The International Criminal Court and National Jurisdictions

Federica Gioia, Mauro Politi

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781351887564
• Topic: Law
• Subtopic: International Law
• Index: Law

At a stage in its development when the workings of the International Criminal Court may be assessed, this timely volume provides valuable insights into its activities and, in particular, its interaction with national jurisdictions and international organizations. The contributors discuss a broad range of topics and present a 'first assessment' of complementarity. They address the issues at the heart of the substantive and procedural law of the Court and examine aspects relating to national implementation and international cooperation. These proceedings are the latest addition to the Trento Conference series, bringing together a wide range of leading scholars, diplomats and representatives of international organizations. As such, they provide an important contribution to the ongoing debate surrounding International Criminal Law and the International Criminal Court in particular. This thought-provoking study will be of value to researchers and policy makers alike.

Chapter 1

Introductory Remarks

Philippe Kirsch

Thank you very much Judge Politi for your generous introduction. I would also like to thank both you and the University of Trento for taking the initiative to organize this excellent colloquium and for giving me the opportunity to speak with you today.

The theme of this colloquium – the International Criminal Court and national jurisdictions – is at the very heart of the International Criminal Court (ICC). It encompasses such fundamental elements as the principle of complementarity, the implementation of national legislation and the cooperation of States with the Court. In my introductory remarks, I would like to place these issues within a broader framework of the relationship between the ICC and States, as reflected in the establishment of the Court and the Court’s activities to date. I will also offer an outlook for the future of the Court in the light of this relationship.

1. Establishment of the Court

I think it is fair to say that no international court has ever been established with more careful attention to its relationship to States than the ICC. There are two explanations for this focus.

The first reason stems from the fact that the ICC was created by an international treaty. This distinguishes the ICC from its predecessors such as the Nuremberg and Tokyo tribunals or the ad hoc tribunals for the Former Yugoslavia and Rwanda. The former were established by the victorious powers after World War II, the latter by the Security Council. This led to criticism that the tribunals were imposed on States. In setting up the ICC, States were particularly concerned with ensuring the Court’s legitimacy. They considered a number of possibilities and concluded that setting up the ICC through a widely supported international treaty would provide it with maximum legitimacy.

This method of creation, however, meant that the ICC would need the active support of States, something which would not necessarily be automatic. Ratification of the Rome Statute imposes significant obligations on States Parties, including acceptance of the Court’s jurisdiction over their nationals and territories, cooperation with requests from the Court and ensuring appropriate domestic legislation. To be a viable and successful institution, the Court therefore needed a Statute which would meet two objectives of States. The Court had to be robust enough to achieve States’ desire for a strong institution capable of effectively addressing the most serious crimes of concern to the international community as a whole. At the same time, the Statute had to accommodate certain concerns, including the view that the Court should not interfere with matters considered by States to be their own domestic affairs.

The second reason for the careful attention given to the relationship between the ICC and States follows from the purposes underlying the creation of the Court. The ICC was not intended to supplant or substitute for national legal systems. The primary responsibility to prosecute and punish crimes belongs to States. The ICC was set up to address situations where national courts could not or would not act. That is something the ICC shares with any other international criminal court or tribunal, irrespective of the different circumstances of their creation. There is, however, an important difference between the ICC and these other institutions. Previous tribunals were established after the fact to respond to defined situations where the failures of national systems were clear. In contrast, the ICC was created to address future situations which could not be defined in advance. States therefore took great care in setting the judicial principles which would delineate the respective responsibilities of the ICC and national courts.

From this combination of factors – the creation of the ICC by treaty and the specific role assigned to it vis-à-vis national jurisdictions – certain basic features of the Court flow naturally.

First, the ICC’s jurisdiction is a court of clearly limited jurisdiction. Its subject matter jurisdiction is limited to the most serious crimes of concern to the international community as a whole. The investigation and prosecution of other crimes is left to the sole responsibility of national courts.

