Customary International Law Status of Rome Statute is Not a Given

Customary International Law Status of Rome Statute is Not a Given

On this basis, the AC concluded that ‘for conduct that takes place on the territory of a State that is not a Party to the Statute, it is not enough that the crimes charged can be found in the text of the Statute. ’ An interpretation consistent with human rights law requires a chamber to ‘look beyond the Statute to the criminal laws applicable to the suspect or accused at the time the conduct took place and satisfy itself that a reasonable person could have expected, at that moment in time, to find him or herself faced with the crimes charged’ (para 86). And because the accused is a national of Sudan, the alleged criminal conduct took place in Sudan and the fact that Sudan was not a Party to the ICC, ‘the crimes in the Statute were not directly applicable to Mr Abd-Al-Rahman at the relevant time’ (para 87). For the AC, the Pre-Trial Chamber’s erred in law when it found it unnecessary to ‘to make a determination as to whether and to what extent, at the time of their commission, the conducts charged against Mr Abd-Al-Rahman were criminalised by either Sudan’s national law or as a matter of international customary law’ (Pre-Trial Chamber decision para 42).

In conclusion, however, the AC did not find that the error of the Pre-Trial Chamber not to consider such a determination of the criminalized conduct as being in strict conformity with the principle of legality did have a material impact on the finding that the ICC may exercise jurisdiction. This is because, according to the AC, applying the foreseeability test, Mr Abd-Al-Rahman ‘was reasonably capable of taking steps to comprehend and comply with his obligations under international law, and he was capable of appreciating the attendant penal consequences’ (para 88, also 89). He was ‘in a position to know that his conduct could attract criminal proceedings relating to crimes under international law, which are represented in the Statute’ (para 91).

The reasoning of the AC is thus a bit ambiguous as regards the specific requirements to be satisfied regarding the principle of legality. The AC recognized that ‘only once a link is drawn with the charges in this case can the question of the legality of the charges be definitively answered’ (para 91). However, the AC did not have to go into any details as the Defence has not indicated any of the specific charges that Mr Abd-AlRahman faces that run afoul the principle of legality. So, it is not entirely clear what the AC’s bottom line here is. Must the Trial Chamber ascertain the CIL status of every charge as such (as suggested by AS Galand here at 955), or is the principle of legality satisfied when it was ‘reasonably foreseeable’ to the defendant that the respective conduct gives rise to international prosecutions of crimes within the jurisdiction of the Court, ‘even in relation to conduct occurring in a State not party to the Statute’ (para 89)?

Putting the AC’s arguments in context it seems to adopt some kind of presumption of foreseeability with respect to the crimes within its jurisdiction (depending on the specific circumstances of the conflict situation). The pronouncements cited above seem to suggest as much (‘relating to crimes under international law, which are represented in the Statute’). This is also why the AC emphasizes that the Statute’s definitions are ‘a product of a concerted effort to codify the developing state of international law so as to provide the clarity that was lacking in the preceding international tribunals’ intended to be ‘generally representative of the state of customary international law when the Statute was drafted’. This according to the AC ‘weighs heavily in favour of the foreseeability of facing prosecution for crimes within the jurisdiction of this Court, even in relation to conduct occurring in a State not party to the Statute’ (para 89). Still, the AC was uneasy to simply take the customary international law (CIL) status of the RS’s definitions of crimes as a given. Indeed, there are at least some aspects in those definitions where the CIL status is contested, that cannot be disregarded merely by reference to the intentions of the drafters.

However, the AC did not specify any particular CIL norm or other source of law with respect to the charges, so the standard to apply here seems to be a rather loose one. The AC simply and more generally stated that ‘[t]he charges subsequently brought by the Prosecutor against Mr Abd-Al-Rahman draw upon norms that were recognised globally, including in Sudan, and were fully ascertainable at the time of the conflict in Darfur’ (para 77). It thus does not seem to require a more detailed determination of the CIL status of specific charges.

Opinion by Judge Ibá ñ ez

Interesting to note is the opinion by Judge Ibá ñ ez, who disagreed with her colleagues on the question of the basis of jurisdiction of the ICC in this case. She takes the view that the referral merely ‘triggered’ the ICC’s jurisdiction because not only was the RS open to signature to all states, Sudan signed it on 8 September 2000 (para 92, 94). Therefore, the law was public and known for the accused and no issue of the principle of legality could arise. She also adds, for the sake of argument, that the prohibition of international crimes violating human rights has attained the status of a ius cogens norm (para 92).

This view seems to be based on the universal jurisdiction thesis, as proposed at the time to endow the ICC with universal jurisdiction. That this was rejected in Rome together with the reactions of states outside the Statute make this argument difficult to defend (See further on this here 110ff). As I (here at 104-105) and others (see de Souza Dias at 85-86) have pointed out the ICC as an international organization can only exercise powers conferred to it by states. In my view, UNSC referrals are thus best viewed as the conferral of powers to the ICC, so the legal basis for an exercise of jurisdiction (and the question of the substantive law) is determined by the UNSC resolution (see here at 49-53, similarly de Souza Dias at 86-88).

The issue of (retroactive) ad hoc declarations is more difficult to resolve. As Talita argues (at 88-89), there is a genuine norm conflict between the principle of legality and the substantive provisions of the RS in those situations, where ad hoc declarations seek to retroactively apply substantive provisions of the RS going beyond CIL. Here likewise Art 21(3) RS should be resorted to in order to solve this norm conflict.