JURISDICTION OF INTERNATIONAL CRIMINAL COURT UNDER ROME STATUTE

Introduction

The International Criminal Court (hereinafter referred to as ICC) is a permanent institution established by the Rome Statute of International Criminal Court (hereinafter referred to as Rome Statute) by a Conference of 120 States on 17 July 1998. The Rome Statute entered into force on 1^st July 2002.

For the first time, United Nations General Assembly (UNGA) recognised in its Resolution 260 (III) of 1948, the possibility of establishment of International judicial forum for trial of certain crimes under international law. International Law Commission (ILC) was requested to study “the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide . . .”

Commission, as a result prepared the first draft of the Statute in 1951 and revised draft in 1953. However, the consideration of the draft statute was postponed as no consensus could be reached on the definition of ‘aggression’ under the statute. Since then, the establishment of an ICC has been considered periodically in 1989, 1993, 1994, 1995, 1996-1998. These endeavours ultimately culminated in the formulation of the Rome Statute.

The Preamble of the Rome Statute highlights the purposes of the ICC.  The Preamble of the Rome Statute sets out that “most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation”. It has been clearly provided in the Preamble of the Rome Statute that the ICC is not meant to replace criminal jurisdiction of the National Courts, but shall be complementary to the national jurisdiction.

Till now, 125 countries have accepted the jurisdiction of the ICC. However, it is worth noting here that India has signed but not has ratified the Rome Statute and therefore, India is not bound by the jurisdiction of the ICC. India has chosen not to ratify the Rome Statute on the ground of issues related to sovereignty, selective justice and judicial overreach.

The Second World War was marked with heinous crimes committed by all the parties to the war. The humanity suffered brutally during this period which raised the question of punishment of those who were involved in such crimes. As a consequence, two Tribunals were constituted to punish the criminals on the basis of the individual criminality: Nuremberg Tribunal, to punish German soldiers and officials involved in such crimes and Tokyo Tribunal, to punish Japanese soldiers and officials involved in such crimes. However, the result of both the Trials is sometimes termed as ‘unconscionable’ and is referred to as ‘Victor’s Justice’. Other ad hoc Tribunals which have been established for punishing the criminals of crime of ‘genocide’ includes International Criminal Tribunal for Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR).

However, these Tribunals had a limited mandate and were not permanent. These were established as a consequence of violations which occurred under specific situations. For instance, to punish crimes committed during second world war. There was no permanent forum to address the serious crimes committed against the international world .

Therefore, the need of a permanent Court to prosecute, on the basis of the principle of individual criminality, the serious violations of international laws arose. The objects of establishing ICC includes: to achieve justice for all, to end impunity, to help end conflict, to remedy deficiencies of ad hoc tribunals, to take over when national jurisdiction unable or unwilling to act and to deter future law criminals.

 Article 3 of the Rome Statute provides that seat of the Court shall be established at the Hague in the Netherlands. Article 4 of the Rome Statute provides that the Court shall have an international legal personality.

Jurisdiction of the Court and admissibility of the case

Part 2 of the Rome statute provides for jurisdiction, admissibility and applicable law. It consists of Article 5 to 21. To decide whether a case is eligible to be taken up and decided by the ICC, the situation is to be measured on three grounds:

Jurisdictional ground

Article 5 to 16 of the Rome Statute, basically deals with this ground. The jurisdiction can be based on these grounds:

i. Subject matter jurisdiction or Rationae materiae (Article 5)-

Article 5 of the Rome Statute provides that ICC has jurisdiction over following crimes:

a. Crime of genocide (Article 6): Article 6 of the Rome Statute defines ‘genocide’. It enumerates five acts which, if committed with the intent to destroy, in whole or in part, a national, ethnical, racial or a religious group, would be called as ‘genocide’.

Therefore, it can be noted that the definition of genocide recognizes genocide based on five groups: national (based on nationality of person that is the nation from which he/she belongs), ethnical (based on shared culture and tradition), racial (based on race) and religious (based on the religion). Sometimes this division is criticized because of its limited scope.

The acts include: killing or causing bodily or mental harm to the members of the group (causing serious and grave injury to the members) or deliberately inflicting upon the group conditions of life calculated to bring about its physical destruction in whole or in part (such as keeping them without food or water, or in an unhygienic living conditions, etc.), imposing measures intended to prevent birth within the groups (imposing conditions to curb scope of biological reproduction in the group for instance, ensuring no contact between males and females belonging to a particular group), or forcibly transferring children from one group to another (so that those children lose their own cultural identity thus contributing to destruction of the identity of the group slowly and gradually).

Some of the instances of horrible genocide include: genocides committed by Nazis during second world war against Jews, Rwandan genocide carried on by Hutus against Tutsis during Rwandan civil war (1994).

Recent instances include Gaza genocide where Israel is destroying the Palestinian people which started in 2023 and Rohingya genocide in Myanmar being committed from 2016 and is still continuing.

b. Crime against humanity (Article 7): Crime against humanity means commission of any of the acts enumerated under Article 7, as a part of widespread or systematic attack directed against civilian population.

Such acts include, murder, extermination, enslavement, deportation or forcible transfer, torture, rape, apartheid, etc.

c. War crimes (Article 8): Under the Rome Statute, ‘war crimes’ has been provided with the lengthiest definition amongst all the crimes and is the oldest one, which existed as a customary international law.

