COMMENTARY ON THE ROME STATUTE FOR AN

INTERNATIONAL CRIMINAL COURT: A CADENZA FOR

THE SONG OF THOSE WHO DEED IN VAIN?1

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Robert Cryer

The author is a research student in the School of Law, the University of Nottingham.
The author would like to thank Ms. Jennifer Tooze who very kindly arranged for
him to attend the Rome Conference as an observer.

INTRODUCTION

Its (finally) nearly here. After 1252 years of proposals, on the 5th anniversary of the
ICTY (and the 50th anniversary of the oft-forgotten Tokyo trial), there is a treaty
designed to create a permanent international criminal court with at least a reasonable
chance of entering into force.3 The Statute was adopted on 17th July 1998, not by
consensus (even though the conference had proceeded on this basis), but on a US
requested vote, which led to the Statute's adoption by 120-21 -7.* The vote was on a
compromise proposal5 prepared by Phillipe Kirsch, the chairman of the Committee of
the Whole and presented to delegates less man a day before the final vote.6
Due to the tense and intense negotiations mat preceded the presentation of the
proposal, it represented an uneasy amalgamation of conflicting positions, and was
presented as an all-or-nothing close to the conference.7 The proposal, when adopted,
became the Rome Statute for an International Criminal Court (ICC), and must rank as
amongst the most important international criminal law treaties. The Statute and its
contents are highly controversial, and will doubtlessly be the cause of much academic
ink-spillage. It is not the intention of this comment to provide an exhaustive analysis
of the Statute or its history and prospects, but to provide a short introduction to it,
flagging particular items of interest and controversy. More a tourist guide or a map
man a monograph, so to speak.

STRUCTURE

The 18 judge ICC,1 which will be created between 2 and 3 months after the depository's
receipt of the 60th state ratification,9 will sit in the Hague, the Netherlands, along
with the ICJ and ICTY10 (possibly in the ICTY's custom modified building). Like the
ICTY, however, it is not tied to its official location, and may sit elsewhere, if it so
decides.
There are important structural differences to the UN tribunals. Unlike those bodies,
which are subsidiary bodies of the Security Council, the ICC will not be a Charter
based member ofthe UN family. The ICC is set up by its Statute, which is independent
272 Robert Cryer

of the UN, but will be brought into a relationship with the UN by an agreement to be
concluded between the UN and the President of the ICC.11 This is more analogous to
the procedure by which die specialised agencies or the International Atomic Energy
Agency became involved with the UN12 than to the UN's connection to the ICTY/R.
This is not to say, however, mat the Security Council will not have an important role

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to play in the ICC (see below).
Another difference between the ICTY/R and the new ICC is the relationship to
national courts. Whilst the UN tribunals are based on the principle of primacy
(superiority over national ICCs when they want it),u the ICC is based on the principle
of complementarity.14 This means mat the ICC is not intended to replace national
prosecutions, or even be superior to them. It is intended to work as a supplement to
national courts, when national jurisdictions are "unwilling or unable" to operate.15
This makes the ICC more of a long stop than a wicket-keeper, only coming into action
when the first line of fora has failed. This is a fundamental difference, and one which
may keep a huge number of cases from coming to the ICC." Also it is not to act as a
court of final appeal for national jurisdictions, if they have prosecuted the offence
(or even investigated) it diligently.17
The ICC will be constructed of (a) The Presidency, (b) an appeals division, a trial
division and a pre-trial division, (c) the office of the prosecutor, (d) the registry.11 The
Presidency is made up of 3 judges, (one president and two vice presidents),19 and is
responsible for the "proper administration of the ICC" (with the exception of the
prosecutorial wing), and has various other functions relating to the running oftrials.20
The three judicial divisions (the Appeals division, Trial division and Pre-trial division)
are to be set up as follows. The Appeals division will consist of the President and
four other judges, the trial division is two trial chambers of three judges each, as is
the pre-trial division.21 These three will conduct the judicial business of the ICC as
described below. The office of the Prosecutor is an independent separate organ of
the ICC, which is to receive referrals and information, examine them, then conduct
investigations and prosecute offences before the ICC.22 Whilst these three parts of
the ICC are not identical to their siblings in the ICTY/R, the imprint ofthe UN experience
can clearly be seen. The final organ ofthe ICC itself is the registry, which is responsible
for the "non judicial aspects of the administration and servicing of the ICC1.23 This
includes the creation of a victims and witnesses unit 24
In addition to the ICC, the statute sets up an "Assembly of State Parties"21 the
composition of which is largely self explanatory.26 It is to meet at least once per year
in the Hague or New York, and if needs be, hold special sessions there.27 Its duties
include deciding on financing and matters relating to compliance with the statute,
providing managerial oversight to the ICC and elaborating guidelines and rules for
it 21

JURISDICTION (RATIONE MATERIAE)

So, now we are on the cusp of a ICC, what can it try people for? This was one of the
most controversial issues before the conference, and the result bom in terms of
 Commentary on the Rome Statute for an International Criminal Court 273

inclusions exclusions and definitions is likely to provoke much debate. The ICC will
have jurisdiction over four types of crime. These are genocide, crimes against
humanity, war crimes and aggression.29 The most notable omissions from mis list are
terrorism and drug trafficking, two of the "treaty crimes" which were in the 1994ILC
draft,30 but remained bracketed (undecided upon) in the draft statute sent to the

