).
43 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc S/25704 (1993) at para 34.
44 Ibid at para 35.
45 ICTR Statute, supra note 3, art 1.
46 The war crimes provisions of the ICTR Statute differ from those of the ICTY Statute because the conflict in Rwanda was of a non-international character.
47 Philippe Kirsch & John T Holmes, “The Rome Conference on an International Criminal Court: The Negotiating Process” (1999) 93 AJIL 2 at 6–7.
48 Formulation of the Principles Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, GA Res 177(II), UNGAOR, 3d Sess, UN Doc A/RES/177(II) (1947) [GA Res 177(II)].
49 Draft Code of Crimes against the Peace and Security of Mankind, arts 16–20, reprinted in Yearbook of the International Law Commission 1996, vol 2, part 2 (New York: United Nations, 1998), UN Doc A/CN.4/SER.A/1996/Add.1 (1996) at 42–56 [1996 Draft Code]. For further discussion of the drafting history of the draft Code, see Martin C Ortega, “The ILC Adopts the Draft Code of Crimes against the Peace and Security of Mankind” (1997) 1 Max Planck YBUNL 283; M Cherif Bassiouni, “The History of the Draft Code of Crimes Against the Peace and Security of Mankind” (1993) 27 Israel LR 247; Rosemary Rayfuse, “The Draft Code of Crimes against the Peace and Security of Mankind: Eating Disorders at the International Law Commission” (1997) 8 Crim LF 43; Einarsen, supra note 4 at 168–202.
50 Report of the Commission to the General Assembly on the Work of Its Forty-Third Session (29 April – 19 July), UNGAOR, 46th Sess, Supp No 10, UN Doc A/CN.4/SER.A/1991/Add.1 (1991) (Part 2) at 95–97 [1991 Draft Code]. For further commentary, see generally Bassiouni, M Cherif, ed, Commentaries on the International Law Commission’s 1991 Draft Code of Crimes against the Peace and Security of Mankind (Toulouse: Association internationale de droit pénal, 1993).Google Scholar
51 Statement by Mr. Amado, 17 th meeting of the ILC, 9 May 1949, reprinted in Yearbook of the International Law Commission 1949, vol 2 (New York: United Nations, 1956) at 131.
52 The UN General Assembly’s request to the commission was to “prepare a draft code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the principles [of international law recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal].” GA Res 177(II), supra note 48 at para (b). The special rapporteur therefore noted that violations of the laws or customs of war should be included in the draft code because they were included in the Nuremberg Charter, despite observing that “[i]n reality [they] do[] not affect the peace and security of mankind and, consequently, from a purely theoretical point of view … should have no place in the draft code.” Report of J. Spiropoulos, Special Rapporteur, UN Doc A/CN.4/25 (1950) at para 67, reprinted in Yearbook of the International Law Commission 1950, vol 2, UN Doc A/CN.4/SER.A/1951/Add.1 (1951) at 263.
53 “Draft code of offences against the peace and security of mankind: Introduction” in Yearbook of the International Law Commission 1951, supra note 51, vol 2, at 58.
54 Yearbook of the International Law Commission 1951, supra note 51 at 263.
55 See, eg, Special Rapporteur Doudou Thiam, “First Report on the Draft Code of Offences against the Peace and Security of Mankind,” UN Doc A/CN.4/364 (1983), reprinted in Yearbook of the International Law Commission 1983, vol 2, part 1 (New York: United Nations, 1985) at paras 36–38; Statement of Mr Calero Rodrigues at the 1758 th Meeting of the ILC, 10 May 1983, reprinted in Yearbook of the International Law Commission 1983, Volume I: Summary Records of the Meetings of the Thirty-Fifth Session (New York: United Nations, 1984) at 20. DHN Johnson, writing contemporaneously, criticized the distinction based on the political nature of the crime as “unnecessary and irrelevant” and even “harmful.” DHN Johnson, “The Draft Code of Offences against the Peace and Security of Mankind” (1955) 4 ICLQ 445 at 456–57.
56 One new offence was added: “The intervention by the authorities of a State in the internal or external affairs of another State, by means of coercive measures of an economic or political character, in order to force its will and thereby obtain advantages of any kind.” Additionally, the provision relating to armed bands was expanded and the provision on inhuman acts was modified. See Yearbook of the International Law Commission 1954, vol 2 (New York: United Nations, 1960), UN Doc A/CN.4/SER.A/1954/Add.1 (1954) at 149–52.
57 See Draft Code of Offences against the Peace and Security of Mankind, GA Res 897 (IX), UNGAOR, 9th Sess, Supp No 21, UN Doc A/RES/897 (IX) (1954); Draft Code of Offences against the Peace and Security of Mankind, GA Res 1186 (XII), UNGAOR, 12th Sess, UN Doc A/RES/1186 (XII) (1957) at para 1. See also Johnson, supra note 55 at 453.
58 Crawford, supra note 35 at 119–21.
59 Definition of Aggression, GA Res 3314 (XXIX), UNGAOR, 29th Sess, Supp No 31, UN Doc A/9619 (1974).
60 Draft Code of Offences against the Peace and Security of Mankind, GA Res 36/106, UNGAOR, 36th Sess, Supp No 51, UN Doc A/RES/36/106 (1981).
61 Draft Code of Offences against the Peace and Security of Mankind: Analytical Paper Prepared Pursuant to the Request Contained in Paragraph 256 of the Report of the Commission on the Work of Its Thirty-Fourth Session, UN Doc A/CN.4/365 (1983) at para 71 [Analytical Paper].
