Tag Archives: ICC

In the Spotlight: The Legitimacy of the International Criminal Court

By Caleb H Wheeler

Lecturer in Law at Middlesex University, London

 and author of the recently published book The Right to Be Present At Trial in International Criminal Law (Brill 2018)



Recently, the International Criminal Court (‘ICC’ or ‘the Court’) has increasingly found itself in the political spotlight. On 10 September John Bolton, a United States National Security Adviser, attacked the Court as ‘illegitimate’ and claimed that ‘for all intents and purposes, the ICC is already dead.’ Donald Trump reinforced those contentions in his address to the United Nations General Assembly on 24 September when he asserted that ‘the ICC has no jurisdiction, no legitimacy and no authority.’ This blog post will examine the context of Bolton and Trump’s statements about the legitimacy of the International Criminal Court in an effort to determine whether they were challenging its legitimacy vis-à-vis the United States or if they meant to question its overall legitimacy. It finds that the Court’s overall legitimacy is not in question but that it is very limited in how it can exert jurisdiction over the United States.


There is some basis for the argument that the International Criminal Court lacks legitimacy with regard to the United States. As a treaty-based legal institution, the International Criminal Court is limited to exercising authority only in the territory of those states that have consented to such an exercise of power. The United States is not a state party to the International Criminal Court and as such the Court can only apply jurisdiction over its populace in two situations. The first is if an American citizen commits a crime on the territory of a state that is a party to the Statute. The second would arise following a Security Council referral to the Court of a situation occurring in the United States. However, as a permanent member, the United States can veto any Security Council decision, making it functionally impossible that there ever will be such a referral. Further, The United States has negotiated over 100 bilateral agreements in which states parties to the Rome Statute have agreed that they will not surrender Americans found on their territory to the International Criminal Court. While it is not strictly true that the International Criminal Court can never exercise jurisdiction over Americans accused of international crimes, it can only happen under a narrow set of circumstances.


The context of Trump and Bolton’s statements may also suggest that they were specifically challenging the International Criminal Court’s legitimacy to act in relation to the United States. Trump’s comments were prefaced by the qualifier, ‘[a]s far as America is concerned…’ This statement can be interpreted in two ways. It could mean that the Court has no jurisdiction, legitimacy or authority when it comes to Americans or acts that take place on the territory of the United States. It could also mean that the United States rejects the jurisdiction, legitimacy, and authority of the Court in toto.


Bolton’s comments seem to confirm that American criticism of the International Criminal Court is largely focused on its perceived interference with state sovereignty. Not surprisingly, his comments are primarily designed to protect American interests, but he also argues against any possible interference by the Court with Israel’s construction of settlements in the West Bank. He also threatens sanctions against the Court if it attempts to initiate proceedings against ‘us, Israel or other US allies.’ While Bolton clearly dislikes the International Criminal Court as a whole, he is particularly concerned with the possibility that it might exercise judicial authority over citizens of states not party to the Court Statute. This is made clear in his summation in which he states, ‘an international court so deeply divisive and so deeply flawed can have no legitimate claim to jurisdiction over the citizens of sovereign nations that have rejected its authority.’ Although the United States is not directly mentioned, it is apparent that the possibility that the Court might try to exert authority over the United States, and to a lesser extent Israel, is foremost in Bolton’s mind. Ultimately it should come as no real surprise that the United States would prioritize protecting its citizens over the interests of justice. The late Cherif Bassiouni predicted that the interests of states and Realpolitik would be the ‘principle obstacles to the effectiveness of the ICC.’


A much more complicated question is raised if Trump and Bolton meant to suggest that the International Criminal Court is generally illegitimate. Bolton, speaking on behalf of the president, challenges the overall legitimacy of the Court by attacking its ‘unfettered powers’ and for being structured in a way that he believes is ‘contrary to fundamental American principles’. A superficial reading of this statement leads to the conclusion that Bolton is asserting that the International Criminal Court lacks legitimacy only in relation to the United States. However, when placed in its larger context it becomes apparent that Bolton’s statement could have been meant to attack the legitimacy of the Court as a whole. In a journal article published in 2000, Bolton specifically stated that ‘the Court and the Prosecutor are illegitimate’ and he directly tied their lack of legitimacy to the way in which the Court is structured.[1]Bolton expresses particular concern with what he characterises as the prosecutor’s ‘potentially enormous, essentially unaccountable powers’ that give her the ability to exercise jurisdiction over citizens of states that are not party to the Rome Statute. He also believes that the Court’s decision not to implement a tripartite structure, with three equal and co-extensive branches, means that it lacks the necessary checks and balances to adequately protect the liberty of individuals. Bolton further claimed, both in 2000 and 2018, that the Court’s Statute is so deeply flawed as to be irreparable. It is reasonable to believe that the comments made in September 2018 are a continuation of the position he first set out in 2000, and thus to conclude that the perceived problems with the Court’s structure and Statute impair its overall legitimacy. As Bolton was speaking in his official capacity as a national security adviser, and his comments were partially echoed by President Trump, one could infer that the United States believes that the International Criminal Court suffers from a fundamental lack of legitimacy.


Only weeks before Bolton’s speech, a group of 132 parliamentarians from five Southeast Asian states released a joint statement in which it called on the United Nations Security Council to refer Myanmar to the International Criminal Court for human rights abuses allegedly committed against the Rohingya ethnic group. That was followed on 25 September, a group of six South and North American states formally referredVenezuela to the International Criminal Court for international crimes allegedly being committed there. This referral and proposed referral act to contradict the United States’ position on the legitimacy of the Court. This is demonstrated by the fact that both groups believe that the International Criminal Court is the appropriate venue at which to prosecute the perpetrators of the crimes alleged. The Court’s legitimacy was bolstered by Canada’s president, Justin Trudeau when he asserted, ‘[t]he International Criminal Court has our full support and confidence.’ The Southeast Asian parliamentarians also implicitly recognized the legitimacy of the Court when they directly linked referral to the Court as the best pathway to accountability for the alleged perpetrators. These actions and statements leave no doubt that those nations involved still believe in the Court’s legitimacy.


