International Criminal Law
Jurisdiction and Admissibility
Of International Criminal Court
Ms. Pooja Bhardwar
B.com LL.B (Hons.)
This project has been made for the purpose of covering a part of
the syllabus of the International Criminal Court as prescribed by Panjab
I hereby, acknowledge my mentor, Ms. Pooja Bhardwar, for her
expert guidance and views in each and every aspect.
Without her help, making of this project would never have been
B.com LL.B (hons.)
Forms of Jurisdiction
Ne bis in idem
The International Criminal Court (commonly referred to as the ICC or ICCt)
is the world's first permanent, international judicial body capable of bringing
perpetrators to justice and providing redress to victims when states are unable or
unwilling to do so.1
The International Criminal Court (ICC) was formed during one of the
bloodiest decades in human history, after the Rwandan and Bosnian genocides.
The establishment of a permanent International Criminal Court in 2002
represented a major breakthrough in international justice. The Court is the only
one of its kind that can investigate and prosecute genocide, crimes against
humanity, and war crimes when national authorities are unable or unwilling to do
The ICC is a court of last resort. It will not act if a case is investigated or
prosecuted by a national judicial system unless the national proceedings are not
genuine, for example if formal proceedings were undertaken solely to shield a
person from criminal responsibility. In addition, the ICC only tries those accused
of the gravest crimes.
In all of its activities, the ICC observes the highest standards of fairness and
due process. The jurisdiction and functioning of the ICC are governed by the Rome
As of May 2013, 122 states have ratified the Court's treaty, the Rome
Statute -- including all of South America, nearly all of Europe and roughly half the
countries in Africa. Today, the ICC is taking on its first cases. American
http://www.amnestyusa.org/our-work/issues/international-justice/international-criminal-court, 27 Oct, 2013,
27 Oct, 2013, 6.04 PM
involvement is critical to both the Court's success and U.S. foreign policy
Up to date, 20 cases in 8 situations have been brought before the
International Criminal Court.
Pursuant to the Rome Statute, the Prosecutor can initiate an investigation
on the basis of a referral from any State Party or from the United Nations Security
Council. In addition, the Prosecutor can initiate investigations proprio motu on the
basis of information on crimes within the jurisdiction of the Court received from
individuals or organizations (“communications”).
To date, four States Parties to the Rome Statute – Uganda, the Democratic
Republic of the Congo, the Central African Republic and Mali – have referred
situations occurring on their territories to the Court. In addition, the Security
Council has referred the situation in Darfur, Sudan, and the situation in Libya –
both non-States Parties.3
Structure of the Court
The Court is an independent institution. The Court is not part of the United
Nations, but it maintains a cooperative relationship with the U.N. The Court is
based in The Hague, the Netherlands, although it may also sit elsewhere. The
Court is composed of four organs. These are:
the judicial Divisions,
the Office of the Prosecutor and
Oct, 2013, 5.21 PM
Significance of ICC Statute
In 128 articles, the ICC Statute (also known as Rome Statute) regulates the
creation of the International Criminal Court (Part 1), its constitution,
administration and financing (Parts 4, 11, 12), procedure before the Court and cooperation with the Court (Parts 5 to 10). The Statute also enumerates the crimes
over which the Court has jurisdiction and contains general principles of criminal
law (Parts 2 and 3).
The ICC Statute is the core document of international criminal law today.
The four crimes under international criminal law, the “classic” Nuremberg
definitions plus the crime of genocide, are contained in Article 5. While the
Statute’s predecessors contained only fragmentary provisions, the ICC Statute for
the first time contains comprehensive rules on the “general principles” of
international criminal law.5
Werle Gerhard, “Principles of International Criminal Law”, 2005, T.M.C. Asser Press, The Hague, The Netherlands,
Jurisdiction Of ICC
The Statute encourages States to exercise their jurisdiction over the ICC
crimes. Its Preamble states that the effective prosecution of the ICC crimes must
be ensured by taking measures at the national level and by enhancing
international cooperation. In addition, it is the duty of every State to exercise its
criminal jurisdiction over those responsible for international crimes. Nevertheless,
there is nothing explicit in the Statute imposing an obligation to prosecute the ICC
crimes. This obligation can be found in other treaties, for some of the crimes
listed in the Statute, but not for all of them. Under the four Geneva Conventions
of 1949, States Parties undertake to enact any legislation necessary to provide
effective penal sanctions for persons committing grave breaches of the
Conventions. Under article 5 of the Genocide Convention, States Parties
undertake to enact the necessary legislation to give effect to the provisions of the
Convention and to provide effective penalties for persons guilty of genocide. The
history of the second half of the 20th century shows us that this obligation was
only minimally respected.
