The jurisdiction of the ICC

Rome Statute of the ICC, preamble:
“…Affirming that the most serious
crimes ofconcern to the international
community as a whole must not go
unpunished…“

The rules of jurisdiction

The ICC differs from all previous international criminal tribunals due to the nature of its Statute, its legal basis. Its jurisdictional competence is clearly defined by the Rome Statute.

›    Procedurally, the ICC is based on a voluntary act by the states over whose citizens it will potentially sit in judgment. Unlike the Nuremberg Tribunal, the ICTY and ICTR, its jurisdiction is not exercised as a result of external pressure. Even if the Security Council does choose to refer a situation to the ICC, it is thereupon up to the Court itself to decide whether to start an investigation. The ICC may only hear cases if the competent state is unwilling or unable genuinely to carry out the investigation or prosecution (principle of complementarity, Art. 17). The ICC is not an appellate instance for national courts and cannot review their decisions.

In principle, there are three ways in which a case may come to be heard by the ICC: a) A State Party to the Rome Statute refers a case to the Court; b) The UN Security Council acting under Chapter VII of the UN Charter requests the Prosecutor to initiate an investigation; c) the Prosecutor initiates an investigation at his own initiative on the basis of information he or she has received.

›    The Court’s jurisdiction ratione temporis starts with the entry into force of its Statute. Retroactive jurisdiction is thus strictly excluded. Beginning on July 1, 2002, or the date of accession of each state respectively, there is no temporal limit for the Court’s jurisdiction. This means that the existence and potential jurisdiction of the ICC should have been known to all perpetrators when they commit their core international crimes.

›    The crimes over which the Court has jurisdiction were codified with unparalleled precision in the Statute. The ICC has jurisdiction over all types of crime that were prosecuted in Nuremberg and by the ad-hoc tribunals for the former Yugoslavia and Rwanda – i.e. war crimes, genocide and crimes against humanity. The crime of aggression is also included in the ICC Statute, but cannot yet be prosecuted.

Many elements of international humanitarian law and crimes against humanity were included in the list of crimes in the Statute. As in the statutes of the ICTY and ICTR, sexual crimes (rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization) are explicitly included under those headings. Thus the offences the ICC may try are very carefully defined. It is impossible for arbitrary post-facto changes to be made to these definitions. The principle of “nullum crimen sine lege”, no crime without law, is fully respected.

Thanks to this comprehensive list of offences, the impact of the Rome Statute has already been felt beyond the scope of the ICC. Many states have been inspired by the Statute to amend or add to their own penal codes to incorporate its principles. Courts all over the world are interpreting national laws in line with the Rome Statute. And so, only a few years after its adoption, it is already becoming customary international law.

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