Beruflich Dokumente
Kultur Dokumente
PHILIPS
ENALES
231 (1997).
19
ICC Statute, art. 12: Preconditions to the exercise of jurisdiction
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the
Court with respect to the crimes referred to in article 5.
2. In the case of article 13, paragraph (a) or (c), 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, if the
crime was committed on board a vessel or aircraft, the State of registration of that
vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
3. If the acceptance of a State which is not a Party to this Statute is required under para-
graph 2, that State may, by declaration lodged with the Registrar, accept the exercise
of jurisdiction by the Court with respect to the crime in question. The accepting State
shall co-operate with the Court without any delay or exception in accordance with
Part 9.
JURISDICTION AND ADMISSIBILITY 67
is thus twofold. One important aspect of article 12 is the Courts inherent
jurisdiction over a State partys nationals, which is conferred once, upon
becoming a State party, without any additional or subsequent consent, and
which entails that State partys other treaty obligations as well. In provid-
ing that [a] State which becomes a Party to this Statute thereby accepts the
jurisdiction of the Court with respect to the [core] crimes, article 12 rep-
resents an important concession by many States who negotiated ardently,
but ultimately unsuccessfully, for an opt-in consent regime.
Negotiations over this principle attempted to distinguish degrees of
universality from among the crimes listed in the Statute for the purpose
of establishing a jurisdictional hierarchy of State party obligations. Early
drafts distinguished between genocide as a crime over which there is uni-
versal jurisdiction, and all other crimes, translated into a regime whereby
State parties recognized the Courts automatic jurisdiction over genocide
but had the option of selective consent as to other crimes, either upon
becoming a party or on a case-by-case basis.
20
Of the three categories of
crimes, it is actually war crimes for which black letter law the Geneva
Conventions most strongly establishes inherent or automatic jurisdic-
tion. The common articles state Each High Contracting Party shall be
under the obligation to search for persons alleged to have committed,
or to have ordered to be committed, such grave breaches . . . , and shall
bring such persons, regardless of their nationality, before its own courts
. . .
21
Late in the Rome negotiations, the United States maintained its call
for the genocide/other crimes distinction, although earlier negotiations
suggested that both genocide and crimes against humanity would enjoy
automatic jurisdiction by States parties, and only jurisdiction over war
crimes would be on an opt-in basis.
22
The relatively cautious approach
taken by the Preparatory Committee in the articulation of justiciable
crimes lends further support to the argument that the solid custom-
ary international law basis for the courts jurisdiction over all the core
crimes negates any rationale for additional consent requirements or opt-out
provisions.
20
See, e.g., Report of the Preparatory Committee on the Establishment of an Inter-
national Criminal Court, U.N. Doc. A/CONF.183/2/Add.1, 14 April 1998, at art. 9,
option 2.
21
For an excellent and comprehensive discussion of treaty approaches to concurrent
and universal jurisdiction, see Roger Clark, Offences of International Concern: Multilat-
eral State Treaty Practice in the Forty Years Since Nuremberg, 57 NORDIC J. INTL L.
49 (1988) (noting the growing trend in treaty practice toward the obligatory exercise of
universal jurisdiction in conjunction with the principle of aut dedere aut judicare, and
noting the persistent lack of guidance in resolving competing claims over a case).
22
U.S. Lays Down Its Cards, TERRAVIVA, Jul. 10, 1998, no. 20, at 1.
68 RUTH B. PHILIPS
Support for a consent regime was informed principally by fears that
smaller or weaker countries would be targeted by a Security Council-
dominated court, i.e., a court in which the ve permanent members (P-5)
of the United Nations Security Council, namely, the United States, United
Kingdom, France, China, and the Russian Federation (succeeding the
Soviet Unions seat) could self-interestedly use the Security Council to
create a ve-country veto over the Courts docket and dominate the referral
process. Smaller countries felt that a veto limited to the P-5 was unfair
and that consent should therefore be required in order to democratize the
docket (by allowing all States parties to opt out of the Courts jurisdiction).
