Abstract
The ICC is an independent body established to prosecute individuals. Any individual may be brought before the ICC if the individual commits crimes which falls under the jurisdiction of ICC. The ICC’s statue was based on the jurisprudence of various International Criminal Tribunals such as ICTY, ICTR etc, hence follows their jurisprudence. However, before the establishment of ICC, jurisdictionalways remain a topic of debate because sometimes perpetrator didn’t belong to the state party to the statute, hence escaping the jurisdictions of various tribunals. The ICC pretty much changed the position by introducing the concept of universal jurisdiction. International Criminal Court developed the concept that allows to exercise jurisdiction in cross border situations which is commonly termed as Effect’s doctrine.Effect’s doctrine, as one of the widely recognised principle under the international law as well as under Article 12 of the ICC Statute allows to exercise jurisdiction in absentia situation of the perpetrator in State territory. The applicability of this doctrinemade the prosecution of actual preparators possible, who used to escape the jurisdiction otherwise. However, several jurists criticize the effectsdoctrine. Therefore, in order to analyse the position of jurisdiction in international Criminal Law, this paper includes the rigorous analysis of the concept of jurisdiction under International Criminal Law with special emphasis on ICC’s jurisdiction along with suggestions and conclusion regarding the righteousness of effects doctrine and its implication, position, and effects in the future of International criminal law.
Keywords- International Criminal Law, International Criminal Court, Universal Jurisdiction, Situation of Bangladesh/Myanmar, Effects Doctrine.
Introduction
The term jurisdiction is interpreted as the Court’s capability to deal with matters stated in the Statute.[1] The notion of jurisdiction in International Criminal Law is governed by four different facets which include firstly, ratione materiae that refers to subject- matter jurisdiction; secondly, ratione personae which means jurisdiction over persons; thirdly, ratione loci that refers to territorial jurisdiction and lastly, ratione temporis.[2]
This paper will discuss on the territorial jurisdiction of Court with special emphasis on effects doctrine in International Criminal Justice System.
[1] Principles of territoriality in International Criminal Law.
The international law providesthe state with the power to exercise jurisdiction over any person irrespective of the nationality if the concerned crime is committed within the limits of the state boundary. This principle of jurisdiction is well established in customary lawsand is legally recognized by the international treaties. However, time and again the States have been facing situations where the offender’s acts were of grave nature which constituted crime under modern penal legislation. Therefore, there was a need to search a way to handle ‘jurisdiction over mobile things’or just over the classic cross-border shooting situation.This fabrication was widely endorsed by States and came to be known as the subjectivejurisdiction and objective facet of the rule of territorial jurisdiction.[3] Thus, the territorial principality has two theories attached to it namely the subjective and the objective territoriality approaches.
SubjectiveJurisdiction or Subject matter territorialitybestows upon the state the ability to initiate legal proceedings and punish for criminalitiesinitiated within the State but completed outside the state.[4] However, this theoretical division diminished with the development of objective territorialitywhich allows the state to prosecute when a particular element that form the basis of a crime occurs on national territory or is completed on State territory.[5]
scope and applicability of objective territorial jurisdiction
The notion of objective territorial jurisdiction was first sanctioned by the Permanent Court of International Justice (PCIJ) by the means of Lotus case. Lotus caseinvolvedan issue of collisionbetween the French (P) mail steameri.e., Lotus and the Turkish collieri.e. Boz-Kourt. As a result, the Turks lost eight men and their ship sank as a result of the collision. The French were then held guilty by the Turkish courts for negligent conduct in allowing the accident to occur. This was contended by French on the basis that the court over exercised its jurisdiction over them. With this, both countries agreed to approach PCIJ, the questionwhich lied before the court was, whether Turkish Criminal court was qualified to exercise its jurisdiction over the matter.