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conference.31 Due to an inability to reach agreement on definitions of these crimes,
they were ejected in the last week ofthe conference.32 This caused some consternation,
so as a palliative for those disgruntled by their omission, the final act recommends
mat a review conference consider definitions of the crimes of drug trafficking and
terrorism with a view to including them in the list of crimes over which the Court has
jurisdiction.33
In relation to the crimes included, the definitions given in the statute vary between
the forward looking, the uncontroversial, the retrogressive, and the non-existent
This was a result of the delicate compromise which enabled the statute to be adopted
without recourse to optional protocols or another round ofnegotiations. The simplest
crime to define was genocide. The statute adopts the Genocide Convention definition
verbatim.34 Whilst the definition itself is far from perfect,31 it was simply considered
too settled to reopen. The definition of crimes against humanity is complex, and
deserves full quotation:

Tor 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:

(a) Murder,
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilisation, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectively on political, racial,
national, ethnic, cultural, religious, gender... or other grounds mat are
universally recognised as impermissible under international law, in connection
with any act referred to in mis paragraph or any crime within the jurisdiction
of the Court;
(f) Enforced disappearance of persons;
Q The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering,
or serious injury to body or to mental or physical health."36

Definitions of the various terms are given in Article 7(2). In terms of what appears on
its face, the definition looks quite wide, and in some respects it is so. A major step
274 Robert Cryer
forward is taken by the acceptance mat crimes against humanity may be committed
not only in war, but peacetime too. This is an improvement on1 previous definitions,
as although customary international law had probably already reached this point,37
there is now a treaty based affirmation of this. Also of note are the additions to the
list of actions amounting to crimes against humanity. These are the sexual crimes in

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(g), enforced disappearances (i) and apartheid (j). This is not to say that any of these
crimes could not have been subsumed under any of the previous definitions (in the
Nuremberg, ICTY or ICTR Statutes), however, their inclusion is ofuse, obviating the
need for strained interpretations of acts to bring mem under prior codifications.
Another positive aspect of the definition is the reassertion of the separate nature of
persecution as a crime against humanity.3* It was considered as such in the Nuremberg
statute, however, the ICTY had interpreted its statute asrequiringa discriminatory
intent as an aspect of all crimes against humanity,39 a requirement express in the
Statute of the ICTR.40
There have been criticisms of the otherrequirementscontained in the general
definition, mat the proscribed acts occur as a part of a widespread or systematic
attack on a civilian population, pursuant to a state or organisational policy.41 The
criticisms have focused on thefeetmat mis would exclude isolated atrocities.42 This
may be the case, but two points need to be made. As the Tadic case made clear,
single acts may still be prosecuted, as long as they are a product of a policy driven
attack.43 Secondly, the customary prohibition of crimes against humanity probably
contains such limits44
That said, there are problems with this article, for example, the definition of gender
as "the two sexes, male and female, in the context of society"43 is at most, Delphic. In
addition, the definition of enforced pregnancy includes the limit that it be done "with
the intent of affecting the ethnic composition of any population or carrying out other
grave violations of international law".46 This may be reintroducing a discrimination
requirement by the back door, and the phrase "grave violations of international law"
is hardly precise. Another problem could comefromthe limitation ofthe prohibition
of deportation or forcible transfer of population to removal of persons "from the area
where they are lawfully present" inasmuch as this could depend on national laws, it
could equally be circumvented by mem.47
War Crimes also present a fascinating and controversial part of the statute, but
due to space restrictions only an overview can be given here. The ICC has jurisdiction
over "war crimes in particular when committed as a part of a plan or policy or as part
of a large scale commission of such crimes".41 Thus it would seem that whilst it is
directed to pay more attention to the latter situations (which could also overlap with
crimes against humanity) it is not absolutely barred from looking at other serious
violations of the laws of war. This is fortunate, as some states wanted a higher
threshold.49 This possibility drew a rare public statementfromthe ICRC, noting that
there is no threshold in humanitarian law, but that the proposal eventually adopted
was acceptable on the understanding mat isolated acts would be prosecuted
nationally.*0
The statute then goes on to give four categories of war crime. The inclusion of
thefirstcategory was never in doubt, it is grave breaches of the Geneva Conventions
 Commentary on the Rome Statute for an International Criminal Court 275

of 1949.51 The second category is odier serious violations of die laws and customs of
war.32 There follows a long (closed, thus by definition incomplete) list," based inter
alia on parts of Hague Declaration 3," die Hague Regulations,55 die 192S Gas
Protocol,3* die Geneva Conventions,57 and Additional Protocol I.51 Many of its
inclusions and omissions are of interest, die following being merely a sample. The

