Ruth B Philips

RUTH B. PHILIPS?

THE INTERNATIONAL CRIMINAL COURT STATUTE:JURISDICTION AND ADMISSIBILITY

1. INTRODUCTION

As a permanent, multilateral, treaty-based, international criminal tribunalwith global jurisdiction to prosecute individuals, the International Crim-inal Court is without precedent or equivalent.1 The creation of the Courtpresents a unique puzzle of international institution-building, to whichprior international criminal tribunals are only partial guides. This isnowhere more apparent than in the quest for a shared and satisfactoryarticulation of the Courts juridical authority, and the successful chartingof structures and processes to reflect that delicate consensus. Formal andinformal diplomatic discourse was juxtaposed with doctrine, philosophyand realpolitik. Negotiations were hampered by a profound lack of con-sensus over the interpretation and application of basic international lawprinciples, as well as by the problematic imposition of a working structurein which relevant articles were visited and modified piecemeal throughoutthe two-year Preparatory Committee (PrepCom) process. This is reflectedin the relevant articles and in the placement and content of related pro-visions which appear in different sections of the Statute, as negotiated indifferent Working Groups.

While the Statute is groundbreaking in its articulation of a truly globaland permanent criminal jurisdiction, the inescapable political significanceof these articles made consensus at times insurmountably problematic, andthe final text remains contested. Additionally, while a satisfactory drafting? Visiting Assistant Professor, University of Connecticut School of Law. J.D., Harvard

University Law School (1989). Professor Philips, a former public defender, participated inthe Rome Diplomatic Conference as a member of the Womens Caucus for Gender Justicein the International Criminal Court.

1 Rome Statute of the International Criminal Court, adopted by the United NationsDiplomatic Conference of Plenipotentiaries on the Establishment of an International Crim-inal Court on July 17, 1998, U.N. Doc. A/CONF.183/9 (1998), [hereinafter ICC Statute].

Criminal Law Forum 10: 6185, 1999. 1999 Kluwer Academic Publishers. Printed in the Netherlands.

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of Part 2 is the sine qua non of an independent, impartial and effect-ive Court, these principles will be tested and measured ultimately by thedegree to which the Court, through the Prosecutor and Pre-Trial Cham-ber, is able to conduct effective investigations, an inquiry which itself isdetermined by the Courts ability to gather information confidentially andto compel cooperation in the early stages of investigation and prosecution.2

2. TEMPORAL JURISDICTION

The Courts jurisdiction is strictly prospective, pursuant to the provisiondealing with jurisdiction ratione temporis, or temporal jurisdiction.3 Thisarticle ensures against ex post facto prosecutions, and accords with therelated principles of nullem crimen sine lege and nulla poena sine lege.4 Itdoes not, of course, prevent the United Nations from establishing ad hoctribunals to prosecute crimes which occurred before the entry into forceof the Statute.5 Thus, for instance, the serious crimes which were commit-ted in Cambodia or Somalia could not be prosecuted in the InternationalCriminal Court, but they could be prosecuted before a tribunal establishedfor such purpose by the United Nations Security Council, acting underChapter VII of the Charter of the United Nations.6 Further, States have

2 See ICC Statute, Parts 5, 9.3 ICC Statute, art. 11:

1. The Court has jurisdiction only with respect to crimes committed after the entry intoforce of this Statute.2. If a State becomes a Party to this Statute after its entry into force, the Court mayexercise its jurisdiction only with respect to crimes committed after the entry into forceof this Statute for that State, unless that State has made a declaration under article 12,paragraph 3.

4 Recognizing, of course, that drafting problems in the current Statute (and the yet-to-be-drafted Elements of Crimes) may or may not offend the latter principles, theretroactivity bar notwithstanding.

5 Presumably, nothing in current law would prohibit the domestic or ad hoc prosecutionof a war crime which cannot be prosecuted before the ICC due to a states exercise of theStatutes war crimes opt-out provision (art. 124).

6 Important authorities on this subject include: Juan E. Mendez, In Defence of Trans-itional Justice, in TRANSITIONAL JUSTICE AND THE RULE OF LAW IN NEW DEMOCRA-CIES (A. James McAdams, ed., 1997); Diane F. Orentlicher, Settling Accounts: The Dutyto Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991);NAOMI ROHT-ARRIAZA, IMPUNITY AND HUMAN RIGHTS IN INTERNATIONAL LAWAND PRACTICE (1995).

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the right and, increasingly, the obligation, to punish certain internationalcrimes under the rubric of universal jurisdiction.7

Articles 12 through 19 form the jurisdictional backbone of the Court,embodying principles which remain highly contested, in spite of over-whelming support for the final Statute. These articles establish the pre-conditions for the exercise of the Courts jurisdiction and outline the threereferral authorities, or trigger mechanisms, and the additional jurisdic-tional requirements that flow from each referral. For State party referralsand Prosecutor-initiated investigations, this entails the application of thecomplementarity principle.

3. COMPLEMENTARITY

Complementarity, referred to in the Statute as admissibility, is one ofthe central animating principles of the Court.8 Complementarity strives toharmonize, wherever possible, multiple and competing sources of jurisdic-tion over international crimes.9 It developed as a principled and pragmatic

7 For an examination of universal jurisdiction, see generally Kenneth Randall, Uni-versal Jurisdiction under International Law, 66 TEX. L. REV. 785 (198 8); Jonathan I.Charney, Universal International Law, 87 AM. J. INTL L. 529 (1993).

8 The Preamble to the ICC Statute [e]mphasiz[es] that the International Criminal Courtestablished under this Statute shall be complementary to national criminal jurisdictions.

9 For the five bases of prescriptive jurisdiction (territorial, nationality, protective, pass-ive personality, and universality), see, e.g., BARRY CARTER & PHILLIP R. TRIMBLE,INTERNATIONAL LAW 726736 (2nd ed. 1995); IAN BROWNLIE, PRINCIPLES OF PUB-LIC INTERNATIONAL LAW 298305 (4th ed. 1990); Bartram Brown, Primacy or Comple-mentarity: Reconciling the Jurisdiction of National Courts and International Tribunals, 23YALE J. INTL L. 323, 391392 (1998). With the exception of the more recent ApartheidConvention, among the post Second World War humanitarian law instruments, only theGenocide Convention refers generically to an (unrealized) international criminal tribunal,see Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948,78 U.N.T.S. 277, art. VI; International Convention on the Suppression and Punishmentof the Crime of Apartheid, adopted by G.A. Res. 3068 (XXVIII) of 30 Nov. 1973, 28U.N. GAOR, 1015 U.N.T.S. 244, art. 5. These instrument s are the only international lawsources providing concurrent jurisdiction in any federalism sense, as, in the GenocideConvention, between a (territorial) State and an international body. In the absence of aninternational criminal forum, jurisdiction over war crimes or other international crimeshas primarily been exercised through domestic prosecutions. See, generally, e.g., THELAW OF WAR CRIMES, NATIONAL AND INTERNATIONAL APPROACHES (Timothy L.H.McCormack & Gerry J. Simpson eds., 1997). To date, international criminal tribunals,from the Nuremberg International Military Tribunal (IMT) to the International CriminalTribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal forRwanda (ICTR), have been created to investigate and prosecute specific atrocities andare jurisdictionally delimited, temporally and geographically. Moreover, the two charters

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way to accommodate the conflicting imperatives of State sovereignty andthe need for a permanent international institution to end impunity foratrocities at a time of global proliferation of localized armed conflict.As suggested by the name, it ensures that the ICC complements, ratherthan replaces, national judicial systems. In recognizing States concurrentjurisdiction over serious violations of international law, the Court is expec-ted to strengthen national enforcement of human rights and humanitarianlaw norms. The Court is authorized to act only when a State is unable orunwilling to meet its domestic enforcement obligations, whether throughbelligerence or the collapse of civil society and a functional national judi-ciary. 10 Complementarity both empowers and obligates States to act as theprimary enforcers of humanitarian law, thus both recognizing and expand-ing their pre-existing international obligations. The Courts jurisdiction isunderstand as the relationship between the admissibility provisions andthe other core provisions consent and trigger mechanisms although theprinciple of complementarity is incorporated and implicated throughoutthe Statute.