The court in its verdict held that Turkish Courtwas competent to exertits jurisdiction by the virtue ofprinciple of objective territoriality because the consequential effects of the collision were faced by Turkish vessel, that could be conformed to Turkish territory. Hence, a State has the right and power to explicitly exercise jurisdiction, when a conduct results in a grave effect, in a manner of ‘a direct physical result which is itself a constituent or essential element in the offence charged’ occurs in its territory.[6] Therefore, a state canexercise territorial criminal jurisdiction if the result faced and the location of the criminal conduct within State serves for the purposes of State territory. However, itis regardless of the fact whether it is the planned location of theresult or not.[7] The intention is not taken into deliberation while exercising jurisdiction becauseeffects and intention aredevotedconstituents of a crime and any other viewwould render the offence ‘non-existent’. This view further improves legal certainty, since the conflicting view would amount to making State criminal jurisdiction dependent on the intent of the accused, rather than the manifestation of the criminal result. Therefore, if incitement has effect in the State territory, that State has territorial jurisdiction by the virtue of objective territoriality to prosecute the inciter irrespective of his intention to commit crime.
However, the exercise of territorial jurisdiction in cases where the offender attempts to commit a crime varies significantly in national law. While some states domestic laws hold that the crime’s intended victim state has territorial jurisdiction over the attempt even if no overt acts are committed on state soil, while, others believe that certain overt acts must be committed on states territory.[8]Furthermore, international treaties and conventions are deafeningly silent on the subject, because the criminalization of attempts is typically ‘regulated by the basic principles and notions of the State Party’s legal system.[9] Additionally, there also lies an issuepursuant to the exercise of territorial jurisdiction on the basis of the principle of connexit´e/indivisibility of the offence[10] as well as commission by proxy. In this context, certain treaties provide that a crimeif committedwithin the territory of one State with an intent to commit anotherserious crime in another state, it is within the criminal jurisdiction of the latter State to prosecute over both crimes as an optional ground for jurisdiction.[11] Hence, the conclusion follows that international law recognizes the rights of the States to exercise jurisdiction on the grounds that the constituent elementof crime is committed in the state territory.Therefore, alternatively it can be propounded that, a State has jurisdiction over crimes initiated and completed in its territory.
[2] Analysis ofJurisdiction in the ICC.
The International criminal Court was established in the year 2002 wherein the Rome State was made the official statute of the court. Rome Statue was drafted in the time span of 7 years, with the first conference being held in the year 1995. The statute was based on the statutes of ICTY, ICTR and the Nuremberg charter. Hence, the concept of jurisdiction in the ICC is similar to the international Criminal Justice System. The concept of Subjective and objective territoriality, the subject matter jurisdiction is identical to the International Criminal Law as explained in part [1] of this paper. However, this section would deal with the territorial jurisdiction, jurisdiction based on the nationality and the universal jurisdiction of the court.
[2.1] The concept of territorial and nationality jurisdiction
The basic provisions governing the ICC’s jurisdiction are found in Article 12 of the Rome Statute. It is one of the statute’s most important clauses, and it is principally based on Vienna Convention of Law and Treaties’ Articles 31 and 32.[12]It establishes the prerequisites for jurisdiction. Once a state ratifies the statute or becomes the signatory to the Rome Statute, the court can exercise jurisdiction over the 5 crimes i.e genocide, crimes against humanity, war crimes, and aggression enumerated in Article 12 of courts statute. Since, the Rome Statute lacks a specific and exclusive provision dealing with the Court’s ratione loci jurisdiction, Article 12 of the Rome Statute serves as the fundamental legal source for determining the ICC’s geographic jurisdiction.[13] Additionally, it lays down prequisite the to exercise the jurisdiction by the ICC.
Article 12 is divided into two separate yet intertwined stipulations that follow a rigorous construction: First, Article 12(1) explains how a state can become a party to the ICC in relation to the core crimes, such as by signing the Rome Statute.Second, the ICC has jurisdiction because of Article 12(2), which states that either the territory or the state that the accused belongs to and hold the nationality of; must be among the State Parties in order to increase the ambit of the jurisdiction of ICC (Article 12(3)).[14]The Rome Statute stipulates that non-state party nationals may be prosecuted in states that acknowledge the court’s ad hoc jurisdiction.
