excerpts from the book
Lawless World
The whistle-blowing account of
how Bush and Blair are taking the law into their own hands
by Philippe Sands
Penguin Books, 2006, paper
pxii
With the election of George W. Bush in November 2000, a US Administration
took office that was outspoken in its determination to challenge
global rules. Soon it turned into a full-scale assault, a war
on law...
pxii
... the George W. Bush Administration [tried] to remake the system
of global rules, from the abandonment of the Rome Statute on the
International Criminal Court and the Kyoto Protocol on global
warming, through the attempt to disapply the Geneva Conventions
and other human rights norms at Guantanamo and other places, to
the virtual disavowal of the United Nations' prescriptions prohibiting
the use of force.
pxvi
Governments, legal advisers and judges pay considerable attention
to the rules of international law. The media focuses on the exceptions.
That is not to say that law and politics are not intimately connected.
Plainly they are, both at the national and international levels.
The stories in this book may be understood as conflicts, between
political values and legal rules, between competing conceptions
as to the hierarchy of moral choices, between different interpretations
of what the rules require.
What is striking is how little is known
by the public at large of the transformation of international
relations that has taken place over the past fifty years. Notions
of sovereignty have changed with growing interdependence. To claim
that states are as sovereign today as they were fifty years ago
is to ignore reality. The extent of interdependence caused by
the avalanche of international laws means that states are constrained
by international obligations over an increasingly wide range of
actions.
p4
... the sixteenth of October I998 ... was the day on which the
former President of Chi e, Senator Augusto Pinochet, was arrested
while recuperating in a private London clinic from back surgery.
His arrest followed a request by judge Baltasar Garzón,
an independent Spanish criminal prosecutor, who was seeking Pinochet's
extradition to Spain to face criminal charges for violating international
laws between ii September 1973, when he seized power from Salvador
Allende in a coup d'etat, and March 1990, when he relinquished
Chile's presidency. The arrest was to raise a fundamental question
of international law: was Pinochet entitled to claim immunity
from the jurisdiction of the English courts on the grounds that
the alleged crimes were committed whilst he was Chile's head of
state? Politically, the question was of vital importance because
it signalled a move away from the old international legal order,
which was essentially dedicated to the protection of good relations
between states. During the legal proceedings which were held before
various English courts over the next two years, obscure rules
of international law moved into the mainstream of political and
public debate. The rules, the judges and the lawyers were scrutinized
and discussed in the press, and the debate became a global one.
From London to Santiago, from Kingston to Reykjavik, the media
covered the case in the minutest detail. The courtrooms were packed
with local and international journalists, and they had many questions.
What rules of international law permitted Britain to exercise
jurisdiction over a Chilean at the request of Spain? Where did
the rules of international law come from? How were they enforced?
How were they to be interpreted? What if different countries applied
them differently? How did international law balance the interest
of a sovereign state not to have its former head of state subjected
to the indignity of criminal proceedings abroad with the interests
of victims and the need to end impunity for the most serious international
crimes?
The House of Lords' first judgment, on
Z5 November 1998, was broadcast live on the BBC and CNN and transmitted
on radio broadcasts around the world, the first time this had
ever happened. The following day the judgment led the front pages
of virtually every newspaper in the world. It was a landmark day:
under international law the former head of state of one country
could not claim immunity from the jurisdiction of the courts of
another country to avoid facing charges that he had committed
the international crime of torture. In the end the decision of
the House of Lords was based on a single treaty, the little known
(but now mightily important) 1984 Convention against Torture.
The case gave rise to copycat litigation, new constraints on the
actions of governments, and an unparalleled interest in international
law. The 1984 Convention became significant five years later in
the controversies over the detention camps at Guantánamo
Bay and Abu Ghraib prison in Iraq.
The Pinochet case was significant for
another reason. It coincided with greater attention to other rules
of international law which had been put in place over the past
fifty years, and which increasingly (but silently) impacted on
people's daily lives. Rules of international law which had been
adopted since the end of the Second World War have provided the
foundations for globalization. By the late 1990S there had been
a sustained period of economic liberalization, and this was now
marked by large demonstrations in Seattle and elsewhere against
globalization and the rules of the new World Trade Organization.
