In just under a fortight or so Luis Moreno-Ocampo, the prosecutor of the International Criminal Court, will send a request to the judges of the ICC asking them to issue arrest warrants against three individuals for crimes against humanity allegedly committed in Libya since mid-February. Those who are to be named on the warrants is, for the time being, unknown, but it isn’t beyond the realms of the imagination that Muammar Gadaffi will himself be first in line. Unsurprisingly, all of this puts the ICC slap bang in the middle of the spotlight to a degree never seen before, which is no bad thing.
I’m not concerned (here, at the very least) with the political dimensions of this development. A piece recently contributed to the Guardian by Professor Phillipe Sands QC prompted a frenzy of posts proclaiming the ICC to be a ‘sham’ court pandering to its western masters “selectively arresting individuals on the basis of where the money is.” I express no view in relation to that charge here, but that accusation reminded me of my very first class in international criminal law at university and the lady who taught us, Elizabeth Wilmshurt (former deputy legal adviser to the FCO of “he [Jack Straw MP] is not an international lawyer”-fame). Wilmshurst wasted no time in throwing down the gauntlet: we were not to even bother trying to denegrate international law or the ICC unless were prepared to back our criticism up with a cast iron line of reasoning. This may have all been a bit OTT, but the sentiment behind that warning was sound. It is difficult to intelligently criticise that which we do not understand. So, I’m putting up a series of posts focusing purely on the legal mechanics by which an alleged international crime (ie a crime over which the ICC can claim jurisdiction) might end up being tried in the ICC.
Establishing the jurisdiction of the International Criminal Court
(i) Subject matter jurisdiction (or, as posh people call it, jurisdiction ratione materiae)
There are at present three broad categories of crime falling with the jurisdiction of the ICC under article 5(1) of the Rome Statute: genocide, crimes against humanity and war crimes (eventually, the crime of aggression will be added to the menu). So, the first question is a (comparatively) simple one: is the crime alleged one falling within article 5(1)? If the answer is ‘no’ then that is the end of the matter – the court simply doesn’t have jurisdiction over the subject matter in issue, much in the same way the Technology and Construction Court in the Queen’s Bench Division cannot play host to a trial of a murder charge. Young Jimmy’s theft of a tuna and sweetcorn sandwich from the local CoOp, for instance, will never be triable in the ICC. If, however, the alleged conduct does amount to a prima facie crime of genocide, crime against humanity or war crime it falls to be considered whether the court has jurisdiction over the persons, territories and temporal periods involved. At this stage, the contemptible fellow who considering the indiscriminate bombing of an area highly populated with civilians may have grounds for concern.
(ii) Does the court have jurisdiction over the people, territories and time period involved?
The ICC’s temporal jurisdiction is the simple bit: the Rome Statute entered into force on 1 July 2002 and, as such, the court cannot exercise its jurisdiction over crimes alleged to have been committed before that date. Where a state joins the statute after that date, article 11 provides that the court may only exercise its jurisdiction crimes committed after the date the statute entered into force for that state, but article 12(3) (see below) allows a state to plug the gap in time if it so chooses.
Article 12(1) of the Rome Statute provides that “a State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes” listed in article 5. This is uncontroversial. A state’s acceptance of the statute is an expression of its consent to the court’s jurisdiction in relation to the core crimes triable by the court. But things can get a bit trickier. Article 12(2) goes on to provide:
In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute…
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
So, we need to have a look at what article 13(a) and (c) says:
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14…
(c) The Prosecutor has initiated an investigation in respect of such a crime…
Take this as an example. Bob and Sally, nationals of Redacre (a state not party to the statute), head off on holiday to Whiteacre (a state which is a party to the statute). Whilst there, they embark upon the slaughter of as many Whiteacre nationals as possible. Their intention is to completely wipe them out. The Whiteacre authorities are not at all pleased with what they view as a genocide going on and refer Bob and Sally to the prosecutor of the ICC, whereupon the prosecutor decides to issue warrants for their arrest.
In effect, the ICC has chosen to exercise its jurisdiction over Bob and Sally even though the state to which they are nationals has not accepted the ICC jurisdiction. This is something objectors to the ICC get very hot-under-the-collar about. The objectors argue that the grounds for the ICC’s jurisdiction under article 12(2), insofar as they allow the ICC to exercise its jurisdiction over nationals of non-state parties, are contrary to article 34 of the Vienna Convention on the Law of Treaties which states that “a treaty does not create either obligations or rights for a third state without its consent.” Now, I’ll permit myself to express a legal opinion here. Article 12(2) categorically does not impose obligations on states not party to the ICC’s statute for the simple reason that there would be no obstacle preventing Whiteacre dealing with Bob and Sally under its own domestic criminal law. Rather, article 12(2) operates so as to permit Whiteacre to delegate to the ICC the jurisdiction it has over the matter. So, in the absence of some positive rule of international law preventing the delegation of jurisdiction from one state to an international tribunal (I don’t know of one, do you?), the objection here doesn’t stand up to legal scrutiny. In this respect the statute isn’t creating obligations – it’s altering the interests of those engaging in conduct prohibited under the statute.
To wrap this bit up, so far we can see that the ICC’s jurisdiction can be based upon state consent (article 12(1) and (3)); or territorial jurisdiction (article 12(2)(a)); or personal jurisdiction (article 12(2)(b)). But things do not stop there.
(iii) What if none of those involved are parties to the Statute?
Say, for instance, a situtation develops in the nation state of Blackare in which there are fears that international crimes are being committed by a despotic regime upon its citizen. The regime in question has not joined the state as a party to the ICC’s statute (which, given their past form, is not at all surprising). How might members of that regime who are accused of crimes against humanity be brought to the doors of the ICC? Enter article 13(b) of the statute, which says that the court may exercise its jurisdiction over,
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
In this case, membership by the state in question to the ICC is irrelevant. The court’s jurisdiction is drawn from the power of the Security Council under article 39 of the UN Charter to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to “make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security “. So going back to the example of Blackacre, the Security Council could itself choose to refer the matter to the ICC for investigation. It seems the only pre-condition here would be Blackacre’s membership to the UN Charter from which the Security Council draws its power. Two situtations currently before the ICC were referred to it in this manner. The first is the situation in Darfur, Sudan which was referred by the Security Council pursuant to UNSC resolution 1593(2005). The second is the ongoing situation in Libya which was referred to the ICC earlier this year under UNSC resolution 1970(2011).
Admissibility and the triggering of proceedings
This post has taken a glimpse at the various ways of establishing the ICC’s jurisdiction over alleged international crimes. The next stage is to consider whether the court is in a position to initiate proceedings and exercise its established jurisdiction. I’ll deal with that in a separate post on this blog in a few days.
The point of this post has been to shine a cold legal light on how the ICC might begin to roll up its sleeves and join the fray. If I missed anything or made any errors of law, I am happy to be corrected.