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TRANSNATIONAL CRIMES

& THE ICC

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Transnational Crimes & the ICC

Should transnational crimes be included in the jurisdiction of the ICC?

Master thesis, LLM, Publiekrecht: Strafrecht

University of Amsterdam

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Table of Contents

1. Introduction ... 4

2. The International Criminal Court ... 7

2.1. The run-up to an international criminal court ... 7

2.1.1. Pre-World War II ... 7

2.1.2. Post-World War II ... 8

2.2. Establishment of the International Criminal Court ... 9

2.2.1. Reasons for the creation of the ICC ... 9

2.2.2. Aims & purposes of the ICC ... 9

2.2.3. Justifying international criminal jurisdiction ... 10

2.3. Jurisdiction of the ICC ... 14

2.3.1. Character of the crimes ... 15

2.3.2. Other issues ... 19 3. Transnational crime ... 20 3.1. Transnational crimes ... 20 3.1.1. Treaty crimes ... 20 3.1.2. Transnational ... 21 3.1.3. National crimes ... 21

3.2. Transnational crimes vs. core crimes ... 22

3.2.1. Custom? ... 22

3.2.2. International vs. national ... 22

3.2.3. Gravity ... 23

3.2.4. International community interest ... 24

3.2.5. Effective enforcement systems ... 26

3.2.6. Loss of sovereign control ... 26

3.2.7. Definitional issues ... 27

3.2.8. Practical issues ... 27

4. Transnational crimes & the ICC ... 28

4.1. Trafficking in persons... 28

4.2. Terrorism ... 30

4.3. Computer crime ... 31

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4.5. International community interest ... 33

5. Analysis & Conclusion ... 34

Bibliography ... 37 Annexes ... 40 Legal instruments ... 40 Other instruments ... 40 Case law ... 41 Webpages ... 41

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1. Introduction

The International Criminal Court (ICC) is occupied with the implementation of international criminal law. But what actually entails international criminal law? This may not be as evident as it may seem. To illustrate, in 1950 Schwarzenberger described six different meanings of the term ‘international criminal law’.1 And these definitions did not even encompass the definition that is commonly used

nowadays, the law of international crimes, or often formulated as, the core crimes, which encompasses: the crime of genocide, crimes against humanity, war crimes and the crime of aggression.2 According to Schwarzenberger international crimes did not exist, as this ‘presupposes

the existence of an international criminal law. Such a branch of international law does not exist.’3 In

contrast, in 2008 Bassiouni fabricated a list of 25 international crimes, amongst them the core crimes but also crimes such as traffic in obscene materials and falsification and counterfeiting.4 Looking at

the separate words of the term, I believe international criminal law entails the law of offences with international elements. Thus, offences transcending the national boundaries and/or national interests. In other words, international criminal law encompasses the core (international) crimes as well as transnational crimes.5

Then why does the ICC solely exercise jurisdiction over the core crimes? Especially taking into account the growing attention for transnational crimes and their impact and the increased tendency to let certain of these transnational crimes fall under the jurisdiction of the ICC (cf. chapter 5). On the basis of the Rome Statute of the International Criminal Court (Rome Statute) there certainly is the possibility to extend the jurisdiction of the ICC, and perhaps it is time to make use of this possibility.6

This resulted in the following research question: should transnational crimes be included in the jurisdiction of the ICC? I will limit myself to answering this question from the angle of the rationale behind the establishment of the ICC and the nature and character of transnational crimes and the core crimes. Thus while taking into account the rationale behind and the reasons for the establishment of the ICC and considering the nature of transnational crimes and the core crimes should transnational crimes be included in the jurisdiction of the ICC?

Relevance

This research into the question whether transnational crimes should be included in the jurisdiction of the ICC is relevant because ever since the establishment of the ICC in 2002, and even before that, the jurisdiction and what it encompasses and perhaps should encompass is a hot topic. This research has the purpose to give a final answer as to whether transnational crimes should be included in the jurisdiction of the ICC seen from the perspective of the rationale behind the creation of the ICC and the nature of transnational crimes and core crimes. This thesis must provide clarification as to whether it is the right path to take to include transnational crimes in the jurisdiction of the ICC.

1 Schwarzenberger 1950.

2 Cryer et al. 2010, pp. 4-5. 3 Schwarzenberger 1947, p. 349. 4 Bassiouni 2008, pp. 134-5.

5 See also Boister 2003, pp. 953 & 955.

6 Art. 123 of the 1998 Rome Statute of the International Criminal Court, 2187 United Nations Treaty Series

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Hopefully this research will give insight to those parties playing a role in the discussion and the process of a possible expansion of the jurisdiction of the ICC.

Transnational crime

It may not always be clear which crime is a transnational crime, defining transnational crime is difficult. This thesis is not meant to be conclusive on which crimes should be recognised as transnational crimes. Therefore, to prevent uncertainty and misunderstanding about the term used in this thesis ‘transnational crimes’, I have chosen to accept a list of categories of transnational crimes, prepared by an organisation with authority, as transnational crimes. The categories of transnational crimes recognised as such by the United Nations (UN) are in this thesis adopted and used in relation to answering the research question. The UN recognised the following categories of transnational crimes:

 Money-laundering;

 Terrorist activities;

 Theft of art and cultural objects;

 Theft of intellectual property;

 Illicit trafficking in arms;

 Aircraft hijacking;  Sea piracy;  Land hijacking;  Insurance fraud;  Computer crime;  Environmental crime;  Trafficking in persons;

 Trade in human body parts;

 Illicit drug trafficking;

 Fraudulent bankruptcy;

 Infiltration of legal business

 Corruption and bribery of public officials and of party officials and elected representatives; and

 Other offences committed by organized criminal groups.7

According to the UN these categories of crimes generally are assumed to be of a transnational nature.8 In chapter 3 the nature and character of these transnational crimes will be discussed, which

will clarify why these crimes are recognised as transnational crimes.

Thesis content

To be able to answer the research question ‘should transnational crimes be included in the jurisdiction of the ICC?’ from the angle of the rationale behind the establishment of the ICC and the nature of transnational crimes and the core crimes, first some other questions and issues have to be elaborated on. Research in this thesis will be based on academic literature, primary and secondary sources of law, United Nations documents, other official documents.

