INTERNATIONAL COURTS

AND TRIBUNALS SERIES

General Editors: PHILIPPE SANDS, RUTH MACKENZIE,
and CESARE ROMANO

International Judicial
Integration and Fragmentation
 INTERNATIONAL COURTS AND TRIBUNALS SERIES
A distinctive feature of modern international society is the increase in
the number of international judicial bodies and dispute settlement and
implementation control bodies; in their case-loads; and in the range and
importance of the issues they are called upon to address. These factors reflect
a new stage in the delivery of international justice. The International Courts
and Tribunals series has been established to encourage the publication of
independent and scholarly works which address, in critical and analytical
fashion, the legal and policy aspects of the functioning of international
courts and tribunals, including their institutional, substantive, and
procedural aspects.
International Judicial
Integration and
Fragmentation
PHILIPPA WEBB

3
 3
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For Eric and Charles Henri
This page intentionally left blank
 Series Editors’ Preface

The International Courts and Tribunals series welcomes this debut opus of
Philippa Webb. Originally written as a doctoral dissertation for Yale Law School,
Webb’s work caps more than a decade of academic debate over whether the
increased number and diversity in international adjudicative bodies, operat-
ing without formal rules governing the relationships between them and in the
absence of an ultimate court of appeal to tie them all together, poses a threat to
the postulated unity of international law.
The late Jonathan Charney tackled the question at the end of the 1990s, at
the beginning of the multiplication of international courts and tribunals.1 His
answer was a resounding no, but what Charney lacked was enough empirical evi-
dence to substantiate what was essentially a correct intuition. Since Charney, the
role played by international courts in causing or countering the fragmentation
of international law has become a classical theme of international adjudication
scholarship.
Webb’s work focuses on four international courts (ICJ, ICC, ICTY, and
ICTR) to discuss how they have tackled, each from the perspective of its own
cases and jurisdiction, three related issues: genocide, immunities, and use of
force. Unsurprisingly, she finds a good degree of convergence between these four
bodies on these topics, but her real contribution to the field is the identification
of the factors that influence the degree of integration or fragmentation among
adjudicative bodies.
Cesare PR Romano
January 2013, Santa Monica, California

¹ Jonathan I Charney, ‘Is International Law Threatened by Multiple International Tribunals?’

(1998) 271 Recueil des Cours 101, 117.
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 Acknowledgements

This book is a revised and updated version of a JSD dissertation I submitted

to Yale Law School in April 2011. I was awarded my JSD degree in September
2011, six weeks after the arrival of my son, Charles.
My dissertation was grounded on the wonderful year I spent as an LLM
student at Yale Law School in 2003–2004. The classes I took with Professors
Brilmayer, Reisman, and Damaška inspired my topic, as did the International
Courts Seminar with Judge Wald and Dr Askin. The opportunities afforded to
me by Yale, including a clerkship at the International Court of Justice in 2004–
2005 and a high-level course in International Criminal Law at the European
University Institute, have deepened my knowledge of the areas of law examined
here. And the warm friendships that I formed during my LLM year sustained
my motivation to complete the dissertation, as I lived and worked in The Hague
and Paris.
I am deeply indebted to Professor Brilmayer for her supervision. Her com-
ments were always insightful and she challenged me to improve and rethink my
structure and arguments at critical moments in the drafting process. I am very
grateful to Professor Reisman and Professor Damaška for their wise advice along
the way, their friendly encouragement, and the time that they have taken to read
my work. I also benefited from the warm friendship and sound advice of Maria
Dino, Director of Graduate Programmes.
From 2004 until the present, I have had the honour of working for Judge
Rosalyn Higgins in various capacities. Her impact on this book may be appar-
ent from the footnotes; her influence on my thinking and my career goes much
deeper.
Friends and colleagues in New Haven, The Hague, London, Paris, Dublin,
New York, Sydney, and elsewhere have helped in important ways. Early advice
from Oonagh Breen and Ben Berger has served me well. Amal Alamuddin, Ben
Batros, and Rachel Davis have helped me grapple with ideas in a series of invalu-
able conversations and have commented on multiple drafts. I am also thank-
ful for the comments on specific drafts that I received from Kirsten Roberts,
Gleider Hernandez, Antonios Tzanakopoulos, Hirad Abtahi, and Dapo Akande,
and for the meticulous editorial assistance of Anja Wiersing. I am grateful for the
strong support and interest of Judge Kenneth Keith, Judge Erkki Kourula, Emma
Lindsay, Shaun Gatter, Florence Zaoui, Analu Verbin, Horacio Etchichury,
Ingrid Barnsley, and Ben Juratowitch. Throughout the writing process I have had
in mind Mino Hokari, a dear friend who completed his own thesis and a book
based upon it before his untimely death at 32 years old.
x Acknowledgements
Warm thanks are due to John Louth and Merel Alstein of Oxford University
Press, the external reviewers, and the General Editors of the International Courts
and Tribunals Series. In finalizing the manuscript, I have benefited from the sup-
port of my new colleagues at King’s College London.
Finally, I would like to thank my family. My parents and my sister Nicole have,
as always, offered constant support. My husband Eric has encouraged me every
step of the way, from New Haven to The Hague to Paris, from the first forays
into research to the final footnote references. His contribution may be intangible,
but it is immense.
Some parts of this book develop material I published elsewhere. A section of the
chapter on genocide builds on ideas in Philippa Webb, ‘Binocular Vision: State
Responsibility and Individual Criminal Responsibility for Genocide’ in Carsten
Stahn and Larissa van den Herik (eds), The Diversification and Fragmentation
of International Criminal Law 117 (Martinus Nijhoff 2012). The chapter on
immunities contains information and ideas first presented in Philippa Webb,
‘Human Rights and the Immunities of State Officials’ in Erika de Wet and Jure
Vidmar (eds), Hierarchy in International Law: The Place of Human Rights 114
(OUP 2012). My thinking on immunities has been greatly assisted by my work
with Lady Hazel Fox QC on the third edition of The Law of State Immunity
(forthcoming OUP 2013).
The views expressed in this book are my own and do not necessarily repre-
sent those of the International Court of Justice or the International Criminal
Court. The relevant case law is up to date as of October 2012 unless otherwise
indicated.
Dr Philippa Webb
London
31 October 2012
 Table of Contents

Table of Cases xv
Table of Treaties, Legislation, and Other Legal Instruments xxiii
List of Acronyms xxvii

1. Introduction 1
I. Judicial Development of International Law and the Growth of
International Courts 1
II. Integration and Fragmentation in the International Legal System 4
III. Methodology 10
IV. Structure 13

2. Genocide 14
I. Introduction 14
II. The Context in which the Law on Genocide is being Adjudicated 16
A. Two regimes for responsibility 16
B. Multiple systems for enforcement 21
III. The Required Intent 24
IV. Other Aspects of Article II of the Convention 35
A. Nature of the protected group 36
B. Nature of the destruction 40
C. In whole or in part 46
V. Interplay between State Responsibility for Genocide and
Individual Criminal Responsibility 50
A. Prerequisites for holding states and individuals responsible 50
B. State and individual complicity in genocide 52
C. Remedies and the obligations to prevent and punish 56
VI. Conclusion 59

3. Immunities 62
I. Introduction 62
II. The Context in which Immunity Issues are being Adjudicated 65
A. Expanding national jurisdiction 65
B. Efforts to remove immunity 68
III. Immunity ratione personae 72
A. Who does it apply to? 73
B. Which acts are covered? 75
C. Any exception for international crimes? 76
xii Table of Contents
IV. Immunity ratione materiae 81
A. Who does it apply to? 82
B. Which acts are covered? 83
C. Any exception for international crimes? 87
V. State Immunity 91
A. Acta jure imperii and acta jure gestionis 92
B. Any exception for violations of international law? 94
VI. Conclusion 100

4. Use of Force 103

I. Introduction 103
II. Threat or Use of Force 106
A. Definition of threat of force 106
B. Definition of use of force 109
C. Use of force and title to territory 111
III. ‘Armed Attack’ for the Purpose of Self-Defence 113
A. Identity of the attacker 115
B. Degree of gravity 117
C. Anticipatory self-defence 120
IV. The Crime of Aggression 122
A. A brief history of the crime of aggression in
international courts 122
B. Bringing the crime of aggression within the
jurisdiction of the ICC 125
C. The relationship with the Security Council 127
D. Scenarios of fragmentation and integration 130
1. ICC-Security Council 130
2. ICC-ICJ 131
V. Consequences of a Finding of a Use of Force 134
A. Classification of the armed conflict 134
B. Internationalization of conflicts and attribution
of responsibility 137
VI. Conclusion 140

5. Explaining Judicial Integration and Fragmentation 145

I. Introduction 145
II. How the Identity of the Court affects Integration and
Fragmentation 147
A. Permanent vs ad hoc 147
B. Function 153
C. Institutional context 159
 Table of Contents xiii

III. How the Substance of the Law affects Integration and

Fragmentation 171
A. Treaty or custom 171
B. Level of development 177
C. Level of controversy and change 179
IV. How the Procedure of the Court affects Integration and
Fragmentation 184
A. Fact-finding and evidence 184
B. Drafting and reasoning process 190
C. Precedent and dialogue 194
V. Conclusion 201

6. Conclusion 203
I. Introduction 203
II. Theoretical Implications for the Development of
International Law by International Courts 204
III. Models for Enhancing Judicial Integration 209
A. Maximal models: imposing a hierarchy on the
international legal system 210
B. Intermediate models: borrowing from other regimes 214
C. Minimal models: dialogue, ICJ leadership, and
informal judicial networks 219
D. A modified minimal model: structured dialogue, ICJ
prominence, and involvement of other actors in
establishing systematic legal norms 221
IV. Conclusion 227

Bibliography 229
Index 249
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 Table of Cases
Extraordinary Chambers in the Courts of Cambodia
Decision on the Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise
(Decision) 002/19-09-2007-ECCC-OCIJ, P-T Ch (20 May 2010) . . . . . . . . . . . . . . . . . . . 176

European Court of Human Rights

Al-Adsani v United Kingdom App no 35763/97 (ECHR, 21 November 2001). . . . . . . . 87, 95, 158
Georgia v Russia App no 13255/07 (Application lodged with the ECHR on 26 March 2007). . . . 201
Jones v UK and Mitchell & Ors v UK App nos 34356/06 & 40528/06 (ECHR,
24 February 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
Jorgić v Germany App no 74613/01 (ECHR, 12 July 2007). . . . . . . . . . . . . . . . . . . . . . . 44, 45, 59
Kalogeropoulou v Greece & Germany App no 59021/00 (ECHR, 12 December 2002) . . . . . . . . . 95

International Centre for Settlement of Investment Disputes

Bayindir Insaat Turizm Ticaret Ve Sanayi AS v Pakistan (ICSID Case No ARB/03/29,
Decision on Jurisdiction of 14 November 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

International Court of Justice and Permanent Court of International Justice

Accordance with International Law of the Unilateral Declaration of Independence in Respect
of Kosovo (Request for Advisory Opinion: Order) [2008] ICJ Rep 409 . . . . . . . . . . . . . 154, 211
Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
Aegean Sea Continental Shelf (Greece v Turkey) (Request for the Indication of Interim
Measures of Protection: Order) [1976] ICJ Rep 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Ahmadou Sadio Diallo (Guinea v Democratic Republic of the Congo)
(Preliminary Objections: Judgment) [2007] ICJ Rep 582 . . . . . . . . . . . . . . . . . . . . . . . . 78, 187
Ahmadou Sadio Diallo (Guinea v Democratic Republic of the Congo)
(Merits: Judgment) [2010] ICJ Rep 639 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Ahmadou Sadio Diallo (Guinea v Democratic Republic of the Congo)
(Compensation phase) [2012] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Application of the Convention on Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro)) (Request for the
Indication of Provisional Measures: Order) [1993] ICJ Rep 325 . . . . . . . . . . . . . . . . . . . . . . . 43
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v Yugoslavia) (Preliminary Objections: Judgment) [1996] ICJ Rep 595 . . . . . 21
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43 . . . . . . 7, 16, 17, 18,
19, 20, 21, 22, 23, 25, 30, 31, 36, 37, 38, 39, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51,
52, 54, 55, 57, 58, 59, 60, 129, 138, 139, 140, 149, 151, 155, 156, 157, 162, 172,
177, 178, 180, 182, 185, 186, 189, 193, 194, 196, 197, 198, 199, 218, 225croat
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Croatia v Serbia) (Preliminary Objections: Judgment)
[2008] ICJ Rep 412 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 115, 195, 196, 218, 219
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v Russian Federation) (Application) [2008] ICJ . . . . . . . . . . . . . . . . . 201
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v Russian Federation) (Request for the Indication of Provisional
Measures: Order) [2008] ICJ Rep 353 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
xvi Table of Cases
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v Russian Federation) (Preliminary Objections: Judgment)
[2011] ICJ Rep 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 197, 201
Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) (Judgment) [1991] ICJ Rep 53 . . . . . 211
Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v Nicaragua)
(Judgment) [1960] ICJ Rep 192 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v Rwanda) (Preliminary Objections:
Judgment) [2006] ICJ Rep 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 23, 58, 97, 98, 162, 163
Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v Uganda) (Merits: Judgment) [2005] ICJ Rep 168 . . . . . . . . . . . . 8, 21, 109, 110, 112,
114, 116, 117, 119, 120, 121, 123, 124, 125, 129, 130, 133, 135, 136,
137, 138, 140, 143, 150, 184, 187, 188, 189, 194, 199
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium)
(Judgment) [2002] ICJ Rep 3 . . . . . . . . . . . . . . . . . . 63, 64, 65, 66, 69, 70, 71, 72, 73, 74, 75,
76, 77, 78, 79, 80, 81, 82, 87, 88, 89, 90, 91, 92, 97, 98, 99,
101, 146, 149, 151, 166, 168, 169, 173, 180, 198, 209
Asylum case (Colombia v Peru) (Judgment) [1950] ICJ Rep 266 . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Certain Criminal Proceedings in France (Republic of the Congo v France) (Order)
[2010] ICJ Rep 143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 162, 163
Certain Expenses of the United Nations (Article 17, Paragraph 2, of the
Charter) (Advisory Opinion) [1962] ICJ Rep 151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) (Merits:
Judgment) [2008] ICJ Rep 177 . . . . . . . . . . . . . . . . . . . . . . . . . 64, 74, 75, 76, 82, 84, 85, 162,
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Merits: Judgment) [1982] ICJ Rep 18 . . . . 185
Continental Shelf (Libyan Arab Jamahiriya/Malta) (Merits: Judgment) [1985] ICJ Rep 13 . . . . . 185
Corfu Channel case (United Kingdom v Albania) (Merits: Judgment)
[1949] ICJ Rep 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107, 108, 109, 185, 188, 189,
The Delimitation of the Maritime Boundary of the Gulf of Maine (Canada/United
States of America) (Judgment) [1984] ICJ Rep 246 . . . . . . . . . . . . . . . . . . . . . . . . 185, 205, 212
Elettronica Sicula S.p.A. (ELSI) (United States of America v Italy) (Judgment) [1989]
ICJ Rep 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Factory at Chorzów (Germany v Poland) (Merits) PCIJ Rep Series A No 17 . . . . . . . . . . . . . 57, 185
Fisheries Jurisdiction (United Kingdom v Iceland) (Merits: Judgment) [1974] ICJ Rep 3 . . . . . . . 204
Fisheries Jurisdiction (Spain v Canada) (Jurisdiction: Judgment) [1998] ICJ Rep 432. . . . . . . . . 108
Frontier Dispute (Burkina Faso/Mali) (Judgment) [1986] ICJ Rep 554 . . . . . . . . . . . . . . . 162, 212
Frontier Dispute (Benin/Niger) (Judgment) [2005] ICJ Rep 90 . . . . . . . . . . . . . . . . . . . . . 162, 212
Gabcicovo-Nagymaros (Hungary/Slovakia) (Merits: Judgment) [1997] ICJ Rep 7 . . . . 57, 185, 205,
Interpretation of Paragraph 4 of the Annex following Article 179 of the Treaty of
Neuilly (Bulgaria v Greece) (Judgment) PCIJ Series A No 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 212
Interpretation of Judgment No 3 (Bulgaria v Greece) (Judgment) PCIJ Series A No 4. . . . . . . . . . 212
Judgment No 2867 of the Administrative Tribunal of the International Labour Organization
upon a Complaint Filed against the International Fund for Agricultural Development
(Request for Advisory Opinion) [2010] ICJ Rep 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
Jurisdictional Immunities of the State (Germany v Italy, Greece Intervening)
(Merits: Judgment) [2012] ICJ Rep. . . . . . . . . . . 64, 65, 66, 71, 91, 92, 93, 94, 95, 97, 98, 99,
100, 145, 146, 149, 158, 173, 177, 178, 198, 209
LaGrand (Germany v United States of America) (Judgment) [2001] ICJ Rep 466 . . . . . . . . . . . . 154
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:
Nicaragua intervening) (Judgment) [1992] ICJ Rep 351 . . . . . . . . . . . . . . . . . . . . . . . . 185, 212
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria)
(Preliminary Objections: Judgment) [1998] ICJ Rep 275 . . . . . . . . . . . . . . . . . . . . . . . 115, 195
 Table of Cases xvii
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria:
Equatorial Guinea intervening) (Judgment) [2002] ICJ Rep 303 . . . . . . . . . . . . . . . . . . 113, 119
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory
Opinion) [2004] ICJ Rep 136. . . . . . . . . . . . . . . . 114, 116, 117, 120, 129, 136, 154, 193, 211
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996]
ICJ Rep 226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 106, 107, 108, 204
Legality of the Use of Force (Serbia and Montenegro v Belgium) (Preliminary
Objections: Judgment) [2004] ICJ Rep 279 . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 143, 196, 223
Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment) [2009]
ICJ Rep 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163, 225
Maritime Delimitation and Territorial Questions between Qatar and Bahrain
(Qatar v Bahrain) (Merits: Judgment) [2001] ICJ Rep 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States
of America) (Jurisdiction and Admissibility: Judgment) [1984] ICJ Rep 392 . . . . . . . . . 174, 186
Military and Paramilitary Activities (Nicaragua v United States of America)
(Merits: Judgment) [1986] ICJ Rep 14 . . . . . . . . . . 9, 107, 108, 109, 111, 114, 115, 116, 117,
118, 119, 121, 124, 137, 138, 139, 140, 141, 143, 151, 155, 177, 181, 185, 225
Northern Cameroons (Cameroon v United Kingdom) (Preliminary
Objections: Judgment) [1963] ICJ Rep 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219, 223
Nottebohm (Liechtenstein v Guatemala) (Second Phase: Judgment) [1955] ICJ Rep 4 . . . . . . . . . 40
Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 253 . . . . . . . . . . . . . . . . . . . . . . . 219
Oil Platforms (Islamic Republic of Iran v United States of America) (Judgment) [2003]
ICJ Rep 161 . . . . . 108, 114, 117, 118, 119, 149, 150, 162, 163, 179, 186, 189, 190, 193, 215
Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14 . . . . . . . 185
Questions of Interpretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United
Kingdom) (Request for the Indication of Provisional Measures: Order)
[1992] ICJ Rep 114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 143
Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal)
(Merits: Judgment) [2012] ICJ Rep. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 67, 68
Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other
Mexican Nationals (Mexico v United States of America) (Judgment) [2009] ICJ Rep 3 . . . . . . 162
Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide (Advisory Opinion) [1951] ICJ Rep 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 21, 180
South West Africa (Ethiopia v South Africa; Liberia v South Africa)
(Second Phase: Judgment) [1966] ICJ Rep 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Temple of Preah Vihear (Cambodia v Thailand) (Merits: Judgment) General List
No 45 [1962] ICJ 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Territorial Dispute (Libyan Arab Jamahiriya/Chad) (Judgment) [1994] ICJ Rep 6 . . . . . . . . . . . 129
Territorial and Maritime Dispute (Nicaragua v Colombia) (Preliminary Objections:
Judgment) [2007] ICJ Rep 832 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Territorial and Maritime Dispute (Nicaragua v Colombia) (Merits: Judgment) [2012] ICJ Rep . . . . 108
United States Diplomatic and Consular Staff in Tehran (United States of
America v Iran) (Judgment) [1980] ICJ 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

International Criminal Court

Prosecutor v Omar Al Bashir (Decision on the Prosecution’s Application for a
Warrant of Arrest against Omar Hassan Ahmad Al Bashir) ICC-02/05-01/09,
P-T Ch I (4 March 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 169
Prosecutor v Omar Hassan Ahmad Al Bashir (Judgment on the Appeal of the Prosecutor
against the Decision on the Prosecution’s Application for a Warrant of Arrest against
Omar Hassan Ahmad Al Bashir) ICC-02/05-01/09, A Ch (3 February 2010). . . . . . . . . . . . . 22
xviii Table of Cases
Prosecutor v Omar Hassan Ahmad Al Bashir (Second Warrant of Arrest)
ICC-02/05-01/09, P-T Ch I (12 July 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 24, 180
Prosecutor v Omar Hassan Ahmad Al Bashir (Decision Pursuant to Article 87(7)
of the Rome Statute) ICC-02/05-01/09, P-T Ch I (12 December 2011) . . . . . . . . . . . . . . . . 80
Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Decision on the
Confirmation of Charges) ICC-01/04/01/07, P-T Ch I (30 September 2008) . . . . . . . 136, 137
Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Judgment on the appeal of Mr
Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the
Admissibility of the Case) ICC-01/04-01/07, A Ch (25 September 2009) . . . 67, 137, 150, 164
Prosecutor v Jean-Pierre Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) on the
Charges against Jean-Pierre Bemba Gombo) ICC 01/05-01/08, P-T Ch I (15 June 2009) . . . . 29
Prosecutor v Thomas Lubanga Dyilo (Decision on the Confirmation of Charges)
ICC-01/04-01/06, P-T Ch I (29 January 2007) . . . . . . . . . . . . . . . . . . 135, 136, 139, 143, 150
Prosecutor v Thomas Lubanga Dyilo (Judgment Pursuant to Article 74 of the Statute),
ICC-01/04-01/06, T-Ch (14 March 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 139, 150
Situation in the Democratic Republic of Congo (Decision on the Applications for
Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4,
VPRS 5 and VPRS 6) ICC-01/04-101, P-T Ch I (17 January 2006) . . . . . . . . . . . . . . . . . . 169
Situation in Uganda (Update on Proposed Treatment of All Relevant Documents of the
Record and Application for Entry of Reasons for Sealing into Public Record)
ICC-02/04-01/05, P-T Ch II (14 November 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

International Criminal Tribunal for Rwanda

Kajelijeli v Prosecutor (Judgment) ICTR-98-44A-A, A Ch (23 May 2005) . . . . . . . . . . . . . . . . . 176
Prosecutor v Akayesu (Judgment) ICTR-96-4-T, T Ch I
(2 September 1998). . . . . . . . . . . . . . . . . . . . . . . . 27, 33, 36, 38, 40, 41, 42, 47, 49, 52, 53, 54
Prosecutor v Bagilishema (Judgment) ICTR-95-1A-T, T Ch I (7 June 2001) . . . . . . . 38, 41, 47, 54
Prosecutor v Barayagwiza (Decision on Prosecutor’s Request for Review or
Reconsideration) ICTR-97-19-AR72, A Ch (31 March 2000) . . . . . . . . . . . . . . . . . . . 167, 176
Prosecutor v Kajelijeli (Judgment) ICTR-98-44A-T, T Ch II (1 December 2003) . . . 38, 41, 44, 54
Prosecutor v Kambanda (Judgment and Sentence) ICTR-97-23, T Ch (4 September 1998). . . 33, 77
Prosecutor v Kamuhanda (Judgment) ICTR-99-54A-T, T Ch II (22 January 2004) . . . . . . . . 41, 47
Prosecutor v Kayishema/Ruzindana (Judgment) ICTR-95-1-T, T Ch II
(21 May 1999) . . . . . . . . . . . . . . . . . . . . . . . . . 27, 33, 38, 40, 41, 42, 47, 48, 49, 61, 176, 188
Prosecutor v Kayishema/Ruzindana (Judgment) ICTR-95-1-A, A Ch (1 June 2001) . . . . . 27, 31, 41
Prosecutor v Musema (Judgment) ICTR-96-13-A, T Ch I (27 January 2000) . . . . . . . 33, 38, 41, 54
Prosecutor v Nahimana and others (Judgment) ICTR-99-52-T, T Ch I (3 December 2003) . . . . . 36
Prosecutor v Ndindabahizi (Judgment) ICTR-01-71-I, T Ch I (15 July 2004) . . . . . . . . . . . . . . . 49
Prosecutor v Niyitegeka (Judgment) ICTR-96-14-T, T Ch I (16 May 2003). . . . . . . . . . . . . . . . . 36
Prosecutor v Ntagerura and others (Judgment) ICTR-99-46-A, A Ch (7 July 2006) . . . . . . . . . . 188
Prosecutor v Ntakirutimana (Judgment) ICTR-96-10-T and ICTR-96-17-T, T Ch I
(21 February 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Prosecutor v Ntakirutimana (Judgment) ICTR-96-10-A and ICTR-96-17-A,
A Ch (13 December 2004), . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 53, 163
Prosecutor v Ntuyahaga (Decision on the Prosecutor’s Motion to Withdraw the Indictment)
ICTR-90-40-T, T Ch I (18 March 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Prosecutor v Rutaganda (Judgment) ICTR-96-3-T, T Ch I (6 December
1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28, 36, 38, 41
Prosecutor v Rutaganda (Judgment) ICTR-96-3-A, A Ch (26 May 2003) . . . . . . . . . . . . . . . . . . 28
Prosecutor v Semanza (Decision of the Appeals Chamber) ICTR-97-20-A,
A Ch (31 May 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Prosecutor v Semanza (Judgment) ICTR-97-20-T, T Ch III (15 May 2003) . . . . . . . 41, 44, 47, 52
 Table of Cases xix
Prosecutor v Semanza (Judgment) ICTR-97-20-A, A Ch (20 May 2005) . . . . . . . . . . 47, 48, 52, 53
Prosecutor v Serushago (Sentence) ICTR-98-39, T Ch I (5 February 1999) . . . . . . . . . . . . . . . . . 33

International Criminal Tribunal for the Former Yugoslavia

Prosecutor v Aleksovski (Judgment) IT-95-14/1-T, T Ch I (25 June 1999) . . . . . . . . . . . . . . . . . 197
Prosecutor v Aleksovski (Judgment) IT-95-14/1-A, A Ch (24 March 2000) . . . . . . . . . . . . . . . . . 140
Prosecutor v Blagojević (Judgment) IT-02-60-T, T Ch I
(17 January 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 41, 46, 51, 53, 156
Prosecutor v Blaskić (Judgment on the Request of Croatia for Review of the Decision of Trial
Chamber II of 18 July 1997) IT-95-14-A, A Ch (29 October 1997) . . . . . . . . 82, 84, 86, 88, 89
Prosecutor v Blaskić (Judgment) IT-95-14-T, T Ch I (3 March 2000) . . . . . . . . . . . . . . . . . . . . . 53
Prosecutor v Blaskić (Judgment) IT-95-14-A, A Ch (29 July 2004) . . . . . . . . . . . . . . . . . . . . . . . 53,
Prosecutor v Brdjanin (Decision on Motion for Acquittal Pursuant to Rule 98 bis)
IT-99-36-R77, T Ch II (19 March 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Prosecutor v Brdjanin (Judgment) IT-99-36-T, T Ch II
(1 September 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 37, 38, 42, 43, 49, 53
Prosecutor v Brdjanin (Judgment) IT-99-36-A, A Ch (3 April 2007) . . . . . . . . . . . . . . . . . . . . . . 21
Prosecutor v Delalić and others ‘Celebici’ (Judgment) IT-96-21-A, A Ch
(20 February 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138, 140, 151
Prosecutor v Furundzija (Judgment) IT-95-17/1-T, T Ch II (10 December 1998) . . . . . . . . 53, 176
Prosecutor v Gagović (Indictment) IT-96-23/2-I (20 April 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 42
Prosecutor v Halilović (Judgment) IT-01-48-A, A Ch (16 October 2007) . . . . . . . . . . . . . . . . . . 188
Prosecutor v Jelisić (Judgment) IT-95-10-T, T Ch I
(14 December 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 31, 36, 37, 38, 47, 48, 49, 54
Prosecutor v Jelisić (Judgment) IT-95-10-A, A Ch (5 July 2001) . . . . . . . . . . . . . . . . 21, 25, 26, 31
Prosecutor v Karadžić (Decision on Karadžić’s Appeal of Trial Chamber’s Decision on
Alleged Holbrooke Agreement) IT-95-518-AR73.4, A Ch (12 October 2009) . . . . . . . . . . . . 79
Prosecutor v Karadžić and Mladić (Review of the Indictment pursuant to Rule 61
of the Rules of Procedure and Evidence) IT-95-5-R61 and IT-95-18-R61,
T Ch I (11 July 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 22, 41, 42, 186
Prosecutor v Kordić and Čerkez (Judgment) IT-95-14/2-A, A Ch (17 December 2004) . . . . . . . 140
Prosecutor v Kovačević and Drljača IT-97-24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Prosecutor v Krajišnik (Judgment) IT-00-39-A, A Ch (17 March 2009) . . . . . . . . . . . . . . . . . . . . 21
Prosecutor v Krajišnik (Judgment) IT-00-39-T, T Ch I (27 September 2006) . . . . . . . . . . . . . . . . 46
Prosecutor v Krnojelac (Judgment) IT-97-25-T, T Ch II (15 March 2002) . . . . . . . . . . . . . . 34, 176
Prosecutor v Krstić (Judgment) IT-98-33-T, T Ch I
(2 August 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 26, 34, 39, 40, 41, 43, 46, 47, 48, 49, 51, 182
Prosecutor v Krstić (Judgment) IT-98-33-A, A Ch (19 April 2004) . . . . . . . 21, 26, 31, 32, 33, 42,
44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 55, 156, 199
Prosecutor v Kunarac and other (Judgment) IT-96-23 & 23/1-A, A Ch (12 June 2002) . . . . . . . . 32
Prosecutor v Kvocka and others (Decision on the Defence ‘Motion Regarding Concurrent
Proceedings before the ICTY and ICJ on the Same Questions’) IT-98-30/1, T Ch I (5
December 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Prosecutor v Kvocka and others (Decision on Interlocutory Appeal of the Accused Zoran
Zigic against the Decision of the Trial Chamber dated 5 December 2000) IT-98-30/1,
A Ch (25 May 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Prosecutor v Martić (Judgment) IT-95-11-A, A Ch (8 October 2008) . . . . . . . . . . . . . . . . . . . . 188
Prosecutor v Milošević (Decision on Preliminary Motions) IT-02-54, T Ch III
(8 November 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Prosecutor v Milošević (Decision on Motion for Judgment of Acquittal) IT-02-54-T,
T Ch III (16 June 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 54, 79
xx Table of Cases
Prosecutor v Milutinović (Decision Refusing Milutinović Leave to Appeal)
IT-99-37-AR65.3 (3 July 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Prosecutor v Nikolić (Judgment) IT-02-60/1-S, T Ch I (2 December 2003) . . . . . . . . . . . . . . . . . 21
Prosecutor v Obrenović (Judgment) IT-02-60/2-S, T Ch I (10 December 2003) . . . . . . . . . . . . . . 21
Prosecutor v Plavšić (Sentencing Judgment) IT-00-39 & 40/1-S, T Ch III
(27 February 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Prosecutor v Popović and others (Judgment) IT-05-88-T, T Ch II (10 June 2010) . . . . . . . . . . . . . 21
Prosecutor v Sikirica (Judgment) IT-95-8-T, T Ch III (13 November 2001), paras 65-72. . . . . . . 47
Prosecutor v Sikirica (Judgment on Defence Motion to Acquit) IT-95-8-T, T Ch III
(3 September 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 47, 48, 49
Prosecutor v Simić (Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning
the Testimony of a Witness (Order Releasing ex parte Confidential Decision of the Trial
Chamber—1 October 1999)) IT-95-9-PT, T Ch II (27 July 1999) . . . . . . . . . . . . . . . . . . . . 176
Prosecutor v Stakić (Rule 98bis Decision) IT-97-24-T, T Ch II
(31 October 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 42, 52, 54
Prosecutor v Stakić (Judgment) IT-97-24-T, T Ch II
(31 July 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 34, 37, 41, 43, 44, 49, 53, 61, 152
Prosecutor v Stakić (Judgment) IT-97-24-A, A Ch (22 March 2006) . . . . . . . . . . . . 21, 37, 38, 152
Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction) IT-94-1, A Ch (2 October 1995) . . . . . . . . . . . . . . . 134, 151, 169, 205
Prosecutor v Tadić (Judgment) IT-94-1-A, A Ch (15 July 1999) . . . . . . . . . 9, 32, 34, 66, 131, 136,
137, 138, 139, 140, 141, 144, 151, 155, 176, 181, 225
Prosecutor v Talić IT-99-36/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Prosecutor v Tolimir IT-05-88/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Prosecutor v Trbić IT-05-88/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Prosecutor v Vasiljević (Judgment) IT-98-32-T, T Ch II (29 November 2002) . . . . . . . . . . . . . . . 61
Prosecutor v Vasiljević (Judgment) IT-98-32-A, A Ch (25 February 2004) . . . . . . . . . . . . . . . . . . 34

International Military Tribunal at Nuremberg

Judgment of the Nuremburg International Military Tribunal 1946 (1947)
41 AJIL 172 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 123, 124

Permanent Court of Arbitration (and other arbitrations)

Abyei Arbitration (The Government of Sudan/The Sudan People’s Liberation
Movement/Army) (Award) (22 July 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
E-Systems Inc v Iran (1983) 2 Iran-USCTR Rep 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Eritrea–Ethiopia Boundary Commission Decision Regarding Delimitation of the
Border between The State of Eritrea and The Federal Democratic Republic
of Ethiopia (2002) 41 ILM 1057 . . . . . . . . . . . . . . . . . . . . . . . . . 110, 112, 113, 141, 148, 152
Eritrea–Ethiopia Claims Commission Partial Award-Jus ad Bellum:
Ethiopia’s Claims 1–8 (2005) 45 ILM 430 . . . . . . . . . . . 110, 111, 112, 113, 118, 121, 152, 190
Guyana/Suriname (Award of the Arbitral Tribunal)
(17 September 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104, 108, 109, 110, 148, 152
Iron Rhine Arbitration (Belgium/Netherlands) (Award of the Arbitral Tribunal)
(24 May 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
MOX Plant Case (Ireland v United Kingdom) (Order No 4: Further Suspension of
Proceedings on Jurisdiction and Merits) (14 November 2003) . . . . . . . . . . . . . . . . . . . . . 7, 223
MOX Plant Ireland v United Kingdom (2004) 42 ILM 1187 . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
ITLOS Southern Bluefin Tuna New Zealand v Japan; Australia v Japan (Provisional
Measures: Order), ITLOS Cases Nos 3 and 4 (1999) 38 ILM 1624 . . . . . . . . . . . . . . . . . . . 223
ITLOS Southern Bluefin Tuna Australia & New Zealand v Japan (Jurisdiction
and Admissibility: Award) (2000) 39 ILM 1359 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
 Table of Cases xxi
Special Court for Sierra Leone
Prosecutor v Charles Ghankay Taylor (Submissions of the amicus curiae on Head of State Immunity
of Philippe Sands and Alison MacDonald) SCSL-2003-01-I (23 October 2003). . . . . . . . . . . 81
Prosecutor v Charles Ghankay Taylor (Decision on Immunity from Jurisdiction)
SCSL-2003-01-I, A Ch (31 May 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77, 81

Special Tribunal for Lebanon

Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration,
Cumulative Charging (Decision) STL-11-01/I, A Ch (16 February 2011) . . . . . . . . . . . 111, 153

World Trade Organization Appellate Body

United States—Standards for Reformulated and Conventional Gasoline, WTO case
nos 2 and 4, Report of 29 April 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

National Courts
21 July Case No 1231 (2003) 1416 Saibansho Jiho 6 (Sup Ct 2006) . . . . . . . . . . . . . . . . . . . . . . 70
A contre Ministère Public de la Confédération, B, C (2012) B.2011.140 (Federal
Criminal Court of Switzerland) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89, 90, 91
Attorney-General of the Government of Israel v Eichmann (1962) 36 ILR 277 (Supreme
Court of Israel: sitting as a court of criminal appeal) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86, 89
Auto del Juzgado Central de Instruccion No 4 (Spain Audiencia Nacional 6 February 2008) . . . . . 76
Bawol Cabiri v Baffour Assasie-Gyimah 921 F Supp 1189 (SDNY 1996) . . . . . . . . . . . . . . . . 84, 89
Belhas v Ya’alon 515 F 3d 1279 (DC Cir 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Re Bo Xilai (United Kingdom Bow Street Magistrates’ Court: Judgment of
8 November 2005) unreported but reproduced in (2005) 128 ILR 713 . . . . . . . . . . . 74, 76, 77
Bouterse (Judgment on appeal) (Amsterdam Court of Appeal 20 November 2000) . . . . . . . 89, 198
Bouzari v Islamic Republic of Iran 71 OR 3d 675 (Ct App for Ontario 2004) . . . . . . . . . . . . 64, 96
Carrato v United States of America 141 DLR 3d (1982) (Ontario H Ct; XXII)
Canada YBIL 403 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Castro case No 1999/2723 (Order) (Spain Audiencia Nacional 4 March 1999) . . . . . . . . . . . . . . 76
Chuidian v Philippine National Bank 912 F 2d 1095 (9th Cir 1990) . . . . . . . . . . . . . . . . . . . . . . 83
Décision sur la recevabilité de la requête no 14717/06 présentée par Georges Grosz contre la France
(ECtHR, 16 June 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Democratic Republic of the Congo v FG Hemisphere Associates [2011] HKEC 747
(Court of Final Appeal of Hong Kong) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Empire of Iran (1963) BVerfGE 16, 45 ILR 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92, 93
Enahoro v Abubakar 408 F 3d 877 (7th Cir 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83, 89
In re estate of Ferdinand Marcos 25 F 3d 1467 (9th Cir 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Evgeny Adamov v Federal Office of Justice, Switzerland Federal Tribunal, First Public
Law Chamber, No 1A.288/2005, Judgment of 22 December 2005 . . . . . . . . . . . . . . . 74, 77, 82
Fang and Ors v Jiang and Ors 21 December 2006, HC AK CIV 2004-404-5843 . . . . . . . . . . . . 70
Ferdinand et Imelda Marcos v Office Federal de la police (recours de droit administratif )
Switzerland Federal Tribunal, Judgment of 2 November 1989 . . . . . . . . . . . . . . . . . . . . . . . . . 82
Ferrini v Federal Republic of Germany (Italian Court of Cassation) Decision
No 5044/2004 (2006) 128 ILR 658 . . . . . . . . . . . . . . . . . . . 65, 90, 96, 99, 102, 158, 178, 208
Gaddafi, French Cour de Cassation, Criminal Chamber (13 March 2001)
125 ILR 508 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 75, 76
Re General Shaul Mofaz (United Kingdom Bow Street Magistrates’ Court: Judgment of
12 February 2004) unreported but reproduced in (2004) 53 ICLQ 771 . . . . . . . . . . . 74, 76, 77
Guttieres v Elmilik (1886) Foro It 1886-I, 913 (Court of Cassation in Florence) . . . . . . . . . . . . . 69
Habyarimana v Kagame (10th Cir 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
xxii Table of Cases
The Hague City Party and ors v Netherlands and ors, Interlocutory proceedings,
KG 05/432; ILDC 849 (NL 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Hubbard v United States 514 US 695 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
Jaffe v Miller and Others (1993) 95 ILR 446 (Ct App Ontario) . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Jane Doe I et al v Liu Qi et al 349 F Supp 2d 1258 (ND Cal 2004) . . . . . . . . . . . . . . . . . . . . . . 89
Jones v Minister of Interior of Kingdom of Saudi Arabia [2006] UKHL 26,
[2006] 2 WLR 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 83, 84, 87, 90, 96, 173, 178, 208
Juzgado Central de instrucción No 4 (Audiencia Nacional) Sumario 3/2.008—D Auto . . . . . . . . . 89
La Reunion aerienne v Libyan Arab Jamahiriya No 09-14743, 9 March 2011
(French Cour de Cassation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Lozano v Italy, appeal judgment Case No 31171/2008, ILDC 1085 (Italy 2008) . . . . . . . . . . . . 89
Margellos v Federal Republic of Germany (unreported) (Greek Special Supreme
Court 17 September 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Matar v Dichter 500 F Supp 2d 284 (SDNY 2007) and 563 F 3d 9 (2nd Cir 2009) . . . . . . . . . . 87
Milde (‘Civitella’), 92 Rivista di diritto internazionale (2009) 618 (Italy: Cassazione) . . . . . . . . . . 65
Re Mugabe (First instance) unreported decision (14 January 2004) . . . . . . . . . . . . . . . . . . . . 76, 77
Nikbin v Islamic Republic of Iran 471 F Supp 2d 53 (DDC 2007) . . . . . . . . . . . . . . . . . . . . . . . . 89
Parlement Belge (1880) 5 PD 197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Prefecture of Voiotia v Federal Republic of Germany 11/2000, (2003) 129 ILR 513
(The Distomo Massacre Case) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96, 97
Prince of X Accident Case (1964) 35 ILR 13 (Austria) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Regina v Bartle and the Commissioner of Police for the Metropolis and Others
ex parte Pinochet [1999] UKHL 17 . . . . . . . . . . . . . . . . . 64, 65, 71, 75, 76, 81, 82, 84, 87, 89,
90, 91, 94, 102, 173, 198
Republic of the Philippines v Marcos and others 806 F 2d 344 (2nd Cir 1986) . . . . . . . . . . . . . . . . 82
Samantar v Yousuf 560 US (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Samantar v Yousuf (Order: Judge Brinkema of the Eastern District of Virginia)
(15 February 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Re Sharon and Yaron Final Appeal No p 02 1139 F/1 (Belgium Court of Cassation 12 February
2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Sosa v Alvarez-Machain (Brief of the Amicus Curiae the European Commission Supporting
Neither Party) No 03-339 (US Supreme Court 23 January 2004) . . . . . . . . . . . . . . . . . . . 67, 68
Special Prosecutor v Col Hailemariam and ors ILDC 555 (Ethiopia 1995) . . . . . . . . . . . . . . . . . . 76
Tachiona v Mugabe 234 F Supp 2d 401 (SDNY 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Tachiona v United States 386 F3d 205 (2nd Cir 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Tel-Oren v Libyan Arab Republic (United States Brief Submitted to Supreme Court in
Response to Court’s Invitation in Reviewing Petition for a Writ of Certiorari) (1985)
24 ILM 427 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Teresa Xuncaz et al v Hector Gramajo; Diana Ortiz v Hector Gramajo 886 F Supp 162
(D Mass 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84, 89
In Re Terrorist Attacks 538 F 3d 71 (2nd Cir 2008); Rasul v Myers 512 F 3d 644
(DC Cir 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Trendtex Trading Corp v Central Bank of Nigeria [1977] 1 QB 529 . . . . . . . . . . . . . . . . . . . . . . . 93
United States v Noriega 117 F 3d 1206 (11th Cir 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Wei Ye v Jiang Zemin 383 F 3d 620 (7th Cir 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 76
Wei Ye, Hao Wang, Does A, B,C, D, E, F, and others similarly situated v Jiang Zemin
and Falun Gong Control Office (US District Court, ND Illinois, 2003) . . . . . . . . . . . . . . . . . . 64
Yousuf v Samantar 552 F 3d 371 (4th Cir 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83, 89
 Table of Treaties, Legislation, and Other
Legal Instruments
Agreement on Cooperation and Relationship
between the United Nations and the
International Tribunal for the Law of the
Sea (8 September 1998) . . . . . . . . . . 200
Convention Against the Taking of Hostages
(adopted 17 December 1979, entered
into force 3 June 1983) 1316 UNTS 205
(Hostages Convention). . . . . . . . . . . . . 68
Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or
Punishment (adopted 10 December 1984,
entered into force 26 June 1987) 1465
UNTS 112 (Torture Convention) . . . 63,
66, 67, 68, 71, 90, 173, 182
Convention on the Prevention and Punishment
of the Crime of Genocide (adopted 9
December 1948, entered into force 12
January 1951) 78 UNTS 277 (Genocide
Convention) . . . . . . . . . . . 8, 14, 15, 16,
18, 19, 20, 21, 22, 23, 24, 25, 30, 32,
33, 35, 36, 37, 39, 40, 41, 43, 44, 46,
50, 51, 52, 53, 56, 58, 59, 60, 61, 66,
70, 92, 95, 146, 147, 149, 156, 157,
162, 172, 173, 180, 182, 189, 196, 226
Convention on the Prevention and Punishment
of Crimes against Internationally
Protected Persons, including Diplomatic
Agents (adopted 14 December 1973,
entered into force 20 February 1977)
1035 UNTS 167 . . . . . . . . . . . . . 63, 182
Convention on the Privileges and Immunities
of the Specialized Agencies (adopted 21
November 1947, entered into force 2
December 1948) 33 UNTS 261 . . . . . . 63
Convention on the Privileges and Immunities
of the United Nations (adopted 13
February 1946, entered into force 17
September 1946) 1 UNTS 15 . . . . . . . 63
Convention on the Safety of United Nations
and Associated Personnel (adopted 9
December 1994, entered into force 15
January 1999) 2051 UNTS 363 . . . . . 182
Convention on Special Missions (adopted
8 December 1969, entered into
force 21 June 1985)
1400 UNTS 231 . . . . . . . . 63, 73, 74, 75
Convention for the Suppression of Unlawful
Acts Against the Safety of Civilian Aircraft
(adopted 23 September 1971, entered
into force 26 January 1973) 974 UNTS
177 . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Convention for the Suppression of Unlawful
Seizure of Aircraft (adopted 16 December
1970, entered into force 14 October
1971) 860 UNTS 105 (Hijacking
Convention) . . . . . . . . . . . . . . . . . . . . . 68
European Convention on State Immunity, 16
May 1972, 11 ILM 470 . . . . . . . . . 63, 70
European Convention on Human
Rights. . . . . . . . . . . . . . . . . . 95, 201, 218
Foreign Sovereign Immunities Act 28 USCS
§ 1602 (1976) (US) . . . . . . . . . 70, 83, 93
Foreign States Immunities Act 1982 (South
Africa) . . . . . . . . . . . . . . . . . . . . . . . . . 70
Foreign States Immunities Act 1985
(Australia) . . . . . . . . . . . . . . . . . . . . . . 70
General Agreement on Privileges and
Immunities of the Council of Europe
(2 September 1949) CETS No 002 . . . 63
Geneva Convention for the Amelioration of
the Condition of the Wounded in Armies
in the Field (adopted 12 August 1949,
entered into force 21 October 1951) 75
UNTS 31 (First Geneva
Convention) . . . . . . . . . . . . . . . . . . 66, 71
Geneva Convention for the Amelioration
of the Condition of Wounded, Sick
and Shipwrecked Members of Armed
Forces at Sea (adopted 12 August
1949, entered into force 21 October
1950) 75 UNTS 85 (Second
Geneva Convention) . . . . . . . . . . . 66, 71
Geneva Convention relative to the Treatment
of Prisoners of War (adopted 12 August
1949, entered into force 21 October
1950) 75 UNTS 135 (Third Geneva
Convention) . . . . . . . . . . . . . . . . . . 66, 71
Geneva Convention relative to the Protection
of Civilian Persons in Time of War
(adopted 12 August 1949, entered into
force 21 October 1950) 75 UNTS 287
(Fourth Geneva Convention) . . . . . 66, 71
xxiv Table of Treaties, Legislation, and Other Legal Instruments
Immunities and Privileges Act 1984
(Malaysia) . . . . . . . . . . . . . . . . . . . . . 70
International Convention on the Suppression
of Terrorist Bombings (adopted 15
December 1997, entered into force 23
May 2001) 2149 UNTS 256 . . . . . . 182
International Court of Justice, Resolution
Concerning the Internal Judicial Practice
of the Court, Rules of Court (adopted 12
April 1976) . . . . . . . . . . . . . . . 191, 192
International Court of Justice, Rules of
Court (adopted 14 April 1978,
entered into force 1 July 1978) . . . .8, 64,
154, 162, 185, 191, 200
International Criminal Court, ‘Elements of
Crimes’ (9 September 2002) ICC Doc
ICC-ASP/1/3 (part II-B) . . . . .2, 29, 30,
32, 41, 42, 60, 61, 79, 150,
164, 165, 168, 173, 175
International Criminal Court, ‘Rules of
Procedure and Evidence’ (adopted
9 September 2002, entered
into force 9 September 2002)
ICC-ASP/1/3 . . . . . 2, 29, 164, 165, 168
International Criminal Tribunal for Rwanda,
‘Rules of Procedure and Evidence’
(adopted pursuant to Article 14 of the
Statute of the Tribunal, entered into
force 29 June 1995) UN Doc ITR/3/
REV.1 . . . . . . . . . . . . . . . . . . . 166, 188
International Criminal Tribunal for the former
Yugoslavia, ‘Rules of Procedure and
Evidence’ (adopted pursuant to Article
15 of the Statute of the Tribunal, entered
into force 14 March 1994) UN Doc
IT/32/Rev.7 . . . . . . . . . . . . . . . 166, 188
International Law Commission, ‘Draft
Articles on Responsibility of States
for Internationally Wrongful Acts’
(November 2001) UN Doc
A/56/10 . . . . . . . . . . . . . .16, 20, 57, 58,
84, 86, 138, 226
Negotiated Relationship Agreement between
the International Criminal Court and
the United Nations (adopted 4 October
2004, entered into force 22 July 2004)
ICC Doc ICC-ASP/3/Res.1 . . . . . . 161
Nuremberg Charter of the International
Military Tribunal (adopted 8 August
1945, entered into force 8 August 1945)
8 UNTS 279 . . . . . . . . . . . . . . . . . . . 66
Optional Protocol to the International
Covenant on Civil and Political Rights
(adopted 16 December 1966, entered
into force 23 March 1976) 999 UNTS
302 (Optional Protocol) . . . . . . 162, 218
Protocol Additional to the Geneva
Conventions of 12 August 1949, and
relating to the Protection of Victims
of International Armed Conflicts
(adopted 8 June 1977, entered into
force 7 December 1978) 1125 UNTS 3
(Additional Protocol I) . . . . . . 2, 71, 134
Rome Statute of the International Criminal
Court (adopted 17 July 1998, entered into
force 1 July 2002) 2187 UNTS 90 (ICC
Statute) . . . . . . . . . . . . 2, 8, 15, 22, 24, 29,
30, 32, 33, 35, 37, 47, 56, 57, 58, 60,
61, 63, 67, 72, 77, 78, 79, 80, 86, 126,
127, 130, 135, 151, 154, 156, 159,
164, 165, 167, 168, 170, 171, 172,
174, 175, 187, 188, 195, 196, 200,
State Immunity Act 1978
(UK) . . . . . . . . . . . . . . . . 70, 83, 87, 96
State Immunity Act 1979 (Singapore) . . . . 70
State Immunity Act 1982 (Canada) . . . . . . 70
Statute of the International Court of
Justice, annexed to the UN
Charter Ch XIV (1945) . . . . .22, 39, 91,
115, 143, 147, 153, 154, 162, 188,
189, 190, 192, 196, 206, 212, 213,
Statute of the International Criminal
Tribunal for Rwanda UNSC Res 955
(8 November 1994) UN Doc S/INF/50
Annex, reproduced in (1994) 33 ILM
1598 (ICTR Statute) . . . . . . . .8, 15, 32,
33, 41, 52, 71, 147, 157,
163, 166, 176, 195
Statute of the International Criminal Tribunal
for the Former Yugoslavia, UNSC
Res 827 (25 May 1993) UN Doc
S/827/1993, Statute contained in UN
Doc S/25704 Annex (1993), attached to
Report of the Secretary-General Pursuant to
Paragraph 2 of Security Council Resolution
808 (1993) 32 ILM 1192 (ICTY
Statute) . . . . . . . . . . . .8, 15, 33, 34, 52,
61, 71, 147, 157, 163, 166, 176
Statute of the Special Tribunal for
Lebanon, attachment to UNSC
Res 1757 (30 May 2007) S/
Res/1757/2007 (STL Statute) . . . . . . .169
 Table of Treaties, Legislation, and Other Legal Instruments
Treaty of Lisbon, 15 April 2008, . . . . . . . 216
United Nations Charter (adopted
26 June 1945, entered into force
24 October 1945) 1 UNTS XVI
(UN Charter) . . . . . . . . . .10, 22, 77, 80,
106, 108, 114, 122, 127, 128, 131,
143, 147, 153, 155, 160, 161,
174, 177, 181, 183, 213, 214
United Nations Convention on Jurisdictional
Immunities of States and Their
Properties (adopted 2 December 2004,
not yet in force) . . . . .63, 69, 70, 73, 85,
86, 92, 93, 94, 99, 101, 173, 226
Vienna Convention on Consular Relations
(adopted 24 April 1963, entered into
force 19 March 1967) 596 UNTS 261
(VCCR) . . . . . . . . . . . . . . .63, 162, 163,
xxv
Vienna Convention on Diplomatic Relations
(adopted 18 April 1961, entered into
force 24 April 1964) 500 UNTS 95
(VCDR) . . . . . . . . . . . . . . . . .63, 73, 75,
Vienna Convention on the Law of Treaties
(adopted 23 May 1969, entered into
force 27 January 1980) 1115
UNTS 331 . . . . . . 6, 172, 214, 215, 216
Vienna Convention on the Representation
of States in Their Relations with
International Organizations of a
Universal Character (adopted 14 March
1975, not yet in force) . . . . . . . . . 63, 73
This page intentionally left blank
 List of Acronyms
ADF Allied Democratic Forces
ASP Assembly of States Parties
DRC Democratic Republic of the Congo
ECCC Extraordinary Chambers in the Courts of
Cambodia
ECJ European Court of Justice
ECtHR European Court of Human Rights
EECC Eritrea-Ethiopia Claims Commission
EU European Union
FNI Front Nationaliste et Intégrationniste
FPLC Forces Armées pour la Libération du Congo
FRPI Force de Resistance Patriotique en Ituri
FRY Federal Republic of Yugoslavia
FSIA Foreign Sovereign Immunities Act
GA General Assembly
IACtHR Inter-American Court of Human Rights
ICC International Criminal Court
ICCPR International Covenant on Civil and Political
Rights
ICJ International Court of Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former
Yugoslavia
IFAD International Fund for Agricultural Development
ILC International Law Commission
ILOAT Administrative Tribunal of the International
Labour Organization
ITLOS International Tribunal for the Law of the Sea
NGO Non-governmental Organization
PCA Permanent Court of Arbitration
PCIJ Permanent Court of International Justice
PUSIC Parti pour l’Unité et la Sauvegarde de l’Intégrité
du Congo
SC Security Council
SCSL Special Court for Sierra Leone
STL Special Tribunal for Lebanon
UN United Nations
UNAT United Nations Administrative Tribunal
UNCLOS United Nations Convention on the Law of the
Sea
UPC Union des Patriots Congolais
VRS Vojska Republike Srpske (army of the Republika
Srpska)
WTO World Trade Organization
This page intentionally left blank
 1
Introduction

I. Judicial Development of International Law and the Growth of

International Courts
Two phenomena—one longstanding but largely hidden, and one contempo-
rary and highly visible—have inspired the topic of this book. First, there is the
development of international law through judicial decisions, which runs against
the classic view of international law being made by states alone.1 Second, there
is the dramatic increase in the number of international courts, tribunals, and
quasi-judicial bodies, with fifty such bodies now in existence, most of which have
been established in recent decades.2 When viewed together, these two phenom-
ena raise the question whether the coherent development of international law is
threatened by this multiplicity of international courts.3
Jonathan Charney examined this question in his impressive study for the Recueil
des Cours in 1998.4 This book alters the scope of Charney’s study by consider-
ing different substantive areas of law and focusing on four major international

¹ Allison Marston Danner, ‘When Courts Make Law: How the International Criminal Tribunals
Recast the Laws of War’ (2006) 59 Vand LR 101, 104 (hereinafter Danner, ‘When Courts Make
Law’); Anne-Marie Slaughter, ‘International Law and International Relations’ (2000) 285 Recueil
des Cours 9, 33–34; Harold Hongju Koh, ‘Why Do Nations Obey International Law?’ (1997) 106
YLJ 2599, 2607–2608. See also the ICJ’s observation that courts ‘state the existing law and [do] not
legislate’: Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226,
237 (hereinafter Nuclear Weapons Advisory Opinion).
² Roger P Alford, ‘The Proliferation of International Courts and Tribunals: International
Adjudication in Ascendance’ (2000) 94 ASIL Proc 160, 160 (‘Depending on one’s count, more than
fifty international courts and tribunals are now in existence, with more than thirty of these established
in the past twenty years’). Karen J Alter, writing in 2003, estimated that 63 per cent of international
judicial activity had occurred in the last twelve years: ‘Do International Courts Enhance Compliance
with International Law?’ (2003) 25 Rev Asian & Pac Stud 51, 52.
³ See, for example, the symposia: Benedict Kingsbury, ‘Foreword: Is the Proliferation of
International Courts and Tribunals a Systematic Problem?’ (1999) 31 NYUJILP 679; various
authors (2002) 13 RQDI 115; various authors, ‘Diversity or Cacophony?: New Sources of Norms in
International Law’ (2004) 25 Mich JIL. Although the ICTY, ICTR, and arbitral bodies are techni-
cally called ‘tribunals’, this terminology has no special significance in this context, and, for the sake of
brevity, I will refer to them as ‘courts’.
⁴ Jonathan I Charney, ‘Is International Law Threatened by Multiple International Tribunals?’
(1998) 271 Recueil des Cours 101, 117 (hereinafter Charney, Recueil).
2 Introduction
courts.5 It takes into account the significant developments that have occurred
since 1998, including the increased judicial activity of the International Court of
Justice (ICJ),6 the establishment of the International Criminal Court (ICC), and
the extensive jurisprudence generated by the International Criminal Tribunals for
the Former Yugoslavia (ICTY) and Rwanda (ICTR). This book also goes beyond
the question of whether courts are developing international law in a coherent
manner by seeking to identify the factors that influence the degree of integration
or fragmentation among them, and reflecting upon what this may illuminate
about how international courts develop international law.
The first phenomenon—the important role of judges in developing inter-
national law—was observed many years ago.7 Yet it is a role that is regularly
refuted by the courts themselves, and the view that judges merely declare the law
is affirmed in the constitutive instruments of international courts. Article 38 of
the Statute of the ICJ, often taken as the definitive statement of the sources of
international law, treats ‘judicial decisions’ as a ‘subsidiary means for the determi-
nation of rules of law’, apparently placing them at a lower level than the ‘primary
sources’ of treaties, international custom, and general principles of law. This lim-
ited view of judicial decisions is reinforced in Article 59 of the Statute, which pro-
vides that the ICJ’s decisions are binding only between the parties and in respect
of the specific dispute. Article 21 Statute of the ICC allows the Court to ‘apply
principles and rules of law as interpreted in its previous decisions’,8 but stresses
that the Statute, Elements of Crimes and Rules of Procedure and Evidence must
be applied in the ‘first place’. The ICTY was instructed ‘to apply rules of interna-
tional humanitarian law which are beyond any doubt part of customary law’ and
the ICTR was expected to follow a similar approach.9

⁵ While Charney also studied the practice of the ICJ, he made only passing reference to the ICTY
(Charney, Recueil (n 4) 185 (treaties), 261 (state responsibility)), barely addressed the ICTR (367 (on
extradition)), and at the time he was writing the Statute of the ICC was still being negotiated.
⁶ From August 2007 to July 2008, the ICJ had its most productive year until that date, delivering
four substantive judgments and one order on a request for the indication of provisional measures:
Judge Rosalyn Higgins, President of the ICJ, ‘Speech to the General Assembly of the United Nations’
(30 October 2008). The Court receives a steady stream of new cases from all around the world and as
of October 2012, had eleven cases on its docket. Since 1946, the Court has handed down over one
hundred Judgments and forty Orders on provisional measures. Approximately one-third of those
Judgments and half of those Orders were rendered in the past decade.
⁷ Hersch Lauterpacht, The Development of International Law by the International Court (Stevens
and Sons 1958). See also Georges Abi-Saab, ‘De la jurisprudence: quelques réflexions sur son rôle
dans le développement du droit international’ in M Perez Gonzalez and others (eds), Hacia un Nuevo
Orden Internacional y Europeo. Estudios en homenaje al Profesor Don Manuel Díez de Velasco Vallejo 19
(Tecnos 1993).
⁸ Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1
July 2002) 2187 UNTS 90 (ICC Statute) Art 21 (emphasis added).
⁹ UNSC ‘Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution
808 (1993)’ (3 May 1993) UN Doc S/25704 (emphasis added). The ICTR Statute criminalizes acts
committed in an internal armed conflict even though Additional Protocol II has not yet been rec-
ognized as customary international law. This was because Rwanda had ratified the two Additional
Protocols in 1984 so the Security Council was reflecting substantive rules already in force in the ter-
 I. Judicial Development of International Law 3

This circumscribed role for judicial decisions belies the reality. Higgins,
speaking of the Security Council, observed that while the Council ‘is likely to
state that it is basing itself on the law as it conceives it to be, the line between
applying law and legislating it becomes thin; certainly a question of developing
law becomes involved’.10 The same may be said of the line between interpret-
ing and developing law in the judicial context. This book will seek to show that
international courts have made significant contributions to the development of
the law in specific areas and even though international courts settle only a small
percentage of disputes, their Judgments have a powerful influence on how the
international community understands international law.11
The second phenomenon—the growth in the number of international
courts—is not hard to prove, but the implications of this growth are still being
unravelled. Since the 1950s, and with increasing intensity since the 1990s, the
rapidly growing complexity of international relations and the expansion and
deepening of international law have been accompanied by the creation of spe-
cialized judicial bodies on international and regional levels.12 This growth is a sign
of the vitality of international law and of the welcome preparedness of states to
submit their disputes to judicial settlement.13 At the same time, a multitude of
different bodies without rules of procedure governing the relationships between
them nor an ultimate court of appeal to provide definitive interpretations can
potentially lead to such a diversity of opinion that the coherence of international
law may be at risk.14
These concerns have triggered a lively debate about the ‘proliferation’ of interna-
tional courts, including a multi-year study by the International Law Commission
(ILC).15

ritory: UNSC ‘Report of the Secretary-General on International Tribunal (Rwanda)’ (15 February
1995) UN Doc S/1995/134.
¹⁰ Rosalyn Higgins, The Development of International Law through the Political Organs of the United
Nations (OUP 1963) 5. In the same book, Higgins observed that the capacity of the ICJ to develop
the law had been hampered by the absence of a compulsory jurisdiction (at 3). This has provided less
of a hindrance in recent years, with over 300 treaties providing for recourse to the ICJ and a steady
flow of cases, including cases concerning the major political and legal controversies of the day, coming
to the Court for resolution.
¹¹ Myres McDougal, ‘International Law, Power, and Policy: A Contemporary Conception’ (1952)
82 Recueil des Cours 137, 173; Rosalyn Higgins, Problems and Process: International Law and How
We Use It (OUP 1994) 50 (hereinafter Higgins, Problems and Process) (explaining that international
law is a dynamic decision-making process with a variety of participants including individuals, states,
international organizations, multinational corporations, and private non-governmental groups).
¹² See Georges Abi-Saab, ‘Fragmentation or Unification: Some Concluding Remarks’ (1999) 31
NYUJILP 919, 923 (hereinafter Abi-Saab, ‘Fragmentation or Unification’). For a historical overview,
see Charney, Recueil (n 4) 117–131.
¹³ Campbell McLachlan, Lis Pendens in International Litigation (Brill 2009) 299.
¹⁴ Charney, Recueil (n 4) 117.
¹⁵ See, for example, the symposia cited in (n 3). See also ILC, ‘Fragmentation of International Law:
difficulties arising from the Diversification and Expansion of International Law: Report of the Study
Group of the International Law Commission—Finalized by Martti Koskenniemi’ (13 April 2006)
UN Doc A/CN.4/L.682 (hereinafter ILC Study Group Report).
4 Introduction
This book seeks to contribute to, and hopefully to broaden, the debate by
addressing three questions:
1. Are international courts engaged in the same dialectic and do they render
decisions that are largely coherent?
2. What factors influence the degree of integration or fragmentation among
international courts?
3. What do the results of the first two questions tell us about the development
of international law by international courts?

II. Integration and Fragmentation in the International Legal System

The approach of this book is grounded on two assumptions. First, there is an
international legal system, albeit one that is diffuse and decentralized. Second,
within this system, coherence or judicial integration of the law is a desirable
policy goal while incoherence or judicial fragmentation is generally undesir-
able, especially over the long-term. Both of these assumptions require further
explanation.
In the same way that international law does not resemble national law, the
international legal system does not replicate the institutions seen on the national
level. International law is best understood as a process for realizing shared values,
and there are still the tools for authoritative decision-making that render it law.16
That process of decision-making takes place in a flexible, horizontal, decentralized
environment, involving numerous actors, but that is still nonetheless a system. It
may lack the classical executive and legislative institutions and a judiciary with
compulsory jurisdiction,17 but it still creates, interprets and applies law through
its own processes and institutions. This arrangement has been characterized as
‘erratic blocks and elements as well as different partial systems’, ‘a universe of
inter-connected islands’, and ‘an international legal community’.18 It is true that
there is no orderly arrangement according to a vertical hierarchy governed by
avenues of appeal, rules of precedent, and methods of enforcement. Nonetheless,
numerous practical links and common bonds exist among the international
courts and they are interacting with each other—and with national courts—on

¹⁶ Higgins, Problems and Process (n 11) 8–10; W Michael Reisman, ‘International Lawmaking: A
Process of Communication’ (1981) 75 ASIL Proc 101, 113.
¹⁷ Charney, Recueil (n 4) 115.
¹⁸ Gerhard Hafner, ‘Pros and Cons Ensuing from Fragmentation of International Law’ (2004)
25 Mich JIL 849; Joost Pauwelyn, ‘Bridging Fragmentation and Unity: International Law as a
Universe of Inter-Connected Islands’ (2004) 25 Mich JIL 903; Pemmaraju Sreenivasa Rao, ‘Multiple
International Judicial Forums: A Reflection of the Growing Strength of International Law or its
Fragmentation?’ (2004) 25 Mich JIL 929. See also on the notion of ‘international community’, Bruno
Simma, ‘From Bilateralism to Community Interest in International Law’ (1994-VI) 250 Recueil
des cours 217; Santiago Villalpando, ‘The Legal Dimension of the International Community: How
Community Interests are Protected in International Law’ (2010) 21 EJIL 387.
 II. Integration and Fragmentation in the International Legal System 5

an ever more regular basis. A definition borrowed from complex systems theory
might be more appropriate for describing what we are seeing: a self-organizing
system ‘shaped by dynamics of cooperation and competition over time’.19
Within this international legal system, judicial integration or coherence is a
desirable policy goal because it protects and promotes that ‘core predictability
that is essential if law is to perform its functions in society’.20 This is desirable
from the perspective of the users of the international legal system (states, individ-
uals, organizations) who wish to make informed choices about courses of action
as well as to have their disputes dealt with according to the rule of law. It is also
desirable from the perspective of those who work within the international legal
system (judges, legal officers, support staff) who seek to enhance the effectiveness
of their particular judicial institution and the overall legitimacy of the third party
dispute settlement process. As Judge Greenwood observed in a Separate Opinion
in the Diallo case:
International law . . . is a single, unified system of law and each international court can,
and should, draw on the jurisprudence of other international courts and tribunals, even
though it is not bound necessarily to come to the same conclusions.21
Judicial integration does not equate to total uniformity, which is an unrealistic
end-state given the complexity and variety of both international courts and the
legal issues that come before them. Rather, judicial integration requires that simi-
lar factual scenarios and similar legal issues are treated in a consistent manner, and
that any disparity in treatment is explained and justified. The desired outcome is
harmony and compatibility, which allow for the co-existence of minor variations
and for tailoring of solutions for particular cases. An integrated approach is essen-
tial to the stability of the fragile international legal system and the justice that it
is expected to dispense. Judicial integration across international courts facilitates
a comprehensive approach to dispute settlement that better reflects the intercon-
nectedness of issues in the world at large, as compared to the alternative approach
of splitting disputes into mini-conflicts arising under specific regimes.22
Judicial fragmentation may be understood in two ways. First, the term
‘fragmentation’ is often associated with conflicts between substantive bodies
of law, such as trade law and environmental law.23 This type of fragmentation

¹⁹ Jenny Martinez, ‘Towards an International Judicial System’ (2003) 56 Stanford LR 429, 443,
referring to Sunny Y Auyang, Foundations of Complex System Theories: in Economics, Evolutionary
Biology, and Statistical Physics (CUP 1998).
²⁰ Higgins, Problems and Process (n 11) 8.
²¹ Ahmadou Sadio Diallo (Guinea v Democratic Republic of the Congo) (Compensation phase)
[2012] ICJ Rep, Separate Opinion of Judge Greenwood, para 8. On the belief that normative coher-
ence is a goal to be attained, see Chester Brown, A Common Law of International Adjudication (OUP
2007) 232.
²² Yuval Shany, ‘One Law to Rule Them All: Should International Courts be viewed as Guardians
of Procedural Order and Legal Uniformity?’ Conference on Unity or Fragmentation of International
Law (Oslo, 14–15 May 2009) (hereinafter Shany, ‘One Law to Rule Them All’).
²³ ILC Study Group Report (n 15) 19.
6 Introduction
was the focus of the ILC’s study. Second, fragmentation can refer to ‘decisional
fragmentation’,24 which is when two courts seised of the same issue (legal or fac-
tual) render contradictory decisions, or a single court contradicts a finding in an
earlier case, without explaining the reasons for the divergence. This second type
of fragmentation or incoherence is the concern of this book. Such fragmentation
goes beyond mere variations in reasoning. It is not the same as observing a degree
of experimentation among international courts, which can be a positive factor.
The exploring and testing of multiple solutions in various international courts
may allow for legal innovation and the eventual adoption of the most appropriate
solution.25 The international legal system is indeed designed to permit a certain
degree of flexibility and variation.26
Rather, judicial fragmentation is a significant divergence in the reasoning on
the same/similar legal issue or in relation to the same/similar factual scenario.
Such a phenomenon is damaging to the international legal system. As in national
legal systems, the like treatment of like cases through the consistent application
of the law enhances the legitimacy of the system and of the body applying and
developing the law.27 While there may be periods of transition during which
courts explore different solutions to a contemporary legal problem, such solu-
tions should be reconciled or the most appropriate solution should prevail over
the long term. If there has been ample opportunity for courts to address the legal
problem and a sufficient body of case law on the topic, the existence of divergent
interpretations of the same law or different conclusions in similar factual situa-
tions creates uncertainty and unpredictability. It has the potential to put legal
subjects in an unequal position vis-à-vis each other.28 If it is perceived that the
case law of a particular court happens to be more favourable to certain interests
than that of another, ‘forum shopping’ may result. This could encourage courts to
tailor their decisions to attract clients, to the detriment of an objective approach
to justice.29
Divergent decisions raise the question whether the law and its institutions are
serving interests other than justice.30 Since the international legal system has no
final court of appeal nor any sovereign governing or enforcement mechanism, its

²⁴ McLachlan, Lis Pendens in International Litigation (n 13) 408.

²⁵ Charney, Recueil (n 4) 347.
²⁶ Charney, Recueil (n 4) 356, citing the ability of states parties to a treaty to adopt rules applicable
in their relations inter se that vary from general international law (Vienna Convention on the Law of
Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1115 UNTS 331, Arts 53 and
64); the ability of states parties to modify treaty rights and duties among sub-groups, within limits
(Vienna Convention on the Law of Treaties, Art 41); and the ICJ’s acknowledgment of the develop-
ment of regional custom: Asylum case (Colombia v Peru) (Judgment) [1950] ICJ Rep 266.
²⁷ Charney, Recueil (n 4) 360.
²⁸ ILC Study Group Report (n 15).
²⁹ Judge Gilbert Guillaume, President of the ICJ, ‘The proliferation of international judicial bod-
ies: The outlook for the international legal order’, Speech to the Sixth Committee of the General
Assembly of the United Nations (27 October 2000).
³⁰ Charney, Recueil (n 4) 360.
 II. Integration and Fragmentation in the International Legal System 7

legitimacy rests to a large extent on the international community’s confidence in

the way international law is applied and developed. Coherent and compatible
pronouncements on the law by international courts are vital to this confidence.
As Charney observes, if states and other subjects of international law were to
consider that the law applied and developed by international courts was unfair
because like cases were not treated alike, they may not respect those decisions.31
Such disrespect would undermine the viability of the international legal system
and of international law itself.
The prospect of fragmentation is not hypothetical. In 1998, Charney found
that the different international courts of the late-twentieth century shared a coher-
ent understanding of the law, but he also recognized that we would be entering
deeper into a period of multiplicity of courts and that risks of fragmentation did
exist.32 In the early years of the twenty-first century, the ‘intermingling’ of legal
regimes is in fact going on all around us.33
International courts are addressing the same or similar factual scenarios.34 In
2007, the ICJ delivered its Judgment in a case in which Bosnia and Herzegovina
claimed that Serbia and Montenegro had committed genocide, through its
organs or persons whose acts engage its responsibility under customary inter-
national law, within its territory during the 1990s.35 Since 1993, the ICTY has
concluded proceedings against 125 persons accused of serious violations of inter-
national humanitarian law committed in the territory of the former Yugoslavia.
These include the trial of Slobodan Milošević, the former president of the Federal
Republic of Yugoslavia, for crimes including genocide in Bosnia and Herzegovina.
That trial was cut short by his death in custody, but there is an ongoing case
against Radovan Karadžić’, President of Republika Srpska from 1992 to 1995,
for genocide in Bosnia and Herzegovina.36 Since its establishment in 1994, the
ICTR has completed cases against 52 persons for serious violations of humanitar-
ian law, including genocide, committed in Rwanda. Inter-state cases concerning

³¹ ibid 361.
³² ibid 347, 373.
³³ Rosalyn Higgins, ‘A Babel of Judicial Voices? Ruminations from the Bench’ (2006) 55 ICLQ
791, 792 (hereinafter Higgins, ‘A Babel of Judicial Voices’).
³⁴ This book focuses on human rights violations and the use of force, but there are also significant
overlaps between courts in the law of the sea. The ICJ and the International Tribunal for the Law of
the Sea (ITLOS) have both engaged in deciding related maritime disputes between Malaysia and
Singapore. The MOX plant case between Ireland and the United Kingdom was submitted by the par-
ties to arbitration under the OSPAR Convention and arbitration under the UN Convention on the
Law of the Sea (UNCLOS) (preceded by provisional measures proceedings before ITLOS). A third set
of proceedings on the lawfulness of the Irish decision to bring its claims before the UNCLOS mecha-
nisms rather than the European Community bodies, came before the European Court of Justice:
Yuval Shany, ‘The First MOX Plant Award: The Need to Harmonize Competing Environmental
Regimes and Dispute Settlement Procedures’ (2004) 17 LJIL 815.
³⁵ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43 (hereinafter Bosnia
Genocide Judgment).
³⁶ Prosecutor v Karadžić IT-95-5/18 (pending).
8 Introduction
the Rwandan genocide have also been brought to the ICJ, but have not fulfilled
the Court’s jurisdictional requirements.37 In 2005, the ICJ delivered its judgment
in the case brought by the Democratic Republic of the Congo against Uganda
for, inter alia, massive human rights violations.38 The ICC, whose Statute entered
into force in 2002, has been investigating human rights abuses allegedly commit-
ted in the same two countries. Georgia submitted a case against Russia to the ICJ
concerning the events of August 2008 (later held to be without jurisdiction),39
while the ICC Office of the Prosecutor is conducting a preliminary examination
in Georgia covering the same period.40
Beyond common factual patterns, international courts are also interpreting,
applying, and developing the same legal principles. For example, the crime of
genocide is one of a number of acts that can result in both state responsibility
and individual responsibility. The ICJ has jurisdiction over state responsibility for
genocide pursuant to Article IX of the Genocide Convention. The provisions of
the Genocide Convention have also been incorporated almost verbatim into the
statutes of the international criminal courts mandated to prosecute individuals.41
As a result, the Genocide Convention is being interpreted and applied—through
the lenses of state responsibility and individual criminal responsibility—by the
ICJ, ICC, ICTY, and ICTR. Other acts that share this dual quality include
crimes against humanity, grave breaches of the Geneva Conventions, terrorism,
torture, and aggression.42 The legal contours of aggression have been briefly ana-
lysed by the ICJ in inter-state cases in the context of both the Charter and the
customary law prohibition on the use of force, and the notion of aggression as a
crime committed by individuals has recently been included, but not activated, in
the ICC Statute.43
³⁷ Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of
the Congo v Rwanda) (Preliminary Objections: Judgment) [2006] ICJ Rep 6 (hereinafter Congo v
Rwanda). On 18 April 2007, Rwanda applied to the ICJ in a dispute with France concerning inter-
national arrest warrants issued by the latter’s judicial authorities against three Rwandan officials on
20 November 2006 and a request sent to the UN Secretary-General that President Paul Kagame of
Rwanda should stand trial at the ICTR. Since the Application was brought under Art 38(5) of the
Rules of Court, the ICJ cannot take action in the proceedings unless and until France consents to the
Court’s jurisdiction in the case, which it has not yet done: ICJ Press Release (18 April 2007).
³⁸ Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Merits:
Judgment) [2005] ICJ Rep 168 (hereinafter Congo v Uganda).
³⁹ Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v Russian Federation) (Preliminary Objections: Judgment) [2011] ICJ Rep 1.
⁴⁰ UNGA ‘Sixth Report of the International Criminal Court to the United Nations for 2009/2010’
(19 August 2010) UN Doc A/65/313, paras 75–76.
⁴¹ Statute of the International Criminal Tribunal for the Former Yugoslavia, UNSC Res 827 (25
May 1993) UN Doc S/827/1993, Statute contained in UN Doc S/25704 Annex (1993), attached
to Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993) 32
ILM 1192 (ICTY Statute) Art 5; Statute of the International Criminal Tribunal for Rwanda UNSC
Res 955 (8 November 1994) UN Doc S/INF/50 Annex, reproduced in (1994) 33 ILM 1598 (ICTR
Statute) Art 2; ICC Statute (n 8) Art 6.
⁴² Andre Nollkaemper, ‘Concurrence between Individual Responsibility and State Responsibility
in International Law’ (2003) 52 ICLQ 615, 618 (hereinafter Nollkaemper, ‘Concurrence’).
⁴³ Kampala Review Conference ‘Resolution on the Crime of Aggression, Annex III’ (11 June
2010) ICC Doc RC/Res.6.
 II. Integration and Fragmentation in the International Legal System 9

Where does this book’s analysis of integration and fragmentation in the

international legal system fit into the existing literature? Despite the numerous
books and articles discussing various developments in international courts, the
‘international judicial process and organization has not been considered as a field
of study in itself ’ until rather recently; the field is still in its infancy.44 Subject to
a few exceptions,45 much of the existing scholarship has examined the growth in
the number of international courts in the abstract, or has had a narrow focus on
the case law of only one court or only one legal topic.46 Moreover, the relation-
ship between the ICJ and the recently created international criminal courts has
not been explored in a sustained manner.47 By studying the impact of four major
international courts on three substantive areas of international law, this book
seeks to provide a more comprehensive explanation of the international judicial
process, and to assess whether fragmentation is a genuine problem.
Some scholars have looked at a single court or one aspect of international law,
without taking into account the broader implications of having multiple courts
interpreting and developing the same substantive law. Others have taken a more
general approach, such as the ILC Study Group on the topic ‘Fragmentation
of International Law: Difficulties arising from the diversification and expansion
of international law’ that operated from 2002 to 2006. The ILC Study Group
covered all types of treaties and every type of international court. Nonetheless,
the focus of the Study Group was not on the relations between international
courts (although they did touch on aspects of this),48 but rather on the relation-
ship between different rules and rule-systems. Moreover, the ILC Study Group
decided not to examine the institutional questions of ‘practical coordination,
institutional hierarchy, and the need for various actors—especially international
courts and tribunals—to pay attention to each other’s jurisprudence’.49 In con-
trast, I believe these institutional issues are fundamental to answering the central
question of this book and will pay significant attention to them.

⁴⁴ NYU Project on International Courts and Tribunals, <http://www.pict-pcti.org/matrix/matrix-

home.html> (‘Scholars and practitioners of one forum are rarely familiar with the law and procedure
of another’). See also Alford, ‘The Proliferation of International Courts and Tribunals: International
Adjudication in Ascendance’ (n 2) 160 (‘While there has been a significant focus on a few interna-
tional tribunals, there have been insufficient efforts to compare and contrast the various courts and
tribunals’); Martinez (n 19) 432–433.
⁴⁵ Charney, Recueil (n 4); Yuval Shany, The Competing Jurisdictions of International Courts and
Tribunals (OUP 2003); Brown (n 21).
⁴⁶ See, for example, International law, the International Court of Justice and Nuclear Weapons
(Laurence Boisson de Chazournes and Philippe Sands eds, CUP 1999); William A Schabas, Genocide
in International Law: The Crime of Crimes (2nd edn, CUP 2004) (hereinafter Schabas, Genocide in
International Law).
⁴⁷ For an excellent overview of some of the criminal justice issues that arise before the ICJ, see
Kenneth J Keith, ‘The International Court of Justice and Criminal Justice’ (2010) 59 ICLQ 895.
⁴⁸ See, for example, the analysis of the apparent conflict between the ICTY Tadic Judgment and
the ICJ’s Nicaragua Judgment, discussed in Chapter 4(V).
⁴⁹ ILC, ‘Report of the International Law Commission on the Work of its 55th session’ (5 May–6
June and 7 July–8 August 2003) UN Doc A/58/10, Annex, para 416.
10 Introduction

III. Methodology
In order to answer the three key questions set out above in Section I, a detailed
study of specific areas of law that engage the attention of a variety of interna-
tional courts is required. I have selected three areas of international law: the law
on genocide, the law on immunities, and the law on the use of force.50 Not only
has each of these areas been addressed by several international courts, but there
have also been significant overlaps in terms of similar factual situations coming
before more than one court51 and the same legal question being examined by dif-
ferent courts.52 The selected legal areas encompass the responsibility of both states
and individuals under international law. These three areas of law have arisen in
numerous cases in the past two decades, which has generated a body of contem-
porary judicial practice. This helps ensure that the conclusions this book draws
reflect the current situation and provide a solid foundation for future projec-
tions. In addition, the three legal areas chosen have some distinctive features that
should enrich the analysis of courts’ behaviour. Whereas the law on genocide is
largely governed by a comprehensive treaty, the law on immunities draws heavily
on customary international law and a patchwork of topic-specific conventions.
The law on the use of force has its roots in the UN Charter, but it has been devel-
oped on the basis of customary international law. These areas of law also differ in
terms of the depth of judicial practice that exists, the amount of controversy the
legal issues elicit, and the impact of societal changes on the applicability of the
law. The selected legal areas allow for a comparative analysis to be undertaken,
but they also reflect the diversity that exists in international law.
Similar considerations have driven the selection of the international courts
to be studied. This book focuses on four main courts. First, there is the ICJ,
the principal judicial organ of the UN established more than six decades ago
to adjudicate disputes submitted to it by states and issue advisory opinions on
legal questions referred by authorized UN entities. Second, there is the ICC, a
relatively new permanent entity created by treaty outside of the UN system to
prosecute individuals for the most serious crimes of international concern. Third,
we have the ICTY, an ad hoc institution created by the Security Council to
hold individuals accountable for crimes committed in the territory of the former
Yugoslavia since 1991. The fourth court is the ICTR, another ad hoc institution
created by the Security Council, and which is dedicated to prosecuting persons

⁵⁰ These differ from the seven areas in Charney, Recueil (n 4): treaty law, other sources of interna-
tional law, state responsibility, compensation standards, exhaustion of domestic remedies, the inter-
national law on the nationality of persons, and international maritime boundary law.
⁵¹ See Section II above.
⁵² For example, the extent to which a state official can benefit from immunity ratione personae
when faced with allegations of serious human rights violations has been considered by the ICJ, ICTY,
ICTR, and ICC.
 III. Methodology 11

responsible for genocide and other serious crimes committed in Rwanda during
1994.
Each of these courts has interpreted, applied, and developed aspects of the law
on genocide, the law on immunities, and the law on the use of force. At the same
time, these courts capture some of the variety of the international legal system.
Two are permanent (ICJ and ICC) and two are ad hoc (ICTY and ICTR), one
is concerned with state responsibility (ICJ) while the others are focused on the
responsibility of the individual (ICC, ICTY, ICTR). Three (ICJ, ICTY, ICTR)
are embedded, to different degrees, within the UN system while the ICC exists
separately, albeit with a close relationship to the Security Council. The courts
also differ in terms of their procedure, including as regards the influence of their
statutory instruments on proceedings, their fact-finding ability, and the judicial
drafting and reasoning process. Finally, since these courts are among the most
important in the fields of law chosen, the level of coherence in their decisions
should provide a useful impression of the overall amount of integration or frag-
mentation in an area of law.
The scope of this book requires a focus on these four main international courts,
but these courts are of course not the only judicial players in the law on genocide,
immunities, and use of force. Important judicial decisions have also been issued
by national courts, hybrid tribunals such as the Extraordinary Chambers in the
Courts of Cambodia (ECCC) and the Special Court for Sierra Leone (SCSL),
regional human rights courts, and arbitral tribunals. I refer to these bodies where
their decisions have had an important impact on the interpretation and develop-
ment of a legal issue that has also come before the ICJ, ICC, ICTY, or ICTR.
For example, in the law on immunities the judicial practice of national courts is
of growing importance because, by definition, it is before domestic courts that
issues of immunity from local jurisdiction are raised.53
Given that the judicial development of the law is at the heart of this book, the
analysis relies first and foremost on judicial decisions and, to this end, I undertake
a close examination of the relevant case law of the international courts. While it
is necessary to proceed by way of case law analysis, it should be acknowledged
that the cases that have arisen so far may represent ‘only a fraction of the possible
fact patterns which may arise in the future’54 and the responses of courts to these
cases may not be the most accurate guide to future decisions. To address this
limitation, I look not only at the substance of the decisions, but also the methods
of interpretation employed, types of evidence relied upon, and responses to the
decisions of other courts. Constitutive documents such as statutes and rules of
procedure are also examined for their impact on the procedural and substantive
framework of the courts. These sources are illuminated by commentary found

⁵³ Higgins, Problems and Process (n 11) 81. See also Dapo Akande and Sangeeta Shah, ‘Immunities
of State Officials, International Crimes, and Foreign Domestic Courts’ (2011) 21 EJIL 815.
⁵⁴ McLachlan, Lis Pendens in International Litigation (n 13) 301.
12 Introduction
in scholarly writing (including speeches and writings by judges of these courts)
and relevant studies by the International Law Commission and Institut de droit
international. I also draw on the insights I gained during my employment at the
ICJ and ICC from 2004 to 2009 and my participation in the 2010 ICC Review
Conference, while always respecting my obligations regarding confidentiality.
In order effectively to analyse the jurisprudence and impact of four interna-
tional courts, the central part of this book adopts a comparative law approach.
Instead of simply describing the decisions of each court and leaving comparison
until the end, I adopt Reitz’s approach of breaking the subject into natural units
and making every part comparative and analytical.55 This comparative analysis
is both detailed and systemic. I closely examine specific cases in order to cap-
ture the variations in wording and technique that are integral to understand-
ing the diverse approaches to developing international law. However, I will also
ask whether, viewed as a whole, the differences between the international courts
are slight or significant, benign or disturbing. As Charney notes: ‘Any qualified
lawyer can distinguish cases . . . it would not be hard to establish that the spe-
cific applications of the law by each of the tribunals considered differ to some
extent.’56 To mitigate the risks of adopting an approach that is either over-broad
or too absorbed in the minutiae, I use the following analytical framework:

Integration Fragmentation

Genuine GENUINE INTEGRATION GENUINE FRAGMENTATION

Judicial decisions are coherent and
compatible (though not necessarily
uniform). This result may be due to
judicial dialogue and an effort to be
consistent or a default setting due to
coalescing around external standards,
such as treaties.
Apparent APPARENT INTEGRATION
Judges attempt to integrate their
decisions with those of other courts,
but due to differing facts or the
misapplication of legal concepts,
cracks appear beneath the surface.
Judicial decisions give rise to
conflicting developments in the law
that are either unconscious due to
lack of awareness of other courts’
decisions or a conscious departure
from existing case law.
APPARENT FRAGMENTATION
Judicial decisions appear to be
conflicting, but the variations
are due to contextual factors and
the underlying legal reasoning
can be resolved and rendered
compatible through clarification
and interpretation.

⁵⁵ John C Reitz, ‘How To Do Comparative Law’ (1998) 46 AJCL 617, 634.

⁵⁶ Charney, Recueil (n 4) 137.
 IV. Structure 13

IV. Structure
The analytical core of the book is formed by Chapters 2, 3, and 4, which examine
the judicial practice regarding the law on genocide, the law on immunities, and the
law on the use of force. These three chapters address the first two questions of this
book: (1) Are courts engaged in the same dialectic and do they render decisions
that are largely coherent? (2) What factors influence the degree of integration or
fragmentation among courts? Chapter 5 develops and deepens the answer to the
second question by adopting a thematic approach that cuts across the legal areas
analysed in the preceding chapters. It seeks to explain why international courts
tend towards the integration or fragmentation of international law, and consid-
ers the applicability of these explanatory factors beyond the substantive areas
of genocide, immunities, and use of force. Chapter 6 extends this analysis by
considering the implications for the development of international law by inter-
national courts. It addresses theoretical insights and evaluates practical models for
encouraging judicial integration in the international legal system.
 
Genocide

I. Introduction
More than sixty years since the Convention on the Prevention and Punishment
of the Crime of Genocide was opened for signature,1 it is a grim reality that there
has been cause for international and national courts to interpret and apply this
Convention on a regular basis. This is a rather recent development—apart from
an Advisory Opinion on reservations to the Convention,2 most cases involv-
ing genocide have been dealt with in the past decade. None of the accused in
Nuremberg was convicted for genocide and the word does not even appear in
the text of the Judgment. The International Military Tribunal at Nuremberg did
not attempt to define the term ‘genocide’, not did it try to distinguish the notion
from other crimes within its jurisdiction.3
The law on genocide has become more prominent in recent years due to its
invocation by governments and civil society as regards mass atrocities in the
Balkans, Rwanda, and the Sudan. At the same time, there has been a dramatic
increase in the number of institutions charged with applying the law on geno-
cide. On the international level, claims of genocide have been made before the
ICJ, ICC, ICTY, ICTR, the European Court of Human Rights (ECtHR), the
Inter-American Court of Human Rights (IACtHR), the Iraqi Special Tribunal,
and the Extraordinary Chambers in the Courts of Cambodia. National courts
have also heard dozens of cases.4
By examining the judicial practice at the international level, this chapter con-
siders whether these courts are rendering decisions that are largely compatible
with each other and thus contributing to the integrated development of this area
of law. It will also address the factors that tend to favour judicial integration or
fragmentation.

¹ Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December
1948, entered into force 12 January 1951) 78 UNTS 277 (hereinafter Genocide Convention).
² Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory
Opinion) [1951] ICJ Rep 15, 23 (hereinafter Reservations Advisory Opinion).
³ Guénaël Mettraux, International Crimes and the Ad Hoc tribunals (OUP 2005) 196.
⁴ For the practice of national courts, see Cristina Fernández-Pacheco Estrada, ‘National Courts
and Genocide’ in Carsten Stahn and Larissa van den Herik (eds), Fragmentation and Diversification
of International Criminal Law (Martinus Nijhoff 2012) (hereinafter Fernández-Pacheco Estrada,
‘National Courts and Genocide’).
 I. Introduction 15
Compared to the law on immunities and the law on the use of force, which
will be explored in Chapters 3 and 4, the law on genocide generally exhibits a
high level of integration. Courts tend to interpret the law in a coherent manner
and to develop legal principles along common lines. To a large extent, this inte-
gration appears to be due to the fact that—unlike immunities and use of force—
the law on genocide is governed by a widely ratified, comprehensive convention
that is accepted as reflecting customary international law.5 Nonetheless, there are
aspects of judicial practice on the law on genocide that display signs of genuine
fragmentation, in particular the specific intent requirement. Two factors may be
said to contribute to divergent interpretations among international courts. First,
the law on genocide encompasses two regimes for responsibility; genocide is one
of a limited number of acts that can result in both state responsibility and indi-
vidual responsibility.6 Second, there are multiple options for the enforcement of
the law on genocide.
Both these factors—dual responsibility and multiple fora—are present in the
law on immunities and the law on the use of force, but there are important
distinctions. The duality of the responsibility under the Genocide Convention
is more pronounced and is actually embedded in the relevant legal instruments.
The ICJ has jurisdiction over state responsibility for genocide pursuant to Article
IX of the Genocide Convention. The provisions of the Genocide Convention
have been incorporated almost verbatim into the statutes of the international
criminal courts and tribunals mandated to prosecute individuals.7 With respect
to the enforcement of the law, national courts have played a prominent role in
the law on immunities while ad hoc arbitral tribunals have a growing presence
in the law on the use of force. As for the law on genocide, international criminal
courts, human rights bodies, and UN political organs have been the most impor-
tant fora, alongside the ICJ.
The first part of this chapter will explore how these factors provide the con-
text for the adjudication of the law on genocide. The subsequent sections will
examine aspects of the law on genocide that have been the site of the greatest
interaction among international courts, namely the required intent, the nature
of the protected group, the nature of the destruction, the concept of ‘in whole
or in part’, and the various ways in which there is an interplay between state and
individual responsibility. The judicial practice on these issues provides a good
impression of the level of integration and fragmentation in this area of the law
and an insight into the contributing factors.

