Study On The Implementing Legislation Of The Rome Statute

As the most sophisticated international criminal code, the Rome Statute has been put into practice through judicial activities of the ICC and judicial cooperation from contracting states. Also, many contracting states, especially those from the EU, have enacted their national implementing legislations. These legislations have come into force for over ten years, the investigation and analysis of them is necessary for their improvement and instructive for other states’ possible legislations. On this basis, the present paper intends to provide a comprehensive research on the basic issues in relation to national implementing legislation of the Rome Statute from a main perspective of the EU states.The present paper consists of introduction, the text of five chapters and epilogue.The introduction firstly briefs the background of the research, then the thesis and perspective is elaborated, which is the issue of national implementing legislations from the main perspective of the EU states, especially those challenges from domestic law and relevant solutions for the party states of the Rome Statute. Meanwhile, some key terms and their abbreviations are defined. Second, the research status of the thesis in both China and foreign states are summarized, which draws forth the meanings of this research, i.e. to grasp the status of existing legislations, to enlighten future legislations and to enrich the theory about the application of criminal treaties. The approach taken by this paper:from the general to the specific, first describing the main forms of national implementing legislation and the advantages and defects thereof in general before coming to the analysis of the actual legal questions involved through the study of the legislations of the EU states with a purpose of offering reference for similar problems that other states may encounter. By the empirical, comparative and historical analysis, this paper provides a deep study of the basic issues of the national implementing legislation, reveals the general methods and fundamental differences between the civil law and common law states on questions such as the model of implementing legislation and the triggering mechanism of universal jurisdiction.Chapter1provides an outline of the Rome Statute, particularly its making process, norm system and ratification status. Firstly, the thought of the statute can be traced back to the middle of the19th century when the development of international humanitarian law brought the demand for international prosecution of the grave breach of laws and regulations of war, however the complicated international politics and capricious international relations suppressed the materialization of international criminal law. The post-World War Ⅱ trials in Nuremberg and Tokyo greatly promote the process international criminal legislation, the UN Genocide Convention and other treaties hence came into being and the international society once again took the idea of establishing a permanent international criminal court and drafting its code seriously. Nevertheless, the start of the cold war saw the halt of the making of the statute once more. With the end of the cold war in1989, the UN reopened the agenda of establishing the ICC, and nearly ten years’effort made the dream come true:the Rome Statute was finally passed in June,1998at the Rome diplomatic conference. Secondly, the Rome Statute is a unified system of norms from the perspective of its legislation structure, including the institutional norms, substantial norms and procedural norms in relation to the ICC and its judicial activity. Among them, the institutional norms are mainly about the composition of the ICC and its relations with other international organizations, which are necessary for the establishment of an independent international criminal court and the assuring of justice. The substantial norms stipulate the jurisdiction of the ICC, the definitions of core crimes, general legal principles and punishment. The procedural norms provide rules for the investigation, prosecution, trial, enforcement and judicial cooperation relating to the ICC. Thirdly, as regards its ratification, the Rome Statute has been accepted by122states on the one hand, but on the other hand, three permanent members of the UNSC, namely, China, the US and Russia, and India have not ratified the statute and therefore almost one half of the population of the whole world remains outside of the jurisdiction of the ICC, which heavily damaged the universality of the statue and questioned the generality and fairness of the international criminal justice. So the future of the statute will depend largely on the change of the great powers’ attitude toward the ICC.Chapter2generally analyses the basic issues of the national implementing legislation of the Rome Statute, mainly including the definition, meaning and model of the national implementing legislation. The first section explains the meaning of the national implementing legislation from different point of view. From the standpoint of the ICC, the implementing legislation focuses on the cooperation, although it also gives consideration to the making and perfection of substantial norms. From the standpoint of the contracting states, the implementing legislation focuses on jurisdiction and substantial norms and cooperation legislation is the second goal. From the standpoint of the non-contracting states, the cooperation legislation is the only concern. This paper takes the main position of the contracting state while the ICC and the non-contracting state are also taken into consideration so as to make a full analysis of the specific issues and avoid unnecessary misunderstanding or objections. The second section explores the significance of the national implementing legislation. Firstly, it means the enrichment of national law that prevents and punishes international crimes, those who have abused the fundamental rights of individual, of the group and of the human beings as a whole will no longer slip away because of the lack of law. Secondly, it improves the national criminal law and enhances national criminal jurisdiction so as to maintain the judicial sovereignty. The third section discusses the model of national implementing legislation from the different respective of universal jurisdiction, core crimes and judicial cooperation. Some common practice and different characters can be found out with regard to the national implementing legislations involved.Chapter3discourses upon the first specific issue relating to national implementing legislation, namely the jurisdiction system and charges system required by the Rome Statute. The first section expounds the establishment and perfection of national criminal jurisdiction system for international crimes, discusses the statute stipulation of the complementary jurisdiction and national jurisdiction for the core crimes, especially the universal jurisdiction, and discusses the main practice of national criminal jurisdictions. The second section discusses genocide and the issue of its domestic legislation, including criminalization of genocide, the statute rules regulating genocide, three major legislation modes in different countries and their specific content. The third section expounds crimes against humanity and the issue of its domestic legislation, including the historic development of this crime, the statute rules regulating it and differences of legislation in different countries, namely the existence of the charges of crimes against humanity in domestic law, the regulating way and the specific contents of crimes against humanity in criminal law. The fourth section discusses war crimes and the issue of its domestic legislation, including the establishment of war crimes in international law, the statute rules regulating it and three major issues relating to different national legislations, namely the legislation mode, dualization of war crimes and its specific sphere of crimes.Chapter4expounds the second specific issue relating to national implementing legislation of the Rome Statute, i.e. the principles of international criminal law, especially the principle of command responsibility, principle of Ne Bis in Idem, principle of irrelevance of the official capacity and principle of non statute limitation. This paper dose a comprehensive analysis and exposition on statute provisions and national legislations about these principles and discovers that although there are mature and the detailed legal principles in national criminal legislations, states still have to bridge the gap between the domestic law and the Rome Statute.Chapter5discusses the last specific issue relating to national implementing legislation of the Rome Statute, i.e. the states’ duty to cooperate with the ICC. The first section presents a survey of the national implementing legislations on cooperation and highlights three issues in this regard, i.e. the cooperation legislation mode, the establishment of institutions and the recognition and privileges of the ICC. The second section analyses the national law of arresting and transferring of the accused from the contracting states to the ICC, the contracting states’procedural law, safeguard of the rights of the related personnel and the denial of the ICC’s requests. The third section studies the contracting states’ legislations on other forms of cooperation, analyses other kinds of request for cooperation that states may be confronted with. The fourth section explores the duty to cooperate with the ICC regarding the enforcement of judgments, analyses the national cooperation mechanism on enforcement, particularly the states’different attitudes toward the enforcement of imprisonment and that of fines and confiscation, the reasons for such a attitude division are also considered.The epilogue probes into national implementing legislation of the Rome Statute from China’s perspective. Firstly, China’s non-contracting party position and its reason are analyzed. Second, based on such a non-contracting party position, this paper determines three situations that the statute may apply to China and concludes that non-contracting parties, including China, are not totally beyond the influence of the statute. On this basis, this paper studies the foremost legislation task for China as regards the cooperation with the ICC, especially the establishment of the principle of cooperation in China’s law and the choice of cooperation legislation mode. Lastly, being convinced of China’s ratification of the statute in the future, the author holds the point that the research on national criminal legislations from the angle of the Rome Statute will be a long-term project.