The Rome Statute as Evidence of Customary International Law

Half Title
Series Information
Title Page
Copyright Page
Contents
Acknowledgements
Abbreviations
Table of Legislation
Table of Cases
United Nations Documents
Chapter 1 Introduction
	1.1 The Role of Customary International Law in the International Criminal Court
	1.2 Aim, Questions and Scope of This Book
	1.3 Method and Terms of This Book
	1.4 Structure of This Book
	1.5 Merits and Limits of This Book
Chapter 2 Methodological Framework of This Book
	2.1 Introductory Remarks
	2.2 Interpreting Provisions of the Rome Statute
	2.3 Method: The Two-Element Approach to Identifying Customary Rules
		2.3.1 A Flexible Formula for Identifying the Existence of a Customary Rule
		2.3.2 The Two Elements
			2.3.2.1 Practice and Opinio Juris: Quantity and Quality
			2.3.2.2 Practice: Forms of Evidence
			2.3.2.3 Opinio Juris: Forms of Evidence
		2.3.3 Other Indicators for the Identification of Customary Law
		2.3.4 Summary
	2.4 Terms: A Treaty Was or Is of a ‘Declaratory’ Nature of Custom
		2.4.1 The Role of Treaties as Evidence of the State of Customary Law
			2.4.1.1 Baxter’s Concept of ‘Declaratory’ Nature of Custom
			2.4.1.2 Baxter’s Concept of ‘Constitutive’ Nature of Custom
			2.4.1.3 Assessment and Conclusions
		2.4.2 Terminology: Declaratory
	2.5 Preconditions for This Study
		2.5.1 A Treaty Rule of a Declaratory Nature: Any Obstacles in the Rome Statute?
		2.5.2 A Treaty Rule Develops into Custom: Any Obstacles on the Passage?
	2.6 Concluding Remarks
Chapter 3 War Crimes in Non-international Armed Conflict: Article 8 of the Rome Statute and Custom
	3.1 Introductory Remarks
	3.2 Provisions on War Crimes in Non-international Armed Conflict in the Rome Statute
	3.3 War Crimes in Armed Conflict
		3.3.1 Stocktaking of War Crimes and War Crimes Trials: 1919–1945
		3.3.2 War Crimes Trials after World War ii: 1945–1949
		3.3.3 Common Article 3 of the 1949 Geneva Conventions and Additional Protocol ii of 1977: 1949–Early 1990s
			3.3.3.1 Common Article 3 of the Geneva Conventions
			3.3.3.2 Additional Protocol ii of 1977
			3.3.3.3 Summary
		3.3.4 Shifts since the Establishment of the Two UN Ad Hoc Tribunals: 1993–1996
			3.3.4.1 Statutes of the Two UN Ad Hoc Tribunals
			3.3.4.2 Tadić Appeals Chamber Decision on Jurisdiction
			3.3.4.3 Shifts Subsequent to the Tadić Appeals Chamber Decision on Jurisdiction
		3.3.5 The Work of the International Law Commission
			3.3.5.1 Draft Code of Crimes (Offences)
			3.3.5.2 1993 and 1994 Drafts of the International Law Commission for an International Criminal Court
		3.3.6 Assessment and Conclusions
	3.4 War Crimes in Non-international Armed Conflict: Were Articles 8(2)(c) and (e) Declaratory of Custom?
		3.4.1 Ad Hoc Committee 1995 Sessions
		3.4.2 Preparatory Committee Sessions and Intersessional Meetings: 1996–1998
			3.4.2.1 1996 Sessions
			3.4.2.2 1997 February session
			3.4.2.3 Subsequent Sessions and Intersessional Meetings
			3.4.2.4 Summary
		3.4.3 Crystallisation of War Crimes Committed in Non-international Armed Conflict in Rome: 1998
			3.4.3.1 The Inclusion of War Crimes in Non-international Armed Conflict
			3.4.3.2 Thresholds of Non-international Armed Conflict
		3.4.4 Assessment and Conclusions
	3.5 Further Recognition of War Crimes in Non-international Armed Conflict: Are Articles 8(2)(c) and (e) Declaratory of Custom?