⁵ As of October 2012, the Genocide Convention had 142 parties.

⁶ Andre Nollkaemper, ‘Concurrence between Individual Responsibility and State Responsibility
in International Law’ (2003) 52 ICLQ 615, 618. Other acts in this category include the crime of
aggression (recently included, but not activated, in the ICC Statute), crimes against humanity, grave
breaches of the Geneva Conventions, terrorism, and torture.
⁷ ICTY Statute Art 5; ICTR Statute Art 2; ICC Statute Art 6.
16 Genocide

II. The Context in which the Law on Genocide is being Adjudicated

A. Two regimes for responsibility
The coexistence of regimes for responsibility within the one law creates the poten-
tial for fragmentation in two ways. First, different courts examining the same act
may reach divergent outcomes on the responsibility of the individual or of the
state. Such an outcome is not in and of itself problematic if it can be satisfacto-
rily explained on the basis of, for example, the presence of the required intent or
differing standards of proof. Without such an explanation, however, the differ-
ent outcomes create confusion or even the appearance of incompetence or bias.
Second, courts dealing with one type of responsibility may transpose approaches
used by courts exercising jurisdiction over another type of responsibility. Such
transpositions may be useful developments of the law by analogy, or they may be
incompatible with the underlying regime. In the latter case, such transpositions
generate uncertainty as to the proper test to be applied.
International instruments recognize that state responsibility and individual
criminal responsibility are distinct in international law, but do not provide any
guidance as to how overlaps, interplay or contradiction between the two regimes
can be resolved. Article 58 of the ILC Articles on State Responsibility provides
that ‘these articles are without prejudice to any question of the individual respon-
sibility under international law of any person acting on behalf of a State’.8 Article
25(4) of the Rome Statute of the ICC provides the mirror image: ‘No provision in
this Statute relating to individual criminal responsibility shall affect the responsi-
bility of States under international law.’ It is therefore left to international judges
to determine how the two regimes of responsibility interact.
International law does not recognize the criminal responsibility of states; the
notion of international crimes was excluded by the ILC as it prepared its Articles
on State Responsibility.9 Thus, when we speak of state responsibility under the
Genocide Convention, it is the sui generis responsibility for breach of an obliga-
tion under international law, arising from the terms of an international con-
vention, and is not criminal in nature.10 Individual responsibility for genocide,
on the other hand, is clearly criminal in nature. Article IV of the Convention
provides that ‘[p]ersons committing genocide or any of the other acts enumer-
ated in article III shall be punished’.11 Indeed, the Convention was one of the first
⁸ ILC, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’ (November
2001) UN Doc A/56/10, 43 (hereinafter ILC Articles).
⁹ ILC, ‘Report of the International Law Commission on the work of its 50th session’ (20 April–12
June and 27 July–14 August 1998) UN Doc A/53/10, printed in Yearbook of the International Law
Commission 64–77, UN Doc A/CN.4/SER.A/1998/Add.l (Part 2) Vol II(2).
¹⁰ See Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, para 170 (herein-
after Bosnia Genocide Judgment).
¹¹ Genocide Convention (emphasis added).
 II. The Context in which the Law on Genocide is being Adjudicated 17
treaties that envisaged taking individuals from behind the shield of the state and
prosecuting them for the legal consequences of their acts.12
Dual responsibility—individual and state—under the Genocide Convention
is not readily apparent. This is mainly because the most ‘visible’ state obligations
in the Convention are those which states are required to place on individuals.
This has lead to two competing visions of the Genocide Convention. According
to one vision, which we could label the ‘state-based view’, the Convention created
‘a universal, treaty-based concept of state responsibility’, imposing direct obliga-
tions on states not to commit genocide or perform acts ancillary to genocide.13
This was the position of Bosnia and Herzegovina in the Bosnia Genocide case.14 A
variation on this view contends that the Convention was adopted in many ways
as ‘a political manifesto against a certain form of massive criminality’ and was
never intended to be a criminal code regulating the behaviour of individuals.15
At the other end of the spectrum, the ‘individual-based view’, the drafters
of the Convention intended only to deal with individuals’ criminal responsibil-
ity for genocide. To this end, the Convention was primarily conceived of as ‘an
agreement on judicial cooperation among states’ to ensure the prevention and
punishment of individuals through states parties adopting national legislation,
exercising criminal jurisdiction, and extraditing persons allegedly responsible for
genocide.16 This was the view adopted by Serbia before the ICJ.17
After the 2007 Judgment of the ICJ in the Bosnia Genocide case, it is no longer
possible to deny the distinct obligations of states under the Convention and
the resulting direct responsibility of states. The better view is therefore that the
Genocide Convention can give rise to both the responsibility of states and the
criminal liability of individuals.
Articles IV, V, VI, and VII place obligations on states parties to punish persons
who commit genocide, to enact the necessary domestic legislation with effective
penalties, to prosecute persons charged with genocide if the act was committed
on their territory, and to grant extradition of persons charged with genocide.
Breach of these obligations would engage state responsibility. At the same time,

¹² Nollkaemper, ‘Concurrence between Individual Responsibility and State Responsibility in

International Law’ (n 6) 618.
¹³ Bosnia Genocide Judgment (n 10) para 155.
¹⁴ ibid.
¹⁵ John R W D Jones, ‘“Whose Intent is it Anyway?” Genocide and the Intent to Destroy a Group’
in Lal Chand Vohrah and others (eds), Man’s Inhumanity to Man: Essays on International Law in
Honor of Antonio Cassese 467 (Kluwer Law International 2003) 478 (hereinafter Jones, ‘Whose Intent
is it Anyway?’). See also Hersch Lauterpacht’s statement that ‘to a considerable extent, the [Genocide]
Convention amounts to a registration of protest against past misdeeds of individual savagery rather
than to an effective instrument of their prevention or repression’: Lassa Oppenheim, International
Law: A Treatise Vol. I: Peace (H Lauterpacht ed, 8th edn, Longmans 1955).
¹⁶ Antonio Cassese, ‘Taking Stock of the Genocide Convention and Looking Ahead’ in Paola Gaeta
(ed), The UN Genocide Convention: A Commentary (OUP 2009) 531 (emphasis in original) (hereinaf-
ter Cassese, ‘Taking Stock’); Paola Gaeta, ‘On What Conditions Can a State be Held Responsible for
Genocide?’ (2007) 18 EJIL 631, 632.
¹⁷ Bosnia Genocide Judgment (n 10) para 171.
18 Genocide

each of these Articles is centered on the punishment, prosecution, and extradition

of the individual. Reading these articles on their own, it would seem that obliga-
tions for states parties arise only from the commission of genocide by individu-
als.18 Nonetheless, a broader reading of the Convention in context reveals three
obligations that engage the responsibility of a state for its own acts: the obligation
to prevent genocide, the obligation to punish genocide, and the obligation not
to commit genocide.
In Article I, states parties ‘confirm that genocide, whether committed in time
of peace or in time of war, is a crime under international law which they under-
take to prevent and to punish’. In the Bosnia Genocide Judgment, the ICJ found
that Article I created obligations distinct from those in the following Articles. In
its view, the word ‘undertake’ in Article I was ‘not merely hortatory or purposive’,
but created substantive obligations, in particular with respect to the prevention
of genocide.19 The Court reached this conclusion on the basis of the ordinary
meaning of the text and the ‘purely humanitarian and civilizing purpose of the
Convention’. The Court’s conclusion was bolstered by the travaux préparatoires of
the Convention. During the negotiations, the undertaking to prevent genocide
was moved from the preamble to the operative part of the Convention, and a
linking clause that would have diluted the distinct nature of the obligation in
Article I (‘in accordance with the following articles’) was deleted.20
The obligation on states parties not to commit genocide themselves does not
appear in the actual terms of the Convention. The ICJ relied once again on Article
I of the Convention, holding that the undertaking to prevent genocide necessar-
ily implied the prohibition of the commission of genocide by the state itself: ‘[i]t
would be paradoxical, if states were thus under an obligation to prevent, so far as
within their power, commission of genocide by persons over whom they have a
certain influence, but were not forbidden to commit such acts through their own
organs’.21 The travaux préparatoires also lend some support to the Court’s conclu-
sion, though they are not entirely conclusive.22

¹⁸ Amabelle C Asuncion, ‘Pulling the Stops on Genocide: the State or the Individual?’ (2009) 20
EJIL 1195, 1202–1203.
¹⁹ Bosnia Genocide Judgment (n 10) paras 161–162. The obligation to punish genocide appears
also in Arts IV–VII of the Genocide Convention.
²⁰ Bosnia Genocide Judgment (n 10) para 64 with reference to Economic and Social Council, Report
of the Committee and Draft Convention Drawn up by the Committee, UN Doc E/794 (1948).
See Hirad Abtahi and Philippa Webb, The Genocide Convention: the travaux préparatoires (Martinus
Nijhoff 2008) 1120; Sixth Committee, Belgium: amendments to the draft convention on genocide,
UN Doc A/C.6/217 (5 October 1948) (see Abtahi and Webb, 1972); Sixth Committee, Summary
Records of the 68th meeting, UN Doc A/C.6/SR.68 (6 October 1948), Netherlands amendment
UN Doc A/C.6/220 (6 October 1948) (see Abtahi and Webb, 1342, 1350–1353).
²¹ Bosnia Genocide Judgment (n 10) para 166.
²² The ICJ in para 178 stated that the drafting history supported its view that contracting parties
are bound not to commit genocide. The United Kingdom attempted to introduce an amendment to
what later became Art IV that would have provided criminal responsibility for any act of genocide
extended ‘to States, governments, or organs or authorities of the State or government, by whom such
acts are committed’: UN Doc A/C.6/236 and A/C.6/236/Corr. (16 October 1948). The amendment
 II. The Context in which the Law on Genocide is being Adjudicated 19
Basing itself again on the object and purpose of the Convention, the ICJ took
an expansive view of Article III of the Convention, finding that states were sub-
ject to the full set of obligations set out in that provision. States were thus under
a duty to refrain from engaging in conspiracy, direct and public incitement,
attempt or complicity.23 This, the Court implicitly acknowledged, was a rather
radical development: the concepts listed in Article III are well-known categories
of criminal law and ‘as such, appear particularly well adapted to the exercise of
penal sanctions against individuals’.24 Nonetheless, the Court held that the inter-
national responsibility of a state as well as the individual criminal responsibility of
an individual could be engaged through one of these acts listed in Article III. The
Court further cited the phrase in the dispute settlement provision, Article IX,
which reads: ‘including those [disputes] relating to the responsibility of a state for
genocide or any of the other acts enumerated in Article III’. In the Court’s view,
the word ‘including’ confirmed that disputes relating to state responsibility ‘for
genocide’ (not just responsibility ‘for failing to prevent or punish genocide’) were
comprised within the group of disputes relating to the interpretation, applica-
tion, or fulfilment of the Genocide Convention.25
Those who have a vision of the Convention as a standard international criminal
law instrument have criticized the Court’s interpretation of Articles I and III of
the Genocide Convention.26 The thrust of the criticism is that the Court broad-
ens the obligations contained in the Convention beyond what is justified and
transposes criminal law categories to inter-state relations in an artificial manner.27
However, the dual nature of the Genocide Convention is required by the nature

was rejected by 24 votes to 22 in the 96th meeting of the Sixth Committee (UN Doc A/C.6/SR.96
(9 November 1948), Abtahi and Webb (n 20) 1162). In the 100th meeting, the UK joined with
Belgium in proposing an amendment to what would become the jurisdictional provision Article
IX (UN Doc A/C.6/258 (19 November 1948)). The amendment dealt with the role of the ICJ and
added the words ‘including disputes relating to the responsibility of a State for any of the acts’. The
UK representative acknowledged the Committee’s ‘desire to confine the provisions of Article [VI] to
individuals’, and explained that the joint amendment was seeking to mention the responsibility of
states in the context of the jurisdictional provision (UN Doc A/C.6/SR.103 (12 November 1948),
Abtahi and Webb (n 20) 1761–1762). Various states expressed doubts about the responsibility of
states and the UK was compelled to clarify that the amendment involved civil responsibility, not
criminal responsibility (Abtahi and Webb (n 20) 1774). The amendment was adopted 23 votes to 13,
with 8 abstentions (UN Doc A/C.6/SR.104 (13 November 1948), Abtahi and Webb (n 20) 1784).
During the adoption of the draft resolution towards the very end of the drafting process, the UK
representative noted that there were virtually no provisions in the convention dealing with genocide
committed by governments and ‘indeed it was implied therein that Governments would not them-
selves commit acts of genocide’ (UN Doc A/C.6/SR.132 (1 December 1948), Abtahi and Webb (n
20) 1920). No representative spoke in opposition to this implication.
²³ Bosnia Genocide Judgment (n 10) para 167.
²⁴ ibid.
²⁵ ibid 169.
²⁶ Paola Gaeta, ‘Génocide d’Etat et responsabilité pénale individuelle’ (2007) 111 Revue générale
de droit international public 272.
²⁷ Antonio Cassese, ‘On the Use of Criminal Law Notions in Determining State Responsibility
for Genocide’ (2007) 5 JICJ 875, 878–879 (hereinafter Cassese, ‘On the Use of Criminal Law
Notions’).
20 Genocide

of the crime itself: the reality is that genocide will usually be committed with the
involvement or tolerance of the state. This can manifest itself in genocidal acts
by one state against another (inter-state genocide) or—more usually—by a state
against a group inside its borders (intra-state genocide).28 The sheer ambition of
the crime, in its mission to deny the existence of a protected group, almost always
requires the active or passive support of the state apparatus.29 At the same time,
the heinous acts of individuals possessing the specific intent to destroy the group
must not go unpunished. Further, the duality of responsibility acknowledges the
reality that states act through their agents: if a state official commits genocide,
then the state is often also responsible. The prosecution and punishment of that
official in his or her individual capacity does not exempt the state from responsi-
bility for the breach.30
This duality is not a new concept. It was contemplated during the drafting of
the Convention, as the ICJ noted. When the UN General Assembly requested
the Economic and Social Council to engage in work on the Convention in 1947,
it declared ‘genocide is an international crime entailing national and interna-
tional responsibility on the part of individuals and states’.31 On the same day,
the Assembly adopted resolutions directing the ILC to work on the Nuremberg
principles on the rights and duties of individuals, and a draft declaration on the
rights and duties of states.32 The famous statement in the Nuremberg Judgment
that ‘[c]rimes against international law are committed by men, not by abstract
entities’33 must also be placed in its historical context. It was not the intent of the
Tribunal to negate state responsibility.34 Rather, the Tribunal made the statement
in the course of rejecting the argument that only states could be responsible under
international law, adding that it had long been recognized that ‘international law
imposes duties and liabilities upon individuals as well as upon states’.35

²⁸ Since the end of the Cold War, deadly conflicts within states vastly outnumber deadly con-
flicts between states. In some of these cases, the deadly conflicts have been genocidal in nature. See
Carnegie Commission on Preventing Deadly Conflict, ‘Preventing Deadly Conflict: Final Report’
(1997) and Carnegie Commission on Preventing Deadly Conflict, ‘Second Progress Report’ (July
1996). As Gareth Evans observed, ‘[t]he quintessential problem of the 1990s became that of intr-
astate conflict, civil war, and internal violence perpetrated on a massive scale’: ‘From Humanitarian
Intervention to the Responsibility to Protect’ (2006–2007) 24 Wisc ILJ 703, 706.
²⁹ See Mahmoud Cherif Bassiouni, Crimes Against Humanity in International Criminal Law
(2nd rev edn, Kluwer Law International 1999) 248–249.
³⁰ ILC Articles commentary to Art 53, 142–143.
³¹ UNGA Doc A/RES/180 (II) (21 December 1947); referred to in Bosnia Genocide Judgment
(n 10) para 163 (emphasis added).
³² UNGA Doc A/RES/177 (21 November 1947) and UNGA A/RES/178 (II) (21 November
1947); referred to in Bosnia Genocide Judgment (n 10) para 163.
³³ Judgment of the Nuremburg International Military Tribunal 1946 (1947) 41 AJIL 172, Official
Documents, Vol 1, 223.
³⁴ Anja Seibert-Fohr, ‘State Responsibility for Genocide under the Genocide Convention’ in Paola
Gaeta (ed), The UN Genocide Convention: A Commentary 349 (OUP 2009) 370.
³⁵ Judgment of the Nuremburg International Military Tribunal 1946 (n 33), quoted in Bosnia
Genocide Judgment (n 10) para 172. For a succinct historical overview, see Andrew Clapham, ‘The
Role of the Individual in International Law’ (2010) 21 EJIL 25.
 II. The Context in which the Law on Genocide is being Adjudicated 21

B. Multiple systems for enforcement

The dual responsibility under the Genocide Convention is matched by multiple
options for enforcement. Since these courts exist in a decentralized, non-hierarchal
legal system, there is a risk of divergent decisions being reached by different bod-
ies. This risk is not hypothetical as there has been a significant amount of judicial
activity in this field.
At the ICJ, there have been six main decisions involving the law on genocide,
of which the most important has been in the Bosnia Genocide case decided in
2007.36 Charges of genocide appear in nearly every case before the ICTR. As of
October 2012, the ICTR had concluded proceedings for forty-five accused and
the ICTY for 126 accused.37 Over forty persons had been convicted of genocide
by the ICTR and there have been several convictions for genocide at the ICTY.38
One person has been convicted of genocide in a case transferred to the Court of
Bosnia and Herzegovina.39 At the ICTY there have been acquittals relating to
the charge of genocide,40 plea agreements and cases in which charges of geno-
cide were withdrawn by the prosecution,41 cases in which the counts of genocide
were dismissed from the indictment by the Trial Chamber,42 and cases in which

³⁶ Bosnia Genocide Judgment (n 10). The other cases are: Reservations Advisory Opinion (n 2);
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia &
Herzegovina v Yugoslavia) (Preliminary Objections: Judgment) [1996] ICJ Rep 595; Legality of the
Use of Force (Serbia and Montenegro v Belgium) (Preliminary Objections: Judgment) [2004] ICJ Rep
279 (see also the cases against Canada, France, Germany, Italy, the Netherlands, Portugal, and the
United Kingdom); Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v
Uganda) (Merits: Judgment) [2005] ICJ Rep 168; Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Croatia v Serbia) (Preliminary Objections: Judgment) [2008]
ICJ Rep 412.
³⁷ ICTR and ICTY websites.
³⁸ Prosecutor v Krstić (Judgment) IT-98–33-A, A Ch (19 April 2004) (hereinafter Krstić Appeals
Judgment); Prosecutor v Popović and others (Judgment) IT-05–88-T, T Ch II (10 June 2010).
³⁹ Prosecutor v Trbić IT-05-88/1, transferred pursuant to Rule 11bis of the Tribunal’s Rules of
Procedure and Evidence. On 16 October 2009, the Court of Bosnia and Herzegovina sentenced
Milorad Trbić to thirty years’ imprisonment; the verdict was upheld on appeal by the Court of BiH
Appellate Panel on 21 October 2010.
⁴⁰ Prosecutor v Blagojević (Judgment) IT-02-60-T, T Ch I (17 January 2005) (hereinafter Blagojević
Trial Judgment); Prosecutor v Krajišnik (Judgment) IT-00-39-A, A Ch (17 March 2009); Prosecutor v
Jelisić (Judgment) IT-95-10-A, A Ch (5 July 2001) (hereinafter Jelisić Appeals Judgment); Prosecutor
v Stakić (Judgment) IT-97-24-A, A Ch (22 March 2006) (hereinafter Stakić Appeals Judgment);
Prosecutor v Brdjanin (Judgment) IT-99-36-A, A Ch (3 April 2007) (hereinafter Brdjanin Appeals
Judgment). The case statistics are based on para 374 of the Bosnia Genocide Judgment (n 10) and have
been updated to October 2012.
⁴¹ Prosecutor v Obrenović (Judgment) IT-02-60/2-S, T Ch I (10 December 2003); Prosecutor v
Momir Nikolić (Judgment) IT-02-60/1-S, T Ch I (2 December 2003); Prosecutor v Plavšić (Sentencing
Judgment) IT-00-39 & 40/1-S, T Ch III (27 February 2003). The case statistics are based on para 374
of the Bosnia Genocide Judgment (n 10) and have been updated to October 2012.
⁴² Prosecutor v Sikirica (Judgment on Defence Motion to Acquit) IT-95-8-T, T Ch III (3 September
2001) (hereinafter Sikirica Motion to Acquit). The case statistics are based on para 374 of the Bosnia
Genocide Judgment (n 10) and have been updated to October 2012.
22 Genocide

the indictment charged genocide but the accused died during the proceedings.43
There are pending cases against three accused involving charges of genocide,44
including Ratko Mladić and Radovan Karadžić, who were fugitives for many
years. The ICC has a pending case against President Omar Al Bashir of the Sudan
in which there are allegations of genocide.45 Initially, the Pre-Trial Chamber
declined to issue an arrest warrant against President Al Bashir including the counts
of genocide, but after the Appeals Chamber held that an erroneous standard of
proof had been applied, the matter was remanded to the Pre-Trial Chamber.46
In July 2010, the Pre-Trial Chamber issued a second warrant on the counts of
genocide.47
The ICJ has exercised jurisdiction in cases involving allegations of genocide
pursuant to Article IX of the Genocide Convention. As discussed above, the ICJ
has interpreted this article as also providing jurisdiction over state responsibil-
ity for the actual commission of genocide. Since the ICJ is limited to deciding
contentious disputes between states, it does not pass judgment on the criminal
responsibility of individuals.48
Genocide, like the law on the use of force, also engages the attention of politi-
cal bodies. Pursuant to Article VIII of the Genocide Convention, any state party
may call upon ‘the competent organs’ of the UN, namely the General Assembly
and the Security Council, to take action under the Charter to prevent and sup-
press acts of genocide. In practice, action in this regard has often been sparse,
ineffective, or belated.49 Since genocides are often intra-state in nature, there may
be less incentive for other states to become involved in a seemingly ‘internal’
situation.50

⁴³ Prosecutor v Milošević IT-02-54; Prosecutor v Kovačević and Drljača IT-97-24; Prosecutor v Talić
IT-99–36/1. The case statistics are based on para 374 of the Bosnia Genocide Judgment (n 10) and
have been updated to October 2012.
⁴⁴ Prosecutor v Karadžić and Mladić IT-95-5/18; Prosecutor v Tolimir IT-05-88/2.
⁴⁵ He is allegedly criminally responsible for three counts of genocide: genocide by killing (Art 6-a,
ICC Statute), genocide by causing serious bodily or mental harm (Art 6-b) and genocide by deliber-
ately inflicting on each target group conditions of life calculated to bring about the group’s physical
destruction (Art 6-c).
⁴⁶ Prosecutor v Omar Hassan Ahmad Al Bashir (Judgment on the Appeal of the Prosecutor against
the Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad
Al Bashir) ICC-02/05–01/09, A Ch (3 February 2010).
⁴⁷ Prosecutor v Omar Hassan Ahmad Al Bashir (Second Warrant of Arrest) ICC-02/05-01/09, P-T
Ch I (12 July 2010).
⁴⁸ Statute of the International Court of Justice, annexed to the UN Charter Ch XIV (1945) Art 34.
⁴⁹ The General Assembly first used the term ‘genocide’ with regard to the massacre of Sabra and
Shatila (UNGA Res 37/123D (16 December 1982)). Since then, the Assembly has referred to geno-
cide a number of times in resolutions related to the conflict in the Balkans (eg UNGA Res 47/127
(18 December 1992) UN Doc A/Res/47/127; UNGA Res 48/88 (20 December 1993) UN Doc A/
Res/48/88; UNGA Res 50/192 (23 February 1996) UN Doc A/Res/50/192). Cassese cites the practice
of the Security Council preferring to establish ad hoc international criminal tribunals to deal with
alleged instances of genocide rather than authorize military action: Cassese, ‘Taking Stock’ (n 16) 538.
⁵⁰ Nonetheless, the prohibition on genocide is jus cogens (and therefore erga omnes) in nature,
meaning other states do have a duty to take action to prevent and stop the crime even if they are
not directly implicated. See Armed Activities on the Territory of the Congo (New Application: 2002)
 II. The Context in which the Law on Genocide is being Adjudicated 23
As regards holding individuals responsible, Article VI provides for two
mechanisms: trial by a ‘competent tribunal of the State in the territory of which
the act was committed’ or trial ‘by such international penal tribunal as may have
jurisdiction with respect to those Contracting Parties which shall have accepted
its jurisdiction’. After a slow start, there has been a clear increase in prosecutions
in national courts on the basis not only of the territorial principle, but also uni-
versal jurisdiction.51
The ‘international penal tribunal’ mentioned in Article VI did not exist at the
time the Genocide Convention was adopted. In an instance of interaction among
judicial institutions, it was the ICJ in the Bosnia Genocide case that provided an
interpretation of Article VI that supported the role of the ICTY in the prosecu-
tion of genocide. The reference in the text of Article VI to ‘Contracting Parties
which shall have accepted [the tribunal’s] jurisdiction’ suggests that the drafters
imagined the future ‘international penal tribunal’ would be created by treaty.
Indeed, the ICC neatly fits this description. The ICTY, on the other hand, was
created pursuant to a Security Council resolution adopted under Chapter VII
of the Charter.52 The ICJ held that this possibility had not been considered by
the drafters of the Convention, but there was also no evidence of an intent to
exclude it. The ICJ adopted a broad reading of ‘international penal tribunal’ to
‘at least cover all international criminal courts created after the adoption of the
Convention . . . of potentially universal scope, and competent to try the perpe-
trators of genocide or any of the other acts enumerated in Article III’.53 This
interpretation encompasses the ICC, ICTY, and ICTR; the words ‘at least’ leave
the door open to perhaps including hybrid international-national courts with
jurisdiction over genocide, such as the Extraordinary Chambers in the Courts of
Cambodia.54
The ICJ—in the context of a judgment on state responsibility—validated
the role of the ICTY in holding individuals responsible for genocide. Such an
approach has an overall integrating effect on the international legal system by
bringing together the dual responsibility regimes under the Convention. The
ICJ’s purposive interpretation has also been praised as drawing from Article VI a

(Democratic Republic of the Congo v Rwanda) (Preliminary Objections: Judgment) [2006] ICJ Rep 6,
32, para 64.
⁵¹ See Fernández-Pacheco Estrada, ‘National Courts and Genocide’ (n 4).
⁵² UNSC Res 827 (25 May 1993) UN Doc S/Res/827.
⁵³ Bosnia Genocide Judgment (n 10) para 445 (emphasis added). For criticism of this finding, see
Salvatore Zappala, ‘International Criminal Jurisdiction over Genocide’ in Paola Gaeta (ed), The UN
Genocide Convention: A Commentary 259 (OUP 2009) 261 (arguing that the ICC is the only interna-
tional penal tribunal which ‘presents some of the features of the model underlying Article VI’).
⁵⁴ The establishment of the ICTY by Security Council Resolution also raised the question whether
Serbia could be regarded as having ‘accepted the jurisdiction’ of the ICTY for the purposes of Art VI.
The ICJ held that Serbia was obliged to accept the ICTY’s jurisdiction and to cooperate with it by
virtue of the Dayton Agreement in 1995; the admission of the Federal Republic of Yugoslavia (FRY)
to the UN in 2000 provided a further basis for the obligation to cooperate: Bosnia Genocide Judgment
(n 10) para 447.
24 Genocide

general obligation of cooperation with existing international criminal tribunals.55

This has concrete consequences. In the light of the second arrest warrant includ-
ing genocide charges issued against President Al Bashir of the Sudan by the ICC,56
it can be argued that all states parties to the Genocide Convention are under an
obligation to cooperate with the Court in the arrest and transfer of President Al
Bashir pursuant to Article VI, even if they are not parties to the ICC Statute.57 A
combination of factors may be seen as underlying the ICJ’s integrative approach,
including its status as the UN’s principal judicial organ, its permanent nature,
and the fact that the substantive law in question is contained in a widely ratified
convention. These factors give the ICJ the status and the stability to promote the
enforcement of the law on genocide by multiple fora.

III. The Required Intent

In contrast to other aspects of the law on genocide examined in Section IV, the
judicial practice on the required intent for genocide is characterized by genuine
fragmentation. There are conflicting and contradictory decisions among interna-
tional courts and even between chambers of those courts. There are also tensions
between the interpretation of the law in judicial decisions and in constitutive
instruments.
Several factors appear to be the cause of this fragmentation. First, although
the Genocide Convention (and its verbatim reproduction in the statutes of the
international criminal tribunals) is comprehensive in coverage, it is also brief and
vague on certain details, such as the contours of the specific intent required for
genocide. Such strategic ambiguity is frequently deployed in treaty-making to
enable states to reach consensus, but it can also lead to diverging interpretations
of the treaty provisions when it comes to apply them to real cases. Second, the
ad hoc nature of the ICTY and ICTR has encouraged an innovative approach
to decision-making in early cases. Confronted with novel legal questions, both
Tribunals have taken bold decisions to develop the law.58 Such decisions have
not always been taken with regard to existing case law. As case law has accu-
mulated, and the common Appeals Chamber has intervened to provide defini-
tive interpretations, some divergences have eventually been reconciled over time.
This has not yet happened with respect to the required intent. Finally, the lack
of a common approach to drafting Judgments within and among the interna-
tional criminal courts heightens the risk of fragmentation as courts may employ

⁵⁵ Zappala (n 53) 277.

⁵⁶ Al Bashir (Second Warrant of Arrest) (n 47).
⁵⁷ Goran Slüiter, ‘Using the Genocide Convention to Strengthen Cooperation with the ICC in the
Al Bashir Case’ (2010) 8 JICJ 365.
⁵⁸ See generally Allison Marston Danner, ‘When Courts Make Law: How the International
Criminal Tribunals Recast the Laws of War’ (2006) 59 Vand LR 101; see also Chapter 5(II) below.
 III. The Required Intent 25
diverse techniques for assessing evidence, studying case law from other courts,
and expressing legal reasoning.
Article II of the Genocide Convention provides:
In the present Convention, genocide means any of the following acts commit-
ted with intent to destroy, in whole or in part, a national, ethnical, racial or
religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
The question of intent arises in two ways in Article II. First, the chapeau of the
Article refers to the specific or special intent: the ‘intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such’.59 This specific intent
is the defining characteristic of genocide and is invoked, discussed, and analysed
in every judgment that concerns this crime. Second, paragraphs (a) through (e)
list acts that each contain their own mental element.60
There are four aspects of specific intent that have generated various lines
of reasoning in the different courts: whether the intent is purpose-based or
knowledge-based, whether the specific intent can be inferred from a pattern of
acts, whether the existence of a plan or policy is an essential element, and how
different modes of liability may affect the requirement of specific intent.
Two streams of reasoning can be identified in the case law of the ICTY and
the ICTR, and both have occasionally appeared in the same judgment. The
first can be called the ‘purpose-based approach’61 or the ‘individualized mens rea
requirement’.62 This approach requires proof that the accused personally bore
the criminal intent to destroy a national, ethnical, racial, or religious group as
such; he or she consciously desired the prohibited acts committed to result in the
destruction of the protected group. The second stream of reasoning is called the

⁵⁹ This is sometimes called the dolus specialis. In the ICTY Jelisić appeal, the Prosecutor argued that
the concept of dolus specialis set too high a standard and differed from the common law concepts of
specific or special intent. The Appeals Chamber simply held that the Trial Chamber had used the term
dolus specialis as if it meant ‘specific intent’ (Jelisić Appeals Judgment (n 40) para 51). See William A
Schabas, ‘Developments in the Law of Genocide’ (2002) 5 YBIHL 131, 147.
⁶⁰ ‘Killing’ and ‘causing serious bodily or mental harm’ must be intentional acts. The infliction
of conditions of life must be ‘deliberate’ and ‘calculated’ to bring about the group’s destruction. The
prevention of births must be ‘imposed’ and the transfer of children must be ‘forcible’. All of these
are ‘conscious, intentional or volitional acts’: Bosnia Genocide Judgment (n 10) para 186 (referring
to ILC, ‘1996 Draft Code of Crimes against Peace and Security of Mankind’ YB ILC 1996 Vol II
(1996), Vol II, Part Two, commentary on Art 17, at 44, para 5).
⁶¹ This label is used by Claus Kress, ‘The Darfur Report and Genocidal Intent’ (2005) 3 JICJ 562,
565 (2005) (hereinafter Kress, ‘The Darfur Report’).
⁶² Jones, ‘Whose Intent is it Anyway?’ (n 15) 471.
26 Genocide

‘knowledge-based approach’63 or the ‘genocidal intent as descriptive of the overall

plan’.64 Under this approach, it must be proven that a genocidal plan character-
ized by the specific criminal intent existed, and that the accused participated.65
The perpetrator acted in furtherance of a campaign targeting members of a pro-
tected group and knew that the goal of the campaign was that group’s destruc-
tion, in whole or in part.66
The purpose-based approach was taken by the ICTY Trial Chamber in the
Jelisić case. Jelisić was a Bosnian Serb camp commander who styled himself as
‘the Serbian Adolf ’ and admitted to killing a large number of Bosnian Muslims.
He pleaded guilty to crimes against humanity and war crimes, but not guilty to
genocide. The Trial Chamber emphasized that Jelisić performed executions ran-
domly and that ‘the behaviour of the accused appears to indicate that, although
he obviously singled out Muslims, he killed arbitrarily rather than with the clear
intention to destroy a group’.67 The Chamber could not convict Jelisić of geno-
cide in the absence of proof beyond a reasonable doubt that he personally acted
with the specific intent to destroy Bosnian Muslims as a group. This interpreta-
tion of intent was confirmed on appeal.68
In the Krstić case, the purpose-based approach was used by the Trial Chamber
to find that Krstić, first the Chief of Staff and later the Commander of the
Drina Corps (a formation of the Bosnian Serb Army), had committed geno-
cide in Srebrenica in 1995. The Trial Chamber cast doubt on whether the
knowledge-based approach, under which there is no need to show that destruc-
tion was the goal of the act, reflected customary international law at the time
of acts involved in the case. It chose to ‘adhere to the characterization of gen-
ocide which encompasses only acts committed with the goal of destroying all
or part of a group’.69 Nonetheless, on appeal, the Appeals Chamber used the
knowledge-based approach to find Krstić guilty not of committing genocide as
a principal perpetrator, but of aiding and abetting genocide.70 The interaction
between specific intent and the mode of liability seems to have led to disparate
outcomes at the trial and appeal level, although this is not clearly expressed in
the Appeals Judgment. This represents a missed opportunity for integrating this
area of law.

⁶³ See Kress, ‘The Darfur Report’ (n 61) 565 and Alexander K A Greenawalt, ‘Rethinking
Genocidal Intent: the Case for a Knowledge-Based Interpretation’ (1999) 99 Colum LR 2259.
⁶⁴ Jones, ‘Whose Intent is it Anyway?’ (n 15) 476.
⁶⁵ ibid.
⁶⁶ Greenawalt, ‘Rethinking Genocidal Intent: the Case for a Knowledge-Based Interpretation’
(n 63) 2288.
⁶⁷ Prosecutor v Jelisić (Judgment) IT-95-10-T, T Ch I (14 December 1999) paras 106, 108 (herein-
after Jelisić Trial Judgment).
⁶⁸ Jelisić Appeals Judgment (n 40) paras 51–52.
⁶⁹ Prosecutor v Krstić (Judgment) IT-98-33-T, T Ch I (2 August 2001) para 571 (hereinafter Krstić
Trial Judgment).
⁷⁰ Krstić Appeals Judgment (n 38) paras 138–140. See also para 595 where the Tribunal states the
accused ‘could not have failed to know’ that a genocidal enterprise was underway.
 III. The Required Intent 27
The ICTR’s first Judgment dealing with genocide was in the Akayesu case.
Akayesu was a bourgmestre in a commune in Rwanda, with exclusive control over
the communal police. The Trial Chamber appeared to adopt the purpose-based
approach, emphasizing the specific intent requirement and stating that for any
of the acts to be a constitutive element of genocide, ‘the act must have been
committed against one or several individuals, because such individual or indi-
viduals were members of a specific group, and specifically because their belonged
to this group’.71 However, two paragraphs later the Judgment invokes the
knowledge-based approach, observing ‘it is possible to deduce the genocidal
intent inherent in a particular act charged from the general context of the per-
petration of other culpable acts systematically directed against that same group,
whether these acts were committed by the same offender or by others’.72 This
reasoning suggests that the fact that others are committing the same act per se
permits the inference that the accused, while committing a similar act, possessed
the specific intent.73 The contradictory reasoning may be a result of drafting of
different sections of the Judgment by different legal officers, according to the
internal practice of the ICTR. Unfortunately, the question of the test for intent
did not arise on appeal so it could not be re-examined.
The ICTR’s subsequent case law has tended to adopt the knowledge-based
approach, finding that a genocidal plan as a whole existed in Rwanda in 1994
and then testing whether the accused participated in that plan. In the Kayishema/
Ruzindana case, the Trial Chamber found that the two accused—Prefect of
Kibuye Prefecture and a commercial trader, respectively—played pivotal roles
in executing the national plan to commit genocide.74 This approach was upheld
on appeal.75 In the Rutaganda case, the Trial Chamber was satisfied that the
accused, a businessman and second vice president of the National Committee
of the Interahamwe, had indeed possessed the intent to destroy the Tutsi group
as such.76 Yet, it went on to establish a general context within which acts aimed
at destroying the Tutsis were committed and that the accused’s acts were part of

⁷¹ Prosecutor v Akayesu (Judgment) ICTR-96-4-T, T Ch I (2 September 1998), para 521 (hereinaf-

ter Akayesu Trial Judgment) (emphasis added).
⁷² ibid para 523.
⁷³ Jones, ‘Whose Intent is it Anyway?’ (n 15) 475.
⁷⁴ Prosecutor v Kayishema/Ruzindana (Judgment) ICTR-95-1-T, T Ch II (21 May 1999) paras
531–545 (hereinafter Kayishema/Ruzindana Trial Judgment).
⁷⁵ Prosecutor v Kayishema/Ruzindana (Judgment) ICTR-95-1-A, A Ch (1 June 2001) (hereinafter
Kayishema/Ruzindana Appeals Judgment). As regards Kayishema, he did not raise any challenge to
the legal approach of the Trial Chamber to establishing specific intent. Ruzindana did raise such a
challenge and the Appeals Chamber held that the Trial Chamber’s approach as to how Ruzindana’s
intent may be determined was not erroneous: ‘explicit manifestations of criminal intent are, for obvi-
ous reasons, often rare in the context of criminal trials. In order to prevent perpetrators from escap-
ing convictions simply because such manifestations are absent, the requisite intent may normally be
inferred from relevant facts and circumstances’ (para 159).
⁷⁶ Prosecutor v Rutaganda (Judgment) ICTR-96–3-T, T Ch I (6 December 1999) para 399 (herein-
after Rutaganda Trial Judgment).
28 Genocide

this overall context.77 On appeal, Rutaganda argued that the Trial Chamber had
erred in law in finding that the specific intent could be inferred from the ‘general
context of the perpetration of acts by others’. This ground of appeal was dis-
missed, with the Appeals Chamber highlighting the finding that Rutaganda had
been found personally to possess the requisite intent based on his specific acts.
Moreover, the Appeals Chamber said that the reference that the Trial Chamber
made to the general context was appropriate since ‘in the absence of explicit,
direct evidence, specific intent may be inferred from other facts, such as the gen-
eral context and the perpetration of other acts systematically directed against a
given group’.78 As the case law accrues, a compromise approach appears to be
emerging at the ICTR in which the judges find both a plan embodying the intent
to destroy the group and an individualized intent on the part of the accused.79
Underlying the different judicial approaches to the required intent is a policy
choice. Proponents of the purpose-based approach argue that genocide is unique
by reason of its specific mens rea. It should therefore not be permitted to lose
its specificity and identity as the ultimate crime for the sake of expanding its
criminalization and facilitating individual convictions.80 An additional argument
based on the principles of treaty interpretation is that the benefit of the doubt
should accrue to the accused (in dubio pro reo), meaning that the higher mental
threshold should be applied. There is no support in the travaux préparatoires for a
lower knowledge-based intent requirement.81
The counter-argument places emphasis on the fact that genocide is a sys-
temic crime and the requisite intent should be construed accordingly. The
knowledge-based approach also harmonizes the definition of genocide with that
of crimes against humanity. The mens rea required is the intent to commit the
underlying offence (eg murder) combined with knowledge of the broader context
in which that offence occurs. This approach recognizes the origins of genocide as
a special type of crime against humanity. It is argued that the knowledge-based
approach does not affect the specificity of the crime because that still exists in the
collective goal of destroying a protected group, as opposed to the goal of attack-
ing a civilian population in the case of crimes against humanity.82
⁷⁷ ibid para 400.
⁷⁸ Prosecutor v Rutaganda (Judgment) ICTR-96-3-A, A Ch (26 May 2003) paras 528–529.
⁷⁹ Jones, ‘Whose Intent is it Anyway?’ (n 15) 478, who made this observation as regards the
Rutaganda Trial Judgment (n 76).
⁸⁰ Mettraux, International Crimes and the Ad Hoc Tribunals (n 3) 212–213.
⁸¹ The Report of the Ad Hoc Committee on Genocide, UN Doc E/794 (24 May 1948) noted
that the majority view was that the inclusion of ‘specific motives (dolus specialis) was indispensable’:
Abtahi and Webb (n 20) 1124. In the Sixth Committee, there were debates on which words to use to
express the required intent (see the 76th and 77th meetings in UN Docs A/C.6/SR.76 (16 October
1948) and A/C.6/SR.77 (18 October 1948)), but the clear majority of representatives agreed that
the main feature of genocide was the intent to destroy a specific group. A proposal to leave reference
to ‘motives’ entirely out of the draft Convention was rejected 28 votes to 9 with 6 abstentions in the
76th meeting, UN Doc A/C.6/SR.76: Abtahi and Webb (n 20) 1429.
⁸² See Kress, ‘The Darfur Report’ (n 61) 572–576 and Jones, ‘Whose Intent is it Anyway?’ (n 15)
478–480.
 III. The Required Intent 29
The ICC has not yet faced this policy choice in a case. In the absence of actual
judicial practice, one may look to the Court’s detailed constitutive documents,
in particular the ICC Elements of Crimes, for an indication of whether it would
tend towards the purpose-based or knowledge-based approach. The Elements of
Crimes is a document adopted not by the judges, but by a two-thirds majority of
the members of the Assembly of States Parties (ASP), the plenary political body.
The political control over this important legal document is an indication of the
distinct institutional context of the ICC. While the ICJ, ICTY, and ICTR are
embedded in the UN system, the ICC exists in a separate treaty-based system,
largely due to the resistance of powerful states to the Court.83 The ICJ, ICTY, and
ICTR judges have control over the creation and amendment of the rules of pro-
cedure and related constitutive documents whereas the ICC has placed this task
in the hands of the ASP, with consultation mechanisms for obtaining the views
of the judiciary.84 As a result, the Elements of Crimes may tend to reflect a more
political viewpoint and to carry over some of the ambiguity that was employed
in drafting the ICC Statute.
The Elements of Crimes document has an ambivalent status in the legal frame-
work of the ICC. On the one hand, Article 9 of the ICC Statute provides that the
‘Elements of Crimes shall assist the Court in the interpretation and application of
articles 6, 7 and 8, consistent with the Statute’,85 implying that they are simply an
aid and can be departed from. On the other hand, Article 21 of the ICC Statute
on General Principles of Law states that ‘The Court shall apply (a) In the first
place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence’,
apparently elevating the Elements of Crimes to a core source of law. A 2009 deci-
sion of the ICC Pre-Trial Chamber suggests that the Elements of Crimes must be
applied; it remains to be seen if other Chambers follow this reasoning.86
As regards genocide, the Elements of Crimes includes the purpose-based
approach by providing that an element of the crime of genocide under Article
6 of the ICC Statute is that ‘the perpetrator intended to destroy, in whole or
in part, that national, ethnical, racial or religious group, as such’. However, the
introduction to the Elements of Crimes for Article 6 introduces the possibility of
a knowledge-based approach:
Notwithstanding the normal requirement for a mental element provided for in article 30,
and recognizing that knowledge of the circumstances will usually be addressed in proving

⁸³ See Chapter 5(II)(C).

⁸⁴ Amendments may be proposed by an absolute majority of the judges (as well as by any state
party or the prosecutor), but such amendments must once again be adopted by a two-thirds majority
of the members of the ASP. ICC Statute Art 9(2).
⁸⁵ Emphasis added.
⁸⁶ Prosecutor v Jean-Pierre Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) on the
Charges against Jean-Pierre Bemba Gombo) ICC 01/05–01/08, P-T Ch I (15 June 2009) paras 136,
194, 353. See also Kai Ambos, ‘Critical Issues in the Bemba Confirmation Decision’ (2009) 22 LJIL
715.
30 Genocide
genocidal intent, the appropriate requirement, if any, for a mental element regarding this
circumstance will need to be decided by the Court on a case-by-case basis.87
The ‘normal requirement for a mental element’ referred to in Article 30 is that
‘a person shall be criminally responsible and liable for punishment for a crime
within the jurisdiction of the Court only if the material elements are committed
with intent and knowledge’.88 The ICC Elements thus include both approaches,
reflecting the contradictory case law of the ICTY and the ICTR rather than pro-
viding a point of integration.
The ICJ’s 2007 Bosnia Genocide Judgment provided such a point of inte-
gration on the policy choice between the purpose-based and knowledge-based
approaches. Although the ICJ was concerned with the question of intent from
the viewpoint of state responsibility, evidence of the specific intent possessed by
key individuals was a condition for a finding of state responsibility. The Court
adopted a purpose-based approach, stating that the acts listed in Article II of the
Genocide Convention must be committed with the intent to destroy the group
as such in whole or in part.89 This intent must be conclusively shown in relation
to each specific incident.90 The ICJ did not refer to the different approaches
taken at the ICTY and ICTR on this point. If it had done so, it would have
enhanced the integrative effect of the Bosnia Genocide Judgment. Instead, the
ICJ quoted a passage from the ICTY Kupreškić case contrasting the discrimina-
tory intent of persecution with that of genocide—a slightly different point of
law.91
Nonetheless, the ICJ took a clear position in respect of whether a pattern of
acts can be said to evidence the specific intent to commit genocide. Bosnia and
Herzegovina had relied on the existence of an overall plan to commit genocide,
indicated by the pattern of acts of genocide committed throughout the territory
against persons identified on the basis of their belonging to a specified group.92
Bosnia and Herzegovina argued that the specific intent could be inferred from
the pattern of atrocities. The Court rejected this argument:
The dolus specialis, the specific intent to destroy the group in whole or in part, has to be
convincingly shown by reference to particular circumstances, unless a general plan to that
end can be convincingly demonstrated to exist; and for a pattern of conduct to be accepted
as evidence of its existence, it would have to be such that it could only point to the exist-
ence of such intent.93

⁸⁷ International Criminal Court, ‘Elements of Crimes’ (9 September 2002) ICC Doc ICC-ASP/1/3
(part II-B) (hereinafter ICC Elements of Crimes).
⁸⁸ ICC Statute Art 30(1). Paragraph 3 of the same Article defines knowledge as ‘awareness that a
circumstance exists or a consequence will occur in the ordinary course of events’.
⁸⁹ Bosnia Genocide Judgment (n 10) paras 187–189.
⁹⁰ ibid para 370.
⁹¹ ibid para 188.
⁹² ibid para 370.
⁹³ ibid para 373.
 III. The Required Intent 31
In Brdjanin, the ICTY Trial Chamber noted it was ‘generally accepted’ in the
jurisprudence of the ICTY and of the ICTR that, in the absence of direct
evidence, the specific intent can be inferred from ‘the facts, the concrete circum-
stances, or a “pattern of purposeful action”’.94 In Krstić, the Appeals Chamber
phrased this idea as inferring intent from evidence of ‘other culpable acts system-
atically directed against the same group’.95 In the Kayishema case, the Appeals
Chamber spoke more broadly of inference ‘from relevant facts and circumstanc-
es’.96 In each of these cases, the Tribunals have not specified whether the existence
of specific intent has to be the only possible inference from the facts or pattern of
facts. In this sense, the standard set by the ICJ in the Bosnia Genocide case may be
higher than that adopted by the ICTY and ICTR. Integration on this issue may
be achieved in two ways. First, the ad hoc tribunals may adopt the ICJ approach
of specific intent being the only possible inference. Second, the ICTY and ICTR
may retain the broader approach to inference, but explain why it is justified; this
explanation could rest on differences between individual and state responsibility
or the features of the conflict within the jurisdiction of the tribunal.
A related but different question is whether the existence of a plan or policy is
an ingredient of the crime of genocide. Can one person—without state involve-
ment—commit genocide? This question confronted the ICTY in the Jelisić case.
The Trial Chamber held that a lone individual could in theory commit genocide
without that person’s specific intent having been supported by an organization in
which other individuals participated.97 The Appeals Chamber agreed, stating that
the existence of a plan or policy is not a legal ingredient of the crime.98 It added,
however, that the existence of a plan or policy may become an important factor
in determining the state of mind of the accused and facilitating the proof of the
genocide itself if the person can be shown to have known of the plan and to have
participated in it.99 In sum, the ICTY’s case law holds that although the crime of
genocide will usually take place in the context of a massive attack coordinated by
the state or an organization, this is not an element of the definition of the crime.

⁹⁴ Prosecutor v Brdjanin (Judgment) IT-99-36-T, T Ch II (1 September 2004) para 704 (hereinaf-

ter Brdjanin Trial Judgment), referring also inter alia to Prosecutor v Stakić (Judgment) IT-97-24-T,
T Ch II (31 July 2003) para 526 (hereinafter Stakić Trial Judgment). In the Brdjanin case the Trial
Chamber found a ‘campaign of persecutions’ but did not deduce from that the specific intent required
for the crime of genocide (para 984). Similarly, in Stakić, a pattern of atrocities against Muslims was
proven, but not the requisite specific intent (para 546).
⁹⁵ Krstić Appeal Judgment (n 38) paras 33–34 (referring also the Jelisić Appeal Judgment (n 40)
para 47). In the event, the Appeals Chamber did not rely on pattern to convict Krstić; specific intent
was inferred from ‘the scale of the killing, combined with the VRS Main Staff’s awareness of the det-
rimental consequences it would have for the Bosnian Muslim community of Srebrenica and with the
other actions the Main Staff took to ensure that community’s physical demise’ (para 35).
⁹⁶ Kayishema Appeal Judgment (n 75) para 159.
⁹⁷ Jelisić Trial Judgment (n 67) para 100.
⁹⁸ Jelisić Appeal Judgment (n 40) para 48.
⁹⁹ ibid.
32 Genocide

Crimes against humanity, on the other hand, do require proof of a ‘widespread or

systematic attack directed against a civilian population’.100
The ICC Elements of Crimes departs from the case law of the ICTY on this
question of whether genocide may be found in relation to isolated acts of an
individual, which raises the potential for fragmentation when the ICC begins to
decide cases concerning allegations of genocide. The ICC Elements of Crimes
requires proof that the genocide occurred ‘in the context of a manifest pattern
of similar conduct directed against that group or was conduct that could itself
effect such destruction’.101 This element was added during the drafting process to
meet concerns about the risk of diluting the crime of genocide if it were to cover
isolated crimes.102 The first limb (‘the context of a manifest pattern of similar
conduct’) results in adding to the definition of genocide a contextual require-
ment similar to that of crimes against humanity (‘a widespread or systematic
attack’). The second and alternative limb (‘conduct that could itself effect such
destruction’) suggests the need for proof of a massive attack or systematic policy
of destruction, rather than an isolated event, even if committed with the specific
intent. By including this element, the Elements of Crimes includes the idea of
magnitude in the definition of genocide. This approach is compatible with the
ICC’s purpose of prosecuting those responsible for ‘the most serious crimes of
concern to the international community as a whole’,103 but it does diverge from
the text of the Genocide Convention, the intention of the drafters,104 and the
case law of the ICTY.

¹⁰⁰ Krstić Appeals Judgment (n 38) para 223; Prosecutor v Tadić (Judgment) IT-94–1-A, A Ch (15
July 1999) para 248 (hereinafter Tadić Appeals Judgment). See also Prosecutor v Kunarac and other
(Judgment) IT-96-23 & 23/1-A, A Ch (12 June 2002) paras 85, 96, 102. The words ‘widespread
or systematic attack’ appear in ICTR Statute Art 3 and ICC Statute Art 7. They are an accepted
part of the ICTY’s jurisprudence even though the words themselves do not appear in that Tribunal’s
Statute.
¹⁰¹ ICC Elements of Crimes 2–4.
¹⁰² Mettraux, International Crimes and the Ad Hoc Tribunals (n 3) 204; Roy S K Lee and Hakan
Friman, The International Criminal Court: elements of crimes and rules of procedure and evidence
(Transnational Publishers 2001) 45–47.
¹⁰³ ICC Statute Preamble para 4.
¹⁰⁴ The travaux préparatoires of the Genocide Convention reveal that the drafters did believe that
genocide could be committed through an isolated act of an individual. In the Sixth Committee,
France proposed to add the words ‘It is committed, encouraged or tolerated by the heads of a
State’ to Art II of the draft Convention (A/C.6/224 and A/C.6/224/Corr.1). Various representa-
tives (USA, Sweden, Uruguay, Cuba, Philippines, Brazil, Yugoslavia, Haiti, Dominican Republic)
opposed this amendment, stating that it would not allow the possibility that genocide could be
committed by private individuals without any participation by rulers. The French amendment was
rejected 40 votes to 2, with 1 abstention (A/C.6/SR.79 and A/C.6/SR.80): Abtahi and Webb (n 20)
1460–1472. In addition, in the Ad Hoc Committee the concept of ‘premeditation’ was raised as a
legal ingredient of the crime of genocide. In the Sixth Committee, this element was rejected on the
grounds that it was superfluous given the specific intent. It follows that the drafters did not believe
the existence of a plan or policy to be an element of the crime. The Sixth Committee voted 27 to 10
with 6 abstentions to delete the word ‘deliberate’ from the text drafted by the Ad Hoc Committee
because it carried these overtones of premeditation (A/C.6/SR/73): Abtahi and Webb (n 20) 1379.
 III. The Required Intent 33
Finally, the international courts have been grappling with how (if at all) the
specific intent for genocide may be affected by the way in which the person or
entity was involved. In other words, whether the mode of liability dispenses with
the requirement of specific intent.105 This issue is most controversial when an
accused person is charged with genocide under modes of liability that do not
appear in the text of the Genocide Convention, such as command responsibility
and joint criminal enterprise.106 In such situations, courts are operating outside
of the Convention framework and with limited state practice upon which to
draw.
With respect to command responsibility, in general the commander is to be
held responsible for the crimes of his or her subordinates if he or she ‘knew or,
owing to the circumstances at the time, should have known’ that the subordi-
nates were committing or about to commit such crimes and failed to prevent or
punish them.107 This first limb uses a knowledge standard and the second limb
an objective negligence standard. The ICTR is the only tribunal to date to have
addressed how this mode of liability interacts with the specific intent required
for the crime of genocide. In one case it has convicted a person of genocide on
the basis of command responsibility using the knowledge standard108 and other
convictions have included elements of command responsibility.109 However, in
¹⁰⁵ The issue of complicity is addressed in Section V(B) below.
¹⁰⁶ ICTY Statute Arts 7(3) and 7(1); ICTR Statute Arts 6(3) and 6(1); ICC Statute Art 28.
The concept of joint criminal enterprise does not appear in any of the Statutes—it is completely
judge-made law. See Allison Marston Danner and Jenny S Martinez, ‘Guilty Associations: Joint
Criminal Enterprise, Command Responsibility, and the Development of International Criminal
Law’ (2005) 93 Cal LR 75. The acts in Art III of the Genocide Convention have been interpreted
in the case law and Statutes of the ICTY, ICTR, and the Statute of the ICC as illustrative, rather
than exhaustive so that other modes of liability may be applicable to the crime of genocide: ICTY
Statute Art 7, ICTR Statute Art 6, and ICC Statute Art 25; Akayesu Trial Judgment (n 71) para 546,
and Krstić Appeals Judgment (n 38) paras 138–139. See Mettraux, International Crimes and the Ad
Hoc Tribunals (n 3) 261.
¹⁰⁷ ICTY Statute Art 7(3); ICTR Statute Art 6(3); ICC Statute Art 28. The ICC Statute uses a
slightly different knowledge standard for civilian (as opposed to military) commanders: ‘The supe-
rior either knew, or consciously disregarded information which clearly indicated, that the subor-
dinates were committing or about to commit such crimes’ (Art 28(b)(i)). See, generally, Guénaël
Mettraux, The Law of Command Responsibility (OUP 2009).
¹⁰⁸ Prosecutor v Musema (Judgment) ICTR-96-13-A, T Ch I (27 January 2000) paras 894–895
(hereinafter Musema Trial Judgment). The Trial Chamber however noted that Musema was per-
sonally present at the attack sites and ‘abetted’ the commission of the genocidal acts. This would
suggest that complicity through aiding and abetting would have been the more appropriate mode
of liability. The Appeals Chamber Judgment did not discuss the interaction between command
responsibility and genocide.
¹⁰⁹ In Prosecutor v Serushago (Sentence) ICTR-98-39, T Ch I (5 February 1999) the accused was
convicted of genocide, on the basis of command responsibility, pursuant to his guilty plea. There
was evidence that suggested that his role was more that of principal or accomplice rather than com-
mander. In Prosecutor v Kambanda (Judgment and Sentence) ICTR-97-23, T Ch (4 September
1998) the accused pleaded guilty to genocide and the indictment included reference to command
responsibility, but there was evidence that he had actually given orders to commit the genocide
in his capacity as Prime Minister of Rwanda. In Kayishema/Runzindana Trial Judgment (n 74),
Kayishema was found guilty of genocide on the basis of command responsibility, but the ICTR
also held that he was responsible as a principal and accomplice, paras 228, 555, and 559. As for the
34 Genocide

each of these cases the facts have been much closer to complicity or joint criminal
enterprise or there has been evidence that the accused actually participated in the
genocidal acts.110 Some cases have also involved guilty pleas. This line of ICTR
jurisprudence thus does not constitute persuasive authority for the contention
that specific intent is not required for a conviction for genocide on the basis
of command responsibility and is unlikely to provide a point of integration for
other courts.111
Joint criminal enterprise is a mode of liability that also does not require proof
that the accused intended to commit the crime. It exists where there is ‘an under-
standing or arrangement amounting to an agreement between two or more per-
sons that they will commit a crime’.112 In what is called the ‘third category’ or
‘extended form’ of joint criminal enterprise, the participants share a common
plan to carry out a particular plan and one of them (the principal) commits a
crime that falls outside of the intended joint criminal enterprise but which was
a ‘natural and foreseeable consequence’.113 In such a scenario, the other partici-
pants can be held responsible for that foreseeable crime. The ICTY judges have
been debating the application of this mode of liability to the crime of genocide.
At the trial stage in the Brdjanin case, the Chamber held that liability for geno-
cide under the third category of joint criminal enterprise required the accused
to possess the specific intent.114 On interlocutory appeal, it was held that the
Trial Chamber had erred in suggesting that specific intent had to be shown; the
accused could be convicted of genocide where genocide was a natural and fore-
seeable consequence of the joint criminal enterprise.115 The contrary view was
taken by the Trial Chamber in the Stakić case, which held that specific intent was
required for third category joint criminal enterprise.116 This point was not raised

ICTY, in Krstić, the accused was charged with genocide on the basis of a joint criminal enterprise
and as a commander. The Trial Chamber did not pronounce directly on the command responsibility
aspect, but did note that Krstić had been ‘aware of the genocidal objectives’ (Krstić Trial Judgment
(n 69) at para 648) of the operations in Srebrenica and thus suggested that knowledge may have suf-
ficed for a conviction for genocide under ICTY Statute Art 7(3). See Mettraux, International Crimes
and the Ad Hoc Tribunals (n 3) 262, n 103.
¹¹⁰ See Schabas, ‘Developments in the Law of Genocide’ (n 59) 150.
¹¹¹ Mettraux argues that the knowledge requirement exists so that a superior may not be held
responsible for crimes of which he or she has no knowledge. It does not follow that such knowledge
is sufficient to establish his or her guilt, regardless of the crime charged. It is however possible to
imagine a scenario where subordinates commit crimes without genocidal intent where their com-
mander could be convicted of genocide because he or she possessed the specific intent and knew or
had reason to know of the acts of the subordinates: Mettraux, International Crimes and the Ad Hoc
Tribunals (n 3) 262–263.
¹¹² Prosecutor v Krnojelac (Judgment) IT-97-25-T, T Ch II (15 March 2002) para 80 (hereinafter
Krnojelac Trial Judgment).
¹¹³ Tadić Appeals Judgment (n 100) para 204ff; Prosecutor v Vasiljević (Judgment) IT-98-32-A, A
Ch (25 February 2004) para 99.
¹¹⁴ Prosecutor v Brdjanin (Decision on Motion for Acquittal Pursuant to Rule 98bis) IT-99-36-R77,
T Ch II (19 March 2004) paras 56–57.
¹¹⁵ Prosecutor v Brdjanin (Decision on Interlocutory Appeal) IT-99–36 (19 March 2004) para 10.
¹¹⁶ Stakić Trial Judgment (n 94) paras 530, 558.
 IV. Other Aspects of Article II of the Convention 35
on appeal. The state of law thus remains fragmented even within the ICTY.117 The
fragmentation of the law on this question appears to be a result of uncertainty
about joint criminal enterprise itself (a concept that was judicially created by the
ICTY in its early years), the lack of coordination and dialogue among chambers,
and the controversy inherent in stretching and manipulating the requirement of
specific intent.
In sum, the existing practice on the required intent for genocide—contained
in both judicial decisions of the various courts and the constitutive instruments
of the ICC—reveals a situation of genuine fragmentation. Some of this may be
attributed to a period of transition during which the various courts and cham-
bers explore different approaches to a legal problem before settling on the best
approach. However, there is now a sufficient body of case law and courts are still
missing opportunities to reconcile their decisions and promote the integration
of the law on this topic. This suggests that other factors are encouraging the
divergent approaches, including the brevity of the Convention’s wording on this
point, the ad hoc nature of some of the courts, and the disparate drafting and
reasoning processes being employed. These factors may become less important
over time as the amount of case law accumulates, as occurred with the legal issues
examined in the next section.

IV. Other Aspects of Article II of the Convention

The meaning of Article II of the Genocide Convention—other than the required
intent—enjoys a large degree of consensus among international courts. This
aspect of the law illustrates that integration and fragmentation is a dynamic proc-
ess and can reduce or intensify over time. In this area, periods of contradictory
holdings among courts have given way to agreement on most points relating to
the nature of the protected group, the nature of the destruction, and the con-
cept of ‘in whole or in part’. This genuine integration appears to be a result of
coalescence around leading judgments, the emergence of points of agreement as
case law accrues, and the engagement in judicial dialogue, namely—the citation,
discussion, evaluation, application, or rejection of decisions. Such processes nec-
essarily require a certain amount of time. Judicial dialogue cannot be conducted,
for example, until there is sufficient body of case law to discuss and to give judges
a sense of where the key controversies lie. Quite apart from these temporal mat-
ters, the fact that the Genocide Convention provides a common starting point
for such dialogue also tends to encourage integration.

¹¹⁷ As mentioned above, the ICC Statute includes the concept of ‘common purpose’ rather than
joint criminal enterprise. The judges have not yet had an opportunity to examine this provision
in a case involving genocide, but the text of the Statute suggests that knowledge may suffice for a
conviction for genocide.
36 Genocide

A. Nature of the protected group

Article II of the Genocide Convention refers to four protected groups: national,
ethnical, racial, or religious. The international courts and tribunals have reached
an integrated position on whether Article II contains an exhaustive list, how
membership of a group is to be determined, and how each group may be defined.
The uncertainties that do remain are due in part to the reluctance of the ICTR
and the ICTY clearly to identify the groups that the victims of the genocides in
Rwanda and Srebrenica belonged to.
Among the international courts and tribunals under examination, the ICTR
is the only court that has attempted to argue that the list of protected groups in
Article II is not closed.118 In the Akayesu and Rutaganda Judgments, the Trial
Chamber (composed of the same judges in both cases) said that the prohibi-
tion on genocide may extend beyond the four groups to include all ‘stable and
permanent’ groups, meaning groups whose membership is determined by birth
in a continuous and irremediable manner.119 Subsequent ICTR Judgments
have neither endorsed nor rejected this view120 and the Appeals Chamber never
affirmed it. The ICTY has found that the customary international law on geno-
cide has not developed to include groups beyond the four listed in Article II of
the Convention.121 The ICJ has recognized that the list of groups is closed.122
This view is supported by the travaux préparatoires. During the drafting of the
Convention, the delegates debated whether to include other groups, such as
political, economic, and professional groups. Political groups were included in
Article II until very late in the drafting process, but the decision was ultimately
made to exclude political groups from the list in Article II.123 During the drafting

¹¹⁸ In a case in Mexico, a court ruled that a 1968 student massacre was genocide because govern-
ment officials plotted to ‘exterminate’ demonstrators, thus extending the definition of protected
groups to include students: Manuel Roig-Franzia, Washington Post (Washington, 13 July 2007). The
argument for including other groups (eg political, social and economic groups, women, homosexu-
als, elderly, mentally ill) has been made in the academic literature: Schabas, ‘Developments in the
Law of Genocide’ (n 59) 135, n 26–30.
¹¹⁹ Akayesu Trial Judgment (n 71) paras 507, 511, and 516; Rutaganda Trial Judgment (n 76) paras
56–68.
¹²⁰ Most have remained silent on the issue: Prosecutor v Niyitegeka (Judgment) ICTR-96-14-T, T
Ch I (16 May 2003); Prosecutor v Nahimana and others (Judgment) ICTR-99-52-T, T Ch I (3 De-
cember 2003); Prosecutor v Ntakirutimana (Judgment) ICTR-96-10-T and ICTR-96-17-T, T Ch I
(21 February 2003). George W Mugwanya, The Crime of Genocide in International Law: Appraising
the Contribution of the UN Tribunal for Rwanda (Cameron May 2007) 66–67.
¹²¹ See, for example, Jelisić Trial Judgment (n 67) para 69.
¹²² Bosnia Genocide Judgment (n 10) paras 193, 194.
¹²³ At its 75th meeting, the Sixth Committee decided to retain political groups in the list by 29
votes to 13, with 9 abstentions (UN Doc A/C.6/SR.75 (15 October 1948), Abtahi and Webb
(n 20) 1412). At the 128th meeting, a proposal was made by Egypt, Iran, and Uruguay to reconsider
excluding political groups. The United States spoke in favour of such an exclusion and the Commit-
tee decided by 26 votes to 4, with 9 abstentions to reconsider the question. It then voted 22 to 6,
with 12 abstentions, to exclude political groups from Art II (UN Doc A/C.6/SR.128 (29 November
1948), Abtahi and Webb (n 20) 1869–1870).
 IV. Other Aspects of Article II of the Convention 37
of the ICC Statute, the drafters debated whether to include social and political
groups, but they ultimately decided to remain with the four groups in Article II
of the Genocide Convention.124
What is clear from the case law is that a negative definition—defining a group
by what it is not—is not allowed. This is a position that has been reached after
an interim period of uncertainty. The Commission of Experts for the former
Yugoslavia appeared to endorse the negative definition approach in its 1994
Report.125 The 1999 Jelisić Trial Judgment agreed that ‘rejected’ individu-
als could ‘by exclusion, make up a distinct group’.126 However, the Stakić Trial
Chamber rejected this view, stating that the group must be defined positively.127
This approach was upheld on appeal and in subsequent ICTY cases.128 During
the Bosnia Genocide case, Bosnia and Herzegovina argued in favour of the nega-
tive definition and in its final submissions to the ICJ referred to ‘the non-Serb
national, ethnical or religious group within, but not limited to, the territory of
Bosnia and Herzegovina, including in particular the Muslim population’.129 The
ICJ rejected this approach, recalling that the group must have particular posi-
tive characteristics and that the words ‘as such’ in Article II mean that ‘the crime
requires an intent to destroy a collection of people who have a particular group
identity. It is a matter of who those people are, not who they are not’.130 The
ICJ referred to the Stakić Judgment of the ICTY and added that the travaux
préparatoires confirmed that a positive definition must be used.131 The ICJ’s clear
statement in the Bosnia Genocide Judgment can be said to have played a role
in crystallizing this legal question.132 This points to the potential of the ICJ to
play a prominent role in the international legal system by providing authoritative
interpretations based on its analysis of existing jurisprudence and practice. Such
a role need not require—and in fact may be impeded by—a formal appellate or
advisory jurisdiction.133

¹²⁴ Herman von Hebel and Darryl Robinson, ‘Crimes within the Jurisdiction of the Court’ in Roy
S Lee (ed), The International Criminal Court, the Making of the Rome Statute: Issues, Negotiations,
Results 89 (Springer 1999).
¹²⁵ UNSC ‘Final Report of the Commission of Experts Established Pursuant to Security Council
Resolution 780 (1992)’ (27 May 1994) UN Doc A/1994/674, para 96: ‘If there are several or more
than one victim groups, and each group as such is protected, it may be within the spirit and purpose
of the Convention to consider all the victim groups as a larger entity. The case being, for example,
that there is evidence that group A wants to destroy in whole or in part groups B, C and D, or rather
everyone who does not belong to the national, ethnic, racial or religious group A. In a sense, group
A has defined a pluralistic non-A group using national, ethnic, racial and religious criteria for the
definition.’
¹²⁶ Jelisić Trial Judgment (n 67) para 71.
¹²⁷ Stakić Trial Judgment (n 94) para 512.
¹²⁸ Stakić Appeals Judgment (n 40) paras 20–28; Brdjanin Trial Judgment (n 94) para 685.
¹²⁹ Bosnia Genocide Judgment (n 10) para 66 (emphasis added).
¹³⁰ ibid para 193.
¹³¹ ibid paras 194–195.
¹³² See William A Schabas, ‘Genocide Law in a Time of Transition: Recent Developments in the
Law of Genocide’ (2008) 61 Rutgers LR 161, 168 (hereinafter Schabas, ‘Genocide Law’).
¹³³ See Chapter 6(III)(A).
38 Genocide

The ICJ has played a similar leadership role in the debate on whether
membership in a protected group is an objective or subjective concept. The ear-
lier Judgments of the ICTR emphasized ‘objective’ criteria such as permanence
and stability.134 Later ICTR Judgments included ‘subjective’ criteria by looking at
how the perpetrator defined the group and how the victim identified himself or
herself with the group.135 Other Judgments included both subjective and objec-
tive dimensions.136 After a preference for the subjective approach was expressed in
some ICTY Trial Judgments,137 the Appeals Chamber clarified that the stigmatiza-
tion of the victims by the perpetrator was a criterion when defining the protected
group, but was not the sole criterion.138 In the Bosnia Genocide Judgment, the ICJ
observed that both the parties ‘essentially agree that international jurisprudence
accepts a combined subjective–objective approach. The issue is not in any event
significant on the facts of this case and the Court takes it no further’.139
The accumulation of case law on the nature of the protected group has made
several things clear: the list of four groups in Article II is closed, the group must be
defined positively, and a subjective–objective approach should be taken to defin-
ing membership of the group. Nonetheless, the ICTR, ICTY, and ICJ have been
surprisingly vague when defining the protected group in their Judgments.140 This
appears to spring from the political controversy inherent in the act of identifica-
tion in these cases. As regards Rwanda, the Tutsi and the Hutu share the same lan-
guage, culture, and religion, as well as basically the same physical characteristics.
The judges have pointed to the fact that the Belgian colonizers established a system
of identity cards differentiating between the two groups and the distinction was
confirmed by the self-perception of the members of each group.141 The judges have
been understandably reluctant to assign a label to this process of defining groups.

¹³⁴ Akayesu Trial Judgment (n 71) paras 512–515.

¹³⁵ Kayishema Trial Judgment (n 74) para 98; Musema Trial Judgment (n 108) para 161; Kajelijeli v
Prosecutor (Judgment) ICTR-98-44A-T, T Ch II (1 December 2003) para 811 (hereinafter Kajelijeli
Trial Judgment); Rutaganda Trial Judgment para 56. This has been called ‘a silent adjustment of
course’: Larissa Van den Herik, The Contribution of the Rwanda Tribunal to the Development of In-
ternational Law (Brill 2005) 132. Interestingly, the International Commission of Inquiry on Darfur
applied the subjective approach, relying on the ICTR case law, to conclude that the tribes being
attached ‘perceive each other and themselves as constituting distinct groups’: International Commis-
sion of Inquiry ‘Report of the International Commission of Inquiry on Darfur to the United Na-
tions Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004’ (25
January 2005) 129 (hereinafter Report of the International Commission of Inquiry on Darfur).
¹³⁶ Prosecutor v Bagilishema (Judgment) ICTR-95-1A-T, T Ch I (7 June 2001) para 65 (hereinafter
Bagilishema Trial Judgment).
¹³⁷ Jelisić Trial Judgment (n 67) para 70; Brdjanin Trial Judgment (n 94) para 683. See also Scha-
bas, ‘Developments in the Law of Genocide’ (n 59) 138–139.
¹³⁸ Stakić Appeals Judgment (n 40) para 25. See also Schabas, ‘Genocide Law’ (n 132) 164–165.
¹³⁹ Bosnia Genocide Judgment (n 10) para 191.
¹⁴⁰ For the ICTY and ICTR, see Harvard Law Association, ‘Developments in the Law: Interna-
tional Criminal Law’ (2000–2001)114 HLR 1943, 2014–2024.
¹⁴¹ Akayesu Trial Judgment (n 71) para 702. On occasion, the word ‘ethnical’ has been used to
refer to the Tutsis, but this practice is inconsistent: Kayishema Trial Judgment (n 74) paras 98, 523;
Akayesu Trial Judgment (n 71) para 702.
 IV. Other Aspects of Article II of the Convention 39
As for the Balkans, it is striking that the ICTY has failed to state which
protected group the victims of genocide in Srebrenica belonged to. In the
Krstić case the Trial Chamber identified the victims as the Bosnian Muslims of
Srebrenica, but remained vague as to what sort of group they represented. It
would seem that the Bosnian Muslims could fall into the ethnical or religious
categories. Interestingly, the ICJ also did not specify the nature of the protected
group in its Bosnia Genocide Judgment. After stating that the targeted group ‘must
in law be defined positively’, the Court proceeded to label the group ‘Bosnian
Muslims’ without reference to one of the four categories.142 This may be because
the ICJ did not wish to apply a label that the ICTY had not used. Another fac-
tor may be that some ambiguity in legal reasoning affords international courts
considerable flexibility and discretion in future cases. However, such ambiguity is
potentially in tension with the duty to give reasoned opinions143 and hinders the
development of a coherent body of law. Moreover, the law on genocide is a law
defined by its specificity, from the required intent to the limited enumeration of
acts to the closed list of protected groups. The problem of fitting victims into the
four categories is one that will continue to arise. The International Commission
of Inquiry on Darfur has grappled with how to define the Fur, Massalit, and
Zaghawa tribes who share the same language and religion as their attackers.144
The travaux préparatoires suggest that while the drafters clearly intended the
four categories in Article II to be exhaustive, they also saw the categories as over-
lapping and somewhat flexible. The term ‘ethnical’ in particular was intended
to ‘extend protection to doubtful cases’.145 As Schabas states, the four groups

¹⁴² Bosnia Genocide Judgment (n 10) para 196.

¹⁴³ ICJ Statute Art 56 and Prosecutor v Milutinović (Decision Refusing Milutinović Leave to
Appeal) IT-99-37-AR65.3, (3 July 2003) para 23, cited in Mettraux, International Crimes and the
Ad Hoc Tribunals (n 3) 229, n 105.
¹⁴⁴ Report of the International Commission of Inquiry on Darfur (n 135). The Commission ac-
knowledged that the tribes that had been the object of attacks (the Fur, Massalit, and Zaghawa
tribes) do not appear to make up ethnic groups distinct from the ethnic group to which the attack-
ers belong: ‘They speak the same language (Arabic) and embrace the same religion (Muslim). In
addition, also due to the high measure of intermarriage, they can hardly be distinguished in their
outward physical appearance from the members of tribes that allegedly attacked them. Furthermore,
inter-marriage and coexistence in both social and economic terms, have over the years tended to blur
the distinction between the groups. Apparently, the sedentary and nomadic character of the groups
constitutes one of the main distinctions between them’ (129). Nonetheless, applying the subjective
test of earlier ICTR cases, the Commission concluded that the tribes under attack were protected
under the Genocide Convention (130). In the event, the Commission concluded that genocide had
not occurred because the perpetrators did not possess the specific intent. Rather, ‘those who planned
and organized attacks on villages pursued the intent to drive the victims from their homes, primarily
for purposes of counter-insurgency warfare’ (4).
¹⁴⁵ This observation was made by the Swedish representative when proposing the addition of ‘eth-
nical’ in the 75th meeting of the Sixth Committee. The proposal was narrowly adopted 18 votes to
17, with 11 abstentions. Speaking in favour of the Swedish amendment, the representative of Haiti
noted that ‘intermingling of races in certain regions had made the problem of race so complicated
that it might be possible, in certain cases, to consider a given group as a racial group, although it
could not be denied classification as an ethnical group’ (UN Doc A/C.6/SR.75 (15 October 1948),
Abtahi and Webb (n 20) 1413).
40 Genocide

‘operat[e] as four corner posts that delimit an area within which a myriad of
groups covered by the Genocide Convention find protection’.146 The ICTR and
ICTY have elaborated on the features of national, ethnical, racial, and religious
groups.147 This constitutes a useful development of Article II of the Genocide
Convention. Yet, as explained above this legal precision has not extended to the
application of the law to the facts in the cases before these two Tribunals, which
leaves open the possibility of future fragmentation on this issue.

B. Nature of the destruction

There is genuine integration among the ICJ, ICTY, and ICTR on the nature of
the destruction required for the crime of genocide. There is apparent fragmenta-
tion with the ECtHR on this issue, which could be resolved through precise judi-
cial reasoning. Although the nature of the destruction has been subject to societal
changes that have taken place since the Genocide Convention was adopted in
1946, fragmentation has thus far been avoided due to judicial dialogue, mainly
between the ICJ and ICTY.
The nature of the destruction comprises two aspects. First, there are the under-
lying offences listed in Article II of the Genocide Convention:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
In addition to defining what each of these acts entails, the international courts
and tribunals have also had to address the question of ‘ethnic cleansing’ and how
it relates to the act listed in (c) and thus to the crime of genocide. The ICTY and
ICJ have addressed the blurry line between the two concepts.

¹⁴⁶ Schabas, ‘Genocide Law’ (n 132) 167.

¹⁴⁷ The Akayesu Trial Judgment, citing Nottebohm (Liechtenstein v Guatemala) (Second Phase:
Judgment) [1955] ICJ Rep 4 said a ‘national’ group was ‘a collection of people who are perceived
to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties’
((n 71) para 512). The same Trial Chamber said an ‘ethnical’ group was ‘a group whose members
share a common language and culture’ (para 513; see also Kayishema Trial Judgment (n 74) para 98).
A ‘racial’ group is ‘based on hereditary physical traits often identified with a geographical region,
irrespective of linguistic, cultural, national or religious factors’ (Akayesu Trial Judgment (n 71) para
514; see also Krstić Trial Judgment (n 69) para 555 which referred to the broad definition of racial
discrimination in the International Convention for the Elimination of All Forms of Racial Discrimi-
nation). A ‘religious’ group ‘includes denomination or mode of worship or a group sharing common
beliefs’ (Kayishema Trial Judgment para 98). See also Karim A Khan, Rodney Dixon, and A Fulford,
Archbold International Criminal Courts: Practice, Procedure and Evidence (Sweet & Maxwell 2005)
674–676.
 IV. Other Aspects of Article II of the Convention 41
Second, there is the question whether the destruction must be physical-biological
or whether it can take on another form, including ‘cultural genocide’ through
the destruction of historical, religious, and cultural heritage. The ICTY and ICJ
appear to have reached a consistent position in this regard.
With respect to the underlying offences, the international courts and tribu-
nals have clarified the meaning of the various acts through their Judgments. This
process has been relatively free of contradictions and uncertainties among the
various courts. As regards ‘killing members of the group’, the Appeals Chamber
of the ICTR has explained that the expression ‘killing’ is equivalent to ‘meurtre’
in the French text of the Genocide Convention and it therefore implies an inten-
tional conduct, though it need not be premeditated.148
‘Causing serious bodily or mental harm’ has been found to include rapes and
sexual violence by the ICJ, ICTY, and ICTR.149 The ICTY and ICTR have also
found that inhumane treatment, torture, persecution, and deportation can come
under this heading.150 The ICC Elements of Crimes repeats some of these acts
in a non-exhaustive list of examples.151 ‘Serious bodily or mental harm’ requires
proof of grave and long-term disadvantage to a person’s ability to lead a normal
life, but it need not be permanent.152
No accused has been charged with genocide through ‘imposing measures
intended to prevent births within the group’ before either of the Tribunals. In
dicta, the ICTR Trial Chambers have said that sexual mutilation, sterilization,
forced birth control, separation of the sexes, and prohibition of marriage could

¹⁴⁸ Kayishema Appeals Judgment (n 75) para 151. The Trial Chambers of the ICTR and ICTY
have shared this understanding: Akayesu Trial Judgment (n 71) paras 500–501; Musema Trial Judg-
ment (n 108) para 155; Rutaganda Trial Judgment (n 76) para 50; Prosecutor v Semanza (Judgment)
ICTR-97-20-T, T Ch III (15 May 2003) para 319 (hereinafter Semanza Trial Judgment); Kajelijeli
Trial Judgment (n 135) para 813; Prosecutor v Kamuhanda (Judgment) ICTR-99-54A-T, T Ch II
(22 January 2004) para 632 (hereinafter Kamuhanda Trial Judgment); Stakić Trial Judgment (n 94)
para 515. In the Bagilishema Trial Judgment (n 136) para 57, the Chamber concluded that involun-
tary or negligent homicide would therefore not constitute ‘killing’ under the terms of Art II of the
Convention and Art 2(2)(a) of the ICTR Statute. See also Mettraux, International Crimes and the
Ad Hoc Tribunals (n 3) 237.
¹⁴⁹ Bosnia Genocide Judgment (n 10) para 300 (quoting the Akayesu Trial Judgment para 731);
Prosecutor v Karadzić and Mladić (Review of the Indictment pursuant to Rule 61 of the Rules of Pro-
cedure and Evidence) IT-95–5-R61 and IT-95-18-R61, T Ch I (11 July 1996) para 93 (hereinafter
Karadzić and Mladić, Rule 61 Decision).
¹⁵⁰ The ICJ did not directly address these acts in the Bosnia Genocide Judgment (n 10), but it did
hint that they would form evidence of ‘serious bodily or mental harm’ by referring to UNGA Res
47/127 (18 December 1992) UN Doc A/Res/47/127 in para 303 of the Judgment. See also Akayesu
Trial Judgment (n 71) paras 503–504; Rutaganda Trial Judgment (n 76) para 51; Prosecutor v Stakić
(Rule 98bis Decision) IT-97-24-T, T Ch II (31 October 2002) para 62 (hereinafter Stakić Rule
98bis Decision); Krstić Trial Judgment (n 69) para 635.
¹⁵¹ ICC Elements of Crimes 3, n 3 (‘This conduct may include, but is not necessarily restricted to,
acts of torture, rape, sexual violence or inhuman or degrading treatment’).
¹⁵² Blagojević Trial Judgment (n 40) para 645; Musema Trial Judgment (n 108) para 156; Semanza
Trial Judgment (n 148) paras 320–322; Kayishema Trial Judgment (n 74) para 109.
42 Genocide

fall under this heading.153 In the Bosnia Genocide Judgment, the ICJ found
insufficient evidence to prove acts had occurred that fell under Article II(d), but it
did note with apparent approval that the Akayesu Trial Judgment had stated that
rape can be a measure intended to prevent births when the victim subsequently
refuses to procreate.154 No accused has been charged with genocide through ‘for-
cibly transferring children of the protected group to another group’. In dicta, the
Akayesu Trial Chamber said that the objective of this prohibition is to prevent
not only the direct act of transferring children, but also to sanction threats or
intimidation that would lead to the forcible transfer.155 Bosnia and Herzegovina
argued before the ICJ that a policy of forced pregnancy could fall under this
heading.156 The ICJ found the evidence did not establish such a policy and did
not comment on whether such a policy would constitute the forcible transfer of
(unborn) children.
‘Deliberately inflicting on the group conditions of life calculated to bring out
its physical destruction in whole or in part’ has been said by the ICTY and ICTR
to include: subjecting a group of people to a subsistence diet; systematic expul-
sion from homes; the reduction of essential medical services; lack of proper hous-
ing, clothing, hygiene, or medical care; excessive work or physical exertion; rape;
starvation.157 The ICC Elements of Crimes repeats some of these conditions in
a non-exhaustive list.158 It is not necessary to prove that these conditions led
immediately to the deaths of members of the group; the court can consider the
long-term impact on the likely survival of the group.159 This underlying offence
has been associated with ‘ethnic cleansing’, a relatively new phenomenon. The
term was employed frequently by the Security Council and General Assembly to
refer to the events in Bosnia and Herzegovina during the 1990s.160 The definition
proposed by the Commission of Experts was approved by the ICJ in its Bosnia

¹⁵³ Akayesu Trial Judgment (n 71) para 508 (the accused was convicted of ‘causing serious bodily
or mental harm’ not ‘imposing measures intended to prevent births’). See also Kayishema Trial Judg-
ment (n 74) para 117.
¹⁵⁴ Bosnia Genocide Judgment (n 10) para 358 (quoting Akayesu Trial Judgment (n 71) para 508).
¹⁵⁵ Akayesu Trial Judgment (n 71) para 509.
¹⁵⁶ Bosnia Genocide Judgment (n 10) paras 362–365 (citing the ICTY Prosecutor v Gagović (Indict-
ment) IT-96–23/2-I (20 April 2001) and the Karadžić and Mladić Rule 61 Decision (n 149)).
¹⁵⁷ Brdjanin Trial Judgment (n 94) para 691; Kayishema Trial Judgment (n 74) paras 115–116;
Stakić Rule 98bis Decision (n 150) para 25.
¹⁵⁸ ICC Elements of Crimes 3, n 4: The term ‘conditions of life’ may include, but is not necessarily
restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical
services, or systematic expulsion from homes.
¹⁵⁹ Brdjanin Trial Judgment (n 94) para 691; Kayishema Trial Judgment (n 74) para 116; Krstić
Appeals Judgment (n 38) para 28.
¹⁶⁰ See, for example, UNSC Res 787 (16 November 1992) UN Doc S/Res/787, para 2; Commis-
sion of Experts ‘Annex IV to the Final Report of the UN Commission of Experts’ (18 December
1994) UN Doc S/1994/674/Add.2; Commission of Experts ‘Interim Report of the Commission of
Experts’ UN Doc S/35374 (1993) para 55; UNGA Res 47/121 (18 December 1992) UN Doc A/
Res/47/121, preamble. The term ‘ethnic cleansing’ may have first been used following the Second
World War in relation to Poles and Czechs intending to ‘purify’ their countries of Germans and
 IV. Other Aspects of Article II of the Convention 43
Genocide Judgment, namely ‘the rendering of an area ethnically homogenous by
using force or intimidation to remove persons of given groups from the area’.161
In examining the relationship between ethnic cleansing and genocide, the
ICJ and the ICTY have had to in effect ‘update’ the law as contained in the
Genocide Convention to take into account this new method of attacking pro-
tected groups.162 If judicial updating is done without regard for the decisions
of other courts on the same legal question, it may lead to fragmentation. The
ICJ and ICTY have, however, managed to reach an integrated approach on this
question.
Although the General Assembly had spoken in 1992 of ethnic cleansing ‘as a
form of genocide’ and ICJ Judge ad hoc Lauterpacht had noted ethnic cleansing
could fall under the Genocide Convention in his 1993 Separate Opinion, the
majorities of the ICJ and ICTY have distinguished the two concepts.163 In the
Krstić and Stakić cases, the Trial Chambers of the ICTY observed that while ‘there
are obvious similarities between a genocidal policy and the policy known as “eth-
nic cleansing”’,164 a ‘clear distinction must be drawn between physical destruc-
tion and mere dissolution of a group. The expulsion of a group or part of a group
does not in itself suffice for genocide’.165 Both ICTY Judgments were quoted
approvingly by the ICJ, which added that ethnic cleansing ‘can only be a form
of genocide within the meaning of the Convention, if it corresponds to or falls
within one of the categories of acts prohibited by Article II’, among which Article
II(c) was the most relevant category. At the same time, the ICJ acknowledged that
‘acts of ethnic cleansing may occur in parallel to acts prohibited by Article II of
the Convention, and may be significant as indicative of the presence of a specific
intent (dolus specialis) inspiring those acts’. The drawing of a line, albeit a blurry
one, between ethnic cleansing and genocide has been criticized on the basis that
ethnic cleansing has its own ‘specific intent’ of forced displacement and there is
no need to muddy discussions by suggesting that it may in some cases also be
genocide.166 Such critiques overlook the overlap between ethnic cleansing and

Ukrainians: Schabas, ‘Genocide Law’ (n 132) 173. See also Jennifer Jackson Preece, ‘Ethnic Cleans-
ing as an Instrument of State Creation: Changing State Practices and Evolving Legal Norms’ (1998)
20 HRQ 817.
¹⁶¹ Bosnia Genocide Judgment (n 10) para 190, referring to Commission of Experts ‘Interim Re-
port of the Commission of Experts’ para 55.
¹⁶² The fact scenarios confronting the ICTR did not give rise to a discussion of ethnic cleansing
since the underlying offences in most cases involved killing or causing serious bodily or mental harm
and not the geographical removal of the Tutsis from a certain area.
¹⁶³ UNGA Res 47/121 preamble; Application of the Convention on Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro)) (Request for
the Indication of Provisional Measures: Order) [1993] ICJ Rep 325, Separate Opinion of Judge ad
hoc Lauterpacht, 431.
¹⁶⁴ Krstić Trial Judgment (n 69) para 562.
¹⁶⁵ Stakić Trial Judgment (n 94) para 519. The Brdjanin Trial Judgment noted that the concepts
differ, but the underlying criminal acts of ethnic cleansing and genocide may be the same ((n 94)
para 982).
¹⁶⁶ See, for example, Schabas, ‘Genocide Law’ (n 132) 178.
44 Genocide

the underlying offence in Article II(c) of inflicting conditions of life calculated to

destroy the protected group.
The line drawn by the ICJ and ICTY is supported by the travaux préparatoires.
The drafters firmly rejected an amendment proposed by Syria to include within
the definition of genocide the act of ‘imposing measures intended to oblige mem-
bers of a group to abandon their homes in order to escape the threat of subse-
quent ill-treatment’.167 More recently, the concept of the ‘responsibility to protect’
unanimously endorsed by the Heads of State and government of the UN mem-
ber states in 2005, distinguishes between ethnic cleansing and genocide. It pro-
vides that ‘[e]ach individual State has the responsibility to protect its populations
from genocide, war crimes, ethnic cleansing and crimes against humanity’.168
The Secretary-General’s 2009 Report on ‘Implementing the Responsibility to
Protect’, while not citing the case law of the ICJ and ICTY, adopts a similar
approach in stating that ‘ethnic cleansing is not a crime in its own right under
international law, but acts of ethnic cleansing may constitute one of the other
three crimes’.169
There is a clear consensus among the ICJ, ICTY, and ICTR that the destruc-
tion required for the crime of genocide must be physical-biological in nature.170
In other words, what the perpetrator must intend to destroy is the physical or
biological existence of the protected group; destruction of national, linguistic,
religious, cultural, or other identity does not suffice.171 A different approach has
been taken by the ECtHR, which merits some consideration.172
In the Jorgić case,173 the ECtHR examined the expansive interpretation of the
Genocide Convention by German courts, including the Federal Constitutional
Court. The German courts had held that for the crime of genocide the
physical-biological destruction of the group was not necessary; destruction of ‘a

¹⁶⁷ Syria: Amendment to Article II, UN Doc A/C.6/234 (incorporated in the 81st meeting of
the Sixth Committee, A/C.6/SR.81 (22 October 1948), Abtahi and Webb (n 20) 1479). During
the discussion in the 82nd meeting, the representative of Yugoslavia spoke in support of the Syrian
amendment, citing the displacement of Slav populations by the Nazis. On the other side, the United
States argued that the Syrian amendment deviated from the original concept of genocide: UN Doc
A/C.6/SR.82 (23 October 1948), Abtahi and Webb (n 20) 1490. The amendment was rejected by
29 votes to 5, with 8 abstentions, Abtahi and Webb (n 20) 1492.
¹⁶⁸ UNGA ‘World Summit Outcome’ (15 September 2005) UN Doc A/60/L.1, para 138.
¹⁶⁹ UNGA ‘Implementing the Responsibility to Protect’ (12 January 2009) UN Doc A/63/677,
para 3.
¹⁷⁰ Bosnia Genocide Judgment (n 10) para 344; Krstić Appeals Judgment (n 38) para 25; Stakić
Trial Judgment (n 94) paras 518–519; Semanza Trial Judgment (n 148) para 315; Kajelijeli Trial
Judgment (n 135) para 808.
¹⁷¹ See Report of the International Law Commission on the work of its Forty-Eighth Session,
Yearbook of the International Law Commission 1996, Vol II, Part Two, 45–46, para 12, cited with
approval by the ICJ in the Bosnia Genocide Judgment (n 10) para 344.
¹⁷² The scope of this book is limited to the ICJ, ICC, ICTY, and ICTR, but given the controversy
surrounding the Jorgić Judgment and its direct relevance to the interpretation of the nature of de-
struction required under the law of genocide, a short discussion of the case is useful.
¹⁷³ Jorgić v Germany App no 74613/01 (ECHR, 12 July 2007) (hereinafter Jorgić).
 IV. Other Aspects of Article II of the Convention 45
distinct social unit’ could suffice. The person who had been convicted of genocide
brought a case to the ECtHR, claiming that the German courts’ interpretation
of the crime of genocide had no basis in German or public international law.
The ECtHR considered the Krstić Judgment of the ICTY and the 2007 Bosnia
Genocide Judgment of the ICJ. Even though this jurisprudence held that geno-
cide comprised only acts aimed at the physical or biological destruction of a
protected group, the ECtHR held that the interpretation of the German courts
was in keeping with the ‘essence of the offence’ and could reasonably have been
foreseen by the applicant at the material time with the assistance of counsel.174
At first glance this looks like a case of genuine fragmentation, where an interna-
tional court (ECtHR) interpreting the same substantive law endorses a definition
that has been rejected by other international courts (ICJ and ICTY). However,
the Jorgić case was constrained by temporal issues and is in fact a case of only
apparent fragmentation. The ECtHR had to determine whether the German
courts’ interpretation of the crime of genocide could reasonably be foreseen by
the applicant at the material time, namely 1992, the year that he committed the
acts that were the subject of the genocide charge. The relevant Judgments by the
ICTY and ICJ had not been issued until 2001 and 2007 and thus their interpre-
tations of the definition of destruction for the purposes of the crime of genocide
could not be taken into consideration. This point could have been made clearer
in the Judgment of the ECtHR—its approach of examining the ICTY and ICJ
case law in detail before dismissing it creates confusion. The Jorgić case is a good
example of how apparent fragmentation may result from judicial drafting and a
lack of judicial dialogue among courts.
Another challenge to the concept of genocide being confined to
physical-biological destruction is the idea of ‘cultural genocide’, the destruction
of a group through attacking its language, religion, and historical and cultural
monuments and institutions.175 The ICJ and ICTY have had to address this issue
given the deliberate destruction of historical, cultural, and religious heritage of the
Bosnian Muslims and the Croatians during the conflict in the Balkans.176 Both
judicial institutions have reached an integrated position analogous to the one they

¹⁷⁴ ibid para 104.

