Jurisdiction of the International Criminal Court and the admissibility of cases
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And this decision is such a case for me. In that paper, I analysed the approach taken to amnesties in a number of international tribunals, more particularly international criminal tribunals and proposed two findings which I think are relevant here:. Indeed, as a court founded on a criminal justice model, the ICC is for me quasi-ontologically incapable of considering mechanisms other than criminal law mechanisms. Whatever the political and societal benefits that one could see in some amnesties a position I personally share , the ICC is not a court of political legitimacy an assessment which the Judges are not equipped to make in any case.
I therefore believe it would take an extraordinary set of circumstances for an amnesty to ever be accepted by the ICC. This being said, in my chapter, I had mostly considered amnesties in an isolated manner, not in combination to other procedures, notably the actual conduct of a trial. But I do not think this changes my analysis. They are tasked with determining whether laws enacted by States are in conformity with international law or not. When you apply this to amnesties, it mean that when the issue comes before them, they have to determine to what extent such amnesty is relevant procedurally, not determine whether this amnesty was adopted in contravention to accepted international norms relating to the duty to prosecute.
More particularly, in the context of complementarity at the ICC, this means that the only thing that a Chamber needs to do is identify whether an amnesty is opposable to the Court in the context of an admissibility challenge. The advantage here was obvious: have international criminal judges stick to their function. Indeed, a strict finding that such amnesty is not procedurally relevant should require neither a determination that the amnesty was legally problematic neither a finding that the amnesty was politically illegitimate. As a consequence of this, I obviously think that the majority in the Libya decision followed the wrong methodology in assessing the amnesty that Gadafi might have benefited from.
They did not need to fill pages upon pages with other decisions that pronounced on the legality of similar amnesties, because that was not relevant for the admissibility assessment. Their job is to determine the content of law as a judicial organ, not comment on a hypothetical law formation process. But the judges themselves never explicitly situate themselves in such a discussion: they never even mention customary law except in quoted excerpts from other courts and tribunals and at no point conclude on the customary law status of the alleged prohibition of amnesties.
Rome Statute of the International Criminal Court: briefing | PMG
Instead, they use the very convenient trick of referring to Article 21 3 , which asks Judges to interpret the Statute consistently with internationally recognised human rights. However, this is flawed because the Judges are not technically interpreting anything here, let alone the Statute. They are pronouncing on the international legality of a domestic amnesty law.
I doubt this is the purpose of Article 21 3. The present article cannot pursue this thought any further, except for one point: the nature of the treaty bears on how the canonical rules of interpretation in Article 31 VCLT play out. Lowe himself contrasts dispositive treaties — those that, say, establish an international boundary — from those that established the European Union.
In this respect, the institutional provisions of the ICC Statute are akin to the constituent instrument of an international organization. Turning back to Article 17, decisions on admissibility by the Court are a central way through which the underlying structure of the legal order is given effect. With that in mind, we can turn to the VCLT. In some cases, the application of the VCLT to the ICC Statute will need to be modified by other rules of interpretation, particularly those that follow from the nature of the Statute as a criminal instrument.
In this jurisprudence, it is understandably assumed without argument that the term prosecution by the state refers to the domestic institutions of the state concerned. But that is only a starting point: the question remains whether prosecution by a regional tribunal may also be seen as prosecution by a state for the purposes of Article 17 1 a. To make the argument proposed in this article, it is helpful to first address what is happening legally — or structurally — when an individual is prosecuted before a regional or international tribunal. In simple terms, state parties to the treaty delegate their national criminal jurisdiction to the regional tribunal.
This account of the jurisdiction of international and regional tribunals is the most plausible way to understanding the basic legal structure in play. First, to understand the jurisdiction of international tribunals in this way is not to assert that there are no limits on the scope of that delegation.
Secondly, there is some indication, in practice, that international courts see themselves as autonomous or sui generis , and that this view is particularly relevant for the resolution of questions relating to immunity and amnesty.
These issues are not addressed herein — the current analysis focuses only on the interpretation of a particular provision of the ICC Statute. The basic legal structure is raised simply to emphasize the critical relationship between the jurisdiction of states and the jurisdiction of international tribunals — an emphasis that serves as background to the central interpretive claim that follows.
With this basic legal structure in mind, the suggestion that prosecution by a regional tribunal might be seen as prosecution by a state does not seem implausible. Indeed, if we approach the issue from another angle, it becomes clear that such an interpretation may, in a different context, make more sense as a matter of general international law. Imagine a regional treaty between all Latin American states. The tribunal starts to investigate and institutes criminal proceedings against a number of suspects. Imagine now that Peru, which is also a state party to the regional Latin American treaty, invokes the responsibility of Bolivia and Chile thereunder.