Nevertheless, the Statute does not deprive States of the power to
prosecute the perpetrators of international crimes. Further, the ICC’s jurisdiction
defers to that of States Parties. While the Statute does not relieve States of the
power to prosecute perpetrators of crimes within its jurisdiction, it institutes a
Court that will do so in the event that States Parties neglect to prosecute these
criminals or do not possess the means to do so.
Under the principle of complementarity, the ICC only exercises its jurisdiction
when States Parties fail to investigate or undertake judicial procedures in good
faith, after a crime covered under the Statute has been committed. The ICC
cannot hear a case when a State has decided to act. 6
William A. Schabas, An Introduction to the International Criminal Court, (2010) 4 ed., Cambridge: Cambridge
University Press P 64
The jurisdiction of the ICC is non-retroactive. The ICC Statute entered into
force on 1st July 2002. Therefore, as per Article 11, the earliest date from which
the ICC can have jurisdiction over crimes under the Statute is 1st July 2002.
Where the ICC Statute comes into force for a particular State Party after 1st
July 2002, then the ICC has jurisdiction for crimes committed after the entry into
force of the Statute for that State. Therefore for a State which accedes or ratifies
after 1st May 2002, the entry into force of the Statute shall be the first day of the
month after the 60th day following the deposit by the State of its instrument of
ratification, acceptance, approval or accession (“The 60 day rule”) (Article 12(2)).
Article 12 (2) – the one the judges refer to - reads as follows:
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.
States which are not State Parties can make a declaration under Article
12(3) of the Statute, accepting the Jurisdiction of the ICC for particular crimes. The
Jurisdiction of the ICC would then be from the date of declaration ( Article 11(2)).7
According to Article 5, “the jurisdiction of the Court shall be limited to the
most serious crimes of concern to the international community as a whole. The
Court has jurisdiction in accordance with this Statute with respect to the following
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.”
icc-and-national-courts, 27 Oct, 2013, 6.56 AM
What is the difference between these four types of international crimes? It
appears that these different crimes overlap. Indeed, Robertson says that they do
(for instance, an aggressive war might contain all of the other crimes as well). But,
according to the Rome Statute, each crime does have its own character.
Forms of Jurisdiction
Chapter Two of the International Criminal Court Statute ("ICC Statute") 1
dealing with "Jurisdiction, Admissibility and Applicable Law" became the focus
of the most profound controversies that attended the meetings in New York
and Rome for the establishment of an International Criminal Court (ICC). This
applied-admittedly in different degrees-to all four components of the concept
of jurisdiction, these are:
Temporal (ratione temporis) jurisdiction
Personal (ratione personae) jurisdiction
Territorial (ratione loci) jurisdiction
Subject-matter (ratione materiae) jurisdiction8
Temporal jurisdiction is the time when a given crime was committed.
According to article 11 of the Rome Statute, the ICC has jurisdiction only on
crimes committed after the entry into force of Rome Statute. This provision is
based on the universally accepted principle of criminal law: nullum crimen and
nulla poena sine lege, which forbids prosecution of the crimes not considered as
such when they were committed.
