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Ambiguities and Lacunae

The International Criminal Court TenYears on

Mireille Delmas-Marty*

Abstract

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The establishment of the International Criminal Court (ICC) was a major step
towards the realization of the old dream of universal and lasting, if not perpetual,
peace. However, initial enthusiasm has waned and has been replaced with disen-
chantment as the ambiguities and lacunae in the Rome Statute become more and
more visible. Ambiguities arise in the relationship between the legal and political
underpinnings of the ICC because the Court is weakened by policies that remain
dominated by a sovereign model, despite operating principally within a universalist
legal framework. In addition to these ambiguities, international criminal justice is
destabilized in the relationship between the legal and economic underpinnings of
the ICC by lacunae in the Rome Statute concerning the responsibility of private
economic entities, with international criminal law lagging behind an already fully
globalized economy. In order to effectively prevent impunity for those most respon-
sible for international crimes, the ambiguities in the Rome Statute need to be
clarified and its lacunae filled.

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.
............................................................................
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

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practical difficulties and actual conditions under which ICC judges and pros-
ecutors have to carry out their investigations on the ground, generally in
close cooperation with local authorities from around the world, including in
Africa, Georgia, Afghanistan, Honduras and Colombia. However, in addition
to these practical difficulties, a number of legal as well as structural problems
stem from ambiguities and lacunae in the Rome Statute.
Ambiguities arise from a comparison between the legal and political under-
pinnings of the ICC; a tension that, in the general, seems to originate from the
juxtaposition of different, sometimes contradictory models in the current
phase of globalization. Legally, the Rome Statute evokes in its Preamble a uni-
versal model: ‘the most serious crimes of concern to the international commu-
nity as a whole must not go unpunished’. In addition, Article 5 of the Rome
Statute defines genocide, crimes against humanity, war crimes and crimes of
aggression (and thus embodies the concept of core crimes), recognizing that
universal values exist, the transgression of which concerns humanity as a
whole. On the political level, however, states have not renounced a sovereign
model, evident in the formulation of the principle of complementarity which is
ambiguous because it demonstrates the subsidiarity of the ICC vis-a'-vis domes-
tic criminal jurisdictions. Moreover, states were negligent in incorporating an
enforceable crime of aggression in the Rome Statute. Aggression was finally
defined during the 2010 Review Conference of the Rome Statute in Kampala,
but framed by restrictive conditions that postpone the entry into force of the
amendments agreed to in Kampala to 2017, at the earliest.
Lacunae are also evident by comparing the legal and economic underpin-
nings of the ICC. In practice, states have not clung to the liberal model of
economic globalization which ç through the free circulation of goods and
capital ç has increased the power of private economic actors. The latter are
both legally recognized economic powers (transnational corporations) and
economic powers that work in the shadows of the law (criminal organizations).
In both cases, their budgets surpass those of a number of states, and their
role has become quasi-political. From the point of view of international

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

criminal justice, the increasing power wielded by these entities is problematic


because the Rome Statute does not regulate corporate criminal responsibility.
In sum, with regard to the ‘legal/political’-underpinnings, the ICC is wea-
kened by a policy that remains dominated by a sovereign model, despite operat-
ing in a legal framework with universal aspiration. Enfeebled by these
ambiguities, international criminal justice is further debilitated in the relation-
ship between the legal and economic underpinnings because it lags behind
an already fully globalized economy. To put an end to impunity for those most
responsible for international crimes, it is necessary to clarify the ambiguities
and fill the lacunae.

