II. The Rome Statute’s International Community is More than an Association of the Entities it Encompasses

Margaret Thatcher once defined “the international community” as a tactful way to describe “the West.”4 This may have been the case at one time. However, the contribution of non-Western states to international law including the fight against colonialism and racism as well as the promotion of non-discriminatory social, economic, and cultural rights has certainly shaped the norms of the “the international community” into something more than a mere Western-ruled association.5 Although the precise definition of “the international community” is difficult to come by, it is apparent that it has a legal personality by the institutions that represent it. These institutions include, for example, the United Nations to which almost all countries are members of. They also include, no less, the International Criminal Court even though the Rome Statute has not similarly been ratified by all the world’s sovereign states. This is because the “international community” is more than the sum of its parts.

The relationship between the Security Council, the executive body of the U.N., and the ICC is testament to the permeance of the international community as a notion that is greater than the sum of its parts. Article 13 of the Rome Statute allows the Security Council to refer cases to the Prosecutor, which it has done at least twice.6 The ninth paragraph of the Rome Statute’s Preamble also recognizes the relationship of the Court with the United Nations system.7 And crimes that are “a manifest violation” of the Charter of the United Nations, such as the crime of aggression, are under the jurisdiction of the Court.8 In the International Court of Justice’s Lockerbie case, Judge Weeramantry compared the U.N. executive branch to that of the branches of government in domestic jurisdictions as bodies which, “perform their mission for the common benefit of the greater system of which they are part.”9 Thus, there is a legal recognition that the Court provides a venue for which the Security Council may refer controversies that are “of concern” to the international community it represents. This international community is, in the least, comprised of states that are larger in number than the current State Parties to the Rome Statute, namely the states in the United Nations system.

The concept of jus cogens allows us to take this analysis one step further. Article 53 of the Vienna Convention on the Law of Treaties discusses peremptory norms of “the international community of States as a whole.”10 Although the precise rules that have the status of a peremptory norm has been disputed over time, the existence of the concept of jus cogens is not disputed.11 Jus cogens is the flat prohibition of some rules which renders void any bilateral or multilateral agreement between states which breach those rules. Thus, the Vienna Convention recognizes the existence of some norms that have attained a status above the reach of the individual states within the international community and which constitute the values shared by all in that community.

The language in the Vienna Convention is very similar, but with an important difference, to the language in the fourth paragraph of the Preamble of the Rome Statute which the Prosecutor uses to decide whether the criteria in Article 17(1)(d) of the Rome Statute, which requires a case be of sufficient gravity to be admissible, has been met.12 The Rome Statute considers the most serious crimes “of concern to the international community as a whole.”13 By eliminating the term “States” from the community described in Article 53 of the Vienna Convention, the Rome Statute includes non-state entities in its account of the international community. Obviously, the United Nations is one of these non-state entities, however the phrase permits the inclusion of other international organizations, supranational organizations, probably even corporations, and most importantly civil society organizations.14 Thus, the international community realized in the Rome Statute reaches beyond its statist conception in the Vienna Convention to include a wider range of entities and, with that, a wider range of potential concerns.

There is a normative value inherent in the international community conceived by the Rome Statute. Indeed, even the recognition of jus cogens in the Vienna Convention arose out of the efforts of non-Western states, particularly developing countries who fought for its inclusion in the Convention.15 The identification of peremptory norms was therefore an acknowledgement of the existence of an international community that has a collective interest in values that are above and beyond the reach of the individual interests of unequal powers. This concept of community shows how the international order evolved and moved away from the Eurocentric Westphalian model, which in contrast, emphasized order because states were presumed first and foremost to be acting in their individual self-interest.16 Thus, jus cogens is a normative force which, by its existence, also levels power structures in the international order as it is the product of a call for non-discrimination in a community of states of unequal powers.

Despite laying the framework for jus cogens, the Vienna Convention did not list which rules were, in fact, peremptory norms. However, the Rome Statute’s function, in a sense, is to lay those rules out. The crime of genocide, crimes against humanity, war crimes, and the crime of aggression are jus cogens because they are within the Court’s jurisdiction in Article 5.17 The Preamble of the Rome Statute states that these crimes “shock the conscience of humanity.”18 The Rome Statute views violations of natural law which occur in these crimes as a threat to “the peace, security and well-being of the world.”19 Thus, the term “international community” in the Rome Statute places the human above all social constructs. International criminal law is perhaps one of the few areas in international law that can categorically define which norms are non-derogable by delineating crimes that are flatly abhorrent to the healthy conscience. In doing this, it establishes an international community that is broader than the sum of its parts, as diverse as has historically ever been, and still united by shared values.