The temporal jurisdiction of the ICC is not like that of ICTY or ICTR, the
latter two are both explicitly provided by the UN. For instance, the ICTY has
jurisdiction over the crimes committed after January 1,1991, which symbolises
the beginning of war in the territory of former Yugoslavia. Thus, the ICC is not
only the first permanent international court but also the first one to prosecute the
crimes that will be committed after its institution.
e=cite&docid=14+Emor, 27 October, 2013, 6.46 AM
However, the provision of article 11 is hard to be considered as an iron
principle. If a given country requests the court to exercise ad hoc jurisdiction or
when the Security Council gives jurisdiction to the court, the ICC will also be able
to prosecute the crimes committed after the entry into force of the Rome Statute,
yet when a given country was not yet a state party to the Rome Statute.
Personal jurisdiction refers to the persons that the ICC will have jurisdiction
over. The ICC presently has jurisdiction only over person who is more than 18 at
the time of the alleged commission of a crime. Due to the purpose and spirit of
the Rome Statute, the ICC rejects the concept of immunity by stating that
“immunities or special procedural rules which may attach to the official capacity
of a person, whether under national or international law shall not bar the Court
from exercising its jurisdiction over such a person”.
It is worth mentioning that persons falling into the jurisdiction of the ICC
are not limited to nationals of states parties, the court can also prosecute
individuals who are nationals of non-party states if the non-party state accepts
the court’s jurisdiction or when the appropriate decision is made by the Security
Territorial jurisdiction refers to the territory over which the ICC may
exercise its functions and powers. According to the stipulation of Rome Statute,
the ICC may exercise its functions and powers on : (1) the territory of any State
Party. Because when a state becomes a state to Rome Statute, it thereby accepts
the jurisdiction of the ICC, and (2) on the territory of any other State that has
accepted the jurisdiction of the ICC by special agreement.
Compared to that of a national court, the territorial jurisdiction of the ICC
displays the character of uncertainty, which derives from the contract nature of
Rome statute and the independence of sovereign states. The ICC was created on
the basis of Rome Statute, consequently, it can only exercise its powers on the
territory of states parties and the non-party states that have accepted its
jurisdiction. Sovereign states are entitled to accede to or withdraw form Rome
Statute and determine independently whether to accept the jurisdiction of the
ICC for the purpose of maximizing their national interests. The accession to or
withdrawal from Rome Statute of sovereign states will doubtlessly lead to
extension or reduction of the territorial jurisdiction of the ICC, then result in the
uncertainty character of the jurisdiction of the ICC.
The ICC being first international criminal court, its territorial jurisdiction is
also quite different from that of ICTY or ICTR. The territorial jurisdictions of the
two ad hoc tribunals are both definitely stipulated in their respective statute: ICTY
has jurisdiction only on the territory of former Yugoslavia, including its territorial
land, territory waters and territorial air. ICTR can exercise jurisdiction not only
on the territory of Rwanda, but also the territory in which the citizens of Rwanda
committed international crimes that severely violated international humanitarian
Subject matter jurisdiction refers to the types of international crimes that
will be prosecuted by the ICC. Currently, the ICC will have jurisdiction over four
categories of international crimes, which are considered as “the most serious
crimes of concern to the international community as a whole”.*11+ They are
genocide, crimes against humanity, war crimes and crime of aggression, which
will be specifically explored in the following paragraphs.
The core of the crime of genocide is the “intent to destroy in whole or part
a national, ethnical, racial or religious group as such.” When the intent is to
destroy all members of a group simply because they are members of the group,
then the crime is genocide.
Part of the definition of genocide includes acts intended to prevent births
within a group. Robertson says that this addition to the definition was added at
the insistence of the Vatican, and the author takes a dim view of its inclusion as
part of the meaning of genocide. According to Robertson, imposing birth control
as a means to extinguish an entire group is a genocidal act, though imposing birth
control by law to control population or for health reasons is outside the scope of
what the crime of genocide is about.
What Is Not Included in the Definition of Genocide
Perhaps as important as the definition of genocide, is the definition of what
does not count as genocide.
It is not considered genocide when a sovereign state goes to war in order to
annihilate an enemy nation. The threat or use of force against a state is not itself
an act of genocide. Robertson believes that behavior by the state of this sort
should be made part of the definition of the crime of aggression, but it is not
currently part of the Rome Statute.