The personal and territorial jurisdiction of the Court is also limited. The ICC does not have universal jurisdiction. Outside of a Security Council referral, for the ICC to exercise jurisdiction, the State of nationality of the accused or the State where the crime occurred must accept the Court’s jurisdiction – either by becoming a State Party or by filing a separate declaration of acceptance. It should be noted here that the Statute’s drafters did not accommodate all States’ concerns indiscriminately. States rejected a proposal which would require the consent of the State of the accused’s nationality in all cases. They did so because historically agents of the State themselves often were complicit in or even directing the crimes later referred to international tribunals. We saw this with Nazi Germany, Cambodia, the Former Yugoslavia and Rwanda. Conditioning the ICC’s jurisdiction on the acceptance of the leadership of such States would have frustrated the Court’s ability to end impunity.

Second, the ICC is complementary to national jurisdictions. This principle again reflects the deference given to national systems. The ICC is a court of last resort. It can only act where States are unwilling or unable genuinely to investigate or prosecute offences. The key word here is ‘genuinely’. Not every national proceeding will satisfy the principle of complementarity. Proceedings must be genuine and cannot be undertaken solely to shield a person from justice. In any case, this determination will be made by the judges of the ICC objectively and in accordance with the Rome Statute. Interpreting the requirements of genuine willingness and ability may well be one of the issues confronted by the judges over the coming years.

In addition to these principles, the ICC was established as part of a system in which it works together with States to fulfil its mandate. Any judicial system necessarily rests on two pillars – the courts and the mechanisms of enforcement such as the police. In national systems, the two pillars are intertwined. Courts rely automatically on the enforcement powers of the State. With the ICC, States chose to separate the two pillars. The ICC is a strong judicial pillar, but the means of enforcement have been reserved to the States. The Court requires the cooperation of States, for example in the arrest and surrender of persons or in permitting access to their territories. In order to mitigate the Court’s lack of enforcement powers, States included provisions on cooperation in the Statute. In joining the ICC, States Parties agree and become obliged to provide cooperation to the Court.

2. The Court’s Activities to Date

I would like to turn now to the Court’s activities to date and how these activities reflect the different aspects of the relationship between the Court and States to which I have referred so far.

I would start not with any of the situations formally referred to the Court, but with the over 2500 communications alleging crimes which have been received by the Prosecutor. Most of these communications come from private sources. All of the communications are examined by the Office of the Prosecutor in accordance with the Statute. The vast majority have been found to be outside the Court’s limited jurisdiction on one or more grounds including the nature of the alleged crimes, the time of their commission or the lack of personal or territorial jurisdiction. In at least one situation not pursued by the Prosecutor, he has stated that national proceedings were also being conducted. Without speaking on the merits of any particular communication, this process reflects the Court’s limited jurisdiction and the application of the principle of complementarity in the Court’s analyses.

The Prosecutor has not yet requested the Pre-Trial Chambers to authorize any investigations under his proprio motu powers on the basis of any such communications. He is currently investigating three situations formally referred to the Court – Uganda, the Democratic Republic of Congo and Darfur, Sudan. A fourth situation referred to the Court – in the Central African Republic – is under analysis as the Prosecutor seeks to determine if there is a reasonable basis to proceed with an investigation. Here, I would make a preliminary observation which I understand will be discussed further in the course of this colloquium. At the time of the Statute’s drafting, it was widely expected that States would refer situations occurring in other States to the Court or that the Prosecutor would have to open investigations proprio motu. What has happened is that States have referred situations on their own territories to the Court on the grounds that their national jurisdictions are either unwilling or unable to address the situations. As a result, the situations before the Court may present different issues than were previously envisaged.

Turning now to particular situations, in the situation in Uganda, the Court has issued warrants of arrest, which remain outstanding. This case illustrates the absolute necessity of cooperation for the work of the ICC. It is up to States or international organizations to execute these warrants. Without cooperation in arrests, there can be no trials.

