The overwhelming majority of these communications came from individuals and groups within the United States and the United Kingdom. Many of these complaints concerned the British participation in the invasion, as well as the alleged responsibility for torture deaths while in detention in British-controlled areas. He explained that two sets of complaints were involved: 1 Complaints concerning the legality of the invasion itself ; and 2 Complaints concerning the conduct of hostilities between March and May , which included allegations in respect of a the targeting of civilians or clearly excessive attacks; and b willful killing or inhumane treatment of civilians. Australia , Poland and the UK are all state parties to the Rome Statute which established the International Criminal Court and therefore their nationals are liable to prosecution by the court for the violation of any relevant international criminal laws. Allegations concerning the legality of the conflict[ edit ] The prosecutor explained that, although the Statute of the International Criminal Court "includes the crime of aggression , it indicates that the Court may not exercise jurisdiction over the crime until a provision has been adopted which defines the crime and sets out the conditions under which the Court may exercise jurisdiction with respect to it Article 5 2. As the Prosecutor of the International Criminal Court, I do not have the mandate to address the arguments on the legality of the use of force or the crime of aggression.
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The general structure of the Clause is to provide contracting parties both with a general force majeure formula and with an off-the-peg list of force majeure events. The second was to draft a general force majeure formula and to provide a merely illustrative list of force majeure events, as does the previous ICC Force Majeure Clause.
The third was to draft both a general force majeure formula and to provide a list of events the occurrence of which altered the evidential balance in favour of the party invoking the clause. The ICC Task Force on Force Majeure and Hardship has decided to draft the clause on the basis of the third option and this because of the three purposes on which the Clause is based.
These three purposes are set out below. First, it is intended that the new clause should assist the largest possible number of users: those who draft neither of such two types of such clauses in their own contracts; those who draft only a general formula but would also like the predictability of an agreed list of events; and finally those who draft only a list of specified events but who wish to invoke an unlisted event as a force majeure event.
Secondly, it is intended to give the list of events a function which goes beyond the merely illustrative, such that a party would find it easier to invoke the clause if it could point towards one of the listed events than if it could only use the general force majeure formula. Thirdly and on the other hand, it was important not to afford a party invoking a listed event too much protection: it was definitely regarded as wrong for such a party simply to point towards the mere occurrence of a listed event, the effects of which it could reasonably have avoided or overcome, and to claim relief on that basis from its duty to perform.
The Clause seeks to attain these purposes first by providing a general force majeure formula placing the burden of proving the requirements for the application of the clause on the party invoking it. The Clause also provides a list of force majeure events, however, which is subject to the same conditions as established for the general force majeure formula but with evidential advantages for a party invoking the clause through this route.
It should be emphasised that even where a party invoking the clause does so by pointing towards a listed event, that party still needs to prove that it could not reasonably have avoided or overcome the effects of the listed event.
Where this paragraph applies, the party invoking this Clause is under an obligation to notify the other party as soon as the impediment or listed event ceases to impede performance of its contractual duties.
As is the case with CISG, A here must establish the three conditions set out in the general formula in paragraph 1 both in its own regard and in regard to the sub-contractor C. The reason for maintaining this double threshold is that A would otherwise find it too easy in most cases of out- sourcing to invoke force majeure simply by proving that C did not perform its sub-contract. Such a result was felt by the Task Force to be harsh on B, a contracting party with legitimate expectations of performance by A.
For the same reason, non-performance by a sub-contractor is not included among the events listed in paragraph 3. The Task Force decided against such a limitation on the ground that a party might wish to invoke the Clause in circumstances where it simply did not know — and could not have known — of the existence of the impediment at that time.
If the parties wish to apply the consequences of force majeure solely to events which occur after the contract is concluded, there is nothing in the Clause limiting their ability to do so by special term in their contract. Care should be taken in such circumstances, however, because such a clause would have the effect of excluding the consequences of force majeure where impediments that existed at the time of the conclusion of the contract were unknown to the parties.
A party invoking the Clause by invoking one or more of the events listed is presumed to have established that its failure to perform was caused by an impediment beyond its reasonable control which it could not reasonably have been expected to have taken into account when the contract was made.
