1

Introduction
International crimes are defined as "such an act universally recognized as criminal, which is
considered as a grave matter of international concern and for some valid reason cannot be left within
the exclusive jurisdiction of the state that would have control over it under ordinary circumstances” 1.
International criminal law system is seen as “sui generis system” as it has practices, laws and
procedures of its own. When it comes to the crimes of brutal nature, crimes which are international in
nature and crimes committed by the military the cases will be heard by International courts, it is
because of this reason that the Domestic courts seems to be biased towards the crimes done by the
criminal who is in power of that state2, therefore a need for International Criminal court is felt. As the
laws related to armed conflict and concepts of persecution were part of Domestic courts even before
accepting Roman statute, the termination of the Tokyo and Nuremberg Tribunals 3 and formation of
International criminal court. Domestic courts used to prosecute high number of International criminal
cases compared to number of cases prosecuted in International Criminal courts at present. Importance
to the Domestic courts is considered as prime Importance on which the concept of International
Criminal courts is formed that is International Criminal courts Prosecute crimes only if it is found that
Domestic courts cannot effectively prosecute International crimes due to legal or factual hindrances or
when the states interest can affect the outcome of the case 4, this is done by the ICC so that the
sovereignty of the state is not affected. Prosecuting of International crimes got reduced after ICTY
and ICTR5, even after ICTY and ICTR legitimised the persecution of International crimes in
International system still the priority is given to the National courts. The decision of state to allow
International courts and tribunals will depend upon various factors like diplomacy or its capacity to
handle the case will depend upon the facts and circumstances of case, most of the times the reason for
states not allowing ICC to prosecute International crime is because it sees that ICC is not adequate to
deal with that case and its decision might affect the interests of that state.

1
Fry, Elinor. The Nature of International Crimes and Evidentiary Challenges: Preserving Quality While
Managing Quantity (2014).
2
Gabriele Olivi. The Role of National Courts in Prosecuting International Crimes: New Perspectives (2006). 18
Sri Lanka JIL 83. https://heinonline.org/.
3
William A. Schabas. An Introduction to the International Criminal Court (2001) Cambridge University Press.
4
Introduction: National Prosecutions of International Crimes: Sentencing Practices and (Negotiated)
Punishments (2019). International Criminal Law Review, Volume 19: Issue 1, 1-14. Doi:
https://doi.org/10.1163/15718123-01901001
5
Charney, J. International Criminal Law and the Role of Domestic Courts (2001). The American Journal of
International Law, 95(1), 120-124. doi:10.2307/2642041
 2

Article 17 of the ICC statute is also designed in a way that domestic courts are given importance over
Jurisdiction International criminal courts in Prosecution of International crimes when the case is well
within the authority of such court. Apart from this, two main principles spoke about the Jurisdiction of
Domestic courts over International crimes. “Universal Jurisdiction” is one of the principles which
emerged after World War-I, this principle state that any state has the Jurisdiction to deal with the
cases which are cause of concern to international community. Geneva Convention 1949 also states
that prosecution of crimes like war crime and genocide can be done by the Domestic courts and
enable Domestic courts to implement proper principles and procedures while dealing with
international crimes. Roman Statute also mandates its member states to make amends to its
legislations so that they can deal with International crimes, this rule by the Roman statute are based on
the Principle of Complementarity.

Significance of the study

As we move forward towards globalization, international relations have become more and more
important. And the natures of crimes across the countries are getting more serious as well. Hence
studying criminal law had become very important. This research paper helps the Domestic courts to
understand the advantages and disadvantages of prosecuting International criminals and it helps to
make changes to the procedures while dealing with cases related to International crimes in the
legislation. This research paper can help the Domestic courts to operate according to the laws of
International criminal laws and to distinguish between International crime and Domestic crimes. This
paper also helps the International courts and tribunals in finding out the factors responsible for
hindering its Jurisdiction, so that it can help in expanding its Jurisdiction and making the process
prosecution of International crimes effective.

Research Objective

The Aim of this research paper is to understand the Nature of International crimes and Jurisdiction of
International criminal courts over International crimes, and studies the factors which are responsible
for hindering the Jurisdiction of International criminal courts and Tribunals over such crimes. This
paper studies the development of International criminal courts and tribunals, and how they deal with
the International crimes. This paper then analyse the reasons for increasing number of International
crimes being prosecuted by the Domestic courts. This paper also helps to understand the Sources of
Jurisdiction for Domestic courts to deal with International crimes and the procedure followed by the
Domestic courts while dealing with International crimes. The distinction between the procedures
followed by International and domestic courts are also studied in this paper along with the role played
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by the domestic courts in prosecuting and penalising criminals who committed international crime.
This paper helps in understanding the advantages and disadvantages of Domestic courts prosecuting
International crimes with the help of cases in which domestic courts prosecuted International
criminals in countries like Germany, South Africa, Spain and Rwanda. This paper also studies the
punishment and sentencing of International criminals by the Domestic courts.

