Introduced by Beatrice I. Bonafé and Alessandro Bufalini

 

At the very heart of the main controversies entailed by the establishment and operation of the International Criminal Court lies the special nature of the Court. It can be conceived of, on the one hand, as a treaty-based body through which the member States perform jointly a specific mission. But the Court can also be regarded – and this is the way in which the Court sometimes seems itself – as a body ‘acting on behalf of the international community as a whole’.[1] These two opposite conceptualizations lead to dramatically different legal results, not just in terms of applicable immunity rules.

That same opposition between a Court seen as an independent, universal, judicial body and the Court viewed as a mere instrument in the hands of its member States is crucial for understanding one of the basic notions concerning the Court’s functioning, that of (adjudicative) jurisdiction. Recent developments in the Court’s case law reveal a possible shift in favour of a growing autonomy of the Court in the exercise of its jurisdictional power, especially in determining the precise boundaries of the jurisdictional criteria provided in the Statute.

In early cases the establishment of the Court’s jurisdiction seemed mainly inspired by a sense of caution, one would be even tempted to say shyness, so to avoid stepping into the jurisdiction of third States. More latitude could have characterized the application of complementarity and the establishment of jurisdiction with respect to member states. But, with respect to jurisdictional matters, the Court seemed pretty inclined to respect the treaty-based nature of its Statute.

More recent cases clearly show a development toward a broader interpretation and an extension of the criteria lying at the basis of the Court’s jurisdiction, notably territorial jurisdiction. Whether this extension corresponds to an increased self-consciousness and autonomy in the way in which the Court perceives its role and whether this expanded jurisdiction is consistent with the Statute remain to be determined.

Indeed, the precise extent of the Court jurisdiction has been quite controversial, ever since the Rome conference. While under Article 12 the Court’s jurisdiction has an alternative (as opposed to cumulative) territorial or national basis, because it can prosecute the authors of international crimes committed on the territory of member States or having the nationality of members States, some States – especially the United States – have insistently put forward the idea that no jurisdiction could be exercised by the Court on nationals of non-party States.

However, in quite different contexts, the ICC has recently dealt with the territorial dimension of the application of the ICC Statute by envisaging an interpretation of that jurisdiction that would somehow allow the tribunal to uphold jurisdiction even in the absence of ratione personae jurisdiction (art. 12, para 2, let b), thus renewing concerns on the potential jurisdictional overreach of the ICC.

In November 2019, the Pre-Trial Chamber III authorised the Prosecutor to commence an investigation into crimes committed against the Rohingya people in Rakhine State, Myanmar, and any other crimes under the ICC’s jurisdiction sufficiently linked to these events. Allegedly, the Rohingya were forcibly displaced from Myanmar to neighbouring Bangladesh (a State party to the Rome Statute).[2] The Pre-Trial Chamber stated that the ICC may exercise its jurisdiction over crimes that occurred partially on the territory of a State Party and partially on the territory of a non-party State. The idea is that a cross-border activity may trigger a territorial link – and the jurisdiction of the Court – even in case where the consequences or at least part of the criminal conduct take place in a State not party of the Rome Statute.

On 5 March 2020, the Appeals Chamber of the ICC decided unanimously to authorise the Prosecutor to proceed with an investigation into alleged crimes under the jurisdiction of the Court in relation to the situation in the Islamic Republic of Afghanistan.[3] According to the Appeals Chamber, the Prosecutor may investigate crimes committed on the territory of Afghanistan since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan or are sufficiently linked to the situation in Afghanistan and were committed by nationals of other States.

In December 2019, the ICC Prosecutor, while announcing that there were reasonable bases to open an investigation, asked the Pre-Trial Chamber to rule on the scope of the territorial jurisdiction of the Court in the situation of Palestine and to ascertain whether the West Bank, East Jerusalem and Gaza were territories over which the ICC might exercise its jurisdiction[4]. The decision was adopted early this month and, while confirming the territorial scope of the Court’s jurisdiction under the Statute, refused to take a stand on preliminary issues concerning the legal status of Palestine[5]. It shows once more a mixture of caution and activism.

These situations raise a number of questions concerning the extension of the ICC jurisdiction, especially territorial jurisdiction, and confirm the importance of the way in which the Court conceives its own function in defining the scope of that jurisdiction. QIL invited three experts to reflect on the permanent tension between the universal dimension of the ICC’s mandate and the consent-based nature of its jurisdiction. They have addressed that question from two different perspectives. The first, broader one relates to the way in which the Court conceives of its judicial function and how this conception has evolved over time (Michail Vagias). The second is more focused on the specific situations that prompted the Court to pronounce on the boundaries of its jurisdiction and the nature of its function (Alice Riccardi, Monique Cormier).

 

 

[1] Prosecutor v Omar Hassan Ahmad Al Bashir, ‘Judgment in the Jordan Referral re Al-Bashir Appeal’ (6 May 2019) ICC-02/05-01/09-397-Corr para 115.

[2] Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar’ (14 November 2019) ICC-01/19-27.

[3] Situation in the Islamic Republic of Afghanistan, ‘Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan’ (5 March 2020) ICC-02/17-138.

[4] Situation in the State of Palestine, ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’ (20 December 2019) ICC-01/18.

[5] Situation in the State of Palestine, ‘Decision on the Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’ (5 February 2021) ICC-01/18-143.