Excerpt
Table of contents
I. Introduction
II. Jurisdiction of the International Criminal Court
1. Types of crimes
2. The preconditions to exercise jurisdiction
2.1 Extraterritorial jurisdiction
3. The relationship between the ICC and the Security Council
III. Admissibility of cases
1. Example: the Lubanga-case
1.1 Complementarity
1.2 Gravity
2. Limitations
IV. Possibilities of prosecution of violations of international humanitarian law in Iraq
Bibliography
Cassesse, Antonio: Introduction to International Law, 2nd edition, Oxford, 2005.
Duffy, Helen: The „War on Terror“ and the Framework of International Law, Cambridge, 2005.
Grant, John p./ Barker, Craig: International Criminal Law. Desk Book, London, 2006.
Hobel, Herman A.M./ Lammers, Johan O./ Schukking, Johen (edt.): Reflections on the International Criminal Court. Essays in Honour of Adrian Bos, The Hague, 1999.
Lee, R.S. : The International Criminal Court. The Making of the Rome Statute: Issues, Negotiaions, Results; Den Haag, 1999.
MacGoldrick, Dominic/ Donnelly, Eric/ Rowe, Peter: The Permanent International Criminal Court: Lagal and Policy Issues, London, 2004.
Morris, V./ Scharf, M.: An Insider’s Guide to the International Criminal Tribunal fort he former Yugoslavia, Oxford, 1995.
Schabas, William A.: An Introduction to the International Criminal Court, 2nd edition, Galway, 2004.
Tomuschat, Christian (edt.): Völkerrecht, 3rd Edition, Baden- Baden, 2005.
Jurisdiction of the International Criminal Court and the admissibility of cases
I. Introduction
Fifty years after the Nuremberg-Tribunal, the U.N. Commission of Experts on the Former Yugoslavia stated, that “states may choose to combine their jurisdictions under the universality principle and vest this combined jurisdiction in an international tribunal.”[1]
This tribunal, the International Criminal Court (ICC), finally was created by a diplomatic conference held in Rome in 1998, where 120 States voted to adopt the Rome Statute of the International Criminal Court[2], rendering into force in 2002.
This detailed international treaty provides for the creation of an international criminal court with power to try and punish for the most serious violations of human rights in cases where national justice systems fail at the task.
The ICC therefore ushers in a new era in the protection of human rights. Some authors even say that to a great extent, the success of the Court parallels the growth of the international human rights movement, much of whose fundamental philosophy and outlook it shares.[3]
Lately mainly questions concerning the Iraq-conflict were raised, concerning the problem, whether criminal proceedings against the main actors before the ICC would be “successful”.
II. Jurisdiction of the International Criminal Court
1. Types of crimes
Within the Preamble of the Statute it says, that the ICC may have jurisdiction only over “the most serious crimes of concern to the international community as a whole”[4]. Art. 5.1 of the Statute gives some kind of qualification, saying that these comprise genocide, crimes against humanity, war crimes and the crime of aggression[5].
The crime of genocide is defined by Art. 2 of the “Convention on the Prevention and Punishment of the crime of genocide”.[6]
Crimes against humanity are explicitly defined by Art. 7.1 of the Statute, comprising actions such as murder, extermination, enslavement or banishment. Unlike before, a legal link between the actions and an armed conflict is no longer necessary.[7]
Defining aggression is, however, something that is clearly subject to external conditions, notably political factors, as the crime can only be committed by the leaders of a country. A clear example is to be found in the reports of the "Special working group on the crime of aggression," whose duty it is to draft an amendment to the Statute of Rome on this matter. But a 1974 resolution of the United Nations General Assembly, (which is not legally binding) provided a bottom-line definition that was taken up by the International Court of Justice (ICJ) in its famous 1986 judgment on Nicaragua v. the United States. In Article 1 it stated: "Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition".[8]
Once a State becomes party to the Statute it coevally accepts the ICC´s jurisdiction with respect to the crimes listed under the Statute.
2. The preconditions to exercise jurisdiction
In contrast to the ad-hoc criminal tribunals for the former Yugoslavia and Rwanda, the ICC has no overriding or competing jurisdiction. Contrariwise, Art. 17 of the Statute says, that the Court should initially have jurisdiction only “complementary” to national courts, which means that it should be able to assert jurisdiction only when a national criminal justice system is unwilling or unable to prosecute persons suspected of those crimes mentioned above.[9]
The Court’s jurisdiction is limited to the most serious crimes, which are of concern to the international community as a whole.
It may act with respect to the crime of genocide, crimes against humanity and war crimes (which are defined in detail in the Rome Statute) either when the situation is referred to the Prosecutor by a State Party or by the Security Council, or in the case of a decision by the Prosecutor to initiate an investigation on his own decision on the basis of information received. However, in this case, the Prosecutor must seek the authorisation of the Pre-Trial Chamber before proceeding with his investigation.
The cases of the ratione materiae jurisdiction, sometimes meet the problem of the extraterritorial aspect.
2.1 Extraterritorial jurisdiction
It is evident that for the war crimes, an obligation to criminalise the extraterritorial commission of these acts and to prosecute alleged offenders follows clearly from almost universally ratified multilateral conventions, for example the Geneva Conventions of 1949.[10]
As regards genocide, the Genocide Convention[11] only provides in Art. VI for territorial jurisdiction and the jurisdiction of an international criminal court which might be established.
But, however, the developments show that genocide is a crime even under customary law and, moreover, that universal jurisdiction applies to it.[12]
In case of the ratione personae jurisdiction, barring the situations, the Security Council may refer, there is jurisdiction in two cases, namely in the case of Art. 122 of the Statute, which lays down the prerequisites for the ICC to exercise jurisdiction. It says that the Court may act when either the alleged crime has been committed on the territory of a state party to the statute or when the person accused of the crime is a national of a state party.
[...]
[1] Interim Report of the Independent Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), in: Morris & Scharf, p. 311.
[2] Taken from: www.un.org/law/icc/index.html. called hereafter: the Statute.
[3] E.g. Schabas, p. 6.
[4] Statute, Preamble, para. 4.
[5] But Art 5.2 of the Statute explains that the jurisdiction over aggression depends upon the definition respectively the adoption of a suitable definition of the term aggression, which is yet to happen. So there is no jurisdiction in this area at the moment.
[6] Taken from : Tomurchat, p. 111.
[7] Fassbender, Bardo: Der Internationale Strafgerichtshof: Auf dem Weg zu einem „Weltinnenrecht“?, bpb, B27-28/2002, p. 14.
[8] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), Jurisdiction and Admissibility, 1984 ICJ REP. 392 June 27, 1986.
[9] John T.Holmes, The Principle of Complementarity, in: Lee, p. 41 (42).
[10] MacGoldrick, p. 67.
[11] Supra note 6.
[12] Supra note 10.