Furthermore, Article 12(2) of the Rome Statute states that when the state parties addresstheir issue to the court, the court can only exercise jurisdiction after the acceptance of the jurisdiction by the non-state party.[15]According to article 12(2) of the courts statute, the court can exercise jurisdiction based on: territory of the state party and the accused’s nationality.[16]Territorial jurisdiction manifests State sovereignty.A state has the absolute jurisdiction over the person, property and conduct occurring in its own territory in accordance with the limitations imposed by international criminal law.[17] In other words, ICC has jurisdiction over the conduct committed on the territories of state parties to the Rome Statute. When a non-national commits a crime, whether it be a domestic crime or an international crime such as hostage kidnapping, a prosecution in the latter State is not reliant on the accused State of nationality being a Party to the relevant treaty or otherwise agreeing.[18]
The ambit of territorial jurisdiction doesn’t restrict to the land only. As per Article 12 para. 2(a), the Court can exercise its jurisdiction on the crimes committed on board of vessel or aircraft, if the aircraft belongs to a state which is a signatory to the Statute. Similarly, on May 14, 2013, the Union of the Comoros referred a matter to the court for the Israeli arrest of a humanitarian assistance Flotilla (a ship) heading for the Gaza Strip on May 31, 2010. While the Flotilla consisted of eight vessels, the Court only had jurisdiction over the acts that occurred on board the Mavi Marmara, the Rachel Corrie, and the Eleftheri Mesogios/Sofia, which were the property of the state parties Comoros, Cambodia, and Greece, respectively. In November 2014, Prosecutor Fatou Bensouda decided not to launch an inquiry because the scenario did not fulfil the elements of the crime The above-mentioned facts imply that the territorial jurisdiction doesn’t restricts to the land of a state only.However, if a crime is committed on an aircraft or a ship which belongs to a state which is a party to the Rome state, the court can exercise its jurisdiction by the virtue of Article 12 and hold the preparator guilty if the act of the preparator fulfils the elements of the crime.
The existence of nationality concept shows a significant link between the sovereign nation and their citizens.[19]The connection not only grants the right, but also enables for prosecution for offences done outside of the State’s jurisdiction. Furthermore, regardless of the location of the offence, the ICC has jurisdiction over citizens of the state which have either ratified oris a signatory to the Rome Statute.[20]
[2.2] THEUniversal Jurisdiction of the Court.
The ICC’s jurisdiction does not limit itself to state parties, but allows to maintain a universal jurisdiction. Article 12(3) of the Rome Statute’s addresses jurisdiction over non-state parties. It is based on a 1994 ILC proposal. Article 12(3) is the provision which empowers the ICC to exercise jurisdiction over nations that are non-parties to the Rome Statute provided that those governments acknowledge the court’s ad hoc jurisdiction over the crime in issue’ perpetrated on the territory of the non-state party or committed by one of its citizens. [21] The Court has made it clear that when States lodge a declaration under article 12(3), they cannot give the Court jurisdiction over certain crimes only; moderately, with regard to a precise ‘situation’, they might expressly stipulate in this sense, but always acting in compliance.[22]
In general, the ICC lacks jurisdiction over the nationals of non-state parties. However, according to article 12(3) r/w article 13 of the statute ICCcan exercise jurisdiction over the nationals of state that are not parties without their consent only in situation whenthe Security Council refers the matter to the ICCacting under Chapter VII of the UN Charter. According to the decision given by the court in Al- Basheer’ s[23]appeal judgement, a non- state party has to cooperate with the court only when UNSC refers the case to the prosecutor. The court was of similar view in the situation of Libya (State not Party) where Libya was compelled to cooperate with the court only because Security Council referred the case to the prosecutor of the court.[24]
[2.2.1] Conduct in Question and its significance in exercising the Jurisdiction
The conduct in question holds a huge significance for exercising territorial and effects form of jurisdiction. According to Article 12, ICC can exercise jurisdiction only when the conduct is committed in the territory of the state party. Moreover, the effects form of jurisdiction can only be exercised when the conduct in question in done in the territory of the state party. There are 2 different theories regarding the interpretation of word conduct. First interpretation advocates that the definition of the conduct only includes the act and the omission done by the accused. However, the second interpretation advocates that the word conduct refers to the crime as a whole which includes act as well as the consequences of the act.