This position was articulated powerfully by India and Pakistan on behalf
of the Non-Aligned Movement, whose members generally opposed any
attempts to bind non-State parties, and who called for a stringent jurisdic-
tional nexus (consent or ratication) between all interested States and
the Court, in addition to the opt-in system of State party jurisdiction.
Ironically, this position was shared either wholly or to some degree by
all of the P-5 members. Sovereignty continues to be the rallying call for
small and large countries alike, although the issue of non-member control
of the Court (through the Security Council) is not obviated by a consent
regime.
23
The second crucial aspect of the Courts jurisdiction is that it may be
exercised over any person anywhere if that person is a national of a State
party or committed a crime on the territory of a State party. A non-State
party may consent on an ad hoc basis to the Courts jurisdiction where
necessary, but Security Council referrals may not be undercut by State
non-consent.
24
Thus, if a territorial state (party or non-party) is willing to
subject itself to the tribunal, that sufces to confer the Courts jurisdiction
over any national. Given, for example, the United States stubborn aversion
to this principle based on articulated fears over spurious prosecutions of its
vulnerable foreign nationals, i.e., United States military personnel pos-
ted abroad, it does appear signicant in a treaty of such magnitude that the
ICC can thus exercise jurisdiction over nationals of non-State parties, even
without that States consent. In fact, however, this is unremarkable. For-
eign nationals are always subject to the jurisdiction of the relevant foreign
23
See, e.g., Ramesh Jaura, India Thumbs Nose at European Court, TERRAVIVA, Jul.
17, 1998, <http://www.ips.org/icc/tv170704.htm>; Ramesh Jaura, Alison Dickens, U.S.
Speak More Softly, TERRAVIVA, Jul. 16, 1998, <http://www.ips.org/icc/tv160704.htm>;
Diane F. Orentlicher, U.S. Cheats Justice in Opposing World Court, LOS ANGELES TIMES,
Aug. 30, 1998, p. M2.
24
See ICC Statute, arts. 12(2), 13(b). Consent is presumed by virtue of the Security
Councils authority. See Charter of the United Nations, supra note 11, arts. 25, 39, 43, 49,
and 51.
JURISDICTION AND ADMISSIBILITY 69
territory. For example, American citizens are routinely subject to foreign
criminal prosecutions and vice versa. No person would reasonably expect
to commit a crime abroad and evade prosecution in that foreign territory.
Moreover, under international law, a States jurisdiction is rarely exercised
over a prosecution on the basis of the nationality principle alone (without,
e.g., a territorial nexus).
25
The United States rejection of the Rome treaty
was fueled by its deep dissatisfaction with article 12, paragraphs (1) and
(2). United States insistence on an opt-in regime, in conjunction with
the additional requirement of consent of an accuseds State of national-
ity, was animated not by concerns over cooperation or the logistics of
the Court getting an accused before it, but by the simple and conceded
objective that United States nationals be shielded from the Courts juris-
diction. Given the principle of complementarity, the delegations nagging
and persistent objection to this non-controversial principle encouraged
the perception that the United States places itself above the law.
26
This
intractability ultimately isolated and weakened the United States in nal
negotiations.
27
A less restrictive approach to consent had been proposed by the Repub-
lic of Korea. It listed four alternative requisite sources of jurisdiction
(territory, national state of perpetrator or victim, state of custody).
28
This proposal was among the options that appeared in the Chairmans
nal draft,
29
and it received signicant if not overwhelming support.
30
Among States that spoke out on the Bureau Proposal on Monday, July 13,
1998, 89% supported the Korean Proposal, and 75% supported automatic
jurisdiction for all core crimes.