The situation in Uganda has also given rise to public discussion about the roles of the ICC and other actors in relation to peace negotiations. It is not for me to enter into this public discussion. I would only note that the ICC was founded on the international community’s shared conviction that justice is an indispensable part of a sustainable peace. More important for our purposes today, I would recall that the ICC has a clear judicial mandate set out in its Statute which it is bound to follow. There are other tools available to the international community to deal with such situations, but it is not up to the Court to use those tools.

In the situation of the Democratic Republic of Congo, we have witnessed the first surrender by a national jurisdiction of a person to the Court. This surrender involved interaction between the ICC and the national judicial authorities as well as cooperation of other States. The situation in the DRC has also highlighted the difficulties posed by circumstances in the field. The challenges of security and of logistics are numerous. In such circumstances, the cooperation of States and international organizations such as the UN peacekeeping mission is critical.

The situation in Darfur, Sudan, presents another set of challenges. Sudan is not a State Party. This situation has been referred to the Court by the Security Council. Arrest warrants were issued in this situation last week. As investigations and judicial activities continue, one can expect that questions of complementarity and of cooperation may arise.

From just this brief overview of the Court’s activities, many of the features which derive from the relationship and the division of responsibility between the Court and States are evident in practice. Even before an investigation can be opened, a potential situation must be analysed in the light of the limited jurisdiction of the court and the principle of complementarity. As a situation proceeds through investigation and possibly judicial proceedings, these issues of jurisdiction and complementarity continue to exist. Meanwhile, the importance of cooperation in all areas – from arrests to security and logistics – becomes only more and more clear as the Court’s activities progress.

3. An Outlook for the Future

I would like to turn now to an outlook for the future. It goes without saying that it will be imperative for the Court, and it is the responsibility of the Court, to continue to establish its own credibility through fair and efficient proceedings. In the context of this colloquium, however, I will focus on those factors that are directly linked to the relationship between the ICC and States as I have described it. From this perspective, there are at least three conditions which are essential to the success of the Court and to the success of the interrelated system of international and national criminal justice more broadly.

First, because the ICC is a court of last resort, national systems need to be able to function effectively to the maximum extent possible. National courts will continue to have the primary responsibility for responding to serious international crimes. Their abilities to investigate, prosecute and punish international crimes must therefore be reinforced. Ideally, national courts will try all crimes within the Court’s jurisdiction. Even where the ICC acts, it will only ever be able to handle a small number of cases. National prosecutions will be essential to avoiding an impunity gap. Many States – both Parties and non-parties – have used the adoption of the Rome Statute as an opportunity to review and upgrade their domestic legislation over genocide, crimes against humanity and war crimes. Strengthening national capacities will further States’ abilities to deal with crimes themselves.

Second, the number of ratifications of the Rome Statute must continue to increase. The 104 ratifications of the Rome Statute since 1998 represent a remarkable pace for any treaty, let alone one establishing an international organization and imposing substantial obligations on States Parties. Yet, universality remains an important goal for two reasons. On the one hand, the Court’s legitimacy is strengthened by broad acceptance of the Statute, cutting across all regions and all legal systems. On the other hand, the Court’s jurisdiction normally extends only as far as the nationals and territories of its States Parties. Its ability to end impunity globally is enhanced with each ratification.

Third, States (and by extension international organizations) must provide sufficient cooperation to meet the needs of the Court. This cooperation must adapt to changing circumstances and reflect the current needs of the Court. At the Rome Conference, most people probably imagined the ICC would operate under easier circumstances than is actually the case. There may have been an unstated assumption that international criminal justice follows a certain trajectory: a conflict erupts, crimes are committed, the conflict ends, readily available evidence is collected, alleged perpetrators are arrested, and because the national system cannot or will not act effectively an international court steps in – in other words a scenario like Nuremberg or Tokyo. The first years of the ICC’s activities have shown that it functions in very different circumstances. The ICC operates in situations of ongoing conflict where crimes continue to be committed. Investigations are taking place in very diverse countries, often in remote and difficult-to-access regions.