62 Report of the Commission to the General Assembly on the Work of Its Thirty-Fifth Session, reprinted in Yearbook of the International Law Commission 1983, vol 2, part 2 (New York: United Nations, 1985), UN Doc A/CN.4/SER.A/1983/Add.1 (1983) at 14 [emphasis in original].
63 Analytical Paper, supra note 61 at paras 71–105; Report of the Commission to the General Assembly on the Work of Its Thirty-Sixth Session, UN Doc A/39/10, reprinted in Yearbook of the International Law Commission 1984, vol 2, part 2 (New York: United Nations, 1985), UN Doc A/CN.4/SER.A/1984/Add.1 (1984) at 15–17. This reflected legal advancements that had occurred during the intervening period such as the adoption of the International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 November 1973, 1015 UNTS 243; the Declaration on the Prevention of Nuclear Catastrophe, GA Res 36/100, UNGAOR, 36th Sess, Supp No 51, UN Doc A/RES/36/100 (1981); and the Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res 1514(XV), UNGAOR, 15th Sess, UN Doc A/RES/1514(XV) (1960).
64 Report of the Commission to the General Assembly on the Work of Its Thirty-Sixth Session, reprinted in Yearbook of the International Law Commission 1984, supra note 63 at para 63.
65 Special Rapporteur Doudou Thiam, Second Report on the Draft Code of Offences against the Peace and Security of Mankind, UN Doc A/CN.4/377 (1984), reprinted in Yearbook of the International Law Commission 1984, vol 2, part 1 (New York: United Nations, 1986), UN Doc A/CN.4/SER.A/1984/Add.1 (1984) at paras 68–78.
66 See discussion at the 2100th–2107th meetings of the ILC, from 11–24 May 1989, reprinted in Yearbook of the International Law Commission 1989, vol 1: Summary Records of the Meetings of the Forty-First Session, 2 May – 21 July 1989 (New York: United Nations, 1992), UN Doc A/CN.4/SER.A/1989 (1989).
67 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, 1582 UNTS 95.
68 Report of the International Law Commission on the Work of Its Forty-First Session (2 May – 21 July 1989), UN Doc A/44/10 (1989), reprinted in Yearbook of the International Law Commission 1989, vol 2, part 2 (New York: United Nations, 1992), UN Doc A/CN.4/SER.A/1989/Add.1 (1989) at paras 205–10.
69 Statement of Mr Diaz Gonzalez at the 2107th meeting of the ILC, 24 May 1989, in Yearbook of the International Law Commission 1989, vol 1supra note 66 at 80.
70 Special Rapporteur Doudou Thiam, “Thirteenth report on the draft Code of Crimes against the Peace and Security of Mankind,” UN Doc A/CN.4/466 (1995), reprinted in Yearbook of the International Law Commission 1995, vol 2, part 1 (New York: United Nations, 2006), UN Doc A/CN.4/SER.A/1995/Add.1 (1995) at para 1.
71 Report of the International Law Commission on the Work of Its Forty-Seventh Session (2 May – 21 July 1995), UN Doc A/50/10 (1995) at para 130, reprinted in Yearbook of the International Law Commission 1995, vol 2, part 2 (New York: United Nations, 1998), UN Doc A/CN.4/SER.A/1995/Add.1 (1995) at para 139.
72 Report of the International Law Commission on the Work of Its Forty-Seventh Session, supra note 71 at para 105.
73 Ben Saul, “Amicus Curiae Brief on the Notion of Terrorist Acts Submitted to the Appeals Chamber of the Special Tribunal for Lebanon Pursuant to Rule 131 of the Rules of Procedure and Evidence” (2011) 22 Crim LF 365 at 366–67.
74 Rayfuse criticizes the omission of terrorism and drug trafficking from the 1996 Draft Code. Rayfuse, supra note 49 at 60–62.
75 See, eg, Statements of the German Democratic Republic and the Ukrainian Soviet Socialist Republic, reprinted in Yearbook of the International Law Commission 1982, vol 2, part 1 (New York: United Nations, 1984), UN Doc A/CN.4/SER.A/1982/Add.1 (1982) at 274–79; Statements of Egypt and Gabon, reprinted in Yearbook of the International Law Commission 1985, vol 2, part 1 (New York: United Nations, 1987), UN Doc A/CN.4/SER.A/1985/Add.1 (1985) at 85.
76 Thiam, supra note 65 at para 47.
77 However, while not explicitly including apartheid, the 1996 Draft Code listed as one of the enumerated crimes against humanity “institutionalized discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population.” 1996 Draft Code, supra note 49, art 18(f). The approach of incorporating apartheid into the category of crimes against humanity was also taken in the Rome Statute, supra note 1, art 7(1)(j).
78 Thiam, supra note 70 at para 4.
79 Comments and Observations Received from Governments, UN Doc A/CN.4/488 (1993), reprinted in Yearbook of the International Law Commission 1993, vol 2, part 1 (New York: United Nations, 2000), UN Doc A/CN.4/SER.A/1993/Add.1 (1993) at 59–109.