Jurisdiction of International Criminal Courts

The need for a permanent International was first proposed by founders of Red Cross movement. The
need for such court was felt because in some cases crimes are committed by some group of people
who are not part of that state or not within the borders of any particular state. There are numerous
difficulties while dealing with such crimes by domestic courts so the need for International courts
with Jurisdiction to deal with crimes of such nature was felt. International Criminal courts and
Domestic courts have Jurisdictional relationship based on complementarily principle, this principle
states that Domestic courts hold the precedence over International criminal courts in the matters of
humanitarian laws. International criminal courts can exercise its Jurisdiction when domestic courts
does not want to procedure and unable to investigate such crimes. International Law Commission also
created various Tribunals to deal with war crimes in Rwanda and Yugoslavia on the request of United
Nations General Assembly6.

International criminal courts have Jurisdiction on crimes respect to war crimes, crimes against
humanity, crimes of aggression and genocide, as per Article 5 of Roman Statute. International
criminal courts have two principles on which it has tied to authentic Jurisdiction. One of the principle
is nationality or territorial principle, this principle talks about territorial Jurisdiction of the courts, this
principle allows the domestic courts to assert their Jurisdiction on the international crimes. The states
which are not part of Rome statute can also have their Jurisdiction over such crimes. International
criminal court can have Jurisdiction over domestic courts which are not part of Rome statute by
lodging a declaration with registrar. Korean delegation have provided with two additional
Jurisdictional links:-1) State of Nationality of the victim and 2) Custodial state, this suggestion had
received support accommodated by United Sates. This helped in many countries ratifying the statute 7.

The Jurisdiction of International criminal courts under Article 5 is triggered in three ways. In one of
the ways a state party need to refer the situation of the case and request the court for prosecution of
the case by initiating investigation. In the second method a security council can refer the situation to
the court by adopting a resolution under Chapter-7 of United Nations Charter. Lastly Prosecutor own
6
Ms. Leoni Mahanta. International Criminal Court: Jurisdictional Issues. Legal Service India.
Http://Www.Legalserviceindia.Com/Articles/Int_Juc.Htm#:~:Text=Jurisdiction%20of%20the%20International
%20Criminal,The%20purpose%20of%20the%20Statute.
7
Statute Of The International Criminal Court. Advisory Service On International Humanitarian Law. Comite
International Geneve.
 4

their own can initiate investigation. Measures have been taken in order to ensure that prosecutor is not
initiating investigation based on his political motives. The prosecutor in order to file the for
authorisation of the investigation before Pre-Trial Chambers, if the pre-trial chambers finds that there
are reasonable bases for filing for investigation then it will authorize for investigation. If pre-trial
chamber refuses to give authorisation for investigation then the prosecutor can re-submit the file with
new facts and evidence.

Elements and Nature of International Crimes

Aggression, war crimes, crimes against humanity and genocide are defined under Articles 5-8 of the
Roman Statute. Article 5(2) sates that once defined crime of aggression under a provision
International criminal court can have Jurisdiction over it. Article 6 of the statute reiterates 1948
Convention on prevention and punishment of the crime of Genocide. i Under the article genocide has
be defines as actions done with the intention of destroying national, racial, ethnical or religious groups
in whole or in part. Article 7 of the statute deals with Jurisdiction of ICC over crimes against
humanity8. This article defines crimes against humanity as any action committed against civilians as a
part of systematic or widespread attack. Article talks about the Jurisdiction of International Criminal
courts against war crimes. War crimes are defined as crimes which includes serious violations of
International humanitarian law which are included in Geneva Conventions 9.

Issues with International Criminal Courts

International Criminal Court has been widely criticised for not maintaining Justice and peace for a
long time. There are number of reasons for the failure of ICC to maintain peace and justice. Few of
the reasons for its failure are due to political as well as structural difficulties, lack of resources, and it
also has to face many institutional restrictions and also it can be manipulated by states as well. ICC
has many times been partial while dispensing Justice. Even now many states did not accepted the
legitimacy of ICC because some powerful States manipulate the institution of ICC for their own
motives ex. As Russia does not agree to refer situation to ICC but it used ICC for its political gains by
filing complaint against Georgia. Politics in ICC can also hamper investigation of the case. The
legitimacy of International Criminal Courts can be Increases only if it increases its Autonomy. Even
tough International Criminal courts acts according to International law but it chooses its Prosecutions
according to their motives. ICC most of the times only choose cases which are very serious in nature
8
Statute of the International Criminal Court. ADVISORY SERVICE ON INTERNATIONAL
HUMANITARIAN LAW. Comite International Geneve.
9
Ms. Leoni Mahanta. International Criminal Court: Jurisdictional Issues. Legal Service India.
http://www.legalserviceindia.com/articles/int_juc.htm#:~:text=Jurisdiction%20of%20the%20International
%20Criminal,the%20purpose%20of%20the%20Statute.
 5

and crimes in which investigation is feasible or crimes in which there is already a local justice system
is available. Because of all this setbacks ICC many times fails to prevent potential criminals from
being violent. Because of this reason many states prosecute International crimes in Domestic Courts. 10

