Picture by: Jean-Baptise Dodane
Article by: Ishita Chakrabarty
The Rome Statute allows the International Criminal Court (ICC) to exercise jurisdiction over the core crimes mentioned under Articles 5(1) (a) to (d) including genocide, crime against humanity (CAH), war crimes and aggression. However, the Statute overstates its effectiveness when it claims it is sufficient for the prosecution of ‘the most serious crimes of concern to the international community.’
The Statute relies upon State parties to adopt domestic legislation which would incorporate its provisions (substantive or complementarity legislation) and provide for its enforcement (procedural or cooperation legislation). The main feature of the ICC is its complementarity principle which ensures that States possess the primary jurisdiction over their own nationals or over crimes committed in their territories. It is only when the conditions mentioned under Article 17 (unable and unwilling genuinely to investigate and prosecute the matter) are satisfied, that the Statute allows the ICC to exercise secondary jurisdiction over the matter. This is the case irrespective of whether a State party follows a dualist or a monist regime.
The outcome of these obligations has been an attempt on part of several State parties – including but not limited to Australia, Germany, United Kingdom, South Africa, Democratic Republic of Congo – to incorporate the provisions of the Statute into ICC implementation acts, to assert their primary jurisdiction. Generally, the States insert equivalents of the above-mentioned crimes within their domestic legislation. However, some states inserted crimes such as drug trafficking, human trafficking, diplomatic attacks and so on, into their definitions of the core crimes (See, SCHABAS, W. (2016). The International Criminal Court: a commentary on the Rome Statute, p. 185). The primary issue is that such an act can possibly amount to a negation of the principle of nullum crimen sine lege and strict legality which the International Court prides itself on.
Ramifications of the transcription of additional crimes
The Special Rapporteur in his fourth report submitted to the International Law Commission (1986) clearly stated that the characterization or criminalization of any crime is left open to international law and is independent of its implications under domestic law. The opinions rendered in cases like Prosecutor v. Hadžihasanović (para. 257) illustrate that the ICC also leaves the characterization of an offense to the national courts.
Previous literature has widely discussed the ramifications of dilution of the Statute’s position. For example, Gillian Triggs in his reference to Australia’s incorporation of the ICC Act mentions how the domestic legislation mirrors the Statute’s elements of crime but also adds some additional criteria which may make it difficult to prove genocide before the national courts. However, the existing literature fails to analyze the consequences of States going further than what the Statue contemplates.
The discussion assumes importance because even if human rights violators might be willing to admit to the commission of an ordinary crime, they would be averse to admit to the commission of more serious crimes, such as genocide or CAH. Consider this, an act which amounts to a violation of jus cogens is abhorred everywhere and is also subject to universal jurisdiction as opposed to ordinary international crimes. Here, terminology assumes importance. The heart of the core international crimes (maiming, torture, extermination and murder, cruel inhuman treatment) is known to be criminal everywhere even if one is not aware of the existence or the substance of international criminal law.
However, can all crimes be rightly included within definitions of ‘core crimes’ when subject to State discretion? Moreover, doctrinal studies show that the Statute’s incorporation into domestic legislation is often done by those State parties that: a) are non-democratic, to give off an appearance of legal transitioning and b) by those who wish to use their domestic statutes to get rid of their internal adversaries.
The ICC adopts the strict legality principle to protect the rights of a fair trial of the accused. For example, as opposed to its ad-hoc counterparts, the ICC strictly holds that the classification of an act as an “other inhumane act” will only hold when the act has not been subsumed by any other offense mentioned within the Statute and is a ‘serious’ violation of human rights that forms a part of customary international law. Additionally, the act must be of the same gravity as contemplated in the other offenses within Article 7 of the Statute. This departs from the law laid down in the Kupreskic chamber (para. 566) of the Yugoslavia tribunal with reference to an identical provision, where the chamber held that the violation of a set of “basic rights appertaining to human beings drawn from the sphere of international human rights law” is enough to attract criminality.
The ICC’s approach is similar to the law laid down by the subsequent Stakic judgment (para. 721) that impliedly overruled the Kupreskic judgment by observing that human rights instruments contain formulations and definitions that are different to international criminal law and thus cannot be the basis of attaching criminal responsibility. In essence, to go beyond the standard contemplated by the Rome Statute would essentially transform the Statute into an all-embracing one.
The Statute’s language must always be limited by its actual denotations. The only exception is under Article 10 of the Statute which allows for the criminalization of conduct in accordance with developing notions of international law. Of course, this has its own limitations, the international court would be guided by evolving customary international law and opinio juris of the state parties (See, Von Hebel & Robinson, Crimes within the Jurisdiction of the Court, in The International Criminal Court: The Making of the Rome Statute (Roy S. Lee ed. 1999)).
Another important issue is how complementarity is worked out in cases where the transcription of crimes not otherwise mentioned in the Rome Statute is done within the domestic legislation. Triggs too considered the issue of States asserting jurisdiction in cases which would not meet the qualitative standards of the Statute were they to come up before the ICC. For example, the State parties during the negotiation stage refused to give effect to the proposal to include the responsibility of legal persons, since they were concerned that not all national legal systems recognized it. Accordingly, this would lead to the ICC assuming jurisdiction in contravention of the complementarity provision. Would the reverse not hold true?
The question is whether state parties would be in breach of their obligations under international law on the occasion of unnecessary expansion of the Statute’s language during incorporation within their domestic legislation. While expansion of domestic legislation does not violate the accused’s rights per se – for instance where the States attempt at broadening the definition of rape or New Zealand’s attempt to include nuclear weapons apart from conventional weapons within Article 8 (war crimes) – certain guidelines could be issued to states to prevent the politicization of crimes on incorporation. Where judicial interpretation would exceed beyond what is contemplated in the Statute, the accused could take the plea of violation of Article 21(3) of the Statute. The International Court should also come up with solutions to the complementarity dilemma when the State’s definition of core crimes is broader than its own.
About the Author:
Ishita Chakrabarty is currently in the fourth year of her study at Hidayatullah National Law University, Raipur, India. She holds a penchant for International Humanitarian Law and International Criminal Law and wishes to pursue them as her Masters subjects. She previously authored and published an article with the Queen Mary Law Journal and interned in the capacity of a student researcher with Justice Indu Malhotra, Judge, Supreme Court of India and at the Commonwealth Human Rights Initiative.