		3.5.1 Preparatory Commission: Elements of Crimes
		3.5.2 Practice of States
		3.5.3 Post-Rome Instruments and Cases at the icc and Other Tribunals
		3.5.4 Assessment and Conclusions
	3.6 Concluding Remarks
Chapter 4 Crimes against Humanity: Article 7 of the Rome Statute and Custom
	4.1 Introductory Remarks
	4.2 Provisions on Crimes against Humanity in the Rome Statute
	4.3 Crimes against Humanity as International Crimes under Customary Law
		4.3.1 Revisiting the Origin of Crimes against Humanity as International Crimes
		4.3.2 The Definitions of Crimes against Humanity beyond the Nuremberg Charter
		4.3.3 Assessment and Conclusions
	4.4 No Nexus with an Armed Conflict: Was and Is Article 7(1) Declaratory of Custom?
		4.4.1 The Nexus Issue in Article 7(1) of the Rome Statute
		4.4.2 A Nexus with an Armed Conflict and Its Disappearance for Crimes Against Humanity in Custom
			4.4.2.1 The Nexus with an Armed Conflict
			4.4.2.2 The Disappearance of the Nexus with an Armed Conflict
		4.4.3 Assessment and Conclusions
	4.5 The Policy Element: Was and Is Article 7(2)(a) Declaratory of Custom?
		4.5.1 Policy as a Legal Element in Article 7(2)(a) of the Rome Statute
			4.5.1.1 The Notion of Policy
			4.5.1.2 Policy as a Legal Element in the Rome Statute
		4.5.2 Policy as a Legal Element of Crimes against Humanity in Custom
			4.5.2.1 Policy as a Legal Element before 1998
			4.5.2.2 Policy as a Legal Element in the Jurisprudence of the Two UN Ad Hoc Tribunals
			4.5.2.3 Policy as a Legal Element in Customary International Law after 1998
		4.5.3 Conclusions
	4.6 Concluding Remarks
Chapter 5 The Crime of Aggression: Articles 8bis and 25(3bis) of the Rome Statute and Custom
	5.1 Introductory Remarks
	5.2 The Crime of Aggression in International Law
		5.2.1 The Prohibition of Aggression
		5.2.2 The Criminalisation of Aggression
	5.3 Provisions on the Crime of Aggression in the Rome Statute
		5.3.1 Meaning of Articles 8bis and 25(3bis): ‘Control or Direct’
		5.3.2 ‘Control or Direct’ as a Legal Element in the Rome Statute
	5.4 The Leadership Element for the Crime of Aggression: Were Articles 8bis and 25(3bis) Declaratory of Custom?
		5.4.1 Any Leadership Test in the imt and imtfe?
		5.4.2 The Leadership Requirement in Tribunals Established under Control Council Law No. 10
			5.4.2.1 The US I.G. Farben Case
			5.4.2.2 The US High Command Case
			5.4.2.3 The US Ministries Case
			5.4.2.4 Observations
		5.4.3 The International Law Commission’s Works
		5.4.4 The Pre-Rome Work on the Crime of Aggression and the Rome Conference: 1995–1998
		5.4.5 The Rome-Kampala Work on the Crime of Aggression: 1999–2009
			5.4.5.1 Preparatory Commission: 1999–2002
			5.4.5.2 Special Working Group and Princeton Process on the Crime of Aggression: 2003–2009
			5.4.5.3 2009 Montreux and Princeton Meetings on the Elements of Crimes
			5.4.5.4 Observations
		5.4.6 National Practice
		5.4.7 Assessment and Conclusions
	5.5 The Leadership Element for the Crime of Aggression: Are Articles 8bis and 25(3bis) Declaratory of Custom?
	5.6 Concluding Remarks
Chapter 6 Indirect Co-perpetration: Article 25(3)(a) of the Rome Statute and Custom