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2. Clarifying Ambiguities
There are many ambiguities that reflect discrepancies between legal advance-
ments (universal model) and political resistance (sovereign model). For
example, it is difficult to understand the intention of states to impose a ‘zero-
growth’-budget despite the rise in the number of investigations, prosecutions
and trials. Could such an approach be explained as an indirect result of the
current economic and financial crisis? Alternatively, or additionally, states
may be concerned by the progress of the ICC’s Office of the Prosecutor and
the fact that investigations are directed towards all the parties to a conflict.
It is essential to distinguish between two kinds of ambiguities: necessary
ambiguities, such as the principle of complementarity, and other problematic
ambiguities, such as the scope of military operations undertaken within the le-
gally dubious context of the ‘responsibility to protect’, albeit more precise than
the notion of humanitarian intervention (droit d’inge¤ rence). Ambiguities also
arise in trying to understand the idea that there is ‘no peace without justice’.
With respect to the principle of complementarity, the ambiguity is undoubt-
edly a necessary one because it preserves at one and the same time universal-
ism and sovereignty. The ICC has jurisdiction, but only once a state is
unwilling or unable genuinely to carry out an investigation or prosecution.
The necessity of ambiguity in this respect is premised on an understanding of
the principle of complementarity in two distinct forms. First, in its passive
form, the principle implies the subsidiarity of international jurisdiction vis-a'-
vis domestic jurisdiction. Second, in its active form, the principle encourages
the participation and harmonization of domestic legal systems, even though
this is not directly required by the Rome Statute.
It is further necessary to distinguish whether the principle of complemen-
tarity in its active form is requested by the state directly concerned (exercising
territorial or personal jurisdiction) or invoked by a third state (exercising uni-
versal jurisdiction). In the former case, the country concerned is often in a
state of devastation, in which the country’s legal and judicial systems have to
be completely rebuilt. In such circumstances, it is not appropriate for interna-
tional prosecutors and judges simply to send observers to the country to moni-
tor the fairness of domestic procedures or the quality of conditions of
556 JICJ 11 (2013), 553^561

detention in order to assess the country’s capacity to carry out investigations


or prosecute a particular case. Rather, the ICC should contribute to strengthen-
ing justice at the domestic level through national training programmes and
the transfer of documents and know-how. In countries ravaged by armed con-
flict, or in post-conflict situations, complementarity requires the establishment
of guidelines for facilitating the integration of international criminal law into
domestic law and strengthening the capacity of states’ jurisdictions.
The meaning of the complementarity principle is different in third states,
such as France or other not conflict-prone states, where participation pursuant
to the principle of complementarity must also include measures taken in
line with an exercise of universal jurisdiction, as a way of expressing solidar-

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ity vis-a'-vis those states suffering from mass atrocities and towards the
international community as a whole. According to the French Commission
nationale consultative des droits de l’homme (National Consultative Commission
on Human Rights, CNCDH), France should facilitate the exercise of universal
jurisdiction with respect to international crimes committed abroad by non-
French nationals against non-French nationals.2 From a more practical point
of view, the creation of a unit within the Tribunal de grande instance in Paris,
specialized in genocide, crimes against humanity, war crimes and torture,
should facilitate the investigation and prosecution of these crimes in France
provided that the resources at the disposal of the unit reflect the number and
complexity of the cases it will address.
The involvement of third states is not limited to reactive measures, namely,
the prosecution and punishment of international crimes. In addition, there is
a preventive aspect to the involvement of third states, which leads to the no-
tions of ‘humanitarian intervention’ and the ‘responsibility to protect’, the
latter of which was invoked, for example, in relation to the referral of the situ-
ation in Libya to the ICC. In this regard, it is recalled that the five permanent
members of the UN Security Council (P5) abstained from exercising their
right of veto with respect to the Libya referral. However, some of the P5 have
invoked the ambiguity of the military operations in Libya as an argument in
support of their veto with regard to Syria.
Another ambiguity arises in the expression ‘no peace without justice’. For a
long time, peace, imposed without justice and by means of force, was the
peace of victors. When the first international criminal tribunals were estab-
lished in Nuremberg and Tokyo, they were regarded as a form of ‘victor’s just-
ice’. And today, if there is such a thing as real criminal justice with global
reach, it becomes apparent that this does not always lead to national reconcili-
ation, casting doubt on the affirmation that there is ‘no peace without justice’.
In this vein, Pierre Hazan, responding to whether the issue is rather one of
‘peace versus justice’, differentiates between situations such as justice before