¹⁷⁵ Raphael Lemkin discussed the cultural aspects of genocide at length in Raphael Lemkin, Axis
Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Carnegie
Endowment for International Peace 1944). It has been discussed more recently in the context of
Cambodia, East Timor, and the treatment of indigenous people: Ben Saul, ‘Was the Conflict in East
Timor “Genocide” and Why Does it Matter?’ (2001) 2 Melbourne JIL 477; Dirk Moses, Empire,
Colony, Genocide: Conquest, occupation, and subaltern resistance in world history (Berghahn Books
2008); Robert van Krieken, ‘Cultural Genocide in Australia’ in Dan Stone (ed), The Historiography
of Genocide 128 (Palgrave Macmillan 2008); William A Schabas, ‘Cultural Genocide and the Protec-
tion of the Right of Existence of Aboriginal and Indigenous Groups’ in Joshua Castellino and Niamh
Walsh (eds), International Law and Indigenous Peoples 116 (Martinus Nijhoff Publishers 2005).
¹⁷⁶ See Bosnia Genocide Judgment (n 10) paras 335–344; Hirad Abtahi, ‘The Protection of Cultural
Property in Times of Armed Conflict: The Practice of the International Criminal Tribunal for the
Former Yugoslavia’ [2001] 14 HRJ 1.
46 Genocide

adopted as regards ethnic cleansing: destruction of culture does not fall within
the definition of genocide, but it can be evidence of an intent physically to destroy
the protected group.177 Although two ICTY Trial Chambers and a dissenting
Appeals Judge have suggested that the definition of genocide is not limited to
physical and biological destruction, these views have not prevailed in the ICTY
jurisprudence.178 During the drafting of the Genocide Convention, the majority
of the Sixth Committee voted not to include provisions relating to cultural geno-
cide in the Convention after a lengthy debate.179 Nonetheless, Article II(e) on the
forcible transfer of children from one group to another was added to the text of
the Convention in the knowledge that it was an act closer to destruction of cul-
ture than to physical-biological destruction.180 The notion of cultural genocide is
highly controversial and the currently integrated position reached by the ICJ and
ICTY contrasts with the debate in the academic literature.181

C. In whole or in part
The chapeau of Article II of the Genocide Convention provides that acts of geno-
cide must be committed with the intent to destroy ‘in whole or part’ the protected
group. There is a significant degree of consensus among the international courts
and tribunals on the meaning of the phrase ‘in whole or in part’, which refers to the
intent of the perpetrator not to the result of his or her acts. Identifying an intent
to destroy the ‘whole’ group is relatively uncomplicated—the jurisprudence has

¹⁷⁷ Bosnia Genocide Judgment (n 10) para 344 citing with approval the Krstić Trial Judgment
(n 69) para 580.
¹⁷⁸ Krstić Appeals Judgment (n 38) Dissenting Opinion of Judge Shahabuddeen; Blagojević Trial
Judgment (n 40) paras 659–660; Prosecutor v Krajisnik (Judgment) IT-00-39-T, T Ch I (27 Septem-
ber 2006) para 854. No finding of genocide was entered at the trial level in the Krajisnik case and
the conviction for complicity in genocide in the Blagojević Trial Judgment was overturned on appeal.
The Blagojević Trial Chamber had emphasized that it was not arguing for a recognition of cultural
genocide, but rather a clarification of the meaning of physical or biological destruction. Judge Sha-
habuddeen in Krstić had suggested enlarging the definition of genocide to include borderline cases
where there was evidence of ethnic hatred, but an absence of evidence that physical-biological de-
struction was intended. See discussion in Schabas, ‘Genocide Law’ (n 132) 171–173. Mugwanya,
The Crime of Genocide in International Law (n 120) 143–144.
¹⁷⁹ The vote was 25 to 16, with 4 abstentions during the 84th meeting (UN Doc A/C.6/SR.83 (25
October 1948), Abtahi and Webb (n 20) 1518). Those in favour of including cultural genocide in
the Convention pointed out it presented the end, whereas physical genocide ‘was merely the means’
(representative of Pakistan, 1502); a group could be destroyed through elimination of its specific
traits even with no attempt having been made on the life of its members (representative of Venezu-
ela, 1505). Those opposed to the inclusion of cultural genocide argued that the concept was too
vague (representative of the Netherlands, 1514) and it was in any event more properly addressed in
the context of minority rights in other human rights conventions (representative of Brazil, 1507).
¹⁸⁰ The representative of Greece proposed the amendment in the 81st meeting (A/C.6/SR.81 (22
October 1948)) and when it was discussed during the 82nd meeting (A/C.6/SR.82 (23 October
1948)) he explained that the clause was ‘classified under cultural genocide’, and it had cultural,
physical and biological effects. (Abtahi and Webb (n 20) 1492.) The amendment was adopted 20
votes to 13, with 13 abstentions (1498).
¹⁸¹ See, for example, Saul, ‘Was the Conflict in East Timor “Genocide”’ (n 175).
 IV. Other Aspects of Article II of the Convention 47
thus concentrated on developing the meaning of ‘in part’. Three approaches have
emerged from the case law: the quantitative approach, the qualitative approach,
and the geographic approach. There are minor variations within each approach
among the courts and tribunals, but the Bosnia Genocide Judgment and the Krstić
Trial and Appeals Judgments have provided important clarifications, which dem-
onstrates how judicial reasoning can have an integrative effect.
Under the quantitative approach, the intent must be to destroy a ‘substan-
tial’ part of the protected group. As the ICJ pointed out in the Bosnia Genocide
Judgment, the substantiality criterion is demanded ‘by the very nature of the
crime of genocide: since the object and purpose of the Convention as a whole
is to prevent the intentional destruction of groups, the part targeted must be
significant enough to have an impact on the group as a whole’.182 The Judgment
referred to the consistent rulings of the ICTY and ICTR in this regard.183 The
terminology has varied in certain cases: the Kayishema Trial Judgment referred
to ‘a considerable number of individuals’, the Kamuhanda Trial Judgment used
‘more than an imperceptible number of the targeted group’, the Sikirica Trial
Chamber said ‘a reasonably substantial number’.184 One ICTY Trial Chamber
queried whether ‘considerable’ set a higher threshold than ‘substantial’, but the
Appeals Chamber ultimately accepted that the terms are not intended to have
different meanings.185 In applying the quantitative approach, some ICTY Trial
Chambers have engaged in statistical analysis whereas the ICTR has tended to
adopt a more holistic method of taking into account a number of factors.186
This variation is explained by the differences in the nature of the conflicts and

¹⁸² Bosnia Genocide Judgment (n 10) para 198.

¹⁸³ ibid para 198, referring to Krstić Appeals Judgment (n 38) paras 8–11; Kayishema, Bagilishema,
and Semanza Judgments of the ICTR therein referred to (nn 74, 136, and 148). Moreover, during
the negotiations for the ICC Statute, the final draft of the Preparatory Committee noted that ‘the
specific intention [is] to destroy more than a small number of individuals who are members of a
group’: United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court ‘Report of the Preparatory Committee on the Establishment of an
International Criminal Court’ (14 April 1998) UN Doc A/CONF.183/2/Add.1, Art 5, n 1.
¹⁸⁴ Kayishema Trial Judgment (n 74) para 97; Kamuhanda Trial Judgment para 628; Sikirica Mo-
tion to Acquit (n 42) para 65.
¹⁸⁵ Jelisić Trial Judgment (n 67) para 82 (asking whether considerable went further than the sub-
stantial part criterion); Krstić Appeals Judgment (n 38) para 9 and n 15. As Mugwanya points out,
the ICTR did not intend to adopt a different standard as it invoked other judgments that had
employed the term ‘substantial’ and also referred to an ILC report that discussed the substantial
criterion: Mugwanya, The Crime of Genocide in International Law (n 120) 148.
¹⁸⁶ The Sikirica Trial Judgment found that the substantial criterion had not been met because the
victims represented between 2 and 2.8 per cent of the Muslims in Prijedor: Prosecutor v Sikirica
(Judgment) IT-95-8-T, T Ch III (13 November 2001), paras 65–72. The Krstić Trial Judgment
noted that between 7,000–8,000 men from a population of 42,000 were killed ((n 69) para 565)—
this analysis was noted with approval by the ICJ in the Bosnia Genocide Judgment (n 10) para 296.
The ICTR has tended to consider the systematic identification of the group, the scale of the killings,
and the broader pattern of criminal conduct rather than population statistics: Akayesu Trial Judg-
ment (n 71) para 704; Semanza Trial Judgment (n 148) paras 424–427; Kayishema Trial Judgment
(n 74) paras 292–313.
48 Genocide

the societal compositions187 of Bosnia and Rwanda and does not represent a
divergence in the basic reasoning of the two Tribunals.
According to the qualitative approach, the intent must be to destroy a ‘signifi-
cant’ part of the protected group. The idea is that targeting a specific segment of a
group, such as the leadership, would eventually lead to destruction of the group.
This approach has been accepted in principle by the ICTR, but it has not been
applied to the facts of a case.188 The ICTY have endorsed the qualitative approach
but have not yet found an accused guilty of genocide without also referring to the
quantitative approach.189 The caution exhibited in these Judgments has been per-
ceived by the ICJ, which has taken the position that the quantitative approach or
the ‘substantiality requirement’ is the ‘essential starting point’ and the qualitative
approach ‘cannot stand alone’.190 Indeed, it is only in a very few cultures that the
targeting of the leadership would in reality lead to the destruction of the group.
Moreover, the travaux préparatoires do not reveal that the drafters considered, let
alone accepted, a qualitative approach.191 The idea seems to have come from the
1985 Report of the Sub-Commission on the Prevention of Discrimination and
Protection of Minorities.192

¹⁸⁷ The ICTR has taken judicial notice of the fact that in 1994 a genocide targeting the Tutsis took
place throughout the country: Prosecutor v Semanza (Judgment) ICTR-97–20-A, A Ch (20 May
2005) para 192 (hereinafter Semanza Appeals Judgment). The conflict in the Former Yugoslavia,
in contrast, involved more than one victim group, with attacks taking place in diverse regions for
various reasons. No countrywide genocide has been identified and thus far only Srebrenica has been
confirmed as the site of a genocide in the Krstić Trial and Appeals Judgments, (n 69) and (n 38). See
Mugwanya, The Crime of Genocide in International Law (n 120) 149.
¹⁸⁸ Kayishema Trial Judgment (n 74) para 96.
¹⁸⁹ In the Jelisić Trial Judgment (n 67) the Chamber referred to the selection of ‘a more limited
number of persons . . . for the impact that their disappearance would have upon the survival of the
group as such’ (para 82), but did not find it proven on the facts of the case. In the Sikirica Decision
on Motion to Acquit (n 42) the Judges could not find an intent to destroy a ‘significant’ part of
the local Muslim community as to threaten its survival as a group. The victims were ‘taxi-drivers,
schoolteachers, lawyers, pilots, butchers and café owners’, but not community leaders (para 80).
The Krstić Trial and Appeal Judgments (n 69) and (n 38), involved both qualitative and quantitative
approaches.
¹⁹⁰ Bosnia Genocide Judgment (n 10) para 200. The Krstić Appeals Judgment also expresses this
view ((n 38) para 12).
¹⁹¹ During the 73rd meeting of the Sixth Committee, the Norwegian representative proposed to
add the words ‘in whole or in part’ to Art II (UN Doc A/C.6/228). The discussion focused on an
amendment by the USSR regarding physical destruction rather than the Norwegian amendment.
No reference was made to whether intending to destroy a stratum of a group would fall under Art II.
The Norwegian amendment was adopted 41 votes to 8, with 2 abstentions: UN Doc A/C.6/SR.73
(13 October 1948), Abtahi and Webb (n 20) 1382–1389.
¹⁹² Schabas, ‘Genocide Law’ (n 132) 182–183. Schabas cites Economic and Social Council
‘Sub-Commission on Prevention of Discrimination and Protection of Minorities, Revised and Up-
dated Report on the Question of the Prevention and Punishment of the Crime of Genocide’ (2 July
1985) UN Doc E/CN.4/Sub.2/1985/6 (prepared by Benjamin Whitaker) para 29. This report was
cited by the Commission of Experts established pursuant to Security Council Resolution 780 and
relied on by the Prosecutor of the ICTY in some indictments, such as Jelisić (Indictment) IT-95-10,
para 17.
 IV. Other Aspects of Article II of the Convention 49
The geographic approach allows a court to find that genocide has been
committed where the intent is to destroy a group within a geographically limited
zone. The approach has been accepted in principle by the international courts
and tribunals,193 but with the proviso that it has not been applied in isolation.
As the ICJ observed, the opportunity of the accused to destroy a group in a spe-
cific geographic area within his or her sphere of control must be weighed against
the factor of substantiality; it may be that the opportunity is so limited that the
substantiality criterion is not satisfied.194 The ICTY has held that the group to be
considered for the purpose of genocide was Bosnian Muslims or Bosnian Croats
from the Prijedor municipality rather than the much smaller number detained
in Keraterm camp.195 The ICTR has convicted persons for genocide committed
within named communes.196
The Krstić case at the ICTY was an important milestone in defining and devel-
oping the meaning of ‘in whole or in part’. The Krstić case involved the killing
of seven thousand to eight thousand able-bodied, military-aged Bosnian Muslim
men from Srebrenica. The Trial Chamber concluded that the intent to kill these
men constituted an intent to destroy ‘in part’ the Bosnian Muslim group.197 The
defence appealed, arguing that the Trial Chamber had in fact used ‘a part of a
part’ as the object of the accused’s intent, which was an impermissible exten-
sion of ‘in whole or in part’.198 There was a triple qualification based on sex
of victim (men), age (military age) and geography (Srebrenica).199 The Appeals
Chamber rejected the defence’s submission and explained the reasoning of the
Trial Chamber in a more persuasive manner. The intent to destroy a ‘substantial’
part of the group (consisting of Bosnian Muslims of Srebrenica) could be inferred
from the intent to destroy a limited group of individuals (Srebrenica Muslim
men of military age).200 The Appeals Chamber’s reasoning combines quantitative,
qualitative, and geographic approaches. While such reasoning risks allowing the
‘infinitesimal breakdown’ of a situation into sub-entities falling short of a group
or a substantial part of a group,201 in the Krstić case the group was sufficiently

¹⁹³ Bosnia Genocide Judgment (n 10) para 199; Jelisić Trial Judgment para 83; Krstić Trial Judgment
(n 69) para 589; Brdjanin Trial Judgment para 703; Akayesu Trial Judgment para 129; Kayishema
Trial Judgment para 273.
¹⁹⁴ Bosnia Genocide Judgment (n 10) para 199; the Court noted that the ICTY Trial Chamber in
Stakić expressed caution less this geographic approach distort the definition of genocide (Trial Judg-
ment (n 94) para 523).
¹⁹⁵ Sikirica, Decision on Motion to Acquit (n 42) para 68.
¹⁹⁶ Prosecutor v Ndindabahizi (Judgment) ICTR-01-71-I, T Ch I (15 July 2004) para 461; Kay-
ishema Trial Judgment (n 74) para 273.
¹⁹⁷ Krstić Trial Judgment (n 69) para 634. The Chamber said the men were a ‘substantial’ part of
the group and their killing would result in the destruction of the entire Bosnian Muslim community
at Srebrenica.
¹⁹⁸ Krstić Defence Appeal Brief, para 35ff (10 January 2002).
¹⁹⁹ Mettraux (n 3) 222.
²⁰⁰ Krstić Appeals Judgment (n 38) paras 21, 26ff. Mettraux (n 3) 223.
²⁰¹ Mettraux (n 3) 223. For a critique, see Katherine G Southwick, ‘Srebrenica as Genocide: the
Krstic Decision and the Language of the Unspeakable’ (2005) 8 YHRDLJ 188, 206–207.
50 Genocide

large and influential to meet the terms of Article II of the Convention.202 The
holdings in Krstić have since been endorsed by the ICJ.203 The judicial dialogue
between two courts on this point has promoted integration.

V. Interplay between State Responsibility for Genocide and

Individual Criminal Responsibility
The previous two sections have examined the level of integration and fragmenta-
tion of specific aspects of Article II of the Genocide Convention that have been
addressed by the various international courts. This section addresses the tensions
that arise due to the interplay between the two regimes of responsibility contained
in the Genocide Convention. As mentioned in the introduction, the duality of
responsibility is not unique to the law on genocide, but it is more pronounced
than in the law on immunities or on use of force. The Genocide Convention
contains reference to the two forms of responsibility, individual and state, but it is
not always clear how they interact with each other. Accordingly, judges have had
to interpret and develop the relationship between the two forms of responsibil-
ity. This process of interpretation raises the potential for fragmentation as each
court’s perspective is invariably bound up with its nature and functions. The ICJ,
being a court that settles inter-state disputes, is concerned with state responsibil-
ity and necessarily views the law on genocide through that lens. The international
criminal courts are mandated to prosecute individuals and approach genocide
as an act resulting in individual criminal responsibility. Precisely identifying the
overlaps and differences between the two types of responsibility requires each
court to step beyond its traditional functions. This raises the potential for frag-
mentation if such a court oversteps or misinterprets the responsibility regime
with which it is less familiar.

A. Prerequisites for holding states and individuals responsible

The interplay between state responsibility and international criminal responsibil-
ity arises at the very outset of any case concerning allegations of genocide. In the
Bosnia Genocide case, the ICJ was initially confronted with the question whether
it could make a finding of genocide by a state in the absence of a prior conviction
of an individual for genocide by a competent court. The flipside of this question
is whether, given that it is hard to imagine an individual committing genocide
without active or passive state involvement, an individual can be convicted in the
absence of a prior finding of state responsibility by the ICJ. The growth in the

²⁰² See Krstić Appeals Judgment (n 38) para 15, quoted with approval in Bosnia Genocide Judgment
(n 10) para 296.
²⁰³ Bosnia Genocide Judgment (n 10) paras 200, 296.
 V. Interplay between State and Individual Responsibility 51
number of international courts and tribunals concerned with prosecuting indi-
viduals for international crimes makes these questions far from theoretical. At the
time of the Bosnia Genocide Judgment, the ICTY had not convicted a person as
a principal for the genocide committed in Srebrenica,204 and at the time of the
Krstić conviction, the ICJ had not yet held that the massacre at Srebrenica was
genocide.
According to one view, the state can incur responsibility only when there has
been a prior conviction of an individual for genocide. In the Bosnia Genocide case,
Serbia argued that since genocide is a crime, it must be established in accordance
with the rules of criminal law, which first require a finding of individual respon-
sibility.205 It is only in this way that the existence of genocide can be established
beyond all reasonable doubt.
The ICJ took a different view, holding that there was no legal bar to it finding
that genocide or other acts in Article III had been committed; Article IX of the
Genocide Convention expressly states that the Court has jurisdiction to hold a
state responsible for genocide.206 Nonetheless, some commentators have argued
that despite the ICJ’s clear position, state responsibility for genocide still seems
dependent upon a prior finding of individual criminal responsibility.207
The ICJ has taken a pragmatic approach to the interplay between state respon-
sibility and individual criminal responsibility: as the Court pointed out, a state
may have committed genocide, but its leaders have not been brought to trial
because they are still in control of the police, prosecution, and the courts and no
international court has jurisdiction over the crimes.208 Moreover, international
and national trials necessarily proceed in a patchwork manner—the arrest and
trial of persons is dependent on resources, cooperation, and chance. Given this
reality, it should be legally possible for the ICJ to make a finding of state respon-
sibility in the absence of the conviction of an individual.209 Indeed, a similar
pragmatic approach appears to have been taken by the ICTY and ICTR, which
have both proceeded with genocide convictions in the absence of a finding of
state responsibility for genocide.210 The ICTY has also convicted an individual
of aiding and abetting genocide in the absence of the conviction of the principal

²⁰⁴ Krstić had been convicted for aiding and abetting genocide and Blagojević had been convicted
of complicity in genocide (later overturned on appeal), (n 38) and (n 40).
²⁰⁵ Bosnia Genocide Judgment (n 10) para 157.
²⁰⁶ ibid paras 180–1.
²⁰⁷ Asuncion, ‘Pulling the Stops on Genocide’ (n 18) 1218; Richard Goldstone and Rebecca Ham-
ilton, ‘Bosnia v. Serbia: Lessons from the Encounter of the International Court of Justice with the
International Criminal Tribunal for the Former Yugoslavia’ (2008) 21 LJIL 95.
²⁰⁸ Bosnia Genocide Judgment (n 10) para 182.
²⁰⁹ The specific intent requirement for genocide does make such a finding difficult in practice.
Identifying the ‘specific intent’ of a state would usually require the intent of its leadership.
²¹⁰ It is also possible that the ICTY and ICTR have not made a conscious choice to proceed in the
absence of a finding of state responsibility. They may have simply focused on individual criminal
responsibility and not concerned themselves with the state aspect.
52 Genocide

perpetrator.211 This pragmatic approach need not lead to fragmentation as long

as the distinction between state and individual responsibility is maintained and
the relationship between the two is consistently applied.

B. State and individual complicity in genocide

The question of responsibility for complicity in genocide is particularly inter-
esting in terms of fragmentation. The ICJ’s consideration of the question of
state responsibility for complicity in genocide in the Bosnia Genocide Judgment
exposed the conceptual confusion that surrounds this concept. This confusion,
however, is not necessarily the result of using a notion of criminal law in the con-
text of state responsibility,212 but rather is due to the problems that the ICTY and
ICTR have had in applying the concept of complicity in genocide to individual
criminal responsibility.213 In other words, the source of the problem is fragmenta-
tion within and among international criminal courts.
The confusion in the jurisprudence of the ICTY and ICTR is attributable
in part to the fact that ‘complicity’ is referred to in the section of their Statutes
dealing with the crime of genocide214 while ‘aiding and abetting’ appears in the
section of the Statutes outlining the forms of criminal liability applicable to all
crimes within the Tribunals’ jurisdiction, including genocide.215 The Tribunals
have given different views as to how these two modes of liability relate to each
other. In the Akayesu case, the ICTR Trial Chamber stated that complicity
was different to aiding and abetting: aiding and abetting required proof that
the accused possessed the specific intent to commit genocide whereas the same
requirement was not needed to prove complicity in genocide.216 In other cases at
the ICTY and ICTR, the judges have equated the elements of complicity with
those required for aiding and abetting.217 The Appeals Chamber has held that
complicity in genocide is broader than aiding and abetting.218 This has an impact
²¹¹ The Tribunal has held that ‘[t]he inference that a particular atrocity was motivated by genocidal
intent may be drawn . . . even where the individuals to whom the intent is attributable are not precisely
identified. If the crime committed satisfies the other requirements of genocide, and if the evidence
supports the inference that the crime was motivated by the intent to destroy, in whole or in part,
a protected group, a finding that genocide has occurred may be entered’: Krstić Appeals Judgment
(n 38) para 34 (emphasis added).
²¹² cf Cassese, ‘On the Use of Criminal Law Notions’ (n 27).
²¹³ For a detailed analysis of the ICTY and ICTR case law in this regard, see Elies van Sliedregt,
‘Complicity to Commit Genocide’ in Paola Gaeta (ed), The UN Genocide Convention: A Commen-
tary (OUP 2009) 162.
²¹⁴ ICTY Statute Art 4(3)(e); ICTR Statute Art 2(3)(e).
²¹⁵ ICTY Statute Art 7(1); ICTR Statute Art 6(1). See Mettraux (n 3) 257.
²¹⁶ Akayesu Trial Judgment (n 71) paras 485, 533–537, 540.
²¹⁷ Stakić Rule 98bis Decision (n 150) para 62; Prosecutor v Milošević (Decision on Motion for
Judgment of Acquittal) IT-02–54-T, T Ch III (16 June 2004) paras 296–297; Semanza Trial Judg-
ment (n 148) para 394.
²¹⁸ Prosecutor v Ntakirutimana (Judgment) ICTR-96–10-A and ICTR-96–17-A, A Ch (13 De-
cember 2004) para 371; Semanza Appeals Judgment (n 187) para 316; Krstić Appeals Judgment
(n 38) para 139.
 V. Interplay between State and Individual Responsibility 53
on the specific intent requirement. In the Krstić case, the ICTY Appeals Chamber
stated that even though there was authority to suggest that complicity required
proof that the accused possessed the specific intent to commit genocide, there
was no such requirement where the accused was charged with complicity through
aiding and abetting: the accused need only possess knowledge of the principal’s
specific genocidal intent.219 In the same section of the Judgment, the Appeals
Chamber suggested—but did not decide—that complicity in genocide would
require proof that the accused possessed the specific intent.220
The ICTY Appeals Chamber’s position, which has been followed in ICTR
cases,221 is problematic for two reasons. First, the specific intent requirement
appears in the chapeau of Article II of the Genocide Convention (mirrored in
the Statutes of the ICTY and ICTR) and thus this legal element must be satis-
fied in relation to each individual accused, regardless of which mode of liability
is applied. Second, having found that aiding and abetting is subsumed within
the concept of complicity, and having suggested that complicity requires proof of
specific intent, the Appeals Chamber proceeds to apply a lower mental require-
ment (knowledge) to aiding and abetting.222
Moreover, the ICTY and ICTR have held that while it must first be proven
that a genocide has in fact taken place for an accused to be convicted of com-
plicity/aiding and abetting, it is not necessary for the principal perpetrator to
have been tried or even to have been identified.223 If the principal is not identi-
fied, it is hard to see how the court could satisfy itself that the person accused
of complicity had knowledge of the principal’s specific genocidal intent.224 The
court could, however, find that the accused possessed the specific intent without
enquiring into the state of mind of the principal. This suggests that the correct
legal approach is to require proof that any participant in a genocide possessed the
specific intent and not to apply a lower standard of knowledge.
In cases that have addressed the question of complicity simpliciter, there have
been discrepancies as to the required mental element. The ICTR Trial Chambers

²¹⁹ Krstić Appeals Judgment (n 38) para 140. Antonio Cassese, former President of the ICTY, ar-
gues that criminal liability for aiding and abetting can even be found where the accused was aware of
the risk that the perpetrator may engage in criminal conduct, referring to the Prosecutor v Furundzija
(Judgment) IT-95-17/1-T, T Ch II (10 December 1998) para 247, and Prosecutor v Blaskić, Trial and
Appeal Judgments IT-95-14, paras 50, 287 (3 March 2000 and 29 July 2004). These cases did not
concern the crime of genocide, though Cassese invokes them in a discussion of the mental element
for complicity in genocide: Cassese, ‘On the Use of Criminal Law Notions’(n 27) 883.
²²⁰ Krstić Appeal Judgment (n 38) para 142.
²²¹ Semanza Appeals Judgment (n 187) para 316; Ntakirutimana Appeal Judgment (n 218) para
500.
²²² See Mettraux (n 3) 259 (pointing out that the position of the Appeals Chamber is only sup-
ported by two provisions of the French and German Criminal Codes, which falls far short of what
could be regarded as demonstrating a rule of customary international law).
²²³ Blagojević Trial Judgment (n 40) para 638; Akayesu Trial Judgment (n 71) paras 529–531; Stakić
Trial Judgment (n 94) para 533; Brdjanin Trial Judgment (n 94) para 728; Krstić Appeals Judgment
(n 38) paras 35, 143.
²²⁴ Mettraux (n 3) 260.
54 Genocide

have held that complicity in genocide only requires knowledge of the principal’s
specific intent.225 This may be due to the fact that the ICTR judges are interpret-
ing the concept of complicity in the light of the Rwandan Penal Code.226 Trial
Chambers at the ICTY have held that complicity requires proof that the accused
possessed the specific intent to commit genocide; applying the knowledge stand-
ard would be ‘a departure from the strict pre-requisite of dolus specialis related to
all forms of committing and participation in genocide’.227
This is how the law on complicity in genocide stood, as interpreted by the
ad hoc Tribunals, when the ICJ decided the Bosnia Genocide case. The ICJ con-
fronted the challenge of applying a criminal law concept to the behaviour of a
state. It referred to Article 16 of the ILC’s Articles on State Responsibility on
‘aid or assistance in the commission of an internationally wrongful act’.228 The
provision was not directly relevant to the case because it concerned a relationship
between two states, whereas the Bosnia Genocide case concerned a relationship
between the Former Republic of Yugoslavia (a state) and the Republika Srpska (a
de facto government operating within another state, Bosnia and Herzegovina).229
The Court nonetheless gave it consideration, framing the question as ‘whether
organs of the respondent state, or persons acting on its instructions or under its
direction or effective control, furnished “aid or assistance” in the commission
of the genocide of Srebrenica, in a sense not significantly different from that of
those concepts in the general law of international responsibility’.230
Ultimately, the occasion did not arise for the ICJ to attempt to resolve the
uncertainty surrounding the intent requirement for complicity in genocide.231
The Court acknowledged that there were two possible approaches: that the
accomplice shares the specific intent of the principal or that the accomplice was
merely aware of the specific intent of the principal.232 On the facts it found that
it was not conclusively shown that the Federal Republic of Yugoslavia acted in
full awareness of the specific genocidal intent of the VRS (army of the Republika

²²⁵ Akayesu Trial Judgment (n 71) paras 540–547; Musema Trial Judgment (n 108) paras 180–183;
Bagilishema Trial Judgment (n 136) paras 70–71; Kajelijeli Trial Judgment (n 135) para 768. The
Trial Chamber in Akayesu suggested that specific intent may be required for accomplice liability, but
then retreated from this position and used the knowledge standard. See also Mugwanya, The Crime
of Genocide in International Law (n 120) 197–200.
²²⁶ Akayesu Trial Judgment (n 71) para 537. See also Mettraux (n 3) 258.
²²⁷ Stakić Rule 98bis Decision (n 150) paras 48, 67; Jelisić Trial Judgment (n 67) para 86. But the
Trial Chamber in Milošević appears to consider the knowledge standard might suffice for complicity:
Prosecutor v Milošević (Decision on Motion for Judgment of Acquittal) IT-02-54-T, T Ch III (16
June 2004), paras 297–8, 309. Mettraux (n 3) 259, n 86.
²²⁸ Bosnia Genocide Judgment (n 10) para 420.
²²⁹ See Andrea Bianchi, ‘State Responsibility and Criminal Liability of Individuals’ in Antonio
Cassese and others (eds), The Oxford Companion to International Criminal Justice 16 (OUP 2009) n
6 (calling the ICJ approach ‘not entirely persuasive’).
²³⁰ Bosnia Genocide Judgment (n 10) para 420.
²³¹ For an appraisal of the Court’s approach, see also Marko Milanović, ‘State Responsibility for
Genocide: A Follow-Up’ (2007) 18 EJIL 677, 680–684.
²³² Bosnia Genocide Judgment (n 10) para 421.
 V. Interplay between State and Individual Responsibility 55
Srpska) leaders, and thus even the lower knowledge standard had not been met.233
In the Court’s discussion on the state’s obligation to prevent genocide, it clarified
the differences between the violation of that obligation and complicity in geno-
cide. It noted that there could not be a finding of complicity against a state ‘unless
at the least its organs were aware that the genocide was about to be committed
or was under way’ whereas for failure to prevent genocide, ‘it is enough that the
State was aware, or should normally have been aware, of the serious danger that
acts of genocide would be committed’.234
In his Declaration appended to the Bosnia Genocide Judgment, Judge Keith
took a position on the mental requirement for complicity, holding that it sufficed
to show that the accomplice had knowledge of the principal’s specific intent. He
referred to the fact that this position was taken in the laws of France, Germany,
Switzerland, England, Canada, Australia, and some states of the United States as
well as by the Appeals Chamber of the ICTY in the Krstić case.235 He acknowl-
edged that the ICTY Appeals Chamber in Krstić was dealing with complicity
through aiding and abetting and had suggested that complicity in some circum-
stances would require the accomplice to share the principal’s intent, but found
this suggestion to be unnecessary for the decision in that case and irrelevant to
the case before the ICJ.236
During the drafting of the Convention, the United Kingdom representative
withdrew part of an amendment concerning the addition of the word ‘deliberate’
before ‘complicity’ since it was understood that complicity in genocide ‘must be
deliberate’.237 One judge has interpreted this as indicating that the actions had to
be deliberate in the sense of knowing the principal’s intent, but not necessarily
sharing it238 while others have interpreted ‘deliberate’ as requiring the accomplice
to possess specific intent.239 The travaux préparatoires are in fact unclear on this
point.240 The better view is that each and every mode of liability requires proof of
specific intent, given that this is the defining feature of the crime of genocide.

²³³ ibid paras 422–424.

²³⁴ ibid para 432 (emphasis added).
²³⁵ ibid Declaration of Judge Keith, para 5.
²³⁶ ibid Declaration of Judge Keith, para 7. He noted that finding specific intent was required
for complicity would contradict the Chamber’s main ruling that knowledge sufficed for aiding and
abetting. Further, he read the travaux préparatoires as requiring that the accomplice knows of the
principal’s intent, but not that the accomplice shares it.
²³⁷ Sixth Committee, 87th meeting, 29 October 1948, UN Doc A/C.6/SR.87 (29 October 1948),
Abtahi and Webb (n 20) 1587.
²³⁸ Bosnia Genocide Judgment (n 10) para 7 (Declaration of Judge Keith).
²³⁹ Krstić Appeals Judgment (n 38) para 142, referring in a footnote to William A Schabas, Geno-
cide in International Law: The Crime of Crimes (2nd edn, CUP 2004) 289.
²⁴⁰ In the 84th meeting of the Sixth Committee, the Venezuelan representative stated that he
preferred the words ‘intentional complicity’ to ‘deliberate complicity’ since it was intent, rather than
premeditation, ‘which rendered the complicity a punishable offence . . . In the case of genocide,
it was important to bear the element of intent in mind when establishing complicity’ (UN Doc
A/C.6/SR/84 (26 October 1948), Abtahi and Webb (n 20) 1521). This statement was not directly
addressed by other representatives.
56 Genocide

The ICC Statute does not include the acts listed under Article III of the
Genocide Convention. The acts are subsumed under Article 25 (the general pro-
vision on modes of liability), although Article 25(3)(e) makes direct and public
incitement to commit genocide a distinct category. Article 25(3)(c) addresses
the mode of complicity or aiding and abetting.241 Since this provision is framed
in general terms, it is unclear whether specific intent is required if the crime the
person has facilitated is characterized as genocide. Article 25(3)(d) describes the
mode of liability known as ‘common purpose’:
(d) In any other way contributes to the commission or attempted commission of such a
crime by a group of persons acting with a common purpose. Such contribution shall be
intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of
the group, where such activity or purpose involves the commission of a crime
within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime.
If a person was charged with genocide according to subsection (ii) of this
mode of liability—a mode that does not appear in Article III of the Genocide
Convention—a plain reading of the text suggests that specific intent would not
be required. The accused need only be aware of the specific intent of the group. At
present, the prosecutor of the ICC has accused one person of genocide, President
Al Bashir of Sudan. The three counts were alleged to be committed under Article
25(3)(a):
(a) Commits such a crime, whether as an individual, jointly with another or through
another person, regardless of whether that other person is criminally responsible
This mode of liability would require proof of specific intent.
The genuine fragmentation in the substantive law on complicity in genocide
largely arises from confusing statutory provisions.242 Greater coherence will be
achieved through judicial dialogue both within and among international courts.

C. Remedies and the obligations to prevent and punish

The remedies that attach to findings of state responsibility and individual crimi-
nal responsibility are one of the key differences between the two regimes. When a
state is found responsible for a violation of international law, the usual remedy is
reparations that ‘so far as possible, wipe out all the consequences of the illegal act
and reestablish the situation which would, in all probability, have existed if that

²⁴¹ The article reads: ‘In accordance with this Statute, a person shall be criminally responsible and
liable for punishment for a crime within the jurisdiction of the Court if that person: [ . . . ] (c) For
the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its com-
mission or its attempted commission, including providing the means for its commission.’
²⁴² It is probably also a result of the diverse legal traditions from which international judges are
drawn.
 V. Interplay between State and Individual Responsibility 57
act had not been committed’.243 For individuals found criminally responsible
under international law, the typical punishment is imprisonment for a specified
number of years, with the possible additional penalty of a fine or the forfeiture of
proceeds, property and assets derived from the crime.244
For state responsibility for genocide, the issue of remedies is more compli-
cated than simply ordering restitution. In a situation of intra-state genocide as
in Rwanda, a finding of state responsibility would essentially require the state to
provide remedies to its own population. This would require the state not only
to possess the resources for financial or other compensation, but also to find
ways of compensating victims that are compatible with—yet meaningfully sepa-
rate from—action directed towards rebuilding and reconciling the population
in general.245 In a situation of inter-state genocide as in the Balkans, ordering
the state found responsible to provide restitution is nearly always impossible:
the consequences of the massacres cannot be wiped out and the situation cannot
be restored. Moreover, the ICJ in the Bosnia Genocide case was concerned with
the breach of the obligation to prevent, not Serbia’s responsibility for the com-
mission of genocide. Finding restitution inapplicable to the facts, the ICJ referred
to the ‘well-established rule of international law that an injured state is entitled
to obtain compensation from the state which has committed the internationally
wrongful act for the damage caused by it’.246 Applying this rule to the facts, the
ICJ could not find a causal nexus between Serbia’s violation of the obligation
to prevent genocide and the damage resulting from the genocide at Srebrenica.
Accordingly, it found that ‘financial compensation is not the appropriate form
of reparation’.247 Instead, the ICJ held that satisfaction in the form of a declara-
tion in the Judgment that Serbia had failed to comply with the obligation of
prevention was appropriate.248 The stark contrast between the judicial declara-
tion of non-compliance and the devastation suffered in Srebrenica has generated
criticism that this remedy was ‘utterly at odds with the values involved in the
case’.249
Nonetheless, one can imagine that in a case where the respondent state was
found responsible for the actual commission of genocide, the remedy of financial
compensation may be easier to calculate and implement. When one considers the

²⁴³ Factory at Chorzów (Germany v Poland) (Merits) PCIJ Rep Series A No 17, 47. See also Art 31
of the ILC Articles.
²⁴⁴ ICC Statute Art 77.
²⁴⁵ For an examination of efforts directed to psycho-social healing, transitional justice, reconstruc-
tion, and reconciliation in Rwanda, see Phil Clark and Zachary D Kaufman (eds), After Genocide;
Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond (Columbia
University Press and C Hurst & Co 2008).
²⁴⁶ Bosnia Genocide Judgment (n 10) para 460, quoting Gabcicovo-Nagymaros (Hungary/Slovakia)
(Merits: Judgment) [1997] ICJ Rep 7, 81. See also Art 36 of the ILC Articles.
²⁴⁷ Bosnia Genocide Judgment (n 10) para 462.
²⁴⁸ ibid para 463.
²⁴⁹ Cassese, ‘Taking Stock’ (n 16) 540. See also, Christian Tomuschat, ‘Reparation in Cases of
Genocide’ (2007) 5 JICJ 905.
58 Genocide

innovative Trust Fund for Victims under the ICC Statute, which is empowered to
provide reparations generated by sources including state contributions, some con-
vergence in the remedies available in the wake of genocide may be perceived.250
Moreover, as the prohibition of genocide is recognized as jus cogens or peremp-
tory norm of international law,251 there is the possibility of a separate and aggra-
vated state responsibility. According to the ILC Articles on State Responsibility,
a serious breach of peremptory norms potentially attracts legal consequences
beyond reparation that involve other states, including the obligation to cooper-
ate to bring the breaches to an end, prohibition of recognition of the situation
created by the breaches, and a prohibition on aid and assistance in maintaining
the situation.252
In addition to its discussion of reparations for state responsibility, the ICJ
fleshed out the obligation to punish genocide. Like the obligation to prevent, the
obligation to punish had lain dormant in the articles of the Genocide Convention.
The ICJ’s interpretation gave new life to the obligation, directly benefiting the
international criminal courts, which are so dependent on state cooperation. First,
as discussed in the section above, the ICJ confirmed that the ICTY was an ‘inter-
national penal tribunal’ for the purposes of Article VI. Second, the ICJ gave
close attention to the facts regarding cooperation between Serbia (and previously,
FRY) and the ICTY. The ICJ stated that a regime change in 2000 did not relieve
Serbia of state responsibility for the non-cooperation by organs of the previous
government.253 Moreover, the ICJ pointed to the ‘plentiful, and mutually cor-
roborative, information suggesting that General Mladić, indicted by the ICTY
for genocide’ had been on the territory of Serbia without the Serb authorities
taking measures to ascertain his location and arrest him.254 The ICJ accordingly
found Serbia in breach of Article VI and ordered it to cooperate fully with the
ICTY.255 The strong stance taken by the ICJ on this matter sends states the signal
that they may be held responsible under Article VI for failure to cooperate fully
with a genocide investigation or prosecution by the ICC, ICTY, or ICTR. This
potentially adds another layer of enforcement to the weak frameworks for state
cooperation that exist at the various international criminal courts.256 It also pro-
motes the integrity of the international legal system.

²⁵⁰ ICC Statute Arts 75, 79.

²⁵¹ Congo v Rwanda (n 50) 2, para 64.
²⁵² ILC Articles Art 41. See Nollkaemper, ‘Concurrence between Individual Responsibility and
State Responsibility in International Law’ (n 6) 625–627 for an exposition of this concept. Nollkae-
mper notes that the ILC has recognized that the legal regime governing the consequences of breaches
of peremptory norms is still evolving (627).
²⁵³ Bosnia Genocide Judgment (n 10) para 448.
²⁵⁴ ibid.
²⁵⁵ ibid paras 449, 471(8).
²⁵⁶ On state cooperation, see Geert Knoops and R R Amsterdam, ‘The Duality of State Coop-
eration within International and National Criminal Cases’ (2007) 20 Fordham JIL 263. Goran
Slüiter, ‘To Cooperate or not to Cooperate? The Case of the Failed Transfer of Ntakirutimana to the
Rwanda Tribunal’ (1998) 11 LJIL 383.
 VI. Conclusion 59

VI. Conclusion
The law on genocide is a particularly rich field for studying the way courts both
develop the substantive law and find points of divergence and convergence among
themselves. This is not only because the same substantive law (the Genocide
Convention or its provisions as they appear in the statutes of the international
criminal courts) is being interpreted and applied, but also because there has been
an overlap in the fact situations coming before the different courts. The ICJ and
the ICTY, for example, have both been addressing allegations of genocide arising
out of the war in the Balkans in the 1990s.
The law on genocide shares some features with the law on immunities and the
law on the use of force, including the coexistence of two regimes of responsibility
and the involvement of multiple judicial bodies in interpreting and applying the
law. These features form the context in which the law on genocide is being adju-
dicated. In theory they heighten the risk of fragmentation, but at the same time
the recognition of different modes of responsibility and the creation of multiple
means of enforcement are evidence of the ‘increasing sophistication of interna-
tional law’.257
Indeed, the law on genocide displays a high degree of consistency among the
various international courts. There is genuine integration on the nature of the
protected group, the nature of the destruction, and the concept of ‘in whole or
in part’. The divergence of the ECtHR on the nature of the destruction is only
an instance of apparent fragmentation that can be explained by the temporal con-
straints under which the Court was operating in the Jorgić case.258 In addition,
there are specific examples of how the courts can strengthen the international
legal system by enhancing each other’s enforcement functions. In the Bosnia
Genocide Judgment, the ICJ confirmed the role of the ICTY in prosecuting geno-
cide through its expansive interpretation of Article VI of the Convention. The
ICJ’s development of the state’s obligation to punish under the Convention has
also enhanced the concomitant duty on states to cooperate with international
criminal courts.
There are also some instances of genuine fragmentation. The tests for the required
intent for genocide and for complicity in genocide have given rise to divergent
approaches both among and within international courts. These divergences may
resolve themselves over time as the case law accumulates or due to a clear pro-
nouncement by the common ICTY/ICTR Appeals Chamber or by the ICJ. For
now, however, these instances of fragmentation indicate that the existence of a
comprehensive treaty (or of a carefully drafted statute) does not guarantee the
consistent development of international law. Every treaty is a negotiated text that

²⁵⁷ Seibert-Fohr, ‘State Responsibility for Genocide under the Genocide Convention’ (n 34) 373.
²⁵⁸ Jorgić (n 173).
60 Genocide

almost inevitably involves elements of strategic ambiguity, which can result in

inconsistent judicial interpretations.
The contribution of international courts to the development of the law on
genocide is of course contingent upon the nature of the cases that have come
before them—rulings will usually be limited to the issues raised by the facts. In
the Bosnia Genocide Judgment, the ICJ sought ‘not only to answer the claims
before it, but also systematically to elaborate and explain each and every ele-
ment in the [Genocide] Convention, believing this latter task is also a necessary
contribution to clarity and understanding’.259 Nonetheless, that Judgment was
inevitably limited by its facts and as a consequence the Court did not pronounce
on some important legal questions in the law of genocide, such as whether com-
plicity presupposes that the accomplice shares the specific intent of the principal
perpetrator.260
Other factors that have encouraged fragmentation are the different drafting
and reasoning processes within the various international courts that may result in
vagueness or the avoidance of controversy;261 the absence of concrete cases rais-
ing the legal issue;262 and the ad hoc nature of certain courts making them more
likely to decide in a vacuum, especially in their early years.263
The ICC’s contribution to the law on genocide has thus far been largely through
the Elements of Crimes, not judicial decisions.264 This document was drafted by
states parties, not by judges, and seems to be aimed at restricting the jurisdiction
of the Court rather than at developing the substantive law on genocide. By intro-
ducing conditions such as the ‘manifest pattern’ element, the Elements of Crimes
discards the possibilities that one person can commit genocide or that a genocidal
act can be an isolated event. Based on what has happened at the ICTY and ICTR,
it can be said that when courts define and develop international criminal law
they are more progressive than states, who are driven to circumscribe criminal
law categories rather than to expand them.265 To date the ICTY and ICTR have
found the ICC Statute, including the Elements of Crimes, to be of limited assist-
ance in identifying customary international law.266 Indeed, Article 10 of the ICC
Statute provides that: ‘Nothing in the Statute shall be interpreted as limiting or

²⁵⁹ Judge Rosalyn Higgins, President of the ICJ, ‘Speech at the 59th Session of the International
Law Commission’ (10 July 2007).
²⁶⁰ Bosnia Genocide Judgment (n 10) paras 421–424.
²⁶¹ See above the problem of defining the protected group as being national, ethnical, racial, or
religious in Section IV(A).
²⁶² See the uncertainty regarding the interaction between specific intent and modes of liability
discussed above in Section III.
²⁶³ See Chapter 6(II).
²⁶⁴ The arrest warrant for the one person charged with genocide (Al Bashir) is still outstanding.
²⁶⁵ See Danner, ‘When Courts Make Law’ (n 58).
²⁶⁶ The ICTY has jurisdiction over crimes committed since 1991, but the majority of the crimes
with which it might be concerned were committed prior to the adoption of the ICC Statute on
17 July 1998. (The ICTR only has jurisdiction over crimes committed during 1994.) Judges at
the ICTY have observed that while the ICC Statute may be useful in confirming the content of
 VI. Conclusion 61
prejudicing in any way existing or developing rules of international law for
purposes other than this Statute.’
Nonetheless, under the ICC Statute, national jurisdictions have the first
responsibility and right to prosecute the most serious crimes of international con-
cern.267 The ICC may only exercise jurisdiction where the national legal systems
are unwilling or unable to genuinely investigate and prosecute. This means that
many states parties to the ICC have enacted legislation implementing the Statute
and taking into account the Elements of Crimes.268 In this way, the interpreta-
tions contained in those instruments will shape the law in national jurisdictions
and the ambiguities contained within those instruments may lead to inconsistent
judicial practice.
If like cases are not treated alike it undermines the normative system of law.269
The prohibition on genocide is one of the few recognized jus cogens norms and
the fragmentation of this fundamental normative framework should be avoided.
Further integration of the law on genocide requires a high level of judicial dia-
logue among international courts, carefully reasoned judgments that reflect an
astute understanding of the different roles of each court, and resistance of the
temptation to slip into vagueness or ambiguity in the face of controversial ques-
tions. As Kress has observed, ‘the unspeakable atrocities committed in Srebrenica
evince a feeling of horror in all of us. However, this feeling should not silence the
international criminal lawyer’s insistence on a compelling legal explanation of
this most egregious crime’.270 One may add that this compelling legal explanation
should be given in the full awareness of what other courts have said and with due
consideration to the duality of responsibility under the Genocide Convention.

customary international law, it also is affected by the inevitable political compromises that were
made in Rome. The Stakić Trial Chamber noted ‘the 1998 Rome Statute of the International Crimi-
nal Court is of limited assistance as an aid to the interpretation of the provisions on genocide under
the ICTY Statute’ (Rule 98bis Decision (n 150) 7, n 20). See also Mettraux (n 3) 205, n 51. The
Vasiljević Trial Chamber was critical of what the Elements of Crimes states regarding the crime of
extermination (Prosecutor v Vasiljević (Judgment) IT-98–32-T, T Ch II (29 November 2002) n 586):
‘[T]he definition eventually adopted in the elements of crimes for the ICC is directly inspired by the
definition of “extermination” given in the Kayishema and Ruzindana Trial Chamber Judgment . . .
This Trial Chamber notes that the Kayishema and Ruzindana Trial Chamber omitted to provide any
state practice in support of its ruling on that point, thereby very much weakening the value of its
ruling as a precedent.’
²⁶⁷ ICC Statute Art 17. The Preamble of the ICC Statute and Art 1 refer to the ICC as an interna-
tional institution that ‘shall be complementary to national criminal jurisdictions’.
²⁶⁸ The ICC website lists the national implementing legislation of forty-two states parties.
²⁶⁹ Jonathan I Charney, ‘The Impact on the International Legal System of the Growth of Interna-
tional Courts and Tribunals’ (1999) 31 NYUJILP 697, 699.
²⁷⁰ Claus Kress, ‘The International Court of Justice and the Elements of the Crime of Genocide’
(2007) 18 EJIL 629.
 3
Immunities

I. Introduction
Immunities are ‘conferred to ensure an orderly allocation and exercise of jurisdic-
tion in accordance with international law in proceedings concerning States, to
respect the sovereign equality of States and to permit the effective performance
of the functions of persons who act on behalf of States’.1 It is an area of law that
involves fine technical distinctions as well as substantive normative dilemmas.
The law on immunities affects both states and individuals, and engages the atten-
tion of international and national courts. This makes it an appropriate field for
studying whether courts are rendering compatible decisions and for identifying
factors that influence judicial integration and fragmentation. There are many
types of immunities. Some are covered by special regimes, such as diplomatic
immunity and the immunity of international organizations, and are beyond the
scope of this book. This chapter will focus on three categories: (i) the immu-
nity ratione personae of state officials; (ii) the immunity ratione materiae of state
officials; (iii) and the immunity of the state itself. The immunity of the Head of
State, who occupies a special place in international law, is considered under both
(i) and (ii).
The law on immunities exhibits a higher degree of fragmentation than the
law on genocide examined in the previous chapter. Although there is genuine
integration on who benefits from immunity, there is apparent and genuine frag-
mentation on the acts covered by immunity and, in particular, whether there is
an exception to the immunity of state officials for international crimes.
Some of the factors that contribute to fragmentation overlap with those identi-
fied in Chapters 2 and 4. For instance, the law on immunities is in a transitional
phase and excites significant controversy in political circles, as with the law on
the use of force. What is distinctive about immunities is that the change it is
undergoing is due to a normative conflict. There is a substantive difference of
opinion on where the balance should lie between the interest of the international
community in ending impunity for perpetrators of international crimes (who are

¹ Institut de droit international, Napoli Session ‘Resolution on the Immunity from Jurisdiction of
the State and of Persons Who Act on Behalf of the State in case of International Crimes’ (2009) Third
Commission (Rapporteur: Lady Hazel Fox) Art II.
 I. Introduction 63
often state officials)2 and the interest in allowing states and their officials to enjoy
sovereign equality and freedom of action and communication on the interna-
tional level. Every court that decides a case on immunities must grapple with this
conflict; that balancing test often results in disparate strands of judicial reasoning,
which contribute to uncertainty and fragmentation.
Unlike the law on genocide examined in Chapter 2, there is no overarching
treaty applicable to the law on immunities. Most of the treaties on immunities
concern very specific topics, such as the immunities of diplomatic agents,3 consu-
lar officials,4 members on special mission,5 and representatives of states to inter-
national organizations.6 The only universal treaty on state immunity, the 2004
UN Convention on the Jurisdictional Immunities of States and their Property, is
restricted to civil proceedings and is not yet in force.7 As a result, a whole range
of questions concerning immunities is left unanswered by the existing treaty law.8

² As discussed in Chapter 2, the commission of genocide often involves the state apparatus:
Mahmoud Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd rev
edn, Kluwer Law International 1999). Moreover, crimes against humanity must be ‘widespread or
systematic’, thus also usually involving State complicity (ICC Statute Art 7); war crimes are often
‘committed as part of a plan or policy or as part of a large-scale commission of such crimes’ (ICC
Statute Art 8); and torture as defined in the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June
1987) 1465 UNTS 112 (Torture Convention) necessarily involves a State official (cf ICC Statute
Art 7(2)(e)).
³ Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24
April 1964) 500 UNTS 95 (VCDR); Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons, including Diplomatic Agents (adopted 14 December
1973, entered into force 20 February 1977) 1035 UNTS 167.
⁴ Vienna Convention on Consular Relations (adopted 24 April 1963, entered into force 19 March
1967) 596 UNTS 261 (VCCR).
⁵ Convention on Special Missions (adopted 8 December 1969, entered into force 21 June 1985)
1400 UNTS 231.
⁶ Vienna Convention on the Representation of States in Their Relations with International
Organizations of a Universal Character (adopted 14 March 1975, not yet in force). See Official
Records of the United Nations Conference on the Representation of States in their Relations
with International Organizations, Vol II. See also Art IV of the Convention on the Privileges and
Immunities of the United Nations (adopted 13 February 1946, entered into force 17 September
1946) 1 UNTS 15; Art V of the Convention on the Privileges and Immunities of the Specialized
Agencies (adopted 21 November 1947, entered into force 2 December 1948) 33 UNTS 261; Part
IV of the General Agreement on Privileges and Immunities of the Council of Europe (2 September
1949) CETS No 002.
⁷ UNGA Res 59/38 (2 December 2004), Annex, UN Convention on the Jurisdictional Immunities
of States and their Property (hereinafter UN State Immunity Convention). A final understanding was
reached that such immunity did not extend to criminal proceedings, which is embodied in para 2 of
the resolution. See also David P Stewart, ‘The UN Convention on Jurisdictional Immunities of States
and Their Properties’ (2005) 99 AJIL 194, 205. There is also a regional treaty with a small number of
parties: European Convention on State Immunity, 16 May 1972, 11 ILM 470.
⁸ See, for example, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium)
(Judgment) [2002] ICJ Rep 3 (hereinafter Arrest Warrant Judgment) where the ICJ observed that the
Vienna Convention on Diplomatic Relations and the New York Convention on Special Missions did
not contain any provisions defining the immunities of Ministers for Foreign Affairs and the Court
thus had to decide on the basis of customary international law: para 52.
64 Immunities

In the absence of a comprehensive treaty, the leading source of law is customary

international law. This has been recognized by the ICJ,9 national courts,10
governments,11 and the International Law Commission.12 The identification of
these customary rules has mostly taken place in the practice of states within their
national legal systems.13 Whereas the law on genocide is being developed by the
ICJ and international criminal courts, and the law on the use of force engages
the ICJ, the ICC, and arbitral tribunals, the law on immunities is dominated by
national courts, with some significant decisions on specific issues by the ICJ.
It is by definition before national courts that issues of immunity from the
domestic jurisdiction arise. When a state believes itself, or a senior official, to
be immune from the jurisdiction of the courts of another state, it usually chal-
lenges the purported exercise of that jurisdiction in the courts of the forum state.
Admittedly, in several instances the aggrieved state has come directly to the ICJ,
elevating the matter to an inter-state dispute.14 Nonetheless, the judicial activity
at the national level has created a substantial body of national jurisprudence on
immunities.15 In general, the participation of national courts heightens the risk

⁹ ibid para 52.

¹⁰ Gaddafi, French Cour de Cassation, Criminal Chamber (13 March 2001) 125 ILR 508, 509.
R v Bartle and the Commissioner of Police for the Metropolis and Others ex parte Pinochet [1999] UKHL
17 (hereinafter Pinochet III); Bouzari v Islamic Republic of Iran 71 OR 3d 675 (Ct App for Ontario
2004), paras 40, 85; Wei Ye, Hao Wang, Does A, B,C, D, E, F, and others similarly situated v Jiang Zemin
and Falun Gong Control Office (US District Court, ND Illinois, 2003) 5.
¹¹ See, for example, the ‘suggestions of immunity’ filed by the US State Department in various
cases, which refer to customary international law as the source of the law on immunities: State
Department filing in Tachiona v Mugabe 234 F Supp 2d 401 (SDNY 2002), State Department fil-
ing in Wei Ye v Jiang Zemin 383 F 3d 620 (7th Circuit 2004). See also the submissions of the French
Advocate General in the Gaddafi case: 125 ILR 498–500.
¹² ILC, ‘Preliminary report on immunity of State officials from foreign criminal jurisdiction by
Roman Anatolevich Kolodkin, Special Rapporteur’ (5 May–6 June and 7 July–8 August 2008) UN
Doc A/CN.4/601, 15–17.
¹³ Hazel Fox, The Law of State Immunity (2nd edn, OUP 2008) (noting that ascertaining the cus-
tomary rule often requires an exercise in comparative law rather than international law).
¹⁴ Arrest Warrant Judgment (n 8); Certain Questions of Mutual Assistance in Criminal Matters
(Djibouti v France) (Merits: Judgment) [2008] ICJ Rep 177; Certain Criminal Proceedings in France
(Republic of the Congo v France) (withdrawn in 2010). Three further potential cases have not been
entered on the ICJ’s General List due to the absence of the other state’s consent to jurisdiction under
Art 38(5) of the Rules of Court. In 2012, Equatorial Guinea sought to institute proceedings against
France, claiming French officials had breached international law through proceedings and investiga-
tive measures taken against the President and the Vice-President of Equatorial Guinea. In 2007,
Rwanda filed an application against France regarding an arrest warrant for various State officials
including President Kagame. In 2003, Liberia sought to bring proceedings against Sierra Leone in
respect of a dispute concerning the indictment and international arrest warrant issued against the
President of Liberia, Charles Taylor, by the SCSL. Jurisdictional Immunities of the State (Germany v
Italy, Greece intervening) (Merits: Judgment) [2012] ICJ Rep (hereinafter Jurisdictional Immunities
Judgment) also concerns immunity, but Germany brought challenges in Italian courts before insti-
tuting proceedings before the ICJ.
¹⁵ This observation was made by Judge Rosalyn Higgins, President of the ICJ, ‘Speech to First
International Law in Domestic Courts Colloquium—The Changing Position of Domestic Courts in the
International Legal Order’ The Hague (27 March 2008).
 II. The Context in which Immunity Issues are being Adjudicated 65
of fragmentation because such courts regularly resolve the normative conflict in
favour of the interests of the forum state.16
Nonetheless, there are also aspects of the law on immunities that promote
integration. The international criminal courts have generally adopted a con-
sistent approach due to the codification of rules in their statutes. The relatively
clear positions of the ICJ in the Arrest Warrant and the Jurisdictional Immunities
Judgments also provide a point of integration as regards immunity ratione per-
sonae and state immunity. Moreover, the law on immunities is characterized by
a level of judicial dialogue—the citation, discussion, evaluation, application, or
rejection of decisions—that is high compared to the law on genocide or use of
force. Through dialogue courts look to each other’s practice to determine the cur-
rent state of customary international law on immunity. This judicial dialogue can
serve to strengthen (by following another court’s position) or weaken (by reject-
ing another court’s position) the coherence of state practice. Key decisions by
national jurisdictions have developed the international law on immunities, such
as the much-cited Pinochet III Judgment of the UK House of Lords. National
court decisions have also become the subject of disputes before international
courts, such as Ferrini Judgment of the Italian Supreme Court,17 which triggered
the Jurisdictional Immunities case before the ICJ.18 While the focus of this chapter
will remain on how different international courts are dealing with immunities,
important national court decisions will be discussed where they have generated
state practice that influences the customary international law on immunity.
This chapter first sets out the context in which immunity issues are being adju-
dicated, namely the expansion of national jurisdiction and the attendant efforts
to remove immunity. It then turns to how international and national courts are
deciding the substantive legal issues regarding immunity ratione personae, immu-
nity ratione materiae, and state immunity, and how integrated or fragmented
approaches to these issues reflect on the problem of the diffuse structure of the
international legal system.

II. The Context in which Immunity Issues are being Adjudicated

A. Expanding national jurisdiction
As mentioned above, a factor in the integration and fragmentation of the law
on immunities is the involvement of national courts in applying and developing
the law. Integration is promoted when national courts engage in judicial dia-
logue and seek to locate their decisions in the broader context of other national
¹⁶ Fox, The Law of State Immunity (n 13) 14.
¹⁷ Ferrini v Federal Republic of Germany (Italian Court of Cassation) Decision No 5044/2004
(2006) 128 ILR 658 (hereinafter Ferrini). The Milde case was also a catalyst for Germany’s Application:
Milde (‘Civitella’), 92 Rivista di diritto internazionale (2009) 618 (Italy: Cassazione).
¹⁸ Jurisdictional Immunities Judgment (n 14).
66 Immunities

and international approaches to similar questions. Fragmentation occurs when

national courts ignore or reject existing decisions, without justifying why a differ-
ent approach may be needed and how that different approach may, for example,
be tailored to specific circumstances.
Before analysing the judicial practice of national courts, it is important to
understand the basis for their participation in the law on immunities. The
expanding jurisdictional reach of national laws establishes the logical precondi-
tion for the consideration of the nature and extent of immunities from such
jurisdiction.
As the ICJ stated in the Arrest Warrant Judgment, immunity is an immunity
from a jurisdiction that otherwise exists:
[T]he rules governing the jurisdiction of national courts must be carefully distinguished
from those governing jurisdictional immunities: jurisdiction does not imply absence
of immunity, while absence of immunity does not imply jurisdiction. Thus, although
various international conventions on the prevention and punishment of certain seri-
ous crimes impose on States obligations of prosecution or extradition, thereby requiring
them to extend their criminal jurisdiction, such extension of jurisdiction in no way affects
immunities under customary international law . . . These remain opposable before the
courts of a foreign State, even where those courts exercise such a jurisdiction under these
conventions.19
The expansion of national jurisdiction has to a large extent been a result of
states becoming parties to treaties where jurisdiction over international crimes is
expressly envisaged, such as the Torture Convention20 and the grave breaches pro-
visions of the 1949 Geneva Conventions.21 This can lead to interactions between
national jurisdictions and international courts. In Belgium v Senegal, the ICJ

¹⁹ Arrest Warrant Judgment (n 8) para 59. See also para 3 (Joint Separate Opinion of Judges
Higgins, Kooijmans, and Buergenthal).
²⁰ Articles 4(1) and 5.
²¹ Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the
Field (adopted 12 August 1949, entered into force 21 October 1951) 75 UNTS 31 (First Geneva
Convention) Art 49; Geneva Convention for the Amelioration of the Condition of Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21
October 1950) 75 UNTS 85 (Second Geneva Convention) Art 50; Geneva Convention relative to
the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75
UNTS 135 (Third Geneva Convention) Art 129; Geneva Convention relative to the Protection of
Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75
UNTS 287 (Fourth Geneva Convention) Art 146. Universal criminal jurisdiction exists over crimes
against humanity that were recognized in Art 6(2)(c) of the Nuremberg Charter of the International
Military Tribunal (adopted 8 August 1945, entry into force 8 August 1945) 8 UNTS 279, including
murder, extermination, enslavement, deportation, and other inhumane acts. Compare with the more
limited terms of Art VI of the Genocide Convention: ‘Persons charged with genocide or any of the
other acts enumerated in Article 3 shall be tried by a competent tribunal of the State in the territory
of which the act was committed, or by such international penal tribunal as may have jurisdiction
with respect to those Contracting Parties which shall have accepted its jurisdiction’ (cf interpreta-
tion in Prosecutor v Ntuyahaga (Decision on the Prosecutor’s Motion to Withdraw the Indictment)
ICTR-90-40-T, T Ch I (18 March 1999); Prosecutor v Tadić (Judgment) IT-94–1-A, A Ch (15 July
1999) para 62).
 II. The Context in which Immunity Issues are being Adjudicated 67
noted that Belgium being a party to the Torture Convention was sufficient for
it to be entitled to bring a claim to the ICJ concerning the cessation of alleged
violations by Senegal relating to the obligation to prosecute or extradite.22
The expansion of national jurisdiction has in particular been driven by the
national legislation passed as a result of the implementation of the ICC Statute.23
According to the principle of complementarity, states parties to the ICC Statute
have the first responsibility and right to prosecute the most serious crimes of
international concern,24 though the Court does not have the power to order
states to open domestic investigations or prosecutions.25
A number of states have also passed legislation allowing for the exercise of
universal jurisdiction over a limited category of offences.26 Universal jurisdiction
allows every state to exercise jurisdiction irrespective of the situs of the offence
and the nationalities of the alleged perpetrator and the victim.27 It is not the same
as the principle aut dedere aut judicare contained in many terrorism conventions,
for instance, whereby parties agree to prosecute or extradite an alleged offender
found on their territory: the obligation to prosecute or extradite is not restricted

²² Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Merits:

Judgment) [2012] ICJ Rep paras 64–70.
²³ The ICC website lists the national implementing legislation of forty-two states parties. Only
some of these states parties, such as Australia, have introduced extraterritorial jurisdiction for crimes
under the ICC Statute.
²⁴ ICC Statute Art 17 and preambular paras 4 and 6. The ICC Appeals Chamber recently inter-
preted Art 17. While it acknowledged that states have a duty to exercise their criminal jurisdiction
over international crimes, it stressed that the complementarity principle ‘strikes a balance between
safeguarding the primacy of domestic proceedings vis-à-vis the International Criminal Court on
the one hand, and the goal of the Rome Statute to ‘put an end to impunity’ on the other hand. If
States do not or cannot investigate and, where necessary, prosecute, the International Criminal Court
must be able to step in’: Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Judgment on the
appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on
the Admissibility of the Case) ICC-01/04-01/07, A Ch (25 September 2009) para 85 (hereinafter
Katanga Judgment).
²⁵ Katanga Judgment (n 24) para 86.
²⁶ A major study by Amnesty International conducted in 2001 and updated in 2011 concluded
approximately 125 countries had legislation allowing the exercise of criminal jurisdiction without
requiring ‘a constructive and effective link’ between the crime and the forum state, although as a mat-
ter of due process most of those States excluded trials in absentia: Amnesty International, ‘Universal
Jurisdiction: The duty of states to enact and enforce legislation’ (September 2001) AI Index IOR
53/002-018/2001; ‘A preliminary survey of legislation around the world’ (October 2011) AI Index
IOR 53/004/2011. Since then, Belgium and Spain, two of the most active users of universal jurisdic-
tion, have moved to repeal or amend their universal jurisdiction laws to make them more restric-
tive: Luc Reydams, ‘Belgium Reneges on Universality: the 5 August 2003 Act on Grave Breaches
of International Humanitarian Law’ (2003) 1 JICJ 679; Center for Justice and Accountability,
‘Spanish Congress Enacts Bill Restricting Spain’s Universal Jurisdiction Law’ (4 November 2009).
Some states permit civil claims based on torts committed abroad: see, especially for Europe, Sosa v
Alvarez-Machain (Brief of the Amicus Curiae the European Commission Supporting Neither Party)
No 03-339 (US Supreme Court 23 January 2004).
²⁷ See Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2 JICJ 735
and Princeton University Program in Law and Public Affairs, The Princeton Principles on Universal
Jurisdiction (2001).
68 Immunities

to situations where the underlying jurisdiction is universal.28 The Institut de droit

international determined that there exists in international law a universal crimi-
nal jurisdiction for genocide, crimes against humanity, and war crimes, while
also noting that the forum state should carefully consider any extradition request
from a state having a significant link (territorial or nationality) with the crime,
offender, or victim.29 States may also exercise extraterritorial criminal jurisdiction
when there is a link to the forum state, such as territoriality, nationality of the
offender, or passive personality.30

B. Efforts to remove immunity

In addition to expanding national jurisdiction, the law on immunities is being
shaped by intensifying efforts to remove immunity for certain acts or categories

²⁸ International treaties, with the exception of the grave breaches provisions of the 1949 Geneva
Conventions, tend to place the obligation to establish universal jurisdiction and the obligation aut
dedere aut judicare in separate articles. See, for example, Torture Convention Art 5(2); Convention for
the Suppression of Unlawful Seizure of Aircraft (adopted 16 December 1970, entered into force 14
October 1971) 860 UNTS 105 (Hijacking Convention) Art 4(2); Convention for the Suppression of
Unlawful Acts Against the Safety of Civilian Aircraft (adopted 23 September 1971, entered into force
26 January 1973) 974 UNTS 177 Art 5(2); Convention Against the Taking of Hostages (adopted 17
December 1979, entered into force 3 June 1983) 1316 UNTS 205 (Hostages Convention) Art 5(2).
See Roger O’Keefe, ‘The Grave Breaches Regime and Universal Jurisdiction’ (2009) 7(4) JICJ 811,
826–828 (2009); Belgium v Senegal (n 22) paras 64–70, 74.
²⁹ Institut de droit international, Krakow Session, Resolution III ‘Universal Criminal Jurisdiction
with Respect to the Crime of Genocide, Crimes Against Humanity and War Crimes’ (2006) 71-II
Annuaire de l’Institut de droit international, 297–301.
³⁰ Some states will exercise criminal jurisdiction only when the defendant is within the State’s
custody, thereby limiting the scope of universal criminal jurisdiction, as well as the scope of civil
actions attached to such jurisdiction. Since jurisdiction exists at the time of the commission of the
alleged offence, the presence of the defendant on the state’s territory after the commission of the
alleged offence does not turn universal jurisdiction into jurisdiction based on territoriality. Cases
cited in the Brief of the Amicus Curiae the European Commission Supporting Neither Party: Sosa v
Alvarez-Machain (n 26): for example, France, Law No 95-1 of 2 January 1995, Art 2, implementing
Security Council Resolution 827 establishing the International Criminal Tribunal for the former
Yugoslavia, in Official Journal of the French Republic 71; 3 January 1995; French Law No 96-432 of
22 May 1996, Art 2, implementing Security Council Resolution 955 establishing the International
Criminal Tribunal for Rwanda, in Official Journal of the French Republic 7695; 23 May 1996;
Cour de Cassation, Decision of 16 January 1998, 102 Revue Generale de Droit International Public
825, 827 (1998) (suspect must be present for exercise of universal jurisdiction for genocide and
crimes against humanity); Netherlands, Dutch Hoge Raad [Dutch Supreme Court] (Hoge Raad
der Nederlanden), No 749/01 (CW 2323) § 8.5 (18 September 2001) (exercise of jurisdiction over
torture committed abroad requires presence of accused). But see Germany, Federal Code of Criminal
Procedure, Art 153f (2), No 3 and 4, as amended by Art 3, No 5 of the Law introducing a Federal
Code on Crimes against international law (Völkerstrafgesetzbuch) (26 June 2002), in Federal Official
Journal, Bundesgesetzblatt, Pt I, 2253, 2259 (jurisdiction may be exercised over suspects not present
but prosecutors allowed to close investigation if suspect not present and no presence expected).
Moreover, in deciding whether to bring or maintain a prosecution, public officials may consider
whether another State is better equipped to exercise jurisdiction, or has a greater interest in exercis-
ing jurisdiction, because the act occurred on its territory or involved its nationals as perpetrators: For
example, Belgium, Code of Criminal Procedure, Art 12a, No 4, as amended by the law of 5 August
2003 on grave violations of international humanitarian law, in Moniteur belge (Official Journal)
 II. The Context in which Immunity Issues are being Adjudicated 69
of person. These efforts are the reason for the law on immunities being in a state
of flux: the list of exceptions to immunity is not yet settled by either a criti-
cal mass of case law or a treaty in force. As will be discussed in more depth in
Chapter 5,31 a high level of controversy and change in an area of law increases the
tendency towards fragmentation, at least in the short term, as judges either avoid
legal issues or propose bold solutions.
In some ways, the law on immunities has been in transition for almost as
long as it has existed. The doctrine of absolute immunity has been questioned
for over a century. As states began to engage in activities not wholly reserved
to the states, such as commercial transactions, there was a movement, starting
with Italy, Belgium, and Egypt, towards the contemporary doctrine of restric-
tive immunity.32 This doctrine drew the distinction between acta jure imperii
(acts of governmental authority to which immunity was still attached) and acta
jure gestionis (commercial or private acts in respect of which there was no longer
immunity).33 The restrictive doctrine is adopted by the majority of states, but a
2011 judicial decision has entrenched and expanded China’s adherence to the
absolute doctrine. In Democratic Republic of the Congo v FG Hemisphere Associates
the Hong Kong Court of Final Appeal held that ‘the [Hong Kong Special
Administrative Region] cannot, as a matter of legal and constitutional principle,
adhere to a doctrine of state immunity which differs from that adopted by the
PRC. The doctrine of state immunity practiced in HKSAR, as in the rest of
China, is accordingly a doctrine of absolute immunity’.34 This result is somewhat
surprising since China had signed the UN State Immunity Convention, which
clearly adopts the restrictive doctrine.
For those states that do adhere to the restrictive doctrine, the scope of the
law on immunity is relatively well defined insofar as commercial activities are

(7 August 2003) (prosecutor will request a magistrate to investigate a complaint unless interests of
justice or international obligations require that the matter be brought before an international tribunal
or tribunal of another state, provided the alternative tribunal is competent, independent, impartial,
and fair); Germany, Federal Code of Criminal Procedure, Art 153f (2) No 4 (prosecutor may decide
not to investigate if jurisdiction based on territoriality or nationality of victim or suspect exists else-
where); Spain, Spanish Supreme Court, No 327/2003 (25 February 2003), reprinted in 42 ILM
686, 698 (deference given to courts in the place where the act committed unless authorities of that
state impede prosecution or directly participated in crime). While Judges Higgins, Kooijmans, and
Buergenthal, in their Separate Opinion in the Arrest Warrant Judgment (n 8) saw in the US Alien Tort
Statute ‘the beginnings of a very broad form of extraterritorial jurisdiction’ in the civil sphere, they
also noted that the assertion of such jurisdiction in that statute had ‘not attracted the approbation of
States generally’: para 48.
³¹ See Chapter 5(III)(C).
³² Rosalyn Higgins, Problems and Process: International Law and How We Use It (OUP 1994) 79;
Fox, The Law of State Immunity (n 13) 224–226.
³³ Guttieres v Elmilik (1886) Foro It 1886-I, 913 (Court of Cassation in Florence). For an historical
survey, see Sompong Sucharitkul, State Immunities and Trading Activities (Stevens & Sons 1959).
³⁴ Democratic Republic of the Congo v FG Hemisphere Associates [2011] HKEC 747, at para 183.
The ruling was affirmed by the Standing Committee of the National People’s Congress on 26 August
2011.
70 Immunities

concerned. Commercial exceptions are included in the statutes of numerous

national jurisdictions and have been codified in a regional treaty.35 Although it
is not yet in force, the 2004 UN Convention on Jurisdictional Immunities of
States and their Property (UN State Immunity Convention) seems to establish
an international standard for exceptions to immunity so far as private law and
commercial transactions are concerned.36
It is a different story for potential exceptions to immunity for violations of
international law, which are much less well accepted and defined. Certain inter-
national human right conventions appear to preclude reliance on immunities
ratione personae and ratione materiae, albeit sometimes in an indirect manner.37
Article IV of the Genocide Convention provides that ‘[p]ersons committing
genocide or any of the other acts enumerated in article III shall be punished,
whether they are constitutionally responsible rulers, public officials or private
individuals’.38 Article VI, however, limits prosecution to the state with territorial
jurisdiction or ‘such international penal tribunal as may have jurisdiction with
respect to those Contracting Parties which shall have accepted its jurisdiction’.39
As a result, the Genocide Convention restricts immunity in very limited circum-
stances: the prosecution of a foreign Head of State or state official by the state
where the alleged genocide was committed.
The Geneva Conventions are silent as to immunities and actual prosecutions
are scarce,40 but the grave breaches regime contained therein appears to establish

³⁵ Foreign Sovereign Immunities Act 28 USCS § 1602 (1976) (US); State Immunity Act 1978
(UK); State Immunity Act 1979 (Singapore); State Immunity Act 1982 (Canada); Foreign State
Immunities Act 1982 (South Africa); Immunities and Privileges Act 1984 (Malaysia); Foreign States
Immunities Act 1985 (Australia); European Convention on State Immunity, 16 May 1972, 11 ILM
470.
³⁶ The Convention had thirteen parties as of October 2012. Article 30 provides that the
Convention will enter into force following the deposit of the thirtieth instrument of ratification,
acceptance, approval, or accession with the UN Secretary-General. Fox, The Law of State Immunity
(n 13) 3–4. For citations by the Supreme Court of Japan, the UK House of Lords, and the New
Zealand High Court in Auckland, see: 21 July Case No 1231 (2003) 1416 Saibansho Jiho 6 (Sup Ct
2006); Jones v Minister of Interior of Kingdom of Saudi Arabia [2006] UKHL 26, [2006] 2 WLR 70,
para 8 (hereinafter Jones v Saudi Arabia); Fang and Ors v Jiang and Ors 21 December 2006, HC AK
CIV 2004-404-584, para 65.
³⁷ See A Borghi, L’immunité des dirigeants politiques en droit international (série II, vol 2, Helbing
& Lichtenhahn 2003) 66. Others take the view that these treaties contain no provisions explicitly
precluding immunities normally applicable in national courts: See, for example, Joe Verhoeven, ‘Les
immunités propres aux organes ou autres agents des sujets du droit international’ in J Verhoeven (ed),
Le droit international des immunités: contestation ou consolidation? (De Boeck & Larcier 2004) 92,
125.
³⁸ The reference to ‘rulers’ implies immunity ratione personae does not apply whereas the reference
to ‘public officials’ suggests immunity ratione materiae does not apply.
³⁹ Some commentators have suggested that Art VI does not prevent a state from exercising univer-
sal jurisdiction over genocide, but it does not expressly provide for it: see discussion in Arrest Warrant
Judgment (n 8) para 27 (Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal).
⁴⁰ Ward Ferdinandusse, Direct Application of International Criminal Law in National Courts (T M
C Asser Press 2006) 91–99; Ward Ferdinandusse, ‘The Prosecution of Grave Breaches in National
Courts’ (2009) 7 JICJ 723.
 II. The Context in which Immunity Issues are being Adjudicated 71
universal jurisdiction and the obligation aut dedere aut judicare.41 Although no
territorial or nationality linkage is expressly required, the highly regarded Pictet
Commentary suggests that the obligation was understood as being an obligation
on states parties to search for offenders who may be on their territory.42
Treatment of immunity pursuant to the Torture Convention also requires
reading between the lines. Article 1(1) defines torture as, inter alia, acts ‘inflicted
by or at the instigation of or with the consent or acquiescence of a public offi-
cial or other person acting in an official capacity’. Article 4(1) requires parties
to ensure that all acts of torture are offences under criminal law while Article
5(2) requires each state party to establish jurisdiction over acts of torture where
the alleged offender is present on its territory and Article 5(3) clarifies that any
criminal jurisdiction exercised in accordance with internal law is not excluded. In
the House of Lords Judgment Pinochet III, some Law Lords read these Articles
together as removing immunity ratione materiae (which otherwise applies to per-
sons acting in their official capacity) so far as torture is concerned.43 If immunity
ratione materiae was retained for a crime that necessarily involved official acts, then
the whole purpose of the Torture Convention would be thwarted. Interestingly,
Article 14 of the Torture Convention raises the possibility of removing immuni-
ties in civil proceedings by providing for a right to civil redress for the victims,
though the jurisdictional scope is not expressly stated.44
The Statutes of the Nuremberg Tribunal, the ICTY, and the ICTR provide
that the official capacity of the defendant is not a defence before these judicial
bodies—the official position of a person ‘shall not relieve such person of crimi-
nal responsibility nor mitigate punishment’.45 This is not the same as removing
immunity: immunity is a bar to jurisdiction rather than responsibility,46 and the
⁴¹ First Geneva Convention Art 49; Second Geneva Convention Art 50; Third Geneva Convention
Art 129; Fourth Geneva Convention Art 146. See also the incorporation of this provision by refer-
ence in Art 85, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force
7 December 1978) 1125 UNTS 3 (Additional Protocol I).
⁴² Jean Pictet, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field: commentary (Vol I, ICRC 1952). As the Joint Separate Opinion in the Arrest
Warrant Judgment asks, ‘Is it a true example of universality, if the obligation to search is restricted to
the [State’s] own territory?’ ((n 8) para 31).
⁴³ See Opinions of Lord Browne-Wilkinson, Lord Saville of Newdigate, Lord Nicholls, Lord Hope,
and Lord Millett in Pinochet III (n 10).
⁴⁴ For the varying views, see Craig Forcese, ‘De-Immunizing Torture: Reconciling Human Rights
and State Immunity’ (2007) 52 McGill LJ 127, 152–153. The Jurisdictional Immunities Judgment
(n 14), as discussed below, held state immunity in customary international law is not dependent upon
the existence of an effective alternative means of redress.
⁴⁵ Charter of the International Military Tribunal at Nuremberg Art 7; ICTY Statute Art 7(2);
ICTR Statute Art 6(2). See also Art 7 of the ILC, ‘1996 Draft Code of Crimes against Peace and
Security of Mankind’ YB ILC 1996 Vol II (1996). Since the Allies decided not to prosecute the
Japanese emperor after the Second World War, Art 6 of the Charter of the Tokyo Tribunal does not
explicitly provide that a person’s position as Head of State may not be relied upon in exempting indi-
vidual responsibility: Dapo Akande, ‘International Law Immunities and the International Criminal
Court’ (2004) 98 AJIL 407, 417 n 68 (hereinafter Akande, ‘International Law Immunities’).
⁴⁶ Arrest Warrant Judgment (n 8) para 61.
72 Immunities

provisions are silent as to jurisdiction. The Statute of the Special Tribunal for
Lebanon (STL) is silent as to official capacity altogether and the Tribunal will
thus have to decide this issue in accordance with customary international law.47
The ICC Statute goes beyond removing the substantive official capacity defence
by expressly denying procedural immunities as well. Article 27 provides:
1. This Statute shall apply equally to all persons without any distinction based
on official capacity. In particular, official capacity as a Head of State or
Government, a member of a Government or parliament, an elected rep-
resentative or a government official shall in no case exempt a person from
criminal responsibility under this Statute, nor shall it, in and of itself, con-
stitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official
capacity of a person, whether under national or international law, shall not
bar the Court from exercising its jurisdiction over such a person.
Article 27(2) is the first express denial of immunity in the constitutive instrument
of an international court, but even then it must be read with Article 98, which
preserves immunity in certain situations.48
As the above discussion demonstrates, efforts to remove immunity have been
piecemeal and often indirect. This increases the impact of the interpretation and
development of the law by national and international courts. At the same time,
the unsettled nature of the law also raises the potential for fragmentation.

III. Immunity ratione personae

For the two types of immunities that apply to state officials (ratione personae and
ratione materiae), the substantive legal issues being debated before international
and national courts revolve around three questions: to whom does the immunity
apply? Which acts are covered by the immunity? Is there an exception to this
immunity for allegations of international crimes?
A study of the judicial practice on immunity ratione personae reveals that there
is genuine integration on both the person and the acts to which the immunity
applies. Integration on these core issues has been promoted by the ICJ Arrest
Warrant Judgment, which has generally been treated as an authoritative state-
ment of the customary law on these questions. There has been apparent frag-
mentation on whether there is an exception to immunity ratione personae for

⁴⁷ William A Schabas, ‘The Special Tribunal for Lebanon: Is a “Tribunal of an International

Character” Equivalent to an “International Criminal Court”?’ (2008) 21 LJIL 513, 526 (2008)
(hereinafter Schabas, ‘The Special Tribunal for Lebanon’).
⁴⁸ Article 98(1) reads: ‘The Court may not proceed with a request for surrender or assistance which
would require the requested State to act inconsistently with its obligations under international law
with respect to the State or diplomatic immunity of a person or property of a third State, unless the
Court can first obtain the cooperation of that third State for the waiver of the immunity.’
 III. Immunity ratione personae 73
international crimes due to a seeming schism between the approaches of the ICJ
and the international criminal courts. However, these different approaches can
be explained on the basis of the different natures and functions of these courts. It
is possible for them harmoniously to coexist as long as the underlying rationale is
openly acknowledged and explained.

A. Who does it apply to?

Immunity ratione personae, also known as personal immunity, is granted to a
limited number of incumbent high-ranking state officials, including the Head
of State, the Head of Government, and the Minister for Foreign Affairs.49 This
immunity applies only throughout the period of their office and covers both
official and private acts during this period.50
As compared to immunity ratione materiae, there is a greater degree of coher-
ence in the approaches of the different courts to the nature and extent of immunity
ratione personae. The point of integration is the ICJ Arrest Warrant Judgment.
It is beyond doubt that immunity ratione personae applies to Heads of State
under customary international law; this is also the assumption regarding Heads
of Government.51 Specific treaties have extended this immunity to certain diplo-
matic staff.52 Until the Arrest Warrant Judgment by the ICJ, the general view was
that Ministers for Foreign Affairs were not entitled to the same immunity ratione
personae as Heads of State.53 The ICJ’s Judgment—in a clear act of developing
the law—conflated the immunity enjoyed by the Heads of State with those of
Ministers for Foreign Affairs. As the Joint Separate Opinion pointed out, this enti-
tled Ministers for Foreign Affairs to immunities during private travels, which was

⁴⁹ Arrest Warrant Judgment (n 8) para 51. It is also granted by virtue of specific treaties to members
of the government on mission, see Vienna Convention on Diplomatic Relations Arts 29 and 31;
Convention on Special Missions.
⁵⁰ See Arthur Watts, ‘The Legal Position in International Law of Heads of States, Heads of
Governments, and Foreign Ministers’ (1994-III) 247 Recueil des Cours 247.
⁵¹ The 2001 Vancouver Resolution of the Institut de droit international Institut de droit interna-
tional, Vancouver Session ‘Resolution on the Immunities from Jurisdiction and Execution of Heads
of State and of Government in International Law’ (2001) Thirteenth Commission (Rapporteur: Joe
Verhoeven) stated that Heads of State and of Government enjoyed absolute immunity ratione perso-
nae from criminal jurisdiction.
⁵² Vienna Convention on Diplomatic Relations Arts 29, 31; Convention on Special Missions Art
31(1); 1975 Vienna Convention on the Representation of States in Their Relations with International
Organizations of a Universal Character (adopted 14 March 1975, not yet in force) Art 30.
⁵³ The Institut de droit international, ‘2001 Vancouver Resolution’ made no mention of Ministers
for Foreign Affairs (Art 2). Article 3(2) of the UN State Immunity Convention (based on a draft
article by the ILC of 1991) provided that ‘[t]he present Convention is without prejudice to privileges
and immunities accorded under international law to heads of State ratione personae’, with no refer-
ence to Ministers for Foreign Affairs. Both documents were the produce of extensive examination
of State practice by the Institut and ILC. cf American Law Institute, Restatement (Second) of Foreign
Relations Law of the United States (1962) 200–202, which states Heads of Government and Ministers
for Foreign Affairs enjoy the same immunity as Heads of State.
74 Immunities

‘far less clear’ from customary international law.54 The ICJ provided a functional
justification for this expansion of the categories of persons enjoying immunity
ratione personae, citing the need to ensure the Minister’s effective performance
of functions on behalf of the state—a rationale that had been foreshadowed in
earlier scholarly work.55 This was a shift away from the traditional justification
for immunity ratione personae, namely that the Head of State personified the
sovereign state and he or she could not be subject to the jurisdiction of another
sovereign according to the doctrine of par in parem non habet imperium.56 By
determining the extent of immunity ratione personae by reference to the nature of
the functions exercised by the official, the ICJ employed a test that is usually asso-
ciated with immunity ratione materiae, also known as ‘functional immunity’.57
Moreover, the ICJ’s wording that ‘certain holders of high-ranking office in a
State, such as . . . ’ benefited from immunity ratione personae58 has opened the
door for other courts to extend this immunity beyond Heads of State, Heads
of Government, and Ministers for Foreign Affairs. By shifting the rationale for
immunity ratione personae from the ‘personification of the state’ to the ‘effec-
tive performance of functions on behalf of the state’, the ICJ has applied the
immunity to a broader range of state officials. A Swiss court has since suggested
a Minister of Atomic Energy benefits from immunity ratione personae59 and two
UK cases have extended it to a Minister of Defence and a Minister for Commerce
and International Trade, with express reference to the Arrest Warrant Judgment.60
These extensions appear to be consistent with the reasoning of the ICJ and thus
represent a coherent development of the law rather than fragmentation.
The ICJ had a further opportunity to explore the limits of immunity ratione
personae in the Djibouti v France case. Djibouti contended in its written plead-
ings that the procureur de la République and the Head of National Security
benefited from immunity ratione personae from criminal jurisdiction and invio-
lability.61 The ICJ declined to extend immunity ratione personae to cover these

⁵⁴ Arrest Warrant Judgment (n 8) para 84 (Joint Separate Opinion).

⁵⁵ Arrest Warrant Judgment (n 8) para 53. See also the Institut de droit international, ‘2001
Vancouver Resolution’ preamble; ILC, ‘Draft Articles on Jurisdictional Immunities of States and
their Property, with commentaries’ II YILC 1991 (1991) para 19.
⁵⁶ Watts, ‘The Legal Position in International Law of Heads of States, Heads of Governments, and
Foreign Ministers’ (n 50) 52.
⁵⁷ Arrest Warrant Judgment (n 8) para 53.
⁵⁸ ibid para 51 (emphasis added).
⁵⁹ Evgeny Adamov v Federal Office of Justice, Switzerland Federal Tribunal, First Public Law
Chamber, No 1A.288/2005, Judgment of 22 December 2005, para 3.4.2 (in obiter dictum).
⁶⁰ Re General Shaul Mofaz (United Kingdom Bow Street Magistrates’ Court: Judgment of 12
February 2004) unreported but reproduced in (2004) 53 ICLQ 771; Re Bo Xilai (United Kingdom
Bow Street Magistrates’ Court: Judgment of 8 November 2005) unreported but reproduced in (2005)
128 ILR 713. In the latter case, the Convention on Special Missions was the primary basis for the
decision that immunity applied.
⁶¹ Djibouti v France Judgment (n 14) para 16 (Application of Djibouti), para 137 (Memorial of
Djibouti).
 III. Immunity ratione personae 75
officials,62 which gives some insight into the limits of the formulation ‘holders
of high-ranking office’; it does not stretch to cover prosecutors and national
security officials. During the oral proceedings, Djibouti reformulated its claims
and asserted instead that the officials were entitled to immunity ratione materiae,
which is addressed below.63

B. Which acts are covered?

As regards which acts are covered by immunity ratione personae from criminal
jurisdiction, international and national courts agree that there is a broad mate-
rial scope and a strict temporal scope: immunity ratione personae applies to all
acts (official and personal) and applies only during the person’s period in office.
Once the person has left office, only immunity ratione materiae will apply. There
is agreement among international and national courts on this aspect of immu-
nity ratione personae,64 which is a natural consequence of the clear and confined
nature of the rule.
An issue related to which acts benefit from immunity is the question of which
acts infringe immunity ratione personae. In the Arrest Warrant Judgment, the ICJ
held that the issuance and circulation of an international arrest warrant in absen-
tia by the Belgian authorities infringed Mr Yerodia’s immunity, even though the
warrant expressly made an exception for official visits by Mr Yerodia to Belgium.65
The Court refined this principle in Djibouti v France where it considered whether
two invitations to testify issued to a sitting Head of State infringed his immunity
from criminal jurisdiction or attacked his honour and dignity. As a first step,
the ICJ noted that the rule of customary international law reflected in Article
29 of the Vienna Convention on Diplomatic Relations is ‘necessarily applicable
to Heads of State’ even though the text is addressed to diplomatic agents.66 It
held that the invitation to testify issued to President Guelleh of Djibouti by
the French authorities was not associated with measures of constraint; it was
an invitation which the Head of State could freely accept or decline. The Court
reached this conclusion while acknowledging that the first invitation to President
Guelleh was issued with procedural defects.67 There was no attack by France on

⁶² Djibouti v France Judgment (n 14) para 194 (also noting that they were not diplomats within
the meaning of the Vienna Convention on Diplomatic Relations of 1961, and the Convention on
Special Missions of 1969 was not applicable in the case).
⁶³ Section IV on immunity ratione materiae below.
⁶⁴ Arrest Warrant Judgment (n 8) para 55. See also Pinochet III (n 10) [529] (Lord Browne-
Wilkinson); France, Gaddafi Judgment (n 10) 509.
⁶⁵ Arrest Warrant Judgment (n 8) paras 70–71; para 1.12 (Counter-Memorial of Belgium). Belgium
also pointed out that the warrant was not the subject of an Interpol Red Notice.
⁶⁶ Djibouti v France Judgment (n 14) para 174. The rule in question was that the obligation on the
receiving state to ‘take all appropriate steps to prevent any attack on [the] person, freedom or dignity’
of the diplomatic agent.
⁶⁷ Djibouti v France Judgment (n 14) paras 171–172. Djibouti had argued that the first summons
was associated with measures of constraint because under Art 101 of the French Code of Criminal
76 Immunities

the immunities from criminal jurisdiction enjoyed by the Head of State even
though it caused him some embarrassment by being issued during his presence
in France for the Conference of Heads of State of Africa and France.68 The precise
reasoning of the ICJ on this topic is likely to be followed by national courts that
confront similar issues, and therefore promote integration in this area.