31
Proponents of automatic jurisdiction
argued that the multilateral treaty body should not have signicantly less
competence or authority to prosecute individuals than what is already
available to States through permissive universal jurisdiction. Automatic
jurisdiction, as it was advocated during the negotiations, falls short of
25
See AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW THIRD, THE
FOREIGN RELATIONS LAW OF THE UNITED STATES, Section 402 at p. 242 (1987).
26
On the behavior of the United States in negotiations over this provision, see Diane F.
Orentlicher, supra note 23.
27
The United States continues, post-Rome, to lobby for a document which reects
American self-interest. See, e.g., Oct. 21, 1998 speech by David Scheffer before the Sixth
Committee of the 53rd United Nations General Assembly, New York, New York.
28
See Proposal Submitted by the Republic of Korea, U.N. Doc. A/CONF.183/C.1/L.6
(1998).
29
Bureau Proposal, U.N. Doc. A/CONF.183/C.1/L.59 (1998).
30
See THE ROME TREATY CONFERENCE MONITOR, SPECIAL ISSUE OF THE NGO
COALITION FOR AN INTERNATIONAL CRIMINAL COURT, Issue 23, Jul. 15, 1998.
31
Ibid.
70 RUTH B. PHILIPS
universal jurisdiction, which permits a state to prosecute any person over
whom it has custody, assuming appropriate national legislation.
32
That
international interests prevail over national interests in the prosecution
of core crimes, as an underlying premise of universal jurisdiction, does
not, in principle, give the Court a better claim to a particular prosec-
ution than a State has. Indeed, it is the universality principle which
supports and mandates domestic prosecution of core crimes. Thus the
Courts inherent jurisdiction is entirely consistent with the principles of
complementarity.
33
In recognizing that the prosecution of core crimes transcends the
interest of any one State, universal jurisdiction would have given the court
jurisdiction over a crime regardless of the nationality of the perpetrator.
Support for undiluted universal jurisdiction was strong among its few
adherents. This was the unanimous non-governmental organization (NGO)
position. The obligation to bring all perpetrators to justice is embodied in
the principle aut dedere aut judicare.
34
In failing to embrace this principle,
the Court is rendered essentially powerless to pierce the shield of impunity
afforded to a belligerent state harboring its own war criminals. There is
an important difference between hobbling the courts jurisdiction at the
outset, as a legal matter, by requiring the consent of certain interested
States, and recognizing that as a practical matter it may be very difcult
to obtain the necessary cooperation in the investigation and prosecution of
a belligerent national.
35
The crucial distinction between establishing the
Courts jurisdiction and establishing the duty of States to cooperate is thus
collapsed by article 12(2).
32
See The jurisdiction of the International Criminal Court, An informal discussion
paper submitted by Germany, Mar. 23, 1998, U.N. Doc. A/AC.249/1998/DP.2.
33
Initial doubt about whether inherent jurisdiction meant primary (ICC) jurisdiction was
settled in early negotiations. See, e.g., The Report of the Preparatory Committee on the
Establishment of an International Criminal Court, Vol. I (Proceedings of the Preparat-
ory Committee during March-April and August, 1996) GAOR 51st Session, Supplement
No. 22 (A/51/22) at para.118, p. 28; see also AMNESTY INTERNATIONAL, THE INTER-
NATIONAL CRIMINAL COURT MAKING THE RIGHT CHOICES PART I, Jan. 1997
[hereinafter Making the right choices], AI Index: IOR 40/01/97, at 1314; Roger Clark,
Nuremberg and Tokyo in Contemporary Perspective, in THE LAW OF WAR CRIMES, supra
note 9 at 173.
34
See generally CHERIF BASSIOUNI & EDWARD M. WISE, AUT DEDERE AUT
JUDICARE: THE DUTY TO EXTRADITE OR PROSECUTE IN INTERNATIONAL LAW
(1995).
35
See, e.g., HUMAN RIGHTS WATCH, JUSTICE IN THE BALANCE RECOMMENDA-
TIONS FOR AN INDEPENDENT AND EFFECTIVE INTERNATIONAL CRIMINAL COURT 53
(1998) [hereinafter JUSTICE IN THE BALANCE].
