the international criminal court as a means of enforcing...

Faculty of Law

Academic Year 2015-16

Exam Session [1]

The International Criminal Court as a Means of Enforcing

Individual Criminal Responsibility for War Crimes

Committed in Non-International Armed Conflicts

LLM Paper

By Mohamed Riyad M. Almosly

Student number: 01501287

Promoter: Professor Tom Ruys

Ghent University, Faculty of Law – International Relations Office Universiteitstraat 4, B-9000 Gent, Belgium

www.UGent.be

i Ghent University, Faculty of Law – International Relations Office Universiteitstraat 4, B-9000 Gent, Belgium

www.UGent.be

Acknowledgment

I would like to thank Professor Tom Ruys. It would not have been possible to complete

this work without his valuable comments and unrelenting support. I am immensely indebted to my

family which has been a source of passion and strength.

Mohamed Almosly

ii Ghent University, Faculty of Law – International Relations Office Universiteitstraat 4, B-9000 Gent, Belgium

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Table of Contents

- Acknowledgment ………. i

- List of Abbreviations ………. iii

- Introduction ………. 1

- Chapter One: the Concept of NIAC in the ICC Statute: ………. 3

A. Introduction ………. 3

B. The origins of Article 8(2)(d) and (f) ………. 3

C. The threshold of applicability of the ICC Statute to NIAC: ………. 7

1. Dual threshold doctrine ………. 8

2. Monistic threshold doctrine ………. 10

D. NIACs of Common Article 3: ………. 12

1. The required degree of organisation ………. 14

2. Intensity ………. 17

E. Concluding remarks ………. 20

- Chapter Two: the Enforcement of Individual Criminal Responsibility for War Crimes

Committed in NIAC through the ICC: ………. 21

A. Introduction ………. 21

B. The ICC’s jurisdiction and the principle of complementarity ………. 21

1. Determining the unwillingness of the national courts ………. 24

2. Determining the inability of the national courts ………. 24

3. The gravity threshold ………. 26

C. Obstacles to the exercise of the ICC jurisdiction ratione materiae over war crimes

committed in NIAC ………. 30

D. The cooperation between the ICC and the national authorities: Are the non-state armed

groups under obligation to cooperate? ………. 34

E. Concluding remarks ………. 39

- Conclusion: ………. 40

A. Chapter one ………. 40

B. Chapter two ………. 41

- Bibliography ………. 43-49.

iii Ghent University, Faculty of Law – International Relations Office Universiteitstraat 4, B-9000 Gent, Belgium

www.UGent.be

List of Abbreviations

APII Protocol Additional to the Geneva Conventions of 12 August 1949, and

Relating to the Protection of Victims of NIN-International Armed

Conflicts, of 8 June 1977

ASP Assembly of States Parties of the International Criminal Court

IAC International Armed Conflict

ICC International Criminal Court

ICRC International Committee of the Red Cross

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the former Yugoslavia

ILC International Law Commission

LOAC Law of Armed Conflict

NIAC Non-International Armed Conflict

Rome Conference

UN Diplomatic Conference of Plenipotentiaries on the Establishment of

an International Criminal Court which took place in Rome from 15 June

until 17 July 1998

The Draft Draft for the establishment of an International Criminal Court submitted

by the International Law Commission in its forty-sixth session in 1994

UN United Nations

UNSC United Nations Security Council

iv Ghent University, Faculty of Law – International Relations Office Universiteitstraat 4, B-9000 Gent, Belgium

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To the victims of war crimes in Iraq, Palestine, Syria and Yemen

1 Ghent University, Faculty of Law – International Relations Office Universiteitstraat 4, B-9000 Gent, Belgium

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Introduction:

International humanitarian law (IHL or jus in bello) is a body of rules that applies whenever

there is a resort to armed conflict, irrespective whether such resort is permitted under international

law or not. From a humanitarian point of view, the whole body of IHL shall be applicable to all

types of armed conflicts and the perpetrators of war crimes shall be prosecuted, at the national or

international level, without making any differences between crimes that have been committed in

international or internal armed conflict. Yet, such desire is far from reality. Legally speaking, the

whole body of IHL applies to international armed conflicts (IACs) whereas only a limited part of

it applies to non-international armed conflicts (NIACs). The ability to prosecute war crimes

committed in NIACs is not as equal as those in IACs.

The concept of NIAC and its legal framework is one of the most controversial issues in the

contemporary international law because most of its rules carry political motives and reflect the

result of long debated compromises among the States. The non-existence of one agreed definition

to NIAC demonstrates the controversial nature of this topic. The development of the rules

applicable to NIAC has been slower than the rules applicable to IAC mainly because the States

were and still manipulates the concept of NIAC to protect their political interests, they think that

providing the belligerents, involved in NIAC, further protection might enable the latter to obtain a

legal character and consequently makes the State in question involved in a real war. In other words,

providing further protection would limit the States power to oppress the belligerents swiftly and

would be considered as “an incentive to encourage rebellion”.1 Furthermore, the non-existence of

an independent international body to assess the existence of NIAC in a particular situation gives

the States unlimited power to deal with the situation in hand as a mere criminal act and to reject

the recognition of the applicability of IHL eventually.2

All the above mentioned criteria played a major role in the vagueness of the concept of

NIAC and in limiting its substantive rules. Consequently, Jus in bello regulates NIAC in a non-

comprehensive manner in comparison with the IAC. This is regrettable because the recent history

has evidenced the existence of NIACs more than IACs,3 the atrocities and crimes that have been

committed during NIACs were even crueler than those that have been committed during IACs.4

However, in the light of the huge number of NIACs and the cruel atrocities that have occurred, the

concept of individual criminal responsibility for war crimes committed in NIAC has evolved since

the nineties of last century, mainly through the trials of the International Tribunals for the Former

1 Sandesh Sivakumaran, Non-International Armed Conflict: The Applicable Law, Edited by the College of Europe,

Scope of Application of International Humanitarian Law, 13th Brugge Collegium 18-19 October 2012, p. 32. Available

at : https://www.coleurope.eu/sites/default/files/uploads/page/collegium_43_webversie.pdf 2 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Oxford University Press, 2012, p. 564. 3 Anthony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law, Cambridge

University Press, 2010, p. 1. 4 Eve La Haye, War Crimes in Internal Armed Conflicts, Cambridge University Press, 2008, p. 43.

https://www.coleurope.eu/sites/default/files/uploads/page/collegium_43_webversie.pdf


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Yugoslavia (ICTY) and Rwanda (ICTR), and through the adoption of the Statute of the

International Criminal Court (ICC).5 Although such development has occurred, the ICC’s ability

to enforce such criminal responsibility is doubtful and can be questioned.

This thesis will critically attempt to examine: first, the definition of NIAC in the ICC

Statute and whether the legal instruments of the Statute has been adopted in a way that simplifies

the process of the classification of armed conflicts. Does the Statute, under Article 8(2), provide

two types of threshold of application, the first is under subparagraph (c) that is applicable to NIACs

of Common Article 3 and the second is under subparagraph (f) that is applicable to protracted

armed conflict? Secondly, does the ICC have the ability to effectively enforce the individual

criminal responsibility for war crimes committed in NIAC?

In order to answer the first question, Chapter one will explore the historical debate that led

to the adoption of Article 8(2)(c), (d), (e) and (f). Then the threshold of applicability of this Article

will be studied by way of comparison with Common Article 3 and Additional Protocol II (APII)

and by taking into account the International Tribunals and the ICC’s understanding of their textual

interpretation.

Chapter Two discusses the answer to the second question by examining three key issues,

firstly, whether the complementary role of the ICC is an obstacle to its effectiveness. Secondly,

the jurisdiction ratione materiae of the ICC over war crimes in NIAC. Lastly, the legal framework

of the cooperation mechanism between the ICC and the States.

5 Jean-Marie Henckaerts and Louise Doswald-Beck “International Committee of the Red Cross”, Customary

international Humanitarian Law, Volume I: Rules, Cambridge University Press, 2005, pp. 552-553. Available at:

https://www.icrc.org/eng/assets/files/other/customary-international-humanitarian-law-i-icrc-eng.pdf



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Chapter One

The Concept of NIAC in the ICC Statute 6

A. Introduction:

Defining the legal category of an armed conflict, whether internal or international, is

important from a legal and political point of view. From a legal point of view because it determines

which set of rules should be applied in that particular conflict. It identifies the legal framework

and limits within which the parties involved shall act. It specifies the rights and duties of not only

the confronted parties but also of the third States.7 Politically, the determination of the existence

of an armed conflict in a particular State would paralyze its sovereign powers, i.e. affects its

sovereign rights to decline the privileges that the adversary party enjoys under the LOAC.8 On the

other hand, in some occasions the States might prefer to recognize the existence of NIAC to be

benefited from the flexible targeting principles of LOAC in such situations.9 It is not strange that

the International law provides more than one definition to NIAC, simply because the adoption of

one universally acceptable mechanism would make the identification of its existence not a very

hard task and thus would limit the States’ ability to ignore its existence. In other words, the easier

to identify NIAC the more the sovereign rights of the States will be weaken, which eventually

prevents the States from promoting their own interests.10

The determination of the existence of NIAC is, practically and theoretically, a problematic

exercise. Practically, because of the absence of an international body that has a universal

jurisdiction to issue binding decisions regarding the classification of armed conflicts.11

Theoretically, because of the non-existence of one set of rules applicable to NIAC, i.e. the

existence of two thresholds of application namely under Common Article 3 and AP II adds further

complexity to the process of the classification of armed conflict. The threshold of applicability of

the ICC Statutes to NIAC is governed by Article 8(2)(d) and (f). However, the threshold contained

in these provisions is not straightforward and has been a controversial issue among the legal

scholars. This chapter will examine the historical debate that led to its adoption, the legal scholars’

opinion regarding its textual interpretation, and the concept of NIAC in the ICC Statute compared

to Common Article 3 and APII.

B. The origins of Article 8(2)(d) and (f):

The original draft for the establishment of an International Criminal Court (the Draft),

submitted by the International Law Commission (ILC) in its forty-sixth session in 1994, did not

6 See Anthony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law, pp. 159-185. 7 Eliav Lieblich, International Law and Civil Wars “Intervention and Consent”, Routledge, 2013, p. 47. 8 Lindsay Moir, The Law of internal Armed Conflict, Cambridge Studies in International and Comparative Law, 2004,

p. 34; Robert Kolb and Richard Hyde, an Introduction to the International Law of Armed Conflicts, Hart Publishing,

2008, p. 257. 9 Eliav Lieblich, International Law and Civil Wars “Intervention and Consent”, p. 50. 10 Anthony Cullen, The Characterization of Armed Conflict in the Jurisprudence of the ICC. In: Carsten Stahn (ed.),

The Law and Practice of the International Criminal Court, Oxford University Press, 2015, p. 775. 11 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, p. 564.


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differentiate between war crimes committed in NIAC and IAC. Article 20(c) of the draft provides

that “the Court has jurisdiction in accordance with this Statute with respect to … serious violations

of the laws and customs applicable in armed conflict”.12 Hence, the original Draft intended to give

the ICC a jurisdiction over war crimes, irrespective of the types of conflict in which they have

been committed. The widening of the ICC’s jurisdiction over all types of armed conflict has proven

to be impossible, due to the States’ concern that such jurisdiction would give an international body

the capacity to interfere in their internal affairs,13 and hence their sovereignty would be weaken.14

Therefore, it becomes clear that NIAC cannot be treated in an equal manner with IAC under the

ICC Statute.

Consequently, the Draft of the ILC has not received the required support and thus a review

for its content was needed to adopt another proposal that satisfies the sovereignty concerns. For

thit purpose, the General Assembly of the UN decided to establish the Ad Hoc Committee in 9

December 1994, which was replaced in 11 December 1995 by the Preparatory Committee on the

Establishment of an International Criminal Court.15

Eventually, a new draft was submitted by the Preparatory Committee in 14 April 1998. The

new draft distinguished between war crimes committed in IAC under Article 5 section (A) and (B)

on one hand and war crimes committed in NIAC with more limited list of crimes under section

(C) and (D) on the other hand. Section (C) contained crimes relating to “serious violations of

Common Article 3” and Section (D) provided jurisdiction for the Court over “other serious

violations of the laws and customs applicable in armed conflict not of an international character

within the established framework of international law”. What is important here is that both sections

(C) and (D) did not contain any threshold of application, they were simply intended to be

applicable to all types of NIACs, and thus their threshold of application was similar to that of

Common Article 3.16

The inclusion of provisions that criminalize war crimes committed in NIAC has received

different views during the negotiation of the ICC Statute in the UN Diplomatic Conference of

Plenipotentiaries on the Establishment of an International Criminal Court which took place in

Rome from 15 June until 17 July 1998 (Rome Conference). Some States strongly contested the

idea of extending the ICC’s jurisdiction over war crimes committed in NIAC. The Indian delegate

12 Report of the International Law Commission on the work of its forty-sixth session, 2 May-22 July 1994, Document

A/49/10, p. 38. Available at: http://legal.un.org/ilc/reports/reports1990.shtml (emphasis added) 13 See for example, the Sudanese position speaking on behalf of the Arab States said that “The Arab States were afraid

that the inclusion of non-international conflicts within the Statute would allow interference in the internal affairs of

States on flimsy pretexts”. Official Records of the UN Diplomatic Conference of Plenipotentiaries on the

Establishment of an International Criminal Court, Volume II, 1998, Document A/CONF.183/SR.9, para. 75, p. 126. 14 Jackson Nyamuya Maogoto, State Sovereignty and International Criminal Law: Versailles to Rome, Matinus

Nijhoff, 2003, p. 237. 15 Official Records, Rome Conference, Volume III, Document A/CONF.183/2, pp. 82-83. 16 Report of the Preparatory Committee on the Establishment of an International Criminal Court, 14 April 1998,

Document A/CONF.183/2/Add.1, pp.21-5. Available at http://legal.un.org/icc/docs.htm; See also Anthony Cullen,

The Concept of Non-International Armed Conflict in International Humanitarian Law, pp. 162-163.

http://legal.un.org/ilc/reports/reports1990.shtml

http://legal.un.org/icc/docs.htm


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spoke not in favour of the inclusion Sections (C) and (D) by saying: “that there could not be a

homogeneous structure of treatment of international and non international armed conflicts so long

as sovereign States existed”.17 This view was similar to those pronounced by inter alia Syria,

Turkey, China, Iraq and Egypt.

In contrast, many States supported the adoption of both sections18 The Austrian Delegate

said that: “[t]he reference to internal conflicts was a sine qua non for his delegation”.19 This was

supported by the USA delegate who stressed that the legal framework of NIACs had entailed a

significant development and hence it should be referred to in the ICC Statute.20 The International

Committee of the Red Cross (ICRC) considered it “essential” to empower the ICC to have

jurisdiction over war crimes committed in NIAC.21 In fact the extension of the ICC’s jurisdiction

over crimes committed in NIAC has been considered necessary for many reasons such as: firstly,

“a failure to include internal armed conflicts would have rendered the ICC impotent regarding

prosecution of what are now the most common violations of international humanitarian law”.22

Secondly, “these violations had gone unpunished in the past due to the disappointing performance

of national courts not investigating crimes sufficiently and at times even failing to investigate

crimes all together”.23 Thirdly, the creation of the ICTY and ICTR and their jurisdiction has led to

the gradual acceptance in the international community that the commission of such crimes entails

international criminal responsibility.24

Due to the controversies among the States, the Bureau of the Assembly of States Parties

submitted a proposal in 11 July 1998 to add a threshold for the application of Section D that is

similar to the threshold of applicability of APII. The proposal provides that “Section D … applies

to armed conflicts that take place in a territory of a State 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

17 Official Records, Rome Conference, Volume II, Document A/CONF.183/C1/SR.5, para. 115, p. 126. 18 See for example the position of the following countries Canada, Belgium, New Zeeland, Czech Republic, Ireland,

Republic of Korea, Brazil (paras. 108-14), UK and Norway (paras. 117-19) in Ibid, p. 169. 19 Ibid, Document A/CONF.183/C.1/SR.27, para. 8, p. 283. 20 Ibid, Document A/CONF.183/C.1/SR.6, para. 100, p. 176. 21 Ibid, Volume III, Document A/CONF.183/INF/10, para. 3. 22 Lindsay Moir, Particular issues Regarding War Crimes in Internal Armed Conflict, 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, Martinus Nijhoff Publishers, 2009, p. 611. 23 Jan Wouters and Sudeshna Basu, The Creation of a Global Criminal Justice System: The European Union and the

International Criminal Court, In: Cedric Ryngaert (ed.), The Effectiveness of International Criminal Justice, Cost

Office, 2009, p. 123. 24 Jelena Pejic, Accountability for international crimes: From Conjecture to Reality, International Review of the Red

Cross, Vol.84, No.845, 2002, p. 21. Available at https://www.icrc.org/eng/assets/files/other/013-034_pejic.pdf See

also Christopher Keith Hall, The First Proposal for a Permanent International Criminal Court, International Review

of the Red Cross, No.322, 31-3-1998, p.66. Available at https://www.loc.gov/rr/frd/Military_Law/pdf/RC_Mar-

1998.pdf

https://www.icrc.org/eng/assets/files/other/013-034_pejic.pdf

https://www.loc.gov/rr/frd/Military_Law/pdf/RC_Mar-1998.pdf



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concerted military operations”.25 The Bureau’s proposal was finally rejected because it sets a very

high threshold which would endanger the ICC’s effectiveness to enforce international justice on

the perpetrators of war crimes in situations of NIAC.

