New Zealand Yearbook of International Law
Last Updated: 7 February 2019
TERRITORIALITY AND THE CRIME OF AGGRESSION
This paper considers the question of where a crime of aggression occurs, for the purpose of ascertaining whether such a crime falls within the jurisdiction of the International Criminal Court (ICC). The ICC’s jurisdiction over the crime of aggression is contingent on amendments to the Rome Statute setting out the definition of the crime and the conditions under which the Court will exercise jurisdiction with respect to the crime. A Review Conference has been scheduled for May-June 2010 in Kampala, Uganda to discuss proposals for amendments to the Rome Statute. Negotiations are continuing in the Assembly of States Parties (ASP) of the Rome Statute in relation to a proposed amendment which would activate the Court’s jurisdiction over the crime of aggression. However, the negotiation of a definition of the crime of aggression has already progressed to the point where it is possible to consider how such a definition would fit within the existing framework of the Rome Statute.
One aspect of this existing framework is Article 12 of the Rome Statute, which sets out the preconditions that must be met before the ICC can exercise jurisdiction over a particular case. Where a case has been referred to the Court by a state party or the prosecutor has initiated an investigation proprio motu, the Court will have jurisdiction where the conduct in question occurred on the territory of a state party (the territorial state), where the alleged offender is a national of a state party (the nationality state) or where either state has consented to the jurisdiction of the Court in relation to that particular case. This paper will consider the first of these preconditions, which will be referred to as the territoriality precondition.
The Rome Statute permits the Court to exercise jurisdiction without state consent in a variety of circumstances, such as where the Security Council has referred a situation to the Court. However, the issue of state consent is central to consideration of the crime of aggression. In order to determine whether an act of aggression has taken place, the Court will need to consider whether the use of force by a state was legitimate. State consent to such scrutiny will be central to states’ consideration of the proposed crime of aggression amendments. This paper will consider which state or states must consent to the jurisdiction of the Court under Article 12 in order for the Court to be able to exercise its jurisdiction in relation to the crime of aggression.
While the crime of aggression brings to the forefront issues of state consent to ICC prosecutions, the prospect of this crime being included in the Rome Statute also highlights the necessity of an international forum for prosecuting aggression. Political issues are inseparable from the legal issues that will arise as a result of international or internal conflicts. Such conflicts invariably involve some level of official state action. Crimes resulting from official state action are unlikely to be prosecuted by domestic courts. States are traditionally hesitant to prosecute their own leaders or former leaders because of the risk of politicised trials. States also generally refrain from prosecuting leaders or former leaders of other states, even where they have the jurisdiction to do so, as this is often regarded as an infringement on sovereignty or as an obstacle to the peace process. International criminal tribunals are therefore often the only avenue for holding individuals accountable for such crimes.
Notwithstanding the importance of ending impunity for the perpetrators of the most serious crimes of international concern, the indictment by the ICC of Sudanese President Omar Ahmad Al-Bashir for war crimes and crimes against humanity on 4 March 2009 illustrates the difficulties of prosecuting Heads of State, not least of which are the potential humanitarian consequences within the accused’s state.
This paper will first set out the definition of the crime of aggression and the effect of this definition on the question of territoriality. The paper will then consider the views of the Special Working Group on the Crime of Aggression (SWGCA) on this subject. Finally, this paper will assess the approach proposed by the Chairman of the SWGCA for addressing this issue and suggest some alternative approaches for dealing with the issue of territoriality.