Domestic Courts and International Criminal laws

After the termination of Nuremberg and Tokyo Tribunals Domestic courts reduced the number of
prosecution of International crimes. But after the establishment of ICTY and ICTT the number of
prosecutions of International Crimes in domestic courts in some states has increased. Before
establishing this tribunals prosecution of International Crimes by Domestic courts is seemed be as an
act of vengeance. Many times it is preferred to prosecute cases of severe atrocities in Domestic
courts. United Nations High Commission for Human rights once stated that “prosecution of
International Crimes in International Courts will never be sufficient to achieve Justice.” 11Many
International treaties like Convention on Genocide, Geneva Convention, and Convention on torture
make domestic courts obligated to make prosecute some of the international crimes. And the countries
which are not a part of the Roman statue prosecute these International crimes in their Jurisdiction. As
it can be seen that Rome statute is based on the principle of National courts, Article 17 of this
International law states that ICC can prosecute International criminals only when Domestic courts
factually-legally cannot deal with the International crimes. Article 17 makes it compulsory to courts to
have certain legislations in order to deal with International crimes, because of these treaties and article
17 domestic countries have made changes to their legislations in order to deal with international
crimes. In most of the times the states might feel they should retain power to control the prosecution
in cases where crimes have been took place in its territory, stopping state from prosecuting such
matters only deprive state of its sovereignty. Many times states wish to resolve matter diplomatically
without going to International tribunals. In order to prosecute International crimes it is important for
states to have a criminal legislation which deals with prosecution of war crimes, genocide, aggression
and crimes against Humanity, states should apply customary International law directly. National
criminal laws should refer to Customary International laws while framing laws. Application of
ordinary as well as special criminal laws.

In countries like Rwanda, South Africa there has been an increase in Domestic Prosecution of
International crimes. One of the cases of domestic prosecution can be seen in a Spanish court where
the court held prosecution against Augusto Pinochet, he was released by the court but his immunities
were revoked by the government of Chile and civil and criminal actions have been taken on him.

10
Catherine Gegout (2013) The International Criminal Court: limits, potential and conditions for the promotion
of justice and peace, Third World Quarterly, 34:5, 800-818, DOI: 10.1080/01436597.2013.800737.
11
Gabriele Olivi, The Role of National Courts in Prosecuting International Crimes: New Perspectives, 18 Sri
LANKA J. INT'l L. 83 (2006).
 6

Similar cases can be seen in the court of Cambodia where Senegal of Chad’s president Hissein Habre
was arrested for indictment.

Conclusion

Due to may constrains like legal, practical and political constrains International Criminal courts and
Tribunals are facing harsh criticism from scholars around the world, the court have also given
Jurisdiction to many domestic courts and transferred its cases to such courts. It can be seen that in
order to achieve Justice and peace International Criminal Courts alone cannot perform, International
Criminal law requires the trust of all the states and it should be given autonomy for its effective
functioning. But in the word of politics and power, it is difficult for ICC to function effectively,
therefore it leads to denial of justice and will be difficult to maintain peace. In this case Domestic
courts can fill this gap by expanding their Jurisdiction by making changes to its legislation according
to the obligations stated by various International Conventions and Article 17. In case Domestic courts
don’t comply with customary International laws then International Criminal Courts step in for the
prosecution of International Crimes.
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References

 Charney, J. (2001). International Criminal Law and the Role of Domestic Courts. The
American Journal of International Law, 95(1), 120-124. doi:10.2307/2642041
 Catherine Gegout (2013) The International Criminal Court: limits, potential and conditions
for the promotion of justice and peace, Third World Quarterly, 34:5, 800-818, DOI:
10.1080/01436597.2013.800737.
 CLEO MEINICKE (2019). An International Criminal Court is hereby established.
 It [...] shall be complementary to national criminal jurisdictions. ICC Rome Statute Article 1.
PILPG A global pro bona Firm.
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 Sergiy Smirnov, Sayenko Kharenko (2020). Ukraine: International Crimes And Domestic
Criminal Law.
 Antonio Cassese (2011). International Criminal Law. Oxford University Press.
 Introduction: National Prosecutions of International Crimes: Sentencing Practices and
(Negotiated) Punishments. International Criminal law Review.
 Close
 Gabriele Olivi, The Role of National Courts in Prosecuting International Crimes: New
Perspectives, 18 Sri LANKA J. INT'l L. 83 (2006).
i
Introduction: National Prosecutions of International Crimes: Sentencing Practices and (Negotiated) Punishments
(2019). International Criminal Law Review, Volume 19: Issue 1, 1-14. Doi: https://doi.org/10.1163/15718123-
01901001