11 - Chapter 2

International Crimes
INTRODUCTION
The founding document of the International Criminal Court is the Rome

Statute, which was adopted on June 1998. By 60th ratification of the Rome Statute in
April 2002, the Court began its functioning from July 1, 2002. It is situated in the
Hague, Netherlands. Presently, there are 123 State-parties. Malaysia being the most
recent which ratified the statute on 4 th march 2019. For the first time in the history of
humankind, States decided to accept the jurisdiction of a permanent international
criminal court for the prosecution of the perpetrators of the most serious crimes
committed in their territories or by their nationals after the entry into force of the
Rome Statute on 1 July 2002.
The International Criminal Court is not a substitute for national courts.

According to its provisions, it is the duty of every State to exercise its jurisdiction and
prosecute the perpetrators of the most serious crimes committed in their territories .
The International Criminal Court can only intervene where a State is unable or
unwilling genuinely to carry out the investigation and prosecute the perpetrators. The
primary mission of the International Criminal Court is to help put an end to it. A well-
informed public can contribute to guaranteeing lasting respect for and the
enforcement of international justice.
CRIMES DEALT BY THE ICC
The jurisdiction of the ICC mandates the trial of individuals rather than Sates.
It holds individuals accountable for the most serious crimes, which are of threat to the
international community, whether individuals or States, or collective regions of the
world. Crimes of aggression, genocide, crimes committed in war, or any crime
International Crimes Under the Statute of International Criminal
Court
committed against humanity fall under the ambit of the ICC. Conditions for the
exercise of the ICC jurisdiction must be fulfilled for it to be able to punish the guilty.
2.1.1 GENOCIDE
Means “acts committed with the intention of destroying, a national, racial or

religious group either in part or whole”.
These are stated in the Rome Statute.
 In brief these include causing serious mental or physical harm which may be
life threatening to killing of the members of the group.
 Preventing child births within groups or transferring of children by force.
2.1.2 CRIMES AGAINST HUMANITY
These are wide spread attacks inflicted upon any civilian population with prior
knowledge of the injury.
 Inhumane acts forced upon an individual or groups such as killing, transfer,

torture, slavery, physical abuse, rape, pregnancy, sterilization or any other
form of sexual violence.
 Forced disappearance of persons, discrimination due to color, or any other
form of physical or mental harm.
2.1.3 WAR CRIMES
These crimes are not of an „international character”. These crimes include

grave breaches of the Geneva Convention and are listed in the Rome Statute.
Characteristics of these crimes are that they are committed as part of a plan on a large
scale.
 Taking of hostages, cruel treatment, torture, murder or mutilation.

 Vandalising religious structures, educational institutes or places of arts.
 Attacks on hospitals, charitable institutions, historical monuments.
Page | 2
Court
 Attacks on civil population.
 Sexual violence of the likes covered under the “Crimes against Humanity”.
 Recruitment of children under the age of 15 years into armed forces and
making them participate in hostilities.
2.1.4 CRIME OF AGGRESSION
This means the use of armed force by a State against the territorial integrity or
political independence of another State. Not just the execution of armed force attack is
prohibited but also the planning, preparing or even initiating it is prohibited, as stated
by the Assembly of States Parties. It was adopted in 2010 at the Review Conference
of the Rome Statute. Specifically act of aggression includes annexation of ports or
coasts or its military occupation by force. These acts should be by character, gravity
or scale be violating the Charter of the United Nations. Any individual who is in a
position to exercise control over or is able to direct the political or military action of a
State is known as “The perpetrator of the act of aggression”.
2.2 DOES THE ICC HAS JURISDICTION OVER THE CRIME OF

AGGRESSION?
According to decision made by two-thirds majority of State Parties, after 1

January 2017, and subject to ramifications of the amendments by at least 30 State
Parties.
The Rome Statute of the International Criminal Court is a gift of hope to

future generations, and a giant step forward in the march towards universal human
rights and rule of law. The statute is not a perfect instrument and includes „messy
technical solutions, awkward formulations and difficult compromises that fully
satisfied none‟1. Every nation represented in the negotiations at the Preparatory
1
For the negotiating history of the ICC Statute, Keith-Hall, “The First and Second Sessions of the
UN Preparatory Committee on the Establishment of an International Criminal Court”, American
Journal of International Law, Vol.91 (1997), PP. 177-187; Keith-Hall, “The Third and Fourth
Sessions of the UN Preparatory Committee on the Establishment of an International Criminal
Court”, AJIL, Vol.92 (1998), PP.124-133.
Page | 3
Court
Committee came prepared to represent its own interests. Consequently, the Rome
Statute represents a compromise which reflects the interests of states and their
representative elites rather than a universally shared conception of human dignity 2.
Albeit, it can be seen as a balance instrument designed to ensure the effective
functioning of the ICC and sufficient safeguards to foster widespread support among
states. The statute recognizes a visible reaffirmation of the indomitable hope that
perpetrators of the most serious crimes of concern to the international community as a
whole „must not go unpunished and that their effective prosecution must be ensured
by taking measures at the national level and by enhancing international cooperation‟3.
The „jurisdiction‟4 of the ICC is a legal basis of the powers and functions it
enjoys to accept and try a case, directly under the Rome Statute. Throughout the
negotiation, the provisions relating to jurisdiction, admissibility and the applicability
of the appropriate law, which presently constitute the heart of the statute, were the
most complex, and the most sensitive and were the most difficult issues to negotiate 5.
The universal character of the ICC is manifesting a sine qua non for its effective
functioning. Due to its inherent limitations, its efforts in addressing the problem of the
impunity of perpetrators of heinous crimes will not be successful unless they are
complemented by the sincere efforts of the concern national governments at the
2
Elias Davidsson, “Economic Oppression as an International Wrong or as Crime Against
Humanity”, Netherlands Quarterly Human Rights, Vol.23, No.2 (2005), P.208.
3
Preamble, para. 4, Rome Statute.
4
„Jurisdiction‟ has been defined as “the right or authority to apply the law; the exercise of authority;
the limits of territory over which such authority extends”, Geddes &Grosset, Webster‟s Dictionary
and Thesaurus (2007). Rajasekar states the term jurisdiction, which may be defined as “the
authority of States to prescribe their law, to subject persons to adjudication in their Courts and
tribunals, and to enforce their law, both judicially and non-judicially”. He also sets out that the
jurisdiction in International Law involves two aspects one of which is rule making and the other
rule enforcing. G. RAJASEKAR, “LARGER EXPECTATION LIMITED REALITY: A STUDY
ON THEORY AND PRACTICE OF UNIVERSAL JURISDICTION”, ISIL YEARBOOK OF
INTERNATIONAL HUMANITARIAN AND REFUGEE LAW, Vol.VIII (2008), P.164. For
further reading on the issue of jurisdiction, particularly criminal jurisdiction, D.J. Harris, Cases and
Materials on International Law, 5th edition, (1998), P.264.
5
M. Cherif Bassiouni, “Negotiating the Treaty of Rome on the Establishment of an International
Criminal Court”, Cornell International Law Journal, Vol.32, 1999, PP.443-469, at PP.453-454;
Gennady M. Danilenko, “THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT
AND THIRD STATES”, Michigan Journal of International Law, Vol.21, No.3, Spring 2000,
PP.453-455. For detail history, M. Cherif Bassiouni, “Historical Survey: 1919 - 1998”, in M. Cherif
Bassiouni (ed.), THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A
DOCUMENTARY HISTORY I (1999).
Page | 4
Court
domestic level. Because, the ICC is complementary to national jurisdiction and its
role and jurisdiction is limited to exceptional circumstances. The imperatives of
international criminal justice demand that every state exercises its criminal law
jurisdiction over the persons responsible for grave international crimes and to that end
reform and strengthen its national criminal justice system6.
Prior to the ICC, although there were useful mechanisms of international

justice, never before had the international community attempted to create a court with
such general scope and application7. The Nuremberg IMT had exercised jurisdiction
„to try and punish persons who, acting in the interests of the European Axis countries,
whether as individuals or as members of organisations‟ had committed one of the
crimes within the tribunal‟s subject - matter jurisdiction 8. Its jurisdiction was personal
in nature, and defendants had to have acted in the interests of the European Axis
countries.
The jurisdiction of the ICTY is confined to crimes committed on the territory

of the former Yugoslavia since 19919. The jurisdiction of the tribunal is territorial in
nature. Similarly, the ICTR has jurisdiction over crimes committed in Rwanda during
January 1 to December 31,1994, and over crimes committed by Rwandan nationals in
neighbouring countries in the same period10. Accordingly, its jurisdiction is both
territorial and personal.
6
M. CherifBassiouni, “Negotiating the Treaty of Rome on the Establishment of an International
Criminal Court”, Cornell International Law Journal, Vol.32, 1999, PP.443-469, at PP.453-454;
AND THIRD STATES”, Michigan Journal of International Law, Vol.21, No.3, Spring 2000,
PP.453-455. For detail history, M. CherifBassiouni, “Historical Survey: 1919 - 1998”, in M.
CherifBassiouni (ed.), THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A
DOCUMENTARY HISTORY I (1999).
7
WILLIAM A. SCHABAS, “AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL
COURT”, (2004), P.67.
8
Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis and
Establishing the Charter of the International Military Tribunal (IMT), Annex, (1951) 82 UNTS 279,
Art. 6 included crimes against peace, war crimes and crimes against humanity.
9
Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc.S/RES/827,
Annex. The crimes included in the ICTY Statute are grave breaches of the Geneva Conventions
1949 (Art 2), War Crimes (Art. 3), Genocide (Art.4), and crimes against humanity.
10
Statute of the International Tribunal for Rwanda, UN Doc.S/RES/955, Annex. The Statute sets out
three separate categories of crime which comes within the Tribunal‟s jurisdiction; genocide (Art.2),
Page | 5
Court
The basic difference of the ICC with the earlier tribunals is that the former is
being created with the consent of those who will themselves be subject to its
jurisdiction. States have agreed that the crimes committed on their territory, or by
their nationals, that may be prosecuted, which are the fundamentals of the ICC‟s
jurisdiction. The jurisdiction that the international community has given to the ICC is
narrower than the jurisdiction that individual states are entitled to exercise with
respect to the crimes defined in the ICC Statute 11. The jurisdiction of the ICC is
qualified by certain provisions of the Rome Statue12.
The Rome Statute distinguishes between the two related concepts - jurisdiction
and admissibility. Jurisdiction refers to the legal parameters of the ICC‟s operations 13,
i.e., pre-conditions for exercising court‟s jurisdiction. The question of admissibility
arises at a subsequent stage that seeks to establish whether matters over which the
ICC has jurisdiction could be litigated before it. In wider sense, jurisdiction concerns
the ICC‟s consideration of a „situation‟ in which a crime has been committed,
whereas, by the time the issue of admissibility is being examined, prosecution will
necessarily have progressed to the identification of a „case‟ 14. The ICC may have
jurisdiction over a „situation‟, because it arises within the territory of a state party or
involves its nationals as perpetrators, although a specific „case‟ will be inadmissible
because the individual suspect is being prosecuted under national legal mechanism.
„Admissibility‟ suggests a degree of discretion, whereas the rules of jurisdiction are
strict in application having no exception 15. The court is being obligated to satisfy itself
that it has jurisdiction over a case, whether or not the parties raise the issue; whereas
its consideration of admissibility appears to be only permissive.
crimes against humanity (Art.3) and serious violations of Art.3 common to the Geneva Conventions
1949 and Additional Protocol II of 1977 (Art.4).
11
See Rome Statute, Article 17.
12
Rome Statute, Articles 5,12 and 13.
13
SCHABAS, supra note 7, P.68.
14
Ruth B. Philips, “The International Criminal Court Statute: Jurisdiction and Admissibility”, 10
Criminal Law Forum (1999), P.61 at P.77.
15
SCHABAS, supra note 7, P.68.
Page | 6
Court
Both the provisions in the Rome Statue appear to overlap. For example, the
ICC Statue declares that the court has jurisdiction over war crimes „in particular,
when committed as a part of a plan or policy or as part of a large-scale commission of
such crimes‟16. Even though, in a provision dealing with admissibility, the ICC is
empowered to refuse to hear a case that „is not of sufficient gravity‟ 17. It reflects that
one addressing jurisdiction while the other addresses admissibility, may be rather
comparable, in which the ICC will decline to prosecute less serious or relatively
minor crimes.
2.3 NATURE OF THE ICC JURISDICTION
The ICC deal with the most serious crimes which are of serious concern to the
international community as a whole, in such a circumstance it is quite logical that it
would have some kind of jurisdiction based on universality. It is hardly surprising for
the ICC that states would have to accept a certain limitation of one of the most sacred
areas of state sovereignty: criminal jurisdiction18. It implies that especially the
negotiations on the jurisdictional regime for the ICC were constantly marked by the
conflicting concepts of state sovereignty versus universality19.
The universality approach states from the assumption that, under current
international law, all states may exercise universal jurisdiction over the core crimes. It
implies that state must be entitled to do collectively what they have the power to do
individually. States may agree to confer its individual power on a judicial mechanism
16
Rome Statute, Article 8(1)
17
Ibid, Article 17(l)(d).
18
See Antonio Cassese, “On the Current Trends towards Criminal Prosecution and Punishment of
Breaches of International Humanitarian Law”, 9 EJIL (1998), P.2 at PP. 11,12.
19
Some states, e.g., India, Mexico, Indonesia and Japan, were primarily concerned with their
sovereignty which, in spite of their declared support for the project, only wanted a symbolic or
weak or facultative jurisdictional competence for the future ICC. On the contrary, among the states
belonging to the „like-minded Group‟ (hereinafter „LMG‟), most members of this group preferred
a jurisdictional regime based on some form of universal jurisdiction, which implies that a State
Party of the ICC obtaining custody over a person responsible for core crimes would enable the court
to exercise jurisdiction over that person regardless of his or her nationality or the locus of the crime.
Hans - Peter Kaul, „PRECONDITIONS TO THE EXERCISE OF JURISDICTION‟, in A. Cassese
et al. (eds.), the ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A
COMMENTARY, Vol.I (2002), P.585.
Page | 7
Court
they have established and sustained together, which acts on their behalf. A state which
becomes a party to the Rome Statute thereby accepts the jurisdiction with respect to
the international core crimes. Consequently, no particular state - be it a State Party or
non-State Party - must give its specific consent to the exercise of the jurisdiction in a
given case. In essence, it is the regime that follows from an approach based on the
principle of universal jurisdiction20.
At Rome, Germany advocated that under current international law, all states
have universal jurisdiction over crimes defined by the Rome Statute and that the ICC
should be in the same position21. But, the German proposal was rejected. Among the
states belonging to the „like-minded Group‟(hereinafter „LMG‟), suggested that the
ICC jurisdictional regime should be based on the principle of universal equality
before the law. As the ICC mechanism was aiming at ensuring individual criminal
responsibility for the most serious international crimes, it was obvious that
20
Ibid, P.587.Universal jurisdiction is an important means of ensuring justice where criminal
prosecution would not possible under ordinary rules of jurisdiction. The principle of universal
jurisdiction allows a court to prosecute alleged perpetrators of human rights violations even there is
no direct link between the country and alleged perpetrators of human rights. It implies that court
may exercise jurisdiction regardless of where the crime is committed or the nationality of the
victims or perpetrators holds. The principle of universal jurisdiction stems from the crime that are
described as so serious that causes harm to the international community as a whole. When the
national courts exercise universal jurisdiction appropriately, they act to vindicate not merely their
own interests and values but in accordance with internationally recognized standards of due
process. Consequently, the effective exercise of universal jurisdiction is one of the important tools
in the struggle to end impunity for international crimes. Although the prudence of universal
jurisdiction is poorly understood without considering the commitment made for greater justice. For
detail G. RAJASEKAR, “LARGER EXPECTATION LIMITED REALITY, supra note 4, pp. 163-
177. Strake explicitly explains: “An offence subject to the universal jurisdiction is one which comes
under the jurisdiction of all States whenever it is committed. Inasmuch as the general admission, the
offence is contrary to the interests of the international community, it is treated as a delict jure
gentium and all States are entitled to apprehend and punish the offenders...There are probably today
only two clear-cut cases of the universal jurisdiction principle, namely piracy jure gentium and war
criminals”. J.G. Strake,‟ Introduction to International Law‟, 20th edn. (1984), P.234.
21
The Jurisdiction of the International Criminal Court, and Informal Discussion Paper Submitted by
Germany, UN Preparatory Committee on the Establishment of an International Criminal Court. UN
Doc.A/AC.249/1998/DP (1998), P.2. If the German approach had been accepted, the ICC would
have had jurisdiction over any suspect regardless of whether the territorial state, state of nationality
or any other interested state was a party to the Rome Statute. Any state party which obtains custody
of the putative offenders would be able to transfer the accused to the ICC and the ICC would then
be able to exercise jurisdiction without the consent of other interested states. Since any individual
state has the right to try the same persons according to the principle of universal jurisdiction, the
accused, at least in principle, runs a much greater risk to be prosecuted for the same crimes by
domestic courts in individual members of the international community. For the proposal of other
countries and for jurisdictional controversy see supra note 8, PP.583-605.
Page | 8
Court
international criminal justice to be delivered by the court would have to be fair and
equal. There would be equal jurisdiction over the most serious crimes of concern for
the internationality of the perpetrator. Concerned state parties to the statute would
have to accept the same rights and obligations with respect to their own criminal
jurisdiction and their own nationals22.
Similarly, equality before the law would also mean that there would be equal
rights and opportunities to address the ICC, to initiate criminal proceedings or to
make complaints. Such circumstances demand for equality and equal treatment of
perpetrators and concerned states by the jurisdictional regime of the ICC, by which
two risks in particular had to be avoided: first, attempts by states to exclude then
nationals from the jurisdiction of the ICC, and second, unequal chances for states,
such as permanent members of the Security Council on the one side, „normal‟ UN
members on the other, to bring matters to the ICC or to filter or block cases going to
the ICC23.
2.3.1 PRECONDITIONS TO THE EXERCISE OF JURISDICTION
There are certain pre requisities to the exercise of jurisdiction by the ICC.For
the ICC to exercise jurisdiction in these matters ,the pre condition of jurisdiction must
be satisfied .A pre condition is that the matter involves a State Party. When a State
ratifies the Rome Statute ,that State automatically submits itself and its citizens to the
jurisdiction of the ICC. The ICC has jurisdiction if the state is a State party and the
crime was committed on that State territory or the state is the state of which the
person accused of the crime is a national. A State can voluntarily accept the
jurisdiction of the ICC if the state is not a State Party to the Statute .However, the
Security Council can adopt legislation via United Nations Chapter VII which will
enable the ICC to exercise even in those cases where none of the circumstance
involve a State Party. It implies that the Rome Statute does not give the ICC universal
22
Supra note 8, P.586.
23
Id.
Page | 9
Court
jurisdiction,to prosecute and try any person responsible for committing grave
international crimes.
The ICC can exercise universal jurisdiction in a different way. Under Article
12 of the Rome Statute the ICC has been granted universal jurisdiction covering the
whole world only when a situation in which a heinous crime appears to have been
committed is referred to the ICC by the Security Council acting under Chapter VII of
the UN Charter. Only in such a situation every custodial state has the right and may
be even the objection to transfer the accused to the ICC. No consent of the territorial
state or the accused‟s state of nationality is required 24. Even though the ICC has not
been granted universal jurisdiction, the adoption of the Rome Statue facilitates
prosecution of perpetrators of the most serious international crimes by all state parties.
The jurisdiction of the ICC is inherently and unavoidably related to national