C. Any exception for international crimes?

The ICJ and national courts take the consistent position that there is absolute
immunity ratione personae for persons accused of international crimes. The inter-
national criminal courts, based on provisions in their statutes, take a different
view, but this fragmentation is more apparent than real.
The Arrest Warrant Judgment confirmed the absolute nature of immunity
ratione personae from criminal process accorded to a Minister for Foreign Affairs.
Having surveyed the state practice (national court decisions and national legisla-
tion) that existed at the time, the Court concluded that it was unable to deduce
‘that there exists under customary international law any form of exception to the
rule according immunity from criminal jurisdiction and inviolability to incum-
bent Ministers for Foreign Affairs where they are suspected of having committed
war crimes or crimes against humanity’.69 Domestic court decisions preceding and
following the ICJ Judgment have almost always upheld immunity ratione perso-
nae, even when confronted with allegations of massive human rights violations.
The practice is consistent across the jurisdictions of France,70 the Netherlands,71
the United States,72 the United Kingdom,73 Belgium,74 and Spain.75 Two national
cases that could be interpreted as removing immunity ratione personae are explica-
ble on grounds other than an exception to immunity for international crimes.76

Procedure a witness can be compelled to attend by law enforcement agencies. The ICJ held that cour-
tesies were not properly observed but there were no measures of constraint.
⁶⁸ Djibouti v France Judgment (n 14) paras 171–180.
⁶⁹ Arrest Warrant Judgment (n 8) para 58.
⁷⁰ Gaddafi Judgment (n 10) 508–510.
⁷¹ The Hague City Party and ors v Netherlands and ors, Interlocutory proceedings, KG 05/432;
ILDC 849 (NL 2005).
⁷² Wei Ye v Jiang Zemin (n 11); Tachiona v United States, 386 F3d 205 (2nd Cir 2004); Habyarimana
v Kagame (10th Cir, 2012) (decisions usually based on suggestions of immunity from the State
Department).
⁷³ Re General Shaul Mofaz (n 60); Re Bo Xilai (n 60); UK Bow Street Magistrates’ Court, Re Mugabe
(First instance) unreported decision (14 January 2004). In Pinochet III (n 10), several Law Lords
emphasized that Pinochet would have benefited from immunity if he had been the incumbent Head
of State at the time of the proceedings.
⁷⁴ Re Sharon and Yaron Final Appeal No p 02 1139 F/1 (Belgium Court of Cassation 12 February
2003).
⁷⁵ Castro case No 1999/2723 (Order) (Spain Audiencia Nacional 4 March 1999), cited in Antonio
Cassese, International Criminal Law (OUP 2003) 272, n 20; Auto del Juzgado Central de Instruccion
No 4 (Spain Audiencia Nacional) (6 February 2008) 151–157.
⁷⁶ United States v Noriega 117 F 3d 1206 (11th Cir 1997) (the US did not recognize Noriega as the
Head of State so his immunity ratione personae did not arise); Special Prosecutor v Col Hailemariam
 III. Immunity ratione personae 77
The Arrest Warrant Judgment was a continuation of the trend in domestic
court decisions to uphold the immunity ratione personae of state officials accused
of international crimes, but it also apparently had the effect of freezing this
trend in place. Subsequent domestic court decisions in the UK have tended to
cut short the balancing of values in immunities cases by referring to the Arrest
Warrant Judgment.77 The ICJ’s Judgment has also replaced the ‘personification of
the state’ argument with a functional justification based on the smooth conduct
of international relations—an approach to reasoning now being picked up in
domestic courts with the result that more ‘posts’ are recognized as potentially
attracting immunity ratione personae.78
While there is significant integration between the ICJ’s approach to immunity
ratione personae and the approach of national courts, the ICJ’s Arrest Warrant
Judgment does appear, at first glance, to diverge from the practice of the inter-
national criminal courts on this issue. In the Arrest Warrant Judgment the ICJ
declined to remove the immunity of a senior state official whereas the ICC
Statute expressly removes immunities in Article 27(2) of its Statute and has
issued an arrest warrant to the President of the Sudan; the ICTY and the SCSL
have indicted incumbent Heads of State.79 Yet, the ICJ’s Judgment expressly
accepted that an incumbent state official enjoying immunity ratione personae may
be subject to criminal proceedings before ‘certain international criminal courts
possessing jurisdiction’.80 Charles Taylor, President of Liberia at the time of his
indictment, relied on the Arrest Warrant Judgment to argue that immunity ratione
personae shielded him from proceedings before the SCSL. The Appeals Chamber
of the SCSL rejected his argument, citing the international nature of the Special
Court and referring to the distinction between national and international courts
expressed in the ICJ’s Judgment.81 While certain aspects of the SCSL’s Judgment
are open to criticism,82 it promoted integration by locating itself within the rea-
soning of the ICJ’s Arrest Warrant Judgment.

and ors ILDC 555 (Ethiopia 1995) (the prosecution was in the country of the accused person’s nation-
ality so immunity did not arise).
⁷⁷ See, for example, Re General Shaul Mofaz (n 60), Re Bo Xilai (n 60), Re Mugabe (n 73).
⁷⁸ Adamov (n 59); Re General Shaul Mofaz (n 60), Re Bo Xilai (n 60).
⁷⁹ Slobodan Milosevic, President of the Federal Republic of Serbia (ICTY) and Charles Taylor,
President of Liberia (SCSL). The ICTR issued the first decision that a former Head of Government,
Prime Minister Jean Kambanda, was guilty of genocide.
⁸⁰ Arrest Warrant Judgment (n 8) para 61.
⁸¹ Prosecutor v Charles Ghankay Taylor (Decision on Immunity from Jurisdiction) SCSL-2003–
01-I, A Ch (31 May 2004) paras 50–53. See also Schabas, ‘The Special Tribunal for Lebanon’ (n 47)
526.
⁸² The SCSL did not address the question of whether a treaty-based court (as opposed to a court
established pursuant to Chapter VII of the UN Charter) may remove immunity ratione personae of
third states’ officials: Micaela Frulli, ‘The Question of Charles Taylor’s Immunity: Still in search of a
balanced application of personal immunities?’ (2004) 2 JICJ 1118. It also conflated the removal of
the defence of official capacity (in Art 6(2) of its Statute) with the removal of immunities (as in Art 27
of the ICC Statute): Rosanne van Alebeek, The Immunity of States and their Officials in International
Criminal Law and International Human Rights Law (OUP 2008) 283–292.
78 Immunities

What the ICJ did not do in the Arrest Warrant Judgment was to find that the
constitutive instruments and decision of international criminal courts had cre-
ated an exception to immunity ratione personae in customary international law.83
In her dissenting opinion, Judge ad hoc van den Wyngaert stated the ICJ had
‘disregard[ed] the whole recent movement in modern international criminal law
towards recognition of the principle of individual accountability for international
core crimes’.84 This raises the difficulty of analysing treaty practice: does the crea-
tion of an exception to a customary rule in a treaty confirm customary law or
show that it is changing? During transitional periods in international law, treaties
begin to depart from established practice. In the realm of immunities, the statutes
and practice of the ICC, ICTY, and SCSL may be seen to indicate that immunity
ratione personae is not absolute—at least with respect to international courts.
According to the ICJ, this should be considered as confirming the traditional
customary international law rule of absolute immunity ratione personae.85
This balance may shift over time as the complementarity principle of the ICC
encourages states parties to implement the ICC Statute in their national legal
systems.86 Implementation of the Statute would include removing immunity
ratione personae in relation to ICC requests for arrest and surrender.87 This could
generate national judicial decisions setting aside immunity for such crimes, thus
accumulating sufficient state practice eventually to change customary interna-
tional law.
The practice of the ICTY on immunities ratione personae has not directly
addressed the question of whether there is an exception for international crimes.
As explained above, Article 7(2) of the ICTY’s Statute removes the substan-
tive defence of official capacity, but does not expressly remove immunities. The
indictment of Slobodan Milošević while he was President of the Federal Republic
of Yugoslavia may be cited as evidence of an emerging exception to immunity

⁸³ Arrest Warrant Judgment (n 8) para 58.

⁸⁴ ibid para 333, para 27 (Dissenting Opinion of Judge ad hoc van den Wyngaert).
⁸⁵ In Ahmadou Sadio Diallo (Guinea v Democratic Republic of the Congo) (Preliminary Objections:
Judgment) [2007] ICJ Rep 639 (hereinafter Diallo Judgment) the ICJ addressed this dilemma in the
context of diplomatic protection: ‘The fact invoked by Guinea that various international agreements,
such as agreements for the promotion and protection of foreign investments and the Washington
Convention, have established special legal régimes governing investment protection, or that provi-
sions in this regard are commonly included in contracts entered into directly between States and
foreign investors, is not sufficient to show that there has been a change in the customary rules of
diplomatic protection; it could equally show the contrary’ (para 90).
⁸⁶ Despite the references to ‘the duty of every State to exercise its criminal jurisdiction over those
responsible for international crimes’ and the ‘effective prosecution must be ensured by taking meas-
ures at the national level’ in the preamble of the ICC Statute, the operational provisions do not actu-
ally include an obligation to act nor responsibility for failure to act. The only requirements of states
relate to cooperation with the ICC.
⁸⁷ See, for example, s 4 of the South African Act No 27 of 2002 on the Implementation of the
Rome Statute of the International Criminal Court; Art 6(3) of the Croatian Law on the Application
of the Statute of the International Criminal Court and the Prosecution of Criminal Acts against the
International Law on War and Humanitarian Law of 17 October 2003.
 III. Immunity ratione personae 79
ratione personae.88 However, Milošević was arrested and brought to the ICTY
by national authorities after he had left office and the ICTY did not comment
directly on the application of Article 7(2) to a sitting Head of State.89
The ICC is the only international court with a statute that explicitly denies
immunity ratione personae. This obviously binds the 121 states parties to the
ICC Statute, subject to Article 98, but what is not so clear is how this removal
of immunities operates with regard to non-parties.90 The Pre-Trial Chamber has
made two pronouncements, nearly two years apart, on this question in the con-
text of the case against the incumbent Head of State of the Sudan, President Al
Bashir. In its March 2009 decision on the prosecution’s application for an arrest
warrant, the Pre-Trial Chamber held that current position of Omar Al Bashir as
Head of a state which is not a party to the Statute had no effect on the Court’s
jurisdiction. In its reasoning the Chamber referred to the ICC’s goal of ending
impunity and Article 27 of the Statute, and emphasized that the ICC will only
resort to looking beyond its Statute, Rules, and Elements of Crimes where there
is a lacuna that cannot be filled by the standard rules of interpretation; it noted
the Security Council had, in its referral of the situation in Darfur, accepted the
investigation and prosecution will take place in accordance with the statutory
framework.91 This conclusion was made ‘without prejudice to a further determi-
nation of the matter’.92 That determination came in December 2011 in the con-
text of proceedings considering whether Malawi had breached its obligation of

⁸⁸ Slobodan Milošević never protested that he was entitled to immunity.

⁸⁹ Prosecutor v Milošević (Decision on Preliminary Motions) IT-02-54, T Ch III (8 November
2001). See Frulli, ‘The Question of Charles Taylor’s Immunity’ (n 82) 1127 and van Alebeek, The
Immunity of States and their Officials in International Criminal Law and International Human Rights
Law (n 82) 283. For the sequence of events, see Emir Suljagic, ‘Justice Squandered? The Trial of
Slobodan Milosevic’ in Ellen L Lutz and Caitlin Reiger (eds), Prosecuting Heads of State 176 (CUP
2009) 182. Immunities were also raised in the case concerning Radovan Karadžić, former President
of Republika Srpska, who claimed that at a meeting in 1996 he reached an ‘immunity agreement’
with US diplomat Richard Holbrooke according to which he would not be prosecuted by the ICTY
in exchange for withdrawing from public life. Despite the terminology, the agreement is better
described as an ‘amnesty agreement’ since it was not concerned with recognizing Karadžić’s immunity
ratione personae, but rather with promising not to prosecute him. In the event, the ICTY Appeals
Chamber found that even if the alleged agreement was proven, it would not limit the jurisdiction
of the Tribunal or otherwise bind it. This was based on Rule 51 of the Rules of Procedure which
only allows the withdrawal of an indictment with the leave of a Judge or Trial Chamber: Prosecutor
v Karadžić (Decision on Karadžić’s Appeal of Trial Chamber’s Decision on Alleged Holbrooke
Agreement) IT-95-518-AR73.4, A Ch (12 October 2009) paras 40–41.
⁹⁰ See the debate between Paola Gaeta and Dapo Akande: Paola Gaeta, ‘Does President Al Bashir
Enjoy Immunity from Arrest?’ (2009) 7 JICJ 315; Dapo Akande, ‘The Legal Nature of Security
Council Referrals to the ICC and its Implications on Al Bashir’s Immunities’ (2009) 7 JICJ 333
(hereinafter Akande, ‘Security Council Referrals’).
⁹¹ Prosecutor v Omar Al Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest
against Omar Hassan Ahmad Al Bashir) ICC-02/05-01/09, P-T Ch I (4 March 2009) paras 41–45
(hereinafter Al Bashir Warrant Decision).
⁹² ibid para 41.
80 Immunities

cooperation by failing to arrest Bashir when he visited the country. The Pre-Trial
Chamber held:
customary international law creates an exception to Head of State immunity when inter-
national courts seek a Head of State’s arrest for the commission of international crimes.
There is no conflict between Malawi’s obligations towards the Court and its obligations
under customary international law; therefore, article 98(1) of the Statute does not apply.93
Commentators have rightly criticized the decision for not obtaining detailed
legal argument from the parties and for failing to explain the function of Article
98 of the Statute.94 Despite the flaws in the reasoning of the Pre-Trial Chamber,
the decisions in the Bashir case do not represent a divergence from the customary
international law on immunity ratione personae.
First, the Chamber’s decision to issue the arrest warrant for a sitting Head of
State was firmly based on the statutory framework of the Court, not customary
international law.95 Second, the situation in Darfur—which forms the backdrop
to the Bashir case—was referred to the ICC by the Security Council pursuant to
a Chapter VII resolution.96 According to Articles 25 and 103 of the UN Charter,
member states are obliged to carry out Security Council decisions even if they
conflict with any ‘other international agreement’.97 The Security Council reso-
lution decided that the Government of Sudan ‘shall cooperate fully’ with the
ICC, which arguably had the effect of making the ICC Statute (including Article
27(2) removing immunities) binding on the Sudan.98 The removal of immunity
in this case is thus a function of Charter law operating in a specific situation; this
would have been the better argument for the Pre-Trial Chamber to deploy in its
decisions. This case thus leaves the customary international law on immunity
undisturbed, but if the Security Council was to issue repeated resolutions order-
ing non-states parties to cooperate with the ICC in various cases, this could even-
tually generate sufficient state practice and accompanying opinio juris to make
Article 27(2) an expression of customary international law.99
In sum, the ICJ Arrest Warrant Judgment has enhanced integration on the
national level as regards immunity ratione personae, though perhaps to the

⁹³ Prosecutor v Omar Hassan Ahmad Al Bashir (Decision Pursuant to Article 87(7) of the Rome
Statute) ICC-02/05–01/09, P-T Ch I (12 December 2011) para 43.
⁹⁴ Dapo Akande, ‘ICC Issues Detailed Decision on Bashir’s Immunity ( . . . At Long Last . . . ) But
Gets the Law Wrong’ (15 December 2011) EJIL:Talk!.
⁹⁵ Indeed, this is required by Art 21 of the ICC Statute on sources of law.
⁹⁶ UNSC Res 1593 (31 March 2005) UN Doc S/Res/1593.
⁹⁷ Akande observes that the majority view among writers is that obligations under the Charter
should be regarded as taking priority over customary international law given the nature of the Charter
as a ‘constitutional’ document: Akande, ‘Security Council Referrals’ (n 90) 348.
⁹⁸ UNSC Res 1593 para 2. For a fuller version of this argument, see Akande, ‘Security Council
Referrals’ (n 90) 347–348.
⁹⁹ This would require an analysis of the number of states voting in favour of resolutions as well as
the motivation of the Council for removing the immunities in each case.
 IV. Immunity ratione materiae 81
detriment of freezing developments in place. The ICJ took a different approach
to that contained in the constitutive instruments of the international criminal
courts and tribunals, but the ICJ openly acknowledged this fact.100 The Judgment
can be read as making a distinction based on the identity of the court: before
a national court immunity ratione personae always applies because the sover-
eign equality of states prevents a state’s representative from being prosecuted by
another state. No such consideration arises before international criminal courts,
which are either based on state consent in a treaty (ICC) or a binding decision
of the Security Council (ICTY, ICTR).101 The different approaches taken by
the ICJ and the international criminal courts is therefore not a problem of the
diffuse structure of the international legal system, but rather a result of different
contexts in which the rules are being applied. Having said that, some uncertainty
persists as to whether the SCSL correctly applied the dictum of the ICJ’s Arrest
Warrant Judgment regarding the lack of immunity before certain international
tribunals.

IV. Immunity ratione materiae

Unlike immunity ratione personae, there has not been an ICJ Judgment on
immunity ratione materiae, although there are some interesting dicta. The most
prominent case in this field is the Pinochet III Judgment of the UK House of
Lords—an indication of the important role that national courts play in the field
of immunities. Yet that case, as will be discussed below, is so narrowly drawn
that it has not had the same integrating influence as the ICJ Arrest Warrant
Judgment.102
The scope of immunity ratione materiae is very much in a transitional phase
with diverging approaches being taken by various international and national
courts. There is a substantial degree of integration on the question of who bene-
fits from immunity ratione materiae, subject to some variations based on national
legislation. There are, however, indications of fragmentation as to the scope of
acts covered by the immunity and genuine fragmentation as to whether there is
an exception for international crimes. To a large extent, this fragmentation is a
result of the level of controversy and change affecting this aspect of the law as well
as the reasoning process adopted by certain courts. In particular, the use of vary-
ing justifications for lifting immunity prevents the emergence of an integrated
approach.

¹⁰⁰ Arrest Warrant Judgment (n 8) para 61.

¹⁰¹ See submissions of the amicus curiae on Head of State Immunity of Philippe Sands and Alison
MacDonald, Charles Ghankay Taylor (Decision on Immunity from Jurisdiction) (n 81).
¹⁰² This is also no doubt a function of the UK House of Lords (now the UK Supreme Court) being
a national court whereas the ICJ is the UN’s principal judicial organ.
82 Immunities

A. Who does it apply to?

Immunity ratione materiae, also known as functional immunity,103 attaches to a
person who acts on behalf of a state in relation to conduct performed in their
official capacity.104 This type of immunity would seem to cover state officials in
general and extends beyond the period in which they were exercising their func-
tions. Former officials can invoke this immunity with respect to their official—
not private—acts performed while in office.105 Former Heads of State and other
senior officials who benefit from immunity ratione personae while in their post
can claim immunity ratione materiae once they leave office.
There is broad consensus among international and national courts that immu-
nity ratione materiae applies to state officials, regardless of their position in the
state hierarchy.106 The ICTY Blaskić decision emphasized that it was the preroga-
tive of each state to determine its internal structure and to designate the indi-
viduals who acted as its organs and agents.107 This was elaborated upon in the
ICJ Djibouti v France Judgment, where the Court explained that it was the duty
of Djibouti—as the state claiming its officials benefited from immunity ratione
materiae—to show that the procureur de la République and the Head of National
Security were its organs, agencies, or instrumentalities.108
Since immunity ratione materiae has no temporal limit, it also applies to state
officials who have left office. In the ICJ Arrest Warrant Judgment, the Court, in
an obiter dictum discussed in more detail below,109 implicitly recognized that the
former Minister for Foreign Affairs enjoyed immunity ratione materiae for acts
committed in his official capacity.110 The same view has been taken by national
courts111 and the Institut de droit international.112

¹⁰³ Immunity ratione materiae is sometimes referred to as ‘functional immunity’ since it pertains
to the functions carried out by state officials. Nonetheless, immunity ratione personae also serves a
‘functional purpose’ since it aims to ensure the effective performance of functions of persons repre-
senting the state: Arrest Warrant Judgment (n 8) para 53.
¹⁰⁴ Prosecutor v Blaskić (Judgment on the Request of Croatia for Review of the Decision of Trial
Chamber II of 18 July 1997) IT-95-14-A, A Ch (29 October 1997) para 38 (hereinafter Blaskić
Appeals Decision).
¹⁰⁵ See Hans Kelsen, Principles of International Law (R W Tucker ed, 2nd edn, Lawbook Exchange
Ltd 1966) 358.
¹⁰⁶ See, for example, Blaskić Appeals Decision (n 104) para 38; Pinochet III (n 10) [594] (Lord
Browne-Wilkinson), [606] (Lord Goff), [644] (Lord Millet), [657] (Lord Phillips); Adamov (n 59)
para 3.4.2.
¹⁰⁷ Blaskić Appeals Decision (n 104) para 38.
¹⁰⁸ Djibouti v France Judgment (n 14) para 196.
¹⁰⁹ Part C below.
¹¹⁰ Arrest Warrant Judgment (n 8) para 61. The authors of the Joint Separate Opinion agreed that
the immunity continued to shield the Minister after he left office for ‘official acts’: para 85.
¹¹¹ See, for example, cases recognizing the immunity ratione materiae for the former Head of State
of the Philippines unless it was waived by his national State: Ferdinand et Imelda Marcos v Of-
fice Federal de la police (recours de droit administratif ) Switzerland Federal Tribunal, Judgment of 2
November 1989, 501–502; Republic of the Philippines v Marcos and others 806 F 2d 344 (2nd Cir
1986) 360.
¹¹² Institut de droit international, ‘2001 Vancouver Resolution’ Art 13(2).
 IV. Immunity ratione materiae 83
Despite general agreement that immunity ratione materiae applies to state
officials, variations in national legislation and diplomatic practice can give rise to
different results. For example, the question of which state officials can be con-
sidered an agency or instrumentality of the state has been answered differently
by circuit courts in the US.113 In the Samantar v Yousuf case, a former Prime
Minister and Defence Minister of Somalia was accused of torture and extrajudi-
cial killing by plaintiffs bringing a suit for damages under the Alien Tort Claims
Act and the Torture Victim Protection Act. Samantar moved to dismiss the suit,
arguing that the actions alleged were official in nature and thus fell within the
scope of the Foreign Sovereign Immunities Act (FSIA). The Supreme Court
held that the FSIA did not govern whether an individual foreign official enjoyed
immunity from civil suits and remanded the case to federal district court so that
it could determine whether Samantar ‘may be entitled to immunity under the
common law, and whether he may have other valid defenses to the grave charges
against him’.114 In February 2011, based on a recommendation from the State
Department, the Court for Eastern District of Virginia held that Samantar did
not benefit from immunity.115 An important factor was that the US Executive
Branch does not currently recognize any government of Somalia and thus there
was no government to assert immunity on behalf of Samantar. The unusual facts
of this case do not change the basic rule that it is the prerogative of each state to
determine its internal structure; it just happened that in this case there was no
state in a position to exercise that prerogative.

B. Which acts are covered?

The limitation of immunity ratione materiae to official conduct leads to the ques-
tion of where to draw the line between official and private acts. In identifying
‘official acts’, there are two principal areas of controversy: first, how they relate
to state responsibility; second, how they relate to state immunity. To date there
has been sparse judicial practice on these questions. The practice that does exist
indicates the potential for fragmentation.
First, do the ‘official acts’ of a state official match those acts that give rise to
attribution of conduct for the purpose of state responsibility for internationally

¹¹³ Chuidian v Philippine National Bank 912 F 2d 1095 (9th Cir 1990), cf Enahoro v Abubakar
408 F 3d 877 (7th Cir 2005) and Yousuf v Samantar 552 F 3d 371 (4th Cir 2009). This was also
an issue in the UK Jones v Saudi Arabia (n 36). In deciding that Saudi officials were entitled to
immunity ratione materiae, Lord Bingham made clear that the source of the immunity he was ap-
plying was the UK State Immunity Act: ‘It is not suggested that the Act is in any relevant respect
ambiguous or obscure . . . the duty of the English court is therefore to apply the plain terms of the
domestic statute’ (para 13).
¹¹⁴ Samantar v Yousuf 560 US (2010).
¹¹⁵ Order issued on 15 February 2011, Judge Brinkema of the Eastern District Court of Virginia.
Samantar decided in February 2012 to accept a default judgment as to liability and not to contest
damages (which amounted to US$21 million).
84 Immunities

wrongful acts? Some courts have seen this as the logical outcome of the central
rationale for immunity ratione materiae: state officials should not suffer the con-
sequences of wrongful acts that are attributable to the state on whose behalf they
act.116 The difficulty is that the text of the ILC Articles on State Responsibility
does not provide clear guidance as to the definition of official conduct. Article
4(1) provides simply that ‘[t]he conduct of any State organ shall be considered
an act of that State under international law, whether the organ exercises leg-
islative, executive, judicial or any other functions’.117 The ILC Commentary
elaborates on this by stating that the personal motives of the state official are
irrelevant; the key factor for attribution of conduct is whether the person ‘acts in
an apparently official capacity, or under color of authority’.118 However, entirely
excluding an examination of personal motives seems severely to limit the iden-
tification of ‘private acts’ for the purposes of immunity ratione materiae. At least
one Opinion in the Pinochet III Judgment and the Institut de droit interna-
tional have incorporated personal motives in the definition of ‘private acts’.119
A separate but related question is whether acts ultra vires could be considered
official conduct. Article 7 of the ILC Articles on State Responsibility states that
ultra vires conduct shall still be considered an act of the state for the purposes
of attributing responsibility. In the sphere of immunities, some judges have
adopted the ‘state responsibility’ template and held that ultra vires acts are cov-
ered by immunity ratione materiae.120 US courts, on the other hand, have tended
to lift immunity ratione materiae for ultra vires acts (sometimes assimilated with
unlawful acts).121
In Djibouti v France, the ICJ appeared to favour the view that ultra vires acts
are not protected by immunity ratione materiae. In that case the procureur de la
République and the Head of National Security had been accused of subornation
of perjury. Djibouti claimed during the oral proceedings that these officials were
entitled to immunity ratione materiae in that they were acting in their official

¹¹⁶ See Blaskić Appeals Decision (n 104) para 38. For an argument in favour of aligning immunity
ratione materiae with the state responsibility regime, see Jones v Saudi Arabia (n 36) para 74 (Lord
Hoffmann saying that if there is a remedy against the state before an international court, then there
should not also be a remedy against the official in a national court).
¹¹⁷ Article 4(2) clarifies that an organ includes any person which has that status in accordance with
the internal law of the state.
¹¹⁸ Paragraph 13 to ILC Commentary to Art 4; see also para 8 to ILC Commentary to Art 7.
¹¹⁹ Article 13 of the Institut de droit international, ‘2001 Vancouver Resolution’ speaks of acts
‘performed exclusively to satisfy a personal interest’. See also Lord Hope in Pinochet III (n 10) [622]
(referring to acts ‘in reality for [a Head of State’s] own pleasure or benefit’).
¹²⁰ Jones v Saudi Arabia (n 36) para 78 (Lord Hoffmann); Pinochet III (n 10) [622] (Lord Hope),
[599] (Lord Goff).
¹²¹ See, for example, Teresa Xuncaz et al v Hector Gramajo; Diana Ortiz v Hector Gramajo 886 F
Supp 162 (D Mass 1995); Bawol Cabiri v Baffour Assasie-Gyimah 921 F Supp 1189 (SDNY 1996)
1198. Ultra vires acts and unlawful acts will often be one and the same, but the criteria are different.
Ultra vires is defined by reference to acting without (or in excess of ) any authority whereas unlawful-
ness is identified by reference to the breach of a law.
 IV. Immunity ratione materiae 85
capacity and such acts were to be regarded as attributable to the State of Djibouti
and not the individual.122 The ICJ’s response was that
[I]t has not been ‘concretely verified’ before it that the acts which were the subject of the
summonses as témoins assistés issued by France were indeed acts within the scope of their
duties as organs of State.123
This implies that for Djibouti to claim immunity ratione materiae on behalf of
these officials, it had to been shown that they acted within the scope of their
duties, intra vires. At the same time, the ICJ invoked the relationship between
claiming immunity ratione materiae and accepting state responsibility:
[T]he State notifying a foreign court that judicial process should not proceed, for reasons
of immunity, against its State organs, is assuming responsibility for any internationally
wrongful act in issue committed by such organs.124
This aspect of the law remains unsettled and there is not yet the depth of case law
for the questions to be fully explored. Moreover, its technical nature and inherent
controversy increases the tendency towards fragmentation.
Second, may ‘official acts’ be identified by reference to the distinction between
acta jure imperii (acts performed in the exercise of sovereign authority) and acta
jure gestionis (commercial or private acts) used for state immunity?
Immunity ratione materiae is derivative of state immunity in that the latter
concept would be emptied of meaning if foreign courts could simply bypass a
state’s immunity by suing its officials. Indeed, a state is an abstract entity and
can only act through its organs, agents, and officials. The UN State Immunity
Convention recognizes this fact by defining ‘state’ as encompassing ‘agencies or
instrumentalities of the State and other entities, to the extent that they are enti-
tled to perform acts in the exercise of the sovereign authority of the State’ and
‘representatives of the State acting in that capacity’.125 The ILC Commentary
explains:
Actions against such representatives or agents of a foreign Government in respect of their
official acts are essentially proceedings against the State they represent. The foreign State,
acting through its representatives, is immune ratione materiae. Such immunities char-
acterized as ratione materiae are accorded for the benefit of the State and are not in any
way affected by the change or termination of the official functions of the representatives
concerned.126

¹²² Djibouti v France (n 14) para 187.

¹²³ ibid para 191.
¹²⁴ ibid para 196 (emphasis added).
¹²⁵ Article 2(1)(b)(iv) and (v). This Convention is limited to immunity from civil proceedings.
¹²⁶ ILC, ‘Draft Articles on Jurisdictional Immunities of States and their Property, with commen-
taries’ II YILC 1991 (1991) 18. In the US, until the Samantar decision 2010 (n 114), there was a
split among the Circuits of the Courts of Appeal as to whether foreign officials are to be considered
as an ‘agency or instrumentality’ of the state and entitled to immunity under §1603 of the FSIA.
86 Immunities

This reasoning appears to conflate the two types of immunity. Yet, immunity
ratione materiae is more than just a logical consequence of state immunity; it is
an autonomous rule of international law.127 As Akande has persuasively argued,
immunity ratione materiae is not identical to state immunity. Immunity ratione
materiae not only operates as a procedural bar to foreign courts indirectly exercis-
ing control over a state by instituting proceedings against its officials, but also
gives effect to a substantive defence (‘the official capacity defence’) that officials
can invoke.128 This defence allows officials not to be held personally liable for acts
done in their official capacity, namely acts that are those of the state.129 This opens
up a category of acts—non-sovereign acts performed in their official capacity—
for which the official enjoys immunity while the state does not.130 In other words,
immunity ratione materiae allows state officials to avoid sanctions for conduct
that is not private but is undertaken on behalf of the state.131
The case law on the relationship between state immunity and immunity ratione
materiae is scarce, but an old case decided by the Supreme Court of Austria held
that immunity ratione materiae attaches to acta jure gestionis, if it is performed in
an official capacity.132 This appears to be the correct view: foreign courts should
not be able simply to bypass a state’s immunity by suing its officials—acta jure
gestionis that are attributable to the state, such as commercial transactions, should
fall within the scope of ‘official acts’.133
In sum, there is uncertainty as to the degree to which the templates for state
responsibility and state immunity can be used to determine what qualifies as an
‘official act’ for the purpose of immunity ratione materiae. To this end, caveats in
the ICC Statute and the ILC Articles on State Responsibility point to the distinc-
tion between rules regulating states and those pertaining to individuals.134 The
content of these rules is yet to be developed through the decisions of national and
international courts.

¹²⁷ van Alebeek The Immunity of States and their Officials in International Criminal Law and Inter-
national Human Rights Law (n 82) 104–105.
¹²⁸ Akande, ‘International Law Immunities’ (n 45) 413.
¹²⁹ See Robert Y Jennings, ‘The Caroline and McLeod Cases’ (1938) 32 AJIL 82, 92; Attorney-General
of the Government of Israel v Eichmann (1962) 36 ILR 277 (Supreme Court of Israel: sitting as a
court of criminal appeal) 308–309.
¹³⁰ An example would be a contract for a loan entered into by an individual official on behalf of a
state: the act is commercial yet still official and thus the state official would enjoy immunity ratione
materiae whereas the state could not invoke its own immunity from a foreign State’s jurisdiction
in a proceeding arising out of that commercial transaction. See UN State Immunity Convention
Art 10.
¹³¹ Blaskić Appeals Decision (n 104) para 38.
¹³² Prince of X Accident Case (1964) 35 ILR 13 (Austria).
¹³³ See United Nations Secretariat ‘Immunity of State Officials from foreign criminal jurisdiction:
Memorandum prepared by the Secretariat’ (31 March 2008) 153, UN Doc A/CN.4/596.
¹³⁴ ICC Statute Art 25: ‘No provision in this Statute relating to individual criminal responsibility
shall affect the responsibility of States under international law’; ILC Articles on State Responsibility:
‘These articles are without prejudice to any question of the individual responsibility under interna-
tional law of any person acting on behalf of a State.’
 IV. Immunity ratione materiae 87

C. Any exception for international crimes?

In the academic literature, there is broad support for the view that serving or
former state officials are not entitled to immunity ratione materiae when accused
of an international crime, even if the accusations relate to their official acts.135
However, there is genuine fragmentation in the case law as to whether—and on
what basis—an exception can be made to immunity ratione materiae.
First, there are the courts that hold that there is no exception to the immu-
nity, even for international crimes. Second, there are the courts that remove the
immunity for international crimes. However, in the second category at least two
diverging approaches to reasoning may be discerned. There is also an emerging
distinction being drawn in some jurisdictions, such as the UK, between criminal
and civil proceedings.136 The most prominent case on immunity ratione materiae
is in fact a national decision—the Pinochet III Judgment by the UK House of
Lords—but there are also dicta by international courts that keep this area of the
law on immunities in flux.
Courts in the United Kingdom (in civil cases),137 the United States,138 and
Canada139 have held that immunity ratione materiae applies even when serving
or former state officials are accused of international crimes. In these decisions,
the judges emphasize that the foreign state’s right to immunity cannot be cir-
cumvented by suing its officials.140 This approach has been endorsed (not with-
out controversy) by the ILC Rapporteur on the immunity of state officials from
foreign criminal jurisdiction.141 It is an approach that is often justified on the
basis of an obiter dictum in the ICJ Arrest Warrant Judgment. Although the ICJ

¹³⁵ Antonio Cassese, ‘When may Senior State Officials be Tried for International Crimes? Some
Comments on the Congo v. Belgium Case’ (2002)13 EJIL 853 (citing various national court deci-
sions against foreign state officials accused of war crimes, crimes against humanity, and genocide).
¹³⁶ Compare the House of Lords Judgments in Jones v Saudi Arabia (a civil case) (n 36) with
Pinochet III (a criminal case) (n 10). In the US, see the civil litigation pursued under the Alien Tort
Claims Act of 1789. See also Al-Adsani v United Kingdom App no 35763/97 (ECHR, 21 November
2001) para 61 by the ECtHR and the Joint Dissenting Opinion. The debate over whether immunity
should be treated differently in civil and criminal proceedings is beyond the scope of this book.
¹³⁷ Jones v Saudi Arabia (n 36).
¹³⁸ Belhas v Ya’alon 515 F 3d 1279 (DC Cir 2008); Matar v Dichter 500 F Supp 2d 284 (SDNY
2007) and 563 F 3d 9 (2nd Cir 2009); In Re Terrorist Attacks 538 F 3d 71 (2nd Cir 2008); Rasul v
Myers 512 F 3d 644 (DC Cir 2008).
¹³⁹ Jaffe v Miller and Others (1993) 95 ILR 446 (Ct App Ontario).
¹⁴⁰ In Jones v Saudi Arabia (n 36), the critical factor was that civil proceedings were covered by
Part I of the State Immunity Act 1978 and that no exception existed for human rights violations
therein.
¹⁴¹ ILC, ‘Report on immunity of State officials from foreign criminal jurisdiction by Roman Ana-
tolevich Kolodkin, Special Rapporteur’ (26 April–3 June and 4 July–12 August 2011) in ILC Year-
book, UN Doc A/66/10, para 108 (immunity ratione materiae for acts performed in an official
capacity even if they are unlawful or ultra vires). Other members of the ILC observed that the
‘principle of non-impunity for grave crimes under international law constituted a core value of the
international community’ and urged the Rapporteur to address the topic from the perspective of
hierarchy of norms or norms between which there was some tension (para 124).
88 Immunities

was concerned with the immunity ratione personae of an incumbent Minister for
Foreign Affairs, it said the following as to the situation once Mr Yerodia had left
that position:
[A]fter a person ceases to hold the office of Minister for Foreign Affairs, he or she will no
longer enjoy all of the immunities accorded by international law in other States. Provided
that it has jurisdiction under international law, a court of one State may try a former
Minister for Foreign Affairs of another State in respect of acts committed prior or sub-
sequent to his or her period of office, as well as in respect of acts committed during that
period of office in a private capacity.142
By omitting to mention the potential prosecution of acts committed during the
period of office in an official capacity, this paragraph has been interpreted as
denying the existence of an exception to immunity ratione materiae for interna-
tional crimes.143
The ICJ’s dictum stands in contrast to the majority of national court deci-
sions on immunity ratione materiae, which hold that this immunity is removed
for persons suspected of international crimes.144 It also appears to go against
what the Appeals Chamber of the ICTY said in its decision in the Blaskić case
(a decision that pre-dated the ICJ Judgment). The Appeals Chamber stated
that there existed an exception to immunity ratione materiae for international
crimes:
These exceptions [to immunity ratione materiae] arise from the norms of international
criminal law prohibiting war crimes, crimes against humanity and genocide. Under these
norms, those responsible for such crimes cannot invoke immunity from national or inter-
national jurisdiction even if they perpetrated such crimes while acting in their official
capacity.145
This question was not directly before the ICTY and must also be regarded as an
obiter dictum.146 At the same time, it is a line of reasoning that stretches back to
the Nuremberg Judgment.147

¹⁴² Arrest Warrant Judgment (n 8) para 61 (emphasis added).

¹⁴³ Paolo Gaeta, ‘Ratione Materiae Immunities of Former Heads of State and International Crimes:
The Hissène Habré Case’ (2003) 1 JICJ 189 (‘in the Court’s opinion the general rule on ratione ma-
teriae immunities, whereby States cannot exercise jurisdiction over a foreign State official for acts
he or she executed in his or her public capacity, without the consent of the State to which the State
official has belonged, also applies to alleged international crimes’). See also Claus Kress, ‘Reflections
on the Iudicare Limb of the Grave Breaches Regime’ (2009) 7 JICJ 789, 803–804.
¹⁴⁴ For a survey, see Antonio Cassese, International Criminal Law (2nd edn, OUP 2008) 305ff.
¹⁴⁵ Blaskić Appeals Decision (n 104) para 41.
¹⁴⁶ The Blaskić Appeals Decision mainly related to immunity from enforcement, not immunity
from jurisdiction.
¹⁴⁷ ‘He who violates the laws of war cannot obtain immunity while acting in pursuance of the
authority of the State if the State in authorizing action moves outside its competence under inter-
national law’: Judgment of the International Military Tribunal of the Trial of German Major War
Criminals, Cmd. 6964, Miscellaneous No. 12 (1946).
 IV. Immunity ratione materiae 89
Courts in the United Kingdom (in criminal cases),148 the Netherlands,149 the
United States,150 Italy,151 Israel,152 and Switzerland153 have held that immunity
ratione materiae does not apply in cases where state officials are accused of certain
international crimes but they have justified this conclusion on two different bas-
es.154 The influence of the national judicial practice of national courts on immu-
nity ratione materiae is therefore somewhat diluted by the varying justifications.
The first approach is to say crimes under international law cannot constitute
‘official acts’ of a state and must be qualified as private acts of the individual.155
Logically, this is not an exception to immunity since the acts do not fall within
the scope of the immunity ratione materiae in the first place. The Joint Separate
Opinion in the Arrest Warrant Judgment flagged this as a possible (non-treaty)
route for creating an exception to immunity ratione personae after the state official
has left office:
That immunity prevails only as long as the Minister is in office and continues to shield
him or her after that time only for ‘official’ acts. It is now increasingly claimed in the
literature . . . that serious international crimes cannot be regarded as official acts because
they are neither normal State functions nor functions that a State alone (in contrast to an
individual) can perform.156

¹⁴⁸ Pinochet III (n 10).

¹⁴⁹ Bouterse (Judgment on appeal) (Amsterdam Court of Appeal 20 November 2000).
¹⁵⁰ Enahoro v Abubakar (n 113); Yousuf v Samantar (n 113); Jane Doe I et al v Liu Qi et al 349
F Supp 2d 1258 (ND Cal 2004); In re estate of Ferdinand Marcos 25 F 3d 1467 (9th Cir 1994);
Teresa Xuncaz et al v Hector Gramajo (n 121); Bawol Cabiri v Baffour Assasie-Gyimah 921 F Supp
1189 (SDNY 1996) 1198; Nikbin v Islamic Republic of Iran 471 F Supp 2d 53 (DDC 2007).
¹⁵¹ Lozano v Italy, appeal judgment Case No 31171/2008, ILDC 1085 (Italy 2008) (in this case
the immunity ratione materiae of a US serviceman was upheld, but in obiter dicta the court held that
it could be lifted in the event of an international crime. On the facts of the case, the court decided
that the act committed was not a war crime). However, in a 2009 case, an Italian court convicted
twenty-three US agents (including the former head of the CIA in Milan) for the abduction and
rendition of a Muslim cleric, Abu Omar.
¹⁵² Supreme Court of Israel (sitting as a court of criminal appeal), Attorney-General of the Gov-
ernment of Israel v Eichmann (n 129) 962. The issue was examined from the perspective of ‘act of
state’, but the definition matched that of immunity ratione materiae (308–309). The Supreme Court
dismissed Eichmann’s plea of ‘act of state’ stating that such a defence did not operate in respect of
crimes under international law.
¹⁵³ A contre Ministère Public de la Confédération, B, C (2012) B.2011.140 (Federal Criminal Court
of Switzerland) (concerning the immunity of a former Algerian Minister of Defence accused of war
crimes during the Algerian Civil War 1992–2000).
¹⁵⁴ For an international court saying this, see Blaskić Appeals Decision (n 104) para 41. In the
Kagame case involving immunity ratione personae, the Spanish Audiencia Nacional implicitly recog-
nized that a former Head of State would not enjoy immunity ratione materiae for genocide: Juzgado
Central de instrucción No 4 (Audiencia Nacional) Sumario 3/2.008—D Auto, 157.
¹⁵⁵ This was the position of Lord Hutton [639] and Lord Browne-Wilkinson (less clearly, [593] in
Pinochet III (n 10); Judgment of the Court of Appeal of Amsterdam in Bouterse (n 149) para 4.2; as
well as some US civil cases brought under the ATCA: Marcos, Cabiri, Xuncaz (n 121).
¹⁵⁶ Arrest Warrant Judgment (n 8) Joint Separate Opinion, para 85 (with references to Pinochet I,
Pinochet III, the Eichmann Judgment of the Supreme Court of Israel, the Bouterse Judgment in the
Court of Appeal of Amsterdam).
90 Immunities

This view has been criticized by Law Lords in Jones v Saudi Arabia157 and by Judge
ad hoc van den Wyngaert in her Dissenting Opinion in the ICJ Arrest Warrant
case.158 They correctly observe that such crimes can typically only be committed
with the means and mechanism of the state and as part of state policy; it distorts
reality to say that these acts are ‘private’. Further, removing international crimes
from the category of ‘official acts’ necessarily means that a state could never be
held responsible under international law for such crimes committed by its agents;
it would seem to prejudge the whole question of state responsibility.159
The second approach argues that crimes under international law can be com-
mitted in the exercise of official functions and thus constitute ‘official acts’, but
the immunity ratione materiae is removed for some crimes due to an exception
for such human right violations.160 This describes the reasoning of some of the
UK Law Lords in Pinochet III. Although the House of Lords rejected the plea of
immunity by a former Head of State of Chile in respect of the torture allegations
by 6 to 1, several features of the Judgment limit its ability to serve as a precedent
for an ‘international crimes exception’ to immunity ratione materiae. First, the
reasoning in each of the opinions differs.161 Second, the case was limited to the
Torture Convention and the outcome was closely tied to the distinctive features
of that treaty.162 Third, it was emphasized that the Judgment did not affect the
correctness of decisions upholding the plea of sovereign immunity in respect of
civil claims.163 Thus, although the Pinochet III Judgment was hailed as a landmark
judgment, it has not proven to be a coalescing force for this second approach to
removing immunity ratione materiae.164 This may change in the future: Pinochet
III was cited by the Federal Criminal Court of Switzerland to support its holding

¹⁵⁷ Jones v Saudi Arabia (n 36) para 19 (Lord Bingham), para 72 (Lord Hoffmann).
¹⁵⁸ Arrest Warrant Judgment (n 8) para 36 (Dissenting Opinion of Judge ad hoc Van den Wyn-
gaert).
¹⁵⁹ See Institut de droit international ‘The Fundamental Rights of the Person and the Immunity
from Jurisdiction in International Law, Final Report (2009) Third Commission (Rapporteur: Lady
Hazel Fox) para 45.
¹⁶⁰ Some cases stated that the jus cogens nature of the prohibition of such crimes prevails over the
rules of immunity: Lord Millett [651] in Pinochet III (n 10), the Swiss Federal Criminal Court in
A contre Ministère Public de la Confédération (n 153), and the Italian Court of Cassation in Ferrini
(n 17) (although the facts of Ferrini pertained to state immunity).
¹⁶¹ Pinochet III (n 10). Three (Browne-Wilkinson, Hope, Saville) relied upon implied waiver of
the immunity ratione materiae that states parties to the Torture Convention must have intended
(otherwise the criminalization of torture would be empty as immunity ratione materiae would al-
ways apply). Three others (Hutton, Millett, Phillips) took a broader approach—the development
of international crimes and extraterritorial jurisdiction was inconsistent with the existence of an
immunity ratione materiae.
¹⁶² Since the Convention requires the torturer to be a state official, the question of immunity
ratione materiae will always arise.
¹⁶³ It was on this basis that Jones v Saudi Arabia (n 36) reached a different result.
¹⁶⁴ As Rensmann observes: ‘the promise of a “humanized” immunity regime, which would enable
national courts to prosecute and punish foreign State officials for severe human rights violations
and to grant compensation to their victims, does not, however, seem to have been realized’: Thilo
Rensmann, ‘Impact on the Immunity of States and their Officials’ in Menno Kamminga and Martin
Scheini (eds), The Impact of Human Rights Law on General International Law 151 (OUP 2009).
 V. State Immunity 91
in a 2012 case that the former Minister of Defence of Algeria could not claim
immunity ratione materiae for war crimes because it would be paradoxical if ‘con-
duct contrary to fundamental values of the international legal order can be pro-
tected by rules of the same legal order’.165
The 2009 Naples Resolution of the Institut de droit international on ‘Immunity
from Jurisdiction of the State and of Persons Who Act on Behalf of the State
in case of International Crimes’ removes immunity ratione materiae for inter-
national crimes in Article III(1): ‘No immunity from jurisdiction other than
personal immunity in accordance with international law applies with regard to
international crimes.’ Resolutions of the Institut may be said to represent ‘teach-
ings of the most highly qualified publicists of the various nations’166 and the
members include judges of international and national courts.167 Yet the clarity of
this aspect of the resolution does not reflect the current practice of international
and national courts.
On the question of an international crimes exception to immunity ratione
materiae, the leading national case (Pinochet III) is rather constrained by its facts
and the ICJ and ICTY have until now only commented in dicta. The high level
of controversy surrounding this question and the vague or confusing reasoning of
certain courts increase the tendency towards genuine fragmentation. As a result,
the conditions under which immunity ratione materiae will be removed for inter-
national crimes remain uncertain.168

V. State Immunity
State immunity is granted to states, including governments thereof, to protect
them from the territorial jurisdiction of other states. It exempts states from the
exercise of the power to adjudicate, normally assumed by the judiciary within a
legal system of the forum state, as well as the exercise of all other administrative
and executive powers in relation to a judicial proceeding.169 It is grounded in
the doctrine of sovereign equality as well as the notion that it would offend the
dignity of a state to submit to the jurisdiction of another.170

¹⁶⁵ A contre Ministère Public de la Confédération (n 153) para 5.4.3 (unofficial translation from the
French original); see also para 5.3.5.
¹⁶⁶ ICJ Statute Art 38(1)(d).
¹⁶⁷ For a list of members and associate members, see <http://www.idi-iil.org/idiE/navig_members.
html>.
¹⁶⁸ The issuance of a warrant by a UK court to a former Israeli Foreign Minister led to a renewed
political debate over immunity ratione materiae in 2009–2010: BBC News, ‘UK ponders law change
after Tzipi Livni arrest warrant’ (15 December 2009).
¹⁶⁹ ILC, ‘Draft Articles on Jurisdictional Immunities of States and their Property’ 13.
¹⁷⁰ Higgins, Problems and Process (n 32) 78–79, referring also to the classic statement of Brett LJ
in Parlement Belge (1880) 5 PD 197, 214–215 (duty of ‘every sovereign state to respect the inde-
pendence and dignity of every other sovereign state’); Jurisdictional Immunities Judgment (n 14)
para 57.
92 Immunities

The key issue in state immunity is not the status of the defendant, but rather the
scope of the restrictive doctrine. This section examines the degree of integration
and fragmentation on two related issues in this regard: the distinction between
acta jure imperii (which attract immunity) and acta jure gestionis (for which a
state can be sued in another state’s court);171 and the existence of an exception for
violations of international law. There had long been a lack of integration on these
two issues. The UN State Immunity Convention does not perform the integra-
tive role of the Genocide Convention because it has not yet entered into force
and does not provide clear answers on the existence of an exception for violations
of international law. The 2012 ICJ Judgment in the Jurisdictional Immunities
case, however, has the potential to provide a point of integration on the scope of
the restrictive doctrine, particularly as regards the applicability of the tort excep-
tion to immunity and the question of whether there is an exception for violations
of international law. It is likely to perform a similar role to that played by the
Arrest Warrant Judgment as regards immunity ratione personae.
The decision in the Jurisdictional Immunities case concerned an application by
Germany to the ICJ alleging that Italy was in breach of international law by its
national courts’ disregard of Germany’s entitlement to immunity in claims for
reparation by victims of acts of war damage committed by German armed forces
in 1943–1945.172 The Court held that pursuant to the European Convention
for the Peaceful Settlement of Disputes 1957 the two states had conferred juris-
diction on the Court in respect of disputes after 1961 and applied customary
international law. The Court upheld Germany’s claim in its entirety by a large
majority.

A. Acta jure imperii and acta jure gestionis

As observed in the Joint Separate Opinion in the ICJ Arrest Warrant Judgment,
the meaning of the notions of acta jure imperii and acta jure gestionis is ‘subject
to a continuously changing interpretation which varies with time reflecting the
changing priorities of society’.173 There appears to be integration on the most
straightforward cases (usually commercial in nature) while there are diverging
approaches on more controversial cases involving violations of international law.
In national courts, the test for acta jure imperii and acta jure gestionis has ranged
from analysing the purpose of an act to examining its nature to deciding whether
an act is one that may be performed only by a sovereign as opposed to an ordi-
nary citizen.174 In the light of these disparate reasoning processes, the pragmatic
solution reached in the 2004 UN State Immunity Convention was not to use

¹⁷¹ Higgins, Problems and Process (n 32) 82.

¹⁷² Jurisdictional Immunities Judgment (n 14) paras 21–30.
¹⁷³ Arrest Warrant Judgment (n 8) para 72 (Joint Separate Opinion).
¹⁷⁴ Higgins, Problems and Process (n 32) 83–84. The ‘nature of the act’ test was expressed by the
German Constitutional Court in the Empire of Iran case as follows: ‘[O]ne should rather refer to the
 V. State Immunity 93
the terms at all, but rather to list the activities for which states may not invoke
immunity.175 This embodies the assumption that state immunity is ‘the rule’, and
exceptions must be specifically demonstrated.176
The UN State Immunity Convention affirms the general rule that ‘a State
enjoys immunity, in respect of itself and its property, from the jurisdiction of
the courts of another State’, subject to the provisions of the Convention.177 The
Commentary explains that ‘[b]eyond or around the hard core of immunity, there
appears to be a grey area in which opinions and existing case law and, indeed,
legislation still vary’.178 A major ‘grey area’ is how acta jure imperii and acta jure
gestionis relate to grave violations of human rights, especially if an act can be
characterized as fitting within an existing exception to immunity.
Article 12 of the UN State Immunity Convention provides an exception
to state immunity for acts or omissions of the foreign state causing personal
injuries or tangible loss to property, known as the ‘tort exception’. Italy had
claimed that the tort exception applied as regards the deportation of Italian
nationals to Germany and enforced labour in Germany factories. The Court
disagreed:
State practice in the form of judicial decisions supports the proposition that State immu-
nity for acta jure imperii continues to extend to civil proceedings for acts occasioning death,
personal injury or damage to property committed by the armed forces and other organs of
a State in the conduct of armed conflict, even if the relevant acts take place on the territory
of the forum State.179

nature of the state transaction or the resulting legal relationships, and not to the motive or purpose
of the state activity’ (1963) BVerfGE 16, 45 ILR 57. See also §1603(d) of the US Foreign Sovereign
Immunities Act 1976 and the UK case of Trendtex Trading Corp v Central Bank of Nigeria [1977] 1
QB 529. The ‘sovereign act’ test was suggested by Robert Y Jennings, The Place of the Jurisdictional
Immunity of States in International and Municipal Law (Europa-Institut der Universität des Saar-
landes 1987) 8. The UN State Immunity Convention generally adopts the ‘nature of the act’ test,
but Art 2(2) says that account must be taken of the purpose of a commercial transaction ‘which, in
the practice of the State party to the proceedings, is relevant in determining the non-commercial
character of the . . . transaction’.
¹⁷⁵ Part III of the Convention addresses: commercial transactions; contract of employment; per-
sonal injuries and damage to property; ownership, possession and use of property; intellectual and
industrial property; participation in companies or other collective bodies; ships; effect of an arbitra-
tion agreement. For a detailed discussion of the exceptions, see YBILC 1982, Vol II (Part One) paras
35–45, UN Doc A/CN.4/357 9 (1982).
¹⁷⁶ This observation was made by Judge Rosalyn Higgins, President of the ICJ, ‘The International
Court of Justice and Private International Law Thoughts’ (9 July 2007) Lalive Lecture Series.
¹⁷⁷ UN State Immunity Convention Art 5.
¹⁷⁸ ILC Commentary to Art 5(2).
¹⁷⁹ Jurisdictional Immunities Judgment (n 14) para 77. See also the Dissenting Opinion of Judge ad
hoc Gaja and his careful analysis of the practice on the tort exception. The imperii/gestionis distinc-
tion is used in the case law of some states on the ‘tort exception’, including in Canada in Carrato v
United States of America 141 DLR 3d (1982) (Ontario H Ct; XXII) Canada YBIL 403 (1984) 456;
and in the US in Tel-Oren v Libyan Arab Republic (United States Brief Submitted to Supreme Court
in Response to Court’s Invitation in Reviewing Petition for a Writ of Certiorari) (1985) 24 ILM
427; see ILC Commentary to Art 12.
94 Immunities

The ICJ noted the common view that the tort exception is intended to preclude
the possibility of an insurance company hiding behind the cloak of state immu-
nity and evading its liability to injured individuals involved in accidents related
in the transport of goods and passengers by rail, road, air, or waterways.180 It
considered that it was not necessary to resolve the question whether there is in
customary international law a ‘tort exception’ to state immunity applicable to
acta jure imperii in general; the issue before it was confined to acts committed on
the territory of the forum state by the armed forces of a foreign state, and other
organs of state working in cooperation with those armed forces, in the course of
conducting an armed conflict.181 Despite the specific circumstances of the ICJ’s
holding, the Jurisdictional Immunities Judgment will probably make it difficult
for parties to argue that the tort exception can be applied to grave human rights
violations, even when the acts are committed by entities other than armed forc-
es.182 The Judgment will likely lead to the tort exception shrinking to an ‘insur-
able risk’ exception, removing its potential as a tool in international human rights
litigation.

B. Any exception for violations of international law?

The question of whether there is an exception to state immunity for violations
of international law is not answered by reference to the UN State Immunity
Convention. When the ILC’s Working Group prepared comments on the out-
standing substantive issues relating to its draft articles,183 it said that develop-
ments such as the US amendment to its FSIA and the UK Pinochet III Judgment
‘should not be ignored’. At the same time it did not include the possibility of an
international crimes exception to state immunity as an ‘outstanding substantive
issue’.184 The UN General Assembly Sixth Committee Working Group agreed
that, though of current interest, ‘the existence or non-existence of immunity in
the case of violation by a State of jus cogens norms of international law’ did not
really fit into the present draft nor did it seem ‘ripe enough . . . to engage in a
codification exercise’.185 Consequently, an opportunity was missed to provide a
¹⁸⁰ ILC Commentary to Art 12, para 4.
¹⁸¹ Jurisdictional Immunities Judgment (n 14) para 65.
¹⁸² cf Gerhard Hafner and Ulrike Köhler, ‘The United Nations Convention on jurisdictional im-
munities of states and their property’ (2004) 35 NYIL 3; Christopher K Hall, ‘UN Convention on
State Immunity: The Need for a Human Rights Protocol’ (2006) 55 ICLQ 411.
¹⁸³ This was done at the request of the General Assembly in UNGA Res 53/98 (8 December
1998).
¹⁸⁴ ILC, ‘Report of the International Law Commission on the work of its 51st session’ (3 May–23
July 1999) UN Doc A/54/10. The US amended its FSIA to include a new exception to immunity.
Section 221 of the Antiterrorism and Effective Death Penalty Act of 1996 provides that immunity
will not be available in any case: ‘in which money damages are sought against a foreign State for
personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage,
hostage–taking . . . ’.
¹⁸⁵ UN General Assembly Sixth Committee Convention on Jurisdictional Immunities, ‘Report of
the Chairman of the Working Group’, 12 November 1999, UN Doc AC.6/54/L.12, paras 46–48.
 V. State Immunity 95
treaty-based point of integration on this question. One may contrast this with
the integrating effect of the Genocide Convention upon the law on genocide
being applied and developed by courts.
The 2009 Naples Resolution of the Institut de droit international on ‘Immunity
from Jurisdiction of the State and of Persons Who Act on Behalf of the State
in case of International Crimes’ does not refer to any such exception to state
immunity. Rather, Article IV deliberately leaves the question open, stating the
provisions are ‘without prejudice to the issue whether and when a state enjoys
immunity from jurisdiction before the national courts of another State in civil
proceedings relating to an international crime committed by an agent of the
former State’.
In the absence of guidance from treaties and codification efforts, judges of
national and international courts have been shaping the law in this area and a
point of integration is now provided by the ICJ’s 2012 Jurisdictional Immunities
Judgment. Before discussing that Judgment, however, it is important to realize
that existing judicial practice had revealed genuine fragmentation on the question
of an exception to state immunity for violations of international law, albeit with
most state practice rejecting an exception. Courts had been grappling with the
normative conflict between the desire to end impunity for international crimes
and the competing interest in upholding a broad notion of sovereign equality and
freedom of action and communication on the international level.
In a number of cases beginning with Al-Adsani v United Kingdom, the ECtHR
upheld state immunity in the face of allegations of grave human rights viola-
tions.186 Even while recognizing that special character of the prohibition on
torture, it had not been able to discern ‘any firm basis for concluding that, as a
matter of international law, a State no longer enjoys immunity from civil suit
in the courts of another State where acts of torture are alleged’.187 The signifi-
cance of the Al-Adsani Judgment has to be carefully considered. Not only was
it decided by a slender 9 to 8 majority, but it was also a case examined from
the perspective of Article 6 of the European Convention on Human Rights
on the entitlement to a hearing. Rather than being able freely to engage with
the dilemmas posed by the interaction of state immunity with human rights,
the ECtHR faced the narrower question of whether the UK Court of Appeal
in 1996 had violated the Convention rights of the applicant by upholding the
immunity of the Government of Kuwait.188 The Al-Adsani Judgment has been

¹⁸⁶ Other cases include Kalogeropoulou v Greece & Germany (Decision on Admissibility) App no
59021/00 (ECHR, 12 December 2002). Hazel Fox, ‘State Immunity and the International Crime
of Torture’ (2006) 2 EHRLR 142, 155–156.
¹⁸⁷ Al-Adsani (n 136) para 61.
¹⁸⁸ Due to the specific relationship between the European Convention and UK law, the burden
of proof is reversed. The plaintiff must show that an exception to immunity is required under Art 6
of the European Convention rather than the onus being on the defendant to show that immunity
applies.
96 Immunities

followed in other ECtHR cases, including a unanimous seven-judge decision

in 2009.189
State immunity had also been upheld in a number of cases decided by national
judges. In Jones v Saudi Arabia, the UK House of Lords upheld the Saudi Arabian
Government’s immunity in a civil claim for damages brought by a British man
allegedly tortured by the Saudi police.190 The impact of that decision on custom-
ary international law was, however, limited by the fact it was explicitly based on
the terms of a domestic statute.191 In Bouzari v Iran, the Ontario Court of Appeal
found that Iran was immune from a claim for damages from a person alleg-
edly abducted, imprisoned, and tortured there.192 The Federal Court of Justice
of Germany upheld immunity for the state in cases accusing German occupying
forces of reprisals on civilians.193
As the ICJ noted in its survey of state practice, the Italian Court of Cassation
and one court in Greece denied state immunity in human rights cases. The 2004
Ferrini Judgment held that Germany was not immune from jurisdiction for a
claim for compensation brought by persons deported during the Second World
War to perform forced labour in Germany.194 The Italian Court of Cassation
held that the prohibition on forced labour was jus cogens, and that such a funda-
mental principle could not fail to affect—and, in this case, prevail over—other
international principles, including the principle of sovereign equality of states.
The Italian Court of Cassation followed Ferrini in later cases.195 The approach in
Greece was less consistent. The Greek Supreme Court, in another case involving
acts by German troops during the Second World War, held that Germany was
not immune from jurisdiction.196 It based the decision upon a theory of implied
waiver that has received no support in other decisions. Moreover, its position was
undermined by the Greek Supreme Court’s own refusal to order enforcement
of the judgment.197 The original judgment was ultimately held to be wrong by
a judgment of a special Supreme Court convened to decide cases involving the

¹⁸⁹ Décision sur la recevabilité de la requête no 14717/06 présentée par Georges Grosz contre la France
(ECtHR, 16 June 2009).
¹⁹⁰ Jones v Saudi Arabia (n 36).
¹⁹¹ The House of Lords based its decision not on customary international law but on s 1(1) of the
UK State Immunity Act, which provides that ‘[a] State is immune from the jurisdiction of the courts
of the United Kingdom except as provided in the following provisions of this Part of the Act’.
¹⁹² Bouzari v Islamic Republic of Iran 71 OR 3d 675 (Ct App for Ontario 2004).
¹⁹³ Prefecture of Voiotia v Federal Republic of Germany 11/2000, (2003) 129 ILR 513 (The Distomo
Massacre Case).
¹⁹⁴ Ferrini (n 17).
¹⁹⁵ Decisions of 29 May 2008 and 21 October 2008. See Ronald J Bettauer, ‘Germany Sues Italy at
the International Court of Justice on Foreign Sovereign Immunity’ (2009) 13(22) ASIL Insight.
¹⁹⁶ Prefecture of Voiotia v Federal Republic of Germany (Case No 11/2000) (unreported) 4 May
2000, Greek Court of Cassation.
¹⁹⁷ Distomo Massacre case (n 193). The Court said at 1033: ‘There have recently been tendencies
towards a more limited principle of state immunity, which should not apply in case of a peremptory
norm of international law (ius cogens) has been violated . . . According to the prevailing view, this is
not international law currently in force.’
 V. State Immunity 97
interpretation of international law.198 The ECtHR, in the case mentioned earlier,
confirmed that state immunity applied.199 Exceptions to state immunity have
also been made by US courts, but have been the result of applying specific leg-
islation rather than judicial interpretations of customary international law. The
US and Canada have amended their state immunity legislation to permit suits
against a small number of foreign states designated as sponsors of terrorism.200
It is not claimed that such legislation is reflective of customary international
law.201
It was in this somewhat fragmented context that the ICJ issued its Judgment
on Jurisdictional Immunities. It clearly rejected an exception to state immunity for
violations of international law. The ICJ was not persuaded by the three strands of
Italy’s argument: first, that there is no immunity in international law when a state
has committed serious violations of international humanitarian law amounting
to war crimes and crimes against humanity; second, that there is no state immu-
nity for violations of norms of jus cogens character; third, that the denial of immu-
nity is justified because all other attempts to obtain reparations had failed.202 The
ICJ also rejected Italy’s contention that the combined effect of these three strands
justified an exception to state immunity.
The ICJ in the Jurisdictional Immunities Judgment has clarified the relation-
ship between jus cogens norms and state immunity by establishing that no conflict
exists:
The two sets of rules address different matters. The rules of State immunity are procedural
in character and are confined to determining whether or not the courts of one State may
exercise jurisdiction in respect of another State. They do not bear upon the question of
whether or not the conduct in respect of which the proceeding are brought are lawful or
unlawful . . . 203
Citing its earlier Judgments in Arrest Warrant and Congo v Rwanda, the ICJ held
that the rules which determine the scope and extent and jurisdiction and when
that jurisdiction may be exercised do not derogate from substantive rules with a

¹⁹⁸ Margellos v Federal Republic of Germany (unreported) (Greek Special Supreme Court 17 Sep-
tember 2002).
¹⁹⁹ Distomo Massacre case (n 193).
²⁰⁰ The Antiterrorism and Effective Death Penalty Act of 1996 inserted subsection (a)(7) into 28
USC 1605 (the FSIA). This ‘terrorist State exception’ has been cited by some as a violation of the US’
obligations under international law: van Alebeek The Immunity of States and their Officials in Inter-
national Criminal Law and International Human Rights Law (n 82) 355. The Canadian equivalent is
the amendment to its SIA introduced by the Safe Streets and Communities Act 2012.
²⁰¹ President Clinton, in exercising a waiver in 1998, noted the risks of breaching treaty obliga-
tions: Terrorist-list States: Waiver of Requirements Relating to Blocked Property, Presidential Deter-
mination No 99–1, 63 Fed Reg 59, 201 (21 October 1998), cited by Bettauer, ‘Germany Sues Italy
at the International Court of Justice on Foreign Sovereign Immunity’ (n 195).
²⁰² Jurisdictional Immunities Judgment (n 14) para 80.
²⁰³ ibid para 93.
98 Immunities

jus cogens status.204 Jus cogens norms do not displace the law of state immunity;
they do not create jurisdiction where there is none and they do not prevent the
application of state immunity to remove jurisdiction. Engaging in judicial dia-
logue, the ICJ noted national courts had rejected an exception to state immu-
nity based on jus cogens norms in the UK, Canada, Poland, New Zealand, and
Greece.205 Although the French Cour de cassation had alluded to a jus cogens norm
constituting a legitimate restriction on state immunity in a recent case, it found
that such a restriction could not be justified on the facts.206 This left only Italian
and the Greek courts (overruled by the Greek Special Supreme Court) as uphold-
ing an exception for jus cogens violations. The ICJ accordingly concluded that
‘under customary international law as it presently stands, a State is not deprived
of immunity by reason of the fact that it is accused of serious violations of inter-
national human rights law or the international law of armed conflict’.207
As to the issue of state responsibility, the Court commented that it was ‘a mat-
ter of surprise—and regret—that Germany decided to deny compensation to a
group of victims on the ground that they had been entitled to a status which,
at the relevant time, Germany had refused to recognise, particularly since those
victims had been denied the legal protection to which that status entitled them’,
but merely suggested that these claims could be the subject of further negotia-
tion between the two states.208 This holding represents a serious setback to efforts
directed at strengthening victims’ rights to reparations and redress, represented
by the work of NGOs and the emerging practice of the ICC.
The ICJ added the caveat that its decision in the Jurisdictional Immunities case
is ‘under customary international law as it presently stands’,209 but the reality is
that what the Court says may have the effect of freezing in place this aspect of the
law of state immunity. While the Court’s Judgments are technically only bind-
ing on the parties to the dispute, the ICJ’s status as the UN’s principal judicial
organ means that its pronouncements are generally treated as authoritative. As
mentioned above, the Arrest Warrant Judgment was a continuation of the trend in
national courts to uphold the immunity ratione personae of state officials accused
of international crimes, but it has also apparently had the effect of freezing this
trend in place.
With the expansion of human rights law and the growing sense that impunity
for international crimes cannot be tolerated, it is possible that over time the excep-
tion to state immunity for jus cogens violations developed in certain Italian and

²⁰⁴ ibid para 95, citing Arrest Warrant Judgment (n 8) paras 58 and 78 and Armed Activities on the
Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) (Prelimi-
nary Objections: Judgment) [2006] ICJ Rep 6, paras 64 and 125.
²⁰⁵ Jurisdictional Immunities Judgment (n 14) para 96.
²⁰⁶ La Reunion aerienne v Libyan Arab Jamahiriya No 09–14743, 9 March 2011 (French Cour de
Cassation).
²⁰⁷ Jurisdictional Immunities Judgment (n 14) para 91.
²⁰⁸ ibid paras 99 and 104.
²⁰⁹ ibid para 91. Emphasis added.
 V. State Immunity 99
Greek courts could have been taken up by other national jurisdictions, leading to
an accumulation of state practice on this issue. But the Jurisdictional Immunities
Judgment has essentially closed off the ‘Ferrini approach’.
The potential ‘chilling effect’ of the ICJ’s Judgment was acknowledged by
some of the judges. In his Dissenting Opinion, Judge Yusuf asked: ‘Would it
not have been more appropriate to recognize, in the light of conflicting judicial
decisions and other practices of States, that customary international law in this
area remains fragmentary and unsettled?’210 In his view, ‘[s]tate immunity is, as a
matter of fact, as full of holes as Swiss cheese’.211 Judge Cancado Trindade wrote
an elaborate Dissenting Opinion, motivated by his belief that ‘contemporary
international law [cannot] . . . be “frozen”’.212
The ICJ, of course, does not choose its cases. Its jurisdiction is reactive, and
it pronounced at this time on the issue of state immunity because Germany
brought the dispute with Italy to the Court. The US Supreme Court manages
its caseload through the certiorari system, granting on average only one per cent
of petitions and selecting cases involving legal questions that seem sufficiently
important.213 For the ICJ, timing is determined by multiple decisions taken by
states, not the Court: the decision to institute proceedings, the decision to chal-
lenge or accept jurisdiction, the decision to issue counterclaims, and the decision
to ask for further rounds of pleadings or extensions of time limits. The ICJ also
cannot choose the manner in which the question is presented to it; it cannot
select the cases that possess the best set of facts for exploring legal propositions.
In many ways the Arrest Warrant case was not an ideal factual scenario for test-
ing the limits of immunity ratione personae: Mr Yerodia had in fact ceased to be
Minister for Foreign Affairs by the time the case was decided by the Court; the
warrant that violated his immunity excluded official trips and was issued without
a Red Notice; the parties decided not to pursue a line of argument that would
have necessitated the Court deciding on the contours of universal jurisdiction
and how it interacts with immunities. Similarly, the Jurisdictional Immunities
case was not an ideal ‘test case’. Germany had admitted state responsibility for
the underlying acts and made efforts, albeit incomplete, at compensation, which
perhaps reduced the impact of the argument regarding redress for victims.
Displacing the ICJ’s ‘final word’ in the Jurisdictional Immunities case will
probably require a human rights protocol to the existing UN State Immunity
Convention. However, given that that Convention is yet to enter into force, the
conclusion of such a protocol is only a remote possibility. It is more likely that
there will be a coalescence of views around the absence of an exception to state
immunity for violations of international law. The Court did nonetheless leave the

²¹⁰ ibid Dissenting Opinion of Judge Yusuf, para 24.

²¹¹ ibid para 26.
²¹² ibid Dissenting Opinion of Judge Cancado Trindade, para 226.
²¹³ Melanie Wachtell and David Thompson, ‘An Empirical Analysis of Supreme Court Certiorari
Petition Procedures’(2009) 16 George Mason ULR 237, 241.
100 Immunities

door open to the development of the law with respect to the immunity of state
officials, emphasizing it was ‘addressing only the immunity of the State itself from
the jurisdiction of the courts of other States; the question of whether, and if so to
what extent, immunity might apply in criminal proceedings against an official of
the State is not in issue in the present case’.214

VI. Conclusion
The law on immunities is characterized by the judicial development of the law—
international and national judges are filling in the gaps in treaty law and analys-
ing practice to determine the current state of customary international law.215 As
with the law on the use of force, the law on immunities is in transition, with
expanding national jurisdiction, intensifying efforts to remove immunities, and
diverse approaches to resolving the normative conflict that underlies this area of
the law.
The above analysis of judicial practice reveals a mixed picture. There is genuine
integration as to which officials benefit from immunity. There is only apparent
fragmentation as to whether there is an exception to immunity ratione personae
for international crimes; the seemingly different approaches of the ICJ and the
international criminal courts can be explained on the basis of the different nature
and functions of these courts. There are indications of genuine fragmentation as
to the acts covered by immunity ratione materiae. The scarcity of case law on this
question, and the controversy that it generates, have created uncertainty. There is
also genuine fragmentation on whether there is an exception to immunity ratione
materiae for international crimes. The disparate reasoning by various courts has
thus far failed to coalesce into an integrated approach. The law on state immunity
had been similarly characterized by a lack of integration, but we now have the
guidance of the ICJ in its Jurisdictional Immunities Judgment, which will likely
provide a point around which other courts can gather.
This mixed picture of the judicial practice reflects the ambivalent status of state
practice. On the one hand, there is an emerging consensus among states that per-
petrators of international crimes should not go unpunished. The past two decades
have seen the establishment of ad hoc international criminal tribunals and the
ICC, the prosecution in national and international jurisdictions of senior state
officials including Heads of State, and widespread adherence to human rights
treaties recognizing extraterritorial jurisdiction or the principle of aut dedere aut

²¹⁴ Jurisdictional Immunities Judgment (n 14) para 91.

²¹⁵ For a discussion of this as a broader phenomenon, see Tullio Treves, ‘Judicial Lawmaking in
an Era of “Proliferation” of International Courts and Tribunals: Development or Fragmentation of
International Law?’ in Rüdiger Wolfrum and Volker Röben (eds), Developments of International Law
in Treaty Making 585 (Springer & Sons 2005).
 VI. Conclusion 101
judicare. The push to end impunity has led to a questioning of the availability of
immunities as a shield, especially since the perpetrators of international crimes
are often senior state officials using the power vested in the state.216
On the other hand, there is the strong concern for sovereign equality and
for ensuring freedom of action and communication for states and their officials.
The ‘proper functioning of the network of mutual inter-state relations [remains]
of paramount importance for a well-ordered and harmonious international
system’.217 The UN State Immunity Convention—a treaty drafted during a time
when the global push to end impunity was already underway—falls back on the
traditional view that state immunity is ‘the rule’, and exceptions must be clearly
defined in advance. As noted above, the Convention contains no exception for
international crimes.
The Institut de droit international has been studying the law on immunities in
its various guises since 1891,218 but its Third Commission ultimately failed to
reach a detailed decision on immunity from jurisdiction of the state and state
officials in case of international crimes. Its 2009 Naples resolution asks states to
‘consider waiving immunity where international crimes are allegedly commit-
ted by their agents’219 and leaves state immunity and immunity ratione personae
untouched.
The lack of consensus among states and scholars feeds into the judicial
decision-making process, and is often reflected in vague or confusing reasoning.
For example, in cases where immunity has been removed, the judges do not
always specify whether they are finding an exception to immunity or whether
the immunity simply does not apply to the case at hand. This could lead to
divergence in future cases with different factual configurations. For example, if
a witness is ordered to testify before an international court, he or she would not
be able to invoke immunity if the underlying rationale is that immunity does
not apply in the context of international criminal courts.220 However, if the
relevant principle is that immunity can be invoked, but there is an exception
for persons accused of international crimes, then the witness (as opposed to the

²¹⁶ Arrest Warrant Judgment (n 8) paras 74 and 75 (Joint Separate Opinion).

²¹⁷ ibid para 75 (Joint Separate Opinion).
²¹⁸ See Hamburg Session ‘Resolution on the jurisdiction of courts in proceedings against foreign
states, sovereigns and heads of State’ (1891) (Comité de rédaction, puis MM Ludwig von Bar,
John Westlake et Adolphe Hartmann); Aix-en-Provence Session ‘Resolution on immunity of for-
eign States from jurisdiction and measures of execution’ (1954) (Rapporteur: M Ernest Lémonon);
Basel Session ‘Resolution on the contemporary problems concerning immunity of States in relation
to questions of jurisdiction and enforcement’ (1991) Fourteenth Commission (Rapporteur: Ian
Brownlie); Vancouver Session ‘Resolution on the Immunities from Jurisdiction and Execution of
Heads of State and of Government in International Law’ (2001) Thirteenth Commission (Rap-
porteur: Joe Verhoeven).
²¹⁹ 2009 Naples resolution Art II(3).
²²⁰ This rationale was expressed in the Arrest Warrant Judgment (n 8) para 61, and developed in
the SCSL Taylor Decision (n 81).
102 Immunities

defendant) would still benefit from immunity before the international criminal
court.221
The law on immunities is an area in need of experimentation and exploration
by a variety of actors, including national and international courts. As Charney
observed:
The lack of a strictly hierarchical system provides international tribunals with the opportu-
nity to contribute collectively ideas that might be incorporated into general international
law. It also facilitates the evaluation of those ideas by the international community as a
whole. Ultimately, one would expect that the best ideas will be adopted widely, contribut-
ing to the body of international law. In some cases, however, unique solutions for special
circumstances may be the better alternative.222
In order for, ‘the best ideas to be adopted widely’, however, there must be enough
time for various options to be fully explored in a range of cases in a variety of
judicial fora, which is not always possible given the various jurisdictional rules
and the facts of specific cases.
The examination of the substantive legal issues of the law on immunities
undertaken in this chapter demonstrates both the positive and negative aspects
of having multiple courts interpreting and developing the same body of law. It is
a complex, dynamic, and iterative process that can either lead to integration or
fragmentation.

²²¹ The ‘exception’ approach was invoked in Ferrini (n 17) and Pinochet III (n 10) (the latter in
very narrow circumstances).
²²² Jonathan I Charney, ‘The Impact on the International Legal System of the Growth of Interna-
tional Courts and Tribunals’ (1999) 31 NYUJILP 697, 700.
 4
Use of Force

I. Introduction
The law on the use of force is being applied and developed by a variety of inter-
national courts and tribunals. It is also an area of law that is in a period of tran-
sition, which heightens the risk of courts taking divergent approaches to novel
legal questions. As with Chapters 2 and 3, through an examination of the judicial
practice on the law on the use of force this chapter addresses two questions.
First, are courts engaged in the same dialectic and do they render decisions that
are largely coherent? Second, what factors influence the degree of integration or
fragmentation among courts?
The factors affecting the degree of integration and fragmentation in the law
on the use of force overlap with some of those observed in Chapters 2 and 3, but
there are factors that are more strongly present in the law on the use of force as
well as some distinctive factors.
The level of change and controversy in the law on the use of force is as significant
as that affecting the law on immunity, and perhaps even more all-encompassing.
The legal regime on the use of force, which was shaped in the early twentieth cen-
tury and codified in the aftermath of the Second World War,1 has in recent years
been experiencing change in two respects: the changing circumstances in which
force is used and the increasing complexity of the structures for decision-making
on the legality of use of force.
As regards changing circumstances of the use of force, the traditional para-
digm of inter-state conflicts involving national armed forces clashing across
borders using conventional weapons no longer reflects reality. A gap has
opened up between the assumption of inter-state conflict in Articles 2(4) and
51 of the United Nations Charter and what is happening on the ground. Most
contemporary armed conflicts are not between two states.2 Further, the tra-
ditional dichotomy in the Geneva Conventions between international and

¹ Andrea Bianchi, ‘The International Regulation of the Use of Force: The Politics of Interpretive
Method’ (2009) 22 LJIL 651, 652, n 3 (hereinafter Bianchi, ‘Politics of Interpretive Method’); W
Michael Reisman, ‘Assessing Claims to Revise the Laws of War’ (2003) 97 AJIL 82, 82 (hereinafter
Reisman, ‘Assessing Claims’).
² Human Security Report 2005, ‘War and Peace in the 21st Century’ (17 October 2005).
104 Use of Force
non-international armed conflicts does not transpose easily to situations in
which non-state actors operate among states or across the borders of occu-
pied territories.3 The line between civilians and combatants is often blurred.
Asymmetry, in the sense of large disparities in strength and strategies, is a sali-
ent feature of many modern conflicts.4 New methods of waging war, such as
nuclear weapons, radar-guided missiles, and information warfare, have also
changed the nature of conflict.
All of these elements render decisions about the use of force highly controver-
sial, and the lack of consensus among states may be reflected in judicial practice.
Judicial fragmentation in this field has more dangerous consequences for interna-
tional peace and security than in other areas of the law. Fragmented approaches
to interpreting and developing the law on the use of force put at risk the attain-
ment of the fundamental goals of this law, namely ‘the minimization of violence,
the maintenance of minimum order, and as approximate an achievement of the
policies of human dignity as each situation allows’.5
At the same time as the circumstances in which force is being used are chang-
ing, the structures for adjudicating disputes about the law on the use of force
have also altered. Dispute settlement in the law on the use of force shares some
of the features of dispute settlement in the other substantive areas examined in
this book. The last few decades have seen the ICJ, the only international court
of general jurisdiction, joined by a number of international courts and tribunals
specialized in international criminal law. A distinctive feature of the law on the
use of force, as compared to genocide or immunities, is that there are panels
of legal experts deciding cases as ad hoc arbitral tribunals or commissions.6 Ad
hoc commissions have been established to determine questions about the use of
force in specific conflicts, such as Eritrea–Ethiopia and Guyana–Suriname. The
practice of these tribunals raises concerns about the arbitrators’ familiarity with
general international law, the transparency of proceedings and outcomes, and the
variable structures in which decisions are being made. They tend to heighten the
risk of fragmentation.
As explained in Chapter 1, a multitude of different bodies without an ultimate
court of appeal to provide definitive interpretations can potentially lead to such
a diversity of opinion that the coherence of international law—and therefore
its legitimacy—may be at risk.7 This risk may be elevated when those different
bodies mix notions of individual and state responsibility, a phenomenon that can
also be observed in the law on genocide and on immunity.8 In the law on the use

³ Andreas Paulus and Mindia Vashakmadze, ‘Asymmetrical War and the Notion of Armed
Conflict—a Tentative Conceptualization’ (2009) 91(873) IRRC 95, 100.
⁴ Herfried Münkler, ‘The Wars of the 21st Century’ (2003) 85(849) IRRC 7.
⁵ Reisman, ‘Assessing Claims’ (n 1) 83.
⁶ For the purpose of this chapter, these bodies are collectively referred to as ‘international courts’.
⁷ See also Jonathan I Charney, ‘Is International Law Threatened by Multiple International
Tribunals?’ (1998) 271 Recueil des Cours 101, 117.
⁸ See Chapter 2(V) and Chapter 3(III), (IV), and (V).
 I. Introduction 105

of force, the inclusion of the crime of aggression within the jurisdiction of the
ICC raises the potential for tensions between findings of state responsibility and
individual criminal responsibility for the same act.
There are, of course, actors other than courts involved in interpreting, apply-
ing, and developing the law on the use of force: states, the UN Security Council
and, to a lesser extent, the General Assembly, regional organizations, and
non-governmental organizations.9 Nonetheless, international judges and arbitra-
tors have an important impact on the behaviour of states and on the develop-
ment of the law;10 they are vital members of the ‘interpretive community’11 that
influences the common understanding of the legal rules on the use of force. States
have been bringing disputes about the use of force before the ICJ and ad hoc
tribunals with greater frequency, and they pay close attention to international
judgments and decisions.12 One cannot overlook the fact that states may find
it easier to locate the evolving law on the use of force in the written judgments
of international courts rather than in the practice of the Security Council or of
other states.13
The law on the use of force is too extensive and complex to address in an
exhaustive manner. This chapter therefore considers four clusters of issues in
which there has been judicial practice and dialogue within and among courts or
where there is significant potential for such interaction: the concept of the threat
or use of force; the definition of ‘armed attack’ for the purposes of self-defence;
the crime of aggression; and the consequences of a finding of use of force for the
classification of the conflict and attribution of responsibility.
This chapter contends that the overall picture of what is happening to the
law on the use of force can provide broader insights into the role of courts in
the development of international law, a topic to which I return in Chapter 6. In
particular, the tendency of the ICJ to avoid pronouncing on many of the contro-
versial aspects of the law on the use of force raises questions as to what its proper
role should be in the world of international courts.

⁹ Reference will be made to the Security Council where relevant, in particular as regards the crime
of aggression where it plays an important role under the Charter.
¹⁰ cf Bianchi, ‘Politics of Interpretive Method’ (n 1) 654.
¹¹ This community includes national governments, judges, academics, non-governmental organi-
zations, lobbies, pressure groups, intellectuals, opinion-makers: ibid 653–654.
¹² Charney, Recueil (n 7) 118 (in the context of the ICJ). See also the high compliance rate enjoyed
by the ICJ in general: Rosalyn Higgins, ‘National Courts and the International Court of Justice’ in
Mads Andenas and Duncan Fairgrieve (eds), Tom Bingham and the Transformation of the Law: A Liber
Amicorum 405 (OUP 2009).
¹³ H-G Gadamer, Truth and Method (2nd rev edn, Continuum International Publishing Group
2004) 274 (‘the sheer fact that something is written down gives it special authority’). This is all the
more so given the fact that a state using force against another state usually invokes self-defence, even
when the facts make this claim ‘entirely implausible’, rendering it more of a ‘ritual incantation of a
magic formula’: Christine Gray, International Law and the Use of Force (3rd edn, OUP 2008) 118–
119 (hereinafter Gray, International Law).
106 Use of Force

II. Threat or Use of Force

A pattern that emerges from a study of the judicial practice on the threat or use of
force is that there tends to be integration on core legal principles and uncertainty
on issues at the periphery. These latter issues are not peripheral in the sense of
being unimportant, but rather they tend to apply to more specific fact patterns
and sit at the ‘edges’ of the typical use of force dispute. These issues tend to attract
less attention from both parties and judges so there will be less time and energy
devoted to them in pleadings or decisions. As a result, these issues are less well
understood and there is a risk of the underlying concepts being misapplied to the
facts at hand.
To put this in a more concrete way, let us consider Article 2(4) of the UN
Charter:
All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other man-
ner inconsistent with the Purposes of the United Nations.
There is widespread agreement and genuine integration on the core legal princi-
ple: that the prohibition on the use of force expressed in that Article is a jus cogens
norm.14 However, the contours of that prohibition remain rather unclear. Does
the concept of ‘threat of force’ apply to minor incidents? How does the ‘use of
force’ relate to ‘armed attack’ for the purposes of self-defence? How is title to ter-
ritory affected by the use of force? As will be discussed below, international courts
have answered these questions in ways that have actually increased confusion,
even when attempting to integrate their decisions with existing case law.

A. Definition of threat of force

The ICJ has made it clear that the concepts of ‘threat of force’ and ‘use of force’
under Article 2(4) of the Charter ‘stand together in the sense that if the use
of force itself in a given case is illegal . . . the threat to use such force will like-
wise be illegal’.15 In other words, the legal standards for judging the legality of
the threat of force mirror those applicable to the resort to the use of force.16
Despite this ‘idiomatic unity’, the notion of ‘threat of force’ has received less

¹⁴ Bianchi, ‘Politics of Interpretive Method’ (n 1) 667; Olivier Corten, Le droit contre la guerre
(Pedone 2008) 293ff.
¹⁵ Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, para
47.
¹⁶ Ian Brownlie, International Law and the Use of Force by States (Clarendon Press 1963) 364; M
Roscini, ‘Threats of Armed Force and Contemporary International Law’ (2007) 54 NILR 235. Dino
Kritsiotis suggests using the concept of the ‘application of force’: ‘Close Encounters of a Sovereign
Kind’ (2009) 20 EJIL 299, 304.
 II. Threat or Use of Force 107

attention from the ICJ than the ‘use of force’ limb of Article 2(4),17 and is thus
more ‘peripheral’ in nature. The case law that does exist on the threat of force is
sparse and characterized by a certain hesitancy, leading to fragmentation around
the edges.
The three ICJ cases that have pronounced on the threat of force are ‘hard to
synchronise’18 due to inconsistent approaches to two aspects of the definition: the
potential threat posed by the possession of weapons and by engagement in mili-
tary exercises. With respect to weapons, the ICJ held in the Nicaragua Judgment
that the ‘militiarization’ of Nicaragua did not constitute a threat since ‘there are
no rules, other than such rules as may be accepted by the state concerned, by
treaty or otherwise, whereby the level of armaments of a sovereign state can be
limited’.19 However, in the Nuclear Weapons Advisory Opinion, the Court stated
that possession of nuclear weapons might bring Article 2(4) into play and ‘justify
an inference of preparedness to use them’.20 Whether possession amounts to an
unlawful threat of force would depend on the particular use of force envisaged.21
The apparent contradiction between these two positions may be explained by the
special destructive power of nuclear weapons rendering their possession a poten-
tial threat, whereas the possession of ‘ordinary’ armaments can never constitute a
threat. However, the ICJ did not draw such a distinction in terms.
With respect to military exercises, the Corfu Channel Judgment stated that
the Operation Retail undertaken by the UK in Albanian waters to sweep for
mines and secure evidence violated the principle of non-intervention but did
not constitute a threat of force.22 In reaching this conclusion, the ICJ examined
the circumstances of the British action and found that it was not a display of
force ‘for the purpose of exercising political pressure on Albania’.23 This suggests
that military demonstrations intended to apply political pressure would breach
Article 2(4) of the Charter. Nonetheless, the ICJ held in the Nicaragua Judgment
that military manoeuvres by the US near the Nicaraguan borders were not ‘in the
circumstances in which they were held’ a threat of force.24 Yet, as the Dissenting
Opinion of Judge Schwebel acknowledged, the ‘circumstances’ included the deci-
sion of the US ‘to exert military pressure upon Nicaragua in order to force it

¹⁷ Nikolas Stürchler, The Threat of Force in International Law (CUP 2007) 2–3 (also pointing to the
fact that the concept has received less scholarly attention and rarely been the topic of debate among
states).
¹⁸ ibid 90.
¹⁹ Military and Paramilitary Activities (Nicaragua v United States of America) (Merits: Judgment)
[1986] ICJ Rep 14, para 269 (hereinafter Nicaragua).
²⁰ Nuclear Weapons Advisory Opinion (n 15) para 48. See also Stürchler, The Threat of Force in
International Law (n 17) 256.
²¹ ibid.
²² Corfu Channel case (United Kingdom v Albania) (Merits: Judgment) [1949] ICJ Rep 4, 35.
²³ ibid.
²⁴ Nicaragua (n 19) para 227.
108 Use of Force
to do what it would not agree to do’.25 Since the Court did not explain the
circumstances that would constitute a threat of force, the tension with the ear-
lier finding in Corfu Channel remains unresolved. As Stürchler observes, such
discrepancies undermine the persuasiveness of the ICJ’s overall interpretation of
Article 2(4).26
An attempt at integration of the definition of the threat of force was made
in the recent award in the Guyana/Suriname arbitration.27 The arbitral tribu-
nal examined the distinction between the threat of force and law enforcement,
holding that the radio communication by a small vessel of the Suriname Navy
informing an oil rig in an area claimed by both parties that it had to leave or
‘the consequences will be yours’ could constitute ‘a threat of the use of force in
contravention of the [Law of the Sea] Convention, the UN Charter and general
international law’.28 It located itself generally within the jurisprudence of the
ICJ, citing the connection between threat and use of force in Nuclear Weapons
and the distinction between ‘most grave forms’ and ‘less grave forms’ made in
Nicaragua.29 Nonetheless, it is questionable whether the ICJ would have reached
the same conclusion that an ambiguous statement by a small patrol boat against
a rig breached Article 2(4) of the Charter.30 By adopting an expansive interpre-
tation of threat of force, the arbitral tribunal opens the door to the application
of Article 2(4) to minor incidents that probably occur on a daily basis.31 While
the ICJ had observed in Oil Platforms that forcible action against merchant ves-
sels may breach Article 2(4),32 it did not consider what would render the action
unlawful. This issue could have come before the court in the 2012 Nicaragua
v Colombia case and led to dialogue with the Guyana/Suriname Award, but
Nicaragua’s claim failed because of the court’s findings regarding the course of
the maritime boundary.33 If the relevant facts arise in a future case, an elaboration
by the ICJ on the criteria for distinguishing ‘most grave’ from ‘less grave’ forms

²⁵ Nicaragua (n 19) para 34 (Dissenting Opinion of Judge Schwebel). Stürchler, The Threat of Force
in International Law (n 17) 77, 90.
²⁶ Stürchler, The Threat of Force in International Law (n 17) 90.
²⁷ Guyana/Suriname (Award of the Arbitral Tribunal) (17 September 2007) (hereinafter Guyana/
Suriname).
²⁸ ibid paras 433, 439.
²⁹ ibid paras 439–440. The Tribunal did not comment on the parties’ use (paras 442–444) of the
ICJ case Fisheries Jurisdiction (Spain v Canada) (Jurisdiction: Judgment) [1998] ICJ Rep 432.
³⁰ It should be noted that the patrol boat captains testified they had no instructions with regard to
the use of force and did not mean to imply that they did: Guyana/Suriname (n 27) para 438.
³¹ This point was made by Sean D Murphy, Counsel and Advocate for Suriname, Transcript of the
Hearings, Day 7 (15 December 2006) 1111.
³² Oil Platforms (Islamic Republic of Iran v United States of America) (Judgment) [2003] ICJ Rep
161, paras 50–61 and 78 (hereinafter Oil Platforms). See Patricia Jimenez Kwast, ‘Maritime Law
Enforcement and the Use of Force: Reflections on the Categorization of Forcible Action at Sea in the
Light of the Guyana/Suriname Award’ (2008) 13(1) JCSL 49, 59.
³³ Territorial and Maritime Dispute (Nicaragua v Colombia) (Merits: Judgment) [2012] ICJ Rep,
para 250. In its Application of 6 December 2001, Nicaragua had alleged that Colombia was inter-
dicting and capturing Nicaraguan vessels (para 5).
 II. Threat or Use of Force 109

of force, taking into account the policy considerations of applying Article 2(4) to
minor incidents, would help integrate the law on this topic and provide greater
guidance to states in their law enforcement activities.