These, it was said, would prevent countries from applying their
own health, environmental and labour standards. They were a new
form of colonialism. During the 1990s, following the collapse
of the Soviet bloc and the end of the Cold War, the international
community created a new International Criminal Court (after fifty
years of discussion) to end impunity for the most serious international
crimes, including genocide and war crimes. It was during this
period, in 1999, that President Milosevic of the Federal Republic
of Yugoslavia became the first serving head of state to be indicted
by an international criminal tribunal, in The Hague. But it was
also a time when sharp disagreements emerged between states as
to how far the rules of international law should go. Negotiations
for a global agreement on foreign investments collapsed. The United
States withdrew from the negotiations to prevent global warming,
as well as from other international treaties and negotiations.
In the aftermath of the 9/Il attacks on the World Trade Center
and the Pentagon attention was focused on the rules of international
law to combat terrorism, as well as on the conditions of detention
of prisoners at Guantánamo Bay and other camps in Afghanistan
and Iraq. Throughout this period there was also sustained public
debate on the continued validity and effectiveness of the rules
prohibiting the use of armed force and the adequacy of a United
Nations organization created in the aftermath of the Second World
War. The events in the Balkans in 1992, in Rwanda in 1994, the
Great Lakes region in Africa since 1997, Kosovo in 1999, Afghanistan
in 2001, and, most bitterly, in the spring of 2003 in Iraq, raised
serious questions about the adequacy of international rules to
protect fundamental human rights and to use force in self-defence
or under the aegis of the United Nations Security Council.
International rules are now frequently
seen as providing an independent benchmark against which to assess
the justification of behaviour - and in particular the behaviour
of states - which is politically or morally contentious.
p9
In April 1945 delegates from fifty countries met in San Francisco
to negotiate a Charter for the United Nations to replace the defunct
League of Nations. In his opening speech President Truman set
out America's strong commitment to international law, sweeping
aside the opposition from hard-core Republicans in the US Senate.
The UN Charter was signed on 26 June 1945 and came into force
four months later. Its stated objectives included the development
of international law, in particular to protect human rights, prevent
war and promote economic and social progress. This was the starting
point for the system of modern global rules. Although the US had
never joined the League of Nations, it did become a party to the
UN Charter.
Within a decade a totally new system of
international law and organizations had been created. By the 1950S
there existed an embryonic global constitutional order, with rules
that remain in place albeit rather shakily in some cases - to
this day. The system which emerged largely reflected an effort
to export Anglo-American values, and was motivated in part to
distinguish the values of the West from those of the Soviet bloc,
which had become entrenched behind the Iron Curtain which divided
Europe. The development of the global rules was to become a major
battleground for the Cold War.
In the field of human rights and humanitarian
law an important first step was the agreement to prosecute Nazi
war criminals. The Charter for the Nuremberg Military Tribunal
was agreed on 8 August 1945 by Britain, America, France and the
Soviet Union. This radical and far-reaching document aimed to
codify the rules of international law on war crimes and crimes
against humanity. The head of the American delegation was Robert
Jackson, a justice of the United States Supreme Court, who went
on to be the Chief Prosecutor at Nuremberg. In his memoirs he
described how British officials wanted to dispose of the six or
seven leading Nazis without trial, fearing that an open trial
would provide a sounding board for Nazi propaganda. But Roosevelt
disagreed: according to Jackson he 'was determined that a speedy
but fair trial should be accorded to war criminals.. . the President
insisted that there be a documentation of their crimes'.'
A few weeks later, a Commission on Human
Rights was established at the United Nations. The American delegation
was led by Eleanor Roosevelt, the recently widowed First Lady.
Over the next few years she led efforts to negotiate what became
the Universal
Declaration of Human Rights, adopted in
December 1948 by the UN General Assembly. It is arguably the single
most important international instrument ever negotiated. She considered
this text to be her finest accomplishment for its promotion of
the values reflected in the US Constitution:
We wanted as many nations as possible
to accept the fact that men, for one reason or another, were born
free and equal in dignity and rights, that they were endowed with
reason and conscience, and should act towards one another in a
spirit of brotherhood. The way to do that was to find words that
everyone would accept.'