In the light of the divergent reactions and views pronounced by States regarding the drafts

submitted by the ILC, the Preparatory Committee and the Bureau, a common denominator was

reached eventually by adopting none of them. The compromise was reached by adding another

section to restrict the applicability of section (D) only to “protracted armed conflict”. The text of

Section (C) and (D) remained the same and was reproduced in Article 8(2)(c) and (e) of the ICC

Statute. Paragraph 2(c) provides that the ICC shall have jurisdiction over “serious violations” of

Common Article 3, whereas Paragraph 2(e) shall be applied by virtue of Paragraph 2(f) “to armed

conflicts not of an international character … 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”.

As a result of the aforementioned compromise, the ICC’s jurisdiction over war crimes

committed in NIAC is not as powerful as in IAC. The ICC has jurisdiction over 34 war crimes in

case of their commission in IAC in accordance with Article 8(2)(a)-(b) whereas its jurisdiction

over war crimes committed in NIAC was restricted by virtue of Article 8(2)(c)-(e) to only 19

crimes.26 Regrettably, the different treatment was given to war crimes committed in IAC and NIAC

under the ICC Statute is another sign of the sovereignty-oriented approach towards the rules

applicable in NIAC. This is unfortunately would have a bad impact on the civilian victims of

NIAC. In other words, by having two categories of rules one applicable to IAC and more limited

one applicable to NIAC, the perpetrators of war crimes committed in NIAC have been given a sort

of partial impunity in comparison with the perpetrators in IAC. The categorization of the ICC’s

rules is disappointing because the contemporary international law is evolving in a way that does

not differentiate between the legal framework of NIACs and IACs.27

Nevertheless, Article 8(2)(c)-(e) can be considered as a good first step to pave the way

towards a full elimination of any distinction between crimes committed in IAC and NIAC in the

future. The empowerment of the ICC to prosecute war crimes committed in NIAC gives a little

hope that it is now possible to prosecute those criminals at the international level.28 The ICC Statute

can be considered as the first real footstep in the process of the international criminalization of war

crimes committed in NIAC, the thing that remained for a long time an idea to be discussed between

25 Official Records, Rome Conference, Volume III, Document A/CONF.183/C.1/L.59 and CORR.1, p. 212-215.

(emphasis added) 26 The number becomes 19 after adding 3 crimes to the list of Article 8(2)(e) in accordance with Resolution RC/Res.5

adopted at the 12th plenary meeting of the Review Conference on 10 June 2010 “Kampala Amendment”, the following

crimes were added: (xiii) Employing poison or poisoned weapons; (xiv) Employing asphyxiating, poisonous or other

gases, and all analogous liquids, materials or devices; (xv) 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. 27 Antonio Cassese et al., International Criminal Law, Oxford University Press, Third Edition, 2013, p. 82. 28 Jelena Pejic, Accountability for international crimes: From Conjecture to Reality, p. 22.


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the legal academicians. The question that is important here is that whether the reference to

“protracted armed conflict” in Paragraph 2(f) was meant to restrict the applicability of Paragraph

2(e) and to create what is called an “intermediary”29 threshold of application that is between the

threshold of Common Article 3 and APII? In other words, does the ICC Statute have one threshold

of applicability regarding the crimes committed in NIAC? The following sections will have a

closer look on the threshold of application of paragraphs 2(d) and (f).

C. The threshold of applicability of the ICC Statute to NIAC:

As far as NIAC is concerned, the threshold of application of the Statute is governed by Article 8(1)

and (2)(d)-(f). To interpret the threshold of applicability of this Article different instruments will

be used such as the preparatory works that led to the adoption of the final text of this Article; the

interpretation provided in the jurisprudence of the ICC, the ICTY and the ICTR; and the legal

literature. At the time when the draft of the current Article 8(1) of the Statute was negotiated, three

proposals were advanced by the Preparatory Committee:30

i. Rigid threshold: “the court shall have jurisdiction in respect of [war] crimes… only when

committed as part of a plan or policy or as part of a large-scale commission of such crimes”.31

ii. The second proposal is similar to the first one but the huge difference is that it replaced the

word only with the word “in particular”.32

iii. The third proposal was in favour of not adding any threshold.33

To achieve consensus in the Rome Conference, option two was finally adopted. However,

the term “in particular” should not be seen as it limits the Court’s jurisdiction over only war crimes

that have been committed in a “large scale” incidents, but rather it shall be interpreted to mean that

the ICC would be more efficient if it would devote its resources on such types of crimes.34 The

ICC Pre-Trial Chamber II in The Prosecutor v. Jean-Pierre Bemba Gombo Case ruled that “the

term "in particular" made it clear that the existence of a plan, policy or large-scale commission is

not a prerequisite for the Court to exercise jurisdiction over war crimes but rather serves as a

practical guideline for the Court”.35 This decision was further upheld in the recent judgment of the

ICC’s Trial Chamber II in The Prosecutor v. Germain Katanga Case.36 Hence, the question that

may arise here is that does the ICC have jurisdiction over a crime that has been committed during

29 Yoram Dinstein, Non-International Armed Conflict in International Law, Cambridge University Press, 2014, p. 191. 30 Report of the Preparatory Committee on the Establishment of an ICC, p. 25. 31 Turkey (para. 35), Ghana (para. 63), India (para. 85), USA (para. 95), and Iran (para. 101) were in favour of the first

option, Official Records, Rome Conference, Volume II, Document A/CONF.183/C.1/SR.26, pp. 276-80. 32 Uganda (para. 34), Brazil (para. 49), Afghanistan (para. 74), Cuba (para. 77), and Georgia (para. 116) were in favour

of the second option, Ibid. 33 Lichtenstein (para. 37), Switzerland (para. 40), Republic of Korea (para. 53), Chile (para. 57), Mali (para. 65), Italy

(para. 69), Portugal (para. 82), Egypt (para. 114) and Cameron (para. 125) favored the third option, ibid. 34 Robert Cryer et al, An Introduction to International Criminal Law and Procedure, Second Edition, Cambridge

University Press, 2010, p. 288. 35 ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08-424, The Pre-Trial Chamber II

Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 15 June 2009, para. 211. 36 ICC, The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, The Trial Chamber II Judgment Pursuant to

Article 74 of the Statute, 7 March 2014, para. 896.


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an armed conflict not as of a plan or policy or as part of a large-scale commission? The Pre-Trial

Chamber I in Prosecutor v. Callixte Mbarushimana Case made it clear here that “a single act could

also amount to a war crime within the jurisdiction of the Court if it was committed in the context

of and was associated with an armed conflict”.37

Article 8(1) applies equally to NIAC and IAC whereas Paragraphs 2(d) and (f) determine

the threshold of applicability of the Statute to NIAC. Under treaty law we have two types of NIAC

one that qualifies the low threshold of Common Article 3 and the other that qualifies the high

threshold of APII. While the threshold of Paragraph 2(d) is identical with that of Common Article

3, it is unclear whether the threshold of paragraph 2(f) has a similar threshold because its

application was restrained to “protracted armed conflict” and conditioned upon the involvement

of “organized armed groups”. The interpretation of the threshold provided by those Subparagraphs

is a controversial issue among the legal scholars and has not received a clear-cut interpretation by

the ICC’s Chambers. There exist two doctrines among the legal scholars regarding this issue: the

first one can be named as the dual threshold doctrine, while the second can be named as the

monistic threshold doctrine.

1. Dual threshold doctrine:

This doctrine is supported by many scholars such as Lindsay Moir,38 Yoram Dinstein,39

Luigi Condorelli,40 and Sylvain Vité.41 It provides that Article 8(2)(d) and (f) provides two distinct

threshold; first, a broad threshold that falls within Paragraph 2(d) which applies to all types of

NIAC where Common Article 3 applies, and secondly, a limited threshold of application that was

envisaged by Paragraph 2(f) which applies only to “protracted armed conflict”. The advocates of

this doctrine base their opinion on the following reasons: first, the negotiations during the Rome

Conference clearly indicated the States intention to create a higher threshold of application to

Paragraph 2(e) because it enumerates an extensive list of crimes in comparison with the list of

Paragraph 2(c). Thus, Paragraph 2(c) has got a lower threshold of applicability by virtue of

Paragraph 2(d) whereas Paragraph 2(e) was restricted by virtue of Paragraph (f). The best evidence

to this is when the States rejected the original ILC’s proposal in 1994 which intended to make the

Statutes applicable to NIACs without requiring any threshold. Hence, the final version of

paragraph 2(f) was adopted as a compromise and thus require higher threshold than that of

paragraph 2(d).

37 ICC, The Prosecutor v. Callixte Mbarushimana, Case No. ICC-01/04-01/10, The Pre-Trial Chamber I Decision on

the Confirmation of Charges, 16 December 2011, para. 96. 38 Lindsay Moir, The Law of internal Armed Conflict, pp. 166-167. 39 Yoram Dinstein, Non-International Armed Conflict in International Law, p. 191-192. 40 Luigi Condorelli, War Crimes and Internal Conflicts in the Statute of the International Criminal Court, In: Mauro

Politi and Giuseppe Nesi (eds.), The Rome Statute of the International Criminal Court (A Challenged to Impunity),

Ashgate, 2001, p. 112-113. 41 Sylvain Vité, Typology of Armed Conflict in International Humanitarian Law: Legal Concepts and Actual Situation,

In: International Review of the Red Cross (ed.), Volume 91, No. 873, March 2009, p. 82. See also the names of other

advocates to this doctrine in Anthony Cullen, The Concept of Non-International Armed Conflict in International

Humanitarian Law, pp. 177-178.


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Secondly, the “protracted” requirement implies that the hostilities must continue for a

certain period of time until it can be considered as NIAC within the meaning of Paragraph 2(f)

while duration is only an indicative factor to determine the existence of NIAC under Paragraph

2(d),42 this makes the threshold of application of the former higher than the latter.

Thirdly, as neither the ICC Statute nor the Elements of Crimes of 2011 provides any

indication as to what does the phrase “organized armed groups” mean, the ICC shall rely by virtue

of Article 21(1)(b) of the Statute on the “applicable treaties and the principles and rules of

international law, including the established principles of the international law of armed conflict”

to interpret this phrase. Hence, the Four Geneva Conventions does not refer to the meaning of the

term and therefore it shall be interpreted by relying on the APII, i.e. the degree of organization

required to trigger the application of paragraph 2(f) shall be equal to the level of organization

required by Art 1(1) of APII. This approach of reasoning raises the threshold of applicability

required by Article 8(2)(f). However, the Rome Statute does not require the armed groups to

exercise control over part of the territory to come within its meaning but what is required is that

the armed groups shall “have the ability to plan and carry out military operations for a prolonged

period of time”.43 They shall also act under a responsible command, the condition that was also

endorsed by the Pre-Trial Chamber II of the ICC in Jean-Pierre Bemba Gombo Case by ruling

that “[I]n this regard, responsible command entails some degree of organization of those armed

groups, including the possibility to impose discipline and the ability to plan and carry out military

operations”.44 The Court further implied that Paragraph 2(f) might have a different threshold than

that of Paragraph 2(d), stating that: “The Chamber is also mindful that the wording of article 8(2)(f)

of the Statute differs from that of article 8(2)(d) of the Statute, which requires the existence of a

protracted armed conflict and thus may be seen to require a higher or additional threshold to be

met - a necessity which is not set out in article 8(2)(d) of the Statute”.45 However, the Court did

not go further with this argument because it considered that NIAC in that case has continued for

about five months and thus Article 8(2)(f) is already applicable.

The Pre-Trial Chamber I of the ICC in The Prosecutor v. Omar AL Bashir Case went

further by observing that the armed group’s ability to “control over the territory has been a key

factor in determining whether they had the ability to carry out military operations for a prolonged

period of time”.46 The use of APII by the ICC’s Chambers to interpret the threshold envisaged in

Paragraph 2(f) in the above cases, and investigating whether the organized armed groups acted

under responsible command, indicates the Court’s restrictive interpretative approach. Thus, the

ICC has depended on weighing additional requirements, which are not actually one of the

42 Sylvain Vité, Ibid. 43 ICC, The Prosecutor v. Callixte Mbarushimana, Case No. ICC-01/04-01/10, para. 103. 44 ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08-424, para. 234. 45 Ibid, para. 235. 46 ICC, The Prosecutor v. Omar Hassan Ahmad AL Bashir, Case No. ICC-02/05-01/09, The Pre-Trial Chamber I

Decision on the Prosecution's Application for a Warrant of Arrest, 4 March 2009, para. 60.


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conditions to trigger the application of Common Article 3, to establish its jurisdiction over the

crimes listed in Paragraph 2(e).

In Short, the adoption of two separate lists of crimes; the interpretation of the phrase

organized armed groups in the light of APII and requiring the armed groups to act under a

responsible command; the opposition of many States during the negotiation to make the Statute

applicable to all types of armed conflicts; and the ICC’s restrictive interpretative approach

demonstrate that the creation of two thresholds for the purpose of the Statute application was

actually intended. As a result of the above reasons, Paragraph 2(d) applies to NIAC where

Common Article 3 applies whereas Paragraph 2(d) applies to “protracted” NIAC that involves

“organized armed groups”, a threshold of applicability that is higher than that of Common Article

3 and lower than that of APII. However, contrary to this doctrine there exist another group of

scholars who claim an opposite opinion, which will be discussed in the following section.

2. Monistic threshold doctrine:

This doctrine was upheld by the following scholars: Sandesh Sivakumaran,47 Anthony

Cullen,48 Eve La Haye,49 Daryl Robinson,50 Dapo Akande,51 Gerhard Werde,52 and Julia

Grignon.53 Their views can be summarized as: Paragraphs 2(d) and (f) apply to the same types of

NIAC and have the same threshold of application that is equal to the threshold of applicability of

Common Article 3. The advocates of the monistic threshold rely on the following reasonings: first,

Paragraph 2(f) applies to NIAC that is “protracted” and encompasses armed groups that have some

degree of organization, these two conditions are prerequisite for the existence of any NIAC and

hence this Paragraph is an extension to Paragraph 2(d). It has been further argued that the

introduction of one single threshold will make the process of bringing justice for the victims of

those tyrant situations easier.54

Secondly, the wording of Paragraph (f) was taken from the definition of NIAC proposed

by the ICTY in Tadic Case which defined NIAC of Common Article 3 as “protracted armed

violence”. Hence Paragraph 2(f) shall be defined in the light of the ICTY’s jurisprudence.55

However, although the ICC Statute used the term “protracted armed conflict” instead of

“violence”, this does not necessarily mean that a new category of NIAC or higher threshold of

47 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, p. 195. 48 Anthony Cullen, The concept of Non-International Armed Conflict, p. 185. 49 Eve La Haye, War Crimes in Internal Armed Conflicts, p. 5. 50 Robert Cryer et al, An Introduction to International Criminal Law and Procedure, p. 285. 51 Dapo Akande, Classification of Armed Conflicts: Relevant Legal Concepts, In: Elizabeth Wilmshurst (ed.),

International Law and the Classification of Conflicts, Oxford University press, 2012, p. 56. 52 Gerhard Werde, Principles of International Criminal Law, T.M.C. Asser Press, 2005, p. 289. 53 Julia Grignon, The Beginning of Application of International Humanitarian Law: A discussion of a few Challenges,

In: International Review of the Red Cross, Scope of the Law in Armed Conflict, Volume 96 Number 893, Spring

2014, p. 161. 54 Anthony Cullen, The concept of Non-International Armed Conflict, p. 185. (emphasis added) 55 Robert Cryer et al, An Introduction to International Criminal Law and Procedure, p. 284.


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application, other than that of Common Article 3, was inserted in the Rome Statute.56 The term

“protracted” shall be interpreted as it requires the hostilities to continue for a certain period of time

that suffices to differentiate NIAC from “mere sporadic acts”. It is worth mentioning here that the

Pre-Trail Chamber I of the ICC used the same reasoning in The Prosecutor v. Callixte

Mbarushimana Case by ruling that: “As to whether the conflict can be qualified as non-

international in character, article 8(2)(d) and (f) of the Statute requires such conflict reach a certain

level of intensity which exceeds that of internal disturbances and tensions, such as riots, isolated

and sporadic acts of violence or other acts of similar nature”.57 Sandesh Sivakumaran has noted

here that “there is no greater focus on duration than there was in the Tadic Decision on

interlocutory Appeal”. He based this argument on the reason that “the French text of Tadic refers

to the word prolongee, the English original of which was protracted. So protracted was translated

as prolongee which was translated back as prolonged”.58 Therefore, in the light of the ICTY’s

jurisprudence, the term “protracted armed conflict” does not require higher threshold than what is

actually needed to trigger the application of Common Article 3. It has been argued that the

inclusion of the word “protracted” in addition to the phrase “armed conflict” is useless and an

example of “careless drafting”59 or “a straightforward drafting error” 60 because it is a precondition

for any armed conflict to be protracted.