Most importantly, the inherent legitimacy of the International Criminal Court is demonstrated by the fact that there are 123 states parties to the Court. This constitutes 64 percent of all members of the United Nations. Those 123 nations confirm their belief in the Court’s legitimacy by accepting the jurisdiction of the Court within their territory and over their nationals. Interestingly, Bolton tries to downplay this source of legitimacy in his remarks by suggesting that because 70 nations are not member states, and because of the large population of some of those states, ‘most of the world’ has rejected the Court.


The Court itself confirmed its own legitimacy in its recent decision on its jurisdiction over the crime against humanity of deportation as alleged against the government of Myanmar. In that decision, Pre-Trial Chamber I found that the International Criminal Court possesses ‘objective international personality’ as a ‘legal-judicial-institutional entity’ that is separate and apart from the legitimacy conferred upon it by the recognition of its states parties. That legitimacy is evidenced by the Court’s engagement and cooperation with both states parties and non-states parties alike. The United States is included amongst the non-states parties that have engaged and cooperated with the Court by virtue of its status as an observer state to the Assembly of States Parties of the International Criminal Court. In fact, at the most recent Assembly of States Parties the United States implicitly acknowledged the Court’s legitimacy when it identified the important role the International Criminal Court can play in ensuring that justice is delivered to the victims of international crimes.


The overall legitimacy of the International Criminal Court is not in doubt. Numerous international actors, including the government of the United States, have reconfirmed its legitimacy. Therefore, the comments made by Bolton and Trump must be viewed as a repudiation of the International Criminal Court’s ability to exercise jurisdiction over citizens of the United States. That being said, simply because the Court cannot exercise jurisdiction over Americans does not also mean it is illegitimate as far as the United States is concerned. What Bolton and Trump are really expressing is their disapproval with the manner in which the Court operates and their concern that it might exercise jurisdiction over American citizens in one of the small areas still open to it. In the end, these comments are really nothing more than rhetoric designed to achieve the political objective of undermining the Court at the expense of justice.


[1]John R Bolton, ‘The Risks And Weaknesses Of The International Criminal Court From America’s Perspective’ (2000) 64(1) Law and Contemporary Problems 167, 169blog

Photos courtesy: Spencer Platt/Getty Images: Andrew Harnik/AP Photo: The International Criminal Court



Filed under International Criminal Law, Public International Law

Are two warrants of arrest better than one? The second warrant of arrest against Al-Werfalli and the ICC practice



On 4 July 2018, the Pre-Trial Chamber I of the International Criminal Court (ICC, or ‘the Court’) issued a warrant of arrest for Mahmoud Mustafa Busayf Al-Werfalli, a Libyan national, commander in the Al-Saiqa Brigade, for his alleged criminal responsibility for the war crime of murder of ten people on 24 January 2018, in Benghazi, pursuant to article 8(2)(c)(i) of the Rome Statute. The warrant follows a previous one for the same person, which is still pending and was issued on 14 August 2017 with reference to seven incidents, occurred from 3 June 2016 until 17 July 2017 in Benghazi or surrounding areas, in which 33 persons were murdered.

The present post aims at analyzing the second warrant of arrest, by comparing it with the ICC relevant practice. It will argue that it is unclear why the Court decided to issue a second warrant at all and that issuing a second warrant carries the risk of engulfing the work of the Court without bringing any advantages.


The warrants of arrest against Al-Werfalli and the ICC practice

The ICC jurisdiction over the situation in Libya has been triggered by the UN Security Council, which on 26 February 2011 unanimously adopted resolution 1970and referred the situation since 15 February 2011 to the Prosecutor of the ICC.  On 3 March 2011, the Prosecutor announced her decision to open an investigation in the situation in Libya.  The Security Council adopted Resolution 1970 acting under Chapter VII of the UN Charter and ‘taking measures under its Article 41’, which provides that ‘[t]he Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures’. Thus, although Libya is not a party to the Rome Statute. following the first warrant of arrest, in 2017 the Court could request Libya to cooperate in the arrest and surrender of Mr. Al-Werfalli.

On 1 May 2018, the Prosecution submitted, under seal, a request to amend the first warrant of arrest, pursuant to article 58(6) of the Rome Statute which reads as follows:

The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest by modifying or adding to the crimes specified therein. The Pre-Trial Chamber shall so amend the warrant if it is satisfied that there are reasonable grounds to believe that the person committed the modified or additional crimes’ [emphasis added].

Yet, on 4 July 2018 the Pre-Trial Chamber ‘consider[ed] it appropriate to issue a second warrant of arrest pursuant to article 58(1) of the Statute to complement the First Warrant of Arrest, rather than amend it pursuant to article 58(6) of the Statute’.[1]

Under Article 58(1) Rome Statute,

the Pre-Trial Chamber shall, on the application of the Prosecutor [emphasis added], issue a warrant of arrest of a person if, (…) it is satisfied that: (a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (b) The arrest of the person appears necessary: (i) To ensure the person’s appearance at trial; (…) or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.


Thus, under this provision, the Pre-Trial Chamber should issue a warrant of arrest only when the Prosecutor makes a request to this effect. However, in the present case, the Prosecutor did not make a request for a new warrant, but for amendments to the first one so as to include the charges relating to the crimes committed on 24 January 2018. Could the Prosecutor’s request for amendments form the basis of the second warrant of arrest issued by the Pre-Trial Chamber on 4 July 2018? Nothing in articles 56 and 58 ICC Statute suggests so. Moreover, if one looks at the ICC practice, the decision of the Pre-Trial Chamber I to issue a second warrant of arrest against Mr. Al-Werfalli has a number of flaws.