sovereignty. Since the established principles of international law recognise the
criminal jurisdiction as a part of national sovereignty, the jurisdiction of the ICC is
theoretically the integration of necessary and reasonable transferred parts of national
sovereignties25.
According to Lauterpacht, almost every problem that concerns international

relations must come within the domestic boundaries of one nation and may cross over
into another and creates an international problem 26. A matter is not essentially one of
the domestic jurisdictions when it has become the subject of international obligation
undertaken by the state. Since commission of heinous crimes constitutes gross
violations of human rights that have become a matter of international concern and a
matter which has become a matter of international concern cannot be said to be a
24
AND THIRD STATES‟, in Michigan Journal of International Law, Vol.21, No.3,1999-2000,
pp.145-494, at p.456.
25
Quoted by Liu Renwen Zhou Zhenjie, On the Jurisdiction of the International Criminal Court,
available at: <http://www.iolaw.org.cn/global/EN/shownews.asp?id=24586>
26
Sir H. Lauterpacht, „International Law and Human Rights‟, P.176.
Page | 10
Court
matter essentially within the domestic jurisdiction of a state 27. The Rome Statute
provides a treaty-based for the joint exercise of extra-territorial jurisdiction with
respect to crimes defined in the Statute.
The Rome Statute is also based on the assumption that since state parties to the
Rome Statute may prosecute persons accused of grave international crimes
unilaterally, they may also prosecute jointly. Consequently, the ICC have a legitimate
treaty right to exercise jurisdiction with respect to all persons accused of crimes under
the Rome Statute regardless of their nationality28.
The jurisdiction of the ICC is the compromising outcome and the transferred
parts of national sovereignties29. Unlike the jurisdiction of the ICTY and ICTR, the
ICC could not be able to investigate or try a case even its jurisdiction until
unwillingness or inability on the part of the respective state have not been decided.
The ICC has no ability to demand that cases concerning crimes as defined by the
Rome Statute, which are investigated or prosecuted by national courts, be transferred
to the ICC. The ICC has no parallel jurisdiction, it is not on the same level as national
courts, in contrast for example to the ICTY, which has parallel jurisdiction and which
could request Germany to surrender Mr. Tadic to the ICTY30.
The Jurisdiction of the ICC is based on the principle of territorial criminal

jurisdiction, rather than a theory of universality of criminal jurisdiction. While the
27
Earlier in Schooner Exchange v. McFaddon, Chief Justice J. Marshall stated that “the jurisdiction of
the nation within its own territory is necessarily exclusive and absolute”. See Schooner Exchange v.
McFaddon, 11 US (7 Granch) 116, 136, 3L. Ed. (1812), P.287. Cf. Wilson v. Girard, 354, US
(1975), P.524 (“A sovereign nation has exclusive jurisdiction to punish offences against its laws
committed within its borders, unless it expressly or impliedly consents to surrender its
jurisdiction”.). By contrast, in Eichmann case it was held that “the jurisdiction to try crimes under
international law is universal”, Attorney General of Isreal v. Eichmann, 36 INT‟L L. REP. 18,
(1968), P.26 (Dist. Ct. of Jerusalem 1961). In 1927 the Permanent Court of International Jusitce
stated in the Lotus Case that “territoriality of criminal law... is not an absolute principle of
international law and by no means coincides with territorial sovereignty”, the Case of the S.S.
“Lotus”, 1927 P.C.I.J. (Ser. A) No. 10 (September 7,1927), P.20.
28
Danilenko, supra note 24, PP.465-66.
29
Liu Renwen Zhou Zhenjie, On the Jurisdiction of the International Criminal Court, supra note 25.
30
KAUL, Hans-Peter, „The International Criminal Court - Its relationship to domestic jurisdiction, in
STAHNCarsten and SLUITERGORAN, The emerging practice of the International Criminal
Court‟, (2009), P.34.
Page | 11
Court
reach of the ICC jurisdiction is universal, it thus not represents the theory of
universality, except for “referrals” from the Security Council which does not have any
relation to the territoriality of any state, whether they are parties or non-parties states
to the Rome Statute.
Since it has already been established in international law that whenever a

crime is committed on the territory of a given state, its court can prosecute the
perpetrator even when that person is a non-national 31. The principle provides that a
state may extradite a non-national to another state for prosecution. Accordingly, each
state has the right, as provided in its constitutional norms, to transfer jurisdiction to
another state which has jurisdiction over an individual accused of committing a no
crime32, or to an international adjudicating body. Such jurisdictional transfer is an
entirely valid exercise of national sovereignty33, and that must be done in accordance
with international human rights norms 34. Consequently, the ICC, with respect to the
prosecution of a national, of a non-state party, who commits a crime on the territory
of a state party, does not provide for anything, more than which already exists in the
customary practice of states35. Bassiouni explicitly states:
“Since the ICC is complementary to national criminal jurisdiction, a

state party‟s surrender of an individual to the ICC‟s jurisdiction
pursuant to the Treaty: (a) does not detract from its national
sovereignty; (b) does not infringe upon the national sovereignty of
another state (such as the state of nationalityof the perpetrator or the
31
M. CherifBassiouni, „International Extradition: United States Law and Practice‟, 3rd edn. (1996),
P.357.
32
For example, the European Convention on the Transfer of Proceedings in Criminal Matters, ETS
No.73, 30 (March 1978); European Inter-State Cooperation in Criminal Matters 831 (EMRappard
and M. CherifBassiouni (eds.), 1991). Surrender of individuals by one state to another is commonly
done by means of extradition, Bassiouni, International Extradition, P.385.
33
M. CherifBassiouni, „The Permanent International Criminal Court‟, in MARK LATTIMER and
PHILIPPE SANDS QC (eds.), Justice for Crimes Against Humanity, (2003), 184.
34
International human rights law provide for certain substantive and procedural guarantees. These
norms also arise under regional conventions such as the European Convention on Human and
Fundamental Freedoms. M. CherifBassiouni, „Human Rights in the Context of Criminal Justice:
Identifying International Procedural Protections and Equivalent in National Constitution‟, 3 Duke
Journal of Comparative & International Law, 1993, P.235-297.
35
Bassiouni, „International Extradition‟, supra note 31, P.357.
Page | 12
Court
victim); and (c) does not violate the rights of the individual whose
prosecution is transferred to a competent criminal jurisdiction (which
will exercise its jurisdiction in accordance with international human
rights law norm).36"
2.3.2 PRECONDITIONS TO THE EXERCISE OF JURISDICTION
The ICC does not get its jurisdiction from inherent nature of the crimes within
its jurisdiction; it must get the authority from the specific surrendering of
jurisdictional competence on the part of either the territorial or the national state of the
perpetrator. The court can exercise jurisdiction only when the territorial state or the
state of nationality of the perpetrator has accepted its jurisdiction either by becoming
a party to the Statute or by lodging a declaration with the Registrar of the Court under
Article 12(3) of the Statute. In a great majority of cases where the crimes of genocide,
crimes against humanity, war crimes or crime of aggression occur within the
boundaries of a state, the territorial state will also be the state of nationality of the
perpetrator. It means that while in such cases the territorial state does not give its
consent to the exercise of jurisdiction by the ICC, the court will not exercise its
jurisdiction.
Besides, there is a possibility of opting out for war crimes, under Article
124,for a period of seven years after the Statute‟s entry into force for the state
concerned. In other cases the consent of the territorial state or the state of nationality
of the perpetrator which is not a party to the Rome Statute is required for the exercise
of jurisdiction by the court.
The legal parameters on the basis of which the ICC exercises jurisdiction are:
I. Subject matter jurisdiction
II. Temporal jurisdiction
III. Personal jurisdiction
IV. Territorial jurisdiction
36
Bassiouni, ICC, supra note 33, P.134.
Page | 13
Court
2.4 RATIONE MATERIAE OR SUBJECT MATTER JURISDICTION
The jurisdiction of the ICC is limited to the most serious crimes of concern to
the international community as a whole37, as they are destructive of international
peace and security38 as well unimaginable atrocities that deeply shock the conscience
of humanity‟39. According to Schabas, the crimes over which the ICC has jurisdiction
are „international‟ not so much for which international cooperation is necessary, even
though because of their heinous nature that elevates them to a level where they are of
concern to the international community 40. The Rome Statue, Article 12 paragraph
1declares that states, by becoming parties to the statute, accept the jurisdiction of the
ICC with respect to the crimes referred to in Article 5, i.e., the crime of
genocide41,crime against humanity42, war crimes43, and the crime of aggression44. They
conform to existing international criminal law and fall within the meaning of jus
cogens, norms which are binding upon all states and that carry obligations from which
37
Rome Statute, Preamble paras.4, 9; Articles 1, 5(1).
38
B.C. NIRMAL, “JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT”, ISIL
YEARBOOK OF INTERNATIONAL HUMANITARIAN AND REFUGEE LAW, Vol.III, 2003,
P.l 19.
39
Rome Statute, 1998, Preamble, para-2.
40
WILLIAM A. SCHABAS, “AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL
COURT”, Second edn. (2004), P.26. For detail dissolution on the crimes of the Rome Statute, Ibid,
pp.26-66.
41
Rome Statute, Article 6. For a discussion of the crime of genocide, see Mathew Lippman,
„Genocide‟, ICL, 1, in Criminal Law (1999), Vol.l, pp.589-613.
42
Rome Statute, Article 7. For a discussion of crimes against humanity see M. CherifBassiouni,
Crimes Against Humanity in International Criminal Law, 2nd rev. edn. (1999); Margaret McAuliffe
deGuzman, „The Road from Rome: The Developing Law of Crimes Against Humanity‟, 22 Human
Rights Quarterly (2000), P.335.
43
For a historical overview of the evaluation of formal and informal limitations on the conduct of war
among Western States, see M. Howard, G. Andreopoulos and M. Schulman, The Law of War:
Constraints on Warfare in the Western World (1994). In general, The Law of War Crimes: National
and International Approaches, Timothy McCormack and Gerry Simpson (eds.)(1997); Michel
Schmitt and Leslie Gree (eds.), The Law of Armed Conflict into the Next Millennium (1998).
44
At the Rome Conference, the international community could not define the crime of aggression.
Until 2010, the adoption of definition of aggression at the Second Session of Assembly of States
Parties, in Kampala, it was not subject to the ICC‟s jurisdiction (Article 5(2)). The Bureau of the
Rome Conference suggested, on 10 July 1998, that if generally acceptable provisions and
definitions were not developed forthwith, aggression would have to be dropped from the ICC
Statute. See UN Doc.A/CONF.183/C.l/ L.59. But, on the final day of the conference, agreement
was reached that gives the court jurisdiction over aggression once it is defined and its scope
designated in a manner consistent with the purpose of the ICC Statute and the ideals of the United
Nations.
Page | 14
Court
a state may not derogate45. In addition, the ICC also has jurisdiction over crimes
against the administration of justice and may impose sanctions (Articles70, 71).
With regard to interpreting and applying the definition of crimes found in the
Rome Statute- genocide (Article 6), crimes against humanity (Article 7), war crimes
(Article 8) and the crime of aggression, reference must also be made to the Elements
of Crimes46. The Elements of Crimes are a source of applicable law for the
ICC47,although as a form of subordinate legislation they must also be consistent with
the statute itself. The Elements of Crimes explain the conduct, consequences and
circumstances associated with each offence, such as relevant mental element, and
contextual circumstances in which crimes occurred48.
The definitions of crimes have been drawn from existing realities, which are
also regarded as constituting part of customary international law. Although some new
offences have been included in the categories of core crimes, it cannot be claimed
with certainty that they have acquired the status of custom in international
law49.Definitions are designed to accommodate the concerns of states with their
sovereignty and to restrict the reach of the ICC‟s jurisdiction.
45
See Vienna Convention on the Law of Treaties, Articles 53, 64; M. CherifBassiouni, „International
Crimes: Jus Cogens and ObligatioErgaOmnes‟, 59 Law & Contemporary Problems 63 (1998).
46
Pursuant to Article 9 of the Rome Statute, a fifty-page document adopted in June, 2000 by the
Preparatory Commission, and subsequently endorsed in September 2002 by the Assembly of States
Parties at its first session, see ICC-ASP/1/3, PP. 108-55. Elements of Crimes, published by the
International Criminal Court (2005); The Hague, The Netherlands, available at <www.icc-cpi.int.>
47
Rome Statute, Article 21(1 )(a).
48
See Elements of Crimes, General Introduction, para. 7.
49
CHANDRA JEET, “DEFINITIONS AND ELEMENTS OF CRIMES IN THE ROME STATUTE:
SOME CRITICAL REFLECTIONS”, ISIL YEARBOOK OF INTERNATIONAL
HUMANITARIAN AND REFUGEE LAW, Vol.VI, 2006, PP. 168-200 at PP.173. The definitions
of crimes contain significant thresholds and safeguards, which impose conditions that must be met
for the actual application of the definitions. Safeguards are also referred to as „qualifiers‟ because
they set certain criteria which the prohibited acts or the conduct in question, including the
corresponding circumstances, must meet in order to constitute a crime within the meaning of the
Rome Statute. The definitions and Elements of Crime are synthesis of legal concepts borrowed
from different legal systems of the world, in particular from civil law and common law countries.
Id.
Page | 15
Court
2.4.1 GENOCIDE
The term „genocide‟ was used by the prosecutors at Nuremberg, although not
by the judges and in 1946 genocide was declared an international crime by the UN
General Assembly50. Article 6 of the Rome Statute defines genocide in accordance
with the Article II of the 1948 Convention on the Prevention and Punishment of the
Crime of Genocide51, those five specific acts committed with the intent to destroy a
national, ethnical, racial or religious group. The five acts are killing members of the
group; causing serious bodily or mental harm to members of the group; imposing
conditions on the group calculated to destroy it in whole or in part, preventing births
within the group; and forcibly transferring children of the group to another group. The
groups are the primary targets, whereas individuals are only the secondary targets.
Individuals become the object of destruction because they are part of that group52.
The words „in whole or in part‟ in the definition indicates a quantitative

dimension. The intent of the perpetrator must be to destroy „a substantial or
significant part‟ of the group53. When the perpetrator intended to kill or to commit
other prohibited acts against only a few persons belonging to a particular group, the
act cannot be considered as constituting genocide. The Elements of Crimes clarify
that the act of killing or other prohibited acts against even a single person may
constitute genocide provided other common contextual elements are satisfied. It
required that the perpetrator intended to destroy, in whole or in part of the group and
“the conduct took place in the context of a manifest pattern of similar conduct
directed against that group or was conduct that could itself effect such destruction”54.
With respect to serious bodily or mental harm, the Elements of Crimes are
more detailed, stating that such conduct may include „acts of torture, rape, sexual
50
AGA Res.96(I).
51
78 UNTS 277 (NEW YORK, United Nations: 9 December 1948).
52
Christine Byron, “The Crime of Genocide”, in Dominic McGoldriek, Peter Rowe and Eric Donnely
(eds.), The Permanent International Criminal Court: Legal and Policy Issues (2004), PP.151-153.
53
Prosecutor v. Akayesu, Case No.ICTR-96-4-T, Trial Chamber Judgement, 2 September 1998,
P.149.
54
Elements of Crimes, Article 6(a) - (c).
Page | 16
Court
violence or inhuman or degrading treatment‟ 55. In addition, the number of protected
groups (national, ethical, racial and religious) enumerated in the definition is limited
to four, which does not include political and social groups. Such limitation means that
the kind of mass killing that took place in Cambodia cannot be covered under the
definition of genocide because there the people were killed on the basis of their class
or political affiliation. Present day realities may require a reference to all „permanent
and stable groups‟56.
2.4.2 CRIMES AGAINST HUMANITY
Article 7 of the Rome Statute defines crimes against humanity 57 in considering

Articles 6(c) of the Nuremberg Charter58, Article 5 of the Statute of the ICTY 59 and
Article 3 of the ICTR Statute60. The details included in the ICC‟s article which
provide in more specificity, and reflects the progressive evaluation of international
criminal law, proscribing grave violations of human rights. Since the ICC Statute does
not recognize the nexus between crimes against humanity and armed conflict. Among
the charges are the elimination of the armed conflict nexus, the inclusion of apartheid
and enforced disappearances, a broadened definition of torture, and an expanded list
of sexual offences61.
55
Ibid, Article 6(b), para. 1.
56
The ICTR, in Akayesu case, held that the intention of the drafters of the Genocide Convention “was
patently to ensure the protection of any stable and permanent group”. Prosecutor v. Akayesu, Case
No.ICTR-96-4-T, Trial Chamber Judgement, 2 September 1998, P.159.
57
Rome Statute, Article 7. Bassiouni, Crimes Against Humanity, supra note 42, PP.243-75. The
important features of the chapeau of this Article are (i) the absence of a requirement of a nexus to
armed conflict, (ii) the absence of a requirement of a discriminatory motive, (iii) the widespread or
systematic attack criterion, and (iv) the elements of mensrea. See, Darryl Robinson, „Defining
“Crimes Against Humanity‟ at Rome Conference”, AJIL, Yol. 93(1999), PP.43-45; SCHABAS,
ICC, supra note 40, PP.41-51.
58
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis,
Charter of the International Military Tribunal, 59 Stat. 1544, 82 UNTS 279 (New York: United
Nations, 8 August 1945) ('TMT Charter‟).
59
Statute of the International Criminal Tribunal for the Former - Yugoslavia, SC Res.827, UN SCOR,
48 Sess. 3217 mtg. (1993).
60
Statute of the International Criminal Tribunal for Rwanda, SC Res.955, UN SCOR, 49 Sess. UN
Doc.S/RES/955, (1994). Both the Statutes of the ICTY and ICTR simply listed the offences under
this category of crimes. They are: murder, extermination, enslavement, deportation, imprisonment,
torture, rape, persecutions on political, racial and religious grounds, and other inhumane acts.
61
Timothy McCormack and Sue Robertson, „Jurisdictional Aspects of the Rome Statute for the New
International Criminal Court‟, 23 Melbourne U.L. Rev., (1999), PP.651-661.
Page | 17
Court
Further in order for crimes against humanity to occur the necessary elements
are” (a) there has to be a state policy, or a policy by non-state actors (Article 7(2)); (b)
to commit the specific crimes enumerated in Article 7(1); and (c) the commission of
these crimes take place on a „widespread‟ or „systematic‟ basis 62 directed against any
civilian population with knowledge of the attack”63, the policy element is the
jurisdictional element which transfers crimes that would otherwise be national crimes
into international crimes64.
The chapeau of the Elements of Crimes states:
“Attack directed against a civilian population”...is understood to mean a

course of conduct involving the multiple commission of acts referred to
in Article 7, Paragraph 1 of the Statute against any civilian population,
pursuant to or in furtherance of a State or organizational policy to
commit such attack. The act need not constitute a military attack. It is
understood that “policy to commit such attack” requires that the State
or organisation actively promote or encourage such an attack against a
civilian population65.
The provision has a footnote which states:
62
The ICC Statute uses the words “widespread or systematic attack” instead of “widespread and
systematic attack” suggests a lower threshold. „Widespread‟ indicate quantitative dimension of the
attack, i.e., when attack has reached significant proportions. „Systematic‟ refers to qualitative
aspect, i.e., when there is some plan or policy to attach large-scale action involving a substantial
number of victims, whereas the term „systematic‟ requires a high degree of orchestration and
methodical planning”. Darryl Robinson, Defining Crimes, supra note 57, P.47.
63
Article 7(1), ICC Statute. In the ICTY Statute, the threshold for crimes against humanity requires
that the prohibited acts must be “committed in armed conflict, whether international or internal in
character, and directed against any civilian population” (Article 5). In the ICTR Statute, Article 3
requires that the crime must be “committed as part of a widespread or systematic attack against any
civilian population on national, political, ethnic, racial or religious grounds”. Furthermore, an attack
upon a civilian population is „systematic‟ or widespread as requires Article 7(1) of the ICC Statute
or as does ICTR Statute, but Article 7(2) of the ICC Statute requires that such an „attack‟ be the
product of a states „policy‟. The element of „policy‟ is a prerequisite condition. See Bassiouni,
Crimes Against Humanity, supra note 42, PP.243-75.
64
Bassiouni, „The Permanent ICC‟, supra note 33, P.188
65
Report of the Preparatory Commission of the International Criminal Court, Finalised Draft of the
Elements of Crimes, UN Doc.PCNICC/2000/INF/3/Add 2 (30 June 2000), Article 7, Introduction,
para. 3.
Page | 18
Court
A policy which has a civilian population as the object of the attack
would be implemented by States or organizational action. Such a policy
may, in exceptional circumstances, be implemented by a deliberate
failure to take action, which is consciously aimed at encouraging such
attack. The existence of such a policy cannot be inferred solely from the
absence of governmental or organizational action66.
As a result, the policy of a state, consistent with Article 7, i.e., „widespread‟ or

