Complexity

The jurisdiction of ICC is a complex jurisdiction if view it at the angle of functional jurisdiction. The complexity of jurisdiction means that ICC has a complex jurisdiction in investigation, prosecution and trial of the cases. This kind of complexity of jurisdiction is fixed by the inherent specific characteristics in organization and functions of ICC it differ from a national court which exercise specially the power on trial, so that jurisdiction of national court is a unitary jurisdiction of trial. ICC as a comprehensive international criminal judiciary include the office of Prosecutor, namely the officers of ICC include judges and prosecutor, and combine the jurisdictions of investigation, prosecution and trial in a same system of ICC. That means ICC not only exercise the power of trial, but also exercise the powers of investigation and prosecution over the criminal cases within the jurisdiction of ICC. The powers to initiate investigation proprio motu and prosecution be exercised by Prosecutor but shall be restricted by the Pre-Trial Chamber and the Security Council of United Nations.[1]

Rome Statute empower the Prosecutor to initiate investigation proprio motu on the basis of information on crimes within the jurisdiction of the Court. The Prosecutor exercises the power to initiate investigation proprio motu, that is one of three situations for exercise of jurisdiction of ICC, mainly applicable at stage of preliminary examination of the information on crimes in order to analyses the information and receive written or oral testimony on crimes. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for and obtain authorization of an investigation. The Prosecutor’s power to initiate investigation proprio motu raised many doubts in some states. on one hand, they are worry about that the Prosecutor have to face a numbers of complain from individuals and NGO and have to make a lot of political decisions, so that place his/herself in midst of political whirlpool involuntarily with the results that hard to keep his/her independence and justice as well as the Prosecutor or ICC could be a tool to interfere the internal affair of States because its superpower.[2] On other hand, the Prosecutor exercises its power to initiate investigation that depend on completely efficient cooperation of relevant States and necessary support of relevant international institutions, because ICC have no any international police to assist the investigation of the cases.

We shall pay attention on a relevant issue with the complex jurisdiction that the Security Council of UN have power to restrict ICC exercise its jurisdiction at the stages of investigation and prosecution on the cases. No investigation or prosecution may be commenced or proceeded with under Rome Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by Council under the same conditions, according to Article 16 of the Statute. As a treaty-based independent international judicial institution, the ICC is not subordinated to the UN, nor established and managed by the Security Council.[3] The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to the Statute and thereafter concluded by the President of the Court on its behalf. There was a opinion, in the course of discussion on the draft of the Statute, it advocates that the prosecution of a case should be approved by the Security Council, it means that the Statute should empower the Security Council a veto power over the cases. This opinion was opposed by the most representatives of States and was not adopted at the Rome Assembly of Diplomats in 1998, but the article 16 is a compromise result of different opinions.

Complementarity

The jurisdiction of the ICC is a Complementary jurisdiction if view it at the angle of the aim of jurisdiction. The preamble and article 1 of the Statute both emphasizing that ICC established under this Statute shall be complementary to national criminal jurisdictions, thereby the principle of jurisdictional complementarity of ICC was established. Under the principle of complementarity, the ICC will not investigate or prosecute if a State Party is already investigating or prosecuting the same case. The ICC only exercise its jurisdiction and intervene in cases where national courts are unable or unwilling to initiate or conduct their own proceedings.[4] This principle of complementarity reflects that the aim to exercise jurisdiction of ICC is making good omissions and deficiencies to prevent the criminals succeed in escaping punishment according to the Statute, rather than taking every prosecution and trial over the crimes of genocide, against humanity, aggression and war crimes.

The principle of complementarity is not only applicable to States Parties but also applicable to non-States Parties which have jurisdictions to the crimes referred to in article 5 of the Statute, where the crime has been committed by a citizen of a State party in territory of a non-State Party, or the crime has been committed by a citizen of a non-State Party in territory of a State Party.

This complementary jurisdiction based on concurrent jurisdiction of national courts and ICC differs greatly from prior jurisdiction of International Criminal Tribunal for Former Yugoslavia based on concurrent jurisdiction of national courts and ICTFY.[5] Some scholars admired the stipulations and practice of the absolute prior jurisdiction of ICTFY[6] and some scholars criticized the obsoleteness and conservativeness of the complementary jurisdiction of ICC.[7]

The Rome Statute did not carry forward the stipulation of the prior jurisdiction in the Statute of ICTFY and instead with the stipulation of complementary jurisdiction. The inherent cause is that the scale of the jurisdictions of ICTFY, which as a non-permanent international judicial institution established by the Security Council, is very limited in territory, crimes and duration. The prior jurisdiction of ICTFY has no an extensive and protracted influence to the national criminal jurisdictions. As a treaty-based permanent international criminal judicial institution, the ICC has been accepted extensively by the States Parties. The jurisdiction of ICC has a protracted and extensive influence to the jurisdictions of many States and its exercise. So it shall be considered fully to respect the criminal jurisdictions of States Parties. That absolute prior jurisdiction override on the criminal jurisdictions of States is hard to be accepted by most States. It is a wise option to emphasize that the ICC shall be complementary to national criminal jurisdiction, it promotes most States signed the Statute and will encourages more States ratify the Statute.

A precondition is that States have jurisdictions over the crimes referred to in article 5. It means that a State shall have relevant criminal legislation against those crimes, or explicit stipulate that national courts may exercise jurisdictions over the crimes as referred to in the Statute, or accept directly the Statute as an internal law.

Limitedness

The jurisdiction of ICC is a limited jurisdiction in ratione personae, ratione loci, ratione temporis and ratione materiae, rather than a universal jurisdiction. It does not means that ICC may exercises its jurisdiction to any person who committed any crime at any place.