B. Definition of use of force

The definition of the use of force comes under strain from two directions. First,
the relationship between ‘use of force’ in Article 2(4) of the Charter and ‘armed
attack’ in Article 51 is unclear, as will be discussed below.34 Second, there is what
Gray calls the ‘most basic disagreement’ as to whether the uses of force prohibited
under Article 2(4) are limited to those directed ‘against the territorial integrity or
political independence of any state’.35 Interestingly, this debate is more active in
academic circles; the ICJ and arbitral tribunals have taken an integrated approach
to the question, finding no such limit on the prohibition.
In the Corfu Channel case, the UK argued that its forcible intervention in
Albanian waters was to recover evidence as to who was responsible for the
destruction of two British warships by mines, and thus its action did not threaten
the territorial integrity or political independence of Albania. The ICJ rejected
this argument, saying, it ‘can only regard the alleged right of intervention as the
manifestation of a policy of force such as has in the past given rise to most seri-
ous abuses and as such cannot find a place in international law’.36 Limiting the
prohibition on the use of force to acts that threaten territorial integrity or politi-
cal independence would undermine respect for ‘an essential foundation of inter-
national relations’.37 The Court endorsed this interpretation in the Nicaragua
Judgment in the context of the principle of non-intervention.38 Similarly, in
Congo v Uganda, the Court found Uganda had violated the principles of non-use
of force and non-intervention even if its objectives ‘were directed to securing
towns and airports for reason of its perceived security needs, and in support of
the parallel activity of those engaged in civil war’.39
The arbitral tribunal in Guyana/Suriname consciously aligned itself with the
ICJ’s approach. In response to Suriname’s contention that the incident occurred
in a disputed maritime area and therefore could not have impaired ‘the territorial
integrity’ of Guyana, the tribunal affirmed that the threat or use of force does not

³⁴ See Section III.

³⁵ Gray, International Law (n 13) 31. The academic debate is essentially between those who believe
Art 2(4) should be interpreted as a strict prohibition on all use of force against another state and those
who interpret it as allowing the use of force providing the aim was not against the territorial integrity
or political independence of a state and was consistent with the purposes of the UN. See W Michael
Reisman, ‘Coercion and Self-determination: Construing Charter Article 2(4)’ (1984) 78 AJIL 642
and Oscar Schachter, ‘The Legality of Pro-Democratic Invasion’ (1984) 78 AJIL 642 and 646.
³⁶ Corfu Channel (n 22) 34.
³⁷ ibid 35.
³⁸ Nicaragua (n 19) para 202.
³⁹ Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Merits:
Judgment) [2005] ICJ Rep 168, para 163.
110 Use of Force
have to be directed against the territorial integrity or political independence of
a state in order to constitute a violation of the prohibition on the use of force.40
The Eritrea–Ethiopia Claims Commission (EECC) rejected the argument that
recourse to force by Eritrea would have been lawful because some of the territory
concerned was territory to which Eritrea had a valid claim, noting that ‘border
disputes between states are so frequent that any exception to the prohibition of
the threat or use of force for territory that is allegedly occupied unlawfully would
create a large and dangerous hole in a fundamental rule of international law’.41
This position—apparently consistent with the ICJ’s line of reasoning—resulted
in the Claims Commission holding that Eritrea had violated Article 2(4) by using
force in defence of what the Boundary Commission subsequently determined
to be Eritrea’s own territory. This is a result that creates uncertainty and frag-
mentation, especially with respect to the border established by the Boundary
Commission, which is examined further below.42 It demonstrates the risks of
invoking the case law of another international court without careful scrutiny
of the facts. Judicial integration will only be effective where there is consistency
both in the legal reasoning and the application to the facts at hand.
Another challenge to the definition of the use of force is the problem of mili-
tary action against terrorists in the territory of another state. This phenomenon is
not new in itself, but globalization has enhanced access to resources for terrorist
groups, leading to increased sophistication of tactics. This in turn has changed
the nature of the challenge terrorists pose as well as the type of response by states.
The core principles applied in typical inter-state use of force cases are not easily
transposed to this more peripheral and contemporary factual scenario.
The strong positions taken by individual ICJ judges regarding self-defence
against terrorism reveal cracks in the apparently integrated approach to the defi-
nition of the use of force. In Separate Opinions in the Congo v Uganda case,
Judge Simma and Judge Kooijmans supported a theory of lawful defensive actions
against terrorists operating on the territory of states that suffer from an absence of
government authority.43 While the theory ostensibly depends on expanding the
notion of ‘armed attack’ for the purpose of self-defence,44 it also has the effect of
narrowing the scope of the prohibition on the use of force set out in Article 2(4)
of the Charter.45

⁴⁰ Guyana/Suriname (n 27) para 423.

⁴¹ Eritrea–Ethiopia Claims Commission Partial Award—Jus ad Bellum: Ethiopia’s Claims 1–8
(2005) 45 ILM 430, para 10 (hereinafter Jus ad Bellum Award).
⁴² For criticism of this position, see Christine Gray, ‘The Eritrea/Ethiopia Claims Commission
Oversteps its Boundaries: A Partial Award?’ (2006) 17 EJIL 699 (hereinafter Gray, ‘Eritrea/Ethiopia’).
See also Section II(C).
⁴³ Congo v Uganda (n 39) paras 30–31 (Separate Opinions of Judge Kooijmans), paras 11–13
(Judge Simma).
⁴⁴ See Section III.
⁴⁵ Bianchi, ‘Politics of Interpretive Method’ (n 1) 669.
 II. Threat or Use of Force 111

The ICJ’s reluctance directly to comment on the problem of responding to

attacks by non-state actors makes it hard to dispel the notion that this aspect of
the law on the use of force is under strain. The ICJ’s hesitancy no doubt reflects
the lack of consensus among states on this issue, as illustrated by the basic failure
to agree on a definition of international terrorism.46 Being the principal organ of
the UN with its Statute annexed to the Charter, the ICJ is perhaps more attuned
than other international courts to the concerns of the UN membership. Until
now the question of armed response to terrorists has only come before the ICJ in
a tangential manner, but if a case squarely places the issue before the Court, past
practice suggests that the Court is unlikely to provide a clear answer. Such a result
would hinder attempts at integration with other international courts dealing with
terrorism, such as the Special Tribunal for Lebanon, and leave states without clear
judicial guidance on this contemporary challenge to peace and security.

C. Use of force and title to territory

Disputes about the legality of use of force are rendered more complex and con-
troversial when they also involve claims of title to territory. The practice of the
ICJ and the EECC in this area is characterized by apparent integration. There
is agreement on the core legal principle governing the use of force and title to
territory, but there are signs of fragmentation in the application of the law to the
facts.
In the Nicaragua Judgment, the ICJ noted that the adoption by states of the
Declaration on Friendly Relations indicated their opinio juris as to customary
international law, citing in particular the principle:47
Every State has the duty to refrain from the threat or use of force to violate the existing
international boundaries of another State or as a means of solving international disputes,
including territorial disputes and problems concerning frontiers of States.
This principle was also cited with approval by the EECC, leading it to conclude,
‘self-defence cannot be invoked to settle territorial disputes’.48 The consistency of
this approach has, however, been undermined by the EECC’s application of the
principle to the facts of the case before it.

⁴⁶ See the deadlock in the negotiations on the Comprehensive Convention on International

Terrorism in the UN Ad Hoc Committee established by UNGA Res 51/210 (17 December 1996)
UN Doc A/Res/51/210 and the Sixth Committee. cf the 2011 decision of the Appeals Chamber
of the Special Tribunal for Lebanon, which declared that it could identify the customary interna-
tional law definition of terrorism: Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy,
Homicide, Perpetration, Cumulative Charging (Decision) STL-11-01/I, A Ch (16 February 2011)
para 85.
⁴⁷ Nicaragua (n 19) para 191 (referring to the Declaration on Principles of International Law con-
cerning Friendly Relations and Co-operation among States in accordance with the Charter of the
United Nations, UNGA Res 2625 (XXV) (24 October 1970)).
⁴⁸ Jus ad Bellum Award (n 41) para 10.
112 Use of Force
In response to Ethiopia’s claim that Eritrea had initiated the armed conflict,
Eritrea argued that Ethiopia was unlawfully occupying Eritrean territory in
the area around Badme, the site of the initial hostilities in May 1998.49 Eritrea
relied on the earlier decision of the Eritrea–Ethiopia Boundary Commission that
Badme belonged to Eritrea50 and offered substantial evidence that the altercation
that sparked the war took place on territory that was actually administered by
Eritrea. Ethiopia did not offer evidence to the contrary. Eritrea was not arguing
that use of force gave title to disputed territory, but rather that it already had
title on the basis of colonial treaties and was using force to defend against the
occupation and attack by Ethiopia.51 The EECC, however, required Eritrea to
respect a line that was not the boundary delimited by the Boundary Commission,
but rather the line to which forces were obliged to withdraw in 2000 under the
June ceasefire agreement.52 This line was based on the presence of Ethiopia’s prior
acts of administration in and around Badme, which were illegal according to
the Boundary Commission.53 As Gray points out, the EECC thus ‘gave decisive
importance to a line which had been drawn at the time of the conflict and which
was later found not to be the international boundary’.54 The genuine fragmenta-
tion between the Delimitation Decision of the Boundary Commission and the
Jus ad Bellum Award of the EECC undermines the legitimacy of the boundary
decided by the former. This arguably contributes to Ethiopia’s ongoing refusal to
implement the Delimitation decision.55
The EECC’s decision in the Jus ad Bellum Partial Award not only demonstrates
a lack of concern for consistency between international tribunals adjudicating
the same conflict, but also a lack of caution in interpreting the substantive law
on the use of force. The EECC’s bold approach may be contrasted with the ICJ’s
tendency to avoid pronouncing on jus ad bellum claims. On the same day that
the EECC issued its Partial Award, the ICJ delivered its Judgment in Congo v
Uganda. Although the Democratic Republic of the Congo (DRC) had claimed
that Uganda had engaged in aggression, the ICJ limited itself to declaring that
Uganda had ‘violated the principle of the non-use of force in international rela-
tions and the principle of non-intervention’,56 an omission that was criticized by

⁴⁹ Gray, ‘Eritrea/Ethiopia’ (n 42) 711.

⁵⁰ Eritrea—Ethiopia Boundary Commission Decision Regarding Delimitation of the Border between
The State of Eritrea and The Federal Democratic Republic of Ethiopia (2002) 41 ILM 1057.
⁵¹ Gray, ‘Eritrea/Ethiopia’ (n 42) 711.
⁵² Jus ad Bellum Award (n 41) para 15.
⁵³ The fact that the altercation was ‘in the area of Badme’ as opposed to Badme itself does not
change the illegal nature of Ethiopia’s presence because the distances in this area were very short: cf Jus
ad Bellum Award (n 41) paras 10, 15.
⁵⁴ Gray, ‘Eritrea/Ethiopia’ (n 42) 711 (emphasis added).
⁵⁵ The UNSC ‘Report of the Secretary-General on Ethiopia and Eritrea’ (23 January 2008) UN
Doc S/2008/40, para 26 (noting that ‘the parties have made no progress towards the implementation
of the delimitation decision announced by the Eritrea– Ethiopia Boundary Commission on 13 April
2002’). See also BBC News, ‘Timeline: Eritrea. Border dispute rumbles on’ (12 August 2010).
⁵⁶ Congo v Uganda (n 39) 280.
 III. ‘Armed Attack’ for the Purpose of Self-Defence 113

Judges Elaraby and Simma in their Separate Opinions.57 In Cameroon v Nigeria, a

case in which the delimitation of a boundary was mixed up with claims about the
unlawful use of force by both sides, the ICJ focused on deciding title to territory
and did not answer whether Nigeria had illegally invaded and annexed territory
in Cameroon.58 It carefully avoided a finding of state responsibility, emphasizing
instead Nigeria’s future obligation ‘expeditiously and without condition’ to with-
draw its forces from the Bakassi Peninsula.59
While the ICJ has been criticized for its cautious approach to holding states
responsible for unlawful uses of force,60 the EECC’s unrestrained style is arguably
more problematic. The ICJ’s caution may generate uncertainty and fail to con-
tribute to the deterrence of potential aggressors, but the EECC’s approach may
be seen as invalidating the border decided by the Boundary Commission, thus
increasing inter-state tensions and undermining efforts at peaceful settlement.
This approach is all the more concerning when one considers that the EECC may
well have lacked jurisdiction to decide the issues of responsibility for the start of
the war.61 While the ICJ’s permanent nature, status as a UN organ, and Bench of
Judges drawn from academia and diplomacy leads to circumscribed Judgments
and careful reasoning, the ad hoc nature of the EECC together with the fact the
main area of expertise of a majority of its arbitrators is in private international law
and international commercial arbitration (rather than public international law)62
results in reasoning that is both brief63 and perhaps over-reaching.

III. ‘Armed Attack’ for the Purpose of Self-Defence

The judicial practice on the concept of ‘armed attack’ for the purpose of
self-defence is affected by the high level of controversy and change in this area
of the law, which increases the tendency towards fragmentation, at least in the
short term. When an area of the law is changing due to, for example, the partici-
pation of a new actor, case law tends to become unsettled as judges either avoid
legal issues or propose solutions narrowly adapted to each case. Time is needed
for assumptions underlying legal rules to be re-examined and possibly adjusted.
Judges may also wish to wait for political bodies or the accumulation of state
practice to provide guidance on the best approach.

⁵⁷ See Section IV.

⁵⁸ Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial
Guinea intervening) (Judgment) [2002] ICJ Rep 303, para 28 (hereinafter Cameroon v Nigeria).
⁵⁹ ibid 457–458.
⁶⁰ David McKeever, ‘The Contribution of the International Court of Justice to the Law on the
Use of Force: Missed Opportunities or Unrealistic Expectations?’ (2009) 78 Nordic JIL 361, 396;
Kritsiotis, ‘Close Encounters of a Sovereign Kind’ (n 16) 312.
⁶¹ See Gray’s persuasive analysis of this point, ‘Eritrea/Ethiopia’ (n 42) 704–707.
⁶² A point observed by Gray, ‘Eritrea/Ethiopia’ (n 42) 707.
⁶³ The Jus ad Bellum Award (n 41) devotes seven pages to the violation of Art 2(4) of the Charter.
114 Use of Force
The concept of ‘armed attack’ is contained in Article 51 of the UN Charter:
Nothing in the present Charter shall impair the inherent right of individual or collec-
tive self-defence if an armed attack occurs against a Member of the United Nations, until
the Security Council has taken measures necessary to maintain international peace and
security. Measures taken by Members in the exercise of this right of self-defence shall be
immediately reported to the Security Council and shall not in any way affect the authority
and responsibility of the Security Council under the present Charter to take at any time
such action as it deems necessary in order to maintain or restore international peace and
security.
An integrated approach to the concept of ‘armed attack’ for the purpose of the
right to self-defence faces two difficulties. The first is the role of non-state actors.
When the UN Charter was conceptualized, the paradigmatic armed conflict was
between two states. Globalization has brought with it flows of arms, money, and
narcotics across borders, transnational communication and transport networks,
and a decline in the state’s monopoly on the use of force. As a result, non-state
actors such as organized rebel groups, private military companies, insurgents,
terrorists, and gangs are now playing significant roles in armed conflicts.64 While
the ICJ has in fact decided cases involving non-state actors—the contras in the
Nicaragua case and the rebel groups in Congo v Uganda65—it has been reluctant
to address how such non-state actors fit into the framework of law on self-defence.
Its cautious approach has in effect papered over the cracks in the definition and
application of Article 51.
Second, the concept of ‘armed attack’ in Article 51 of the Charter is not nec-
essarily the same as the notion of ‘use of force’ in Article 2(4). While all armed
attacks will constitute a use of force, the reverse is not always true. This is called
the ‘Nicaragua gap’,66 referring to the Nicaragua Judgment’s statement that it is
necessary to distinguish ‘the most grave forms of the use of force (those consti-
tuting an armed attack) from other less grave forms’.67 The ICJ confirmed the
‘Nicaragua gap’ in the Oil Platforms Judgment and, implicitly, in the Congo v
Uganda Judgment.68 While the existence of the ‘gap’ is apparent, it is unclear

⁶⁴ For an overview, see Claude Bruderlein, Andrew Clapham, Keith, and Mohammad-Mahmoud
Ould Mohamedou, ‘Transnational and Non-State Actors: Issues and Challenges’ (Cambridge
9–10 March 2007); ‘Empowered Groups, Tested Laws, and Policy Options, The Challenges of
Transnational and Non-State Armed Groups’ (November 2007) Program on Humanitarian Policy
and Conflict Research (Harvard University), Graduate Institute of International and Development
Studies (Geneva).
⁶⁵ In a different category is the ICJ’s treatment of Palestine in the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136
(hereinafter Wall Advisory Opinion).
⁶⁶ Stürchler, The Threat of Force in International Law (n 17) 266, n 30, referring also to Terry D
Gill, ‘The Law of Armed Attack in the Context of the Nicaragua Case’ (1988) 1 Hague YBIL 30;
Yoram Dinstein, War, Aggression and Self-Defence (3rd edn, CUP 2001) 173–176.
⁶⁷ Nicaragua (n 19) paras 191, 195, 247.
⁶⁸ Oil Platforms (n 32) paras 51–64; Congo v Uganda (n 39) para 165.
 III. ‘Armed Attack’ for the Purpose of Self-Defence 115

how the relationship between armed attack and use of force has been affected by
contemporary weaponry and the changing nature of armed conflict.

A. Identity of the attacker

Article 51 of the Charter speaks of the ‘inherent right of individual or collective
self-defence if an armed attack occurs against a Member of the United Nations’.69
It is clear that the object of the attack must be a state, but the Charter is silent as
to the identity of the attacker. The ICJ’s approach to this question has wavered
between maintenance of the traditional inter-state paradigm and a cautious
acceptance of the role of non-state actors. This is an area where signs of fragmen-
tation are apparent within one court. Since there is no stare decisis at the ICJ,70
each Judgment is comparable to the Judgment of another international court.71
Variations in the Court’s reasoning may be minor and therefore easily distin-
guished or clarified in later decisions. However, divergences that are substantive
in nature pose the genuine risk of fragmentation, which undermines the interna-
tional legal system’s ability to promote peaceful relations.
In the Nicaragua Judgment, the ICJ opened the door to the idea that attacks
by non-state actors could constitute ‘armed attacks’ for the purpose of triggering
the right to self-defence. It, however, added the requirement of equivalence to
a state attack or sufficient state involvement, referring to ‘the sending by or on
behalf of a state of armed bands, groups, irregulars or mercenaries, which carry
out acts of armed force against another state of such gravity as to amount to (inter
alia) an actual armed attack conducted by regular forces, or its substantial involve-
ment therein’.72 The Court clarified that assistance to rebels in the form of provid-
ing weapons or logistical or other support did not amount to an armed attack,
but could breach the principle of non-intervention.73 Dissenting Opinions by
Judge Schwebel and Judge Jennings urged a more flexible approach, while also
accepting that supply of weapons alone did not constitute an armed attack. As
it stood in 1986, the ICJ accepted that actions by non-state actors could trigger

⁶⁹ Emphasis added.
⁷⁰ ICJ Statute Art 59.
⁷¹ In the Preliminary Objections phase of Cameroon v Nigeria, the Court observed ‘[t]here can be
no question of holding [a state that had not been a party] to decisions reached by the Court in previ-
ous cases’, but also added ‘[t]he real question is whether, in [the current] case, there is cause not to fol-
low the reasoning and conclusions of earlier cases’: Land and Maritime Boundary between Cameroon
and Nigeria (Cameroon v Nigeria) (Preliminary Objections: Judgment) [1998] ICJ Rep 275, para
28. See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v Serbia) (Preliminary Objections: Judgment) [2008] ICJ Rep 412, para 53.
⁷² Nicaragua (n 19) para 195 (emphasis added). This was based on Definition of Aggression
(UNGA Res 3314 (XXIX) (14 December 1974)), which the Court said reflected customary interna-
tional law.
⁷³ Nicaragua (n 19) para 195. The Court did not elaborate on this factor because the parties had
not disagreed about the definition of armed attack: Gray, International Law (n 13) 175; see also para
160 and para 172 (Dissenting Opinion of Judge Schwebel).
116 Use of Force
the right to self-defence, but still included elements of a state-to-state attack in
its analysis.
The mixed approach in Nicaragua was apparently abandoned for the traditional
inter-state concept of ‘armed attack’ in the Wall Advisory Opinion in 2004. On
the facts, Israel was not claiming a right of self-defence against another state—it
exercised control in the Occupied Palestinian Territory and in its view the threat
originated within that territory. Nonetheless, the Court seemed to assume that
Article 51 only applied in inter-state situations: ‘Article 51 of the Charter thus
recognizes the existence of an inherent right of self-defence in the case of armed
attack by one state against another state.’74 This brief statement attracted criticism
in Separate Opinions and academic circles.75 The statement appears to close the
door that was cracked open in Nicaragua to applying the law of self-defence to
actions by non-state actors—it is a reversion to the inter-state paradigm that
no longer reflects the reality of contemporary armed conflict. Gray suggests a
way to reconcile Nicaragua and the Wall interpretations, pointing out that the
Court in Wall did not say that there is a right of self-defence only in an inter-state
scenario;76 it was thus choosing simply not to address the role of non-state actors
rather than resiling from its position in Nicaragua. This is, however, unlikely
given that the question of non-state actors was squarely before the Court in the
Wall proceedings, and that at least three judges who prepared Separate Opinions
no doubt raised the problems with the assumption of a state-to-state attack dur-
ing the drafting of the Advisory Opinion.
One year after the Wall Opinion, the Court took a more equivocal view in the
Congo v Uganda Judgment of the application of Article 51 to non-state actors.
Uganda had urged the ‘alternative view’ of the dissenting judges in Nicaragua as
to the interpretation of armed attack to support its argument that it had acted in
self-defence against armed attacks by the Allied Democratic Forces (ADF), a rebel
group operating from the territory of the Democratic Republic of the Congo
(DRC).77 The Court rejected this argument on the basis of the facts, in particu-
lar because the ADF’s actions could not be attributed to the DRC.78 The Court
expressly left open the question of ‘whether and under what conditions contem-
porary international law provides for a right of self-defence against large-scale
attacks by irregular forces’,79 which suggests a retreat from the inter-state assump-
tion about Article 51 made in the Wall Opinion. In Separate Opinions, Judges

⁷⁴ Wall Advisory Opinion (n 65) para 139 (emphasis added).

⁷⁵ The statement was criticized in ibid, see especially para 35 (Separate Opinion of Judge
Kooijmans), paras 33–35 (Separate Opinion of Judge Higgins), and para 6 (Declaration of Judge
Buergenthal). See Christian Tams, ‘Light Treatment of a Complex Problem: the Law of Self-defence in
the Wall Case’ (2005) 16 EJIL 963; Sean D Murphy, ‘Self-defense and the Israeli Wall Opinion—An
Ipse Dixit from the Court?’ (2005) 99 AJIL 62.
⁷⁶ Gray, International Law (n 13) 135.
⁷⁷ Congo v Uganda (n 39) paras 106–147.
⁷⁸ ibid paras 146–147.
⁷⁹ ibid para 147.
 III. ‘Armed Attack’ for the Purpose of Self-Defence 117

Kooijmans and Simma argued the Court should have taken this opportunity
to clarify the law on self-defence against armed attacks by non-state actors.80
Judges Kooijmans and Simma further contended that a state has a right to act
in self-defence in response to armed attacks by irregular forces from a state that
does not exercise effective control over its territory (and to which the attacks are
not attributable).81
The fluctuations of the ICJ in Nicaragua, the Wall Opinion, and Congo v
Uganda create uncertainty as to the identity of the attacker for the purposes of
Article 51.82 Instead of attempting to integrate and unify its position, the ICJ
has left the question open as to whether the traditional rules on self-defence
have been modified by state practice. This comes close to a situation of genuine
fragmentation as regards the legal response to attacks by non-state actors. States
are not able to predict the reaction of the ICJ to their potential action against
non-state actors and the contribution of the international judiciary to resolving
this contemporary problem is for the time being excluded.

B. Degree of gravity
The ICJ’s pronouncements on the degree of gravity needed to constitute an
‘armed attack’ have been narrowly drawn and closely tied to the facts of particu-
lar cases. As a result, it has not provided a principled approach to distinguishing a
‘use of force’ from an ‘armed attack’. This situation does not yet constitute genu-
ine fragmentation because existing decisions are not necessarily in conflict with
each other. At the same time, the narrow holdings of the ICJ do not facilitate
application by other international courts, which hinders the process of judicial
integration in this area.
The Nicaragua Judgment’s distinction between the ‘most grave forms’ (which
constitute an armed attack) and the ‘other less grave forms’83 was expressly reaf-
firmed in the Oil Platforms Judgment,84 and implicitly confirmed in Congo v
Uganda in that the Court referred to ‘large-scale attacks’ by irregular forces.85
The difficulty of applying the ‘Nicaragua gap’ in practice is demonstrated by the
Court’s treatment of three types of force: frontier incidents, isolated incidents,
and a series of incidents.
The Nicaragua Judgment suggested that frontier incidents fell outside the cat-
egory of an armed attack triggering the right to self-defence: ‘the prohibition of

⁸⁰ ibid para 30 (Separate Opinion of Judge Kooijmans), paras 12–15 (Separate Opinion of Judge
Simma).
⁸¹ ibid para 30 (Separate Opinion of Judge Kooijmans), paras 12–15 (Separate Opinion of Judge
Simma).
⁸² Christian Tams, ‘The Use of Force against Terrorists’ (2009) 20 EJIL 359, 384 (hereinafter Tams,
‘Use of Force against Terrorists’).
⁸³ Nicaragua (n 19) para 191.
⁸⁴ Oil Platforms (n 32) paras 51, 62.
⁸⁵ Congo v Uganda (n 39) para 147.
118 Use of Force
armed attacks may apply to the sending by a state of armed bands to the territory
of another state, if such an operation, because of its scale and effects, would
have been classified as an armed attack rather than as a mere frontier incident had
it been carried out by regular armed forces’.86 The EECC purported to follow
this approach, holding that ‘localized border encounters between small infantry
units, even those involving the loss of life, do not constitute an armed attack for
purposes of the Charter’.87 The apparent integration of judicial views is under-
mined by the possibility that the ICJ in Nicaragua was concerned with limiting
third-party intervention in conflicts between two states and accordingly set a rela-
tively high threshold for ‘armed attack’ in the context of collective self-defence.88
Unlike in the Eritrea–Ethiopia conflict, the concept of frontier incidents did not
play a major role in the Nicaragua case since there was insufficient information
to characterize the transborder incursions from Nicaragua into Costa Rica and
Honduras.89 If the ICJ was setting a higher threshold for an armed attack to
deter third-party intervention, then the wholesale adoption of its approach by
the EECC is misguided. Given that frontier incidents are the ‘most common
form of force between states’,90 dismissing the right to self-defence in bilateral
situations would seem to encourage tolerance of low-intensity yet persistent con-
flict.91 It would also seem the policy considerations weigh in favour of a lower
gravity threshold in frontier incidents occurring in the context of a serious ter-
ritorial dispute between two states.92 In the Oil Platforms Judgment, the ICJ reaf-
firmed that an armed attack must be of a certain gravity to trigger the right to
self-defence.93 This could be read either as a general statement excluding frontier
incidents from the definition of ‘armed attack’ or as a statement grounded in the
specific factual context of third-state intervention (in this case, the US in the
Iran–Iraq War).94 The uncertainty as to whether the ICJ’s position on frontier
incidents in Nicaragua and Oil Platforms was general or specific does not rise to

⁸⁶ Nicaragua (n 19) para 195 (emphasis added).

⁸⁷ Jus ad Bellum Award (n 41) para 11.
⁸⁸ Gray, International Law (n 13) 181.
⁸⁹ Nicaragua (n 19) para 231.
⁹⁰ Gray, International Law (n 13) 177.
⁹¹ Reisman argues the Court’s approach in Nicaragua encourages tolerance of protracted,
low-intensity conflict, leading to increased violence in international politics: W Michael Reisman,
‘Allocating Competences to use Coercion in the post Cold-War World: Practices, Conditions, and
Prospects’ in Lori Damrosch and David Scheffer (eds), Law and Force in the New International Order
26 (Westview Press 1991) 39–40. In a similar vein, writing before she joined the ICJ, Higgins said
that the Court’s adoption of the definition in the UNGA Res 3314 (XXIX) (14 December 1974) led
to the selection of criteria for an ‘armed attack’ that are ‘operationally unworkable’. The question of
the level of violence used by regular armed forces is better treated as an issue of proportionality rather
than the definition of armed attack: Rosalyn Higgins, Problems and Process: International Law and
How We Use It (OUP 1994) 251.
⁹² Gray, ‘Eritrea/Ethiopia’ (n 42) 720.
⁹³ Oil Platforms (n 32) paras 51, 62.
⁹⁴ Gray, International Law (n 13) favours the latter interpretation, at 147–148.
 III. ‘Armed Attack’ for the Purpose of Self-Defence 119

the level of genuine fragmentation. Rather, it is better viewed as confusion over

two decisions that have not (yet) been reconciled.
The question of whether an isolated incident can constitute an ‘armed attack’
was only alluded to in passing in the Oil Platforms Judgment. The Court did not
exclude the possibility that mining of a single warship may constitute an armed
attack, but did not pronounce on this issue due to a lack of evidence as to Iran’s
responsibility.95 The Court did not address whether a single attack on a merchant
vessel would be an armed attack since the US emphasized there had been a series
of missile attacks.96 It thus remains unclear whether the ‘most grave form’ of the
use of force can be manifested in a single incident.
The ICJ has also not taken a clear position on whether a series of incidents may
be characterized as an armed attack. The ‘accumulation of events’ theory provides
that a series of minor cross-border incursions, each insufficient to amount to
an armed attack, may nevertheless taken cumulatively qualify.97 This theory was
contemplated but not applied by the ICJ in several cases. In Nicaragua, the Court
declined to characterize the transborder incursions into Honduras and Costa
Rica because there was ‘[v]ery little information . . . as to the circumstances of
these incursions or their possible motivations, which renders it difficult to decide
whether they may be treated for legal purposes as amounting, singly or collec-
tively, to an armed attack by Nicaragua on either or both states’.98 For the same
reason, the Court declined to comment on the theory in Cameroon v Nigeria.99
The ICJ hinted in the Oil Platforms Judgment that it was inclined to accept the
theory but it did not apply it on the facts, stating that ‘even taken cumulatively’
the series of incidents did not constitute an armed attack on the US.100 In Congo
v Uganda, the Court also evinced a prima facie acceptance of the theory when it
said ‘even if this series of deplorable attacks could be regarded as cumulative in
character’, they could not be attributed to the DRC.101 In his Separate Opinion
in Oil Platforms, Judge Simma rejected the ‘accumulation of events’ theory, find-
ing no ‘qualitative jump’ between iterative activities below the threshold of Article
51 and the ‘armed attack’ envisaged in that article.102 Even if one could discern a
provisional acceptance of the ‘accumulation of events’ theory by the ICJ, there are
still many unresolved questions, including the number of minor events required
to constitute an armed attack and, since these events would usually vary in grav-
ity, the ‘net gravity’ threshold to be achieved on a cumulative basis.103
⁹⁵ Oil Platforms (n 32) paras 65–72.
⁹⁶ ibid paras 50, 62.
⁹⁷ Gray, ‘Eritrea/Ethiopia’ (n 42) 720. See also Tams, ‘Use of Force against Terrorists’ (n 82)
388–389.
⁹⁸ Nicaragua (n 19) para 231.
⁹⁹ Cameroon v Nigeria (n 58) para 323.
¹⁰⁰ Oil Platforms (n 32) para 64. See Tams, ‘Use of Force against Terrorists’ (n 82) 388.
¹⁰¹ Congo v Uganda (n 39) para 146.
¹⁰² Oil Platforms (n 32) para 14 (Separate Opinion of Judge Simma).
¹⁰³ James A Green, The International Court of Justice and Self-Defence in International Law (Hart
Publishing 2009) 44.
120 Use of Force
It is also not clear from the case law whether an occupation can be an armed
attack. Eritrea had argued before the EECC that the entry of Ethiopian armed
forces into its territory, without permission, and their presence in Badme consti-
tuted an ‘armed attack even if shots are not fired’.104 The EECC did not consider
this argument since it used the 2000 ceasefire line rather than the international
boundary for the determination of the legality of use of force.105 In the Wall
Advisory Opinion, the ICJ referred in passing to the jus ad bellum legality of the
Israeli occupation of the West Bank, but it did not explore whether an occupation
could be an unlawful armed attack.106 A variation on this issue was considered
by the ICJ in the Congo v Uganda Judgment. The ICJ confronted the difficult
question of whether, when a state agrees to a ceasefire and a phased withdrawal of
foreign troops, a ‘consent’ has been given pro tem for the presence of those troops.
After examining a series of such agreements, the Court found that they did not
constitute consent by the DRC to the presence of Ugandan troops on its territory
‘in the sense of validating that presence by law’.107 The ICJ later reached the over-
all conclusion that Uganda had engaged in a ‘grave violation of the prohibition
on the use of force contained in Article 2, paragraph 4 of the Charter’,108 but it
is not clear whether it considered the unlawful presence of the Ugandan troops
to be an ‘armed attack’ as such.109 This question is left open for interpretation by
other courts, scholars, organizations, and states, which raises the potential for
fragmentation of the law in the future.

C. Anticipatory self-defence
Some states, including the US, Israel, and the UK, claim that a completed ‘armed
attack’ is not necessary to trigger the right to self-defence in international law.110
They have claimed the right of anticipatory self-defence, which is the right to
use force in the face of an imminent threat, but before their territory or armed
forces abroad are actually attacked.111 Statements of support for the existence
of this right in international law have also come from the UN High-level Panel
on Threats, Challenges and Change and from Secretary-General Kofi Annan.112
¹⁰⁴ Eritrea, Statement of Defense (15 December 2002) para 14.
¹⁰⁵ Gray, ‘Eritrea/Ethiopia’ (n 42) 717.
¹⁰⁶ Wall Advisory Opinion (n 65) paras 75, 117.
¹⁰⁷ Congo v Uganda (n 39) para 105. See also para 53.
¹⁰⁸ ibid para 165.
¹⁰⁹ It dealt with this fact under the heading of ‘belligerent occupation’ under jus in bello, ibid paras
172–173.
¹¹⁰ See the National Security Strategy of the United States of America (September 2002) 15; the
UK’s ‘Attorney General’s advice to the Prime Minister of 7 March 2003’ (2005) 54 ICLQ 767. For
an examination of Israel’s position, see Anthony Arend, ‘International Law and the Preemptive Use
of Military Force’ (2003) 26(2) Wash Q 89.
¹¹¹ Gray, ‘Eritrea/Ethiopia’ (n 42) 160. For the classic explanation of this concept, see Robert Y
Jennings, ‘The Caroline and McLeod Cases’ (1938) 32 AJIL 82.
¹¹² The High-level Panel Report stated ‘[l]ong-established customary international law makes it
clear that States can take military action as long as the threatened attack is imminent, no other
 III. ‘Armed Attack’ for the Purpose of Self-Defence 121

The notion of pre-emptive self-defence has garnered less support, although it has
been invoked by the US and associated with the Israeli destruction of the Osirak
reactor in 1981.113 It is broader than anticipatory self-defence in that a claim of
pre-emptive self-defence can point only to a possibility, contingency, or ‘incipient
development’ rather than an imminent threat.114
The international courts that have commented on self-defence—the ICJ and
the EECC—have tended to read Article 51 as requiring an actual armed attack.
However, it is too early to discern whether there is genuine integration in this
area since the judges and arbitrators have only addressed anticipatory self-defence
in passing and the parties have not relied on the concept in their pleadings. The
EECC stated, rather categorically, in the Jus ad Bellum Partial Award that ‘the
predicate for a valid claim of self-defense under the Charter is that the party
resorting to force has been subject to an armed attack’.115 Since Eritrea had
invoked self-defence against an actual armed attack,116 the EECC may have been
pronouncing on the arguments of the parties rather than making a general state-
ment about the law on the use of force, but the brevity of the discussion makes
it difficult to determine which task the EECC was engaged in.117 The unavail-
ability of the pleadings renders it impossible for the interested outsider, whether
a scholar or a state legal adviser, to shed light on the EECC’s statement.
In the Nicaragua Judgment, the ICJ also stated that the exercise of individual
self-defence ‘is subject to the State concerned having been the victim of an armed
attack’,118 but it clarified that this statement was tied to the facts of the case.
The parties had not directly raised ‘the issue of lawfulness of a response to the
imminent threat of armed attack’119 so the Court implicitly left this issue open.
In Congo v Uganda, the ICJ stated that, as in the Nicaragua case, the facts did not
warrant any pronouncement on whether self-defence would be available in the
light of an imminent attack.120 Nonetheless, the Court went on to observe that
the wording of the Ugandan High Command document on the position regard-
ing the presence of its armed forces in the DRC made no reference to armed

means would deflect it, and the action is proportionate’ (High-Level Panel on Threats, Challeng-
es, and Change ‘A More Secure World: Our Shared Responsibility’ (2 December 2004) UN Doc
A/59/565, 188–192). In his 2005 report, ‘In Larger Freedom’, the Secretary-General stated that
‘lawyers’ (not ‘customary international law’) ‘have long accepted that [Art 51] covers an imminent
attack as well as one that has already happened’ (UNGA (21 March 2005) UN Doc A/59/2005,
para 124). See also Gray, ‘Eritrea/Ethiopia’ (n 42) 165.
¹¹³ Reisman, ‘Assessing Claims’ (n 1) 87–88, citing inter alia President Bush’s National Strategy to
Combat Weapons of Mass Destruction (December 2002) 3.
¹¹⁴ Reisman, ‘Assessing Claims’ (n 1) 87.
¹¹⁵ Jus ad Bellum Award (n 41) para 11.
¹¹⁶ ibid para 9.
¹¹⁷ Gray, ‘Eritrea/Ethiopia’ (n 42) 717.
¹¹⁸ Nicaragua (n 19) para 195 (emphasis added).
¹¹⁹ ibid para 194.
¹²⁰ Uganda had made it clear that it believed an armed attack had occurred, through a series of
attacks, and that it was not responding to an imminent attack: Congo v Uganda (n 39) para 143.
122 Use of Force
attacks that had already occurred against Uganda. Rather, the High Command
was acting ‘to secure Uganda’s legitimate security interests’, which (save for one)
were essentially preventative in nature.121 The Court stated that Article 51 ‘does
not allow the use of force by a State to protect perceived security interests’ beyond
the parameters of Article 51.122 The implication was that a state concerned with
preventative action against a threat should seek recourse to the Security Council;
an approach that appears to foreclose a right to anticipatory self-defence.
In sum, there is neither integration nor fragmentation on the question of antic-
ipatory self-defence. The issue has deliberately been left open for the ICJ in the
absence of direct pleadings by the parties. The brief comment of the EECC was
also made in the absence of any party claiming a right to anticipatory self-defence.
The progressive development of the law on this issue is for the moment firmly in
the hands of states and international organizations such as the UN. The contribu-
tion of the international judiciary awaits a case that directly raises the question as
well as a court willing to provide a definitive answer.

IV. The Crime of Aggression

The crime of aggression is different to the aspects of the law on the use of force
that have been analysed in Sections II and III above. First, there is hardly any
judicial practice on this topic because the crime has rarely come before the ICJ
and it was only very recently included within the jurisdiction of the ICC (subject
to a delayed entry into force). Second, the relationship between international
courts and political organs, in particular the Security Council, is more prominent
as regards aggression than in other areas. It is nonetheless a fascinating topic for
exploring the problem of the diffuse structure of the international legal system.
As with genocide and immunities, the crime of aggression implicates both state
action and individual conduct.123 Since the 2010 Kampala Review Conference of
the ICC, it is a crime that is potentially within the jurisdiction of both the ICJ
(for state responsibility) and the ICC (for individual criminal responsibility). It
thus represents a topic with significant potential for integration or fragmentation
among international courts, and illuminates the different relationship of each
court with the Security Council.

A. A brief history of the crime of aggression in international courts

Aggression is a sub-type of the use of force prohibited in Article 2(4) of the
UN Charter. It is distinguished by its gravity; the General Assembly has labelled

¹²¹ ibid.
¹²² ibid para 148.
¹²³ Beth Van Schaak, ‘Negotiating at the Interface of Power & Law: The Crime of Aggression’ Santa
Clara University Legal Studies Research Paper Series, Accepted Paper No 10-09 (August 2010) 5.
 IV. The Crime of Aggression 123

aggression the ‘most serious and dangerous form of the illegal use of force’.124
The first prosecution of individuals for the crime of aggression (known as ‘crime
against the peace’) occurred at the International Military Tribunals at Nuremberg
and for the Far East in the aftermath of the Second World War. The judges at
Nuremberg claimed that aggression was ‘the supreme international crime differ-
ing only from other war crimes in that it contains within itself the accumulated
evil of the whole’,125 and took pains to justify its status as a crime before the adop-
tion of the London Charter.126 However, the actual convictions show evidence of
judicial caution, if not reluctance, to assign responsibility.127 No defendant was
sentenced to death solely for guilt for crimes against peace; in each case, they were
also found guilty of war crimes, crimes against humanity, or both.128
The Tokyo Tribunal was an exception to this cautious approach. Of the
twenty-five defendants charged with crimes against peace, all but one were
convicted under counts relating to individual responsibility for crimes against
peace.129 The Tokyo Tribunal has attracted intense criticism for its procedural
problems and has generally not been treated as a precedent.130 Although the

¹²⁴ UNGA Res 3314 (XXIX) (14 December 1974) preambular para 5. See also Separate Opinion
of Judge Elaraby, Congo v Uganda (n 39) stating that ‘[a]ggression is the core and the very essence of
the use of force prohibited under Article 2, paragraph 4’.
¹²⁵ Judgment of the Nuremburg International Military Tribunal 1946 (1947) 41 AJIL 172, 186.
¹²⁶ Nuremberg Judgment, 216–224, quoted in Codification Division, Office of Legal Affairs ‘His-
torical Review of Developments Relating to Aggression’ (2003) 30–31. The Tribunal referred to the
1928 Kellogg–Briand Pact, Art 1 of the 1923 Draft Treaty of Mutual Assistance, the preamble to
the 1924 League of Nations Protocol for the Pacific Settlement of International Disputes, the pre-
amble to the 1927 Declaration of the League of Nations Assembly, and the resolution of the 1928
Pan-American Conference. The Charter of the Tokyo Tribunal also criminalized aggression in Art
5(a) and the Judges expressed complete agreement with the opinion of the Nuremberg Tribunal that
‘aggressive war was a crime at international law long prior to the date of the Declaration of Potsdam’:
quoted in Codification Division 170.
¹²⁷ There were two counts relevant to aggression: count one of common plan or conspiracy to com-
mit crimes against peace, and count two of planning, preparing, initiating, and waging war as crimes
against peace. Twenty-four defendants were charged under count one or count two or both. Of these
twenty-four, two did not stand trial, one committed suicide, and one could not be tried due to their
physical and mental condition. Eight were convicted of counts one and two; four were convicted of
count two. Codification Division (n 126) 3–4, 34–67.
¹²⁸ Dorothy V Jones, Toward a Just World: The Critical Years in the Search for International Justice
(University of Chicago Press 2002) 192–193. In the twelve subsequent trials conducted by the US in
Germany under the authority of the four-power Control Council, indictments for planning, initiat-
ing, and waging aggressive war (aggressive war charge) and taking part in a conspiracy to commit
crimes against peace (conspiracy charge) were brought against defendants in four of the trials. No
defendant was found guilty under the aggressive war charge, and only five were found guilty under
the conspiracy charge. The Tribunal explicitly adopted a cautious approach requiring conclusive
evidence of knowledge and active participation for a conviction; it observed that the Nuremberg
Tribunal had also ‘approached a finding of guilty of any defendant under the charges of participation
in a common plan or conspiracy or planning and waging aggressive war with great caution’: quoted
in Codification Division (n 126) 74.
¹²⁹ Codification Division (n 126) 196–222.
¹³⁰ The General Assembly and International Law Commission have explicitly adopted the Nurem-
berg Principles, but not the Tokyo ones. There has also been less written about the Tokyo Tribunal
compared to Nuremberg. Some accounts that survey the criticisms of the Tokyo Tribunal include
124 Use of Force
Nuremberg and Tokyo precedents are not without controversy,131 the definition
and prosecution of aggression was relatively straightforward given the complete
subjugation of Germany and Japan.132 The crime lay dormant for four decades,
and when the international community attempted to codify the crime of aggres-
sion in the context of establishing the ICC, a variety of serious controversies
arose, as discussed in Section B below.
As regards state responsibility for aggression, the practice of the ICJ is sparse.
There have only been two cases involving an alleged act of aggression by a state.
In Nicaragua, the issue was considered in the context of an armed attack possi-
bly triggering the right to self-defence. Since the ICJ found that no such armed
attack had occurred, it limited itself to acknowledging the customary status of
one provision of the 1974 General Assembly resolution on the Definition of
Aggression.133 It did not comment further on the definition of aggression in the
context of inter-state disputes.
In the Congo v Uganda case, the DRC claimed that the unlawful use of force
by Uganda was of such gravity that it amounted to aggression.134 The ICJ went
as far as to hold that ‘[t]he unlawful military intervention by Uganda was of
such a magnitude and duration that the Court considers it to be a grave viola-
tion of the prohibition of the use of force expressed in Article 2, paragraph 4, of
the Charter’,135 but stopped short of labelling it ‘aggression’. This omission was
criticized by Judges Elaraby and Simma in Separate Opinions. Judge Elaraby
considered that the Court had avoided its ‘judicial responsibility to adjudicate on
a normative basis’ by failing to answer the DRC’s claim on this point.136 Judge
Simma asked, ‘why not call a spade a spade?’, noting that the invasion by Uganda
was a military activity, if there ever was one, that deserved to be qualified as an act

Richard Minear, Victor’s Justice: The Tokyo War Crimes Trial (Princeton University Press 1971); John
W Dower, Embracing Defeat: Japan in the Wake of World War II (W W Norton & Company 1999)
443–484; Tim Maga, Judgment at Tokyo: The Japanese War Crimes Trial (University Press of Ken-
tucky 2001). See also Neil Boister and Robert Cryer, Documents on the Tokyo International Military
Tribunal: Charter, Indictment, and Judgments (OUP 2008).
¹³¹ Even former US Prosecutor Telford Taylor later acknowledged that arguments about crimes
against the peace, ‘if conducted on a plane devoid of political and emotional factors, will be won by
the defense’: Telford Taylor, Anatomy of the Nuremberg Trials: A Personal Memoir (Little Brown &
Co 1992) 629. There was also intense academic debate as to whether the convictions at Nuremberg
violated the principles of nullem crimen sine lege: See George A Finch, ‘The Nuremberg Trial and
International Law’ (1947) 41 AJIL 20; Hans Ehard, ‘The Nuremberg Trial Against the Major War
Criminals and International Law’ (1949) 43 AJIL 223. For a defence of the trials for crimes against
the peace, see Quincy Wright, ‘The Law of the Nuremberg Trial’ (1947) 41 AJIL 38.
¹³² Van Schaak (n 123) 4.
¹³³ Nicaragua (n 19) para 195 (referring to Art 3(g) of UNGA Res 3314 (XXIX) (14 December
1974)).
¹³⁴ Congo v Uganda (n 39) Application of the Democratic Republic of the Congo, 5; Memorial
of the Democratic Republic of the Congo, 6, para 010; Reply of the Democratic Republic of the
Congo, 60, para 2.01.
¹³⁵ Congo v Uganda (n 39) para 165 (emphasis added). See also para 345(1) for the dispositif on
this issue.
¹³⁶ ibid para 17 (Separate Opinion of Judge Elaraby).
 IV. The Crime of Aggression 125

of aggression.137 The Congo v Uganda case represented an opportunity for the ICJ
to formulate a legal test for aggression that may have had wider resonance and
facilitated integration of the international law on this topic. At the same time, the
failure of the ICJ to pronounce on aggression is consistent with its pattern of cau-
tion in cases on the use of force.138 When the Congo v Uganda case was decided
in 2004, the ICC’s states parties’ struggles to define the crime of aggression were
obvious, and this evidence of a lack of consensus among states may have made
the ICJ hesitant to comment on this issue. Such hesitancy may have been com-
pounded by the Security Council’s own inconclusive practice in this field.

B. Bringing the crime of aggression within the jurisdiction of the ICC

Efforts to include the crime of aggression within the jurisdiction of the ICC
date back to the establishment of the Court itself. Reference was made to the
crime, without a definition, in the draft Statute prepared by the ILC in 1994.139
A Preparatory Committee met in 1996, 1997, and 1998 to prepare a working text
of the Court’s statute to be submitted to the Rome Conference in July 1998.140
It was already apparent by this stage that there were deep divisions among states
on two issues: (1) the definition of the crime of aggression; and (2) the role of
the Security Council with regard to prosecutions for aggression. These divisions
could not be resolved during the Rome Conference;141 all that could be agreed
was to include a ‘holding provision’ in the Rome Statute.142 Article 5(2) of the
Statute provided the Court may exercise jurisdiction over the crime only after it
had been defined and conditions for such exercise had been agreed. Decisions
on these aspects were postponed to a future Review Conference,143 which was
eventually held in Kampala, Uganda in June 2010.
Despite ongoing negotiations among states on the crime of aggression in
Preparatory Commissions (1999–2002), Special Working Groups (2004–2008),

¹³⁷ ibid para 2 (Separate Opinion of Judge Simma).

¹³⁸ See Section VI below.
¹³⁹ ILC, ‘Report of the International Law Commission on its 46th Session’ (2 May–22 July 1994)
UN Doc A/49/10.
¹⁴⁰ Mahnoush H Arsanjani, ‘The Rome Statute of the International Criminal Court’ (1999) 93
AJIL 22, 22.
¹⁴¹ For an overview of what happened at Rome, see Andreas Zimmermann, ‘Article 5’ Otto Triff-
terer (ed), in Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes,
Article by Article 129 (2nd edn, Hart and Nomos Publishing 2008) 136–137.
¹⁴² Amendments submitted by the Nonaligned Movement to the Bureau Proposal, UN Doc A/
CONF.183/C.1/L.75.
¹⁴³ The Rome Conference adopted Resolution F stating that the Preparatory Commission would
prepare proposals for a provision on aggression for submission to the Review Conference in the
future. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court ‘Final Act of the United Nations Diplomatic Conference of Pleni-
potentiaries on the Establishment of an International Criminal Court’ (17 July 1998) UN Doc A/
CONF.183/10, res 7, para 7.
126 Use of Force
the ‘Princeton Process’ (2004–2007),144 and the Assembly of States Parties
(2009–2010),145 by the time of the Kampala Review Conference only a small
amount of progress had been made. The definition of aggression prepared by
the Special Working Group in June 2008 had achieved a large degree of consen-
sus.146 However, there were still two competing visions of the role of the Security
Council. As Van Schaak accurately portrays it, there was:
the contested dogma of Security Council exclusivity on the one hand, and the conviction
that the ICC, as a judicial and penal body, should be empowered to act independently,
beyond the control of any political body and independent of the consent of states, on the
other.147
In the first camp (Security Council as the gatekeeper to prosecutions for aggres-
sion) were the Permanent Five Members of the Security Council. In the sec-
ond camp (the ICC being able to pursue prosecutions for aggression without a
prior determination by the Security Council) were many members of the Latin
American and Caribbean countries, the African Group, members of the Arab
Group, and many European states. At the final hour, the Review Conference
agreed to a compromise encompassing two triggers to the ICC’s jurisdiction
over the crime of aggression. First, where there is a referral of a situation by the
Security Council, the Prosecutor may proceed with a prosecution of aggression
subject to other requirements of the Statute. It would not be necessary for the
alleged aggressor state to have accepted the Court’s jurisdiction.148 Second, where
there is a referral by a state or the ICC Prosecutor decides to act proprio motu, if
the Security Council has not made a determination that there is an act of aggres-
sion, the authorization of all the judges of the Pre-Trial Division is needed for the
investigation to proceed.149 Under this scenario, the potential for fragmentation
opens up between the Security Council and the ICC. This may be temporarily
alleviated by the fact that the Security Council can halt such an investigation for
twelve months by passing a resolution under Chapter VII of the Charter.150 The
¹⁴⁴ The Liechtenstein Institute on Self-Determination hosted at Princeton University the In-
ter-sessional Meeting of the Special Working Group on the Crime of Aggression of the ASP. The
meetings involved delegates from state parties and non-states parties as well as NGOs. Stefan Bar-
riga, Wolfgang Danspeckgruber, and Christian Wenaweser (eds), The Princeton Process on the Crime
of Aggression: Materials of the Special Working Group on The Crime of Aggression, 2003–2009 (Lynne
Rienner Publishers 2009).
¹⁴⁵ In particular, the Resumed Eighth Session of the ASP, 22–25 March 2010, New York.
¹⁴⁶ Draft Amendments to the Rome Statute of the International Criminal Court, Discussion Paper
on the Crime of Aggression Proposed by the Chairman (Revision June 2008), in Barriga (n 144) 94,
96. The US, a non-state party, was highly critical of various aspects of the definition and proposed
various ‘understandings’ to mitigate some of its concerns. These ‘understandings’—which are of
uncertain status as tools of interpretation—were accepted, with amendments, during the Review
Conference. See Kampala Review Conference ‘Resolution on the Crime of Aggression, Annex III’
(11 June 2010) ICC Doc RC/Res.6 (hereinafter ‘Resolution on the Crime of Aggression’).
¹⁴⁷ Van Schaak (n 123) 2.
¹⁴⁸ ‘Resolution on the Crime of Aggression’ Art 15ter.
¹⁴⁹ ibid Art 15bis.
¹⁵⁰ ICC Statute Art 16.
 IV. The Crime of Aggression 127

final package agreed in Kampala was contingent on delayed entry into force, and
the earliest time at which the provisions on aggression may become operational
is 2017.151

C. The relationship with the Security Council

The history of the negotiations of the crime of aggression illustrates the com-
plex relationship that the ICC has with the Security Council, and provides some
insight into the future behaviour of the Court. The ICC is not part of the UN
system; it has its own Assembly of States Parties, a separate budget, and a separate
staffing system. However, it does have a formal relationship agreement with the
UN152 and the Security Council has the ability under the Statute to refer situ-
ations to the Court and to halt investigations or prosecutions for a renewable
twelve-month period.153 As a result of the negotiations on the crime of aggression,
the Security Council was not ultimately accorded any additional powers with
respect to aggression prosecutions. The Permanent Five Members of the Council
were ultimately unable to convince the majority of the delegates in Kampala to
vest the Council with exclusive authority over such prosecutions.154
The outcome of the Kampala Review Conference appears to stem not only
from a rejection of the notion that the Security Council has exclusive respon-
sibility for determining acts of aggression,155 but also from a frustration with
the Council’s inconsistent and sparse practice in this regard.156 In six decades of
activity, the Security Council has been strikingly reluctant to label an event an

¹⁵¹ ‘Resolution on the Crime of Aggression’ Arts 15ter, 15bis. The amendments on aggression will
enter into force according to Art 121(5), which means that the amendments will take effect for a
state one year after it has ratified or accepted them. However, the new articles delay the exercise of
the ICC’s jurisdiction over the crime of aggression until some point after 1 January 2017. After this
date and only if thirty states or more have ratified or accepted the amendments, the states parties
may authorize the exercise of jurisdiction under the same requirements necessary for the adoption of
an amendment, either by a consensus decision of the ASP or, if there is no consensus, by a two-thirds
vote. Under the amendment, it is possible that the ASP could decide to activate the trigger for the
state party referrals and prosecutor-initiated cases separately from the Security Council trigger.
¹⁵² ICC Statute Art 2; International Criminal Court, ‘Draft Relationship Agreement Between the
United Nations and the International Criminal Court’ (4 October 2001) ICC Doc PCNICC/2001/
WGICC-UN/L.1.
¹⁵³ ICC Statute Arts 13, 15.
¹⁵⁴ Van Schaak (n 123) 52. See also Kenneth Anderson, ‘The Rise of International Criminal Law:
Intended and Unintended Consequences’ (2009) 20 EJIL 331, 335 (‘International criminal law . . .
[is] a mechanism for achieving reform of the Security Council over the long haul by gradually hiving
off parts of its mandate and authority’).
¹⁵⁵ United Nations Charter (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS
XVI, Arts 24, 39.
¹⁵⁶ The only cases in which the Council has condemned ‘acts of aggression’ were not adopted un-
der Chapter VII of the Charter: UNSC Res 455 (23 November 1979) UN Doc S/Res/455; UNSC
Res 573 (4 October 1985) UN Doc S/Res/573; UNSC Res 577 (6 December 1985) UN Doc S/
Res/577. In some instances the reference to aggression was in the preamble rather than the operative
paragraphs: UNSC Res 386 (17 March 1976) UN Doc S/Res/386.
128 Use of Force
‘act of aggression’ let alone assign individual responsibility.157 In the vast majority
of resolutions, the Security Council has preferred to downgrade its evaluation
to a ‘breach of the peace’ or ‘threat to the peace’. While it condemned the Iraq
invasion of Kuwait, it did not use the term ‘aggression’ or ‘act of aggression’.158 As
Chesterman observes, the Security Council’s actions are notable for ‘the plasticity
of the circumstances in which [it is] prepared to assert its primary responsibility
for international peace and security’.159 Those delegations who fought for the
ICC’s ability independently to prosecute the crime of aggression must have been
motivated by the concern that requiring Security Council designation of state
action as aggression would mean the individual crime of aggression would stay
a ‘dead letter’.160 It will now remain to be seen whether the divided views in the
ASP will carry over to the ICC judiciary and prosecution.
The ICJ has a relationship with the Security Council based on the fact that
both bodies are main organs of the United Nations. Unlike the ICC’s patchwork
relationship with the Council based on isolated statutory provisions, the ICJ
and the Council exist in a horizontal relationship within the same international
system. Various provisions of the Charter point to formal interaction between the
Security Council and the ICJ, but these have rarely been invoked in practice.161
Instead, the relationship is based on informal exchanges and mutual acknowl-
edgement.162 On several occasions the ICJ has confirmed that the Security

¹⁵⁷ The Security Council has condemned Southern Rhodesia’s acts of aggression against various
countries from 1973 to 1979 (UNSC Res 326 (2 February 1973) UN Doc S/Res/326; UNSC Res
386 (17 March 1976) UN Doc S/Res/386; UNSC Res 411 (30 June 1977) UN Doc S/Res/411;
UNSC Res 424 (17 March 1978) UN Doc S/Res/424; UNSC Res 445 (8 March 1979) UN Doc S/
Res/445, UNSC Res 455 (23 November 1979) UN Doc S/Res/455); South Africa’s ‘acts of aggres-
sion’ against Angola, Botswana, and Lesotho from 1976 to 1987 (UNSC Res 387 (31 March 1976)
UN Doc S/Res/387; UNSC Res 546 (6 January 1984) UN Doc S/Res/546; UNSC Res 568 (21
June 1985) UN Doc S/Res/568; UNSC Res 527 (15 December 1982) UN Doc S/Res/527; UNSC
Res 580 (30 December 1985) UN Doc S/Res/580), ‘the act of armed aggression’ by mercenaries
against Benin in 1977 (UNSC Res 405 (15 April 1977) UN Doc S/Res/405); and Israel’s ‘new act of
aggression’ against Tunisia in 1988 (UNSC Res 661 (6 August 1990) UN Doc S/Res/661).
¹⁵⁸ UNSC Res 660 (2 August 1990) UN Doc S/Res/660; UNSC Res 661 (6 August 1990) UN
Doc S/Res/661; UNSC Res 662 (6 August 1990) UN Doc S/Res/662. Other examples are calling
the attack of North Korea on South Korea and the invasion of the Falkland Islands by Argentina
‘breaches of the peace’: UNSC Res 82 (25 June 1950) UN Doc S/Res/82; UN Doc S/1501; UNSC
Res 502 (3 April 1982) UN Doc S/Res/502; UN Doc S/PV.2346.
¹⁵⁹ Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law
(OUP 2001) 236.
¹⁶⁰ Andreas Paulus, ‘Second Thoughts on the Crime of Aggression’ (2009) 20(4) EJIL 1117, 1125.
¹⁶¹ UN Charter Art 33 provides that the Security Council may call upon parties to settle their
disputes by means which include judicial settlement. Article 36(3) states that in making recommen-
dations for the settlement of disputes ‘the Security Council should also take into consideration that
legal disputes should as a general rule be referred by the parties to the International Court of Justice’.
Under Art 94(2) of the Charter, the Security Council may decide upon measures to be taken to give
effect to a judgment of the Court upon the request of a party to a case. Article 41(2) of the Statute
of the ICJ requires the Security Council to be notified of provisional measures ordered by the Court;
Statute of the International Court of Justice, annexed to the UN Charter Ch XIV (1945).
¹⁶² These include annual briefings by the President of the ICJ to the Security Council in a closed
session and on other occasions, such as the 2006 thematic debate on ‘Strengthening International
 IV. The Crime of Aggression 129

Council’s responsibilities for the maintenance of international peace and security

are ‘primary’, not ‘exclusive’,163 but it has not yet conducted judicial review of
Security Council action.164 The Court and the Council have dealt with the same
subject matter either sequentially or simultaneously.165 There has been no stand-
ing down of one organ in favour of the other, but rather—more visibly on the
Court’s side166—careful attention being paid to the decisions of the other.167 In
an early phase of the Lockerbie case, Judge Manfred Lachs observed that, while
the various UN organs each have their various roles to play in a situation or dis-
pute, they should act:
in harmony—though not, of course, in concert—and that each should perform its func-
tions with respect to a situation or dispute, different aspects of which appear on the agenda
of each, without prejudicing the exercise of the other’s powers.168

Law’ (UNSC ‘Letter dated 7 June 2006 from the Permanent Representative of Denmark to the
United Nations addressed to the Secretary-General’ (7 June 2006) UN Doc S/2006/367). The Se-
curity Council has also, of its own volition, taken measures to facilitate the implementation of the
judgment concerning Territorial Dispute (Libyan Arab Jamahiriya/Chad) (Judgment) [1994] ICJ
Rep 6.
¹⁶³ Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter) (Advisory Opin-
ion) [1962] ICJ Rep 151, 163; Wall Advisory Opinion (n 65) para 27.
¹⁶⁴ Dapo Akande, ‘The International Court of Justice and the Security Council: Is there Room for
Judicial Control of Decisions of the Political Organs of the United Nations?’ (1997) 46 ICLQ 309
(hereinafter Akande, ‘Security Council’). The issue arose tangentially in the Lockerbie case, but the
ICJ did not pronounce on it: B Martenczuk, ‘The Security Council, the International Court and
Judicial Review: What Lessons From Lockerbie?’ (1999)10(3) EJIL 517.
¹⁶⁵ In the case concerning the Aegean Sea Continental Shelf (Greece v Turkey) (Request for the In-
dication of Interim Measures of Protection: Order) [1976] ICJ Rep 3, the Court and Council were
simultaneously seised. The Security Council issued UNSC Res 395 (25 August 1976) UN Doc S/
Res/395 inviting the parties to continue to take into account the contribution that ‘appropriate
judicial means, in particular the International Court of Justice, are qualified to make’. Two weeks
later, the Court issued an Order taking note of the resolution: Aegean Sea Continental Shelf (Greece
v Turkey) (Request for the Indication of Interim Measures of Protection: Order) [1976] ICJ Rep 3.
The same dispute was before both organs in the case concerning United States Diplomatic and Con-
sular Staff in Tehran (United States of America v Iran) (Judgment) [1980] ICJ 3. The Security Council
adopted a series of resolutions directed to resolving the situation while the International Court is-
sued provisional measures and then a judgment on the merits. Both organs took note of each other’s
actions and urged the parties to comply. In the Nicaragua case, it had been claimed that as the dis-
pute involved the ongoing use of force, it was a matter to be dealt with by the Security Council. The
Court noted the Charter did not confer exclusive responsibility upon the Security Council for that
purpose and both organs could perform their separate but complementary functions with respect to
the same event: (n 19) paras 32–33.
¹⁶⁶ This is understandable since Security Council practice is often not published or only reported
in a very concise format.
¹⁶⁷ See the extensive reference to Security Council Resolutions in the Congo v Uganda (n 39) and
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43 (hereinafter Bosnia Genocide
Judgment).
¹⁶⁸ Questions of Interpretation and Application of the 1971 Montreal Convention arising from the
Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) (Provisional Measures: Order
of 14 April) [1992] ICJ Rep 27, Separate opinion of Judge Lachs.
130 Use of Force
The ICJ appears to have been guided by this philosophy and there certainly have
not been any obvious clashes between the Court and the Council. Nonetheless,
it is possible that the ICJ has refrained from certain pronouncements on the use
of force in the absence of a prior determination by the Council. This is certainly
what the Separate Opinions of Judges Elaraby and Simma in the Congo v Uganda
Judgment suggest.169 The question is whether this judicial caution is the price to
pay for consistency across international bodies, or whether it hampers the ICJ in
fulfilling its responsibilities as a judicial organ. The ICC may soon be grappling
with a similar dilemma after 2017 if the aggression amendments enter into force.

D. Scenarios of fragmentation and integration

The inclusion of the crime of aggression in the ICC Statute, and its application
to both state action and individual conduct, raises the potential for fragmenta-
tion along two axes: between the ICC and the Security Council, and between the
ICC and the ICJ.

1. ICC–Security Council
In the ideal scenario for the coherence of international law and the effective-
ness of international justice, the ICC will be prosecuting the crime of aggres-
sion when there has been a prior determination of an act of aggression by the
Security Council. In this situation the Court would benefit from the authority
of the Security Council in the sense that there would be political backing for
the prosecution,170 and possibly enhanced mechanisms for state cooperation.171
However, given the Security Council’s past record of practice on determining
aggression,172 this is not a likely scenario. For the same reason, it is unlikely that
a situation will arise where the Council determines that an act of aggression has
occurred and the ICC declines to investigate or acquits the accused. Rather,
the looming scenario is where the Council declines to determine that an act of
aggression has occurred and the ICC nonetheless convicts an individual for the
crime of aggression.
According to the structure of the Article 8bis of aggression amendment, by
convicting an individual for the ‘crime of aggression’ the ICC would necessar-
ily make a judicial finding that an ‘act of aggression’ had occurred.173 ‘Act of

¹⁶⁹ Congo v Uganda (n 39) paras 11, 3 respectively.

¹⁷⁰ International Criminal Court ‘Report of the Special Working Group on the Crime of Ag-
gression’ (29 November 2006) ICC Doc ICC-ASP/5/SWGCA/1, reprinted in Barriga (n 144)
131–134.
¹⁷¹ If, for example, the Security Council passed a resolution under Chapter VII requiring UN
Member States to cooperate with the ICC.
¹⁷² Section IV(C).
¹⁷³ Article 8bis(1) reads: ‘“crime of aggression” means the planning, preparation, initiation or ex-
ecution, by a person in a position effectively to exercise control over or to direct the political or
 IV. The Crime of Aggression 131

aggression’ is clearly defined in the Article 8bis(2) as state conduct, echoing the
words of Article 2(4) of the Charter: ‘the use of armed force by a State against
the sovereignty, territorial integrity or political independence of another State,
or in any other manner inconsistent with the Charter of the United Nations’.174
If a situation of alleged aggression comes to the Court by state referral or by
the Prosecutor acting proprio motu, and the full Pre-Trial Chamber authorizes
the investigation, the ICC is potentially left as the sole judge of what is essen-
tially a question of state responsibility.175 Such a situation could undermine the
legitimacy of the Council and the Court as well as result in contradictory inter-
pretations of aggression that might cause confusion within the international
community. Allowing the ICC to act in the absence of a prior Security Council
determination also potentially hinders the development of customary interna-
tional law on the use of force. Preserving a determinative role for the Security
Council would enable it to ‘insulate’ from prosecution certain uses of force whose
purpose or results may be deemed legitimate or valuable,176 including anticipa-
tory self-defence, forcible reactions to a minor use of force, armed interventions
to rescue nationals, the extraterritorial use of force against a large-scale attack by
non-state actors, and genuine humanitarian intervention.177 In such ‘grey areas’
the political calculation of the Security Council, or the inter-state analysis of the
ICJ, may be more appropriate than the ICC pronouncing on state conduct in the
course of the prosecution of an individual.

2. ICC–ICJ
The second axis of potential fragmentation is between the ICJ and the ICC, the
two courts that possess jurisdiction over aggression,178 albeit through the lenses
of state responsibility and individual criminal responsibility.
The ICJ’s status as the only international court of general jurisdiction resulted
in a formal avenue of interaction with the ICC being included in the Rome
Statute. Article 119 provides for the possibility for the ICJ to settle any dispute
between two or more states parties of the ASP ‘relating to the interpretation or
application of this Statute’. This provision has not yet been invoked, but it signals

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’. ‘Act of aggression’ is defined in para 2 of
the same Article along the lines of Art 2(4) of the UN Charter and UNGA Res 3314 (XXIX) (14
December 1974).
¹⁷⁴ ‘Resolution on the Crime of Aggression’ Arts 8bis(2).
¹⁷⁵ Compare with the ICTY’s pronouncements on state responsibility in the Tadić case.
¹⁷⁶ Van Schaak (n 123) 36.
¹⁷⁷ Elizabeth Wilmshurst, ‘Aggression’ in Robert Cryer and others (eds), An Introduction to Inter-
national Criminal Law and Procedure 262 (CUP 2007) 268ff.
¹⁷⁸ Subject to entry into force of the amendments, in the case of the ICC.
132 Use of Force
recognition of the ICJ’s role in general international law.179 Perhaps building on
the precedent of Article 119, during the negotiations on the crime of aggression
in the wake of the Rome Conference, the delegations of Bosnia and Herzegovina,
New Zealand, and Romania submitted a joint proposal to have the ICJ act as
a check on an ICC prosecution for aggression.180 The proposal addressed the
scenario discussed above where the Security Council has not made any determi-
nation of aggression and the Prosecutor is trapped in limbo with no guidance as
to the state conduct underlying the individual crime of aggression. The proposal
suggested the ICC may request the General Assembly to seek an advisory opinion
from the ICJ, in accordance with Article 96 of the Charter and Article 65 of the
Statute of the ICJ, on the legal question of whether or not an act of aggression
has been committed by the state concerned. Where the ICJ delivers an advisory
opinion (or makes a finding in contentious proceedings under Chapter II of
its Statute) that there has been an act of aggression by the state concerned, the
Prosecutor shall proceed with the case.181
The proposal has some obvious drawbacks. The process of putting the issue
on the General Assembly’s agenda, and then on the docket of the ICJ, will prob-
ably be very time-consuming and the aggression could well be intensifying in
the meantime. As a practical matter, there would be no means of forcing the
implicated states to participate in the advisory opinion proceedings, which would
hamper the fact-finding required to determine the existence of an act of aggres-
sion. Moreover, the ICJ does not have a strong track record in determining acts
of aggression,182 and using the Court as a jurisdictional filter could risk never
proceeding with the prosecution for this crime. For such reasons, the ICJ option
was dropped during the Kampala Review Conference.183
Despite the failure of this attempt at formal interaction between the courts,
there is still the potential for both courts to be engaged in deciding whether the
same state conduct constitutes aggression. A case could come before the ICJ as

¹⁷⁹ See Rosalyn Higgins, ‘The Relationship Between the International Criminal Court and the
International Court of Justice’ in Herman A M von Hebel, Johan G Lammers, and Jolian Schukking
(eds), Reflections on the International Criminal Court 164 (T M C Asser Press 1999).
¹⁸⁰ International Criminal Court, ‘Conditions under which the Court shall exercise jurisdiction
with respect to the crime of aggression’ (23 February 2001) ICC Doc PCNICC/2001/WGCA/DP.1
(later expanded in International Criminal Court ‘Proposal submitted by Bosnia and Herzegovina,
New Zealand and Romania: Conditions for exercise of jurisdiction over the crime of aggression’ (27
August 2001) ICC Doc PCNICC/2001/WGCA/DP.2/Add.1).
¹⁸¹ International Criminal Court ‘Proposal submitted by Bosnia and Herzegovina, New Zealand
and Romania: Conditions for exercise of jurisdiction over the crime of aggression’ (27 August 2001)
ICC Doc PCNICC/2001/WGCA/DP.2/Add.1.
¹⁸² Section IV(A).
¹⁸³ The Conference Room Paper issued just before the Review Conference included the ICJ filter
in ‘Alternative 2, Option 4’ for Art 15bis: Kampala Review Conference ‘Conference Room Paper
on the Crime of Aggression’ (25 May 2010) ICC Doc RC/WGCA/1. The Conference Room Paper
issued in the middle of the Review Conference dropped the ICJ option, leaving only an exclusive
Security Council filter (Alternative 1) or authorization by the Pre-Trial Chamber (Alternative 2):
Kampala Review Conference (10 June 2010) ICC Doc RC/WGCA/1/Rev.2.
 IV. The Crime of Aggression 133

an inter-state contentious dispute involving a claim of an act of aggression (as in

Congo v Uganda) while a leader is prosecuted for the crime of aggression by the
ICC. The best outcome in terms of coherence would be for the ICJ to determine
whether a state is responsible for an act of aggression and the ICC to follow
this ruling, though it is under no statutory duty to do so, in its determination
of individual criminal responsibility. However, two other scenarios are possible.
First, the ICJ may find a state responsible for aggression while the ICC acquits
that state’s leader of the crime of aggression.184 The individual acquittal as such is
not problematic; it may be based on the ‘beyond reasonable doubt’ standard of
evidence or on a valid individual defence. However, if the acquittal were based
on a finding by the ICC that no inter-state aggression existed, that would con-
flict directly with the finding of the ICJ, which is the court with jurisdiction to
determine state responsibility. In the second scenario, the ICJ may find that an
act of aggression does not exist or that a state is not responsible for such an act,
while the ICC convicts that state’s leader for the crime of aggression. Given that
the existence of—and attendant state responsibility for—an act of aggression is a
precondition for the crime of aggression,185 this scenario is the most problematic
for the coherence of international law. Such a situation, as with the scenarios
involving the Security Council discussed above, would undermine the credibility
of both institutions and create confusion as to the legal meaning of aggression.
The potential for fragmentation among the Security Council, the ICC, and
the ICJ was in the minds of the negotiators in Rome and Kampala, but it was
not resolved satisfactorily. The definition as agreed in Kampala embeds a deci-
sion on the state act of aggression in the determination of the individual crime
of aggression. At the same time, the provisions on the exercise of jurisdiction
state: ‘A determination of an act of aggression by an organ outside the Court
shall be without prejudice to the Court’s own findings under this Statute’,186
thus enshrining the independence of the ICC to reach its own legal conclusions.
The provisions that may eventually enter into force on the crime of aggression
would allow the ICC to pronounce on state responsibility for aggression in the
absence of—or in disagreement with—a determination by the Security Council
or the ICJ. This is not just a matter of inconsistent findings on the same facts,
but also endowing a court concerned with individual criminal responsibility with
the power to determine state responsibility. The question of how to integrate the
crime of aggression—and, as a consequence, the institution of the ICC itself—
within the larger system of international law and international relations has not
yet been answered.

¹⁸⁴ The Elements of the crime of aggression agreed in Kampala provide that ‘[t]he perpetrator was
a person in a position effectively to exercise control over or to direct the political or military action
of the State which committed the act of aggression’: Art 8bis Element 2.
¹⁸⁵ ‘Resolution on the Crime of Aggression’ Art 8bis.
¹⁸⁶ ‘Resolution on the Crime of Aggression’ Arts 15bis(9), 15ter(4).
134 Use of Force

V. Consequences of a Finding of a Use of Force

Once a court or tribunal has established that force has been used, there are several
consequences that may follow. Among these, is the classification of the armed
conflict as international or non-international, a question that is dependent on
whether it was another state that engaged in the use of force. A related issue is the
attribution of responsibility for the acts of non-state entities.
Not only have the ICJ, the ICC, and the ICTY engaged with these legal issues
in recent years, but they have also had the same factual scenarios before them.
The ICJ and the ICC have considered the armed conflict in the Ituri region of the
Democratic Republic of the Congo, and the ICJ and the ICTY have addressed
the war in the Balkans. Interestingly, the ICC has strived to achieve consistency
with the ICJ and the ICTY, but its efforts have led to uncertainty and potential
fragmentation. The ICTY, on the other hand, has consciously diverged from
the jurisprudence of the ICJ, but this apparent fragmentation in the law can be
resolved through careful interpretation.

A. Classification of the armed conflict

The classification of an armed conflict as international or non-international
is a critical step in determining the applicable law. The distinction is strongly
drawn in treaty law. International armed conflicts, in which at least two states
are involved, are subject to around six hundred rules contained in the four
Geneva Conventions of 1949 and Additional Protocol I of 1977.187 A much
more restricted set of rules—only twenty-nine—applies to non-international
armed conflicts, which involve fighting between the governmental authorities
and armed groups or between such groups within a state.188 Common Article 3
of the Geneva Conventions and Additional Protocol II are the main instruments
that govern such conflicts. In an important early decision—and a clear exam-
ple of the judicial development of international law—the Appeals Chamber of
the ICTY held that a number of customary rules that originally applied only to

¹⁸⁷ The scope of application is contained in Art 2 common to the Geneva Conventions of 1949:
‘all cases of declared war or of any other armed conflict which may arise between two or more of the
High Contracting Parties, even if the state of war is not recognized by one of them. The Conven-
tion shall also apply to all cases of partial or total occupation of the territory of a High Contracting
Party, even if the said occupation meets with no armed resistance’. The number of rules is cited in
Sonja Boelaert-Suominen, ‘Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is
Customary Law Moving Towards a Uniform Enforcement Mechanism For All Armed Conflicts?’
(2000) 5 JCSL 63–103, n 31.
¹⁸⁸ This definition comes from the Prosecutor v Tadić (Decision on the Defence Motion for In-
terlocutory Appeal on Jurisdiction) IT-94-1, A Ch (2 October 1995) para 70 (hereinafter Tadić
Jurisdiction Decision). Common Art 3 of the Geneva Conventions uses a negative definition of
‘armed conflicts not of an international character’. Additional Protocol II sets a higher standard than
Common Art 3 for its application in Art 1: ‘all armed conflicts . . . which take place in the territory
 V. Consequences of a Finding of a Use of Force 135

international armed conflicts had now been extended to cover non-international

armed conflicts.189 This expansive view of the customary rules applicable to
non-international armed conflicts was reflected, in part, in the Rome Statute of
the ICC.190 Despite these movements to merge the protections available in dif-
ferent types of conflicts, there are still differences in the rules that apply and the
classification of the conflict continues to have tangible legal consequences.
In its first substantive decision in its very first case,191 the ICC Pre-Trial
Chamber made a conscious effort to integrate its approach with the Congo v
Uganda Judgment of the ICJ, which involved broadly the same conflict. This
attempt at enhancing consistency among the courts actually increased fragmenta-
tion, but it was fortunately rectified by the ICC Trial Chamber.
In Congo v Uganda, the ICJ had characterized the conflict in the Ituri region
as international in nature, holding that Uganda had engaged in military activi-
ties against the DRC and given support to irregular forces, thereby violating the
principle of the non-use of force in international relations and the principle of
non-intervention.192 The case before the ICC also concerned the Ituri region, but
it was in the context of a case against Thomas Lubanga, the alleged founder of
the armed group Union des Patriots Congolais. The prosecutor argued in favour
of characterizing the conflict as non-international in nature whereas the defence
took the opposite view.193 This was significant because Lubanga had been charged
with the crime of child conscription, the elements of which differed depending
on whether it was committed in an international or non-international armed
conflict.194

of a High Contracting Party between its armed forces and dissident armed forces or other organized
armed groups which, under responsible command, exercise such control over a part of its territory
as to enable them to carry out sustained and concerted military operations and to implement this
Protocol’.
¹⁸⁹ ibid paras 126–7. See also Allison Marston Danner, ‘When Courts Make Law: How the Inter-
national Criminal Tribunals Recast the Laws of War’ (2006) 59 Vand LR 101.
¹⁹⁰ ICC Statute Art 8(2)(e). The Review Conference in Kampala in June 2010 further closed the
gap between the international and non-international armed conflicts by adopting an amendment
to Art 8 that will extend the jurisdiction of the Court to cover the war crime of employing certain
poisonous weapons and expanding bullets, asphyxiating or poisonous gases, and all analogous liq-
uids, materials and devices, when committed in armed conflicts not of an international character.
See Amal Alamuddin and Philippa Webb, ‘Expanding Jurisdiction over War Crimes under Article 8
of the ICC Statute’ (2010) 8 JICJ 1219.
¹⁹¹ Prosecutor v Thomas Lubanga Dyilo (Decision on the Confirmation of Charges) ICC-01/04-
01/06, P-T Ch I (29 January 2007) (hereinafter Lubanga PTC Decision).
¹⁹² Congo v Uganda (n 39) para 345.
¹⁹³ Lubanga PTC Decision (n 191) para 200.
¹⁹⁴ The non-international armed conflict version reads: ‘Conscripting or enlisting children under
the age of fifteen years into armed forces or groups or using them to participate actively in hostilities’
(ICC Statute Art 8(2)(e)(vii)). The international armed conflict version provides: ‘Conscripting or
enlisting children under the age of fifteen years into the national armed forces or using them to par-
ticipate actively in hostilities’ (Art 8(2)(b)(xxvi)). This is a rare situation in which the ‘international
version’ of the crime is probably harder to prove than the ‘non-international version’.
136 Use of Force
The ICC Pre-Trial Chamber referred to the definition of military occupation
used by the ICJ in the Congo v Uganda Judgment195 and reached the same con-
clusion as the ICJ that Uganda was an occupying power in Ituri.196 The Chamber
spent two paragraphs on evidence from two witnesses linking Lubanga with the
Ugandan authorities197 before determining that there were ‘substantial grounds
to believe that, as a result of the presence of the Republic of Uganda as an occu-
pying Power, the armed conflict which occurred in Ituri can be characterized as
an armed conflict of an international character’ during the relevant period (July
2002–2 June 2003).198 In a later case against alleged leaders of two other armed
groups in the DRC, Germain Katanga and Mathieu Ngudjolo Chui,199 the ICC
Chamber relied on its decision in Lubanga and the ICJ Judgment in Congo v
Uganda to characterize the conflict as of an international character in Ituri from
August 2002 to May 2003.200
The apparent integration between the ICC Pre-Trial Chamber and ICJ on this
issue in fact resulted in a confusing situation. The ICJ Congo v Uganda Judgment
had been concerned with the use of force between states and the broad contours
of the regional conflict. The ICC Lubanga and Katanga cases are more localized:
they are concerned with armed conflict between a number of Congolese organ-
ized armed groups.201 By drawing on the ICJ Judgment and applying a broad
definition of international armed conflict in context of military occupation, the
ICC Pre-Trial Chamber inadvertently took the position that anything that occurs
during an occupation—even a clash between local groups—is to be considered
in the context of an international armed conflict. This position not only did not
match up with the reality of the conflicts that form the backdrop to the Lubanga
and Katanga cases, but it also led to the Prosecution having to prove the ‘interna-

¹⁹⁵ Lubanga PTC Decision (n 191) para 212, citing Congo v Uganda (n 39) para 172. The ICC also
referred to the ICJ Wall Advisory Opinion (n 65) (paras 78 and 89) in a footnote to para 212 and
adopted the definition of ‘international armed conflict’ used by ICTY: Lubanga PTC Decision paras
206–207; Prosecutor v Tadić (Judgment) IT-94-1-A, A Ch (15 July 1999) para 84. This was based on
Common Art 2 of the Geneva Conventions.
¹⁹⁶ Lubanga PTC Decision (n 191) paras 214–216, citing Congo v Uganda (n 39) paras 173, 175,
209.
¹⁹⁷ Lubanga PTC Decision (n 191) paras 218–219.
¹⁹⁸ ibid para 220.
¹⁹⁹ Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Decision on the Confirmation of
Charges) ICC-01/04/01/07, P-T Ch I (30 September 2008) (hereinafter Katanga Decision).
²⁰⁰ ibid para 240. In this case, the prosecution had argued that the conflict was non-international
or international in the alternative in the written pleadings; during the confirmation hearing, the
prosecution emphasized that the armed conflict was international (para 235); the defence did not
make any observations (para 237).
²⁰¹ Union des Patriots Congolais (UPC) and its military wing Forces Armées pour la Libération du
Congo (FPLC), Front Nationaliste et Intégrationniste (FNI), Force de Resistance Patriotique en Ituri
(FRPI), Parti pour l’Unité et la Sauvegarde de l’Intégrité du Congo (PUSIC). The Lubanga case con-
cerns the ongoing conflict between the FNI-FRPI and the UPC/FPLC while the Katanga case is
about an attack on the village of Bogoro by the FNI and FRPI.
 V. Consequences of a Finding of a Use of Force 137

tional conflict’ version of crimes, which in some instances have more demanding
elements than the ‘non-international conflict’ version.202
Fortunately, the ICC Trial Chamber in its Judgment of 14 March 2012 disa-
greed with the Pre-Trial Chamber’s characterization of the conflict as interna-
tional in nature. The Trial Chamber held that conflict consisted of ‘protracted
violence carried out by multiple non-state armed groups’.203 The Trial Chamber
distinguished between a conflict of an international character between the DRC
and Uganda (which was the subject of the judgment at the ICJ) and fighting
among Congolese organized armed groups (the subject of the Lubanga case),
noting that both types of conflicts could take place on a single territory at the
same time.204 Although the ICC Trial Chamber was less obviously deferential to
the ICJ as compared to the Pre-Trial Chamber, its careful reasoning respects the
conclusions reached by the ICJ in the Congo v Uganda Judgment and serves to
enhance judicial integration in this area of the law.

B. Internationalization of conflicts and attribution of responsibility

In contrast to the ICC Pre-Trial Chamber’s deferential attitude to the ICJ in the
Lubanga and Katanga cases, the ICTY has claimed to reject the ICJ’s jurispru-
dence on a question closely related to the classification of conflicts. This is the
test for when an apparently internal conflict is to be considered internationalized
due to the participation of another state. In the 1999 Tadić Appeal Judgment,
the ICTY considered what degree of control the Federal Republic of Yugoslavia
had to exert over the Bosnian Serbs in order to have internationalized the conflict
within Bosnia. Thirteen years earlier, the ICJ’s Nicaragua Judgment205 had exam-
ined the relationship of third states to non-state actors operating on the territory
of another state. The ICJ had held that the activities of the non-state actors would
be attributable if it could be shown that ‘effective control’ was exercised by a state,
or that the state’s instructions were given in respect of each operation in which
the alleged violations occurred, and not generally in respect of the overall actions
taken by the persons or groups of persons having committed the violations. In
what has been called ‘an act of surprising temerity for a newly-established inter-
national institution’,206 the ICTY Appeals Chamber labelled the Nicaragua test
to be ‘unconvincing’ given ‘the very logic of the entire system of international law
on state responsibility’.207 The ICTY developed its own, less stringent standard of

²⁰² As noted above (n 194).

²⁰³ Prosecutor v Thomas Lubanga Dyilo (Judgment Pursuant to Article 74 of the Statute), ICC-01
/04-01/06, T-Ch (14 March 2012), para 563 (hereinafter Lubanga TC Decision).
²⁰⁴ ibid paras 540, 563–565. See, in general, Elizabeth Wilmshurst (ed), International Law and the
Classification of Conflicts (OUP 2012).
²⁰⁵ Nicaragua (n 19) 65.
²⁰⁶ Danner, ‘When Courts Make Law’ (n 189) 132.
²⁰⁷ Prosecutor v Tadić (Judgment) IT-94-1-A, A Ch (15 July 1999) (hereinafter Tadić Appeals
Judgment) para 116.
138 Use of Force
‘overall control’.208 The Nicaragua–Tadić divide has become the classic example of
‘fragmentation’ in international law.209
In the interlude between the ICTY Tadić Appeal Judgment and the ICJ Bosnia
Genocide Judgment, a defendant in the ICTY Delalić case argued that, in the
first place, the ICTY was ‘bound’ by the ICJ’s Nicaragua test and, in the alterna-
tive, that it was ‘undesirable’ to have two courts with conflicting decisions on
the same issue.210 The ICTY Appeals Chamber was not persuaded, noting that
it was an ‘autonomous international judicial body’ that was not in a hierarchical
relationship with the ICJ.211 It added that it would necessarily ‘take into con-
sideration other decisions of international courts’, but may ‘come to a different
conclusion’.212 In an important difference from the way the ICJ approached the
perceived conflict, the ICTY Appeals Chamber asserted that ‘what is at issue
is not the distinction between two classes of responsibility’, quoting the Tadić
Judgment.213 However, as the ICJ later explained, that distinction was at the
heart of the matter.
The 2007 ICJ Bosnia Genocide Judgment was an opportunity for the ICJ to
address this claim of a normative conflict. In 2005, the ICJ had affirmed its ‘effec-
tive control’ test as articulated in Nicaragua in the Congo v Uganda case,214 but the
question was raised more starkly in 2007 because one of the parties (Serbia) had
expressly argued in favour of applying the Tadić ‘overall control’ test. Moreover,
this time the ICJ and ICTY were both pronouncing on the same conflict—the
war in the Balkans in the 1990s.
The ICJ gave consideration to the ICTY’s reasoning, but ultimately decided
to follow the Nicaragua test of ‘effective control’. The ICJ’s approach attempted
to minimize fragmentation by emphasizing the different contexts in which the
ICJ and the ICTY decided cases. The ICJ observed that the ICTY was not called
upon in the Tadić case, nor was it in general called upon, to rule on questions of

²⁰⁸ ibid para 120 (emphasis added).