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

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limit itself to the goal of restoring peace as a form of reparation, but rather it
must seek to establish a long-lasting and sustainable peace. In other words,
the aim of rebuilding a state must be linked to the aim of establishing a true
international community. It is in this respect that ambiguity arises between
the universal and sovereign underpinnings of the ICC because the establish-
ment of a global community necessarily entails criminalizing aggression.
In his opening address to the Nuremberg trial, prosecutor Robert Jackson
stated that: ‘[w]e must never forget that the record on which we judge these
defendants is the record on which history will judge us tomorrow’. And ‘::: if
the law is to serve a useful purpose it must condemn aggression by any other
nation, including those who sit here now in judgment’. And yet since these
words were uttered, none of the victors of 1945, nor any other major power,
seems ready to accept the criminalization of aggression. Thus, it is hardly
surprising that in 2006 the ICC Prosecutor concluded that he was unable to
initiate an investigation against the UK with respect to the situation in Iraq
as he had no mandate to address arguments on the legality of the use of force
or the crime of aggression.
For this reason, the definition of the crime of aggression adopted at the
Review Conference of the Rome Statute in Kampala represents a major devel-
opment. Pursuant to Article 8bis of the ICC Statute, aggression constitutes
an individual crime encompassing the ‘planning, preparation initiation or
execution by a person in a position effectively to exercise control over or to
direct the political or military action of a state, of an act of aggression which,
by its character, gravity and scale, constitutes a manifest violation of the
Charter of the United Nations’. Unless such an act constitutes a legitimate
act of self-defence, or is authorized by the UN Security Council, typical
acts of aggression include the invasion by armed forces, bombardments or
blockades, and other acts listed in UN General Assembly resolution 3314 of
14 December 1974.
Despite these developments concerning the crime of aggression, ambiguities
persist as the legal and political underpinnings of the ICC remain heavily
intertwined. This is the reason for the hesitant attitude ç not to say

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

‘Realpolitik’4 ç of the P5 vested with veto power. Reluctant to transfer to


international judges the power to qualify acts of aggression, the P5 have
pushed for a compromise that seeks to reconcile the role of the ICC with the
role of the UN Security Council.5
Resistance to the inclusion of the crime of aggression by the big powers
raises the question whether it would not have been better start to fill the lacu-
nae of international criminal justice as regards economic actors, allowing the
issue of aggression to enter the arena in a less obtrusive manner.

3. Filling Lacunae in International Criminal Justice

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The relationship between mass atrocities and economic activities was already a
live issue at Nuremberg, where senior businessmen were convicted for their
complicity in Nazi crimes for furnishing concentration camps with toxic gas
in the knowledge that it would be used for the extermination of humans; for
subjecting individuals to forced labour in their factories; for supporting the de-
portation, assassination or infliction of other forms of mistreatment on victims;
for financially supporting the SS perpetrators and for pillaging property in
occupied Europe.6
Corporate criminal involvement in international crimes did not end with the
Second World War. To the contrary, new developments in the available means
of communication in a globalized and more interconnected world create new
opportunities, particularly as some transnational corporations wield greater
economic power than some states. These corporations have become major
players, which have complex relationships with national governments and the
local population. In most cases, these relationships are beneficial. However,
several studies indicate that throughout the world corporations are involved
in the commission of serious crimes, either directly or as part of a larger

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-

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cing of armed conflict. If such fears of the business community had been
borne out in practice, the preventative effect of international criminal justice
would have been reinforced, and economic globalization could be said to have
had a humanizing impact. The reality is very different: the business world
has been reassured. Despite an announcement in 2003 by the then ICC
Prosecutor, Luis Moreno Ocampo, that the investigation of the economic and
financial aspects of international crimes would be of ‘crucial’ importance for
their prevention, the ICC has not yet investigated and prosecuted any economic
actors. The prosecutorial strategy of the Office of the Prosecutor does not men-
tion economic actors, thus leaving the issue to national jurisdictions. This is
despite the fact that various reports point to the criminal effects of economic
globalization.7 The shortcoming of international criminal justice in this
regard is of increasing seriousness with respect to corporations that are indir-
ectly involved in atrocities by providing goods or services that have contributed
to the commission of crimes; and corporations that are directly engaged in the
unlawful exploitation of natural and other resources necessary for their
supply chains.
As regards the first scenario, in general, a company manager is not crimin-
ally responsible for selling goods to a government that then uses these goods
to commit a crime. Exceptions to this general rule include where the company
specifically adapts its products to assist the perpetrators of the crime, or if its
goods are inherently dangerous (e.g. weapons or chemical products) and
there is knowledge of their intended use at the relevant time.8
The issue is more problematic when transnational corporations make alli-
ances with warlords in order to obtain scarce resources (such as diamonds,