The Declaration set out the first ever
code of basic human rights which would give effect to the United
Nations' determination that 'human rights should be protected
by the rule of law'. It was a nonbinding instrument, but it led
directly to binding obligations and new instruments in Europe,
the Americas and Africa. In 1966 many of its provisions were incorporated
into two legally binding instruments of potentially global application,
the International Covenant on Civil and Political Rights and the
International Covenant on Economic and Social Rights.
The day before the Universal Declaration
was adopted, on 9 December 1948, the world's first global human
rights treaty was agreed: forty-one countries signed the Convention
on the Prevention and Punishment of Genocide in Paris. The treaty
characterized genocide as 'a crime under international law', and
committed the parties to prevent and punish genocide. The United
States did not become a party for another forty years. When it
did so, however, in signing the implementing legislation President
Ronald Reagan declared that he was fulfilling 'the promise made
earlier by Harry Truman to all the peoples of the world', and
rejected the argument that the Convention somehow infringed American
sovereignty." A year after the Genocide Convention, on 12.
August 1949, forty-three countries adopted the four Geneva Conventions
for the Protection of War Victims, including treaties on the treatment
of prisoners of war (Geneva III) and the protection of civilians
(Geneva IV). These instruments criminalized various acts, and
made individuals - as well as governments - responsible. These
are the international instruments which President George W. Bush
sought to circumvent half a century later.
p20
During the Clinton Administration a powerful group of neo-conservatives
plotted to remake the international legal order. Their plan was
set out in various manifestos, such as the Statement of Principles
and other documents associated with the Project for the New American
Century. The main targets included the rules which had allowed
the detention of Pinochet, the new International Criminal Court,
and the Kyoto Protocol on global warming. It was said that these
threatened American national security. In November woo George
W. Bush was elected into office, bringing with him many of the
signatories of the Committee for the New American Century. John
Bolton became one of President Bush's senior foreign policy advisers
and was appointed Under Secretary for Arms Control and International
Security at the US State Department. In 1997, as Senior Vice President
of the American Enterprise Institute in Washington, DC, he declared
that treaties were simply political 'and not legally binding'."
Richard Haass, Director of Policy Planning at the US State Department
and now President of the prestigious US Council on Foreign Relations,
declared the Bush Administration's commitment to 'a la carte multilateralism';
in other words, the US could pick and choose those rules which
it wished to follow, and in other areas dispense with multilateral
rules and proceed according to its own interests.
Then came 9/11, and the wars in Afghanistan
and Iraq. Shortly after the end of the war in Iraq in April 2003,
Richard Perle, an architect of the neo-conservative agenda in
the United States, went even further, declaring publicly that
the war in Iraq provided an opportunity to refashion international
law and undermine the United Nations. Such actions began to look
like part of a systematic neoconservative effort to refashion
the international legal order in the light of new priorities and
values.
p21
... the events of 11 September 2001 became a catalyst for the
systematic disregard of established international rules on human
rights, the treatment of combatant prisoners and the use of military
force around the world ...
p23
[Augusto] Pinochet had come to power on an earlier 11 September,
in 1977 heading a coup which overturned the democratically elected
Marxist government of Salvador Allende. During the fifteen or
so years over which Pinochet ruled Chile more than 3,000 people
were murdered or disappeared. Fifteen years after he had left
office more than 1,500 of those who had disappeared had still
not been accounted for. Much of the terror was directed by the
Chilean Directorate of National Intelligence, the DINA, headed
by one of Pinochet's former pupils, Colonel Manuel Contreras Sepulveda.
Contreras explained his mission in an interview he gave in 2002:
[We] were ordered to repress subversions
and terrorism that existed in Chile in that epoch.. . We were
ordered to do that, and we accomplished that, and Chile was the
first country in the world that succeeded in eliminating terrorism
from its territory. We eliminated the terrorists from Chile, throwing
them out of the country, detaining them in Chile, putting them
on trial, with the result that we produced very few dead compared
with other countries, which still have terrorism.