	6.1 Introductory Remarks
	6.2 The Attribution of Liability to Individuals at the Leadership Level
		6.2.1 The Rationale to Attribute Liability to High-Level Leaders
		6.2.2 Approaches to Attribute Liability to High-Level Leaders
	6.3 Is Indirect Co-perpetration Encompassed in Article 25(3)(a) of the Rome Statute?
		6.3.1 The Text of Article 25(3)(a): Three Forms of Perpetration
			6.3.1.1 Direct Perpetration and Co-perpetration
			6.3.1.2 Indirect Perpetration
		6.3.2 Indirect Co-perpetration at the icc
			6.3.2.1 A ‘Literal’ Reading of Article 25(3)(a) in Katanga & Ngudjolo
			6.3.2.2 Observations and Assessment of Indirect Co-perpetration
		6.3.3 Assessment and Conclusions
	6.4 Non-acceptance of Indirect Co-perpetration in Post-World War ii Trials
		6.4.1 Post-World War ii Instruments
		6.4.2 Post-World War ii Trials
			6.4.2.1 The Offence of Conspiracy and Conspiracy Liability
			6.4.2.2 Liability for Complicity through Association
			6.4.2.3 ‘Concerted Actions’ in Hong Kong Trials and Australia’s War Crimes Trials
		6.4.3 Assessment and Conclusions
	6.5 Indirect Co-perpetration: Is Article 25(3)(a) Declaratory of Custom?
		6.5.1 Tadić jce liability: 1999 Appeals Chamber Judgment
		6.5.2 Indirect (Co-)perpetration in the UN Ad Hoc Tribunals
			6.5.2.1 Co-perpetratorship in Stakić: 2003 Trial Chamber Judgment and 2006 Appeals Chamber Judgment
			6.5.2.2 Indirect Co-perpetration: 2006 Milutinović et al Trial Chamber Decision
			6.5.2.3 Co-perpetratorship: 2006 Gacumbitsi Appeals Chamber Judgment
			6.5.2.4 Observations and Summary
		6.5.3 Brđanin jce Liability
			6.5.3.1 jce: 2004 Brđanin Trial Chamber Judgment and Subsequent Constructions
			6.5.3.2 The Brđanin Formulation of jce: 2007 Brđanin Appeals Chamber Judgment
			6.5.3.3 Observations and Summary
		6.5.4 National Legislation and Cases
			6.5.4.1 National Criminal Codes and Implementation Legislation
			6.5.4.2 National Case Law
		6.5.5 Other International Tribunals and Special National Tribunals or Chambers: Instruments and Cases
		6.5.6 Assessment and Conclusions
	6.6 Concluding Remarks
Chapter 7 An Exception to Personal Immunity for International Crimes: Article 27(2) of the Rome Statute and Custom
	7.1 Introductory Remarks
	7.2 Immunity under International Law
		7.2.1 Regime of Immunity in International Law
		7.2.2 Challenges to Immunity for Committing International Crimes
		7.2.3 Theories of Repudiating Immunities
	7.3 Personal Immunity: Article 27(2) of the Rome Statute
		7.3.1 Understanding of Articles 27(1) and (2): Personal Immunity
		7.3.2 Scope of Personal Immunity in Article 27(2)
		7.3.3 Structure of the Rome Statute and Article 19 of the Relationship Agreement
		7.3.4 Conclusions
	7.4 Non-availability of Personal Immunity for International Crimes: Was Article 27(2) Declaratory of Custom?
		7.4.1 1919 Report of the Commission on Responsibilities and Treaty of Versailles
		7.4.2 Article 7 of the Nuremberg Charter and Article 6 of the Tokyo Charter
		7.4.3 Post-World War ii Practice
		7.4.4 1946 ga Resolution and 1950 Nuremberg Principle iii
		7.4.5 Assessment and Conclusions
	7.5 Non-availability of Personal Immunity for Committing International Crimes: Is Article 27(2) Declaratory of Custom?
		7.5.1 Immunity for International Crimes: 1999 Pinochet Case (the UK) and 2001 Gaddafi Case (France)
		7.5.2 The icj: 2002 Arrest Warrant Case (Belgium v Congo)
		7.5.3 The scsl and the icty: Taylor and Milošević Cases
		7.5.4 Al Bashir Cooperation Decisions before the icc
			7.5.4.1 Malawi Decision: Personal Immunity before the icc
			7.5.4.2 Malawi Decision: Personal Immunity from Arrest by National Authorities
			7.5.4.3 Other Decisions of the icc
		7.5.5 National Reactions to Personal Immunity for Committing International Crimes
			7.5.5.1 National Laws
			7.5.5.2 Practice of States Parties
			7.5.5.3 Practice of Non-party States
		7.5.6 The UN Security Council and Its Resolutions
		7.5.7 The Work of the International Law Commission
		7.5.8 Assessment and Conclusions
	7.6 Concluding Remarks
Chapter 8 Conclusions
	8.1 Synthesis
	8.2 Discussions and Concluding Remarks
Bibliography
	Books
	Contributions to Edited Books
	Articles
	Other Documents and Databases
Index