jurisdiction and admissabiility

Universal jurisdiction

ICC has potentially worldwide jurisdiction. 125 member states, if someone from one of these states or a crime is committed on the territory of one of these states, the ICC can prosecute

A state can prosecute an individual for an alleged breach of international criminal law where they have no link with the alleged victim, the state, or the crime.

Certain crimes are so heinous, they impact all humanity, Eg genocide, etc

Originally came from slavery/ piracy, committed on the high seas. Every state should have the right to prosecute.

 

Eichmann - 1961

Involved in Holocaust and fled to Argentina after WW2. Watched for years by Mossad (Israeli special forces), who decided they would catch and persecute him. They drugged, captured and brought him to Israel to be tried for war crimes committed in Germany.

The basis of Israel’s claim of jurisdiction over Eichmann was a domestic Israeli law (the Nazis and Nazi Collaborators Punishment Law) that gave the court's jurisdiction over perpetrators of “crimes against the Jewish people” regardless of territoriality or nationality of the victim or perpetrator.

Argentina filed a complaint, ICC said Israel should not have done this, as it was illegal. The trial went ahead anyway leaving some states unhappy.

 

Pinochet

o   Chilean dictator visiting the UK in 1998, dictator from 1973-1990. Huge amount of people died during his reign, torture and other international crimes committed during his regime.

o   While he was in the UK a Spanish judge wanted to extradite him from the UK to Spain to be tried for crimes of torture.

o   Legally UK should've been allowed to do this under torture convention, universal jurisdiction. The HoL said yes

o   Foreign secretary overruled this decision and claimed it would cause major problems for the UK, said Pinochet was suffering from ill-health

o   He went home from the UK, never faced consequences for his torture

Problems with UJ

Diplomatic Immunity

§  Yerodia case (2002, ICJ)

§  UJ shouldn't apply if you have diplomatic immunity

Selective

Political

Generally, States drawing back from UJ

Crimes within the jurisdiction of the court

o   ICC compliments/works alongside domestic law

o   ICC has jurisdiction over ‘the most serious crimes of international concern’:

§  CAH, WC, Genocide, Aggression

o   Definitions of these crimes are to be ‘strictly construed and shall not be extended by analogy’ (Art 22(2))

§  No room for judicial creativity or give the court free will to prosecute other crimes e.g. court cannot decide to start prosecuting drug trafficking

o   Definitions must be read in light of general principles on liability, defences, and Elements of Crimes

• Crimes not within the jurisdiction of the court

Crimes may be added to jurisdiction by amending Statute – Art 121

• Not easy to amend statute

• You could not add another crime for 7 years since enactment (since passed)

• Must make a proposal to secretary general of UN

• All 125 states must then have a consensus. If there is no consensus, two third majority is accepted. New law will be enacted in state law in all the member states who accepted the new amendments, 1 year after acceptance.

• Articles 5-8 do not have to be accepted by all states; they can opt out of new amendments.

• 4 different amendments have been made to the war crimes article

  • e.g. biological weapons, blinding lasers, use of weapons which leave fragments in the body which are undetected by x-ray [2017] , and use of starvation as a weapon of war [2019].

• States Parties do not have to accept the jurisdiction of the Court for any additional crimes in relation to their own nationals or crimes committed on their own territory if they do not wish to do so (Art 121(5))

• Discussions around Ecocide being added to the Rome Statute.

• Trigger mechanisms

3 ways in which the court is required to act:

A. Referral by State Party

·      Can be a state referring themselves or a group of states filing a complaint about another state e.g. DRC, Uganda, Palestine

·      Challenge - States could supply biased evidence or perhaps no evidence at all, difficult to make a case.

B. Referral by Security Council

·      15 MS in SC, permanent 5 can veto referral. This veto can cause problems. 2 situations where security council has made a referral, e.g. Libya, Darfur

C. Proprio motu powers of Prosecutor

·      Of the ICC’s own initiative e.g. Kenya, Georgia, Afghanistan

·      States may question the prosecutor being able to prosecute them for crimes.

