International Criminal Law

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Spring 2023
Outline

• 1 Introduction: Historical evolution and purposes of international criminal law

• 2 Sources of international criminal law and key principles
• 3 The structure of international criminal tribunals and jurisdiction
• 4 Genocide
• 5 Jurisdiction and Responsibility
• 6 Crimes against humanity
• 7 War crimes
• 8 Crimes of aggression Lecture
• 9 The right to fair trial before the international criminal tribunals
• 10 Victims of international crimes
• 11 Alternatives to international criminal tribunals: Transitional Justice
• Although there are historical precursors and precedents of and in
international criminal law, it was not until the 1990s, with the
establishment of the ad hoc Tribunals for the former Yugoslavia and
Rwanda, that it could be said that an international criminal law
regime had evolved. This is a relatively new body of law, which is not
yet uniform, nor are its courts universal
• International criminal law is the body of law that prohibits certain
categories of conduct deemed to be serious crimes, regulates
procedures governing investigation, prosecution and punishment of
those categories of conduct, and holds perpetrators individually
accountable for their commission.

• ICL places responsibility on individuals not states and not

organizations. It prosecutes acts defined as crimes in international law
• ICL is a subset of public international law, outlines the basic sources of
ICL and explains how these sources are interpreted by international
criminal courts.

• It also briefly discusses the relationship between ICL, international

humanitarian law and international human rights law.
• What Is Public International Law?
Public international law governs the actions of states and how states interact with
each other and individual citizens. Public international law involves rules and
principles that deal with the conduct, rights and obligations of states and
international organisations, as well as dealing with relations among states.

• What Is International Criminal Law?

• International criminal law is a subset of public international law, and is the main
subject of these materials. While international law typically concerns inter-state
relations, international criminal law concerns individuals. In particular,
international criminal law places responsibility on individual persons—not states
or organisations—and proscribes and punishes acts that are defined as crimes by
international law
• International criminal law is a relatively new body of law, and aspects
of it are neither uniform nor universal. For example, some aspects of
the law of the ICTY are unique to that jurisdiction, do not reflect
customary international law and also differ from the law of the ICC.

• International criminal law also includes laws, procedures and

principles relating to modes of liability, defences, evidence, court
procedure, sentencing, victim participation, witness protection,
mutual legal assistance and cooperation issues.
• International criminal law developed from various sources. War
crimes originate from the ‘laws and customs of war’, which accord
certain protections to individuals in armed conflicts. Genocide and
crimes against humanity evolved to protect persons from what are
now often termed gross human rights abuses, including those
committed by their own governments.
• With the possible exception of the crime of aggression with its focus
on inter-State conflict, the concern of international criminal law is
with individuals and with their protection from wide-scale
atrocities. As was said by the Appeal Chamber in the Tadic´ case in
the International Criminal Tribunal for the former Yugoslavia (ICTY):

‘A State-sovereignty-oriented approach has been gradually supplanted by a

human-being oriented approach ... International law, while of course duly
safeguarding the legitimate interests of States, must gradually turn to the
protection of human beings ...’
• For the purpose of this class, we will consider only the crimes where
international courts/tribunals are given jurisdiction under International
law. These crimes comprise of the so-called ‘core’
- Crimes of genocide,
- Crimes against humanity,
- War crimes and
- The crime of aggression (also known as the crime against peace).

• Our use thus does not include piracy, slavery, torture, terrorism, drug
trafficking and many crimes which States Parties to various treaties are
under an obligation to criminalize in their domestic law.
• In practice the greater part of the enforcement of international
criminal law is undertaken by domestic authorities.
‘‘crimes against international law are committed by men, not abstract entities,
and only by punishing individuals who commit such crimes can the provisions of
international law be enforced ... individuals have international duties which
transcend the national obligations of obedience imposed by the individual
state’’
SOURCES OF ICL
• As international criminal law is a subset of public international law,
the sources of ICL are largely the same as those of public international
law.
• The five sources of ICL used by international and hybrid criminal
courts generally are:
• 1) treaty law;
• 2) customary international law (custom, customary law);
• 3) general principles of law;
• 4) judicial decisions (subsidiary source); and
• 5) learned writings (subsidiary source).
• The sources of law can sometimes overlap and have a dynamic relationship. For example, a treaty
can reflect, become or influence the development of customary international law and vice versa.