It is essential to realise, however, that the mere occurrence of the event does not automatically grant relief to the party invoking the Clause. The main innovation is the inclusion of acts of terrorism in paragraph 3[c].
The events selected for inclusion are ones broadly accepted as being outside the control and anticipation of most contracting parties: a party invoking one or more of these events still needs to prove, however, that it could not reasonably have avoided the effects of the event upon its ability to perform its contractual duties.
It may be, of course, that parties in particular situations may wish to alter the list of events, for example by excluding one or more of the events, say event d , i. It should also be noted that where a party invoking the Clause is affected by an event which cannot quite be brought within one of the listed events, that party can still invoke the Clause through the general formula established in paragraph 1, unassisted by the presumptions which would otherwise apply through the occurrence of a listed event.
Thus, for example, where a party seeks relief because of a labour disturbance affecting only its own enterprise and therefore comes outside event g — general labour disturbance such a party can still invoke force majeure if it can establish the three requirements set out in paragraph 1. The condition laid down at paragraphs 1 a and c of the Clause dispense with the need for such an article: an event to which a party has contributed in whole or in part cannot be one outside the control of that party or one whose effects he might not reasonably have avoided or overcome.
A number of examples of such special clauses have already been given in these Explanatory Notes. Again, for example, the parties may have expressly agreed by special term that the supplier was under a contractual duty to obtain an export licence, in which case it would not be open to it to invoke a governmental order, listed at paragraph 3[d], unless the failure to obtain it was caused by another of the listed events.
The Clause adopts the latter approach because it was felt that it would be difficult to establish a single period, which would be appropriate for all sectors of industry and in all circumstances. It is felt that mention of notice in these paragraphs dispenses with the need of a general article on notification, setting out a duty of notice within a reasonable period and the consequences of a failure to notice.
The scheme of the Clause makes the consequences of invoking the Clause contingent upon notification without delay, a sufficient incentive to a party wishing to invoke the Clause to give prompt notice to the other party of its intention so to invoke. This has been done for two reasons. First, clauses providing for the consequences of force majeure events are more commonly used than hardship clauses: it was felt that making both clauses operate automatically by incorporation might discourage the use of the force majeure clause.
Secondly, the two clauses operate in different circumstances and have different effects; they ought therefore to be kept separate. Having said that, ICC puts forward both clauses as fair allocations of risk in circumstances of force majeure and hardship and both clauses can, of course, be incorporated into the same contract.
The Clause now provides one formulation with clear alternative conse- quences, negotiation or termination, the latter of which would in most cases provide an incentive towards the former. The Clause amalgamates elements of article of the Italian Civil Code and of article 6. On one view, this paragraph is unnecessary, in that hardship could only be invoked if the rigorous tests of paragraph 2 are satisfied, and this would be the case whether or not there is a paragraph 1.
Here too, the Task Force decided against such a limitation on the ground that a party might wish to invoke the Clause in circumstances where it simply did not know — and could not have known — of the existence of the event at the time of the conclusion of the contract.
Again here, however, if the parties wish to apply the consequences of the Hardship Clause solely to events which occur after the contract is concluded, there is nothing in the Clause limiting their ability to do so by special term in their contract.
Care should be taken in such circumstances, however, because such a clause would have the effect of excluding the consequences of the Clause where events rendering performance excessively onerous existed at the time of the conclusion of the contract but were unknown to the parties.
It was felt that the ICC Hardship Clause should encourage the parties to work out their own solutions through a general dispute resolution clause in their contract, rather than expressly stipulating for a limited reference to a tribunal for re-negotiation in a hardship situation. Thus, where paragraph 3 does not work, either because the performing party fails to offer alternative terms or because the non-performing party fails unreasonably to accept them, then the likelihood is that a claim will be made, either for termination brought by the party invoking the Clause or for breach of contract brought by the other party.
That claim would go to arbitration or litigation under the general dispute resolution terms in the contract, for example by reference to any of the dispute resolution services provided by ICC. Referring Principles.
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