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In Chapter 2, a representative sample of the ICTY’s and ICTR’s jurisprudence was canvassed in order to glean insights on developing a method of interpretation. One of the findings of that study is that no widely accepted and recognized primary principle has emerged to guide judges in their interpretive reasoning. Accordingly, the next three Chapters are dedicated to identifying a guiding interpretive principle for crimes in the Rome Statute, articulating that principle’s content in a manner that could be useful to judges and lawyers and cataloguing arguments that are (in)consistent with it.
To appreciate the interpretive imperatives set out in the Rome Statute, this Chapter begins by recalling the normative tensions underlying international criminal law. Next, the interpretive imperatives in articles 21(3) and 22 of the Rome Statute – interpretation consistent with international human rights and interpretation consistent with the principle of legality – will be examined. It will be argued that the guiding interpretive principle for crimes in the Rome Statute is legality. An attempt will therefore be made to reconcile article 21(3) with this reading and to give it content that is consistent with legality.
Interpretation is central to the practice of law. Sometimes a legal victory or defeat turns on the meaning a judge attributes to a single word in a legal text. The stakes may be low or incredibly high. For example, the International Court of Justice (ICJ) in its Genocide Decision (2007) held that the killing of approximately 7,000 Muslim men in Srebrenica between 13 and 15 July 1995 was an act of genocide and that Serbia was responsible for failing to prevent and punish the individuals involved. For conduct to qualify as genocide in a legal sense, the victim group must be protected by the Convention on the Prevention and Punishment of the Crime of Genocide (1948) (Genocide Convention). Accordingly, the judges had to satisfy themselves that the victims formed whole or ‘part’ of a national, ethnical, racial or religious ‘group’.
The parties disputed inter alia whether the death of 7,000 Muslim men satisfied this element of the crime. Given the gravity of genocide, does the killing of 7,000 men result in the destruction of ‘part’ of a group? If the argument is that the number of people forming ‘part’ of the group is substantial in a quantitative sense, should this be assessed in absolute terms or relative to the size of the whole group? On this point, can ‘group’ be defined in geographically limited terms even if large diasporas of persons exist who share the same nationality, ethnicity, race or religion as the victim group? Ultimately, one important justification for the ICJ’s finding that genocide occurred in Srebrenica was its interpretation of the words ‘part’ and ‘group’.
In Chapter 6, an attempt was made to explain why, in order to develop a method of interpretation for crimes in the Rome Statute, the relationship between the Statute and custom must be understood. The nature of this relationship is essential to determining custom’s role as an aid to interpretation and the relationship of this aid to other interpretive aids, especially the Elements of Crimes. The codification study that follows is guided by indicia of codification identified in the previous Chapter. The goal in this and the following Chapter is to determine whether the definitions of crimes in the Rome Statute are more of a codification of custom or a progressive development of international criminal law. Codification experts disagree on the relative weight to be given to indicia of codification in the text of a treaty and those external to it (e.g., travaux préparatoires). Accordingly, all indicia will be considered. In this Chapter, consideration will be given to the provisions of the Rome Statute on the following issues and the clues they offer about the relationship between the Statute and custom: material, personal and temporal jurisdiction; legality; applicable law; the Rome Statute’s relationship to existing and developing international law; definitions of crimes; Elements of Crimes; and mental elements of crimes. In the next Chapter, indicia of codification external to the Rome Statute will be examined.
Material jurisdiction (article 5)
According to the preamble of the Rome Statute, crimes within its jurisdiction are ‘grave’ and ‘threaten the peace, security and well-being of the world’. They are the ‘most serious crimes of concern to the international community as a whole’ and ‘must not go unpunished’. This notion of seriousness is expressly reiterated in articles 1 and 5 of the Rome Statute and in the Elements of Crimes. Article 8(1) of the Rome Statute also emphasizes to the Court and prosecutor that their focus should be on the most egregious war crimes: ‘The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.’ What does this general gravity threshold suggest about the nature of the crimes within the Court’s jurisdiction?
In this Chapter, consideration will be given to the different elements of article 22 with a view to assessing their origins, purpose and limits. The references to ‘strict interpretation’, ‘favouring the accused’ and the ‘prohibition against analogy’ will be unpacked. In the final section, a method for the principled operationalization of these devices will be outlined to assist judges and lawyers with the interpretation of crimes in the Rome Statute. By giving meaningful content to these imperatives, the goal is to facilitate reasoning by judges and counsel that is informed, principled and transparent. In the absence of this effort, article 22 may be invoked in a manner that leads to interpretive reasoning and outcomes that are over- or underinclusive in some way.