First, no previous case can offer a justification about why the Pre-Trial Chamber has issued a second warrant without any explicit request by the Prosecutor. The ICC has already issued a second warrant of arrest against the same person with resInternational_Criminal_Court_building_(2016)_in_The_Haguepect to Mr. Al-Bashir in 2010 and to Mr. Bosco Ntaganda in 2012. As for the former, the second warrant of arrest was issued after the Appeals Chamber had concluded that the Chamber had acted ‘erroneously in rejecting the application for a warrant of arrest in relation to the counts of genocide on the basis that the existence of genocidal intent of the suspect was “only one of several reasonable conclusions available on the materials provided by the Prosecution”.’[2]  The decision to issue a second warrant of arrest, therefore, ‘only amend[ed] the First Decision to the extent necessary to implement the Appeals Decision and neither a re-assessment of the materials originally supporting the Prosecution’s Application, nor the analysis of materials other than those [were] warranted’.[3] In other words, there had been no need of a new request by the Prosecutor, and the decision to issue a second warrant of arrest, instead of amending the first one, was probably due to practical reasons. The arguments raised in relation to the immunities of incumbent Heads of State could indeed apply, mutatis mutandis, in this case. In particular, one could consider the nature of the crime of genocide[4]and of the obligations arising from the Genocide Convention, which might add on the obligations arising from a referral by the UN Security Council.

As for Mr Bosco Ntaganda, the issuance of a second warrant of arrest against him came after an explicit request of the Prosecutor, who in fact contended ‘that the arrest of Bosco Ntagandais necessary at this stage within the meaning of Article 58(1)(b) of the Statute, both to ensure his appearance at trial and to ensure that he does not obstruct or endanger the investigation, and further to seek compliance with the arrest warrant already in force.’[5]While it is unclear why the Prosecutor asked for a second warrant to be issued, instead of amendments to the first one, there is no doubt that in this case, the decision of the Pre-Trial Chamber followed an explicit request of the Prosecutor.

Second, no warrant of arrest- be it the first or the second one- has ever proved effective. The issuance of this warrant of arrest appears to be justified, as it was in the case against Mr Ntaganda,[6]by the need to seek compliance with the arrest warrant already in force: the Chamber declared being, ‘satisfied that Mr Al-Werfalli is unlikely to cooperate with a summons to appear, within the meaning of article 58(7) of the Statute, considering that the First Warrant of Arrest remains unexecuted.’[7]However, it is unclear why and how a second warrant of arrest should be complied with, when the first one hadn’t. While Mr. Ntaganda surprisingly decided to surrender voluntarily,[8]Mr. Al-Bashir is still at large and keeps on travelling to states both parties[9]and not parties to the ICC Statute (see, e.g., here and here).  Being well aware of these precedents, the Prosecutor might have opted for a request to amend the first warrant of arrest against Mr. Al Werfalli, instead of asking for a new warrant.

In the case of Mr. Al-Werfalli, a second warrant of arrest against the same person seems to be even more unmotivated as, although relating to different incidents, in both cases, Al-Werfalli is charged with murder as war crimes. Thus, the necessity of issuing a second warrant could not be grounded on the possible distinct obligations arising from different international instruments, as some may argue in relation to the second warrant issued against Mr. Al-Bashir. Nothing in the ICC practice therefore suggests that a second warrant could ‘ensure the person’s appearance at trial’ under article 58(1)(b)(i) ICC Statute.

Lastly, as clearly admitted by the Pre-Trial Chamber I,[10]in the case of Mr. Al-Werfalli the mere existence of a first warrant pending against him did not deter him from keeping on committing international crimes. Thus, it is unclear how the condition under article 58(1)(b)(iii) Rome Statute could be met in relation to the second warrant.

In sum, the issuance of a warrant of arrest could risk engulfing the work of the Court, without getting any advantages out of it.



The rationale behind the decision of the ICC Pre-Trial Chamber I to issue a second warrant of arrest against Mr. Al-Werfalli is unclear and the ICC practice concerning second warrants of arrest (namely, against Mr. Al-Bashir and Mr. Ntaganda), does not provide any clarification. Indeed, the second warrant against Mr. Al-Bashir was the consequence of the decision of the Appeals Chamber reversing the decision of the Pre-Trial Chamber not to include charges of genocide in the first warrant. Furthermore, in that case, the decision of issuing a second warrant could be related to the obligations arising from the Genocide Convention, which could justify having two separate pending warrants. The second warrant against Mr. Ntaganda was issued after an explicit request by the Prosecutor and concerned different international crimes. When it comes to Mr. Al-Werfalli, however, the ICC Prosecutor had submitted a request to amend the first warrant, and it is therefore unclear how the Pre-Trial Chamber I used the request to issue a second warrant, which is notably relating to the same category of crimes of the first one. Moreover, the ICC practice offers some evidence that the issuance of a second warrant of arrest cannot favour in any way the execution of the first warrant, or make cooperation by states more likely, nor could it per se deter the continuing commission of international crimes. Thus, it remains unclear why the Pre-Trial Chamber I decided to issue this second warrant at all, and its decision’s compliance with article 58 (1) ICC Statute, might possibly constitute a ground for appeal in the future.



[1]Pre-Trial Chamber I, ‘ Second Warrant of Arrest’ in the Case of The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli(4 July 2018) ICC-01/11-01/17, at para 7.

[2]The Appeals Chamber, ‘Judgment on the appeal of the Prosecutor against the “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”’ in the Situation in Darfur, Sudan
The Prosecutor v. Omar Hassan Ahmad Al Bashir
  (3 February 2010) ICC-02/05-01/09-OA, at para. 1.

[3]The Pre-Trial Chamber I, ‘Second Decision on the Prosecution’s Application for a Warrant of Arrest’ in the Situation in Darfur, Sudan The Prosecutor v. Omar  Hassan Ahmad Al Bashir  (12 July 2010) ICC-02/05-01/09 , at para 2.

[4]Dapo Akande, ‘ICC Issues Warrant of Arrest for Bashir on charges of Genocide’ (EJIL: Talk!, 12 July 2010)https://www.ejiltalk.org/icc-issues-warrant-of-arrest-for-bashir-on-charges-of-genocide/#more-2433accessed 20 August 2018.

[5]Office of the Prosecutor, ‘Second Corrigendum of the Public Redacted Version of Prosecutor’s Application under Article 58 filed on 14 May 2012 (ICC-01/04-611-Red)’ in the Situation in the Democratic Republic of the Congo (16 May 2012) ICC-01/04-611-Red-Corr2, at 143.