Thirdly, the requirement of the armed groups to be organized does not depart from the

minimum threshold for any NIAC. The degree of organization shall not be interpreted in the light

of APII, what is required to satisfy this condition is that the armed groups shall have the ability to

“carry out military operations for prolonged period of time”. The Trial Chamber I of the ICC in

The Prosecutor v. Thomas Lubanga Dyilo Case noticed that the test of “exercising control over a

part of the territory as to enable them to carry out sustained and concerted military operations” that

is provided by APII is certainly not required for the purpose of the application of Paragraph 2(f).61

Furthermore, Paragraph 2(f) does not require the organized armed groups to act under a responsible

command. It is worth mentioning here that the ICC has pronounced different views in different

cases regarding this matter. Contrary to the views of The ICC Pre-Trial Chamber II in The

Prosecutor v. Jean-Pierre Bemba Gombo Case,62 the Trial Chamber II of the ICC in The

Prosecutor v. Germain Katanga Case ruled that “Article 8(2)(f) does not specify responsible

command as envisioned by article 1(1) of [APII]”.63

56 Dapo Akande, Classification of Armed Conflicts: Relevant Legal Concepts p. 56. 57 ICC, The Prosecutor v. Callixte Mbarushimana, Case No. ICC-01/04-01/10, para. 103. 58 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, p. 195. (emphasis added) 59 Dieter Fleck, The Law of Non-International Armed Conflicts, In: Dieter Fleck (ed.), “The Hand Book of

International Humanitarian Law”, Oxford University Press, First Edition, 2008, p. 611. 60 Robert Cryer et al, An Introduction to International Criminal Law and Procedure, pp. 284-285. 61 ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Trial Chamber I Judgment pursuant to

Article 74 of the Statute, 14 March 2012, para. 536. 62 See the above section regarding this. 63 ICC, The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, para. 1186.


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Fourthly, Anthony Cullen argues that the inclusion of the word ‘other’ in Paragraph 2(e)

indicates that this Paragraph is an extension to Paragraph 2(c) and thus both of them have an equal

threshold of application.64

Fifthly, the drafters of the Statute did not intend to adopt a threshold that is higher than that

of Common Article 3, this was obvious when the proposal prepared by the Bureau, which proposed

to raise the threshold of application of the Statute to that of APII, was rejected during the

negotiations of the Statute.

The above sections show how controversial the interpretation of the threshold of Article

8(2)(f) among the legal scholars. The ICC has also pronounced, in various occasions, different

understandings with respect to the textual interpretation of Paragraph 2(f). Hence, it is inevitable

to examine the threshold of applicability of Common Article 3 to understand whether the threshold

of applicability of Article 8(2)(f) is higher or not. The following section compares the threshold of

both Articles in order to differentiate between NIAC and internal disturbances on one hand and

NIAC of Common Article 3 and APII on the other hand.

D. NIACs of Common Article 3:

Common Article 3 was described as a “convention in miniature” because it is the only

provision in the Four Geneva Conventions that applies to NIAC.65 The current content of Common

Article 3 was shaped only after 25 meetings of negotiations were held in the Diplomatic

Conference.66 This long process of negotiating its very limited substance reflects the strenuous

travail that it had to go through to come into existence. Nevertheless, it was finally adopted in spite

of the reluctance of many States to the idea of its inclusion in the Four Geneva Conventions. The

adoption of this Article witnessed the creation of the first provision of its kind that applies to

NIAC,67 it has been said that the adoption of this Article “marked the birth of a rudimentary

international jus in bello interno”.68 Common Article 3 is also part of customary international law

and it applies in both NIAC and IAC, although its threshold of application to NIAC is higher than

IAC.69 The ICTY in The Prosecutor v. Jovica Stansic and Franco Simatovic Case upheld this and

added that “[t]he acts prohibited by Common Article 3 undoubtedly breach rules protecting

important values and involve grave consequences for the victims. They also entail individual

criminal responsibility”.70 The legal literature marked the importance of the adoption of Common

64 Anthony Cullen, The concept of Non-International Armed Conflict, pp. 182-183. 65 Jean S. Pictet, Commentary on the Geneva Conventions for the Amelioration of the Conditions of the Wounded and

Sick in Armed Forces in the Field of 12 August 1948, Vol. I, 1952, p. 48. 66 Ibid, p. 38. 67 René Provost, International Human Rights and Humanitarian Law, Cambridge Studies in International and

Comparative Law, 2004, p. 265. 68 Claus Kreβ and Frédéric Mégret, The regulation of non-international armed conflicts: Can a privilege of belligerency

be envisioned in the law of non-international armed conflicts?, In: International Review of the Red Cross, Scope of

the Law in Armed Conflict, Volume 96 Number 893, Spring 2014, p. 32. 69 Robert Kolb and Richard Hyde, an Introduction to the International Law of Armed Conflicts, p. 78. 70 ICTY, The Prosecutor v. Jovica Stansic and Franco Simatovic, Case No. IT-03-69-T, Trial Chamber I Judgment,

30 May 2013, Vol I, para. 951; ICTY, The Prosecutor v. Mile Mrksic Veselin and Sljivancanin, Case No. IT-95-13/1-


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Article 3, Judge Abi Saab described it as “it contains, in a highly condensed form, the principles

of the convention, respect for which is essential in all armed conflicts”.71

However, despite the significance of Common Article 3, the demerit of this Article is that

it does not define NIAC and thus it does not stipulate the conditions of its threshold of application.

Its chapeau provides: “[I]n the case of armed conflict not of an international character occurring

in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to

apply, as a minimum, the following provisions…”. Yet, what types of NIAC fall within the ambit

of Common Article 3 ? The fear from restricting the field of its application produced an article that

referred to NIAC without identifying its meaning.72 The ICRC Commentary of 1952 on the First

Geneva Convention suggested criteria that can be used to determine the existence of NIAC where

Common Article 3 applies.73 However, these criteria are very rigid and depart from the actual

intention that was behind the adoption of this Article because they contain a set of requirements

that are equal to that of APII and even higher.

The ICTY recognized in this regard that these are only “convenient criteria”, and added

that “[t]he drafters of the Commentary were of the view that Common Article 3 should be applied

as widely as possible and could still be applicable in cases where armed strife breaks out in a

country, but does not fulfil any of the above conditions”.74 The court made it clear here that even

if none of the above criteria existed in an armed conflict it would be still possible to apply Common

Article 3, provided that the essential conditions of an armed conflict, which will be discussed

below, shall be met. The ICRC in its 2016 Commentary reassured the ICTY’s approach and

observed that the existence of NIAC of Common Article 3 must be determined in the light of the

intensity of the hostilities and the degree of organisation of the armed groups and that the above

criteria are only “indications” to the existence of NIAC.75

The international treaty law does not offer a definition to NIAC of Common Article 3, thus

to determine the Article’s field of application one must consider the jurisprudence of the

International Tribunals and the ICC as well as the legal literature. The threshold of application of

this Article has been extensively dealt with by the ICTY. One of the most important decisions in

this regard is the one that was pronounced in 1995 by the Appeals Chamber in Dusko Tadic Case.

A, Appeals Chamber Judgment, 5 May 2009, para. 70; ICTY, The Prosecutor v. Radovan Karadzic, Case No. IT-95-

5/18-AR72.5, Appeals Chamber Decision on Appeal of Trial Chamber’s Decision on Preliminary Motion to Dismiss

Count 11 of the Indictment, 9 July 2009, para. 25. 71 Georges Abi-Saab, Non-international Armed Conflicts, In: UNISCO (ed.), International Dimensions of

Humanitarian Law, Martinus Nijhoff, 1988, p. 222. 72 Sten Verhoeven, International and non-international armed conflicts, Katholieke Universiteit Leuven, Faculty of

Law, Institute for International Law, Working Paper No. 107, March 2007, p. 8. 73 Jean S. Pictet, Commentary on the Geneva Conventions, Vol. I, pp. 49-50. 74 ICTY, The Prosecutor v. Ljube Bokoski and Johan Tarculovski, Case No. IT-04-82-T, Trial Chamber II Judgment,

10 July 2008, para. 176. (emphasis added) 75 The ICRC Commentary of 2016 on the First Geneva Convection, Common Article 3, paras. 67-71. Available at:

https://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=59F6CDFA490736C1C1

257F7D004BA0EC#_Toc446324341

https://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=59F6CDFA490736C1C1257F7D004BA0EC#_Toc446324341



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This decision defined an armed conflict as: “…an armed conflict exists whenever there is a resort

to armed force between States or protracted armed violence between governmental authorities and

organized armed groups or between such groups within a State”.76

Since 1995, the test provided in Tadic Decision has been consistently applied by other

Chambers of the ICTY,77 the ICTR78 and the ICC79. It has been noticed that this Decision “can

now be taken as reflecting international law”.80 The definition produced by the ICTY provides two

conditions that shall be met before an armed conflict can be considered as NIAC were Common

Article 3 applies; first, to be protracted, i.e. to reach a certain degree of intensity, and secondly,

the armed groups must possess “some degree of organization”.81 It should be noted that these

conditions shall not be considered as restrictive elements to the threshold of applicability of

Common Article 3, but rather as the ICTY ruled that “[t]hese criteria are used solely as a way to

distinguish an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist

activities, which are not subject to international humanitarian law”.82 The following sections shall

analyze the meaning of these two requirements.

1. The required degree of organisation:

To what extent an armed group needs to be organized to trigger the application of Common

Article 3? Shall or can this degree of organization, required by Tadic Decision, be assessed by

drawing an analogy with the degree of organization required by APII, i.e. the armed groups shall

act under responsible command and/or to “exercise control over a part of the territory as to enable

them to carry out sustained and concerted military operations”? These questions shall serve us to

compare the interpretation of the ICTY to Tadic Decision with the interpretation of the ICC to

Article 8(2)(f) which has similar wording. By following such approach, it shall be seen later

76 ICTY, The Prosecutor v. Dusko Tadic a/k/a/“Dule”, Case No. IT-94-1-AR72, Appeals Chamber Decision on the

Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70. 77 ICTY, The Prosecutor v. Milan Lukic and Sredoje Lukic, Case No. IT-98-32/1-T, Trial Chamber III Judgment, 20

July 2009, para. 868; ICTY, The Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-T, Trial Chamber II

Judgement, 23 February 2011, Vol. I, para. 1522; ICTY, The Prosecutor v. Jovica Stansic and Franco Simatovic,

para. 953; ICTY, The Prosecutor v. Ramush Haradinaj et al, Case No. IT-04-84bis-T, Trail Chamber II Public

Judgment with Credential Annex, 29 November 2012, para. 392; ICTY, The Prosecutor v. Ante Gotovina et al, Case

No. IT-06-90-T, Trial Chamber I Judgment, 15 April 2011, Vol. II, para. 1674. For a list of other cases see Antony

Cullen, The Concept of Non-International Armed Conflict, pp. 120-121. 78 ICTR, The Prosecutor v. Augustin Ndindiliyimana et al, Case No: ICTR-00-56-T, Trial Chamber II Judgment and

Sentence, 17 May 2011, para. 2130. 79 ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Trial Chamber I, para. 533; ICC, The

Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, para. 1186; ICC, The Prosecutor v. Jean-Pierre Bemba

Gombo, Case No. ICC-01/05-01/08-424, para. 229; ICC, The Prosecutor v. Omar Hassan Ahmad AL Bashir, Case

No. ICC-02/05-01/09, para. 60; ICC, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-

01/04-01/07, Pre-Trial Chamber Decision on the Confirmation of Charges, 30 September 2008, para. 381. 80 Malcolm N. Shaw, International Law, Cambridge University Press, Sixth Edition, 2008, p. 436. See also Eliav

Lieblich, International Law and Civil Wars “Intervention and Consent”, p. 48. 81 Francisco Forrest Martin et al, International Human Rights and Humanitarian Law (Treaties, Cases, and Analysis),

Cambridge University Press, 2006, p. 523. 82 ICTY, The Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-T, Vol. I, para. 1522; ICTY, The Prosecutor v.

Ljube Bokoski and Johan Tarculovski, Case No. IT-04-82-T, para. 175.


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whether the requirements of intensity and organization in Article 8(2)(f) provide different

threshold than that of Common Article 3.

First of all, in the light of the ICTY judgments the armed groups “do not necessarily need

to be as organized as the armed forces of a State”.83 The ICTY and the ICC do not require the

armed groups to exercise control over part the territory to come within the ambit of Common

Article 3 or Article 8(2)(f).84 The ICTY has pointed out in many cases that what is required is that

the armed groups shall possess “some degree of organization that entails, as minimum, the ability

of their leadership to exercise some control over its members so that the basic obligations of

Common Article 3 of the Geneva Conventions may be implemented”.85 The wording of this

Judgment made it clear that what is required is the ability of the armed groups to implement the

obligations set out in Common Article 3 not the actual application of such obligations.

Bearing in mind that the circumstances varies from an armed conflict to the other, the ICTY

and the ICC have followed several criteria that can be used to determine the degree of organisation

of an armed group. The Trial Chamber in The Prosecutor v. Vlastimir Dordevic Case used the

following five factors that “fall into five broad groups. First, are the factors signalling the presence

of a command structure. Secondly, are factors indicating that an armed group could carry out

operations in an organized manner. Thirdly, are factors indicating a level of logistics have been

taken into account. Fourthly, are factors relevant to determining whether an armed group possessed

a level of discipline and the ability to implement the basic obligations of Common Article 3. A

fifth group includes factors indicating that the armed group was able to speak with one voice”.86

The ICC has used different words, than those that have been used by the ICTY, to describe

how much an armed group needs to be organized for the purpose of Article 8(2)(f). The Court has

in several cases assessed the degree of organisation of armed groups on the basis of their “ability

to carry out military operations for prolonged period of time”.87 Unlike the ICTY, the ICC in those

cases did not concentrate on the capacity of the armed groups to implement the obligations set out

in Common Article 3 or in the relevant applicable IHL rules.

83 ICTY, The Prosecutor v. Ramush Haradinaj et al, Case No. IT-04-84bis-T, para. 393. 84 ICC, The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, para. 1186; ICC, The Prosecutor v. Thomas

Lubanga Dyilo, Case No. ICC-01/04-01/06, Trial Chamber, para. 536; ICTY, The Prosecutor v. Fatmir Limaj et al,

Case No. IT-03-66-T, Trial Chamber Judgment, 30 November 2005, para. 87. 85 ICTY, The Prosecutor v. Ramush Haradinaj et al, Case No. IT-04-84bis-T, para. 393; ICTY, The Prosecutor v.

Ljube Bokoski and Johan Tarculovski, Case No. IT-04-82-T, para. 196; ICTY, The Prosecutor v. Vlastimir Dordevic,

ICTY Case No. IT-05-87/1-T, Vol. I, para. 1525. (emphasis added) 86 ICTY, The Prosecutor v. Vlastimir Dordevic, ibid, para. 1526. 87 ICC, The Prosecutor v. Callixte Mbarushimana, Case No. ICC-01/04-01/10, para. 103; ICC, The Prosecutor v.

Omar Hassan Ahmad AL Bashir, Case No. ICC-02/05-01/09, para. 60; ICC, The Prosecutor v. Ahmad Muhammad

Harun and Ali Muhammad AL Abd-AL-Rahman, Case No.: ICC-02/05-01/07, Pre-Trial Chamber I Decision on the

Prosecution Application under Article 58(7) of the Statute, 27 April 2007, para. 35; ICC, The Prosecutor vs Thomas

Lubanga Dyilo, Case No. ICC-01/04-01/06, Pre-Trial Chamber I Decision on the Confirmation of Charges, 29 January

2007, para. 234.


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Recently in 2014, the Trial Chamber II of the ICC in Germain Katanga Case has

interpreted the requirement of organisation by using a phrase that gathers both the ICC and the

ICTY’s understanding. In this Case the Court ruled that “[t]he organised armed groups must

therefore have a sufficient degree of organisation to enable them to carry out protracted armed

violence and to implement the provisions of humanitarian law applicable to that type of conflict”.88

Unlike the ICTY, the ICC here did not specify which rules of IHL an armed group shall have the

ability to implement, but rather inserted a more general requirement. However, the wording of this

Judgment unified the approach of the ICC and the ICTY regarding the interpretation of the degree

of organisation required namely by requiring the armed groups to have the ability to first

implement the relevant IHL rules and secondly to conduct protracted hostilities. The ICC in this

case considered several factors, which are somehow similar to those that have been used by the

ICTY, to determine the degree of organisation of the armed groups.89

The question that is relevant in this context is that do armed groups need to act under a

responsible command to meet the threshold of Common Article 3 and Article 8(2)(f)? Practically,

armed groups will not be able to function in a way that enables them to survive in engaging in

protracted or intense hostilities without operating under a “command structure” otherwise they

will get fragmented and will be defeated swiftly. But, do they have to operate under a responsible

command that has the ability to “impose discipline” or even to sanction the group’s members that

have violated the rules of IHL?