„systematic‟, must be evidenced by „actively encouraging or supporting‟. The term
„organisational policy‟ suggests that such attacks can also be carried out by non-state
actors. Although a failure to prevent the crimes does not create an automatic inference
of encouragement or support, rather only „in exceptional circumstances does a failure
to prevent amounts to actively encouraging or supporting‟67.
Further, the expression “knowledge of the attack” refers to the mental element
requiring that the perpetrator must be aware about the existence of such an attack
against civilian population. It means when it is found that the perpetrator was not
aware that his conduct was part of a widespread or systematic attack he cannot be
held guilty by the ICC for crimes against humanity 68. The expression “other inhumane
acts” refers to a catch-all provision; for which the ICC Statute provides the
requirement of specificity that the acts must be “of a similar character intentionally
causing great suffering, or serious injury to body or to mental or physical health” 69. It
provides an opportunity as well as space to the ICC to cope with the newer types of
atrocities to extend its jurisdiction in future.
66
Ibid, note 6.
67
Ibid, at Introduction to Article 7, para-3.
68
However, Elements of Crimes clarify that the mental element of knowledge “should not be
interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack
or the precise details of the plan or policy of the State or organisation. In the case of an emerging..
.attack.. .this mental element is satisfied if the perpetrator intended to further such an attack”.
Elements of Crimes, Article 7, Introduction, para. 2.
69
Article 7(l)(k), ICC Statute. The term „character‟ in the definition refers to the nature and gravity of
the act. Article 7(1 )(k), Elements of Crimes.
Page | 19
Court
2.4.3 WAR CRIMES
The lengthiest provision defining offences within the jurisdiction of the ICC is
Article 8 on war crimes. War crimes have been generally punished, treating them as
domestic offences since the beginning of criminal law 70. The ICC Statute recognizes
that war crimes can be committed in internal armed conflicts. The Statute curves out
four categories of war crimes. The first two categories deal with war crimes
committed during international armed conflicts and the last two with war crimes in
internal armed conflicts. For all categories of war crimes, there is one common
feature, according to which the ICC is to have jurisdiction over “war crimes in
particular when committed as part of a plan or policy or as part of a large-scale
commission of such crimes”71.
First category of war crimes incorporates Grave breaches of the Geneva

Conventions of 1949. To constitute grave breaches, the prohibited acts must be
committed against persons or property protected under the Four Geneva
Conventions72. The prohibited acts in first category include –
70
Leslie C. Green, „International Regulation of Armed Conflict‟, in M. CherifBassiouni (ed.),
International Criminal Law, 2nd edn. Vol.I, ( 2003), PP.355-91.
71
Article 8(1), Rome Statute. It is well accepted for both genocide and crimes against humanity that
they cannot occur without sufficient planning and organisation. Large-scale commission of
atrocities is also a characteristic feature of both of the crimes. By contrast, war crimes can be
committed by individual soldiers, on their own, without any such planning or policy. Even isolated
acts in violation of international humanitarian law may constitute war crimes. For example, a prison
guard may, on its own, intentionally shoot a prisoner of war without his superior ordering such a
crime. The act unquestionably constitutes a grave breach of the fourth Geneva Convention.
Although, use of the term “in particular” has moderated the threshold to some extent. It is
understood that the ICC may under exceptional circumstances sideline the in particular
requirement. Furthermore, Crimes against humanity must be „widespread‟ or „systematic‟ and
genocide requires a very high level of specific intent. War crimes, on the other hand, can in
principle cover even isolated acts committed by individual soldiers acting without order or direction
of the superior.
72
Rome Statute, Article 8(2)(a). Under the first three Geneva Conventions, the protected persons are
the members of the armed forces of a party engaged in international armed conflict. They are
wounded and sick in armed forces in the field; wounded, sick and shipwrecked members of armed
forces at sea and prisoners of war. Under the fourth Geneva Convention, protected persons are
civilians in the hand of a party of which they are not nationals. Convention for the Amelioration of
the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, UNTS 31;
Conditions for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members
of Armed Forces at Sea, August 12, 1949, 75 UNTS 85; Convention Relative to the Treatment of
Prisoners of War, August 12, 1949, 75 UNTS 135; and Convention Relative to the Protection of
Page | 20
Court
i. Wilful killing;
ii. Torture or inhuman treatment, including biological experiments;
iii. Wilfully causing great suffering, or serious injury to body or health;
iv. Extensive destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly;
v. Compelling a prisoner of war or other protected person to serve in the forces
of a hostile power;
vi. Wilfully depriving a prisoner of war or other protected person of the rights of
fair and regular trial;
vii. Unlawful deportation or transfer or unlawful confinement;
viii. Taking of hostages73.
The second category of war crimes refers to “other serious violations of the
laws and customs applicable in international armed conflict, within the established
framework of international law”. The word “serious” indicates the gravity of such
violations. It implies that not all such violations are punishable offence in the ICC
under such category. The reference to “established framework of international law”
suggests that such serious violations need to be recognised under the customary
international law74. Most of the prohibited acts in the list are well recognised in the
international humanitarians law75, including prohibitions of certain weapons. The list
includes attacks against personnel involved in the UN peacekeeping missions76.
Civilian Persons in Time of War, August 12,1949, 75 UNTS 287. It is not necessary that the
perpetrator and the victim must belong to adverse parties to the conflict, i.e., they must be of
different nationals. For example, Article 4 in the third Geneva Convention protected persons are
prisoners of war “who have fallen into the power of the enemy”. In the fourth Geneva Convention
the protected persons are civilians “who, at a given moment and in manner whatsoever find
themselves, in case of a conflict or occupation in the hands of a Party to the conflict or Occupying
Power of which they are not nationals”. By contrast the ICTY in a judgement stated that the
protection also extends to such persons like national minorities if they cannot rely for their safety on
the party in whose hands they are.
73
Rome Statute, Article 8(2)(a). See also Article 8(2)(a)(i) to (viii), Elements of Crimes.
74
Rome Statute, Article 8(2)(b).
75
Id. The war crimes provision of Article 8 includes: (l) -the „grave breaches‟ (see Article 50 of the
First Geneva Convention 1949. Article 51 of the Second Geneva Convention 1949, Article 130 of
the Third Geneva Convention and Article 147 of Fourth Geneva Convention 1949. See also
Convention Respecting the Laws of Customs of War and Land (second Hague IV), 36 Stat 2277
Page | 21
Court
During the Rome Diplomatic Conference, selection of weapons, whose use
would constitute war crimes, was another controversial issue. Members of the NAM
and other states namely Denmark and Sweden vigorously supported the inclusion of
nuclear weapons in the list of prohibited weapons. India suggested that whilst the ICC
were to deal with the heinous crimes, then it must also consider the means through
which they were committed, that the nuclear weapons, the most devastating of all,
must be brought within the purview of the court77. On the contrary, the US claimed
that the nuclear weapons, anti-personnel mines and blinding laser weapons were not
prohibited under established international law and the issue was still in a legislative
phase; accordingly it lay outside the purview of the Conference78. Finally four
provisions on prohibited weapons are incorporated in the ICC Statute. First three
provisions identity weapons whose use would constitute war crimes 79 and the fourth
one provides a mechanism through which use of other weapons can be prohibited in
future80.
(The Hague: 18 Oct 1907) and Common Article 3 of the 1949 Geneva Conventions, which have
been ratified by 186 States; and (2) the „grave breaches‟ Protocol I of 1977 (Protocol Additional to
the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
International Armed Conflicts of 8 June 1977, Annex I UN Doc.A/32/144/(1977), and Protocol II
(Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection
of Victims of Non-International Armed Conflicts, Annex II, UN Doc.A/32/144 (1977).
76
Article 8(2)(b)(iii), Rome Statute.
77
UN Doc.A/CONF. 183/C. 1 /SR.26 (1998), P.10. For other arguments, id, PP.412.
78
Ibid, SR.4(1998), P.9
79
The first three provisions prohibit employment of „poison or poisoned weapons”, “asphyxiating,
poisonous or other gases, and all analogous liquids, materials or devices”; and “bullets which
expand or flatten easily in the human body, such as bullets with a hard envelope which does not
entirely cover the core or is pierced with in incisions”. Article 8(2)(b)(xvii) to (xix), Rome Statute.
These provisions are drawn from the Hague Convention. The provisions do not cover weapons of
mass destruction (nuclear, chemical and biological weapons), land mines and blinding laser
weapons that are inherently indiscriminate and they cause unnecessary suffering. However, cerium
chemical weapons may come under the category of “asphyxiating poisonous or other gases”.
80
Article 8(2)(b)(xx), Rome Statute. With respect to the procedure for prohibiting use of other
weapons in future, three important requirements are provided. First, such weapons, projectiles and
material and methods of warfare” must be “of a nature to cause superfluous injury or unnecessary
suffering or which are inherently indiscriminate in violation of the international law of armed
conflict”. Second, they must be “the subject of a comprehensive prohibition”. It suggests that the
use of such weapons must be banned under another multilateral treaty and that treaty must have
been widely accepted by states. Third, such weapon must be included in an annex to the Statute by
an amendment. It means that the whole procedure for making an amendment to the statute will have
to be followed. Id.
Page | 22
Court
All sexual offences enumerated in the list of crimes against humanity are also
incorporated in the category of war crimes 81, only exception is that the conduct to take
place in the context of international armed conflict 82. Although the wordings “any
other forms of sexual violence” reflects a different requirements. In states that the
conduct must constitute a grave breaches of the Geneva Conventions83.
The second category of war crimes also prohibits “conscripting or enlisting

children under the fifteen years into the national armed forces or using them to
participate actively in hostilities”84. Use of words „conscripting or enlisting‟ in place
of „recruiting‟ is to make it clear that even putting the name of children on a list is a
war crime. Use of “national armed forces” suggests that enlisting of such children by
insurgent groups is not prohibited85. Even though, use of children by non-state actors
“to participate actively in hostilities” will be a war crime 86. It is evident from the
Democratic Republic of Congo (DRC) that Thomas Lubanga, who is the alleged
former president of the Union of Congolese Patriots (UPC), which was a party to the
conflict in the DRC, charged with:
i. Conscripting children under the age of 15 years into armed groups;

ii. Enlisting children into armed groups; and
iii. Using children to participate actively in armed conflict87,
81
Article 8(2)(b)(xxii), ICC Statute.
82
Article 8(2)(b)(xxii) -1-6, Elements of Crimes.
83
The Elements clarify that “the conduct was of gravity comparable to that of a grave breach of the
Geneva Conventions”. Article 8(2)(b)(xxii) - 6.
84
Article 8(2)(b)(xxvi), ICC Statute. When childhood ends and adulthood begins has been a matter of
debate in international law. The Fourth Geneva Convention of 1949 states that childhood ends
when a person complete fifteen years of age. On the other hand, the 1989 Convention on the Rights
of the Child defines child as any person below eighteen years of age. Eighteen instead of fifteen as
age of children would have been more compatible with modem day human rights law. See, Mathew
Happold, “Child Soldiers in International Law: The Legal Regulation of Children‟s Participation in
Hostilities”. Netherlands International Law Review, Vol.47 (2000/1), P.28.
85
It was mainly to address the concern of certain Arab States which were worried that young
Palestinians who had registered their names in support of the intifadah movement might come
under the purview of this provision.
86
William A. Schabas, „An Introduction to the International Criminal Court‟, 2nd Edn., (2004), P.50.
87
Trial of Thomas Lubanga Dyilo at the ICC: Closing Arguments, OPEN SOCIETY JUSTICE
INITIATIVE, available at <www.justiceinitiative.org; www.lubangatrial.org>
Page | 23
Court
Lubanga‟s is the first trial to be launched by the ICC that has been completed
on 14 March, 2012. It is the only trial till date conducted by the ICC, which is solely
related to the use of child soldiers.
The qualifying word „actively‟ is meant to exclude those children who are not
directly involved in hostilities rather perform other functions in support of war related
activities.
There is another war crime related to excessive incidental death, injury and
severe damage to natural environment that has far reaching consequences. It
prohibits-
“[intentionally launching an attack with the knowledge that such attack

will cause incidental loss of life or injury to civilians or damage to
civilian objects or widespread, long-term and sever damage to the
natural environment which would be clearly excessive in relation to the
concrete and direct overall military advantage anticipated”88.
The war crime covers what is generally known as “collateral damage” and
also “widespread, long-term and severe damage to the natural environment89.
The third category of war crimes applies to “armed conflict not of an

international character”. Considering that a great majority of contemporary armed
conflicts are non-international armed conflicts, the extension of individual criminal
responsibility to serious violations of humanitarian law in such conflicts under the
ICC Statute is a major accomplishment of the Rome Diplomatic Conference. It covers
serious violations of Article 3 common to the four Geneva Conventions of 1949,
“committed against persons taking no active part in the hostilities, including members
of armed forces who have laid down their arms and those placed hors de combat by
sickness, wounds, detention or any cause”90.
88
Article 8(2)(b)(iv), ICC Statute. See also Elements of Crimes, Article 8(2)(b)(iv).
89
The importance of this war crime can be seen in the backdrop of more recent NATO bombings of
civilian areas, US air raids in Iraq and Afghanistan, use of carpet bombing and cluster bombs.
90
Article 3 which is common to the four Geneva Conventions is the only provision that addresses
non-international armed conflict. It does not fall within the scope of “grave breaches”. It means the
Page | 24
Court
Individual also entails criminal responsibility for summary executions, i.e.,
war crime of sentencing or execution without due process. The Elements of Crimes
require that “the perpetrator passed sentence or executed one or more persons”, that
“there was no previous judgment pronounced by a court, or the court that rendered
judgment was not „regularly constituted‟, that is, it did not afford all the essential
guarantees of independence and impartiality, or the court that rendered judgment did
not afford other judicial guarantees generally recognized as indispensable under
international law”91.
The fourth and last category of war crimes refers to “other serious violations
of the laws and customs applicable in armed conflicts not of an international
character, within the established framework of international law” 92. The offences are
mainly drawn from Additional Protocol II to the Geneva Conventions, 1949 93. The
prohibited acts are similar to those provided in the second category94.
The provision reflects that the prohibited conduct during internal armed
conflicts does not cover many offences that are provided for in the context of
international armed conflicts. For example, there is no reference to prohibited
weapons. It suggests that the same weapons, whose use would constitute war crimes
in international armed conflicts, can be lawfully used in civil wars. In future, even
when new weapons are included in the list of prohibited weapons in the ICC Statute,
such a prohibition would be applicable only in the context of international armed
Geneva Conventions do not provide for international criminal responsibility for offenders for
violations of Article 3. By contrast, the Rome Statute clearly establishes individual criminal liability
for acts committed in violation of Article 3. This category of war crimes contains a short list of
prohibited acts. See Article 8(2)(c), ICC Statute; Article 8(2)(c), Elements of Crimes.
91
Article 8(2)(c)(iv), Elements of Crimes. It also requires the ICC “to consider whether, in the light of
all relevant circumstances, the cumulative effect of factors with respect to guarantees deprived the
person or persons of a fair trial”. Id.
92
Article 8(2)(e), ICC Statute. It shares some common features as incorporated in second category of
war crimes.
93
The Additional Protocol II, 1977 “develops and supplements Article 3 common to the Geneva
Conventions of 12 August 1949 without modifying its existing conditions of application”. Article
1(1), Additional Protocol II. However, it must be noted that not all but only some violations of
Additional Protocol II are included in the fourth category of war crimes in accordance with the
qualification of “seriousness” imposed by the drafters. Some new offences are also included in this
category of war crime.
94
Article 8(2)(e)(i) to (xii).
Page | 25
Court
conflicts. Besides, excessive incidental death, injury and severe damage to natural
environment are not recognised as a war crime in internal conflicts. By preferring a
shorter list of war crimes, that can be committed in internal armed conflicts, reflects
that the drafters did not want to impose too many restrictions on the authority of the
governments in dealing with armed rebellion or insurgent groups95.
2.4.4 CRIME OF AGGRESSION
The „crime of aggression‟ was included in the Rome Statute without

definition. Since aggression was seen as the source of all other core crimes, in Rome
Conference there was a tremendous support for the inclusion of aggression 96. The
reason for omission was that during the Rome Conference, the participating states
could not reach an agreement concerning the definition of the act of aggression97.
The Rome Conference of the Assembly of States Parties, held at Kampala