• The five sources of ICL roughly correlate with the classic expression of the sources of international
law contained in Article 38(1) of the Statute of the International Court of Justice (ICJ):
• a) international conventions, whether general or particular, establishing rules expressly recognized
by the contesting States;
• b) international custom, as evidence of a general practice accepted as law;
• c) the general principles of law recognized by civilized nations;
• d) […] judicial decisions and the teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.

• The relevance and importance of these sources in national criminal jurisdictions differ between
countries. For example, in some jurisdictions, the direct source of international criminal law is
national legislation incorporating ICL. In this instance, treaty and customary international law cannot
be used as a direct source.
 Article 17 of the Rome Statute
Issues of admissibility
• 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a
case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the
State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided
not to prosecute the person concerned, unless the decision resulted from the unwillingness or
inability of the State genuinely to prosecute;

(c) The person concerned has already been tried in domestic court for conduct which is the subject of
the complaint, and a trial by the Court (ICC) is not permitted under article 20, paragraph 3; (Can’t be
tried again for the same conduct already tried for by another court – double jeopardy).

(d) The case is not of sufficient gravity to justify further action by the Court.
Issues of admissibility cont.
• 2. In order to determine unwillingness in a particular case, the Court shall consider,
having regard to the principles of due process recognized by international law, whether
one or more of the following exist, as applicable:

(a) The proceedings were or are being undertaken or the national decision was made for
the purpose of shielding the person concerned from criminal responsibility for crimes
within the jurisdiction of the Court referred to in article 5;

(b) There has been an unjustified delay in the proceedings which in the circumstances is
inconsistent with an intent to bring the person concerned to justice;

(c) The proceedings were not or are not being conducted independently or impartially, and
they were or are being conducted in a manner which, in the circumstances, is inconsistent
with an intent to bring the person concerned to justice.
PRINCIPLE OF PRIMACY
• Primacy is defined as being of most important. In the context of
courts and the law primacy dictates the court or tribunal which
choices are seen as more binding and of greater precedence than the
courts below it. A court with primacy will to some extent be able to
dictate and overrule the decisions of lower courts.

• The principle of primacy of this International Tribunal over national

courts must be affirmed; [Prosecutor v Tadic (IT-94-1-AR72) ICTY]
Principle of Complementarity:
• The principle of complementarity governs the exercise of the Court’s jurisdiction. This
distinguishes the Court (ICC) in several significant ways from other known institutions, including
ICTY and the ICTR
• The Statute recognizes that States have the first responsibility and right to prosecute
international crimes.

• The ICC may only exercise jurisdiction where national legal systems fail to do so, including
where they purport to act but in reality are unwilling or unable to genuinely carry out
proceedings.

• The principle of complementarity is based both on respect for the primary jurisdiction of States
and on considerations of efficiency and effectiveness, since States will generally have the best
access to evidence and witnesses and the resources to carry out proceedings.
• More so, there are limits on the number of prosecutions the ICC, can feasibly conduct (the most
serious offenders can be dealt with by ICC whereas the national courts can deal with the less
serious offenders).
• The ICC is the court of last resort. It Supplements national jurisdiction. Every
states has a responsibility to exercise its own jurisdiction over international
crimes. ICC will not intervene when state adequately prosecutes.

• But where ICC feels the national court is unwillingly or unable to genuinely deal
with the cases, then it will step in.