The Pre-Trial Chamber II of the ICC in Jean-Pierre Bemba Gombo Case noticed that the

organized armed groups must be under a responsible command and added that this requirement

“entails some degree of organization of those armed groups, including the possibility to impose

discipline and the ability to plan and carry out military operations”.90 However, this decision is not

in agreement with the view of the majority of other decisions pronounced by the ICC Chambers

in the last five years. For example, the Trial Chamber I in Lubanga Dyilo Case and Trial Chamber

II in Germain Katanga ruled that an armed group need not to act under a responsible command to

meet the criteria set out in Article 8(2)(f) and that the adoption of the criteria provided by APII

was rejected by the drafter of the Rome Statute.91 Similarly, the ICTY assured that responsible

command is not one of the prerequisite for the application of Common Article 3.92 Thus, in the

light of these recent Judgments, it can be said that the degree of organization required by Article

8(2)(f) and Tadic Decision does not require the armed groups to act under a responsible command

that has the capacity to impose discipline or sanctions on the members of the armed groups, and

thus this requirement shall not be interpreted by relying on Article 1(1) of APII. What is required

is that the leadership or “command structure” of the armed groups shall have, at the minimum, the

88 ICC, The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, para. 1185. 89 Ibid, para. 1186. See above. 90 ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08-424, para. 234. 91 ICC, The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, para. 1186; ICC, The Prosecutor v. Thomas

Lubanga Dyilo, Case No. ICC-01/04-01/06, Trial Chamber I, para. 536 and footnotes 1634-1635. (emphasis added) 92 ICTY, The Prosecutor v. Ljube Bokoski and Johan Tarculovski, Case No. IT-04-82-T, para. 197.


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ability to apply the obligations set out by Common Article 3 or the relevant IHL rules applicable

to that type of armed conflict. Hence, as the ICTY concluded “that the degree of organisation

required to engage in protracted armed violence or conflict [Common Article 3 and Article 8(2)(f)]

is lower than the degree of organisation required to carry out sustained and concerted military

operations [Article 1(1) of APII]”.93

It might be argued that an armed conflict exist when the de jure government is obliged to

recourse to its regular military forces to compel the insurgents. Although this can be considered as

an indicative factor but it is not an accurate criterion because in some Countries the police might

be powerful enough to combat and engage in an intense hostilities, whereas in another Countries

the police might not be able to defeat a group of gangsters and hence the government might resort

to use its military power as fast as possible.94 Furthermore, in some circumstances a State might

use its military forces as a precautionary step to control over an unstable situation without being

engaged in hostilities that qualifies as NIAC. For example, the Belgian authorities have decided in

March 2016 to deploy armed forces to protect certain buildings on the Belgian soil that could be a

potential target for terrorist attacks, although the Belgian government was not facing NIAC.

Another argument might be advanced that the armed groups shall have a political goal.

This is to differentiate between those who struggle to achieve some honorable ends and those who

fights for criminal motives. It must be said that this criterion may complicate the process of the

classification of armed conflicts. This idea is not, in itself, problematic but the difficulty lies in the

assessment of whether an armed group fights for political motives or not. It is a multifaceted idea

that its interpretation depends on the different understanding of each individual. Therefore, it shall

not be deemed as a requirement for the purpose of the application of IHL.95

2. Intensity:

The second criterion to determine the existence of an armed conflict is that it shall be

“protracted”. The question here is what does the phrase “protracted armed conflict” mean? Does

it concentrate on the degree of intensity of an armed conflict or does it also require the continuation

of the hostilities for a certain period of time? Before answering these questions it shall be noted

that the term “protracted” in Article 8(2)(f) should not be interpreted as it requires a threshold of

application that is higher than the threshold required for Common Article 3. The ICTY in The

Prosecutor v. Vlastimir Dordevic Case ruled in this regard that the criteria of organisation and

intensity “are used solely as a way to distinguish an armed conflict from banditry, unorganized

and short-lived insurrections, or terrorist activities, which are not subject to international

93 Ibid. (emphasis added) 94 Jan Römer, Killing in a Gray Area between Humanitarian Law and Human Rights, Springer, 2010, p. 9. 95 See in support of this view: Yoram Dinstein, Non-International Armed Conflict in International Law, pp. 17-19;

Dapo Akande, Classification of Armed Conflicts: Relevant Legal Concepts p. 52; Sylvain Vité, Typology of Armed

Conflict in International Humanitarian Law, p. 78


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humanitarian law”.96 This judgment was later affirmed by the ICC in The Prosecutor v. Thomas

Lubanga Dyilo Case.97

The Trial Chamber II of the ICTY identified that the interpretation of the term protracted

has not significantly been dealt with by its Chambers.98 The Chamber further added that this term

“adds a temporal element to the definition of armed conflict” but the Chamber also noticed that

the Trial Chamber of the ICTY Judgment of 3 April 2008 in The Prosecutor v. Ramush Haradinaj,

Idriz Balaj and Lahi Brahimaj Case interpreted the criterion of protracted armed violence “as

referring to the intensity rather than to the duration”.99 However, the Chambers of the ICTY and

the ICC tend to interpret this term as it refers to the intensity of the hostilities, but also consider

the duration of hostilities as an indicative factor to assess the degree of the intensity.100 The ICRC

has recently shared the same approach.101

Bearing in mind that every situation of hostility involves different circumstances and

therefore it is not possible to follow a fixed mechanism to assess the existence of NIAC, the ICTY

and the ICC have followed several criteria that can be used for this purpose, these are as the

following:

“These include the seriousness of attacks and whether there has been an increase in armed clashes, the spread

of clashes over territory and over a period of time, any increase in the number of government forces and mobilisation

and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the

attention of the United Nations Security Council, and whether any resolutions on the matter have been passed. Trial

Chambers have also taken into account in this respect the number of civilians forced to flee from the combat zones,

the type of weapons used, in particular the use of heavy weapons and other military equipment, such as tanks and

other heavy vehicles, the blockading or besieging of towns and the heavy shelling of towns, the extent of destruction

and the number of casualties caused by shelling or fighting, the quantity of troops and units deployed; existence and

change of front lines between the parties, the occupation of territory, and towns and villages, the deployment of

government forces to the crisis area, the closure of roads, cease fire orders and agreements, the attempt of

representatives from international organisations to broker and enforce cease fire agreements, the intensity, including

the protracted nature, of violence which has required the engagement of the armed forces and the high number of

casualties and extent of material destruction”.102

The ICTY further observed that the intensity and organisation of the parties “are factual

matters which out to be determined in light of the particular evidence available and on a case-by-

96 ICTY, The Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-T, Vol. I, para. 1522. 97 ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Trial Chamber I, para. 538. 98 ICTY, The Prosecutor v. Ljube Bokoski and Johan Tarculovski, Case No. IT-04-82-T, para. 186 99 Ibid, footnotes No. 759. 100 ICC, The Prosecutor v. Jean Pierre Bemba Gombo, Case No. ICC-01/05-01/08, The Trial Chamber III Public with

Annexes I, II, and A to F Judgment Pursuant to Article 74 of the Statute, 21 March 2016, para. 139. See also Gerhard

Werde, Principles of International Criminal Law, p. 289. 101 The ICRC Commentary of 2016 on the First Geneva Convection, Common Article 3, paras. 88-94. 102 ICTY, The Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-T, Vol. I, para. 1523; ICC, The Prosecutor v.

Germain Katanga, Case No. ICC-01/04-01/07, para. 1187. See also The ICRC Commentary of 2016 on the First

Geneva Conventions which also referred to these criteria, para. 82. Available at:

https://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=59F6CDFA490736C1C1

257F7D004BA0EC#_Toc446324341




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case basis”.103 Therefore, the assessment process of whether NIAC exists varies from one situation

to the other.104

The ICC has the jurisdiction to classify whether or not a particular situation of hostilities

can be classified as an armed conflict. It is clear that the ICC has the power to prosecute the

perpetrators of war crimes committed in “protracted armed conflict” but does it also have the

jurisdiction over such crimes that have been committed before the hostilities have reached the

protracted requirement? Does it have jurisdiction until the final cessation of an armed conflict or

until the moment were either the organizational level or the intensity of violence falls below the

required threshold? 105 In other words, what is the starting and ending point of the ICC’s

jurisdiction over war crimes? Neither the Rome Statute nor the Elements of Crimes of 2011

contains an answer to these questions, the ICC by virtue of Article 21(2) of the Statute “may apply

principles and rules of law as interpreted in its previous decisions” and it may apply the principles

and rules as interpreted by other International Tribunals. Yet, as mentioned above, the Tadic test

has been consistently applied by the ICC and the International Tribunals and hence it could be

used to answer the above questions, the decision provided that “[I]nternational humanitarian law

applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities

until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful

settlement is achieved. Until that moment, international humanitarian law continues to apply in

the whole territory of the warring States or, in the case of internal conflicts, the whole territory

under the control of a party, whether or not actual combat takes place there”.106 Recently, the Trial

Chamber III of the ICC endorsed the Tadic decision and recalled that the ICC shall have

jurisdiction once the armed violence meet the required organizational and intensity threshold and

this jurisdiction shall continue to apply until that very moment were a peaceful settlement is

achieved between the fighting parties, hence the combat need not to be “continuous and

uninterrupted” to trigger the jurisdiction of the Court.107

The ICTY in the Gotovina et al Case reaffirmed the Tadic jurisprudence by providing that

the argument that calls for the non-applicability of IHL once the level of intensity and/or the degree

of organisation has decreased below the required threshold does not accurately reflect the law

because “[o]therwise the participants in an armed conflict may find themselves in a revolving door

between applicability and non-applicability, leading to a considerable degree of legal uncertainty

103 ICTY, The Prosecutor v. Vlastimir Dordevic, Ibid, para. 1522; Jelena Pejic, The Protective Scope of Common

Article (3): “more than meets the eye”, International Review of the Red Cross, Volume 93 Number 881, March/ 2011,

p. 192; Antony Cullen, the Concept of Non-international Armed Conflict in International Humanitarian Law, p. 146. 104 Eve La Haye, War Crimes in Internal Armed Conflicts, p. 5. 105 Derek Jinks, the Temporal Scope of Application on International Humanitarian law in Contemporary Conflicts,

HPCR International Humanitarian Law Research Initiative, Background paper prepared for the Informal High-Level

Expert Meeting on the Reaffirmation and Development of International Humanitarian law, Cambridge, January 27-

29, 2003, p. 6. Available at: http://www.hpcrresearch.org/sites/default/files/publications/Session3.pdf 106 ICTY, The Prosecutor v. Dusko Tadic a/k/a/“Dule”, Case No. IT-94-1-AR72, para. 70. 107 ICC, The Prosecutor v. Jean Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Trial Chamber III Judgment, paras.

140-141.

http://www.hpcrresearch.org/sites/default/files/publications/Session3.pdf


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and confusion”.108 The approach that has been followed by the ICC and the ICTY in the above

cases is interesting from a legal and humanitarian point of view because it is in the benefit of the

victims, it intends not to leave a particular situation in a “legal vacuum” that might be used to

invoke immunity for war crimes committed before the hostilities have reached the required

protracted and organization requirements.

E. Concluding remarks:

Subparagraphs (d) and (f) of Article 8(2) of the Rome Statute contain one similar threshold

of application that is equal to that of Common Article 3 and provided by Tadic test. In accordance

with the case law of the ICTY and the ICC, the organizational degree and intensity that are required

to trigger the application of the above articles are equal and are prerequisite for the existence of

any NIAC. Hence, they cannot be interpreted in the light of Article 1(1) of APII. Because, the

organizational degree that is required for armed groups to trigger the application of Common

Article 3 and Article 8(2)(f) is not as high as the organizational degree required for APII. (See

section A in the Conclusion for further details)

108 ICTY, The Prosecutor v. Ante Gotovina et al, Case No. IT-06-90-T, Vol. II, para. 1694. (The position of the Court

was summarized)


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Chapter Two

The Enforcement of Individual Criminal Responsibility

for War Crimes Committed in NIAC through the ICC 109

A. Introduction:

As mentioned in Chapter One, the ICC Statute is the first international legal instrument

that empowered a permanent international institution to prosecute the perpetrators of war crimes

committed in NIAC. Many have considered the Statute as a good first step to pave the way towards

a full elimination of any distinction between crimes committed in NIAC and IAC, while on the

contrary, others have viewed it as another sign of the sovereignty oriented approach regarding the

legal framework of NIAC for the reason that the Statute has reinforced the existing separation

between the rules that govern NIAC and IAC, and by doing so, the Statute created a sort of partial

impunity to the perpetrators of war crimes committed in NIAC in comparison with the full

criminalization of crimes committed in IAC. However, the States’ reluctance over the years to

consider the legal framework of NIAC as equal as IAC has decreased the improvements required

in this domain. Consequently, the lowest common denominator had always prevailed when a new

rules must be adopted regarding NIAC. This Chapter shall examine whether the ICC has enough

tools that allow it to enforce the individual criminal responsibility for war crimes committed in

NIAC. The Court’s effectiveness in this regard lies in its ability to exercise its jurisdiction properly

and this depends on the following three pillars; first, the successful exercise of the Court’s

complementary role to the national courts to prosecute the crimes listed in Article 5 of the Rome

Statute. Secondly, the jurisdiction ratione materiae of the Court over war crimes committed in

NIAC. Thirdly, the effective international cooperation to enforce the ICC’s decisions. Although

the application of the first and third pillar is identical under the Rome Statute to all the crimes

within the jurisdiction of the ICC, this Chapter will concentrate on their effectiveness to enforce

criminal responsibility over war crimes committed in NIAC.

B. The ICC’s jurisdiction and the principle of complementarity:

In accordance with the Rome Statute the ICC can establish its jurisdiction over the

perpetrators of crimes listed in Article 5 through one of the following three hypotheses: first, if the

crime in question was committed on the territory of a State Party to the Statute 110 or the person

accused was a national of one of the States Parties.111 Such jurisdiction can be triggered either by

the referral of the situation to the Prosecutor by a State Party112 or through the Prosecutor of the

ICC himself by initiating investigations proprio motu after getting the authorization of the Pre-

109 See Eve La Haye, War Crimes in Internal Armed Conflicts, pp. 339-358. 110 ICC Statute, Article 12(a). 111 Ibid, Article 12(b). 112 Ibid, Articles 13(a) and 14. It is worth mentioning here that the Statute does not restrict the right of referral to the

States were the alleged crime has been committed but rather any State Party can do so, providing that it shall “as far

as possible” provide the court with the relevant evidence by virtue of Article 14(2).


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Trial Chamber of the ICC.113 Secondly, the alleged situation was referred to the Prosecutor of the

Court by the United Nations Security Council (UNSC) acting under Chapter VII of the UN Charter.

The UNSC is authorized to refer any situation in any State whether it was a State Party to the

Statute or not. This means that under this possibility the ICC jurisdiction ratione persone and loci

is not restricted to the territories and the nationals of the States Parties, i.e. the ICC will be able to

investigate the referred situation even if it was committed by a national, and/or on a territory, of a

non-State Party.114 Thirdly, if a non-State Party of which either the accused person is a national or

where the alleged crime has been committed on its territory declares its acceptance to Court’s

jurisdiction regarding the crime in question.115 However, in this scenario the jurisdiction ratione

persone and loci of the ICC is restricted to the territories and nationals of that State.

The above possibilities to the exercise of the ICC’s jurisdiction shall be subject to the

principle of complementarity. Paragraph 10 of the Preamble and Article 1 of the Statute clearly

provide that the ICC “shall be complementary to the national criminal jurisdiction”. However, the

principle of complementarity is often used by the ICC Chambers and in the ICC official documents

to determine the admissibility of a particular case before the Court.116 It means that the ICC shall

not take precedence in investigating or prosecuting a particular case within its jurisdiction without

verifying whether or not the national court has already done that or it is actually doing so.117 This

principle applies equally to all the referrals brought before the Court irrespective of the source of

such referrals whether it was the UNSC, a State Party or the Prosecutor.118 The inclusion of the

principle of complementarity in the Rome Statute was strongly supported during the 1998 Rome

Conference, the reasons behind such support can be inferred from the Official Records of the Rome

Conference and academic writings, and these are as the following:

a) The inclusion of this principle “preserves the national sovereignty” of the States Parties

of the Rome Statute because it gives the national courts the priority to investigate and

prosecute. Such priority would make the States feel safer and thus it would accelerate

the universal acceptance of the Statute.119

113 Ibid, Article 15. 114 Ibid, Article 13(b). See in this regard Mahnoush H. Arsanjani, Reflections on the Jurisdiction and Trigger

Mechanism of the International Criminal Court, In: Herman A.M. von Hebel, Johan G. Lammers and Jolien Schukking

(eds.), Reflections on the International Criminal Court "Essays in Honour of Adriaan Bos", T.M.C. Asser Press, 1999.

p. 59. 115 Article 12(3). 116 Christopher L. Blakesley, Jurisdiction Ratione Personae or The Personal Reach of the Court’s Jurisdiction, In: José

Doria et al (eds.), The Legal Regime of the International Criminal Court, p. 436. 117 M. Cherif Bassiouni, Introduction to International Criminal Law: Second Revised Edition, Martinus Nijhoff

Publishers, 2013, pp. 655-656. 118 Ilias Bantekas and Susan Nash, International Criminal Law, Routledge-Cavendish, Third Edition, 2007, p. 542.