The Colonel had previously confirmed that
he had served 'as the delegate of the President'. He reported
directly to Pinochet 'without any intermediary'. His orders always
came from Pinochet himself; in May z005, whilst in prison, he
finally provided detailed information on many of the disappeared.'
The 'elimination of terrorists' was not
an internal matter, limited to the territory of Chile. in November
1975, Pinochet's Chile had proposed an operation to eliminate
enemies all over the world, known as 'Operation Condor', bringing
together military leaders from Argentina, Bolivia, Chile, Paraguay
and Uruguay. A delegation from Brazil joined in I976. In September
1976, Orlando Letelier, a former Chilean ambassador to the United
States, was murdered. Over the next five years the 'Condor' victims
included a former president, a dissident military chief and various
democratic political leaders. Amongst the victims in Chile were
British and Spanish nationals. Many questions remain unanswered,
including the role of the United States in the coup of 11 September
1973 and in 'Operation Condor', and the part played by Henry Kissinger,
Richard Nixon's Secretary of State in the run-up to the coup and
in the first months of 'Operation Condor'.
Pinochet left office in March 1990, but
was appointed a Senator-for-Life. He continued to have a role
in the Chilean government, advising on arms purchases. He visited
Britain frequently, travelling on a diplomatic passport. On 22
September 1998 he arrived in London for a private visit, to undergo
surgery for a herniated disc. Three weeks late Chile's former
head of state and a personal friend of Margaret Thatcher was arrested
while recuperating at the London Clinic, just off Harley Street.
On the evening of Friday, 16 October, around 9 p.m., Nicholas
Evans, an English magistrate, signed a provisional arrest warrant
following a request from Spain. The warrant called on 'each and
all of the Constables of the Metropolitan Police Force' to arrest
Pinochet, on the grounds that between ii September 1973 and 1
December 1983 he 'did murder Spanish citizens in Chile'. Over
the following days the arrest made the headlines all over the
world. This was the first time that a former head of state had
been arrested in Britain. It signalled a new commitment to international
human rights law, a further step towards ending impunity.
Pinochet's arrest made international news
because it reflected a fundamental shift in the balance of international
priorities, and a commitment to the rule of law. Until October
1998 it was generally thought that a head of state - even a former
head of state - had the right to enjoy complete immunity from
the criminal jurisdiction of the courts of any other country for
acts which might have been carried out in office. The rationale
was a traditional and long-established rule of international law:
a head of state is treated as the incarnation of the state itself
- 'l'état c'est moi'. This means that any restraint on
the individual amounts to an interference with the independence
and sovereignty of the state itself o arrest Pinochet was to impugn
the honour and sovereignty of life itself. -o
Pinochet had travelled to the United Kingdom
in the belief that his status protected him from being investigated
there for allegations concerning violations of fundamental human
rights while he had been head of state. Shortly before he left
Santiago he gave an interesting interview for the New Yorker magazine.
This remarkably ill-advised contribution provided titbits of information
on everything from his regular teas with Mrs Thatcher to his abiding
commitment to the rule of law: 'Human rights! I say there has
to be human rights for both sides. '6 But the 'aspirante dictator',
as he styled himself, was let down by his advisers. They had not
considered the effects of new international human rights laws.
In particular, they had not accounted for the 1984 UN Convention
against Torture, which required states to prosecute or extradite
any alleged torture; or anyone who had been complicit in torture.
Curiously, at the tail end of his presidency, in October 1988,
Pinochet had personally taken the decision that Chile should ratify
this Convention, presumably as a way of signalling his regime's
new-found commitment to fundamental rights. The decision would
come back to haunt him.