(Uganda) in 2010, has adopted the definition of the crime of aggression98. It states:
95
Chandra Jeet, „DEFINITIONS AND ELEMENTS OF CRIMES‟, supra note 49, P.195.
96
UN Doc.A/CONF. 183/C. 1/SR.5, 6, 25, 27(1998), PP.2-5 and 7. India, inter alia, favoured the
inclusion of aggression subject to an acceptable definition. Ibid, P.7. However, those who voiced
their concerns the loudest, e.g., India, China, Pakistan and Russia, have unsettled territorial
problems outside of their own immediate borders.
97
In the absence of a compromise the Rome Statute mandated the Preparatory Commission to
“prepare proposals for a provision on aggression, including the definition and Elements of Crimes
of aggression and conditions under which the International Criminal Court shall exercise its
jurisdiction with regard to this crime” to be submitted to the Assembly of States Parties at a Review
Conference. Res. F, Final Act, Para-7, UN Doc.A/CONF. 183/10. The Preparatory Commission
could not submit a concrete proposal before the Assembly of States Parties (ASP). Its
recommendations were in the form of options, which were presented by different states. Resulting,
at its first session in September 2002, the ASP established a Special Working Group on the Crime
of Aggression to reach an acceptable definition of the crime and to define the conditions under
which the ICC will be able to exercise jurisdiction over the crime of aggression. The Working
Group continued to work in this direction so that a provision on the crime of aggression can be
adopted by the Review Conference in 2009, which was held in 2010 June, at Kampala, Uganda.
The Special Working Group submitted a elaborated proposals on the crime of aggression and
elements of this crime. At the 13th plenary meeting, on 11 June 2010, adopted the definition of
crime of aggression by consensus, with a view to activate the ICC‟s jurisdiction over the crime of
aggression as early as possible.
98
The Review Conference, Resolution RC/Res.6, Adopted at the 13th plenary meeting, on 11 June
2010. Annex-I, Amendments to the Rome Statute of the International Criminal Court on the Crime
of Aggression. Annex-II, Amendments to the Elements of Crimes, Article 8 bis, Crime of
Aggression. Christopher Harland (ed.), „BASIC DOCUMENTS ON INTERNATIONAL
HUMANITARIAN LAW - SOUTH ASIA COLLECTION‟, International Committee of the Red
Cross (New Delhi, 2011), PP.l 134-1145. Currently the ICC does not have jurisdiction regarding the
crime of aggression. An amendment to the Rome Statute to expand the ICC‟s jurisdiction towards
Page | 26
Court
...‟‟crime of aggression” means the planning preparation, initiation or execution, by a
person in a position effectively to exercise control over or to direct the political or
military action of a State, of an act of aggression which, by its character, gravity and
scale, constitutes a manifest violation of the Charter of the United Nations99.
The “act of aggression” as defined in the Review Conference” means the use
of armed force by a state against the sovereignty, territorial integrity or political
independence of another state, or in any other manner inconsistent with the Charter of
the United Nations”100. The Rome Statute clearly states that any provision on
aggression must be “consistent with the relevant provision” of the UN Charter 101. It
suggests that any provision regarding the act of aggression must be to preserve and to
incorporate within the statute the powers of the Security Council in determining act of
aggression. The acts which qualify as an act of aggression have incorporated in
accordance with the UN General Assembly Resolution 3314(XXIX) of 14 December,
1974102. Article 15 bis recognizes the Security Council power for determining of an
act of aggression committed by the state concerned103.
the crime is currently in the process of ratification. Under no circumstances will the court be able to
actually exercise jurisdiction before 1 January 2017.
99
Article 8 bis, Crime of Aggression, id, para. 1.
100
Para. 2, id.
101
Article 5(2) of the Rome Statute states that “[t]he Court shall exercise jurisdiction over the crime of
aggression once a provision is adopted in accordance with Article 121 and 123 defining the crime
and setting out the conditions under which the Court shall exercise jurisdiction with respect to this
crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United
Nations”.
102
Article 8 bis, supra note 99, paras-2(a) to (g).
103
Article 15 bis, supra note 99, paras. 6-9. Paragraph-6 states: “Where the Prosecutor concluded that
there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or
she shall first ascertain whether the Security Council has made a determination of an act of
aggression committed by the State concerned. The Prosecutor shall notify the Secretary- General of
the United Nations of the situation before the Court, including any relevant information and
documents”. Paragraph provides: “Whether the Security Council has made such a determination,
the Prosecutor may proceed with the investigation in respect of a crime of aggression”. Paragraph-8
states: “Where no such determination is made within six months after the date of notification, the
Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the
Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of
aggression in accordance with the procedure contained in Article 5 and the Security Council has not
decided otherwise in accordance with Article 16”. In addition, Paragraph-9 states: “A determination
of an act of aggression by an organ outside the Court shall be without prejudice to the Court‟s own
findings under this Statute”.
Page | 27
Court
Since aggression is the most serious form of the illegal use of force, a
determination whether an act of aggression has been committed requires consideration
of all the circumstances of each particular case, such as the gravity of the acts
concerned and their consequences, in accordance with the UN Charter104.
The draft statute embodied proposals to include the crime of terrorism and the
crime of international trafficking of illegal drugs where no consensus could be
reached at the Rome Conference on the inclusion of such crimes within the
jurisdiction of the ICC105. Resolution „F‟ adopted in the annex to the ICC Statute,
which recommends that a review conference pursuant to Articles 121 and 123 of the
Statute consider the crimes with a view to arriving at an acceptable definition and
their inclusion in the list of crimes within the jurisdiction of the ICC. It is hoped that
new categories of crimes will be brought within the jurisdiction of the ICC through
review mechanism in future.
The amendment of existing crimes or the addition of new crimes has the
potential to create a disparity in the application of the ICC‟s ratione materiae
jurisdiction. For example, the ICC will not exercise jurisdiction over a newly defined
crime or an amended version of an existing crime when committed: (1) by nationals
of a state party that has not accepted the amendment; or (2) by an individual who
commits acts constituting the new or amended crime on the territory of a state party
that has not accepted the amendments 106. As such, for the non-accepting state, the ICC
will exercise its jurisdiction over an individual as if the definition of crime had not
been amended in case of the individual is either a national of or allegedly commits the
crime on the territory of a state that has not accepted the amended definition107.
104
Annex-III, para. 6, supra note 98.
105
The definition of aggression or any other amendment to the list of crimes of the Rome Statute must
first be approved by at least two thirds of the Assembly of States Parties if consensus cannot be
reached (Article 121(1), 123(1)). Definition of aggression has already been adopted by consensus.
After approval the new or amended crime will applicable prospectively to only those states parties
that had ratified the amendment one year after deposit of their instrument of ratification (Article
121(5)).
106
M. CherifBassiouni, „The Permanent International Criminal Court‟, supra note 33, P.191.
107
As for example, if the crime of genocide were to be amended, the ICC would exercise jurisdiction
over an individual as if the crime had not been amended if that individual is either a national of or
Page | 28
Court
As a result, after an amendment, until it is the accepted by all states parties,
there is the possibility for varying criminal responsibility depending on which states
parties‟ territory a crime is committed or by which states parties‟ national108.
In December 2017, the Assembly of State Parties (ASP) unanimously passed

a historic resolution activating the ICC’s jurisdiction beyond war crimes, crimes
against humanity and genocide to include the crime of aggression.
2.5 RATIONE TEMPORIS OR TEMPORAL JURISDICTION
The ICC‟s jurisdiction is prospective. It cannot exercise jurisdiction over

crimes committed before the ICC Statute‟s entry into force 109. For states that become
parties to the statute subsequent to its entry into force, the ICC has jurisdiction over
crimes committed after the statute‟s entry into force with respect to that state 110. The
exception to the general rule is that it is possible for a state to make an ad hoc
declaration recognizing the ICC‟s jurisdiction over specific crimes, even the state is
not a party to the ICC Statute111. Similarly, the Security Council could not refer a case
to the ICC, pursuant to Article 13(b), with respect to crimes committed prior to 1 July
2002.
The problem lies in the issue of continuous crimes, such as enforced

disappearance of persons that occurred before the Rome Statute had been enforced in
a respective state - territorial state or state of nationality. In such circumstances, the
allegedly commits the crime on the territory of a state that has not accepted the amended definition.
Id.
108
Unlike an amendment to other non-institutional provisions of the Rome Statute, there is no
specified number of ratifications at which time the amendment enters into force for all states
parties, ibid, P.207.
109
Rome Statute, Article 11(1). The Rome Statute entered into force on 1 July 2002, that is, when the
treaty which embodied it had been ratified by 60 states, particularly, the first day of the month after
the 60th day following the deposit of the sixtieth instrument of ratification (Article 126(1)). For
states that accede to the treaty after its entry into force, the effective date of entry into force for such
states is the first day of the month which follows 60 days from the deposit of that state‟s ratification
(Article 126(2)). For example, Colombia ratified the Rome Statute in August 2002, several weeks
after the statute entry into force. The Statute only entered into force for Colombia on 1 November
2002, in accordance with Article 126, and the ICC cannot prosecute any cases that are based on the
Colombia ratification for the period between 1 July and 1 November 2002.
110
Article 11 (2), Rome Statute.
111
Article 12(3), ibid.
Page | 29
Court
semantic hurdles like committed, commenced and non-retroactivity would reinforce
the on going practice validity of the issue regarding continuous crimes112.
Two provisions of the statute, jurisdiction ratione temporis (Article 11) and
non-retroactivity ratione personae (Article 24), overlap. Bassiouni suggests:
The two articles must be read in parimateria, but even so, there will be
at least one interpretive issue that will require reliance on a source of law
other than the Statute, and that is how to interpret these two provisions
were committed in part before the ICC‟s entry into force and continued
thereafter113.
The difference between the two articles is that Article 11 speaks of the ICC
having jurisdiction over „crimes committed‟ after entry into force. In contrast, Article
24 speaks of a person not being criminally responsible for „conduct prior‟ to entry
into force, and does not use the verb „committed‟. The working group that drafted
Article 24 had intentionally not used a verb to describe the conduct prior to the entry
into force; it was, as Saland observed, because of the sensitive political nature of the
issue and the varied nuances that suggested modifying verbs had114.
2.6 RATIONE PERSONAE OR PERSONAL JURISDICTION
The ICC jurisdiction applies only to individuals 115 the natural person not the
abstract entity personified by state or government or any office116, regardless of their
112
Prof. NaoremSanajaoba, „The International Criminal Court: From Impunity to Accountability‟, in
Prof. NaoremSanajaoba, CURRENT LEGAL ESSAYS (2007), P.16.
113
M. CherifBassiouni, „The Permanent International Criminal Court‟, supra note 33, P.185.
114
Such suggested modifying verbs included: „committed‟, „occurred‟, „commenced‟, or
„completed‟, Per Saland, „International Criminal Law Principle‟ in Making of the Rome Statute,
PP. 196-97, quoted by Bassiouni, Id.
115
Articles 1,25(1), ICC Statute. For detail discussion see Chapter V.
116
For a discussion of the criminal responsibility of states and organisations under international
criminal law, see M. CherifBassiouni, „Sources of International Criminal Law‟ in M.
CherifBassiouni (ed.), International Criminal Law, 2nd edn. Vol.I (1999), PP.24-31. A state or a
group as a legal or abstract entity can neither be placed on trial nor be the subject of any sanctions,
including the confiscation or seizure of assets. Exclusion of such criminal liability perhaps
represents a regression from the precedent established at Nuremberg, Id.
Page | 30
Court
official capacity117, who committed a crime within the jurisdiction of the court after
the age of 18118. The ICC Statute does not permit a trial in absentia119.
Despite its exclusion of group criminal liability, it is still possible for the ICC
to develop a concept of individual criminal responsibility from the participation in a
group. For instance, Article 25 provides for criminal liability based on a person‟s
contribution „to the commission of a crime by a group of persons acting with a
common purpose‟. Such contribution must be intentional and made with either „the
aim of furthering the criminal activity or criminal purpose‟ or made with the
„knowledge‟ that the group had the „intention‟ to commit the crime 120. Unlike at
Nuremberg, under the ICC, the individual must make some „contribution‟ to the
commission of the crime.
It is pertinent to mention that the application of ratione personae jurisdiction

could be difficult in practical terms in respect to dissolving states or contested
territories and disputed boundaries. Since fifty percent of contemporary international
boundaries are apparently disputed. The problem could also be compounded
whenever the custodial states are involved121. Besides, the ICC faces the problem of
exercising its jurisdiction over certain entities, such as stateless personnel, dual
nationals and suspected offenders. States exercise jurisdiction in customary law over
the surrendered and arguments have been advanced that the ICC would have universal
jurisdiction over the surrenderees122.
117
Article 27, ICC Statute. However, it is also contrasted with Article 98, which might subordinate a
states duty to surrender an accused individual to the ICC based on a pre-existing international legal
obligation not to surrender an individual with a third state.
118
Article 26, ICC Statute.
119
Indictments can obviously be issued and the Pre-Trial Chamber may hold hearings in the absence of
the accused (Article 61(2)). The ICTY developed a practice of issuing sealed indictments after
confidential hearings.
120
Article 25(d), ICC Statute.
121
Prof. N. Sanajaoba in his paper on “Criminal Justice under Stress, Transnational Perspective”
submitted in the international conference, on 24 November 2006, at New Delhi. See also supra note
112, P.17.
122
Prof. N. Sanajaoba, „The International Criminal Court: From Impunity to Accountability‟, supra
note 112, P.16.
Page | 31
Court
2.7 RATIONE LOCI OR TERRITORIAL JURISDICTION
Before the ICC can exercise jurisdiction over a crime, the alleged crime must
have been committed on the territory of a state party or by one of its nationals 123. The
ICC may also exercise its jurisdiction when a state which is not a party to the Rome
Statute consents to the ICC‟s jurisdiction, and the crime has been committed on that
state‟s territory or the accused is one of its nationals on an ad hoc basis124. In addition,
the ICC has the jurisdiction over the States, on the territory of which the conduct in
question occurred or, in case of the crime which was committed on board of vessel or
aircraft, the State of registration of the vessels or aircraft125, regardless of the
nationality of the accused person.
Jurisdiction of the ICC is based on the principle of territorial criminal

jurisdiction. Since territorial jurisdiction may extend to the air above the state, and to
its territorial water, which grey areas remain to be determined. Besides some
territories are necessarily beyond the reach of the ICC‟s jurisdiction like the High
Seas, Outer Space, Antarctica and other areas unexplored by the comity of nations.
When atrocities are committed in such places, jurisdiction will have to be established
on the basis of the nationality of the offender126.
Besides, at the time of ratification a few states have made declarations

concerning the territorial scope of the Rome Statute. For example, Denmark does not
intend the ICC Statute to apply to the Faroe Islands and Greenland 127, which has
influenced by admirable sentiments of respect for local autonomy. Such declaration
has the effect of excluding the reach of the ICC‟s jurisdiction from a territory which,
123
Article 12(2), ICC Statute.
124
Article 12(3), Id. In the context of a referral to the ICC by a non-state party uses the terms „the
crime in question‟ instead of „a situation in which one or more crimes within the jurisdiction of the
court appear to have been committed‟. In all other referrals to the ICC, by a state party or the
Security Council, the ICC Statute uses the term „situation‟, which is intended to exclude a possible
selectivity of instances of individuals to be referred to the ICC on an exclusive basis.
125
Article 12(2)(a), ICC Statute.
126
Schabas, “THE INTERNATIONAL CRIMINAL COURT”, supra note 86, P.78.
127
See also the declaration by New Zealand, concerning Tokelau. The Netherlands has made a
harmless but reassuring statement to the effect that the Statute applies not only to its European
territory but also to the Netherlands Antilles and Aruba.
Page | 32
Court
on its own, has no right to correct the situation, because neither the Faroe Islands nor
Greenland are sovereign states and consequently they cannot accede to the ICC
Statute.
Creating jurisdiction based on the nationality of the perpetrator is the least

controversial form of jurisdiction which was the absolute minimum opposed by some
states at the Rome Conference. Cases may arise where the concept of nationality has
to be considered by the ICC. It is, in accordance with general principles of public
international law, the ICC may consider whether a person‟s link with a given state are
genuine and substantial, rather than it being governed by some formal and perhaps
even fraudulent grant of citizenship128.
The principle of jurisdiction on the basis of nationality as recognized in Article

12(2) (b) suggests that the state of which the alleged perpetrator is a national
possesses through such common nationality a legitimate jurisdictional basis
recognized under international law to prosecute and punish a perpetrator of serious
crimes also when the criminal conduct occurred in another state. It is an established
rule of customary international law that the state of the nationality of the perpetrator
can exercise extraterritorial jurisdiction at least with regard to the most serious crimes
under international criminal law. The principle of territorial jurisdiction is also
recognized by common law states with regard to serious international crimes as
contained, e.g., in Article 6 to 8 of the Rome Statute.
The ICC will have jurisdiction when a heinous crime is committed by a

national of a state party to the ICC Statute, regardless of whether or not the alleged
perpetrator is present or in custody in respective state or in another state party or a
non-state party. Albeit only state parties are then obliged to cooperate with the
ICC129.For example, when a foreigner commits a heinous crime in another state, the
128
Nottebohm Case (Send Phase), Judgment of 6 April 1955, (1955) ICJ Reports 24; Proposed
Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion
OC-4/84, 19 January 1984, Series A, No.4, para-35.
129
C. Kress, „Article 86‟ on general obligation to cooperate, and C. Kress and K. Prost, „Article 89‟ on
the surrender of persons to the Court, in O. Triffterer (ed.), “Commentary on the Rome Statute of
the International Criminal Court” (1999), PP.1051 and 1071, respectively.
Page | 33
Court
state of the nationality of the alleged perpetrator has no obligations whatsoever to
assist the territorial state in the exercise of its territorial jurisdiction, subject only to
specific obligations under international law130.
2.8 INVOKING THE JURISDICTION OF THE ICC: TRIGGER

MECHANISMS
The concept „trigger mechanism‟ emerged during the development of the ICC
Statute to refer to the procedural mechanisms by which ICC jurisdiction over a
particular situation might be activated. The mechanism by which ICC jurisdiction can
be triggered is relatively complex, reflecting compromises in Rome. Article 12-15
refer to the special circumstances by which the court may exercise its jurisdiction over
a crime after a factual situation, which involves the possible commission of one or
more of the crimes defined by the ICC Statute. They are:
a) A State Party may refer a situation to the Prosecutor (Articles 13(a),14).

b) The Security Council may, under Chapter VII of the UN Charter, refer a
situation to the Prosecutor (Article 13(b)).
c) A non-member state may become an accepting state by allowing ICC
jurisdiction on a case-by-case basis (Article 12(3)).
d) The Prosecutor may initiate an investigation (on his own initiative) on the
basis of information received of crimes within the jurisdiction of the court
(Article 15).
A situation is the overall factual context in which it is believed that „a crime

within the jurisdiction of the ICC (Article 5) has been committed 131. Since the ICC‟s
jurisdiction cannot be triggered against a specific person, consequently the word
130
Hans-Peter Kaul, „PRECONDITIONS TO THE EXERCISE OF JURISDICTION‟, supra note 19,
P.608.
131
The term „situation‟ cannot be interpreted in a narrow or restricted manner that singles out a given
party to a given conflict, or a given group or military unit, nor can it be interpreted to refer to a
specific occurrence without regard to its overall context. Bassiouni, The ICC, supra note 33, P.193.
The meaning of the term „situation‟ will vary from one instance to the another, although it must be
determined contextually by the ICC Prosecutor, and will ultimately be subject to the judicial review
of a three judge panel (Article 61), and eventual review by the Appellate Chamber (Article 82).
Such judicial review at two levels, by a total of eight judges, guarantees the integrity of the process.
Page | 34
Court
„situation‟ is intended to minimize politicization of the court by naming
individuals132. The notion of referring „situations‟ rather than „cases‟ is also
consistent with the notion in the Nuremberg, Tokyo, Yugoslav and Rwandan
tribunals, where specific individuals were not named in the mandate given to those
bodies.
2.8.1 REFERRAL OF A SITUATION BY A STATE PARTY
A situation in which one or more of the crimes, as defined in the ICC Statute,
appears to have been committed can be referred to the ICC Prosecutor by a State
Party. Absence of a restriction to „interested‟ state parties, in allowing all state parties
to refer a situation, is consistent with the long-standing view that the most serious
international crimes are „crimes of concern to the international community as a
whole‟133. Any state party may refer a situation to the Prosecutor within the
jurisdiction of the ICC which appears to have been committed requesting the
Prosecutor to investigate the situation in order to determine whether one or more
specific persons could be charged with the commission of such crimes.
The state party requesting an investigation shall specify the relevant

circumstances and submit to the Prosecutor all supporting documentation as is
available with that state134. Article 53 requires the Prosecutor to evaluate information
made available to him and to determine whether there is a reasonable basis to proceed
with a formal investigation. For determination, the Prosecutor must consider whether
there is a reasonable basis to believe that crimes within the jurisdiction of the ICC
have been committed, whether the case would be admissible under the
complementarity regime, and whether investigation would serve the interests of
justice135.
According to Article 12(2)(a) and (b), when situation is referred to the