See also Nigel White and Robert Cryer, The ICC and the Security Council: An Uncomfortable Relationship, In: José

Doria et al (eds.), The Legal Regime of the International Criminal Court, p. 463. 119 Official Records, Rome Conference, Vol. II, Document A/CONF.183/SR.3, paras. 27 (p. 74) and 91 (p. 78). See

also Antonio Cassese, International law, Oxford University Press, Second Edition, 2005, p. 457.


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b) This principle would perform as a balance mechanism between the jurisdiction of the

ICC and that of the national courts and thus would contribute to avoid any conflict

between the two systems.120

c) It encourages the States to comply with their duties under international law to prosecute

the criminals and if they fail or cannot do so, the ICC would then perform, on the basis

of its complementary role, as the guardian of the international criminal justice.121

d) It provides extra guarantees to the judicial autonomy of those States who enjoy a

developed legal and particularly judicial system, as the ICC would not interfere as long

as their legal system is effective.122

e) The limited financial resources of the ICC in comparison with that of the national courts

makes the latter better placed to inforce the criminal justice.123 Furthermore, such

limitations would make it impossible for the ICC to investigate all cases on its own.

The principle of complementarity obliges the ICC, by virtue of article 17(1), to declare the

inadmissibility of a case if: (a) it “is being investigated or prosecuted by a State which has

jurisdiction over it”, (b) it “has been investigated by a State which has jurisdiction over it but the

State has decided not to prosecute the person concerned”, (c) “The person concerned has been

already tried for the conduct which is the subject of the complaint” or (d) it “is not of a sufficient

gravity to justify further action by the Court” (emphasis added).

Exceptionally, the ICC shall consider the cases referred to in point (a) and (b) as admissible

only if the State is “unwilling or unable genuinely” to carry out the investigation or prosecution or

its decision not to prosecute was a result of “the unwillingness or inability”. The ICC shall also

consider the case referred to in Article 17(1)(c) as admissible if the prosecution was for the purpose

of shielding the accused person or the prosecution was not “conducted independently or

impartially”.124 The Appeals Chamber of the ICC identified two questions that have to be taken

into consideration when assessing the inadmissibility of a particular case within the meaning of

Article 17(1)(a) and (b) these are “(1) whether there are ongoing investigations or prosecutions, or

(2) whether there have been investigations in the past, and the State having jurisdiction has decided

not to prosecute the person concerned”.125 The Appeals Chamber clarified that “It is only when

the answers to these questions are in the affirmative that one has … to examine the question of

unwillingness and inability”.126 The Trial Chamber of the ICC pointed out that it is not satisfactory

120 Official Records, Rome Conference, Vol. II, Document A/CONF.183/SR.3, paras. 19 (p. 73) and 91 (p. 78). 121 Ibid, para. 102, p. 79. 122 Ibid, Document A/CONF.183/SR.6, para. 54, p. 100. 123 Shuichi Furuya, The Principle of Complementarity in Reality: Who Actually Applies It and in What Way under

the ICC System?, In: Teruo Komori and Karel Wellens (eds.), Public Interest Rules of International Law Towards

Effective Implementation, Ashgate, 2009, p. 294. 124 ICC Statute, Article 20(3)(a) and (b). 125 ICC, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07 OA 8, The

Appeals Chamber 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, 25 September 2009, para. 78. 126 Ibid. (emphasis added)


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to decide the admissibility of a case only on the basis of the existence of unwillingness and inability

but the Court must further look whether or not the person in question has been already tried before

another court for the same conduct or whether the case of a sufficient gravity as Article 17(1)(c)

and (d) provide.127

To determine the admissibility of the Case against the President of Sudan Omar AL Bashir

regarding the situation in Darfur, the Pre-Trial Chamber of the ICC observed that the test of

admissibility involves two parts, the first one is to determine the unwillingness and inability of the

national courts to investigate and prosecute the case while the second “refers to the gravity

threshold which any case must meet to be admissible before the Court”.128 It follows that there are

three main concepts that could be drawn from the inadmissibility test these are the “unwillingness,

inability and gravity”. The following sections shall examine these concepts and indicate their

importance for the ICC to enforce the individual criminal responsibility in NIAC.

1. Determining the unwillingness of the national courts:

Article 17(2) of the ICC Statute lists several criteria to determine the existence of

unwillingness, these criteria can be summarized as that a State shall be considered as unwilling to

prosecute if (a) it carries an investigation only for the purpose of shielding the accused person from

the jurisdiction of the ICC, (b) it has unjustifiably delayed the proceedings against the accused

person, or (c) the proceedings against the accused person “were not or are not being conducted

independently or impartially”. The flexible mechanism to assess the existence of unwillingness

and inability vests the ICC with a very strong tool to prosecute the crimes committed in NIAC

because it is exactly in NIAC where the national judicial system is ineffective to bring justice to

the victims due to the unstable circumstances that accompany such conflicts which paralyze not

only the judicial but the whole governmental system.129 Whereas in IAC the national judicial

system and the governmental bodies may continue functioning to a certain extent that could carry

out effective enforcement of the individual criminal responsibility for crimes that might be

committed. To put it simply, the battlefield of IACs is, in many occasions, located at the border of

the warring States whereas it is not the case in NIACs. Thus the principle of complementarity has

a significant importance that allows the ICC to enforce justice in NIAC.

2. Determining the inability of the national courts:

As with regard to the assessment of “inability”, Article 17(3) clarifies that a State shall be

considered as “unable” if “its national judicial system is (1) totally or substantially collapsed or

(2) unavailable to the extent that it “is unable to obtain the accused or the necessary evidence and

127 ICC, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07, The Trial

Chamber II Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the

Statute), 16 June 2009, para. 81. 128 ICC, The Prosecutor v. Omar Hassan Ahmad AL Bashir, Case No. ICC-02/05-01/09, The Pre-Trial Chamber I

Decision para. 48. 129 Eve La Haye, War Crimes in Internal Armed Conflicts, p. 347.


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testimony” or (3) “otherwise unable to carry out its proceedings” (emphasis added). It has been

rightly noticed that Article 17(3) refers to the so called “failed-State” and thus empowers the ICC

to bring crimes committed in NIAC within its jurisdiction.130 The Court will be able to assess

whether a State lacks the ability to impartially enforce the individual criminal responsibility during

such situations. The question that might arise here is that does the “inaction” of a State covered by

the term of “inability or unwillingness”? In other words, if a State is able to investigate and

prosecute the alleged crimes but it does not do so, can this inaction come within the meaning of

“inability or unwillingness”? The Appeals Chamber of the ICC observed in this regard that the

mere fact a State is not actually investigating or has investigated the case in question would make

the case admissible before the court providing that the case is of a sufficient gravity within the

meaning of Article 17(1)(d), otherwise a different approach would make the Court “unable to

exercise its jurisdiction over a case as long as the State is theoretically willing and able to

investigate and to prosecute the case, even though that State has no intention of doing so”.131

Clearly, the Appeals Chamber here wanted to protect the ICC from the possible misuse of the

principle of complementarity by the States in the future.

It has been noticed that in accordance with the principle of complementarity, when a State

is not investigating or has not investigated a particular case but it has started the investigation after

the receipt of the ICC’s notification regarding the initiation of an investigation regarding the case

in question, such a State can request the deferral of the case’s proceedings from the ICC and bring

the investigation before its national courts.132 However, upon such request, it would be still

possible for the ICC under Article 17(2)(a), (b) and (c) to assess whether such a request was

submitted for the purpose of shielding the accused person in question or the investigation process

conducted by the requesting State is not independent or impartial .

Another question that may arise regarding the meaning of inability when a State refers a

case to the ICC in spite of its capacity to carry out the proceedings, is such referral compatible

with the principle of complementarity?133 And is the ICC obliged to assess the unwillingness and

inability of that State and thereby returning the referred case to it based on its ability to carry out

the proceeding or shall the ICC consider that the referring State has waived the right of its national

courts to investigate the referred case? The Trial Chamber of the ICC answered these questions by

observing that once a State has made such referral, the unwillingness and inability tests will not be

relevant but the Court would still in accordance with Article 17(1)(c) and (d) have to assess

whether the accused person has been tried before another court for the same conduct in the line of

130 Shuichi Furuya, The Principle of Complementarity in Reality: Who Actually Applies It and in What Way under

the ICC System?, p. 302. 131 ICC, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07 OA 8, The

Appeals Chamber, 25 September 2009, paras. 78-79. (emphasis added) See also ibid, pp. 301-302. 132 Jan Wouters, Sten Verhoeven, and Bruno Demeyere, The International Criminal Court’s Office of the Prosecutor:

Navigating between Independence and Accountability, In: José Doria et al (eds.), The Legal Regime of the

International Criminal Court, pp. 354-355. 133 Eve La Haye, War Crimes in Internal Armed Conflicts, p. 349.


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the principle of ne bis in idem and whether the referred case is of a sufficient gravity.134 The Court

ruled that “if a State considers that it is more opportune for the Court to carry out an investigation

or prosecution, the State will still be complying with its duties under the complementarity

principle, if it surrenders the suspect to the Court in good time and cooperates fully with the Court

in accordance with Part IX of the Statute”135 Finally, the Trial Chamber considered that when a

State does refer a situation to the ICC, it waives its right to challenge the admissibility of the case

but such waiver shall not “deprive the Defence of its right to challenge the admissibility of a case

on the basis of the ne bis in idem principle or the level of gravity of the case”.136

3. The gravity threshold:

One might argue that the gravity test provided in Article 17(1)(d) adds a second threshold

to the establishment of the jurisdiction of the ICC. The first threshold relates to the establishment

of the jurisdiction ratione materiae under Article (5) and the second requires that those crimes

must be of a “sufficient gravity”, i.e. once a crime is within the jurisdiction of the Court under

Article (5) it does not become automatically admissible unless it meets the gravity test.137 This

argument cannot be upheld not only for the reason that it makes the exercise of the establishment

of the ICC’s jurisdiction more complex but also because the Appeals Chamber of the ICC did not

accept it. The Appeals Chamber rejected the strict interpretation of the Pre-Trial Chamber to the

gravity test provided under Article 17(1)(d). The Pre-Trial Chamber pointed out that in order to

consider a particular case as admissible within the meaning of Article 17(1)(d), it must fall under

one of the following categories: “(1) the conduct in question was of a systematic or large-scale

nature, or (2) the accused person is one of the most senior leaders and the most suspected person

of being responsible, considering (a) the role he or she played during the commission of systematic

or large-scale crimes and (b) the role of the State entities, organisations or armed groups to which

the accused person belongs in the overall commission of crimes within the jurisdiction of the

Court”.138 In the Pre-Trial Chamber’s view, the deterrence effects of the Court’s activities would

be “maximized” and the Court would effectively eradicate impunity if it concentrates its resources

on those most responsible perpetrators and leaders rather than wasting its efforts on less important

cases.139 However, the Appeals Chamber dismissed the Pre-Trial Chamber’s restrictive approach

on the basis of many reasons that can be summarized as; first, the ICC is a permanent institution

134 ICC, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, The Trial Chamber II, 16 June 2009, para.

81. 135 Ibid, para. 79. 136 Ibid, para. 87. See also Robert Cryer et al, An Introduction to International Criminal Law and Procedure, pp. 157-

158. 137 Shuichi Furuya, The Principle of Complementarity in Reality: Who Actually Applies It and in What Way under

the ICC System?, p. 303. See also in support of this view Hilde Farthofer, Complementarity, In: Christopher Safferling,

International Criminal Procedure, Oxford University Press, 2012, pp. 107-108. 138 ICC, Situation in the Democratic Republic of the Congo, Case No. ICC-01/04-169, The Appeals Chamber

Judgment on the Prosecutor's Appeal against the Decision of the Pre-Trial Chamber I Entitled "Decision on the

Prosecutor's Application for Warrant of Arrest, Article 58", 13 July 2006, para. 56. (our understanding of the

Judgment) 139 Ibid, para. 60.


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and any limitation on its jurisdiction would weaken its preventive role in the future.140 Secondly,

such rigid threshold “would not only contradict the principles of interpretation but also the express

intent of the drafters”141 as neither Article (8) of the Rome Statute requires the crime to be of a

systematic or large scale nature nor the Preamble and Articles (1) and (5) indicates that the ICC

shall have jurisdiction over “the most senior leaders”, in this context the Preamble indicates that

the ICC shall have jurisdiction over the “most serious crimes” but not “most serious

perpetrators”.142 Due to the sensitive nature of such cases that touches upon the very heart of the

ICC’s system, the Appeals Chamber did not provide criteria through which one can determine the

gravity of a case.143 Rather, by rejecting the Pre-Trial Chamber’s restrictive interpretation to the

gravity threshold, the Appeals Chamber sought here to widen or at least not to add a further

limitation on the ICC’s jurisdiction to determine the admissibility of a particular case.

However, although at the first sight Articles (1) and (17) of the Rome Statute looks like it

gives priority to the national courts over the ICC, this priority is conditional on the willingness and

ability of the States to prosecute the accused person. At the end of the day the ICC has the power

by virtue of Article 17(2) and (3) to determine whether or not such willingness or ability exists. It

follows that the principle of ne bis in idem is not unconditional in the Statute because even if the

accussed person was tried before for the crime in question, the ICC might retry him again if it finds

that the trial was for the purpose shielding the him from the ICC’s jurisdiction or the trial was not

undertaken “independently or impartially”.144 Thus, the ICC in practice would have the power to

review the national courts’ decisions and to assess their credibility.145 Such power might make the

non-States parties being cautious from joining the ICC fearing from being victims of a subjective

interpretation and selective use of the ICC’s powers. Notwithstanding, one shall not exaggerate

when discussing this issue as it has been rightly observed that the ICC “will be aware of the deadly

political fallout that any action in this direction will cause and the reality of crippling the Court

through State withdrawals”.146 This is true to a certain extent and has been witnessed recently when

Kenya has called upon the African Union States to withdraw from the ICC because the Court’s

investigations and prosecutions have been mainly about the African leaders.147

The ICC has developed a practice that is known as “positive complementarity” or

“complementarity activities” which intends to improve the ability of the national courts of the

States to function properly and aims at promoting their efficiency to prosecute the crimes listed in

140 Ibid, paras. 54, 75 and 80. 141 Ibid, para. 71. 142 Ibid, para. 79. 143 Robert Cryer et al, An Introduction to International Criminal Law and Procedure, p. 161. 144 Official Records, Rome Conference, Vol. II, Document A/CONF.183/SR.3, para. 13, p. 73. 145 Jackson Nyamuya Maogoto, State Sovereignty and International Criminal Law: Versailles to Rome, p. 249. 146 Ibid. 147 See in this regard Agence France-Presse, “African Union Members Back Kenyan Plan to Leave the ICC”, The

Guardian, 1 February 2016. Available at http://www.theguardian.com/world/2016/feb/01/african-union-kenyan-plan-

leave-international-criminal-court

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Article (5) of the Rome Statute and to fight impunity.148 Recently the Assembly of States Parties

of the ICC (ASP) requested the Bureau149 to continue its efforts to tackle the issue of

complementarity through the continuation of dialogue “with the ICC and other stakeholders” to

enhance the international cooperation and to create partnerships between the ICC and the national

authorities.150 In this regard it is worth mentioning that this practice is a good step to increase the

visibility of the ICC at the internal level of the States. The ICC can assure to the States that the

Court’s main objective is to fight impunity whether at the national or international level and it is

not intended to interfere in the States internal affairs through the use of its jurisdiction.

However, the application of the principle of complementarity may be faced with certain

difficulties for example when a particular State grants amnesties to the perpetrators of genocide or

war crimes, shall this amnesty shield the perpetrators from being prosecuted at the international

level? It has been suggested that the grant of amnesties shall not shield the perpetrators from the

international criminal responsibility.151 Any different approach would empower the governments

to block the Court’s jurisdiction to protect their own political allies from being prosecuted before

the ICC.

Another issue that may arise is that when a national court imposes death penalty on a

perpetrator, can the ICC consider this conviction as incompatible with the requirement of impartial

trial and the principle of due process and therefore decides to retry the accused person in

accordance with Article 20(3)(b) of the Rome Statute? Recently, the Democratic Republic of

Congo, as the State of enforcement of the judgment of the ICC against Germain Katanga, requested

the ICC in accordance with Article 108(1) of the Rome Statute to approve the prosecution that the

DRC wants to pursue against Germain Katanga based on its sovereign jurisdiction and the

principle of complementarity. The Presidency of the ICC noted in its Decision of 7 April 2016 that

“the Court´s approval should only be denied when the prosecution, punishment or extradition of

sentenced persons may undermine certain fundamental principles or procedures of the Rome

Statute or otherwise affect the integrity of the Court”.152 The Presidency has taken into account

several criteria in determining whether the requested approval for prosecution by the DRC is

compatible with the “fundamental principles of the Statute”, one of these criteria was “the formal

written assurance” by which the DRC assured to the ICC that it will not impose death penalty on

148 Report of the Bureau on Complementarity to the Fourteenth Session of the Assembly of States Parties held from

18-26 November 2015 at The Hague, Document No. ICC-ASP/14/32, 10 November 2015, p. 2. 149 In accordance with Article 112(3)(c) of the ICC Statute, the main duty of the Bureau is to assist the Assembly of

States Parties to in the discharge of its responsibilities. 150 Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court,

Fourteenth Session, The Hague, 18-26 November 2015 (ICC-ASP/14/20), vol. I, Resolution ICC-ASP/14/Res.4,

Annex I, para. 13. 151 Ilias Bantekas and Susan Nash, International Criminal Law, p. 541. See also Eve La Haye, War Crimes in Internal

Armed Conflicts, p. 348. See also Robert Cryer et al, An Introduction to International Criminal Law and Procedure,

pp. 158-159. 152 ICC, The Prosecutor v. Germain Katanga, Case No.: ICC-01/04-01/07, The Presidency Decision pursuant to article

108(1) of the Rome Statute, 7 April 2016, para. 20.