That the ICC is envisioned as a tribunal of last resort is problemat-ized, to say the least, by the Statutes ambiguity and/or silence over theapplication of complementarity to Security Council referrals. The twoad hoc war crimes tribunals, the International Criminal Tribunal for theFormer Yugoslavia (ICTY) and the International Criminal Tribunal forRwanda (ICTR), were created pursuant to the Security Councils broadpowers under Chapter VII of the Charter of the United Nations.11 Thesetribunals were established in response to regional crises which posed aspecific threat to international peace and security. While they recognizeconcurrent jurisdiction with national courts in those regions, the tribunalsare conferred with jurisdictional primacy.12 Significantly, complementar-ity principles underlie the tribunals jurisdiction, although they apply very(IMT and ICTY) have different originating sources in law. The Nuremberg Charter wasdrafted by the United States, the United Kingdom, the Soviet Union and France, althoughit later obtained the adherence of nineteen other States, and the principles of the Charterand judgment were unanimously adopted by the United Nations General Assembly, G.A.Res. 95(1), 1(2) GAOR Res. The ICTY and the ICTR were created pursuant to SecurityCouncil Resolutions and their jurisdiction is binding on all member States.

10 See ICC Statute, art. 18, discussed infra.11 Charter of the United Nations, Jun. 26, 1945, 59 Stat. 1031, T.S. No. 933, 3 Bevans

1153, art. 39: The Security Council shall determine the existence of any threat to thepeace, breach of the peace, or act of aggression and shall make recommendations, or decidewhat measures shall be taken . . . to maintain or restore international peace and security.

12 See Statute of the International Criminal Tribunal for the former Yugoslavia, U.N.Doc. S/RES/827 (1993), annex, arts. 9, 29; Statute of the International Criminal Tribunalfor Rwanda, U.N. Doc S/RES/955 (1994), annex, arts. 8, 28.


narrowly to proceedings already underway in the territory.13 Additionally,jurisdiction is conferred on administrative or uniformity grounds, or in theinterest of developing international jurisprudence.14

Given that armed conflict and/or civic collapse generally accompanythe commission of all atrocities, and that they are always investigatedand prosecuted in the service of restoring peace, peace-keeping or nation-building (the criminal tribunals vs. truth commission debate notwithstand-ing),15 there seems to be little justification, in the context of a permanentICC, for a separate regime for Security Council referrals which underminesthe Courts complementary juridical underpinnings and its support. Whileacknowledging that the International Criminal Court has no authority toalter the criteria for the exercise of the Security Councils Chapter VIIpowers, the lack of parallel complementarity criteria for Security Coun-cil referrals to the Court raises the spectre of a Court reduced on somelevel to permanent institutionalized Security Council ad hoc-ism, whichre-enshrines Security Council hegemony rather ironically for a formallyindependent institution. Ad-hoc-ism and complementarity are incompat-ible; indeed, complementarity is addressed to the very problem of partiality

13 See Rules of Procedure and Evidence [of the International Criminal Tribunal for theformer Yugoslavia], U.N. Doc. IT/32, Rule 9; Rules of Procedure and Evidence [of theInternational Criminal Tribunal for Rwanda], U.N. Doc. ITR/3/Rev. 1, Rule 9.

14 Id. These criteria do not appear in the ICCs legislative history.15 The tension between the truth commission approach to transitional justice, which

in some cases offers forms of amnesty to members of a prior regime in exchange forinformation, acknowledgment and apology, and the criminal prosecution of those samepersons through an international (or national) tribunal is, on a certain level, fundamentallyirreconcilable (although these values certainly animate adversarial plea bargaining). Thepeace versus impunity debate is beyond the scope of this paper. For a discussion of thisissue, see, e.g., MARTHA MINON, BETWEEN VENGEANCE AND FORGIVENESS: FACINGHISTORY AFTER GENOCIDE AND MASS VIOLATION (1998); Harvard Law School HumanRights Program, TRUTH COMMISSIONS: A COMPARATIVE ASSESSMENT: an interdis-ciplinary discussion held at Harvard Law School in May 1996 (1997); Diane Orentlicher,International Criminal Law and the Cambodian Killing Fields, 3 ILSA J. INTL & COMP.L. 705 (1997); Michael Scharf, The Case for a Permanent International Truth Commission,7 DUKE J. COMP. & INTL L. 375 (1997); Priscilla Hayner, Fifteen Truth Commis-sions 1974 to 1994: A Comparative Study, 16 HUM. RTS. Q. 597 (1997); RichardGoldstone, Justice as a Tool for Peace-Making: Truth Commissions and InternationalCriminal Tribunals, 28 N.Y.U.J. INTL & POL. 485 (1996); Stephan Landsman, Altern-ative Responses to Serious Human Rights Abuses: Of Prosecution and Truth Commissions,59 LAW & CONTEMP. PROBS. 81 (1996); W. Michael Reisman, Legal Responses to Gen-ocide and Other Massive Violations of Human Rights, 59 LAW & CONTEMP. PROBS. 75(1996); W. Michael Reisman, Institutions and Practices for Restoring and MaintainingPublic Order, 6 DUKE J. INTL L. & POL. 175 (1995); Mark Ensalaco, Truth Com-missions for Chile and El Salvador: A Report and Assessment, 17 HUM. RTS. Q. 656(1994).

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which is inherent in an ad hoc approach to war crimes prosecutions.16Even assuming, arguendo, that complementarity can somehow be read intoChapter VII of the Charter of the United Nations, it remains problematicthat this inquiry would be conducted only once, with no articulated stand-ards, not subject to review, by a select body (Security Council members),as opposed to a delegated organ of the Court that is authorized, sua sponte,as well as upon application, to re-visit this question throughout the life ofa case.17

Throughout the negotiations, complementarity was endorsed unan-imously in principle. Its interpretation and implementation were highlycontested, however, underscoring the abundance of sovereignty issues,including the obvious questions of how best to articulate complementaritycriteria to ensure their impartial application, who decides whether thesecriteria are satisfied, and at what stage of proceedings these evaluationsare conducted.18

4. PRECONDITIONS TO THE EXERCISE OF JURISDICTION

The Court has automatic, or inherent, jurisdiction over all core crimeswhen the alleged crime is committed on the territory of a State party orwhen the accused is a national of a State party.19 The Courts jurisdiction

16 See, e.g., Gerry J. Simpson, War Crimes: A Critical Introduction, in THE LAW OFWAR CRIMES, supra note 9 at 130.

17 See ICC Statute, arts. 17, 18, 53, discussed infra.18 One proposal would have made the State the arbiter of complementarity with respect

to its own criminal process. Another sought to limit referrals to an interested state. Fora helpful overview of the early legislative history of the statute with respect to comple-mentarity, see Jeffrey L. Bleich, Complementarity, 13 NOUVELLES ETUDES P ENALES231 (1997).