Prosecutor by a state party or the Prosecutor has used his proprio motu powers
132
Mahnoush H. Arsanjani, „The Rome Statute of the International Criminal Court‟, AJIL, Vol.93
(1999), P.27; Bassiouni, The Permanent ICC, supra note 33, P.193.
133
Para-4 of the Preamble, Article 1 and Article 5 of the Rome Statute, para. 4
134
Article 14(2), Rome Statute.
Page | 35
135 Court
Article 53(1) and (2), Rome Statute.
Page | 36
Court
(Article 13(a) and (c)), the ICC may exercise its jurisdiction where one or more of the
following states are parties to the ICC Statute:
a) The State on the territory of which the conduct in question occurred or, if the
crime was committed on board a vessel or aircraft, the state or registration of
that vessel or aircraft.
b) The State of which the person accused of the crime is a national136.
The state party referral is procedurally less complicated than Prosecutor -

initiated referrals, through which states parties can take concrete action against serious
crimes by formally referring them to the ICC. The role of the statute envisages for the
court is that of a „safety net or a palliative to the deficiency of States‟. Even the court
can play such role only when the territorial state or the state of nationality of the
accused has accepted its jurisdiction either by becoming a party to the statute or by
lodging a declaration with the Registrar of the Court under Article 12(3) of the ICC
Statute. In a great majority of cases where the crimes of-the Rome Statute occur
within the boundaries of a state, the territorial state will also be the state of nationality
of the perpetrator. It means, in such cases if the territorial state does not give its
consent to the ICC‟s jurisdiction, any state party may refer the situation to the
Prosecutor. Even though, the role of the ICC will remain mainly promotional
inasmuch as its existence will encourage the enforcement of national jurisdiction over
the crime of genocide, crimes against humanity, war crimes and aggression.
2.8.2 REFERRAL BY THE SECURITY COUNCIL
The ICC, as a judicial organ, has been mandated with the prosecution of the
most serious international crimes constitutes a means to the maintenance of
international peace and security, and closely related to the UN Security Council. The
coordination between the judicial activity of the ICC and the Security Council‟s
136
Article 12 is significantly different from the US proposal, which required the cumulative consent of
both the territorial state and the state of nationality of the perpetrator. It also differs from the Korean
proposal which wanted the court to obtain consent from one or more of the interested states, the
state of nationality of the perpetrator, or the state of nationality of the victim.
Page | 37
Court
primary responsibility under Article 24 of the UN Charter constituted crucial issue of
controversy in the travauxpreparatoires137.
In order to refer a situation to the Prosecutor, the Security Council must be

acting pursuant to Chapter VII of the UN Charter. Under Article 39 of the Charter, the
Security Council is entitled to „decide what measures shall be taken in accordance
with Articles 41 and 42, to maintain or restore international peace and security‟, and
the referral to the ICC would fall squarely within its powers under Article 41 that
constituting a measure „not involving the use of armed force‟. Such referral per se
would not diminish the requisite independence of the ICC138. Besides, the Security
137
As one of the “principal organs” of the United Nations (Article 7, para. 1), the Security Council has
the „primary responsibility for the maintenance of international peace and security” (Article 24,
para. 1) and “shall determine the existence of any threat to the peace, breach of the peace, or act of
aggression and shall make recommendations or decide what measures shall be taken (Article 39).
The Rome Statute conflicts with this mandate as because the ICC could circumvent the UN
Security Council‟s authority by investigating and taking action against violations of international
law. Cassandra Jeu, “ASUCCESSFUL, PERMANENT INTERNATIONAL CRIMINAL
COURT...ISN‟T IT PRETTY TO THINK SO?” in HOUSTON JOURNAL OF
INTERNATIONAL LAW, Vol.26, 2004, P.435; Diane Marie Amann&M.N.S. Sellers, „The United
States of America and the International Criminal Court‟, 50th AMERICAN JOURNAL OF
COMPARATIVE LAW, 2002, PP.381-386. A great majority of states present in Rome wanted to
give the Security Council a power to refer a situation to the court under Chapter VII of the UN
Charter. However, few states were opposed to the role given to the Security Council in any manner
under the Statute in respect of the jurisdiction of the ICC arguing that the power to refer a situation
to the court was „unnecessary‟ and would be „an attempt to influence justice‟. Any role given to
the Security Council in the jurisdiction of the court, in the opinion of Indian Delegate, would
amount to granting special power to the five Permanent Members of the Security Council wielding
veto power to decide upon a particular situation on purely political condition, while they themselves
would not accept the inherent jurisdiction of the court. It means by nature of that privilege the five
Permanent Members of the Security Council, which may not be party to the ICC Statute will be in a
position to impose obligations on non- parties. Since there is no precondition for the exercise of
jurisdiction when a situation is referred by the Council to the ICC this provision will enable these
non-parties to bind through the court other non-parties.Nirmal, Jurisdiction, supra note 38, pp. 126-
127.On the other hand, for the supporters of the role of the Security Council in the exercise of the
jurisdiction of the ICC, this power already rests with the Council in any event under Chapter-VII of
the UN Charter. Besides, the Security Council has already established itself in the field of
international criminal law with its creation of tribunals for the former Yugoslavia and Rwanda.
Such argument is apparently postulated on the fact that the primary powers concerning peace and
security already rest with the Council under Article 24 and Chapter-VII of the UN Charter. Since
the Security Council‟s responsibility for maintenance of international peace and security is
“primary” and not exclusive, it is submitted that the power of referral could also have been given to
the other organs of the UN which have competence under the Charter to deal with these questions.
The Jordanian proposal wanted such129powers to be given even to the General Assembly, and also
to other UN agencies such as the Commission on Human Rights. Similarly, Chile and Brazil
proposed that similar power be given to the Council under Chapter-VI of the Charter.Ibid, p. 127
138
The Report of the Preparatory Committee on the Establishment of an International Criminal Court,
UN Doc.A/51/22 (13 September 1996), para130.
Page | 38
Court
Council, as far as possible, uses it as an instrument for the exercise of its own
principal function without interfering with the subsequent judicial activity139.
To exercise the power of referral by the Security Council two substantial

conditions arise directly from Article 39 of the UN Charter: (a) the Security Council
can take action only if it determines, in the first place, the existence of a threat to the
peace, breach of the peace, or act of aggression; and (b) the measures taken must
pursue the objective of maintaining or restoring international peace and security. In
determining the existence of such conditions the Security Council exercises a wide
discretionary power140. Corresponding to the first condition, the Preamble of the ICC
Statute declares that the crimes within the court‟s jurisdiction „threaten the peace,
security and well-being of the world‟141.
In its determination as to whether there exists a „threat to the peace‟, the

Security Council will be guided by the gravity of the crimes committed, the impunity
enjoyed by the crimes‟ perpetrators and the effectiveness or otherwise of national
jurisdiction in the prosecution of the crimes, as suggested by the words and the
rationale of the ICC Statute142. In doing so the Statute is not to be interpreted as
limiting in any way the Security Council‟s discretionary power to examine each
specific situation and to label it under the categories described in Article 39, a power
that remains subject to its political evaluation in each particular circumstances143.
139
In the same manner as the Security Council can establish a subsidiary judicial organ in the exercise
of its functions under the Charter, ICTY, Appeal Chamber Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction of 2 October 1995, Tadic, IT-94-1-AR 72, paras. 37-38.
140
Prosecutor v. Tadic, Case No.IT-94-l-AR72, ICTY Appeal Chamber Judgment, 2 October 1995,
paras 29, 31 and 39.
141
Preamble, para. 3, ICC Statute.
142
While genocide, aggression, and crimes against humanity are inherently „grave‟ war crimes should
be prosecuted under the statute are specially those of a systematic or large-scale character (Article
8(1) and 17(l)(d)); From the words of the Preamble of the ICC Statute, it is evident that the goal of
putting an end to the impunity of the perpetrators of such crimes is the main reason for the creation
of the ICC (paras 4, 5 and 9).
143
Luigi Condorelli and Santiago Villalpando, „Referral and Deferral by the Security Council, in
Antonia Cassese‟, Paola Gaeta and John R.W.D. Rones (eds.), “THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT; A COMMENTARY”, Vol.I (2002), P.631.
Page | 39
Court
With respect to the second condition, the Security Council should decide that
the referral to the ICC is an appropriate measure to restore or maintain international
peace and security. It means the basis of the determination is that the international
justice can constitute a suitable means to achieve international peace, as it is
demonstrated from both the practice of the Security Council in the context of the
ICTY and the ICTR. Although political motivation based on the specific situation that
is at stake could bring the Security Council to decide not to refer the situation to the
ICC, even if it appears that crimes within its jurisdiction have been committed. Once
again, the Security Council‟s discretionary power under Chapter VII remains
untouched by the ICC Statute.
The Security Council could only refer a „situation‟ and not single cases.
Despite, in particular circumstances, the impunity of specific individuals would
constitute per se a threat to the peace and that, in the exercise of its power under the
UN Charter, the Security Council could refer such case to the ICC. It means the single
case of an individual could sometimes have an impact on an entire situation addressed
by the Security Council144. For example, national judicial authorities, by deciding not
to prosecute a key leader of the state or of an organization suspected of having
committed international crimes, or by initiating apparently a partial trial against
him,which might cause grave instability in the state or in the region concerned. In
such a situation, the Security Council could decide that only the intervention of the
ICC could constitute an appropriate measure to restore or maintain international peace
and security145. Such action by the Security Council would not contravene the
provisions of Chapter-VII of the Charter. It would also not contravene the ICC
Statute, since Article 13(b) does not dismiss the possibility that the Security Council
144
Condorelli and Villalpando, Referral and Deferral, Ibid, P.632.
145
Although it is unprecedented in practice, on many occasions, the prosecution or lack of prosecution
of key political figures suspected of commission of international crimes which has called a situation
that could have degenerated into a threat to the peace. For example, one could recall the case of
Ceausescu in Romania in 1989, Pol Pot in Cambodia, Milosevic in the Federal Republic of
Yugoslavia (Serbia - Montenegro), or Pinochet facing the prospect of prosecution in Spain against
the will of the government of Chile.
Page | 40
Court
may refer to the ICC a situation in which „one or more‟ crimes are committed, even
by one single individual.
Besides, it would not interfere with the independent exercise by the ICC of its
judicial activity, since the Prosecutor could decide that there is no reasonable basis to
proceed under the Rome Statute and his decision could be submitted to review by the
Pre-Trial Chamber146. By contrast, the Prosecutor could decide, with the authorization
of the Pre-Trial Chamber, to investigate and prosecute other individuals for other
crimes ignored by the Security Council.
In addition, internal conflicts resulted in instances of terrible atrocities during

the twentieth century. Important political figures of non-member states who
committed atrocities within their own nations would never voluntarily submit to the
ICC jurisdiction. Failing UN Charter‟s Chapter VII referral, the ICC would not have
an adequate prosecutorial and enforcement mechanism against non-member
nations147, rendering it ineffective in such cases148.
Referral by the Security Council could be expected to be accomplished

through a decision taken in accordance with Article 41 of the UN Charter. In any
case, the Security Council is under obligation to make clear that it is exercising its
powers under Article 13(b) of the ICC Statute; otherwise, the relevant resolution
could be interpreted as simply providing the Prosecutor with information for the
purposes of propriety mote investigations under Article 15(1) rather than as a
referral149.
Under Article 19 of the ICC Statute, the court is entitled to examine its own
jurisdiction as well as the admissibility of the case brought before it. On such basis,
146
Article 53, ICC Statute.
147
Gerard E. O‟Connor, Note, The Pursuit of Justice and Accountability: Why the United States
should support the Establishment of an International Criminal Court, 27 HOFSTRA L. REV., 1999,
P.951.
148
Theodor Meron, The Court We Want, WASH. SPOT, October 13, 1998, P.A15.
149
Condorelli and Villalpando, Referral and Deferral, supra note 143, P.634.
Page | 41
Court
the ICC is entitled to establish whether or not the exercise of its jurisdiction under
Article 13 respected the conditions laid down by the statute.
Under Article 16 the Security Council has the power, by a resolution adopted
under Chapter VII of the UN Charter, to defer a potential or on-going investigation or
prosecution for a period of 12 months, when the Council requests the ICC to do
so.The deferral by the Security Council must comply with the conditions set up by the
UN Charter, and also those deriving from the system of the ICC Statute. The Security
Council shall justify its decision of deferral as a means to maintain or restore
international peace and security, by demonstrating that the suspension of the
investigations or the prosecutions will contribute to the objective provided for in
Chapter-VII of the Charter.
Unlike the referral provided for in Article 13(b), which is subject to the
assessment by the Prosecutor and the potential review by a Pre-Trial Chamber, the
resolution under Article 16 creates an obligation for the ICC to suspend or abstain
from commencing all proceedings. Consequently, the Security Council, a political
organ of the UN may interfere with the independent exercise of the judicial function
and the judicial guarantees for the suspect before the ICC. In exercising its power of
judicial review of the resolution requesting the deferral, the ICC will establish the
legality of such action and the court will also be entitled to ascertain that the Security
Council has not exceeded its competence according to the UN Charter150.
The request may be renewed and such a request, could in theory, be renewed
indefinitely. Article 16 intends to give the Council a power of deferral on a case-by-
case basis and not a blanket exemption. The words of Article 16 refer to a “request”
as opposed to an order. It is submitted that the ICC may refuse such a request where it
believe that it would be in the interest of justice require to do so151.
150
Ibid, P.648.
151
CLAIRE de THAN and EDWIN SHORTS, „INTERNATIONAL CRIMINAL LAW AND
HUMAN RIGHTS‟ (2003), P.326.
Page | 42
Court
A purported deferral by the Security Council must be by means of a resolution
adopted under Chapter VII, which will last for a period of 12 months. The Rome
Statute does not set out any limitation on the Council making subsequent
determinations in every 12 months, and in effect, it can postpone an investigation or
prosecution indefinitely if a resolution is passed every year152. Although the
requirement that the Security Council adopts the resolution under Chapter VII is a
clear indication that this power of deferral represents a concession to the peace and
security mandate of the Council. One of the key participants at the Rome Diplomatic
Conference observed:
„Article 16 of the ICC Statute...does provide the appropriate vehicle for

the future balancing of interests of international peace and justice
mandates, and recognizes that the Security Council is the proper forum.
The article can be used by the Council to postpone ICC investigations
and prosecutions when the Council „assesses that the peace efforts need
to be given priority over international criminal justice‟, in the interest
of international peace and security. It recognizes a Council‟s power to
request the Court not to investigate or prosecute when the requisite
majority of its members conclude the judicial action - or the threat of it
- might harm the Councils efforts to maintain international peace and
security pursuant to the Charter153.
India criticized the provisions of Article 16, stating that the ICC Statute
violates the fundamental principle of international law by conferring on the Council a
power which it does not have under the Charter and which it cannot and should not be
given by any other instrument. In addition, the Security Council can block the work of
the court even without taking appropriate measure regarding the situation where one
152
DAN SAROOSHI, „The Peace and Justice Paradox: The International Criminal Court and the UN
Security Council‟, in DOMINIC McGOLDRICK, PETER ROWE and ERIC DONNELLY (eds.),
„The Permanent International Criminal Court‟, (2004), P.105.
153
M. Bergsmo, „Occasional Remarks on Certain States Concerns about the Jurisdictional Reach of the
International Criminal Court and Their Possible Implications for the Relationship between the
Court and the Security Council‟, 69 Nordic Journal of International Law, 2000, P.87, at PP.112-
113.
Page | 43
Court
or more crimes of the ICC Statute have been committed154. The draft Statute, Article
10.7 option 1 provided that „no prosecution may commence... arising from a situation
which is being dealt with actively by the Security Council”. No such kind of provision
is there in the adopted Article 16, the possibility of blocking the ICC‟s jurisdiction by
castigating a situation as a threat to peace or breach of the peace, or an act of
aggression without taking any measure to deal with it still exists155.
Despite, under Article 16, the ICC has no discretionary power in deciding
whether to abide by the request of referral, the decision of the Security Council is
subject to such formal and substantial conditions as to require review by the judicial
organs, in the interest of justice and in order to safeguard the independence of the
court156. The ICC shall ensure that the request is being made in accordance with the
conditions provided for under the UN Charter and the ICC Statute that: (a) it follows a
determination of the existence of a situation described under Article 39 of the UN
Charter; (b) in doing so, the Security Council has respected the Purposes and
Principles of the UN; and (c) has not acted ultra vires, that there is effectively a duly
motivated request of deferral157. In addition, the ICC must determine whether the
specific case is part of the situation considered by the Security Council under Chapter
VII. Upon meeting of the conditions, the court is obligated to uphold the deferral of
the case158.
In any case, the Security Council resolution of deferral must be submitted to

