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Preamble

[1] The preamble sets the tone of the Rome Statute. Pursuant to Article 31 of the Vienna Convention the preamble is part of the context within the Rome Statute should be interpreted and applied.
   The Appeals Chamber has stated that when interpretating treaties, including the Rome Statute, the purposes may be gathered from "the wider aims of the law as may be gathered from its preamble and general tenor of the treaty", Situation in Democratic Republic of the Congo, Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal, ICC-01/04-168, 13 July 2006, para. 33.
   Operative Articles are typically more detailed and thus have higher rank than the preamble. The three first paragraphs of the preamble are more moral and philosophical statements and do not set out prescriptive rules. Similarly, the ninth and eleventh paragraphs does not have real prescriptive significance. The remaining paragraphs have been more prescriptive. To consider the preamble would normally only be necessary in cases of doubt.

Author: Mark Klamberg

Updated: 30 June 2016

Preamble - shared heritage

[2] Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time,
The affirmation in this paragraph is a way to highlight the importance of cultures and the need for various peoples of the world to exercise respect and tolerance fore one another. The references to "common bonds" and "shared heritage" recognize that humankind essentially is one despite differences between societies.

Author: Mark Klamberg

Updated: 30 June 2016

Preamble - victims

[3] Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity,
The second preambular paragraph which has a reference to the millions of victims of past atrocities is an effort to ensure that the memory of these atrocities remain as a part of the collective human conscience.

Author: Mark Klamberg

Updated: 30 June 2016

Preamble - grave crimes

[4] Recognizing that such grave crimes threaten the peace, security and well-being of the world,
The third preambular paragraph uses the term "grave crimes", clarifying that that the "unimaginable atrocities" mentioned in paragraph 2 are not any crimes. Paragraphs 4 and 9 uses the similar term "the most serious crimes of concern", also to be found in Articles 1 and 5(1). The paragraph also mentions the values that the international criminal law seeks to protect: peace, security and well-being of the world. This may be compared with the formula "peace and security" throughout the UN Charter. The addition of "well-being" was done to emphasize more than the narrow concept of security, but also distribution of basic resources.

Author: Mark Klamberg

Updated: 30 June 2016

Preamble - affirming

[5] Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,
The fourth preambular paragraph asserts the rule to fight against impunity, an obligation repeated in the fifth and sixth preambular paragraphs. Although this paragraph stresses the need for national measures at the national level and international cooperation, it does not deal with the relationship between the jurisdiction of the ICC and national jurisdictions. This matter is instead dealt with in the tenth preambular paragraph, Articles 1 and 17.

Author: Mark Klamberg

Updated: 30 June 2016

Preamble - end impunity

[6] Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,
The fifth preambular paragraph is continuation of the previous paragraph, the aim to end impunity. It covers two functions of international criminal law: both the aim of repressing crimes that have been perpetrated and the aim of preventing future crimes from happening.

Author: Mark Klamberg

Updated: 30 June 2016

Preamble - duty of states

[7] Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,
Preambular paragraph 6 reminds the States of their duty to exercise criminal jurisdiction over those responsible for international crimes. It refers to "international crimes" which may be interpreted as broader concept than the core crimes listed in Article 5. International crimes could also include terrorism, piracy and drug offences. The preamble thus includes a reminder for the states not only to fight core crimes but also other crimes in their mutual interest.

Author: Mark Klamberg

Updated: 30 June 2016

Preamble - UN Charter purposes and principles

[8] Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations,
Preambular paragraph 7 reaffirms the States of the purposes and Principles of the Charter of the United Nations, in particular the obligations in Article 2(4) to refrain from the threat or use of force against the territorial integrity or political independence of any State.

Article 1 of the UN Charter sets out the purposes of the UN Charter:

The Purposes of the United Nations are:

  1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
  2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
  3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
  4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.

Article 2 of the UN Charter sets out the principles of the UN Charter:

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

  1. The Organization is based on the principle of the sovereign equality of all its Members.
  2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
  3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
  4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
  5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.
  6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.

The paragraph appears to be directed to the States, "interests of peace" arguably has less relevance for the Court's activities. Article 16 affords discretion to consider questions of peace, but this is a responsibility of the Security Council, not the Court.

Author: Mark Klamberg

Updated: 30 June 2016

Preamble - non-intervention

[9] Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State,
Even though the Court may deal with individual criminal responsibility for acts commmitted in internal armed conflict, but that does not mean that the Court will intervene in the internal affairs of the state concerned or the armed conflict. Moreover, the Rome Statute does not concern dispute settlement.

Author: Mark Klamberg

Updated: 30 June 2016

Preamble - permanent independent institution

[10] Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole,
The ninth preambular paragraph reaffirms that the ICC is a permanent court as opposed to the temporary character of the military tribunals in Nurmerberg, Tokyo and the ad hoc tribunals for former Yugoslavia and Rwanda. The ICC is meant to address some of the complaints against its predecessors, namely them being a form of "victors' justice" and alleged use of retroactive legislation.
   Although there is no specific provision concerning the ceasation of the Rome Statute, the parties could consent to terminate the Statute in accordance with the relevant rules of the Vienna Convention on the Law of Treaties.

Author: Mark Klamberg

Updated: 30 June 2016

Preamble - complementarity

[11] Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions,
The tenth preambular paragraph describes one of the main features of the Court, namely that domestic criminal investigations and prosecutions have priority over the ICC provided that such domestic proceedings are genuine. This principle of complementarity may be contrasted with the jurisdictions of the ad hoc tribunals who have primacy over national courts. 
   The principle of complementarity is repeated in Article 1 and Article 17 provides a the more detailed standard.

Author: Mark Klamberg

Updated: 30 June 2016

Preamble - international justice

[12] Resolved to guarantee lasting respect for and the enforcement of international justice, 
The final preambular paragraph uses the broad term "international justice", but from the context it should be understood to mean "international criminal justice". The ICC fills a gap. While the International Court of Justice settle disputes between states the ICC deals with individual criminal responsibility.
   From this paragraph follows that international criminal justice includes respect as well as enforcement international criminal law at both the domectic and international level.

Doctrine:

  1. Tuiloma Neorini Slade/Roger S. Clark, "Preamble and Final Causes", in Roy S. Lee (Ed.), The International Criminal Court: The Making Of the Rome Statute: Issues, Negotiations, Results, Kluwer Law International, The Hague, 1999, pp. 425-429.
  2. Morten Bergsmo/Otto Triffterer, "Preamble", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1-47, MN 1-23.
  3. William Schabas, The International Criminal Court: Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 29-53.
  4. Eric David, in Paul de Hert et al. (Eds.), Code of International Criminal Law and Procedure, Annotated, Larcier Ghent, Brussels, 2013, pp. 7-10.

Author: Mark Klamberg

Updated: 30 June 2016

Commentary continued - Part 1

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