Crimes against Humanity
The Rome Statute contains the authoritative definition of crimes against
The jurisdiction of the International Criminal Court does not cover just any
cruel, violent or heinous act. Individuals are capable of committing these types of
crimes, but they are not international crimes. To be considered an international
crime, there are three conditions:
The acts must be part of a widespread or systematic attack. Crimes
committed on the spur of the moment are not covered.
They must be directed against a civilian population. Treatment of soldiers is
covered under the definition of war crimes.
They must be carried out as a way to further the policy of a state or
Individuals are prosecuted, but only insofar as they are instruments of a state
An important point is that it is not only states that can commit crimes against
humanity under the Rome Statute. Certain types of non-state actors are covered
as well. But, what kind of organization is covered under the statute?
How Organized Is Organized?
A group that has the ability to carry out atrocities by control over territory,
people or both fall within the jurisdiction of the International Criminal Court. The
group does not have to be invested with formal state power.
Examples include paramilitaries and structured opposition forces. The Lord's
Resistance Army (an itinerant guerrilla group operating in northern Uganda and
parts of Sudan) provided the first individuals indicted.
Some Examples of Crimes against Humanity
Article 7 of the Rome Statute provides a list of the most heinous offenses,
Enforced disappearance, defined as the detention or abduction of people
(with the acquiescence of the state) along with a refusal to acknowledge
their whereabouts or fate,
Rape, sexual slavery, forced pregnancy and enforced prostitution and
Deportation or forcibly transferring a population,
Persecution, defined as the intentional and severe deprivation of
An important advance beyond the previous doctrine of the sovereignty of
states is the ability to indict a sitting head of state. It is also important that crimes
against humanity are not limited to just political or military leaders. Members of
professions—like lawyers or physicians—are not immune.
What Is Not Included in the Definition of Crimes against Humanity?
The Rome Statute specifically excluded certain types of crimes from the
definition of crimes against humanity, including:
Terrorism and drug trafficking. The reason that both of these crimes were
not included is that they were not considered “as serious” as the crimes of
genocide and crimes against humanity, and they were covered under other
Persecution on the basis of gender. Robertson says that this is “the most
ridiculous clause in any international treaty ever devised.” Insisted upon by
the Vatican and Islamic states, the clause defines gender in terms of two
sexes, male and female and should not be construed in any other manner.
So, says Robertson, transsexuals, gays and lesbians are not covered by the
There are two types of crimes defined in the Rome Statute as war crimes:
crimes at times of international conflict and at times of internal armed conflict.
So, a crime can be considered a war crime even if it does not involve multiple
In large measure, the substance of the crimes are stated in the Geneva
Conventions. However, the statute includes other crimes as well, including
enlisting children soldiers, engaging in systematic sexual violence and targeting
UN peacekeepers or humanitarian workers.
Some crimes not covered under the war crimes definition include:
The use of anti-personnel land mines (covered under another treaty),
The use of nuclear weapons,
Internal disturbances and tensions such as riot and unrest.
Robertson says that using nuclear weapons falls easily within the statute
definition banning methods of warfare “which are of a nature to cause
superfluous injury or unnecessary suffering or which are inherently
indiscriminate.” However, using nuclear weapons was consciously omitted from
the statute. Robertson says, however, that nuclear weapons may be included in
the next version of the statute when it is reviewed in 2009.
Crime of Aggression
Robertson says that the statute failed in not defining aggressive wars as
crimes. Members of the Rome Conference could not agree on a definition. The
statute does include a provision giving the International Criminal Court
jurisdiction over the crime of aggression, but this crime will come into effect only
once a definition is approved at a later review conference. In the meantime,
declaring and waging an aggressive war in which millions of soldiers and civilians
would be killed is not expressly defined as an international crime.
Rome missed the opportunity to outlaw war as an instrument of national
policy. Robertson says that this glaring omission is only made worse by the fact
that the statute only pretends to include it.9
http://clg.portalxm.com/library/keytext.cfm?keytext_id=124, 27 October, 2013, 6.11 AM
Liability to prosecution of those bearing office
The accused can be both sentenced and punished by the International
The Statute applies equally to all persons without any distinction based on
official capacity. In particular, official capacity as a Head of State or Government,
a member of a Government or parliament, an elected representative or a
government official shall in no case exempt a person from criminal responsibility
under the Statute of the ICC, nor shall it, in and of itself, constitute a ground for
reduction of sentence (Article 27, Paragraph 1 of the Statute).