Article 22 provides:
A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.
The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.
This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.
At the Rome Diplomatic Conference, the legality principle as it appears in article 22 sparked little debate and was adopted with minor changes. In the International Law Commission’s 1994 and 1996 Draft Statutes of the Court (ILC), the principle of legality was defined so as to accommodate the inclusion of crimes under customary international law – the ‘core crimes’ of aggression, genocide, other crimes against humanity and war crimes – but also treaty crimes, the latter category ultimately not making it into the final Rome Statute. For these ‘core crimes’, the draft language was limited to a prohibition against retroactive application of international law. Thus, so long as the conduct was criminal under international law at the relevant time, it mattered not that national law applicable to the accused did not criminalize the same conduct.
In the previous Chapter, codification indicia that are largely internal to the Rome Statute were examined in order to discern whether crimes in the Statute are reflective of custom. This codification study is motivated by the need to determine the role that custom should play as an aid to interpreting these crimes. To the extent that the definitions of these crimes are reflective of custom, it can be argued that custom is an aid that must be considered when interpreting them. This inquiry is also undertaken to assist in determining what the relationship might be between custom and the Elements of Crimes as aids to interpretation, the latter being essential. Recall that judges must consider the Elements pursuant to article 9(1) of the Rome Statute when interpreting articles 6, 7, 8 and 8 bis. In this Chapter, the codification study will be completed by analyzing the following indicia: drafting history of the Rome Statute and Final Act of the Rome Conference; ratifications, reservations, denunciations and revisions; the conduct of States and Non-States Parties; jurisprudence on the (non-)codificatory nature of crimes in the Rome Statute; and doctrinal writings on this matter. Broadly speaking, these indicia may be characterized as external to the Rome Statute.
In this section, the travaux préparatoires of the International Law Commission (ILC), the pre-Rome drafting bodies and the Rome Diplomatic Conference will be combed for evidence of the nature of the Rome Statute and whether drafters intended for it to reflect customary international law. In doing so, the following two streams of legal development will be canvassed: (1) efforts to codify international crimes and (2) efforts to establish an international criminal court. Although these efforts seem to converge with the drafting of the Rome Statute, they were previously treated by those involved as two distinct legal tasks, as will be explained below. This section is written chronologically while trying to maintain a distinction between these two streams of development. And since this history is well rehearsed in many other places, the focus of this section is really to extract from that material that which is relevant to the question of the relationship between the Rome Statute and customary international law.
The task of developing a legal methodology begins with a moment of hesitation. One cannot resist glancing across the vast horizon of international law in search of anything that might inform this effort. It must be recalled that judges of the International Criminal Court (Court) are not the first to interpret the definitions of international crimes. At the international level, the rules of interpretation in the Vienna Convention on the Law of Treaties (1969) (Vienna Convention) have been guiding judges’ interpretations for decades. And judges of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) have been interpreting their governing statutes since 1994 and 1995 respectively. While the jurisdiction of both tribunals is limited territorially and temporally, their subject matter jurisdiction is similar to that of the Court. The ICTY’s jurisdiction extends to grave breaches of the Geneva Conventions on the Laws of War (1949) (Geneva Conventions), genocide, other crimes against humanity and violations of the laws or customs of war. The ICTR’s jurisdiction is limited to genocide, other crimes against humanity and violations of article 3 common to the Geneva Conventions (1949) and the second Additional Protocol (1977).
The Vienna Convention (1969) as well as ICTY and ICTR jurisprudence beg the question: has a methodology for interpreting international crimes already emerged organically in the case law of these tribunals? Have judges widely recognized certain principles or rules of interpretation governing international criminal law and arguments in support of them? If so, how can these developments assist one in building a methodology that is suitable for judges interpreting crimes in the Rome Statute of the International Criminal Court (Rome Statute or Statute)? And what roles, if any, have ICTY and ICTR judges assigned to various interpretive aids? As for the Rome regime proper, what idiosyncratic aspects of its Statute and Court will potentially influence interpretation by judges even while largely falling outside the purview of a methodology for performing this task?