the verification of its legality by the ICC‟s jurisdictional organs, so that the court can
examine the existence of the conditions provided for under Chapter VII of the UN
Charter and the ICC Statute with regard to the request for deferral constitute an
appropriate judicial guarantee of the rights of the accused.
154
B.C. NIRMAL, „JURISDICTION‟, supra note 38, P.128.
155
Id.
156
Condorelli and Villalpando, „Referral and Deferral‟, supra note 143, P.649.
157
Ibid, P.650.
158
Id. For deferral consequences, see, ibid, PP.651-54
Page | 44
Court
Since both the International Court of Justice in the Namibia case 159 and the
ICTY Appeal Chamber in the Tadic case 160 have used such inherent jurisdiction to
review, in effect, establishing the legality of Security Council resolutions. It would
seem to be no legal limitations to the ICC conducting such a review where it was
strictly limited to the question of determining its jurisdiction in a case161.
2.8.3 ACCEPTANCE OF THE ICC JURISDICTION BY A NON-STATE
PARTY
Besides, state parties, regarding which the ICC has inherent jurisdiction
ratione materiae, a non-state party may also become an accepting state by allowing
ICC jurisdiction on a case-by-case basis. Under Article 12(3), those states are not
parties to the Rome Statute, may accept ICC‟s jurisdiction on an ad hoc basis with
respect to the crime in question, and through a declaration lodged with the Registrar
to the effect162.
159
In the Namibia case the ICJ stated that it did not possess a power of judicial review over Security
Council resolutions as a matter of its „primary‟ jurisdiction, but it then proceeded to examine as a
matter of its „incidental‟ jurisdiction the question of the validity of the Security Council resolutions
that had been questioned in the case by South Africa since their legality was a precondition to the
court having jurisdiction in the case. As the ICJ stated: „[T]he question of the validity or conformity
with the Charter of General Assembly Resolution 2154 (xxi) or of related Security Council
resolution does not form the subject of the request for advisory opinion. However, in the exercise of
its judicial function and since objections have been advanced, the Court, in the course of its
reasoning, will consider these objections before determining any legal consequences arising from
those Resolutions‟, Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), (1971) ICJ
Report 16, as contained in 49ILR2, P.35.
160
The Appeal Chamber in the Tadic case stated: „There is no question, of course, of the International
Tribunal acting as a constitutional tribunal, reviewing the acts of the other organs of the United
Nations, particularly those of the Security Council, its own “creator”. It was not established for that
purpose, as is clear from the definition of the ambit of its “primary” or “substantive” jurisdiction in
Articles 1 to 5 of its Statute. But, this is beside the point. The question before the Appeals Chamber
is whether the International Tribunal, in exercising this “incidental” jurisdiction, can examine the
legality of its establishment by the Security Council, solely for the purpose of ascertaining its own
“primary” jurisdiction over the case before it‟, Tadic case, supra note 140, at para-20. The Appeal
Chamber in Tadic went on to review the validity of Security Council resolution 827 which
established the Tribunal, and in so doing discussed the limits of the powers of the Council. The
Appeal Chamber did find that the adoption of resolution 827 was within the powers of the Security
Council, ibid, para. 36, and the Tribunal had been lawfully established as a measure under Chapter-
VII of the Charter. Ibid, para. 40.
161
Sarooshi, „The Peace and Justice Paradox‟, supra note 152, PP. 114-115.
162
For a more detailed presentation and analysis of jurisdiction and other issues, L. Arbour and M.
Bergsmo, „Conspicuous Absence of Jurisdictional Overreach‟, and M.H. Arsanjani, „Reflections
on
Page | 45
Court
It encounters a practical problem which might occur is that the Prosecutor
initiates an investigation that later will have to be closed due to lack of jurisdiction. In
order to avoid such problem, now the Rules permit the Prosecutor to inquire, through
the Registrar, from a non-state party on a confidential basis whether it intends to make
a declaration for acceptance of the court‟s jurisdiction163. Another problem is
that,since the statutory provision refers to „the crime in question‟. A narrow
interpretation could give raise to asymmetry in a conflict, and not over its own 164. A
rule has been drafted carefully to a broad interpretation which provides that the
Registrar shall inform a state that lodges a declaration, or intends to do so, that one
consequence thereof is the acceptance of jurisdiction with respect to the crimes
referred to in Article 5 of relevance to the situation 165. The rule implies that the Court
will not be bound by a declaration that is directed towards a single crime 166. As a
consequence, according to Article 12(3), which is further clarified in the Rules, is that
the accepting state must cooperate like a state party in accordance with Part 9 of the
Statute.
It seems that while in context of the Security Council or a State party, there is
no doubt that only a „situation‟ can be referred to the ICC Prosecutor, there is a
material error in Article 12(3), which deals with acceptance of the ICC jurisdiction by
a non-state party of „the crime in question‟. Bassiouni states that the intention was to
the Jurisdiction and Trigger- Mechanism of the International Criminal Court‟, both in H.A.M. von
Hebei, J.G. Lammers and J. Schukking (eds.), Reflection on the International Criminal Court -
Essays in Honour of AndriaanBos (1999), PP.57-76 and PP. 129-140 respectively; M. Bergsmo,
„The Jurisdictional Regime of the International Criminal Court (Part-II, Articles 11-19)‟, 6 Eur. J.
Crime, Crim. L & Crim. Jus. (1998), PP.345-363; J. Chopra, „Establishing Universal Jurisdiction‟,
6 Brown Journal of World Affairs (1999), PP.3-17; H.-P. Kaul and C. KreB, „Jurisdiction and
Cooperation in the Statute of the International Criminal Court‟, 2 YIHL (1999), PP.143-175; E. La
Haye, „The Jurisdiction of the International Criminal Court: Controversies Overthe Preconditions
for Exercising Its Jurisdiction‟, 46 NILR (1999), PP.l-25.
163
Rule 44(1).
164
See Bergsmo, „Occasional Remarks‟, supra note 153, PP.100-134; R. Wedgwood, „The United
States and the International Criminal Court: Achieving a Wider Consensus Through the „Ithaca
Package‟, 32 Cornell ILJ (1999), P.541; B. S. Brown, „US Objections to the Statute of the
International Criminal Court: A Brief Response‟, 31 NY Univ. JIL & Pol. (1999), PP.885-886.
165
Rule 44(2).
166
Silvia A. Fernandez de Gurmendi and HakanFriman, “THE RULES OF PROCEDURE AND
EVIDENCE OF THE INTERNATIONAL CRIMINAL COURT”, in Year Book of International
Humanitarian Law, Vol.3 (2000), (hereinafter ICC Rules), PP.289-336, at P.326.
Page | 46
Court
have a non-state party refer a „situation‟ which gives rise to „a crime within the
jurisdiction of the court‟167.
Referrals in all three cases are at the same level, and the Prosecutor may
initiate an investigation if he or she believes that there is a „reasonable basis‟ to
proceed under the Statute168. The Security Council referral does not create an
obligation on the ICC Prosecutor to proceed with a prosecution. As a consequence, all
three sources of referrals merely bring to the ICC Prosecutor‟s attention facts which
might prompt an investigation169. Whether that investigation produces sufficient
evidence to constitute a „reasonable basis‟ to prosecute will depend upon the outcome
of the investigation.
Despite, where the Security Council has determined under Chapter VII of the
UN Charter that there is a threat to international peace and security, and referred a
case concerning a core crime to the ICC, which will more or less constitute
jurisdiction, and so it will presumably be sufficient for the Prosecutor to assume that
there is a reasonable basis for investigating the crime170.
2.8.4 REFERRAL OF A SITUATION BY THE PROSECUTOR
Pursuant to Article 15, the Prosecutor may initiate proprio motuan

investigation with respect to a crime referred to in Article 5, in absent of a „referral‟
167
Bassiouni, „The Permanent International Criminal Court‟, supra note 106, P.194. The term „crime‟
seems to have been inadvertently used by the unofficial drafters of this provision rather than the
term „situation‟ which was used with respect to referrals by the Security Council or a state party. It
is due to the small group of delegates worked with the Chairman of the Committee of the Whole to
develop the text, which did not intend to alter the essence of a „referral‟, namely a
„situation‟.Bassiouni, Negotiating the Treaty of Rome on the Establishment of an International
Criminal Court Cornell International Law Journal, Vol.32 (1999), PP.443, 453, 457-58. According
to Bassiouni, it was indeed to be „a situation giving rise to a crime within the jurisdiction of the
court‟. Even though most of these words are absent from the text, it is surely construed that way.
Any other construction would absurdly result in non-parties having the ability to select which
„crimes‟ are to be investigated and which ones should not, and by implication also predetermine
which party is to be investigated. Such a situation would fly in the face of all the basic principles on
which the ICC‟s jurisdiction is founded. Bassiouni, The Permanent International Criminal Court,
supra note 33, P.194, fn.74.
168
Article 53(1), ICC Statute.
169
Bassiouni, supra note 106, P. 194.
170
IAIN CAMERON, „Jurisdiction and Admissibility Issues under the ICC Statute‟, in D.C. Goldrick
et al. (eds.), The Permanent ICC, supra note 152. P.82.
Page | 47
Court
by a state party (Article 13(a), 14), the Security Council (Article 13(b)), or a non-state
party (Article 12(3)). When the Prosecutor concludes that there is a reasonable basis
to proceed with an investigation, he or she must submit a request along with
supporting material to the Pre-Trial Chamber (Article 15(2)) for authorisation to
commence a formal investigation (Article 15(3)). The Pre-Trial Chamber will
consider whether the request and the supporting material demonstrate a reasonable
basis to proceed, and whether the case appears to fall within the jurisdiction of the
ICC, and may authorize commencement of the investigation (Article 15(4)) 171. Albeit
such authorisation shall be without prejudice to subsequent determinations by the
court with regard to the jurisdiction and admissibility of a case. When the Pre-Trial
Chamber does not authorize the investigation, the Prosecutor can always present a
fresh request based on new facts or evidence regarding the same situation.
Before the Prosecutor submits to the Pre-Trial Chamber a request for

authorization of an investigation, he must analyse the seriousness of the information
on crimes he was received and conclude that the information provided constitutes a
reasonable basis for an investigation. For such purpose, the Prosecutor may seek
additional information from states, organs of the UN, inter-governmental or
nongovernmental organizations or other reliable sources that he or she deems
appropriate, and may receive written or oral testimony at the seat of the court (Article
15(2)). After the preliminary examination, the Prosecutor concludes that the
information provided does not constitute a reasonable basis for an investigation; he or
she shall inform those who provided the information. Despite a negative finding it
will always be open to the Prosecutor to consider further information regarding the
same situation in the light of new facts or evidence. In addition, a negative decision
by the Pre-Trial Chamber doesnot preclude the Prosecutor from re-applying where
new facts or evidence emerged (Article 15(5)).
An important feature of Article 15 is that it permits victims to make

representations to the Pre-Trial Chamber, and helping to ensure that victims have a
171
Rule 50, The Draft Rules of Procedure and Evidence.
Page | 48
Court
voice in the proceedings172. It is consistent with the basic purpose of establishing an
independent trigger mechanism, in particular to provide victims and concerned
organizations a more direct form of access to justice, without necessarily having to
rely on states to trigger ICC jurisdiction.
The power came to be seen as essential, the need for checks and balances to
ensure responsibility in its use was also clearly explicit from it. The safeguards to
prevent the possibility of abuse were eventually found not only in the requirement of
independent judicial review and approved by the Pre-Trial Chamber and also in the
complementarity regime of the statute, the careful definition of crimes restricted to
theheinous crimes recognized under international law, the provisions on election and
qualifications of the Prosecutor and judges, and the provisions on removal of officials
for serious misconduct or breach of duty 173. It was opposed by many states on the
ground that proprio motu Prosecutor would suffer from political influence or be
overburdened by the volume of political complaints 174. It would seem, given the
numerous safeguards and the requisite professionalism of the Prosecutor, which is
likely to be the least politicized trigger mechanism.
The prosecutor is likely to exercise his or her power to dismiss ill-conceived

referrals from state parties with a political motive rather to be the originator of any
frivolous investigations, wasting the valuable time and resources of the ICC. Its
inclusion was made possible by the growing recognition of the practical necessity of
having an independent non-political trigger mechanism, and the development of
checks and balances to ensure its responsible use.
172
Article 15(3), ICC Statute. The modalities of victim participation are further clarified in the Rules
of Procedure and Evidence, Rule 50 and more generally Rules 85 to 99.
173
Articles 5-9, 15-19,42,46,47,53, and 54.
174
They expressed the view that only states and the Security Council should be allowed to trigger the
jurisdiction of the Court. Arguing against a free and independent Prosecutor the US stated: “It is our
fair view that the proposal for a propriomotu Prosecutor not only offers little way of advancing the
mandate of the Court and the principles of prosecutorial independence and effectiveness, but also
will make much more difficult the Prosecutor‟s central task of thoroughly and fairly investigating
the most egregious of crimes”. See Nirmal, Jurisdiction, supra note 38, P.129.
Page | 49
Court
2.10 Exercising ICC Jurisdiction
So far, the International Criminal Court has opened investigations into seven
situations: the Democratic Republic of the Congo; Uganda; the Central African
Republic; Cote d‟Ivoire; Darfur, Sudan; the Republic of Kenya; and the Libyan Arab
Jamahiriya. Two other situations - Nigeria and Guinea are state parties to the ICC, are
under preliminary examinations. Of these seven, three were referred to the court by
the state parties - Uganda, DRC and CAR; two were referred by the United Nations
Security Council - Darfur and Libya and one, i.e., Kenya, has begun proprio motu by
the Prosecutor. Cote d‟Ivoire is not a state party; jurisdiction in Cote d‟Ivoire has
granted by virtue of a declaration submitted by the Ivorian Government on October 1,
2003, which accepted the jurisdiction of the court as of September 19, 2002 175. The
Prosecutor has requested a Pre-Trial Chamber to authorize him to open a proprio
motu investigation in the case of the Republic of Cote d‟Ivoire.
Uganda
The government of Uganda referred “the situation concerning the Lord‟s

Resistance Army” (LRA) to the ICC in 2003176. In October 2005, the ICC unsealed
arrest warrants - the first issued by the Court - for LRA leader Joseph Kony and
commanders Vincent Otti, Okot Odhiambo, Dominic Ongwen, and Raska
Lukwiya.The Prosecutor accused the LRA of establishing “a pattern of brutalization
of civilians”, including murder, forced abduction, sexual enslavement, and mutilation,
amounting to crime against humanity and war crimes177. Although none of the
175
ICC Office of the Prosecutor Weekly Briefing, 15-21 February 2011, Issue # 75.
176
The Lord‟s Resistance Army (LRA) is a rebel group that has fought for over two decades in
Northern Uganda. CRS Report RL33701, Uganda. Current Conditions and the Crisis in North
Uganda, by Ted Dagne.
177
ICC Press Release, “Warrant of Arrest Unsealed Against Five LRACommanders”, October 14,
2005. Kony is wanted for 12 counts of crimes against humanity, including murder, enslavement,
sexual enslavement, rape, and “inhumane acts”, and 21 counts of war crimes, including murder,
cruel treatment of civilians, directing an attack against a civilian population, pillaging, including
rape, and the forced enlistment of children; the other LRA commanders are accused of crimes
against humanity and war crimes from 4 and 32 counts.
Page | 50
Court
suspects are in custody178. The Prosecutor is reportedly investigating actions by the
Ugandan military in Northern Uganda.
Democratic Republic of Congo (DRC)
In April 2004, the government of Democratic Republic of Congo (DRC),

referred to the Prosecutor “the situation of crimes within jurisdiction of the Court
allegedly committed anywhere in the territory of the DRC since the entry into force of
the Rome Statute, on 1 July 2002179. On 23 June, the Prosecutor decided to open an
investigation in the situation and on 4 July the case was allocated to Pre-Trial
Chamber I. The ICC has issued four arrest warrants in its first DRC investigation that
focuses on the eastern Congolese district of Ituri, where an inter-ethnic war erupted
in June 2003 with reported involvement by neighbouring governments180. Three
suspects are in custody, while a fourth remains at large. A second investigation
178
Lukwiya and Otti have reportedly been killed since the warrants were issued, while other LRA
commanders are thought to be in neighboring countries. Lukwiya was killed in fighting on 12
August 2006, see “Ugandan rebels mourn leader”, Business in Africa, 14 August 2006. Otti is said
to have been killed in 2007, apparently by Kony, BBC News (23 January 2008). Uganda‟s LRA
confirm Otti death. Accessed 24 January 2008. The Government of Uganda is currently in peace
talks with the LRA. The LRA‟s leaders have repeatedly demanded immunity from ICC prosecution
in return for an end to the insurgency, Associated Press, 30 May 2007. Human Rights Watch:
Ugandan rebels must face justice, even if not before international court. Accessed 24 January 2008.
The Government of Uganda says it is considering establishing a national tribunal that meet
international standards, thereby allowing the ICC warrants to be set aside. AgenceFrence - Presse,
23 January 2008. Uganda‟s mutooput ritual: forgiveness for brutal 20-year war. Accessed 24
January 2008.
179
ICC Office of the Prosecutor Press Release, “Prosecutor Receives Referral of the Situation in the
Democratic Republic of Cong”, April 19, 2004. On 23 June 2004, the Office of the Prosecutor of
the ICC opens its first investigation. Despite the end of a five-year civil war in 2003 and the holding
of national elections in 2006, DRC continues to suffer from armed conflict, particularly in the
volatile eastern regions bordering Rwanda, Uganda and Burundi.
180
Ituxi‟s armed groups did not participate in the peace process between DRC‟smajor rebel
movements that brought the country‟s nationwide civil war to an end in 2003. While UN
peacekeepers and DRC government troops have succeeded in staunching much of the violence in
Ituri, many of the groups have not disarmed, and the area is still considered unstable. It is estimated
that by the time a peace agreement signed in Sun City, South Africa officially ended the second war
in December 2002, three million Congolese had lost their lives as a direct or indirect result of the
conflict.International Rescue Committee, “Mortality in the Democratic Republic of Congo: An
ongoing Crisis”, 2007, P.ii, available at: <http://www.theire.org/sites/default/files/resource-
file/2006-7congo MortalitySurvey.pdf> Conflict and atrocities continue to the present day,
especially in eastern Congo, where endemic sexual and gender-based violence is one symptom of
continued impunity. Among them, in July and August 2010 militants attacked villages in eastern
Congo, raping hundreds of men, women and children. See “DR Congo rebel leader arrested over
mass rapes”, BBC News, October 6, 2010, available at <http://www.bbc.co.uk/news/world-africa-
11480809>.
Page | 51
Court
focuses on sexual crimes and other abuses committed in the eastern provinces of
North and South Kivu.
On 17 March 2006, Thomas Lubanga Dyilo, the alleged founder and leader of
the Union of Congolese Patriots (UPC) militia in Ituri, became the first person to be
arrested under a warrant issued by the court and faced trial at the ICC 181 . The ICC has
charged Lubanga with three counts of war crimes relating to the recruitment and use
of child soldiers182. On 14 March 2012, the ICC Appeal Chamber has confirmed the
charges against Lubanga183. The Prosecutor has stated that his trial will only be on the
allegation of using child soldiers, and other allegations will be followed up in a
subsequent prosecution184.
Germain Katanga, the alleged commander of the Ngiti - majority Front for
Patriotic Resistance of Ituri (FPRI) and Mathieu Ngudjolo Chui, former leader of the
181
A sealed (secret) arrest warrant had been issued for his arrest on 10 February 2006. At that time,
Lubanga was reportedly arrested by Congolese authorities after the killing of nine UN peacekeepers
in Ituri in February 2005. He and other Ituri militia members had been charged with genocide, war
crimes, and crimes against humanity, but had not been brought to trial when the ICC warrant was
issued. Human Rights Watch, “D.R. Congo: ICC Arrest First Step to Justice”, 17 March 2006.
Lubanga was transferred to ICC custody in March 2006.
182
ICC, The Prosecutor vs. Thomas LubangaDyilo, Document Containing the Charges, Article 61(3)
(a) (Public Redacted Version), August 28,2006.
183
Lubanga‟s trial was due to begin on 23 June 2008, but on 13 June 2008 theICC Trial Chamber
ordered a stay of proceedings due to a failure by the Prosecutor to comply with the Trial Chamber‟s
orders requiring the Prosecutor to disclose potentially exculpatory information. The Prosecutor had
obtained the evidence from the UN and other sources on condition of confidentiality. The judges
ruled that the Prosecutor had incorrectly applied the relevant provision of the Rome Statute and, as
a consequence, “the trial process had been ruptured to such a degree that it is now impossible to
piece together the constituent elements of a fair trial”. International Criminal Court, 13 June 2008.
Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)
(e) agreements and the application to stay the prosecution of the accused, together with certain other
issues raised at the Status Conference on 10 June 2008, available at < http://www.icc-
cip.int/library/cases/ICC-01 -04-01-06-1401 -ENG.pdf>PDF (2.11MB).Eventually, the permission
was obtained and the materials were disclosed. In November 2008, the judges ruled that the
Prosecutor has taken the necessary steps to ensure Lubanga‟s fair trial rights were respected,
allowing the trial to proceed. A second stay of proceedings was ordered on 8 July 2010 due to a
failure by the Prosecutor to comply with the Trial Chamber‟s order requiring the Prosecutor to
disclose the identity of an „intermediary‟, who had helped prosecution investigators contract
witnesses. The Trial Chamber ordered Lubanga to be released. The Prosecutor appealed the
decision and the order for release was granted suspensive effect. On 8 October 2010, the ICC
Appeals Chamber reversed the Trials Chamber‟s decision to stay proceedings and to release the
accused.
184
The ICC Prosecutor says Congolese warlord may face additional war crimes charges, First Global
Select, 7 August 2006.
Page | 52
Court
National Integrationist Front (NIF), are being prosecuted as co-perpetrators for
allegedly having “acted in concert to amount an attack targeted mainly at
Hemacivilians” in Ituri in 2003185. The ICC issue sealed arrest warrants for Katanga
and Ngudjolo in July 2007, and they were transferred by Congolese authorities to ICC
custody in October 2007 and February 2008 respectively. The Prosecutor has charged
them jointly of four counts of crimes against humanity and nine counts of war crimes
related to murder, “inhumane acts”, sexual crimes, and the use of child soldiers, rape
and other abuses. In November 2009, the joint trial of Katanga and Ngudjolo opened.
The ICC issued a fourth sealed warrant for the arrest of Bosco Ntaganda, the
alleged former deputy military commander in Lubanga‟s military wing, the Patriotic
Forces for the Liberation of Congo (FPLC) militia, in August 2006. The warrant was
unsealed in April 2008, albeit Ntaganda remains at large186.
Besides, the ICC issued a sealed warrant for the arrest of Callixte
Mbarushimana, a Rwandan national and the alleged political leader in exile of the
Democratic Forces for the Liberation of Rwanda (DFLR) militia, on September 28,
2010. The warrant cites “reasonable grounds” to believe Mburushimana is criminally
responsible for six counts of war crimes and five counts of crimes against
humanity187. On 12 October, Mbarushimana was arrested in France where he was
185
ICC Combined Factsheet: Situation in the Democratic Republic of the Congo, Germain Katanga
and Mathieu Ngudjolo Chui, June 27, 2008. Their cases were joined in March 2008. On 24
February 2003, they attacked on the village of Bongoro in which at least 200 civilians were killed,
survivors were imprisoned in a room filled with corpses, and women and girls were sexually
enslaved, id.
186
BoscoNtaganda is charged with three counts of war crimes related to the recruitment and use of
child soldiers in 2002 and 2003, ICC Pre-Trial Chamber, The Prosecutor v. BoscoNtaganda has
reportedly been named by former child soldiers testifying before the ICC in the trial of Thomas
Lubanga.
187
The FLR is based in the conflict-ridden Kivu provinces of eastern DRC but primarily led by
Rwandan Hutu extremists, including individuals who fled to DRC during the aftermath of the 1994
Rwandan genocide as well as members of the diaspora. Rwandan survivors have alleged that
Mbarushimana took part in the 1994 genocide, though he is reportedly not on the list of high-level
suspects sought by the ICTR, AFP, “FDLR Chief Mbarushimana Took Part in Genocide:
Survivors”, October 13, 2010. The Prosecutor‟s case againstMbarushimana alleges that he
commanded FDLR attacks against civilians in the Kivus, including murder, torture, rape and the
destruction of property.
Page | 53
Court
living as a political refugee. After a French court verdict on 3 November 2010, he was
transferred to the ICC custody on 25 January 2011.
Central African Republic (CAR)
With regard to the Central African Republic (CAR), the CAR government
referred “the situation of crimes within the jurisdiction of the Court committed
anywhere on (CAR) territory” to the ICC in January 2005 188. In May 2008, the ICC
issued a sealed arrest warrant for Jean - Pierre Bemba Gombo, a former DRC rebel
leader turned politician. The warrant alleged that as commander of the Movement for
the Liberation of Congo (MLC), one of the two main DRC rebel group during that
country‟s civil war (1998-2003), Bemba had overseen systematic attacks on civilians
in CAR territory between October 2002 and March 2003. Bemba‟s MLC, based in the
DRC‟s north, allegedly committed these abuses after it was invited into CAR by the
then President Ange - Felix Patasse to help quell a rebellion 189. Bemba was arrested in
Belgium in May 2008 and turned over to the ICC in July 2008. In June 2009, a panel
of ICC judges confirmed three charges of war crimes and two charges of crimes
against humanity for alleged rape, murder and pillaging190. The charges hinge on the
question of command responsibility: the Prosecutor contends that Bemba personally
managed the MLC, stayed in constant contact with combatants and was well informed
about the group‟s activities in CAR191.
Kenya
On 31 March 2010, a Pre-Trial Chamber of the ICC authorized the Prosecutor
to investigate the 2007-2008 Kenyan crises. It was the first time the Prosecutor had
188
ICC Office of the “Prosecutor Press Release, “Prosecutor Receives Referral Concerning Central
African Republic”, 7 January 2005.
189
The rebellion, led by Francois Bozize, was successful and Bozize took control of CAR in 2003.
Bozize‟s government then initiated the ICC referral.
190
ICC Pre-Trial Chamber-II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the
Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, June 15, 2009. However, judges
declined to confirm the Prosecutor‟s charges in connection with one additional counts of crimes
against humanity- torture, and two additional counts of war crimes - torture, “outrage upon personal
dignity”. Bemba‟s trial opened on 22 November, 2010.
191
Eric Witte, “Command Responsibility and the Trial of Jean-Pierre Bemba”, Bemba Trial Website,
November 23,2010.
Page | 54
Court
requested such an authorization. On 15 December 2010, the Prosecutor presented two
cases, against a total of six individuals, for alleged crimes against humanity 192. The
Prosecutor applied for summonses to appear for six alleged perpetrators rather than
arrest warrants. The Prosecutor contends that high-ranking officials planned and
instigated large-scale abuses, a view supported by independent investigations into the
violence193. On 8 March 2011, the Pre-Trial Chamber issued summonses for all six
alleged perpetrators to appear before the court on 7 and 8 April 2011 respectively.
Sudan
Since early 2003, the western Sudanese province of Darfur, witnessing