JURISDICTION AND ADMISSIBILITY 71
In summary, the Statute grants the ICC automatic jurisdiction over
the core crimes without the additional consent of States parties, and
occasionally without the consent of non-States parties in certain limited
circumstances. While the Court does not and could not prevent States
from exercising universal jurisdiction over crimes recognized as having
universal crime status, it does not itself have universal jurisdiction. Thus,
the Court has signicantly less subject-matter and adjudicative jurisdiction
over international crimes than States have. One scholar has noted that a
consent regime renders a Court with less power to bring to justice the
suspect than either the territorial state or the custodial state, each of which
could bring the suspect to justice without the consent of any other state.
36
Human rights advocates agree that the consent requirement of article 12(2)
profoundly undercuts the Courts jurisdiction over heinous crimes, mak-
ing few inroads in the quest to end impunity criminals harbored by a
belligerent State.
5. TRIGGER MECHANISMS
The Courts jurisdiction may be triggered, and an investigation initiated,
by three different referral authorities: a State party, the Security Council,
or the Prosecutor.
37
The grant and scope of each authority was heavily
contested throughout the PrepCom process. Specically, the Court may
exercise jurisdiction with respect to a crime when: (a) a situation is referred
to the Prosecutor by a State party; (b) a situation in which one or more
of such crimes appears to have been committed is referred to the Prosec-
utor by the Security Council acting under Chapter VII of the Charter of
the United Nations; or (c) the Prosecutor has initiated an investigation in
respect of such a crime. Negotiations over referral authority focused upon
whether the Security Council should have veto power over the Courts
docket (spelled out in various ways), and whether the Security Council
should be the sole referring authority. Delegates debated whether all States
parties should have referral powers or only those interested States, i.e.,
States with a nexus to the crimes in question. Most countries acknowledged
that all States parties to this treaty have an interest in prosecuting and
investigating the terrible crimes that fall within its jurisdiction. Whether
36
John Dugard, Obstacles in the Way of an International Criminal Court, 56 CAM-
BRIDGE L.J. 337 (1997). See also AMNESTY INTERNATIONAL MAKING THE RIGHT
CHOICES, supra note 33 at 14. Concededly, the failure to arrest Karadzic is a failure of
international political will; presumably the Security Council has the means to enforce the
service of arrest warrants issued under ICTY auspices.
37
ICC Statute, art. 13.
72 RUTH B. PHILIPS
the Prosecutor should have independent authority to conduct investigations
was among the most contentious issues on the table. Human rights advoc-
ates and many delegations argued that States and the Security Council
have been historically and shamefully inattentive to the plight of victims,
particularly those whose plight is not geopolitically compelling; that States
are sensitive to the political consequences of bringing complaints against
one another; and that an independent Prosecutor would function as an ideal
ombudsman.
38
The distinction between State and Security Council refer-
ral of situations and Prosecutor-initiated investigations into crimes is
important, and reects attempts to de-politicize the Court by withholding
State party and Security Council authority to haul individuals before it,
as well as acknowledgement that a prosecutors attention to a situation
(as opposed to whether evidence exists with respect to a particular crime
and a particular individual) would constitute an inappropriate exercise of
political judgment.
The mechanics of a Security Council referral have not been developed.
Whether referral of a situation shall be effected through a formal resolution
or other less formal means is yet undetermined; nor was the binding effect
of such a resolution taken up in negotiations. Attention to the Security
Councils role on the Court was dominated by intense debates over the
scope of its power to block the Courts agenda, and less to its potential to
dominate the referral process in any afrmative way. The binding authority
of a Security Council resolution under article 16 of the Statute, which
blocks investigation or prosecution of a matter on its agenda, is explicit
(the formality of a resolution was exacted as a safeguard against Security
38
See, e.g., the intervention of Kenneth Roth, Executive Director of Human Rights
Watch, at the Diplomatic Conference on Jun. 18, 1998, available at <http://www.un.