These acts have been divided into four categories (two related international armed conflict and two related to non-international armed conflict):

• Grave breaches of the Geneva Conventions of 12 August 1949 (acts such as wilful killing, torture or inhuman treatment, including biological experiments, etc.)
• Other serious violations of laws and customs applicable in international armed conflict (acts such as Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities, intentionally directing attacks against civilian objects, that is, objects which are not military objectives, etc.)
• Serious violation of common article 3 of the four Geneva conventions (acts such as violence to life and persons, committing outrages upon personal dignity, taking of hostages, etc.)
• Other serious violations of laws and customs applicable in non-international armed conflict (acts such as Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities, pillaging a town or place, even when taken by assault, etc.)

d. Crime against aggression (Article 8 bis): when the Rome Statute entered into force in 2002, the crime of aggression was left undefined by the parties because no consensus was reached on its definition.

Therefore, definition of aggression was inserted through an amendment by resolution RC/Res.6 of 11 June 2010.

The crimes of ‘aggression’ mean planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

Act of aggression means 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. Any of the following acts, regardless of a declaration of war

The Article further enumerates seven acts which a State does upon another State to be considered as an ‘act of aggression’ such as:

• invasion or attack or military occupation or annexation by use of force.
• bombardment or use of weapon
• blockade of the ports or coasts
• attack on land, sea, air forces or marine and air fleets of another state.
• the use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement.
• The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
• The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

ii. Temporal jurisdiction or Jurisdiction ratione temporis and ad hoc jurisdiction

The term ratione temporis is a Latin word which means ‘by reason of time’. Article 11 of the Rome Statute clarifies that the Court has jurisdiction only with respect of the crimes committed after the entry into force of the Rome Statute. The Rome Statute entered into force on 1^st July 2002.

If a state becomes party to the Rome Statute, then the ICC can exercise jurisdiction only over those crimes which has occurred after the Rome Statute entered into force for that State.

iii. Ad hoc jurisdiction

Article 12, para 3 of the Rome statute provides that a State even if not a party to the Rome Statute, can accept its jurisdiction through the declaration  as provided under the article.   

iv. Preconditions to exercise the jurisdiction by ICC and referral (territorial jurisdiction or rationae loci and personal jurisdiction or rationae personae):

Article 11 of the Rome Statute provides that a State accepts the jurisdiction of the ICC once it becomes party to the Rome Statute.  [Article 11(1)]

Further, when a situation is referred to the ICC by any of the State parties, or by the Security Council acting under Chapter VII of the United Nations Charter, or the Prosecutor has initiated the investigation of such crime in accordance with Article 15 [Article 12(3)], the ICC may exercise jurisdiction over such situation if one or more of the following states are party to the Statute or has accepted its jurisdiction as per Article 12 [Article 11(2)]:

1. The State on whose territory the conduct in question occurred or it has occurred on a board, vessel or an aircraft, the state of registration of that vessel or aircraft- This para provides for ratione locijurisdiction of the ICC. Under this general principle, the Court may exercise jurisdiction regardless of the nationality of the accused.
2. The State of which the accused person is a national (rationae personae)- There is an exception to this jurisdiction. Article 26 of the Rome Statute provides that the Court cannot exercise jurisdiction over a person who was under 18 years of the age while the alleged act was committed.

Admissibility ground

Even if the ICC has jurisdiction over a matter based on above mentioned rules, it will still test the situation on the basis of admissibility. Under this test it is decided that whether the matter which falls within the jurisdiction of the ICC should be litigated before it or not.

Article 17 to 20 of the Rome Statute deals with the admissibility test.

There are two components of admissibility:

i. Complementarity principle: As reaffirmed under Para 4 and 10 of the Preamble and Article 1 of the Rome Statute, the jurisdiction of ICC is complementary to that of the National Jurisdiction.

The ICC can admit a situation only when the National Court is unwilling or unable genuinely (Article 17) to investigate the matter or prosecute the accused as ICC is a kind of last resort for that purpose.

To determine unwillingness of a State, various factors are to be considered such as: proceedings undertaken in a manner to shield the accused, there is an unjustified delay in the proceedings or the proceedings were not conducted independently or impartially with intention not to bring the accused to the justice. [Article 17 (2)(a)-(c)]

To determine inability, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings. [Article 17(3)]

ii. Gravity threshold- The case is inadmissible if it lacks sufficient gravity to justify further action by the Court. [Article 17 (1)(d)]

Further Article 18 of the Rome Statute deals with the preliminary rules regarding admissibility.

Article 19 deals with the challenges to the jurisdiction of the Court or admissibility of the case. A suspect, a state with jurisdiction over a case or a state from which acceptance of jurisdiction is required under section 12 or the Court in reviewing the issue of admissibility on its own initiative may challenge the jurisdiction or the admissibility.

Article 20 provides for the rule of ne bis in idem which is a principle of double jeopardy (no one can be tried or punished twice for the same offence).

Interest of justice

Interest of justice is the third ground which is to be considered while determining whether the Court is going to deal with a case or not. Article 53 (1)(c) provides that “Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice”. A case will only be investigated if it serves the interest of justice.

Conclusion

ICC is the first of its kind institution as, for the first time, a permanent institution was established to deal with the serious crimes against international world, that too based on the principle of individual responsibility. Earlier, there were institutions and laws dealing with the responsibility of States. However, a crime cannot be stopped unless the individuals behind such crimes are punished irrespective of their capacity and status. Rome Statute provides for the punishment of individuals, whether he is an officer of high rank or a low rank officer.

Therefore, ICC has played a very vital role till now in punishing the high officials and commanders behind the serious crimes.

This Article is written by Astha Priya.

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