7 UN Doc. A/CONF. 169/15/Add.1 (1995). 8 UN Doc. A/CONF. 169/15/Add.1 (1995), p. 5.

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In chapter 2 the establishment of the ICC will be discussed. Chapter 2.1 provides some background information in the run-up to the establishment of a permanent international criminal court. Chapter 2.2 gives an elaboration on the establishment of the ICC, why was it created? Chapter 2.3 goes into the reasons why was chosen to limit the jurisdiction of the ICC to the core crimes. In this way, chapter 2 contributes to the understanding of the rationale behind the ICC, which is necessary to answer the research question if transnational crimes should be included in the jurisdiction of the ICC.

The following chapter, chapter 3, provides an introduction in the concept of transnational crimes. The purpose of this chapter is to gain understanding and more in-depth knowledge in the area of transnational crimes and their nature and character. By comparing the nature and character of transnational crimes to that of the core crimes, this chapter contributes to understand whether it is justified and understandable if transnational crimes will be included, next to the core crimes, in the jurisdiction of the ICC. Chapter 3.1 introduces the reader into transnational crimes. In chapter 3.2 transnational crimes and core crimes are compared.

In chapter 4 transnational crimes that under circumstances already (may) fall in the jurisdiction of the ICC are explored. This chapter is relevant in this thesis to be able to answer the question if it is justified that some transnational crimes under circumstances fall under the jurisdiction of the ICC, and some transnational crimes are always excluded. Should not all transnational crimes fall within the jurisdiction of the ICC? Chapter 4.1 looks into the transnational crime trafficking in persons. Chapter 4.2 specifically researches terrorism as a crime possibly already falling in the jurisdiction of the ICC. Chapter 4.3 is about the transnational crime computer crime, and chapter 4.4 entails environmental crime. Chapter 4.5 will bring the issue of an international community interest to the attention.

Finally, chapter 5 provides for an analysis of the findings of the research in this thesis. In this chapter the research question ‘should transnational crimes be included in the jurisdiction of the ICC?’ is answered. In answering this question the findings in the preceding chapters are connected and analysed. In this chapter a final conclusion will be given.

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2. The International Criminal Court

In 1998 at the Rome Conference the Rome Statute was created, which entered into force in 2002, bringing the ICC formally into existence.9 This court was established to prosecute those perpetrators

responsible for the gravest crimes. The parties establishing the ICC came to a consensus on the inclusion of four different crimes in the Rome Statute for the ICC to exercise its jurisdiction over; the crime of genocide, crimes against humanity, war crimes and the crime of aggression.10 The

international prosecution of drug offences was one of the reasons why some states argued in favour of the creation of an international criminal court and certain transnational crimes were actually included in the original draft of the Rome Statute.11 Then what was the reason the establishing

parties at the end choose for inclusion of only the core crimes in the jurisdiction of the ICC? And what were the reasons the ICC was created? These are some of the questions that will be answered in this chapter. The informal negotiating process at the Rome Conference resulted in an absence of the

travaux préparatoires.12 Therefore, in addition to the Official Records, commentaries and books and

other literature written about the ICC may be useful to answer these questions.13 First, the run-up to

the creation of the ICC will be dealt with. Secondly, the establishment of the ICC will be discussed; the reasons for its creation and what goals were set for the ICC. Finally, we will look at the reasons the jurisdiction of the ICC was limited to the core crimes.

2.1. The run-up to an international criminal court

Before the actual creation of the ICC there have been several earlier proposals, however unsuccessful, to create a permanent international criminal court. To provide some background on the eventual establishment of the ICC, some of these proposals and events will shortly, in a chronological order, be discussed.

2.1.1. Pre-World War II

The proposal to create an international criminal court in 1872 by Gustav Moynier, one of the founders of the International Committee of the Red Cross, may be seen as the first serious proposal.14 Even though he previously was an opponent of a permanent international criminal court.

According to Moynier the Geneva Convention of 186415 brought moral obligations with it. Despite

these obligations, he noticed that after the Franco-Prussian war in 1870-1871 states failed to punish those responsible for violations of the laws of war. Concerned that national judges, often of the

9 Rome Statute, text of the Rome Statute circulated as document A/CONF.183/9 of 17 July 1998 and corrected

by process-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. The Rome Statute entered into force on 1 July 2002.

10 Art. 5 (1) of the Rome Statute; until now the ICC cannot exercise jurisdiction over the crime of aggression in

accordance with Art. 5 (2) of the Rome Statute.

11 Cryer et al. 2010, p. 145.

12 The Official Records of the Rome Conference are limited to UN Doc. A/CONF.183/13 (Vols. I-III) (2002). 13 Cryer et al. 2010, p. 148.

14 Moynier 1872; Hall 1998.

15 1864 Convention for the amelioration of the condition of the wounded in armies in the field, Geneva, 22

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belligerent state, would not judge fairly and impartially on offences committed in wars, especially not when their own states had been involved, Moynier found it necessary that a permanent international criminal court would be created to prosecute those offences.16

After World War I efforts were made to punish perpetrators who committed crimes during the war, but this was mainly done before Allied courts and German courts, where proceedings were biased.17

No effort was made to create a permanent international criminal court for this purpose, only ad hoc international tribunals were considered, and at the end, however never executed, only the Kaiser, the ex-head of Germany, was supposed to be trailed before an international tribunal.18

Following World War I there were plans and ideas within the League of Nations for criminal prosecution in relation to the Permanent Court of International Justice, but these ideas were never carried out.19 Only in 1937 a new official proposal by the French was submitted to the League of

Nations to create a permanent international criminal court through the creation of the Convention for the Creation of an International Criminal Court.20 The purpose was to try terrorist offences, but

lacking support of states and due to events related to the beginning of World War II the treaty never came into force.21

2.1.2. Post-World War II

After World War II there were two important proposals for the establishment of a permanent international criminal court. The first came in 1947, by Henri Donnedieu de Vabres, the French judge on the International Military Tribunal (IMT) at Nuremberg, being the representative of France at the UN General Assembly’s Committee on the Progressive Development of International Law and its Codification.22 This proposal was a reaction to the criticism made on the IMT that its character was

not truly international.23 The second proposal came in 1948 in relation to the Convention on

Genocide24, encompassing an international organ or a criminal chamber within the International

Court of Justice with jurisdiction over international crimes or only over genocide.25

After the events following World War II the discussion on a permanent international criminal organ was silent for decades. In 1980 there was once again an unsuccessful proposal to create an international criminal court, in the form of a draft statute to enforce the Apartheid Convention26.27 A

16 Hall 1998.

17 Cryer et al. 2010, p. 110.

18 Memorandum by the Secretary-General, Historical Survey of the Question of International Criminal

Jurisdiction, UN Doc. A/CN.4/7/Rev.1 (1949) (Memorandum 1949), p. 2.