II. TERRITORIALITY AND THE ‘LEADERSHIP NATURE’ OF THE CRIME OF AGGRESSION
The question of territoriality was first considered by the SWGCA during its meeting at the seventh session of the ASP in November 2008. The Working Group was by this time nearing the end of its work and broad agreement had been reached on the delicately balanced text of draft Article 8bis, dealing with the definition of the crime and act of aggression. The current draft of Article 8bis states that:
In the Informal Note on the Work Programme for the November 2008 meeting, the Chairman of the SWGCA, Ambassador Christian Wenaweser (Lichtenstein), suggested that the Group focus on new issues, ‘in light of considerable progress made on the definition of the “crime” and of the “act” of aggression’. Before the meeting, the Chair suggested that states may wish to consider a new issue with respect to ‘territory on which the “crime” of aggression is typically committed’. The Chair framed the issue in this way:
Given the leadership nature of the crime, the conduct of an individual
perpetrator as suggested in draft Article 8bis, paragraph 1
would typically take
place on the territory of the aggressor State, while the effect of the conduct
would affect the territory of
the victim State. What are the consequences for
the requirement of territoriality in Article 12, paragraph 2(a), if any? Is an
explicit provision required to address this
The Chairman’s reference to the ‘leadership nature’ of the crime of aggression refers to the necessity of a high-level position as a pre-requisite for individual responsibility for the crime of aggression. The leadership requirement is reflected in the words ‘person in a position effectively to exercise control over or to direct the political or military action of a State’ in paragraph 1 of Article 8bis. If accepted, the proposed definition of the crime of aggression, including the leadership requirement, will operate within the existing framework of the Rome Statute. The Chairman’s question related to how this definition would interact with Article 12 of the Rome Statute, which sets out the preconditions for the exercise of the Court’s jurisdiction:
Paragraph 2 of Article 12 applies to situations referred to the Prosecutor by a state party in accordance with Article 14 of the Rome Statute or where the Prosecutor has initiated an investigation in accordance with Article 15. In such cases, the ICC may only exercise its jurisdiction if either the state on the territory of which the conduct in question occurred (the territorial state) or the state of which the person accused of the crime is a national (the nationality state) have consented to the Court’s jurisdiction. Where the Security Council refers a situation to the Court under Article 13(b), it is not necessary for any involved state to have consented to the Court’s jurisdiction.
In the case of the crime of aggression, two states will usually be involved – the aggressor state and the victim state. In most cases, the nationality state will clearly be the aggressor state. The leadership nature of the crime of aggression means that the defendant in aggression cases will be a leader of the aggressor state. It is reasonable to assume that a leader will be a national of their own state. As a result, where the aggressor state is a state party to the Rome Statute, the precondition in Article 12(2)(b) will be met and the Court will be able to exercise its jurisdiction.
Determining which state is the territorial state is more complex. The precondition in Article 12(2)(a) provides that the state on whose territory the conduct in question occurred must be a state party. In the case of the crime of aggression, this precondition requires an assessment of whether the conduct in question occurs on the territory of the aggressor state or on the territory of the victim state. As the Chairman of the SWGCA pointed out in November 2008, the leadership nature of the crime of aggression means that the perpetrator, as the leader of the aggressor state, will often be on the territory of the aggressor state. The act of aggression (as defined in paragraph 2 of draft Article 8bis) will often occur on the territory of the victim state. Where the aggressor state is not a state party and the nationality precondition in Article 12(2)(b) is therefore not met, it will be necessary to consider which state is the territorial state so as to satisfy the precondition in Article 12(2)(a). Where the aggressor state is not a state party, the Court will only be able to exercise jurisdiction if the victim state is a state party and is considered to be the state on whose territory the conduct in question occurred.
III. THE WORK OF THE SPECIAL WORKING GROUP ON THE CRIME OF AGGRESSION
Before the November 2008 meeting of the SWGCA, the Chairman asked states to consider the consequences of Article 12(2)(a) for the proposed crime of aggression and whether it was necessary for an explicit provision to address this issue. The Report of the SWGCA of its November 2008 meeting indicates that ‘[b]road support was expressed for the view that concurrent jurisdiction arises where the perpetrator acts in one state and the consequences are felt in another’. States considered that the reference to ‘conduct’ in Article 12 encompassed the consequences of the conduct. In relation to the Chairman’s question about the possibility of inserting clarifying language, states held that the issue should be left for judges to decide. Some states raised concerns about clarifying this issue in relation to the crime of aggression only, given the possibility that other crimes within the Court’s jurisdiction may arise across territorial borders and ‘the risk that an a contrario reasoning would be applied to other crimes’.
No consensus on this issue was evident in the November 2008 discussions. Following this meeting, and in advance of the meetings of the SWGCA scheduled for the resumed seventh session of the ASP in February 2009, the Chairman circulated a ‘Non-paper on other substantive issues on aggression to be addressed by the Review Conference’. In relation to the territoriality issue, the Chairman suggested that, should delegations wish to clarify this issue, the following language could be considered for inclusion in the resolution by which the crime of aggression amendments are adopted or elsewhere in the Final Act of the 2010 Review Conference: ‘[i]t is understood that the notion of ‘conduct’ in Article 12, paragraph 2(a), of the Statute encompasses both the conduct in question and its consequences.’