First, in jurisdiction of ratione loci, the jurisdiction of ICC is limited in principle over the territories of States Parties and the vessels and aircraft registered in States Parties, unless that the crime was committed by a national of a State Party or a non-State Party has made a declaration or special agreement to accept the exercise of jurisdiction by the ICC with respect to the crime.[8]

Secondly, in jurisdiction of ratione personae, the ICC shall exercises its jurisdiction only in principle over natural persons who are nationals of States Parties, unless that a national of a non-State Party committed the crime in territory of a State Party or a non-State Party has made a declaration or special agreement to accept the exercise of jurisdiction by the ICC with respect to the crime. The Court shall have no jurisdiction over any person who under the age of 18 at the time of the alleged commission of a crime. The Statute established clearly the general principle of individual criminal responsibility, so that excluded the ability of prosecute a corporation or State with criminal responsibility.

Thirdly, in jurisdiction of ratione temporis, the jurisdiction of ICC has no retroactive effect:

1. The ICC has jurisdiction only with respect to crimes committed after the entry into force of the Statute;

2. No person shall be criminally responsible under the Statute for conduct prior to the entry into force of the Statute;

3. If a State becomes a Party to the Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of the Statute for that State, unless that State has made a declaration to accept the exercise of jurisdiction by the Court with respect to the crime in question.

The principle of non-retroactivity established under the Statute shows that the jurisdiction of ICC not only differs from the retroactive jurisdiction of ratione materiae of the International Military Tribunal at Nuremberg and the International Military Tribunal for Far East Tokyo, but also differs from the retroactive jurisdiction of ratione temporis of ICTFY and the International Criminal Tribunal for Rwanda.

Finally, in jurisdiction of ratione materiae, the ICC shall exercise its jurisdiction only over the four most serious crimes of international concern as referred to the Rome Statute, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression. The ICC have no jurisdiction over other serious international crimes such as the crimes of terrorism, drug crimes, even though those crimes were committed in territories of States Parties or by the nationals of States Parties.

Implied expansibility

The jurisdiction of ICC has an implied expansibility in the mechanism of trigger to exercise its jurisdiction, because the stipulation on exercise of jurisdiction is not explicit so that to leave a room for some expansible interpretations on the stipulation.

Under article 13, (b), the ICC may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of the Statute if a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under chapter VII of the Charter of the United Nations. Key point is that whether the situation referred is only limited to the crimes committed in territories of States Parties or by the nationals of States Parties? Some scholars from Canada believe that “when the Security Council refers a situation to the Court, the Prosecutor may investigate and prosecute crimes that were committed on the territory, or by the nationals, of non-States Parties, and the Court will have jurisdiction over such matters.”[9] It seems the jurisdiction of ratione personae and ratione loci of ICC may expand to any person and any territory in the world. But I don’t think it is a logical inference from article 13 of the Statute. There are two points shall be discussed here:

1. The relation of article 12 and article 13 of the Statute

Article 12 is a stipulation of “ Preconditions to the exercise of jurisdiction ”and article 13 is a stipulation of “ Exercise of jurisdiction ”, thus a logical relation between article 12 and article 13 is obviously that the essential prerequisite of application of article 13 is according with article12. Under article 12, the ICC may exercise its jurisdiction over the nationals and territories of States Parties; ICC have no jurisdiction to the crimes committed by nationals of non-States Parties in territories of non-States Parties, unless that non-State Party have accepted the jurisdiction of the Court by declaration lodged with the Registrar.

2. The power of interpretation of Rome Statute

Whether article 13 (b) shall be interpreted expansively? That concerns the issue on the power to interpretation of the Statute. There is no a explicit stipulation of right to interpretation under Rome Statute, most similar clause closer to right of interpretation is article 119 regards “Settlement of disputes”: any dispute concerning the judicial function of the Court shall be settled by the decision of the Court; any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendation on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court.

This is a significant issue concerning any State and any person if article 13 (b) shall be interpreted expansively as that ICC shall exercise its jurisdiction to any non-State Party and its nationals. So people have every reason to expect the Assembly of States Parties make a explicit stipulation in future Amendment of Rome Statute.

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* A paper for International Seminar on Major Issues Relating to the International Criminal Court (Feb.2003)

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[1] See Article 15 and article 16, the Rome Statute of ICC

[2] See Lin Xin edited: Research on the Issues of International Criminal Law. Publishing House of ChinaRenminUniversity (2000), P.254.

[3] See Zhao Binzhi & Wang Xiumei translated: Manual for the Ratification and Implementation of the Rome Statute. CITIC Publishing House (2002), P.2.

[4] The key point to the exercise of jurisdiction lies in that the Court shall determine fairly and accurately the “unwillingness” or “inability” in a particular case.

[5] Article 9 of the Statute of ICTFY:“Concurrent jurisdiction: 1.The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991. 2. The International Tribunal shall have primacy over national courts. At any stages of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal.”

[6] See Ma Chengyuan: International Crimes and Responsibility. Publishing House of China University of Politics and Law (2001), P. 316; also see Wang Xiumei: Research on the issues of ICC. Publishing House of ChinaRenminUniversity (2002), P. 39.

[7] Bartram S. Brown, U.S. Objections to the Statute of ICC: A Brief Response, N.Y.U. Journal of International Law and Politics, Vol. 31, No. 4, (1999).

[8] See article 4 and article 12 of the Statute.

[9] Zhao Bingzhi & Wang Xiumei translated: International Criminal Court: Manual for the Ratification and Implementation of the Rome Statute. CITIC Publishing House (2002), P.180.