19 ICC Statute, art. 12: Preconditions to the exercise of jurisdiction1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the

Court with respect to the crimes referred to in article 5.2. 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 or have accepted thejurisdiction of the Court in accordance with paragraph 3:(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 thatvessel or aircraft;

(b) The State of which the person accused of the crime is a national.3. If the acceptance of a State which is not a Party to this Statute is required under para-

graph 2, that State may, by declaration lodged with the Registrar, accept the exerciseof jurisdiction by the Court with respect to the crime in question. The accepting Stateshall co-operate with the Court without any delay or exception in accordance withPart 9.


is thus twofold. One important aspect of article 12 is the Courts inherentjurisdiction over a State partys nationals, which is conferred once, uponbecoming a State party, without any additional or subsequent consent, andwhich entails that State partys other treaty obligations as well. In provid-ing that [a] State which becomes a Party to this Statute thereby accepts thejurisdiction of the Court with respect to the [core] crimes, article 12 rep-resents an important concession by many States who negotiated ardently,but ultimately unsuccessfully, for an opt-in consent regime.

Negotiations over this principle attempted to distinguish degrees ofuniversality from among the crimes listed in the Statute for the purposeof establishing a jurisdictional hierarchy of State party obligations. Earlydrafts distinguished between genocide as a crime over which there is uni-versal jurisdiction, and all other crimes, translated into a regime wherebyState parties recognized the Courts automatic jurisdiction over genocidebut had the option of selective consent as to other crimes, either uponbecoming a party or on a case-by-case basis.20 Of the three categories ofcrimes, it is actually war crimes for which black letter law the GenevaConventions most strongly establishes inherent or automatic jurisdic-tion. The common articles state Each High Contracting Party shall beunder the obligation to search for persons alleged to have committed,or to have ordered to be committed, such grave breaches . . . , and shallbring such persons, regardless of their nationality, before its own courts. . .

21 Late in the Rome negotiations, the United States maintained its callfor the genocide/other crimes distinction, although earlier negotiationssuggested that both genocide and crimes against humanity would enjoyautomatic jurisdiction by States parties, and only jurisdiction over warcrimes would be on an opt-in basis.22 The relatively cautious approachtaken by the Preparatory Committee in the articulation of justiciablecrimes lends further support to the argument that the solid custom-ary international law basis for the courts jurisdiction over all the corecrimes negates any rationale for additional consent requirements or opt-outprovisions.

20 See, e.g., Report of the Preparatory Committee on the Establishment of an Inter-national Criminal Court, U.N. Doc. A/CONF.183/2/Add.1, 14 April 1998, at art. 9,option 2.

21 For an excellent and comprehensive discussion of treaty approaches to concurrentand universal jurisdiction, see Roger Clark, Offences of International Concern: Multilat-eral State Treaty Practice in the Forty Years Since Nuremberg, 57 NORDIC J. INTL L.49 (1988) (noting the growing trend in treaty practice toward the obligatory exercise ofuniversal jurisdiction in conjunction with the principle of aut dedere aut judicare, andnoting the persistent lack of guidance in resolving competing claims over a case).

22 U.S. Lays Down Its Cards, TERRAVIVA, Jul. 10, 1998, no. 20, at 1.

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Support for a consent regime was informed principally by fears thatsmaller or weaker countries would be targeted by a Security Council-dominated court, i.e., a court in which the five permanent members (P-5)of the United Nations Security Council, namely, the United States, UnitedKingdom, France, China, and the Russian Federation (succeeding theSoviet Unions seat) could self-interestedly use the Security Council tocreate a five-country veto over the Courts docket and dominate the referralprocess. Smaller countries felt that a veto limited to the P-5 was unfairand that consent should therefore be required in order to democratize thedocket (by allowing all States parties to opt out of the Courts jurisdiction).This position was articulated powerfully by India and Pakistan on behalfof the Non-Aligned Movement, whose members generally opposed anyattempts to bind non-State parties, and who called for a stringent jurisdic-tional nexus (consent or ratification) between all interested States andthe Court, in addition to the opt-in system of State party jurisdiction.Ironically, this position was shared either wholly or to some degree byall of the P-5 members. Sovereignty continues to be the rallying call forsmall and large countries alike, although the issue of non-member controlof the Court (through the Security Council) is not obviated by a consentregime.23

The second crucial aspect of the Courts jurisdiction is that it may beexercised over any person anywhere if that person is a national of a Stateparty or committed a crime on the territory of a State party. A non-Stateparty may consent on an ad hoc basis to the Courts jurisdiction wherenecessary, but Security Council referrals may not be undercut by Statenon-consent.24 Thus, if a territorial state (party or non-party) is willing tosubject itself to the tribunal, that suffices to confer the Courts jurisdictionover any national. Given, for example, the United States stubborn aversionto this principle based on articulated fears over spurious prosecutions of itsvulnerable foreign nationals, i.e., United States military personnel pos-ted abroad, it does appear significant in a treaty of such magnitude that theICC can thus exercise jurisdiction over nationals of non-State parties, evenwithout that States consent. In fact, however, this is unremarkable. For-eign nationals are always subject to the jurisdiction of the relevant foreign

23 See, e.g., Ramesh Jaura, India Thumbs Nose at European Court, TERRAVIVA, Jul.17, 1998, ; Ramesh Jaura, Alison Dickens, U.S.Speak More Softly, TERRAVIVA, Jul. 16, 1998, ;Diane F. Orentlicher, U.S. Cheats Justice in Opposing World Court, LOS ANGELES TIMES,Aug. 30, 1998, p. M2.

24 See ICC Statute, arts. 12(2), 13(b). Consent is presumed by virtue of the SecurityCouncils authority. See Charter of the United Nations, supra note 11, arts. 25, 39, 43, 49,and 51.


territory. For example, American citizens are routinely subject to foreigncriminal prosecutions and vice versa. No person would reasonably expectto commit a crime abroad and evade prosecution in that foreign territory.Moreover, under international law, a States jurisdiction is rarely exercisedover a prosecution on the basis of the nationality principle alone (without,e.g., a territorial nexus).25 The United States rejection of the Rome treatywas fueled by its deep dissatisfaction with article 12, paragraphs (1) and(2). United States insistence on an opt-in regime, in conjunction withthe additional requirement of consent of an accuseds State of national-ity, was animated not by concerns over cooperation or the logistics ofthe Court getting an accused before it, but by the simple and concededobjective that United States nationals be shielded from the Courts juris-diction. Given the principle of complementarity, the delegations naggingand persistent objection to this non-controversial principle encouragedthe perception that the United States places itself above the law.26 Thisintractability ultimately isolated and weakened the United States in finalnegotiations.27

A less restrictive approach to consent had been proposed by the Repub-lic of Korea. It listed four alternative requisite sources of jurisdiction(territory, national state of perpetrator or victim, state of custody).28This proposal was among the options that appeared in the Chairmansfinal draft,29 and it received significant if not overwhelming support.30Among States that spoke out on the Bureau Proposal on Monday, July 13,1998, 89% supported the Korean Proposal, and 75% supported automaticjurisdiction for all core crimes.31 Proponents of automatic jurisdictionargued that the multilateral treaty body should not have significantly lesscompetence or authority to prosecute individuals than what is alreadyavailable to States through permissive universal jurisdiction. Automaticjurisdiction, as it was advocated during the negotiations, falls short of

25 See AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW THIRD, THEFOREIGN RELATIONS LAW OF THE UNITED STATES, Section 402 at p. 242 (1987).

26 On the behavior of the United States in negotiations over this provision, see Diane F.Orentlicher, supra note 23.

27 The United States continues, post-Rome, to lobby for a document which reflectsAmerican self-interest. See, e.g., Oct. 21, 1998 speech by David Scheffer before the SixthCommittee of the 53rd United Nations General Assembly, New York, New York.