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inclusion of rape, sexual slavery, enforced prostitution and forced pregnancy and
other forms of sexual violence is welcome, although for forced pregnancy the
definitional problems ofArticle 7(2X0 a r e retained.59 Another positive addition is the
inclusion of attacks against UN personnel. This was originally to be covered as a
"treaty crime" like terrorism and drug trafficking.60 However with their (possibly
temporary) demise, it was decided to add some protection for UN personnel under
me war crimes provision. In the formulation in Article 8, mere is a limit not in me old
convention, diat attacking UN personnel is only a crime if mey were entitled to the
protections international law gives to civilians, which could dilute meir protection.61
The prohibition of certain weaponry cannot be regarded as satisfactory. Due to
die argument over die inclusion of nuclear weapons, die use of bodi chemical and
biological weapons is not prosecutable under die statute, and for die use ofparticular
weapons to be criminalised under the statute, diat weapon must be subject to a
comprehensive prohibition and included in an annex to the statute.62 Few would
deny me evil of nuclear weapons, but die exclusion of chemical and bacteriological
weapons was a high price to pay for their omission, particularly as almost every
conceivable use of nuclear weapons could fall foul of omer parts of the article.
Lastly, a controversial addition to me list was die transfer of its own population into
occupied territory by die occupier, or deportation of die population of an occupied
territory. This comes from Article 49 of Geneva Convention IV (made a grave breach
by Article 85(4)(a) API, which also clarifies die second part). This led to Israel
regrettably voting against die statue (for reasons not impossible to imagine).63
The introduction of war crimes in internal conflict into die statue are a major
advance, in diat for the first time in a treaty document, mey expressly criminalise
violations of die laws of war applicable in internal armed conflicts. It would probably
be fair to say diat die assumption ofjurisdiction over such violations by the ICTY64
and ICTR65 was catalytic in die acceptance of this extension, ahhough it is not totally
unprecedented.66 The uiird category of crimes (Article 8(2Xc)) consists of "serious
violations of Article 3 common to die four Geneva Conventions of 12 August 1949".
An advance, but tiiere is a catch, for unlike die conventions, Article 8(2Xc) is said
not to apply to "internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a similar nature".67 This language is from
Additional Protocol H,6* which has a highertiiresholdof applicability.69 The higher
threshold, on die other hand is imposed more by me requirement in the Protocol diat
die insurgent force to have a responsible command and exercise control over territory
than die phrase quoted above. So maybe this does not add anything not implicit in
me restriction in die Geneva Conventions diat common Article 3 only applies to
"armed conflicts of a non-international character". Category 4 of this Article covers
serious violations of die laws and customs applicable in non international armed
conflict.70 It enumerates a list containing ten of die violations applicable in
276 Robert Cryer

international conflict in 8(2)(b).TI and two others (displacement of the civilian

population and treacherous killing of an adversary).72 There are two clawbacks from
this advance. Firstly there is a threshold, like category 3 crimes,riotsetc. are excluded,
but it also only applies to armed conflicts that "take place in the territory of a State
when there is protracted armed conflict between governmental authorities and

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organized armed groups or between such groups".73 It is different to that in Additional
Protocol II, in notrequiringterritory to be held by the insurgents, and importantly,
accepts that it is applicable when there is no governmental involvement in the conflict
(a lacuna in the Protocol). The second is the omission of much of the law on means
and methods of warfare determined to apply in internal conflicts in the Tadic case.74
The final crime over which the ICC will have jurisdiction is the most controversial,
aggression, and the controversy has spilt over into the statute. The inclusion of the
crime was divisive, and at the conference, no definition was even close to being
agreed upon.73 As a result, a skeletal jurisdiction was created. The ICC has jurisdiction
over the crime,76 but will not be able to exercise jurisdiction over it until the states
party agree a definition and any conditions for exercise of jurisdiction (Le. a decision
on the role of the Security Council in determining aggression and therelationof such
determinations to the ICC).77 The earliest this could occur is seven years after the
entry into force of the statute,7* and there is no guarantee that agreement will be
possible even then.
The ICC has inherent jurisdiction over all 4 crimes in the first instance.79 No
further state consent is required. This represents a large victory for the supporters of
a strong ICC, as previous proposals would have required "opting hi" by states to
particular crimes in addition to signing the statute.80 Unfortunately this is subject to
two exceptions. The first relates to the conditions to be elaborated relating to
aggression (see above). The other is the "transitional" provision in Article 124. By
virtue ofthis provision a state may declare that it does not accept the ICC's jurisdiction
for war crimes committed by its nationals or on its territory for a period of seven
years from the entry into force of the statute. Article 124 is perhaps the ugliest aspect
of the compromise and until the first review conference is convened," when states
parties are invited to reconsider (and hopefully remove) mis Article, it remains a
gaping loophole through which many international criminals could pass.

GENERAL PRINCIPLES OF CRIMINAL LAW

The statute creates liability for committing, ordering, aiding and abetting or otherwise
assisting or contributing to the commission of, all 4 crimes.*2 Liability exists for
attempts to commit any such crime, unless the person concerned fully and voluntarily
gives up the attempt*3 Additionally, there is the crime of direct, public incitement to
genocide.*4
The statute also provides for command responsibility, both of military superiors
and civilian leaders, albeit subject to different tests.*5 For a "military commander or
person effectively acting" as one,*4 liability exists for offences committed by forces
under his control when two conditions are fulfilled. These are that the commander
 Commentary on the Rome Statute for an International Criminal Court Til

knew, or due to the circumstances, should have known that those forces were
committing or were about to commit such crimes and the commander failed to take
"all necessary and reasonable measures within his power" to prevent or repress the
offences, or to submit the matter to prosecuting authorities.*7 For "superior and
subordinate relationships" other man those described above (primarily civilian

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leaders), where the crimes concern activities within the effective responsibility of
that leader," the test is nearly the same. The only difference is mat where military
commanders are liable if they should have known of offences or their imminent
commission, others are liable only if they "consciously disregarded information
which clearly indicated" that such actions were being taken or being contemplated.*9
In contrast to all previous international criminal courts, superior orders is not
entirely ruled out as a defence by the statute. Superior orders constitute a defence if,
and only if, the orders were not known by the subordinate (who had a legal duty to
obey) to be illegal and they were not manifestly unlawful.90 This was a controversial
aspect of the statute as many wished for a reassertion of the rule most recently
adopted in the 1996 ILC Draft code of Crimes Against the Peace and Security of
Mankind,91 that superior orders can never be a defence, only a mitigatory
circumstance. This is understandable, but it must not be forgotten that mis rule only
had its genesis in the Nuremberg statute,92 which was probably not consistent with
prior international law on the subject, as the previous customary law accepted the
manifest illegality test93 The denial of the defence at Nuremberg has not remained
uncriticised. Dinstein, for example called it "high handed and sweeping" and its
inclusion in the ICTY statute led McCoubrey to warn against over broad interpretation
ofthe Nuremberg precedent, which was drafted with highly exceptional circumstances
in mind.94 As a result, the provision may not be as bad as some suggest, and, of
course, even if the person obeying the order is absolved of liability this way, the
giver of the order will still be responsible for the crime. In addition, the provision is
narrowed by the limit that the defence is unavailable with respect to orders to commit
genocide or crimes against humanity, as the statute provides that such orders are
manifestly unlawful.95
Other grounds for the exclusion ofresponsibilityinclude mental illness, involuntary
intoxication, reasonable defence of self or others,96 and duress.97

