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Prosecuting Dr Strangelove, Goldfinger, and the Joker at the International Criminal Court: Closing the Loopholes

Published online by Cambridge University Press:  22 November 2010

WILLIAM A. SCHABAS
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Abstract

In this commentary to Matt Halling's paper, the author takes issue with Halling's proposal to amend Article 7(2) of the Rome Statute with regard to the ‘policy element’. Halling's view of plugging ‘loopholes’ in the Rome Statute in abstracto is met with a voice of realism. The author's realism is expressed on different levels and can be summarized in the following questions. As to the need for an amendment of Article 7(2), how realistic are the scenarios presented by Halling? Do they really call for an amendment? As to the function and role of the court, why expand the Court's mandate when it can only prosecute a handful of cases at any one time? As to the Court prosecutorial policy, does the Court need a fine net when it has limited resources and a mandate that requires it to focus on those who bear the greatest responsibility?

Keywords

coherencecrimes against humanityloopholespolicy elementreal examplesterrorism
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Court and Tribunals The Policy Element of Crimes against Humanity
Information
Leiden Journal of International Law , Volume 23 , Issue 4 , December 2010 , pp. 847 - 853
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2010

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References

1 M. Halling, ‘Push the Envelope – Watch It Bend: Removing the Policy Requirement and Extending Crimes against Humanity’, in this issue.

2 See humanrightsdoctorate.blogspot.com.

3 Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, UN Doc. S/2006/893, para. 25.

4 Ibid., Addendum, Statement by Mr Nicolas Michel, Under-Secretary-General for Legal Affairs, the Legal Counsel, at the informal consultations held by the Security Council on 20 November 2006, UN Doc. S/2006/893/Add.1.

5 ‘Netherlands, Proposal of Amendments’, C.N.723.2009.TREATIES-5; ‘Report of the Bureau on the Review Conference’ ICC-ASP/8/43, paras. 20–23.

6 ‘Prosecutorial Strategy, 2009–2012’, 1 February 2010, 2.

7 ‘Tenth Annual Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991’, UN Doc. A/58/297/S/2003/829, 72–9.

8 ‘Draft Programme Budget for 2005’, ICC-ASP/3/2, para. 159.

9 Ibid., at 49.

10 ‘Report on Prosecutorial Strategy’, 14 September 2006’, 3.

11 Situation in the Republic of Kenya (ICC-01/09), Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para. 119.

12 Ibid., para. 123.

13 Ibid., para. 128 (references omitted).

14 Situation in the Republic of Kenya (ICC-01/09), Dissenting Opinion of Judge Hans-Peter Kaul, 31 March 2010, para. 51.

15 For discussion of this requirement in the Elements of Crimes, see Bashir (ICC-02/05–01/09), Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009.