80 Report of the International Law Commission on the Work of Its Forty-Seventh Session, supra note 71 at paras 44, 127.
81 Ibid at para 41.
82 Thiam, supra note 70 at para 3. See Rayfuse, supra note 49 at 48–49.
83 Report of the International Law Commission on the Work of Its Forty-Seventh Session, supra note 71 at para 140. The crime of wilful and severe damage to the environment (as well as apartheid and colonial domination) gained prominence in the ILC’s discussion of the draft code as a result of its simultaneous work on state responsibility. See Draft Articles on State Responsibility: Report of the International Law Commission on the Work of Its Thirty-Second Session (5 May–25 July 1980), UN Doc A/35/10 (1980), arts 19(2), 19(3)(d), reprinted in Yearbook of the International Law Commission 1980, vol 2, part 2 (New York: United Nations, 1981), UN Doc A/CN.4/SER.A/1980/Add.1 (1980) at 32. See further Ortega, supra note 49 at 305–12.
84 Christian Tomuschat, Document on Crimes against the Environment, UN Doc ILC(XLVIII)/DC/CRD.3 (1996), reprinted in Yearbook of the International Law Commission 1996, vol 2, part 1 (New York: United Nations, 2008), UN Doc A/CN.4/SER.A/1996/Add.1 (1996).
85 Ibid at paras 14–19.
86 Ibid at paras 20–23.
87 Ortega, supra note 49 at 306.
88 1996 Draft Code, supra note 49, art 20(g). See Rayfuse, supra note 49 at 73–75.
89 Ortega, supra note 49 at 310–11; Rayfuse, supra note 49 at 75–77.
90 Although there was some expansion of crimes recognized as coming within the definitions of crimes against humanity and war crimes.
91 Report of the International Law Commission on the Work of Its Forty-Eighth Session (6 May–26 July 1996), UN Doc A/51/10 (1996), reprinted in Yearbook of the International Law Commission 1996, vol 2, part 2 (New York: United Nations, 1998), UN Doc A/CN.4/SER.A/1996/Add.1 (1996) at 16–17, para 46.
92 Ortega, supra note 50 at 286.
93 See Neil Boister, “Treaty Crimes, International Criminal Court?” (2009) 12 New Crim L Rev 341 at 343; Philippe Kirsch & John T Holmes, “The Birth of the International Criminal Court: The 1998 Rome Conference” (1998) 36 Can YB Int’l Law 3 at 5. On the position of Trinidad and Tobago, see further Delia Chatoor, “The Role of Small States in International Diplomacy: CARICOM’s Experience in the Negotiations of the Rome Statute of the International Criminal Court” (2007) 7 Int’l Peacekeeping 295 at 295–301.
94 UNGAOR 6th Comm, 44th Sess, UN Doc A/C.6/44/SR.38-41 (1989).
95 Rome Statute, supra note 1.
96 Crawford, supra note 35 at 152.
97 International Criminal Responsibility of Individuals and Entities Engaged in Illicit Trafficking in Narcotic Drugs across National Frontiers and Other Transnational Activities, GA Res 44/39, UNGAOR, 44th Sess, Supp No 49, UN Doc A/RES/44/39 (1989), vol 1. This is not the first time that the ILC was mandated to consider the question of an international criminal jurisdiction. The ILC had previously considered this issue in its early years. See Report to the General Assembly, reprinted in Yearbook of the International Law Commission 1949 (New York: United Nations, 1956) at 283; Report of the International Law Commission to the General Assembly, UN Doc A/1316 (1950), reprinted in Yearbook of the International Law Commission 1950, vol 2 (New York: United Nations, 1957) at 378–79.
98 Report of the Working Group on the Question of an International Criminal Jurisdiction, reprinted in Report of the International Law Commission to the General Assembly on the Work of Its Forty-Fourth Session, UN Doc A/47/10 (1992), reprinted in Yearbook of the International Law Commission 1992, vol 2, part 2 (New York: United Nations, 1994), UN Doc A/CN.4/SER.A/1992/Add.1 (1992) at paras 4(c), 57.
99 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3 [Additional Protocol I].
100 Draft Statute for an International Criminal Tribunal: Report of the Working Group on a Draft Statute for an International Criminal Court, UN Doc A/48/10 (1993), reprinted in Yearbook of the International Law Commission 1993, vol 2, part 2 (New York: United Nations, 1995), UN Doc A/CN.4/SER.A/1993/Add.1 (1993) at 106–7. This list was created with reference to two main criteria: the crimes were sufficiently defined in treaties and the treaties either established a system of universal jurisdiction over such crimes or granted an international criminal tribunal jurisdiction to try the crime (or both).
101 Ibid at 109–10.
102 See James Crawford, “The ILC Adopts a Statute for an International Criminal Court” (1995) 89 AJIL 404.
103 Draft Statute for an International Criminal Court and Commentary, art 21, in Report of the International Law Commission on the Work of Its Forty-Sixth Session,” UN Doc A/49/10 (1994), reprinted in Yearbook of the International Law Commission 1994, vol 2, part 2 (New York: United Nations, 1997), UN Doc A/CN.4/SER.A/1994/Add.1 (1994) at 43 [ILC Draft Statute].
104 Ibid at 38. See also Crawford, supra note 102 at 411.
105 ILC Draft Statute, supra note 103, art 20.
106 Ibid at 67–68. See Crawford, supra note 102 at 412.
107 Establishment of an International Criminal Court, GA Res 49/53, UNGAOR, 49th Sess, Supp No 49, UN Doc A/RES/49/53 (1994) at para 2.
108 Establishment of an International Criminal Court, GA Res 50/46, UNGAOR, 50th Sess, Supp No 49, UN Doc A/RES/50/46 (1995) at para 2.
109 For further discussion on the work of the preparatory committee, see M Cherif Bassiouni, “Observations Concerning the 1997–98 Preparatory Committee’s Work” (1997) 25 Denv J Int’l L & Pol’y 397.
