Jean-Baptiste Maillart is a PhD Candidate at the University of Geneva and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.
Article 12(2)(a) of the Rome Statute provides that the ICC may exercise its jurisdiction over a crime if the “State on the territory of which the conduct in question occurred” is a party to the Statute or has accepted the Court’s jurisdiction by a declaration. It has become commonplace to paraphrase that provision as stating that the Court may exercise its territorial jurisdiction over a crime that has been committed within the territory of a State Party. For instance, the late Judge Hans-Peter Kaul wrote [p. 607] “if a core crime is committed by an individual in the territory of a State Party to the Statute, the ICC will have jurisdiction” (see also the commentaries of Schabas [p. 285], Bourgon [p. 564] and Haupais [p. 582]). The Court itself uses the exact same wording: “[…] under article 12(2) of the Statute one of the two alternative criteria must be met: (a) the relevant crime was committed in the territory of a State Party or […] (b) the relevant crime was committed by a national of a State Party […]” (ICC-01/04-01/07-262 [§. 14]); see also for instance ICC-02/11-14 [§. 187] or ICC-01/09-19-Corr [§. 175]).
However, a careful and literal reading of Article 12(2)(a) leads to a different conclusion. The Court has jurisdiction over a crime when “the conduct”of this crime occurred on the territory of a State party, not when the crime was committed there. Some scholars addressing Article 12 (e.g., Wagner [p. 485] and Vagias [p. 53]) have pointed out the exact terminology used, but none have considered whether it could have any practical effect. This post considers, on the basis of the traditional interpretation of the term “conduct”, a possible challenge to the ICC’s jurisdiction over certain cross-border crimes where, if Article 12(2)(a) said “commission”, it would undoubtedly have jurisdiction. In other words, it could be argued that it is incorrect to read “conduct occur[ing]” on certain territory as equivalent to “commission of a crime” on that territory. The post also proposes a counter-argument in favor of jurisdiction.
Challenging the ICC’s territorial jurisdiction through the traditional interpretation of the term “conduct”
Leaving aside mens rea and crimes ofconduct, the commission of a crime requires at least two elements: criminal conduct and a result. According to the modern and universally recognized theory of ubiquity, a crime is considered as committed on the territory of a State when either of these two elements has taken place there. Returning to Article 12(2)(a), if the drafters had used the term “commission”, then the Court would have had jurisdiction over any crime for which the conduct and/or the result occurred in the territory of a State party.
But they opted for “conduct”. According to the traditional interpretation of this term, the conduct and the result are two disconnected chronological moments (though very close in absolute time). Indeed, conduct is traditionally perceived as a specific and determined moment on the track of the commission of the crime, clearly distinct in time from the result of the crime. For instance, in the case of a crime of willful killing committed with a firearm, the conduct is the action of pulling the trigger; the result is the subsequent death of the victim. In this context, Article 12(2)(a) would seem to mean that the Court has jurisdiction only over crimes for which the criminal conduct took place within the territory of a State party, whether or not the result took place within a State party.
A defendant could therefore raise this argument against the jurisdiction of the ICC in a case of a cross-border war crime for instance. Imagine that a rocket fired by a Syrian national from the territory of Syria, not a State party, hits and kills civilians in Jordan, a State party. This might amount to a war crime of willful killing (prescribed by Article 8(2)(a)(i)). On the basis of the traditional interpretation of the term “conduct”, a defendant charged with responsibility for the attack could contest jurisdiction on the basis that the criminal conduct (the action of firing the rocket) took place on the territory of a State not party to the Rome Statute. Such a defense argument has not been raised so far. However, it is likely to happen in the future, particularly since such cross-border crimes are increasingly frequent due to the blurring of frontiers and the development of modern technology. In modern armed conflicts, belligerents increasingly prefer to rely upon long-distance delivery systems rather than engaging themselves in close combat. The on-going armed conflict in Gaza between Israel and the Hamas is a very good illustration of this trend.
This result is unsatisfying for the fight against impunity. I propose, however, a counter-argument which would allow the Court to claim jurisdiction over all crimes for which either the conduct or the result takes place within the territory of a State party, as if the drafters of the Rome Statute had actually used the term “commission”.
Filling the jurisdictional gap
There are several arguments against simply substituting the term “commission” with “conduct” without further justification. It appears that the drafters of the Statute intentionally used the latter term.First, the travaux préparatoires show that this terminology was chosen very early in the drafting process. For instance, in 1994, Article 21 of the International Law Commission’s Draft Statute for an International Criminal Court states that the Court’s jurisdiction with respect to a crime must be accepted “by the State on the territory of which the act or omission occurred”, not the State on the territory of which the crime was committed. This wording was not challenged until 1998 when the expression “act or omission” was replaced at the last minute by the term “conduct”, as no agreement was reached on the definition of “omission”.
Second, the second part of Article 12(2(a) speaks of crimes “committed on board a vessel or aircraft”. One must consider why there is a marked difference of wording, in the same provision, if it was not meant to emphasize a difference?
Third, the word choice could be explained as arising from important practical considerations. Indeed, since the alleged perpetrator as well as the evidence of the crime are most of the time to be found on the territory where the criminal conduct took place, if the conduct occurred in a non-State party, it would be nearly impossible for the Court to investigate the crime and request this State to arrest and surrender the alleged perpetrator, since only States parties are bound to cooperate. One could thus argue that it makes sense for the Court not to have jurisdiction over crimes for which the conduct took place in a non-State party.
The solution is to be found in an expansive interpretation of the term “conduct”, arising from the so-called “constructive conduct theory” developed in the US during the 19th century. It aims at connecting in time the conduct and the result of a crime. Pursuant to this theory, criminal conduct lasts until the result takes place. In this way, from a ratione loci point of view, the conduct is moving and not static as it is with the traditional interpretation. The conduct does not only take place where it started to take place but also everywhere the missile goes before causing the result of the crime. The conduct moves together with the missile. Therefore, if the missile crosses a border, the conduct virtually follows it and is considered as having taken place on both sides of the border. So when the rocket is fired from Syria to Jordan, the criminal conduct does not stop as soon as the perpetrator releases the trigger and the rocket is fired. It lasts until it explodes in Jordan and the war crime is committed. Pursuant to this theory, the conduct does not only take place in Syria but also in Jordan as soon as the rocket crosses the border. Therefore, the Court may exercise its jurisdiction. Within the context of the Rome Statute, such an interpretation is possible on the basis of Article 31 of the 1969 VCLT, which provides that the terms of a treaty should be interpreted in their literal meaning but also in light of the object and purpose of the treaty. According to the Preamble of the Rome Statute, its object is to “put an end to impunity” and “exercise (…) criminal jurisdiction over those responsible for international crimes”, i.e. strengthen the fight against impunity of international crimes. Therefore, a teleological interpretation of Article 12(2)(a) allows for an extensive interpretation of its terms as long as it aims to better fight against impunity.
Such a progressive interpretation is the only way to respect the wording of Article 12(2)(a) and, at the same time, provide the ICC with a territorial scope of jurisdiction similar to that which would have been considered if the drafters had used the term “commission”, thus allowing it to claim jurisdiction over all cross-border crimes involving the territory at least of one State party. The jurisdictional puzzle of the Court would therefore be complete.