JURISDICTION (RATIONE PERSONAE)

Having canvassed what crimes the ICC will have jurisdiction over, it is necessary to
see who it may try for those crimes. Firstly, its jurisdiction is limited to natural
persons.9* By omission, it is clear that states and legal persons such as corporations
are not liable under the statute. All natural persons over 18 are liable,99 there is to be
no immunity for heads of state or diplomats and immunity is not available to any
person by virtue of their position.100 The ICC only has jurisdiction over offences
committed after the entry into force of the statute.101 As a result those calling for the
trials of Augusto Pinochet or Saddam Hussein before an international criminal court
278 Robert Cryer

will be unable to gain satisfactionfromthis ICC. As a further aspect ofnon-retroactivity,

there is no liability for crimes committed by nationals, or on the territory, of a state
prior the entry into force of the statute for mat state. This is unless the state has
consented to the jurisdiction of the ICC on an ad hoc basis under Article 12(3).im
This, in turn is an aspect of the jurisdictional regime of the ICC with respect to

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state parties (the Security Council is a different matter, on which, see later). Under the
state party jurisdictional regime, far from the universal jurisdiction desired by its
supporters and feared by some states, the ICC does not have jurisdiction over the 4
crimes wherever, and by whoever, they are committed. For the ICC to act one of two
states must have accepted its jurisdiction either by signing and ratifying the statute,
or by consenting to the court's jurisdiction on an ad hoc basis.103 The relevant states
are the state on which the alleged offence occurred, and the state of which the
alleged offender is a national.104 So the actual exercise ofjurisdiction is closer to the
representational form of jurisdiction man any kind ofuniversality. The ICC's assertion
ofjurisdiction is effectively one offranchisedterritorial or nationality jurisdiction,
the ICC acting as the consented to representative of the state with jurisdiction under
one of those heads. Whilst an international court assuming mis role is not the norm
under the representational principle, this head of jurisdiction is not unheard of in
international criminal law. Many treaties containing international offences provide
that in the event of a refusal of an extradition requestfroma state with jurisdiction,
the custodial state may step into the shoes of the requesting state, using that
country's jurisdiction to prosecute the offence as opposed to its own.109 Where
territorial jurisdiction is used as the basis of the ICC's jurisdiction, but the state of
nationality of the accused does not recognise the jurisdiction of the ICC (i.e. where
the territorial state has ratified the statute, but the state of nationality has not), an
interesting point ofthe territorial state's position with respect to the state of nationality
arises. Is it contrary to international law to send another country's national to a
jurisdiction unrecognised by his home state?106
The form ofjurisdiction impliedfromother method by which the ICC may gam
jurisdiction over a crime may not be the same. The Security Council, acting under
Chapter VII, mayreferany situation to the prosecutor, with a view to investigation
and prosecution.m If the Security Councilrefersa matter to the ICC, it is irrelevant if
either of the states mentioned above is a party to the statute or has expressed its ad
hoc consent or not10* Thus the ICC need not be acting as a representative of either.
This may therefore be closer to universal jurisdiction. An interesting question,
however is on whose authority is this universal jurisdiction exercised? If it is the
Security Council's, men the ICC is only acting as its representative, and all its
jurisdiction may be described in terms of representation. If it is not the Council's,
then it must be accepted that the ICC has a residual authority to enforce universal
jurisdiction, subject, however to Security Council control.
In this respect, it is worthwhile to recall the ICTY Tadic opinion, where it decided
on the issue of the power of the Council to set up a tribunal (the ICTY) which could
exercise a judicial function. Inrelationto the powers of the Council in this area the
majority opinion stated;
 Commentary on the Rome Statute for an International Criminal Court 279

"The establishment of me International Tribunal by the Security Council

does not signify, however, mat the Security Council has delegated to it some
of its own functions or the exercise of some of its powers. Nor does it mean,
in reverse, that the Security Council was usurping for itself part of a judicial
function which does not belong to it... The Security Council has resorted to

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the establishment of a judicial organ in the form of an international criminal
tribunal as an instrument for the exercise contributing to die restoration and
maintenance of peace in the former Yugoslavia."109

This would certainly lead towards the conclusion mat the Council itself does not
have any jurisdiction to transfer, although the opinion does not elaborate what kind
of jurisdiction the tribunal exercises, or precisely where it came from."0 As a result, it
may be that the ICC does, in mis situation, have a form of universal jurisdiction,
albeit one limited by it having an initial filter of Security Council consent 1 "
In relation to jurisdiction, the Security Council also has a more negative role. A
Security Council resolution adopted under Chapter VII may request (in a binding
way) that die ICC defers investigation or prosecution of a particular situation for 12
months. This request is renewable with no upper limit on the number of such
requests."2 Thus the Security Council can prevent the ICCfromexercisingjurisdiction
for as long as it can gain the majority for such resolutions. This is calculated to
weaken the ICC in some situations, and is a sign of the wider political questions
surrounding prosecution of international offences. On the other hand, if the Security
Council is to have a role of mis type, it is fortunate mat mis formulation, which puts
the burden ofpersuading a majority ofthe Council (and all ofthe permanent members)
onto those seeking to prevent prosecution. Other proposals (supported mainly by
some permanent members) would have had all exercises ofjurisdiction by the ICC
dependent on an authorising Council resolution,113 which would probably have
crippled the ICC.