widespread atrocities committed by the Sudanese government and its Janjaweed
militias under the guise of counter - insurgency operations against two rebel groups,
the Sudan Liberation Army (SLA) and the Justice and Equality Movement (JEM).
Thousands of civilians have been massacred, raped, or held in inhumane conditions.
More than two million people were forcibly displaced from their homes and hundreds
of villages were destroyed and others live as refugees neighbouring Chad 194. On 18
September 2004, the UN Security Council appointed an International Commission of
Inquiry on Darfur in order to investigate reports of violations on IHL and human
rights law in Darfur.
The Commission found that it would be inadvisable for the situation in Darfur
to be handled by an ad hoc tribunal or a mixed tribunal. The situation in Darfur
should be referred to the ICC by the Security Council based on Article 13(b) of the
192
In the first case, William Ruto, Henry KipronoKosgey and Joshua Arap Sang are to stand trial for
crimes against PNU supporters, whereas, in the second case, Francis Muthaura, UhuruMuigai
Kenyatta and Mohamed Hussein Ali are to stand trial for crimes against ODM supporters, ICC
press release on the Prosecutor‟s announcement regarding his application for summonses to appear.
Retrieved 3 March 2011.
193
For instance, the state-funded Kenya National Commission on Human Rights has alleged that
senior government ministers were perpetrators of violence, including Higher Education Minister
William Ruto and Finance Minister Uhuru Kenyatta. Both have denied the allegations and Ruto
accused the Commission of bribing witnesses. See Reuters, “Kenyan Ex-Minister Says Meeting
with ICC a Success”, November 8,2010.
194
Report of the Secretary-General on Sudan pursuant to paragraphs-6, 13 and 16 of Security Council
resolution 1556 (2004), paragraph 15 of Security Council resolution 1564 (2004) and paragraph 17
of Security Council resolution 1574 (2004), UN Doc.S/2005/68,4 February 2005, para.3.
Page | 55
Court
ICC Statute, because “the Sudanese judicial system is incapable and the Sudanese
government is unwilling to try the crimes that occurred in the Darfur region and to
require the perpetrators to assume the accountability for their crimes”195.
The UN Security Council, acting under Chapter VII of the UN Charter

adopted Resolution 1593 on 31 March 2005, in which it referred the situation in
Darfur since 1 July 2002 to the ICC Prosecutor196. On 6 June 2005, the Prosecutor
opened an investigation into the situation.
In May 2007, the ICC publicly issued arrest warrants for former Interior
Minister Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman (Ali
Khushayb), an alleged former Janjwaweed leader in Darfur197. They were each
accused of over 40 counts of war crimes and crimes against humanity in connection
with abuses allegedly committed in Darfur in 2003 and 2004. The Sudanese
government refused to comply with either warrant.
On 17 May 2009, ICC Pre-Trial Chamber issued a summons to one of the

three suspects, Bahar I driss Abu Garda, to appear before the court. It was the first
time that a suspect appeared voluntarily before the court. He was commander of the
United Resistance Front, a Darfur rebel group, and he was accused of responsibility
for the attack on the African Union‟s peace mission in Haskanita (north Darfur) on 29
September 2007. Abu Garda denies the charge. On 8 February 2010, the ICC Pre-
Trial Chamber-I ruled that there was insufficient evidence to proceed to trial on
charges against Abu Garda198.
195
The Commission of Inquiry‟s report stated that the ICC is the single best mechanism and the only
credible way ensuring effective justice for the victims in Darfur. See “Report of the International
Commission of Inquiry on Darfur to the United Nations Secretary-General”, 25 January 2005, at
<http://www.un.org/News/dh/sudan/com-inq-darfur.pdf.>
196
Security Council Resolution 1593 of 31 March 2005, para-2.
197
ICC Press Release, “Warrants of Arrest for the Minister of State for Humanitarian Affairs of Sudan,
and a Leader of the Militia/Janjaweed”, May 2, 2007. The Sudanese government has denied having
control over the Janjaweed, a term for ethnic Arab militias accuse of perpetrating human rights
abuses in Darfur. However, consensus exists among human rights researchers, journalists and
others who have visited Darfur that the Janjaweed have received arms and support from the
government.
198
International Criminal Court, 8 February 2010. “Pre-Trial Chamber I Declines To Confirm the
Charges Against BaharIdriss Abu Garda”.
Page | 56
Court
On 16 June 2010, the two remaining rebel commanders sought by the
Prosecutor, Abdullah Banda Abakaer Nourainand Saleh Mohammed Jerbo Jamus,
voluntarily surrendered to the court. Banda, a former military commander in the rebel
Justice and Equality Movement (JEM) and Jerbo, a former leader in the Sudan
Liberation Movement (SLM) - Unity faction, each faces accusation of three counts of
war crimes. On 7 March 2011, Pre-Trial Chamber-I confirmed the charges against the
two and committed them to trial199.
On 14 July 2008, the Prosecutor accused Sudanese President Omar al – Bashir

of genocide, crimes against humanity and war crimes. The court issued an arrest
warrant for Bashir on 4 March 2009 and holds that there are “reasonable grounds” to
believe Bashir is criminally responsible for five counts of crimes against humanity
and two counts of war crimes, referring to alleged attacks by Sudanese security forces
and pro-government militia in the Darfur region of Sudan during the government‟s
six-year counter - insurgency campaign. The court ruled that there was insufficient
evidence to prosecute him for genocide. Al - Bashir was the first sitting head of State
indicated by the ICC.
The ICC warrant states that there are reasonable grounds to believe attacks
against civilians in Darfur were a “core component” of Sudanese government‟s
military strategy, that such attacks were widespread and systematic, and that Bashir
acted “as an indirect perpetrator, or as an indirect co-perpetrator”200. The ICC
Prosecutor affirmed that while Bashir did not “physically or directly” carry out
abuses, “he committed these crimes through members of the state apparatus, the army,
and the Militia/Janjaweed” as president and commander-in-chief of the Sudanese
armed forces201. The Prosecutor appealed, on 12 July 2010, ICC judges issued a
199
Decision on the confirmation of charges against Banda and Jerbo. Retrieved 18 March 2011.
200
ICC Pre-Trial Chamber-I, Warrant of Arrest for Omar Hassan Ahmad Ali Bashir, March,2009.
201
International Criminal Court (14 July 2008). “ICC Prosecutor Presents Case Against Sudanese
President, Hassan Ahmad A1 Bashir, for Genocide, Crimes Against Humanity and War Crimes in
Darfur”. Retrieved 14 July 2008.
Page | 57
Court
second warrant for Bashir for counts of genocide against three ethnic groups in
Darfur202.
A1 - Bashir denies all the charges, and Sudanese government officials have
rejected the ICC‟s jurisdiction. The ICC urged “all States, whether party or not to the
Rome Statute, as well as international and regional organizations”, to “cooperate
fully” with the warrant203. In July 2009, African Union (AU) resolved not to
cooperate with the ICC in carrying out Bashir‟s arrest. On 27 July 2010, African
heads of state participating in AU summit in Uganda approved a resolution
condemning the ICC warrant for Sudanese President Omar Hassan al - Bashir, calling
on AU member states to refrain from arresting the Sudanese president and rejecting
the ICC‟s request to open a liaison office at the AU headquarters in Addis Ababa,
Ethiopia. Albeit the government of Botswana, a party to the ICC, has rejected the AU
stance towards the Bashir and reports suggests wavering positions by the governments
of Uganda and South Africa204.
Despite, the warrants appear to have had some impact on Bashir‟s

international movements, and reports in December 2010 suggested that he chose not
to attend independence celebrations in the Central African Republic and an 80 -
country Africa-Europe summit meeting in Libya due to diplomatic pressures205.
Libya
As a consequence of the 2011 Libyan uprising and its brutal suppression, the
UN Security Council voted on 26 February 2011 in Resolution 1970 unanimously to
202
ICC, “Pre-Trial Chamber-I Issues a Second Warrant of Arrest Against Omar Ali Bashir for Counts
of Genocide”, July 12,2010.
203
ICC press release, “ICC Issues a Warrant of Arrest for Omar A1 Bashir, President of Sudan”,
March 4,2009.
204
AFP, “Botswana Says Al-Bashir Must Stand Trial at ICC”, 6 July 2009; Reuters, “Uganda Says
Sudan‟s Bashir to Send Deputy over ICC”, July 16, 2009; AFP, “S Africa Will Arrest Bashir If He
Visits: Foreign Ministry”, July 30,2009.
205
Congressional Research Service, International Criminal Court in Africa: Status and Policy Issues, at
<http://www.crs.gov>
Page | 58
Court
refer the situation in Libya to the ICC206. The second time that the Security Council
has referred a situation to the ICC was on 3 March, just five days after the referral of
the situation, the Prosecutor opened an investigation. On 16 May 2011, the Prosecutor
requested a Pre-Trial Chamber of the ICC to issue warrants of arrest against
Muammar Gaddafi, his son Saifal-Islam Gaddafi and the head of Libya‟s intelligence,
Abdullah Senussi, for allegedly committed crimes against humanity. On 27 June
2011, the ICC issued an arrest warrant for Gaddafi, alleging that Gaddafi had been
personally involved in planning and implementing “a policy of wide spread and
systematic attacks against civilians and demonstrators and dissidents”207. He was
killed on October 20,2011, by new regime forces in his home - town Sitre.
Cote d’Ivoire
On 19 May 2011, the Prosecutor informed that the Presidency of the ICC
about his intention to request the authorisation to open a formal investigation in the
situation of Cote d‟Ivoire (Ivory Coast) since 28 November 2010208. A day later, the
Presidency issued an order assigning the situation to Pre-Trial Chamber-II209.
Since Ivory Coast is not a state party to the Rome Statute, it has repeatedly and
by different administrations accepted the ICC‟s jurisdiction 210. The authorisation by
the Pre-Trial Chamber is necessary to open a formal investigation because the
situation has neither been referred to the Prosecutor by a state party nor by the UN
Security Council.
Furthermore, recently the government of Mali has referred the situation in the
country to the ICC Prosecutor. As Mali is a state party to the Rome Statute, the
206
Staff writer, 27 February 2011. “UN Slaps Sanctions on Libyan Regime - Security Council
Unanimously Orders Travel and Assets Ban on Libyan Leader Muammar Gaddafi and His Inner
Circle”. Aljazeera English. Retrieved 9 March 2011.
207
Competition Refresher, December 2011, P.15.
208
“Prosecutor‟s letter to the Presidency”. ICC, available at <http://www.icc-
cpi.int/iccdocs/docl077491.pdf>. Retrieved 22 May 2011.
209
“Decision Assigning the Situation in the Republic of Cote d‟Ivoire to Pre-Trial Chamber-II”, ICC,
at ibid.
210
“Declaration Accepting the Jurisdiction of the International Criminal Court”,at <http://www.icc-
cpi.int/NR/rdonlyres/FBD2D966-93CF-4A86-B59046293E819A65/279844/ICDEENG5.pdf>
Page | 59
Court
Prosecutor can be now directly open a formal investigation once she has concluded
the preliminary examination.
In addition to the six situations where the Prosecutor has opened formal
investigations, several other situations have been subjected to preliminary
examination, including Afghanistan, Colombia, Guinea, Georgia, Honduras,
Nigeria,Palestine, the Republic of Korea, Iraq and Venezuela211. The OTP dropped
the cases on the grounds of either the lack of reasonable basis or lack of gravity as
required by the threshold of the ICC.
2.11 Possible Effects of the ICC’s Jurisdiction on Third States
Treaties are binding in principle only on state parties. As an international

treaty, the Rome Statute binds the contracting states only. The sovereign equality of
states excludes any automatic effect of treaties on third states which remain for them
res inter alio sacta. Only state parties are obligated to co-operate. It corresponds to
the general principles of treaty law. Article 35 of the Vienna Convention on the Law
of Treaties212, clearly states that “An obligation arises for a third state from a
provision of a treaty if the parties to the treaty intend the provision to be the means of
establishing the obligation and the third state expressly accepts that obligation in
writing”. Article 34 of the said convention also clearly provides that “a treaty does not
create either obligations or rights for a third state without its consent”. It is also one of
the general principles of treaty law.
The general rule international criminal law is supported and International Law
Commission has observed, by “almost universal agreement” 213. The rule has been
reiterated by the Permanent Court of International Justice214 and the International
211
As of end of September 2010, the Office of the Prosecutor had received 8,874 communications
about alleged crimes. After initial review, 4,002 of these communications were dismissed as
“manifestly outside the jurisdiction of thecourt”, available at
<http://en.wikipedia.org/wilki/Intemational-Crimiiial Court-investigation.>
212
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UN.T.S. PP.331,341.
213
Reports of the Commission to the General Assembly, UN Doc. A/6309/Rev. 1 (1996).
214
In the case concerning Certain German Interests in Polish Upper Silesia, the Permanent Court of
International Justice (PCIJ) stated that “[a] treaty only creates law as between the states which are
Page | 60
Court
Court of Justice215. Although, the pactatertiis principle does not mean that treaties
may not have certain indirect effects on non-state parties. Practice suggests that
multilateral treaty arrangements often create legal and political realities that could in
one way or another affect political and legal interest of third states and impose certain
constraints on the behaviour of non-parties. Such constrains may result not from
imposition of legal obligations upon third states, rather from the fact that a large
portion of the international community adopts a decision to deal with contemporary
problems of community concern by creating appropriate institutions or procedures in
conformity with international law216.
The Rome Statute is a special treaty because it is a constituent instrument of a

new international organization. It has established a powerful permanent institution
that exercises jurisdiction over nationals of numerous countries for the most serious
crimes of international concern. The general rule that only parties are bound by the
treaty also applies to the constituent instruments of international organizations.
Despite of it, the creation of international organizations always affects even non
member states, which find it difficult to ignore the ICC.
According to Article 12 of the Rome Statute, the ICC may exercise its
jurisdiction with respect to the crimes listed in the corpadelicti over nationals of a
non-party state or over crimes committed on the territory of a non-party even in the
absence of that state‟s consent. It provoked a lot of controversy and three major states
of the international community, the USA, India and China rejected the statute on the
parties to it...” German Interests in Polish Upper Silesia, Germany v. Polish Republic, 1926 P.C.I.J.
(Ser. A) No.7 (25 May), P.29. Cf. Nationality Decrees Issued in Tunis and Morocco, 1923 P.C.I.J.
(Ser. B), No.5 (September 10), PP. 19-22; Free Zones of Upper Savoy and the District of Gex, 1932
P.C.I.J. (Ser. A/B), No.46 (June 7), P.141.
215
Ariel Incident of July 27th, 1955 (Israel v. Bulg., U.K. v. Bulg), ICJ (March 17), PP.127, 138;
North Sea Continental Shelf Cases (F.R.G. v. Dn., F.R.G. v. Neth.), 1969 I.C.J. (February 20), PP.3,
25-27, 41; Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. (December 22), PP.554, 557-578.
216
AND THIRD STATES”, in Michigan Journal of International Law, Vol.21, No.3, Spring 2000,
P.448.
Page | 61
Court
very day of its adoption on the ground of the inconsistency of Article 12 of the ICC
Statute with Article 34 of the Vienna Convention on the Law of Treaties217.
Article 12 does not impose obligations upon non-state parties. Rather, it

