Skip to main content

AN ANALYSIS OF THE COMPLEMENTARITY JURISDICTION OF THE ICC



JURISDICTION OF THE ICC
According the Rome Statute, the ICC follows territorial jurisdiction. This territorial jurisdiction applies to States who are party to the Rome Statute, but can be extended to non-party States should they want. For this they would have to provide a temporary declaration for the same. The ‘non-state’ party in this case must be a recognised sovereign. According to Chapter VII of the Charter of the United Nations, even a non-party state can be investigated by the ICC Office of Prosecutor in a case of international crime if they are a member of the United Nations. 

Any crime which was committed before 1
st July 2002, when the Statute was enforced, cannot be tried by the ICC according to its temporal Jurisdiction. Article 24 (1) prevents any person from being held criminally responsible by the ICC for any international offence he may have committed before the Statue was entered into.

In addition to this, ICC only holds jurisdiction over the crimes listed under the Statute.
·         Genocide
·         Crimes against humanity
·         War crimes
·         Crime of aggression

Another interesting aspect of the Rome Statute is that the criminal responsibility for a crime does not extend to just the people who were directly involved in the crime, but also to people who were party to it indirectly. Since crimes like genocide are committed on a large scale and are typically on the orders of some authoritative figure who may have no direct contact or interaction with the victims, therefore they are not directly involved in the crime. This is where Article 25 of the Statute comes into effect.

“Article 25 – Individual criminal Responsibility: any person who commits the crime whether as an individual or jointly with someone else or through another person, orders or induces the commission of such crime, aids, abets or assists, in any way the commission of such crime or in any way contributes to such crime.”

Features of the principle
that makes it desirable are:
1.      It upholds state sovereignty by giving primary jurisdiction to the state courts.
2.   This being said, it also provides for the ICC being allowed step in and take over the proceedings if the conditions set by it aren’t met.
3.      Unlike the universal jurisdiction, it clearly mentions the methods needed to implement jurisdiction.
4.      There is flexibility in the principle leaving ample space for arbitration.

In essence it gives the State the freedom of carrying out proceedings as they deem fit. The only point that a State needs to take note of is to make sure that the conditions of the Principle are met. It also allows the ICC to act as a monitoring body which ensures that the trial is being carried out in a suitable manner.

For a crime to be tried under Complementarity jurisdiction, first and foremost it needs to be one of the crimes listed under article 5 to 8 of the Statute, that is, it needs to be either genocide, crime against humanity, crime of aggression or war crimes. Additionally, the conditions given in the statute are required to be fulfilled for it to be tried elsewhere. These conditions include genuine investigation and prosecution, unwillingness and inability to prosecute.[1]

The lack of genuine national investigation and prosecution are the basis of exercising jurisdiction by ICC. Rather than the common perception, the ICC is not a replacement for the national courts. The trial is to be conducted by a national court first. Failure of a State to prosecute the perpetrator is what leads to the ICC taking over. Genuine investigation can be an obstacle due to the lack of exact guidelines to determine whether the investigation is legitimate or not. Despite this being an important feature of the principle, this ambiguity, could make the principle fail absolutely. Since this is quite a vague term, another problem arises; there is often a discrepancy in the legal systems of various States. What may constitute a step toward formal investigation in one State may not be elsewhere. The crimes are clearly defined with respect to international law and also apply to States that are party to the Statute, but the procedure with regard to prosecution and collection of evidence differs in various states. Therefore a conflict may arise between states.

The other obstacles, those of unwillingness and inability to prosecute are also relatively similar problems.  The Article 17.2 of the ICC Statute states—
“In order to determine unwillingness in a particular case, the court shall consider having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:
(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in Article 5;
(b) There has been an unjustified delay in the proceedings which in the circumstances in inconsistent with an intent to bring the person concerned to justice.
(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner, which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice”[2]

The problem here is of who determines unwillingness of the State to prosecute. Due to the differences in legal systems a State’s inability could easily be perceived as unwillingness by the others.

Inability finds mention in the Article 17.3 of the ICC Statute as:
“In order to determine inability in a particular case the Court shall consider whether due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.”[3]
The article provides for inability only in cases where either the judiciary collapses, or there is a lack of unbiased judicial officials, or the case pendency of the courts surpasses coping ability of the judicial system. This again creates ambiguity in the form of doubt over who evaluates a state for inability due to either of the three problem remains unanswered.

While the existing system is rather well structured and provides for a lot of savings, a new technique which has been debated amongst the international society, is that of Universality Principle which allows States to prosecute a crime anywhere, irrespective of the jurisdiction or nationality of the accused or victim.


--

Written By: 
Harshita Chaarag
IV Year
Disclaimer: The views and opinions expressed in the article are those of the author and do not necessarily reflect the views and opinions of the Blog.


[1] Supra Note 6 - p. 382.
[2] Rome Statute of the International Criminal Court, 1998.
[3] Ibid

Comments

Popular posts from this blog

DRIVE AGAINST DRUG ABUSE

DRUG ABUSE PREVENTION OATH
Drug addiction is a problem that is increasing in our society. Today there is an ever increasing tendency amongst the youth for trying something new or doing something that their friends are doing. This often takes them to the path which leads them either on the doorstep of depression or to serious health problems.
Drug addiction can terribly hinder and restraint us from accomplishing our goals and dreams in life. People sometimes feel that they are too bright, too powerful, and too formidable to control to become addictive. Addiction can trap anyone. It can cause harm to one's body and also lead to problems in the family. Delinquent behaviour in the society is also another consequence. The sooner people seek help for drug addiction problems, the more chances they have of gaining control of their lives. However, abstinence is the safest way to live a longer and healthier life.
As part of the Anti-Drug Drive, an initiative of the Hon’ble Capt. Amarinder Sing…

EXTEMPORE COMPETITION 2018 – THURSDAY ACTIVITY

On a wonderful Thursday Afternoon, when the sun was shining bright, Army Institute of Law organised an Extempore Competition as part of the Thursday Activity. 15 enthusiastic students, took part in this joyous competition.
Emcee Aaryan RK (Second Year) hosted the competition and the students by way of chit system, chose their topics for the Extempore. The students were allotted topics from various burning issues. Be it GST, Demonetisation, Triple Talaq or Internet Censorship etc., participants elocuted their views in a very articulate manner, whilst grappling the attention of the audience members. It indeed was a delight to hear such wonderful points/views, put forth by the participants.
More often than not, we come across such topics and discussions in our day to day life, but in this Thursday Activity, participants enlightened the audience while dealing with the intricacies associated with the topics assigned to them. Of-course, anecdotes, quotations, added humour to the entire compe…

THURSDAY DIARIES: INTRA INSTITUTE DANCE COMPETITION 2018

Dance to express, not to impress”
This Thursday Activity witnessed the cheerful Intra Institute Dance Competition which saw fervent participation of the fluid and balletic dancers of the AIL. The MP hall was as usual full of an energetic crowd but the real attraction were the excited participants from various batches who came forward to show their extraordinary dance skills. They danced on mellifluous songs with sprightly energy. The competition began with solo performance, followed by the duet category.
The Solo category was won by Sonu Parmer from 1st Year. She with her supple and graceful moves made the crowd cheer.
In the Duet category the First prize was won by Ruhul Amin and Dilisha Nair from 1st Year and the Second prize was won by Shivani Anand and Simran Walia from 3rd & 4th year respectively. Both the teams with their rhythmic and rock-steady moves left everyone spellbound. This enthusiasm and energy has always been part of the institution and this vigour always prevails…