General support was expressed for the concept contained in the Chairman’s proposed language during the February 2009 meeting of the SWGCA, though some delegations again expressed the view that clarification was not needed or that the language proposed may have unintended consequences for other crimes in the Rome Statute. Alternative language was suggested, though this language mirrored the purpose and intent of the Chairman’s proposed text and received support from only a few states.
The SWGCA has since met once again, at an informal inter-sessional meeting in New York in June 2009. The SWGCA did not discuss the territoriality issue at that meeting.
The effect of the view expressed at the November 2008 meeting of the SWGCA and of the Chairman’s proposed clarifying language is that the Court would be able to exercise jurisdiction over an alleged crime of aggression if the victim state was a state party even if the aggressor state was not. While it is not expressly stated in their reasoning, the SWGCA appears to consider that both the aggressor state and the victim state are territorial states for the purpose of Article 12(2)(a).
While the ASP will continue to work on the crime of aggression now that the SWGCA has concluded its work, there is little time left before a proposed amendment on aggression must be submitted for discussion at the 2010 Review Conference. In order to give the amendments on aggression the best chance of acceptance at the Review Conference, it is likely that the President of the ASP will require broad, if not unanimous, consent to the proposed amendments before they are submitted to the Review Conference. Consequently, in the time remaining before the Review Conference, the options currently under consideration by the ASP will likely become the proposals put to states parties, including the Chairman’s proposal in relation to territoriality. However, an analysis of the SWGCA’s views and the Chairman’s proposed language reveals several shortcomings. These shortcomings are outlined below, and alternative approaches are suggested.
IV. ANALYSIS OF THE VIEWS OF THE SWGCA AND THE CHAIRMAN’S PROPOSED CLARIFYING LANGUAGE
This analysis of the views expressed by the SWGCA and the Chairman’s proposed clarifying language in response to those views will focus on three issues: the misapplication of principles of territorial jurisdiction to the question of territoriality in Article 12; the extension of the notion of ‘conduct’ to include consequences of such conduct; and the lack of certainty in the clarifying language proposed by the Chairman.
The November 2008 and February 2009 reports of the SWGCA state that a majority of participants are of the view that ‘concurrent jurisdiction arises where the perpetrator acts in one state and the consequences are felt in another’. This statement misapplies principles of territorial jurisdiction to the question of territoriality raised by Article 12(2)(a).
The term ‘concurrent jurisdiction’ usually denotes a situation where two or more states seek to exercise jurisdiction over a particular matter. The use of this term by the SWGCA suggests that they view the ICC’s jurisdiction in the case of the crime of aggression as based on the ability of either the aggressor state or the victim state to exercise their domestic territorial jurisdiction over the crime of aggression. However, the ability of a state to exercise territorial jurisdiction over a crime is not what the precondition in Article 12(2)(a) requires.
Article 12(2)(a) asks the Court to consider where the ‘conduct in question’ took place. This can be referred to as territoriality. In contrast, territorial jurisdiction refers to the allocation of competence to prescribe or apply local laws on the basis of locus delicti commissi – the place where the offence allegedly has been committed. Territoriality refers more specifically to the locus itself and does not take into account other factors which may affect the exercise of jurisdiction by a state, such as conflicts of laws, the presence of a suspect on the state’s territory, or sovereignty. A familiar example of this distinction is the case of a person firing a bullet over a frontier, killing a person standing on the other side of the border. Article 12(2)(a) considers where the criminal conduct occurs, not which state has a right or ability to exercise jurisdiction over the shooter.
The preconditions set out in Article 12 limit the Court’s jurisdiction to cases where a nexus exists with a consenting state. These preconditions are not predicated on the ability of a state to exercise its domestic jurisdiction over a particular matter. The application of principles of territorial jurisdiction to the interpretation of Article 12 of the Rome Statute is not helpful, as these principles do not assist in determining on whose territory the conduct in question occurs.
B. Conduct and Consequences
The clarifying language proposed by the Chairman states that for the purpose of Article 12(2)(a) the notion of ‘conduct’ includes both the conduct in question and the consequences of that conduct. The extension of the notion of ‘conduct’ to include consequences of such conduct is unhelpful and inconsistent with the Rome Statute.
