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Law Review ICC Full-Text Current Research (03/09 to 03/10 -- 9,018 Pages)

Law Review ICC Articles: 12,500 Pages of Full-Text Research (Part 1)

Law Review ICC Articles: 12,500 Pages of Full-Text Research (Part 2)

Law Review ICC Articles: 3,500 Pages of Full-Text Research (Part 3)

The Principle of Legality in International and Comparative Criminal Law


Johan D. van der Vyver

In 1994, when the International Law Commission submitted its Draft Statute for an International Criminal Court (ICC) to the United Nations Organization, the United States Senate came out in full support of such a tribunal, stating that an international criminal court with jurisdiction over international crimes "would greatly strengthen the rule of law," that such a court "would serve the interests of the United States and of the world community," and that the United States delegation "should make every effort to advance this proposal at the United Nations."1

However, it soon emerged that American support for the ICC was conditional upon exempting U.S. citizens from the exercise of jurisdiction by the Court. Ambassador at Large for War Crimes Issues and leader of the American delegation in Rome, David Scheffer, in an interview with the Washington Post said it quite bluntly: "Any arrangement by which a UN-sponsored tribunal could assert jurisdiction to prosecute Americans would be political poison in Congress."2

Having been confronted by the choice between American exceptionalism and the principle of equal justice for all, the Rome Conference was constrained by the elementary dictates of criminal justice to opt for the latter. This created conflict with the U.S. government. John Bolton, U.S. Under-Secretary of State for Arms Control and International Security, leaves one in no doubt as to the current strategy of the U.S. toward the ICC. Writing in The National Interest, he proclaimed:

[W]hether the ICC survives and flourishes depends in a large measure on the United States. We should therefore ignore it in our official posture, and attempt to isolate it through our diplomacy, in order to prevent it from acquiring any further legitimacy or resources.3
The International Criminal Court (ICC) was formally established on July 1, 2002. There are currently 92 States Parties. The judges have been elected, the Prosecutor and Deputy Prosecutor have assumed office, the Registrar has been appointed, the budget for the first year of operation has been approved, and everything is ready to go. At the third session of the Assembly of States Parties in September 2003, Chief Prosecutor Luis Moreno Ocampo announced that he will soon be seeking authorization from a Pre-Trial Division of the ICC to proceed proprio motu with investigations of alleged crimes committed in the Democratic Republic of Congo.

Jurisdiction and Its Exercise

The ICC has been afforded jurisdiction to prosecute the crime of genocide, crimes against humanity, and war crimes, as defined in the ICC Statute (aggression may be added to the subject-matter jurisdiction of the ICC in seven years time). The exercise of jurisdiction by the ICC may be triggered by the Security Council of the United Nations, a State Party, or the Prosecutor acting proprio motu.

The Security Council refers "a situation" to the ICC, leaving it up to the Prosecutor to decide in full autonomy whether to bring charges emanating from that situation, who to prosecute, and for what crime(s). No further conditions have been laid down for the exercise of jurisdiction by the ICC in cases of Security Council referrals. However, the Security Council cannot confer powers on the ICC that the ICC does not have by virtue of its Statute. The ICC can, for example, only prosecute persons over the age of 18 years, it only has jurisdiction in respect of crimes committed after July 1, 2002, it cannot exercise jurisdiction while a State with a special interest in the matter is willing and able to investigate the alleged crime and, if appropriate, bring the perpetrator to justice. The Security Council cannot instruct the ICC to deviate from any of these restrictions. Referral of a situation to the ICC by the Security Council occurs in virtue of the Council's Chapter VII powers. The Security Council can therefore only refer a situation to the ICC if it has decided that the situation constitutes a threat to the peace, a breach of the peace, or an act of aggression. That decision, as well as the referral itself, can be vetoed by any of the Permanent Members of the Security Council (China, France, Russia, the United Kingdom and the United States of America).

A State Party, likewise, only refers a situation to the ICC. In cases of State Party referrals, there is a further constraint: the ICC can only exercise jurisdiction in the matter if the State of which the perpetrator is a national (the national State) or the State on whose territory the crime was allegedly committed (the territorial State) has either ratified the ICC Statute, or has on an ad hoc basis agreed to the exercise of jurisdiction by the ICC in the particular case under investigation.

Investigations conducted by the Prosecutor proprio motu are also only feasible if the national State or the territorial State have either through ratification of the ICC Statute or a special declaration agreed to the exercise of jurisdiction by the ICC. But here, a further constraint applies: the decision of the Prosecutor to conduct an investigation must be approved by a three-judge Pre-Trial Division of the ICC.

Iraq has not ratified the ICC Statute. Nor has the United States. War crimes that may have been committed by American or Iraqi nationals in Iraq can therefore not be prosecuted in the ICC unless the Security Council would refer the situation to the ICC. A Security Council referral can be vetoed by the United States. Prosecutions for war crimes that may have been committed by Australian, British or Polish troops can, on the other hand, derive from a State Party referral or emerge from a proprio motu investigation of the Prosecutor. Australia ratified the ICC Statute on July 1, 2002, the U.K. did so on October 4, 2001, and Poland became a State Party on November 12, 2001. The competence of the Prosecutor to proceed with a proprio motu investigation against any of those troops is, as noted above, subject to judicial control.

Afghanistan ratified the ICC Statute on February 10, 2003. Prosecution in the ICC for war crimes committed in Afghanistan pursuant to a State Party referral or deriving from a proprio motu investigation of the Prosecutor would only be possible if the alleged crime was committed after that date. This time constraint does not apply to prosecution triggered by a Security Council referral, but such referrals are subject to the veto powers of any one of the Permanent Members.