III. Diverse Voices Speak to the International Community’s Concerns “as a Whole”

The same features that broaden the term “international community” in the Rome Statute may also narrow the scope of jus cogens norms which concern the international criminal law community “as a whole.” For example, in August 2019, the U.N. International Law Commission identified seven prohibitions that have the status of jus cogens.20 Among these, racial discrimination and the right of self-determination are not explicitly considered in the Rome Statute. This is because they involve violations of civil rights. Some countries, like Switzerland, have argued that the Commission’s list of peremptory norms don’t go far enough and have proposed piracy amongst other conduct to be included in the list.21 Even if the Commission were to take up these suggestions, it is likely that the crime of piracy would still not be considered of sufficient gravity under Article 17 of the Rome Statute because it neither shocks the human conscience nor threatens the peace, security, and well-being of the world. Thus, in one sense, the values that drive consensus in the international community may still not meet the stricter standards required for crimes to be considered of sufficient gravity to fall under the Court’s jurisdiction under the Rome Statute.

However, the practical implications of the broad meaning of international community in the Rome Statute can also have the effect to broaden the category of crimes which we consider to shock the conscience of humanity or threaten the well-being of the world. This, in turn, may widen the scope of jus cogens norms recognized by the international community at large. The situation can arise because of the presence of non-state actors, particularly non-governmental organizations (NGOs) and other civil society organizations, in the Rome Statute’s conception of the international community. For example, the statist international community’s jus cogens norms are arguably developed from the point of view of men.22 Gendered conceptions of jus cogens appear in the U.N. International Law Commission’s non-exhaustive list of peremptory norms as well.23 The Commission recognizes racial discrimination as prohibited conduct, but gender discrimination, which disproportionately hurts women and is the source of violence and systemic injustice against women, is absent from its non-exhaustive list, even though the governing treaty of the U.N. reaffirms “the equal rights of men and women” in its preamble.24 Similarly, while the crimes under the jurisdiction of the ICC are important and serious crimes; genocide, crimes against humanity, war crimes, and crimes of aggression threaten the safety and security of men and primarily voice male concerns. Women’s concerns, such as rape, are of a secondary status within these crimes when read as a whole. While it is certainly an achievement that sexual violence crimes are codified as crimes against humanity in Article 7(1)(g) of the Rome Statute,25 if the international community is comprised only of those voices of power who are overall less concerned or impacted when such crimes occur, their status would be diminished to a violation of a lesser wrong within a criminal proceeding. This, in turn, can impact whether a crime is considered of sufficient gravity to justify the allocation of resources and validate action by the Court. The expansive meaning of international community within the context of the Rome Statute brings into the fold the concerns of voices, such as female voices, which are typically on the margins in a male-dominated statist conception of the international community. Indeed, despite the codification of sexual violence crimes in the Rome Statute, the ICC was initially slow to bring indictments on these crimes.26 This changed when a Hague-based NGO, Women’s Initiatives for Gender Justice, which advocates for the rights of women affected by armed conflict, filed an amicus brief in 2009 raising concerns that the ICC Pre-Trial Chamber II narrowly characterized sexual violence in its decision on the charges of The Prosecutor v. Jean-Pierre Bemba Gombo which “diminish[ed] the effective access of victims to justice.”27 In 2012, Prosecutor Fatou Bensouda incorporated all of the NGOs demands.28 In 2016, Bemba was the first defendant to be convicted of rape at the ICC, although he was later acquitted. His conviction was a victory for civil society groups29 and his acquittal was a blow,30 but the fact remains that civil society played a central role in expressing that sex crimes, specifically the crime of rape, is a “most serious crime” of grave concern to the international community. This is likely to continue and eventually shape what kind of conduct we consider to shock humanity’s conscience and threaten the peace, security, and well-being of the world. Independently, and more broadly, the contribution of civil society to international opinio juris may shape what kind of norms are considered peremptory. The statist international community is concerned as a whole when the existing structures of power are concerned. In contrast, the OTP considers the diverse concerns of those on the opposite end of power: the victims of the most serious crimes. Thus, the ICC allows the voices of the least powerful to be heard in the international legal order and this, in turn, may alter the jus cogens norms that determine what crimes we consider the “most serious” and perhaps, in the future, which crimes we deem to be worthy of inclusion in the Rome Statute.