In Chapter 3, the normative tensions underlying international criminal law were revealed and their potential recurrence in articles 21(3) and 22 of the Rome Statute exposed. The detrimental impact that this apparent normative conflict might have on a method of interpretation for crimes was discussed, and an attempt was made to reconcile the interpretive imperatives in the Rome Statute. It was concluded that the principle of legality is to be the guiding principle of interpretation, and consistency with internationally recognized human rights a background interpretive principle. In Chapters 4 and 5, consideration was given to the content of legality for purposes of interpretation, which resulted in the discerning of guiding interpretive considerations as well as arguments that are consistent and inconsistent with the legality principle.
To review, a method of interpretation is understood to mean a systemic general approach to reasoning through the resolution of interpretive issues. A fully developed method has three tiers. It offers its users, in this case judges of the Court and counsel appearing before them, the following levels of assistance: (1) a primary interpretive principle to guide their reasoning process when confronted with interpretive issues; (2) arguments or reasons that support (and do not support) this interpretive principle; and (3) a catalogue of materials or aids that must, may and, if applicable, may not be taken into account in support of these arguments.
In the previous Chapter, the normative tensions underlying international criminal law were described and their appearance in the Rome Statute made plain. It was argued that article 21(3), which obliges judges to interpret and apply the Rome Statute in a manner consistent with internationally recognized human rights, and article 22, which contains a strict legality standard, could be understood as entrenching two (mostly) opposing normativities for the purpose of interpreting crimes in the Statute. Absent any harmonizing methodology, judges favouring the liberal interpretation of crimes could invoke the former provision, and those favouring their strict construction could rely on the latter. A brief review of the ordinary meaning of these provisions in their context and in light of their object and purpose as well as their drafting histories, however, unearthed their potential to be reconciled, and an attempt at such coherence was made. The main thesis advanced was that the legality imperative in article 22 is to be the guiding interpretive principle for crimes in the Rome Statute against a background presumption that the Statute’s drafters defined the crimes in a manner that does not violate the internationally recognized human rights of the person investigated, prosecuted or convicted. However, the content of the legality principle for purposes of interpretation was not examined in detail. In the absence of such an inquiry, it is difficult to envision how, in practice, article 22 might assist judges in carrying out their interpretive work. Accordingly, the goal of the next two Chapters is to fully unpack the content of the nullum crimen sine lege imperative with a view to achieving the principled ‘operationalization’ of article 22 for purposes of interpreting the crimes in the Rome Statute.
The Rome Statute of the International Criminal Court defines more than ninety crimes that fall within the Court's jurisdiction: genocide, other crimes against humanity, war crimes and aggression. How these crimes are interpreted contributes to findings of individual criminal liability, and moreover affects the perceived legitimacy of the Court. And yet, to date, there is no agreed-upon approach to interpreting these definitions. This book offers practitioners and scholars a guiding principle, arguments and aids necessary for the interpretation of international crimes. Leena Grover surveys the jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda before presenting a model of interpretive reasoning that integrates the guidance within the Rome Statute into articles 31-33 of the Vienna Convention on the Law of Treaties (1969).
The method of interpretation developed in this study is for crimes defined in the Rome Statute and attempts to offer its users the following levels of assistance: (1) a primary interpretive principle to guide their reasoning process when confronted with interpretive issues; (2) arguments or reasons that support (and undermine) this interpretive principle; and (3) a catalogue of materials or aids that must, may and, if applicable, may not be taken into account in support of these arguments. In this final Chapter, the methodology is summarized in the form of mandatory guidelines that are grafted onto articles 31–33 of the Vienna Convention (1969). This effort at integration is motivated by the familiarity of these articles to most readers but comes at the price of disassembling the aforementioned three tiers and their content in order to fit this into the Vienna Convention (1969) framework. To be clear, what follows is not an explanation of how articles 31–33 operate in general, but rather a summary of the relationship between these provisions and the method developed. Like the rules of interpretation in the Vienna Convention (1969), the guidelines that follow must be taken into account if relevant to a particular interpretive exercise. Where a better understanding of the impetus for or operation of a particular guideline is desired, the relevant sections of this book should be consulted.
Article 31(1) and legality
The general rule of interpretation in article 31(1) of the Vienna Convention (1969) provides: ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’ This rule, specifically the requirement of ‘good faith’, is to be read in light of legality in article 22 of the Rome Statute serving as the guiding interpretive principle for crimes defined therein. The result is that textual primacy and coherence – as opposed to drafters’ intent or object and purpose approaches to interpretation – are imperative to ensuring that the law is not applied retroactively to persons investigated, prosecuted or convicted.