Conduct as an act or omission.
The first line of interpretation follows the principle that “the conduct in question” includes the act or omission of the accused and doesn’t include the consequences of the act done by the accused. This line of argument is supported by the negotiation document of Rome Statute. This is the last official document before 16th July 1998, Draft Article 7 which later emerged to be Article 12 of the statute, and uses the word “act or omission in question”.[25]
Moreover, the French text of the statute doesn’t define the conduct as the crime as whole. However, it defines conduct as actus reus which include act or/and omission of the accused.[26]The meaning of “conduct” in common law refers to the acts underlying the crime.[27] The evidence for the same can be found in several Articles of the Rome Statute and the elements of the crime.
Article 30 of the Rome Statute draws a clear lineof difference between conduct and the consequences of the conduct on the basis of intent. Article 30 explains that, in order to hold a person responsible for any crime, a person must intend both conduct and the consequences. This implies that the “conduct” of the accused doesn’t include the consequences.[28] The evidence for the same line of argument can be found in Article 20 which explains that the “conduct” and “consequences” are not the synonyms to each other.[29] The general instruction of the element of the crimes also draws a difference between conduct in question. In order to commit a crime, a person must commit conduct and consequences, which implies that “conduct”[30] is different from “consequences”.[31] Moreover, all the drafts before the final statute used the word “act or omission”[32], however, several state parties were not satisfied with the word “omission”” therefore the “act or omission” was replaced by word conduct.[33]
- Conduct as crime
The parallel line of thought in this context advocates the definition of conduct which include the consequences of the act. In other words this line of thought emphasises on a definition that “conduct in question” is synonym to “crime in question” which include the consequences of the act. However, there is no clear evidence which might show that the conduct includes the consequences. In Mbarushimana, the Court analysed the connection between the ‘crimes’ charged by the Prosecutor and the circumstances of the case.[34] The Lubanga three-phased test for jurisdiction denotes to ‘crimes’ committed in the signatory state. This principle was further followed by the court in Al-Bashir[35]decision, as well as the Kenya Authorization Decision[36] and other authorities.[37]
This line of reasoning is backed by the statute’s Article 12 r/w Article 20. Articles 12, 20(1), and 20(3) were drafted under a single section of the act, i.e Part II. Conversely, Part III that encompasses Article 30, was drafted independently.[38]According to the ICC,interpretation of any provision takes place in accordanceto the section of the Statute within which it was drafted.[39]
Furthermore, the Court hasacknowledged that ‘conduct in question’ has a similar meaning to ‘crime in question’.[40]The word ‘conduct’ in Article 12(2)(a) should be understood in conjunction with Articles 20(1) and 20(3), which have comparable meanings to the word ‘crime’.[41]Hence, the notions of ‘conduct’ and ‘crime’ in Article 12(2)(a) of the Statute have the same meaning which includes consequences.
Moreover, Assembly of State Parties also supported the above-mentioned interpretation. However, in the Working group on the Crime of Aggression, some delegations were of the view that there exists a need to clarify the language, possibly in the elements of crime, while several others stated that the Rome Statute was quite clear and that ‘over-legislating’ should be ignored. Henceforth, it was made clear that ‘conduct’ in Article 12 involves the consequences of the conduct.”[42]
[3] The effects doctrine of Jurisdiction
A recent development in the territorial jurisdiction put forth the concept of effects doctrine.This idea states that the ICC has jurisdiction over conduct committed outside the borders of non-state party, when the consequences of the conduct were felt within borders of state party. The principal idea of ‘effects’, however, varies from the ‘constituent elements’ approach. Effects doctrine, as a concept, is understood as consequences that effect the property or cause economic repercussions that do not form part of the criminal conduct of the offence and are not physically readily identifiable.
