JURISDICTION OF THE ICC
According the Rome Statute, the ICC follows territorial jurisdiction. This territorial jurisdiction applies to States who are party to the Rome Statute, but can be extended to non-party States should they want. For this they would have to provide a temporary declaration for the same. The ‘non-state’ party in this case must be a recognised sovereign. According to Chapter VII of the Charter of the United Nations, even a non-party state can be investigated by the ICC Office of Prosecutor in a case of international crime if they are a member of the United Nations.
Any crime which was committed before 1st July 2002, when the Statute was enforced, cannot be tried by the ICC according to its temporal Jurisdiction. Article 24 (1) prevents any person from being held criminally responsible by the ICC for any international offence he may have committed before the Statue was entered into.
In addition to this, ICC only holds jurisdiction over the crimes listed under the Statute.
· Crimes against humanity
· War crimes
· Crime of aggression
Another interesting aspect of the Rome Statute is that the criminal responsibility for a crime does not extend to just the people who were directly involved in the crime, but also to people who were party to it indirectly. Since crimes like genocide are committed on a large scale and are typically on the orders of some authoritative figure who may have no direct contact or interaction with the victims, therefore they are not directly involved in the crime. This is where Article 25 of the Statute comes into effect.
“Article 25 – Individual criminal Responsibility: any person who commits the crime whether as an individual or jointly with someone else or through another person, orders or induces the commission of such crime, aids, abets or assists, in any way the commission of such crime or in any way contributes to such crime.”
Features of the principle that makes it desirable are:
1. It upholds state sovereignty by giving primary jurisdiction to the state courts.
2. This being said, it also provides for the ICC being allowed step in and take over the proceedings if the conditions set by it aren’t met.
3. Unlike the universal jurisdiction, it clearly mentions the methods needed to implement jurisdiction.
4. There is flexibility in the principle leaving ample space for arbitration.
In essence it gives the State the freedom of carrying out proceedings as they deem fit. The only point that a State needs to take note of is to make sure that the conditions of the Principle are met. It also allows the ICC to act as a monitoring body which ensures that the trial is being carried out in a suitable manner.
For a crime to be tried under Complementarity jurisdiction, first and foremost it needs to be one of the crimes listed under article 5 to 8 of the Statute, that is, it needs to be either genocide, crime against humanity, crime of aggression or war crimes. Additionally, the conditions given in the statute are required to be fulfilled for it to be tried elsewhere. These conditions include genuine investigation and prosecution, unwillingness and inability to prosecute.
The lack of genuine national investigation and prosecution are the basis of exercising jurisdiction by ICC. Rather than the common perception, the ICC is not a replacement for the national courts. The trial is to be conducted by a national court first. Failure of a State to prosecute the perpetrator is what leads to the ICC taking over. Genuine investigation can be an obstacle due to the lack of exact guidelines to determine whether the investigation is legitimate or not. Despite this being an important feature of the principle, this ambiguity, could make the principle fail absolutely. Since this is quite a vague term, another problem arises; there is often a discrepancy in the legal systems of various States. What may constitute a step toward formal investigation in one State may not be elsewhere. The crimes are clearly defined with respect to international law and also apply to States that are party to the Statute, but the procedure with regard to prosecution and collection of evidence differs in various states. Therefore a conflict may arise between states.
The other obstacles, those of unwillingness and inability to prosecute are also relatively similar problems. The Article 17.2 of the ICC Statute states—
“In order to determine unwillingness in a particular case, the court shall consider having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:
(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in Article 5;
(b) There has been an unjustified delay in the proceedings which in the circumstances in inconsistent with an intent to bring the person concerned to justice.
(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner, which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice”
The problem here is of who determines unwillingness of the State to prosecute. Due to the differences in legal systems a State’s inability could easily be perceived as unwillingness by the others.
Inability finds mention in the Article 17.3 of the ICC Statute as:
“In order to determine inability in a particular case the Court shall consider whether due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.”
The article provides for inability only in cases where either the judiciary collapses, or there is a lack of unbiased judicial officials, or the case pendency of the courts surpasses coping ability of the judicial system. This again creates ambiguity in the form of doubt over who evaluates a state for inability due to either of the three problem remains unanswered.
While the existing system is rather well structured and provides for a lot of savings, a new technique which has been debated amongst the international society, is that of Universality Principle which allows States to prosecute a crime anywhere, irrespective of the jurisdiction or nationality of the accused or victim.
Disclaimer: The views and opinions expressed in the article are those of the author and do not necessarily reflect the views and opinions of the Blog.