Along with other conventions outlawing
genocide, terrorism and discrimination, the 1984 Convention made
torture an international crime for which individuals could be
responsible. During the afternoon of 116 October 1998, a Spanish
magistrate, judge Baltasar Garzón, issued an order for
Pinochet's detention for crimes of genocide and terrorism. Through
Interpol he circulated an international warrant for Pinochet's
arrest.' Garzón's actions were part of a broader effort
by independent prosecutors in other countries, including Spain,
France, Belgium and Switzerland. Each subsequently made their
own extradition requests. Garzón's order was based on allegations
that Pinochet had carried out criminal activities in coordination
with the Argentine military authorities between 1976 and 1983,
and had ordered the elimination of several individuals and the
torture, kidnapping and disappearance of others. The warrant alleged
that these activities had been carried out through the operations
of the DINA, as part of 'Operation Condor'.
p205
George W. Bush, December 11, 2003
"International law? I better call
my lawyer. I ... I don't know what you're talking about by international
law."
p241
Condoleezza Rice, January 31, 2005
[The State] Department, along with the
rest of the Administration, will be a strong voice for international
legal norms, for living up to our treaty obligations, to recognizing
that America's moral authority in international politics also
rests on our ability to defend international laws and international
treaties.
*****
p306
Rome Statute of the International Criminal
Court (1998, extracts)
Preamble
The States Parties to this Statute,
Conscious that all peoples are united
by common bonds, their cultures pieced together in a shared heritage,
and concerned that this delicate mosaic may be shattered at any
time,
Mindful that during this century millions
of children, women and men have been victims of unimaginable atrocities
that deeply shock the conscience of humanity,
Recognizing that such grave crimes threaten
the peace, security and wellbeing of the world,
Affirming that the most serious crimes
of concern to the international community as a whole must not
go unpunished and that their effective prosecution must be ensured
by taking measures at the national level and by enhancing international
cooperation,
Determined to put an end to impunity for
the perpetrators of these crimes and thus to contribute to the
prevention of such crimes,
Recalling that it is the duty of every
State to exercise its criminal jurisdiction over those responsible
for international crimes,
Reaffirming the Purposes and Principles
of the Charter of the United Nations, and in particular that all
States shall refrain from the threat or use of force against the
territorial integrity or political independence of any State,
or in any other manner inconsistent with the Purposes of the United
Nations,
Emphasizing in this connection that nothing
in this Statute shall be taken as authorizing any State Party
to intervene in an armed conflict or in the internal affairs of
any State,
Determined to these ends and for the sake
of present and future generations, to establish an independent
permanent International Criminal Court in relationship with the
United Nations system, with jurisdiction over the most serious
crimes of concern to the international community as a whole,
Emphasizing that the International Criminal
Court established under this Statute shall be complementary to
national criminal jurisdictions,
Resolved to guarantee lasting respect
for and the enforcement of international justice,
Have agreed as follows:
Article I
The Court
An International Criminal Court ('the
Court') is hereby established. It shall be a permanent institution
and shall have the power to exercise its jurisdiction over persons
for the most serious crimes of international concern, as referred
to in this Statute, and shall be complementary to national criminal
jurisdictions. The jurisdiction and functioning of the Court shall
be governed by the provisions of this Statute.
Article 5
Crimes within the jurisdiction of the
Court
I. The jurisdiction of the Court shall
be limited to the most serious crimes of concern to the international
community as a whole. The Court has jurisdiction in accordance
with this Statute with respect to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity; (c) War crimes;
(d) The crime of aggression.
z. The Court shall exercise jurisdiction
over the crime of aggression once a provision is adopted in accordance
with articles 121 and 123 defining the crime and setting out the
conditions under which the Court shall exercise jurisdiction with
respect to this crime. Such a provision shall be consistent with
the relevant provisions of the Charter of the United Nations.
Article 6
Genocide
For the purpose of this Statute, 'genocide'
means any of the following acts committed 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.
Article 7 Crimes against humanity
I. For the purpose of this Statute, 'crime
against humanity' means any of the following acts when committed
as part of a widespread or systematic attack directed against
any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination; (c) Enslavement;
(d) Deportation or forcible transfer of
population;
(e) Imprisonment or other severe deprivation
of physical liberty in violation of fundamental rules of international
law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution,
forced pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity; (h) Persecution against
any identifiable group or collectivity on political, racial, national,
ethnic, cultural, religious, gender as defined in paragraph 3,
or other grounds that are universally recognized as impermissible
under international law, in connection with any act referred to
in this paragraph or any crime within the jurisdiction of the
Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character
intentionally causing great suffering, or serious injury to body
or to mental or physical health.