Other examples where the Prosecutor found that the international community was concerned as a whole support the proposition that the principles of equality and non-discrimination factor heavily on the determination. For several years, the ICC was predominately involved in investigations of African countries. Members of the international community, including African states and supranational organizations like the African Union, voiced their concerns about an African bias by the ICC. The Court took steps to increase outreach programs where the ICC had investigations running and the OTP issued its 2016 Policy Paper emphasizing the neutral considerations made in case selection as well as highlighting the fact that several of the ICC interventions at issue occurred at the request of the governments involved.31 The Prosecutor thus affirmed to a concerned community that the Court’s remit is global even though ICC intervention appeared to be narrowly focused.

In its decision overturning the Pre-Trial Chamber’s decision to deny the Prosecutor’s request to investigate alleged crimes related to Afghanistan, the Appeals Chamber also affirmed that the feasibility alone of an investigation does not determine whether an investigation should be pursued. The Appeals Chamber found that the Pre-Trial Chamber’s narrow consideration of the feasibility of an investigation is improper without considering the “gravity of the crimes and interests of the victims.”32 The Appeals Chamber, thereby, distinguished the gravity of crimes analysis from the feasibility analysis. This recent history shows that the Court is responding to concerns from the international community that justice cannot be achieved if it is pursued unequally or discriminatorily. Even if resources are better allocated to initiate and conclude investigations in one region of the world, it is unacceptable to pursue those if the cost will be the failure to initiate investigations in other regions of the world, whether or not they are likely to succeed. Thus, the gravity analysis does not consider the mere scale of the ICC’s potential impact but whether justice for prohibited conduct is evenly and fairly pursued. This makes sense because the Court’s mandate is to end impunity,33 which is necessarily broader than thoroughly punishing a single actor or even ending impunity in a single geographic location of the world.

Overall, the diverse states and entities that comprise the international community allows for a diverse expression of views to be considered in deciding the gravity of a crime. The OTP is, however, constricted to considering those crimes codified in the Rome Statute which are established jus cogens. Nevertheless, their interpretation can be broadened or narrowed based on the concerns of a host of actors in the Rome Statute’s conception of the international community. Here, non-governmental organizations can play a key role in including victims’ voices into the OTP’s gravity assessment. In parallel, the ICC’s goal to end impunity means it must consider the power structures that allow for impunity. The international community has voiced that it is not concerned as a whole that the Court catch only the low hanging fruit in its ambit. Thus, the Court’s actions have a signaling function. Its limited resources must be allocated to achieving justice in more than the narrow sense, that is to signal that no power exempts a person from scrutiny who engages in conduct that shocks humanity’s conscience or threatens the peace, security, and well-being of the world. This is challenging and may give the Court the appearance of being slow and clunky at times. However, this is what differentiates the International Criminal Court from domestic criminal courts. The former’s mandate is to end violations of natural law while the latter seeks to enforce the laws of the state.34 Domestic criminal courts, therefore, can more readily engage in an efficiency analysis when considering where leeway from the law is or ought to be appropriate. International criminal law is different. It is possible that the genocide of a small tribe of twenty is jus cogens, while the indiscriminate murder of forty is not. The former shocks the conscience of humanity and threatens the peace, security, and well-being of the world whereas the latter may have not. Thus, the Court’s gravity considerations are more often likely to be qualitative than quantitative. Sometimes, this will mean that justice won’t be speedily delivered in the short run. However, the Court’s mission to end impunity is a marathon, not a sprint.

IV. Conclusion

The OTP’s gravity analysis is distinguishable from the feasibility analysis of ICC intervention. This is apparent in Article 17 of the Rome Statute which considers whether the case is of sufficient gravity as a standalone issue of admissibility.35 The proposition has also recently been confirmed by the ICC’s Appeals Chamber in its decision on the authorization of an investigation into the situation in Afghanistan. An interpretation of the gravity analysis as a standalone issue is also consistent with the legal and sociological meaning of “the international community concerned as a whole,” which is closely tied with compelling law and which embraces the voices of victims. The phrase appears throughout the Rome Statute to delineate which crimes are under the Court’s jurisdiction.36 Thus, the OTP’s Policy Paper on Case Selection and Prioritisation which adopts this phrase to refer to “gravity of crime(s)” is consistent with the Statute and appropriate.