TRIGGER MECHANISMS

Including Security Council references, there are three ways a matter can be brought
to the attention of the ICC. The first is by a state party referring a situation to the
Prosecutor.114 Any state party may do this, no other locus standi is required. The
second way is for the Security Council, acting under Chapter VII, to refer a matter to
the Prosecutor.115 The final, and most controversial, way is for die Prosecutor, acting
exproprio motu, to begin investigations into situations, subject to the approval of
a pre-trial chamber, which must decide if mere are reasonable grounds for further
investigation.116 The ex proprio motu powers of the prosecutor amount to an
exceptional complement to the jurisdictional regime of the ICC, as a pro-active
prosecutor need not wait on the decisions of states to submit situations117 or the
vagaries of the veto in me Security Council. The overseeing of investigations by,
and the power to end them in, a pre-trial chamber, will hopefully not limit the prosecutor
from all legitimate exercises of his or her wide powers under Article IS.
280 Robert Cryer

PROCESS

Once a matter has been referred to the prosecutor, or she has been authorised to
continue a self-initiated investigation, the prosecutor must decide ifthere is reasonable
basis for belief that crimes have been committed, and mat the cases relating to mem

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would be admissible under Article 17.'" If so, and mere are no "substantial reasons"
for her not to investigate, the prosecutor may conduct an full investigation in
accordance with Article 54.119 If cases are found to lie against individuals, the
prosecutor may approach the pre-trial chamber to issue an arrest warrant, which, if
the certain conditions are fulfilled, must be granted.120 Once the accused has been
arrested,121 has made an initial appearance before the ICC122 and all or some the
charges have been confirmed,121 he is to stand trial.
Trials are normally to occur at the seat of the ICC, in the presence of the accused
(unless he is continually disrupting the proceedings).124 The proceedings are to
respect the fair trial rights of the accused,125 and also the rights of victims to
protection, and to a certain extent, theirrightto participation in the trial.126 In protection
of therightsof states in relation to their national security interests, procedures are in
place for resolving problems occurring where states fear that some evidence to be
disclosed at trial may affect their national security interests, as is quite possible
when dealing with military matters, particularly inrelationto war crimes. w
The decision at trial is by one opinion, which is to be based on the evidence
presented at trial alone. If it is not unanimous, it must contain the views of the
majority and minority.12* An accused found guilty may be sentenced to a period of
up to thirty years, life imprisonment, and a fine and/or forfeiture of property derived
from the crime. The death penalty is not provided for in the statute, and thus is not
in the punitive arsenal of the ICC.129
Appeals against the decision by both prosecution and defence are allowed on
the basis of a procedural error or an error of feet or law.130 Either side may appeal the
sentence on the ground of disproportion.131 An accused can also appeal the decision
on "any other ground mat affects the fairness or reliability of the proceedings or
decision".132 In deciding on the appeal, the judgment must contain any minority
opinion, and in contrast to trial level judgments, separate or dissenting opinions on
matters of law are expressly provided for.133
Upon sentencing the accused is to be transferred to a country who has agreed to
accept prisoners from the ICC, to serve his sentence. After two thirds of the sentence
imposed has passed, review of the sentence and the possibility of parole is to be
discussed by the ICC.134 In the case ofa prisoner serving a life sentence, the sentence
is to be reviewed after 25 years.13' After completion of the sentence, the state mat
enforced the sentence may allow her to remain in that country, or deliver her up to
any state obliged or willing to accept her.13* The ICC is to take into account the
wishes of the convicted person when deciding where to send her, but is not obliged
to send her where she pleases.137 This (hopefully) would constitute the end of the
involvement of the ICC with that individual, it only coming back into his life if she
reoffends, or material comes to light mat could have led to a different decision at
trial.138 In this instance a trial chamber can be reconvened to decide the case.
 Commentary on the Rome Statute for an International Criminal Court 281

CONCLUSION

Now a statute has been adopted, can it live up to the hyperbole? Possibly not,
although almost nothing realistically possible could have. The statute is a compromise,
and vacillates uneasily between the contradictory demands of absolutist notions of

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sovereignty and (real or imagined) community values of international society. This
has led to a statute where provisions giving precedence to one or the other of the
principles coexist uncomfortably. For example the strong assertion of inherent
jurisdiction over all four crimes is subject to a 7 year opt-out for war crimes, and
whilst the Prosecutor has strong proprio motu powers to instigate investigates,
some of the powers of investigation and compulsory disclosure are more clearly
influenced by state interests in limiting access to territory and documents.139 Still,
there are also some innovations which are not so qualified, for example the statute
shows increased gender sensitivity and the court has the right to issue compensatory
awards to victims.140 Unfortunately, there are still unresolved differences retained in
the statute. For example deep divisions on finance were glossed over.141 As a result
of the above, it is unlikely that the ICC could ever become a global panacea, trying
every war criminal, criminal against humanity or genocidaire in the world. But that
was implicit from the start The ICC was planned only as a complement to national
jurisdictions, and hopefully, as a catalyst to national prosecutions. After all, national
jurisdictions are the primary enforcers of international criminal law and they have the
benefits of a coercive enforcement structure for investigation, arrest and enforcement
of orders (such as subpoenae) which, in the absence of a global government, does
not fully exist in the international sphere.
For it to succeed in this, more modest role, the ICC had to provide for minimal
effectiveness such mat national jurisdictions would be prodded into action, if for no
more edifying reason man to avoid having their dirty laundry examined in a highly
public fora. The statue probably provides enough for this, and the magnitude of the
achievement in even getting a statute at all should not be underestimated. There is
now a statute, which given state co-operation could function effectively. The
mechanism is not perfect, but it is mere, the rest is up to states. So far, with 68
signatories (as at 10 December 1998) some states are showing that whilst the statute
may not have been greeted with a universal chorus of approval, neither did the
conference end with an uninspiring fadeout In light of the latter having been the fate
of all earlier attempts to promulgate a viable statute, the Rome statute remains a huge
leap forward.