19 Memorandum 1949, pp. 2-3.

20 1937 Convention for the Creation of an International Criminal Court; Pella 1950, pp. 38-39. 21 Memorandum 1949, p. 3; Pella 1950, p. 39.

22 Memorandum submitted by the delegate of France, Draft Proposal for the Establishment of an International

Court of Criminal Jurisdiction, UN Doc. A/AC.10/21 (1947).

23 Memorandum 1949, p. 4.

24 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 78 United Nations Treaty Series, p. 277.

25 Memorandum 1949, p. 5.

26 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015 United Nations Treaty Series, p. 243.

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proposal in 1989 by Trinidad and Tobago to create a permanent international criminal court for the prosecution of drug offences revived the discussion.28 This led to a variety of activities in the next

decade, resulting in the Rome Conference in 1998, which had the purpose to conclude the final treaty of the ICC.29

2.2. Establishment of the International Criminal Court

In the 1990s, several activities contributed to the adoption of the Rome Statute during the Rome Conference in 1998 and the start of the ICC in 2002. As we have seen there were several earlier proposals for the creation of a permanent international criminal court for a variety of purposes. What were the reasons for and the rationale behind the establishment of the ICC? And what were the aims of the ICC?

2.2.1. Reasons for the creation of the ICC

As mentioned, the initial proposal in 1989 which led to the creation of the ICC came from Trinidad and Tobago for the purpose of prosecuting drug offences. Trinidad and Tobago led a coalition of Caribbean States whom generally were too weak to deal with the prosecution of transnational crimes, threatening their internal sovereignty.30 It was not their intention a court was created that

would remove impunity for the core crimes.31 Shortly after, in the early stages of the creation of the

ICC the United States Senator Arlen Specter also suggested a court for the prosecution of transnational crimes, a court which was not supposed to replace national prosecutions but be an additional means to it.32

The proposal, and the activities it set in motion, to create the ICC came in a period of time in which states became lenient to the idea of the prosecution of perpetrators of international crimes before an international organ. Post-Cold War and the atrocities committed in the 1990s in the Former Yugoslavia and Rwanda, and in context to these atrocities the creation of ad hoc international tribunals, contributed to a broad-based political will to create a permanent international criminal court.33 Another factor which contributed to a rising support to create a permanent international

criminal court was the increasing influence of the international civil society, which was no longer willing to accept impunity of persons committing atrocities.34

2.2.2. Aims & purposes of the ICC

When finally the Rome Statute was adopted, the Preamble of the Rome Statute reflected the aims and purposes of the Rome Statute and consequently the ICC.35 The Preamble describes the outcome

of the negotiations on which basis agreement was reached on the text of the Rome Statute and

28 Cryer et al. 2010, p. 145.

29 Cryer et al. 2010, p. 146. 30 Boister 2009, p. 343 31 Boister 2012, p. 295.

32 136 Congressional Records 14,365, 14,367 (1990); Turner 2005, pp. 33-34. 33 Bassiouni 1998, pp. 18-19; Bassiouni 1999 (II), p. 64; Schiff 2008, p. 38. 34 Bassiouni 1998, p. 19.

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furthermore it clarifies certain obligations of states.36 The Preamble contains 11 paragraphs, which

do not all encompass separate aims and purposes. Hereafter the aims and purposes of the ICC will be discussed, with reference to the Preamble when possible.

The ICC cannot put an end to all the atrocities that continuously are being committed and shock the conscience of humanity.37 However, one of the aims of the ICC was also that it “would serve as an

independent and effective deterrent for the worst crimes under international law, wherever committed”38.39 In addition, the ICC has the aim to help uphold the rule of law and maintain

stability.40 The ICC must promote a culture of accountability, replacing a culture of impunity.41

One of the reasons the proposal of an international court prosecuting transnational crimes fell to the background in the negotiating process, was that the prosecution of those perpetrators responsible for the most serious crimes was one of the strongest aims for the ICC during the negotiations at the Rome Conference.42 In contrast, negotiators had the objective to avoid the possibility of prosecution

of national leaders.43 At the end, this aim of prosecuting the most serious perpetrators is, for

example, reflected in the criteria that a case must be of sufficient gravity to be admissible,44 and the

choice of crimes falling within the jurisdiction of the ICC.45

One of the aims of the ICC is that it is a court of last resort, it is complementary to national jurisdictions.46 States have the duty to “exercise its criminal jurisdiction over those responsible for

international crimes”.47 This is reflected in the rules on the admissibility of a case, regarding

unwillingness or genuine inability of States in relation to a case.48

2.2.3. Justifying international criminal jurisdiction

The principle of complementarity, lying at the core of the ICC, is based on the principle of sovereignty, meaning that states have primary jurisdiction and that this primacy must be respected.49

More specifically, “exercise of police power and penal law is a prerogative of States, the jurisdiction of the Court should be viewed only as an exception to such a State prerogative”.50 The principle of

State sovereignty is the foundation of international law, and is for instance laid down in Article 2 of

36 Bergsmo & Triffterer 1999, p. 5. 37 Bassiouni 1999 (I), p. XXVIII. 38 Bassiouni 1999 (I), pp. XXIII.

39 Reflected in paras. 4, 5 & 9 of the Preamble of the Rome Statute; Bassiouni 1999 (I), p. XXVIII; see also p. XXV

about the commitment to an independent and effective court of the Like-Minded Group, group of over 60 states contributing to the negotiating process.

40 Bassiouni 1999 (I), p. XXVIII; reflected in paras. 3 & 11 of the Preamble of the Rome Statute. 41 Bassiouni 1999 (I), p. XXVIII; para. 5 of the Preamble of the Rome Statute.

42 Boister 2012, pp. 297-298; this aim of the ICC is also reflected in paras. 3-5 & 9 of the Preamble of the Rome

Statute.

43 Cryer et al. 2010, p. 147.

44 Art. 17 (1) (d) of the Rome Statute. 45 Art. 5 of the Rome Statute.

46 Para. 10 of the Preamble of the Rome Statute. 47 Para. 6 of the Preamble of the Rome Statute. 48 Art. 17 (1) (a) & (b) of the Rome Statute. 49 Cryer et al. 2010, p. 153; Brown 1998, p. 424.

50 Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN Doc.