Immunities or special procedural rules which may attach to the official
capacity of a person, whether under national or international law, shall also not
bar the Court from exercising its jurisdiction over such a person (Article 27,
Paragraph 2 of the Statute).
Exclusion of criminal responsibility
None of the accused may invoke any of the grounds specified under Article
31 of the Statute for excluding criminal responsibility.
The accused were acting in full knowledge about the illegitimacy of their
actions. Thus, any claims to the contrary are null and void.
Equally null and void are all efforts by the accused to retroactively justify
their crimes by forming ‘coalitions’ of opinions with other nations.
Power to inflict punishment over members of the US
Government and citizens of the USA
Even those of the accused, who hold citizenship of the United States of
America, cannot claim immunity from criminal prosecution before the
International Criminal Court, just because the United States of America in contrast
to 90 other countries around the world (i.e. almost half of the members of the
United Nations) is not amongst the signatory states to the Rome Statute.
The accused have long been devising plans to try and evade the power to
inflict punishment of the International Criminal Court. This, however, does not
exempt the accused from the jurisdiction of the International Criminal Court,
because the mere performance of the crimes involved in the acts to be judged
before the ICC constitutes liability to punishment under the terms of the Statute.
It does not matter if you belong to a specific Member State, because the
International Criminal Court has jurisdiction over natural persons and not over
States and establishes individual responsibility and liability for punishment (Article
25 Paragraphs 1 and 2 of the Statute).
The ICC Statutes render attempts by the US Administration to coerce
smaller nations into bilateral ‘immunity pacts’ redundant.
In addition, the UN Security Council did rule that the US Government and
therefore also the majority of the accused could not and should not decide
themselves whether the International Criminal Court could take action against
them or not.
This decision was taken for good reason: One can only imagine what would
have happened if the main figures accused in the Nuremberg Trials had been
allowed to choose whether they had to stand trial before the Nuremberg
For these reasons the accused, even if they are citizens of the United States
of America, are still subject to the power to inflict punishment of the International
The complementary nature of the jurisdiction of the ICC
The principle of complementarity is definitely provided in the preamble and
article 1 of the Rome Statute. The complementary nature of the jurisdiction of the
ICC can also easily be found in relevant provisions of the Rome Statute. For one
thing, the precondition for the ICC to exercise its jurisdiction. According to the
Rome Statute, the ICC may exercise jurisdiction only if states that have accepted
its jurisdiction are unwilling or unable genuinely to carry out the investigation or
prosecution of a given case. Then, the limits on admissibility of given cases. For
instance, the court shall determine that a case is inadmissible where the case is
being investigated or prosecuted by a State which has jurisdiction over it, or
where the case has been investigated by a State which has jurisdiction over it and
the state has decided not to prosecute the person concerned.
Ne bis in idem
The jurisdiction of the ICC to try an individual who has been the object of
sham proceedings in a national court is technically an exception to the principle of
criminal lawin which a person may not be prosecuted twice for the same crime
(ne bis in idem). Article 20 allows the ICC to prosecute a person for a crime
referred to in the Statute, even after being tried for the same act in a national
a) the proceedings were aimed at shielding the person from criminal
b) the procedure was not independent or impartial in accordance with the norms
of due process recognized by international law, and was conducted in a
http://www4.dr-rath-foundation.org/The_Hague/complaint/complaint05.htm, 27 Oct, 2013, 6.23 AM
manner which, in the circumstances, was inconsistent with an intent to bring
the person concerned to justice.