NOTES

"Sit down and bargain, all you like grizzled old foxes. We'll wall you up in a splendid palace ...
Provided that you discuss, negotiate, for our and our children's lives ... But outside in the cold
we will be waiting for you, the army of those who died in vain ... Heaven help you if you come
out disagreeing, You'll be clutched tight in our embrace... Sit down and bargain, until your
tongues are dry. If the havoc and shame continue, we'll drown you in our putrefaction."
282 Robert Cryer
Primo Levi, "Song of Those Who Died in Vain" in, Primo Levi (translated by Ruth Feldman),
Collected Poems (London: Faber & Fabcr 1992), p.82.
2
The first modern proposal being in 1872. See C X Hall, The First 'Proposal for a Permanent
International Criminal Court", (1998) 322 Int. Rev. of the Red Cross p.57.
J
Rome Statute for an International Criminal Court, A/CONF.183/9, reprinted in (1998) 38
I.LM. p.999.

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4
The vote was unrecorded, but Michael Scharf, "Results of the Rome Conference for an
International Criminal Court" [August 1998] A.S.I.L Insight, p.l, claims that those voting
against the statute were China, Israel, US, Libya, Iraq, Qatar and Yemen.
5
A.CONF.183/C/L78 & Adds 1-14.
* The late presentation of the proposal led Singapore to abstain in the final vote. See UN Press
Release L/ROM/22.
7
The attempts by the US and India to insert amendments relating to a jurisdictional limiter and
the inclusion of the use of nuclear weapons as a war crime (A/CONF.183/C.1/L90 & L.94
respectively), were defeated by a vote to take no action on them.
• Article 36.
» Article 126.
10
Article 3.
" Article 2.
u
On which see, for example, H.G. Schemers & N.M. Blokker, International Institutional Law
(The Hague: Martinus Nijhoff, 3rd ed. 1995) pp.1056-1062.
u
Article 9(2) ICTY Statute, Article 8(2) ICTR Statute. See B. Brown, "Primacy or
Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal
Tribunals", (1998) 23 YaleM.L p.383; A. Bos, "The Role of an International Court in the
Light of the Principle of Complementarity", in E. Denters & N. Schriver (eds.), Reflections
on International Law From the Low Countries (The Hague: Martinus Nijhoff; 1998) p.249.
14
Preambular paragraph 10 & Article 1.
15
See Article 17, which in addition to providing these grounds for dismissal (17(l)(a,b)) also
elaborates their meaning (17(2X3)). The conditions attached to their meaning are, on their
face very stringent, and could lead to a paucity of cases before the court
16
It is interesting to note that the ICTY judgment in the Tadic case said that "when an
international tribunal such as this is created, it must be endowed with primacy over national
courts". Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor
v Dusko Tadic a/k/a "Dule", IT-94-1-AR72, 2 October 1995. para 58.
17
Article 17, Article 20. This is unless the proceedings were carried out in order to shield that
person from the international court, or were not independent or impartial, respecting the
rights of the accused. (Article 20(3)).
'» Article 34.
" Article 38.
20
Article 38(3). The other functions include excusing judges (Article 41(1)), excusing a prosecutor
(Article 42(6)), and designating alternate judges, (Article 74(1)).
21
Article 39 (1)(2).
22
Article 42.
° Article 43.
24
Article 43(6).
25
Article 112.
26
In addition t o states party, those having signed, but not having ratified may act as observers,
and the President, Prosecutor or Registrar m a y participate as appropriate. (Article 112(5)).
27
Article 112(6).
28
Article 112(2)
29
Article 5(a-d) respectively.
30
ILC 194 Draft Statute for an International Criminal Court, Article 2 0 (e). T h e 1994 ILC
Draft is contained in the "Report o f the Working Group on a Draft Statute for an International
Criminal Court" in 1994 Report of the ILC on its 46th Session. U.N. Doc. A/49/10.
" Report of the Preparatory Committee on the Establishment of an International Criminal
Court A/CONF.183/2/Add.l. Article 5(e). See C.K. Hall, "The Sixth Session of the UN
 Commentary on the Rome Statute for an International Criminal Court 283
Preparatory Committee on the Establishment of an International Criminal Court", (1998)
92 AJJ.L p.548. On the PREPCOM's work see also C.K. Hall, "The First Two Sessions of
the UN Preparatory Committee on the Establishment of an International Criminal Court",
(1997) 61 A.J.I.L. p. 177; "The Third and Fourth Sessions of the UN Preparatory Committee
on the Establishment of an International Criminal Court", (1998) 62 A.J.I.L p. 124; "The
Fifth Session of the UN Preparatory Committee on the Establishment of an International

