Académique Documents
Professionnel Documents
Culture Documents
Mireille Delmas-Marty*
Abstract
1. Introduction
The International Criminal Court (ICC) appeared to make the old universalist
dream of lasting, if not perpetual, peace a reality. For the first time, a perman-
ent, as opposed to an ad hoc, international criminal jurisdiction had been
created. For the first time, states had established a system of justice that could
stop and prevent violence, rather than intervening only a posteriori.
Ten years later, the ICC has found its place within the global landscape. As a
testament to this, mention can be made of the increasing number of communi-
cations the Court has received for initial investigation, not only by state parties
* Professor at the Colle'ge de France, Paris; Member, Honorary Board of Advisors of this Journal.
[mireille.delmas-marty@college-de-france.fr].
This is a revised version of a comment that has appeared in French in a special issue of the
Semaine Juridique on 10 years of the International Criminal Court (ICC). Professor Delmas-
Marty and the editors are grateful to Jacquelyn Smith and Katherine Del Mar for their help
with the translation of the essay.
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Journal of International Criminal Justice 11 (2013), 553^561 doi:10.1093/jicj/mqt032
ß The Author (2013). Published by Oxford University Press. All rights reserved.
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554 JICJ 11 (2013), 553^561
to the Rome Statute but also by non-member states and non-state actors.1
Mention can also be made of the referrals to the ICC made by the United
Nations (UN) Security Council concerning the situation in Darfur in 2005,
and subsequently the situation in Libya in 2011.
And yet enthusiasm for the ICC has transformed into disenchantment that
could weaken the credibility of the institution, with respect to which many
states ç including France ç appear to be distancing themselves. The reason
for this disenchantment is that, to date, the ICC has only adjudged two cases,
both concerning situations in Africa, and the Court’s jurisdiction with regard
to Syria appears to have been blocked by the UN Security Council.
To overcome this disenchantment, it is first necessary to reflect upon the
1 From July 2002 until mid-December 2012, the Office of the Prosecutor (OTP) received a total of
9,332 communications pursuant to Art. 15 ICCSt.; see OTP, Report on Preliminary
Examinations, 13 December 2011, at 5.
Ambiguities and Lacunae 555
2 At present, this exercise is complicated by the requirement of very restrictive cumulative condi-
tions. The CNCDH demands that the law of 10 August 2010 which adapts the French criminal
law to the ICC and its Statute be specified in this regard. Such a proposal has been filed with
the office of the Senate on 6 September 2012 and is going to be discussed by the Parliament.
Ambiguities and Lacunae 557
peace, during peace processes and following the conclusion of peace accords.3
However, Hazan limits his analysis to the question posed in the subtitle of his
book: how to rebuild a state with war criminals? In order to rebuild a state
torn apart by armed conflict, it is generally accepted that peace agreements
must not include clauses granting unconditional impunity, such as amnesties
or other acts of clemency. On the other hand, however, the effects of interna-
tional criminal prosecutions on the re-establishment of peace remain uncer-
tain. It is for this reason that at the Review Conference of the Rome Statute
in Kampala a proposal was made to include truth and reconciliation commis-
sions as part of the judicial process.
In the era of globalization, however, international criminal justice cannot
3 P. Hazan, La paix contre la justice? Comment reconstruire un E¤tat avec des criminels de guerre?
(GRIP et Andre¤ Versaille e¤diteur, 2010).
558 JICJ 11 (2013), 553^561
4 C. McDougall,‘When Law and Reality Clash ç The Imperative of Compromise in the Context of
Accumulated Evil of the Whole: Conditions for the Exercise of the International Criminal
Court’s Jurisdiction over the Crime of Aggression’, 7 International Criminal Law Review (ICLR)
(2007) 277^333.
5 C. Kress and L. von Holtzendorff, ‘The Kampala Compromise on the Crime of Aggression’,
8 Journal of International Criminal Justice (JICJ) (2010) 1179^1217; and R. Schaeffer, ‘Audacity of
Compromise: The UN Security Council and the Pre-conditions to the Exercise of Jurisdiction
by the ICC with Regard to the Crime of Aggression’, 9 ICLR (2009) 411^433.
6 In this regard, the cases that are commonly cited are the subsequent Nuremberg trials of IG
Farben, Flick and Krupp as well as the Zyklon B. case where in 1946 a British military tribunal
convicted businessmen for providing a pesticide used in the concentration camps’ gas cham-
bers. On the issue, see W. Kaleck and M. Saage-Maa, ‘Corporate Accountability for Human
Rights Violations Amounting to International Crimes’, 8 JICJ (2010) 699^724. In France, there
is discussion about the role of the SNCF, France’s national state-owned railway company, as
regards the transport of persons to the Drancy internment camp. On the issue, see A. Lipietz,
La SNCF et la Shoah: Le proce' s G. Lipietz contre E¤tat et SNCF (Les Petits Martins, 2011); V.
Grosswald Curran, ‘Gobalization, Legal Transnationalization and Crimes Against Humanity:
The Lipietz Case’, 56 American Journal of Comparative Law (2008) 363^402.
Ambiguities and Lacunae 559
group. And yet, the Rome Statute does not contemplate the criminal responsi-
bility of legal persons, rendering the prosecution of economic actors ç the pri-
mary beneficiaries of the liberal universal model ç difficult, if not impossible.
In addition, members of ‘private’criminal organizations can only be prosecuted
for crimes against humanity and war crimes, even though some organizations
have committed acts of aggression similar to those of a state, particularly in
light of resolutions adopted by the Security Council following 9/11.
As regards transnational corporations, during the negotiations in Rome the
business world was worried about eventual convictions, leading to speculation
about the negative effects this would have on the market; it was feared that
the preventive effect of a single case before the ICC could transform the finan-
gold, timber or oil), and thereby contribute to ecological and humanitarian dis-
asters. A well-known example is the illegal exploitation of natural resources in
Africa’s Great Lakes Region, particularly in the Democratic Republic of the
Congo (DRC). Despite expert reports and investigations by the ICC, armed
groups persist in their criminal activities by hiding behind intermediaries.9
This results in a resurgence of looting or raids that are led by armed groups
against mineral traders or transporters. The bulk of the commodity, however,
is being sold on the legal market after having passed through many countries.
There also appears to be a problem of collusion between the economic inter-
ests of criminal networks located within the armed forces in the DRC, and the
mission of the army to ensure security, which leads to neglect in the pursuit
9 UN Security Council, Final Report of the Group of Experts on the DRC, UN Doc. S/2010/596,
29 November 2010; Global Witness, Le ro“le de l’arme¤ e Congolaise dans le commerce des ‘minerais
du conflit’ doit e“ tre reconnu, 14 December 2010.
10 US Supreme Court, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491, decision of 17 April 2013.
Ambiguities and Lacunae 561
4. Conclusion
It is recalled that universal criminal jurisdiction has its roots in the crime of
piracy, the pirate being considered the enemy of humankind. Much later, the
attacks of 11 September 2001 led the UN Security Council to link the attacks
carried out by a criminal organization to an act of aggression by a state, in
order to legitimize an exercise of purported self-defence. In light of these devel-
opments, the time may be considered ripe to attempt to bring into force the
crime of aggression committed by non-state actors, without waiting for the
earliest deadline of 2017 to pass, as set by states. By first outlawing armed con-
flicts commenced by criminal organizations, the resistance of states could be
overcome with the purpose of recognizing a global community whose interests
are pursued by all in the name of a sovereignty that, rather than being solitary,
is grounded on solidarity. Following such an approach, international criminal
justice could perhaps apply not only to the vanquished but also to the victors.
In other words, to the major powers themselves.