The origins of this theory can be traced back to the verdict given by US courts in ALCOA case. In the ALCO case the court was dealing with antitrust violations in the aluminium market after the conclusion of WWII.[43] The courthad to address the dispute regarding the participation of Canadian citizen in the creation of a Swiss company and the formation of two agreements, which provided limitations on production and price-fixing between the participating undertakings, constituted violation of Section 1 of the Sherman Act. The Court in this matter, ruled that ‘it is established law – as “Limited” itself states – that any state can impose liabilities, even on the persons outside its boundaries, for the act done outside the borders of the state but its consequences are faced within its borders, which the state criticize; and these liabilities other states shall generally recognize’.[44]The courts defined ‘effect’ and stated that the US Courts may exercise jurisdiction if the conduct caused the consequences resulting in‘damages to United States commerce that cause the anticompetitive effect either by the violation or by the anticompetitive acts made possible by the violation’.
The effect form of jurisdiction is under development in the ICC. The effect doctrine is quite controversial proposition in international criminal tribunals. However, the recent Myanmar decision has offered a clear stand on the ICC’s effects theory. In the Bangladesh/ Myanmar case, the court found that act and crime had equal weight under Article 12(2) (a) [45]. The court used the principles of effects jurisdiction to rule in the case. However, the decision specifically pertained to the crime of deportation.[46] As decided by ICC, ICTY, and other tribunals the key element of deportation is transboundary effect and decided that the effect form of jurisdiction is applicable in the case. Chamber concluded that it was not “necessary to prepare abstract conditions for the Court to exercise territorial jurisdiction in the cases of potentially transboundary crimes contained in the Statute”. [47]Thereby, it is implied that analysis of Article 12(2)(a) relates to transboundary crimes only. Since it is the only case where court has exercised the effects doctrine and case specifically pertain to a crime having the transboundary effect as the key element, which implies that the effect doctrine doesn’t have a clear and strong stand in the ICC.Therefore, there is still a chance of development in the field of Effects doctrine to be exercised in ICC.
[3.1] Effects doctrine and the Rule of Reason
International law states that State may exercise jurisdiction under the effects doctrine over activities involving transboundary elements provided that it is ‘reasonable’. This is the Mann’s doctrine of ‘rule of reason’. ‘Reasonability encompasses aspects of the non-intervention principle as well as the doctrine of abuse of rights. The concept of non-intervention isarticulated within Article 2 (7) of the UN Charter.[48]It is an international legal norm that forbids interfering in a state’s domestic affairs. Therefore, there exists a test to determine whether there exists a sufficient close connectionbetween a State and an activity. The test seeks to establish a “reasonable relationship” between the State and the activity, indicating “the absence of rights abuse or arbitrariness. Similarly, in the ICC’s system, this “rule of reason” is regarded as the ultimate yardstick for determining the legality of the exercise of territorial jurisdiction by the virtue of Article 12(2)(a) under international law. The concept of effects doctrine is applied through an interpretation of Article 12(2)(a) as well as other applicable international law standards.
[3.2] The implication of Bangladesh/ Myanmar judgement
There has always been a debate regarding the use of effects doctrine in the international criminal law. The several jurists heavily criticize the effects doctrine; however, the effects doctrine is a prevailing principle in several countries such as USA.[49] Recently, ICC made it clear that effects doctrine can be used in order to exercise jurisdiction in international criminal law circuit.
On September 6, 2018, the ICC’s Pre-Trial Chamber exercised jurisdiction over nationals of Myanmar (a state not state) for the crime of deporting Rohingyas from Myanmar to Bangladesh.[50]However, the chamber never explicitly used the term “effects doctrine” in its decision, instead stating that the court irrespective of the accused’s nationality can exercise jurisdiction over nationals of states not the party to the ICC statute, if one of the elements of the offence occurs on the state party territory.[51] The court drew a comparison with the report given byprosecutor in Situation of Korea[52] where the Office of the Prosecutor relied on the doctrine of objective territorial principle to form the jurisdiction of the Court. The case involved cross-border firings by anonymous persons from North Korea, (a non-State party) to the territory of South Korea, which is a state party.
The court in the case of Bangladesh Myanmar specifically dealt with deportation which falls under crime against humanity. The court emphasised that, the inherent transboundary nature of deportation makes it clear that court can exercise the jurisdiction where crossing international borders is an element of crime.[53] The decision of ICC makes it clear that the court can exercise the jurisdiction by using effects doctrine of jurisdiction. However, the court left the situations of other crimes blurry and incomplete.