The basis of its objection is that neither state is complying with its obligation under Article 1 of the regional treaty: neither state is prosecuting crimes against humanity committed within its jurisdiction. To spell out the example is to see that it does not make much sense. As with the permissibility of collective responses, so it should be with understanding what constitutes compliance with the relevant obligation.
It does, however, show that from a different angle, a limited interpretation of the idea of prosecution by a state may sometimes make little sense. That forms the background to the argument of the next section: the interpretation proposed herein coheres with a contextual and purposive understanding of Article 17 1 a. To interpret the phrase under consideration, it is necessary to draw out two sides to the complementarity principle.
Here, though, we should be careful not to frame that underlying sovereignty as purely antagonistic to the role of the Court and international criminal law more broadly. But, in another sense, it is richer than that, in that it is or should be informed by recognition of the limitations of the ICC itself, both its design and operation, and of the difficulties inherent in the entire project of establishing a single institution that prosecutes crimes committed across the world.
So those are two sides of complementarity.
As to the first side of the principle, the sovereignty of the state, the interpretation proposed herein recognizes that the state may choose to exercise its jurisdiction by the delegation of powers to a regional tribunal. This choice is an exercise of state sovereignty. As to the second side of the principle, the role of the Court as one of last resort, there is the simple point that if a regional tribunal is genuinely exercising jurisdiction, there is no impunity gap.
Two may be mentioned. First, regional courts, and particularly those that are sub-regional or bilateral, are likely to be more connected to the sites of violence and the communities affected. To take the obvious example, the African Union has repeatedly registered its unhappiness with the Court. Regional complementarity, though not a panacea, might be a step in the right direction. What this analysis shows is that a contextualized and purposive interpretation of Article 17 1 a prompts the conclusion that a case being prosecuted in a regional tribunal should be seen as being prosecuted by the state.
In practice, the interpretation proposed herein simply brings regional tribunals into the existing framework established by the ICC Statute. Of course, the existence of another layer has the potential to raise additional questions as to the relationships between the institutions. In the longer term, depending on how both the ICC and new regional tribunals develop in law and practice, it may be necessary to reevaluate whether the principle of complementarity is appropriate to structure these relationships in every case. Complementarity is by no means the sole possible option. It is thus inadmissible before the ICC.
The literature includes references to classical complementarity, negative complementarity, positive complementarity, proactive complementarity, constructive complementarity and horizontal complementarity. Some authors even say that to a great extent, the success of the Court parallels the growth of the international human rights movement, much of whose fundamental philosophy and outlook it shares. The crime of genocide is defined by Art.
Crimes against humanity are explicitly defined by Art. Unlike before, a legal link between the actions and an armed conflict is no longer necessary.
Defining aggression is, however, something that is clearly subject to external conditions, notably political factors, as the crime can only be committed by the leaders of a country. A clear example is to be found in the reports of the "Special working group on the crime of aggression," whose duty it is to draft an amendment to the Statute of Rome on this matter.
But a resolution of the United Nations General Assembly, which is not legally binding provided a bottom-line definition that was taken up by the International Court of Justice ICJ in its famous judgment on Nicaragua v. In Article 1 it stated: "Aggression is 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, as set out in this Definition".
In contrast to the ad-hoc criminal tribunals for the former Yugoslavia and Rwanda, the ICC has no overriding or competing jurisdiction. Contrariwise, Art. It may act with respect to the crime of genocide, crimes against humanity and war crimes which are defined in detail in the Rome Statute either when the situation is referred to the Prosecutor by a State Party or by the Security Council, or in the case of a decision by the Prosecutor to initiate an investigation on his own decision on the basis of information received.
What is Complementarity?
However, in this case, the Prosecutor must seek the authorisation of the Pre-Trial Chamber before proceeding with his investigation. The cases of the ratione materiae jurisdiction, sometimes meet the problem of the extraterritorial aspect. It is evident that for the war crimes, an obligation to criminalise the extraterritorial commission of these acts and to prosecute alleged offenders follows clearly from almost universally ratified multilateral conventions, for example the Geneva Conventions of As regards genocide, the Genocide Convention  only provides in Art.
VI for territorial jurisdiction and the jurisdiction of an international criminal court which might be established. But, however, the developments show that genocide is a crime even under customary law and, moreover, that universal jurisdiction applies to it.