Considerations on the ICC exercise of jurisdiction in the light of past International Criminal Law experience

Abstract: The present study is dedicated to a discussion on the efficiency of exercise of ICC jurisdiction, based on past international criminal law experience. While acknowledging the unprecedented significance of the establishment of a permanent international criminal court, it focuses on the numerous perceived shortcomings in the ICC statute system, likely to constitute major challenges in the court's efforts to exert jurisdiction over those crimes falling within its subject matter competence. Following an introductory chapter providing an overall sketch of the study methods and scope, the analysis starts with a contextualisation of the adoption of the ICC statute namely by briefly looking back at the steps leading to the adoption of the ICC statute. The creation of IMTs in Nuremberg and Tokyo in the aftermath of the Second World War, and of the ad hoc tribunals for the Former Yugoslavia and Rwanda following the conflicts in these two contexts, are looked at as having influenced the adoption of the Rome statute and thus bearing some relevance in an analysis of matters relating to the exercise of the court's jurisdiction. In this respect, relevant hurdles faced by the former in discharging themselves of their respective mandates are highlighted. For this reason, the study analyses the statute's jurisdictional provisions ratione loci, materiae, temporis and personae in the light of the statutes, experience and case-law of the ad hoc tribunals where the comparison bears some significance (chapter three). The incidence of the ICC exercise of jurisdiction on non-states parties is examined in the light of USA opposition to the court as exemplified by the highly controversial SC resolutions deferring prosecutions of non-states parties involved in UN authorized peacekeeping operations. The subsequent chapter (chapter four) discusses the three so-called ''trigger mechanisms'' in the exercise of ICC jurisdiction. Political considerations attached to states' and Security Council's referrals are mentioned and assessed in the light of past international criminal law and human rights experiences. The inherent arbitrariness and pitfalls attached to unchecked prosecutorial discretionary powers in selecting cases for prosecution out of many others equally important and outside any cognisable objective criteria are further discussed and highlighted as constituting potential hurdles in the way of an independent and truly impartial functioning of the court. In either case, the material limits of the court in dealing with situations involving massive criminal participation whereby the court ought to be complemented by national jurisdictions, as it is more likely the case in the currently referred situations, display the limited impact of the court's proposed legal solutions in the most intricate situations. The interplay between the court's exercise of jurisdiction and the problématique of state cooperation and enforcement of its decisions by nation-states is further analysed (chapter five). The relevance of this part lies in the pointing out the central role of state willingness to cooperate with the court and its exercise of jurisdiction in all phases of the proceedings, from the act of seizure of the court, throughout the trial phase until a judgement is pronounced and enforced. Despite statutory provisions imposing obligations on states to cooperate, residual recourse to state sovereignty still constitute potential bars to state compliance, given the additional fact that the statute lacks a system of sanctions for non-compliance. This question is interrelated with an examination of possible clashes between international and national processes (chapter six). Some post-conflict situations have often pushed for undesirable, but necessary, political compromises offering alternative settlement solutions to criminal prosecutions. Amnesties, truth and reconciliation commissions and other so-called restorative justice mechanisms are not properly addressed in the ICC founding instruments as the interests of justice in article 53 remains an imprecise concept needing further clarification. A short concluding chapter offers an insight on the main issues raised in the discussion and likely to affect the working of the court. Grounding on ICC statutory provisions and comparative experience its ad hoc predecessors, the analysis paint a picture of a court whose unchallengeable importance might nonetheless be overshadowed by inherent limitations attached to its mandate and politicisation - despite formal provisions on its independence and prosecutorial discretion - due to its dependence on state cooperation.