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Germain Katanga.153 Based on this, the ICC considered the ongoing prosecution undertaken by

the DRC in this respect is compatible with the principle of fair trial and approved the DRC’s

request.154

As with regard to whether the ICC is obliged to take into account the risk of violating

human rights or the suspect’s right to get a fair trial at the domestic level when applying the

complementarity principle, the Appeals Chamber of the ICC clarified that the principle of

complementarity is mainly concerned with whether a particular case is admissible before the ICC

and thus not to make sure that the human or due process rights of the accused are respected,155

otherwise the ICC would be a court of human rights, which is not the main purpose behind its

creation.156 Hence, the main object behind the reference to impartiality and due process in Article

17(2) is not to guarantee the implementation of human rights at the national level but rather to

allow the ICC to assess whether the national court can effectively carry out the prosecution in a

way that does not allow the suspect to escape from being punished.157 However, this approach of

interpretation does not mean that the ICC shall not take into consideration the violations of the

rights of the accused, the Court recognized that a case could be considered as admissible before

the ICC in those cases were the disrespect for the accused rights is “egregious” and does not reflect

the capacity or willingness of the national courts to give “genuine” justice, such as were the

prosecution is a “predetermined” step to execute the suspect or where the national court does not

recognize the most essential elements of justice.158 Therefore, the violations of human rights norms

may be taken into account by the ICC in this regard only in “specific and limited circumstances”.159

The complementary character of the ICC plays a very important role in the enforcement of

the individual criminal responsibility for crimes committed in NIAC because it gives the ICC the

ability to assess the unwillingness and inability of the national courts to carry out the proceedings

and it is exactly in NIAC where the national judicial system is inefficient to bring the tyrants to

justice. Thus, the flexibility provided for the ICC under the principle of complementarity to assess

the unwillingness, inability and the gravity on one hand and the ICC’s non-restrictive approach

towards the interpretation of the threshold of those concepts on the other hand, can play a

significant role in the enforcement of the individual criminal responsibility for crimes committed

in NIAC in comparison with IAC were the national courts would arguably still be more effective

in the process of imposing justice. Now, the ICC is investigating 23 cases in 10 different situations;

153 Ibid, para. 28. 154 For more information regarding the death penalty subject see Eric Myjer, Uniform Justice and the Death Penalty,

In: José Doria et al (eds.), The Legal Regime of the International Criminal Court, pp. 927-942. 155 The ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11 OA 6,

the Appeals Chamber on the Appeal of Mr. Abdullah Al-Senussi against the Decision of Pre-Trial Chamber I of 11

October 2013 entitled “Decision on the Admissibility of the Case against Abdullah Al-Senussi'', 24 July 2014, paras.

169 and 230(2). 156 Ibid, para. 219. 157 Ibid, para. 221. 158 Ibid, para. 230. 159 Ibid, paras. 169 and 220.


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two situations have been referred by the UNSC in accordance with Article 13(b) these are Sudan

(Darfur) and Libya; five have been referred by the States Parties these are DRC, Mali, Uganda,

Central African Republic (has referred two situations before the Court); three other cases have

been initiated by the Prosecutor using its proprio motu power in accordance with Article 15 these

are Kenya, Côte d'Ivoire and Georgia.160

C. Obstacles to the exercise of the ICC jurisdiction ratione materiae over war crimes

committed in NIAC:

The jurisdiction ratione materiae of the ICC over war crimes committed in NIAC can be

found in Article 8(2)(c) and (e) of the Rome Statute. This section will not analyze the substantive

content of these two subparagraphs. It shall examine whether there are obstacles that can impede

the ICC from exercising its jurisdiction ratione materiae and imposing the individual criminal

responsibility for war crimes committed in NIACs.

It has been claimed that the ICC may not be able to prosecute “war crimes committed

during low-level armed conflicts”161 or it has jurisdiction over only war crimes that have been

committed “as part of a large-scale commission” but not over war crimes that are of a single or

“isolated” nature.162 The advocates of this claim rely on Article 8(1) of the ICC Statute that

stipulates “[T]he 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”.

However, this argument cannot be upheld, as was mentioned before,163 such interpretation is in

contradiction with the intention of the drafters which accepted the phrase “in particular” instead of

the word “only”. Hence, the phrase “in particular” shall be interpreted to mean that the ICC’s

jurisdiction is not restricted to the crimes that are of a “large scale”, but rather the ICC would be

more efficient if it would devote its resources on such types of crimes.

Although Article 8(1) does not add a restriction on the establishment of the ICC’s

jurisdiction ratione materiae over war crimes committed in NIAC or IAC, the Court’s jurisdiction

over war crimes committed in NIAC was restricted by virtue of Article 8(2)(c) and (e) to only 19

crimes. Article 8(2)(c) enumerates four crimes with respect to “serious violations of Common

Article 3”. Article 8(2)(e) originally provided a list of 12 crimes under the category of “other

serious violations of the laws and customs applicable in armed conflicts not of an international

character”, this list was later increased by the Kampala amendment that added another 3 crimes.164

However, this amendment, as any amendment that might be adopted to Articles (5), (6), (7) and

160 See the ICC website https://www.icc-cpi.int/EN_Menus/icc/situations%20and%20cases/situations/ICC-01_15/Pages/default.aspx 161 Eve La Haye, War Crimes in Internal Armed Conflicts, p. 340. 162 Natalino Ronzitti, Reparation and Compensation, In: Nigel D. White and Christian Henderson (eds.)., Research

Handbook on International Conflict and security law "Jus Ad Bellum, Jus In Bello and Jus Post Bellum”, Edward

Elgar Publishing, 2013, p. 655. 163 See p. 6 and 26 of this thesis. 164 Kampala amendment to Article 8(2)(e) was the outcome of the Review Conference and was adopted by consensus

at the 12th Plenary Meeting of the Assembly of States Parties of the ICC in 10 June 2010 by resolution RC/Res.5.

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(8), shall be binding only upon the States Parties that have ratified it “after one year from the

deposit[tion] of their instruments of ratification or acceptance”.165 In other words, the Court shall

not have jurisdiction over the crimes, contained in the amendment, which have been committed on

the territory of the States Parties that have not ratified or accepted the amendment. It took almost

five and half years to get the Kampala amendment to Article 8 being ratified by 30 States among

the 124 States Parties of the ICC.166 This shows the long time that is needed to get an amendment

being entered into force for all the States Parties to the Statute.

It is regrettable to realize that the international justice system has a double personality when

it comes to the categorization of war crimes. The criminalization of 34 crimes in IACs and only

19 in NIACs makes the Statute ambivalent from humanitarian and logical point of view. The

exclusion of 15 crimes from the ICC’s jurisdiction over NIAC, specifically the use of means of

starvation against civilians,167 the use of human shields,168 attacks against civilian objects169 and

the use of weapons that cause superfluous or unnecessary suffering,170 reveals the “double dealing

approach” of the international community to the concept of war crimes. Particularly, when

someone takes into account the current situations in Syria, Iraq and Palestine which have shown

that the commission of these crimes are quite common. The inclusion of a short list of crimes in

the Rome Statute regarding NIAC was the result of the lowest common denominator that has to

rule to reach consensus among the States. Hence, the ICC’s effectiveness to enforce the individual

criminal responsibility for war crimes committed in NIAC is not as powerful as in IAC. This would

make the ICC toothless regarding

Another fallacy to the objective of ending impunity, the raison d’etre of the Court, is the

inclusion of Article 124 entitled “Transnational Provision” in the Rome Statute. This Article

allows a non-State Party, at the time when it joins the ICC, to exclude the ICC’s jurisdiction under

Article 8 with respect to war crimes that have been committed by its nationals or on its territories.

The text of Article 124 raises many questions such as: when a State makes a declaration to

exclude the Court’s jurisdiction over war crimes, does this mean that the UNSC will not be able

to refer any case of a war crime, committed by a national or on the territory of that State? Or as

noted by William A. Schabas “does this mean that the nationals of the State that triggered the use

165 Article 121(5) of the ICC Statute (emphasis added). It is worth mentioning here that the English, French and

Spanish versions of Paragraph 5 of Article 121 provides that any amendment to Articles (5), (6), (7) and (8) shall enter

into force only for those States who have ratified the amendment whereas the Arabic version of this Paragraph

mentions only the amendments to Article (5) but did not include the other three Articles. It is interesting to see how

the Court is going to deal with such issue in case of any dispute may arise regarding the interpretation of the Statute,

especially Article 128 stipulates that the texts of the Statute, that were published in several languages, are equally

authentic. 166 There are 28 States Parties that have ratified the Kampala amendment on the Crime of Aggression, see in this

regard the ICC’s website https://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/PR1193.aspx 167 Rome Statute, Article 8(2)(b)(xxv). 168 Ibid, Article 8(2)(b)(xxiii). 169 Ibid, Article 8(2)(b)(ii) 170 Ibid, Article 8(2)(b)(xx).

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of Article 124 cannot be prosecuted even if the crime committed on the territory of another State

Party?”171 The text of the Article is clear in this respect. It generally excludes the Court’s

jurisdiction over war crimes committed by the nationals of that State without specifying the place

of the commission of such crimes. The general nature of the Article’s text deprives the UNSC from

the exercise of its referral right under Article 13(b).

Article 124 was not existed in the Draft Statute that was submitted by the ILC in 1994, but

it was included in the final version of the Statute as a compromise to gain the endorsement of

France to the project of the creation of the ICC.172 This Article was reviewed by the Review

Conference that was held in Uganda between 31 May and 1 June 2010. The outcome of the

Conference was to “retain” the Article and to review it later at the fourteenth session of the ASP

of the ICC. Consequently, based on a recommendation from the Working Group, which was

established at the thirteenth session of the ASP to review the Article, the ASP in its fourteenth

session adopted a Resolution by consensus on 26 November 2015 to delete Article 124.173 It must

be noted here that the legal basis of the process of entry into force of this amendment differs from

that relating to the amendments of Articles 5, 6, 7 and 8 in that any amendment to the latter Articles

shall enter into force in accordance with Article 121(5) only with respects to those States that have

ratified or accepted it and only after one year from the receipt of their instrument of ratification or

acceptance whereas the amendment to Article 124 shall enter into force pursuant to Article 121(4)

that provides “[E]xcept as provided in paragraph 5, an amendment shall enter into force for all

States Parties one year after instruments of ratification or acceptance have been deposited with the

Secretary-General of the United Nations by seven-eighths of them”.

Thus, although the deletion of Article 124 in accordance with the abovementioned

Resolution is a good step to strengthen the ICC’s jurisdiction, the seven-eighth threshold required

to the entry into force of the amendment makes it very difficult to see this Article being deleted in

the near future. Currently, there are 124 States that are Parties to the Rome Statute, meaning that

the seven-eighth threshold amounts to 109 States, which is arguably a high number that must be

171 William A. Schabas, An Introduction to the International Criminal Court, p. 189. (emphasis added) 172 As was observed by David Wippman, “The International Criminal Court, In: Cristian Reus-Smit (ed.), The Politics

of International Law, Cambridge University Press, 2004, pp. 167-168”, that originally during the negotiations of the

Rome Statute the five Permanent Member States of the UNSC (China, France, Russia, UK and USA) were willing

to make the UNSC as the only body that has the right to refer cases to the ICC, but when the UK changed its opinion

regarding this issue and accepted the possibility to give the States parties as well as the prosecutor the right to refer

cases, this “left France isolated among the European States”. Therefore, France had compromised to accept the Statute

but on the other hand to include Article 124. See also William A. Schabas, An Introduction to the International

Criminal Court, Second Edition, 2004, p. 188. 173 Resolution ICC-ASP/14/Res.2.


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reached. Although only France174 and Columbia175 triggered the application of Article 124 at the

time of their ratification to the Statute, the possibility given to the States that want to join the ICC

in the future to use this Article, contains a significant risk on the ICC’s capability to enforce the

individual criminal responsibility for war crimes committed in IAC and specifically in NIAC.176

The third issue that might impede the ICC from effectively performing its duties is the

inclusion of Article 16 which gives the UNSC the authority to defer any investigation or

prosecution, undertaken by the ICC, for a period of 12 months.177 The UNSC may adopt a

resolution to that effect acting under Chapter VII of the UN Charter. Such period is renewable for

more than once.178 Article 16 has been strongly criticized for many reasons; first, it empowers the

UNSC to block the judicial process of the ICC which may hinder the effectiveness of the Court

and affect its autonomy. Secondly, Article 16 contradicts with the principle of sovereign equality

as it gives the five permanent members of the UNSC the capacity to protect their own nationals

from the jurisdiction of the Court. Perhaps the more problematic issue is that Article 16 gives such

power to non-States Parties to the Statute, namely China, Russia and the USA, to overrule the role

of the ICC. However, even if such States become parties to the Statute the fact that they enjoy such

power under Article 16 will continue to be problematic because the other States Parties do not

have actually the right of deferral.179 Thirdly, giving the deferral power to a political body over a

judicial institution makes politics supreme over justice.180

As indicated previously, the drafters sought to secure the universal acceptance of the ICC

Statute through the adoption of the principle of complementarity but on the other hand they

contradicted themselves by giving the UNSC a politically irreconcilable power under Article 16.

This may delay the process of ratification of the Statute due to the perception that the ICC is a

judicial institution that is dominated by the western powers to achieve their own interests.

Although the ICC has a very flexible mechanism under the principle of complementarity through

which it can enforce the individual criminal responsibility for war crimes committed in NIACs,

174 France triggered this Article due to its military presence in Africa which was estimated at that time to be of 6000

soldiers and thus it intended to shield its citizens from any possible prosecution before the ICC. Just 10 months before

its expiration, France retreat its declaration on 13/8/2008. Shana Tabak, “Article 124, War Crimes, and the Statute

Development of the Rome Statute”, Georgetown Journal of International Law, Volume 40, 2008-2009, p. 1085.

Available at: http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1265&context=facsch_lawrev 175 Colombia chose to make use of this article because it is suffering from NIAC that is to be considered as one of the

cruelest armed conflicts. However, the Colombian declaration expired on 31/10/2009. See Ibid, p. 1088. The Amnesty

International Annual Report of 2015/2016 indicated that by the end of 2015 the number of persons that were killed in

Colombia is estimated to be 263 thousands among 7.8 million of victims. Available at:

https://www.amnesty.org/en/countries/americas/colombia/report-colombia/ 176 Eve La Haye, War Crimes in Internal Armed Conflicts, p. 341. 177 Ibid, p. 345. 178 Nigel White and Robert Cryer, The ICC and the Security Council: An Uncomfortable Relationship, p. 466. 179 See the opinion of the Indian delegate in the Official Records, Rome Conference, Vol. II, Document

A/CONF.183/SR.4, para. 51, p. 86. 180 Nigel White and Robert Cryer, The ICC and the Security Council: An Uncomfortable Relationship, p. 464.

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the Court’s jurisdiction ratione materiae over war crimes of NIACs is still limited and the exercise

of such jurisdiction might be impeded through Articles 16 and 124 of its Statute.

However, the practice of the UNSC since the ICC Statute came into force reduces the fear

from the misuse of Article 16. As was observed by Eve La Haye, so far the UNSC used Article 16

only twice. The first time was when it adopted Resolution 1422 in 2002 that excluded the personnel

of the non-State Parties to the Rome Statute which are participating in the peacekeeping and

military operations authorized by the UNSC from the jurisdiction of the ICC. The second time was

when Resolution 1422 was renewed by Resolution 1487 in 2003.181 There were another possibility

to use Article 16 with respect to the situations in Kenya, Uganda and the Central African Republic

but the UNSC did not take action in this regard.182 It shall be noted here, as Judge Cherif Bassiouni

rightly observed, that these Resolutions are illegal because they were adopted by the UNSC on a

prior assumption that the threshold required by Chapter VII of the UN Charter and Article 16 of

the Rome Statute is already existed, namely the existence of a threat to peace and security

threshold. 183 Whereas Article 16 can be triggered only with respect to a situation that is already

existed and after having established the required threshold.

D. The cooperation between the ICC and the national authorities: Are the non-state

armed groups under obligation to cooperate?