org/icc/speeches/618rot.htm> (discussing the failure of the Security Council to investigate
the 1988 execution of 100,000 Kurdish men in Iraq, in spite of 18 tons of police docu-
ments and testimony establishing an overwhelming case of genocide); Intervention of Indai
Lourdes Sajor, Asian Centre for Womens Human Rights at the Diplomatic Conference on
Jun. 18, 1998, available at <http://www.un.org/icc/speeches/618asc.htm> (discussing the
failure of the international community to address the impact of armed conict on women
in spite of its persistence, escalation, and brutality); comments of Ustinia Dolgopol, Senior
Lecturer in Law, The Flinders University of South Australia, at Jun. 25, 1998 panel dis-
cussion, Whats At Stake for Women in the ICC, held during the Diplomatic Conference
by Womens Caucus for Gender Justice in the International Criminal Court (transcription
on le with author) (expressing scepticism over partial justice in war crimes trials to date
and suggesting that geopolitical mileage runs out quickly on the issue of sexual violence).
Among the permanent members of the Security Council, China, the United States and
the Russian Federation remained staunchly opposed to a Prosecutor with any proprio motu
powers. Most delegations supported the nal article 13(c), subject to the stringent Pre-Trial
Chamber review provisions of article 15, which were developed largely to mollify United
States fears of a runaway prosecutor.
JURISDICTION AND ADMISSIBILITY 73
Council domination), while the Security Council referral scheme is silent
as to manner, process, or effect. In light of the Security Councils relat-
ive inaction in the face of massive and widespread global atrocities (e.g.,
Algeria, Burundi), whether the Security Council acts as an ally or rival of
the Court (i.e., whether it oods the Court with referrals or blocks it with
article 16 resolutions) remains to be seen. Security Council referral power
is silent on the question of aggression or the effect of any determination
on future Court adjudication. The terse nal text of article 13(b) of the
Statute reects unnished negotiations over aggression, and the question
of the legal effect of a Security Council nding of aggression was left for
subsequent drafting. This issue was addressed in article 10 of the draft
statute.
Admissibility criteria apply explicitly to State party and Prosecutor-
initiated prosecutions.
39
Article 53 authorizes the Prosecutor to review
Security Council and State party referrals, and to conclude, if warranted,
that there is not a sufcient basis for a prosecution, subject to Pre-Trial
Chamber review if requested by the referring entity. Moreover, articles
53(1)(b) and 53(2)(b) mandate the Prosecutor to consider the question of
article 17 admissibility, suggesting that complementarity applies to Secur-
ity Council referrals as well, although there are no direct provisions for this
determination. Indeed, article 17 read in conjunction with article 53 sug-
gests that complementarity applies to Security Council referrals as well.
The lack of clarity here was acknowledged in Rome but left unresolved.
40
There is not one cross-reference to article 53 in articles 17 to 19. It can
plausibly be argued that notwithstanding its constitutional authority under
Chapter VII of the Charter of the United Nations, the Security Council
may indeed be required to participate in the Court on a complementary
footing, or else forego an ICC referral and assert its jurisdictional primacy
through ad hoc tribunals.
41
Article 14 allows a referral by a State party of a situation in which
one of more crimes within the jurisdiction of the Court appear to have
been committed requesting the Prosecutor to investigate the situation for
the purpose of determining whether one or more specic persons should
39
ICC Statute, Art. 18.
40
See Working Paper on article 54, U.N. Doc. A/CONF.183/C.1/W GPM/L.1 (1998),
fn.1.
41
Telephone conversation with M. Cherif Bassiouni, Oct. 2, 1998. Professor Bassiounis
early writings on this issue cede a decidedly different regime for Security Council refer-
rals. See, e.g., Observations Concerning The 199798 Preparatory Committees Work, 13
NOUVELLES
ETUDES P