A Study On The Jurisdiction Of The International Criminal Court

The adoption of the Rome Statute and the establishment of the International Criminal Court (ICC), the first global permanent international criminal judicial institution, are of immense significance to the world. The Rome Statute prescribes that the ICC has jurisdiction over the most serious crimes of concern to the international community as a whole, namely, the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC is targeted to put an end to impunity from such crimes, thus to contribute to their prevention. According to the Rome Statute's preconditions for the exercise of jurisdiction, the ICC may perform its complementary jurisdiction where the state on whose territory the crime has been committed or the state whose nationality the accused holds is a state party to the Rome Statute, or where a non-party state which has accepted by declaration the ICC jurisdiction. The ICC may also have jurisdiction where the Security Council refers a situation even though the state in question is not a state party. It is to be noted that the Security Council's referral is not subject to the preconditions of the exercise of ICC jurisdiction. Therefore, the ICC has jurisdiction not only over the cases involving a state party to the Statute, but in certain circumstances also over the ones concerning a non-party state. The influence of the Rome Statute and the ICC upon a state party is naturally profound, and that upon a non-party state also cannot be ignored.Because of the wide influence upon nearly all states, a surge of study on the Statute is on the rise all over the world before and after the adoption of the Statute, especially following the creation of the ICC. Despite the fact that China is still a non-party state, the Chinese government has played an active role in the whole process of the Statute's negotiations. It has advanced many constructive suggestions in consistent support of the establishment of an ICC of independence, impartiality, effectiveness and universality. It has shown great flexibility and constructiveness in the Preparatory Commission for an ICC. It has accepted consensus with respect to parts of the elements of the crimes against humanity for which it expressed great concern at the Rome Conference. And its attitude towards the ICC grows increasingly mild in its statements at some of the UN sessions. It is clear to expect the possibility for China to accede to the ICC in the future. In light of that, it is of much more importance to further recognize and understand the ICC no matter whether it is a current non-party state or a future state party.The lifeline of the ICC is jurisdiction, which is therefore the theme and focus of this thesis. Research on relevant issues is made in five chapters.Chapter One: The Birth of the ICC. Two issues are discussed in this chapter. 1. The establishment, jurisdiction and law application of the International Military Tribunal at Nuremberg; those of the International Military Tribunal for the Far East; those of the International Criminal Tribunal for the Former Yugoslavia and for Rwanda; and those of mixed national-international tribunals such as the East Timor's Panels for Serious Crimes, Sierra Leone's Special Court and Cambodian Extraordinary Chambers. 2. The deliberation and adoption of the Rome Statute, and the composition of the ICC.Chapter Two: The General Criminal Principles and Applicable Law of the ICC. Two issues are dealt with in this chapter. 1. Four principles stated in the Rome Statute, which are respectively the principle of nullum crimen sine lege, nulla poena sine lege, principle of individual criminal responsibility, principle of ne bis in idem and principle of presumption of innocence. 2. A hierarchy of the applicable law of the ICC is prescribed in the Rome Statute, which may be applied by the ICC in the following order: First, the Rome Statute, the Elements of Crimes and Rules of Procedure and Evidence of the ICC. Second, applicable treaties and the principles and rules of international law. Third, failing that, general principles of national laws of states with jurisdiction over the crime, provided that these principles are consistent with the Statute, international law, and internationally recognized norms and standards. In addition, the ICC may apply principles and rules of law as interpreted in its previous rulings. In any case, the application and interpretation of the law by the ICC must be consistent with internationally recognized human rights, and without any discrimination.Chapter Three: Crimes within the jurisdiction of the ICC. The ICC has jurisdiction over the crime of genocide, crimes against humanity, war crimes and the crime of aggression, whose evolution, definition and debates about the crimes within the jurisdiction of the ICC are dealt with. Since the crime of aggression has not been defined yet, Article 5(2) of the Rome Statute stipulates that the ICC shall have jurisdiction over the crime of aggression provided that a provision is adopted defining the crime and setting out the conditions under which the ICC shall exercise jurisdiction with respect to the crime. Such a provision shall be consistent with the relevant provisions of the UN Charter.Chapter Four: The jurisdiction of the ICC. Six issues are discussed in this chapter. 