110 Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, Draft Statute for an International Criminal Court, UN Doc A/CONF.183/2/Add.1 (1998).
111 A Rohan Perera, “United Nations Diplomatic Conference to Adopt the Statute Establishing the International Criminal Court” (1998) 24 Commonwealth L Bull 1221 at 1232. See, eg, Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UNGAOR, 50th Sess, Supp No 22, UN Doc A/50/22 (1995) at para 55.
112 Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, supra note 111 at para 55. See Neil Boister, “The Exclusion of Treaty Crimes from the Jurisdiction of the Proposed International Criminal Court: Law, Pragmatism, Politics” (1998) 3 J Confl & Sec L 27 at 28.
113 Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, supra note 111 at para 81. See also Boister, supra note 93 at 346.
114 Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, supra note 111 at paras 54, 81. See also Boister, supra note 93 at 352–53; Perera, supra note 111 at 1225, 1232. Some states suggested that drug trafficking and terrorism crimes were better dealt with by national jurisdictions due to the nature of the investigations required. See Mahnoush H Arsanjani, “The Rome Statute of the International Criminal Court” (1999) 93 AJIL 22 at 29; Boister, supra note 112 at 35. On the other hand, the proponents of more expansive jurisdiction argued that many countries had insufficient resources to adequately address crimes like drug trafficking and terrorism (a concern that had prompted Trinidad and Tobago to initiate discussion on the establishment of an international criminal court in the first place). See, eg, Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, supra note 111 at para 82.
115 Boister, supra note 112 at 37.
116 Kirsch & Holmes, supra note 47 at 5.
117 Boister, supra note 112 at 38; John Dugard, “Obstacles in the Way of an International Criminal Court” (1997) 56:2 Cambridge LJ 329 at 334.
118 Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, UN Doc A/CONF.183/10 (1998), Resolution E [Final Act]. See Boister, supra note 93 at 344–45.
119 Philippe Kirsch, “The International Criminal Court: From Rome to Kampala” (2009–10) 43 John Marshall L Rev at 528. See also Roger S Clark, “The Review Conference on the Rome Statute of the International Criminal Court, Kampala, Uganda, 31 May–11 June 2010” (2009) 16 Austl Int’l LJ 9. Some of the rules governing prohibited weapons in international armed conflicts were extended to apply in non-international armed conflicts as well. See Review Conference of the Rome Statute of the International Criminal Court Official Records, ICC Doc RC/11 at Resolution RC/Res.5.
120 ICC Assembly of States Parties, Eighth Session, Report of the Bureau of the Review Conference, ICC Doc ASP/8/43 (2009) at paras 16–17, 26. See also Kirsch, supra note 119 at 529–30.
121 ICC Assembly of States Parties, supra note 120 at para 29.
122 The Belgian proposal would extend the list of war crimes to cover the use of chemical weapons, biological weapons, anti-personnel landmines, and weapons covered in the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, 10 October 1980, 1342 UNTS 137.
123 ICC Assembly of States Parties, Tenth Session, Report on the Working Group on Amendments, ICC Doc ASP/10/32 (2011) at paras 8–24. See also Clark, supra note 119 at 20.
124 Ibid. at paras 5–7.
125 ICC Assembly of States Parties, Twelfth Session, Report of the Working Group on Amendments, ICC Doc ASP-12/44 (2013) at para 4.
126 However, the ICC has adopted the position that states can accept its jurisdiction, pursuant to art 12(3) of the Rome Statute, supra note 1, with retroactive effect. see ICC, Situation in the Republic of Côte d’Ivoire, ICC-02/11-14-Corr, Pre-Trial Chamber III, Corrigendum to Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire (15 November 2011) at paras 10–15. This approach would have to be altered if the Rome Statute included crimes that were not recognized at customary international law at the time of their commission.
127 Kirsch & Holmes, supra note 47 at 7, n 19.
128 Perera, supra note 111 at 1232.
129 See Schabas, William A, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge: Cambridge University Press, 2006) at 152–55CrossRefGoogle Scholar; Kai Ambos & Steffen Wirth, “The Current Law of Crimes against Humanity: An Analysis of UNTAET Regulation 15/2000” (2002) 13 Crim LF 1 at 13–15; Currie & Rikhof, supra note 4 at 19.
130 Cassese, supra note 5 at 54.
131 However, Bassiouni includes in his analysis both international crimes stricto sensu as well as other crimes more properly characterized as transnational crimes. Bassiouni, M Cherif, Introduction to International Criminal Law, 2d ed (Leiden: Martinus Nijhoff Publishers, 2013) at 142–43.Google Scholar
132 Einarsen defines “universal crimes” as “certain identifiable acts that constitute grave breaches of rules of conduct usually committed, organised, or tolerated by powerful actors; and that, according to contemporary international law, are punishable whenever and wherever they are committed; and that require prosecution and punishment through fair trials, or in special cases, some other kind of justice, somewhere at some point.” Einarsen, supra note 4 at 125, 296.
133 Einarsen refers to this as his “theoretical definition of universal crimes.” Ibid at 298. In addition to the core international crimes, Einarsen would include the following six categories of crimes, defined with a contextual gravity clause, within the concept of universal crimes: crimes against the United Nations and internationally protected persons, terrorist crimes, crimes of group destruction not encompassed by the Genocide Convention, grave piracy crimes, grave trafficking crimes, and excessive use and abuse of authorized power. Ibid at 305.