28 See Proposal Submitted by the Republic of Korea, U.N. Doc. A/CONF.183/C.1/L.6(1998).

29 Bureau Proposal, U.N. Doc. A/CONF.183/C.1/L.59 (1998).30 See THE ROME TREATY CONFERENCE MONITOR, SPECIAL ISSUE OF THE NGO

COALITION FOR AN INTERNATIONAL CRIMINAL COURT, Issue 23, Jul. 15, 1998.31 Ibid.

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universal jurisdiction, which permits a state to prosecute any person overwhom it has custody, assuming appropriate national legislation.32 Thatinternational interests prevail over national interests in the prosecutionof core crimes, as an underlying premise of universal jurisdiction, doesnot, in principle, give the Court a better claim to a particular prosec-ution than a State has. Indeed, it is the universality principle whichsupports and mandates domestic prosecution of core crimes. Thus theCourts inherent jurisdiction is entirely consistent with the principles ofcomplementarity.33

In recognizing that the prosecution of core crimes transcends theinterest of any one State, universal jurisdiction would have given the courtjurisdiction over a crime regardless of the nationality of the perpetrator.Support for undiluted universal jurisdiction was strong among its fewadherents. This was the unanimous non-governmental organization (NGO)position. The obligation to bring all perpetrators to justice is embodied inthe principle aut dedere aut judicare.34 In failing to embrace this principle,the Court is rendered essentially powerless to pierce the shield of impunityafforded to a belligerent state harboring its own war criminals. There isan important difference between hobbling the courts jurisdiction at theoutset, as a legal matter, by requiring the consent of certain interestedStates, and recognizing that as a practical matter it may be very difficultto obtain the necessary cooperation in the investigation and prosecution ofa belligerent national.35 The crucial distinction between establishing theCourts jurisdiction and establishing the duty of States to cooperate is thuscollapsed by article 12(2).

32 See The jurisdiction of the International Criminal Court, An informal discussionpaper submitted by Germany, Mar. 23, 1998, U.N. Doc. A/AC.249/1998/DP.2.

33 Initial doubt about whether inherent jurisdiction meant primary (ICC) jurisdiction wassettled in early negotiations. See, e.g., The Report of the Preparatory Committee on theEstablishment of an International Criminal Court, Vol. I (Proceedings of the Preparat-ory Committee during March-April and August, 1996) GAOR 51st Session, SupplementNo. 22 (A/51/22) at para.118, p. 28; see also AMNESTY INTERNATIONAL, THE INTER-NATIONAL CRIMINAL COURT MAKING THE RIGHT CHOICES PART I, Jan. 1997[hereinafter Making the right choices], AI Index: IOR 40/01/97, at 1314; Roger Clark,Nuremberg and Tokyo in Contemporary Perspective, in THE LAW OF WAR CRIMES, supranote 9 at 173.

34 See generally CHERIF BASSIOUNI & EDWARD M. WISE, AUT DEDERE AUTJUDICARE: THE DUTY TO EXTRADITE OR PROSECUTE IN INTERNATIONAL LAW(1995).

35 See, e.g., HUMAN RIGHTS WATCH, JUSTICE IN THE BALANCE RECOMMENDA-TIONS FOR AN INDEPENDENT AND EFFECTIVE INTERNATIONAL CRIMINAL COURT 53(1998) [hereinafter JUSTICE IN THE BALANCE].


In summary, the Statute grants the ICC automatic jurisdiction overthe core crimes without the additional consent of States parties, andoccasionally without the consent of non-States parties in certain limitedcircumstances. While the Court does not and could not prevent Statesfrom exercising universal jurisdiction over crimes recognized as havinguniversal crime status, it does not itself have universal jurisdiction. Thus,the Court has significantly less subject-matter and adjudicative jurisdictionover international crimes than States have. One scholar has noted that aconsent regime renders a Court with less power to bring to justice thesuspect than either the territorial state or the custodial state, each of whichcould bring the suspect to justice without the consent of any other state.36Human rights advocates agree that the consent requirement of article 12(2)profoundly undercuts the Courts jurisdiction over heinous crimes, mak-ing few inroads in the quest to end impunity criminals harbored by abelligerent State.

5. TRIGGER MECHANISMS

The Courts jurisdiction may be triggered, and an investigation initiated,by three different referral authorities: a State party, the Security Council,or the Prosecutor.37 The grant and scope of each authority was heavilycontested throughout the PrepCom process. Specifically, the Court mayexercise jurisdiction with respect to a crime when: (a) a situation is referredto the Prosecutor by a State party; (b) a situation in which one or moreof such crimes appears to have been committed is referred to the Prosec-utor by the Security Council acting under Chapter VII of the Charter ofthe United Nations; or (c) the Prosecutor has initiated an investigation inrespect of such a crime. Negotiations over referral authority focused uponwhether the Security Council should have veto power over the Courtsdocket (spelled out in various ways), and whether the Security Councilshould be the sole referring authority. Delegates debated whether all Statesparties should have referral powers or only those interested States, i.e.,States with a nexus to the crimes in question. Most countries acknowledgedthat all States parties to this treaty have an interest in prosecuting andinvestigating the terrible crimes that fall within its jurisdiction. Whether

36 John Dugard, Obstacles in the Way of an International Criminal Court, 56 CAM-BRIDGE L.J. 337 (1997). See also AMNESTY INTERNATIONAL MAKING THE RIGHTCHOICES, supra note 33 at 14. Concededly, the failure to arrest Karadzic is a failure ofinternational political will; presumably the Security Council has the means to enforce theservice of arrest warrants issued under ICTY auspices.

37 ICC Statute, art. 13.

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the Prosecutor should have independent authority to conduct investigationswas among the most contentious issues on the table. Human rights advoc-ates and many delegations argued that States and the Security Councilhave been historically and shamefully inattentive to the plight of victims,particularly those whose plight is not geopolitically compelling; that Statesare sensitive to the political consequences of bringing complaints againstone another; and that an independent Prosecutor would function as an idealombudsman.38 The distinction between State and Security Council refer-ral of situations and Prosecutor-initiated investigations into crimes isimportant, and reflects attempts to de-politicize the Court by withholdingState party and Security Council authority to haul individuals before it,as well as acknowledgement that a prosecutors attention to a situation(as opposed to whether evidence exists with respect to a particular crimeand a particular individual) would constitute an inappropriate exercise ofpolitical judgment.

The mechanics of a Security Council referral have not been developed.Whether referral of a situation shall be effected through a formal resolutionor other less formal means is yet undetermined; nor was the binding effectof such a resolution taken up in negotiations. Attention to the SecurityCouncils role on the Court was dominated by intense debates over thescope of its power to block the Courts agenda, and less to its potential todominate the referral process in any affirmative way. The binding authorityof a Security Council resolution under article 16 of the Statute, whichblocks investigation or prosecution of a matter on its agenda, is explicit(the formality of a resolution was exacted as a safeguard against Security

38 See, e.g., the intervention of Kenneth Roth, Executive Director of Human RightsWatch, at the Diplomatic Conference on Jun. 18, 1998, available at (discussing the failure of the Security Council to investigatethe 1988 execution of 100,000 Kurdish men in Iraq, in spite of 18 tons of police docu-ments and testimony establishing an overwhelming case of genocide); Intervention of IndaiLourdes Sajor, Asian Centre for Womens Human Rights at the Diplomatic Conference onJun. 18, 1998, available at (discussing thefailure of the international community to address the impact of armed conflict on womenin spite of its persistence, escalation, and brutality); comments of Ustinia Dolgopol, SeniorLecturer in Law, The Flinders University of South Australia, at Jun. 25, 1998 panel dis-cussion, Whats At Stake for Women in the ICC, held during the Diplomatic Conferenceby Womens Caucus for Gender Justice in the International Criminal Court (transcriptionon file with author) (expressing scepticism over partial justice in war crimes trials to dateand suggesting that geopolitical mileage runs out quickly on the issue of sexual violence).Among the permanent members of the Security Council, China, the United States andthe Russian Federation remained staunchly opposed to a Prosecutor with any proprio motupowers. Most delegations supported the final article 13(c), subject to the stringent Pre-TrialChamber review provisions of article 15, which were developed largely to mollify UnitedStates fears of a runaway prosecutor.