The SWGCA expressed the view that jurisdiction could be based on the consent of either the aggressor state or the victim state. The SWGCA did not attribute these views to a particular understanding of the notion of ‘conduct’. Consequently, the Chairman’s proposed language does not give effect to the views of the SWGCA.
In addition, if accepted, the language proposed by the Chairman will suggest that, in the case of the crime of aggression, the conduct in question occurs on the territory of the aggressor state but that the victim state should nonetheless also be considered a territorial state because the consequences of the conduct occur on its territory. This language undermines the express provisions of Article 12(2)(a) which requires the consent of the state on whose territory the conduct in question occurred. Article 12(2)(a) does not require the consent of the state on whose territory the consequences of conduct occurred. The proposed clarifying language is also inconsistent with Article 30 of the Rome Statute, which distinguishes between conduct, consequence and circumstance elements.
While the Chairman’s proposed clarifying language does not reflect exactly the views of the SWGCA, it will likely achieve the same ends, that is, that the Court will be able to exercise jurisdiction over the crime of aggression if either the aggressor state or the victim state is a state party. However, the lack of clarity in the proposed language means that such a statement will also have unintended consequences.
The proposed language does not adequately define the scope of the consequences that are to be included in the notion of ‘conduct’. The Chairman’s intent may be to include the consequence of the actual state act of aggression (as defined in paragraph 2 of draft Article 8bis). However, the language may also have the effect of encompassing other consequences in the notion of ‘conduct’. For example, a crime of aggression may lead to the influx of displaced persons into the territory of a third state or an adverse environmental impact on a neighbouring state. If these consequences are included within the notion of ‘conduct’ in Article 12(2)(a), it will significantly expand the ICC’s jurisdiction. Under such an interpretation of ‘conduct’, the ICC would be empowered to exercise its jurisdiction over matters where neither of the two states directly involved in a crime of aggression are states parties, as long as a state experiencing the consequences of the crime is a state party. It is unlikely that the SWGCA intended such an outcome.
The proposed language is also not limited to the crime of aggression. Including the consequences of genocide, crimes against humanity and war crimes within the notion of ‘conduct’ will similarly expand the ICC’s jurisdiction beyond what is intended by the SWGCA.
If the Chairman’s current proposal is included in the resolution on the aggression amendments or in the Final Act of the Review Conference it will erode the nexus between the jurisdiction of the Court and the consent of states by allowing the Court to exercise its jurisdiction where no state party is directly involved in an offence.
V. ALTERNATIVE APPROACHES
The Chairman’s proposed clarifying language has not been formally
accepted by states parties. It is likely that consideration
of the proposal and
a formal decision on whether it should be accepted will occur during the eighth
session of the ASP. This paper
suggests three alternative approaches to
addressing the significant shortcomings of the Chairman’s proposal. These
are listed according to the author’s preference for each
A. Option One – Clarifying that the Notion of ‘Conduct’ does not Include Consequences of such Conduct
The SWGCA’s discussion of the territoriality issue suggests a misunderstanding of the notion of ‘conduct’. One way of addressing this misunderstanding would be to include clarifying language in the resolution on the crime of aggression amendments or the Final Act of the Review Conference that states that the notion of ‘conduct’ in Article 12(2)(a) does not include the consequences of such conduct. This approach has the benefit of clarity, finality and consistency with the other provisions of the Rome Statute, including Article 30. This language clearly defines the meaning and scope of the notion of ‘conduct’ and will therefore prevent an undefined and expanded jurisdiction for the ICC.
This approach is unlikely to find support in the ASP. The SWGCA’s views on territoriality are likely to be based on a desire for the Court to be able to effectively exercise jurisdiction over the crime of aggression. Limiting the Court’s jurisdiction over aggression to cases where the aggressor state is a state party, or has declared its consent to the Court’s jurisdiction, will severely limit the Court’s jurisdiction. States which are likely to perpetrate aggression are unlikely to accept the ICC’s jurisdiction.
