Introduction
The destructive effects of historical facts and issues had lead to the need for international institutions. International institutions have been created to compensate for the devastating atmosphere in the universal community by aiming to bring peace and prosperity again. In recent history, after World War 2, the universal community has witnessed atrocities and severe violations of human rights. Correspondingly the need for establishing international amity and safety in the post-war societies, the ad hoc tribunals had been established such as International Criminal Court for the Former Yugoslavia and International Criminal Tribunal for Rwanda. [1]Although these ad hoc tribunals have been effective to reconcile the nations who come out post-war atmosphere, this is not sufficient to provide a permanent criminal justice system. The intention of providing permanent criminal justice has urged the political organ of the United Nations, the Security Council, to establish a permanent criminal court that scopes out the crimes concern the universal community. Therefore, the International Criminal Court was created to take effect on these aims. This article will address the foundation and functions of the ICC within the scope of the Rome Statute, and it will criticize the ICC’s jurisdiction from the aspect of its contribution to international criminal law.
Foundation of International Criminal Court: a Brief Historical Background
Throughout history, humanity has witnessed that crimes perpetrated, and the ad hoc tribunals were not efficient enough to prosecute the perpetrators of these crimes. The establishing of ad hoc tribunals was time-consuming so it brought along severe problems, such as tampering with the evidence, hiding the perpetrators.[2] This is a fact that it is not possible and -also- practical to establish a new ad hoc tribunal every time needed. Thus, the International Criminal Court, as a permanent court, fills a huge void in international criminal law. The ICC was established after the Rome Statute was adopted with the participation of many states on 17 July 1998. The establishment of the ICC was completed in 2002, and as we will mention later elaborately, ICC’s jurisdiction in time is limited with the crimes that perpetrated after this date.
Art 1 of the Rome Statute refers that the Court is a ‘permanent institution’, and it prescribes the conditions for exercising its jurisdiction. Part 1 of the Rome Statute addresses the fundamental facts about the establishment of the ICC.
The Jurisdiction of the International Criminal Court
Art 1 of the Rome Statute mentions that the Court exercises its jurisdiction over individuals for the ‘crimes of international concern’, but these crimes are specified in Art 5; the crime of genocide, crimes against humanity, war crimes, the crimes of aggression. According to the Statute, any kind of hierarchy is not conceived among these crimes. These crimes are defined in the Statute, respectively. It is clear that the jurisdiction of the ICC is not limited in time and territoriality in contrast to ad hoc tribunals. As we have said, the ICC’s jurisdiction in rationed personae is limited to the individuals; but also, Art 27 regulates that the ICC does not differentiate between the persons, according to official capacity or duty. Also, the Rome Statute prescribes the pre-conditions of the Court’s jurisdiction, if the perpetrator is a citizen of a state that affirms the Statute or the crime is perpetrated in the region of a state that a party to Statue; the Court can exercise its jurisdiction.
Subject-matter Jurisdiction of the ICC: The Function of the Court
According to Art 5, the ICC may prosecute these four types of international crimes: genocide, crimes against humanity, war crimes, and aggression. These offenses are defined elaborately in the Statute. In contrast to, former international criminal courts’ classifications and definitions, the elements of the global offenses have become more notable. The crimes are subcategorized in the Statute; it shows that the ICC’s subject matter jurisdiction is not limited to abstract and general acts, the Statute prohibits certain conducts.
Also, the Statute refers to the crimes’ two essential mental elements, such as ‘actus reus’ and ‘mens rea’. By this means, it is possible to distinguish the crimes which have similar ingredients. For instance, when ‘genocide’ and ‘crimes against humanity’ are examined comparatively, it may seem that both crimes consist of similar acts, such as rape, slaughtering, extermination, etc. However, the Statute states that ‘genocide’ must be perpetrated with the specific intent (mens rea) to ‘destroy a national, ethnical, racial or religious group’.[3] Art 6 of the Statute both defines mens rea of the genocide and refers sub-crimes pertaining to genocide. This makes it easier to distinguish the crimes categories from each other then it is not possible to classify any kind of atrocity as genocide, or a war crime, without conceiving the mental element and sub-categories of the crime.[4]
The Rome Statute has narrowed and specified the definitions of the global offenses to obviate the confusions between the four crimes, and impunity of such conducts. Therefore, the contribution of the ICC’s subject-matter jurisdiction to substantive criminal law is remarkable.