Council domination), while the Security Council referral scheme is silentas to manner, process, or effect. In light of the Security Councils relat-ive inaction in the face of massive and widespread global atrocities (e.g.,Algeria, Burundi), whether the Security Council acts as an ally or rival ofthe Court (i.e., whether it floods the Court with referrals or blocks it witharticle 16 resolutions) remains to be seen. Security Council referral poweris silent on the question of aggression or the effect of any determinationon future Court adjudication. The terse final text of article 13(b) of theStatute reflects unfinished negotiations over aggression, and the questionof the legal effect of a Security Council finding of aggression was left forsubsequent drafting. This issue was addressed in article 10 of the draftstatute.

Admissibility criteria apply explicitly to State party and Prosecutor-initiated prosecutions.39 Article 53 authorizes the Prosecutor to reviewSecurity Council and State party referrals, and to conclude, if warranted,that there is not a sufficient basis for a prosecution, subject to Pre-TrialChamber review if requested by the referring entity. Moreover, articles53(1)(b) and 53(2)(b) mandate the Prosecutor to consider the question ofarticle 17 admissibility, suggesting that complementarity applies to Secur-ity Council referrals as well, although there are no direct provisions for thisdetermination. Indeed, article 17 read in conjunction with article 53 sug-gests that complementarity applies to Security Council referrals as well.The lack of clarity here was acknowledged in Rome but left unresolved.40There is not one cross-reference to article 53 in articles 17 to 19. It canplausibly be argued that notwithstanding its constitutional authority underChapter VII of the Charter of the United Nations, the Security Councilmay indeed be required to participate in the Court on a complementaryfooting, or else forego an ICC referral and assert its jurisdictional primacythrough ad hoc tribunals.41

Article 14 allows a referral by a State party of a situation in whichone of more crimes within the jurisdiction of the Court appear to havebeen committed requesting the Prosecutor to investigate the situation forthe purpose of determining whether one or more specific persons should

39 ICC Statute, Art. 18.40 See Working Paper on article 54, U.N. Doc. A/CONF.183/C.1/W GPM/L.1 (1998),

fn.1.41 Telephone conversation with M. Cherif Bassiouni, Oct. 2, 1998. Professor Bassiounis

early writings on this issue cede a decidedly different regime for Security Council refer-rals. See, e.g., Observations Concerning The 199798 Preparatory Committees Work, 13NOUVELLES ETUDES P ENALES (1997) at 2227. While the ad hoc reversion is an unsa-tisfactory solution, I maintain my aversion to granting the Security Council any dominantrole on the Court.

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be charged with the commission of such crimes. As noted, the Prosecutoralone determines whom, if anyone, should be charged. Paragraph 2 of thisarticle urges States parties to be as specific as possible in their referrals,providing any available supporting documentation. Notably absent is priordraft language requiring formal Security Council notification of a Stateparty referral.42

Article 15 sets forth the Prosecutors proprio motu powers and estab-lishes an extensive oversight process by the Pre-Trial Chamber. TheProsecutor may conduct a preliminary examination and for this pur-pose may seek additional information from States, United Nations organs,intergovernmental or non-governmental organizations, and other reliablesources, and may additionally receive relevant written or oral testimony.Significantly, the Prosecutor may not proceed with an investigation withoutobtaining approval from the Pre-Trial Chamber. Victims and witnessesmay make representations to the Pre-Trial Chamber at this stage, whichis empowered to review the Prosecutors reasonable basis for proceed-ing, and to undertake a preliminary review of the Courts jurisdiction overthe case. Non-governmental organizations and delegations that were con-cerned with victims issues, including the investigation and prosecution ofsexual and other gendered violence and victims needs, including restitu-tion, rehabilitation and compensation, lobbied for the specific inclusion oflanguage authorizing the Prosecutor to receive information at this stagefrom victims or their representatives. While such language did not sur-vive final drafting, nothing in the interpretation of other reliable sourceprecludes the receipt of information from such individuals.

Pre-Trial Chamber review at this stage provides significant checks andbalances on the arbitrary exercise of prosecutorial discretion in seeking toinvestigate a core crime.43 The Prosecutor may re-present the case, basedupon new facts or evidence, if authority to proceed is denied.44 The Pro-secutor may also decide not to proceed after evaluating the information, inwhich case notice should be provided to relevant parties. After a decisionnot to seek a formal investigation, the Prosecutor is not precluded fromreconsidering the case based upon new facts or evidence.

In sum, the strong language of independent proprio motu investiga-tory power articulated in article 15(1) is substantially undercut by ensuing

42 See Draft Statute for the International Criminal Court, U.N. Doc. A/CONF.183/2/Add.1 (1998), art. 11.4, Option 2 [hereafter Rome Draft Statute]; see also Proposal sub-mitted by the United States of America, U.N. Doc. A/AC.249/1998/WG.3/DP.2 (1998)(requiring public announcement and State party notification of an investigation).

43 Functions and powers of the Pre-Trial Chamber are addressed in article 57.44 See ICC Statute, arts. 56 and 57.


provisions.45 Considering admissibility requirements, extensive Pre-TrialChamber authority and review procedures, and the availability of inter-locutory appeal to the Appeal Chambers, warnings against the untram-melled abuse of power by an independent prosecutor46 are hollow anddisingenuous. Indeed, and in sharp language to the contrary, the repeatedwarning from the ICTY and ICTR Prosecutor was that delegates had moreto fear from an impotent Prosecutor.47 Far from enjoying untrammelledpowers, the Prosecutor faces an Olympian obstacle course before shemay initiate and conduct investigations.48

The United Nations Security Council provides a further restriction andcheck on the Prosecutors (and State party) power, in its ability to block orindefinitely delay an investigation or prosecution, presumably at any stageof the process:

No investigation or prosecution may be commenced or proceeded with under this Statutefor a period of 12 months after the Security Council, in a resolution adopted under ChapterVII of the Charter of the United Nations, has requested the Court to that effect; that requestmay be renewed by the Council under the same conditions.49

This provision was visited throughout the PrepCom process. Delegationsargued against any reference to the Security Council, on the followinggrounds: such reference is gratuitous and expands the powers of the Secur-ity Council beyond the United Nations Charter; a Security Council rolecollapses the crucial political and judicial distinction between the SecurityCouncil and the Court and undermines its legitimacy as a major judicialinstitution; and, because neither silence nor text may in any case be inter-

45 Indeed, a careful reading of articles 15(1) and 15(6) suggests that what the Pro-secutor does before receiving Pre-Trial Chamber authorization is not even formally aninvestigation.

46 The invocation of the example of United States special prosecutor Kenneth Starr wasinevitable.

47 Address of Justice Louise Arbour to the Fifth Preparatory Committee Meeting onthe Establishment of an International Criminal Court, Dec. 8, 1997. Justice Richard Gold-stone, the first Chief Prosecutor of the ad hoc tribunals from 1994 to 1996 went evenfurther, suggesting that having an ICC Prosecutor who is fettered by the political con-trol of the Security Council or States parties would raise doubts as to whether such aCourt should be established at all. U.N. Press Release L/ROM/22, Jul. 17, 1998, page21, .

