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Home EJIL Analysis Is the Rome Statute Binding on Individuals?

Is the Rome Statute Binding on Individuals?

Published on October 15, 2010        Author: 

What a positively weird question, you might think. The Rome Statute of the International Criminal Court cannot be binding on individuals. It is a treaty, to which only states can be parties, since individuals are not subjects of international law, and it is furthermore a general principle of international law that treaties cannot bind non-parties. This is the answer that public international lawyers would give almost by reflex.

But what if the question was put in slightly different terms — are the provisions of the Rome Statute that define international crimes and forms of individual responsibility substantive or jurisdictional in nature? Do they, in other words, define when an individual is criminally responsible, or do they only say when the Court can establish jurisdiction for the individual’s violation of a norm emanating from a different source of international law, such as custom? Many of us, particularly those with a more of a criminal law background, would be tempted to say that of course the provisions of the Rome Statute must be substantive in nature, since one of the purpose of the Statute was precisely to get away from vague and indeterminate inquiries into custom. But if that is true, then the Statute — a treaty — must be binding on individuals who have never consented to be bound by it, nor could have done so.

But why does this matter? If the Statute is only jurisdictional in nature, as have incidentally been the statutes of all other international criminal courts and tribunals so far (at least nominally), then the source of substantive norms of criminal law binding on individuals must be elsewhere, primarily in customary law. If this is so, then the Statute could never go beyond customary law, and any individual accused before the Court will at least in principle have to be able to mount a challenge as to whether the charges against him have a basis in customary law. If, on the other hand, the Statute is seen as being substantive in nature, then it may well go beyond customary law, but it would arguably run afoul of the nullum crimen sine lege principle in at least two cases — when a particular situation has been referred to the Court by the UN Security Council or by a non-state party — since the supposedly substantive Statute would not have been binding on the individuals concerned at the time that they allegedly committed their offense.

Let me put this in less abstract terms. When militia under Sudanese control committed mass atrocities in Darfur, were they violating custom or the Rome Statute, to which Sudan is not a party? And if the answer is the former, could they be prosecuted before the ICC under UNSC referral even for those crimes which may not be customary in nature but are nonetheless in the Statute, or under theories of responsibility which are almost definitely not customary? Can, for example, Omar Al-Bashir, the President of Sudan, (if ever tried) be held responsible under a theory of indirect perpetration or perpetration by means, which has never been used in any other international criminal tribunal? Would this not violate the principle of legality, as the Rome Statute did not extend to the territory of Sudan at the time the alleged offenses were committed?

I explore these and other issues, such as when, why and how treaties can directly bind individuals without the mediation of domestic law, and the options that the Court will have in addressing challenges to charges based on the nullum crimen principle, in an article forthcoming in the Journal of International Criminal Justice. A pre-print draft is now available on SSRN, and any comments from our readers would be greatly appreciated.

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14 Responses

  1. ==since individuals are not subjects of international law==

    It seems to me that individuals are subjects of international law, as captains, fishermen, pearl divers, pirates, contrabandists, slave traders, bankers, in cases of economic arbitration, diplomatic immunity, rights of aliens, governments in exile and soldiers at the nowadays individuals are also subjects as insurgents, refugees, terrorists and, above all, as possessors of human rights.

  2. Of course they are subjects! Who will be prosecuted before the ICC? Most all international law scholars know that treaties can be binding on the nationals of a party to the treaty (which can include, states, nations, “belligerents,” and so forth). Customary international law has also long reached individual perpetrators — for at least the last 300 years! see also http://ssrn.com/abstract=1487719

  3. cdavis

    “…since individuals are not subjects of international law”

    It was in Fleck’s Handbook of IHL where the author posed the theory that States ratify treaties on behalf of their constituents: “International treaties are not concluded on behalf of governments, but on behalf of States lawfully representing all their citizens (1)”, and “rights and duties of States are the rights and duties of the people who make up the States (2)”. In that sense, Governments are almost acting as ‘agents’, where the constituents are the principles. I don’t recall coming across this formulation since then, but I thought it was an interesting idea (and it might be worthwhile raising that Fleck was commenting on the customary nature of the Geneva Conventions, from memory).