2. For the purpose of paragraph I:
(a) 'Attack directed against any civilian
population' means a course of conduct involving the multiple commission
of acts referred to in paragraph
against any civilian population, pursuant
to or in furtherance of a State or organizational policy to commit
such attack;
(b) 'Extermination' includes the intentional
infliction of conditions of life, inter alia the deprivation of
access to food and medicine, calculated to bring about the destruction
of part of a population;
(c) 'Enslavement' means the exercise of
any or all of the powers attaching to the right of ownership over
a person and includes the exercise of such power in the course
of trafficking in persons, in particular women and children;
(d) 'Deportation or forcible transfer
of population' means forced displacement of the persons concerned
by expulsion or other coercive acts from the area in which they
are lawfully present, without grounds permitted under international
law;
(e) 'Torture' means the intentional infliction
of severe pain or suffering, whether physical or mental, upon
a person in the custody or under the control of the accused; except
that torture shall not include pain or suffering arising only
from, inherent in or incidental to, lawful sanctions;
(f) 'Forced pregnancy' means the unlawful
confinement of a woman forcibly made pregnant, with the intent
of affecting the ethnic composition of any population or carrying
out other grave violations of international law. This definition
shall not in any way be interpreted as affecting national laws
relating to pregnancy;
(g) 'Persecution' means the intentional
and severe deprivation of fundamental rights contrary to international
law by reason of the identity of the group or collectivity;
(h) 'The crime of apartheid' means inhumane
acts of a character similar to those referred to in paragraph
I, committed in the context of an institutionalized regime of
systematic oppression and domination by one racial group over
any other racial group or groups and committed with the intention
of maintaining that regime;
(i) 'Enforced disappearance of persons'
means the arrest, detention or abduction of persons by, or with
the authorization, support or acquiescence of, a State or a political
organization, followed by a refusal to acknowledge that deprivation
of freedom or to give information on the fate or whereabouts of
those persons, with the intention of removing them from the protection
of the law for a prolonged period of time.
3. For the purpose of this Statute, it
is understood that the term 'gender' refers to the two sexes,
male and female, within the context of society. The term 'gender'
does not indicate any meaning different from the above.
Article 8
War crimes
i. The Court shall have jurisdiction in
respect of war crimes in particular when committed as part of
a plan or policy or as part of a large-scale commission of such
crimes.
2. For the purpose of this Statute, 'war
crimes' means:
(a) Grave breaches of the Geneva Conventions
of 12 August 1949, namely, any of the following acts against persons
or property protected under the provisions of the relevant Geneva
Convention:
(i) Wilful killing; (ii) Torture or inhuman
treatment, including biological experiments; (iii) Wilfully causing
great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation
of property, not justified by military necessity and carried out
unlawfully and wantonly;
(v) Compelling a prisoner of war or other
protected person to serve in the forces of a hostile Power;
(vi) Wilfully depriving a prisoner of
war or other protected person of the rights of fair and regular
trial;
(vii) Unlawful deportation or transfer
or unlawful confinement; (viii) Taking of hostages.