²⁰⁹ The ILC Study Group on Fragmentation in International Law used the contrast between Nica-
ragua and Tadić as an example of a ‘normative conflict between an earlier and a later interpretation
of a rule of general international law’: ILC, ‘Fragmentation of International Law: difficulties arising
from the Diversification and Expansion of International Law: Report of the Study Group of the
International Law Commission—Finalized by Martti Koskenniemi’ (13 April 2006) UN Doc A/
CN.4/L.682, 31.
²¹⁰ Prosecutor v Delalić and others ‘Celebici’ (Judgment) IT-96–21-A, A Ch (20 February 2001)
para 21.
²¹¹ ibid para 24.
²¹² ibid.
²¹³ ibid para 23 (emphasis added).
²¹⁴ In Congo v Uganda the Court (n 39) explained that although Uganda acknowledged giving
training and military support to the ‘Mouvement de libération du Congo’, there was no probative
and credible evidence that Uganda controlled, or could control, the manner in which such assistance
was used. Accordingly, citing the pertinent paragraphs of Nicaragua (n 19) as well as Arts 5, 8 of the
ILC Articles on State Responsibility, the Court concluded that the requisite tests for sufficiency of
control of paramilitaries had not been met with regards to the relationship between Uganda and the
‘Mouvement de libération du Congo’ (para 160).
 V. Consequences of a Finding of a Use of Force 139

state responsibility, since its jurisdiction was criminal and limited to individuals.
Thus, in Tadić the ICTY had addressed an issue that ‘was not indispensable for
the exercise of its jurisdiction’.215 Moreover, insofar as the ‘overall control’ test was
employed to determine whether or not an armed conflict is international—the
sole question which the ICTY had been called upon to decide—the ICJ admitted
that the test may well be applicable and suitable in that context; it did not think it
appropriate to take a position on that point in the Bosnia Genocide Judgment, as
it was not a question before it.216 In sum, the ICJ observed that the tests for (i) the
degree and nature of a state’s involvement in an armed conflict on another state’s
territory which was required for the conflict to be ‘international’ and (ii) the
degree and nature of involvement required to give rise to that state’s responsibil-
ity for a specific act committed in the course of the conflict, could differ without
logical inconsistency.217
The ICC appears to have accepted—or at least not taken a position on—the
ICJ’s view that the test for whether or not a conflict is international can differ
from the degree and nature of involvement required to give rise to state responsi-
bility for a specific act committed during a conflict.218 In the Lubanga case, both
the Pre-Trial Chamber and the Trial Chamber applied the ICTY Tadić ‘overall
control’ test to determine whether armed forces were acting on behalf of a foreign
state.219 The Chambers did not adopt or comment on the view expressed in Tadić
that this ‘overall control’ test also applies to state responsibility.
The measured way in which the ICJ addressed the Nicaragua–Tadić divide is
a good example of how judicial reasoning can avoid or minimize fragmentation.
The ICJ delved into the perceived divergence between the courts and sought to
find a way forward that reduced the contradictions, while respecting the essential
differences in the roles of each court.220 The ICTY in Tadić, on the other hand,
has been criticized for ‘violat[ing] the basis principle of judicial economy by
offering a wholesale criticism of the validity of the Nicaragua attribution test’.221

²¹⁵ Bosnia Genocide Judgment (n 167) para 403.

²¹⁶ ibid para 404.
²¹⁷ ibid para 405.
²¹⁸ See Hirad Abtahi, ‘Le rôle des Etats frontaliers face aux groupes armés organisés: les limites de
la participation au conflit’ in Isabelle Fouchard and Jean-Marc Sorel (eds), Le rôle des tiers aux conflits
armés dans la protection des populations civiles 39 (collection Cahiers internationaux No 23, Pedone
2010) 44–45 (“Toutefois, la Chambre n’est pas allée jusqu’à recourir au critère de contrôle global
pour remettre explicitement en cause la responsabilité internationale des Etats tiers. Cela signifie-t-il
un écart intentionnel par rapport à l’arret Tadic? Seule la jurisprudence future de la CPI sera suscep-
tible d’apporter une réponse à cette question”).
²¹⁹ Lubanga PTC Decision (n 191) para 211; Lubanga TC Decision (n 203) para 541.
²²⁰ This has not prevented criticism of the Judgment, including by the former President of the
ICTY who presided over the Tadić Appeals Judgment: Antonio Cassese, ‘The Nicaragua and Tadic
Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18 EJIL 649. For a
positive view of the ICJ’s judicially restrained approach, see Richard Goldstone and Rebecca Ham-
ilton, ‘Bosnia v. Serbia: Lessons from the Encounter of the International Court of Justice with the
International Criminal Tribunal for the Former Yugoslavia’ (2008) 21 LJIL 95, 102.
²²¹ Goldstone and Hamilton, ibid 101. Richard Goldstone was the former Prosecutor of the ICTY.
140 Use of Force
The Nicaragua–Tadić experience also draws attention to the issue of consistency
within international courts.222 In the Bosnia Genocide Judgment, the ICJ sought
to maintain the thread of ‘effective control’ that had run through Nicaragua and
Congo v Uganda. Meanwhile, the Tadić test of ‘overall control’ for determin-
ing the nature of an armed conflict has been followed in numerous cases at the
ICTY.223 The ICC, for its part, has also placed itself in the ‘overall control’ line
of cases.

VI. Conclusion
The law on the use of force is a site of interaction among international courts,
and between those courts and political bodies. This area of law, as with the law
on immunity examined in Chapter 3, is in flux. The circumstances in which
force is used have shifted from the inter-state paradigm, and the structures for
decision-making at the international level have become more complex, encom-
passing in particular ad hoc bodies. This chapter has explored the impact of
these changes through an examination of international court decisions on the
use of force. Are we witnessing a descent into incoherence as courts reach their
own conclusions on the law without regard for other decisions or in a conscious
departure from such decisions? Or are we seeing an ‘iterative process’224 by which
the courts are contributing intermittently to integrate the jurisprudence on the
use of force in a coherent manner through judicial dialogue?
The above analysis of four clusters of issues under the law on the use of force
reveals a mixed picture. There is genuine integration on a rather straightforward
issue of principle: that the law on the threat and the use of force stand together.225
However, the more frequent phenomenon is that of apparent integration: where
courts are attempting to integrate their decisions into an existing line of reason-
ing, but cracks appear beneath the surface. Examples of apparent integration
include the treatment of minor incidents as threats,226 the scope of the prohibi-
tion on the use of force,227 the use of force and title to territory,228 the degree
of gravity for an ‘armed attack’,229 and the classification of an armed conflict.230
The seemingly unified approach to these issues is undermined by the failure of
the ICJ to take a position on certain questions or another international court

²²² ibid 111.

²²³ Prosecutor v Aleksovski (Judgment) IT-95-14/1-A, A Ch (24 March 2000) paras 131–134; Pros-
ecutor v Celebici (n 210) para 26; Prosecutor v Kordić and Čerkez (Judgment) IT-95-14/2-A, A Ch
(17 December 2004) paras 299–313. See Goldstone and Hamilton, ibid 101, 102, n 45.
²²⁴ Charney, Recueil (n 7) 348.
²²⁵ Section II(A).
²²⁶ ibid.
²²⁷ Section II(B).
²²⁸ Section II(C).
²²⁹ Section III(B).
²³⁰ Section V(A).
 VI. Conclusion 141

purporting to apply the ICJ’s approach to a new situation. There are also legal
topics, such as anticipatory self-defence and the crime of aggression, where there
is the potential for fragmentation, but there is insufficient judicial practice to
draw conclusions.231
Despite the diffuse structure of the international legal system, there are few
examples of genuine fragmentation. The oft-cited Nicaragua–Tadić divide can be
explained by the different contexts in which the ICJ and ICTY were operat-
ing.232 There are, nonetheless, early signs of fragmentation in aspects of the defi-
nition of the threat of force and the identity of the attacker for the purposes of
self-defence.233
Various factors can be identified that influence the degree of integration or
fragmentation in the law on the use of force. These will be addressed in detail in
the next chapter. One factor that encourages fragmentation in the law on the use
of force is the problem of international criminal courts making legal findings on
state responsibility, a topic that falls outside of their jurisdiction and, in many
cases, the expertise of the judges. This factor, which is bound up with the func-
tion of a court, underlies the so-called Nicaragua–Tadić divide in which the ICTY
pronounced on state responsibility even though it was not strictly necessary for
deciding the legal question before it. This factor is also present in the aggression
amendments adopted by the Kampala Review Conference, which empower the
ICC to determine whether a state act of aggression has occurred as a precursor to
determining individual criminal responsibility.
Another factor that potentially leads to fragmentation is the role of arbitral tri-
bunals in deciding disputes about jus ad bellum. Arbitrators interrupt their usual
occupations, whether in private practice, the national or international judiciary,
academia, or semi-retirement, to decide specific disputes. In general, judges in
permanent judicial bodies have a greater sense of continuity between cases, and
thus it is perhaps easier for them to have a broad and current understanding of
the state of international law. Even when arbitral tribunals attempt to align them-
selves with the case law of the ICJ or other courts, they have occasionally applied
the law to the facts in such a way that generates uncertainty rather than consist-
ency.234 The EECC, for example, declined to follow, or ignored, the important
findings made by the Boundary Commission even though both tribunals were
addressing the Eritrea–Ethiopia conflict.235 The ad hoc establishment of these
tribunals and the variety of registries that provide legal services also encourage a
tendency to decide in a vacuum. There is a lack of transparency in that Awards
are published only if the parties agree. Even if Awards are published, the plead-
ings in many cases are not made public, which substantially impedes later efforts

²³¹ Sections III(C) and IV.

²³² Section V(B).
²³³ Sections II(A) and III(A).
²³⁴ Section II(B) and (C).
²³⁵ See n 41 and n 50.
142 Use of Force
by parties, scholars, and other decision-makers to understand the meaning of the
Award and to determine how much weight to assign to it.236
The relationship between international courts and the Security Council is also
an important factor for coherence and relates to the institutional context in which
a court operates. Given the Security Council’s primary role in maintaining inter-
national peace and security, this factor is far more important in the law on the
use of force than for the laws on genocide or immunity. The preceding analysis
of the crime of aggression highlights the different relationships that the ICJ and
the ICC have with the Council. The ICJ exists in a relationship of equal standing
within the UN system, which facilitates integration, but also perhaps undue cau-
tion on the ICJ’s part. The ICC, on the other hand, interacts with the Council on
a very specific basis—referrals of situations and deferrals of investigations—and
there is significant potential for fragmentation in the newly adopted amendments
on the crime of aggression.
In terms of the overall coherence of the law on the use of force, the principal
factor is the ICJ taking different positions in various cases or avoiding taking a
position altogether. The ICJ has attracted criticism for its cautious approach to
this area of law. Bianchi observes that ‘[p]resumably divided within its ranks, the
Court has clumsily addressed the most challenging issues and carefully avoided
providing guidance to international actors’.237 Kritsiotis notes that the ICJ ‘seems
to marginalize the seminal opportunities which inhere in the uses of force for the
constituting of new law, or for the refining of the law in one particular direction
or another’.238 After studying a number of recent Judgments, Green concluded
that ‘[t]he very presentation of the ICJ’s position is consistently unhelpful, with
much of what the Court has held being unclear’.239 McKeever agrees that the ICJ
has exhibited ‘an unwarranted and unhelpful caution in using the judicial tools
at its disposal and a reluctance to pronounce clearly on matters of contemporary
importance’.240
While such observations are not without justification, it is important to con-
sider the role of the ICJ in the globalized world of international courts. Although
it is the principal judicial organ and one of the main organs of the UN, it does
not sit at the apex of any court hierarchy. It has no compulsory jurisdiction and
relies on the consent of states to appear before it. It has very limited mechanisms

²³⁶ For a development of this criticism in the context of investment treaty arbitration, see Susan
Franck, ‘The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International
Law Through Inconsistent Decisions’ (2005) 73 Fordham LR 1521.
²³⁷ Andrea Bianchi, ‘Looking Ahead: International Law’s Main Challenges’ in David Armstrong
(ed), Routledge Handbook of International Law 392 (Routledge 2009) 398.
²³⁸ Kritsiotis, ‘Close Encounters of a Sovereign Kind’ (n 16) 312 (emphasis in original).
²³⁹ Green, The International Court of Justice and Self-Defence in International Law (n 103) 62.
²⁴⁰ McKeever, ‘The Contribution of the International Court of Justice to the Law on the Use of
Force: Missed Opportunities or Unrealistic Expectations?’ (n 60) 396.
 VI. Conclusion 143

for ensuring compliance with its Judgments.241 Moreover, its fifteen judges are
elected to represent the main legal systems of the world,242 and come to the
Bench with different visions of the Court’s role, from a minimalist conception
to a view of the ICJ as ‘the guardian of legality for the international community
as a whole’.243
The ICJ is, by nature and by tradition, a rather cautious player on the world
stage. Yet there are instances in which caution may be the best approach to avoid-
ing the fragmentation of international law. Bold attempts at judicial integration
can lead to the inappropriate application of decisions to different situations, as
seen in the ICC’s reliance on the Congo v Uganda Judgment in the Lubanga
Decision. Caution in judicial decision-making can enhance legitimacy by avoid-
ing significant variations that could undermine the ‘perceived uniformity and
universality of international law’.244 Judicial caution can also allow the time and
space for states to generate a widespread and uniform practice with respect to, for
example, attacks by non-state actors or humanitarian intervention.245
The indecisive stance of the ICJ on certain issues may in fact reflect the lack of
consensus among states. Kritsiotis suggests that in the actual recourse to force ‘a
particular legal proposition is brought alive in the minds of states . . . enough for
them to form an official view and to express themselves in terms of their opinio
juris sive necessitatis’.246 This may be so in some cases, but in many situations states
do not take a definitive stance; they either claim self-defence as a default posi-
tion (regardless of the facts on the ground)247 or put forward a variety of possible
justifications for the use of force.248 And when states claim that the international
law on the use of force has changed, such as by invoking the notion of anticipa-
tory self-defence, this may ‘ignite a process of counterclaims, responses, replies,

²⁴¹ UN Charter Art 94 (recourse to the Security Council by a state party to a case); ICJ Statute Art
41 (power to issue provisional measures on its own initiative). Each provision has only been invoked
once in sixty-four years.
²⁴² ICJ Statute Art 9.
²⁴³ Questions of Interpretation and Application of the 1971 Montreal Convention arising from the
Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) (Request for the Indication
of Provisional Measures: Order) [1992] ICJ Rep 114, para 26 (Separate Opinion of Judge Lachs).
²⁴⁴ See Charney, Recueil (n 7) 135.
²⁴⁵ The ICJ has not yet been faced with a party claiming pure humanitarian intervention. In Nica-
ragua, the Court held that international law does not permit the use of armed force to monitor or
ensure respect for human rights in another state ((n 19) para 268). In Congo v Uganda, the Court
noted that the responsibility of states in the region to bring peace and stability could not excuse the
unlawful military action of Uganda ((n 39) para 152).
²⁴⁶ Kritsiotis, ‘Close Encounters of a Sovereign Kind’ (n 16) 312.
²⁴⁷ Gray, International Law (n 13) 118–119.
²⁴⁸ See the arguments of the eight Respondents in the Legality of the Use of Force (Serbia and Mon-
tenegro v Belgium) (Preliminary Objections: Judgment) [2004] ICJ Rep 279. At the provisional mea-
sures stage of the case in 1999, the US had justified its action on the basis of averting humanitarian
catastrophe, the threat to the security of neighbouring states, and the Security Council’s determina-
tion that the situation was a threat to the peace under Chapter VII of the Charter. The report of the
10th Commission of the Institut de Droit International observed that ‘[t]he manifest human rights
violations then occurring in Kosovo might have been invoked as the sole basis of justification for
144 Use of Force
and rejoinders until stable expectations of right behaviour emerge’ and as soon as
a new normative arrangement stabilizes it, too, will come under challenge from
new claims for chance ‘in an ongoing bargaining process between sometimes
rapidly shifting coalitions’.249
In this dynamic environment, diverse interpretations of the law are an inevita-
ble feature of the decentralized international legal system. Diversity is not in and
of itself a problem; it reflects the expanding reach of international legal norms,
the welcome movement towards specialization in various fields, and the need
for experimentation and innovation. The problem occurs when the variations in
reasoning between and within the courts create uncertainty as to what precisely
is prohibited in international law. In the field of the use of force this is a serious
problem because, as Reisman and Armstrong observe:
[U]ncertainty . . . is always an invitation to adventurism; adventurism with highly destruc-
tive and non-discriminating weapons is a particularly frightful prospect.250
What the ICJ and other international courts can do to enhance the coherence of
the law on the use of force—and in turn to strengthen the legitimacy of the inter-
national judicial system—is to be more explicit about the factors underlying their
decisions. A good example of this was the ICJ’s treatment of the apparent con-
flict between its earlier jurisprudence and the ICTY’s Tadić decision. The policy
considerations should be systematically and openly addressed.251 The decisions of
other courts should be considered and placed in context. The ICJ should have a
prominent role in the international legal system, but it should not be expected
to be the driver of consensus; that is a responsibility that is shared among all the
actors who make up the interpretive community of international law.

the unilateral action. Yet no government relied exclusively or primarily on a theory of Humanitar-
ian Intervention or on a responsibility to act to arrest egregious human rights violations, Institut de
droit international, Santiago Session ‘Present Problems of the Use of Force in International Law’ (21
September 2007) Tenth Commission (Rapporteur: W Michael Reisman) 184.
²⁴⁹ Reisman, ‘Assessing Claims’ (n 1) 82.
²⁵⁰ W Michael Reisman and Andrea Armstrong, ‘Claims to Pre-Emptive Uses of Force: Some
Trends and Projections and Their Implications for World Order’ in Michael Schmitt and Jelena Pejic
(eds), International Law and Armed Conflict: Exploring the Faultlines 79 (Brill 2007) 110.
²⁵¹ Higgins, Problems and Process (n 91) 5.
 5
Explaining Judicial Integration and
Fragmentation

I. Introduction
The analysis in the preceding chapters has revealed that the nature and extent of
fragmentation and integration differ for each area of law. For the law on geno-
cide, there is now genuine integration among the courts on most legal questions.
For some issues, there has been a period of divergence, with varied streams of rea-
soning employed by different courts or even different trial chambers. Eventually
an appeals decision or a Judgment by the International Court of Justice has clari-
fied the issue.1 There is, however, still a fragmented approach to the question of
specific intent for genocide.2
In the realm of immunities, there is genuine integration on the nature and
scope of immunity ratione personae, but there is fragmentation regarding immu-
nity ratione materiae, in particular as to whether there is an exception for serious
human rights violations.3 The fragmented practice on the law on state immunity
is now likely to be integrated by the Jurisdictional Immunities Judgment of the
ICJ.4
For the law on the use of force, there are few examples of genuine fragmen-
tation. Uncertainty as regards specific legal issues is usually a result of courts
avoiding addressing the issue rather than the co-existence of different legal con-
clusions.5 The absence of overt fragmentation does not, however, result in an
integrated development of the law in this field. There are some legal issues on
which there has been only apparent integration, at least at the preliminary phase;
courts or tribunals attempt to be consistent with the decisions of other courts,
but cracks appear beneath the surface.6
The preceding chapters have also shown that there are some specific and distinct
reasons for judicial integration or fragmentation for each area of law. In the law

¹ Chapter 2(II)(B).
² Chapter 2(III).
³ Chapter 3(IV)(C).
⁴ Chapter 3(V)(B).
⁵ Chapter 4(VI).
⁶ Chapter 4(II)(A), (II)(B), (II)(C), (III)(B), and (V)(A).
146 Explaining Judicial Integration and Fragmentation
on genocide, integration has been driven by the comprehensive nature of and
widespread adherence to the Genocide Convention. Potential fragmentation has
resulted from the pronounced regime for dual responsibility, the diverse options
for enforcement of the law, and vagueness as to, for example, the nature of the
protected group. For immunities, integration has been assisted by the codifica-
tion of rules in the statutes of international criminal courts, judicial dialogue,
the relatively clear position of the ICJ in the Arrest Warrant and Jurisdictional
Immunities Judgments, and judicial dialogue. At the same time, the normative
conflict at the heart of this area of the law, the piecemeal nature of applicable
treaties, and the variety of case law in numerous judicial fora have resulted in
some fragmentation in the judicial practice on immunities. Integration in the
law on the use of force has been facilitated by the long-established nature of the
prohibition whereas potential fragmentation results from the role of ad hoc arbi-
tral tribunals, interactions between the courts and the Security Council, and the
broader lack of consensus among states.
Despite these distinct features of the judicial practice in these three areas of
law, when one steps back from the detail of specific cases and discrete legal issues,
some patterns do emerge, and three common themes can be identified from the
issues discussed in this book which influence the degree of integration or frag-
mentation.7 First, the type of court, including its temporal nature, its function,
and the institutional regime it is embedded within (whether the United Nations
system or something else) appears to be an important factor in the degree to which
judges seek to integrate their decisions with existing jurisprudence. Second, the
area of law involved in the case and whether it is governed by treaty or custom, is
regularly subject to judicial settlement, or is controversial, has an impact on the
degree of flexibility judges have in interpreting and developing the law. Finally,
the procedural rules and practices of a court relating to evidence, judgment draft-
ing, and the use of existing case law also affect the degree of judicial fragmenta-
tion or integration.
This chapter will examine how these three themes—the identity of the court,
the substance of the law, and the procedures employed—explain judicial integra-
tion and fragmentation, and consider their applicability beyond the substantive
areas of genocide, immunities, and use of force. It is argued that these themes
help explain why international courts tend towards the integration or fragmen-
tation of international law and may—by extension—provide insights into how
these courts develop international law. This latter point will be considered in
Chapter 6.

⁷ cf the twelve factors identified by Brown relevant to the emergence of a common law of interna-
tional adjudication (Chester Brown, A Common Law of International Adjudication (OUP 2007) ch
7).
 II. How the Identity of the Court affects Integration and Fragmentation 147

II. How the Identity of the Court affects Integration and

Fragmentation
A. Permanent vs ad hoc
A key aspect of the identity of a court—and of its tendency towards integration
or fragmentation—is its temporal nature. Of the four main courts examined in
this book, two are permanent (ICJ and ICC) and two are temporary or ad hoc
(ICTY and ICTR).
Despite the fact both the ICJ and ICC are permanent institutions, the ICJ is
the more stable and established of the two courts. The ICJ has not only been in
operation since 1946, but it also draws upon the legacy and the jurisprudence
of the Permanent Court of International Justice that functioned between 1922
and 1946.8 The ICC has only been in operation since 2002. The Statute of the
ICJ is annexed to, and an integral part of, the UN Charter.9 Although the ICC
is the realization of the idea of an ‘international penal tribunal’ that appeared in
the 1948 Genocide Convention,10 its Statute was not adopted until 1998 and did
not enter into force until four years later. Since 1946, the ICJ has issued more
than one hundred Judgments and twenty-five Advisory Opinions whereas the
ICC is yet to complete its first trial. Symbolically, the ICJ is housed in the Peace
Palace, a century-old building whose first stone was laid during the 1907 Hague
Peace Conference. The ICC, by contrast, still awaits its permanent premises and
has in the meantime been operating out of temporary space in a former telecom-
munications office tower.
As for the ad hoc courts, when the ICTY and ICTR were established by the
Security Council in response to atrocities in the Balkans and Rwanda, limitations
were imposed on their temporal, territorial, and subject matter jurisdictions.11

⁸ The Statutes of the ICJ and PCIJ are almost identical; declarations under Art 36 of the PCIJ
Statute are valid under the ICJ Statute; if a treaty provides for reference of a matter to the PCIJ, the
matter shall be referred to the ICJ (Statute Art 37); and the ICJ often cites PCIJ cases in its Judgments
or Opinions. See, for example, Ahmadou Sadio Diallo (Guinea v Democratic Republic of the Congo)
(Merits: Judgment) [2010] ICJ Rep 639, para 70.
⁹ UN Charter Art 92.
¹⁰ Genocide Convention Art VI.
¹¹ The Security Council specifically limited the ICTY’s temporal jurisdiction to offences commit-
ted since 1991 (UNSC Res 808 (22 February 1993) UN Doc S/Res/808). Jurisdiction is restricted
to the territory of the former socialist Federal Republic of Yugoslavia. The subject-matter jurisdiction
is limited to grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of
war, genocide, and crimes against humanity: ICTY Statute, Arts 2–5, 8. For the ICTR, the temporal
jurisdiction covers crimes committed between 1 January 1994 and 31 December 1994: ICTR Statute
Arts 1 and 7. Territorial and personal jurisdiction extends beyond atrocities committed in the ter-
ritory of Rwanda to include those committed by Rwandan citizens in neighbouring states: ICTR
Statute Arts 1 and 7. The subject-matter jurisdiction is restricted to genocide, crimes against human-
ity, and violations of Art 3 common to the Geneva Conventions and of Additional Protocol II: ICTY
Statute Arts 2–4. The ICC, as explained below, also has temporal and subject-matter restrictions on
its jurisdiction.
148 Explaining Judicial Integration and Fragmentation
Most importantly, both Tribunals were intended to be temporary institutions.
Both are subject to ‘completion strategies’ according to which the Tribunals aim
to conclude proceedings by a certain date,12 which in reality has continually
been adjusted under close monitoring by the Security Council.13 The limited
lifespan of the Tribunals was confirmed by the creation at the end of 2010 of the
International Residual Mechanism for Criminal Tribunals.14
The description ‘ad hoc’ may also be applied to hybrid tribunals that com-
bine international and national features and are set up to deal with a specific
conflict, such as the Special Court for Sierra Leone and the Extraordinary
Chambers in the Courts of Cambodia.15 The term also describes arbitral tri-
bunals that address disputes between states that may form part of a larger
conflict. Examples include the Eritrea–Ethiopia Boundary Commission, the
Eritrea–Ethiopia Claims Commission, and the Guyana/Suriname arbitral tri-
bunals. Such tribunals are in fact the most ad hoc of all the bodies examined
here. Unlike judicial settlement, arbitration is in general constituted by mutual
consent of the states parties to a specific dispute and the parties retain consider-
able control over the process by appointing arbitrators of their own choice and
determining the applicable law. The seat of the arbitral tribunal is the choice
of the parties.16
The judicial practice on genocide, immunities, and use of force suggests that
the permanent nature of a court increases its tendency towards integration.
Permanence is associated with stability and authority. Although international

¹² The strategy originated in the 2002 report of the President of the ICTY (UNSC ‘Letter dated 17
June 2002 from the Secretary-General addressed to the President of the Security Council’ (19 June
2002) UN Doc S/2002/678). This was endorsed by the Security Council in UNSC Res 1329 (30
November 2000) UN Doc S/Res/1329. In UNSC Res 1503 (28 August 2003) UN Doc S/Res/1503,
the Security Council recalled the ICTY’s strategy to complete investigations by the end of 2004, all
trials by the end of 2008, and all of its work by 2010 and called on the ICTR to ‘formalize a detailed
strategy’ modelled on that of the ICTY. See further, Fausto Pocar, ‘Completion or Continuation
Strategy? Appraising Problems and Possible Developments in Building the Legacy of the ICTY’
(2008) 6 JICJ 655; Daryl Mundis, ‘The Judicial Effects of the ‘Completion Strategies’ on the Ad
Hoc International Criminal Tribunals’ (2005) 99 AJIL 142; Erik Mose, ‘The ICTR’s Completion
Strategy—Challenges and Possible Solutions’ (2008) 6 JICJ 667.
¹³ As of November 2010, the ICTY President estimated that all appeals would be completed by the
end of 2014: International Criminal Tribunal for the Former Yugoslavia (19 November 2010) UN
Doc S/2010/588, para 7. As of December 2010, the ICTR President estimated completion of appeals
by the end of 2013: Judge Dennis Byron, President of the ICTR, ‘Speech to the United Nations
Security Council—Six monthly Report on the Completion Strategy of the ICTR’ (6 December
2010).
¹⁴ UNSC Res 1966 (22 December 2010) UN Doc S/Res/1966.
¹⁵ See Cesare P R Romano, André Nollkaemper, and Jann K Kleffner (eds), Internationalized
Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia (OUP 2004). Such courts are also
intended to be temporary. The SCSL, for example, was supposed to complete its work by the end of
2011: Seventh Annual Report of the President of the Special Court for Sierra Leone, June 2009–May
2010.
¹⁶ United Nations Office of Legal Affairs, Handbook on the Peaceful Settlement of Disputes
between States (1992) UN Doc OLA/COD/2394, 55.
 II. How the Identity of the Court affects Integration and Fragmentation 149

courts exist in a horizontal arrangement, with no official hierarchy among

them, the permanent nature and long history of the ICJ give its Judgments a
certain weight and the ability to clarify a legal issue and integrate pre-existing
streams of reasoning. In the law on genocide the ICJ’s Bosnia Genocide Judgment
meticulously analysed the Genocide Convention and, among other things, clari-
fied that a positive definition of the protected group is required, a point that
had previously generated conflicting jurisprudence at the ICTY and ICTR.17
Similarly, and more strikingly, the ICJ’s Arrest Warrant Judgment has become
the touchstone for the nature and extent of immunity ratione personae. The
Judgment has both expanded the categories of officials who enjoy this immunity
and confirmed absolute immunity from criminal process.18 The Judgment was
the continuation of a trend in national court decisions, but the fact that the
ICJ delivered the Judgment has had the effect of freezing this trend in place.
Not only is the Judgment widely cited, but subsequent national court decisions
have curtailed the balancing of values in immunities cases by referring to the
Arrest Warrant Judgment. It is likely that the same phenomenon will arise from
the 2012 Jurisdictional Immunities Judgment. The ICJ’s seeming divergence
from the approach to immunity ratione personae contained in the statutes of
the international criminal courts is merely apparent fragmentation since the ICJ
expressly acknowledged this treaty exception.19 It is interesting to observe that
the immunity question that has not yet been subject to pronouncement by the
ICJ—the nature and scope of immunity ratione materiae—has generated diverg-
ing approaches among international and national courts and remains very much
in a transitional phase.
At the same time, the permanence of the ICJ can make it act cautiously and
thus refrain from integrating varied interpretations about a legal question. The
long-term view of the Court may encourage it to wait for a future case that raises
the question squarely on the facts with a solid basis of jurisdiction and proper
pleadings, rather than passing ‘through the eye of the needle’ to pronounce on
a question forming a tangent to the core legal issues.20 The ICJ has a pattern of
declining to pronounce on controversial legal issues that are not perceived as
necessary for the resolution of the dispute between the parties.21 This has led to
commentators and at least one judge in recent times expressing frustration with

¹⁷ Chapter 2(IV)(A).
¹⁸ Chapter 3(III)(A) and (B).
¹⁹ Chapter 3(III)(C).
²⁰ This phrase was in fact used by Judge Higgins in her Separate Opinion in Oil Platforms ((Islamic
Republic of Iran v United States of America) [2003] ICJ Rep 161, Separate Opinion, para 26), while
criticizing the Court’s decision to engage in analysis of the law on the use of force. Nonetheless, in
many other cases the ICJ has tended to avoid answering legal questions that were not directly before it.
²¹ See, for example, Chapter 4(III)(A), (IV)(A) and Chapter 2(V)(B).
150 Explaining Judicial Integration and Fragmentation
the Court’s tendency to avoid difficult issues.22 This hesitancy may, however, also
be a result of the lack of clear state practice on an issue, as discussed below.23
While it is too early in the life of the ICC to reach definitive conclusions,
the Court appears to possess a sense of the long-term development of a body of
law. In its limited case law, the ICC has placed emphasis on its Statute, Rules
and Elements of Crimes as opposed to trying to divine customary rules of inter-
national law.24 It also displayed a tendency towards integration, making a con-
scious effort to align its reasoning on the classification of an armed conflict in
the Lubanga and Katanga decisions with that of the ICJ in the Congo v Uganda
Judgment.25 This effort at the Pre-Trial phase led to confusion and only apparent
integration, but it was rendered coherent at the Trial Chamber level through care-
ful analysis of the case law and the facts on the ground.26
Whereas permanence tends to promote integration (unless caution prevents
action), the ad hoc nature of an international court or tribunal seems to gen-
erate innovation, boldness, and, sometimes as a result, the fragmentation of
international law. The ICTY and the ICTR have, for example, boldly developed
the law on genocide. On the test for specific intent for genocide, the ICTY has
championed the purpose-based approach whereas the ICTR has tended to favour
the knowledge-based approach.27 The test is yet to be clarified by the common
Appeals Chamber of the two Tribunals. The meaning of ‘destruction in whole or
in part’ has also been defined and developed by the Tribunals, bringing in quan-
titative, qualitative, and geographic elements.28 The ICTR has forged the link
between sexual violence and genocide.29 On immunities, the ICTY and ICTR
have not hesitated to prosecute officials who benefit from immunity ratione per-
sonae. This practice has not, however, led to fragmentation of the law on this

²² Dino Kritsiotis, ‘Close Encounters of a Sovereign Kind’ (2009) 20 EJIL 299; David McKeever,
‘The Contribution of the International Court of Justice to the Law on the Use of Force: Missed
Opportunities or Unrealistic Expectations?’ (2009) 78 Nordic JIL 361; Micaela Frulli, ‘The ICJ
Judgement on the Belgium v. Congo Case (14 February 2002): a Cautious Stand on Immunity from
Prosecution for International Crimes’ (2002) 3 GLJ. In Oil Platforms Judge Simma said ‘the Court
has not mustered the courage of restating’ the fundamental principles of law concerned: Oil Platforms
(n 20) para 6 (Separate Opinion of Judge Simma). For him, the Judgment ‘comes dangerously close
to creating the impression that the Court attempts to conceal the law of the Charter’ (para 8). In
Territorial and Maritime Dispute (Nicaragua v Colombia) (Preliminary Objections: Judgment) [2007]
ICJ Rep 832, he referred to the Court as ‘somewhat coyly avoiding’ the Vienna Convention of the
Law of Treaties grounds for invalidity: para 2 (Declaration of Judge Simma).
²³ This chapter, Section III(C).
²⁴ Chapter 3(III)(C).
²⁵ Chapter 4(V)(A).
²⁶ Chapter 4(V)(A).
²⁷ Chapter 2(III).
²⁸ Chapter 2(IV)(C).
²⁹ See also Catherine Mackinnon, ‘Defining Rape Internationally: A Comment on Akayesu’
(2006) 44 Columbia JTL 940.
 II. How the Identity of the Court affects Integration and Fragmentation 151

topic since the ICJ’s Arrest Warrant Judgment carved out an exception based on
the language of the Tribunals’ Statutes.30
The ICTY’s Tadić Appeal Decision is a classic example of the boldness or ‘sur-
prising temerity’31 that may be displayed by ad hoc judicial bodies. In seeking
to assert its independence in an early appeal32—and perhaps riding the wave of
the Tadić Jurisdiction Decision where the Tribunal had decided upon its own
legitimacy—the Appeals Chamber labelled the ICJ’s Nicaragua ‘effective control’
test for the attribution of state responsibility to be ‘unconvincing’33 and devel-
oped its own, less stringent standard of ‘overall control’.34 However, as pointed
out in the discussion of how this test applies to the law on genocide and the law
on the use of force, the ICTY was deciding an issue that went beyond its jurisdic-
tion.35 In the Bosnia Genocide Judgment, the ICJ, displaying some of the author-
ity that flows from permanence, carefully explained how this was a situation of
only apparent fragmentation; the two tests could co-exist since they addressed
different issues.36
The tendency of ad hoc tribunals to issue decisions that seek to innovate or to
depart from conventional wisdom is not restricted to the areas of law examined
in this book. One of the significant and controversial innovations of the ICTY,
later adopted by the ICTR, is the concept of joint criminal enterprise—a mode
of liability that appears nowhere in the text of the Statute.37 In an early burst of
activity, the ICTY transformed the laws of war by redefining the thresholds trig-
gering the rules on international conflicts and civil wars, by holding that there is
individual criminal responsibility for acts committed in internal armed conflicts,
and by accommodating internationalized wars arising from ethnic conflict within
the existing rules on international conflicts.38
Ad hoc courts like the ICTY and ICTR, and the hybrid courts that they have
paved the way for, may provide benefits similar to soft law in that they allow

³⁰ Chapter 3(III)(C). The Statutes of the ICTY and ICTR, however, refer to the absence of
the defence of official capacity, which is different from an absence of immunity (as seen in Rome
Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002)
2187 UNTS 90 (ICC Statute) Art 27). See Dapo Akande, ‘International Law Immunities and the
International Criminal Court’ (2004) 98 AJIL 407.
³¹ Allison Marston Danner, ‘When Courts Make Law: How the International Criminal Tribunals
Recast the Laws of War’ (2006) 59 Vand LR 101,132.
³² In another Appeals decision on the same topic, the Chamber noted that it was an ‘autono-
mous international judicial body’ that was not in a hierarchical relationship with the ICJ: Prosecutor v
Delalić and others ‘Celebici’ (Judgment) IT-96-21-A, A Ch (20 February 2001) para 24.
³³ Prosecutor v Tadić (Judgment) IT-94-1-A, A Ch (15 July 1999) para 116.
³⁴ ibid para 120 (emphasis added).
³⁵ Chapter 2(V) and Chapter 4(V)(B).
³⁶ Chapter 4(V)(B).
³⁷ See Allison Marston Danner and Jenny S Martinez, ‘Guilty Associations: Joint Criminal
Enterprise, Command Responsibility, and the Development of International Criminal Law’ (2005)
93 Cal LR 75. For an examination of the ICTY’s surprising interpretations of command responsibil-
ity, see Mirjan Damaška, ‘The Shadow Side of Command Responsibility’ (2001) 49 AJCL 455.
³⁸ Danner, ‘When Courts Make Law’ (n 31) 150.
152 Explaining Judicial Integration and Fragmentation
governments to ‘introduce rules on a tentative basis, test political reactions to
them[,] and preserve deniability if the responses are adverse’.39 Danner persua-
sively argues that ad hoc courts can generate a focal point for negotiations and
supportive NGO activity, and act as ‘Petri dishes for the international criminal
project writ large’.40 Some of the Tribunals’ contributions to the laws of war and
human rights have since been codified in the Rome Statute of the ICC.41
Yet, this propensity towards experimentation and innovation also carries with
it the risk of fragmentation and incoherence. The incentives to take a long-term
view and embed themselves in existing legal frameworks are weaker for ad hoc
courts. This is most vividly illustrated by the practice of arbitral tribunals on
the use of force, where short-term views and the misapplication of the decisions
of international courts have created uncertainty. For example, the EECC and
the Guyana/Suriname arbitral tribunal have applied the law on the use of force
in ways that have generated confusion rather than consistency.42 The EECC
declined to follow the important findings made by the Boundary Commission
even though both arbitral tribunals were addressing the same overall conflict.43
Arbitral tribunals usually exist only for the purposes of the specific dispute;
the tribunal disbands once the case is over and the award rendered. The registries,
arbitrators, and applicable rules vary from case to case. There is inconsistent pub-
lication of pleadings and reporting of awards, which hinders the accumulation
of a body of jurisprudence that may be referred to by parties and arbitrators. All
these factors contribute to a sense of deciding in a vacuum rather than as part of
an international legal system.
Interestingly, ad hoc courts may begin to share some of the features of per-
manent courts over time. As an institution ages, the pull of internal integra-
tion becomes stronger; a certain inertia may set in that pushes against creative
legal reasoning and solutions (which could cast doubt on previous decisions or
reasoning).44 The ICTY and ICTR have become less innovative in recent years.
This is no doubt due in part to the fact that novel legal questions arose more fre-
quently in the early years of the Tribunals. However, it might also indicate that as
the Tribunals near their second decade of operation and accumulate a substantial
body of case law, they see the benefits of proceeding incrementally. The time
pressure generated by the completion strategy may also lead to decisions bring

³⁹ Kenneth W Abbott and Duncan Snidal, ‘Pathways to International Cooperation’ in Eyal

Benvenisti and Moshe Hirsch (eds), The Impact of International Law on International Cooperation 70
(CUP 2004).
⁴⁰ Danner, ‘When Courts Make Law’ (n 31) 160.
⁴¹ See, for example, ibid 134–7.
⁴² Chapter 4(II)(C) and III(B).
⁴³ Eritrea–Ethiopia Claims Commission Partial Award—Jus ad Bellum: Ethiopia’s Claims 1–8
(2005) 45 ILM 430.
⁴⁴ Compare ICTY Trial Chamber II’s attempt to replace joint criminal enterprise with
co-perpetration in Prosecutor v Stakić (Judgment) IT-97-24-T, T Ch II (31 July 2003), with the
Appeals Chamber’s decision to retain the original joint criminal enterprise structure in Prosecutor v
Stakić (Judgment) IT-97-24-A, A Ch (22 March 2006).
 II. How the Identity of the Court affects Integration and Fragmentation 153

focused on the disposition of the particular case rather than on experimenting

with the substantive body of law.
One might identify a spectrum of ‘ad hocness’, with the ICTY and ICTR at
one end, hybrid tribunals like the SCSL and STL in the middle, and ad hoc arbi-
tral tribunals at the other end. Courts like the ICTY and ICTR begin to resemble
permanent courts over time, reflected in a more consistent and incrementally
developed body of case law. The ad hoc tribunals, in contrast, created solely for
the purpose of a specific dispute, exhibit greater inconsistency and experimen-
tation. Hybrid tribunals may act like ad hoc tribunals in the beginning, espe-
cially as they resolve questions about their status and jurisdiction, often raised by
defence counsel in early cases.45 However, later in their lifespan, they may begin
to act more like the ICTY and ICTR. This spectrum may also be observed in the
realm of international commercial arbitration, with the Iran–US Claims Tribunal
(in operation for three decades) at one end and ad hoc disputes resolved under
the auspices of the International Centre for Settlement of Investment Disputes
or the International Chamber of Commerce at the other.46

B. Function
The function of an international court permeates its approach, defines its goals,
determines its structure, and shapes its self-perception. While the permanent
or temporary nature of a court discussed above may provide a backdrop to its
behaviour, a court’s function is at the forefront of every decision. At the same
time, a court’s function does not define its tendency towards fragmentation or
integration. The judicial practice surveyed in this book reveals that problems
with fragmentation surface when a court exceeds its function, or is perceived as
having done so.
Among the main courts studied in this book, the ICC, ICTY, and ICTR share
similar functions while the ICJ is in a distinct category. The ICJ has a dual func-
tion under the UN Charter. The first is to settle legal disputes between member
states in accordance with international law.47 The second is to assist the work of
the UN by rendering Advisory Opinions in response to requests that might be
made by the General Assembly, Security Council, ECOSOC, and designated spe-
cialized agencies.48 The resolution of contentious disputes between states forms
the majority of the Court’s workload.49 Apart from the limited involvement

⁴⁵ See, for example, the 2011 decision of the STL Appeals Chamber of the Special Tribunal for
Lebanon declaring it has found the customary international law definition of terrorism: Interlocutory
Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging
(Decision) STL-11–01/I, A Ch (16 February 2011) para 85—a definition that still eludes UN mem-
ber states negotiating the Comprehensive Convention against Terrorism.
⁴⁶ I am grateful to Professor Brilmayer for this insight.
⁴⁷ ICJ Statute Art 38 and UN Charter Art 36.
⁴⁸ ICJ Statute Chapter IV and UN Charter Art 96.
⁴⁹ The rate is about 4 to 1 of contentious cases to Advisory Opinions.
154 Explaining Judicial Integration and Fragmentation
of international organizations and other non-state actors under the Advisory
Opinion procedure, only states may be parties to cases before the ICJ.50 Although
the rights of individuals may arise in the context of diplomatic protection, the
ICJ is focused on inter-state relations and concerned with state responsibility.
The ICJ has great freedom to fashion remedies,51 but it tends to issue declarations
of the breach of an international obligation and orders for compensation.52
The international criminal courts, in contrast, are concerned with the indi-
vidual rather than the state. Their core function, as expressed in Article 1 of the
ICC Statute, is to exercise ‘jurisdiction over persons for the most serious crimes
of international concern’. Their focus is on the prosecution of individuals for gen-
ocide, crimes against humanity, war crimes, and—in the case of the ICC—the
crime of aggression.53 The international criminal courts, especially the ICTY and
ICTR, have expressed their intention to pursue a number of other goals in addi-
tion to this core function, a phenomenon that is examined below.54 The available
remedies reflect the focus on individual criminal responsibility. Imprisonment is
the most prevalent outcome of a guilty verdict. The courts may also order fines
or a forfeiture of proceeds, property, and assets derived directly or indirectly from
that crime.55
The judicial practice examined in the preceding chapters demonstrates that
problems with fragmentation (apparent or genuine) do not arise purely as a result
of a court’s function. The fact that a court is concerned with inter-state dispute
settlement does not automatically mean it has a tendency towards integration or

⁵⁰ ICJ Statute Art 34. Article 43 of the Rules of Court provides that whenever the construction
of a convention to which a public international organization is a party may be in question in a case
before the Court, the Court may allow that public international organization to submit its observa-
tions on the particular provisions of the convention the construction of which is in question. For
Advisory Opinion proceedings, international organizations as well as states may be considered likely
to furnish relevant information in a written statement: ICJ Statute Art 66 and International Court
of Justice, Rules of Court (adopted 14 April 1978, entered into force 1 July 1978) Arts 104, 105.
Non-State actors other than international organizations have participated in two recent proceedings.
In the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory
Opinion) [2004] ICJ Rep 136, the Court allowed Palestine to present written and oral statements
based on its Observer Status at the UN. In the Advisory Opinion on Accordance with international
law of the unilateral declaration of independence in respect of Kosovo, the authors of the unilateral dec-
laration of independence by the Provisional Institutions of Self-Government of Kosovo were invited
to furnish a ‘written contribution’ and to make an oral statement: (Request for Advisory Opinion:
Order) [2008] ICJ Rep 409.
⁵¹ ‘Where jurisdiction exists over a dispute on a particular matter, no separate basis for jurisdiction
is required by the Court to consider the remedies a party has requested for the breach of an obliga-
tion’: LaGrand (Germany v United States of America) (Judgment) [2001] ICJ Rep 466, para 48.
⁵² For an overview, see Judge Rosalyn Higgins, President of the ICJ, ‘Speech to the Sixth Committee
of the General Assembly of the United Nations’ (27 October 2006).
⁵³ The amendment on the crime of aggression adopted at the 2010 Kampala Review Conference
will enter into force after 1 January 2017, subject to a further decision of the ASP.
⁵⁴ Mirjan Damaška, ‘What is the Point of International Criminal Justice?’ (2008) 83 Chi-Kent LR
329, 331.
⁵⁵ See, for example, ICC Statute Art 77.
 II. How the Identity of the Court affects Integration and Fragmentation 155

fragmentation. Rather, problems with fragmentation surface when a court steps

beyond its bounds, or is perceived as having done so.
In the law on the use of force, the ICTY’s approach to the internationaliza-
tion of conflicts and the attribution of responsibility illustrates the problem of
overstepping of functions. The ICTY’s rejection of the ICJ’s earlier jurisprudence
on the relationship of third states to non-state actors operating on the territory of
another state was phrased in definite terms in the 1999 Tadić Appeal Judgment,
with the ICTY substituting its ‘overall control’ test for the ‘effective control’ test.
The Nicaragua–Tadić divide was labelled an example of a ‘normative conflict
between an earlier and a later interpretation of a rule of general international
law’.56 Yet, as the ICJ showed in the 2007 Bosnia Genocide Judgment, in Tadić
the ICTY had addressed an issue that ‘was not dispensable for the exercise of its
jurisdiction’.57 The only question the ICTY had to decide for the purposes of the
case before it, and in line with its function, was whether the armed conflict was
international. By pronouncing on the separate question of when a state becomes
responsible for a specific act committed in the course of a conflict, the ICTY had
entered into the realm of state responsibility and overstepped its function.58 This
led to a situation of apparent fragmentation.59
Whereas the ICTY’s foray into the law on state responsibility was a voluntary
choice of the Appeals Chamber, the ICC may be forced into deciding issues of
state responsibility due to the recent amendments made to its Statute on the
crime of aggression.60 According to Article 8bis of the amendment adopted at
the Kampala Review Conference in 2010, in order to convict an individual for
the ‘crime of aggression’ the ICC would first need to make a judicial finding that
an ‘act of aggression’ had occurred. That ‘act of aggression’ is defined as state con-
duct, recalling the words of Article 2(4) of the UN Charter.61 If there is a prior
finding of an ‘act of aggression’ by a body competent to do so, such as the ICJ or
the Security Council, and the ICC follows that finding, then the scenario is one
of integration. If, however, the ICC departs from such a finding, there will be
fragmentation, unless the disparate results can be explained on the basis of, for
example, standard of proof. If there is no prior finding and the ICC’s decision
constitutes the first statement on aggression, this raises the potential for fragmen-
tation, given that this is the primary (though not exclusive) purview of another
body, which is unlikely to defer to or seek to integrate with the ICC. The poten-
tial for fragmentation is heightened by the fact that in nearly all of its other tasks

⁵⁶ ILC, ‘Fragmentation of International Law: difficulties arising from the Diversification and
Expansion of International Law: Report of the Study Group of the International Law Commission—
Finalized by Martti Koskenniemi’ (13 April 2006) UN Doc A/CN.4/L.682, 31.
⁵⁷ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, para 403.
⁵⁸ Chapter 4(V)(B).
⁵⁹ Chapter 4(V)(B).
⁶⁰ This is still uncertain because the ASP may decide to alter the amendments after 2017.
⁶¹ Chapter 4(IV)(D).
156 Explaining Judicial Integration and Fragmentation
under the Statute,62 the ICC acts as a court concerned with individual criminal
responsibility and its procedural framework reflects this.63 It was not designed
to be a court that deals with inter-state matters, let alone the controversial and
evolving law on the use of force.
In the law on genocide, the interplay between individual and state responsibil-
ity has also been at the heart of potential fragmentation. In the Bosnia Genocide
case, the ICJ was initially confronted with the question whether it could make a
finding of genocide by a state in the absence of a prior conviction of an individual
for genocide by a competent court. The flipside of this question is whether, given
that it is difficult to imagine an individual committing genocide without active
or passive state involvement, an individual can be convicted in the absence of
a prior finding of state responsibility by the ICJ.64 At the time of the ICTY’s
conviction of Radislav Krstić for aiding and abetting genocide, the ICJ had not
yet held that the massacre at Srebrenica was genocide, and when the ICJ decided
the Bosnia Genocide case, the ICTY had not convicted a person as a principal for
the genocide committed in Srebrenica.65 The ICJ, consistent with its function
of inter-state dispute settlement, held that there was no legal bar to it finding
that genocide had been committed; Article IX of the Genocide Convention pro-
vides that the ICJ has jurisdiction to hold a state responsible for genocide.66 This
approach acknowledges the reality that international and national trials usually
proceed in a patchwork manner—the arrest and trial of persons is dependent on
resources, political will, cooperation, and chance. Given this reality, it should
be legally possible for the ICJ to make a finding of state responsibility in the
absence of the conviction of an individual.67 Indeed, a similar pragmatic approach
appears to have been taken by the ICTY and ICTR, which have both proceeded

⁶² The definition of crime against humanity incorporates the ideas of a state or organizational
policy to commit an attack, which may require the ICC to examine state conduct: ICC Statute
Art 7(2)(a).
⁶³ Section IV.
⁶⁴ cf International Commission of Inquiry ‘Report of the International Commission of Inquiry on
Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of
18 September 2004’ (25 January 2005), which concluded that no genocidal policy had been pursued
and implemented in Darfur by the Government of Sudan (4). Nonetheless, it observed that ‘[o]ne
should not rule out the possibility that in some instances single individuals, including Government
officials, may entertain a genocidal intent, or in other words, attack the victims with the specific
intent of annihilating, in part, a group perceived as a hostile ethnic group. If any single individual,
including Governmental officials, has such intent, it would be for a competent court to make such a
determination on a case by case basis. Should the competent court determine that in some instances
certain individuals pursued the genocidal intent, the question would arise of establishing any possible
criminal responsibility of senior officials either for complicity in genocide or for failure to investigate,
or repress and punish such possible acts of genocide’ (para 520).
⁶⁵ Krstić had been convicted for aiding and abetting genocide and Blagojević had been convicted
of complicity in genocide (later overturned on appeal): Prosecutor v Krstić (Judgment) IT-98-33-A, A
Ch (19 April 2004) and Prosecutor v Blagojević (Judgment) IT-02-60-T, T Ch I (17 January 2005).
⁶⁶ Bosnia Genocide Judgment (n 57) paras 180–181.
⁶⁷ The specific intent requirement for genocide does make such a finding difficult in practice.
Identifying the specific intent of a state would usually require the intent of its leadership.
 II. How the Identity of the Court affects Integration and Fragmentation 157

with genocide convictions in the absence of a finding of state responsibility for

genocide.68 These independent approaches, which privilege the different func-
tions of the ICJ and the international criminal courts, raise the potential for frag-
mentation, but the courts have remained within the bounds of their functions,
and until now there have not been disparate findings on the actual commission
of genocide. This integration has been facilitated by the procedures employed by
the courts, discussed in Section IV below.
The test for complicity in genocide has led to uncertainty among the interna-
tional courts. The obvious assumption is that the problem arises from the ICJ
applying a notion of criminal law directed at individuals in the context of state
responsibility—a mixing of functions.69 However, the ICJ has actually been cau-
tious in addressing the question of complicity, remaining firmly within the bounds
of inter-state relations. In the Bosnia Genocide Judgment, the ICJ acknowledged
that there were two possible approaches: that the accomplice shares the specific
intent of the principal or that the accomplice was merely aware of the specific
intent of the principal.70 On the facts it found that it was not conclusively shown
that the FRY acted in full awareness of the specific genocidal intent of the VRS
leaders, and thus even the lower knowledge standard had not been met.71 The
confusion that surrounds the mental element for complicity is due instead to the
problems that the ICTY and ICTR have had in applying the concept of complic-
ity in genocide to individual criminal responsibility.72 In other words, the source
of the problem is fragmentation within and among international criminal courts.
This is not attributable to their function but rather to the fact that complicity is
referred to in the section of their Statutes dealing with the crime of genocide73
while aiding and abetting appears in the section of the Statutes outlining the
forms of criminal liability applicable to all crimes within the Tribunals’ jurisdic-
tion, including genocide.74 The Tribunals have given different views as to how
these two modes of liability relate to each other.75 This is a problem attributable
to the substance of the law rather than the functions of the courts.76
Compared to the law on the use of force and on genocide, the law on immu-
nities engages courts with the most diverse range of functions. In addition to

⁶⁸ It is also possible that the ICTY and ICTR have not made a conscious choice to proceed in the
absence of a finding of state responsibility. They may have simply focused on individual criminal
responsibility and not concerned themselves with the state aspect.
⁶⁹ For this view, see Antonio Cassese, ‘On the Use of Criminal Law Notions in Determining State
Responsibility for Genocide’ (2007) 5 JICJ 875, 878–879.
⁷⁰ Bosnia Genocide Judgment (n 57) para 421.
⁷¹ ibid paras 422–424.
⁷² For a detailed analysis of the ICTY and ICTR case law in this regard, see Elies van Sliedregt,
‘Complicity to Commit Genocide’ in Paola Gaeta (ed), The UN Genocide Convention: A Commentary
162 (OUP 2009).
⁷³ ICTY Statute Art 4(3)(e); ICTR Statute Art 2(3)(e).
⁷⁴ ICTY Statute Art 7(1); ICTR Statute Art 6(1).
⁷⁵ See Chapter 2.
⁷⁶ Section III.
158 Explaining Judicial Integration and Fragmentation
the ICJ and the international criminal courts, immunity issues appear regularly
before national courts and regional human rights courts. National courts have a
variety of functions, depending on their place in the court hierarchy and the type
of jurisdiction (civil or criminal) that they are exercising. Unlike international
courts, their constituency is national not global, and international law forms only
a part, and usually a small part, of the applicable law. The fragmentation sur-
rounding the nature and scope of immunity ratione materiae is partly due to the
fact that it is national courts that are primarily developing the law in this area.77
The functions of national courts drive them towards settling the case before them
in the manner most suited to the priorities and desires of the society in which
they operate.78 The absence of an overarching treaty or a leading ICJ case on
the topic opens the field to national courts to develop their own approaches, as
can be seen with Italian judicial decisions preceding the Jurisdictional Immunities
Judgment.79 Regional human rights courts are more embedded in the interna-
tional system and apply international law on a regular basis. Their contribution
to the law on immunities is nonetheless constrained by their governing conven-
tions. The ECtHR, for example, has decided immunities questions through the
frame of the right of access to justice. This can lead to apparent fragmentation
and requires careful analysis of the context in which decisions are made.80
The different functions of the international courts may make it possible to
‘relativize’ legal rules so that, for example, ‘the required intent for genocide as per
the ICJ’ may have different contours from ‘the required intent for genocide as
per the ICTY and ICTR’ or that ‘immunity ratione personae as per the ICJ’ varies
from ‘immunity ratione personae as per the ICC’.81 Since these courts are set up
under different statutory regimes and, despite some important overlaps, are con-
cerned with different spheres of behaviour (state responsibility versus individual
responsibility, civil versus criminal), it would be expected for one type of court to
take one position and another to take a different position in some circumstances.
If these differences can be ‘relativized’ and justified on the basis of function, then
this need not result in fragmentation. As explained in Chapter 1, integration does
not equate to uniformity; as long as disparities in treatment of the same or similar
legal issues are explained and justified, the end result can still be integration. The
difficulty is that this ‘relativization’ requires precise and clear legal reasoning as
well as a full awareness of the different functions of each of the courts and the
context in which they are making decisions. Without this precision and aware-
ness, ‘relativization’ could easily slip into fragmentation, resulting in uncertainty
as to the content and applicability of legal rules.

⁷⁷ Chapter 3(IV).
⁷⁸ Hazel Fox, The Law of State Immunity (2nd edn, OUP 2008) 20.
⁷⁹ Ferrini v Federal Republic of Germany (Italian Court of Cassation) Decision No 5044/2004
(2006) 128 ILR 658.
⁸⁰ See, for example, Al-Adsani v United Kingdom App no 35763/97 (ECHR, 21 November 2001).
⁸¹ I am grateful to Professor Brilmayer for this suggestion.
 II. How the Identity of the Court affects Integration and Fragmentation 159

Finally, the judicial practice on use of force, genocide, and immunities provides
some insights into the impact that the function of a court may have on the
tendency towards integration or fragmentation. Yet a court’s perception of its
functions may have a more generalized impact, such as weakening the overall
performance of a court. As alluded to earlier, the ICTY and the ICTR suffer
from an overabundance of goals. Damaška observes that, the courts have, at vari-
ous times, expressed their functions as: producing a reliable historical record,
providing a voice to victims, propagating human rights values, advancing inter-
national criminal law, stopping armed conflict, deterring international crimes,
and respecting the rights of the accused.82 The goals related to peace and secu-
rity have their roots in the unusual way the ICTY and ICTR were established,
namely by Security Council resolution in the wake of mass atrocities. Damaška
argues that not only does this range of goals burden the courts, but there is also
no priority among them and they ‘pull in different directions, diminishing each
other’s power and creating tensions’.83 The ICC does not share the same goals as
the ICTY and ICTR; the urge to create an historical record, for example, is not a
priority for the ICC. However, it is already starting to face its own challenges in
managing expectations of what it can achieve. The active participation of victims
in all phases of a case emphasizes the goal of bringing justice and recognition to
victims. The unique provision that allows the discontinuance of an investigation
or prosecution ‘in the interests of justice’84 raises expectations about the Court’s
role in peace negotiations. Finally, the ICC’s principle of complementarity places
pressure on it to engage in national capacity building.85 The expansion of func-
tions of international criminal courts may not only encourage a fragmented
jurisprudence, but also undermine the broader project of international criminal
justice.

C. Institutional context
The institutional context in which a court is embedded has a critical impact
on its behaviour. It encompasses the relationship between the court and other
international organizations or bodies (such as the UN) as well as the relationship
between the court and states or individuals, expressed through its jurisdictional
arrangements. The judicial practice examined in the preceding chapters reveals
how the regime in which a court operates can provide incentives towards the
integration or fragmentation of international law.

⁸² Mirjan Damaška, ‘What is the Point of International Criminal Justice?’ (n 54) 331.
⁸³ ibid 331, 335, 339.
⁸⁴ ICC Statute Art 53(1)(c), (2)(c).
⁸⁵ William W Burke-White, ‘Implementing a Policy of Positive Complementarity in the Rome
System of Justice’ (2008) 19 Crim LF 59; Morten Bergsmo, Olympia Bekou, and Annika Jones,
‘Positive Complementarity and the Construction of National Ability’ in Carsten Stahn (ed), The
International Criminal Court and Complementarity: From Theory to Practice 1052 (CUP 2011). The
ICC has thus far officially been resisting the function of national capacity-building.
160 Explaining Judicial Integration and Fragmentation
The four courts studied have distinct institutional contexts. The ICJ is the
principal judicial organ of the UN, established at the time of the Charter and
with its Statute forming an ‘integral part’ of the Charter.86 The ICJ shares with
the other UN organs the purpose stated in Article 1 of the Charter: the mainte-
nance of international peace and security. The Court’s particular contribution to
this goal is the judicial settlement of international disputes in conformity with
the principles of justice and international law.87 The ICTY and ICTR are also
part of the UN system, but they are subsidiary organs of the Security Council
created by resolutions directed at dealing with specific conflicts in the Balkans
and Rwanda.88 Their establishment was motivated by regret over political failure
to prevent mass atrocities rather than a desire to promote international justice.89
At the time of its establishment, there were several options for defining the
relationship the ICC would have with the UN: a primary organ like the ICJ,
which would require amendment to the Charter; a subsidiary organ like the ICTY
and ICTR, requiring a resolution of the Security Council or General Assembly;
an agency like the International Labour Organization; or an independent entity
somehow associated with the UN.90 Once a consensus emerged that the ICC
should be established by treaty, the first two options were ruled out. This left the
options of creating a treaty body similar to the bodies established by the major
human rights treaties or having an independent entity brought into relationship
with the UN either as a specialized agency or through a relationship agreement.91
The latter option prevailed at the 1998 Rome Conference.92 Although it is an
⁸⁶ UN Charter Art 92.
⁸⁷ UN Charter Arts 2(3), 33.
⁸⁸ UNSC Res 808 (22 February 1993) UN Doc S/Res/808 and UNSC Res 955 (8 November
1994) UN Doc S/Res/955.
⁸⁹ A senior official in the UN Office of Legal Affairs at the time described the establishment of
the Tribunals ‘more as acts of political contrition, because of egregious failures to swiftly confront
the situations in the former Yugoslavia and Rwanda, than as part of a deliberate policy, promoting
international justice’: Ralph Zacklin, ‘The Failings of Ad Hoc International Tribunals’ (2004) 2 JICJ
541, 542.
⁹⁰ William A Schabas, ‘Article 2’, in The International Criminal Court: A Commentary on the Rome
Statute (OUP 2010) 64–68 (hereinafter Schabas, Commentary). The 1990 report of the ILC had two
options: a court sitting inside the UN structure and an independent body in relationship with the
UN: ILC, ‘Report of the International Law Commission on the work of its 42nd session’ (1 May–20
July 1990) UN Doc A/45/10, paras 139–140. When the ICTY was created by resolution of the
Security Council, the Secretary-General acknowledged that ‘in the normal course of events’ an inter-
national criminal tribunal would be created by treaty: UNSC ‘Report of the Secretary-General pur-
suant to paragraph 2 of Security Council Resolution 808 (1993)’ (3 May 1993) UN Doc S/25704,
para 19.
⁹¹ See United Nations Codification Division ‘Establishment of the Court and Relationship with
the United Nations’ (20 December 1997) UN Doc A/AC.249/1998/L.10. The treaty body option
had precedents in the Human Rights Committee under the International Covenant on Civil and
Political Rights (ICCPR) and the Commission on the Limits of the Continental Shelf under the
UNCLOS. The independent entity option was illustrated by the International Seabed Authority,
ITLOS, and the Organization for the Prohibition of Chemical Weapons. If the ICC had been a spe-
cialized agency, it would have had to be created in accordance with Arts 57 and 63 of the Charter.
⁹² Paragraph 5(c) of the Final Act gave the Preparatory Commission the responsibility for prepar-
ing a draft relationship agreement between the ICC and the UN. The Bureau of the Preparatory
 II. How the Identity of the Court affects Integration and Fragmentation 161

independent institution, the ICC exists in a close relationship with the UN, in
particular with the Security Council.93
The institutional context of the courts has shaped their jurisdiction, which
in turn has an impact on how they develop international law. The ICJ, ICTY,
ICTR, and ICC are all reactive; their body of case law depends on which cases
come before them. This already presents a challenge for developing the law in any
comprehensive way. Scholarly bodies such as the International Law Commission
and the Institut de droit international can select the legal areas they wish progres-
sively to develop or to codify.94 They then have time—usually several years, or
more—to study the topic in-depth, not through the factual constraints of a case.
This allows such non-judicial bodies proactively to develop the law in a compre-
hensive manner. This ability comes, of course, at the expense of the end-product
(a set of draft articles or a resolution) not possessing binding power over any state,
unless it is later adopted as a treaty.
In addition to their reactive nature, each court faces distinct jurisdictional
challenges. For the ICJ, each of the 193 UN member states is a party to its
Statute, but that merely constitutes an entitlement to use the Court.95 States can-
not be compelled to bring their disputes to the ICJ—consent is required to be a
party to a case. This principle of consent originates in the UN’s emphasis on sov-
ereign equality.96 Organizations with smaller and perhaps more cohesive mem-
berships have made resort to their regional courts compulsory in nature.97 Only
sixty-seven states have made declarations accepting the ICJ’s jurisdiction under

Commission handed the task of preparing the initial draft to the UN Secretariat: International
Criminal Court ‘Proceedings of the Preparatory Commission at its fifth session (12–30 June 2000)’
(6 July 2000) UN Doc PCNICC/2000/L.3/Rev.1.
⁹³ There is a Negotiated Relationship Agreement between the International Criminal Court and
the United Nations (adopted 4 October 2004, entered into force 22 July 2004) ICC Doc ICC-ASP/3/
Res.1. The Relationship Agreement sets out the principles that the UN recognizes the ICC as ‘an
independent permanent judicial institution’ with legal personality and legal capacity, and the ICC
recognizes the responsibilities of the UN under the Charter (Art 2). The two entities agree to cooper-
ate closely and consult on matters of mutual interest ‘with a view to facilitating the effective discharge
of their respective responsibilities’ (Art 3).
⁹⁴ Under its Statute, the ILC shall consider proposals for the progressive development of inter-
national law referred by the General Assembly (Art 16) or submitted by UN member states, the
principal organs other than the General Assembly, specialized agencies or official bodies established
by inter-governmental agreements to encourage the progressive development and codification of
international law (Art 17). With respect to codification, the ILC must survey the whole field of inter-
national law with a view to selecting appropriate topics (Art 18). The Statute of the Institut refers to
its purposes as including: striving to formulate the general principles of the subject, in such a way as
to correspond to the legal conscience of the civilized world; lending its cooperation in any serious
endeavour for the gradual and progressive codification of international law; seeking official endorse-
ment of the principles recognized as in harmony with the needs of modern societies (Art 2(a)–(c)).
⁹⁵ UN Charter Art 93(1).
⁹⁶ ibid Art 2(1).
⁹⁷ See, for example, the European Court of Human Rights, the European Court of Justice, and
the Andean Tribunal of Justice. Consent to the jurisdiction of the Inter-American Court of Human
Rights is optional and the US, for example, has not consented.
162 Explaining Judicial Integration and Fragmentation
Article 36(2) of the Statute. States occasionally come to the court by joint agree-
ment98 or, very unusually, by simply inviting the intended respondent to accept
the Court’s jurisdiction for the purpose of the case.99 The most common way of
consenting to the Court’s jurisdiction is by compromissory clauses contained in
about three hundred treaties that refer to the Court in relation to the settlement
of disputes arising from their application or interpretation.100
When a case comes to the ICJ by the compromissory clause in a treaty, the
Court is constrained by the subject matter of that treaty. For example, in the Bosnia
Genocide case the Court only had jurisdiction under the Genocide Convention
and therefore could not examine alleged breaches of other international obliga-
tions, ‘even if the alleged breaches were of obligations under peremptory norms,
or of obligations which protect essential humanitarian values, and which may be
owed erga omnes’.101 While this allowed the ICJ to undertake a close analysis of
the Genocide Convention and contribute to the integration of law in that field,
it did not allow it to consider crimes against humanity. In the Oil Platforms case,
the Court considered allegations of the illegal use of force on the basis of juris-
diction under a bilateral treaty on friendship, commerce, and navigation. This
prevented a comprehensive consideration of the law on the use of force and also
constrained the pleadings of the parties.102 The limited basis for its jurisdiction
contributed to the Court making some findings generating uncertainty about the
aspects of the use of force, such as the degree of gravity required.103
The requirement of party consent to jurisdiction for each case before the ICJ
means that some cases that have the potential to advance the understanding of
important legal areas cannot be decided by the Court. The Congo v Rwanda case
raised issues regarding the law on genocide and the law on the use of force, but

⁹⁸ See, for example, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia);
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore);
Frontier Dispute (Benin/Niger); Frontier Dispute (Burkina Faso/Mali).
⁹⁹ ICJ Statute Art 38(5). This is known as forum prorogatum. Since 1978, when this method of
consent was included in the Rules of Court, there have only been two occasions that it has been
used: Certain Criminal Proceedings in France (Republic of the Congo v France) (later discontinued) and
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) (Merits: Judgment)
[2008] ICJ Rep 177.
¹⁰⁰ For example, between 1998 and 2003, three cases were brought to the Court by Paraguay,
Germany, and Mexico, claiming the United States had violated the right of their arrested nationals
to consular notification. Jurisdiction was based on a clause contained in the Vienna Convention on
Consular Relations.
¹⁰¹ Bosnia Genocide Judgment (n 57) para 147.
¹⁰² For two different perspectives on this, see the Separate Opinions of Judge Higgins and Judge
Simma, Oil Platforms (n 20).
¹⁰³ Chapter 4(III)(B). See also Request for Interpretation of the Judgment of 31 March 2004 in the
Case concerning Avena and Other Mexican Nationals (Mexico v United States of America) (Judgment)
[2009] ICJ Rep 3. When the US withdrew from the Optional Protocol to the Vienna Convention
on Consular Relations, Mexico was forced to bring a case on the basis of a request for interpretation
of an earlier Judgment since no jurisdiction existed for a fresh case. The Court thus had to examine
the claims through the frame of whether there was a dispute as to the meaning and scope of the 2004
Judgment rather than whether the US had breached an obligation under the Vienna Convention.
 II. How the Identity of the Court affects Integration and Fragmentation 163

the Court could not find a basis of jurisdiction.104 Similarly, the Congo v France
case involved fascinating questions about the scope of the immunity of state
officials, but it was later removed from the Court’s List at the request of the
Republic of the Congo.105 Some commentators have suggested that the Court
tries to encourage states to consent to its jurisdiction by reaching uncontrover-
sial ‘middle ground’ decisions.106 They cite a temptation to reach outcomes that
give all parties something and appear to provide a fair basis for settlement.107
The fact that some Judgments appear cautious or attempt to ‘split the differ-
ence’ is more attributable to factors such as the permanence of the ICJ and its
collegial method of decision-making than its consensual jurisdiction. There are
at the same time many Judgments that are robust and go against the interests of
powerful states.108
The jurisdictional regimes of the ICTY and ICTR set a relatively narrow frame
for the Tribunals to operate within. Their jurisdictions are limited to a specific
conflict, a defined period of time,109 and a list of crimes. However, two aspects of
jurisdiction have given the Tribunals the freedom to develop the law within these
confines. First, both Tribunals have primacy over national courts and may thus
request that other courts defer to their competence.110 This gives the Tribunals a
leadership role in shaping the law, which—when combined with the temporary
nature of the Tribunals—appears to provide an incentive towards innovation and
possible fragmentation.111 Second, many of the crimes within the subject-matter
jurisdiction of the Tribunals had not been prosecuted since the Nuremberg and
Tokyo Tribunals, if at all. While some treaties defined the prohibited acts in general

¹⁰⁴ Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of
the Congo v Rwanda) (Preliminary Objections: Judgment) [2006] ICJ Rep 6.
¹⁰⁵ Certain Criminal Proceedings in France (Republic of the Congo v France) (Order) [2010] ICJ
Rep 143.
¹⁰⁶ Eric A Posner and John C Yoo, ‘Judicial Independence in International Tribunals’ (2005) 93
Cal LR 1.
¹⁰⁷ Yuval Shany, ‘Bosnia, Serbia and the Politics of International Adjudication’ (2008) 45 Justice
21; Georges Abi-Saab, ‘Fragmentation or Unification: Some Concluding Remarks’ (1999) 31 NYU-
JILP 919, 930.
¹⁰⁸ Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment) [2009] ICJ Rep 61
(hereinafter Romania v Ukraine) was a clear victory for Romania. The ICJ has found against the US
in the Oil Platforms (n 20), and in the series of cases based on the Vienna Convention on Consular
Relations; it also found against the Russian Federation in the provisional measures phase of the
Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v Russian Federation) (Request for the Indication of Provisional Measures: Order) [2008]
ICJ Rep 353.
¹⁰⁹ The ICTY’s temporal jurisdiction has a specific start date, but an open-ended end date (ICTY
Statute Art 8).
¹¹⁰ ICTY Statute Arts 9(1), (2), and ICTR Statute Art 8(2). See, for example, the request to the
United States in respect of Ntakirutimana: In Re Ntakirutimana 998 F Supp 1038; Ntakirutimana,
184 F.3d 419. See William A Schabas, The UN International Criminal Tribunals (CUP 2006) 124–
125. Due to their completion strategies, the Tribunals have in recent years started to refer cases to
domestic courts and hybrid tribunals such as the State Court of Bosnia and Herzegovina.
¹¹¹ The ICJ also has a leadership role as the principal judicial organ of the UN, but the permanence
of the institution tends to lead it towards integration rather than fragmentation: Section II(A).
164 Explaining Judicial Integration and Fragmentation
terms, the way in which individuals could be held criminally responsible for such
acts was left to the Tribunals to develop. Although the Secretary-General’s Report
issued at the time of the establishment of the ICTY stated ‘the international tri-
bunal should apply rules of international humanitarian law which are beyond any
doubt part of customary law’,112 as has been shown, the ICTY and the ICTR have
both developed international law beyond pre-existing customary rules.113
The ICC’s jurisdiction differs to the ICTY and ICTR in two important ways.
First, its jurisdiction is governed by the principle of complementarity.114 Unlike
the ICTY and ICTR, the ICC does not have primacy over national courts.
Instead, states have the first responsibility and right to prosecute the most serious
crimes of international concern. The ICC may only exercise jurisdiction where
the national legal system is not taking any action115 or is ‘unwilling or unable
genuinely to carry out the investigation or prosecution’.116 This feature—com-
bined with the reactive nature of jurisdiction common to all courts—limits the
types of cases that will come before the ICC, hampering its ability to develop
the law in a holistic or systematic way. Second, unlike the ICTY and ICTR, the
ICC is explicitly required by Article 21(3) of its Statute to interpret the crimes
within its subject-matter jurisdiction in a manner ‘consistent with internation-
ally recognized human rights, and . . . without any adverse distinction founded
on grounds such as gender . . . , age, race, colour, language, religion or belief,
political or other opinion, national, ethnic or social origin, wealth, birth or other

¹¹² UNSC ‘Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolu-
tion 808 (1993)’ (3 May 1993) UN Doc S/25704 (emphasis added). The Security Council and the
Secretary-General took a slightly more expansive approach with the ICTR (see Chapter 1, n 9).
¹¹³ Section II(A) and Danner, ‘When Courts Make Law’ (n 31). For an early view, see Theodor
Meron, ‘War Crimes in Yugoslavia and the Development of International Law’ (1994) 88 AJIL 78.
¹¹⁴ ICC Statute Art 17 is entitled ‘Issues of admissibility’. The principle of complementarity does
not affect the existence of jurisdiction of the ICC as such, but regulates when this jurisdiction may
be exercised by the ICC. The Rules of Procedure and Evidence recognize this distinction by provid-
ing that the ICC shall rule on any challenge to its jurisdiction first before dealing with matters of
admissibility.
¹¹⁵ This limb of the admissibility test was clarified by the ICC Appeals Chamber in the Prosecutor
v Germain Katanga and Mathieu Ngudjolo Chui (Judgment on the appeal of Mr Germain Katanga
against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case)
ICC-01/04-01/07, A Ch (25 September 2009), which held that ‘in case of inaction, the question of
unwillingness or inability does not arise; inaction on the part of a State having jurisdiction (that is,
the fact that a State is not investigating or prosecuting, or has not done so) renders a case admissible
before the Court, subject to article 17(1)(d) of the Statute’ (para 78). See Ben Batros, ‘The Judgment
on the Katanga Admissibility Appeal: Judicial Restraint at the ICC’ (2010) 23 LJIL 343.
¹¹⁶ ICC Statute Art 17. For commentary, see John T Holmes, ‘The Principle of Complementar-
ity’ in Roy S Lee (ed), The International Criminal Court; The Making of the Rome Statute; Issues,
Negotiations, Results 41 (Kluwer Law International 1999); Louise Arbour and Morten Bergsmo,
‘Conspicuous Absence of Jurisdictional Overreach’ Herman von Hebel and others (eds), Reflections
on the International Criminal Court: Essays in Honour of Adriaan Bos 129 (T M C Asser Press 1999)
129–140; John T Holmes, ‘Jurisdiction and Admissibility’ in Roy S Lee (ed), International Crimi-
nal Court: Elements of Crimes and Rules of Procedure and Evidence 321 (Transnational Publishers
2001); John T Holmes, ‘Complementarity: National Courts versus the ICC’ in Antonio Cassese,
Paola Gaeta, and John R W D Jones (eds), The Rome Statute of the International Criminal Court: A
Commentary 667 (OUP 2002); Christopher K Hall, ‘Challenges to the Jurisdiction of the Court or
 II. How the Identity of the Court affects Integration and Fragmentation 165

status’.117 This rule of interpretation applies to both substantive and procedural

aspects of cases.
While it is too early in the practice of the ICC to determine whether Article
21(3) is in fact being applied consistently by the judges, this requirement pro-
vides an incentive for them to embed the ICC’s decisions within the broader
framework of existing international human rights law jurisprudence, which
would encourage integration between these systems. Early ICC decisions on pro-
cedural fairness questions contain citations to the case law of the ECtHR as well
as national courts.118 As discussed in Chapter 4 on the Use of Force, there is one
aspect of the ICC’s subject-matter jurisdiction that holds significant potential
for fragmentation: the crime of aggression. The fact that this crime applies to
both state action and individual conduct means that the ICC may well reach
different conclusions on the same case to the Security Council or the ICJ. If
the full Pre-Trial Chamber authorizes an investigation into aggression, the ICC
can be the sole judge of what is essentially a question of state responsibility even
though the institutional regime of the ICC is firmly one of individual criminal
responsibility.119
The ICJ, ICTY, ICTR, and ICC have diverse memberships and constituents
as a result of their institutional context. The interests and influence of these other
actors may affect the manner in which the courts develop international law. As
the principal judicial organ of the UN, the ICJ’s membership is composed of the
sovereign states that belong to the UN as well as the main UN organs and special-
ized agencies that may come to the Court for advisory opinions. The ICJ is thus
conscious of acting within the UN framework and has a heightened appreciation
for the views of states as it interprets and develops international law. In general,
the relationship between the ICJ and UN member states has been cooperative.

the Admissibility of a Case’ in Otto Triffterer (ed), Commentary on the Rome Statute of the Interna-
tional Criminal Court: Observer’s Notes, Article by Article 637 (2nd edn, Hart and Nomos Publishing
2008); Mohammed M El Zeidy, The Principle of Complementarity in International Criminal Law:
Origin, Development and Practice (Brill 2008); Christopher K Hall, ‘Developing and Implementing
an Effective Positive Complementarity Prosecution Strategy’ in Carsten Stahn and Goran Slüiter
(eds), The Emerging Practice of the International Criminal Court 219 (Brill 2009).
¹¹⁷ ICC Statute Art 21(3). The Court shall apply ‘in the first place’ the Statute, Elements of Crimes,
and its Rules of Procedure and Evidence; ‘in the second place, where appropriate’ the principles and
rules of international law; and ‘failing that’, general principles of law derived by the Court from na-
tional laws of legal systems of the world, including ‘the national laws of States that would normally
exercise jurisdiction over the crime, provided that those principles are not inconsistent with [the]
Statute and with international law and internationally recognised norms and standards’: Art 21(1).
The Court may also apply principles and rules of law as interpreted in its previous decisions: Art
21(2). The differences (relating to complementarity and sources) between the ICC Statute and the
Statutes of the ICTY and ICTR limit the integration that flows from the otherwise similar draft-
ing of the constitutive instruments: cf Brown, A Common Law of International Adjudication (n 7)
226–227.
¹¹⁸ For a survey of the nascent practice in this regard, see Rebecca Young, ‘Internationally Recog-
nized Human Rights Before the International Criminal Court’ (2011) 60 ICLQ 189.
¹¹⁹ Chapter 4(IV).
166 Explaining Judicial Integration and Fragmentation
Compliance with ICJ Judgments has proven to be a problem in only a handful
of cases and of this handful, the problems have mostly turned out to be tem-
porary.120 As with the other international courts, ICJ judges are elected by the
membership of the UN. Although some commentators have speculated that the
selection process and the nationality of the judge could undermine impartiality,
there is no evidence that the Court’s judges systematically vote along national
lines or receive instructions from their governments.121
The ICTY and ICTR also have a close relationship to the UN, being subsidi-
ary organs of the Security Council. Whereas the ICJ is concerned with all 193
member states, the ICTR and ICTY have a special relationship with the states
that are the site of the conflicts over which they have jurisdiction (Rwanda and
the states of the former Yugoslavia) as well as the members of the Security Council
(especially the Permanent Five) who monitor the Tribunals on a regular basis.122
Obligations of cooperation on the part of states are imposed by the Statutes
of the Tribunals, their Rules of Procedure, and, most importantly, by Security
Council resolutions issued under Chapter VII of the Charter.123 The relevant
states, however, have been slow to cooperate, and the Security Council has not
been able or willing to do more than urge compliance with arrest warrants. The
ICTY in particular has faced serious problems with state cooperation to arrest

¹²⁰ Judge Rosalyn Higgins, President of the ICJ, ‘Speech to First International Law in Domestic
Courts Colloquium—The Changing Position of Domestic Courts in the International Legal Order’ The
Hague (27 March 2008). For a detailed study and a more equivocal assessment of the ICJ’s rate of
compliance, see Constanze Schulte, Compliance with Decisions of the International Court of Justice
(OUP 2004).
¹²¹ Posner and Yoo ‘Judicial Independence in International Tribunals’ (n 106) and Eric Posner,
‘The Decline of the International Court of Justice’ (2006) 23 Conferences on New Political Econo-
my 111 cf Rosalyn Higgins, ‘Alternative Perspectives on the Independence of International Courts:
Remarks’ in Rosalyn Higgins (ed), Themes and Theories; Selected Essays, Speeches and Writings in
International Law 1118 (Vol 1, OUP 2009). See also Rosalyn Higgins, ‘Reflections from the In-
ternational Court’ in Malcolm Evans (ed) International Law 3 (2nd edn, OUP 2006): ‘[c]ertainly
the international judge is not: “responsible to” the particular States appearing before him/her. It is
totally inappropriate for a State to assume, still less to say, that a particular Judge’s vote in a case was
due to his or her nationality (or race, or religion). Only those present in the Deliberation Chamber
can know what views were held, by whom, and on what grounds. In fact, the dynamics of the legal
exchanges between the Judges of the International Court in no way reflect tired stereotypes. As-
sumptions based on such ideas would be surprisingly wide of the mark’.
¹²² See, for example, the monitoring of the completion strategies by the Council.
¹²³ ICTY Statute Art 29; International Criminal Tribunal for the former Yugoslavia, ‘Rules of
Procedure and Evidence’ (adopted pursuant to Article 15 of the Statute of the Tribunal, entered
into force 14 March 1994) UN Doc IT/32/Rev.7, rules 56, 58, 59; UNSC Res 827 (25 May 1993)
UN Doc S/Res/827. ICTR Statute Art 28; International Criminal Tribunal for Rwanda, ‘Rules of
Procedure and Evidence’ (adopted pursuant to Article 14 of the Statute of the Tribunal, entered into
force 29 June 1995) UN Doc ITR/3/REV.1, rules 61; UNSC Res 955 (8 November 1994) UN Doc
S/Res/955.On state cooperation, see Gabrielle McDonald, ‘Problems, Obstacles and Achievements
of the ICTY’ (2004) 2 JICJ 558, 559–567; Mark Harmon and Fergal Gaynor, ‘Prosecuting Massive
Crimes with Primitive Tools: Three Difficulties Encountered by Prosecutors in International Crimi-
nal Proceedings’ (2004) 2 JICJ 403, 408–426.
 II. How the Identity of the Court affects Integration and Fragmentation 167

Ratko Mladic,124 who was eventually apprehended on 26 May 2011 after sixteen
years on the run.125 One may expect these challenges to make the Tribunals more
cautious, to issue bland judgments that do not cause tensions. However, this has
not been the reality. The Tribunals have not been ‘punished’ for their innovations
in the field of international humanitarian law. The Security Council controls
their budgets, can amend their statutes, and has an important role in the selection
of judges. If the decisions of the Tribunals displeased the Security Council we
would, in theory, expect to see the Council ‘taking steps to rein in their wayward
creation’.126 The attitude of the Security Council does not demonstrate this pat-
tern: it has steadily increased their budgets and allowed the regular expansion of
the judging pool through the addition of ad litem judges.127 Both Tribunals have
prosecuted Heads of State without protest. Although the ICTR has had troubled
relations with the Government of Rwanda on occasion, this reflected concerns
about the investigation of Rwandan Patriotic Front officials128 and the temporary
release of one individual,129 not the way in which the Tribunal was developing
international criminal law.
The ICC has a more diverse and complex range of constituents than the other
international courts. These constituents have wide-ranging and sometimes con-
flicting priorities, which may explain some of the tensions in the ICC’s early
jurisprudence. As an independent treaty body, the ICC does not come within the
UN System. The ASP is the plenary political and legislative body established by
the Statute.130 The ASP has a variety of functions and has had a more active role
in the law applied by the ICC compared to, for example, the General Assembly

¹²⁴ See, for example, Serge Brammertz, Prosecutor of the ICTY, ‘Speech to the United Nations
Security Council’ (6 December 2010).
¹²⁵ ICTY Press Release, ‘Tribunal Welcomes the Arrest of Ratko Mladić’ (26 May 2011). The last
remaining fugitive, Goran Hadžić, was arrested on 20 July 2011.
¹²⁶ Danner, ‘When Courts Make Law’ (n 31) 143.
¹²⁷ ibid 143.
¹²⁸ See Larissa Van den Herik, The Contribution of the Rwanda Tribunal to the Development of
International Law (Brill 2005) 264, observing the Rwandan Government has ‘done everything in its
power’ to prevent the ICTR investigating and prosecuting Rwandan Patriotic Front crimes. See also
Human Rights Watch, ‘Letter to ICTR Chief Prosecutor Hassan Jallow in Response to His Letter
on the Prosecution of RPF Crimes’ (14 August 2009).
¹²⁹ On 19 November 1999, the Appeals Chamber ordered the release of Jean Bosco Barayagwiza
following his motion challenging the legality of his arrest and detention. The decision was based
on violations of Barayagwiza’s rights, in particular the length of his detention without charge or
appearance before the ICTR. The Rwandan Government strongly protested the release and sus-
pended cooperation with the ICTR. After a request by the Prosecutor, a somewhat differently con-
stituted Appeals Chamber reviewed the decision to release Barayagwiza and reversed its decision
on 31 March 2000, in Prosecutor v Barayagwiza (Decision on Prosecutor’s Request for Review or
Reconsideration) ICTR-97-19-AR72, A Ch (31 March 2000). William A Schabas, ‘Prosecutor v.
Barayagwiza’ (2000) 94 AJIL 563.
¹³⁰ ICC Statute Art 112. For an overview, see Schabas, Commentary (n 90) Article 112 1115–
1134; Adriaan Bos, ‘Assembly of States Parties’ in Antonio Cassese and others (eds), The Rome Stat-
ute of the International Criminal Court: A Commentary 392 (OUP 2002); S R Rao, ‘Article 112’ in
Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observer’s
Notes, Article by Article 1687 (2nd edn, Hart and Nomos Publishing 2008); Daryl A Mundis, ‘The
168 Explaining Judicial Integration and Fragmentation
or the Security Council with respect to the ICTY and ICTR. For example, the
ASP adopted the Rules of Procedure and Evidence, and also has the power to
amend the Rules.131 This gives it an important influence over the procedure fol-
lowed by the Court, including the conduct of investigations and prosecutions,
the scope and content of the rights of the accused, and the treatment of victims
and witnesses.132 The ASP also adopted the Elements of Crimes,133 elects the
judges and the prosecutor,134 and may also remove them from office for cause.
With 121 states parties, the ASP does not reflect the same range of states as the
General Assembly; the United States, Russia, China, and many Asian States are
not represented even if they often attend ASP sessions as observers. ASP members
are linked by their ratification of the Rome Statute, which is a looser bond than
membership of the United Nations. To date the ICC has faced problems with
state cooperation with respect to outstanding arrest warrants;135 the implementa-
tion of the ICC Statute in national legislation;136 and judicial cooperation with
preliminary examinations, investigations, and prosecutions.137
Two other elements add to the diversity of the ICC’s constituents. First, vic-
tims are able to participate at all stages of proceedings.138 This brings the interests
of the victims into the courtroom, with all the implications that that has for the

Assembly of States Parties and the Institutional Framework of the International Criminal Court’
(2003) 97 AJIL132.
¹³¹ ICC Statute Art 51(1).
¹³² The Rules of Procedure form a primary source of the applicable law for the ICC. At the ICJ,
ICTY, and ICTR, the judges adopt and amend the Rules.
¹³³ ICC Statute Art 9.
¹³⁴ The ASP may decide whether to alter the number of judges, in accordance with Art 36 of the
Statute.
¹³⁵ As of August 2011, eleven persons for whom arrest warrants had been issued remained at large.
International Criminal Court, ‘Report of the International Criminal Court for 2010/11’ (19 August
2011) UN Doc A/66/309, 2. The first warrants had been issued in 2005 in the Ugandan situation.
In connection with the outstanding arrest warrant for President Al-Bashir of the Sudan, the Pre-Trial
Chamber took the step of requesting Kenya, state party, to inform the Chamber about ‘any problem
which would impede or prevent the arrest and surrender of Omar Al Bashir in the event that he
visits the country on 30 October 2010’ for an Inter-governmental Authority for Development sum-
mit. On 27 August 2010, the Pre-Trial Chamber I had issued two decisions informing the Security
Council and the ASP of Omar Al Bashir’s visits to Kenya and Chad, ‘in order for them to take any
measure they may deem appropriate’.
¹³⁶ Only a minority of the 121 states parties had implementing legislation in place as of October
2012 despite Art 88 of the ICC Statute providing that ‘States Parties shall ensure that there are
procedures available under their national law for all of the forms of cooperation which are specified
under this Part’. ICC Legal Tools, National implementing legislation database.
¹³⁷ This includes notification of investigative activities on the territory of states, transmission of
documents and interviews with officials.
¹³⁸ ICC Statute Art 68(3) and International Criminal Court, ‘Rules of Procedure and Evidence’
(adopted 9 September 2002, entered into force 9 September 2002) ICC-ASP/1/3, Arts 89–93; War
Crimes Research Office, ‘Victim Participation Before the International Criminal Court’ (December
2007) and ‘Victim Participation at the Case Stage of Proceedings’ (February 2009). The prominent
role for victims at the ICC stands in contrast to the ICTY and ICTR, which do not provide a role
for victims. The Special Tribunal for Lebanon is the only other international criminal court that for-
mally permits victims to express their views and concerns during the proceedings: Art 17, Statute of
 II. How the Identity of the Court affects Integration and Fragmentation 169

impact on the judges’ conception of the case.139 Second, NGOs have played a
much more prominent role in the establishment and monitoring of the ICC than
with other courts. While not monolithic in their desires, the NGOs in general
have pushed for the Court to be an active player on the international stage and
to take the lead in developing international criminal law.140 The ICC is pulled in
different directions, with the ASP and (in the background) the Security Council
representing state interests, and victims and NGOs urging the bold treatment
of individual cases. The ICC has responded with some bold moves in respect
of victim participation and issuing an arrest warrant against a sitting Head of
State,141 but its comments on substantive law have tended towards integration
and caution.142
The final aspect of institutional context is the relationship that the courts have
with the Security Council. The courts studied have diverse connections to the
Council. The ICTY and ICTR are subsidiary organs of the Security Council. The
nature of their jurisdictions means that they are not engaged in assessing Security
Council action or relying on it for referral of cases.143 The ICJ, in contrast, exists
in a horizontal relationship with the Council. There are various provisions of the
Charter providing for formal interaction between the two bodies, but in reality
the relationship is based on informal exchanges and mutual acknowledgement.144
The ICJ has not yet conducted judicial review of Security Council action,145 and
when dealing with cases that are either sequentially or simultaneously before the
Council, the Court has been rather circumspect.146 Excessive judicial caution
may on the one hand enhance consistency across international bodies, but it may
also hamper the ICJ in fulfilling its responsibilities as a judicial organ.

the Special Tribunal for Lebanon, attachment to UNSC Res 1757 (30 May 2007) S/Res/1757/2007
(STL Statute).
¹³⁹ See, for example, Christine Chung, ‘Victim’s Participation at the International Criminal Court:
Are Concessions of the Court Clouding Promise?’ (2007–2008) 6 NWJIHR 459.
¹⁴⁰ The Rome Conference involved 160 States, 33 intergovernmental organizations, and a coali-
tion of 236 NGOs. For the contribution of the NGOs, see M J Struett, ‘NGOs, the International
Criminal Court and the Politics of Writing International Law’ in Andrea Bianchi (ed), Non-State
Actors and International Law 187 (Ashgate Publishing Co 2009).
¹⁴¹ Situation in the Democratic Republic of Congo (Decision on the Applications for Participation
in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) ICC-01/04-101,
P-T Ch I (17 January 2006); Prosecutor v Omar Al Bashir (Decision on the Prosecution’s Applica-
tion for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir) ICC-02/05-01/09, P-T Ch I
(4 March 2009).
¹⁴² Chapter 4(V)(A).
¹⁴³ Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction)
IT-94-1, A Ch (2 October 1995), is an exception in that the ICTY Appeals Chamber in that case
confirmed the Security Council’s ability to establish the Tribunal.
¹⁴⁴ Chapter 4(IV)(C) and (VI).
¹⁴⁵ See Dapo Akande, ‘The International Court of Justice and the Security Council: Is there Room
for Judicial Control of Decisions of the Political Organs of the United Nations?’ (1997) 46 ICLQ
309; B Martenczuk, ‘The Security Council, the International Court and judicial review: what les-
sons from Lockerbie?’ (1999) 10(3) EJIL 517.
¹⁴⁶ Chapter 4(IV)(C) and (VI).
170 Explaining Judicial Integration and Fragmentation
The ICC has a more distant yet complicated relationship with the Security
Council. The relationship involves three elements: two relate to proceedings
before the Court and the third concerns enforcement. First, the Security Council
may refer a situation to the ICC prosecutor in which one or more crimes within
the jurisdiction of the Court appears to have been committed.147 The Security
Council is therefore one of the three ‘trigger mechanisms’ for the Court’s juris-
diction.148 Unlike the other trigger mechanisms, the referral of a situation by the
Security Council allows the ICC to exercise jurisdiction without the consent of
the state on whose territory the crimes have been committed or the state of the
nationality of the alleged perpetrator.149 Second, the Security Council may, by
a resolution adopted under Chapter VII, request the Court to halt or suspend
an investigation or prosecution for a period of twelve months; the request may
be renewed under the same conditions.150 Despite the use of the term ‘request’,
the Court is under an obligation to comply with the resolution.151 The Security
Council has invoked this provision in resolutions on UN peacekeeping, but not
in relation to a specific ICC investigation or prosecution.152

¹⁴⁷ ICC Statute Art 13(b).