    I look forward to reading the final version of this paper.

    ———-

    (1): Dieter Fleck, ʻThe Law of Non-International Armed Conflictsʼ in Dieter Fleck (ed), The Handbook of International Humanitarian Law (2008) 605, 608
    (2): Dieter Fleck, ʻThe Law of Non-International Armed Conflictsʼ in Dieter Fleck (ed), The Handbook of International Humanitarian Law (2008) 605, 608

  4. @cdavis

    “A third element of Grotius’ theory concerns sovereignty. The individual human being was fully included in the Grotian system of the law of nations and sovereignty was considered a personal capacity of the ruler of the state rather than belonging to the state itself. Sovereignty conferred upon rulers full legal competence….
    Grotius defined natural law as a ‘dictate of right reason.’ Human nature was able to distinguish between the just and the unjust through right reasoning: just was that which was in conformity with the nature of man and the public good, i.e., the good of the community to which he wished to belong. Injustice was done if an act was committed which was contrary to the nature of the community of rational human beings and which consequently threatened peace and order. Because of its ‘universal cause,’ this ‘common sense of mankind’ was indeed the law of the Societas Humana. Because the capacity of knowing the difference between just and unjust and the capacity of acting accordingly were attributed to the human individual, man was the moral and political actor of this world. The ius gentium ultimately spoke to the conscience of – and thus applied to – every member of humanity, whether sovereign or subject, whether individually or collectively organised; it was the law of the universal human society. As the primary source of the law of nations was natural law and the source of natural law was human nature, the individual took up a central position in Grotius “, Nijman, J. E. (2005). Leibniz s Theory of Relative Sovereignty and International Legal Personality Justice and Stability or the Last Great Defense of the Holy Roman Empire

  5. “The idea that international law rules not only the intercourse of independent states but also that its provisions are directly binding on individuals without the intermediary of their state, is at least as old as the science of international law, which originated in the sixteenth century. Grotius considered the law of nations as a body of rules governing the activities of individuals in international relations rather than as a body of provisions binding on states in their relations with other states. Pufendorf stresses the identity of the natural law binding for individuals and states. Hobbes expresses a similar opinion.”, Korowicz, M. St., The Problem of the International Personality of Individuals, 50 Am. J. Int’l L. 533 (1956). pp.534

  6. Marko Milanovic Marko Milanovic

    A note to some of the commenters: as far as I am concerned (and as you can see from the article), the general issue of whether individuals are subjects of international law is neither here nor there (and what various natural law theorists thought on the matter back in the day is even more beside the point). I am not interested in rehashing old debates about subjecthood, legal personality or what have you.

    Rather, the article examines a specific question – when and how individuals (or non-state actors generally) can be bound by treaties without their consent, whether the Rome Statute of the ICC actually purports to do so, and under what circumstances. It is with regard to that particular question that I have experienced two basic reactions from colleagues with whom I’ve raised it: either that it is obvious that treaties are only binding on their parties, or that it is obvious that the Rome Statute creates substantive criminal law. My argument in the paper is that both of these set answers are problematic, and that the matter is indeed far, far from obvious.

  7. @Marko

    What I wonder is the following: You say that the statute is a treaty and the individuals did not sign them, therefore it is problematic to say that they are bound by it. If I may make an analogy to the national laws, I have never signed them and never gave my consent to any of them. Does that mean that I’m not bound by them? If we see the treaties as acts of creating law, they are just as any national statute, thus binding the individuals as much as any other law. Is this a bad analogy?

  8. Marko Milanovic Marko Milanovic

    Mihai, please read the piece! If you do so, you will see that I argue that treaties CAN indeed directly bind individuals without the mediation of or transformation into domestic law, because individuals are not entitled to the benefit of the pacta tertiis rule. But this is NOT an obvious position; unlike a domestic statute, a treaty is by definition a consensual instrument (indeed, some authors, like Cassese in a superb old article on rebel armed groups, contend that non-state actors cannot be bound by treaties without their consent.)

  9. The IMT at Nuremberg answered the claims of accused that international laws of war were merely state-to-state, that individuals were not directly bound by the laws of war, that obedience to the state was a defense, and so forth — worth your reading!