(b) Other serious violations of the laws
and customs applicable in international armed conflict, within
the established framework of international law, namely, any of
the following acts:
(i) Intentionally directing attacks against
the civilian population as such or against individual civilians
not taking direct part in hostilities;
(ii) Intentionally directing attacks against
civilian objects, that is, objects which are not military objectives;
(iii) Intentionally directing attacks
against personnel, installations, material, units or vehicles
involved in a humanitarian assistance or peacekeeping mission
in accordance with the Charter of the United Nations, as long
as they are entitled to the protection given to civilians or civilian
objects under the international law of armed conflict;
(iv) Intentionally launching an attack
in the knowledge that such attack will cause incidental loss of
life or injury to civilians or damage to civilian objects or widespread,
long-term and severe damage to the natural environment which would
be clearly excessive in relation to the concrete and direct overall
military advantage anticipated;
(v) Attacking or bombarding, by whatever
means, towns, villages,
dwellings or buildings which are undefended
and which are not military objectives;
(vi) Killing or wounding a combatant who,
having laid down his arms or having no longer means of defence,
has surrendered at discretion;
(vii) Making improper use of a flag of
truce, of the flag or of the military insignia and uniform of
the enemy or of the United Nations, as well as of the distinctive
emblems of the Geneva Conventions, resulting in death or serious
personal injury;
(viii) The transfer, directly or indirectly,
by the Occupying Power of parts of its own civilian population
into the territory it occupies, or the deportation or transfer
of all or parts of the population of the occupied territory within
or outside this territory;
(ix) Intentionally directing attacks against
buildings dedicated to religion, education, art, science or charitable
purposes, historic monuments, hospitals and places where the sick
and wounded are collected, provided they are not military objectives;
(x) Subjecting persons who are in the
power of an adverse party to physical mutilation or to medical
or scientific experiments of any kind which are neither justified
by the medical, dental or hospital treatment of the person concerned
nor carried out in his or her interest, and which cause death
to or seriously endanger the health of such person or persons;
(xi) Killing or wounding treacherously
individuals belonging to the hostile nation or army;
(xii) Declaring that no quarter will be
given;
(xiii) Destroying or seizing the enemy's
property unless such destruction or seizure be imperatively demanded
by the necessities of war;
(xiv) Declaring abolished, suspended or
inadmissible in a court of law the rights and actions of the nationals
of the hostile party;
(xv) Compelling the nationals of the hostile
party to take part in the operations of war directed against their
own country, even if they were in the belligerent's service before
the commencement of the war;
(xvi) Pillaging a town or place, even
when taken by assault; (xvii) Employing poison or poisoned weapons;
(xviii) Employing asphyxiating, poisonous
or other gases, and all analogous liquids, materials or devices;
(xix) Employing bullets which expand or
flatten easily in the human body, such as bullets with a hard
envelope which does not entirely cover the core or is pierced
with incisions;
(xx) Employing weapons, projectiles and
material and methods of warfare which are of a nature to cause
superfluous injury or unnecessary suffering or which are inherently
indiscriminate in violation of the international law of armed
conflict, provided that such weapons, projectiles and material
and methods of warfare are the subject of a comprehensive prohibition
and are included in an annex to this Statute, by an amendment
in accordance with the relevant provisions set forth in articles
121 and 123;
(xxi) Committing outrages upon personal
dignity, in particular humiliating and degrading treatment;
(xxii) Committing rape, sexual slavery,
enforced prostitution, forced pregnancy, as defined in article
, paragraph z (f), enforced sterilization, or any other form of
sexual violence also constituting a grave breach of the Geneva
Conventions;
(xxiii) Utilizing the presence of a civilian
or other protected person to render certain points, areas or military
forces immune from military operations;
(xxiv) Intentionally directing attacks
against buildings, material, medical units and transport, and
personnel using the distinctive emblems of the Geneva Conventions
in conformity with international law;
(xxv) Intentionally using starvation of
civilians as a method of warfare by depriving them of objects
indispensable to their survival, including wilfully impeding relief
supplies as provided for under the Geneva Conventions;
(xxvi) Conscripting or enlisting children
under the age of fifteen years into the national armed forces
or using them to participate actively in hostilities.
(c) In the case of an armed conflict not
of an international character, serious violations of article common
to the four Geneva Conventions of 12. August 1949, namely, any
of the following acts committed against persons taking no active
part in the hostilities, including members of armed forces who
have laid down their arms and those placed hors de combat by sickness,
wounds, detention or any other cause:
(i) Violence to life and person, in particular
murder of all kinds, mutilation, cruel treatment and torture;
(ii) Committing outrages upon personal
dignity, in particular humiliating and degrading treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the
carrying out of executions without previous judgement pronounced
by a regularly constituted court, affording all judicial guarantees
which are generally recognized as indispensable.
(d) Paragraph z (c) applies to armed conflicts
not of an international character and thus does not apply to situations
of internal disturbances and tensions, such as riots, isolated
and sporadic acts of violence or other acts of a similar nature.