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the 1945 Charter of the United Nations.51 States and the international community cannot intervene

in the exclusive legal authority of states in domestic matters and breach the principle of sovereignty of the state without justification. Consequently, the principle of complementarity can be related to the justification grounds for international interference in a states’ sovereignty in the field of criminal law enforcement. Due to the complementary character of the ICC, in principle the sovereignty of the state is respected in exercising criminal prosecutions. Only when there are grounds justifying international prosecution the international community can interfere in the states’ sovereignty.

Larry May explains the grounds justifying international jurisdiction on the basis of two cumulative principles, the security principle and the international harm principle.52 Other known authors, such as

Otto Triffterer and Harmen van der Wilt also elaborate on the justification grounds for international jurisdiction. Van der Wilt builds upon the ideas of May, but argues a twist of these principles. Triffterer without specifically mentioning these two principles, explains two grounds justifying international jurisdiction that are very similar to the justification grounds as explained by May. I will now discuss the justification grounds for international jurisdiction in relation to these authors.

Larry May

First of all, the security principle of May is based on the idea that basic human rights abuses in a state – as a result of being perpetrated by a state or because the state condones the occurrence of the abuses – justify interference in the sovereignty of the state by an international organ to remedy the harm or protect the subjects of the state against these abuses.53 The principle can be analysed in

several elements. At stake must be the abuse of basic human rights, subjects must be deprived of their ‘physical security or subsistence’. Furthermore, the state must be unwilling or unable to protect it subjects against these forms of harm.54 Consequently, when the state fails to protect the physical

security or subsistence of its subjects – due to unwillingness or inability –, the state has no right to prevent an international body from justifiably intervening in the sovereignty of the state when that body is acting with the purpose of genuinely protecting the subjects of the respective state.55 Thus on

the basis of this principle, the state has not the right to prevent an international body from possibly intervening in its sovereign jurisdiction. However, on the basis of this principle, the international body does not acquire the right to justifiably interfere, therefore the another principle is required.

Secondly, the international harm principle is also necessary to justify truly international prosecutions, only when crime is not individualised and there is harm to humanity this condition is satisfied. This principle holds that for harm to humanity to occur the crime must be group based; “either the individual is harmed because of that person’s group membership or other non-individualized characteristic, or the harm occurs due to the involvement of a group such as the State”.56 According to May harm that is group-based is more likely to “assault the common humanity

of the victims and to risk crossing borders and damaging the broader international community”57 and

therefore is of interest to the international community. As a result of this additional criteria, the

51 1945 Charter of the United Nations, 892 United Nations Treaty Series, p. 119. 52 May 2005, pp. 63-95. 53 May 2005, p. 68. 54 May 2005, p. 68. 55 May 2005, p. 68. 56 May 2005, p. 83. 57 May 2005, p. 83.

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violations of the security principle are sufficiently serious as to harm the international community, or even harm humanity. Consequently, serious harm to humanity because the crime is group based justifies the international criminal prosecution of an individual perpetrator.58 On the basis of this

principle the international body has a right to intervene in the sovereignty of the state and to prosecute an individual perpetrator and deprive the perpetrator of his liberty.59

Thus, according to May “the security principle limits State sovereignty, whereas the international harm principle delineates a type of crime that can legitimately be prosecuted by international as opposed to domestic tribunals”.60 Thus, merely human rights abuses do not justify

international criminal prosecution (the security principle), therefore, the international harm principle is also necessary, which requires that the crime is group based, making the human rights abuses sufficiently serious to justify international criminal prosecution of the respective perpetrators.61

Otto Triffterer

Similar to the international harm principle, Triffterer explains that the international community has emphasised that international peace and security are especially important values.62 International

criminal law, as part of the legal system of the international community, has the primary task to guarantee the protection of these values.63 International criminal law additionally protects the legal

values of individuals.64 The core crimes “threaten the peace, security and well-being of the world”65

and therefore are “of concern to the international community as a whole”66. A culture of

accountability works as a deterrent for future commission of these crimes.67 On the basis of this

argumentation given by Triffterer,68 the commission of the core crimes harms and concerns the

international community, and thus when states themselves fail to prosecute perpetrators of these crimes, the international community can justifiably intervene through the exercise of international criminal jurisdiction. In other words, if the international community is harmed international prosecution is justified. However, Triffterer does not explain when the international community is harmed. He does not speak of the necessity of the crime to be group based, a criteria lying at the core of the international harm principle of May.

Secondly, Triffterer argues that human rights of individuals must be protected and it is the duty of a state to do so, recognition thereof in national law must guarantee this. However when states fail to secure and protect the human rights of their own nationals, due to inability of states to do so (the state is too weak) or unwillingness because of involvement or close affiliations of state representatives with human rights violations (the state is too strong), the international community may intervene.69 He further explains this ground, arguing that human rights violations in one state

58 May 2005, p. 83.

59 May 2005, p. 80. 60 May 2005, p. 21. 61 May 2005, p. 21.

62 Artt. 2 (6), 11, 12, 18 and Chapter VII of the 1945 Charter of the United Nations, 892 United Nations Treaty Series, p. 119.

63 Triffterer 1999, p. 26. 64 Triffterer 1999, p. 26.

65 Para. 3 of the Preamble of the Rome Statute.

66 Para. 4 of the Preamble of the Rome Statute; see also Art. 1 of the Rome Statute. 67 Para. 5 of the Preamble of the Rome Statute.

68 Triffterer 1999, pp. 26-27. 69 Triffterer 1999, pp. 27-28.

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also affect other states, threatening the international peace and security of the world.70 Therefore,

the international community as a whole must combat these human rights violations and international jurisdiction is justified. The first part of this justification ground is similar to the security principle of May, however the second half is related to Triffterer’s ‘international harm principle’.

According to Triffterer either ground justifies international criminal jurisdiction. Moreover, it must be noted that he does not strictly separates these two justification grounds. When the security principle is at stake, the international harm principle is at stake as well. In contrast, according to May, who strictly separates both justification grounds and ads a strict criteria to the international harm principle, the principles are cumulative, both the security principle and international harm principle must be at stake to justify international prosecutions.71

Harmen van der Wilt

Van der Wilt building upon the two principles of May, argues that the security principle provides the primary justification ground for the international community to exercise international criminal jurisdiction, and like Triffterer does not strictly separates the two grounds, arguing that the security principle encapsulates May’s international harm principle.72 When the state suppresses the

population or condones the commission of the core crimes, this consequently harms the international community as a whole.73 In his argument van der Wilt finds substantiation in the

discourse of David Luban.74 Van der Wilt explains that the commission of - specifically referring to -

crimes against humanity “strike at the core of the human condition, by shattering the political realm” and thus affect the entire international community.75 Referring to Luban, Van der Wilt points out that

the fundamental betrayal by a state of its subjects - in oppressing its own subjects or not preventing the oppression of its own subjects by other groups - (i.e. the security principle), distorts the political realm, which fundamentally affects the international community as a whole (i.e. the international harm principle).76 Luban and Van der Wilt directly link the security principle with perversion of

politics, directly resulting in and linked to the international harm principle. According to them, the security principle encapsulates harm to the international community. Contrary to May, who strictly distinguishes his security principle and international harm principle, and the first does not automatically involves the latter. Thus when the security principle is at stake, automatically the international harm principle is at stake, and international jurisdiction is justified.