48 Diane Orentlicher, No Frankensteins Court, WASHINGTON POST, Jul. 31, 1998, atP25. These hurdles were inserted by the large contingent of like-minded delegations,who consistently and firmly supported an independent prosecutor, in an attempt to appeasethe United States delegation. The provisions are viewed largely as a capitulation to theUnited States, whose lack of any meaningful public acceptance of the text bred resentment.

49 ICC Statute, art. 16.

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preted in a way that contravenes the constitutional authority of the SecurityCouncil under the Charter.

The final language reflects a crucial compromise which was negotiatedover the course of nearly one year. For those States and organizationsseeking to minimize (if not abolish) Security Council oversight of theCourts docket, the result is an important achievement in its requirementof a formal United Nations resolution before the Courts agenda may beaffected. For those favoring a predominant Security Council role on theCourt, the final provision is a significant cutback from the ILC draft, whichgave the Council affirmative referral power as well as a broad right ofapproval over state referrals, by precluding the commencement of anyprosecutions arising from a situation which is being dealt with by theSecurity Council.50 Given the size, scope and longevity of the SecurityCouncils agenda, this would have essentially conferred near-complete andvirtually unrestricted Security Council control over the Courts docket.Because of the difficulty of deleting the provision entirely, negotiationsfocused on narrowing its scope, while non-governmental organizationswere virtually unanimous in their early wholesale opposition to it.

A possible solution to the problem emerged during the August 1997PrepCom, which became known as the Singapore compromise; its lan-guage was developed further and ultimately found expression in the finalstatute. The United Kingdom was alone among the P-5 members in itsearly support for this proposal.51 The United States led the opposition,along with China, the Russian Federation, and France. In late stage nego-tiations, the United States appeared to soften its stance on the issue of theSecurity Council role, but it simultaneously took a harder line than manydelegations had expected on the issue of consent, and remained staunchlyopposed to any independent prosecutorial triggering authority.52

Article 16s language addresses two important areas of concern: thelack of temporal restriction, and the lack of transparency of process. Whilethe final text formally limits the Security Council to what essentiallyamounts to a right to object to the Courts docket, as opposed to havinga right of approval over it, in actuality, and when combined with thepossibility of unrestricted renewals, this provision remains problematic.

50Report of the Preparatory Committee on the Establishment of an International

Criminal Court, GAOR, Fiftieth-first Session, Supplement No. 10 (A/51/10), Vol. II,p. 75.

51 See John M. Goshko, Britain Differs on United Nations Court, WASHINGTON POST,Dec. 12, 1997, at A51.

52 See U.S. Lays Down Its Cards, TERRAVIVA, Jul. 10, 1998, no. 20, at 1, 5.


6. ADMISSIBILITY

Admissibility criteria and procedures are spelled out in articles 17 and 18,and are applied in conjunction with the double jeopardy principles of art-icle 20. The Statute establishes a presumption of inadmissibility whenevera State is exercising, or has exercised, its national jurisdiction over a case.53Good faith is both presumed and expected in the national adjudication ofsuch cases, whatever their outcome, subject to the ne bis in idem provision.The standard for admissibility is articulated as a States unwillingness orinability to genuinely carry out an investigation or prosecution. This stand-ard is applied to prospective and ongoing investigations and prosecutionsas well as a States decision not to go forward with a prosecution after con-ducting an investigation. If a State will not or genuinely cannot conduct agood faith investigation or prosecution, then the ICC may exercise jurisdic-tion over the case. These standards were developed to address criticism ofthe ILC draft which would have left virtually unexamined a national crim-inal process.54 Early interventions suggested that a States own assertion ofa bona fide judicial process should be enough to block the Courts jurisdic-tion, or even that the existence of jurisdiction alone is sufficient to confernational primacy.55 Versions of this survived into the Rome draft statute(art. 15). The ILC Commentary (to its draft statute) suggested making theCourt operative only in cases where there is no prospect of a nationaltrial.56

It should be noted that for the purposes of articulating the languageof admissibility, what is being reviewed is a case and not a situ-ation. In other words, article 17 presumes that the Prosecutor has alreadymade a determination that sufficient evidence exists to charge at leastone individual with the commission of a crime or crimes, and that aStates investigation and/or prosecution corresponds (at least) to thatparticular individual. On the other hand, article 18s provision for pre-liminary rulings refers back to article 12s language of situation and

53 ICC Statute, art. 17(1). The Statute is deliberately silent as to the basis of jurisdictionas well as over the resolution of competing state claims to an accused.

54Draft Statute for an International Criminal Court, GAOR, Forty-ninth Session,

Supplement No. 10 (A/49/10), chap. II.B.I.5, U.N. Doc. A/49/355, art. 35; Report ofthe Preparatory Committee on the Establishment of an International Criminal Court,GAOR, Fiftieth-first Session, Supplement No. 22A (A/51/22), Vol. II (Compilation ofProposals) at 159; Report of the Preparatory Committee on the Establishment of an Inter-national Criminal Court, GAOR, Fiftieth-first Session, Supplement No. 22 (A/51/22), Vol.I (Proceedings of the Preparatory Committee during March-April and August 1996).

55 See Jeffrey L. Bleich, supra note 18 at 235237.56 Ibid. at 236.

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elaborates procedures for determining admissibility at an earlier stage,which apply to State party referrals to the Prosecutor or its proprio motuinvestigations.

In addition, a determination must be made that the case is of suf-ficient gravity to justify further action. Sufficient gravity is code forthe widely understood principle that the Courts interest is limited to pro-secuting only those who bear the greatest responsibility for atrocities,namely, military or other leaders. There were recommendations that thislanguage be moved or deleted.57 By moving it, and thus construing it aspart of other chapeau language which set a threshold for justiciability,it would have lost its meaning as such, given that the Statute makes jus-ticiable and attaches criminal liability to the conduct of underlings andsuperiors alike. Therefore its placement here as an admissibility issuemaintains the distinction between justiciability under articles 5 though 9,and the Courts exercise of jurisdiction as a policy matter (although com-plementary jurisdiction per se does not directly address the question ofthe Courts choice whom to prosecute from among defendants). This begsanother interesting question, raised by Madeline Morris, as to whetheran accused may use his or her lack of real military status to mount anadmissibility challenge to the future ICC on the grounds of insufficientgravity.58

Unwillingness is evaluated by examining whether the proceedingswere undertaken for the purposes of shielding the person from criminalresponsibility, whether there was an unjustified delay in proceedings, orwhether proceedings were or are not conducted impartially or independ-ently, and in a manner inconsistent with an intent to bring the personconcerned to justice. This language is mirrored in two explicit exceptionsto the double jeopardy bar set out in article 20. Human rights advocatesfor the effective prosecution of sexual and gendered violence sought moreexplicit attention in these provisions to the historical abuse of such victimsat trial and other procedural and evidentiary practices which are discrimin-atory, inflammatory, or inequitable. Indeed, the experience of survivors ofsexual violence in national prosecutions may be probative in admissibilitydeterminations on the question of fairness and impartiality of proceed-

57 Draft Statute; supra note 42, art. 15(2), fn. 44.58 See Madeline Morris, The Trials of Concurrent Jurisdiction: The Case of Rwanda,

in Symposium: Justice in Cataclysm: Criminal Trials in the Wake of Mass Violence, 7DUKE J. COMP. & INTL L. 349, 366367 (1997) (without questioning the jurisdictionalprimacy of the ICTR per se, Professor Morris questions the way it has been exercisedin the Rwandan context of parallel prosecutions and raises a host of questions as to howconcurrent jurisdiction is to be exercised in the ICC).


ings.59 The due process standard inserted in article 1760 provides importantguidance in evaluating such proceedings and in recognizing that dispropor-tionately mild sentences constitute a form of discrimination against classesof victims.