The Principle of Complementarity and The Role of the ICC in the International Criminal Law
Contrary to ad hoc criminal tribunals such as UCTY and ICTR, there is a complementary relationship between the ICC and the domestic criminal jurisdictions. According to the complementary principle, the ICC only exercises its jurisdiction when the national criminal courts are unable or unwilling to punish the perpetrators or to commence the prosecution. Therefore, the complementarity principle remarks that the ICC’s role in international criminal law is not primary, it is subsidiary. Although the Statute does not explain the ‘complementarity’, Art 1 use this phrase while referring to the Court’s jurisdiction.[5]According to Article 17 regulates the admissibility conditions, if a State exercises its jurisdiction over a case the ICC’s jurisdiction over that case is restricted, by virtue of the complementarity principle.[6] Also, there are ongoing debates about how should be the implementation of the complementarity principle in practice. ICC’s complementarity role is available to abuse in some situations, for instance, national authorities may pretend to investigate the crimes to prevent ICC enjoys its jurisdiction. Besides, ICC may initiate to enjoy its jurisdiction regardless of how national authorities are capable and willing to investigate the crimes.[7] Uganda, the first State who referred the situation to the Court is an example of this problematic effect of the complementarity principle.
ICC’s Contribution to International Criminal Law
The ICC’s major contribution to international criminal law lies in the elimination of impunity. It is a fact that the existence of a permanent international court that aims to end impunity and establish the rule of law is needed, and the ICC reaches these aims. ICC reduces impunity by investigating and prosecuting individuals for the crimes that counted in the Art 5. ICC’s complementarity jurisdiction obviates delaying of the prosecutions and tampering the evidences, to eliminate the impunity. Also, ICC provides retributive and restorative justice by punishing the perpetrators and allowing the victims to participate in the judicial proceedings.
Art 16 regulates the deferral of the Security Council; according to Chapter 7 of the UN Charter, ICC’s investigation and prosecution over any case may be postponed for twelve months by the Security Council. It is contentious that whether Security Council enjoys this deferral with political motivations. It is possible to say that the deferral of the Security Council may be an interference to the Court’s jurisdiction. Thus, the Court’s impartiality and independence would be damaged because of the deferral of the Security Council.
Conclusion
Although the Rome Statute does not grant the International Criminal Court primary and supreme authority, the Court has played a vital role in establishing the rule of law and filling the voids in international criminal law. The ICC has contributed to both substantive and procedural law by delineating the international crimes elaborately and complementing the national criminal jurisdictions. Ending the impunity of international crimes is ICC’s core aim; and this aim, also, provides that the deterrence of the potential perpetrators. Even there are possible concerns about the relationship between ICC’s complementary role and state sovereignties, ICC provides effective prosecution and investigation for the crimes at the national level.
Bibliography
Aksar, Yusuf (2014), ‘Uluslararası Bir Suç Kategorisi Olarak Soykırım Suçu’, MÜHFD, issue 13, p.16-32.
Benzing, Markus (2003), ‘The Complementarity Regime of the International Criminal Court : International Criminal Justice between State Sovereignty and the Fight against Impunity’, Max Planck Yearbook of United Nations Law Online 7(1)- https://www.researchgate.net/publication/27280620_The_Complementarity_Regime_of_the_International_Criminal_Court_International_Criminal_Justice_between_State_Sovereignty_and_the_Fight_against_Impunity – 20.01.2021.
Bozkurt, Enver& Poyraz, Yasin& Erdal, Selcen (2018) Devletler Hukuku, 10. Baskı, Ankara, Legem, p.160-200.
Cassese, Antonio (1999), ‘The Statute of the International Criminal Court: Some Preliminary Reflections’, European Journal of International Law- http://www.ejil.org/article.php?article=570&issue=43 -, 22.01.2021.
Yavaş, Emre (2015), ‘The Critical Analysis of the Relationship Between The International Criminal Court and The United Nations Security Council’, Uyuşmazlık Mahkemesi Dergisi- https://dergipark.org.tr/en/download/article-file/155619-, 23.01.2021.
[1]Yavaş, Emre (2015), ‘The Critical Analysis of the Relationship Between The International Criminal Court and The United Nations Security Council’, Uyuşmazlık Mahkemesi Dergisi- https://dergipark.org.tr/en/download/article-file/155619 -, 23.01.2021.
[2]Bozkurt, Enver& Poyraz, Yasin& Erdal, Selcen (2018) Devletler Hukuku, 10. Baskı, Ankara, Legem, p.165.
[3]Aksar, Yusuf (2014), ‘Uluslararası Bir Suç Kategorisi Olarak Soykırım Suçu’, MÜHFD, issue 13, p.17
[4]Cassese, Antonio (1999), ‘The Statute of the International Criminal Court: Some Preliminary Reflections’, European Journal of International Law – http://www.ejil.org/article.php?article=570&issue=43-, 22.01.2021.
[5]Benzing, Markus (2003), ‘The Complementarity Regime of the International Criminal Court : International Criminal Justice between State Sovereignty and the Fight against Impunity’, Max Planck Yearbook of United Nations Law Online 7(1)-https://www.researchgate.net/publication/27280620_The_Complementarity_Regime_of_the_International_Criminal_Court_International_Criminal_Justice_between_State_Sovereignty_and_the_Fight_against_Impunity –, 20.01.2021.
[6]Bozkurt& Poyraz& Erdal, p.172
[7]Cassese, p.162
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