[4] Suggestions and Conclusion.
The decision of ICCmade the position of effects doctrine clear, however, there exist a reasonable doubt against the position of effects doctrine in the crimes except for deportation. One criticism of the ruling is that it is specially adapted to the crimes against humanity of deportation, because crossing international borders is a legal aspect of the crime.However, the position is unclear on other crimes under international criminal law system. Another argument that might be made based on preparatory work is that the preparators refused to add absolute Universal Jurisdiction to the court[54]and provided the court power to exercise jurisdiction over non-State party nationals only when the UNSC brings the case to the court under Chapter VII of the UN Charter and Article 13[55] of the Rome Statute. As a result, allowing the effects doctrine would violate the basic structure of International Criminal Law. Additionally, exercising jurisdiction over the non-State party nationals would violate the non-State parties’ sovereignty, because international treaties, according to Art. 34 of the VCLT, have no implication on non-signatories. [56]
However, effect’s doctrine might violate the sovereignty of non-state parties, but it would help to prosecute the preparators that are nationals of non- state party. Furthermore, the court must have recourse to this doctrine because Article 12 and international law recognizes effects doctrine.Additionally, prosecution under the national law is based on the theory of universality and any extra-territorial criminal jurisdiction must be heard by a self-governed international institution. ICCbeing an independent bodythe decision by such an autonomous body will be unbiased andfair. Also, ICCwas created to prosecute and punish individuals who had committed large scale atrocities. In this respect adoption of effects doctrine potential will widen the deterrent value of the Court thus, fulfilling the objective for which it was created.
[1] The Prosecutor v. Thomas Lubanga, ICC-01/04–01/06–772, 14 December 2006, ¶. 24.
[2] C. Ryngaert, Jurisdiction in International Law, (Oxford University Press, 2008), ¶29.
[3] Regina v. Duncan Wallace Smith [1996] (No. 2), 2 Cr. App. R 1.
[4] Harvard Draft Convention pg. 484.
[5]Id.
[6]Id.
[7] M. Akehurst,,Jurisdiction in International Law, 159(British Yearbook of International Law ed. 46 1972).
[8]Supra 3.
[9] Art. 6(2)(a), the Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the 2000 UN Convention against Transnational Organized Crime.
[10]Connexit e denotes the prosecution or connexity of two offences before the same court due to their ‘connection.’ The question was not addressed by the Court in the Lotus Case, but it was rejected on the basis that a “joinder on the premise of “connexity” is an action under municipal law, and “connexity” does not generate jurisdiction.
[11] Art. 15 (2)(c), The United Nations Transnational Organized Crime Convention
[12] Situation in the Democratic Republic at the Congo, ICC-01/04, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, 13 July 2006, ¶ 33.
[13] Stéphane Bourgon&Hans-Peter KaulThe Rome Statute of the ICC: A Commentary, Oxford University Press, 560 (Oxford, 2002).
[14]Art. 12 cl. 3, Rome Statute.
[15] Prosecutor v. Ahmad Muhammad Harun (‘Ahmad Harun’) and Ali Muhammad Al AbdAl-Rahman (‘Aukushayb’), No. ICC-02/05-01/07-1-Corr, Decision on the Prosecution Application underArticle 58 (7) of the Statute, Pre-Trial Chamber I, 27 April 2007, ¶ 16
[16] Art. 6, 1997, International Convention on the Suppression of Terrorist Bombings, UN Doc. A/RES/52/164
[17] North Atlantic Status of Forces Agreement, 1951
[18] United States v. Fawaz Yunis, 924 F. 2 d 1086 (D.C. Cir. 1991).
[19] Malcolm Shaw, International Law, 584.(Cambridge University Press ed. 7th 2014).
[20] William A. Schabas, AN INTRODUCTION TO THE ICC, 71 (Cambridge University Press, 2008).
[21] Otto Triffterer & Kai Ambos, The Rome Statute of ICC: A Commentary 684 (Oxford Press, ed.3 2015).