134 Cassese, supra note 5 at 29.
135 UN Charter, supra note 41, art 1(1).
136 GA Res 177(II), supra note 48 [emphasis added].
137 Security Council Resolution 955 (1994), UN Doc S/RES/955 (1994).
138 See, eg, Schabas, supra note 129 at 155; Morris, Virginia & Scharf, Michael P, The International Criminal Tribunal for Rwanda, vol. 1 (Irvington-on-Hudson, NY: Transnational Publishers, 1998) at 169 (re: genocide)Google Scholar; William A Schabas, “State Policy as an Element of International Crimes” (2007–08) 98 J Crim L & Criminology 953 at 982 (re: crimes against humanity). The ILC special rapporteur on the draft code, Doudou Thiam, referred to three different categories of international crime: (1) crimes that are inherently international because they “assail sacred values or principles of civilizations”; (2) crimes that have become international by conventions for the purpose of punishment; and (3) crimes that have moved from the realm of domestic law to international law because “a State becomes the author of or an accomplice in the offence.” Doudou Thiam, special rapporteur, First Report on the Draft Code of Offences against the Peace and Security of Mankind, UN Doc A/CN.4/364 (1983), reprinted in Yearbook of the International Law Commission 1983, vol 2, part 1 (New York: United Nations, 1985), UN Doc A/CN.4/SER.A/1983/Add.1 (1983) at para 34.
139 See, eg, ICC, Situation in the Republic of Kenya (ICC-01/09-19-Corr), Pre-Trial Chamber II, 31 March 2010, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, at para 60.
140 Ibid. at para 64; Claus Kress, “On the Outer Limits of Crimes against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision” (2010) 23 Leiden J Int’l L 855 at 866.
141 See McCormack, Timothy, “Their Atrocities and Our Misdemeanours: The Reticence of States to Try Their ‘Own Nationals’ for International Crimes” in Lattimer, Mark & Sands, Philippe, eds, Justice for Crimes against Humanity (Oxford: Hart Publishing, 2003) 107 at 108–9Google Scholar; Dapo Akande & Sangeeta Shah, “Immunities of State Officials, International Crimes, and Foreign Domestic Courts” (2010) 21 Eur J Int’l L 815 at 816.
142 Control Council Law No 10, supra note 26, art II(1)(c).
143 See Debates of the ILC during Its 267 th –270 th meetings, 13–17 July 1954, in Yearbook of the International Law Commission 1954, vol 1, Summary Records of the Sixth Session, 3 June–28 July 1954 at 131–48. The Commission initially voted to remove the words “when such acts are committed in execution of or in connexion with other offences defined in this article” but then realized that the resulting provision was unsatisfactory because it did not adequately distinguish between ordinary crimes and those which violated international law. After considering the issue, the Commission adopted a proposal in which inhuman acts constituted crimes against the peace and security of mankind only when perpetrated “by the authorities of a State or by private individuals acting under the instigation or toleration of the authorities against a civilian population.” Despite the reference to the perpetration of crimes against humanity in an armed conflict in Article 5 of the ICTY Statute, the ICTY, in its first case, determined that this was only a jurisdictional requirement and not a substantive element of crimes against humanity under customary international law. ICTY, Prosecutor v Duško Tadić (IT-94-1-AR72), Appeals Chamber, 2 October 1995, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, at para 141 [Tadić Interlocutory Appeal on Jurisdiction]; ICTY, Prosecutor v Duško Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999 at para 249.
144 Documents of the Sixth Session including the Report of the Commission to the General Assembly, reprinted in Yearbook of the International Law Commission 1954, vol 2 (New York: United Nations, 1960, UN Doc A/CN.4/SER.A/1954/Add.1 (1954) at 150.
145 See, eg, Rome Statute, supra note 1, art 7: “[A] course of conduct … pursuant to or in furtherance of a State or organizational policy to commit such attack” [emphasis added]. See also rejection of the “public official” requirement for torture as a war crime or crime against humanity. ICTY, Prosecutor v Kunarac (IT-96-23-T&IT-96-23/1-T), Trial Chamber, 22 February 2001, at paras 465–97, aff’d ICTY, Prosecutor v Kunarac (IT-96-23&IT-96-23/1-A), Appeals Chamber, 12 June 2002 at paras 142–48.
146 Rome Statute, supra note 1, art 8bis(1).
147 Report of the Commission to the General Assembly on the Work of Its Forty-Third Session, UN Doc A/46/10 (1991), reprinted in Yearbook of the International Law Commission 1991, vol 2, part 2 (New York: United Nations, 1994), UN Doc A/CN.4/SER.A/1991/Add.1 (1991) at 96–97.
148 Ibid at 103.
149 Ibid at 103–4.
150 Schabas, supra note 138 at 974, 982.
151 See, eg, Cassese, Antonio, “The Role of Internationalized Courts and Tribunals in the Fight against International Criminality” in Romano, Cesare PR et al, eds, Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford: Oxford University Press, 2004) 3 at 5, 10.Google Scholar
152 Eg, this reason was cited by the president of Sierra Leone in his letter to the president of the Security Council requesting the help of the UN in establishing a court. UN Doc S/2000/786 (2000). See also Sylvia De Bertodano, “East Timor: Trials and Tribulations” in Romano et al, supra note 151, 79 at 89.
153 This was one of the reasons for the involvement of UNMIK and international judges in criminal trials in post-conflict Kosovo. See John Cerone & Clive Baldwin, “Explaining and Evaluating the UNMIK Court System” in Romano et al, supra note 151, 41 at 51–52.