1. The international criminal jurisdiction principle, which comprises territory, nationality, protection, and universal jurisdictions. Though the universal jurisdiction has not yet received universal recognition, it is getting growing attention. 2.The complementarity principle, which means that while states have primary jurisdiction over the crimes within the jurisdiction of the ICC, the ICC may exercise the complementary jurisdiction where states lack the will or ability to genuinely perform their own jurisdiction, in order to bring perpetrators of the most serious international crimes to justice and without letting them go unpunished. 3. The sphere of validity of the ICC jurisdiction, which is composed of jurisdiction ratione temporis, jurisdiction ratione loci, jurisdiction ratione personae and jurisdiction rationae materiae. 4. The preconditions of the exercise of the ICC jurisdiction, which is states'consent. That is to say, the ICC may perform its complementary jurisdiction where the territorial state or the state of nationality of the accused is a state party or the state which has accepted the jurisdiction of the ICC with respect to the crime in question. As for cases involving a non-party state, the ICC has jurisdiction on condition that, firstly, a national of a non-party state has committed a crime on the territory of a state party or on that of a state which has accepted the ICC's jurisdiction, secondly, a national, either from a state party or a state which has accepted the ICC's jurisdiction, has committed a crime on the territory of a non-party state. The first situation has more influence on a non-party state. 5. The triggering mechanism of the ICC jurisdiction, which is carried out in three ways. A situation in which one or more crimes appears to have been committed, may be referred to the Prosecutor of the ICC by a state party, or, acting under Chapterâ…¦of the UN Charter, by the UN Security Council, or the Prosecutor of the ICC has initiated an investigation in respect of a crime. When discussing the referral by the Security Council, the relationship between the ICC and the Security Council is stressed. 6. Some cases are being dealt with by the ICC, of which, two cases are discussed. The one case, concerning the Lord's Resistance Army, is referred to the ICC Prosecutor by Uganda in 2003. It is the first referral to ICC since its birth by a state party. The other one, concerning Darfur, is referred by the Security Council in 2005, also a first referral by the UN institution.Chapter Five: A Prospect for the Judicial Cooperation between states and the ICC. Six issues are dealt with in this chapter. 1. The frailty of the international criminal judicial cooperation institutions, which is illustrated by the situation of the International Criminal Tribunal for the former Yugoslavia. 2. States parties'cooperative obligations with the ICC, which means that in accordance with the Rome Statute, states parties shall cooperate fully with the ICC in its investigation and prosecution of crimes within the jurisdiction of the ICC, and provide judicial assistance to the ICC. 3. Non-parties states'judicial cooperation with the ICC, which means that while non-parties shall perform their cooperative duty where the Security Council refers a situation to the ICC under Article 13(2) of the Rome Statute, they shall, in other cases, have no duty to cooperate with the ICC according to Vienna Convention on the Law of Treaties. Considering the importance of non-parties'cooperation when they are involved in cases, Article 87(5) of the Rome Statute prescribes: (a) The ICC may invite any non-party state to provide assistance under Part 9 on the basis of either an ad hoc arrangement or an agreement with such state, or any other appropriate basis. (b) Where a non-party state, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council. Except for particular occasions, the validity of the Rome Statute is only to states parties. For this reason, the non-parties'assistance to the ICC is based on their voluntary basis with the possibility of their refusal to cooperate with the ICC. 4. The obstacles in the cooperation between the ICC and states, which means that since the Statute's provisions concerning international judicial cooperation are riddled with exceptions and qualifications, the Rome Statute is lacking in any powerful enforcement mechanism on states that failed to cooperate. 5. American position on the ICC. American objections and reasons to the Rome Statute and its measures taken to resist the ICC are approached. 6. Chinese position on the ICC. Chinese objections to the Rome Statute and measures taken to protect its interests are discussed.