Comments on the Jurisdictions of the International Criminal Court

Brief Over-view:

1. The International Criminal Court [located in The Hague] will function as a tribunal for international crimes only when a State becomes a party to the International Statute.

2. The ICC is not considered as a replacement for the National Court but a complement to National Criminal Jurisdictions.

3. The ICC will only investigate and prosecute if a State is unwilling or unable to genuinely prosecute or when the culprit enjoys impunity on his evil acts.

4. The jurisdiction of the ICC is limited only to these crimes:

    a.) Crimes against humanity

    b.) Genocide

    c.) War crimes

5. The summary

Jurisdiction

Once a State becomes a party to the Statute, it accepts the Court’s jurisdiction with respect to crimes under the Statute. For the Court to exercise its jurisdiction, the territorial State (the State on whose territory the situation which is being investigated has taken or is taking place), or the State of nationality (the State whose nationality is possessed by the person who is being investigated) must be a party to the Statute.

National Court

The ICC will not replace national courts, but will be complementary to national criminal jurisdictions. The Court will only investigate and prosecute if a State is unwilling or unable to genuinely prosecute. This will be determined by the judges. Unjustified delays in proceedings as well as proceedings which are merely intended to shield persons from criminal responsibility will not render a case inadmissible before the ICC.

 

Subject Matter

The Court’s jurisdiction will be limited to the most serious crimes of concern to the international community as a whole. It will therefore have jurisdiction with respect to the crimes of genocide, crimes against humanity and war crimes, all of which are fully defined in the Statute and further elaborated by the Elements of Crimes.

Even though the Court has jurisdiction over aggression, it will not exercise such jurisdiction until the crime has been further defined and conditions under which the Court will exercise its jurisdiction have been agreed upon. The First Session of the Assembly of States Parties created a subcommittee of its Bureau to continue work on the crime of aggression. The subcommittee will be chaired by Allieu Ibrahim Kanu of Sierra Leone, and is expected to report and make proposals to the Assembly during its meeting in February 2003. Once agreement is reached, the Statute will be amended accordingly and the Court will be in a position to exercise its jurisdiction.

Personnel

The Court only has jurisdiction over natural persons aged 18 and above. Official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official does not exempt a person from criminal responsibility.

Commanders and superiors will also be held liable for criminal offences committed by forces under their effective command and control or effective authority and control.

Preconditions to the exercise of jurisdiction

The Court may exercise its jurisdiction with respect to the crime of genocide, crimes against humanity and war crimes either when the situation is referred to the Prosecutor by a State Party or by the Security Council, or when the Prosecutor decides to initiate an investigation his or her own decision and on the basis of information received. However, in this last case, the Prosecutor must seek the authorization of the Pre-Trial Chamber before proceeding with the investigation.

 

When the situation is referred to the Prosecutor by the Security Council, the Court may exercise its jurisdiction in all cases and no preconditions are applicable.

However, in the two other cases, when the Prosecutor decides to initiate an investigation on his or her own decision with the authorization of the Pre-Trial Chamber, or when the situation is referred to the Prosecutor by a State Party, strict preconditions shall be met before the Court can exercise its jurisdiction.

Indeed, in those two cases, the Court may exercise its jurisdiction only if either the State on the territory of which the suspected crime occurred (State of territoriality), or the State of which the person suspected of having committed the crime is a national (State of nationality of the suspected person), is a State Party to the Statute.

If neither of these two States is a State Party to the Statute, the Court will not be in a position to investigate the suspected crimes, except if either the State of territoriality or the State of nationality of the suspected person accepts the exercise of jurisdiction of the Court by declaration lodged with the Registrar. Such a declaration may be made for all suspected crimes committed after 1 July 2002 (taking into consideration that crimes within the jurisdiction of the Court are not subject to any statute of limitations).

Thus, if nationals of States Parties to the Statute are victims of suspected crimes within the jurisdiction of the Court in the territory of a State which is not a Party to the Statute committed by persons who are not nationals of a State Party, the Court wouldn’t be in a position to investigate except if either the State of territoriality or the State of nationality of the suspected person accepts the jurisdiction of the Court, or if the situation is referred to the Court by the Security Council.

COMMENTS

The investigation and prosecution of crimes by the International Criminal Court [ICC] is one of the exemptions of the “territorial application of criminal law”. Many legal experts maintained that the function of the ICC is only complementary to National Court. However, I still considered this as an exemption to the “Territoriality Rule” because the accused will be tried in the territory which is not the place of the commission of the crime. 

The cases triable in the ICC is limited only to the three [3] offenses mentioned in the International Statute. However, these three offenses are broad enough to include many things because its definitions are open to various interpretations. Some slight distinctions may create a lengthy argument for the classification of excluded and included cases. For example, a war crime may be argued to be a political crime. A political crime is not one of those under the jurisdiction of the ICC.

Can the ICC acquire jurisdiction when the National Court already tried the offender? My answer is NO. Because the ICC is not a judicial empire.

But what about if the National Court deliberately tried the accused for the purpose of protecting the offender from the ICC, can the ICC suppress the illegal arrangement of the accused and the National Court? My answer is still NO. It is not the power of the ICC to supplant the authority of the National Court.

What if the National Court convicts the accused and extend pardon afterwards, will the accused be tried again in the ICC because of impunity? If the answer is positive, will it not constitute double jeopardy?

The ICC does not have the mechanics to deal with this matter. An accused alleged to have committed the crimes defined by the ICC may still escape from any criminal liability when the power and influence of the accused is strong enough such that the State itself would act as his prosecutor and judge IN DISGUISE.

In fine:

a.] When the State does not act, there is a possibility that the ICC may act.

b.] When the State protects the culprit, there is a possibility that the ICC may investigate and prosecute the case.

c.] But since, the ICC is not a replacement to a National Court; when the State itself initiates the investigation and prosecution of the case [IN DISGUISE], the ICC’s principle against war crimes, crimes against humanity and genocide would just be an empty shell.

In this tricky civilization, there is always a tendency that a State shall facilitate or accommodate the offender [by reason of influence and power] masquerading as an investigator or prosecutor.

We must remember that there are many impossibility in legality, where in fact all are possible in reality.