Part 9 of the Rome Statute, Section 1 of Chapter 7 of the Regulations of the Court and

Chapter 11 of the ICC’s Rules of Procedures regulate the legal framework of the cooperation

mechanism between the ICC and the States. Some scholars considered Part 9 as weak due to many

reasons such as; first, it takes into account the interests of the States rather than the need to establish

an effective ICC. Secondly, it does not give the ICC the enough powers to take effective measures

against a State that does not comply with its decisions.184 On the contrary, others viewed Part 9 as

it enables the ICC to “enjoy broad authority” over many aspects such as the request for evidences

and the surrender of the accussed persons and the like.185 However, Article 86, the first Article in

Part 9, obliges the States Parties to the Rome Statute to “cooperate fully with the Court in its

investigation and prosecution of crimes within the jurisdiction of the Court”.

Non-States parties are obliged to cooperate with the Court only in three exceptions; first,

when the situation concerned was referred to the ICC by the UNSC. In determining whether the

181 Eve La Haye, War Crimes in Internal Armed Conflicts, pp. 343-344. 182 Hemi Mistry and Deborah Ruiz Verduzco (Rapporteurs), The UN Security Council and the International Criminal

Court, International Law Meeting Summary with Parliamentarians for Global Action, Chatham House, 16 March

2012, p. 15. Available at http://www.pgaction.org/pdf/activity/Chatham-ICC-SC.pdf See also Lawrence Moss, The

UN Security Council and the International Criminal Court “Towards a More Principled Relationship”, International

Policy Analysis, Friedrich Bert Stiftung, March 2012, p. 10. Available at http://library.fes.de/pdf-files/iez/08948.pdf 183 M. Cherif Bassiouni, Introduction to International Criminal Law: Second Revised Edition, p. 703. (emphasis added) 184. Robert Cryer et al, An Introduction to International Criminal Law and Procedure, p. 529. See also Eve La Haye,

War Crimes in Internal Armed Conflicts, p. 349. 185 Ilias Bantekas and Susan Nash, International Criminal Law, p. 549.

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Republic of Sudan is under obligation to cooperate with the ICC regarding the situation in Darfur

Region, the Pre-Trial Chamber II of the ICC observed that when the UNSC refers a situation to

the ICC in accordance with Chapter VII and pursuant to Article 13(b) of the ICC Statute, it makes

all the “UN Member States which are not parties to the Statute” obliged by virtue of Article 25 of

the UN Charter to cooperate with the Court, and since Sudan is a UN Member State it is therefore

obliged to cooperate with the ICC.186 Secondly, when the non-State party enters in “an ad hoc

arrangement or an agreement” with the ICC pursuant to Article 87(5)(a) of the Rome Statute,

which intends to open a cooperation channel between both parties. Thirdly, when a State makes a

declaration under Article 12(3) of the ICC Statute declaring its acceptance to the jurisdiction of

the ICC with respect to a particular crime, that State shall be obliged to cooperate with the Court

regarding any issue relates to the prosecution of the crime in question.

The ICC may determine that a particular State did not cooperate with the Court and

accordingly the Court may refer the issue in accordance with Article 87(7) of the Rome Statute to:

first, the ASP if the situation in question was referred to the Court by either a State Party or the

Prosecutor. Secondly, the UNSC if it was the author of such referral. It shall be noted here that

once the Court has determined the existence of a non-cooperation, it is not obliged then to refer

such finding to the abovementioned bodies. Rather, the Appeals Chamber recently made it clear

“that a referral is not an automatic consequence of a finding of a failure to comply with a request

for cooperation”.187 The Court may assess whether this non-cooperation meets the threshold

required by Article 87(7) which is “preventing the Court from exercising its functions and powers

under [the ICC] Statute”. After this assessment, the Chamber has the discretion to refer the case or

not.188 The Appeals Chamber added that to decide whether to refer a case to the ASP or the UNSC,

the Court may take into account the following: “whether the referral would provide an incentive

for cooperation by the requested State; whether it would instead be beneficial to engage in further

consultations with the requested State; and whether more effective external actions may be taken

by actors other than the ASP or the UNSC, such as third States or international or regional

organisations”.189

The ASP adopted the “Assembly Procedures Relating to Non-Cooperation” which shall

perform as a guideline that is to be taken into consideration when dealing with a case of non-

compliance.190 The Procedures identified and differentiated between two “scenarios” of non-

186 ICC, The Prosecutor v. Abdel Raheem Muhammad Hussein, Case No. ICC-02/05-01/12, The Pre-Trial Chamber

II Decision on the Prosecutor's Request for a Finding of Non-Compliance against the Republic of Sudan, 26 June

2015, para. 12. Article 25 of the UN Charter provides that “[T]he Members of the United Nations agree to accept and

carry out the decisions of the Security Council in accordance with the present Charter”. 187 ICC, The Prosecutor v. Uhuru Muigai Kenyatta, Case No. ICC-01/09-02/11 OA, The Appeals Chamber Judgment

on the Prosecutor’s appeal against Trial Chamber V(B)’s “Decision on Prosecution’s application for a finding of non-

compliance under Article 87(7) of the Statute”, 19 August 2015, para. 53. 188 Ibid, paras. 64 and 94 189 Ibid, para. 53. 190 Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Tenth

Session, New York, 12-21 December 2011 (ICC-ASP/10/20), Volume I, Part III, Resolution ICC-ASP/10/Res.5

Annex.


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cooperation and stipulated that the type of reaction to be undertaken by the ASP shall differ for

each one:

a. A formal response is needed by the ASP: where the Court refers its finding of non-

cooperation to the ASP pursuant to Article 87(7). Based on such referral, the ASP shall

take a “formal response”. The Procedures specify several steps that shall be taken all

of which intend to lay stress on the State that does not cooperate with the Court. An

emergency meeting may be held by the Bureau to discuss the matter and to make a

decision regarding the appropriate steps that shall be followed to deal with the issue in

question. In other words, this meeting would draw a plan of actions. The next step is

that the President of the ASP may send a letter to the State concerned seeking its

opinion within a period that does not exceed two weeks. After the end of these two

weeks or when the State concerned sent its reply for the President’s letter, the Bureau

may “request the new York Working Group191 to hold a public meeting on the matter

to allow for an open Dialogue with the requested State”.192 After this dialogue, the

Bureau may submit a report and recommendations on the further actions that are to be

taken by the ASP. Accordingly, such report “could be discussed in plenary session of

the Assembly”.193 However, the Procedures did not indicate what exactly the ASP shall

or may decide in case of non-cooperation. The above steps may take a long time and

their outcome shall depend on whether they can secure at least the two-third majority

of the States Parties present and voting pursuant to Article 112(7)(a) of the Rome

Statute and Rule 63 of the Rules of Procedure of the ASP.

b. Where an informal response is needed: this case involves a case where the Court has

not yet decided the existence of non-cooperation pursuant to Article 87(7) but the ASP

decides that “there are reasons to believe that a specific and serious incident of non-

cooperation in respect of a request for arrest and surrender of a person … is about to

occur or is currently ongoing and urgent action by the [ASP] may help bring about

cooperation”.194 The ASP may make “informal response” through its President who

shall carry out good offices for that purpose and shall be assisted by four focal points,

can be increased to five, to fulfil his mandate. Through good offices the President may

cooperate and convene meetings with the State concerned to facilitate cooperation

through diplomatic means.195

Unlike the ASP, the UNSC does not have a specific procedure that can be followed when

facing an issue of non-compliance. The UNSC is empowered to take enforcement measures under

191 This and the Hague Working Group were established by the Bureau on 1 December 2004 in accordance with

Resolution ICC-ASP/3/Res.8 on 10 September 2004 of the ASP and Article 112”4”. They have been named in

accordance with the location of their office. The main purpose of these groups is to help the Bureau in performing its

duties. See the ICC website: https://www.icc-cpi.int/en_menus/asp/bureau/Pages/bureau%20of%20the%20assembly.aspx 192 The Procedures, Resolution ICC-ASP/10/Res.5 Annex, para. 14. 193 Ibid. 194 Ibid, para. 7(b). 195 Ibid, paras. 15-20.

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Chapter VII of the UN Charter. However, the Relationship Agreement between the ICC and the

UN does not oblige the UNSC to take an action in this regard but the latter, pursuant to Article

17(3) of that Agreement, is under obligation to inform the Court with respect to any measures that

have been undertaken. The last ten years have shown that the UNSC has not been helpful to the

ICC in terms of ensuring the required cooperation at least with respect to the situations that it itself

has referred to the ICC. Namely in Sudan and Libya where the Court have faced non-compliance

in both situations. The failure to achieve the required cooperation in these situations reflects the

ineffective mechanism provided for the ICC under its Statute to enforce the individual criminal

responsibility for crimes committed in NIACs and have been referred to the ICC by the UNSC.

The Prosecutor, in her Statement before the UNSC, described the UNSC’s Resolutions

regarding the non-cooperation of Sudan as “empty promises” because they failed to effectively

arrest the accused persons and such failure was due to the lack of “adequate follow up and Support

from the UNSC” regarding the reports submitted by the Prosecutor on non-compliance issues.196

Furthermore, the Prosecutor in its 22nd Report observed that the UNSC’s failure to act with respect

to the non-compliance of Sudan “undermines its credibility”.197 In addition to that, the Bureau of

the ASP observed in its “Report on Non-Cooperation” that the President of Sudan AL Bashir has

travelled to many States, which include both parties and non-parties to the ICC, without being

arrested, which reflect the failure of those States to cooperate to execute the warrant of arrest

against him.198 However, in accordance with the Rome Statute, a State Party is not obliged to

surrender a suspect that enjoys a “diplomatic immunity under international law”, except where the

ICC acquires a “waiver” from the State that has granted such immunity.199

Article 98(2) of the ICC Statue provides another exception to the obligations to cooperate

by which a State Party is not obliged to surrender an accused person to the ICC if such action

“would require it to act inconsistently with its obligations under international agreements”. This

Article shall be understood as it gives priority to the obligations that arise from those agreements

that have been concluded before the accession of the State concerned to the ICC Statute. Once a

State becomes a party to the Statute, it becomes under obligation not to conclude an agreement

that is incompatible with its obligations under the Statute.200 It has been observed that the USA

196 The ICC’s Prosecutor Statement on 15/12/2015 to the UNSC on the Situation in Darfur, Pursuant to the UNSCR

(1593) 2005, paras. 4-6. Available at: https://www.icc-

cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20state

ments/statement/Pages/otp-stat-15-12-15.aspx 197 The Office of the Prosecutor Twenty-second report pursuant to paragraph 8 of UN Security Council Resolution

(UNSCR) 1593 (2005), 15 December 2015, para. 45 (emphasis added). Available at: https://www.icc-

cpi.int/iccdocs/otp/OTP-rep-15-12-15_Eng.pdf 198 Report of the Bureau on Non-Cooperation to the Fourteenth Session of the Assembly of States Parties held from

18-26 November 2015 at The Hague, Document No. ICC-ASP/14/38, 18 November 2015, paras 12-14 and 21-24. 199 Rome Statute, Article 98. 200 Ilias Bantekas and Susan Nash, International Criminal Law, p. 540.

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has been actively seeking to conclude as many agreements with other States as possible to

immunize its citizens from being transferred to the ICC.201

A State Party is also entitled to refuse to provide or to disclose information that affects its

national security.202 However this right shall be exercised pursuant to Article 72 of the Rome

Statute. Paragraph 5 of this Article enlists “reasonable steps” that “will be taken” by the requested

State to make sure whether the issue in question can be resolved by other means of cooperation

and consultation with the Court. Such as the “modification” of the request in a way that does not

affect the national security of that State. If such “reasonable steps” did not succeed in bringing the

expected results, the State concerned is entitled to refuse to provide or disclose the information or

documents in question.203 The State is also entitled to refuse without clarifying the reasons behind

such refusal, if the declaration of such reasons itself would affect its national security.204 As a

consequence to such refusal, the ICC is empowered to pursue one of the following options:

a. If the refusal to provide or not to disclose the requested information was justified by the

State concerned for the purpose of protecting its national security, the Court may consult

with that State to consider other options to implement the request of the Court. Otherwise,

the Court may refer the matter either to the ASP or the UNSC pursuant to Article 87(7).205

b. If the refusal was justified by reasons other than the national security, the Court may

order the disclosure.206

Article 93(4) has a clear link to the ability of the ICC to prosecute the crimes committed in

NIAC. Obviously this Article can be used by a State Party that is facing NIAC to hinder the

effective exercise of the ICC’s jurisdiction over such situations. However, the Court is not

powerless in such situations but rather it can put pressure on that State by referring the matter to

the ASP or the UNSC pursuant to Article 87(7). However, the success of the effective enforcement

of the Court’s orders will depend on the political readiness of these bodies to carry out their moral

and legal responsibilities.

The cooperation mechanism under the ICC Statute does not provide a framework through

which the ICC can cooperate with non-state armed groups.207 However, the Court may, through

the Prosecutor, “seek additional information from … other reliable sources that he or she deems

appropriate”.208 Although the Rome Statute does not oblige the non-state armed groups to

cooperate with the ICC, those groups will have many incentives to do so. Politically speaking, this

would be a good opportunity for them to assert or declare their own identity at the international

201 M. Cherif Bassiouni, Introduction to International Criminal Law: Second Revised Edition, pp. 703-704. 202 Rome Statute, Article 93(4). 203 Ibid, Article 72(6). 204 Ibid. 205 Ibid, Article 72(7)(a). 206 Ibid, Article 72(7)(b). 207 Eve La Haye, War Crimes in Internal Armed Conflicts, p. 353. 208 Rome Statute, Article 15(2).


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level. Their cooperation would demonstrate their good faith and willingness to be committed with

the international norms which would consequently corroborate their legitimacy.209

In spite of the criticisms regarding the weaknesses of the legal framework of cooperation

under Part 9 of the ICC Statute, time has proven that the problem that form an obstacle to

cooperation is political rather than legal. Since the creation of the ICC, the Court decided the

existence of non-cooperation in two cases out of ten. Namely, in the situations of Sudan and Libya,

and both cases were referred by the UNSC.210 Therefore, the refusal to cooperate was not a

coincidence but rather it occurred because the UNSC was the author of such cases. In the cases

were a State Party or the Prosecutor of the Court refers a particular situation before the Court, the

State concerned will be under obligation to cooperate with the Court because both the States Parties

and the Prosecutor cannot refer a case were the alleged crimes have been committed on the territory

or by a national of a non-State party. On the Contrary, when the UNSC refers a situation in a non-

State party, it is politically conceived as that the main objective behind such referral is to achieve

specific interests for the five Permanent Members of the UNSC. Furthermore, and politically

speaking, it is not convincing for the non-State parties to cooperate with the ICC with respect to a

case that has been referred by the UNSC mainly because three out of the five Permanent Members

of this UN Body, China, Russia and the USA, are not parties to the Rome Statute. It is always

inequality before law and the double standard approach at the international level that are the main

obstacles to gain more respect and effective implementation for international law.

E. Concluding remarks:

The principle of complementarity gives the ICC certain flexibility through which it can

assess whether the national courts have impartially brought justice for the victims of NIAC

otherwise the ICC can assume its responsibility as the guardian of the international criminal justice.

However, the jurisdiction ratione materiae of the ICC over war crimes that have been committed

in NIAC is limited in comparison with IAC. Unfortunately, this reflects the justice deficit in the

Statute. Articles 124 and 16 of the Rome Statute possess certain risk that might impede the ICC

from exercising its jurisdiction. Nevertheless, the few times where these two Articles have been

triggered during the last fourteen years reduces such fear. The ICC’s cooperation mechanism under

Part 9 of the Statute contains no provisions that deals with non-States armed groups and this

reflects the drafters’ imperfect vision regarding the legal framework of NIAC under the Statute.

Such lack may affect the ICC effectiveness in enforcing the individual criminal responsibility for

war crimes committed in NIAC.211 (See section B in the Conclusion for further details)

209 Similar reasoning was advanced as to the incentives provided for the non-State armed groups to comply with IHL

rules. See in this Regard Tom Ruys, Law of Armed Conflict, In: J. Wouters, C. Ryngaert, T. Ruys and G. De Baere,

International Law from a European Perspective, Hart Publishing. (forthcoming) 210 The Trial Chamber V(b) of the ICC is also examining non-compliance by the Kenyan authorities existed or not. 211 Eve La Haye, War Crimes in Internal Armed Conflicts, p. 353.


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Conclusion

A. Chapter One: does Article 8(2) of the Rome Statute contains two types of threshold of

application, the first is under subparagraph (c) that is applicable to NIACs of Common Article

3 and the second is under subparagraph (f) that is applicable to protracted armed conflict?