Conclusion

With regards to the grounds justifying international criminal jurisdiction, I agree with Van der Wilt’s explanation of the security principle and the international harm principle. May separates these two grounds and does not acknowledge that the security principle encapsulates the international harm principle. Agreeing with Van der Wilt, the role of the state in the security principle, in oppressing the population or condoning the oppression of its own subjects, “bereaves that people of a vital capacity

70 Triffterer 1999, pp. 27-28. 71 May 2005, p. 81.

72 Van der Wilt 2014 (I), p. 27. 73 Van der Wilt 2014 (I), p. 27.

74 Van der Wilt 2014 (I), p. 34; see also Luban 2004, pp. 85-167. 75 Van der Wilt 2014 (I), p. 34.

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and simultaneously arouses the concern of all humanity, because the essential destruction of the political realm reflects upon all of us”.77

Seeing that May relates the international harm principle to the criteria that the crime is group-based one can easily explain this in the light of the political argument of Van der Wilt and Luban, however May fails to relate the group-based element to the political realm. May also recognises the role of the state in the security principle, however he does not acknowledges the interrelatedness between the security principle and the international harm principle. Even though, in pointing at the role of the state and the population in the security principle, he actually already points at the group-based element of the crime, and thus his criteria for harm to the international community. However, he fails to connect these elements in his distinct principles.

Thus to conclude, on the basis of the principle of sovereignty the state has primacy in exercising criminal jurisdiction. This is related to the complementary character of the ICC, elaborated in Article 17 of the Rome Statute. However, when the state is unwilling or unable genuinely to investigate or prosecute, provided that the grounds justifying international jurisdiction are met, the conditions for the principle of complementarity are fulfilled and the ICC can interfere in the sovereignty of the state trough exercising international jurisdiction. In other words, when there is an international community interest the justification grounds for international criminal jurisdiction are met, and it is justified to intervene in the sovereignty of the state. These justification grounds are met when the security principle is violated, harming the entire international community.

2.3. Jurisdiction of the ICC

Subsequently to the proposal of Trinidad and Tobago, the UN General Assembly requested the International Law Commission (ILC) “when considering at its forty-second session the item entitled ‘Draft Code of Crimes against the Peace and Security of Mankind’, to address the question of establishing an international criminal court or other international criminal trial mechanism with jurisdiction over persons alleged to have committed crimes which may be covered under such a code of crimes, including persons engaged in illicit trafficking of narcotic drugs across national frontiers”.78

In 1994 the ILC responded with a draft statute for such a court, with jurisdiction over the core crimes and a list of treaty crimes.79

In 1994 the UN General Assembly set up the Ad Hoc Committee, succeeded in 1995 by the Preparatory Committee on the Establishment of an International Criminal Court (PrepCom).80 Taking

account of the draft statute created by the ILC, the PrepCom came with a final draft in 1998, which served as the starting point for negotiations at the Rome Conference in 1998.81 This draft included

besides the core crimes within the jurisdiction of the ICC: crimes of terrorism, crimes against United Nations and associated personnel, and crimes involving the illicit traffic in narcotic drugs and

77 Van der Wilt 2014 (I), p. 35.

78 International criminal responsibility of individuals and entities engaged in illicit trafficking in narcotic drugs

cross national frontiers and other transnational criminal activities: establishment of an international criminal court with jurisdiction over such crimes, UN Doc. A/RES/44/39 (1989), Operative Paragraph 1.

79 Report of the International Law Commission on the work of its forty-sixth session, A/49/10 (1994). 80 UN Doc. A/RES/49/53 (1994); UN Doc. A/RES/50/46 (1995).

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psychotropic substances.82 It must be noted that not all the transnational crimes listed in the

Introduction of this thesis were included in the discussion on the jurisdiction of the ICC.

At the end of the Rome Conference the Rome Statute was adopted. Despite the facts that the initial proposal for the creation of the ICC was related to the prosecution of drug offences and that in the draft statute created by the PrepCom a few transnational crimes were included, the final version of the Rome Statute did not include transnational crimes, but only the core crimes. Already in the early stages of the creation of the ICC the support for inclusion of transnational crimes within the jurisdiction of the ICC was diminishing.83 Limiting the jurisdiction to the core crimes would “promote

broad acceptance of the court (…) and enhance the credibility and moral authority of the court.”84 In

this part the reasons that underlie the choice to limit the jurisdiction of the ICC to the core crimes are explored.

2.3.1. Character of the crimes

A majority of states involved in the negotiating process of the Rome Statute wanted to limit the jurisdiction of the ICC to the core crimes and exclude the transnational crimes due to the different character of these crimes.85

Customary nature

It was the intention of the majority of the negotiating states that existing crimes in general international law would fall within the jurisdiction of the ICC.86 The Rome Statute should not have the

purpose of progressive development of international law, merely codification of existing customary international law.87 It was argued that the core crimes, now included in Article 5 of the Rome Statute,

have a customary nature, contrary to transnational crimes which are not custom, but only have a treaty basis.88 Consequently, prosecution of the core crimes under general international law due to

their customary nature would not give any problems, while prosecution of transnational crimes before the ICC raised several issues.89 Limiting the jurisdiction to the core crimes was said “to avoid

any question of individual criminal responsibility resulting from a State not being a party to the relevant legal instrument, to facilitate the acceptance of the jurisdiction of the Court by States that were not parties to particular treaties, to facilitate the functioning of the Court by obviating the need for complex State consent requirements or jurisdictional mechanisms for different categories of crimes”90.

82 UN Doc. A/CONF.183/13 (Vol. III) (2002), pp. 21-22.

83 See e.g. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN Doc.

A/50/22 (1995) (1995 Ad Hoc Committee Report), paras. 54-55; 1996 PrepCom Report Vol. I, para. 103.

84 1995 Ad Hoc Committee Report, para. 54.