154 Ambos & Wirth, supra note 129 at 13. See, eg, Analytical Paper, supra note 61 at para 65.
155 See Rome Statute, supra note 1, preamble. Sir Ian Sinclair, a member of the ILC, noted that “the notion of offences against the peace and security of mankind should be taken to denote crimes of such magnitude and intensity that they shocked the conscience of all mankind.” 1757th Meeting of the ILC, 9 May 1983, in Yearbook of the International Law Commission 1983, Volume I, Summary records of the meetings of the thirty-fifth session (New York: United Nations, 1984), UN Doc A/CN.4/SER.A/1983 (1983) at 14, para 27. See also Currie & Rikhof, supra note 4 at 17.
156 Schabas, supra note 129 at 155.
157 Cryer, supra note 4 at 126.
158 Eg, the ILC agreed that there was a criterion of seriousness which characterized crimes against the peace and security of mankind and explained that “[s]eriousness can be deduced either from the nature of the act in question (cruelty, monstrousness, barbarity, etc.), or from the extent of its effects (massiveness, the victims being peoples, populations or ethnic groups), or from the motive of the perpetrator (for example, genocide), or from several of these elements.” Report of the International Law Commission on the Work of Its Thirty-Ninth Session (4 May – 17 July 1987), UN Doc A/42/10 (1987), reprinted in Yearbook of the International Law Commission 1987, vol 2, part 2 (New York: United Nations, 1989), UN Doc A/CN.4/SER.A/1987/Add.1 (1987) at 13.
159 Rome Statute, supra note 1, arts 6, 7(1).
160 Cryer et al, supra note 5 at 275.
161 Ibid at 275–76; Henry T King Jr, “The Legacy of Nuremberg” (2002) 34 Case W Res J Int’l L 335 at 338–39. See art 3 common to the Geneva Conventions, supra note 32; and Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609 [Additional Protocol II].
162 Tadić Interlocutory Appeal on Jurisdiction, supra note 143 at paras 128–37.
163 As Ambos & Wirth state, “a crime can obtain an international character since it cannot be prosecuted effectively on a national level and there is a common interest of states to prosecute. This practical reason applies to piracy, probably the most ancient international crime, or damaging submarine telegraph cables.” Ambos & Wirth, supra note 129 at 13.
164 Rome Statute, supra note 1, arts 8(2)(b)(iii), 8(2)(e)(iii).
165 Statute of the Special Court for Sierra Leone, Annex to the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2002, 2178 UNTS 138 [SCSL Statute]; SCSL, Prosecutor v Sesay, Kallon & Gbao (SCSL-04-15-T), Trial Chamber I, 2 March 2009.
166 Cootier, Michael, “Article 8” in Triffterer, Otto, ed, Commentary on the Rome Statute of the International Criminal Court, 2nd ed (Munchen: Beck, 2008) 275 at 330.Google Scholar
167 A prohibition on enlisting child soldiers was first included in Additional Protocol II, supra note 161, art 4(3)(c). It was first defined as a war crime in the Rome Statute, supra note 1. See Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc S/2000/915 (2000) at para 17.
168 Compare ICTY Statute, supra note 3, art 5(g) with Rome Statute, supra note 1, art 7(g).
169 Men can also be victims of sexual violence but it is predominantly women and girls who are victimized by this kind of conduct. For example, the Security Council has noted with concern “that sexual violence in armed conflict and post-conflict situations disproportionately affects women and girls, as well as groups that are particularly vulnerable or may be specifically targeted, while also affecting men and boys.” UN Doc S/RES/2016 (2013).
170 Declaration on the Rights of the Child, GA Res 1386(XIV), UNGAOR, 14th Sess, Supp No 16, UN Doc A/4354 (1959). This is reiterated in the preamble to the almost universally ratified Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3 (195 states parties as of 24 June 2015).
171 Commentary to Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (1987), online: ICRC <www.icrc.org>. See also Report of the Special Representative of the Secretary-General for Children in Armed Conflict, 12 October 1998, UN Doc A/53/482 (1998).
172 UN Doc S/1999/957 (1999) at paras 18, 53.
173 UN Charter, supra note 41, art 2(1).
174 ICC, Situation in Kenya (ICC-01/09-19-Corr), Pre-Trial Chamber I, 31 March 2010, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya (Dissenting Opinion of Judge Hans-Peter Kaul) at para 10.
175 ICTY Statute, supra note 3, art 9(2); ICTR Statute, supra note 3, art 8(2).
176 Rome Statute, supra note 1, art 17.
177 E.g. Caribbean states greatly affected by illicit trafficking in narcotics to the fact that “[t]hey were midway between the centres of production and the centres of consumption of narcotic drugs.” Dame Nita Barrow, Representative of Barbados, UNGAOR, 44th Sess, 6th Comm, UN Doc A/C.6/44/SR.39 (1989) at para 30. However, admittedly, some other states that suffer from drug-related crime opposed the proposition, such as Myanmar. Ibid at paras 5–55.
178 Rome Statute, supra note 1, art 7.
179 Including both international and non-international armed conflicts. Ibid, art 8.
180 Ibid, art 6. See also ICC, Elements of Crimes, ICC Doc ICC-ASP/1/3 (Part II-B), art 6(a)-(e).
181 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, 1582 UNTS 95, art 3(1)(a)(i), (2).
182 Eg, Neil Boister notes that, in comparison with the core international crimes, “[d]rug supply offences, on the other hand, do not involve harms of this severity within this context (conviction may be based on something as tenuous as a presumption of trafficking based on volume of drug carried) and thus there is no agreement among states to subject them to individual penal responsibility under international law.” Boister, supra note 4 at 58.