[22]Prosecutor v. Laurent Koudou Gbagbo, No. ICC-02/11-01/11-321.
[23]Prosecutor v. Omar Hassan Al Bashir, ICC-02/05-01/09, April. 3, 2018, ¶¶ 86, 87
[24] The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, “Decision on the request for suspensive effect and the request to file a consolidated reply”, 22 November 2013, ICC01/11-01/11-480, ¶ 18
[25] Bureau Discussion Paper Regarding Part 2, UN Doc. A/CONF.183/C.1/L.53 (6 July 1998), UN Official Records, Vol. III, 208–209; ‘Bureau Proposal: Regarding Part 2’, UN Doc. A/CONF.183/C.1/L.59 (10 July 1998), in Official Records, vol. III, pg. 212
[26] , Report of the Ad Hoc Committee on the Establishment of an ICC, UN Doc. A/CONF.183/2 (14 April 1998), ¶¶. 54, 55
[27] Roger S Clark, “The Mental Element in International Criminal Law: The Rome Statute of the ICC and the Elements of Offences” (2001) 12 Criminal Law Forum 291, pg. 306.
[28]Michail Vagias, The Territorial Jurisdiction Of The ICC (Cambridge University Press, 2014), pg. 91, 92.
[29] Antonio Cassese et al. (eds), The Rome Statute of the ICC: A Commentary (OUP, 2002). Pg. 1028, 1029.
[30] Elements of crimes, General introduction, ¶ 9.
[31] Elements of crimes, General introduction, ¶ 7.
[32] Preparatory Committee on the Establishment of an ICC (14 August 1997) Draft Article 21 and Draft Article 25; Preparatory Committee on the Establishment of an ICC (14 April 1998) 23, Draft Article 7 (option 2) and 26, further options for Articles 6, 7, 10 and 11, Draft Article 7; Bureau proposal (10 July 1998) Draft Article 7.
[33] Per Saland, ‘International Criminal Law Principles’ in Roy S Lee (eds), The ICC: The Making of the Rome Statute: Issues, Negotiations, Results (Kluwer Law International, 1999)
[34] Prosecutor v. Callixte Mbarushimana (Decision on the ‘Defence Challenge to the Jurisdiction of the Court’) ICC-01/04–01/10–451, ¶¶ 16-21.
[35] Prosecutor v. Omar Hassan Ahmad Al-Bashir (Decision on the Prosecution’s Application) ICC-02/05–01/09–3 3 March 2009, ¶ 131
[36] Situation in the Republic of Kenya (Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09–19 (31 March 2010), ¶ 175.
[37] M.C. Bassiouni, Introduction to International Criminal Law (2nd rev. edn, Leiden: Martinus Nijhoff, 2012), 658
[38]Michail Vagias, The Territorial Jurisdiction of The ICC (Cambridge University Press, 2014), pg. 119.
[39] The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-195
[40]Michail Vagias, The Territorial Jurisdiction of The ICC (Cambridge University Press, 2014), pg.125
[41] Situation in the Republic of Kenya (Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09–19 (31 March 2010) ¶175.
[42] Assembly of States Parties (Crime of Aggression), ¶38
[43] United States v. Aluminum Company of America (AlCOA) et al., 148 F.2d 416 (2nd Cir.,1945)
[44]Supra 35
[45] Request under Regulation 46(3) of the Regulations of the Court (Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”) ICC-RoC46(3)-01/18 (6 September 2018), ¶ 64.
[46] Art. 7(1)(d), Rome Statute.
[47] Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, (Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar) ICC-01/19 (14 November 2019), 62.
[48] UN Charter, Art. 2 (7).
[49] United States v. Alcoa, 148 F.2d 416.
[50]Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”, ICC-RoC46(3)-01/18, September 6th 2018.
[51] Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”, ICC-RoC46(3)-01/18, September 6th 2018. ¶ 61
[52]Situation in Korea, Article 5 Report, ¶ 38.
[53]Supra 58. ¶ 71.
[54] Art. 6, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an ICC, 17 July 1998, Volume III.
[55]Art. 13, Rome Statute.
[56]Art. 34, Vienna Convention on the Law of Treaties, 1968.