Criminal justice has been rendered then, only when it has been rendered in
accordance with due process and other international standards. The first example
concerns a situation such as a State charging a perpetrator of genocide with
assault. Such a trial, although respecting all the safeguards concerning
impartiality, would be aimed at shielding the person from responsibility for an
extremely serious crime. The second example covers a larger spectrum of
situations. It does not mean, however, that the ICC will have the power to
intervene in every case where it judges that a procedural safeguard was violated
in a trial conducted by a national authority. In order for the ICC to begin a new
trial, the violation of procedural safeguards must have been committed with the
aim of preventing the person concerned from being brought to justice.
The principle of ne bis in idem can be found in most national criminal
codes, in some constitutions and in article 14 of the International Covenant on
Civil and Political Rights. It would be preferable if the national law implementing
the ICC Statute made mention of the exception to this principle provided by the
Except as provided in this Statute, no person shall be tried before the ICC
with respect to conduct which formed the basis of crimes for which the person
has been convicted or acquitted by the ICC, and no person who has been tried by
another court for conduct also proscribed under article 6, 7 or 8 shall be tried by
the ICC with respect to the same conduct. Emphasis should be laid on the word
used here, “conduct”, which implies that conducts forming the basis of crimes will
not be tried for a second time even where they have been tried by national court
as normal crimes provided in internal criminal code.11
http://www.iolaw.org.cn/global/EN/showNews.asp?id=24586, 27 Oct, 2013, 7.16 AM
The ICC has begun functioning. However, it is far from ideal. Its coverage is
incomplete and its power constrained. “Time will tell how effective its current
legal design will be in practice.” This doubt is evident in the Statement made at
the ceremony for the solemn undertaking of the Chief Prosecutor of the ICC by
Mr. Luis Moreno-Ocampo. In his statement, Mr. Luis Moreno-Ocampo, the chief
prosecutor, pointed out that “there are so many divergent interests in the world
today that there is not even consensus about the basic goal of punishing the
authors of genocide. An international criminal court totally independent and
impartial brings hope, but at the same time raises reasonable fears and
misunderstandings”12. Consequently, concern has been expressed that the future
of the ICC in not certain.
Frankly speaking, we consider this kind of concern quite reasonable. First,
that sovereign states are the elementary subjects in international community
decides that the ICC is not able to function like in vacuum, close and efficient
cooperation of members of international community are necessary and
indispensable for the ICC to function effectively. The fact that considerable
numbers of states have not signed the Rome Statute, including China and U.S.,
both are standing powers of Security Council, has negatively affected the
functioning of the ICC. The valid argument is the so-called 98-article agreement
proposed by U.S., which actually blocks all the way for the ICC to request the
signatory state to the agreement to transfer or extradite American suspects.13
Secondly, “loopholes in the construction of the ICC present a very real obstacle to
its effectiveness”.14 For instance, provided each of the five powers consents, the
Security Council may delay investigations concerning a given case for 12 months.
In addition, Security Council may renew this postponement each year for an
Statement made at the ceremony for the solemn undertaking of the Chief Prosecutor of the ICC, by Luis MorenoOcampo, at http://www.iccnow.org
As for the analysis of the so-called 98-article agreement, please refer to: Zhou Zhenjie, Qu Xuwu, Analysis on the
Effect of International Law of the So-called 98-Article Agreement, China Criminal Science, No.6 (2003), p110.
Brian D. Keatts, the International Criminal Court: Far from Perfect, New York Law School Journal of International
and Comparative Law Vol.20, No. 1(2000), p139.
indefinite period of time. In other words, the Security Council can effectively block
any investigation it does not want conducted for an ultimate amount of time.
Whatever loopholes or flaws are there, the ICC is an essential and great
step towards international justice in a world where national justice has failed. We
have confidence in that the ICC will benefit present and future generations, and
its authority is sure to be accepted by more and more states, because “no
significant national interest weighs against joining the ICC, and the call of
humanity counsels in favour”.15
Douglass Cassel, the Rome Statute for an International Criminal Court: a Flawed but Essential First Step, VI
Brown Journal of World Affairs 41(Winter/Spring 1999).
Werle Gerhard, “Principles of International Criminal Law”, 2005, T.M.C. Asser Press, The Hague,
William A. Schabas, An Introduction to the International Criminal Court, (2010) 4th ed.,
Cambridge: Cambridge University Press