B. Option Two – Leaving the Interpretation of Article 12 to the Court
While most states parties are unlikely to accept the first option, they may also disagree on whether to accept the Chairman’s proposed clarifying language. No consensus was evident at the November 2008 meeting of the SWGCA and states have not yet had an opportunity to discuss the Chairman’s proposed language. If states cannot agree on whether and how the issue of territoriality should be clarified, an alternative may be for states parties to refrain from setting down an interpretation of Article 12 in the aggression resolution or Final Act of the Review Conference. Instead, states could continue the status quo, under which Article 12 will be interpreted by the Court.
This approach does not have the clarity and finality of option one. Remaining silent on the issue of territoriality will not comfort states who seek to ensure that the Court can exercise its jurisdiction when either the aggressor state or the victim state are states parties. Nor will silence address the concerns of states who would like to ensure that the ICC’s jurisdiction is based on state consent. However, leaving the interpretation of Article 12 to the Court will allow the Court to exercise its discretion flexibly and with regard to the relevant circumstances of each case.
This approach is consistent with the current framework of the Rome Statute. It is already open to the ICC to consider Article 12 in the context of the other crimes within the Court’s jurisdiction, including ancillary offences. Perpetrators of the ancillary offences listed in Article 25 of the Rome Statute may, like perpetrators of aggression, act in a different state to where the consequences of their conduct is felt. Under the Rome Statute, the Court will need to consider Article 12 in order to determine whether it has jurisdiction in such cases and would interpret the preconditions in accordance with settled principles of treaty interpretation.
C. Option Three – Suggesting Improvements to the Chairman’s Proposed Clarifying Language
If states parties express a preference to include clarifying language in the aggression resolution or Final Act of the Review Conference, to ensure that the Court will be able to exercise jurisdiction over the crime of aggression where either the aggressor state or victim state are states parties, it may be possible to amend the Chairman’s proposed language in order to minimise the risk of confusion or unintended consequences for the jurisdiction of the Court.
In particular, the Chairman’s proposal should be limited to the crime of aggression. The SWGCA has been tasked with considering amendments to include the crime of aggression in the Rome Statute, and it would not be appropriate to use these amendments to institute changes to the other crimes within the Rome Statute without giving consideration to the consequences of such changes for the other crimes. The proposed language can also make clearer reference to the scope of consequences that would be included in the notion of ‘conduct’. This would ensure that the clarifying language does not have an unintended effect on the scope of the ICC’s jurisdiction. For example, clarifying language along the following lines could be adopted:
In the context of the crime of aggression, the notion of
“conduct” in paragraph 2(a) of Article 12 includes both the
conduct amounting to a crime of aggression and the State act of
This proposal will not apply to the other crimes within the Court's jurisdiction and clearly sets out the limits of the term ‘consequences’ by linking it to the state act of aggression. This is consistent with the apparent objectives of the SWGCA as it will ensure that the Court will be able to exercise jurisdiction over the crime of aggression on the basis of the victim state’s consent. This outcome can also be achieved by having recourse to the notion of ‘continuing conduct’. This notion is already utilised in the context of international environmental law and would be based on a view that the ‘conduct in question’ commences from the location of the alleged perpetrator (on the territory of the aggressor state) and continues to the location of the state act of aggression (on the territory of the victim state). Rather than extending the notion of ‘conduct’ to include the consequences of such conduct, the concept of ‘continuing conduct’ states that certain consequences have a lasting effect and are in fact continuations of an initial action.
The question raised by the Chairman of the SWGCA at the November 2008 meeting is, on its face, a question of interpretation of Article 12. However, Article 12 also sets out the requirement of state consent to the Court’s jurisdiction in all cases other than those referred by the Security Council. This provision is central to the Court’s jurisdiction. Moreover, the resolution of the issue of territoriality will have an impact on the operation of other provisions in the Rome Statute. For example, paragraph 5 of Article 121 sets out a process for the entry into force of amendments to Articles 5, 6, 7 and 8 of the Statute. If the crime of aggression amendments enter into force according to Article 121(5), the Court will not be able to exercise its jurisdiction regarding a crime of aggression when committed by a national of a state party which has not accepted the amendment, or on the territory of a state party which has not accepted the amendment. The identification of the territorial state will again be crucial to determining whether the Court has jurisdiction over a particular case.