(e) Other serious violations of the laws
and customs applicable in armed conflicts not of an international
character, within the established framework of international law,
namely, any of the following acts:
(i) Intentionally directing attacks against
the civilian population as such or against individual civilians
not taking direct part in hostilities;
(ii) Intentionally directing attacks against
buildings, material, medical units and transport, and personnel
using the distinctive emblems of the Geneva Conventions in conformity
with international law;
(iii) Intentionally directing attacks
against personnel, installations, material, units or vehicles
involved in a humanitarian assistance or peacekeeping mission
in accordance with the Charter of the United Nations, as long
as they are entitled to the protection given to civilians or civilian
objects under the international law of armed conflict;
(iv) Intentionally directing attacks against
buildings dedicated to religion, education, art, science or charitable
purposes, historic monuments, hospitals and places where the sick
and wounded are collected, provided they are not military objectives;
(v) Pillaging a town or place, even when
taken by assault;
(vi) Committing rape, sexual slavery,
enforced prostitution, forced pregnancy, as defined in article
, paragraph z (f), enforced sterilization, and any other form
of sexual violence also constituting a serious violation of article
common to the four Geneva Conventions;
(vii) Conscripting or enlisting children
under the age of fifteen years into armed forces or groups or
using them to participate actively in hostilities; (viii) Ordering
the displacement of the civilian population for reasons related
to the conflict, unless the security of the civilians involved
or imperative military reasons so demand;
(ix) Killing or wounding treacherously
a combatant adversary; (x) Declaring that no quarter will be given;
(xi) Subjecting persons who are in the
power of another party to the conflict to physical mutilation
or to medical or scientific experiments of any kind which are
neither justified by the medical, dental or hospital treatment
of the person concerned nor carried out in his or her interest,
and which cause death to or seriously endanger the health of such
person or persons; (xii) Destroying or seizing the property of
an adversary unless such destruction or seizure be imperatively
demanded by the necessities of the conflict;
(f) Paragraph z (e) applies to armed conflicts
not of an international character and thus does not apply to situations
of internal disturbances and tensions, such as riots, isolated
and sporadic acts of violence or other acts of a similar nature.
It applies to armed conflicts that take place in the territory
of a State when there is protracted armed conflict between governmental
authorities and organized armed groups or between such groups.
3. Nothing in paragraph z (c) and (e)
shall affect the responsibility of a Government to maintain or
re-establish law and order in the State or to defend the unity
and territorial integrity of the State, by all legitimate means.
Article 12 Preconditions to the exercise
of jurisdiction
I. A State which becomes a Party to this
Statute thereby accepts the jurisdiction of the Court with respect
to the crimes referred to in article .
2. In the case of article 13, paragraph
(a) or (c), the Court may exercise its jurisdiction if one or
more of the following States are Parties to this Statute or have
accepted the jurisdiction of the Court in accordance with paragraph
:
(a) The State on the territory of which
the conduct in question occurred or, if the crime was committed
on board a vessel or aircraft, the State of registration of that
vessel or aircraft;
(b) The State of which the person accused
of the crime is a national.
Article 17 Issues of admissibility
i. Having regard to paragraph 10 of the
Preamble and article x, the Court shall determine that a case
is inadmissible where:
(a) The case is being investigated or
prosecuted by a State which has jurisdiction over it, unless the
State is unwilling or unable genuinely to carry out the investigation
or prosecution;
(b) The case has been investigated by
a State which has jurisdiction over it and the State has decided
not to prosecute the person concerned, unless the decision resulted
from the unwillingness or inability of the State genuinely to
prosecute;
(c) The person concerned has already been
tried for conduct which is the subject of the complaint, and a
trial by the Court is not permitted under article 20, paragraph
;
(d) The case is not of sufficient gravity
to justify further action by the Court.
Article 98
Cooperation with respect to waiver of
immunity and consent to surrender
I. The Court may not proceed with a request
for surrender which would require the requested State to act inconsistently
with its obligations under international agreements pursuant to
which the consent of a sending State is required to surrender
a person of that State to the Court, unless the Court can first
obtain the cooperation of the sending State for the giving of
consent for the surrender.
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