• ICC can override national jurisdiction if they believe decision is not properly made
• The ICC is intended to complement, not to replace, national criminal systems;
• invasion of sovereignty vs ensuring justice is served without potential state
biases
Questions to ask:
• To know whether the ICC should step in, there are two main
questions to ask:
• 1) is there a ongoing investigation or prosecution of the case at
national level; and, if so,
• 2) is the state unwilling or unable to genuinely carry it out?
Determining Unwillingness of National Court

• In order to determine unwillingness in a particular case, the ICC shall consider,

having regard to the principles of due process recognized by international law,
whether one or more of the following exist, as applicable:
• (a) The proceedings were or are being undertaken or the national decision was
made for the purpose of shielding the person concerned from criminal responsibility
for crimes within the jurisdiction of the Court referred to in article 5;

• (b) There has been an unjustified delay in the proceedings which in the
circumstances is inconsistent with an intent to bring the person concerned to
justice;

• (c) The proceedings were not or are not being conducted independently or
impartially, and they were or are being conducted in a manner which, in the
circumstances, is inconsistent with an intent to bring the person concerned to
justice.
Proof of unwillingness may arise from a variety of factors relating to the
aspects of Article 17(2). Some examples of relevant facts and evidence
that may be gathered:
Purpose of shielding
• Proof of shielding may also be sought through expert witnesses on
the politicized nature of a national system;
• Many factors listed below (delay, lack of impartiality, longstanding
knowledge of crimes without action) will also help establish
“shielding”
Delay
• • Delay in various stages of the proceedings (both investigative and
prosecutorial) should be examined, for example, in comparison with
normal delays in that national system for cases of similar complexity.
• • Where there is delay, are there justifications for that delay? •
Where there is unjustified delay, is it inconsistent with an intent to
bring the person concerned to justice?
Independence
• • Degree of independence of judiciary, of prosecutors of investigating
agencies; procedures of appointment and dismissal; nature of
governing body;
• • Patterns of political interference in investigation and prosecution;
and
• • Patterns of trials reaching preordained outcomes.
Impartiality
• • Commonality of purpose between suspected perpetrators and state
authorities involved in investigation, prosecution or adjudication. This
constitutes circumstantial evidence for an inference of non-
genuineness.
• This can include:
• - political objectives of state authority, dominant political party; and -
coincidence or dissonance in objectives and crime (political gains,
territorial goals, subjugation of group).
• Linkages between perpetrators and judges; and
• Dismissal, reprisals against investigating staff for diligence or lack
thereof.
Determining Inability of the national Court
• In order to determine inability in a particular case, the Court (ICC)
shall consider whether, due to a total or substantial collapse or
unavailability of its national judicial system, the State is unable to
obtain the accused or the necessary evidence and testimony or
otherwise unable to carry out its proceedings.
Determining Inability
• Inability The following facts and evidence may be relevant to the first set of
considerations in the inability test (total or substantial collapse or unavailability of
national judicial system):

• lack of necessary personnel, judges, investigators, prosecutor;

• lack of judicial infrastructure;

• lack of substantive or procedural penal legislation rendering system
“unavailable”;
• lack of access rendering system “unavailable”;
• obstruction by uncontrolled elements rendering system “unavailable”; and
• amnesties, immunities rendering system “unavailable”.
Burden of Proof
• International law as well as domestic laws, in both civil and common
law systems, generally require that the party alleging a claim bears
the burden of proof as to the support of that claim.

• Onus probandi actori incumbit “is the basic rule of the burden of
proof.
• According to this rule, the party who makes allegations regarding a
disputed fact or issue bears the burden of proving such fact or issue.
This rule places the brunt of the burden of proof on the claimant.
• Shifting the burden of proof: While the initial burden of proof will be
on the Prosecutor in many situations (particularly with respect to the
“genuineness” issue), there are various principles that can shift the
burden whereas such shifts as a matter of law are comparatively rare.
Some prospects that bear consideration:

a. Prior determination: Where there has already been a specific finding

of admissibility in relation to the particular case, any subsequent
challenger should carry the burden of displacing that earlier finding.
• b. Exclusive or superior access to necessary information: Various
authorities, including in the context of international law, have allowed a
shift of the burden of proof where the State has exclusive or superior
access to the necessary information, and therefore is in the best position to
know the state of affairs and provide evidence.