¹⁴⁸ The other triggers are state referral and the prosecutor acting proprio motu.
¹⁴⁹ cf ICC Statute Art 12(2).
¹⁵⁰ ICC Statute Art 16.
¹⁵¹ J A Yanez-Barnuevo and C E Hernandez, ‘The ICC and the UN: A Complex and Vital Rela-
tionship’ in Flavia Lattanzi and William A Schabas (eds), Essays on the Rome Statute of the Interna-
tional Criminal Court II 41 (Sirente 2004) 53–54. The two conditions—the adoption of the resolu-
tion under Chapter VII and the twelve-month duration—were essential parts of the compromise
reached in Rome and are based on the ‘Singapore formula’. The original proposal of the ILC was for
the Security Council to ‘grant leave’ to the Court to act on any matter on the agenda of the Council,
basically giving the Permanent Members a veto over the proceedings at the ICC.The Statute does
not include any mechanism to compensate for the negative impact of a suspension under Art 16
by, for example, providing means to preserve evidence or take other interim measures. Proposals
at the Rome Conference to introduce such measures to ensure the effective continuation of pro-
ceedings were not adopted: United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court (10 July 1998) UN Doc A/CONF.183/C.1/L.7
(Belgium); United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court (9 July 1998) UN Doc A/CONF.183/C.1/L.20 (Spain).
¹⁵² In UNSC Res 1422 (12 July 2002) UN Doc S/Res/1422, the Council requested ‘consistent
with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current
or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or
omissions relating to a United Nations established or authorized operation, shall for a twelve-month
period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such
case, unless the Security Council decides otherwise’ (para 1). It was renewed in UNSC Res 1487 (12
June 2003) UN Doc S/Res/1487, but not in the following years, perhaps due to the allegations of
mistreatment of prisoners in Abu Ghraib and Guantanamo Bay prisons by the US: Daphna Shraga,
‘Politics and Justice: the Role of the Security Council’ in Antonio Cassese and others (eds), The Ox-
ford Companion to International Criminal Justice (OUP 2009). The resolutions attracted condemna-
tion: see Amnesty International, ‘The unlawful attempt by the Security Council to give US citizens
permanent impunity from international justice’ (May 2003) AI Index IOR 40/006/2003. In UNSC
Res 1497 (1 August 2003) UN Doc S/Res/1497, on Liberia, the Council decided that ‘current or
former officials or personnel from a contributing State, which is not a party to the Rome Statute of
the International Criminal Court, shall be subject to the exclusive jurisdiction of that contributing
State for all alleged acts or omissions arising out of or related to the Multinational Force or United
 III. How the Substance of the Law affects Integration and Fragmentation 171

Third, the Security Council has a potential role in enforcing the Court’s juris-
diction under the Statute.153 This option, however, is restricted to when the
Security Council had referred the matter to the Court. The Council therefore has
a limited but powerful role in the work of the ICC. It is in the ICC’s interests to
take the Council’s concerns and priorities into consideration, especially given the
Article 16 power to suspend an investigation or prosecution. Even though the
ICC is outside of the UN system, it has strong incentives to align itself with
the Council, a position that encourages judicial caution in developing the law.
The ICC–Council relationship would seem to act as a brake on fragmentation
of international law, unless that fragmentation was somehow desirable from the
Council’s point of view.154

III. How the Substance of the Law affects Integration and

Fragmentation
A. Treaty or custom
The examination of judicial practice in the preceding chapters indicates that
whether an area is governed by treaty law or customary international law plays an
important role in the potential for integration or fragmentation. If an area of law
is governed by a detailed and comprehensive treaty, the potential contribution of
judicial decisions is usually limited to providing specific interpretations of terms
or articles and elaborating on the meaning of general provisions, such as ‘obliga-
tion to prevent’.155 On the other hand, if an area of law largely relies on customary
international law and the attendant ‘amorphous processes of state practice and

Nations stabilization force in Liberia, unless such exclusive jurisdiction has been expressly waived
by that contributing State’ (para 7), with no express reference to Art 16 of the ICC Statute. The
resolution referring the situation in Darfur, Sudan to the ICC Prosecutor also decided that officials
or personnel from a contributing state outside Sudan which is a non-state party shall be subjected
to the exclusive jurisdiction of that State in connection with African Union or UN operations in the
Sudan: UNSC Res 1593 (31 March 2005) UN Doc S/Res/1593, para 6. The preamble recalled that
the Security Council may request the twelve-month halt or suspension of an investigation or pros-
ecution under Art 16: preambular para 2. See Morten Bergsmo and Jelena Pejic, ‘Article 16’ in Otto
Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes,
Article by Article 595 (2nd edn, Hart and Nomos Publishing 2008) 599–600. Some commentators
have argued that the provisions providing jurisdictional immunity are contrary to the grave breaches
provisions of the Geneva Conventions as well as the ICC Statute: William A Schabas, ‘Article 13’ in
Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observer’s
Notes, Article by Article 563 (2nd edn, Hart and Nomos Publishing 2008) 571–572.
¹⁵³ When a state obliged to cooperate with the Court fails to comply with a request for coopera-
tion, the Court may make a finding to that effect and inform the Security Council: Art 87(7) (as
regards states parties) and 87(5)(b) (for non-states parties that have entered into an ad hoc agree-
ment with the ICC to provide international cooperation and judicial assistance).
¹⁵⁴ An example may be a particular interpretation of the crime of aggression contrary to customary
international law so as not to conflict with the Council’s political assessment of a certain situation.
¹⁵⁵ Chapter 2(V)(C).
172 Explaining Judicial Integration and Fragmentation
opinio juris’156 the court’s contribution is greater: it can analyse existing practice,
determine the general rule, consider whether contemporary developments have
created exceptions to the general rule, and so on. The scope for interpretation is
larger; the court is not limited to the rules in the Vienna Convention on the Law
of Treaties regarding the ordinary meaning of a text and consideration of context,
object and purpose, and the travaux préparatoires.157 Instead, a court addressing
customary international law may consider a whole range of expressions of state
practice and opinio juris. Customary law provides courts with ‘an immensely flex-
ible technique that they can use to mould and develop the law’.158
As regards the law on genocide, the existence of the comprehensive, widely
ratified Convention on the Prevention and Punishment of Genocide has facili-
tated judicial integration in a number of areas. There is widespread agreement
among the international courts that the protected groups are restricted to the
four categories of national, ethnical, racial, or religious as specified in the cha-
peau to Article II of the Convention.159 As the courts delved into the mean-
ing of these terms, especially the vague notion of ‘ethnical’, some contradictory
holdings emerged. However, after a period of time, there is consensus on most
points. There is also genuine integration on the nature of the destruction required
(physical–biological).160 The clear phrasing of the acts listed in Article II of the
Convention has also led to the common approaches to interpretation.161
At the same time, the law on genocide also demonstrates how the brevity or
vagueness of a provision in a treaty may increase the risk of fragmentation. The
deployment of strategic ambiguity may be a useful tool in treaty-making because
it enables states to reach consensus.162 However, it can also lead to multiple and
conflicting interpretations of the same terms. In the Genocide Convention the
reference in Article II to ‘the intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such’ has led to diverging purpose-based

¹⁵⁶ Alan Boyle and Christine Chinkin, The Making of International Law 268 (OUP 2007).
¹⁵⁷ Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 Janu-
ary 1980) 1115 UNTS 331, Arts 31, 32.
¹⁵⁸ William A Schabas, ‘Customary or “Judge-Made” Law: Judicial Creativity at the UN Criminal
Tribunals’ in José Doria, Hans-Peter Gasser, and M Cherif Bassiouni (eds), The Legal Regime of the
ICC: Essays in Honour of Prof Igor P Blishchenko 77 (Martinus Nijhoff Publishers 2009) 78 (herein-
after Schabas, ‘Customary law’), cf Brown, A Common Law of International Adjudication (n 7) 229
who sees customary international law as having a harmonizing effect on issues of procedure and
remedies.
¹⁵⁹ Chapter 2(IV)(A).
¹⁶⁰ Chapter 2(IV)(B).
¹⁶¹ (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of
the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part; (d) Imposing measures intended to prevent births within
the group; (e) Forcibly transferring children of the group to another group. See Bosnia Genocide
Judgment (n 57) paras 245–277, 298–319, 320–354, 355–361, 362–367.
¹⁶² See, for example, the multiple ambiguities in the recent amendment to the ICC Statute on the
crime of aggression: Beth Van Schaak, ‘Negotiating at the Interface of Power & Law: The Crime of
Aggression’ Santa Clara University Legal Studies Research Paper Series, Accepted Paper No 10-09
(August 2010).
 III. How the Substance of the Law affects Integration and Fragmentation 173

and knowledge-based approaches in the various international courts.163 The

ambivalence in the judicial practice has now been codified in the ICC Elements
of Crimes, which refers to both purpose-based and knowledge-based approaches
in its provision on the mental element for crimes within the jurisdiction of the
Court.164
While the Genocide Convention has facilitated the integration of the law on
genocide—with the exception of specific intent—in the judicial practice of the
international courts, the law on immunities has no overarching treaty. The closest
analog is the UN State Immunity Convention, but this treaty is restricted to civil
proceedings and is not yet in force. There are specific treaties on the immunities
of diplomatic agents, consular officials, members on special mission, and repre-
sentatives of states to international organizations, but these form a patchwork of
rules that do not answer a whole range of questions concerning immunities.165
The Pinochet III Judgment by the UK House of Lords was unusual in that a
treaty—the Torture Convention—played a central role in the decision. Some
Law Lords focused on the terms of the treaty and found that it required states
parties to lift immunity ratione materiae for officials accused of torture, while
other Law Lords took the treaty as a starting point, but also relied on customary
international law.166 As a result, the reasoning in each of the six Opinions dif-
fered, limiting the ability of the Pinochet III Judgment to perform an integrative
role in the field of immunities.
National and international courts are often deciding questions relating to
immunities on the basis of customary international law, which engages them
in a process that is much more creative and flexible than the interpretation and
application of treaty law. As seen in the ICJ Arrest Warrant and Jurisdictional
Immunities Judgments or the UK House of Lords Judgment in Jones v Saudi
Arabia, judges are engaged in analysing a variety of materials: national legisla-
tion, national case law, international case law, statutes of international criminal
courts, unratified treaties, ILC reports, Institut de droit international resolutions,
and doctrine.167 The breadth of this material—much of which does not evince
a clear pattern in one direction or another—contributes to the diverging inter-
pretations that have emerged from courts on the nature and scope of immunity
ratione materiae.168

¹⁶³ Chapter 2(III).

¹⁶⁴ Chapter 2(III).
¹⁶⁵ Chapter 3(I).
¹⁶⁶ Regina v Bartle and the Commissioner of Police for the Metropolis and Others ex parte Pinochet
[1999] UKHL 17, Lords Hutton, Millett, and Phillips.
¹⁶⁷ Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment)
[2002] ICJ Rep 3; Jurisdictional Immunities of the State (Germany v Italy, Greece intervening) (Merits:
Judgment) [2012] ICJ Rep; Jones v Minister of Interior of Kingdom of Saudi Arabia [2006] UKHL
26, [2006] 2 WLR 70.
¹⁶⁸ Chapter 3(IV)(C).
174 Explaining Judicial Integration and Fragmentation
The law on the use of force is another area governed largely by customary
international law. Articles 2(4) and 51 of the UN Charter contain the prohibi-
tion on the use of force and the right to self-defence, but these provisions have
been recognized by the ICJ as reflecting customary international law, and indeed
co-existing alongside potentially broader customary rules.169 The phrase ‘inherent
right’ in Article 51 signals that the Charter recognizes the pre-existing custom-
ary rules on self-defence and does not overrule or ‘impair’ them. While the UN
Charter is the classic statement on what is prohibited and what is permitted as
regards the use of force, ‘almost every phrase in Article 2(4) and Article 51 is
open to more than one interpretation’.170 This ambiguity springs from the nature
of the document: the UN Charter was never intended to be a comprehensive
treaty setting out, for example, the bases for state or individual responsibility
under international law. It is largely an aspirational document, designed to estab-
lish common goals and a cooperative framework for the diverse international
community.
The law on the use of force, while having its roots in the UN Charter, has been
developed on the basis of customary international law. As with the law on immu-
nities, the flexibility that this grants to courts has led to divergent interpretations,
including with respect to the definition of the threat of force and the identity of
the attacker for the purpose of self-defence.171 The level of development of the
law and the high level of controversy associated with the use of force have also
contributed to a certain hesitancy in judicial pronouncements, as discussed in
Section C below.
Despite the risk of fragmentation due to judicial reliance of customary interna-
tional law, the recent amendments to the ICC Statute on the crime of aggression
demonstrate that codification does not equate to clarity. The amendments not
only bring state conduct within the purview of a court dedicated to individual
criminal responsibility, but also contain numerous ambiguities as to the defini-
tion of the crime of aggression, the potential prohibition of justified uses of force,
the requirement of consent from the alleged aggressor state, and the status of the
‘understandings’ adopted alongside the aggression amendments.172 When these
aggression amendments eventually enter into force after 2017, they will raise the
potential for the judges of the ICC to diverge from the meaning of aggression
under customary international law. In this way, the codification of an aspect of
the law on the use of force has actually increased the potential for fragmentation
in judicial practice.

¹⁶⁹ Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of Amer-
ica) (Jurisdiction and Admissibility: Judgment) [1984] ICJ Rep 392, para 73 (hereinafter Nicaragua
Jurisdiction).
¹⁷⁰ Rosalyn Higgins, Problems and Process: International Law and How We Use It (OUP 1994)
240.
¹⁷¹ Chapter 4(II)(A) and (III)(A).
¹⁷² See Claus Kress and Philippa Webb (eds), ‘Symposium of the Crime of Aggression’ (2012) 10
JICJ 1 and Chapter 4(IV)(B).
 III. How the Substance of the Law affects Integration and Fragmentation 175

The type of law applied by a court—treaty or custom—has implications for

the integration or fragmentation of a specific area of law such as genocide, immu-
nities, or use of force. The type of law can also have broader consequences, in
that it can shape the behaviour of the judicial institution itself, including the
extent to which the court is inward-looking or outward-looking and whether it is
concerned with fragmentation or oblivious to it. This impact is most visible with
respect to the international criminal courts. The ICC, for example, operates in a
heavily codified legal environment. It not only applies the detailed ICC Statute,
but also the Rules of Procedure and the Elements of Crimes. The latter two docu-
ments were drafted by the political governing body, the ASP, and not the judges
themselves, which is a departure from the practice of the ad hoc tribunals. In this
context, the ICC may assume that the states undertook the work of integrating
international law when drafting these instruments. Yet, the Statute, the Rules,
and Elements constitute, at most, a snapshot of custom at a particular point in
time which raises the prospect for future fragmentation between the codified
law and the evolution of custom on the ground. Indeed, states explicitly con-
templated future fragmentation and sought to regulate the relationship between
potentially divergent sources when they drafted Article 10 of the Statute:
Nothing in this Part [on Jurisdiction, admissibility and applicable law] shall be interpreted
as limiting or prejudicing in any way existing or developing rules of international law for
purposes other than this Statute.
The determination of where the ICC Statute and customary international law
part company, however, will not always be easy, especially as states implement
the provisions in their national legal systems in keeping with the principle of
complementarity.
The ICC’s emphasis on codification—and by extension, control over what
sources of law the judges can apply—is also seen in the 2010 amendments on the
crime of aggression. The ASP generated not only the text of amendments to the
ICC Statute, but also a resolution on the amendments, additions to the Elements
of Crimes, and a series of ‘understandings’ regarding the amendments.173 The
ICC may also apply ‘the principles and rules of international law’ (which appears
to refer to customary international law), but only after first applying its statutory
instruments.174 Early rulings of the ICC have attached little if any significance to
customary international law.175 The minor role of custom in the legal framework
of the ICC suggests that its development of the law will be incremental rather
than innovative.

¹⁷³ Kampala Review Conference ‘Report of the Working Group on the Crime of Aggression, An-
nexes I, II and III’ (10 June 2010) ICC Doc RC/5.
¹⁷⁴ ICC Statute Art 21.
¹⁷⁵ Schabas, ‘Customary Law’ (n 158) 78, citing a single reference that is in a citation from aca-
demic literature rather than authoritative pronouncement of the Court: Situation in Uganda (Up-
date on Proposed Treatment of All Relevant Documents of the Record and Application for Entry of
176 Explaining Judicial Integration and Fragmentation
In contrast to the ICC, the ICTY and ICTR have made abundant references
to customary international law, using it to interpret, develop, and extend the
rather brief text in their Statutes.176 The Statutes of the ICTY and ICTR are in
fact silent as to the place of customary international law, but the Tribunals have
embraced custom as a source of law on which they can draw, apparently with-
out any prior reference to statutory sources.177 The prominent place of custom
in the judicial practice of the ICTY and ICTR has allowed one of the most
significant innovations in the jurisprudence of the Tribunals: the introduction
of joint criminal enterprise as a mode of liability. The Statutes of the Tribunals
authorize the prosecution of individuals who ‘planned, instigated, ordered, com-
mitted or otherwise aided and abetted in the planning, preparation or execu-
tion of a crime’.178 There is no reference to a form of liability where there is ‘an
understanding or arrangement amounting to an agreement between two or more
persons that they will commit a crime’.179 Yet, the judges of the ICTY developed
the concept in the Furundzija Judgment of 1998, building on the arguments of
the prosecution, and then endorsed and deepened the concept in the 1999 Tadić
Appeals Judgment.180 It has since been a key feature of numerous prosecutions
at the ICTY, including Milošević, and has been applied by the ICTR as well.181
Schabas persuasively argues that the prominence of customary international
law at the ICTY and ICTR has provided those Tribunals with ‘an extraordinary
opportunity for judicial creativity’, and international criminal law as a whole
‘owes much of its dynamism to this openness to judicial activism’.182 With this
dynamism comes the potential for judicial interpretations and developments of
the law that diverge from those of other courts or even other chambers of the
same Tribunal.183

Reasons for Sealing into Public Record) ICC-02/04–01/05, P-T Ch II (14 November 2005) para 8,
fn 3.
¹⁷⁶ See, for example, Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal
on Jurisdiction) IT-94-1, A Ch (2 October 1995) paras 19, 44, 51, 52, 60, 61, 63, 65, 67, 69, 72,
76, 79, 82, 83 (cited in Schabas, ‘Customary Law’ (n 158) 78–79, fn 7).
¹⁷⁷ See, for example, Prosecutor v Barayagwiza (n 129) para 40; Kajelijeli v Prosecutor (Judgment)
ICTR-98-44A-A, A Ch (23 May 2005) para 209. Prosecutor v Simić (Decision on the Prosecution
Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness (Order Releasing ex
parte Confidential Decision of the Trial Chamber—1 October 1999)) IT-95-9-PT, T Ch II (27 July
1999) para 7. The reference to ‘laws and customs of war’ in the Statutes of the Tribunals has also
been a ‘hook’ on which to hang reliance of customary international law.
¹⁷⁸ ICTY Statute Art 7(1); ICTR Statute Art 6(1).
¹⁷⁹ Prosecutor v Krnojelac (Judgment) IT-97-25-T, T Ch II (15 March 2002) para 80.
¹⁸⁰ Prosecutor v Furundzija (Judgment) IT-95-17/1-T, T Ch II (10 December 1998) paras 210–
216; Prosecutor v Tadić (Judgment) IT-94-1-A, A Ch (15 July 1999) paras 188–220.
¹⁸¹ See, for example, Prosecutor v Kayishema/Ruzindana (Judgment) ICTR-95-1-T, T Ch II (21
May 1999) paras 203–205.
¹⁸² Schabas, ‘Customary Law’ (n 158) 99–100.
¹⁸³ For example, the Extraordinary Chambers in the Courts of Cambodia have rejected the ex-
tended form of joint criminal enterprise on the basis of the principle of nullum crimen sine lege: Deci-
sion on the Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise (Decision)
002/19-09-2007-ECCC-OCIJ, P-T Ch (20 May 2010).
 III. How the Substance of the Law affects Integration and Fragmentation 177

The type of law applied by the ICJ has less explanatory force compared to the
international criminal courts. The application of treaty or custom by the ICJ is
contingent on the nature of the case that comes before it and the basis of jurisdic-
tion. In one case the Court may be required to rely on customary international
law,184 whereas another case must be confined to the interpretation of a specific
treaty.185 This means that the Court’s overall behaviour is influenced by more
constant factors, such as its permanence and its place in the UN system, than the
type of law it tends to apply.

B. Level of development
In a similar way to how the use of customary international law provides courts
with greater scope for flexibility and creativity, the relative sparseness of judicial
practice on an area of law also provides space for judicial innovation. If an area of
law has been the subject of extensive judicial practice, later decisions will be easier
to integrate into the existing body of jurisprudence. The amount of judicial prac-
tice on a legal area or issue depends on two factors. The first factor is the rate at
which disputes on that legal area are submitted to judicial settlement. Some legal
areas are usually addressed through non-legal means of dispute settlement, such
as negotiation, enquiry, mediation, conciliation, resort to regional agencies or
arrangements, or other peaceful means of the parties’ choice.186 Disputes regard-
ing the use of force, for example, tend to be addressed bilaterally through diplo-
matic exchanges, in regional fora or in the Security Council. The second factor is
the passage of time. The innovations by the ICTY and ICTR have become pro-
gressively less pronounced over the years; there are fewer novel issues confronting
the judges and the focus has shifted from developing international criminal law
as a whole to completing the work of the Tribunals before specific deadlines and
achieving internal consistency. A legal issue may arise as a result of contemporary
developments, and it takes time for a corpus of court decisions to accumulate, as
we can see with the question of a human rights exception to state immunity.187
As case law on a legal area aggregates, apparent or genuine fragmentation on
a certain issue may transform into integration. This will depend on the degree to
which judges engage in dialogue—the citation, discussion, evaluation, applica-
tion, or rejection of decisions of other courts. In order to integrate an area of law,
there has to be an awareness of the existing points of view. In the law on genocide,
during the early years of the ICTY and ICTR there were divergent approaches to
the definition of the protected group. Some Trial Chambers endorsed a negative
definition (defining the group by who was excluded from it), but over time other

¹⁸⁴ See, for example, Military and Paramilitary Activities (Nicaragua v United States of America)
(Merits: Judgment) [1986] ICJ Rep 14, para 269.
¹⁸⁵ See, for example, Bosnia Genocide (n 57) Judgment.
¹⁸⁶ Based on UN Charter Art 33(1).
¹⁸⁷ Jurisdictional Immunities Judgment (n 167).
178 Explaining Judicial Integration and Fragmentation
Trial Chambers and eventually the Appeals Chamber stated that the group must
be defined positively.188 The ICJ confirmed the positive definition in the Bosnia
Genocide Judgment.189 A similar process occurred with the question whether
membership in a protected group is an objective or subjective concept. After
an interim period during which the ICTR and ICTY reached different conclu-
sions, the ICTY/R Appeals Chamber and the ICJ confirmed that a combined
subjective–objective test is required.190 The existing conflicting jurisprudence on
the test for specific intent for genocide will also probably be resolved over time.
Since the ICJ was concerned with the question of intent from the perspective of
the state not the individual in the Bosnia Genocide Judgment, it did not address
the conflicting approaches in the case law of the ad hoc tribunals.
In the law on immunities there is an increasing amount of case law on a range
of questions, with decisions coming from national courts as well as international
courts. This has led to some areas of integration, such as the nature and scope
of immunity ratione personae.191 Yet, while there is a growing body of case law
overall, there is still a scarcity of judicial practice on certain questions, such as the
potential exception to state immunity for human rights violations. In such a sce-
nario, even one Judgment can create fragmentation or a point of integration. The
Italian Court of Cassation decision in Ferrini was the Judgment that created frag-
mentation. The Italian Court admitted that it was developing international law
and departing from existing custom by finding that there was no state immunity
in the fact of an allegation of forced labour.192 While ‘one swallow does not make
a rule of international law’,193 the potential precedent set by Ferrini led Germany
to bring Italy to the ICJ, and Greece to seek to intervene. In this environment,
the 2012 Jurisdictional Immunities Judgment of the ICJ will likely contribute to
the integration of the law on this topic, especially since the Court undertook a
fairly comprehensive examination of the issue and reached a clear conclusion
supported by a large majority.194
A pattern that emerges from a study of the law on genocide, immunities, and
use of force is that there tends to be greater consensus and integration on core
legal issues and more uncertainty and fragmentation on issues at the periphery.
This is unsurprising since most legal disputes will tend to concern the core legal
issues, and such issues will attract the attention of the judges and occupy the
pleadings of the parties. Core issues will also arise more frequently. Judges will be
aware of a growing body of jurisprudence (at least within their own court) ana-
lysing the issue, and probably seek to locate themselves within it. In the law on

¹⁸⁸ Chapter 2(IV)(A).

¹⁸⁹ Bosnia Genocide Judgment (n 57) paras 194–195.
¹⁹⁰ ibid para 191.
¹⁹¹ Chapter 3(III)(A) and (B).
¹⁹² Ferrini (n 79).
¹⁹³ Jones v Saudi Arabia (n 167) para 22.
¹⁹⁴ Jurisdictional Immunities Judgment (n 167).
 III. How the Substance of the Law affects Integration and Fragmentation 179

genocide, there is broad agreement among the courts on the key features of the
crime: the nature of the protected group, the nature of the destruction, and the
requirement of specific intent. There is fragmentation regarding the precise con-
tours of that specific intent and on how intent may interact with accessory modes
of liability such as complicity.195 In the law on immunities, there is consensus on
the types of immunities and which officials enjoy them, but there is disagree-
ment on which acts are covered by immunity ratione materiae and the specific
question of whether there is an exception to the immunity of officials for human
rights violations.196 Finally, the law on the use of force is integrated on the basic
legal principle governing the use of force and title to territory, but there are signs
of fragmentation on the application of the law to the facts.197 The dearth of case
law on anticipatory self-defence renders the existence and scope of this concept
uncertain, whereas there is a shared understanding on the right to self-defence
once an armed attack has already occurred.

C. Level of controversy and change

Controversy and change both increase the tendency towards judicial fragmenta-
tion, at least in the short term. Case law tends to become unsettled as judges
either avoid legal issues or propose creative solutions adapted to current con-
ditions. Judicial integration can, however, be achieved over time as the body
of jurisprudence grows, and consensus emerges on controversial or cutting-edge
points of law.198
A high level of controversy may lead courts to avoid reaching decisions if not
absolutely required on the facts before them. Several Judgments of the ICJ on the
use of force demonstrate this tendency.199 It may be a matter of judges declining
to decide difficult issues in the belief that political bodies—or the accretion of
state practice—are better suited to resolve such questions.200 However, judges
may also see problems with pronouncing on important legal issues when the
facts or the jurisdictional basis of the case do not require them to make such
findings.201
Changing conditions, whether the impact of globalization, the development of
new weapons, or the rise of non-state actors, also complicate the judging function.

¹⁹⁵ Chapter 2(V)(B).

¹⁹⁶ Chapter 3(IV)(B) and (C).
¹⁹⁷ Chapter 4(II)(C).
¹⁹⁸ This chapter, Section III(B).
¹⁹⁹ Chapter 4(VI).
²⁰⁰ On a different but related point, see the Separate Opinion of Judge Keith, Accordance with
International Law of the unilateral declaration of independence in respect of Kosovo (Advisory Opinion)
[2010] ICJ Rep 1 (stating the ICJ should have exercised its discretion to refuse to answer the ques-
tion which the General Assembly submitted to it because the request was essentially concerned with
the actual exercise of special powers by another organ under the Charter, the Security Council).
²⁰¹ See Oil Platforms (n 20) para 26 (Separate Opinion of Judge Higgins).
180 Explaining Judicial Integration and Fragmentation
Assumptions underlying legal rules or underpinning an existing body of case law
may need to be re-examined and adjusted. International courts face the challenge
of ‘modulating the contradictory demands of rule stability and flexibility’.202 In
general, changing conditions require judges to be more active and creative, as can
be seen in the way courts are grappling with the potential human rights exception
to immunity ratione materiae and state immunity.203
The law on immunities and law on use of force generally have a higher level
of controversy than the law on genocide. Although genocide is a heinous viola-
tion of international law, its actual occurrence is rather rare and the contours
of the crime are relatively clear. There is also universal agreement among states
on the prohibition of genocide.204 A looming controversy may be on the hori-
zon because the International Commission of Inquiry on Darfur held that the
events in the Sudan did not constitute genocide, yet the ICC has since issued an
arrest warrant for the President of Sudan that includes a charge of genocide.205 If
President Al-Bashir ever comes before the ICC, the judges’ analysis of the geno-
cide charge will attract a high level of attention. Nonetheless, this controversy
remains hypothetical for the moment.
The source of the controversy surrounding the law on immunities is the poten-
tial for states and their officials to be held liable in foreign courts, a scenario that
threatens the principle of sovereign equality. Over the decades, there has been
a move from an absolute conception of immunity to a more restricted notion,
but China has recently reaffirmed its adherence to the absolute doctrine and
even within the restrictive doctrine the circumstances in which immunity can be
lifted are not certain. At the same time, the development of substantive norms
of international human rights law and international criminal law have given rise
to obligations to provide a right to remedy and to ensure accountability. Courts
are grappling with the normative conflict between upholding such obligations
while respecting the principle that states must treat each other as equals and not
be subjected to each other’s or a supranational jurisdiction. Layered on top of
this normative conflict are questions about whether a substantive rule (prohi-
bition of human rights violations) can overcome a procedural rule (immunity
from jurisdiction), and whether different considerations apply in civil or criminal
proceedings.206 The judicial practice in this field is very unsettled, especially with
respect to immunity ratione materiae. Divergent decisions are being reached in a
wide range of fora, and even within general approaches (such as the finding of a

²⁰² Danner, ‘When Courts Make Law’ (n 31) 105.

²⁰³ Chapter 3(IV)(C) and (V)(B).
²⁰⁴ The Genocide Convention is one of the most widely ratified international legal instruments
with 141 parties, and its provisions are accepted as customary international law: Reservations to the
Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951]
ICJ Rep 15, 23; Bosnia Genocide Judgment (n 57) para 161.
²⁰⁵ Prosecutor v Omar Hassan Ahmad Al Bashir (Second Warrant of Arrest) ICC-02/05-01/09, P-T
Ch I (12 July 2010).
²⁰⁶ Chapter 3(V)(B).
 III. How the Substance of the Law affects Integration and Fragmentation 181

human rights exception), there are different streams of reasoning.207 An attempt

to codify rules in a UN Convention has not attracted sufficient ratifications to
enter into force, and resolutions by the Institut de droit international reflect the
ambivalence of states.
The law on the use of force similarly invokes deeply held state interests, which
generates a high degree of controversy. One need only point to the decades-long
debates on the crime of aggression.208 While courts concerned with immunities
cases are tackling the normative conflict and reaching decisions (even if they are
sometimes divergent from existing case law), courts addressing the use of force
have expressed more hesitancy.209 This may be due to courts being aware that
the Security Council has the primary role in this field, and being conscious of
leaving space for that body to address the dispute. There is no similar body with
primary responsibility in the realm of immunities. The judicial hesitancy may
also be because the prohibition on the use of force goes to the heart of interna-
tional relations, forming the basis for the UN Charter.210 The ICJ’s pattern of
caution in cases with respect to, for example, the role of non-state actors in armed
conflict and the legality of humanitarian intervention, can be seen as reflecting
the lack of state consensus on these topics. The Court may be seeking to protect
its own legitimacy by not reaching decisions until a uniform and widespread
practice is discernable. At the same time, the ICJ has also shown that controversy
can sharpen analysis. Its treatment of the Nicaragua–Tadić divide demonstrated
this.211 Nonetheless, that question was one that was discrete, addressed in the
pleadings of both parties, and rather theoretical in nature. The question of, for
example, the legality of the use of force against terrorists has proven harder for the
ICJ to address in clear terms.212
Controversy is often associated with change, but the impact of changing con-
ditions on judicial practice has its own distinctive features. An examination of
the case law on genocide, immunities, and the use of force shows that shifts in
underlying conditions tend to promote judicial activity rather than caution. As
Eskridge has argued in the domestic US context, dynamic statutory interpreta-
tion of the law is most appropriate ‘when the relevant texts are old, where a
single legislative purpose is not obvious, and where underlying conditions have
changed’.213 This ‘evolutive’ theory of interpretation suggests that international
courts should adopt a dynamic approach and engage in ‘judicial updating’ of the
relevant laws.214

²⁰⁷ Chapter 3(IV)(C).

²⁰⁸ Chapter 4(IV)(A).
²⁰⁹ Chapter 4(VI).
²¹⁰ UN Charter preambular para 1, ‘to save succeeding generations from the scourge of war’.
²¹¹ Chapter 4(V)(B).
²¹² Chapter 4(III)(A).
²¹³ William N Eskridge Jr, ‘Dynamic Statutory Interpretation’ (1987) 135 UPLR 1479, 1483–
1484.
²¹⁴ ibid. See also Danner, ‘When Courts Make Law’ (n 31) 151.
182 Explaining Judicial Integration and Fragmentation
Some examples of dynamic statutory interpretation can be observed in the
judicial practice on the law on genocide. During the war in the Balkans in the
1990s, a practice was employed of ‘rendering an area ethnically homogeneous by
using force or intimidation to remove persons of given groups from the area’.215
This was labelled ‘ethnic cleansing’ and the General Assembly considered it a
form of genocide.216 Yet the Genocide Convention, adopted in 1946, was silent
as to this practice.217 The ICTY and ICJ have engaged in dynamic statutory inter-
pretation to locate ethnic cleansing in the framework of the law on genocide.
Both judicial bodies have held that whether a particular ethnic cleansing opera-
tion amounts to genocide will depend on the presence or absence of acts listed
in Article II of the Convention, and of the specific intent to destroy the group as
such.218 An integrated, updated approach to the law on genocide was taken by
both courts.
The ICJ also engaged in dynamic statutory interpretation to operationalize
the obligation to prevent genocide, a provision in Article I of the Convention
that had not previously been considered as containing a substantive obligation.
In the Bosnia Genocide Judgment, the ICJ set out the circumstances that trigger
the obligation, the type of action that may be expected, and the fact that it is an
obligation of conduct not result.219 The fleshing out of this obligation reflected
broader developments in international relations, namely debates over the right
to humanitarian intervention inspired by the NATO action in Kosovo,220 the
emerging norm of the responsibility to protect that had been endorsed in the
2005 World Summit Outcome Document,221 and the inclusion of preventive
duties in specific treaties.222 This development of the law by the ICJ has not yet
come before another international court, but given the permanence of the ICJ

²¹⁵ Commission of Experts ‘Interim Report of the Commission of Experts’ UN Doc S/35374
(1993) para 55.
²¹⁶ UNGA Res 47/121 (18 December 1992) UN Doc A/Res/47/121, preamble.
²¹⁷ In fact, a proposal during the drafting of the Convention to include in the definition ‘measures
intended to oblige members of a group to abandon their homes in order to escape the threat of
subsequent ill-treatment’ was not accepted: A/C.6/234 (15 October 1948).
²¹⁸ Bosnia Genocide Judgment (n 57) para 190; Prosecutor v Krstić (Judgment) IT-98-33-T, T Ch
I (2 August 2001) para 562
²¹⁹ Chapter 2(V)(C).
²²⁰ Louis Henkin, ‘Kosovo and the Law of “Humanitarian Intervention”’ (1999) 93 AJIL 824;
Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (OUP
2001).
²²¹ UNGA Res 60/1 (24 October 2005), ‘World Summit Outcome’, UN Doc A/Res/60/1, paras
138–139.
²²² See, for example, Torture Convention Art 2; Convention on the Prevention and Punishment
of Crimes against Internationally Protected Persons, including Diplomatic Agents (adopted 14 De-
cember 1973, entered into force 20 February 1977) 1035 UNTS 167, Art 4; Convention on the
Safety of United Nations and Associated Personnel (adopted 9 December 1994, entered into force
15 January 1999) 2051 UNTS 363, Art 11; International Convention on the Suppression of Ter-
rorist Bombings (adopted 15 December 1997, entered into force 23 May 2001) 2149 UNTS 256,
Art 15; listed in the Bosnia Genocide Judgment (n 57) para 429.
 III. How the Substance of the Law affects Integration and Fragmentation 183

and its status in the UN system, it is likely that its ‘judicial updating’ of the
obligation will perform an integrative function.
Whereas the law on genocide has been subject to change in specific ways, the
law on immunities is undergoing more significant changes. Nearly the entire
body of law is in transition with the nature and scope of immunity ratione mate-
riae and state immunity being the subject of dialogue and conflict among inter-
national as well as national courts. Applying Eskridge’s theory, the problem is not
so much the age of the text, but rather the absence of a comprehensive treaty on
the topic. As explained above, the law on immunities is largely governed by cus-
tomary international law.223 It is also hard to identify a ‘single legislative purpose’
or indeed a ‘single purpose’ underlying the law on immunities. The feature of the
law is the balance between state sovereignty and accountability, a balance that
shifts according to the nature of the case, the identity of the forum court, and
the interests of the various parties, including national governments. Moreover,
the conditions that underpinned state immunity several decades ago have shifted
as the state engages in more private activity and outsources public functions to
private entities. The meaning of acte jure imperii and acte jure gestionis is continu-
ously changing as it reflects the shifting priorities of society.224 The rationale for
the immunity of state officials is being challenged by the obligations imposed
under international human rights law and the removal of immunity under cer-
tain treaties and the statutes of international criminal courts. Judging immunities
cases requires a dynamic approach, which in turn can lead to fragmentation as
courts take divergent paths on similar legal questions.
The law on the use of force is also in a period of transition. The circumstances
in which force is used are changing. Whereas the UN Charter assumes armed
conflict is inter-state in nature, the contemporary reality is that most conflicts
are non-international and involve a variety of non-state actors.225 There is also
the complexity of how these non-state actors may or may not relate to state
structures.226 In addition, the structures for decision-making on the legality of
the use of force are also becoming more complex and diffuse. The ICJ has been
joined by the international criminal courts and ad hoc arbitral bodies. The cri-
teria for Eskridge’s theory—old texts, unclear legislative purpose, and changing
conditions—are all present in this area of the law. Yet, the judicial practice on the
use of force exhibits more caution than dynamism. This is due to the controversy
of the questions involved as well as the constraints imposed by courts’ jurisdic-
tion and functions.227 The dynamism is more visible in Separate Opinions that
have, for example, sought to develop a theory of lawful defensive actions against

²²³ This chapter, Section III(A).

²²⁴ Chapter 3(V)(A).
²²⁵ Chapter 4(I).
²²⁶ An example would be the relationships of Hezbollah to Lebanon, Iran, and Syria.
²²⁷ This chapter, Section II(B).
184 Explaining Judicial Integration and Fragmentation
terrorists operating on the territory of states lacking government authority.228 The
judicial practice on the use of force aptly illustrates how the factors explored in
this chapter interact with each other. In this area of law, the potential dynamism
created by the changing conditions is impeded by concern over controversy and
the identity of the courts. This situation inhibits fragmentation generated by
divergent interpretations, but it can also create uncertainty due to the vagueness
or avoidance of judicial pronouncements.

IV. How the Procedure of the Court affects Integration and

Fragmentation
A. Fact-finding and evidence
The procedures related to evidence influence the extent of judicial integration
or fragmentation in a manner that is perhaps less visible than the identity of
the court or the substance of the area of law. Yet, the fact-finding ability of a
court, its approach to proof, and its treatment of evidence shape the judicial
decision-making in important ways. Two courts may reach different legal conclu-
sion on the same legal issue as a result of disparate approaches to the facts of the
case. For example, the availability of a broad range of evidence (forensic material,
witness testimony, investigative reports, expert evidence) may enable one court
to reach comprehensive conclusions whereas another court is dependent on what
the parties present in their pleadings. In another situation, a court may reach
a conclusion without specifying a standard of proof whereas another court is
required to test evidence against an express and stringent standard.
The ICJ and the international criminal courts possess different fact-finding
abilities as a result of their functions. Findings of fact for a criminal court neces-
sarily entail different procedures from those in a civil court. The ICTY, ICTR,
and the ICC investigate and prosecute persons accused of serious international
crimes and they have detailed pre-trial, trial, and appeal procedures for determin-
ing individual criminal responsibility.229 In contrast, the ICJ is a court for deter-
mining international law, as it applies to states. It largely relies on the parties,
sovereign states, to present and organize the evidence.230 According to its Statute
and Rules, the ICJ has rather extensive fact-finding abilities. The Court can itself
call witnesses under Article 62 of the Rules, appoint experts under Article 50 of
the Statute, and arrange for an enquiry or expert opinion under Article 67 of the

²²⁸ Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda)
(Merits: Judgment) [2005] ICJ Rep 168, paras 30–31 (Separate Opinion of Judge Kooijmans, paras
11–13 and Separate Opinion of Judge Simma).
²²⁹ Richard May and Marieke Wierda, International Criminal Evidence (Transnational Publishers
2003).
²³⁰ See generally Hugh Thirlway, ‘The International Court of Justice 1989–2009: At the Heart of
the Dispute Settlement System?’ (2010) LVII NILR 347.
 IV. How the Procedure of the Court affects Integration and Fragmentation 185

Rules of Court.231 Yet, in practice, these procedures are rarely, if ever, employed.
There has never been a case where witnesses appeared having been called by the
Court itself, and there have been only two cases where Court-appointed experts
have been used.232
Cases where the parties have called witnesses are almost as rare at the ICJ,
whereas they are a constant feature of every case before international criminal
courts. Only ten cases at the ICJ have involved the live testimony of witnesses
or experts, and there was a gap of fourteen years between the last case in which
witnesses were called and the Bosnia Genocide case.233 In that case, the applicant
called two experts, and the respondent called six witnesses and one witness-expert
who were examined and cross-examined in court. In the event, the witness tes-
timony played a minor role in the final Judgment, thus reinforcing the ICJ’s
traditional practice of deciding cases based on documentary evidence submitted
by the parties as annexes to the written pleadings.234 Even where the evidence is
highly technical, the ICJ considers it part and parcel of the role of the judge to
interpret and evaluate that evidence.235
The Bosnia Genocide Judgment illustrates some of the challenges associated
with the ICJ’s reliance on the parties for production of evidence. The Judgment
has attracted criticism for the Court’s failure to request unredacted versions of the

²³¹ Rules of Court Art 66 (added in 1978) introduced the possibility of ‘visits in situ’ by the Court,
either proprio motu or at the request of its party. It was intended that these visits would be to collect
evidence, but on the sole occasion a visit has been undertaken (the Gabcicovo-Nagymaros (Hungary/
Slovakia) (Merits: Judgment) [1997] ICJ Rep 7), it was instead for information. See Judge Rosalyn
Higgins, President of the ICJ, ‘Speech to the Sixth Committee of the General Assembly—Judicial
Determination of Facts’ (2 November 2007) (hereinafter Higgins, Judicial Determination of Facts).
²³² At the PCIJ: Factory at Chorzów (Germany v Poland) (Merits) PCIJ Rep Series A No 17 and
at the ICJ: Corfu Channel case (United Kingdom v Albania) (Merits: Judgment) [1949] ICJ Rep 4.
In the latter case, the ICJ appointed a commission of experts under Art 67 of the Rules to make
an independent study of facts in dispute between the parties, which were necessary for the Court’s
decision on the merits. Later, the Court requested from the commission an expert evaluation of the
damage sustained by the Applicant in order to assess the quantum of compensation to be paid. See
Higgins, Judicial Determination of Facts (n 231).
²³³ Corfu Channel case (n 232); Temple of Preah Vihear (Cambodia v Thailand) (Merits: Judgment)
General List No 45 [1962] ICJ 4; South West Africa (Ethiopia v South Africa; Liberia v South Africa)
(Second Phase: Judgment) [1966] ICJ Rep 6; Continental Shelf (Tunisia/Libyan Arab Jamahiriya)
(Merits: Judgment) [1982] ICJ Rep 18; The Delimitation of the Maritime Boundary of the Gulf of
Maine (Canada/United States of America) (Judgment) [1984] ICJ Rep 246, 299 (hereinafter Gulf of
Maine); Continental Shelf (Libyan Arab Jamahiriya/Malta) (Merits: Judgment) [1985] ICJ Rep 13;
Military and Paramilitary Activities (Nicaragua v United States of America) (Merits: Judgment) [1986]
ICJ Rep 14; Elettronica Sicula S.p.A. (ELSI) (United States of America v Italy) (Judgment) [1989] ICJ
Rep 15; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening)
(Judgment) [1992] ICJ Rep 351; Bosnia Genocide Judgment (n 57).
²³⁴ For a comprehensive study, see Anna Riddell and Brendan Plant, Evidence before the Interna-
tional Court of Justice (British Institute of International and Comparative Law 2009). See also Ruth
Teitelbaum, ‘Recent Fact-Finding Developments at the International Court of Justice’ (2007) 6
LPICT 119.
²³⁵ Compare the different views expressed in the Separate Opinions of Judges Keith and Green-
wood and of Judges Al-Khasawneh and Simma in the case concerning Pulp Mills on the River Uru-
guay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14.
186 Explaining Judicial Integration and Fragmentation
minutes of the former Yugoslavia’s Supreme Defence Council meetings around
the time of the Srebrenica massacre.236 Serbia justified the redaction of some
sections of the minutes because of their relevance for ‘defence purposes’ and as
a result of requests of the ICTY Trial Chamber in the Milošević case concerning
protective measures pursuant to Rule 54bis of that Tribunal’s Statute.237 There
has been speculation that the minutes would have enabled the ICJ to draw the
link between Serbia’s leadership and the genocide in Srebrenica.238 This was a link
that the ICJ was not able to draw on the evidence before it.239 The large degree
of party control over fact-finding at the ICJ cannot be overlooked in this case.
Although the case had been on the docket for thirteen years, Bosnia’s agents who
raised the issue of the unredacted minutes on the eve of the second round of oral
hearings, and after the decision of the Court not to call upon Serbia to produce
those documents at that stage of proceedings,240 did not press further for pro-
duction. In the event, the factual findings in the Bosnia Genocide Judgment—in
particular, the finding that genocide occurred in Srebrenica in 1995—are inte-
grated with the factual findings that the ICTY has made until now. If Slobodan
Milošević had not died before the completion of his trial and had been convicted
of genocide in Srebrenica (and perhaps in other areas), this would have contra-
dicted and undermined the ICJ’s failure to find the Serb leadership responsi-
ble for Srebrenica in the Bosnia Genocide Judgment. This outcome may yet be
reached, depending on the result in the pending case against Radovan Karadžić
at the ICTY, who is accused of committing genocide in Srebrenica.
The case law on the use of force at the ICJ has also highlighted the limitations
on the Court’s fact-finding ability. In Nicaragua, for example, the Court faced
specific difficulties in establishing the facts of the dispute: the non-appearance of
the United States, the secrecy surrounding certain conduct, and the fact that the
conflict was ongoing during the judicial proceedings.241 In Oil Platforms, Judge
Owada commented on the ‘asymmetry’ in the production of evidence by the
parties, which required, in his view, ‘the Court to take a more proactive stance
on the issue of evidence and that of fact-finding in the present case’.242 When the
Court’s reliance on the parties for fact-finding results in it only receiving a partial
or skewed picture of the facts underlying the dispute, the risk of fragmentation is

²³⁶ Richard Goldstone and Rebecca Hamilton, ‘Bosnia v. Serbia: Lessons from the Encounter of
the International Court of Justice with the International Criminal Tribunal for the Former Yugosla-
via’ (2008) 21 LJIL 95, 107–110.
²³⁷ ICJ CR 2006/3, 26 et seq for Bosnia’s request, and CR 2006/43, 27 et seq for Serbia’s justifica-
tion.
²³⁸ Andrea Gattini, ‘Evidentiary Issues in the ICJ’s Genocide Judgment’ (2007) 5 JICJ 889.
²³⁹ Bosnia Genocide Judgment (n 57) paras 205–206.
²⁴⁰ ibid para 44.
²⁴¹ Nicaragua Jurisdiction (n 169) 57–58. See criticism para 322 of the Dissenting Opinion of
Judge Schwebel. See McKeever, ‘The Contribution of the International Court of Justice to the Law
on the Use of Force: Missed Opportunities or Unrealistic Expectations?’ (n 22) 387.
²⁴² Oil Platforms (n 20) para 47 (Separate Opinion of Judge Simma).
 IV. How the Procedure of the Court affects Integration and Fragmentation 187

heightened. This type of fragmentation is not just with respect to points of law,
but also related to the legal assessment of particular situations. Sometimes, of
course, the parties may conduct their fact-finding in a comprehensive and proper
manner. The copious evidence submitted by the parties in the Congo v Uganda
case enabled the Court to engage in in-depth factual analysis.243 However, the
quality of the evidence coming before the ICJ remains a function of what the
parties decide to present, with the Court unwilling to use its statutory powers to
engage in its own fact-finding.
The ICC, ICTY, and ICTR have much more control over the production of
evidence. Each court possesses an ‘Office of the Prosecutor’ that includes a large
Investigations Division. Yet, the courts rely on state cooperation, especially when
gathering evidence in the field. The ICC prosecutor has repeatedly drawn the
Security Council’s attention to Sudan’s lack of cooperation in the investigation
into the situation in Darfur.244 The inability of international criminal courts to
gather evidence—when combined with their strict rules on standard of proof,
discussed below—can change the outcome of a case. If the same legal issue comes
before two courts, with different evidence available before each institution, the
risk of fragmentation is apparent.
Apart from fact-finding, the differing approaches to burden of proof and
standard of proof within and between the various courts may impact on inte-
gration or fragmentation. At the ICTY, ICTR, and ICC, the burden of proof
is on the prosecution, save perhaps for defences and the proof of mitigating cir-
cumstances at sentencing.245 For the ICJ, a party alleging a fact bears the bur-
den of proving it. Sometimes each party will bear that burden, albeit in relation
to different claims.246 This simple rule can become quite complicated in prac-
tice, including in the way it interacts with inferences. The ICJ has occasionally
had recourse to judicial inferences, on the basis of circumstantial evidence, as a

²⁴³ Congo v Uganda (n 228) paras 181–221. For a different view, see Simone Halink, ‘All Things
Considered: How the International Court of Justice Delegated Its Fact-Assessment to the United
Nations in the Armed Activities Case’ (2008) 40 NYUJILP 13.
²⁴⁴ See, for example, Luis Moreno Ocampo, Prosecutor of the ICC, ‘Twelfth Prosecutor’s State-
ment to the United Nations Security Council on the situation in Darfur, the Sudan, pursuant to UN
Security Council Resolution 1593 (2005)’ (10 December 2010) (confirming that the Government
of the Sudan is not cooperating with the Court).
²⁴⁵ See, for example, ICC Statute Art 66(2) (‘The onus is on the Prosecutor to prove the guilt of the
accused’) and Art 67(1)(i) (the rights of the accused include ‘[n]ot to have imposed on him or her
any reversal of the burden of proof or any onus of rebuttal’). See William A Schabas, ‘Article 66’ in
Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observer’s
Notes, Article by Article (2nd edn, Hart and Nomos Publishing 2008).
²⁴⁶ For example, in Ahmadou Sadio Diallo (Guinea v Democratic Republic of the Congo) (Prelimi-
nary Objections: Judgment) [2007] ICJ Rep 582, para 44, the ICJ explained it is incumbent on the
applicant claiming diplomatic protection to prove that local remedies were exhausted or to establish
that exceptional circumstances relieved the allegedly injured person whom the applicant seeks to
protect of the obligation to exhaust available local remedies. It was for the respondent to show that
there were effective remedies in its domestic legal system that were not exhausted. See also C F Am-
erasinghe, Evidence in International Litigation (Brill 2005) 61–72.
188 Explaining Judicial Integration and Fragmentation
method of determining whether the burden of proof has been displaced. In the
Corfu Channel Judgment, for example, the Court concluded that the burden of
proof concerning the Albanian government’s knowledge of the laying of mines
had been met due to its territorial control over the area.247 Yet, in the Congo v
Uganda case, the Court placed the burden of proof on Uganda to show that the
Congo was in a position to exercise control over its borders. Judge Kooijmans
observed that the burden of proof should have been on the Congo to show what
efforts it had made towards controlling the rebel groups.248 Thus, whereas in the
Corfu Channel case, the ICJ found that Albania’s territorial control and silence
regarding mine-laying indicated knowledge on its part, in Congo v Uganda, the
Court did not draw any inferences from silence as indicating knowledge, and
whether such knowledge could have indicated responsibility for rebel forces.249
These inconsistent approaches raise the risk of fragmentation not only between
the ICJ and other courts, but also within the ICJ itself.
As regards standard of proof, the law on genocide is an apt field for exploring
the contrast between the ICJ and the international criminal courts. The standard
at the international criminal courts is transparent: proof beyond reasonable doubt.
The ICC Statute explicitly states that ‘the Court must be convinced of the guilt of
the accused beyond reasonable doubt’.250 The Statutes of the ICTY and ICTR are
silent as to standard of proof, but the standard of ‘beyond reasonable doubt’ was
adopted by the judges in the Rules of Procedure without any controversy.251
Establishing the standard of proof for state responsibility has been more con-
voluted at the ICJ for two reasons. First, the Court’s role in deciding disputes
between states on a huge range of potential international law questions252 has
made it reluctant to specify a global standard of proof. Its prime objective appears
to have been to retain freedom in evaluating evidence, relying on the facts of
each case.253 Even in particular cases, the ICJ has been hesitant to lock itself into

²⁴⁷ Corfu Channel case (n 232) 18–19. See also McKeever, ‘The Contribution of the International
Court of Justice to the Law on the Use of Force’ (n 22) 390–391.
²⁴⁸ Congo v Uganda (n 228), para 83 (Separate Opinion of Judge Kooijmans).
²⁴⁹ Teitelbaum (n 234) 137.
²⁵⁰ ICC Statute Art 66(3).
²⁵¹ International Criminal Tribunal for the former Yugoslavia, ‘Rules of Procedure and Evidence’
(adopted pursuant to Article 15 of the Statute of the Tribunal, entered into force 14 March 1994)
UN Doc IT/32/Rev.7, rule 87; International Criminal Tribunal for Rwanda, ‘Rules of Procedure
and Evidence’ (adopted pursuant to Article 14 of the Statute of the Tribunal, entered into force 29
June 1995) UN Doc ITR/3/REV.1, rule 87. For case law, see, for example, Prosecutor v Martić (Judg-
ment) IT-95–11-A, A Ch (8 October 2008) para 55; Prosecutor v Ntagerura and others (Judgment)
ICTR-99-46-A, A Ch (7 July 2006) paras 174–175; Prosecutor v Halilović (Judgment) IT-01–48-A,
A Ch (16 October 2007) para 125; Kayishema/Ruzindana Trial Judgment (n 181) paras 233–234.
²⁵² According to ICJ Statute Art 36(2), the Court’s jurisdiction extends to all legal disputes con-
cerning treaty interpretation, any question of international law, the existence of any fact which, if
established, would constitute a breach of an international obligation, and the nature or extent of the
reparation to be made for the breach of an international obligation.
²⁵³ Mojtaba Kazazi, Burden of Proof and Related Issues: A Study of Evidence before International
Tribunals (Kluwer Law International 1996) 323.
 IV. How the Procedure of the Court affects Integration and Fragmentation 189

a standard of proof. In the Oil Platforms case, the Court did not set a standard
of proof, simply saying that the evidence available on a certain matter was
‘insufficient’ without specifying by which criteria sufficiency/insufficiency was
being tested.254 Second, the diverse composition of the bench leads to different
approaches. As Former President Rosalyn Higgins has explained, ‘[p]art of this
reluctance to be specific is caused by the gap between the explicit standard-setting
approach of the common law and the ‘intime conviction du juge’ familiar under
civil law’.255 The ICJ has judges coming from both civil and common law coun-
tries, in keeping with the requirement that the bench represent ‘principal legal
systems of the world’.256
Nonetheless, the ICJ did establish a standard of proof for state responsibility
for genocide in the Bosnia Genocide Judgment.257 This may have been aided by the
fact that both parties made submissions on this point. Bosnia and Herzegovina
argued in favour of a ‘balance of probabilities’ standard, emphasizing that the mat-
ter was not one of criminal law. Serbia contended that the proceedings involved
‘the most serious issues of state responsibility’ that required proof ‘as to leave no
room for reasonable doubt’.258 The Court, referring back to the first contentious
case it decided,259 stated that ‘charges of exceptional gravity’ required ‘evidence
that is fully conclusive’. This standard was applied to allegations that the crime of
genocide or other acts in Article III of the Convention (conspiracy, incitement,
attempt, complicity) had been committed as well as to the proof of attribution
for such acts.260 In respect of the claims related to the obligations to prevent and
punish genocide, the Court required ‘a high level of certainty appropriate to the
seriousness of the allegation’.261
The different standards of proof employed by the ICJ and international crimi-
nal courts are rational, given the different roles and methodologies of these judicial
institutions.262 Moreover, the ICJ’s standard is limited to state responsibility and
leaves the classic ‘beyond reasonable doubt’ standard undisturbed for individual
criminal responsibility. The ‘fully conclusive’ standard is neither higher nor lower
than ‘beyond reasonable doubt’; ‘it is a comparable standard, but using terminol-
ogy more appropriate to a civil, international law case’.263 It would seem that these
different standards can co-exist. The risk of fragmentation springs not from the

²⁵⁴ Oil Platforms (n 20) para 234 (Separate Opinion of Judge Higgins).
²⁵⁵ Higgins, Judicial Determination of Facts (n 231).
²⁵⁶ ICJ Statute Art 9.
²⁵⁷ It had also been more explicit in other recent cases, such as Congo v Uganda (n 228).
²⁵⁸ Bosnia Genocide Judgment (n 57) para 208.
²⁵⁹ Corfu Channel case (n 232) 17.
²⁶⁰ Bosnia Genocide Judgment (n 57) para 209.
²⁶¹ ibid para 210.
²⁶² cf criticism of the ICJ’s ‘shifting standards of proof ’ in Amabelle C Asuncion, ‘Pulling the Stops
on Genocide: the State or the Individual?’ (2009) 20 EJIL 1195, 1206–1209.
²⁶³ Higgins, Judicial Determination of Facts (n 231) (emphasis in original) cf Anja Seibert-Fohr,
‘State Responsibility for Genocide under the Genocide Convention’ in Paola Gaeta (ed), The UN
Genocide Convention: A Commentary 349 (OUP 2009).
190 Explaining Judicial Integration and Fragmentation
differing standards of proof, but from the tendency of the ICJ to avoid specifying
a standard of proof, as it has failed to do in earlier cases.264 This tendency has also
been observed in arbitral tribunals dealing with inter-state conflicts.265
The extent of evidence that comes before a court, and the procedures and
standards that the court has for assessing that evidence can be very important
factors for influencing integration or fragmentation. The problem is not so much
the differing rules among the courts, but the degree of party control that is exer-
cised and the clarity with which courts explain and apply their procedures. As
O’Connell has observed in the context of the law on the use of force, ‘[r]ules
regulating the use of force need to be as clear as possible and so do the rules that
support the substantive principles, such as . . . the law on evidence—the clearer
the rules, the less discretion available to states, and the greater the chance of actu-
ally restraining the use of force in international law’.266 The same sentiment may
be applied to other areas of international law.

B. Drafting and reasoning process

All the international courts considered in this book are composed of judges and
staff members from a range of nationalities and legal backgrounds.267 Judges may
come from careers as diplomats, foreign ministers, senior officials in international
organizations, academics, high-level practitioners, or as judges from national,
regional, or other international courts. This diverse group of people then has to
work within a legal framework that is itself a combination of legal traditions. The
statutes of each international court blend aspects of common law and civil law,
producing sui generis procedures.268 Assessing the impact of this environment on
the drafting and reasoning processes of the courts is not straightforward, given the
secrecy that surrounds the preparation of judgments.269 Nonetheless, on the basis
of the limited available information, and through inferences drawn from the style
and content of judgments, some conclusions may be drawn about the impact of
the drafting and reasoning process on judicial integration and fragmentation.

²⁶⁴ See, for example, the criticisms of Judge Higgins, Judge Buergenthal, and Judge Owada in their
Separate Opinions in Oil Platforms (n 20).
²⁶⁵ The EECC ignored the issue of standard of proof in the Jus ad Bellum Award (n 43); Christine
Gray, ‘The Eritrea/Ethiopia Claims Commission Oversteps its Boundaries: A Partial Award?’ (2006)
17 EJIL 699, 715.
²⁶⁶ Mary Ellen O’Connell, ‘Rules of Evidence for the Use of Force in International Law’s New Era’
(2006) 100 ASIL Proc 44, 44.
²⁶⁷ See, for example, ICJ Statute Art 9: ‘At every election, the electors shall bear in mind not only
that the persons to be elected should individually possess the qualifications required, but also that
in the body as a whole the representation of the main forms of civilization and of the principal legal
systems of the world should be assured.’
²⁶⁸ See, for example, Mirjan Damaška, ‘Problematic Features of International Criminal Procedure’
in Antonio Cassese and others (eds), The Oxford Companion to International Criminal Law 175
(OUP 2009) 175–186.
²⁶⁹ ICJ Statute Art 54(3): ‘The deliberations of the Court shall take place in private and remain
secret.’
 IV. How the Procedure of the Court affects Integration and Fragmentation 191

Of all the courts, the ICJ has the most collegial and thorough drafting process,
which reflects the nature of its cases (complex inter-state disputes) and its status
as the principal judicial organ of the UN. The Court’s drafting process is set
out in its resolution concerning its internal judicial practice,270 but this does not
present the entire picture. Some insights into the practice may be gained from
the writings of various judges and senior officials.271 It is worth describing this
practice in some detail to emphasize the fact that every judge is involved at every
phase of the drafting process—a practice that appears to be unique among inter-
national courts.
At the end of the hearings in a case, a first collective deliberation is held when
the judges consider a list of key legal questions (the List of Issues) prepared by the
President with the assistance of the Registry.272 This meeting tends to be brief,
without extensive discussion or debate. If it is a case on the merits, judges will
then have a period of weeks to prepare a draft opinion or Note that is translated
and distributed to every judge.273 Notes are dispensed with for proceedings on
preliminary objections. Having read and digested each other’s views, the judges
meet for deliberations on the case, which may last between several days on a
request for Provisional Measures or several weeks for a complex case on the mer-
its.274 Each judge is called upon by the President, in reverse order of seniority, to
present his or her views on the case. After each presentation, other judges may ask
questions and seek clarifications. At the end of the deliberations, the President sets
out the areas of consensus and disagreement and where the majority view appears
to lie. Two judges in the nascent majority are elected by secret ballot; they form a
drafting committee that is chaired by the President.275 Assisted by a small number
of legal officers and the Registrar, the drafting committee prepares a preliminary
draft judgment that is circulated to the judges.276 Unlike the international crimi-
nal courts, the judges draft the Judgment themselves, relying on legal officers for
specific legal research and the preparation of factual analysis or summaries, but
not for early drafts of the substance of the Judgment.277 Judges submit stylistic

²⁷⁰ International Court of Justice, Resolution Concerning the Internal Judicial Practice of the Court,
Rules of Court (adopted 12 April 1976) (hereinafter Resolution Concerning Internal Judicial Practice).
²⁷¹ See, for example, Robert Y Jennings, ‘The Role of the International Court of Justice’ (1998) 68
BYIL 1; Hugh Thirlway, ‘The Drafting of ICJ Decisions: Some Personal Recollections and Observa-
tions’ (2006) 5 Chinese JIL 15; Raymond Ranjeva, ‘La Genèse d’un arrêt de la Cour internationale
de Justice’ in C Apostolidis (ed), Les arrêts de la Cour internationale de Justice 83 (Editions Univer-
sitaires de Dijon 2005); Rosalyn Higgins, ‘Introduction to Part 9: The Judicial Years’ in Rosalyn
Higgins (ed), Themes and Theories; Selected Essays, Speeches and Writings in International Law 1037
(Vol 1, OUP 2009); Kenneth J Keith, ‘Resolving International Disputes: The Role of Courts’ (2009)
7 NZYIL 255, 263–264.
²⁷² Resolution on Internal Judicial Practice Art 3.
²⁷³ ibid Art 4.
²⁷⁴ ibid Art 5.
²⁷⁵ ibid Art 6.
²⁷⁶ ibid Art 7.
²⁷⁷ Judge Rosalyn Higgins, President of the ICJ, ‘Speech to the General Assembly of the United
Nations’ (26 October 2006).
192 Explaining Judicial Integration and Fragmentation
and substantive amendments that are considered by the drafting committee. The
judges reconvene for a ‘First Reading’ during which the draft Judgment is read
aloud paragraph by paragraph in both English and French. Any judge may com-
ment after each paragraph is read. At the end of First Reading, judges must signal
their intention to write a Separate or Dissenting Opinion.278 These Opinions are
circulated and may impact on the drafting of the Judgment.279 After the drafting
committee amends the draft Judgment in the light of the discussion at the First
Reading, a Second Reading is convened during which the draft is considered
page by page. At the end of this process, judges place their votes for the purpose
of the dispositif.280
Several features of this drafting process facilitate integration, both with the
decisions of other international courts and among the decisions of the ICJ itself.
The three main collective meetings—deliberations, First Reading, and Second
Reading—ensure that judges are aware of each other’s views and are unlikely to
pursue a tangential or idiosyncratic point.281 These collective meetings ensure
careful consideration of the entire Judgment, and the opportunity for every
judge, not just those in the majority, to express his or her point of view. The abil-
ity of each judge to participate also reinforces continuity within the ICJ where
five judges come up for election every three years;282 those judges with institu-
tional knowledge are able to express their views even if they are not on the draft-
ing committee. Equally, judges who have come from other courts, or who simply
have knowledge of the work of other courts, are able to share relevant informa-
tion with their colleagues. The drafting process, in particular the consideration
paragraph by paragraph and then page by page in both French and English,
also nurtures an incredible attention to detail. Few factual or linguistic errors are
made and there is a heightened awareness of the meaning of words.
At the same time, the drafting process may dilute or obscure points of law
in order to solidify consensus or achieve a majority, which increases the risk of
fragmentation. Controversial points that are not central to the disposition of the

²⁷⁸ Resolution on Internal Judicial Practice Art 7.

²⁷⁹ As former President of the ICJ, Sir Robert Jennings observed ‘some of the most cogent and
effective passages in separate opinions or dissents may never see the light of day, because they have,
at an earlier stage, fully accomplished their work in modifying the judgment itself ’: Robert Y Jen-
nings, ‘The Collegiate Responsibility and the Authority of the International Court of Justice’ in
Yoram Dinstein (ed), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne
343 (Martinus Nijhoff Publishers 1989) 350. See also III Shabtai Rosenne, The Law and Practice of
the International Court 1920–2005 (4th edn, Martinus Nijhoff Publishers 2006) 1530–1531, who
explains that ‘[t]he fact that certain ideas only appear in a separate opinion does not mean that the
Court as a whole rejected them. Its significance is that the Court did not find it necessary to base its
decision on them—quite different’.
²⁸⁰ Resolution on Internal Judicial Practice Art 8.
²⁸¹ W E Thomas, The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles (CUP
2005) 244.
²⁸² ICJ Statute Art 13. Often, some of these judges are re-elected to the Court so the turnover is
fewer than five judges every three years.
 IV. How the Procedure of the Court affects Integration and Fragmentation 193

case may be avoided, as can be observed in some of the ICJ’s cases on the use of
force and the Bosnia Genocide Judgment’s treatment of complicity in genocide.283
The fullness and cogency of the Court’s reasoning may be sacrificed for brief
statements of the law.284 The precise source of its conclusions may be glossed over.
In the Wall Advisory Opinion, the ICJ stated several times that on the ‘material
before it’, it reached the conclusion that certain actions by Israel were not pro-
portionate to the aims pursued, and thus amounted to violations of international
law.285 In his Declaration Judge Buergenthal observed that the Court did not
actually provide any details about the ‘material before it’, let alone a detailed
assessment of proportionality and necessity: ‘the Court says that it is “not con-
vinced”, but fails to demonstrate why it is not convinced, and that is why these
conclusions are not convincing’.286 Judge Higgins has also criticized the Court’s
lack of clarity as to sources of evidence and standards of proof.287 In the same
vein, even though the ICJ may refer to case law of other courts in its delibera-
tions, it rarely cites such jurisprudence in its Judgments.288 Most references to
other courts appear in Separate or Dissenting Opinions. This reluctance to cite
other cases undermines judicial dialogue among the courts and hides factors that
may have played important roles in the deliberations on a case, including the
ICJ’s understanding of those other decisions and of the relationship of its judg-
ment in the case to those other decisions.
The ICTY, ICTR, and ICC have a more streamlined and faster-paced drafting
process than the ICJ. Judges may work on their own (if sitting as single judge)
or in chambers of three or five judges. Unlike the ICJ, the international criminal
courts rely heavily on their staff members for the drafting of motions, orders,
and Judgments. Each judge is generally assigned an Associate Legal Officer or
Legal Officer and the chamber itself is usually supported by a team of lawyers.
To give some indication, at the end of 2009, the ICTY had twenty-eight judges
and sixty-nine professional legal staff assigned to ‘judicial support services’.289
Although some judges prefer to draft their own decisions, the widespread practice

²⁸³ Chapter 4(VI) and Chapter 2(V)(B).

²⁸⁴ Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals (3rd
edn, Sweet & Maxwell 1957) 32. But cf Christian Tams and Antonious Tzanakopoulos, ‘Barcelona
Traction at 40: The ICJ as an Agent of Legal Development’ (2010) 23 LJIL 781, who argue that
even where the ICJ’s pronouncements are remarkably brief or debatable, they may very well shape
the law (796).
²⁸⁵ Wall Advisory Opinion (n 50) paras 135, 137, 140. McKeever, ‘The Contribution of the Inter-
national Court of Justice to the Law on the Use of Force’ (n 22) 389.
²⁸⁶ Wall Advisory Opinion (n 50) para 7 (Declaration of Judge Buergenthal).
²⁸⁷ Wall Advisory Opinion (n 50) para 40 (Separate Opinion of Judge Higgins). Oil Platforms
(n 20) paras 30–39 (Separate Opinion of Judge Higgins).
²⁸⁸ Andre Nollkaemper, ‘The Role of Domestic Courts in the Case Law of the International Court
of Justice’ (2006) 5 Chinese JIL 301 (hereinafter Nollkaemper, ‘Domestic Courts’).
²⁸⁹ This comprised fourteen permanent judges, twelve ad litem judges and two Judges from the
ICTR assigned to the combined Appeals Chamber. See UNGA ‘Report of the Secretary-General on
the financing of the International Tribunal for the Former Yugoslavia for the biennium 2010–2013’
(6 October 2009) UN Doc A/64/476, 39, para 26.
194 Explaining Judicial Integration and Fragmentation
is for the legal officers to prepare the first draft of the Judgment, which then goes
to the judges for amendment.290 A judge may have moved onto hearings in a new
case or even retired from the Tribunal before the Judgment is issued, which is
an indication of the large role that the legal staff play in judgment-preparation.
There is no standard drafting procedure in ICTY or ICTR; each trial team has
its own methods, working under the supervision of the Senior Legal Officer. This
leads to significant differences in style and approach. What is common is that the
timeframe for the drafting process is compressed due to the nature of the criminal
proceedings and, more recently, the deadlines set by the completion strategies at
the Tribunals.
Although some ICJ cases can be quite fact-intensive,291 ICJ Judgments tend
to focus on the law. ICTY and ICTR Judgments, on the other hand, are much
more focused on evidence and facts. The outcome of a case is not a declaration of
the respective rights of the parties under international law, but a determination
of an individual’s criminal responsibility. The Trial Judgment comes at the end of
many months or even years of hearings, with dozens of witnesses for each side,
thousands of pages of transcript and hundreds of exhibits. The focus on facts may
lead to fragmentation if attention to the facts overshadows careful consideration
of the law and how it may integrate with existing jurisprudence.
The drafting process at the international criminal courts leads to significant
variation among chambers and courts in both the quality and the content of the
Judgments. The drafting process is not focused on consistency, precision of lan-
guage or institutional knowledge. It also does not reflect a wide variety of views;
often the judge will be working with one legal officer or a small team. There is
less scope and time for debates with his or her judicial colleagues. This variety
may nurture creativity. This process no doubt contributed to the dynamism that
characterized the early Judgments of the ICTY and ICTR.292 Yet the decentral-
ized, delegated system of decision-making can also lead to fragmentation as each
chamber operates in its own sphere. The divergent approaches to specific intent
and the protected group in the law on genocide may be evidence of this.293

C. Precedent and dialogue

There are two aspects of procedure that may facilitate judicial integration and
both have been applied to varying degrees by the international courts. First, a
concept of precedent—or at least of striving to maintain a consistent body of
jurisprudence—is vital to judicial integration. A form of precedent may operate

²⁹⁰ The drafting of judgments is often listed as a required task on the vacancy announcements for
such legal officer positions.
²⁹¹ See, for example, Congo v Uganda (n 228); Bosnia Genocide Judgment (n 57), as well as mari-
time delimitation and territorial boundary cases.
²⁹² Schabas, ‘Customary Law’ (n 158).
²⁹³ Chapter 2(III) and (IV)(A).
 IV. How the Procedure of the Court affects Integration and Fragmentation 195

vertically or within the same court, as well as horizontally or across judicial bodies.
Second, judicial dialogue and exchange among international courts raise aware-
ness of each other’s jurisprudence, clarify the reasoning process as it relates to
existing case law, and has the potential to develop international law in a coherent
manner.
Turning first to precedent, there is no formal system of precedent or avenue of
appeal between international courts. Even within international courts, there is no
doctrine of stare decisis.294 Article 59 of the Statute of the ICJ provides: ‘The deci-
sion of the Court has no binding force except between the parties and in respect
of that particular case.’ The ICTY and ICTR Statutes are silent in this regard. The
ICC Statute provides the non-binding instruction that ‘[t]he Court may apply
principles and rules of law as interpreted in its previous decisions’.295 However, a
loose notion of vertical precedent does appear to be shared by the courts, in that
they make an effort not to depart from previous decisions unless there is a com-
pelling reason to do so.296 The ICJ has observed: ‘[t]here can be no question of
holding [a state] to decisions reached by the Court in previous cases . . . [but] [t]
he real question is whether, in [the current] case, there is cause not to follow the
reasoning and conclusions of earlier cases’.297 This was echoed in a more recent
case.298 The ICJ regularly cites its own decisions and those of its predecessor, the
PCIJ,299 belying the ‘subsidiary’ status that such judicial decisions are meant to
possess according to Article 38 of its Statute.
Nonetheless, the ICJ does sometimes depart from previous decisions. If such
departures are not carefully reasoned and placed in context, it risks serious
fragmentation. The series of cases on the Balkans involving Serbia, Bosnia and
Herzegovina, Croatia, and many of the NATO states has caused strain, particu-
larly in the Court’s interpretation of the jurisdictional provisions of the Genocide

²⁹⁴ The doctrine of stare decisis also does not exist formally in civil law systems, but it is understood
that after a sufficient number of similar higher court decisions on the same legal issue, the lower
courts consider themselves bound by ‘la jurisprudence constante’: Jonathan I Charney, ‘Is Interna-
tional Law Threatened by Multiple International Tribunals?’ (1998) 271 Recueil des Cours 101,
358.
²⁹⁵ ICC Statute Art 21(2) (emphasis added).
²⁹⁶ It is too early to tell if the ICC will share this approach. On the national level, the notion of
vertical precedent is important in common law systems. The US Supreme Court has observed that
‘stare decisis is a basic self-governing principle within the Judicial Branch, which is entrusted with
the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based
upon arbitrary discretion’: Hubbard v United States 514 US 695 (1995) 711.
²⁹⁷ Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) (Preliminary
Objections: Judgment) [1998] ICJ Rep 275, para 28.
²⁹⁸ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia
v Serbia) (Preliminary Objections: Judgment) [2008] ICJ Rep 412, para 53: ‘To the extent that the
decisions contain findings of law, the Court will treat them as it treats all previous decisions: that
is to say that, while those decisions are in no way binding on the Court, it will not depart from its
settled jurisprudence unless it finds very particular reasons to do so.’
²⁹⁹ For an excellent study, see Mohamed Shahabuddeen, Precedent in the World Court (CUP
1996).
196 Explaining Judicial Integration and Fragmentation
Convention. For example, in its 2004 Judgment on Preliminary Objections in
the Legality of the Use of Force case, the ICJ departed from decisions previously
adopted by the Court by finding it had no jurisdiction ratione personae, without
examining the questions of jurisdiction ratione temporis and ratione materiae on
which it had previously pronounced prima facie.300 As the Joint Declaration of
seven judges observed, the Court’s reasoning placed the principle of consistency
with its own case law in jeopardy: ‘Consistency is the essence of judicial reason-
ing. This is especially true in different phases of the same case or with regard to
closely related cases.’ In particular, the Joint Declaration noted that the approach
in the Judgment:
appears to leave some doubt as to whether Yugoslavia was a party, between 1992 and 2000,
to the United Nations Genocide Convention. Such an approach could call into question
the solutions adopted by the Court with respect to its jurisdiction in the case brought
by Bosnia and Herzegovina against Serbia and Montenegro for the application of the
Genocide Convention.301
In the event, the Bosnia Genocide Judgment issued three years later, used the prin-
ciple of res judicata and did not follow the reasoning used in 2004.302 It remains
to be seen what the ICJ will do in a pending case that concerns interpretation of
the Genocide Convention, Croatia v Serbia.
In terms of horizontal precedent, the ICJ’s Statute provides that ‘judicial deci-
sions’—not limited to its own judicial decisions, as with the ICC Statute—are
a source of law.303 Judicial decisions are also evidence of state practice for the
purposes of customary international law.304 Theoretically, at least, the ICJ has
a concept of horizontal precedent, loosely construed.305 The reality, as already
noted above, is that the ICJ is reluctant expressly to cite the decisions of other
courts. This could be due to the fact it is the principal judicial organ of the UN,
a status that may make the Court eager to maintain the authority of its own
case law. In his article on the role of domestic courts in the case law of the ICJ,
Nollkaemper argues that the ICJ’s ‘powers and efficacy depend strongly on con-
sent and support by states; elevating judgments of any single state to a different
status from “facts” sits uneasily with this dominant paradigm’.306 It may also be
due to the fact that parties have tended not to cite the case law of other courts in

³⁰⁰ Legality of the Use of Force (Serbia and Montenegro v Belgium) (Preliminary Objections: Judg-
ment) [2004] ICJ Rep 279, para 91.
³⁰¹ ibid, para 13 and paras 8–9 (Joint Declaration of Vice-President Ranjeva, Judges Guillaume,
Higgins, Kooijmans, Al-Khasawneh, Buergenthal, and Elaraby).
³⁰² Bosnia Genocide Judgment (n 57) paras 114–141. For commentary, see Michael Ottolenghi
and Peter Prows, ‘Res Judicata in the ICJ’s Genocide Case: Implications for Other Courts and Tri-
bunals?’ (2009) 21 Pace ILR 37.
³⁰³ ICJ Statute Art 38(1)(d).
³⁰⁴ ibid Art 38(1)(b).
³⁰⁵ Such case law would not be binding on the ICJ in the strict sense of ‘precedent’, but it may
provide guidance or possess persuasive value.
³⁰⁶ Nollkaemper, ‘Domestic Courts’ (n 288), section IV.
 IV. How the Procedure of the Court affects Integration and Fragmentation 197

their pleadings, though this practice is slowly changing.307 As more judges join
the Court with backgrounds working in other judicial institutions, the use of
horizontal precedent may increase as a result of the collegial working methods of
the ICJ.308 The ICJ may also be influenced by the practice of investment treaty
tribunals, which have shown a desire to develop a jurisprudence constante.309
The ICTY and ICTR have taken a similar approach to the ICJ on vertical
precedent, stating that previous decisions of the Tribunal should only be departed
from in ‘exceptional circumstances’.310 However, the more powerful factor in the
use of vertical and horizontal precedent is structural in nature. The fact that the
ICTY and ICTR have a common Appeals Chamber has ensured integration on
points of law that reach that level. In the law on genocide, for example, the dis-
parate approaches of the various Trial Chambers on the test for whether a person
belonged to a protected group were integrated into a mixed subjective–objective
test by the Appeals Chamber.311 There are examples of fragmentation on the trial
level, which are exacerbated by the time pressure of criminal proceedings and per-
haps the lack of coordinated information-sharing among chambers, but at least
the appeals level benefits from an overview across the two Tribunals.312
Judicial dialogue is, in a sense, a more flexible form of horizontal precedent.
It involves the citation, discussion, application, or interpretation of case law
from other courts, but it can also encompass informal exchanges of information,
inter-court conferences, and the transfer of personnel and parties among courts.
Judicial dialogue facilitates the integration of international law by raising aware-
ness of the practice of other bodies and clarifying the reasoning process. In the
areas of law studied, the most intense judicial dialogue has occurred on the law
on immunities and genocide. Immunity issues come before a variety of courts
and the absence of a comprehensive treaty means that courts have an incen-
tive to look to each other’s decisions.313 Where courts fail to do this, the risk of
fragmentation is heightened. The point is not for a court simply to follow the
decisions of other courts; there are a variety of factors that may call for that court

³⁰⁷ See, for example, the extensive reference to the ICTY in Bosnia Genocide Judgment (n 57)
and to the ECtHR in Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v Russian Federation) (Preliminary Objections: Judgment) [2011]
ICJ Rep 1.
³⁰⁸ On the current bench, Judge Bennouna previously served on the ICTY and Judge Cancado
Trindade on the IACtHR. Judges Keith and Greenwood have extensive backgrounds in national
courts.
³⁰⁹ Bayindir Insaat Turizm Ticaret Ve Sanayi AS v Pakistan (ICSID Case No ARB/03/29, Decision
on Jurisdiction of 14 November 2005, para 76); Brown, A Common Law of International Adjudica-
tion (n 7) 227–228. ICJ judges occasionally sit as arbitrators on such tribunals.
³¹⁰ Prosecutor v Aleksovski (Judgment) IT-95–14/1-T, T Ch I (25 June 1999) para 97. See also
Prosecutor v Semanza (Decision of the Appeals Chamber) ICTR-97-20-A, A Ch (31 May 2000)
para 92.
³¹¹ Chapter 2(IV)(A).
³¹² The Appeals Chamber is based at the ICTY in The Hague, but Appeals Judges have tended to
make several trips a year to Arusha to sit on ICTR Appeals cases in situ.
³¹³ Chapter 3(I) and (II).
198 Explaining Judicial Integration and Fragmentation
to reach a different decision. Rather, the benefit of dialogue is that a court can
take a decision in the knowledge of existing case law, and may be able to explain
and justify its reasoning more effectively. This allows the court to contribute to
the progressive development of international law in a manner that will facilitate
coherence, not perfect uniformity.
Instead of an ongoing conversation on immunities, the ICJ and other courts
appear to be, as former President Higgins has put it, ‘engaged in a slightly wary pas
de deux, where national courts watch us and we watch the state practice that their
judgments represent’.314 That state practice is not referred to in the Judgments
unless the Court is engaged in analysing the current state of customary interna-
tional law. In other words, the Court appears to turn to the judgments of other
courts and tribunals only in the absence of an applicable treaty, a relevant prior
pronouncement by the ICJ or as a supplement to other manifestations of state prac-
tice (national legislation, General Assembly, or Security Council resolutions).
It may be observed that the level of dialogue is more intense and detailed in
Separate or Dissenting Opinions rather than Judgments of the ICJ. For instance,
in the Joint Separate Opinion in the Arrest Warrant case, Judges Higgins,
Kooijmans, and Buergenthal analysed state practice, referring to the Bouterse case
of the Court of Appeal of Amsterdam, all three of the Pinochet cases in the House
of Lords, the Nulyarimma and Polyukhovich cases in the Australian High Court,
the Cvjetkovic case in the Austrian Supreme Court, the in re Javor, Munyeshyaka,
and Qaddafi cases in the French Cour d’appel, and US cases brought under the
Alien Tort Statute. Ultimately, they could not deduce—and neither could the
majority—that there existed any form of exception in general international
law to the rule according immunity from criminal jurisdiction to incumbent
Ministers for Foreign Affairs, even where they are suspected of having committed
war crimes or crimes against humanity.315 The Dissenting Opinions of Judge ad
hoc Gaja and Judge Cancado Trindade in the Jurisdictional Immunities case are
replete with references with national case law and legislation. Unlike Judgments
of the Court, Separate or Dissenting Opinions do not require the input of the
plenary bench, which thus provides for flexibility in referring to and discussing
cases from other jurisdictions.
The law on genocide has been the site of recent judicial dialogue between the
ICJ and the ICTY. In the Bosnia v Serbia Judgment, the benefits of this dialogue
become apparent. Due to the complicated history of the Bosnia Genocide case,
the oral hearings on the merits did not occur until thirteen years after Bosnia and
Herzegovina had submitted their application to the ICJ.316 In that period, the

³¹⁴ Judge Rosalyn Higgins, President of the ICJ, ‘Speech to First International Law in Domestic
Courts Colloquium—The Changing Position of Domestic Courts in the International Legal Order’ The
Hague (27 March 2008).
³¹⁵ Arrest Warrant Judgment (n 167) 24.
³¹⁶ For an overview of the twists and turns in the history of the case (including the changing iden-
tity of the respondent party), see Bosnia Genocide Judgment (n 57) paras 1–63.
 IV. How the Procedure of the Court affects Integration and Fragmentation 199

ICTY had been established by the Security Council and had delivered dozens
of judgments on individual criminal responsibility, including, one conviction
for aiding and abetting genocide.317 Many of the claims before the ICJ had thus
already been the subject of the processes and decisions of the ICTY. A key ques-
tion for the ICJ was how it would treat the legal and factual findings of the
ICTY.
Applying the formulation it adopted in its Congo v Uganda Judgment,318 the
ICJ decided that the fact-finding processes of the ICTY were ‘“evidence obtained
by persons directly involved”, tested by cross-examination, the credibility of
which has not been challenged subsequently’.319 The ICJ considered the various
actions and decisions taken at each stage of the ICTY processes, adjusting the
weight it would accord to each stage.
As regards the first stage (the indictment), the ICJ did not accord weight to
the prosecutor’s decision to include certain charges, but it stated that the decision
not to include or to exclude a charge of genocide ‘may, however, be significant’.320
The ICJ held that the lower standards of proof applied in the second (confirma-
tion of indictment), third (issuance of arrest warrants), and fourth (decision on
motion for acquittal) stages of ICTY proceedings meant that the ICJ could not
give weight to these rulings.321 The ICJ did however find that the processes of the
ICTY at the fifth stage (the judgment of a Trial Chamber following full hearings)
were ‘rigorous’322 and concluded that:
it should in principle accept as highly persuasive relevant findings of fact made by the
Tribunal at trial, unless of course they have been upset on appeal. For the same reasons, any
evaluation by the Tribunal based on the facts as so found for instance about the existence of
the required intent, is also entitled to due weight.323
The sixth stage (sentencing judgments following a guilty plea) was accorded
‘a certain weight’ by the ICJ since the Trial Chamber would not accept a plea
unquestioningly, but would assess whether there was a sufficient factual basis and
that the plea was made voluntarily.324
The ICJ’s measured use of ICTY material can be said to mitigate the potential
effects of fragmentation in international criminal law, while still respecting the
autonomy of each judicial institution. As the ICJ made clear, ‘[t]he Court must
itself make its own determination of the facts which are relevant’ to the claimed
violations of international law.325 The ICJ’s stage-by-stage analysis transparently

³¹⁷ Prosecutor v Krstić (Judgment) IT-98-33-A, A Ch (19 April 2004).

³¹⁸ Congo v Uganda (n 228) para 61.
³¹⁹ Bosnia Genocide Judgment (n 57) para 214.
³²⁰ ibid para 217.
³²¹ ibid paras 218–219.
³²² ibid para 220.
³²³ ibid para 223.
³²⁴ ibid para 224.
³²⁵ ibid para 212.
200 Explaining Judicial Integration and Fragmentation
sets out its reasoning process, which could serve as a model for other courts
grappling with how to engage in dialogue with the judicial decisions of sister
institutions.
The flexible notions of vertical and horizontal precedent that exist within and
among international courts have the potential to enhance integration in interna-
tional law. If it is necessary for a court to depart from its conclusions in an earlier
case or from a decision of another court concerning the same legal issue or factual
scenario, clear reasoning can prevent or reduce fragmentation. Such reasoning
will be enhanced by engaging in judicial dialogue, namely the acknowledgment
and assessment of the case law of other courts.
Quite apart from the rather formal judicial dialogue that may occur in particu-
lar cases, there is also an emerging dialogue among international courts on a more
personal and informal level. This dialogue is still very ad hoc, but it contains the
seeds for greater linkages among international courts that may in turn enhance the
tendency towards integration in their judicial decisions. In recent years, the ICJ
has taken the lead in holding inter-court meetings on legal topics of mutual inter-
est with judges from the international criminal courts as well as the International
Tribunal for the Law of the Sea, the European Court of Justice, and the European
Court of Human Rights.326 This has been complemented by exchanges of sum-
maries or extracts of case law among these bodies.327 Such practices rely heavily
on the priorities of the Presidents of the various judicial institutions and have not
reached the level of being institutionalized. There are some provisions in formal
relationship agreements that envisage the exchange of information among the
ICJ and ITLOS and the ICJ and the ICC, but these have not actively been used
in practice.328 It may be that more substantial exchanges of information occur at
fora such as at the biennial meetings of the Institut de droit international, whose
membership includes judges from a number of international courts.

³²⁶ Judge Rosalyn Higgins, President of the ICJ, ‘Speech to the General Assembly of the United
Nations’ (30 October 2008).
³²⁷ ibid.
³²⁸ The Relationship Agreement between the UN and the ICC states the Registrar of the ICC
shall furnish to the UN any information relating to the work of the ICC requested by the ICJ in
accordance with its Statute: Art 5(1)(b)(ii). This is a one-way flow of information from the ICC to
the ICJ, but, as Rosenne observes, the documents relating to a case in the ICJ become generally
accessible on the commencement of the hearings in a case and there is no need for a formal agree-
ment for them to be made directly available to the ICC. Rosenne also notes that the deliberations
of both Courts must remain secret, which is an important limitation of the exchange of information
between them: see Shabtai Rosenne, ‘The International Criminal Court and the International Court
of Justice: Some Points of Contact’ in José Doria, Hans-Peter Gasser, and M Cherif Bassiouni (eds),
The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko
(Brill 2009) 1003, 1009; ICC Statute Art 74(4) and International Court of Justice, Rules of Court
(adopted 14 April 1978, entered into force 1 July 1978) Art 21. Article 4 of the Agreement on Co-
operation and Relationship between ITLOS and the United Nations (8 September 1998), provides
for the regular exchange of information and documents of mutual interest. In 2001, ITLOS and the
ICJ reached agreement concerning the exchange of their respective publications.
 V. Conclusion 201

Finally, there is great potential for dialogue and exchange on the level of
counsel and parties. The International Bar is small and the same persons tend to
appear for parties in the ICJ, arbitral tribunals, and to a lesser extent, as counsel
in the international criminal courts.329 These counsel bring with them the knowl-
edge of the procedures and jurisprudence of other institutions, which can then
be communicated to the judges in their pleadings. Judges of the ICJ also serve
as occasional arbitrators in inter-state matters, which provides an opportunity
for integration among the ICJ and arbitral tribunals.330 Parties are also mov-
ing among the different courts. The dispute concerning Georgia and Russia has
arisen as an inter-state matter at the ICJ, as an inter-state matter and as individual
complaints at the ECtHR, and as a situation under preliminary examination at
the ICC.331 This cross-pollination among courts is a relatively recent develop-
ment, as is the growth in the number of international judicial bodies. It remains
to be seen if it will lead to the thickening of connections among the courts and
the emergence of a genuine international legal system.

V. Conclusion
This chapter has sought to explain the nature and extent of integration and frag-
mentation that may be observed in the judicial practice on genocide, immunities,
and the use of force. Although each area of law displays distinct features in this
regard, some patterns can be discerned. The three themes identified here—the
identity of the court, the substance of the law, and the procedures employed—are
influential across the various courts and the areas of law.