[6]Pre-Trial Chamber II, ‘Decision on the Prosecutor’s Application under Article 58’ in the case of The Prosecutor v. Bosco Ntaganda (13 July 2012) ICC-01/04-02/06, at para 80.

[7]Pre-Trial Chamber I, ‘ Second Warrant of Arrest’ in the Case of The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli(4 July 2018) ICC-01/11-01/17, at para 36.

[8]H.D., ‘A surprising surrender’ (The Economist, 19 March 2013) https://www.economist.com/baobab/2013/03/19/a-surprising-surrenderaccessed 20 August 2018.

[9]See, e.g., Dapo Akande, ‘ICC Reports Kenya and Chad to the UN Security Council over Bashir’s Visits’ (EJIL: Talk!,28 August 2010) https://www.ejiltalk.org/icc-reports-kenya-and-chad-to-the-un-security-council-over-bashirs-visits/accessed 20 August 2018; Dapo Akande, ‘The Bashir Case: Has the South African Supreme Court Abolished Immunity for all Heads of States?’ (EJIL: Talk!,29 March 2016) https://www.ejiltalk.org/the-bashir-case-has-the-south-african-supreme-court-abolished-immunity-for-all-heads-of-states/accessed 20 August 2018.

[10]Pre-Trial Chamber I, ‘ Second Warrant of Arrest’ in the Case of The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli(4 July 2018) ICC-01/11-01/17, at para 36. See also Pre-Trial Chamber II, ‘Decision on the Prosecutor’s Application under Article 58’ in the case of The Prosecutor v. Bosco Ntaganda (13 July 2012)ICC-01/04-02/06, at para 80.

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The International Criminal Court Summer School 2017 19 to 23 June 2017, NUI Galway, Ireland

The annual International Criminal Court Summer School at the Irish Centre for Human Rights is the premier summer school specialising on the International Criminal Court. The summer school allows participants the opportunity to attend a series of intensive lectures over five days. The lectures are given by leading academics on the subject as well as by legal professionals working at the International Criminal Court. The interactive and stimulating course is particularly suited to postgraduate students, legal professionals, scholars, and NGO workers. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, jurisdiction, fair trial rights, and the rules of procedure and evidence.

This year’s ICC Summer School will include a topical special session on Corporate Crimes and the International Criminal Court.

The list of speakers at the 2017 ICC Summer School includes the following: Professor William Schabas (Irish Centre for Human Rights/Middlesex University); Professor James Stewart (University of British Columbia); Dr. Fabricio Guariglia (Office of the Prosecutor, International Criminal Court); Professor Megan A. Fairlie (Florida International University);  Professor Ray Murphy (Irish Centre for Human Rights); Dr. Rod Rastan (Office of the Prosecutor at the International Criminal Court); Dr. Mohamed M. El Zeidy (International Criminal Court); Professor Donald M. Ferencz (Middlesex University);  Dr. Noelle Quenivet (University of the West of England); Dr. Nadia Bernaz (Middlesex University); Dr. James Nyawo (INTERVICT, Tilburg University); Dr. Nadia Bernaz (Middlesex University); Mr. Richard J. Rodgers (Global Diligence LLP); Mr. John McManus (Crimes Against Humanity and War Crimes Section, Canadian Department of Justice); Dr. Noelle Higgins (Maynooth University); Dr. Shane Darcy (Irish Centre for Human Rights).

The registration fee of €450 includes all conference materials, all lunches and refreshments, a social activity and a closing dinner. The registration fee also includes a complimentary copy of Professor William Schabas’ book ‘An Introduction to the International Criminal Court‘. The closing date for registrations is 1 June 2017.

To register and for more information regarding the 2017 ICC Summer School, please visit their website  and follow them on Facebook or Twitter.

Should you have any queries, please email them.

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The Comoros situation, the Pre-Trial Chamber and the Prosecutor: the Rome Statute’s system of checks and balances is in good health

On 6 November 2015 the Appeals Chamber of the International Criminal Court (ICC) wrote a new chapter in the saga on the situation ‘with respect to the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza Strip’. The Chamber, by 3 votes to 2, dismissed the Prosecutor’s appeal against the Pre-Trial Chamber’s “Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation”. [1]

From a procedural point of view, it all began in May 2013, when a State Party to the ICC, namely, the Union of the Comoros, referred the Israeli raid on the aid flotilla consisting of vessels registered in Greece, Comoros and Cambodia to the Court. Then, on 6 November 2014, the ICC Prosecutor, Fatou Bensouda, announced her decision under article 53(1) ICC Statute not to proceed with an investigation. She argued that, pursuant to article 17(1) (d) ICC Statute, none of the cases that could potentially arise from this situation would have been of sufficient gravity as to require further action by the Court. In July 2015, following an application filed by the Union of the Comoros, Pre-Trial Chamber I, for the first time since the Court’s establishment, asked the ICC Prosecutor to reconsider her decision. Judge Kovács issued a partly dissenting opinion.

Some criticised the pronouncement of the Pre-Trial Chamber and described it as ‘a deeply problematic and extremely dangerous decision — nothing less than a frontal assault on the OTP’s prosecutorial discretion’. What is certain is that the whole procedural history, including the Appeals Chamber’s most recent decision, shows how delicate the issues at stake are; they might have significant implications in terms of both international, and ICC internal, politics. However, one could look at all these decisions as the lens through which to measure the state of ICC system’s health.

First, the Rome Statute provides for a well-balanced system of relations between the diverse institutional actors involved, including the Prosecutor and the Pre-Trial Chamber.[2] The Appeals Chamber’s decision, along with its procedural background, has simply proved how all actors played their statutory role and contributed to keeping the ICC as a living, but well-balanced, system.