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Criminal Court", (1998) 92 AJ.l.L. p.331.
See A/CONF.183/C.1/L59, which effectively foreclosed the issue.
See A/CONF/183/10. Annex E. The UK was insistent, however, that this did not pre-judge
the issue of their inclusion at any point in the future. See UN Press Release L/ROM/22.
Article 3. Repeating Convention on the Prevention and Punishment of the Crime of Genocide
1948. 78 U.N.T.S. 277, Article m .
See S. Ratner & J. Abrams, Accountability for Human Rights Atrocities in International Law
(Oxford: OUP, 1997) pp.41-44.
Article 7(1). The list is similar to that in the 1996 ILC Draft Code of Offences Against Peace
and Security of Mankind; Article 18. See Hall (Third & Fourth Sessions) supra n.31, p. 126.
See Tactic, supra n.16, para. 141.
And the addition of gender as a prohibited ground of discrimination.
Judgment, Prosecutor v Dusko Tadic a/k/a "Dute ", IT-94-1-T., 7 May 1997, para.652.
Article 3, ICTR Statute.
Article 7(l),(2Xa). The inclusion of "organisational" policy was added as it was accepted mat
other actors, such as sub-state entities (such as those in Bosnia-Herzegovina) could also plan
such attacks. It is uncertain, however, precisely how large or small such organisations need to
be.
See I. Guest, "Beyond Rome-What Are the Prospects for the International Criminal Court?"
(27 July 1998) I On the Record, <http://www.advocacynet.org/icc/2707.html>.
Review of the Indictment Pursuant to Rule 61, Vukovar Case, IT-9S-13-R61 3 April 1996
para. 30 "as long as there is a link with the widespread or systematic attack against a civilian
population, a single act could qualify as a crime against humanity. As such, an individual
committing a crime against a single victim or a limited number of victims might be recognised
as guilty of a crime against humanity if his acts were part of the specific context identified".
See Ratner & Abrams, supra n.36, pp.57-67.
Article 7(3).
Article 7(2)(f).
On this, and the limit on enforced disappearances to those planned to be removed from the
protection of the law "for a long period of time", see Guest, supra n.42.
Article 8(1).
See A/CONF.183/C.1/L59. Article 5, Option 1.
See A/CONF.183/INF/10.
Article 8(2)(a).
Article 8(2)(b).
As the list was accepted as being incomplete, Article 10 declares that nothing in this part shall
be interpreted as limiting or prejudicing existing or developing rules of international law, thus
not preventing prosecutions for other war crimes before other fora.
1899 Hague Declaration 3 Concerning Expanding Bullets, 32 U.K..T.S. (1907) CdJ751. Used
in Article 8(2)(b)(xix).
Annex to Hague convention IV Respecting the Laws and Customs of War on Land, 9 U.K.T.S.
(1910) Cd. 5030 provides the inspiration for Article 8(2)(bXv, vi, vii(updated to include the
UN), xi-xvii)
Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases,
and of Bacteriological Methods of Warfare, 24 U.K..T.S. (19130) Cmd. 3604, used in Article
8(2)(b)(xviii)-but notably not including the Protocol's extension of the prohibition to
bacteriological warfare.
Geneva Conventions I & II (Relating to the Protection of the Wounded and Sick on Land and
the Wounded, Sick and Shipwrecked at Sea.) 75 U.N.T.S. 31, 75 UXT.S. 75 U.N.T.S. 85, are
related to 8(2)(b)(ix, xxiv); Geneva Convention IV Relative to the Treatment of Civilian
284 Robert Cryer
Persons in Tune of War 75 U.N.T.S. 237 Used in Article 8(2)(bXviii (with a notable addition),
xxiii) f
a
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts 1125 U.N.T.S. 3. As the basis of
Article 8(2)(bXi, ii iv, x, xxiii, xxiv, xxw) It is important to note, however, that unlike much
of the above, there are differences between the provisions in the protocol and the statute. On

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all the above see Hall (Fifth Session) supra n.31 pp.333-5.
" Article 8(2)(b)(xxii).
60
The offences in the draft sent to the conference from the PREPCOM (A/CONF. 183/2/
Add.l) contained offences basically similar to some of those in the UN Convention on the
Safety of United Nations and Associated Personnel, GA.Res 49/59. Article 9.
61
Article 8(2)(b)(iii).
a
Article 8(2)(b)(xx).
° See UN Press Release L/ROM/22.
64
In Tadic. supra a. 16, paras.128-137.
65
Article 4 ICTR Statute.
66
See, for example the Belgian Loi 16 June 1993, (Moniteur Beige 5 August 1993) and the
military manuals cited in Tadic, supra n.16, para 131.
a
Article 8(2)(d).
a
Protocol II Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of non-International Armed Conflicts 1125 U.N.T.S. 609. Article 1(2)
• Article 1(1).
70
Article 8(2)(e).
71
Ibid,(i-m, i-vii, x-xii) are identically worded to those in Article 8(2Xb)(i, ix, xiv, iii, ix, vxi,
xxii, xxvi, xii, x, xiii) respectively.
72
Article 8(2Xe)(viii & ix) respectively.
71
Article 8(2X0. The language was self consciously based on that of the ICTY in Tadic, supra
n.16, para.70.
74
See Tadic, supra n.16, para.120-127.
73
For proposed definitions see A/CONF. 183/2/Add.l, A/CONF.183/C.1/ L.37, L.39, L.53, &
L.56.
76
Article 5(l)(d).
77
Article 5(2).
71
Article 121.
79
Article 5.
" See A/CONF. 183/2/Add. 1. Article 9.
" 7 years into the life of the statute (Article 121).
B
Article 25(a-d).
*> Article 25(f).
" Article 25(e).
° Article 28.
* This reflects the less formal nature of some militias, particularly in civil wars.
17
Article 28(1).
° Articles 28, 28(2)(b). This is narrower than the test used at the Tokyo trial for high level
government officials, (which imposed collective liability on all cabinet members, and demanded
resignation, even of those powerless to prevent such crimes if they were to be absolved of
liability). See B.V.A. Roling & C.F. Rater, The Tokyo Judgment (Amsterdam, Amsterdam
U.P., 1977) pp.29-30. It is closer to the test they elaborated, ibid, p.31 for "departmental
officials". There is no such distinction in the ICC statute. Recently, in the Celebici judgment
the ICTY said that civilians were subject to the same test as military commanders. Judgment,
Prosecutor v Zenjil Delalic, Zdravko Mucic, Hazim Delic and Esad Lamo, IT-96-21-T, 16
Nov. 1998, paras. 354-63.
*> Article 28(2).
50
Article 33(1).
" See Report of the ILC on the Work of its 48th Session, A.CN.4/L527/Add.lO. Article 5.
 Commentary on the Rome Statute for an International Criminal Court 285
Agreement for the Prosecution and Punishment of the Major War Criminals of the European
Axis 82 U.N.T.S. 279, Article 8.
See L. Green, The Contemporary Law of Armed Conflict (Manchester. MUP, 1993) pp.293-
297. Dinstein, The Defence of Obedience to "Superior Orders" in International Law (Leyden:
Sitjhoff, 1965) p. 103.
H. McCoubrey, "War Crimes Jurisdiction and a Permanent International Criminal Court",