The legal meaning of “international community” is closely related to and derived from the principle of compelling law in general international law. It is more than the individual entities in the community and more than their contractual associations. Flowing from compelling law are obligations that are of importance to all in the community and beyond the reach of any single entity in the community. In the context of international criminal law, these are obligations to not commit crimes which shock humanity’s conscience or threaten the peace, security, and well-being of the world.

Such crimes are delineated in the Rome Statute and the Court’s jurisdiction is limited to only the conduct described therein. Nevertheless, the diverse entities in the Rome Statue’s international community shape our understanding of the standards, principles, and values of which a breach thereof raises alarm and justifies action and the allocation of resources by the Court. This is where the gravity analysis is and must be elastic. If the OTP sidelines these voices in its gravity considerations, then it is not fulfilling its mandate. The Rome Statute does not direct the ICC to have the biggest impact on any given situation and the Court’s primary function is not to provide for victim reparations. The Court is directed to end impunity for the most serious crimes of concern to the international community as a whole. Due and equal consideration to the diverse voices of the community are thus key to the Court’s gravity analysis.

The Prosecutor is bound to face external constraints on its investigations such as noncooperation or evidence gathering challenges, however the gravity analysis is distinct from those considerations. In this sense, the OTP’s case selection decisions have value for more than just the outcome of any given investigation. Its case selection decisions carry a signaling function: crimes under its jurisdiction that the international community will not tolerate are never exempt from scrutiny. This is in line with its mandate and the only way it can make progress towards achieving its mission to end impunity.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 17(1)(d), available online. ↩

2. 2.

   See Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritisation (Sep. 15, 2016), available online. ↩

3. 3.

   See Rome Statute, supra note 1, Art. 5, Preamble ¶ 4. ↩

4. 4.

   Dino Kritsiotis, Imagining the International Community, 13 EJIL 961, 991 (Sep. 2002), available online, doi.

   ([F]ormer British Prime Minister Margaret Thatcher admitted in her memoirs that “the West or, as we tactfully preferred to describe it, ‘the international community.’). ↩

5. 5.

   See Bardo Fassbender, The United Nations Charter as Constitution of the International Community, 36 Colum. J. Transnat’l L. 529, 554 (1998), archived

   (distinguishing between an “international society” which is a contractual association of states and an “international community” which is neither subordinated to a higher authority nor exclusively associated by agreement). ↩

6. 6.

   Rome Statute, supra note 1, Art. 13(b). ↩

7. 7.

   Id. Preamble ¶ 9. ↩

8. 8.

   Id. Art. 5., Art. 8 bis; See also id. Preamble ¶ 7. ↩

9. 9.

   Fassbender, supra note 5, at 576. ↩

10. 10.

    Vienna Convention on the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S. 331, available online, archived. ↩

11. 11.

    See Case Concerning Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), 1970 I.C.J. 3 ¶ 33 (Feb. 5, 1970), available online

    (developing the doctrine of obligatio erga omnes which are defined as “obligations of a State towards the international community as a whole” and describes these obligations as those that are so important that all States have a legal interest in their protection).

    See also Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States), 1986 I.C.J. 14 ¶ 190 (Jun. 27, 1986), available online

    (referring to claims that the prohibition of the use of force has the status of jus cogens to support the validity of the principle in customary international law);

    See generally M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 Law & Contemp. Probs. 63, 72 (1996), available online, doi

    (affirming that legal logic supports that obligatio erga omnes are derived from jus cogens since the “‘compelling law’ [of jus cogens] must necessarily engender [the] obligation ‘flowing to all’ [of obligatio erga omnes]”). ↩

12. 12.

    Policy Paper on Case Selection and Prioritisation, supra note 2, at 12–13

    (discussing the similarity between gravity of crime(s) as a case selection criterion and gravity as a factor for admissibility under Article 17(1)(d) of the Rome Statute). ↩

13. 13.

    Rome Statute, supra note 1, at Preamble ¶ 4. ↩

14. 14.