Second, despite the fact that the drafters of the ICC Statute are usually deemed to have successfully created a statute that complies with the certainty of law – as required by the principle of legality,[3] this procedural querelle stems from a lack of clarity in the relevant statutory provisions, namely, articles 53(3)(a) and 82(1)(a) ICC Statute. This is also reflected in the Appeals Chamber’s narrow majority which last 6 November adopted the decision in question. However, the Appeals Chamber’s judges have contributed to the maintenance of the ICC system, being called upon to decide on an issue which the ICC Statute does not regulate expressis verbis. This shows how, despite the drafters’ efforts to draft a comprehensive Statute, the ICC judges nevertheless exercise quite a significant interpretative function which, in certain cases, might be such as to be considered a creative interpretation.[4]

In particular, before the Appeals Chamber, the Prosecutor argued that, pursuant to article 82(1)(a) ICC Statute, she could appeal the Pre-Trial Chamber’s decision because, from a substantive perspective, the Pre-Trial Chamber’s decision constituted a decision on admissibility, even if it did not fulfil the formalities of an admissibility decision.[5] The Prosecutor had, in fact, based her decision not to proceed with an investigation exclusively on the absence of the required gravity under article 17 (1)(d) ICC Statute. As a consequence, Pre-Trial Chamber I, in its decision, had focused on admissibility as well.[6]

On the other hand, the Union of Comoros and the victims’ representatives considered that the Pre-Trial Chamber’s decision was not a decision on admissibility and, therefore, it could not be appealed by the Prosecutor. Indeed, since according to article 82 (1)(a) ICC Statute, the Prosecutor is only allowed to appeal against decisions on jurisdiction and admissibility, the possibility for the prosecutor’s appeal to be considered at all depended on the very nature of the Pre-Trial Chamber’s decision. Should this have been considered a decision on admissibility, it would also have been regarded as a ‘final’ decision (subject to appeal) whose legal nature would have then turned out to be a review decision binding on the prosecutor. Put otherwise, the statutory lacuna consisting of the absence in article 82(1)(a) ICC Statute of an express provision for an appeal of any Pre-Trial Chamber’s decision pursuant to article 53(3)(a) [7] could have opened a breach in the system of checks and balances regulating the relations between the Prosecutor and the Trial Chamber. This would have attributed more power to the Trial Chamber.

The Appeals Chamber however affirmed as follows:

In the Appeals Chamber’s assessment, the distinction between the powers of the Pre-Trial Chamber under article 53 (3)(a) and (b) reflects a conscious decision on the part of the drafters to preserve a higher degree of prosecutorial discretion regarding decisions not to investigate based on the considerations set out in article 53 (1)(a) and (b) of the Statute. Indeed, under article 53 (3)(a) of the Statute, the Prosecutor is obliged to reconsider her decision not to investigate, but retains ultimate discretion over how to proceed. [8]

As a result, the majority dismissed the Prosecutor’s appeal against the Pre-Trial Chamber’s decision, having considered the latter as not being a decision on admissibility. In this regard, it is interesting to note that the two dissenting judges, Judge Silvia Fernández De Gurmendi and Judge Christine Van Den Wyngaert, have instead underlined how the Court’s previous ‘jurisprudence does not address the novel circumstances at hand in which the Prosecutor decides not to open an investigation in a situation on grounds of inadmissibility of potential cases within that situation.’ [9] They thus concluded that ‘[a] novel question […] arises in relation to which neither article 18 nor article 19 is applicable’. [10] Accordingly, they concluded that ‘[t]his novel approach requires the focus to be on the subject-matter of the impugned decision in order to determine whether the essence of the decision pertains to admissibility.’ [11]

Therefore, by filing an appeal relying on article 82 (1)(a) ICC Statute, Bensouda successfully led the Appeals Chamber to clarify an aspect which, so far, has been considered to be ‘completely unclear’. [12] In so doing, the Court has provided an answer to the two underlying questions on the legal nature and the consequences, vis-à-vis the Prosecutor, of a decision issued by the Pre-Trial Chamber pursuant to article 53(3)(a) ICC Statute. In other words, with the Appeals Chamber’s decision to dismiss the Prosecutor’s appeal, the Prosecutor obtained the express recognition that, under article 53(3)(a), the Prosecutor retains the ultimate discretionary power to decide whether or not to proceed with an investigation of a situation referred to the Court by either a state party or the UN Security Council; the Pre-Trial Chamber cannot impose a duty upon the Prosecutor to re-open an investigation.

It remains to be seen whether, following her reconsideration, the Prosecutor will decide to open an investigation over the facts at issue or whether she will reach the very same conclusions that she came to in November 2014. With respect to the latter scenario, Spain might provide Bensouda with a new ground to support her decision. Indeed, in relation to the very same facts of the Comoros situation, Spanish judge Jose de la Mata asked to the relevant national authorities to be notified if ever Netanyahu and six other Israeli officers are  going to be present within the Spanish territory. Under the new Spanish ley de justicia universal, judge de la Mata cannot proceed with the investigations until the relevant people find themselves in Spain. In future, should the circumstances arise that would trigger the proceedings in Spain, the ICC Prosecutor might rely on article 17(1)(a) and consider that a State which has jurisdiction over cases that could possibly arise from the situation has already been conducting investigations or prosecutions.[13]

In conclusion, the complex procedural history relating to the Comoros situation shows that the system of checks and balances provided by the ICC Statute does work correctly. Indeed, one should see the tension between the Prosecutor and the Pre-Trial Chamber as a signal of the ICC being in good health, and not vice versa. In the present case such a tension has led the judges from the Appeals Chamber to interpret the Statute so as to fill a legislative lacuna. After all, the function of a judge, especially at the international level, still requires quite a significant creative effort.

[1] ICC-01/13-1-Anx1. See also ICC-01/13-1-Anx2, p. 2.

[2] See, e.g., Antonio Cassese, The Human Dimension of International Law: Selected Papers of Antonio Cassese (OUP 2008) 517-8; Cassese (ed), The Oxford Companion to International Criminal Justice (OUP 2009) 459.

[3] See, e.g., Flavia Lattanzi and William Schabas (eds), Essays on the Rome Statute of the International Criminal Court (Vol. I, Editrice Il Sirente 1999) 215.