Inability is determined by inquiring whether, due to a total or sub-stantial collapse or unavailability of its national judicial system, the Stateis unable to obtain the accused or the necessary evidence and testi-mony or otherwise unable to carry out its proceedings. This languagewas tightened from earlier draft language of partial collapse. It leavesunsolved the problem arising when a requesting States criminal justicesystem contains features which create a due process bar to extradition bya custodial state. In this circumstance, the Court cannot enforce multilat-eral co-operation or adherence to the principle of aut dedere aut judicare.Assuming that the requesting States criminal process is not abhorrent tothe ICC such that ICC jurisdiction would be triggered (it is shocking thatthe availability of execution after conviction is not such a bar), the Courtwould be impotent. If one reads impossibility into inability the resultmay be otherwise.61

Inability or unavailability is not a matter of administrative burdenand the Court is not envisioned as an adjunct to a strained national sys-tem. Inability is problematic when viewed in the context of a post-warRwanda, for example, where approximately 120,000 incarcerated defend-ants/suspects have little hope of adjudication, in spite of a massive overhauland streamlining of the Rwanda criminal process. That the ICTR was givenprimary jurisdiction and has exercised it exclusively over leaders has prob-lematized national reconciliation due to disparate sentencing (Rwandanlaw provides for capital punishment whereas the ICTR Statute does not)fuelled by the additional, inevitable pressures upon a successor regime topunish those most responsible for atrocities.62

Limited to complementary jurisdiction, however, the ICC Statutethrows prioritizing back to a State, assuming a resuscitated judiciary.

In determining unwillingness or inability, the Court is directed to haveregard to the principles of due process recognized by international law.63

59 For example, domestic prosecutions in Rwanda under-punish sexual violence, andrecent rulings by the ICTR addressing sexual torture are difficult to re-apply in the domesticcontext.

60 See text at 22, infra.61 For the suggestion that the Court should fill in gaps in jurisdiction, see Amnesty

International making the right choice, supra note 33, at 1314.62 For an excellent discussion of these issues and the problem of parallel prosecutions in

the context of Rwanda, see, generally, Madeline Morris, supra note 58.63 ICC Statute, art. 17(2).

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This is an important addition, which appeared for the first time in Rome,and it mandates the Court to measure national judicial criminal processagainst the highest international standards of due process. A close read-ing of this language suggests that the treaty negotiations did not focus onthe other side of the partiality problem, i.e., overzealous prosecutions bysuccessor regimes in the interest of national reconciliation or revenge orboth.

Article 18, concerning preliminary rulings regarding admissibility,applies once a State party referral has led to the Prosecutors decisionto commence an investigation or when the Prosecutor has otherwiseinitiated an investigation as authorized by the Pre-Trial Chamber. TheProsecutor is required to notify all States parties and any other Stateswhich may normally exercise jurisdiction over the case (presumably inter-ested non-States parties). The Prosecutor has crucial discretion to limitthe scope of information provided to States, if she deems it neces-sary to protect persons, prevent destruction of evidence or prevent theabsconding of persons, and to provide notice confidentially.64 Upona States notice (within one month) to the Prosecutor that an invest-igation or prosecution is or was underway in respect of its nationalsor others within its jurisdiction, the Prosecutor shall defer to thenational judicial process of the State. Mandatory deferral is consistentwith the spirit and principle of complementarity, and the Prosecutor mustobtain Pre-Trial Chamber authorization to override a States request fordeferral.65

The Prosecutor may review her decision to defer to a State, aftersix months or at any time when admissibility criteria (unwillingness orinability) change significantly. This provision allows the Prosecutor tomonitor and re-assess the progress of a States investigation or prosecutionand, if necessary, re-evaluate that States ability/willingness to adminis-ter justice. A State may also challenge a Pre-Trial Chamber ruling uponreceipt of additional facts or a significant change of circumstances.66 A

64 Notice of any sort can impede an investigation and prosecution. Prosecutorial author-ity to limit the scope of non-State party notice was added to the final Statute; it did notappear in the Draft Statute, which called for public announcement. Supra note 42, atart. 16(1). On the functions and powers of the Pre-Trial Chamber, for elaboration ofthe investigative authority the Pre-Trial Chamber may give the Prosecutor in cases ofnon-cooperation of a State, see ICC Statute, at art. 57(d).

65 Article 18, read in conjunction with article 15, suggests that Pre-Trial Chamberreview of a Prosecutor-initiated investigation takes place twice: once at the preliminaryexamination stage and once again at the admissibility stage.

66 Draft language was abandoned which allowed the Appeals Chamber to authorize theProsecutor to proceed while any appeal was pending.


State or the Prosecutor may appeal an adverse Pre-Trial Chamber rulingto the Appeals Chamber,67 but there are no provisions for review of aProsecutors decision to defer to a State.68

In any case where the Prosecutor has deferred to a State investigation,she may seek authority from the Pre-Trial Chamber to take necessarymeasures to preserve evidence where there is a unique opportunity todo so, or where there is a significant risk that such evidence may besubsequently unavailable.

7. CHALLENGING JURISDICTION

Article 19 addresses challenges to the jurisdiction of the Court or theadmissibility of a case, and contains extensive provisions regarding whomay and how to challenge a case. This article confers sua sponte authorityon the Court to make admissibility determinations.69 In essence, a chal-lenge may be made by: an accused (once an arrest warrant or summonshas issued); a State with jurisdiction over a case and which is investig-ating or prosecuting it (admissibility challenge); a non-State party whoseacceptance of jurisdiction is required.

The ambiguity of whether article 19 challenges to the Courts juris-diction or the admissibility of a case apply to Security Council referralsremains unresolved. As noted above, the gap between article 53 (man-dating the Prosecutor to consider admissibility in all referrals) and theprovisions of articles 17, 18, and 19 were noted in the Preparatory Com-mittee. Whether this gap is administrative, reflecting the distinct mandatesof two different Working Groups, or substantive, reflecting a decision notto court profound conflict, or both, is perhaps immaterial.

If article 18(7)70 is interpreted as requiring a preliminary article 18challenge in order for a State to mount a challenge under article 19, then

67 With leave, pursuant to article 82(2).68 Change of circumstances is a criterion for re-consideration of a Prosecutors deferral,

but straight appeal, as such, is unavailable. Article 18(7), in conjunction with article 19,appears to allow a State two challenges to an adverse admissibility determination: once,pursuant to article 18(4) at the preliminary stages of an investigation, and once pursuant toarticles 18(7) and 19, which may be made once and only before or at the commencementof trial, unless the Court grants leave, in exceptional circumstances (article 19(4)).

69 Prior to the confirmation of charges, any challenges to admissibility or jurisdictionshall be made to the Pre-Trial Chamber. After confirmation, challenges are heard by theTrial Chamber.

70A State which has challenged a ruling of the Pre-Trial Chamber under this article

may challenge the admissibility of a case under article 19 on the grounds of additionalsignificant facts or significant change of circumstances.

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States are essentially precluded from contesting a Security Council refer-ral under article 19. If article 18(7) is read to limit a States access toa repeated challenge then this is not the case. Regardless of ones inter-pretation of article 18(7), there are no provisions for a State to challengethe Prosecutors investigation of a Security Council-referred situation onadmissibility grounds. It would appear under article 19 that a State mayonly challenge such a referral at the stage where a case has been brought.The dynamics of an article 53 prosecutorial determination of admissibilityof a Security Council referral are a mystery. Under article 53, the Prosec-utor may decide not to proceed with a case in the interest of justice, andmay consider the age or infirmity of a suspect. Some may find it preposter-ous that the age or infirmity of a suspect is a legitimate consideration not toproceed in the interest of justice, given that longevity, for a war criminal,is almost certainly the fruit of impunity. The lack of any formal third-partynotice or challenge to a Prosecutors deferral, or a Pre-Trial Chambersdetermination of inadmissibility (whether in ruling against a Prosecutorsreferral or acting sua sponte, pursuant to article 19(1)), makes access tothe Court for victims and their representatives at these preliminary stagesunclear. Victims and their representatives are nonetheless given limitedbut important access to the Prosecutor and the Pre-Trial Chamber at thepre-admissibility stage of a preliminary examination/investigation.