85 See e.g. 1995 Ad Hoc Committee Report, para. 55; 1996 PrepCom Report Vol. I, para. 103; Von Hebel &

Robinson 1999, p. 81.

86 1996 PrepCom Report Vol. I, paras. 54 & 103. 87 Robinson 2002, p. 503.

88 Schabas 2004, p. 28. 89 Triffterer 1999, p. 98.

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International law

Another reason limiting the jurisdiction of the ICC to the core crimes, related to the argument before, is that the ICC is an international court, and thus it can only apply international law.91 The core crimes

are international crimes, and thus impose individual criminal responsibility under international law.92

Transnational crimes are national crimes, as such agreed upon in international obligations in the respective treaties, and only impose individual criminal responsibility under national law.93

Consequently the ICC only has jurisdiction over the core crimes.94

Sufficient gravity

One of the aims of the ICC was to remove impunity of “the most serious crimes of concern to the international community as a whole”95 (cf. chapter 2.2.2). According to many states the transnational

crimes did not meet the required criterion of seriousness, they were of insufficient gravity.96

Transnational crimes were unlikely to threaten the international peace and security.97 Additionally,

the core crimes have in their definition some form of built-in threshold, making sure they are always of sufficient gravity.98

International community interest

Furthermore, the aim was to limit the jurisdiction to crimes with an international community interest.99 The Preamble of the Rome Statute also speaks of the aim of prosecuting “the most serious

crimes of concern to the international community as a whole”100. The core crimes have an

international community interest, which interest transnational crimes lack.101 As noted with regards

to grounds justifying international criminal jurisdiction, it is necessary that the international community as a whole is affected (cf. chapter 2.2.3). Thus besides the aim of the ICC of prosecuting crimes with an international community interest, it is also a prerequisite to justify actions of the ICC (cf. chapter 2.2.3). “They dictate prosecution because humanity as a whole is the victim.”102

Transnational crimes only have a national interest of the states being party to the treaties criminalising the transnational crimes.

The core crimes all have an international community interest and thus when these crimes are committed the justification grounds for international prosecution are met. Triffterer also states that the core crimes entail an international community interest and therefore international jurisdiction is justified.103 This is a result of the nature of the core crimes. Many scholars accept the role of states

that is embedded in the character of the core crimes, the commission of these crimes is associated

91 1996 PrepCom Report Vol. I, para. 103. 92 Robinson 2002, p. 515; Boister 2009, p. 350.

93 See e.g. Art. 3 of the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic

Substances, 185 United Nations Treaty Series, p. 453; UN Doc. A/45/10 (1990), p. 30.

94 Boister 2009, pp. 349-351.

95 Para. 4 of the Preamble of the Rome Statute; Art. 5 of the Rome Statute.

96 Robinson 2002, p. 504; Boister 2009, p. 347 ; see e.g. UN Doc. A/AC.249/1 (1996), paras. 71-72. 97 See e.g. UN Doc. A/50/10 (1995), para. 113.

98 Schabas 2004, pp. 29-30.

99 1996 PrepCom Report Vol. I, para. 103. 100 Para. 4 of the Preamble of the Rome Statute. 101 Schabas 2004, p. 26; Boister 2009, pp. 351-352. 102 Schabas 2004, p. 27.

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with active state involvement or at least states condone these crimes.104 As a result of the role of the

state in these crimes, states fail in their duty to protect their citizens, and international jurisdiction is justified.105 As Schabas also states, “these are generally crimes of State, in that they involve the

participation or acquiescence of a government, with the consequence that the justice system of the country is unlikely to address the issue”.106 Thus, since it is generally accepted that the core crimes

entail involvement of the state, the security principle is violated and consequently the international harm principle is at stake, which justifies international prosecution. I will shortly go into the three core crimes that are being prosecuted before the ICC.

The contextual elements of genocide, crimes against humanity and war crimes all have the consequence that if the crime is committed and these elements are met, the state is in some way involved. The contextual elements of genocide, crimes against humanity, and war crimes embed the inability or unwillingness of states to protect the citizens. The state condoned the commission of the crimes or was involved in the atrocities. Due to the contextual elements of the core crimes these crimes have an actual international community interest. Without the contextual elements the conduct is not enough, and are - especially in the case of crimes against humanity - regular crimes (e.g. murder / killing), which do not have an international community interest, and consequently do not justify international prosecution of these crimes before the ICC. I will shortly explain the international community interest of each crime.

Genocide, laid down in Article 6 of the Rome Statute the commission of certain acts “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.107

Genocide is recognised as the most egregious crime of all, harming humanity as a whole and thus calls for international prosecution.108 The prohibition of genocide has the status of a ius cogens

norm109 and is an obligation erga omnes110 (i.e. owed to the international community as a whole).

Genocide normally entails the attack of a state, or a state condoning an attack, against its subjects, thus it is clear it concerns the security principle.111 As explained in chapter 2.2.3, the role of the state

in the commission of the atrocities as an attack on the political realm, backfiring on the entire international community.

Article 7 of the Rome Statute is concerned with crimes against humanity. Crimes against humanity is the commission of one of the listed acts “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”.112 Similar to

genocide, crimes against humanity entails the involvement of the state in the attack.113 Therefore,

the security principle is violated as the state does not protect its subjects. Article 7 (2) (a) of the Rome Statute explains that the attack is committed “pursuant to or in furtherance of a State or

104 Van der Wilt 2014 (I), p. 26; see also Cassese 2008, p. 7; Werle 2009, p. 41; Schabas 2010, p. 40; Cryer et al.

2010, p. 7.

105 Van der Wilt 2014 (I), p. 27. 106 Schabas 2010, p. 40. 107 Art. 6 of the Rome Statute. 108 May 2005, p. 6.

109 Case concerning Armed Activities on the Territory of the Congo (DRC v. Rwanda), Jurisdiction of the Court

and Admissibility of the Application, ICJ Judgment of 3 February 2006, para. 64.

110 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide Advisory Opinion, [1951] ICJ Reports, p. 23.