[4] See, e.g., the Pre-trial interpretation of ‘self-referrals’ and their compatibility with article 14 ICC Statute. William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Cambridge University Press 2010) 311.

[5] Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, (Decision on the admissibility of the Prosecutor’s appeal against the “Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation”) ICC-01/13 OA, Appeals Chamber (6 November 2016) at 17.

[6] cf Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, (Joint Dissenting Opinion of Judge Silvia Fernández De Gurmendi and Judge Christine Van Den Wyngaert attached to the Decision on the admissibility of the Prosecutor’s appeal against the “Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation”) ICC-01/13-51-Anx, Appeals Chamber (6 November 2016) at 12.

[7] Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia (n 5) at 55.

[8] ibid at 59.

[9] Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia (n 6) at 24.

[10] ibid.

[11] ibid at 26.

[12] William Schabas, An Introduction to the International Criminal Court (4th Edition, Cambridge University Press 2011) 258.

[13] See, Schabas (n 4) 340.

[14] None of the victims was in fact a Spanish citizen.

[15] Stephen Macedo, ‪Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (University of Pennsylvania Press 2006) 73.bensouda

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Shall the definition of aggression contained in the 2010 Kampala amendment to the International Criminal Court (ICC) Statute have an impact on the application of the Directive on minimum standards for the qualification and status of third-country nationals and stateless persons as refugees or as persons who otherwise need international protection (EU Directive 2004/83/EC)? Some preliminary remarks on the case Andre Lawrence Shepherd v Bundesrepublik Deutschland

On 11 November 2014 Eleanor V. E. Sharpston, Advocate General of the Court of Justice of the European Union, delivered her Opinion in the case Andre Lawrence Shepherd v Bundesrepublik Deutschland. This case follows a request for a preliminary ruling from the Bayerisches Verwaltungsgericht München and concerns a US national who sought asylum in Germany. Mr Shepherd was trained as a maintenance mechanic for Apache helicopters and transferred to Germany in 2003; then, in September 2004, he was deployed in Iraq for one year. Subsequently, when his unit was recalled in Iraq, he refused to perform his military services as he deemed that the conflict was illegal. Thus, he applied for asylum in Germany as he claimed he risked persecution in the US. Indeed, because he did not reject the use of war and force tout court, he did not make any request for not being deployed on grounds of conscientious objection; therefore, he was liable to punishment in the US for refusal to perform his military services. In his asylum application, Mr Shepherd relied on the 2004 Qualification Directive (EU Directive 2004/83/EC). In particular, article 9, paragraph 2 (e),considers an act of persecution the prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in article 12 (2) of the same directive. Article 12, paragraph 2 (a), which reproduces article 1 (F) (a) of the 1951 Geneva Convention relating to the Status of Refugees, provides that

[a] third country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that: (a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes (…).

This case shows how EU law and refugee law are intertwined with other branches of international law, such as international criminal law. In particular, while according to the Advocate General Mr Shepherd might be granted asylum on the basis of article 9, paragraph 2 (e), of the Qualification Directive, with reference to the possible commission of war crimes, some aspects of the notion of crimes against peace might be of relevance in the ECJ’s decision. With respect to crimes against peace, the only precedent the drafters of the Geneva Convention had in mind was article VI of the Charter of the International Military Tribunal. Nevertheless, the formula chosen for article 1 (F) (a), namely the reference to the international instruments drawn up to make provision in respect of such a crime, permits both the Refugee Convention and the qualification Directive that follows it to keep being updated with regard to any further developments of international law. In particular, the wording of article 1 (F) seems to include also those treaties which are not yet in force, such as the 2010 Kampala amendment to the ICC Statute. When defining the crime of aggression, this latter makes an explicit reference to the UN Charter.[1] Thus, the way the UN Charter, especially its provisions which regulate states’ use of force, has been implemented cannot be overlooked. Coming now to article 9, paragraph 2 (e) of the Directive, the Office of the United Nations High Commissioner for Refugees (UNHCR) has affirmed that

UNHCR welcomes the recognition that prosecution or punishment for refusing to perform military service can constitute persecution. UNHCR understands that the provision will also apply where the refusal to serve relates to a conflict that in and of itself is contrary to public international law, such as for example when it has been condemned by the Security Council.[2]

In this regard, the 2006 Canadian Federal Court decision in the Hizman case[3] has confirmed that refugee protection is available to individuals who breach domestic laws, if compliance with those laws would otherwise result in the violation of ‘accepted international norms’. However, it has also clarified that

 It is only those with the power to plan, prepare, initiate and wage a war of aggression who are culpable for crimes against peace; (…). The ordinary foot-soldier such as the applicant is not expected to make his own personal assessment as to the legality of a conflict in which he may be called upon to fight. Similarly, such an individual cannot be held criminally responsible merely for fighting in support of an illegal war, assuming that his own personal wartime conduct was otherwise proper.[4]

In Shepherd v Bundesrepublik Deutschland, the Advocate General has adopted the same line of reasoning. Indeed, she argued that ‘[s]uch a crime by its very nature can only be committed by personnel in a high position of authority representing a State or a State-like entity. Mr Shepherd was never in that position. It is therefore unlikely that he would have been at risk of committing such an act.’[5] Article 8bis, paragraph 1 approved in Kampala also provides that

[f]or the purpose of this Statute, ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.[6]

In sum, the so-called leadership requirement of the crime of aggression is not particularly problematic. On the other hand, however, one cannot help noticing a significant discrepancy between the UNHCR Comments, the Qualification Directive as interpreted by the Advocate General, and the Kampala amendment, with respect to the UN Security Council (SC)’s role as to the legality of a conflict . While, according to the UNHCR, an explicit condemnation of a conflict by the Council would be a ground, although not the only one- of illegality of a war, Ms Sharpston stated as follows:

I am not sure that I understand precisely what is meant, as a matter of law, by the expression ‘sanctioned by the international community’. The UN Charter does not define what constitutes a legitimate war; nor am I aware of another international instrument that fills that lacuna (if lacuna it be). I cannot see that seeking to define the scope of Article 9(2)(e) of the Qualification Directive by reference to an undefined expression helps to take matters forward. Since the existence of a UNSC mandate is not a prerequisite to starting a war or defending against aggression, its presence or absence cannot be determinative of whether acts listed in Article 12(2) of the Qualification Directive occur.[7]

If it is true that a war fought on self-defence does not need any prior UNSC authorization, one should recall that article 39 of the UN Charter provides for the possibility for the Council to decide to use force whenever an act of aggression occurs. Thus, by making reference to the UN Charter in its threshold clause, article 8bis, paragraph 1, of the ICC Statute excludes any possible criminal responsibility every time the Council has adopted such a decision. At the same time, while any condemnation of the Council is supposed to be merely relevant for jurisdictional purposes, it might not impact on the substantive nature of the crime of aggression. In brief, in her Opinion the Advocate General has failed to consider that the Kampala amendment is the international instrument ‘drawn up to make provision in respect of such crimes’ par excellence. In this sense, the ECJ might depart from what has been argued by Ms Sharpston. This might be relevant in future cases involving military leaders of a State in the planning, preparation, initiation or execution of an act of aggression. In other words, since a prior UNSC authorization to use force makes a conflict legal under public international law, such a conflict would by no means constitute a manifest violation of the Charter of the United Nations. Thus, thanks to the Kampala amendment, a similar act could not be considered as an exclusion ground according to the Qualification Directive and, as a consequence, could not be relevant for the application of its article 9, paragraph 2 (e). Importantly, this might happen even before the Kampala amendment enters into force, no matter which state is going to ratify it, and regardless of the relevant state’s adherence to the ICC Statute.

[1] Resolution RC/Res.6, Annex I.

[2] UNHCR, Annotated Comments on the EC Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted (January 2005).

[3] Hinzman v. Canada (Minister of Citizenship and Immigration) (F.C.), 2006 FC 420, [2007] 1 F.C.R.).

[4] Hinzman v. Canada (Minister of Citizenship and Immigration) (F.C.), 2006 FC 420, [2007] 1 F.C.R. 561. See also D. Whetham, P. Robinson, A. Ellner, When Soldiers Say No: Selective Conscientious Objection in the Modern Military (Ashgate 2014).

[5] Opinion of Advocate General Sharpston, Andre Lawrence Shepherd v Bundesrepublik Deutschland, Case C‑472/13 [2014] E.C.R. __ (delivered on 11 November 2014) (not yet reported) § 42.

[6] Resolution RC/Res.6, Annex I.

[7] Opinion of Advocate General Sharpston, Andre Lawrence Shepherd v Bundesrepublik Deutschland, Case C‑472/13 [2014] E.C.R. __ (delivered on 11 November 2014) (not yet reported) § 70. ecj

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The Union of Comoros’s atypical referral to the International Criminal Court and the Office of the Prosecutor’s cryptic decision to end the preliminary examination on the Flotilla raid.


On 6 November 2014, the Office of the Prosecutor of the International Criminal Court (‘‘The Court’’) announced its decision to close the preliminary examination into the situation in Union of Comoros (‘’Comoros’’). After her office conducted a thorough ‘legal and factual analysis of the information available’, the Chief Prosecutor Fatou Bensouda concluded that ‘the potential case(s) likely arising from an investigation into this incident would not be of “sufficient gravity” to justify further action by the ICC.’

Concurrent to the statement, the Office of the Prosecutor published a detailed article 53 (1) report on the Situation on Registered Vessels of Comoros, Greece and Cambodia, outlining the reasons for its decision. In her statement, Prosecutor Bensouda also recalled that the Comoros could request the Pre-Trial Chamber judges to review her decision. Although this is legally permissible under article 53(3)(a) of the Rome Statute, it has to be said that the powers of judicial review on prosecutorial decisions are limited, particularly when it is either  the Security Council or the State Party requesting  for a review of the  Prosecution’s decision.[1] Article 53(3) (a) does not categorically  provide that when either a State Party or the United Nations Security Council requests a judicial review of the prosecutor’s decision, the judges could overturn such a decision and order the prosecutor to open an investigation. All that the judges can do is to request the Prosecutor to reconsider the original decision. There is no provision within the Rome Statute to suggest any course of action to be taken in the event that the Prosecutor maintains the original stance not to proceed. Nonetheless, the situation would be different if the Pre-Trial Chamber decides to act on its own initiative, which is legally possible only if the prosecutor’s decision not proceed is based on gravity of the crime and the interest of justice. Under such circumstances the Prosecutor’s decision would be tied to the outcome of the Pre-Trial Chamber review process.

Consequently if the Comoros were to request the judges to review the decision as suggested by the Prosecutor, the Prosecutor could simply maintain her stance without being compelled to give in to some form of external pressure to alter it. The rationale for such approach in the Rome Statute is to ensure that the Office of the Prosecutor enjoys institutional independence from other organs of the Court. Still such an approach makes the Office of the Prosecutor susceptible to external criticism of unjust selective enforcement of international criminal law.

An Atypical Referral

On 14 May 2013, Elmadag Law Firm, a Turkish firm acting on behalf of the Comoros, filed an application under articles 14 and 12 (2) of the Rome Statute. The application referred the Israeli Defence Forces’ raid on the Humanitarian Aid Flotilla (bound for the Gaza Strip) to the Court. The application was filed three years after the raid in which a total of ten passengers (the majority of who were of Turkish nationality) were killed, and several others were injured.  Israeli military personal were also injured in the process.  While Comoros is a State Party to the Rome Statute, both Turkey, whose nationals were direct victims of the attack, and Israel, the perpetrators of alleged atrocity crimes,[2] are non-Party States.

Comoros’ involvement in this referral is linked to the fact that the alleged war crimes occurred on the Mavi Marmara, a vessel that was registered in, and flew the flag of the Comoros at the time of the incident. Thus, in accordance with article 12 (2) (a) of the Rome Statute, since Comoros was the state of registration of the vessel, the Court could exercise its jurisdiction based on the principle of territoriality. As a matter of fact the referral highlights the potential that the Rome Statute has to protect States Parties from aggressive actions and policies of non-Party States actors. It is also evident from this particular referral that the jurisdictional regime of the Court could even be useful in protecting the nationals of non-Party States if they are victims of atrocity crimes committed in the territory of a State Party.