The double jeopardy or ne bis in idem provision, article 20 of the Stat-ute, provides that no person shall be tried before the Court with respect toconduct which formed the basis of crimes for which the person has beenconvicted or acquitted by the Court. Furthermore, a person shall not betried before any other court for an article 5 crime for which that personwas acquitted or convicted by the Court, nor shall a person be tried bythe ICC for such offenses unless, essentially, the trial was not conductedimpartially or violated norms of due process, or was inconsistent with anintent to bring the person to justice.71

When read in conjunction with article 81, this Statute makes it theoret-ically possible for a person to be re-tried by the Court after being acquittedby the Court. While an appeal of an acquittal offends the proscriptionagainst double jeopardy under the Fifth Amendment to the United StatesConstitution (no person shall be subject for the same offense to be twiceput in jeopardy of life or limb), this is not a universal precept of criminaljustice (nor is it an absolute proscription under United States constitutional

71 The Statutes of the Yugoslav and Rwandan tribunals provide somewhat similar nonbis in idem provisions. See ICTY Statute, supra note 12, at art. 10; ICTR Statute, supranote 12, at art. 9.


law).72 Notably, civil law jurisdictions generally allow the prosecution theright of appeal from an acquittal.

8. APPLICABLE LAW

Article 21 requires the Court to apply law according to the followinghierarchy: first, the Statute, Elements of Crimes and Rules of Procedureand Evidence; second, applicable treaties and the principles and rules ofinternational law; and third, general principles of law from national lawsof legal systems, including, when appropriate, the national laws of the Statewith jurisdiction over the case, as consistent with the Statute and interna-tional law and internationally recognized norms and standards. The Courthas discretion to apply its prior holdings with respect to interpretation ofthe Statute. An important final clause of this section states:

The application and interpretation of law pursuant to this article must be consistent withinternationally recognized human rights, and be without any adverse distinction foundedon grounds such as gender, as defined in article 7, paragraph 3, age, race, colour, language,religion or belief, political or other opinion, national ethnic or social origin, wealth, birthor other status.

The application of the fundamental principle of non-discrimination is asignificant application of international human rights law within the contextof an international criminal law statute.73

72 For an overview of the double jeopardy treatment of government appeals of acquit-tals both in and outside the United States, see Report to the Attorney General on DoubleJeopardy and Government Appeals of Acquittals, Truth in Criminal Justice Report No. 6,Office of Legal Policy, in 22 J. L. REFORM 833. Foreign appeals are addressed at 885888.For example, the Canadian Charter of Rights and Freedoms is interpreted not to preclude aprosecution appeal of an acquittal on questions of law under the Criminal Code. While thedouble jeopardy principle is accorded great respect in the United Kingdom, it is allowedif the initial proceeding was so fundamentally flawed that it was not a trial at all. NewZealand, India and Sri Lanka permit government appeals of acquittals on questions of law.

73 See, e.g., Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc.A/810 (1948), art. 2; International Covenant on Civil and Political Rights, adopted Dec.19, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976), arts. 2, 26; Geneva Con-vention for the Amelioration of the Condition of the Wounded and Sick in Armed Forcesin the Field, adopted Aug. 12, 1949, 75 U.N.T.S. 31 (entered into force Oct. 21, 1950),article 12(2); Geneva Convention for the Amelioration of the Condition of the Wounded,Sick and Shipwrecked Members of the Armed Forces at Sea, adopted Aug. 12, 1949, 75U.N.T.S. 85 (entered into force Oct. 21, 1950), art. 12(2); Geneva Convention Relative tothe Treatment of Prisoners of War, adopted Aug. 12, 1949, 75 U.N.T.S. 135 (entered intoforce Oct. 21, 1950), art. 16; Geneva Convention Relative to the Protection of Civilians,adopted Aug. 12, 1949, 75 U.N.T.S. 287 (entered into force Oct. 21, 1950), art. 27(3);Convention on the Elimination of Discrimination Against Women, adopted Dec. 18, 1979,

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9. CONCLUSION

The final version of the ICC Statute, adopted in Rome on July 17, 1998,leaves unanswered many important questions regarding the Courts exer-cise of complementary jurisdiction. This Statute and Court does not andcannot address the shortcomings and possible conflicts inherent in thedeployment of an international judicial institution to further national recon-ciliation and the restoration and maintenance of regional peace.74 TheCourt is not empowered to assist meaningfully in national prosecutions;it is not a parallel adjudicative body. To this extent, the complementaryexercise of concurrent jurisdiction results in the exercise of exclusive jur-isdiction, whether by a State or by the Court. 75 The Courts goal ofprosecuting top-level officials, whether military or civilian, is not necessar-ily consistent with the principle of complementarity, if complementarity,exercised exclusively, does not address the staggering caseloads or replacean incapacitated judiciary. Put another way, trying top-level officials, whileit is presumably a goal shared by States and the ICC alike, will not neces-sarily and may never respond to incapacity or recalcitrance in a nationalsystem.76

The exact role of the Security Council, exercising its powers underthe United Nations Charter, is not fully understood and remains highlycontested. If a Security Council referral gives primary, as opposed tocomplementary, jurisdiction to the Court, then the spectre of simultaneousprosecutions indeed arises, and the Statute leaves unanswered the circum-

1249 U.N.T.S. 13, arts. 1, 3; International Convention on the Elimination of All Forms ofRacial Discrimination, adopted Dec. 21, 1965, 660 U.N.T.S. 195, arts. 1, 4; United NationsStandard Minimum Rules for the Administration of Juvenile Justice, G.A. Res. 40/33(1985), art. 2.1; Guidelines on the Role of Prosecutors, Eighth United Nations Congresson the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August7September 1990, Report prepared by the Secretariat, U.N. Doc. A/CONF.144/28 (1998).

74 Again, that the recognition of victim- and survivor-centered values as they areserved in the truth commission context raises unanswered questions about the efficacyof adversarial fact-finding, and goes to the heart of conceptions of impartial justice. This isfor another paper, and I am suggesting, without exploring, that impartiality for the pur-poses of complementarity has other problematic dimensions. Another question is whethera truth commission which promises amnesty to a particular individual meets the criteriafor admissibility. The question of amnesties did not go unraised during negotiations.

75 As such, the problems raised by the ICTRs non-exclusive exercise of primary juris-diction may not apply in the ICC. Morris calls this stratified concurrent jurisdiction. Morris,supra note 58 at 367. I use may advisedly. Presumably, complementarity eradicates thespectre of a tug-of-war between the ICC and a State, assuming its ability and willingnessto prosecute powerful war criminals. It does not solve the problem of domestic resourceallocation.

76 Madeline Morris, supra note 58 at 367368.


stances under which this will unfold. Whether the final Statute adoptedin Rome will create a truly important institution remains to be seen. TheStatute is remarkable in its ambition as well as its urgency. Although itsgroundbreaking uniqueness is inescapably compelling, whether it is trulyimportant will be determined by the life it acquires outside diplomaticconference rooms and academic fora. It cannot be over-emphasized thatthis Statute carries a grant of much-needed hope for victims and survivorsin desperately violent times.

Documents

Ruth B Philips