³²⁹ Jean-Pierre Cot, ‘Le monde de la justice internationale’, in Société Francaise pour le Droit
International, Colloque de Lille: La juridictionnalisation du droit international (2003) 511, 513–514,
cited in Brown, A Common Law of International Adjudication (n 7) 230.
³³⁰ Iron Rhine Arbitration (Belgium/Netherlands) (Award of the Arbitral Tribunal) (24 May 2005)
(of the five arbitrators, three were ICJ Judges: Judges Higgins, Simma, and Tomka); Abyei Arbi-
tration (The Government of Sudan/The Sudan People’s Liberation Movement/Army) (Award) (22 July
2009) (the arbitrators included Judge Al-Khasawneh, a sitting ICJ Judge, and Judge Schwebel, for-
mer President of the ICJ).
³³¹ Application of the International Convention on the Elimination of All Forms of Racial Discrimina-
tion (Georgia v Russian Federation) (Application) [2008] ICJ. The ICJ later found it did not have
jurisdiction to decide the case: Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v Russian Federation) (Preliminary Objections: Judgment)
[2011] ICJ Rep 1. Georgia v Russia App No 13255/07 (Application lodged with the ECHR on 26
March 2007). In 2008, 3,300 South Ossetian residents field suits in the ECtHR against Georgia al-
leging violations of the European Convention of Human Rights. On 10 January 2011, the ECtHR
decided to strike out 1,549 of these applications, having received no response to its request for
information: ECtHR Press Release No 006 (10 January 2011). As for the ICC, the Office of the
Prosecutor announced a preliminary examination into the events of August 2008 that same month.
Georgia has been a state party to the Rome Statute since 5 September 2003. The Office of the Pros-
ecutor visited Georgia in November 2008 and June 2010, and Russia in March 2010: ICC Press
Release (25 June 2010) ICC-OTP-20100625-PR551.
202 Explaining Judicial Integration and Fragmentation
These three themes do not automatically determine whether a court will
promote the integration or fragmentation of international law. Instead, they sug-
gest tendencies in a certain direction. The permanent nature of a court and its
prominent place in an institutional system encourages stability and integration.
The fact that an area of law is governed by a comprehensive treaty, is relatively
uncontroversial, and is not being affected by societal changes, will facilitate inte-
gration. Multi-stage, collective decision-making processes, respect for vertical and
horizontal precedent, and engagement in judicial dialogue also promote coher-
ence in the development of international law. On the other hand, the temporary
nature of a court increases the risk that it may decide in a vacuum. If a court
oversteps its functions, this also raises the potential for fragmentation. If an area
of law is governed by customary international law, is relatively underdeveloped,
and is controversial, this may also result in diverging decisions in different courts.
Variations in fact-finding and the assessment of evidence, lack of attention to
existing case law, and decentralized and delegated judgment-drafting processes
increase the tendency towards fragmentation.
These tendencies may nonetheless change over time or interact with other fac-
tors. For example, the ad hoc nature of a tribunal may encourage experimenta-
tion and innovation in its early years, which heightens the risk of fragmentation.
Yet, as that body accumulates a body of case law and becomes embedded in an
institutional context, it may adopt a more incremental approach to the develop-
ment of international law, which will encourage integration. When the under-
lying conditions for an area of law change, judges may seek to update the law
through dynamic statutory interpretation. If this ‘judicial updating’ is conducted
without regard for the decisions of other courts on the same legal question, it may
lead to fragmentation. However, this potential dynamism may be dampened by
the court’s awareness of the interests of its constituents or constrained by its rules
of jurisdiction.
Identity, substance, and procedure must therefore be viewed as useful—but
not definitive—explanatory variables that will not have a constant, uniform
impact on the degree of judicial integration or fragmentation. These three themes
may nonetheless have explanatory force beyond the areas of law examined in this
book. They can provide a framework for analysing other areas of law that cut
across the various international courts, such as the law on the conduct of hostili-
ties or the right to access to justice. They can also be helpful for assessing the
behaviour of courts other than the ICJ, ICC, ICTY, and ICTR, such as regional
human rights courts or national courts.
Having sought to explain why courts tend towards judicial integration or frag-
mentation, the next question is what lessons may be drawn for the development
of international law by international courts. This will be the focus of the next and
concluding chapter.
 6
Conclusion

I. Introduction

In his masterful study for the Recueil des Cours, Charney surveyed the judicial
practice of multiple international courts and tribunals in relation to several legal
areas.1 He concluded that:
[T]he different international tribunals of the late twentieth century do share a coherent
understanding of [international] law. Although differences exist, these tribunals are clearly
engaged in the same dialectic. The fundamentals of general international law remain the
same regardless of which tribunal is deciding the issue. This conclusion is probably also
applicable to other areas of international law and other tribunals that were not studied.
One could predict that this past experience will continue into the future. Certainly, the
situation is not perfect and improvements could be prescribed . . . [I]n my opinion, an
increase in the number of international tribunals appears to pose no threat to the interna-
tional legal system.2
This book has examined the judicial practice of international courts and tribunals
in relation to different substantive areas of law (genocide, immunities, and use of
force) and a different sample of courts. Despite these variations in the scope of
study, this book has in general borne out the prediction Charney made in 1998:
although differences do exist, the international courts are engaged in the same
dialectic. There are few instances of genuine fragmentation in the areas of law
examined. The overall picture is one of genuine integration. There are some areas
of apparent fragmentation where courts seem to hold conflicting positions on
the same legal issue, but these tensions can be resolved through careful judicial
reasoning.
However, this book tempers Charney’s optimism with some concerns about
the way international courts and tribunals are developing international law. Some
courts and tribunals are deciding in a vacuum; they may be deciding ‘in the same

¹ Jonathan I Charney, ‘Is International Law Threatened by Multiple International Tribunals?’

(1998) 271 Recueil des Cours 101 (hereinafter Charney, Recueil). He covered treaty interpretation
and reservations, sources of international law, state responsibility, compensation for violations of
international legal obligations, exhaustion of domestic remedies, and international maritime bound-
ary jurisprudence.
² ibid 347.
204 Conclusion
dialectic’, but this is largely a matter of chance rather than due to judicial dia-
logue. Some courts are avoiding opportunities for integration. For certain courts,
allegiance to their institutional regime may overshadow the duties owed to the
international system as a whole.3 Other courts are trying to integrate their deci-
sions with existing jurisprudence, but this has led to only apparent integration,
with cracks and contradictions appearing beneath the surface. As the number of
courts increases, and the body of case law expands, there is a small but genuine
risk of fragmentation in the development of international law.
The previous chapter drew on the legal analysis in Chapters 2, 3, and 4 in
order to explain why courts tend towards judicial integration or fragmentation.
This chapter considers the lessons that may be drawn for the development of
international law by international courts. It briefly examines the implications for
theory before turning to possible, practical solutions that could promote judicial
integration and the coherent development of international law within the diffuse
structure of the international legal system.

II. Theoretical Implications for the Development of International

Law by International Courts
The first and most basic theoretical insight gained from the preceding analysis in
this book is that international courts do not merely apply the law, they also engage
in its development.
In spite of the classic view, espoused by the ICJ itself, that courts ‘state the
existing law and [do] not legislate’,4 this book has shown that international courts
have made significant contributions to the development of the law on genocide,
immunities, and use of force. They have filled in gaps in the law,5 interpreted
treaty terms in such a way as to create substantive obligations,6 created new
rules,7 and carved out exceptions to existing rules.8 The courts may sometimes
have done this under the pretext of finding and applying norms under customary
international law,9 but the content of their decisions belies the formal denial that

³ Charney acknowledges this aspect in ibid 371 and the argument has been put even more starkly
by Yuval Shany, ‘One Law to Rule Them All: Should International Courts be viewed as Guardians
of Procedural Order and Legal Uniformity?’ Conference on Unity or Fragmentation of International
Law (Oslo, 14–15 May 2009).
⁴ Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 237. See
also Fisheries Jurisdiction (United Kingdom v Iceland) (Merits: Judgment) [1974] ICJ Rep 3, 23–24
(saying the ICJ could not ‘render judgment sub specie legis ferendae, or anticipate the law before the
legislator has laid it down’).
⁵ See, for example, the question whether a state can commit genocide.
⁶ See, for example, the obligation to prevent genocide.
⁷ See, for example, the ICTY’s invention of joint criminal enterprise.
⁸ See, for example, the human rights exception to immunity ratione materiae.
⁹ See, for example, the ICTY’s claim that joint criminal enterprise arose from practice in various
national jurisdictions that constituted international custom and its description of its conclusions
 II. Theoretical Implications 205

they are developing the law.10 The rewriting and updating of international law
by the courts can also be observed in areas of international law other than those
examined here.11 To take one example, in the Qatar v Bahrain case, the ICJ faced
the question of whether states may appropriate low-tide elevations lying within
the territorial seas of two states. The UN Convention on the Law of the Sea was
silent on this issue, there was no existing case law nor any scholarly writing. The
ICJ had no difficulty in creating the new rule that such features could not be
appropriated.12
The reality that courts make the law and do not just interpret it is acknowl-
edged by other actors in the international system.13 Only a small percentage of
disputes are settled by international courts. The influence of these decisions on
how the international community understands international law is inversely pro-
portionate to the frequency and volume of the decisions. Despite the criticisms of
international courts and cases of non-compliance with their decisions, the repu-
tational and other consequences of ignoring these courts are factors that political
actors take very seriously.14 Counsel before international courts unfailingly rely
on the Judgments of the forum court and, very often, relevant case law from

on the laws of war as statements of pre-existing customary law: Prosecutor v Tadić (Decision on the
Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94-1, A Ch (2 October 1995) paras
125, 127, 130, 134. Jose Alvarez suggests that the judges of the ICTY and ICTR deny lawmaking
in part due to a need to convince observers of the legitimacy of their role as ‘the international com-
munity’s enforcer of social norms’: Jose E Alvarez, International Organizations as Law-makers (OUP
2005) 532.
¹⁰ See, for example, The Delimitation of the Maritime Boundary of the Gulf of Maine (Canada/United
States of America) (Judgment) [1984] ICJ Rep 246, 299.
¹¹ See also examples cited in Alain Pellet, ‘Shaping the Future of International Law-Making: the
Role of the World Court in Law-Making’ in Mahnoush H Arsanjani and others (eds), Looking to the
Future: Essays on International Law in Honor of W. Michael Reisman 1065 (Brill 2011) 1069–1070
(hereinafter Pellet, ‘Shaping the Future’).
¹² Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain)
(Merits: Judgment) [2001] ICJ Rep 40, paras 205–210. See also the creation of new law in
Gabcicovo-Nagymaros (Hungary/Slovakia) (Merits: Judgment) [1997] ICJ Rep 7 on the management
of transboundary resources, analysed in Eyal Benvenisti E, ‘Customary International Law as a Judicial
Tool for Promoting Efficiency’ in Eyal Benvenisti and Moshe Hirsch (eds), The Impact of International
Law on International Cooperation 85 (CUP 2004).
¹³ cf W Michael Reisman, ‘Judge Shigeru Oda: A Tribute to an International Treasure’ (2003) 16
LJIL 57, 63, 66 (observing that the ICJ ‘seems particularly ill structured for a progressive develop-
ment role. Lawmaking is . . . quintessentially political . . . The Court cannot do this, and even try-
ing would compromise its judicial character’. At the same time, he notes that ‘the judicial function
involves “supplementing and policing” the application of inherited law, which becomes particularly
urgent in periods of rapid transition’. He finds this distinct from the active lawmaking role).
¹⁴ Jenny Martinez, ‘Towards an International Judicial System’ (2003) 56 Stanford LR 429, 432;
Christopher Greenwood, ‘The Role of the International Court of Justice in the Global Community’
(2011) UC Davis JILP 233, 248–252. See also W Michael Reisman, ‘The Constitutional Crisis in the
United Nations’ (1993) 87 AJIL 83, 92 (noting that even the ICJ’s nonbinding advisory opinions are
not necessarily devoid of political and legal force since ‘[a] statement of the law, rendered according to
due process by a court obliged to decide according to law, cannot help but say something authorita-
tive about the law’).
206 Conclusion
other courts.15 Scholars and students seeking to assess the state of the law on a
certain issue regularly turn to the leading decisions of international courts.16 The
International Law Commission and the Institut de droit international draw on
the jurisprudence of international courts in their attempts to codify international
law. Despite the wording and structure of Article 38 of the ICJ Statute, judicial
decisions are in practice a primary source of international law.
A shorthand way of describing this phenomenon is ‘judicial lawmaking’,17 but
a more apt description is of a court acting as an ‘agent’ in the development of
international law.18 The ‘principal’ in such a scenario are the constituents of the
courts, namely the international community made up of states, international
organizations, civil society, and individuals.19 The distinction between ‘lawmak-
ing’ and ‘development’ emphasizes that courts contribute to the process of norm
creation, but this always occurs within the broader context of the international
community’s reaction to the court’s decision. If the court’s decision is accepted
and implemented, then the legal holdings of that decision will be reinforced
and deepened through state practice. If the decision is rejected, ignored, or con-
tradicted by other actors, then its impact on the development of international
law may be limited. At the same time, a rejected or contradicted decision may
still instigate the development of international law if it leads actors to entrench,
adjust, or change their practice. This symbiotic relationship underpins the pro-
gressive development of international law.20

¹⁵ Juan Jose Quintana, ‘The International Court of Justice and the Formulation of General
International Law: the Law of Maritime Delimitation as an Example’ in A S Muller, D Raic, and
J M Thuranszky (eds), The International Court of Justice: Its Future Role after Fifty Years 367 (Kluwer
Law International 1997) 369 (‘the dicta by the ICJ is unanimously considered the best formulation of
the contents of international law in force . . . not only by authors but also by states and by international
tribunals themselves’).
¹⁶ Christian Tams and Antonious Tzanakopoulos, ‘Barcelona Traction at 40: the ICJ as an Agent
of Legal Development’ (2010) 23 LJIL 781, 784 (with reference to the ICJ). See also Quintana ‘The
International Court of Justice and the Formulation of General International Law’ (n 15) 371 (‘inter-
national case-law or jurisprudence is simply of the utmost importance in the process of determining
the legal framework of any topic of international law under review’).
¹⁷ Allison Marston Danner, ‘When Courts Make Law: How the International Criminal Tribunals
Recast the Laws of War’ (2006) 59 Vand LR 101 (hereinafter Danner, ‘When Courts Make Law’);
Alan Boyle and Christine Chinkin, The Making of International Law (OUP 2007).
¹⁸ For scholars discussing this idea in the context of the ICJ, see Tams and Tzanakopoulos ‘Barcelona
Traction at 40: the ICJ as an Agent of Legal Development’ (n 16) 784–785; Franklin Berman, ‘The
ICJ as an “Agent” of Legal Development?’ in Christian Tams and James Sloan (eds), The Development
of International Law by the International Court of Justice (OUP forthcoming 2013); C G Weeramantry,
‘The Function of the International Court of Justice in the Development of International Law’ (1997)
10 LJIL 309; Hersch Lauterpacht, The Development of International Law by the International Court
(Stevens and Sons 1958) 5.
¹⁹ cf Danner, ‘When Courts Make Law’ (n 17) 142 who characterizes the principal of the ICTY
as the states that established the Tribunal. For an analysis of the principal–agent relationship in
the domestic context, see Paul B Stephan, ‘Courts, Tribunals and Legal Unification—The Agency
Problem’ (2002) 3 Chinese JIL 333.
²⁰ Pellet observes that ‘the World Court probably is the best and most efficient organ capable of
adapting legal rules to the evolving needs of the international community’: ‘Shaping the Future’
(n 11) 1083.
 II. Theoretical Implications 207

Having established that international courts can be agents of legal

development, the next question is what type of agents are they? Danner, in her
examination of the ICTY, distinguishes between the court as ‘rogue agent’ or as
‘faithful agent’.21 The former describes an agent that contravenes the instructions
of the principal by, for example, overstepping its role in developing the law. The
‘faithful agent’ understands the principal’s wishes and carries out delegated tasks.
The analysis of agency becomes more complex when one considers the influence
of the regime in which the court is embedded. Charney observes that specialized
tribunals embedded in a treaty system may generate their own ‘centrifugal forces’
that drive them in directions away from the core of international law,22 and towards
fragmentation. Shany points out that newly established international courts have
assumed a primary function of ‘regime maintenance’.23 Such a function may
drive courts to prefer regime interests over the interests of the international com-
munity, which can in turn encourage fragmentation as courts lack incentives to
coordinate and harmonize with bodies outside of their regime.24 In this way the
court is from a regime perspective a ‘faithful agent’, upholding the specific norms
of the regime, whether they be human rights, investment protection, free trade,
regional unity, or economic integration. However, from the perspective of the
international community, the court is a ‘rogue agent’ by overlooking or rejecting
systemic concerns about the development of international law.
The judicial practice examined in this book provides two insights into the
agent-regime relationship. First, the regime or institutional context in which
a court operates is but one factor in that court’s tendency towards developing
international law in an integrated or fragmented manner. The fact that a court
is embedded in a certain treaty system (the Rome Statute system for the ICC or
the United Nations Charter system for the ICJ) does not determine its behav-
iour. Indeed, the regime of a court is but one aspect of its identity.25 Its temporal
nature and functions are also critical aspects. Moreover, as Chapter 5 demon-
strated, whether a court deals mainly with treaty law or customary international
law, the level of development and controversy of that law, and its procedures on
evidence, drafting, and precedent also influence how that court will interpret and
develop the law.

²¹ Danner, ‘When Courts Make Law’ (n 17) 144, 147.

²² Charney, Recueil (n 1) 371.
²³ Yuval Shany, ‘No Longer a Weak Department of Power? Reflections on the Emergence of a New
International Judiciary’ (2009) 20 EJIL 73, 81.
²⁴ This can also be seen as judges operating under ‘constrained independence’, as explored by
Laurence Helfer and Anne-Marie Slaughter, ‘Why States Create International Tribunals: A Response
to Professors Posner and Yoo’ (2005) 93 Cal LR 899. See also Chester Brown, A Common Law of
International Adjudication (OUP 2007) 235.
²⁵ A caveat to this is the strong influence that small regional regimes may have on their dedi-
cated courts. See the empirical work on the Andean Tribunal of Justice in, for example, Laurence
Helfer, Karen Alter, and M Florencia Guerzovich, ‘Islands of Effective International Adjudication:
Constructing an Intellectual Property Rule of Law in the Andean Community’ (2009) 109 AJIL 1.
208 Conclusion
Second, and as a result of the multiple factors that affect court behaviour, a
court will rarely be either a ‘rogue agent’ or a ‘faithful agent’ to its principal.
In some cases where regime concerns are prominent and the level of contro-
versy is elevated, a court may faithfully stick to the facts of the case and reach
restrained, cautious conclusions. In the law on the use of force, such behaviour
may be observed of the ICJ. As Judge Shahabuddeen (writing extrajudicially) has
described the Court navigating ‘from case to case, like the ancient Mediterranean
mariners, hugging the coast from point to point and avoiding the dangers of the
open sea of system and science’.26 Yet, in other cases, the ICJ may take a strong
position. Writing on the Barcelona Traction Judgment, Tams and Tzanakopoulus
conclude that the ICJ could be both a reluctant lawmaker and an enthusiastic
agent of legal development within the one case.27 The ICTY and ICTR displayed
rogue tendencies in their early decisions, but have since settled into a more incre-
mental pattern of judicial decision-making. The ICC’s early case law reveals faith-
ful tendencies, with a strong emphasis on the statutory framework established
by the state delegates at the Rome Conference. However, if the Court has the
opportunity to address genocide charges against a Head of State or the content of
the crime of aggression, it is not clear what direction it may take.
Finally, any theory about the development of international law by courts should
take into account the evolving and interactive nature of the process. Studying only
one court or focusing on only one short period of time will present a skewed
picture of the degree of judicial integration or fragmentation. Genuine integra-
tion may require a transitional period during which courts engage in an iterative
process by which they contribute intermittently to develop a body of jurispru-
dence. Charney and Quintana both observed such a process with respect to inter-
national maritime boundary cases, where a relatively steady flow of cases in a
variety of judicial bodies led to the harmonization of legal principles.28 Such an
iterative process may be seen in the law on immunity. A variety of courts, from
the ICJ to national courts, have decided cases on immunities in recent years, and
have engaged, to varying degrees, in judicial dialogue with each other. The UK
House of Lords Judgment in Jones v Saudi Arabia29 referred to cases from Canada,
Germany, the United States, Ireland, Italy, and Greece as well as the decisions
of international courts such as the ICJ, ICTY, and ECtHR. The Jones case itself
is currently pending before the ECtHR.30 The Ferrini Judgment of the Italian
Court of Cassation includes references to case law of the UK and Canada as well

²⁶ Mohammed Shahabuddeen, Precedent in the World Court (CUP 1996) 233, citing Lord Devlin,
‘The Study of the Law’ (1938) 54 LQR 186.
²⁷ Tams and Tzanakopoulos ‘Barcelona Traction at 40: the ICJ as an Agent of Legal Development’
(n 16) 795–796.
²⁸ See Charney, Recueil (n 1) 348; Quintana ‘The International Court of Justice and the
Formulation of General International Law’ (n 15) 380.
²⁹ Jones v Minister of Interior of Kingdom of Saudi Arabia [2006] UKHL 26, [2006] 2 WLR 70.
³⁰ Jones v UK and Mitchell & Ors v UK App Nos 34356/06 & 40528/06 (ECHR, 24 February
2010).
 III. Models for Enhancing Judicial Integration 209

as the ICJ, ICTY, and ECtHR, and the ICJ paid close attention to that practice,
as well as other examples adduced by the parties, in its Jurisdictional Immunities
Judgment.31 This iterative process among the courts may well result in integra-
tion. The disparate points of view have been explored in various fora, and clear
judgments from ECtHR and/or the ICJ may provide the point of coalescence.
At the same time, a pronouncement from the ICJ or the ECtHR may cut
short this iterative process before it has perhaps fully run its course. As observed
in Chapter 3, the 2002 ICJ Arrest Warrant Judgment has frozen the development
of exceptions to immunity ratione personae and the same is likely to happen as
regards the Jurisdictional Immunities Judgment’s rejection of any exception to state
immunity for violations of international law.32 This hinders the healthy evolution
of an area of law. Similar concerns have given rise to the theory of percolation in
the US legal literature. According to this theory, the final reviewing court (the US
Supreme Court in most cases) should withhold judgment on a legal issue until all
the relevant arguments have been explored in the lower courts. In this way, the
issue may be resolved by consensus of the lower courts and where this does not
occur, percolation to the reviewing court will enable it to make a well-informed
decision.33 On the other hand, the application of this theory would mean that
parties before the reviewing court would suffer delays to their case while the
different views are explored at the lower level. Given that ICJ and ECtHR cases
already tend to take several years from instigation of proceedings to delivery of
the Judgment, the theory of percolation could lead to a backlog of cases that may
hinder the overall ability of these courts to resolve disputes peacefully.
These theoretical insights into the development of international law by courts
in some ways justify the concerns about fragmentation set out in Chapter 1.
International courts are not only developing international law, but they are doing
it in a dynamic manner. The following section seeks to evaluate and propose
practical ways of enhancing judicial integration.

III. Models for Enhancing Judicial Integration

Parallel to the growth in the number of international courts has been the ris-
ing number of ideas on how to enhance coordination and integration among
them.34 The proposals have come from international judges, scholars, and practi-
tioners. The variations on these proposals arise in part from the perceived risk of

³¹ Jurisdictional Immunities of the State (Germany v Italy, Greece intervening) (Merits: Judgment)
[2012] ICJ Rep (hereinafter Jurisdictional Immunities Judgment).
³² ibid and Chapter 3(V)(B).
³³ See Charney, Recueil (n 1) 359, citing, inter alia, Samuel Estreicher and John Sexton, Redefining
the Supreme Court’s Role: A Theory of Managing the Federal Judicial Process (Yale University Press
1986).
³⁴ See, for example, the symposia: Benedict Kingsbury, ‘Foreword: Is the Proliferation of
International Courts and Tribunals a Systematic Problem?’ (1999) 31 NYUJILP 679. See also Yuval
210 Conclusion
fragmentation. Some see the existence or risk of fragmentation as serious while
others find it to be no more than a hypothetical problem. Another variable is the
particular commentator’s belief in the strength or fragility of the international
legal system, including the role that the ICJ may play in this context. The mod-
els can be arranged along a spectrum from the ‘maximal model’ through to the
‘minimal model’. This section will evaluate existing proposals before making its
own proposal.

A. Maximal models: imposing a hierarchy on the international

legal system
The ‘maximal’ model focuses on structural change: imposing a hierarchy on inter-
national courts and introducing mechanisms for appeal and review.35 The most
popular model in this context is for the ICJ to be given a formal role in enhanc-
ing judicial integration by acting as a court of appeal to the various other inter-
national courts and tribunals. A variation on this model is for the ICJ to issue
advisory opinions on contentious legal issues before other international courts.36
Shany, The Competing Jurisdictions of International Courts and Tribunals (OUP 2003); Charney,
Recueil (n 1); Isabelle Buffard, James Crawford, Alain Pellet, and Stephan Wittich (eds), International
Law between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner (Brill 2008);
Carsten Stahn and Larissa van den Herik (eds), Fragmentation and Diversification of International
Criminal Law (Martinus Nijhoff 2012). See also Bianchi’s observation that it is ironic that with
the debate on the fragmentation of international law has ‘gone hand in hand a parallel debate on the
constitutionalization of the international legal order’. He suggests the most compelling threat is the
fragmentation of the doctrinal discourse: Andrea Bianchi, ‘Looking Ahead: International law’s main
challenges’ in David Armstrong (ed), Routledge Handbook of International Law (Routledge 2009)392,
405–406.
³⁵ Pierre-Marie Dupuy, ‘The Danger of Fragmentation or Unification of the International Legal
System and the International Court of Justice’ (1999) 31 NYUJILP 791; Benedict Kingsbury,
‘Foreword: Is the Proliferation of International Courts and Tribunals a Systematic Problem?’ (1999)
31 NYUJILP 679.
³⁶ Such ideas have come from within the ICJ itself: Judge Gilbert Guillaume, President of the
ICJ, ‘The proliferation of international judicial bodies: The outlook for the international legal order’,
Speech to the Sixth Committee of the General Assembly of the United Nations (27 October 2000);
see also Gilbert Guillaume, ‘The Future of International Judicial Institutions’ (1995) 44 ICLQ 848
and ‘Advantages and Risks of Proliferation: A Blueprint for Action’ (2004) 2 JICJ 300. They have
also been discussed in scholarship: Elihu Lauterpacht, Aspects of the Administration of International
Justice (Grotius Publications Limited 1991) 112; Philip Allott, ‘The International Court and the
Voice of Justice’ in Vaughan Lowe and Malgosia Fitzmaurice (eds), Fifty Years of the International
Court of Justice: Essays in Honour of Sir Robert Jennings 17 (CUP 1996); Francisco Orrego Vicuna
and Christofer Pinto, ‘The Peaceful Settlement of Disputes: Prospects for the Twenty-First Century’,
Preliminary Report prepared for the 1999 Centennial of the First International Peace Conference
(1998) CE Doc CAHDI, 15; Georges Abi-Saab, ‘De la jurisprudence: quelques réflexions sur son rôle
dans le développement du droit international’ in M Perez Gonzalez and others (eds), Hacia un Nuevo
Orden Internacional y Europeo. Estudios en homenaje al Profesor Don Manuel Díez de Velasco Vallejo 19
(Tecnos 1993). During the negotiations on the crime of aggression, a proposal was considered (but
not adopted) for the ICJ to act as a ‘filter’ for the jurisdiction of the ICC over the crime of aggres-
sion: International Criminal Court, ‘Conditions under which the Court shall exercise jurisdiction
with respect to the crime of aggression’ (23 February 2001) ICC Doc PCNICC/2001/WGCA/DP.1
(later expanded in International Criminal Court ‘Proposal submitted by Bosnia and Herzegovina,
 III. Models for Enhancing Judicial Integration 211

These ideas would not be workable for a number of reasons.37 First, it is unclear
how in practice to institutionalize the privileged position of the ICJ. There would
not be sufficient political will to establish the position of the ICJ as a supreme
appellate body with the capacity to review judgments rendered by other inter-
national bodies.38 Although appeals from certain administrative tribunals of the
UN may be lodged with the ICJ as requests for Advisory Opinions, practice has
been sparse and the mechanism is not widely regarded as the best use of the ICJ’s
time and resources.39 The ICJ possesses general jurisdiction, but that jurisdiction
is limited in contentious cases to states and is dependent on the consent of those
states. It is hard to conceive how the Court could address legal issues coming
from other judicial bodies that allow the participation of non-state actors and
which may have compulsory jurisdiction procedures. In sum, an appeal system
would be an idealist self-expansion of its jurisdiction that may antagonize power-
ful states.40
Second, the ICJ’s methods of working are not conducive to rapid
decision-making. Even when an advisory opinion was requested by the General
Assembly on an urgent basis, the ICJ needed seven months to respond.41 The
usual rate of response is considerably slower.42 The reality is that the two-stage
written and oral pleadings and its collegial methods of work require a certain

New Zealand and Romania: Conditions for exercise of jurisdiction over the crime of aggression’ (27
August 2001) ICC Doc PCNICC/2001/WGCA/DP.2/Add.1).
³⁷ See, for a discussion of other reasons, Rosalyn Higgins, ‘The ICJ, the ECJ, and the Integrity of
International Law’ (2003) 52 ICLQ 1, 17–20; Pierre-Marie Dupuy, ‘The Unity of Application of
International Law at the Global Level and the Responsibility of Judges’ (2007) 1(2) EJLS 1.
³⁸ Arbitral awards have twice been questioned before the ICJ, but these cases came as the result of
legal disputes between states and not as appeals from the arbitral tribunal: Arbitral Award made by the
King of Spain on 23 December 1906 (Honduras v Nicaragua) (Judgment) [1960] ICJ Rep 192; Arbitral
Award of 31 July 1989 (Guinea-Bissau v Senegal) (Judgment) [1991] ICJ Rep 53.
³⁹ When the UN internal justice system was overhauled in 2009, the Statutes of the new UN
Disputes Tribunal and the UN Appeals Tribunal did not provide for a procedure for their judgments
to be reviewed by the ICJ by way of an Advisory Opinion cf Art 11 of the Statute of the former
UN Administrative Tribunal (UNGA Res 957(X) (8 November 1955)). The ICJ issued Advisory
Opinions related to the old UNAT in 1973, 1982, and 1987. There was an initiative at the ICJ in
the 1990s to end such UNAT appeals based on the idea that the ICJ should not be the final court
of appeal for employer–staff disputes. Such disputes did not fall within the ICJ’s expertise in general
international law and also took up valuable time that could be spent on the settlement of inter-state
disputes or on advisory proceedings. Nonetheless, the possibility of ICJ review still exists in the Statute
of the Administrative Tribunal of the International Labour Organization (ILOAT). In 2010, the ICJ
received a request for an advisory opinion from the International Fund for Agricultural Development
(IFAD), concerning a judgment of the ILOAT (Judgment No 2867 of the Administrative Tribunal
of the International Labour Organization upon a Complaint Filed against the International Fund for
Agricultural Development (Request for Advisory Opinion) [2010] ICJ Rep 2).
⁴⁰ See W Michael Reisman, ‘The Supervisory Jurisdiction of the International Court of Justice:
International Arbitration and International Adjudication’ (1996) 258 Recueil des Cours 9.
⁴¹ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory
Opinion) [2004] ICJ Rep 136.
⁴² The Accordance with International Law of the unilateral declaration of independence in respect of
Kosovo (Advisory Opinion) [2010] ICJ Rep 1, took twenty-one months from request to delivery of
the Opinion.
212 Conclusion
amount of time. Considerable delays would be created in other courts as they
wait for the decision of the ICJ on a certain case; such delays might damage
the respective rights of the parties awaiting the decision or allow the underlying
conflict or dispute to reignite. There are two possibilities for changing the ICJ’s
methods of work in order to increase the speed of throughput. One would be to
take advantage of existing options in the Court’s Statute, such as using Chambers
of three to five judges rather than the plenary Bench43 or conducting cases on the
basis of a simpler or summary procedure.44 These options require both parties to
agree to the procedure, and in practice parties have requested Chambers on very
rare occasions for cases involving disputes of a minor, technical, or regional char-
acter45 and have never taken the summary procedure route.46 The second possibil-
ity for increasing the speed of ICJ proceedings would be to amend its Statute to,
for example, increase the number of judges and legal officers, impose page limits
on pleadings, eliminate the option of a second round of written pleadings, and set
standard time limits for the submission of the Memorial and Counter-Memorial.
This possibility is highly unlikely to attract the political support of UN mem-
ber states. Increasing the number of judges or staff would entail a budgetary
burden that member states have been very reluctant to take on. Between 1998
and 2008, the various Presidents of the ICJ asked the General Assembly for the
budget to recruit one Law Clerk per judge to assist with researching, analysing,
and evaluating doctrinal materials, jurisprudence, and evidence.47 Nearly every
other international court enjoyed this form of assistance, but it took ten years for
the ICJ to be granted its request. Over the same period, the General Assembly
attempted to reduce the salaries of newly appointed ICJ judges.48 As for other

⁴³ This is permitted, at the request of the parties, under ICJ Statute Art 26.
⁴⁴ ICJ Statute Art 29 provides for a Chamber of Summary Procedure. Such a Chamber is con-
stituted by the Court every three years. See Paolo Palchetti, ‘Article 29’ in A Zimmermann,
C Tomuschat, and K Oellers-Frahm (eds), The Statute of the International Court of Justice:
A Commentary 475 (OUP 2006).
⁴⁵ When parties have requested Chambers, it has not been for the purpose of speeding up the pro-
ceedings, but rather to have their case heard by judges sharing a particular expertise or using French
rather than English, or vice versa. Since 1946, there have only been four cases where a Chamber was
formed: The Delimitation of the Maritime Boundary of the Gulf of Maine (Canada/United States of
America) (Judgment) [1984] ICJ Rep 246; Frontier Dispute (Burkina Faso/Mali) (Judgment) [1986]
ICJ Rep 554; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua interven-
ing) (Judgment) [1992] ICJ Rep 351; Frontier Dispute (Benin/Niger) (Judgment) [2005] ICJ Rep 90,
613. See Paolo Palchetti, ‘Article 26’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds),
The Statute of the International Court of Justice: A Commentary 439 (OUP 2006) 443, 465.
⁴⁶ The PCIJ had only two related cases that were submitted to the Chamber of Summary Procedure:
Interpretation of Paragraph 4 of the Annex following Article 179 of the Treaty of Neuilly (Bulgaria v
Greece) (Judgment) PCIJ Series A No 3, 4 and Interpretation of Judgment No 3 (Bulgaria v Greece)
(Judgment) PCIJ Series A No 4, 4.
⁴⁷ See the requests of ICJ Presidents Schwebel, Guillaume, Higgins, and Owada in their annual
addresses to the General Assembly of the United Nations.
⁴⁸ UNGA Res 61/262 (4 April 2007) UN Doc A/Res/61/262, cf UNGA (3 April 2008) UN Doc
GA/10698.
 III. Models for Enhancing Judicial Integration 213

changes to procedure, the ICJ does have the power to amend its own Rules,49 but
if any desired change also required amendment of the Statute, it would be virtu-
ally impossible to achieve, given that this follows the same laborious procedure as
the amendment of the UN Charter.50
Third, adding an appellate function to the role of the ICJ would be to the
detriment of its main functions, namely the judicial settlement of legal disputes
between states and the issuance of advisory opinions to UN organs and special-
ized agencies. In 2007, the ICJ finally succeeded in clearing a backlog of cases
from its docket.51 If its docket was to be clogged with appeals or requests for advi-
sory opinions from various international courts and tribunals, the Court would
have less time and energy to spend on its core dispute resolution function—a
function that arguably contributes more to the integration of international law
than an appellate function concerned with piecemeal and specific legal questions
from a variety of other courts. The amount of resources and time that would be
absorbed by an appellate function could harm the trust placed in the ICJ by the
international community and impact on the high rate of compliance with its
Judgments.52
The recent literature on hierarchy of law, dominated by Delmas-Marty, shares
some of the above concerns about the ability of the ICJ to act as a supreme appel-
late body.53 In her earlier writing, Delmas-Marty had rejected any notion of hier-
archy, appealing to a dialogical order, ‘a legal thought of vagueness’.54 However,
her latest work retreats from this radical position and instead proposes ‘order-
ing pluralism’ based on three principal techniques: (1) coordination through
cross-referencing among courts and institutions; (2) harmonization of different
systems of law while allowing national margins of appreciation; and (3) unifi-
cation through hybridization by merging rules and structures of different legal
systems.55 She believes this will result not in the unity of international law, but in

⁴⁹ The Court has a Rules Committee that is elected every three years. Amendments to the Rules are
proposed by the Committee and must be approved by the plenary. ICJ Statute Art 30 provides that
‘the Court shall frame rules for carrying out its functions’. The Court also periodically issues Practice
Directions to deal with very practical matters such as the use of documents found on the internet.
⁵⁰ ICJ Statute Art 69; United Nations Charter Art 108.
⁵¹ Judge Rosalyn Higgins, President of the ICJ, ‘Speech to the General Assembly of the United
Nations’ (1 November 2007).
⁵² Judge Rosalyn Higgins, President of the ICJ, ‘Speech to First International Law in Domestic
Courts Colloquium—The Changing Position of Domestic Courts in the International Legal Order’ The
Hague (27 March 2008); Philippe Couvreur, ‘The Effectiveness of the International Court of Justice
in the Peaceful Settlement of International Disputes’ in Sam Muller and others (eds), The International
Court of Justice: Its Future Role after Fifty Years 83 (Martinus Nijhoff Publishers 1997) 112.
⁵³ Mireille Delmas-Marty, Le relatif et l’universel (Seuil 2004) 410 (‘Or la CIJ ne semble prête a
jouer ce role, non seulement parce que sa saisine facultative suppose le bon vouloir des Etats, mais
aussi parce que sa jurisprudence se révèle plutôt frileuse’).
⁵⁴ Mireille Delmas-Marty, Raisonner la raison d’Etat: vers une Europe des droits de l’homme: travaux
du séminaire ‘Politique criminelle et droits de l’homme’ (1st edn, Presse Universitaires de France 1989)
.
⁵⁵ Mireille Delmas-Marty, Ordering Pluralism (Naomi Norberg tr, Hart Publishing 2009) 21, 37,
59.
214 Conclusion
an ordering of the ‘disordered clouds’,56 which may be seen as a legal order with-
out a hierarchical ‘roof ’. Although her ideas are better adapted to the contem-
porary reality of the international legal system than the classic maximal model,
Delmas-Marty’s conceptual framework is problematic. Her notion of ‘harmoniza-
tion’ is based on the experience of the European Union,57 which although supra-
national in nature is composed of legal systems that are relatively compatible and
strengthened by common treaties and institutions with powers of judicial review.
As discussed in the following section on intermediate models, borrowing from
the European experience raises a number of difficulties. Similarly, her notion of
‘hybridization’ draws on the procedural developments in the international crimi-
nal court and tribunals, in particular the partial fusion of common law and civil
law elements.58 Not only has this hybridization not been that successful,59 but
it would also not transfer easily to other areas of law that, for example, place
less emphasis on procedure. Delmas-Marty’s idea of cross-referencing holds some
promise, and is discussed below with regard to the minimal and modified mini-
mal models. At the same time, it is in and of itself too ad hoc and informal to
provide a strong basis for promoting judicial integration.

B. Intermediate models: borrowing from other regimes

The intermediate models for addressing judicial fragmentation draw on practices
developed within specific regimes. Analogy can be a useful method for finding
solutions to contemporary problems, but each of the models considered here
possesses disadvantages.
The ILC Study Group Report is one of the most recent and comprehensive
attempts to propose solutions to fragmentation.60 As explained in Chapter 1, the
focus of the Study Group was not the relations between the various international
courts, but rather on the relationship between different rules and rule systems.
The Study Group made a variety of proposals for systemic integration in inter-
national law based on the Vienna Convention on the Law of Treaties.61 Given
the different focus of the Study Group’s work, many of these proposals are not
relevant to the problem of decisional fragmentation. Nonetheless, one element

⁵⁶ ibid 150.
⁵⁷ Mireille Delmas-Marty, Towards a Truly Common Law: Europe as a Laboratory for Legal Pluralism
(CUP 2002) 168–195.
⁵⁸ Delmas-Marty, Le relatif et l’universel (n 53) 412.
⁵⁹ Mirjan Damaška, ‘Problematic Features of International Criminal Procedure’ in Antonio
Cassese and others (eds), The Oxford Companion to International Criminal Law 175 (OUP 2009)
175–186.
⁶⁰ ILC, ‘Fragmentation of International Law: difficulties arising from the Diversification and
Expansion of International Law: Report of the Study Group of the International Law Commission—
Finalized by Martti Koskenniemi’ (13 April 2006) UN Doc A/CN.4/L.682.
⁶¹ These include: the maxim lex specialis derogat legi generali; special (‘self-contained’) regimes as lex
specialis; Lex posterior derogat legi priori; and hierarchy in international law, namely jus cogens, obliga-
tions erga omnes, and Art 103 of the UN Charter: ibid paras 56–122, 123–137, 234–250, 324–409.
 III. Models for Enhancing Judicial Integration 215

may be applicable to relations between courts: Article 31(3)(c) of the Vienna

Convention on the Law of Treaties. This provision requires the interpreter of a
treaty to take into account ‘any relevant rules of international law applicable in
relations between the parties’, including other treaties, customary international
law, and general principles of law. The ILC Study Group took Article 31(3)(c) to
express the principle of ‘systemic integration’, the process ‘whereby international
obligations are interpreted by reference to their normative environment’ or sys-
tem.62 The ILC itself acknowledged the risks associated with this approach:63
It is true that the formulation of article 31 (3) (c) has been criticized as unclear both in its
substantive and temporal scope and its normative force: How widely should ‘other law’ be
taken into account? What about prior or later law? And what does ‘taking into account’
really mean?
Such criticisms were voiced with respect to a concrete ICJ case, the 2003 Oil
Platforms Judgment, which relied on Article 31(3)(c) to introduce the entirety
of the law of jus ad bellum, even though in the jurisdictional phase of the case,
the ICJ had decided its competence was limited to pronouncing upon freedom
of commerce; the Court had precisely excluded the same subject matter as later
became reintroduced by virtue of a reliance on Article 31(3)(c).64 The Court’s
reasoning attracted criticism from Judges Buergenthal, Higgins, Kooijmans, and
Simma in their Separate Opinions65 and in academic commentary.66
The ILC Study Group meets such criticism by pointing out that Article 31(3)
(c) is:67
merely the expression of a larger principle—that of ‘systemic integration’—and if that prin-
ciple . . . expresses a reasonable or even necessary aspect of the practice of legal reasoning,
then a discussion of its actual and potential uses would constitute a useful contribution to
the study of the alleged fragmentation (or diversification) of international law.
It would, however, make more sense to resort to the larger principle directly
rather than through the framework of the Vienna Convention, with all the extra-
neous rules that that Convention may import into the reasoning process. The

⁶² ibid para 413. See also Brown A Common Law of International Adjudication (n 24) 49–52.
⁶³ ILC Study Group Report (n 60) para 423.
⁶⁴ Rosalyn Higgins, ‘A Babel of Judicial Voices? Ruminations from the Bench’ (2006) 55 ICLQ
791, 802–803.
⁶⁵ Oil Platforms (Islamic Republic of Iran v United States of America) (Judgment) [2003] ICJ Rep
161.
⁶⁶ See, for example, Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3)
(c) of the Vienna Convention’ (2005) 54 ICLQ 279, 288 (arguing that international courts will have
to reconcile the limits of their jurisdictional competence and the scope of the general international
law to be applied. The author concluded that the principle of systemic integration may promote
coherence among conflicting rules of international law); Franklin Berman, ‘Reflections on the ICJ’s
Oil Platforms Decision: Treaty “Interpretation” in a Judicial Context’ (2004) 29 YJIL 315 (observing
that the case was first and foremost a case about treaty interpretation and that Art 31(3)(c) did not
grant courts unlimited access to rules of general international law).
⁶⁷ ILC Study Group Report (n 60) para 423.
216 Conclusion
underlying idea—which this book endorses—of acknowledging the context in
which decisions are being made and seeking to harmonize a decision with the
relevant practice in other courts need not be ‘hooked’ onto the law on the inter-
pretation of treaties, which are only one of the sources of international law and
which have specific rules of interpretation that are not necessarily appropriate for
other sources of law.
Inspiration for intermediate models has come not only from the world of trea-
ties, but also from other dispute settlement mechanisms. One model for judicial
integration is based on the Article 267 procedure whereby a national court or
tribunal refers a question of European Union (EU) law to the Court of Justice of
the European Union (ECJ) for a preliminary ruling so as to enable the national
court, on receiving that ruling, to decide the case before it.68 The preliminary rul-
ing is binding on the court that made the reference, and under Article 4 Treaty
on European Union, national courts must apply the ruling in subsequent cases.
Transposing such a model to the international level runs into a number of diffi-
culties. First, as with the maximal model discussed above, the ICJ simply does not
have the capacity or working methods to issue such preliminary rulings in a timely
manner. A backlog of cases would result, not only on the ICJ’s docket, but also on
the dockets of the requesting courts as they await guidance from the ICJ. Second,
the body of law applied by international courts is potentially much broader and
more diverse than EU law. The ECJ applies a corpus iuris binding equally upon all
EU member states.69 In international law, there are few rules that are binding on
all and a huge number of rules that bind states and other actors in varying con-
stellations of bilateral and multilateral agreements. Reflecting this diversity, most
international courts are specialized in a certain area, such as law of the sea, human
rights, or international criminal law. The ICJ would ideally require pleadings in
order to issue informed preliminary rulings on such specific areas, which would
once again delay the process and occupy limited human and financial resources.
Third, the consensual jurisdiction of the ICJ is in tension with the idea that it
could issue rulings binding on a variety of international courts and, by extension,

⁶⁸ Treaty of Lisbon, 15 April 2008 Art 267 (ex 234). The referral mechanism for the ICJ con-
tained in Art 66 of the Vienna Convention on the Law of Treaties that has lain dormant for many
years has also been mentioned in this context. This idea of using these models has been raised by
former President of the ICJ, Judge Guillaume: see, for example, Judge Gilbert Guillaume, President
of the ICJ, ‘The proliferation of international judicial bodies: The outlook for the international legal
order’, Speech to the Sixth Committee of the General Assembly of the United Nations (27 October
2000); Gilbert Guillaume, ‘The Future of International Judicial Institutions’ (1995) 44 ICLQ 848
and Gilbert Guillaume, ‘Advantages and Risks of Proliferation: A Blueprint for Action’ (2004) 2 JICJ
300. See Karin Oellers-Frahm, ‘Multiplication of International Courts and Tribunals and Conflicting
Jurisdiction—Problems and Possible Solutions’ (2001) 5 MPYIL 67, 100 and Abi-Saab ‘De la juris-
prudence: quelques réflexions sur son rôle dans le développement du droit international’ (n 36) 928
(arguing that when new tribunals are created their statutes could provide for a structural link with the
ICJ by registering the authorization by the General Assembly for them to request Advisory Opinions
from the ICJ).
⁶⁹ Oellers-Frahm ‘Multiplication of International Courts and Tribunals and Conflicting
Jurisdiction’ (n 68) 101.
 III. Models for Enhancing Judicial Integration 217

the parties appearing before those courts who may not necessarily have accepted
the ICJ’s jurisdiction.
Along the same lines, the idea has been raised of transposing some of the prac-
tices of the WTO to other regimes of international law. These practices include
preliminary rulings, advisory opinions, requests for information or expert advice
(such as WTO panels requesting advice from World Health Organization or the
World Intellectual Property Organization), or one tribunal taking into account
the rulings and precedents of others.70 The latter practice (reference to case law
of other courts) has merit, as will be explored below, but the others share some
of the problems raised with respect to the EU model. They may work well in a
fairly cohesive regime composed of specialist decision-makers and parties who
have consented in advance to abide by the decisions of bodies within that regime.
However, in the diffuse international legal system, imposing such practices will
lead to delays, party dissatisfaction, and an overall weakening in the performance
by courts of their core functions.71
Intermediate models have also been inspired by national judicial practices.
One idea is to have a special ‘super-panel’ composed of the Presidents of each
of the international courts to resolve conflicting interpretations of law.72 Such a
model is appealing in theory, but difficult to imagine in practice. First, it would
be difficult to decide which Presidents should be represented on the super-panel.
Would it include the Presidents of ad hoc tribunals, of hybrid tribunals, of courts
that exist outside of the UN system, or of regional courts such as the ECtHR
and IACtHR which regularly apply general international law? Second, would the
Presidents of the courts that reached the conflicting interpretations be required
to recuse themselves from the super-panel or, in contrast, would their presence
be critical to reaching an informed decision? Third, it would be challenging to
isolate conflicting interpretations that should come before the super-panel. This
book has demonstrated that there are few instances of genuine fragmentation—
what is more concerning are the examples of apparent integration or potential

⁷⁰ Joost Pauwelyn, ‘Bridging Fragmentation and Unity: International Law as a Universe of

Inter-Connected Islands’ (2004) 25 Michigan JIL 903, 916.
⁷¹ Compare the proposal of David Caron for a model where international courts partner with
national courts ‘forming a system, whereby the international court puts the national court back on
track if rule of law is tested or gives guidance if there is specific uncertainty’. He acknowledges that
this requires a world of sovereign states all with robust internal rule of law, which does not yet exist.
David Caron, ‘International Courts and Tribunals: Their Roles Amidst a World of Courts’ (23 June
2011) Lalive Lecture Series.
⁷² I am grateful to Professor Damaška for this suggestion. This ‘super-panel’ system is used in juris-
dictions with multiple supreme courts. In Germany, conflicting decisions of the separate supreme
courts are brought before a common senate chamber of judges of all the federal appeals courts chaired
by the President of the Federal High Court. In France, the Tribunal de Conflicts performs a similar
role. The Greek Special Supreme Court is even more elaborate. According to art 100 of the Greek
Constitution, the Court is periodically convened to resolve, among other things, conflicts between
decisions of the three Supreme Courts, namely the Court of Cassation, the Council of State, and the
Chamber of Accounts. It is composed of the Presidents of the Supreme Courts, four members of the
Court of Cassation, four members of the Council of State, and in certain cases, two law professors.
218 Conclusion
fragmentation, which would probably not be clearly defined enough to satisfy the
super-panel’s threshold of admissibility.
Finally, one model suggests applying concepts originating in national law, such
as lis pendens and res judicata to avoid conflicting dispute settlement outcomes
at the international level.73 While a notion of lis pendens exists in the field of
international human rights,74 the doctrine of lis pendens has not been applied to
the ICJ and international criminal courts. There was no stay of proceedings in
the Bosnia Genocide case nor in the Croatia v Serbia75 case in anticipation of the
results of litigation at the ICTY.76 Likewise, a request by a defendant at the ICTY
to suspend proceedings pending the ICJ’s Bosnia Genocide Judgment was rejected
by the Trial and Appeals Chambers of the ICTY, citing the independence of the
Tribunal and the right to a fair and expeditious trial.77 The related concept of res
judicata was applied in the Bosnia Genocide Judgment, but it was with respect to
a prior Judgment of the same court.78
There are two difficulties with employing lis pendens and res judicata between
international courts. First, the two concepts are directed to the avoidance of
duplicative or even parallel litigation involving the same or related parties on
the same or related issues in more than one judicial fora.79 The diverse functions
and roles of international courts mean that this particular scenario does not arise
that often; litigation is rarely parallel and even if the same underlying dispute is

⁷³ August Reinisch, ‘The Use and Limits of Res Judicata and Lis Pendens as Procedural Tools to
Avoid Conflicting Dispute Settlement Outcomes’ (2004) 3 LPICT 37; Christer Soderlund, ‘Lis
Pendens, Res Judicata and the Issue of Parallel Judicial Proceedings’ (2005) 22 JIA 301; Campbell
McLachlan, Lis Pendens in International Litigation (Brill 2009).
⁷⁴ The right of individual petition to the Human Rights Committee under the Optional Protocol
to the ICCPR permits the Committee to deal with individual communications as long as there is
no actual lis pendens before another international procedure: Optional Protocol to the International
Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 302 (Optional Protocol) Art 5(2). The European Convention on Human Rights
precludes proceedings before the ECtHR once the case has been submitted to ‘another procedure
of international investigation or settlement’: originally Art 27(1)(b) of the European Convention,
renumbered Art 35(2)(b) by Protocol No 11 to the European Convention. See McLachlan, Lis
Pendens (n 73) 327–329 and Shany, The Competing Jurisdictions (n 34) 59–66, 197–199.
⁷⁵ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia
v Serbia) (Preliminary Objections: Judgment) [2008] ICJ Rep 412. The case on the merits was still
pending as of January 2013.
⁷⁶ McLachlan, Lis Pendens (n 73) 316.
⁷⁷ Prosecutor v Kvocka and others (Decision on the Defence ‘Motion Regarding Concurrent
Proceedings before the ICTY and ICJ on the Same Questions’) IT-98–30/1, T Ch I (5 December
2000); Prosecutor v Kvocka and others (Decision on Interlocutory Appeal of the Accused Zoran Zigic
against the Decision of the Trial Chamber dated 5 December 2000) IT-98–30/1, A Ch (25 May
2001).
⁷⁸ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, paras 114–120 (Bosnia
Genocide Judgment).
⁷⁹ cf Shany’s discussion of two more flexible legal principles—comity and abus de droit—which can
govern proceedings between related parties and issues that do not meet the ‘sameness’ criteria required
by lis pendens and res judicata: Yuval Shany, Regulating Jurisdictional Relations between National and
International Courts (OUP 2007) 165–195.
 III. Models for Enhancing Judicial Integration 219

in issue, the parties are usually different. For example, the parties in relation to
the Balkans conflict have been Bosnia, Serbia, and Croatia at the ICJ whereas
the ICTY has examined the conflict in the context of proceedings against indi-
viduals. The similarities among international court cases are more diffuse than
those usually addressed by lis pendens and res judicata. Second, the jurisdiction
of most international courts is not plenary; it is limited to disputes arising under
the constitutive treaty which will constitute the source of the parties’ rights and
obligations, furnishing the cause of action and delimiting the scope of the court’s
powers.80 Even if the dispute arises between the same parties in relation to the
same facts, the cause of action and jurisdictional limits may be very different. Lis
pendens and res judicata will not capture all instances of overlaps among interna-
tional courts, and it is neither necessary nor desirable that they should.81
Nonetheless, the scholarship on lis pendens and res judicata raises the interest-
ing and broader idea of the inherent power of an international court to manage
its proceedings.82 The ICJ has described this as:83
[A]n inherent jurisdiction enabling it to take such action as may be required, on the one
hand, to ensure that the exercise of its jurisdiction over the merits . . . shall not be frus-
trated, and on the other, to provide for the orderly settlement of all matters in dispute, to
ensure the observance of the ‘inherent limitations on the exercise of the judicial function’
of the Court and to ‘maintain its judicial character’.
The potential application of this inherent power in a modified minimal model is
discussed in Section D below.

C. Minimal models: dialogue, ICJ leadership, and

informal judicial networks
Some judges and scholars argue that all that is needed to prevent judicial frag-
mentation is a ‘minimal’ model consisting of increased inter-court dialogue and
informal networking. This model tends to assign a leadership role to the ICJ, but
without any of the structural reforms required by the maximal or intermediate
models.
Shortly after being elected President of the ICJ, Judge Higgins expressed her
view as follows:84
We judges are going to have to learn how to live in this new, complex world,
and to regard it as an opportunity rather than a problem.

⁸⁰ McLachlan, Lis Pendens (n 73) 358.

⁸¹ ibid 359.
⁸² Brown, A Common Law of International Adjudication (n 24) 55–82, 250–255.
⁸³ Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 253, 259–260, quoting Northern
Cameroons (Cameroon v United Kingdom) (Preliminary Objections: Judgment) [1963] ICJ Rep 15,
29 (hereinafter Northern Cameroons).
⁸⁴ Higgins, ‘A Babel of Judicial Voices? (n 64) 804.
220 Conclusion
• We must read each other’s judgments.
• We must have respect for each other’s judicial work.
• We must try to preserve unity among us unless context really prevents this.
During her presidency of the ICJ from February 2006 to February 2009, President
Higgins set up a system whereby the ICTY, ICTR, ICC, ECJ, ECtHR, and the
WTO Appellate Body received summaries and excerpts of ICJ Judgments of
potential relevance to their work. Such summaries were sent to the respective
Presidencies of each court after the issuance of the ICJ Judgment in question and
were then distributed to judges and legal staff. These judicial bodies reciprocated
by sending summaries or excerpts of their recent case law to the ICJ, highlighting
findings of particular relevance. The ICJ also hosted two seminars on legal top-
ics of mutual interest with judges from other international and regional courts
in 2007 and 2008. Such seminars involved only the judges and, apart from a
confidential aide-memoire, records were not kept. The intention has been to
hold such seminars on an annual basis with hosting duties rotating among the
international courts.85 The approach advocated and implemented by President
Higgins is consistent with the views expressed by judges from other international
courts.86
In the academic sphere, the minimal model also attracts support.87 Charney
recommended a two-pronged approach to countering judicial fragmentation:88

⁸⁵ Rosalyn Higgins, ‘Speech at the American Society of International Law Annual Dinner—
Departing Thoughts on the International Court of Justice’ (27 March 2009). Such inter-court semi-
nars have also been arranged by inter-governmental bodies on an occasional basis. See, for example,
the Council of Europe Conference on International Courts and Tribunals—The Challenges Ahead,
London, 6–7 October 2008, which involved judges from the ICJ, ICC, ICTY, ICTR, ITLOS, Court
of Conciliation and Arbitration within the Organization for Security and Co-operation in Europe,
Permanent Court of Arbitration, ECtHR, IACtHR, ECJ, African Court of Human and Peoples’
Rights, Court of First Instance of the European Communities, WTO Appellate Body, and the Court
Of Justice of the European Free Trade Agreement.
⁸⁶ See Antonio Augusto Cancado Trindade (former President IACtHR, current ICJ Judge), ‘The
Merits of Coordination of International Courts on Human Rights’ (2004) 2 JICJ 309; Tullio Treves,
‘Fragmentation of International Law: The Judicial Perspective’ (2008) XXIII Comunicazioni e Studi
1, 33 (‘[c]onflicting interpretations may be reduced by interpreting the applicable law also in light
of the decisions of other courts and tribunals’). Although it occurred before the introduction of this
informal exchange system, the WTO Appellate Body’s first report exemplified this attention to devel-
opments in general international law: United States—Standards for Reformulated and Conventional
Gasoline, WTO case nos 2 and 4, Report of 29 April 1996, 9.
⁸⁷ See, for example, Oellers-Frahm, ‘Multiplication of International Courts and Tribunals and
Conflicting Jurisdiction—Problems and Possible Solutions’ (n 68) 83 (noting the ‘pressing need for
inter-court dialogue and respect for decisions of other judicial bodies as well as the importance of
detailed reasoning in order to make comprehensible the result reached by the tribunal’); Charles H
Koch Jr, ‘Judicial Dialogue for Legal Multiculturalism’ (2004) 25 Mich JIL 879, 899 (arguing hori-
zontal and vertical judicial dialogue can help build an emerging global legal culture).
⁸⁸ Charney, Recueil (n 1) 371. See also Jonathan I Charney, ‘The Impact on the International
Legal System of the Growth of International Courts and Tribunals’ (1999) 31 NYUJILP 697 and
Laurence Helfer and Anne-Marie Slaughter, ‘Why States Create International Tribunals: A Response
to Professors Posner and Yoo’ (2005) 93 Cal LR 899.
 III. Models for Enhancing Judicial Integration 221
First, . . . the ICJ must continue to maintain its intellectual leadership role in the field. If
it does so, the other tribunals will be under pressure to abide by the ICJ’s determinations
regarding the rules of international law. Second, the other tribunals and the ICJ should be
encouraged to increase the dialogue that already exists between them.
He suggested that the increase in dialogue should be facilitated by the strength-
ening of interpersonal relationships among international judges and the infor-
mal exchange of ideas89—a suggestion that was implemented during President
Higgins’ term at the ICJ. Shany shares Charney’s belief in the importance of
mutual respect and communication among courts to facilitate harmonization,
but he believes that without rules to govern the situation the perception of inter-
national law will depend on who is sitting on the Bench at a given moment.90 He
thus argues for the implementation of ‘better inter-judicial structures, aimed at
improving coordination and harmonisation between competing fora’, but with-
out providing much detail and concluding that the creation of such structures is
not foreseeable in the near future.91

D. A modified minimal model: structured dialogue, ICJ prominence,

and involvement of other actors in establishing systematic legal norms
Of all the models proposed for reducing judicial fragmentation and encourag-
ing integration among international courts, the minimal model of Higgins and
Charney—judicial dialogue, ICJ leadership, and informal networking—is the
most promising. Yet it is also the most tenuous: everything relies on the informal
relations between judges and, in particular, the Presidents, of the various inter-
national courts. It is easy to imagine annual inter-court seminars on matters of
mutual interest slipping into biannual and then very occasional meetings, par-
ticularly as judges become occupied with their own busy dockets. Similarly, most
judges will be aware of ICJ Judgments, but will not know of the latest Advisory
Opinion of the IACtHR, which is of potential relevance to the case before them.
If the parties do not discuss the case in the pleadings, it is likely to slip under the
judicial radar. Moreover, the fact that The Hague is the seat of the ICJ, ICTY, and
ICC facilitates judicial networking, but building such networks with the ICTR,
ITLOS, and regional human rights courts requires more effort.
The minimal model therefore needs to be strengthened. I propose three modi-
fications. First, judicial dialogue requires some formal measures in order to be
more systematic and effective. Second, the ICJ should have a prominent—though
not always leading—role in the international legal system, and that role should
be earned through improvements in its own practices. Third, the project of inte-
gration is not for judges and courts alone, but should involve the international

⁸⁹ Charney, Recueil (n 1) 372.

⁹⁰ Shany, The Competing Jurisdictions (n 34) 285.
⁹¹ ibid 272.
222 Conclusion
community more broadly, in particular in helping to establish systematic legal
norms.
As regards judicial dialogue, there are various steps that may be taken to
encourage meaningful discussion of the relevant case law of other international
courts. From the outset, the selection process for international judges could take
into account their familiarity with other jurisdictions.92 Similarly, the recruitment
of legal officers who work in Chambers should seek out those candidates with
the skills and experience to engage in comparative legal research. Court libraries
should provide access to the various databases and law reports that gather and
analyse the decisions of international courts as well as the judgments of national
courts that involve questions of international law.93 The system of exchanging
summaries and excerpts of cases among international courts on, for example,
a quarterly basis, should be institutionalized in memoranda of understanding
or relationship agreements among the various courts. In addition to holding
inter-court seminars on a periodic basis at certain ‘host’ courts, such seminars
could be held in parallel to major legal conferences, such as the annual American
Society of International Law or biannual European Society of International Law
conferences. It is not necessary for all judges to attend such meetings; having
a critical mass of, for example, three to four judges from each court should be
sufficient.
The cross-fertilization that is already happening among international courts
should be used to facilitate judicial dialogue. It is not just that judges, arbitrators,
counsel, and legal staff are members of the community of international lawyers
who hold ‘common conceptions of the nature, role and importance of interna-
tional law’.94 This basic similarity is being indelibly enhanced by the physical
movement of these people around the international courts, whether it is an ICJ
judge sitting as an arbitrator, a former ICTY judge being elected to the ICJ, coun-
sel for a state party before the ICJ also advising government officials implicated in
proceedings before the ICC, or legal officers from the ICTR being employed by
the ICC. Individuals with this experience should be sought out and encouraged
to share their knowledge of the practices and jurisprudence of the other judicial
institution with which they are familiar.
Where judicial dialogue reveals that there are parallel proceedings or con-
flicting jurisdictions, courts may consider using their inherent jurisdiction to
manage proceedings. This draws on an idea raised by the intermediate model.95
Occasionally the governing treaty itself may contain a condition that parties
engage in negotiations or use other settlement procedures before seising an

⁹² See generally Ruth Mackenzie, Kate Malleson, Penny Martin, and Philippe Sands QC, Selecting
International Judges: Principle, Process, and Politics (OUP 2010).
⁹³ These include the Oxford Reports on International Law and the International Law Reports. At
present, these databases are not generally available at the various international courts.
⁹⁴ Charney, Recueil (n 1) 355.
⁹⁵ This chapter, Section III(B).
 III. Models for Enhancing Judicial Integration 223

international court.96 In the absence of such a treaty provision, a court may use
its inherent power to issue an order on provisional measures ordering a party
not to proceed with parallel proceedings in another forum97 or to suspend its
own proceedings for reasons of judicial propriety98 or, more concretely, to await
the outcome of a related case.99 An instructive example may be found in the law
of the sea. In the MOX plant case, the UNCLOS Annex VII Arbitral Tribunal
suspended proceedings in a case between Ireland and the UK in order to await
the decision of the ECJ in a case the European Commission had brought against
Ireland. The UNCLOS arbitration and ECJ case involved different parties, but
the arbitral tribunal ordered the discretionary stay of proceedings both to ease the
difficulties encountered by parties to simultaneous litigation and to enable it to
benefit from recourse to the ECJ’s eventual decision.100
As McLachlan points out, however, a court seised of a case over which it has
jurisdiction must always be cautious about relinquishing it lest it cause a denial
of justice or abuse of rights.101 No court should decline jurisdiction or suspend a
case unless it is satisfied there is another court of competent jurisdiction that will
determine the dispute.102 Such an exercise of discretion will invariably involve
delicate assessments on a case-by-case basis. Once again looking to the law of
the sea, in the Southern Bluefin Tuna case, the UNCLOS Arbitral Tribunal found
that it lacked jurisdiction over a dispute between Australia/New Zealand and
Japan even though ITLOS had previously held that prima facie the Arbitral
Tribunal would have jurisdiction.103 Moreover, the Arbitral Tribunal declined
jurisdiction not in favour of another court of competent jurisdiction, but rather
in favour of diplomatic methods of dispute settlement provided for in a regional

⁹⁶ See Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v Russian Federation) (Preliminary Objections: Judgment) [2011] ICJ Rep 1
(holding that the ICJ has no jurisdiction because Art 22 of the Convention on the Elimination of
Racial Discrimination imposes preconditions which must be satisfied before resorting to the Court).
⁹⁷ See E-Systems Inc v Iran (1983) 2 Iran-USCTR Rep 51, 57 (noting that the Tribunal did have the
power to issue such an order and requesting Iran to move for a stay of Iranian court proceedings until
the Tribunal had completed the case).
⁹⁸ See Northern Cameroons (n 83) 37: ‘[E]ven if, when seised of an Application, the Court finds
that it has jurisdiction, it is not obliged to exercise it in all cases. If the Court is satisfied, whatever the
nature of the relief claimed, that to adjudicate on the merits of the Application would be inconsistent
with its judicial function, it should refuse to do so.’ See also Legality of the Use of Force (Serbia and
Montenegro v Belgium) (Preliminary Objections: Judgment) [2004] ICJ Rep 279, Separate Opinion
of Judge Higgins.
⁹⁹ Bernard Oxman, ‘Complementary Agreements and Compulsory Jurisdiction’ (2001) 95 AJIL
277, 311 (2001) (noting that a tribunal could decline to adjudicate on the merits of a case in the light
of the agreement of the parties regarding alternative procedures).
¹⁰⁰ MOX Plant Ireland v United Kingdom (2004) 42 ILM 1187, 1191 and (Order No 4: Further
Suspension of Proceedings on Jurisdiction and Merits) (14 November 2003). See discussion in
Shany, Regulating Jurisdictional Relations (n 79) 177, 179–180.
¹⁰¹ McLachlan, Lis Pendens (n 73) 362.
¹⁰² ibid 465.
¹⁰³ ITLOS Southern Bluefin Tuna New Zealand v Japan; Australia v Japan (Provisional Measures:
Order), ITLOS Cases Nos 3 and 4 (1999) 38 ILM 1624; ITLOS Southern Bluefin Tuna Australia &
New Zealand v Japan (Jurisdiction and Admissibility: Award) (2000) 39 ILM 1359.
224 Conclusion
convention.104 The Southern Bluefin Tuna case is best read as a cautionary tale
where an ad hoc tribunal’s discretion undermined UNCLOS’ intended man-
datory system of dispute settlement and substituted a judicial process that had
already been set in motion for a diplomatic one.105
The minimal model shares with the intermediate and maximal models a desire
to give a leading role to the ICJ. This view is only to be expected given that the
ICJ does possess special authority due its status as the only court of general juris-
diction and the UN’s principal judicial organ. I support a prominent role for the
ICJ, with two caveats. First, such a desire should not lead to structural changes,
such as introducing appellate review or universal advisory opinion procedures,
which would do more to disrupt the international legal system than to integrate
it. Second, the ICJ’s central role should be contingent upon improvements in
its own practices. As Abi-Saab argues, if the ICJ is to act as a higher court in a
legal order that does not provide for a formal hierarchy, that role ‘must then be
earned as a primus inter pares, followed not out of legal compulsion, but through
recognition of and deference to its intrinsic authority and the quality of its legal
reasoning and findings’.106
Until very recently, there has been a sense that by engaging in judicial dialogue
the ICJ somehow degrades itself and that its Judgments should remain ‘unsullied’
by engagement with the decisions of other courts or tribunals of limited jurisdic-
tion.107 Given overlapping jurisdictions and the similar factual scenarios that arise
in multiple courts, the consideration of the decisions of other courts is central
to well-reasoned Judgments. The endorsement or rejection of a view by the ICJ
is sure to carry significance and may well enhance its standing in the world of
international courts—it is a role that the Court should embrace. To this end,
the ICJ should provide greater transparency as to its use of the case law of other
courts and tribunals. Cases that may be referred to in written and oral pleadings
and judicial deliberations are rarely cited in the final Judgment. The discussion
of other case law should not be left to Separate Opinions, which naturally have
their own agendas to pursue.
The prominent role of the ICJ in the international legal system also requires
the Court to grapple with difficult problems and not to avoid controversial tasks,

¹⁰⁴ Southern Bluefin Tuna Australia & New Zealand v Japan (n 103) para 54. For discussion, see
Barbara Kwiatkowska, ‘Southern Bluefin Tuna’ (2000) 95 AJIL 162. The dissenting opinion of Sir
Kenneth Keith identified some of the difficulties in dealing with two sets of proceedings that are
parallel but not fully coincident, especially given the reality of the ‘overlapping existence of proce-
dures for the peaceful settlement of disputes appearing in international judicial practice’: Southern
Bluefin Tuna Australia & New Zealand v Japan paras 11 and 18 (Dissenting Opinion of Sir Kenneth
Keith).
¹⁰⁵ See for other criticisms, Cesare Romano, ‘The Southern Bluefin Tuna Dispute: Hints of a
World to Come . . . Like It or Not’ (2001) 32 Ocean Development & International Law 313.
¹⁰⁶ Georges Abi-Saab, ‘Fragmentation or Unification: Some Concluding Remarks’ (1999) 31
NYUJILP 919, 929.
¹⁰⁷ This idea is expressed but not endorsed by Charney, Recueil (n 1) 372.
 III. Models for Enhancing Judicial Integration 225

as long as they fall within its jurisdiction.108 In 1999 Abi-Saab observed that these
tasks may include judicial review of the acts of organs of international organiza-
tions, pronouncing on major legal policy issues, and ‘seizing all opportunities to
provide an authoritative interpretation of the principles and rules of general inter-
national law, rather than always trying to base its decision on the narrowest, and,
preferably, consensual, grounds’.109 Since then, the ICJ has had occasion to dem-
onstrate a certain hardiness and clarity in its decision-making. Examples include
the way the ICJ dealt with the Nicaragua–Tadić divide and in its treatment of
ICTY material in the Bosnia Genocide Judgment.110 These are hopeful signs that
the Court is ready to take on an important, integrative role in the international
legal system. Given the fact that the majority of international judges would prob-
ably not take on this role spontaneously, there should be incentives for such
integrative behaviour. States could consider this factor during the process for the
nomination and election of judges to the Court, while always aiming to elect the
most highly qualified candidates. In their commentary on and monitoring of
the Court, NGOs and the academy could place emphasis on the extent to which
the ICJ confronts and resolves difficult legal issues of relevance to other courts.
States could also provide practical support to the work of the judges through
granting budgetary requests for qualified legal staff and upgraded facilities, which
have traditionally been rejected or reduced to the bare minimum.
While supporting the prominence of the ICJ, the modified minimal model
also takes the view that encouraging judicial integration is not a task only for that
Court or indeed only for international courts. In the same way that a specific
pronouncement by an international court cannot ‘be divorced from the general
framework of normative argument in the society within which it operates’,111
the degree of judicial integration or fragmentation in the international legal sys-
tem ultimately relies on how judgments are received by other courts, by states,
and by the international community. It has long been recognized that there is
a panoply of participants in the creation of international law,112 who make up
the ‘interpretive community’.113 Along with states and their diplomatic elites,

¹⁰⁸ Abi-Saab, ‘Fragmentation or Unification’ (n 106) 930.

¹⁰⁹ ibid 930. Pierre-Marie Dupuy also calls for the Court to take every opportunity ‘to advance the
interpretation of the law’, and not limit itself merely to resolving the dispute at hand: Pierre-Marie
Dupuy, ‘The Unity of Application of International Law at the Global Level and the Responsibility
of Judges’ (2007) 1(2) EJLS 1, 23.
¹¹⁰ In a different field, see Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment)
[2009] ICJ Rep 61, which set out in clear terms the methodology for maritime delimitation and
achieved a unanimous Judgment without any Separate or Dissenting Opinions for the first time in
the ICJ’s history.
¹¹¹ Vaughan Lowe, International Law (OUP 2007) 99.
¹¹² Myres McDougal, ‘International Law, Power, and Policy: A Contemporary Conception’ (1952)
82 Recueil des Cours 137, 173; Rosalyn Higgins, Problems and Process: International Law and How
We Use It (OUP 1994) 50.
¹¹³ Andrea Bianchi, ‘The International Regulation of the Use of Force: The Politics of Interpretive
Method’ (2009) 22 LJIL 651. See also Kenneth Anderson, ‘The Rise of International Criminal Law:
226 Conclusion
there are corporations, NGOs, inter-governmental organizations, sub-national
entities, cities, bureaucrats, experts, the media, private individuals and, of course,
judges.114 The scope of this book has necessitated a focus on the role of courts and
judges, but this does not signal a denial of the important roles played by other
actors. Indeed, a full understanding of the operation and development of the law
must have the broadest possible frame of reference.
A concrete way in which non-judicial actors may reduce fragmentation is
through the creation of systematic legal norms. Chapter 2 has demonstrated that
the fragmentation is minimized in regard to the doctrinal characteristics of geno-
cide because of the comprehensive, widely ratified, and generally well accepted
nature of the Genocide Convention. This treaty monopolizes the field and greatly
contributes to the synchronization of interpretations by the various international
courts. Fragmentation has been limited to those provisions that have been left
purposefully vague, namely specific intent. States, international organizations,
and NGOs can enhance integration through the drafting and ratification of
comprehensive conventions. Admittedly, such conventions often take years to
agree upon and may include elements of strategic ambiguity. The 2004 UN State
Immunity Convention is an example of an attempt to create a systematic legal
norm that has foundered: the Convention fails to address the most controver-
sial issue (a potential exception for human rights violations) yet even with its
rather conservative approach, it appears unlikely to attract enough ratifications to
enter into force in the near future. This cautionary example aside, there are clear
advantages to synchronizing interpretations substantively through a convention,
including the fact that this effectively avoids legitimacy problems because state
consent is clearly established. Short of a convention, efforts to codify interna-
tional law through, for example, the work of the inter-governmental or academic
bodies, is also a promising method of reducing fragmentation. The widespread
acceptance and application of the ILC Articles on State Responsibility are an
example in this regard.
States, organizations, and individuals can also promote integration in their use
of international dispute settlement mechanisms. Litigants before international
courts can enhance judicial integration by using their pleadings to locate their
arguments in the broader context of international law, discussing the case law of
various courts and drawing attention to any parallel or conflicting proceedings.

Intended and Unintended Consequences’ (2009) 20 EJIL 331, 349 (on communities of interpreta-
tion and authority).
¹¹⁴ See, for example, W Michael Reisman, ‘The Democratization of Contemporary International
Law-Making Processes and the Differentiation of Their Application’ in Rudiger Wolfrum and Vok-
er Robens (eds), Developments of International Law in Treaty Making 16 (Springer 2005); Harold
Hongju Koh, ‘Transnational Legal Process’ (1996) 75 Neb LR 181.
 IV. Conclusion 227

One may even go so far as to say that litigants have a responsibility for the
development of international law such that they should choose a forum that is
more likely to contribute to integration. In concrete terms, parties arguing over
a maritime boundary would be advised to bring their case to the ICJ or ITLOS,
permanent courts embedded in larger institutional regimes, than to create an ad
hoc arbitral tribunal for the sole purpose of the dispute.
The shared responsibility for the development of international law can indeed
be traced back to the origins of international courts. When new courts are cre-
ated or amendments are made to constitutive documents, the diplomats, lawyers,
scholars, and civil society representatives involved should assess the impact on
the international legal system as a whole. In this way, the facilitation of judicial
integration should not only take place in the courtroom and the deliberation
chamber, but also in the General Assembly, the Security Council, the regional
organization conference, the civil society meeting, and the academic symposium.
This approach would mirror and support the evolving and interactive process by
which international law develops.

IV. Conclusion
The integrity of international law is critical to the continuation of an effective and
productive international legal system, and to the peaceful settlement of disputes
more broadly. This book has shown that even though there are few instances of
genuine fragmentation in the areas of law studied, there is a small but genuine
risk of incoherence in the development of international law. Addressing this risk
requires one to accept the reality that international courts can and do develop
international law; they do not merely interpret it. The way that they develop
the law is neither linear nor uniform; the approach of a court is a function of its
identity, the substance of the law in question, and the procedures employed. It
is a dynamic process driven by changes within a court and its interactions with
other bodies.
Given these insights, this chapter has considered the lessons that may be drawn
for the development of international law by international courts. The aim of this
chapter has been to put forward normative suggestions for resolving the chal-
lenges explored in previous chapters. This approach is grounded in the belief that
the practice of legal scholarship demands much more than a summary of the situ-
ation.115 After evaluating existing suggestions for enhancing integration, I propose

¹¹⁵ The exploration of alternative arrangements is an ‘intellectual task [that] is active and interven-
tionist and engages the fundamental responsibility of the jurist and the citizen’: W Michael Reisman
and others, International Law in Contemporary Perspective (2nd edn, Foundation Press 2004) 7.
228 Conclusion
a model that recasts aspects of the minimal model. It is based on structured judicial
dialogue, a prominent role for the ICJ contingent on internal improvements,
and a sense of responsibility for judicial integration that is shared by non-judicial
actors. The tools for promoting judicial integration and, by extension, the integ-
rity of international law, already exist. The future challenge is to create incentives
for integration in this flexible and dynamic international legal system.
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 Index
Note: for page references to cases and other primary authorities, see the Table of Cases and the Table
of Treaties, Legislation and Other Legal Instruments at the beginning of this volume.
aggression see crime of aggression
arbitral tribunals 11, 15, 64, 104, 108–9,
141, 146, 148, 152–3, 183, 190,
201, 211, 223, 227
armed attack see self-defence
armed conflict
classification of 103–104, 134–7, 183
internationalization of 137–40
burden of proof 187–8 see also procedure
Charney, Jonathan 1–4, 6–7, 12, 102, 203–4,
207–8, 220–2
coherence see integration
completion strategy 148, 152–3 see also
International Criminal Tribunal for
Rwanda, International Criminal
Tribunal for the Former
Yugoslavia
complicity see genocide
crime of aggression 122–33, 141–2, 154,
165, 181
conditions for the exercise of
jurisdiction 127–33
definition 125–7, 155
dual quality 8, 15, 165
International Court of Justice, relationship
with International Criminal Court
131–3, 156, 210–11
Kampala ICC review conference,
amendment at 105, 125–7, 155,
172, 174–5
Security Council, role of 127–31, 171
crimes against humanity 8, 15, 26, 28, 32,
44, 63, 66, 68, 76, 87–8, 97, 123,
147, 154, 162, 198
customary international law 2, 7, 10, 15 see
also substance of the law
genocide, and 26, 36, 53, 60, 63, 180
identity of the court, and 153
immunities, and 64–6, 71–6, 78, 80, 92,
94, 96–100, 183
judicial decisions, and 196–8, 202, 204–5,
107, 215
use of force, and 111, 115, 120–1, 131
treaty, compared to 171–7
development of international law see
international law
dialogue see also integration, procedure
definition 35
judicial dialogue 12, 35, 40, 45, 50, 56, 61,
65–6, 98, 105, 108, 140, 146, 177,
183, 193, 195, 196–201, 202, 204,
208, 219–25
judicial networks 219–21,
seminars, inter-court 220, 222
structured dialogue 221–2
divergence see fragmentation
Eritrea/Ethiopia Boundary
Commission 110–13, 141, 148, 152
Eritrea/Ethiopia Claims Commission 110–13,
118, 120–22, 141, 148, 152, 190
European Court of Human Rights 14, 40,
44–45, 59, 87, 95–7, 158, 161, 165,
197, 200–1, 208–9, 217–18, 220
European Court of Justice 7, 161, 200, 216,
220, 223
Extraordinary Chambers in the Courts of
Cambodia 11, 14, 23, 148, 176
enforcement 4, 6, 205
compliance with ICJ Judgments 105,
142–3, 166, 213
cooperation with ICC 167, 170
cooperation with ICTY and ICTR 166–7
genocide, and multiple systems for 15,
21–24, 58–9, 146
immunity, and 96
use of force, and 108–9
erga omnes 22, 162, 214
evidence see procedure
experimentation or innovation
among international courts 6, 102, 144, 150–3
among national courts 102
by ad hoc tribunals 150, 163, 167,
176–7, 202
forum shopping 6, 227
fragmentation see also dialogue, identity,
procedure, substance
apparent fragmentation 12, 40, 45, 59, 72,
100, 134, 149, 151, 155, 158, 203
250
fragmentation (Cont.)
between substantive bodies of law 5–6
decisional fragmentation 6, 214
genuine fragmentation 12, 15, 24, 35, 45,
56, 59, 62, 81, 87, 91, 95, 100,
112, 117, 119, 141, 145, 177, 203,
217, 227
genocide
command responsibility 33–4, 151
complicity 19, 33–4, 46, 51, 52–6, 59–60,
63, 156–7, 179, 189, 193
cultural 41, 45–46
destruction
physical-biological 41, 44–6, 172
‘in whole or in part’ 15, 25–6, 29–30,
35, 37, 40, 42, 46–50, 52, 59, 150,
172
ethnic cleansing 40, 42–6, 182
‘international penal tribunal’ 23, 58, 66,
70, 147,
joint criminal enterprise 33–5, 151–2,
176, 204
obligation to prevent 18, 55, 56–8, 171,
182, 204
obligation to punish 17–20, 57–9,
protected group 15, 25–6, 28, 36–40,
42–8, 52, 59–60, 146, 149, 172,
177–9, 194, 197
remedies 56–8, 154
required intent or dolus specialis 15–16, 20,
23, 24–35
knowledge-based, defined 26
purpose-based, defined 25
responsibility for
see responsibility
travaux préparatoires 18, 28, 32, 36–7, 39,
44, 48, 55, 172
Guyana-Suriname arbitral tribunal 104,
108–10, 148, 152
hierarchy see also integration
international legal system, absence of 4,
142, 149, 224
international legal system, imposing
on 210–14
norms, of 87
human rights 7, 8, 10–11, 76, 87, 90, 93–
100, 143 , 144, 145, 152, 158–60,
164–5, 177–81, 207, 216, 218,
221, 226
see also immunity
hybrid tribunals see identity of the court
identity of the court 81, 147–71
function, as part of 50, 59, 73, 100, 129,
141, 146, 153–9
Index
overabundance of goals 159
relativization of legal rules on the basis of
function 158
hybrid tribunals 11, 148, 153, 163, 217
institutional context 29, 142, 146,
159–71, 202, 204, 207, 227
permanent v ad hoc 10–11, 15, 22, 24, 31,
35, 60, 100, 104–5, 113, 140–2,
146, 147–53, 175, 178, 183, 202,
224, 227
spectrum of ‘ad hocness’ 153
immunity see also jurisdiction, responsibility,
State
absolute doctrine 69, 73, 76, 78,
149, 180
acta jure gestionis 69, 85–6, 92–4, 183
acta jure imperii 69, 85–6, 92–4, 183
head of state 62, 70–81, 82, 84, 89, 90,
169, 208
human rights, possible exception for 68–72,
76–81, 87–91, 94–100, 177,
180–1, 204
immunity ratione materiae 62, 65, 70–5,
81–91, 100, 145, 149, 158, 173,
179, 180, 183, 196, 204
immunity ratione personae 10, 62, 65, 70,
72–81, 82, 88–9, 92, 98–101, 145,
149–50, 158, 178, 196, 209
minister for foreign affairs 73–4, 76, 82,
88, 90, 91, 99, 190, 198
removal of by treaty 68–72
restrictive doctrine 69, 92, 180
state immunity 63, 65, 69–71, 83, 85–7,
91–101, 145, 177–80, 183, 209,
226
state responsibility, as compared to 83–6,
89–90, 98–9
tort exception 92–6
individual criminal responsibility see
genocide, immunity, responsibility
inherent powers 219, 222–3
innovation see experimentation
Institut de droit international 12, 62, 68, 73,
74, 82, 84, 90–1, 95, 101, 143–4,
161, 173, 181, 200, 206
integration see also dialogue, identity,
procedure, substance
apparent integration 12, 111, 118, 136,
140, 145, 150, 204, 217–18
coherence 3, 4–6, 11, 56, 65, 74, 104,
130, 133, 140, 142, 144, 152, 198,
202, 215, 227
cross-fertilization 222
desirability of 4–5, 138, 171
genuine integration 12, 35, 40, 59, 62,
72, 100, 106, 121, 140, 145, 172,
203, 208
 Index
models of judicial integration
intermediate 214–19
‘systemic integration’ 214–15
maximal 210–14
‘ordering pluralism’ 213
minimal 219–21
modified minimal 221–7
non-judicial actors, role of 161, 225–8
Inter-American Court of Human Rights 14,
161, 197, 217, 220, 221
International Court of Justice
‘chilling effect’ of Judgments 99, 209
collegial drafting process 191–3
consensual jurisdiction 8, 64, 142–3,
161–3, 196, 211, 217
general jurisdiction 104, 131, 211, 224
ICC, relationship with 131–7
leadership role, prominence 37–38, 163,
219–27
principal judicial organ of the United
Nations 10, 24, 81, 98, 142, 160,
163, 165, 191, 196, 224
reluctance to comment 111, 142–3,
189, 193
Security Council, relationship with 105,
122, 125, 128–30, 133, 142–3,
153, 155, 166, 169, 181, 198
working methods 197, 216
international courts
as agents of legal development 204–208
International Criminal Court 2, 8–9, 10–12,
14–16, 22–24, 29–30, 32–33, 35,
37, 41, 42, 44, 47, 58–8, 60–1,
63–4, 67, 72, 77, 78–81, 86, 98,
100, 105, 122, 124–37, 139–43,
147, 150–6, 159–61, 164–5,
167–76, 180, 184,187–8, 193,
195–6, 200–2, 208, 210, 220–2
Assembly of States Parties 29, 126–8, 131,
154, 155, 167–9, 175
Complementarity principle 67, 78, 159,
164, 175
ICJ, relationship with 131–7
Security Council, relationship with 127–31
Review conference see crime of aggression
International criminal law 19, 60–1, 78, 88,
104, 127, 159, 167, 169, 176–80,
199, 216
see also crime of aggression, genocide
International Criminal Tribunal for the Former
Yugoslavia 1, 2, 7–8, 10–11, 14,
21–6, 29–49, 51–5, 58–61, 71,
77–9, 81–2, 88, 91, 131, 134,
136–41, 144, 147–8, 150–61, 163–9,
176–8, 182, 184, 186–8, 193–5,
198–9, 202, 204–9, 218–22, 225
251
see also completion strategy, Nicaragua-
Tadic divide
International Criminal Tribunal for
Rwanda 1, 1, 2, 7–8, 10–11, 14,
21–31, 33–44, 47–9, 51–3, 58–60,
66, 71, 77, 81, 147–54, 156–61,
163–69, 176–8, 184, 187–8,
193–5, 197, 202, 205, 208, 220–2
see also completion strategy
International Law Commission
consideration of fragmentation 3, 5–6, 9,
12, 138, 155, 214–5
International law
development of by judges 1–4, 73,
203–9
iterative process of development 102, 140,
208–9
incremental development 152–3, 175,
202, 208
International legal system
concept of 4–7, 9, 11, 13, 23, 37, 58–9,
65, 81, 115, 122, 141, 144, 152,
201, 203–4, 210, 214, 217, 221,
224–5, 227–8
International Military Tribunal for
Nuremberg 14, 20, 66, 71, 88,
123–4, 163
International Tribunal for the Law of the
Sea 7, 160, 200, 220–1, 223, 227
interpretation
as compared to development of
international law 2–4, 6, 8–9, 11,
15, 23, 37, 45, 50, 58, 61, 72, 102,
104, 134, 144–6, 165, 176, 204–9,
215, 226–7
dynamic statutory interpretation 181–3
‘interpretive community’ 105, 144, 225
Iraqi Special Tribunal 14
judicial decisions
as a source of international law 1–4, 11,
78, 93, 171, 195–6, 206
jurisdiction
aut dedere aut judicare principle 67–8, 71,
100–1
expansion of national jurisdiction 65–7, 98
universal jurisdiction 23, 67–8, 71, 99
jus cogens 22, 58, 61, 90, 94, 96–8, 106, 214
legitimacy
of the international legal system 5–7, 104,
131, 143–4, 151, 181, 205, 226
lis pendens 218–19
see also integration
models of judicial integration see integration
252
national courts, domestic courts
role of 4, 11, 14–15, 23, 62, 64–6, 70,
72, 75–7, 81–2, 89–92, 95, 98,
105, 149, 158, 164–5, 178, 183,
196–8, 202, 208, 216–7, 222
Nicaragua-Tadic divide 138–41, 155, 181, 225
see also fragmentation, apparent
non-state actors 104, 111, 114–17, 126, 131,
134, 137, 143, 154–5, 179–81,
183, 211
normative conflict 5, 62, 65, 95, 100, 124,
138, 146, 155, 180–1, 215, 225
obligation to prevent and punish genocide see
genocide
precedent see also dialogue, procedure
doctrine of 4, 61, 90, 123, 178, 194–202,
207
horizontal 196–7, 200
vertical 195, 197, 200
procedure 3, 11, 29, 166, 168, 172, 175,
184–202, 212–14, 216
drafting and reasoning process 11, 81,
190–5, 197, 200, 215
fact-finding and evidence 11, 132, 184–
90, 194, 199, 202
precedent and dialogue 194–201
regimes
borrowing from 214–19
intermingling 7
jurisdictional 163
overlapping or dual 15–20, 23, 50, 56, 59
specific or special 5, 62, 158, 207
remedies
genocide, reparations for 56–8
ICJ, freedom to fashion 154
immunity, barred by 97–8
local remedies, exhaustion of 187
responsibility
attribution of 83–6, 105, 134, 137–40,
151, 155, 189
dual regimes for genocide 8, 16–20, 21,
23, 146,
individual criminal responsibility 8, 16,
19, 50–6, 86, 105, 122, 131, 133,
141, 151, 154, 156–7, 165, 174,
184, 189, 199
State responsibility 8, 11, 15–17, 19,
20, 22–3, 30–1, 50–8, 83, 86–90,
98–99, 104–5, 113, 122, 124, 131,
133, 137–9, 141, 151, 154–8, 165,
188–9
responsibility to protect 44, 182
res judicata 196, 218–19
see also integration
Index
Security Council see also crime of aggression,
International Court of Justice,
International Criminal Court
development of international law 3,
105, 227
relationship with international
courts 10–11, 23, 79–81, 125–33,
142–3, 146–8, 153, 155, 159–60,
165–71, 181, 199
self-defence
see also use of force
anticipatory 120–2, 131, 141, 143, 179
‘armed attack’ 105–6, 109–10, 113–122,
124, 140, 179
pre-emptive 121
Special Court for Sierra Leone 11, 64, 77–8,
81, 101, 148, 153
State
definition of for purposes of immunity 83,
85
Special Tribunal for Lebanon 72, 77, 111,
153, 168–9
standard of proof 22, 155, 184, 187–90
see also procedure
State immunity see immunity
state responsibility see responsibility
substance of the law 157, 171–84, 191,
201–2, 227
controversy and change, level of 10, 35,
38, 60, 62, 69, 81, 83, 85, 87, 91,
100, 103, 113, 124, 174, 179–84,
207–8
development, level of 177–9
core v periphery 106, 178–9
treaty or custom 171–7
threat of use of force 110, 116, 120–2,
140–1
see also use of force
definition 106–9, 174
torture 8, 15, 41, 63, 66–8, 71, 83, 90, 94,
956, 173, 182
treaties see also substance of the law
as common starting point 163–4, 226
as expanding national jurisdiction 66–8
as a facilitating integration 172–3, 214–7,
226
as increasing the risk of fragmentation 78,
146, 172–3, 183
strategic ambiguity 24, 60, 172, 226
uncertainty, vagueness 6, 16, 24, 35, 37–9,
46, 54, 60–1, 63, 81, 86, 91,
100–1, 106, 110, 113, 117–19,
134, 141, 144, 145–6, 152, 157–8,
162, 172, 178, 184, 213–14, 217,
226
 Index 253
use of force see also armed conflict, crime of structures for decision-making 103–5,
aggression, self-defence, threat of 140, 183–4
use of force terrorism, challenges posed by 8, 110–11,
changing circumstances 103–4 114, 153, 181, 184
consequences of a finding 134–44 title to territory 111–13
definition 109–11
gravity, degree of 115, 117–20, 122, 124, war crimes 26, 44, 63, 68, 76, 87–9, 91, 97,
131, 140, 162 123, 154, 198
identity of the attacker 115–17, 141, 174, WTO Appellate Body 217, 220