What is more interesting however, is whether the relationship between Mavi Marmara and Comoros satisfies the threshold of ‘genuine link’, required under international maritime law, for the vessel to be considered a territory where Comoros actually exercised effective control at the time of the raid. Article 12(2) (a), which gives the Court territorial jurisdiction to vessels of States Parties is linked to article 5 of the (1958) Convention on the High Seas and article 91 of the 1982 United Nations Convection on the Law of The Sea. These two treaties assert that ‘Ships have the nationality of the State whose flag they are entitled to fly’. In addition, there is a requirement that ‘there must exist a genuine link between the State and the ship. The 1958 Convention elaborates on what genuine links means which is that; ‘the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.[3] This explanation of what genuine link means was dropped in the 1984 United Nations Convention which has  made the interpretation of such a ‘well-established rule of international law’ very debatable and unsettled.[4]

The emerging trend in the case law of both the International Court of Justice and International Tribunal for the Law of the Sea, appears to suggest that registration is an adequate indicator for establishing genuine link.[5] That said, and for the purposes of exercising international criminal jurisdiction under the Rome Statute additional indicators might be necessary for establishing genuine link. For instance when the Prosecutor assesses admissibility of situations, under complementarity principle he or she must be able to establish whether the State with jurisdiction over the vessel is unable or unwilling to investigate or prosecute those responsible. This means establishing more than just the registration of a vessel but also that the state of registration can actually exercise effective control over the vessel including exercising its sovereign right to administer criminal justice.

The problem arises from the fact that, although, as highlighted already, the Mavi Marmara was flying the Comoros flag the vessel was only registered in the Comoros on 22 May 2010, just a week before the raid occurred on the 31 May 2010. This poses some questions as to whether that was enough to establish ‘genuine link’ between the State and the vessel. In addition, at the time of raid, the vessel was owned by the Foundation for Human Rights, Freedoms and Humanitarian Relief (IHH), a Turkish registered humanitarian non-governmental organisation. There are also reports that by August 2011 the registration of the vessel had already been transferred back to Turkey.  It is unfortunate that we will probably not get to know the Office of the Prosecutor and the Chambers’ interpretation of the threshold for establishing whether genuine link between state and vessels in this situation as the preliminary examination was closed.

Cryptic Decision

The Prosecutor’s report on the Comoros’ preliminary examination decision made a somewhat circumspect reference to the broader Palestinian-Israeli conflict and the related atrocities crimes committed for instance in the Gaza Strip. The report indicated that the Court lacked jurisdiction over ‘other alleged crimes committed in the context of the conflict between Israel and Hamas and in the broader context of any conflict between Israel and Palestine’. It is this author’s view that what lies behind this reference by the Prosecutor to the broader conflict between Israel and Palestine, is the hope by the prosecutor that the Palestinian Authority ratify the Rome Statute. This would give the Court broader jurisdiction than the one encompassed in the Comoros referral.

The uncertainty over the ability of Palestine to ratify the Rome Statute and adopt a declaration accepting the jurisdiction of the Court was removed in 2012, when the United Nations General Assembly granted Palestine the status of non-Member Observer State which arguably opened the way for it to ratify the Rome Statute. Since the United Nations General Assembly’s decision, Chief Prosecutor Bensouda has, on several occasions, suggested that the Palestinian Authority could either ratify the Rome Statute or could refer war crimes in its territory to the Court. The Palestinian Authorities have, on occasion, hinted at joining the Court, for instance, after the most recent Gaza war in 2014. However they have not yet provided a clear timetable for doing so. Perhaps this decision by the Prosecutor will act as another catalyst for the Palestinian Authority to expedite their ratification of the Rome Statute.

Such a step would not only extend the jurisdiction of the Court to foreign actors on Palestinian territory i.e. Israel, it would also mean the Court could investigate the alleged atrocities committed by Palestinians agencies such as Hamas. In the meantime the impunity gap that seems to exist in the Occupied Palestine Territories could be closed either through universal jurisdiction or by the Israeli authorities investigating and prosecuting those responsible.

The fact that the Prosecutor established that war crimes were committed during the raid, could stimulate the search for  alternative  avenues for seeking accountability through domestic mechanism whether in Israel or any states exercising universal jurisdiction


The circumstances surrounding the Comoros’ referral raise interesting questions. Primarily it reveals the interconnection of two different branches of international law: international criminal law and international law of the sea.  It is unfortunate that the circumstances  denies us of an opportunity to learn how, if at all, the Court might interpret the legal requirement of having a ‘genuine link’ between the flag state and the vessel under the Convention on the Law of the Sea. Secondly, the timing of referral points to the lack of consensus among African States on how to relate with the Court. Finally, the decision by the Prosecutor suggests that the best way that the Palestinian Authority can benefit from the protective shield of the Rome Statute is by becoming a State Party. However, due to the implications of this on all parties involved, this is quite contentious.

[1] Stahn C., (2009) ‘ Judicial Review of Prosecutorial Discretion: Five Years On’ in Carsten Stahn and Goran Sluiter (eds) The Emerging Practice of the International Criminal Court, Leiden, Martins Nijhoff Publishers at p. 255

[2]  A modern term introduced by David Scheffer to describe particular heinous crimes suitable for criminal prosecution before international tribunals and special national courts. Scheffer D., (2010) All The Missing Souls –A Personal History of the War Crimes Tribunals, Princeton , Princeton University Press at p. 429

[3] Convention of the High Seas (1958), Article 5

[4] See Attard, D. & Mallia P., (2014)’ The High Seas’, in Attard, D. Fitzmaurice, M., & Gutierrez. N, A. M (eds) The IMLI Manual on International Maritime Law: Volume 1: The Law of The Sea. Oxford: Oxford University Press, pp 248-255.

[5] Ibid

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