  10. Marko Milanovic Marko Milanovic

    Prof. Paust, I am quite familiar with the Nuremberg judgment, thank you very much. The issue that I address in the article is not whether the ‘laws of war’ as such can bind individuals and impose individual criminal responsibility – it is now generally accepted that customary law can do that, and does that.

    I instead deal with the issue of whether treaties, as opposed to custom, can bind individuals directly, and create individual criminal responsibility without either a parallel customary incrimination or incrimination in domestic law. This is NOT an issue that the IMT examined (at least not in so many words), and subsequent jurisprudence (e.g. that of the ICTY) and scholarly opinion (e.g. with regard to Common Article 3 of the Geneva Conventions) is divided on the matter – see, e.g., the works of Cassese, Moir, Mettraux, and Sivakumaran.

    Finally, I deal with the specific question of whether the Rome Statute binds individuals directly, creating obligations for them that they have to comply with on the pain of criminal punishment. To my knowledge, this is not a question that anyone, least of all the IMT, has dealt with before. But again, thank you for that comment.

  11. Well, Kellogg-Briand was such a treaty with respect to aggressive war and other treaties were addressed in connection with individual responsibility for breaches of neutrality. There was also discussion of other documents that reflected opinio juris relevant to interpretation of such treaties and customary int’l law. I have in mind also the attention to HC IV (1907), which was addressed in connection with individual responsbility for violations thereof despite the fact that the treaty did not designate acts as criminal, did not address any sentences, and did not address any court to try the offenses thereunder. Besides, the IMY decison is just one of many on direct individual liability per treaty.

  12. Marko Milanovic Marko Milanovic

    I think it fair to say that what the IMT exactly thought with regard to treaty violations and the nullum crimen principle is at best unclear, even deliberately so; the judgment could easily be interpreted as saying that the treaties were evidence of customary incriminations which extended to individuals (this is how the violations of the Hague Regulations etc are generally treated in modern case law). And again, the ICTY jurisprudence on the matter is also quite divided (please see the paper for the details).

    Having done quite a bit of research on the matter, I confess that I am somewhat baffled by your claim that there are ‘many’ judicial decisions acknowledging direct individual liability under a treaty. Could you point me to some of those? (Note, however, that at least as far as my admittedly European eyes are concerned, the idiosyncratic US alien torts jurisprudence just doesn’t count. Nor do cases where it is in fact municipal law that imposes liability by transforming international law, whether treaty or customary, nor do cases which are so old and obscure that nobody can really tell what they meant).

  13. @Marko,

    I was wondering again. There is an article in the Dutch constitution:

    “Article 93
    Provisions of treaties and of resolutions by international institutions, which may be binding on all persons by virtue of their contents shall become binding after they have been published.”

    Publishing means that they appear in an official state bulletin, but there is no transformation necessary. Is this still a transformation because it is a part of the constitution?

  14. At the beginning of our history, we used treaties directly for proscution of individuals, e.g., for breaches of neutrality, laws of war. See Henfield’s Case (1793). We expect today that there is a need for a federal statutory base for prosecution, but the possiblity of direct prosecution has not been ruled out by our Supreme Court.
    I consider that many international criminal law treaties create direct liability of individuals (usually phrased as anyone who) and set up duties of states to enact any needed legislation (if such is needed, which it generally is in vivil law systems, in the UK of course as well) and the duty to either initiate prosecution or to extradite. The treaty as such would only reach parties and their nationals, perhaps some resident aliens with significant contacts with a party. But customary international law reaches all persons.
    I admit that with respect to the ICC, it is most likely expected that the core crimes are crimes under customary international law and that the treaty does not “create” them as such. I am one who also recognizes that Articles 7 and 8 do not reflect all customary crimes against humannity or war crimes and, therefore, that the ICC has limited jurisdiction in that respect (as well as in others). see, e.g.,
    http://ssrn.com/abstract=1598440
    I know that all of our points and counterpoints have not been “joined” adequately in these chats. I should have spent much more time on these, but, alas, I am too pressed for time at this time and apologize for such.