7 La Commission internationale de juristes ç Comite¤ d’experts juridiques sur la Complicite¤ des


Entreprises dans les Crimes Internationaux, Complicite¤ des entreprises et responsabilite¤ juridique
vol. 1^3 (2008); J. Stewart, Corporate War Crime, Prosecuting the Pillage of Natural Resources
(Open Society Foundation, 2010).
8 To this effect, Frans van Anraat, a Dutch businessman, was convicted as an accomplice to war
crimes for having provided chemical products used to produce mustard gas to Iraqi dictator
Saddam Hussein, which was later used to attack Kurdish civilians. The Dutch court argued
that van Anraat had knowledge of this usage, in particular as the Iraqi regime, since its estab-
lishment in 1985, relied entirely on van Anraat for obtaining the chemical substance that
played an essential role in the production of gas.
560 JICJ 11 (2013), 553^561

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

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of ongoing military operations against the armed groups. It seems that the situ-
ation has directly contributed to the persistence of the threat by the armed
groups, and it creates a serious obstacle to the re-establishment of security in
the eastern part of the country. Although the ICC has initiated an investigation
regarding the violence linked to the illegal exploitation and to the commerce
of natural resource in the Congo, no prosecutions have been pursued in
this regard.
All in all, the two viable paths in holding corporations accountable for their
involvement in international crimes seem to be: the United States universal
civil jurisdiction under the Alien Tort Statute, although human rights litigation
for international crimes has been severely complicated by the very recent US
Supreme Court decision in Kiobel;10 and national criminal prosecution pursu-
ant to the universality principle in states that make provision for the criminal
responsibility of legal persons. In France, the proposed universal jurisdiction
amendment mentioned earlier would allow the general principle of criminal
responsibility of legal persons also to apply with respect to international
crimes, but it is uncertain whether the French judiciary will be sufficiently
equipped in terms of resources to deal with the anticipated high number of
claims. That a judge from a domestic legal system adjudges international cor-
porate criminal liability can only be a temporary solution because it risks
imposing an imperialist universalism. Additionally, the progressive generaliza-
tion of this trend to judges in all parts of the world ç if feasible ç carries the
risk of widespread chaos. There is thus some urgency for the ICC’s jurisdiction
to extend to legal persons.
Most criminal organizations also benefit from more permeable borders.
Although terrorism and drug trafficking were excluded from the list of crimes
adopted in Rome in 1998, it is recalled that at that time the impact of the glo-
balization process on transnational crimes was less clear. For example,
Mexico’s accession to the North American Free Trade Agreement (NAFTA) in
1998 led to the flourishing of drug cartels, which until then has mainly been

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

located in Colombia. Today’s transformation of narco-trafficking into actual


conflicts that have led to tens of thousands of deaths and affected large parts
of the population, calls for an appropriate international response to address
the transnational dimension and the gravity of these crimes. Even if the drug
market was dismantled by the decriminalization announced by the United
States, this would merely divert criminal activity towards other lucrative
forms of trafficking.
Article 7(2) of the Rome Statute, which defines the notion of an attack
against a civilian population as an element for crimes against humanity,
would, undoubtedly, have applied to the terrorist attacks of 9/11. Furthermore,
in its preliminary examination regarding the situation in Colombia, the ICC

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Prosecutor includes crimes against humanity allegedly committed by non-
state actors. One could envisage an extension of this notion to encompass a
crime of aggression, as defined in Kampala, whereby aggression would also be
understood to mean the commission of acts that target a particular civilian
population,‘pursuant to or in furtherance of a policy of a criminal organization
the aim of which is aggression’.

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.

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