111 May 2005, p. 69.

112 Art. 7 of the Rome Statute. 113 May 2005, p. 69.

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organizational policy”. May also acknowledges it is an element of crimes against humanity that they are organised by a state or state-like entity.114 In the Kenya decision the ICC has elaborated on this

element of crimes against humanity deciding that the threshold is met if the group has “capability to perform acts that infringe basic human rights”.115 Furthermore, the international harm principle is

related to the element of widespread and systematic, this results in widespread harm, embedding the group based element of the crime.116 May states that group-based harm is more likely to be

widespread, not restricted to isolated victims, or systematic, in the sense that in the case of group-based harm it is more than just an individual motivation to commit atrocities.117 It is clear, separating

the security principle and international harm principle or not, these principles are violated in the case of crimes against humanity.118

Finally, Article 8 of the Rome Statute states that the ICC has jurisdiction over a list 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”.119 As May explains, when war crimes are committed members of one

state literally cross borders to harm members of another state. This international aspect of war crimes is embedded in war crimes committed in the context of an international conflict. Therefore, in these situations it is not uncontested that international prosecution is justified, due to the war states already stepped out of their domestic sovereignty. In an international conflict, an international response, that is impartial and objective, is the plausible response.120 The state of which soldiers are

mistreated by soldiers of another state, must prosecute these perpetrators. Is the state unwilling or unable to do so, then the state fails in its duty to protect its subjects, and thus based on the security principle an international body can intervene.121 With regards to non-international armed conflicts,

similar to the commission of genocide and crimes against humanity, crimes are committed by the state against its own subjects or the state allows the occurrence of atrocities being committed between members of that same state. Just as in an international armed conflict the state must protect its subjects. Consequently, for the same reasons genocide and crimes against humanity are deserving of international prosecution, war crimes committed in the context of a non-international armed conflict are as well deserving of international criminal prosecution on the basis of the security principle. An internal armed conflict also destructs the political domain and harms the international community. In conclusion, the commission of war crimes entails an international community interest as this type of crime concerns the security principle and the international harm principle.

Thus, it is inherent to the nature and character of the core crimes that when they are committed the state has failed to protect the population from the commission of these crimes, and thus the security principle and international harm principle are violated (cf. chapter 2.2.3). And due to violation of these principles international jurisdiction is justified. Nevertheless, despite failing to prevent the commission of the core crimes and consequently international jurisdiction is justified, if the state

114 May 2005, p. 8.

115 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, para. 90.

116 May 2005, pp. 80-81. 117 May 2005, p. 83.

118 Van der Wilt 2014 (I), p. 35. 119 Art. 8 of the Rome Statute. 120 May 2005, p. 8.

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subsequently manages to genuinely investigate and prosecute the perpetrators of these crimes, the ICC cannot exercise its jurisdiction due to the principle of complementarity and rules thereon.122

2.3.2. Other issues

Besides the character of the crimes some other issues resulted in a limited jurisdiction of the ICC. First of all, a limited jurisdiction would avoid overburdening the ICC. There are numerous transnational crimes, thus leaving them outside of the jurisdiction of the ICC prevents an overload of cases.123 Related to this, limiting the caseload of the ICC, also limits the financial burden of the ICC on

the international community.124

It was also argued that for transnational crimes already treaties were established which provide for effective systems of international cooperation were in place. Thus, national courts already were able to adequately prosecute these crimes.125 Abolishing state-generated impunity of

core crimes substantiated the argument to limit the jurisdiction to the core crimes.126 Obviously, not

all states agreed with this notion.127

Another reason the jurisdiction was limited, was that the United States and some other states feared that the inclusion of transnational crimes in the jurisdiction of the ICC would result in a loss of sovereign control over its national jurisdiction to effectively enforce criminal law.128

Furthermore, not being able to reach agreement on the definition of transnational crimes was according to Resolution E also a reason the negotiating states failed to reach agreement on the inclusion of transnational crimes within the jurisdiction of the ICC.129

122 Art. 17 of the Rome Statute.

123 1995 Ad Hoc Committee Report, para. 54; 1996 PrepCom Report Vol. I, para. 103; Boister 2012, p. 298. 124 1995 Ad Hoc Committee Report, para. 54; 1996 PrepCom Report Vol. I, para. 103.

125 See e.g. 1995 Ad Hoc Committee Report, para. 54; 1996 PrepCom Report Vol. I, paras. 107 & 112. 126 Boister 2009, p. 365.

127 See e.g. the reason for the proposal for the establishment of the ICC by Trinidad and Tobago (cf. chapter

2.2.1); UN Doc. A/CONF.183/13 (Vol. II) (2002), para. 22.

128 United States Comments to Ad Hoc Committee Report, UN Doc. A/AC.244/1/Add.2 (1995), quoted in Boister

2012, pp. 298-299.

129 Resolution E to Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the

Establishment of an International Criminal Court, UN Doc. A/CONF.183/13 (Vol. I) (2002), pp. 71-72; see also e.g. Robinson 2002, p. 515.

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3. Transnational crime

In the previous chapter we have seen how the ICC came into existence and why was chosen to limit the jurisdiction of the ICC to the core crimes. In this chapter first the concept of transnational crimes will be elaborated on, what actually is a transnational crime? Hereafter the differences between transnational crimes and core crimes in relation to the arguments used to justify the limited jurisdiction of the ICC will be discussed. This is relevant to judge whether it is justified that core crimes are included in the jurisdiction of the ICC and transnational crimes are not.

3.1. Transnational crimes

In the Introduction of this thesis a list of the transnational crimes recognised as such by the UN is provided. In this part we will look into the reasons these crimes are recognised as transnational crimes, and the nature and character of these crimes. To start, the UN in the document listing the transnational crimes, first notes that “Transnational crime by its very nature is problematic as it transcends national jurisdictions, as well as the parameters of information systems and law enforcement agencies”.130 It further defines transnational crimes as “offences whose inception,

prevention and/or direct or indirect effects involved more than one country”.131 I will elaborate more

thoroughly on the definition, character and nature of transnational crimes.

3.1.1. Treaty crimes

Transnational crimes are often referred to as treaty crimes. Especially in relation to the establishment of the ICC and the core crimes. I will shortly explain this and the difference between the terms and its irrelevance. As already seen above in the short definition of the UN transnational

crimes transcend national jurisdictions, as well as the parameters of information systems and law enforcement agencies. In the last decades of the twentieth century there was an increased concern

of the international community about transnational crimes, as a result of the exponential spread of these types of crimes with the development of globalisation.132 Due to these circumstances states

saw the relevance to create multilateral suppression conventions to combat these transnational crimes together.133 Therefore, as many transnational crimes are the subject of multilateral treaties,

they are often called treaty crimes.134 To clarify, some treaty crimes such as slavery, torture, and

apartheid are not incorporated in the UN list of transnational crimes. However, I would say this is because these crimes are not separate transnational crimes, but are in its essence part of the system of core crimes.135

130 UN Doc. A/CONF. 169/15/Add.1 (1995), p. 4. 131 UN Doc. A/CONF. 169/15/Add.1 (1995), p. 4.

132 UN Doc. A/CONF. 169/15/Add.1 (1995), pp. 3-4; Reichel 2005, p. 12; Peace Palace Library, ‘Transnational

Crime’, <http://www.peacepalacelibrary.nl/research-guides/international-criminal-law/transnational-crime/> (last visited 29 May 2014).