establishes preconditions to the exercise of jurisdiction that must be satisfied when the
ICC‟s jurisdiction has been triggered either by the Prosecutor pursuant to such
provisions. In contrast, state parties assume various obligations relating to the arrest
and surrender of individuals indicated by the Prosecutor 218. While Article 12 has
potential implications for nationals of non-state parties, it does not impose
corresponding obligations upon such states. The fact that the Rome Statute potentially
enables the ICC to assert jurisdiction over nationals of non-states parties does not in
itself breach any principle of treaty law219.
In the Rome Statute, the provisions on the obligation to co-operate differ for
state parties and non-party states. Article 86 of the Statute is a general provision
concerning the state co-operation and judicial assistance. The article requires, the
“State Parties shall, in accordance with the provisions of this Statute, co-operate fully
with the Court in its investigation and prosecution of crimes within the jurisdiction of
the Court”. Article 87(5) is a provision on co-operation by non-party states with the
ICC. It stipulates that the court “may invite any State not party to the Statute to
217
The US took the position that the “provision imposes obligations not only the States parties but also
in its current draft seeks to do so on non-party states. It allows the court to exercise jurisdiction
over the nationals and officials acts of non-party States”. Quoted in Nirmal, supra note 38, P.117-
118. Speaking about Article 12 the Head of the Indian delegation observed: “On the penultimate
day of the conference, the jurists resurrected and forced into the Statute the concept of universal or
inherent jurisdiction, which too makes a mockery of the distinction between States parties and those
whochoose not to be bound by a treaty....Before it tries its first criminal, the ICC would have
claimed a victim of its own”, id.' These states wished the jurisdiction of the ICC to be based on the
consent of the state of nationality of the accused or of the territorial state as the case may be. The
Chinese representative, for instance, expressed: „The court can exercise its jurisdiction only with
the consent of the countries and should refrain from exercising such jurisdiction when a case is
already being investigated, prosecuted or tried by a relevant country‟. Ibid, fn. 10.
218
Article 89(1), Rome Statute.
219
Diane F. Orentlicher, „Politics by Other Means: The Law of the International Criminal Court‟, in
Cornell International Law Journal, Vol.32,1999, PP. 489-497, at P.490. It is well established that,
once a group of states has created in international organisation through a multilateral treaty, that
organisation possesses an objective legal personality even vis-a-vis states that are not parties to its
constituent treaty. See Reparation for Injuries Suffered in the Service of the United States, Advisory
Opinion of the I.C.J., 11 April 1949, paras-174, 179. This principle is equally relevant to an
international court established by multilateral treaty.
Page | 62
Court
provide assistance under this part on the basis of an ad hoc agreement, an argument
with such State or any other appropriate basis”.
Considering the general principles of treaty law (Articles 34 and 35 of the

Vienna Convention on the Law of Treaties), the Rome Statute makes different
provisions for state parties and for non-party states on the issue of state
cooperation.To state parties the ICC “is entitled” to present” co-operation request”
and they are obliged to “co-operate fully” with it in ICC investigations and
prosecutions of crimes. In contrast, for non-party states, the ICC only “may invite”
them to “provide assistance” on the basis of an ad hoc arrangement. The word
“invite” shows that cooperation by non-party states with the ICC is in the legal
category of cooperation of a “voluntary nature” alone.
Despite the general principles of international treaty law, cooperation with the
ICC in particular by non-party states, if analysed in terms of the authority of the UN
Security Council, the jurisdiction of the ICC or the general principles of international
law, be an obligation of a mandatory nature in certain specific cases 220. Since the
states, whether party to the Rome Statute or not, are all essentially members of UN
agencies, when the UN Security Council refers a case to the ICC for investigation and
prosecution, it involves the UN member states. Consequently, the UN Security
Council can, when it refers to the ICC a criminal case related to the maintenance of
world peace; ask all UN member states to cooperate in the Court‟s process of
investigating that case. Owing to the nature of the UN Security Council, such requests
are binding upon all UN member states. The authority already exercises shows the
influential role of the UN Security Council in the ICC and of its requests for
cooperation with the court.
It is evident from the fact that, in view of the war crimes and crimes against
humanity that had occurred in the Darfur region of Sudan, the International
220
Zhu Wenqi, „On cooperation by states not party to the International Criminal Court‟, in
INTERNATIONAL REVIEW OF THE RED CROSS, Vol.88, Number 861, March 2006, PP. 110,
at PP.89-90.
Page | 63
Court
Commission of Inquiry submitted a report to the UN Secretary - General and
recommended that the Security Council refer the situation in Darfur to the ICC,
because “the Sudanese judicial system is incapable and the Sudanese government is
unwilling to try the crimes that occurred in the Darfur region and to require the
perpetrators to assume the accountability for their crimes”221 .
Pursuing the report the UN Security Council, acting under Chapter-VII of the
UN Charter, adopted Resolution 1593 on 31 March 2005 in which it decided to “refer
the situation in Darfur since 1 July 2002 to the ICC Prosecutor” 222. The Security
Council decided,
“that the Government of Sudan and all other parties to the conflict in
Darfur shall co-operate fully with and provide any necessary assistance
to the Court and the Prosecutor pursuant to this resolution and, while
recognizing that States not party to the Rome Statute have no obligation
under the Statute, urges all States and concerned regional and other
international organizations to co-operate fully”223.
Although Sudan is not a party to the ICC, it must as a UN member state abide
by the provisions of the UN Charter and obey the Security Council resolution by
cooperating with the court. The statement in Resolution 1593 “that Government of
Sudan and all other parties to the conflict in Darfur shall co-operate fully with and
provide any necessary assistance to the Court and the Prosecutor pursuant to this
resolution” clearly shows that all non-party states, including Sudan, must co-operate
with and assist the ICC accordingly.
The rights and obligations of non-party states are related to the UN Security
Council and to its treaty mechanisms. Albeit, in accordance with the principle of
“complementary jurisdiction” any state concerned may challenge the ICC‟s
221
“Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-
General”, 25 January 2005, at <http://www.un.org/News/dh/sudan/com-inq-darfur.pdf->
222
Security Council Resolution 1593 of 31 March 2005, para.2.
223
Id.
Page | 64
Court
jurisdiction. In such a situation, where Sudan opposes the investigation and
prosecution by the ICC and can prove that it is genuinely willing and able to exercise
jurisdiction in accordance with that principle, the ICC will not have jurisdiction.
In addition, the ICC may exercise jurisdiction over a national of a non-party

state if the territorial state has given its consent to the jurisdiction of the court. In the
US view the arrangement is inconsistent with treaty practice for it reduces the need
for ratification of the treaty by national government by providing the court with
jurisdiction over the nationals of a non-party state224. Whilst the ICC exercises its
jurisdiction over a national of a non-party that state is not under any obligation to
hand over the accused or provide any piece of evidence. Since war crimes, genocide,
crimes against humanity or crime of aggression entail individual criminal
responsibility, the court while exercising its jurisdiction over a national of a non-party
with respect to any of such crimes will in fact only enforce individual criminal
responsibility for international crimes225.
It seems that the ICC might not find it easy in practice to obtain the
cooperation of non-party states and also state parties in certain cases. Whereas many
indictments issued by the ICTY were executed by NATO troops and UN
peacekeeping forces in the territory of the former Yugoslavia, there are no such armed
forces available in countries such as Uganda, Congo, Kenya or Sudan. While an arrest
warrant is issued by the ICC in response to a request by the Prosecutor pursuant to
Article 58 of the Rome Statute, which is eventually delayed or not executed because
of lack of cooperation by the states concerned, the authority of the court will
definitely be damaged.
The ICC Statute stipulates that the Assembly of States Parties shall discuss
and deal with, pursuant to Article 87, paragraphs 5 and 7, “any question relating
224
David J. Scheffer, “The United States and the International Criminal Court”, AJIL,Vol.93, 1999,
PP. 12-18.
225
NIRMAL, JURISDICTION, supra note 38, P. 122.
Page | 65
Court
tonon-co-operation” between states and the ICC226 . The provision mainly gives the
ICC the authority to refer circumstances of non-co-operation by states of the
Assembly of States Parties. Whereas non-co-operation concerns situations that have
been referred by the Security Council to the ICC, the court may refer the matter to the
Security Council.
State not party to the ICC are obliged to co-operate with it not only with
respect to the referrals by the UN Security Council, it also under the provisions in the
Geneva Conventions whereby states must “respect and ensure respect” for
International Humanitarian Law (IHL).
The crimes under ICC jurisdiction fall into the category of the most serious
international crimes, including war crimes. As stated in Article 8 of the ICC Statute,
“war crimes” means grave breaches of the Geneva Conventions of August 12, 1949”.
There is a close link, in terms of war crimes, between the Rome Statute and the 1949
Geneva Conventions.
Almost all the states (191 states) of the world have ratified or acceded to the
1949 Geneva Conventions, which have indisputably become a part of customary
international law. Article 1 common to the Conventions and the corresponding Article
1 in Protocol I lay down the obligation to respect and ensure respect for IHL: “The
High Contracting Parties undertake to respect and to ensure respect for the present
Convention [Protocol] in all circumstances”. According to the provision, the
contracting states must respect and also ensure respect for, the Geneva Convention
and Protocol I.
Since the special nature of the IHL legal system, this has no commitment that
takes effect on the basis of reciprocal relations. Whereas the reciprocity clauses in
international law are binding upon every state party only when their obligations are
observed by the other state parties, the absolute nature of IHL standards means that
they are obligations to be assumed by the entire international community, and every
226
Article 112.2(f), Rome Statute.
Page | 66
Court
member of the international community is entitled to demand that such rules be
respected227.
Since one of the objectives establishing the ICC is to pursue serious violations
of the 1949 Geneva Conventions. States not party to the ICC which party to the
Geneva Conventions are obliged to “ensure respect” “in all circumstances”, it
includes the extended obligation to co-operate with the ICC. In any event, the
obligation to co-operate could be understand as requiring non-party states at least to
make an effort not to block actions taken by the ICC to punish or prevent serious
violations of the Geneva Conventions.
To counter the war crimes and crimes against humanity that occurred in the
Darfur region of Sudan, the UN Security Council has adopted Resolution 1593 by a
vote of 11 in favour, none against, and four abstentions. The four states that abstains
included China and the United States are not party to the ICC. They are permanent
members of the UN Security Council with veto power. While they have their own
stance with regard to the ICC and the particular status of the war crimes and crimes
against humanity that have occurred in the Darfur, neither of them blocked the
adoption of the resolution to address the need for the ICC to prevent or punish the
crimes. It suggests that it was also a performance of their obligation to “ensure
respect” for the rules of IHL228.
The ICC represents a major step towards the better promotion and protection
of human rights, good governance and the rule of law through multilateral
cooperation and support. The Rome Statute envisages jurisdiction of the ICC over
core international crimes like genocide, war crimes, crimes against humanity and
aggression. All of the crimes falling under the ICC‟s jurisdiction are based on
customary international law offences229. The crimes are amenable to universal
227
Zhu Wenqi, supra note 220, P.93.
228
Ibid, P.94.
229
Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN
GAOR, 51st Sess., Supp. No.22, at para-16, UN Doc. A/51/22 (1996) (referencing the customary
international law status of the definitions of crimes in the Statute and noting that several delegations
Page | 67
Court
jurisdiction under customary international law. It suggests that what states parties can
do individually can also be done by the ICC with the consent of the territorial state or
the state of nationality of the accused. Under international law both the territorial state
and the state of the nationality of the accused have concurrent titles of jurisdiction
over the offender. It is for them to decide whether they want to try the accused or
leave another state to do so or to give jurisdiction to the ICC. The choice, which is
part of state‟s sovereign rights, does not create any obligation on the state of
nationality of the perpetrator or the territorial state, not party to the statute of the
court230.
The UN Security Council plays an important role by referring cases to the

ICC231. In such a situation, no permanent member of the Security Council can veto the
prosecution of its nationals and only a resolution adopted under Chapter-VII of the
UN Charter can defer the investigation or prosecution of the perpetrator for a period
of 12 months.
The Rome Statute has left sufficient space for the ICC to extend its
jurisdiction. The provision of Articles 121 and 123, according to which, after the
expiry of seven years from the entry into force of the Rome Statute, any state party
may propose amendments thereto, including amendment to the crimes enumerated in
Article 5. It lays down the legal basis for the extension of subject matter jurisdiction
of the ICC.
The passage of treaty norms into the body of general law depends on the
subsequent practice of States232. Where the subsequent practice supports innovations
argued that the Statute should codify customary international law but not create new substantive
law). To speed the drafting process, the negotiators decided that only those crimes having a
foundation customary international law would be listed in the statute. Otherwise, achieving
agreement on the list of offences would have substantially delayed negotiations.
230
Scheffer, supra note 224.
231
India criticizes the possibility of the misuse of the referral power of the Security Council or its
power to defer investigation or prosecution by the court that gives a special privilege to permanent
members of the Council, which may not be a party to the Statute, to refer a case involving a non-
party state to the court.
232
Quoted by G.M. Danilenko, supra note 216, P.489 and also see fn. 185 ibid, P.488.
Page | 68
Court
in the field of substantive criminal law, the Rome Statute will make an important
contribution to the emergence of new customary law, even though Article 10 states
that the relevant definitions of crimes cannot limit or prejudice in any way
“developing rules of international law for purposes other than this Statute”233.
The ICC, as a permanent judicial institution, will facilitate the uniform and
consistent application of international criminal law. By rendering judgments in
concrete cases and developing a consistent jurisprudence, the ICC may clarify and
even develop international criminal law. Albeit the Rome Statute does not accord the
ICC formal authority to develop substantive or procedural law 234, such an authority is
implicitly recognized by Article 21(1) and other provisions of Article 21. According
to Article 21(1), the ICC may “apply principles and rules of law as interpreted in its
previous decisions”. The ICC will apply not only the Rome Statute and Elements of
Crimes to be adopted by state parties235; it will also apply “the established principles
of the international law of armed conflict” and “general principles of law derived by
the Court from national laws of legal systems of the world”236. Such broad provisions
on applicable sources of law will provide ample opportunities for judicial creativity.
Since the ICC is located in the Netherlands, far from the states such as
Uganda, Congo and Sudan etc. in which the crimes occurred, the investigation and
evidence - gathering the ICC has to conduct requires cooperation from the local states
concerned, and the Prosecutor needs to work together with the local police
forces.Although the Security Council has already adopted Resolution 1593, the
Prosecutor and the ICC itself have faced with a very difficult situation in Sudan, as a
non-party state to the ICC, and the third states of the African Union (AU). The same
233
Danilenko, supra note 216, P.489.
234
Some states submitted proposals to include into the Rome Statute “a general mandatory clause
whereby the judges of the Court would elaborate the elements of the crimes... as well as the
principles of liability and defence that were not otherwise set out in the Statute”. Report of the
Preparatory Committee, supra note 227, para-183. These proposals were rejected because
conferring the quasi-legislative power upon the judges of the ICC was considered to contravene the
principle of legality.
235
Article 9, Rome Statute.
236
Article 21(l)(c), Ibid.
Page | 69
Court
problem has faced in case of Kenya even though Kenya is a state party. In addition,
the United Nations does not provide the assistance and support the court wishes to
have. Consequently, the continued support of the Security Council is also
indispensable. The way in which the ICC copes with the situation in Darfur will
unquestionably have a major influence on the future development of the court.
Co-operation is a particular and very practical issue. In view of the experience

of the ICTY in terms of co-operation, it seems that the ICC might not find it easy in
practice to obtain the co-operation of non-party states.
Page | 70

11 - Chapter 2

Uploaded by

Copyright:

Available Formats

11 - Chapter 2

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

11 - Chapter 2

Uploaded by

Copyright:

Available Formats

International Crimes

The founding document of the International Criminal Court is the Rome

The International Criminal Court is not a substitute for national courts.

CRIMES DEALT BY THE ICC

Means “acts committed with the intention of destroying, a national, racial or

These are stated in the Rome Statute.

2.1.2 CRIMES AGAINST HUMANITY

 Inhumane acts forced upon an individual or groups such as killing, transfer,

2.1.3 WAR CRIMES

These crimes are not of an „international character”. These crimes include

 Taking of hostages, cruel treatment, torture, murder or mutilation.

2.1.4 CRIME OF AGGRESSION

2.2 DOES THE ICC HAS JURISDICTION OVER THE CRIME OF

According to decision made by two-thirds majority of State Parties, after 1

The Rome Statute of the International Criminal Court is a gift of hope to

Prior to the ICC, although there were useful mechanisms of international

The jurisdiction of the ICTY is confined to crimes committed on the territory

2.3 NATURE OF THE ICC JURISDICTION

2.3.1 PRECONDITIONS TO THE EXERCISE OF JURISDICTION

The jurisdiction of the ICC is inherently and unavoidably related to national

According to Lauterpacht, almost every problem that concerns international

The Jurisdiction of the ICC is based on the principle of territorial criminal

Since it has already been established in international law that whenever a

“Since the ICC is complementary to national criminal jurisdiction, a

2.3.2 PRECONDITIONS TO THE EXERCISE OF JURISDICTION

The words „in whole or in part‟ in the definition indicates a quantitative

2.4.2 CRIMES AGAINST HUMANITY

Article 7 of the Rome Statute defines crimes against humanity 57 in considering

The chapeau of the Elements of Crimes states:

“Attack directed against a civilian population”...is understood to mean a

The provision has a footnote which states:

As a result, the policy of a state, consistent with Article 7, i.e., „widespread‟ or

First category of war crimes incorporates Grave breaches of the Geneva

The second category of war crimes also prohibits “conscripting or enlisting

i. Conscripting children under the age of 15 years into armed groups;

“[intentionally launching an attack with the knowledge that such attack

The third category of war crimes applies to “armed conflict not of an

2.4.4 CRIME OF AGGRESSION

The „crime of aggression‟ was included in the Rome Statute without

The Rome Conference of the Assembly of States Parties, held at Kampala

In December 2017, the Assembly of State Parties (ASP) unanimously passed

2.5 RATIONE TEMPORIS OR TEMPORAL JURISDICTION

The ICC‟s jurisdiction is prospective. It cannot exercise jurisdiction over

The problem lies in the issue of continuous crimes, such as enforced

2.6 RATIONE PERSONAE OR PERSONAL JURISDICTION

It is pertinent to mention that the application of ratione personae jurisdiction

Jurisdiction of the ICC is based on the principle of territorial criminal

Besides, at the time of ratification a few states have made declarations

Creating jurisdiction based on the nationality of the perpetrator is the least

The principle of jurisdiction on the basis of nationality as recognized in Article

The ICC will have jurisdiction when a heinous crime is committed by a

2.8 INVOKING THE JURISDICTION OF THE ICC: TRIGGER

a) A State Party may refer a situation to the Prosecutor (Articles 13(a),14).

A situation is the overall factual context in which it is believed that „a crime

2.8.1 REFERRAL OF A SITUATION BY A STATE PARTY

The state party requesting an investigation shall specify the relevant

According to Article 12(2)(a) and (b), when situation is referred to the

The state party referral is procedurally less complicated than Prosecutor -

2.8.2 REFERRAL BY THE SECURITY COUNCIL