ICC jurisdiction and Non-party States

The coming into force of the Rome Statute of the International Criminal Court (ICC) on 1 July 2002 was an unprecedented accomplishment. A court was established that would have the competence and jurisdiction in pursuance of the principle of complementarity to deal with the most grievous crimes ever heard by the humankind. The ICC has jurisdiction over genocide, war crime, and crime against humanity, the crime of aggression that are known as the 'core crimes' of international law. The jurisdiction of the ICC is conditional upon either the nationality of the person or the territory within which the crime supposedly took place. At least one of these two needs to be satisfied in order to invoke jurisdiction of the Court.

Another important aspect of invocation of the jurisdiction of the Court is a referral by the Security Council against non-party states as provided in article 13(b) of the Rome statute acting under Chapter VII of the Charter of the United Nations. When the Security Council does not refer any issue as mandated by chapter VII of the UN charter, then the question arises as to whether there is any scope to invoke the jurisdiction of the ICC over individuals of non-party states who have supposedly committed the crimes enumerated in article 5 of the Rome Statute.

Recently this question arose concerning the Rohingya issue where the prosecutor of the ICC on April 09, 2018 asked advisory opinion to the pre-trial chamber of the ICC as to whether ICC has jurisdiction against Myanmar for the crime of deportation of Rohingyas. In this situation, the pre-trail chamber of the ICC has positively said that it can exercise jurisdiction as per article 12(2) (a) of the Rome statute because the crime of deportation was committed in Bangladesh which is a state party to the Rome Statute.

The pre-trial chamber expanded the legal connotation of article 12(2) (a) of the Rome Statute which provides that “the Court may exercise its jurisdiction” if the “State on the territory of which the conduct in question occurred” is a State Party to the Statute. The chamber dealt with the question of whether this “conduct” requirement means only that “at least one legal element of the crime of article 5 must occur on the territory of a State Party or all elements of a crime have to be committed on the territory of the state party when the Rome Statute does not give any interpretation of this matter. The pre-trial chamber has interpreted article 12(2) (a) to the effect that since one element of a crime has been completed in a country which is a party to the Rome Statute, the ICC can exercise jurisdiction.

The United Nations (UN) presently has 194 member states whilst the Rome Statute has 123 state-parties. The possibility of the commission of crimes that are within the jurisdiction of the ICC by individuals of non- party states is always there. Since the Rome Statute is a treaty, this could mean that individuals of non-party states to the Rome statute are beyond the reach of the ICC. This can clearly undermine the international community's quest to end impunity. It is common knowledge that most serious crimes against humanity are usually committed by different organs of State (exercising Governmental authority), and in such cases, it is less likely that governments would ratify the Rome statute. The Security Council of the UN is mandated to refer any issue against the non-party to the ICC. But there is public confidence crisis over the Security Council. Security Council has so far referred two issues which concern African countries and it remains silent when the big powers and their allies commit grievous offenses.

As we know that ICC is different from any other international dispute settlement bodies like DSU of trade Law, ICJ, and ITLOS which only bind member states. But ICC was created with a purpose to end impunity on the most grievous international crime where Security Council was given the mandate to bind the non-party as well. When the SC is failing to perform in accordance with its mandate then the issue is how the purpose of creating ICC would be fulfilled.  Like Rohingya case the similar circumstances may arise in any other places sharing an international border like Palestine and Israel where the former is party to the Rome Statute and later is non-party to the Rome statute. In such circumstances, it is worth saying that recent ruling of the pre-trial chamber of the ICC against Myanmar can be a landmark example for future cases.

THE WRITER IS A STUDENT OF LLM PROGRAMME, SOUTH ASIAN UNIVERSITY, NEW DELHI, INDIA.