State Jurisdiction and Proposed International Criminal Court: Complementarity

State jurisdiction and the International Criminal Court

International Criminal Court established

A United Nations diplomatic conference on the establishment of a permanent International Criminal Court was held in Rome, Italy in June-July 1998. The conference adopted a statute (the Rome Statute of the International Criminal Court 1998, [2002] ATS 15) for the establishment of such a court, which is located in The Hague, Netherlands. At the diplomatic conference, 120 states (including Australia) voted in favour of the adoption of the Rome Statute, seven states (Cuba, Iraq, Israel, People's Republic of China, Syria, USA and Yemen) voted against and 21 states abstained.

Jurisdiction and admissibility

The crimes within the jurisdiction of the International Criminal Court are genocide, crimes against humanity and war crimes (including offences committed in internal as well as international armed conflict). As a result of agreement reached at a Review Conference in 2010 (see below), the crime of aggression will be included in the Court's jurisdiction but not with effect until 2017.

With regard to the relationship between state jurisdiction and the jurisdiction of the International Criminal Court, the Rome Statute (paragraph 10 of the Preamble and article 1) provides that the jurisdiction of the International Criminal Court "shall be complementary to national criminal jurisdictions". A case is inadmissible in the International Criminal Court if the case is being genuinely investigated or prosecuted by a state which has jurisdiction over it: article 17 paragraph 1(a). If a case has been investigated by a state which has jurisdiction over it and the state has decided not to prosecute the person concerned, the case also is inadmissible in the International Criminal Court "unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute": article 17 paragraph 1(b).

The temporal jurisdiction of the International Criminal Court is limited to crimes committed after the entry into force of the Rome Statue (1 July 2002). See article 11(1). Further, in respect of crimes within its jurisdiction, the International Criminal Court does not have universal jurisdiction. The court may exercise jurisdiction (articles 12, 13) only if:

 the accused person is a national of a state party or a national of a state which otherwise has accepted the jurisdiction of the court;

 the crime was committed in the territory of a state party (which includes a vessel or aircraft registered in a state party) or in the territory of a state which otherwise has accepted the jurisdiction of the court; or

 the Security Council, acting under Chapter VII of the Charter of the United Nations, has referred the situation to the prosecutor of the Court (as occurred, for example, in 2005 in respect of the situation in the Darfur region of Sudan and in 2011 in respect of the situation in Libya).

Individual criminal responsibility and irrelevance of official capacity

Two relevant provisions of the Rome Statute should be noted:

Individual criminal responsibility (article 25)

In respect of crimes within the Court's jurisdiction, the Court has jurisdiction over "natural persons" (article 25 paragraph 1). Any person who commits a crime within the Court's jurisdiction "shall be individually responsible and liable for punishment" (article 25 paragraph 2). However, the provisions of the statute relating to individual criminal responsibility do not affect the responsibility of states under international law (article 25 paragraph 4). 2

Irrelevance of official capacity (article 27)

In the context of criminal proceedings in the Court, any immunity which might have barred the prosecution of the alleged offender in a national criminal jurisdiction is irrelevant. This general principle is set out explicitly in article 27 of the Rome Statute.

Article 27

Irrelevance of official capacity

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Rome Statute enters into force

On 11 April 2002, ten states simultaneously deposited instruments of ratification of the Rome Statute. This brought the total number of state ratifications to 66, exceeding the required minimum 60 state ratifications. Accordingly, the Rome Statute entered into force on 1 July 2002: see Sadat, “The International Criminal Court treaty enters into force”, ASIL Insights, April 2002, http://www.asil.org/insights.htm. In this article, Professor Sadat observes:

The ICC will have jurisdiction over the crimes of genocide, war crimes and crimes against humanity committed after July 1, 2002, but only insofar as those crimes rise to the level of “crimes of concern to the international community as a whole”. Moreover, in each case, the Statute’s complex jurisdictional and complementarity regimes, which limit the conditions under which cases may be referred to the Court and be decided by it, must be satisfied. In particular, the Court may act only when national systems are unable or unwilling to carry out investigations or prosecutions of the crimes within the Court’s jurisdiction. Thus, even after establishment of the International Criminal Court, States will remain primarily responsible for the investigation and prosecution of international crimes.

On 6 May 2002, the United States announced that it did not intend to become a party to the Rome Statute. The United States’ objections to the Rome Statute include the perceived lack of an effective mechanism to prevent politically motivated prosecutions of members of the United States armed forces and United States officials: see Bradley, “US announces intent not to ratify International Criminal Court treaty”, ASIL Insights, May 2002, http://www.asil.org/insights.htm.

The Rome Statute, although not binding on the United States, confers jurisdiction on the International Criminal Court over nationals of non-party states if the relevant crime was committed in the territory of a party state. See article 12.

Australia ratifies the Rome Statute

Australia ratified the Rome Statute on 1 July 2002 and the Rome Statute entered into force for Australia on 1 September 2002. The International Criminal Court Act 2002 (Com) provides the necessary statutory basis in Australian law for compliance by Australia with its obligation under the Rome Statute to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court” (article 86). This cooperation might take the form, for example, of the arrest of a person in Australia and the surrender of that person to the International Criminal Court. 3

The principle of complementarity is embodied in the International Criminal Court Act 2002 (Com) which provides in s 3(2): “this Act does not affect the primacy of Australia’s right to exercise its jurisdiction with respect to crimes within the jurisdiction of the ICC”.

The International Criminal Court (Consequential Amendments) Act 2002 (Com) amended the Criminal Code Act 1995 (Com) to create as offences under Australian law the crimes within the jurisdiction of the International Criminal Court: see Criminal Code Act 1995 (Com) Division 268 (“Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court”). In Division 268, s 268.1 (“Purpose of the Division”) provides as follows:

(2) It is the Parliament’s intention that the jurisdiction of the International Criminal Court is to be complementary to the jurisdiction of Australia with respect to offences in this Division that are also crimes within the jurisdiction of that Court.

(3) Accordingly, the International Criminal Court Act 2002 does not affect the primacy of Australia’s right to exercise its jurisdiction with respect to offences created by this Division that are also crimes within the jurisdiction of the International Criminal Court.

Rome Statute amended

At a Review Conference (Assembly of States Parties) held in Kampala, Uganda in May-June 2010, the States Parties amended the Rome Statute to include a definition of the crime of aggression and provisions for the activation of the jurisdiction of the International Criminal Court (but not before 1 January 2017) in respect of that crime. See Scheffer, “States parties approve new crimes for International Criminal Court”, ASIL Insights, June 2010, http://www.asil.org/insights.htm As Professor Sheffer (former United States Ambassador at Large for War Crimes Issues) observes:

The Review Conference of the Rome Statute of the International Criminal Court...achieved a historic milestone in the development of international criminal law. For the first time since the Nuremberg and Tokyo military tribunals following World War II, the prospect now exists that individual leaders who plan and launch military aggression will be held accountable before an international court of law. ...

The complexity and ambiguity of what was accomplished in Kampala will take considerable time and, ultimately, ICC jurisprudence to sort out. But we should not lose sight of how significant these amendments to the Rome Statute are in the long reach of history. Their value as both a deterrent to aggression and as an instrument of accountability, though they will remain untested for several years, should not be underestimated.

The new text inserted in the Rome Statute is as follows:

Article 8 bis

Crime of aggression

1. For the purpose of this Statute, “crime of aggression” means the 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.

2. For the purpose of paragraph 1, “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, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: 4

a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; c) The blockade of the ports or coasts of a State by the armed forces of another State; d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; e) 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; f) 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; g) 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.

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