The difficult conditions in which the Court operates present significant challenges in terms of evidence collection, security of staff, victims and witnesses and logistics. These circumstances make ensuring adequate support all the more important. On the face of it, obtaining cooperation is not a problem of principle. The commitment of States Parties to cooperation is real and has been regularly and increasingly reiterated. The challenge, and one of the most immediate tasks for the Court and for States Parties, will be to translate the commitment of States Parties to the Court into practical cooperation. Of course, the nature of the situations in which the Court operates complicates issues of cooperation. States may be unable not only to conduct trials, but also to take specific initiatives in the judicial process – for example, to arrest persons, to protect witnesses, or to enforce sentences. Where the relevant territorial State is unwilling or unable to act, the responsibility for cooperation is diffused among the different members of the international community.

Having said that, there is also at least one significant positive consequence from operating in such situations – namely, the potential exists for the Court to have a deterrent effect in the short term on ongoing crimes. At the time of the Court’s creation, it was largely expected that the deterrent effect would be gradual, building over time after multiple trials. This is reflected in the language of the preamble to the Rome Statute which refers to the Court putting an end to impunity and thus contributing to the prevention of crimes. We see today, however, that the impact of the Court may be more immediate.

4. Conclusion

We still are at a very early stage in the development of the permanent ICC. The system established in Rome is only beginning to be understood. We will continue to learn much more about this system through both the Court’s jurisprudence and the development of cooperation in practice.

Colloquia such as this one, with its clear focus on the relationship between the ICC and national jurisdictions, have an important role in furthering our understanding of how the different parts of this system can work together most effectively. I wish you a highly successful and informative two days.

Thank you.

Chapter 2

Italy and the International Criminal Court

Ivo Maria Braguglia

First of all, I would like to thank you for your invitation, which I really appreciate. This initiative comes after research carried out by the two universities of Trento and Salento (previously, University of Lecce) within a combined project on ‘ICC: judicial cooperation and domestic implementation in the light of the Statute of Rome and national and international practice’. Professor Mauro Politi, who, as you know, is one of the Court’s judges, coordinated the project. This research has two targets: one is to determine the content and functioning of the complementarity principle as contained in the Rome Statute in the light of the continuous development of international criminal law; the second is evaluating how the system of international cooperation provided by the Statute is effective when considering the laws on international cooperation issued by States Parties.

These two issues, complementarity and cooperation – which we will discuss during today’s sessions – are crucial to the functioning of the International Criminal Court (ICC). The first years of the Court’s activity demonstrate that point. This is why it is extremely important that scholars, academics, professionals and experts in general in international law have gathered here to share their views on these matters. And that is also why I am here – to represent the Italian Ministry of Foreign Affairs: Italy has indeed supported the Court since the very beginning.

1. Italy and the Rome Statute: Steps taken at the National Level

It is about our country’s support for the functioning and the several activities of the ICC that I would like to speak. I will not dwell on the issue of the role played by our country in the adoption of the Rome Statute, which took place on 17 July 1998.

Italy is the fifth l...

Table of contents

• Cover Page
• Dedication
• Title Page
• Copyright Page
• Contents
• Editors’ Preface
• Message (wired) by H.E. Giorgio Napolitano, President of the Republic of Italy
• Message (wired) by Mr. Giovanni Conso, President of the Rome Conference
• Message by Prof. Daria de Pretis, Acting Dean of the University of Trento
• 1 Introductory Remarks
• 2 Italy and the International Criminal Court
• Part I: Complementarity: A First Assessment
• Part II: Substantive and Procedural Aspects of Complementarity
• Part III Recent Developments on International Cooperation and National Implementation
• Part IV Round Table The ICC Relationship with National Jurisdictions: What Future?
• Index