183 See UNODC, World Drug Report 2012 (New York: United Nations Publications, 2012) at 84.Google Scholar
184 Office of the Prosecutor (OTP), Report on Prosecutorial Strategy, 14 September 2006, online: ICC <icc-cpi.int> at 5. The Statute of the SCSL explicitly mandated the SCSL to “prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law.” SCSL Statute, supra note 165, art 1(1) [emphasis added]. See also Meron, supra note 13 at 563: “It makes sense for international tribunals to focus on top officials who helped to orchestrate atrocities … [T]rials of those who orchestrate atrocities help to disseminate international condemnation of the crimes and yield vindication for substantial numbers of victims.”
185 Geneva Declaration: Global Burden of Armed Violence (Cambridge: Cambridge University Press, 2011) at 4 [Geneva Declaration].
186 UNODC, supra note 9 at 248.
187 Ibid. at 229.
188 Ibid.
189 UNODC, supra note 183 at 85.
190 Ibid.
191 However, no cases have yet been formally brought before the ICC due to ongoing examination by the OTP of the effectiveness and genuineness of national investigations. Office of the Prosecutor, Situation in Colombia – Interim Report, November 2012, online: ICC <icc-cpi.inti>.
192 The OTP has concluded that there is a reasonable basis to believe that crimes within the jurisdiction of the ICC have been perpetrated in Afghanistan. OTP, Report on Preliminary Examination Activities 2013, November 2013, online: ICC <icc-cpi.int> at para 35.
193 Illicit trafficking in natural resources is not an explicitly recognized “transnational crime” but it may fall under the United Nations Convention against Transnational Organized Crime, supra note 40, arts 2–3, if it is characterized as a “serious crime,” is transnational and involves an organized criminal group.
194 UNODC, supra note 9 at 14–15.
195 “The United Nations has established a clear link between illicit mineral extraction and trafficking and armed conflict in the eastern DRC.” Ibid at 261–65.
196 Ibid. at 265.
197 ICC, Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v Sylvestre Mudacumura (ICC-01/04-01/12-1-Red), Pre-Trial Chamber II, 13 July 2012, Decision on the Prosecutor’s Application under Article 58.
198 UNODC, supra note 9 at 262.
199 UNODC, World Drug Report 2011 (New York: United Nations Publication, 2011), online: United Nations Office on Drugs and Crime <www.unodc.org/documents/data-and-analysis/WDR2011/World_Drug_Report_2011_ebook.pdf> at 8+at+8>Google Scholar; Statement by the President of the Security Council, 24 February 2010, UN Doc S/PRST/2010/4 (2010).
200 Eg, the UN Security Council has affirmed that “terrorism in all its forms and manifestations constitutes one of the most serious threats to peace and security.” SC Res 2083 (2012), UN Doc S/RES/2083 (2012). See also SC Res 748 (1992), UN Doc S/RES/748 (1992); SC Res 1373 (2001), UN Doc S/RES/1373 (2001); SC Res 1566 (2004), UN Doc S/RES/1566 (2004); SC Res 1636 (2005), UN Doc S/RES/1636 (2005).
201 Lolita C Baldor, “US Eyes Anti-Piracy Effort along West Africa Coast,” Associated Press, 26 March 2013, online: <http://www.stripes.com/news/africa/us-eyes-anti-piracy-effort-along-west-africa-coast-1.213563>.
202 SC Res 1373, supra note 200 at para 4.
203 Final Act, supra note 118. The Final Act also referred to drug trafficking as “a very serious crime” (ibid).
204 SC Res 2195 (2014), UN Doc S/RES/2195 (2014), preamble.
205 UNODC, supra note 9 at 109.
206 Ibid at 248.
207 “Illicit trafficking of drugs is increasingly recognized as a threat to international, regional, and national security, as well as public safety.” Geneva Declaration, supra note 185 at 4.
208 Statement by the President of the Security Council, 24 February 2010, UN Doc S/PRST/2010/4 (2010).
209 A More Secure World: Our Shared Responsibility: Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, UN Doc A/59/565 (2004) at 2.
210 Ibid at 52–53.
211 UNODC, “Transnational Organized Crime in West Africa: A Threat Assessment” (Vienna: United Nations Office on Drugs and Crime, February 2013) at 3.
212 Ibid at 18.
213 Ibid at 3.
214 Ibid at 4.
215 Geneva Declaration, supra note 185 at 33.
216 SC Res 1851 (2008), UN Doc S/RES/1851 (2008).
217 Statement by the President of the Security Council, supra note 208.
218 See, eg, Boister, supra note 4 at 4.
219 Ibid at 7.
220 UNGAOR, 6th Comm, 10 November 1989, UN Doc A/C.6/44/SR.38 (1989) at para 37.
221 See, eg, Ed Vulliamy, “How a Tiny West African Country Became the World’s First Narco State,” The Observer (The Guardian) (9 March 2008), online: <www.theguardian.com/world/2008/mar/09/drigstrade/print>.
222 UNODC, supra note 211 at 4.
223 Ibid at 5, 16.
224 Raggie Johansen, “Guinea Bissau: A New Hub for Cocaine Trafficking,” Perspectives (UNODC), Issue 5, (May 2008) at 4–7.
225 SC Res 2030 (2011), UN Doc S/RES/2030 (2011). See also SC Res 2103 (2013), UN Doc S/RES/2103 (2013).
226 UNODC, “Global Report on Trafficking in Persons” (2009) at 6, online: UNODC <www.unodc.org/documents/human-trafficking/Global_Report_on_TIP.pdf>.