133 Boister 2009, p. 342; Cryer et al. 2010, p. 334. 134 Cryer et al. 2010, pp. 334-335.

135 Cryer et al. (2010, p. 335) also recognises that some treaty crimes are covered by international custom or

are international crimes when the required criteria are met. Furthermore see e.g. Art. 7 (1) (c) of the Rome Statute recognising enslavement as a Crime against humanity, Art. 7 (1) (f) of the Rome Statute recognising

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3.1.2. Transnational

What is meant with transnational crime? Philip C. Jessup circumscribed ‘transnational law’ as “all law which regulates actions or events that transcend national frontiers”.136 Transnational crime is thus a

variation on transnational law. Crimes that transcend national frontiers. In accordance with this notion, Gerhard Mueller states that the term ‘transnational crime’ is coined by the UN Crime Prevention and Criminal Justice Branch “in order to identify certain criminal phenomena transcending international borders, transgressing the laws of several states or having an impact on another country”.137 Several other known authors in this field of law, such as Robert Cryer and Neil

Boister, as well refer to the concept of transnational crimes in this manner.138 It is clear from this

definition of transnational crime that it concerns crimes which are not restricted to the national domain.

The United Nations Convention against Transnational Organized Crime must not be left unmentioned. Although this treaty only concerns transnational organised crimes, it also clarifies when the offences in the treaty are transnational in nature, namely when:

“(a) It is committed in more than one State;

(b) It is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State;

(c) It is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; or

(d) It is committed in one State but has substantial effects in another State.”139

3.1.3. National crimes

With the creation of international or multilateral suppression conventions states were under the obligation to criminalise the relevant transnational crimes in domestic law, if they were not already criminalised.140 The purpose of this was to effectively combat the commission of these crimes

through an effective system of domestic criminal law and with the possibility of effective international cooperation, such as extradition and legal assistance.141 Consequently, as the legal basis

of the criminalisation of the crimes lies in domestic law, transnational crimes are prosecuted in national jurisdictions, it is the indirect application of international treaty obligations in national criminal law.142 Thus, it is a system of extradition or prosecution. Boister in relation to his proposed

system of Transnational Criminal Law explains that it is in the nature of that system, and thus in the nature of transnational crimes, that transnational crimes for the purpose of retaining a national interest will be subject to domestic adjudication of domestic law.143

torture as a Crime against humanity, and Art. 7 (1) (j) of the Rome Statute recognising apartheid as a Crimes against humanity.

136 Jessup 1956, p. 2.

137 Mueller 2001, p. 13. According to Bassiouni Mueller is the author of the term ‘transnational crime’, see

Bassiouni & Vetere 1998, p. 31.

138 Cryer et al. 2010, p. 334; Boister 2003, p. 954.

139 Art. 3 (2) of the 2000 United Nations Convention against Transnational Organized Crime, 2225 United

Nations Treaty Series, p. 209.

140 Boister 2009, p. 342.

141 Boister 2003, p. 967; Cryer et al. 2010, p. 335. 142 Cryer et al. 2010, p. 335; Boister 2012, p. 300. 143 Boister 2012, pp. 317-318.

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3.2. Transnational crimes vs. core crimes

So far we have looked into the reasons the jurisdiction of the ICC is limited to the core crimes and into the concept of transnational crimes. In this part we will elaborate on the arguments used to justify exclusion of certain transnational crimes and the actual differences between transnational crimes and core crimes. In this regard, it must be noted that in the next chapter it will be shown that some transnational crimes under circumstances fall under the jurisdiction of the ICC, and thus, in that respect do not differ from the core crimes, as they are a core crime in itself in that situation.

3.2.1. Custom?

One of the main arguments for not including the transnational crimes that were part of the negotiations on the jurisdiction of the ICC, was that these crimes were not of customary nature (cf. chapter 2.3.1). Due to the customary nature of the core crimes, the crimes can be prosecuted without being established in domestic law.144 However, this argument cannot succeed for the

exclusion of all transnational crimes. To give a few examples, without going into too much detail. First of all, and most notable, piracy, also known as piracy jure gentium, is a crime that has long been established in customary international law.145 Trafficking in persons may also be seen as slavery (cf.

chapter 4.1), although this is not uncontested, which also is established as custom.146 Furthermore,

according to some authors serious acts of terrorism have recently developed or are currently strongly developing into customary international law.147 Despite being a controversial decision, the customary

nature of terrorism is as well acknowledged by the Special Tribunal for Lebanon.148

Thus, only this argument about the customary nature of the crimes does not justify the inclusion of solely the core crimes in the jurisdiction of the ICC. Furthermore, customary international law is always evolving, and thus transnational crimes that were not custom at the time of establishment of the ICC, may nowadays be established in customary law or may be in the future.149

3.2.2. International vs. national

The ICC is an international court applying international law. The argument that only the core crimes are crimes under international law is not entirely well-founded.150 As argued in the Introduction

transnational crimes belong together with the core crimes to the system of international criminal law. Furthermore, conventions criminalising transnational crimes fall within the broad framework of international criminal law.151 Sjöcrona and Orie circumscribe this as international crimes stricto sensu

144 Boister 2009, pp. 347-348.

145 Bantekas & Nash 2003, p. 95; Turkey v France (Lotus case), [1927] PCIJ Reports, Ser. A, No. 10, p. 10. 146 Slavery is recognised under the Rome Statute within the system of core crimes, which constitute customary

international law; Art. 7 (1) (c) of the Rome Statute recognising enslavement as a Crime against humanity, additionally possibly falling under Art. 7 (1) (g) of the Rome Statute, regarding sexual slavery and enforced prostitution; see also Bantekas & Nash 2003, p. 110 about the customary nature of slavery.

147 Much 2006, p. 125; Di Fillipo 2008, pp. 561-562.

148 The Prosecutor v. Ayyash et al., Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy,

Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I/AC/R176bis, 16 February 2011, paras. 83 and 85.

149 Treves 2006, para. 1-3; Schabas 2004, p. 28. 150 Cf. chapter 2.3.1.

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