The Democratic Republic of Congo ratified the ICC Statute on April 11, 2002. A Pre-trial Division of the ICC can authorize the investigations currently being contemplated by the Prosecutor, but only in respect of war crimes and/or crimes against humanity committed in that country after the date of ratification.

ICC and U.S. Nationals

There is only one instance where a crime committed by an American national can be prosecuted in the ICC without the consent of the American Government: if the crime was committed in a State other than the United States and that other State is either a State Party of the ICC Statute or has agreed on an ad hoc basis to the exercise of jurisdiction by the ICC in that particular case. But even then, if a status of forces agreement is operative between the United States and the territorial State, preference must be given to surrendering the perpetrator to the United States to be tried in the U.S. If there is an extradition treaty in place between the United States (as a non-party State) and the territorial State (being a State Party or having agreed to the exercise of jurisdiction by the ICC), the territorial State is given a (judicial) discretion to either extradite the perpetrator to the United States to stand trial or to surrender the perpetrator for trial in the ICC. In the exercise of this discretion, the territorial State is mandated to take into consideration the respective dates of the request for extradition and the request for surrender, the fact that the perpetrator is an American citizen, and the nationality of the victim(s) of the crime.

Whenever the ICC seeks to exercise jurisdiction, any State (not only States Parties) can bring an application before a Pre-Trial Chamber of the ICC protesting the admissibility of the case in the ICC on any of the following grounds:
  • The case is being investigated by that State;
  • The perpetrator is being prosecuted in that State for the crime under investigation;
  • The case has been investigated by that State and it has been decided not to prosecute the person concerned (there was no probable cause);
  • The person concerned has already been prosecuted by that State for the crime under investigation;
  • The case is not of sufficient gravity to warrant the exercise of jurisdiction by the ICC.

Any of these grounds will exclude the exercise of jurisdiction by the ICC unless it has been proved that the State lodging the objection was either unwilling or unable to genuinely conduct the investigation or trial. Unwillingness is defined in the ICC Statute to denote a sham investigation or trial conducted with the intention of actually not wanting to bring the person to justice (the investigation or prosecution was conducted with intent to safeguard the person concerned from prosecution in the ICC). Inability is confined to a total or partial collapse of the criminal justice system of the State concerned. It is inconceivable that inability will ever apply to the United States, and it is highly unlikely that prosecuting authorities of the United States will conduct sham investigations or trials.

In the one circumstance alluded to above in which an American citizen can be brought to trial in the ICC without the prior consent of the United States, the United States can therefore preclude the exercise of jurisdiction by the ICC by conducting a bona fide investigation into the alleged crime. If following the investigation it is decided not to proceed with a prosecution due to the absence of probable cause, then so be it! The ICC must in terms of its own Statute abide by that decision of the national prosecuting authorities.

Those supportive of the current U.S. approach argue that the ICC Statute, by applying to non-party States, violates a basic principle of international law. That is not the case. The ICC Statute makes a clear distinction between (a) the exercise of jurisdiction by the ICC, and (b) the duty of States to cooperate with the Court. The latter duty is, in accordance with the Vienna Convention on the Law of Treaties, founded on State consent: no State can be obligated to cooperate with the ICC without its consent.

As far as (a) is concerned: States are not prosecuted in the ICC. Nor are the crimes within the subject-matter jurisdiction of the ICC creations of the ICC Statute. They are, as a matter of ius cogens, crimes under customary international law. It is perhaps important to note that the definitions of crimes and their inclusion in the subject-matter jurisdiction of the ICC were approved at the Rome Conference by general agreement - with one exception: inclusion of the war crime relating to resettlement of a population in occupied territories prompted the negative vote of Israel. For the rest, abstentions and negative votes founded on the jurisdiction ratione materiae of the ICC were not based on what went into the ICC Statute, but on what was not included (notably international drug trafficking and the threat or use of nuclear weapons).

All that was done in Rome, therefore, was to create a tribunal to bring perpetrators of the most serious crimes of concern to the international community as a whole to justice in cases where national States with a special interest in the matter are either unwilling or unable to do the same. The ICC jurisdiction to prosecute such crimes is founded, except in the case of Security Council referrals, on the universally recognized jurisdictional principles of territoriality and active personality.

The exercise of jurisdiction by the ICC is furthermore subject to the principle of complementarity; that is, the first right and duty to bring perpetrators of the crimes concerned to justice vest in national criminal justice systems. The ICC only serves as a stop-gap for cases where the national State is either unwilling or unable to prosecute the very serious crimes that come within the subject-matter jurisdiction of the Court.

Johan D. van der Vyver is I.T. Cohen Professor of International Law and Human Rights at Emory University, School of Law.

1Foreign Relations Authorization Act, Fiscal Year 1994 and 1995, § 517(b), HR 2333, 103rd Cong, 108 Stat 382, 469 (1994). These sentiments were echoed on several occasions by President William Clinton. On September 22, 1997, President Clinton in his address to the 52nd Session of the General Assembly of the United Nations said:
The United Nations must be prepared to respond [to the demands of people who do not enjoy universal human rights] not only by setting standards but by implementing them. ... To punish those responsible for crimes against humanity and to promote justice so that peace endures, we must maintain our strong support for the U.N.'s war crime tribunals and truth commissions. And before the century ends, we should establish a permanent international court to prosecute the most serious violations of humanitarian law.
See 33.39 Weekly Compilation of Presidential Documents 1386, at 1389 (Sept. 29, 1997).
2T.W. Lippman 'Ambassador to the Darkest Areas of Human Conflict' Washington Post, at A.19 (18 Nov. 1997).
3J. Bolton, 'Courting Danger, What's Wrong With the International Criminal Court' 54 The National Interest 60, at 71 (Winter 1998/99).