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The Complementary Jurisdiction of the International Criminal Court and its Implications for the Non-State Parties

The entrance of the ICC is seen in The Hague

In the discussions on international humanitarian law, the notion of jurisdiction has always been a central issue. Because international criminal jurisdictions and the jurisdiction of national courts constantly compete with each other in the same case. Before the establishment of the first and only permanent international criminal tribunal: the International Criminal Court (ICC), two ad hoc international criminal tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and its counterpart for Rwanda (ICTR), were set up by the Security Council, both of which have primacy over the national jurisdictions.

However, such kind of primacy raised serious doubts about the loss of sovereignty of the concerning State. Consequently, in order to preserve the State sovereignty and reduce the impunity in international crimes at the same time, a new type of jurisdiction was invented with the establishment of ICC. Instead of having primacy over domestic courts, the ICC is complementary to such courts and can only intervene when national courts are unwilling or unable to investigate or prosecute. Consequently, although it was only recently established in 2002, already 122 countries are State Parties to its implementing treaty, the Rome Statute.

Nevertheless, the jurisdiction of the ICC is not entirely based on the principle of voluntary acceptance. Non-State Parties, for instance, China and the United States, might be compelled to accept the jurisdiction of the ICC either through a referral by the Security Council or a referral by a State party (or non-State party). As a matter of fact, this is the main reason for China’s opposition to the ICC.

This article mainly falls into three parts. The first two parts analyzes on what circumstance will the principle of complementarity affects the national jurisdiction of the non-State Party by addressing two central issues pertaining to this question: the jurisdiction of the ICC and the admissibility of the alleged crimes. After this comprehensive analysis, to make further inquiry into this motif, the third part will explore into the strategies taken by the non-State Parties to evade the possible jurisdiction of the ICC over their nationals.

Ⅰ   The Preconditions to the Exercise of Jurisdiction and the Acceptance Under Article 12(3) of the Rome Statute

A case can only be brought before the ICC through one of the following three procedures: a) referral by a State Party; b) referral by the United Nations Security Council; and c) initiation of an investigation by the Office of the Prosecutor (“OTP”)[1]. However, in the case of procedure a) and c), i.e. referral by a State Party and initiation of an investigation by the OTP, Article 12 of the Rome Statute prescribes that:

“The Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a) The State on the territory of which the conduct in question occurred or,

(b) The State of which the person accused of the crime is a national.

One can infer from this article that to establish the ICC’s jurisdiction over a case referred by a State Party or initiated by the OTP, the State in whose territory the alleged crime was committed or the State of the alleged offender’s nationality must be party to the Rome Statute or must have agreed to accept the ICC’s jurisdiction in the particular case. Consequently, in the circumstance that none of the concerning States is a State Party to the Rome Statute, an acceptance of the exercise of jurisdiction by the ICC from one of the States becomes a necessity if the ICC plans to claim her jurisdiction over the particular case. In accordance with Article 12(3) of the Rome Statute, there are two essential issues concerning the acceptance.

A         The Acceptance Should be made by a State

Article 12 (3) of the Rome Statute provides that “State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the ICC”. In other words, only a State can accept the jurisdiction of the ICC. As a person of international law, A State, should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.[2] Consequently, a rebellion, an insurgent group or even a belligerent group in itself cannot accept the jurisdiction of the ICC. In a country with internal armed conflict, only the legitimate government of that country can represent the country to accept the ICC’s jurisdiction.

B          The Form of the Declaration Required by the Rome Statute

Article 12 (3) of the Rome Statute only requires the State making a “declaration”. It does not contain a definition of “declaration” or require any specific way of doing that. Lodging “declaration” has to be express, unequivocal and precise as to the crimes or situation it applies to.[3] However, it does not necessarily mean the “declaration” has to be “a formal statement, proclamation, or announcement, esp. one embodied in an instrument.”[4] A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its objective and purpose.[5] The purpose and objective of this particular article is to extend the jurisdiction of the ICC to nationals of non-State Parties. Consequently, the meaning of “declaration” should not be restricted to “formal statement or announcement”. Such an interpretation is consistent with the travaux preparatorire of the Statute. As stipulated in article 9, option 2(2) of the Draft Statute for International Criminal Court, a declaration may be of general declaration, or may be limited to particular conduct.[6] A formal statement or a conduct, as long as it explicitly expresses the intention of the State to accept the jurisdiction of the ICC, it should been seen as a “declaration”.

Ⅱ        The Principle of Complementarity and the Criteria for Determine Inadmissibility

Having the jurisdiction alone does not render the ICC as legally competent to hear a particular case. Other relevant issues are complementarity and admissibility. Components of all the three provisions must be satisfied before the ICC can hear a particular case.

Complementarity is the central principle of the Court’s operation. It is recognized in the Preamble and explicitly stated in Article 1 of the Rome Statute.[7] This principle gives primacy of jurisdiction to a State’s national courts.[8] In its report to the UN Security Council on Darfur, the OTP emphasized that the Court is a court of last resort, only acting on situations where:

[1] Rome Statute of the International Criminal Court, UN DOC.A/CONF.183/9 (hereinafter “Rome Statue”), Article 13.

[2] Montevideo Convention on the Rights and Duties of States, Article 1.

[3] Cassese Gaeta Jones, The Rome Statute of the International Criminal Court (2002), p 551.

[4] Bryan A. Garner, Black’s Law Dictionary, Eighth Edition, p 436.

[5] The Vienna Convention on the Law of Treaties, Article 31.

[6] Report of the Preparatory Committee on the Establishment of an International Criminal Court [hereinafter the Draft Statute]

[7] Rome Statute, Article 1: “The Court will be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern . . . and shall be complementary to national criminal jurisdictions.”

[8] Julie B. Martin, ‘The International Criminal Court: Defining Complementarity and Divining Implications for the United States’, Loyola University Chicago International Law Review (2006), p109.

Image source: Flickr

Xin Zhang

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