    See also James R. Crawford, Responsibility to the International Community as a Whole, 8 Ind. J. Global Legal Stud. 303, 312–14 (2001), available online

    (arguing that even the phrase “the international community of States as a whole” cannot be understood as exclusive, whether or not this was intended). ↩

15. 15.

    Pierre-Marie Dupuy, Le Droit International dans un Monde Pluricultural, 38 Rev. Int’l de Droit Comparé 583, 593–94 (Apr. 1986) (Fr.), available online, doi. ↩

16. 16.

    See Bruno Simma & Andreas L. Paulus, The “International Community”: Facing the Challenge of Globalization, 9 EJIL 266, 270 (1998), available online, doi. ↩

17. 17.

    Rome Statute, supra note 1, at Art. 5. ↩

18. 18.

    Id. Preamble ¶ 2. ↩

19. 19.

    Id. Preamble ¶ 3. ↩

20. 20.

    International Law Commission, Chapter V: Peremptory Norms of General International Law (Jus Cogens), in Report on the Work of the Seventy-First Session, U.N. Doc. A/74/10, 146–47 (2019) [hereinafter ILC Report], available online. ↩

21. 21.

    Press Release, G.A., Continuing International Law Commission Review, Sixth Committee Delegates Argue about Including Jus Cogens Settlement Dispute Mechanisms, Non-Exhaustive List, GA/L/3607 (Oct. 30, 2019), available online. ↩

22. 22.

    See e.g., Hilary Charlesworth & Christine Chinkin, The Gender of Jus Cogens, 15 Hum. Rts. Q. 63 (1993), paywall, doi

    (arguing that women are relegated to the periphery of communal values and that the doctrine of jus cogens has not responded to “massive evidence of injustice and aggression against women”). ↩

23. 23.

    ILC Report, supra note 20. ↩

24. 24.

    U.N. Charter, Preamble ¶ 2, available online. ↩

25. 25.

    See e.g., Fionnuala Ní Aoláin, Gendered Harms and their Interface with International Criminal Law: Norms, Challenges and Domestication, 16 Int’l Feminist J. of Pol. 622 (Dec. 1, 2014), paywall, doi, earlier version archived

    (studying modifications to domestic norms related to sexual violence, trafficking, stalking, and domestic violence in states that have ratified the Rome Statute). ↩

26. 26.

    See Heidi Nichols Haddad, The International Criminal Court Was Established 20 Years Ago. Here’s How., Wash. Post, Jul. 17, 2018, available online. ↩

27. 27.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-466, Amicus Curiae Observations of the Women’s Initiatives for Gender Justice pursuant to Rule 103 of the Rules of Procedure and Evidence (PTC II, Jul. 31, 2009), available online. ↩

28. 28.

    Haddad, supra note 26. ↩

29. 29.

    See e.g., Owen Bowcott, Congo Politician Guilty in First ICC Trial to Focus on Rape as a War Crime, The Guardian, Mar. 21, 2016, available online

    (quoting several NGOs praising the Bemba conviction for its importance in the achieving justice for victims of sexual violence). ↩

30. 30.

    See e.g., Kerstin Bree Carlson, Bemba Acquittal Overturns Important Victory for Sexual Violence Victims, The Conversation (Jul. 15, 2018), available online. ↩

31. 31.

    See Jeremy Sarkin, Reforming the International Criminal Court to Achieve Increased State Cooperation in Investigations and Prosecutions of International Crimes, 9 Int’l Hum. Rts. L. Rev. 27, 41 (May 24, 2020), paywall, doi; Alexandra Zavis & Robyn Dixon, Q&A: Only Africans Have Been Tried at the Court for the Worst Crimes on Earth, L.A. Times, Oct. 23, 2016, available online. ↩

32. 32.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17 OA4, Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan ¶ 49 (AC, Mar. 5, 2020), available online. ↩

33. 33.

    Rome Statute, supra note 1, at Preamble ¶ 5. ↩

34. 34.

    (However, domestic criminal laws also differentiate the status of crimes by conduct that is more deserving of punishment for its greater moral reprehensibility, for example as between murder with malice aforethought and manslaughter). ↩

35. 35.

    Rome Statute, supra note 1, at Art. 17(1)(d). ↩

36. 36.

    Id. Art. 1, Art. 5. ↩