Article 12(3) of Rome statute

allows a State not party to the Rome Statute to declare that it accepts the jurisdiction of the Court with respect to the crime in question (ad hoc acceptance of jurisdiction)

§  An acceptance of the jurisdiction of the ICC under Article 12(3) by a State not party to the Statute extends the territorial and personal jurisdiction of the Court

§  Examples:

·      Ukraine

·      Ivory Coast

·      Palestine

American Service-Members' Protection Act

known informally as the ‘Hague Invasion Act’ (enacted August 2, 2002) is a United States federal law described as ‘a bill to protect United States military personnel and other elected and appointed officials of the United States government against criminal prosecution by an international criminal court to which the United States is not party’.

US can invade the Netherlands to claim back their nationals which are being prosecuted.

Persons over 18

o   The ICC’s jurisdiction is limited to persons over the age of 18 at the time the alleged offence was committed

Deferral of investigation of prosecution- article 16

No investigation or prosecution may be commenced or proceeded with under the Statute for a period of 12 months after the Security Council has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

Enforcement of police decisions

o   Part 9 of Statute requires SPs to co-operate with the Court in providing various forms of assistance such as taking of evidence and tracing of assets

o   ICC is hugely reliant on cooperation as they do not have their own police force.

Admissibility

o   Not all crimes within the jurisdiction of the ICC and committed in relevant States will be prosecuted by the Court

o   The ICC was created to deal with very serious crimes

Grounds of inadmissibility - complimentarity

ICC complements national systems it does not replace them

complimentary means that National courts have priority to prosecute international crimes.

The ICC only steps in if they don’t do it properly.

§  ICC is a Court of Last Resort

§  Preamble recognises that every State has a responsibility to exercise its own jurisdiction over international crimes

§  Art 1 describes the Court as being complementary to national criminal jurisdictions

§  Art 17 incorporates the complementarity principle

ICC steps in if national courts fail, states should prosecute these crimes and they only step in if the state isn’t doing this genuinely

ICC steps for Complimentarity

Step One:

§  “Same Person / Same Conduct” Test - is the state investigating or prosecuting the same person for the same conduct?

Step Two:

§  Genuineness Test — Unwillingness or Inability

·      Unwilling (Article 17(2)) - ‘Shielding’, Unjustified Delay, Lack of Independence / Impartiality

a state is unwilling if it is pretending to prosecute but not actually delivering justice

·      Unable (Article 17(3)) - Total of Impartial Collapse of Domestic Judicial System. The State cannot obtain custody, evidence, or testimony due to instability or lack of territorial control.

this could be due to courts not functioning during war or chaos, or the state cannot arrest subjects, collect evidence, etc

Burden of proof:

§  When a State challenges admissibility, it bears the burden of proving that genuine national proceedings exist (Kenya Admissibility Decision, 2011).

§  The Prosecutor must demonstrate admissibility only when bringing a case without such a challenge

Amnesties and Truth and Reconciliation Commissions:

§  Statute does not address relationship between jurisdiction of the Court and non-judicial approaches to past atrocities

complementarity - key points

§  Complementarity = Deference + Scrutiny:

·      The ICC respects national systems, but only if their action is genuine.

§  Case-specific, not situation-wide:

·      Admissibility applies to cases, not entire situations.

§  Dynamic principle:

·      States can reclaim jurisdiction if they later demonstrate genuine national action (Article 19(10))

Impact of complementarity on state parties

§  States are encouraged to improve standards of investigations and trials in domestic systems

§  Western imperialist claims

Ne Bis in Idem

This principle protects a person from being tried before the ICC for conduct which has already been tried by the Court itself or by other courts in previous proceedings – Article 20

• Complementarity cases before the ICC

• lubanga - DRC 2006 - same person/same conduct, drc inactive

• Katanga DRC 2009 - unwilling/unable, admissible

• Kenya 2011 - domestic investigation must be concrete and not speculate

• Libya 2013 - contrasting admissibility outcomes for co-accused

• Afganistan 2020 - no genuine national proceedings admissible

• Philippines 2023 - insufficient domestic investigation, admissible

• Uganda 2005-present -self referral does not negate complementarity