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(1998) 3 J.A.C.L p.9 at p.21.
Article 33(2).
Controversially, this includes defence of property in some circumstances.
Article 31(l)(a-d). This last provision amounts to a repudiation of the ICTY Erdemovic
appeal, which disallowed duress in any circumstance. See Judgment, Prosecutor v Drazen
Erdemovic, IT-92-22-A, 7 October 1997. The statue also extends it to a form of necessity,
by accepting duress of circumstance (Article 31(l)(dXii))-
Article 25(1).
Article 26.
Article 27.
Article 11.
Or presumably if the Security Council refers the matter (see later).
Pursuant to Article 12(3).
Article 12(2).
See G. Gilbert, Transnational Fugitive Offenders in International Law (The Hague: Martinus
Nijhoff, 1998) p. 102.
This author's position is that it would probably not be, unless a violation of that accused's
internationally protected human rights would be in jeopardy in the court dealing with the
crime. However, an argument of this point is beyond the scope of this article.
Article 13(b). As Security Council practice has expanded since 1990 to include the commission
war crimes, crimes against humanity and genocide as "threats to the peace", it could refer
effectively any situation where such offences were being committed to the court See Resolution
955, and the statements of {inter alia) France and Pakistan in S/PV3453, at pp.2 & 7.
Article 12(2).
Tadic, supra n.16, para.38.
Resolution 827 could be seen in at least four ways. 1. Creative of an organ with inherent
jurisdiction, from the Council's authority. 2. A demand to states to recognise the jurisdicrJonal
competence of the ICTY. 3. A demand to states to pool (non-exlusively) part of their
universal jurisdiction in the tribunal. 4. As setting up an organ of the international community,
which exercises universal jurisdiction. This being because universal jurisdiction is based on
community values (unlike the other forms of jurisdiction, which are based on state interests),
so it is exercisable by an organ of the international community.
If this is the position, then there still lies the question of where its jurisdiction comes from,
the ICC's jurisdictional basis here is not necessarily the same as that of the UN tribunals. If its
jurisdiction is inherent in the ICC then it is not a court exercising representative jurisdiction
in all cases. If, however, it is a (non-exclusive) pooling of the universal jurisdictions of the
state parties, then all the ICC's jurisdiction would be representational.
Article 16. It was based, with some modification, on a Singaporean proposal of 1996. See Hall
(Third & Fourth Session) supra n.31, p.131.
See Hall, ibid.
Article 13(a), Article 14.
Article 13(b).
Article 13(c), Article 15(3-5).
The experience of human rights instruments providing for state complaints against other
states has been extremely disappointing, for example no inter state complaints have been
made under Article 40 of the International Covenant on Civil and Political Rights, 999
U.N.T.S. 171. See DJ. Harris, Cases and Materials on International Lav (London: Sweet &
Maxwell, 5th ed. 1998) p.649. There have only been a few under the European Convention
on Human Rights, and most of them have been by states with a political interest in submission
of the case, see DJ. Harris, M. O'Boyle & C. Warbrick, The Law of the European Convention
on Human Rights (London: Sweet & Maxwell, 1995) p.587.
286 Robert Cryer
111
Article 53.
"' For the role of the pre-trial chamber in investigations, see Articles ,56-7.
130
These are that there are reasonable ground to believe that person has committed a crime in
the court's jurisdiction, and arrest is necessary to ensure appearance at trial, the accused does
not obstruct investigation or the court and, if applicable, to prevent continued offending.
Article 58(1).

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m
In accordance with the procedure in Article 59.
m
Under Article 60.
m
Article 61.
124
Articles 62, 63. See also Article 64 for the Trial chambers' functions and powers for the trial.
125
Article 66 gives the presumption of innocence. Article 67 contains a list of fair trial rights
similar to that in Article 14 ICCPR. It differs in small matters of terminology and on granting
slightly more rights to the defence than Article 14.
128
Article 68.
137
Article 72. The ICTY has had problems relating to this, see Judgment on the Request of the
Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Prosecutor
v Tihomir Blaskic IT-95-14-AR1086u, 29 October 1997.
m
Article 77.
129
Article 75.
130
Article 81(1).
131
Article 81(2).
ln
Article 81(l)(b)(iv).
133
Article 83(4). On the procedure and powers of the Appeals Chamber here, see Article 83.
134
Article 110(3).
135
Ibid.
136
Article 107.
137
Ibid..
'* Article 84.
139
See, for example Articles 99(4) & 72.
•• Article 75.
'•" Article 115.