In the light of the analysis in Chapter One, it can be concluded that the threshold of

application of Article 8(2)(c) and (f) is similar to that of Common Article 3 for the following

reasons: first, in accordance with the ICTY and the ICC’s Judgments, it cannot be relied on Article

1(1) of APII to interpret the threshold of application of Article 8(2)(f). Because, the organizational

degree that is required for the armed groups to trigger the application of Common Article 3 and

Article 8(2)(f) is not as high as the organizational degree required for APII. Common Article 3 and

Article 8(2)(f) require the armed groups to be organized to the extent that “they have the ability to

implement Common Article 3 or the relevant IHL rules” while APII requires them to be “under

responsible command and to exercise such control over a part of its territory as to enable them to

carry out sustained and concerted military operations and to implement [APII]”. Furthermore, the

ICTY and the ICC’s case law rejected to consider the requirement of “responsible command” and

the “exercise of control over the territory” as a relevant criteria to determine the application of

Common Article 3 and Article 8(2)(f). Hence, the organizational degree that is required to conduct

a “protracted armed conflict or violence” for the purpose of applying Common Article 3 and

Article 8(2)(f) is equal. But it is lower than what is required to “carry out sustained and concerted

military operations” in accordance with Article 1(1) of APII. Therefore, as the ICTY noticed that

Article 8(2)(f) threshold is identical to that of Common Article 3, because “[i]t defines an internal

armed conflict by the same two characteristics, protracted armed conflict and organised armed

groups, without including further conditions”.212 These two criteria are prerequisites to determine

the existence of any NIAC.

Secondly, the text of Article 8(2)(f) is similar to the text that was produced by the ICTY in

Tadic Case to define NIAC of Common Article 3.213 Hence, there is no reason why a higher

threshold of applicability shall be given to Article 8(2)(f). The Tadic test was produced by the

ICTY three years before the adoption of the Rome Statute which means that the drafters of the

Statute have been influenced by the ICTY’s jurisprudence.214 Furthermore, the extensive use of

the Tadic test in the following years by the ICTY, the ICTR and the ICC Chambers to define the

threshold of applicability of Common Article 3 is an evident that Article 8(2)(f) has the same

threshold of Common Article 3 due to the similar wording of both Articles.

212 ICTY, The Prosecutor v. Fatmir Limaj et al, Case No. IT-03-66-T, para. 89; ICTY, The Prosecutor v. Ljube Bokoski

and Johan Tarculovski, Case No. IT-04-82-T, para. 197. 213 David E. Graham, Defining Non-International Armed Conflict: A Historically Difficult Task, In: Kenneth Watkin

and Andrew J. Norris (eds.), Non-International Armed Conflict in the Twenty-First Century, U.S. Naval War College,

International Law Studies Volume 88, 2012, p. 49. available at https://www.usnwc.edu/Research---Gaming/International-

Law/New-International-Law-Studies-(Blue-Book)-Series/International-Law-Blue-Book-Articles.aspx?Volume=88 214 Gerhard Werde, Principles of International Criminal Law, pp. 288-289.

https://www.usnwc.edu/Research---Gaming/International-Law/New-International-Law-Studies-(Blue-Book)-Series/International-Law-Blue-Book-Articles.aspx?Volume=88

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Thirdly, it should not be forgotten that the purpose of Article 8(2)(c) and (e) is to protect

the human beings from the hazardous situations of NIAC by eradicating the culture of impunity

and providing a means of deterrence against the perpetrators of war crimes. Therefore, its field of

application shall be extended as much as possible.215 This approach will definitely make the

process of bringing justice for the victims of those tyrant situations easier.216

Fourthly, it has been claimed that international law has now evolved in a way that considers

NIAC and IAC on an equal footing in many aspects. This can be seen in the adoption of many

international treaties that apply equally to NIAC and IAC, and in the application of customary

international law in armed conflicts irrespective whether they are international or internal.217 Thus,

the interpretation of Article 8(2)(f) as it provides a third type of NIAC is in contradiction with the

current development218 and hence the monistic threshold doctrine shall be upheld.

B. Chapter Two: does the ICC have the ability to effectively enforce the individual criminal

responsibility for war crimes committed in NIAC?

To answer this question the following issues shall be taken into consideration; first, the

flexibility provided for the ICC under the principle of complementarity to assess the unwillingness

and inability of the State in question and the gravity of the alleged crime on the one hand and the

ICC’s non-restrictive approach that has been followed in its case law towards the interpretation of

the threshold of those concepts on the other hand, give the ICC a significant power to enforce the

individual criminal responsibility for crimes committed in NIAC in comparison with IAC.

Because, it is exactly in NIAC where the national judicial system is ineffective in bringing the

tyrants to justice in comparison with IAC were the national courts would arguably still more

effective in the process of imposing justice.

Secondly, although the ICC enjoys a flexible mechanism under the principle of

complementarity, its jurisdiction ratione materiae over war crimes of NIACs is still limited by

virtue of Article 8(2)(c) and (e). This jurisdiction can be enhanced by amending the Statute but

this depends on the willingness of the States Parties to do so. As yet, the ICC’s ability to enforce

the individual criminal responsibility for war crimes committed in NIAC is not as powerful as in

IAC. Unfortunately, the perpetrators of war crimes committed in NIAC enjoy a partial impunity

under the Rome Statute in comparison with IAC, which reflects the justice deficit in the Statute

when it comes to NIAC’s legal framework. The deletion of Article 124 by the recent amendment

to the Statute is a significant step to strengthen the ICC’s ability to enforce the individual criminal

215 Similar reasoning to the interpretation of the threshold of application of Common Article 3 was advanced. See

Robert Kolb and Richard Hyde, an Introduction to the International Law of Armed Conflicts, p. 78. For similar opinion

see Dieter Fleck, The Law of Non-International Armed Conflicts, p. 609. 216 Antony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law, p. 185. 217 Marco Sassòli et al, How Does Law Protect in War? Vol. 1, Part I Chapter 2, ICRC, Third Edition, 2011, pp. 23-

24; Dapo Akande, Classification of Armed Conflicts: Relevant Legal Concepts pp. 35-37; Malcolm N. Shaw,

International Law, p. 435; Gerhard Werde, Principles of International Criminal Law, pp. 286. 218 Antony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law, pp. 184-185.


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responsibility over war crimes committed in NIAC. However, the ICC has to wait until the

ratifying States number reaches the seven-eighth threshold in accordance with Article 121(4) to

make the amendment binding on all the other States Parties. This high threshold makes it difficult

to see this amendment coming into force in the near future. Thus, this Article still contains a

significant risk on the ICC’s capability to enforce the individual criminal responsibility for war

crimes committed in IAC and specifically in NIAC.

Thirdly, the UNSC deferral power under Article 16 of the Rome Statute may, in principle,

undermine the independence of the ICC. Nevertheless, the UNSC’s practice that triggered this

Article only twice in the last fourteen years reduces such fear. The UNSC must assume its moral

and legal responsibility towards the international community by helping the ICC in finding

effective means to enforce its decisions and to facilitate cooperation between the Court and the

States. So far this Organ of the UN has not been able to help the Court in terms of ensuring the

required cooperation at least with respect to the situations that the it itself has referred to the ICC.

Additionally, its failure to refer the situations in Syria, Yemen and Iraq and its ruthless silence

regarding the Israeli violations in Palestine are just few examples of such failure.219

Fourthly, with respect to cooperation, the ICC has found non-compliance in two cases out

of ten. Namely, the situation in Libya and Sudan, which are both non-States parties to the ICC.

Therefore, the refusal to cooperate was not a coincidence, but rather it occurred because the UNSC

was the author of such cases and thus it was due to political reasons rather than to the inefficiency

of the legal framework under Part 9 of the Statute. The ICC’s hand is becoming stronger over the

years. So far, there are 124 States Parties to the Statute. Thus, time has proven that the more the

Statute becomes older the more ratification it gets. The major challenge to the ICC in this regard

is that there are many powerful States such as the USA, Russia, China and India, which their

military operations still active in many parts of the world, have not yet ratified the Statute.

However, if the Statute gets ratified by more States, it would make the military personnel of those

States de facto subject to the ICC’s jurisdiction through Article 12(2)(a) and would make the

opinion of such States regarding the ICC being isolated on the international scene. The powerful

States must encourage the other States to ratify the Statute, the European Union practice must be

followed in this regard.220 The legal framework under Part 9 does not contain any provision with

regard to the cooperation between the non-States armed groups and the Court nor does it oblige

them to do so. The absence of such framework weakens the Court’s hands to impose justice in

NIAC.221 Nonetheless, there are many political incentives for such groups to cooperate with the

Court.

219 See the UNSC failure to refer the situation in Syria to the ICC due to the negative votes from Russia and China on

22 May 2014. Available at: http://www.un.org/press/en/2014/sc11407.doc.htm 220 The EU includes an article in its bilateral agreements with other States by which it encourages those States to ratify

the Statute. For example see Article 7 of the Partnership and Cooperation Agreement between the EU and its Member

States, of the one part, and the Republic of Iraq, of the other part, of 2012. (not yet in force) Available at: http://ec.europa.eu/world/agreements/prepareCreateTreatiesWorkspace/treatiesGeneralData.do?step=0&redirect=true&treatyId=9202 221 Eve La Haye, War Crimes in Internal Armed Conflicts, p. 353.

http://www.un.org/press/en/2014/sc11407.doc.htm

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http://library.fes.de/pdf-files/iez/08948.pdf




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(para. 381).

7. The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad AL Abd-AL-Rahman,

Case No.: ICC-02/05-01/07, Pre-Trial Chamber I Decision on the Prosecution Application

under Article 58(7) of the Statute, 27 April 2007, (para. 35).

8. The Prosecutor vs Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Pre-Trial Chamber

I Decision on the Confirmation of Charges, 29 January 2007, (para. 234).

9. The Prosecutor v. Jean Pierre Bemba Gombo, Case No. ICC-01/05-01/08, The Trial

Chamber III Public with Annexes I, II, and A to F Judgment Pursuant to Article 74 of the

Statute, 21 March 2016, (paras. 139, 140-141).


01/07 OA 8, The Appeals Chamber 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, 25 September 2009, (para. 78).


01/07, The Trial Chamber II Reasons for the Oral Decision on the Motion Challenging the

Admissibility of the Case (Article 19 of the Statute), 16 June 2009, (para. 81).

12. The Situation in the Democratic Republic of the Congo, Case No. ICC-01/04-169, The

Appeals Chamber Judgment on the Prosecutor's Appeal against the Decision of the Pre-

Trial Chamber I Entitled "Decision on the Prosecutor's Application for Warrant of Arrest,

Article 58", 13 July 2006, (para. 56).

13. The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, The Presidency Decision

pursuant to article 108(1) of the Rome Statute, 7 April 2016, (paras. 20, 28).

14. The Prosecutor v. Abdel Raheem Muhammad Hussein, Case No. ICC-02/05-01/12, The

Pre-Trial Chamber II Decision on the Prosecutor's Request for a Finding of Non-

Compliance against the Republic of Sudan, 26 June 2015, (para. 12).

15. The Prosecutor v. Uhuru Muigai Kenyatta, Case No. ICC-01/09-02/11 OA, The Appeals

Chamber Judgment on the Prosecutor’s appeal against Trial Chamber V(B)’s “Decision on

Prosecution’s application for a finding of non-compliance under Article 87(7) of the

Statute”, 19 August 2015, (paras. 53, 64, 94).

16. The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-

01/11 OA 6, the Appeals Chamber on the Appeal of Mr. Abdullah Al-Senussi against the

Decision of Pre-Trial Chamber I of 11 October 2013 entitled “Decision on the

Admissibility of the Case against Abdullah Al-Senussi'', 24 July 2014, (paras. 169, 219-

221, 230, 230(2)).

D. ICTY Cases:

1. The Prosecutor v. Jovica Stansic and Franco Simatovic, Case No. IT-03-69-T, Trial

Chamber I Judgment, 30 May 2013, Vol I, (paras. 951, 953).


www.UGent.be

2. The Prosecutor v. Mile Mrksic Veselin and Sljivancanin, Case No. IT-95-13/1-A, Appeals

Chamber Judgment, 5 May 2009, (para. 70).

3. The Prosecutor v. Radovan Karadzic, Case No. IT-95-5/18-AR72.5, Appeals Chamber

Decision on Appeal of Trial Chamber’s Decision on Preliminary Motion to Dismiss Count

11 of the Indictment, 9 July 2009, (para. 25).

4. The Prosecutor v. Ljube Bokoski and Johan Tarculovski, Case No. IT-04-82-T, Trial

Chamber II Judgment, 10 July 2008, (paras. 175, 176, 186, 196, 197, footnote No. 759).

5. The Prosecutor v. Dusko Tadic a/k/a/“Dule”, Case No. IT-94-1-AR72, Appeals Chamber Decision

on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, (para. 70).

6. The Prosecutor v. Milan Lukic and Sredoje Lukic, Case No. IT-98-32/1-T, Trial Chamber

III Judgment, 20 July 2009, (para. 868).

7. The Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-T, Trial Chamber II

Judgement, 23 February 2011, Vol. I, (paras. 1522, 1523, 1525, 1526).

8. The Prosecutor v. Ramush Haradinaj et al, Case No. IT-04-84bis-T, Trail Chamber II

Public Judgment with Credential Annex, 29 November 2012, (paras. 392, 393).

9. The Prosecutor v. Ante Gotovina et al, Case No. IT-06-90-T, Trial Chamber I Judgment,

15 April 2011, Vol. II, (paras. 1674, 1694).

10. The Prosecutor v. Fatmir Limaj et al, ICTY Case No. IT-03-66-T, Trial Chamber

Judgment, 30 November 2005, (paras. 87, 89).

E. ICTR Case:

The Prosecutor v. Augustin Ndindiliyimana et al, Case No: ICTR-00-56-T, Trial Chamber

II Judgment and Sentence, 17 May 2011, (para. 2130).

F. Other Documents and Reports:

Report of the International Law Commission on the work of its forty-sixth session, 2 May-

22 July 1994, Document A/49/10, p.38. Available at http://legal.un.org/ilc/reports/reports1990.shtml

Official Records of the UN Diplomatic Conference of Plenipotentiaries on the

Establishment of an International Criminal Court, Rome, 15 June -17 July 1998:

Volume II:

- Document A/CONF.183/SR.3, paras. (13, 19, p. 73) (91, p. 78) (102, p. 79).

- Document A/CONF.183/SR.4, para. (51, p. 86).

- Document A/CONF.183/C1/SR.5, paras. (115, p. 126) (108-14, 117-19, p. 169)

- Document A/CONF.183/C.1/SR.6, paras. (54, p. 100) (100, p. 176).

- Document A/CONF.183/SR.9, para. (75, p. 126).

- Document A/CONF.183/C.1/SR.26, paras. (35, 63, 85, 95, 101, pp. 276-80).

- Document A/CONF.183/C.1/SR.27, para. (8, p. 283).

Volume III:

- Document A/CONF.183/C.1/L.59 and CORR.1, (pp. 212-215).

http://legal.un.org/ilc/reports/reports1990.shtml


www.UGent.be

- Document A/CONF.183/2 (p.82-83).

- Document A/CONF.183/INF/10, (para, 3, p. 225).

ICC, Resolution RC/Res.5 adopted at the 12th plenary meeting of the Review Conference

on 10 June 2010 “Kampala Amendment”.

Report of the Preparatory Committee on the Establishment of an International Criminal

Court, 14 April 1998, Document A/CONF.183/2/Add.1, pp. 21-5. Available at


Jean S. Pictet, Commentary on the Geneva Conventions for the Amelioration of the

Conditions of the Wounded and Sick in Armed Forces in the Field of 12 August 1948, Vol.

I, 1952, p.38, p.48, pp. 49-50.

The ICRC Commentary of 2006 on the First Geneva Convection, Common Article 3, paras.

67-71. Available at:

https://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentI

d=59F6CDFA490736C1C1257F7D004BA0EC#_Toc446324341

Report of the Bureau on Complementarity to the Fourteenth Session of the Assembly of

States Parties held from 18-26 November 2015 at The Hague, Document No. ICC-

ASP/14/32, 10 November 2015, p.2.

Report of the Bureau on Non-Cooperation to the Fourteenth Session of the Assembly of

States Parties held from 18-26 November 2015 at The Hague, Document No. ICC-

ASP/14/38, 18 November 2015, paras 12-14 and 21-24.

Official Records of the Assembly of States Parties to the Rome Statute of the International

Criminal Court, Fourteenth session, The Hague, 18-26 November 2015 (ICC-ASP/14/20),

vol. I, Resolution ICC-ASP/14/Res.4, Annex I para 13.

Official Records of the Assembly of States Parties to the Rome Statute of the International

Criminal Court, Tenth Session, New York, 12-21 December 2011 (ICC-ASP/10/20),

Volume I, Part III, Resolution ICC-ASP/10/Res.5 Annex.

The ICC’s Prosecutor Statement on 15/12/2015 to the UNSC on the Situation in Darfur,

Pursuant to the UNSC Resolution (1593) 2005, paras. 4-6. Available at: https://www.icc-

cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecuto

r/reports%20and%20statements/statement/Pages/otp-stat-15-12-15.aspx

The Office of the Prosecutor Twenty-second report pursuant to paragraph 8 of UN Security

Council Resolution (UNSCR) 1593 (2005), 15 December 2015, para. 45. Available at:


Agence France-Presse, “African Union Members Back Kenyan Plan to Leave the ICC”,

The Guardian, 1 February 2016. Available at

http://www.theguardian.com/world/2016/feb/01/african-union-kenyan-plan-leave-

international-criminal-court

The Amnesty International Annual Report of 2015/2016 regarding the situation in

Colombia. Available at: https://www.amnesty.org/en/countries/americas/colombia/report-

colombia/