227 Rome Statute, supra note 1, art 7(2)(c) specifies that “‘Enslavement’ means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.” See Darryl Robinson, “Defining ‘Crimes against Humanity’ at the Rome Conference” (1999) 93 AJIL 43 at 53, n 60; Christopher K Hall, “Crimes against humanity - para. 1(c)” in Triffterer, supra note 166, 191 at 191–94; Christopher K Hall, "Crimes against humanity - para. 2(c)" in Triffterer, supra note 166, 244 at 246–47. See also Gallagher, Anne T, The International Law of Human Trafficking (Cambridge: Cambridge University Press, 2010) at 214–17CrossRefGoogle Scholar; Tom Obokata, “Trafficking of Human Beings as a Crime against Humanity: Some Implications for the International Legal System” (2005) 54 ICLQ 445 at 445–46, 448–50. It has been suggested that acts of human trafficking can also fall under other crimes against humanity, including forcible transfer or other inhumane acts. Ibid at 450–51.
228 Rome Statute, supra note 1, art 7(1). For further discussion of the chapeau elements of crimes against humanity, see Robinson, supra note 227.
229 As noted by Obokata, supra note 227 at 453: “[I]t should also be stressed simultaneously that not all instances of trafficking amount to a crime against humanity.”
230 These are 2006 numbers. UNODC, supra note 226 at 48.
231 International Labour Organization (ILO), “A Global Alliance against Forced Labour,” Report of the Director-General (2005), International Labour Conference, 93rd Session at 14, online: ILO <www.ilo.org/public/english/standards/relm/ilc/ilc93/pdf/rep-i-b.pdf>.
232 Geneva Declaration, supra note 185 at 4. The UNODC has noted that, “[o]f the countries with the highest murder rates in the world today, many are primary drug source or transit countries.” UNODC, supra note 9 at 223.
233 Geneva Declaration, supra note 185 at 30.
234 ICC, Situation in the Republic of Kenya (ICC-01/09-19-Corr), Pre-Trial Chamber II, 31 March 2010, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya at para 131. There have certainly been criticisms of the decision to prosecute the post-election violence in Kenya as crimes against humanity, with those opposed arguing that the extent of the violence in Kenya and the category of alleged perpetrators does not meet the historical threshold that the definition of crimes against humanity was meant to address. See ICC, Situation in Kenya (ICC-01/09-19-Corr), Pre-Trial Chamber II, 31 March 2010, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya (Dissenting Opinion of Judge Hans-Peter Kaul). Nonetheless, charges of crimes against humanity were confirmed in relation to the post-election violence in Kenya and one case is currently at trial in The Hague.
235 See, eg, United Nations Convention against Transnational Organized Crime, supra note 40, art 3(1).
236 UNODC, supra note 9 at ii, v.
237 Ibid at 228.
238 UNODC, supra note 211 at 9.
239 UNODC, supra note 9 at 276.
240 UNODC, “Factsheet: Transnational Organized Crime: The Globalized Illegal Economy,” online: UNODC <www.unodc.org/documents/toc/factsheets/TOC12_fs_general_EN_HIRES.pdf>.
241 According to the World Bank’s 2009 numbers. World Bank, online: <databank.worldbank.org>.
242 See, eg, Cassese, supra note 5 at 4.
243 SC Res 1846 (2008), UN Doc S/RES/1846 (2008).
244 SC Res 2018 (2011), UN Doc S/RES/2018 (2011).
245 UNODC, supra note 211 at 5.
246 See Crawford, supra note 35 at 122. See also Boister, supra note 112 at 32–33; Einarsen, supra note 4 at 212–13, 253–55. Einarsen suggests, as a possible gravity element for grave trafficking crimes (including human trafficking, drug trafficking, weapons trafficking, and money laundering), the fact that the crimes are “committed as part of organised large-scale transboundary crimes.” Ibid at 285.
247 1991 Draft Code, supra note 50, art 25 [emphasis added]. Similarly, the proposal of Trinidad and Tobago and three other states to the Rome Conference regarding the crime of drug trafficking suggested four threshold criteria, namely when prohibited drug trafficking activities are committed:
-
(a)
(a) on a large scale (and) (or) in a transboundary context;
-
(b)
(b) within the framework of an organized and hierarchical structure;
-
(c)
(c) with the use of violence and intimidation against private persons, juridical persons or other institutions, or members of the legislative, executive or judicial arms of government, (thereby) creating fear or insecurity within a State or disrupting its economic, social, political or security structures or with other consequences of a similar nature; or
-
(d)
(d) in a context in which corrupt influence is exerted over the public, the media and public institutions.
See UN Doc A/CONF.183/C.1/L.48 (1998). See also Boister, supra note 93 at 347; Chatoor, supra note 93 at 303.
248 UNODC, supra note 183 at 83. See also Geneva Declaration, supra note 185 at 4: “Criminal activities such as trafficking in drugs or other illegal goods have also been used to finance war efforts in places such as Afghanistan, Bosnia and Herzegovina, Colombia and Liberia.”
249 See Boister, supra note 93 at 352–53.
250 Ibid at 347–49.
251 Ibid at 359–60.
252 Ibid at 360–64. Boister refers to the failed Convention for an International Criminal Court, 16 November 1937, (1938) League of Nations OJ Special Supp 156, League of Nations Doc C.547(I)M.384(I)1937V (not in force), which would have been a procedural mechanism that applied national law, as a potential model.