There exists a tension between the consensual basis of the Court’s jurisdiction and the desirability of ensuring that the Court is able to exercise its jurisdiction to end impunity for the perpetrators of the most serious crimes of international concern. By interpreting the preconditions in Article 12 restrictively, the Court’s jurisdiction may be severely limited. However, a broad interpretation may unintentionally widen the Court’s jurisdiction beyond what was anticipated by the drafters of the Rome Statute. As a result, the views of the SWGCA and the clarifying language proposed by the Chairman should be carefully considered as states parties work to resolve this tension before the 2010 Review Conference.
[∗] Legal Officer, Office of
International Law, Australian Attorney-General’s Department. The views
expressed in this article
are the author’s own and do not necessarily
represent those of the Australian
 Rome Statute of the International Criminal Court, opened for signature on 17 July 1998, 2187 UNTS 3 (entered into force on 1 July 2002), art 5(2).
 Under Article 121(1) of the Rome Statute, seven years after the entry into force of the Statute, States Parties may propose amendments to the Statute. The ASP may deal with proposed amendments or may convene a Review Conference if the issue so warrants. The 2010 Review Conference is the first such conference to be convened.
 Art 12(2) and (3).
 Consent to the ICC’s jurisdiction can be expressed through ratification of the Rome Statute (art 12(1)) or by a declaration accepting the Court’s jurisdiction in relation to a particular case (art 12(3)).
 Giorgio Gaja, ‘The Long Journey towards Repressing Aggression’ in Antonio Cassese et al (eds), The Rome Statute of the International Criminal Court: A Commentary (2002) 427,427. There are, of course, exceptions to these statements.
 Following his indictment, on 5 March 2009, President Al-Bashir expelled aid groups from Sudan. President Al-Bashir’s indictment drew criticism from the President of the United Nations General Assembly, Miguel d’Escoto Brockmann, who expressed disappointment at what he considered a politically motivated decision that would be a hindrance to the cause of justice in Sudan and globally. See ‘UN Assembly Chief says Sorry for Bashir Warrant’ ABC News Online, 6 March 2009 <http://www.abc.net.au/news/stories/2009/03/06/2508819.htm> at 30 September 2009.
 Report of the Special Working Group on the Crime of Aggression, SWGCA, 7th session of the ASP (2nd resumption), UN Doc ICC-ASP/7/20/Add.1, Annex II, Appendix I, 30.
 Report of the Special Working Group on the Crime of Aggression, SWGCA, 7th session of the ASP, UN Doc ICC-ASP/7/20, Appendix I, 57.
 See art 13(a) and (c).
 This consent can be expressed through ratification of the Rome Statute or through a declaration (by a non-State Party) consenting to the Court’s jurisdiction in a particular case.
 The indictment of President Al-Bashir is an example, as Sudan is not a State Party to the Rome Statute. Article 103 of the United Nations Charter provides that ‘in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’. As a result, a Security Council resolution referring a situation to the Court is binding on all States, including non-States Parties to the Rome Statute.
 Report of the Special Working Group on the Crime of Aggression, above n 8, 52, .
 Ibid, Appendix II.
 Ibid, at 36, .
 Ibid, at 27, .
 Report of the Informal Inter-Sessional Meeting on the Crime of Aggression, hosted by the Liechtenstein Institute on Self-determination, Woodrow Wilson School, at the Princeton Club, New York from 8 to 10 June 2009, UN Doc ICC-ASP/8/INF.2.
 Antonio Cassese, International Criminal Law (2nd ed, 2008) 336.
 This provision was adopted at the 1998 United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome as a politically expedient measure to garner the support of States who were concerned with the effect of the Rome Statute on their sovereignty, as well as those States who wanted to ensure that the Court would be able to effectively exercise its jurisdiction. Williams and Schabas called it a ‘make or break provision’: Sharon A Williams and William A Schabas ‘Preconditions to the Exercise of Jurisdiction’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (2nd ed, 2008) 547.
 Article 30 of the Rome Statute provides that in order to commit an offence, each material element of the offence (conduct, consequence and circumstance) must be committed with intent and knowledge.
 The Court has not had an opportunity to interpret Article 12, as all current cases relate to situations referred by the State Party concerned (Democratic Republic of Congo, Central African Republic and Uganda) or by the UN Security Council (Sudan).
 For example, see the Trail Smelter Arbitral Tribunal (1941) 35 American Journal of International Law 684.