Jurisdiction of ICC and some Exceptions (Lecture)

Art 5 of the Rome Statute - Article 5

Crimes within the jurisdiction of the Court

The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international
community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following
crimes:

(a) The crime of genocide;

(b) Crimes against humanity;

(c) War crimes;

(d) The crime of aggression.

4 principles that must concur

a. Ratione materiae (what)

b. Ratione temporae (when)

c. Ratione soli (where)

d. Ratione personae (who)

e. + How

f. + notice

a. Ratione materiae (what)

- Cases that fall under jurisdiction of ICC that is, most heinous/ serious crimes concerned to ICC as a whole

1) Genocide
- See Genocide section

2) Crimes against Humanity

- Widespread/systematic attack

against civilian
3) War Crimes

- Violation of provisions in Geneva Convention

4) Crimes of Aggression

- not defined in Rome Statute

- (2010) Review Conference Kampalla Amendment

- Any initiation, planning, preparation or execution of acts resorting to the illegal use of armed forces
 threatening the sovereignty, territorial integrity or political independence of another State

b. Ratione temporae (when)

- Crime that are alleged to be committed after July 1 2002 fall under ICC

- Any case before July 1, 2002 can’t be taken cognizance by ICC

- On the 1st day of the month following the 60th day of deposit

c. Ratione soli (where)

- Principle of territoriality

Jurisdiction
of the ICC
1.a Crime is ✓
committed in territory
of State party (SP)
1b. Crime is ✓
committed in territory
of SP (not ratifying
State) but accepted
the
jurisdiction of ICC
2a. If the person who ✓
committed the crime
is
a citizen of the SP
2b. If the person who ✘
committed the crime
is
NOT a citizen of the
SP
>(2b)If the person
who ✘✘✘✘✘
committed the crime
is
NOT a citizen of the
SP and
>does not recognized
the juri of ICC
>crime is committed
in
the territory non-SP

d. Ratione personae (who)

- Citizen of SP

e. (5.) How – 3 ways

1) Initiated by the Prosecutor himself
2) SP initiates the investigator/ prosecution of the case

3) Victim: when it initiates, the case goes to Pretrial Chamber to assess WoN the alleged crime is
cognizable by the ICC

If the 4Ws concur, the Pretrial Chamber will transmit to prosecutor

 Q: If a State is not party, is there no way for it to be brought in the ICC? also not citizen of the SP

A: Yes, (xpn) When the situation of the

case is referred to Office of the Prosecutor by the UN Security Council

- NOTE: UN Security Council - responsible for promotion of advancement and preservation of peace

 If the case is referred to UN Security

Council, there’s no need Ratione Soli to be complied

- Chapter 7 of the UN Charter

- Acts that threaten peace and security of breaches of Peace or Acts of Aggression
- Not needed that he is citizen of SP

f. (6) Aside from 4W’s, NOTICE is very important to be issued to the State Party & the alleged
perpetrator.

 Key Feature of the ICC

 Complementarity

 Basic rule in Int’l Humana Rights

Law

 Seeming violation of crime that is widespread and systematic attack

 Not directed to ICC first BUT first tried in National Laws

o Doctrine of Exhaustion of Remedies

o Principle of Complementarity
- National Courts: Nat’l Laws
 ICC: Court of Last Resort

 Case will be outright inadmissible by

ICC if not exhausted remedies

Instances: [PAp-Tpi]

1) Prosecution stage at SP

XPN: showing Nat’l Prosecutor/

Investigator is unwilling. Unable to properly investigate/ prosecute

 - matter of proof and require cooperation of NGO, Intergovernmental Entities or other concerned
agencies

2) Case already properly prosecuted/investigated

- State decided not to prosecute the case through Decision/ Resolution

- ex. there’s no probable cause

3) There is trial on accused/ perpetrator XPT if there is showing that the conducted hearing was:

a. Trial is perfunctorily conducted - Just to show that the conduct of trial was complied with to save

the perpetrator from Criminal responsibility in the ICC

b. The judges were impartial/ lack of independence

 ICC can send its members in other State for proper administration of justice

3. Concept of Superior/ Command Responsibility (Petralba, pp. 137-138)


Doctrine of Greatest Responsibility
- One who has the greatest responsibility for the crime committed will be brought in the ICC