•
• This will arise primarily where the State is being uncooperative and
successfully prevents the Office of The Prosecutor (OTP) from gathering
information, which certainly raises grave doubts about the State’s intent. It
may also arise in cases of non-public trials.
Responsibility
• Individual criminal responsibility: International criminal law allows for individuals
to be held criminally responsible not only for committing war crimes, crimes
against humanity and genocide, but also for attempting, assisting in, facilitating or
aiding and abetting the commission of such crimes. Individuals may also be held
criminally responsible for planning and even instigating the commission of such
crimes.

• Command responsibility: Violations of international criminal law can also result

from a failure to act. Armed forces or groups are generally placed under a
command that is responsible for the conduct of its subordinates. As a result, in
order to make the system effective, hierarchical superiors should be held to
account when they fail to take proper measures to prevent their subordinates
from committing serious violations of international humanitarian law. They may
therefore be held to be criminally responsible for criminal activities to which they
made no personal contribution.
Immunity
• Immunities flow from the idea of State sovereignty. Traditionally,
State representatives were granted immunity from foreign
jurisdiction. The purpose of immunity is to allow State representatives
to effectively exercise their official functions and represent the State
in international relations. Two types of immunity have emerged.
• (a). Personal immunity protects the acts of persons essential to a State’s administration, whether
in their personal or official capacity , for the duration of their term in office. ·

• (b). Functional immunity protects official acts of State representatives carrying out their functions
for the State and continues to protect those acts after the end of their term in office. Immunity
thus acts as a procedural bar to the initiation of proceedings against protected persons by foreign
jurisdictions; the official’s State of nationality may nevertheless waive the immunity.

• The ICTY, ICTR and ICC Statutes explicitly exclude the availability of functional immunities in cases
of international crimes (Art. 7(2), ICTY Statute; Art. 6(2), ICTR Statute; Art. 27(1), ICC Statute).
• Only the ICC Statute expressly excludes the availability of personal immunities in cases of
international crimes (Art. 27(2)). Indeed, the ICC Statute goes so far as to require States to
remove immunities regarding the perpetration of international crimes by enacting appropriate
legislation in their national law (Arts 27 and 88). In practice, the ICTY indicted two sitting Heads of
State although the court’s jurisdiction was only effectively exercised once they had left office. The
waiver of immunity is qualified in Article 98(1) of the ICC Statute with respect to non -party State
• This Module covers two of the most fundamental principles of
international criminal law: the principles of legality and double
jeopardy. The application of these principles during prosecutions of
international crimes before international and domestic courts is
constantly evolving.
• Accused persons will often contest that the international crimes with
which they are charged were not recognised as binding law at the
time of their alleged commission.
PRINCIPLE OF LEGALITY
• A central tenet of human rights law that applies directly to the
international criminal law system is the principle that prohibits
retroactive application of crimes and penalties.

• To incur criminal responsibility, behaviour must be prohibited and

carry criminal sanction at the time of conduct. This is known as the
principle of legality or nullum crimen sine lege and nulla poena sine
lege
• Just because conduct is not criminal under national laws does not
generally bar a person from being tried for conduct that carries
individual criminal responsibility under international law.

• The principle of legality is enshrined in Article 15 of the International

Covenant on Civil and Political Rights (ICCPR) (to which BiH, Croatia
and Serbia are parties):
• Article 15 of the International Covenant on Civil and Political Rights

• (1) No one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence, under national or
international law, at the time when it was committed. Nor shall a heavier penalty
be imposed than the one that was applicable at the time when the criminal
offence was committed. If, subsequent to the commission of the offence,
provision is made by law for the imposition of the lighter penalty, the offender
shall benefit thereby.

• (2) Nothing in this article shall prejudice the trial and punishment of any person
for any act or omission which, at the time when it was committed, was criminal
according to the general principles of law recognized by the community of
nations.
 Nullum crimen, nulla poena sine lege
• Also known as the principle of legality, this principle, which is enshrined in Article 15 of the
International Covenant on Civil and Political Rights, states that no one may be convicted or
punished for an act or omission that did not violate a penal law in existence at the time it
was committed.

• Therefore, the existence of a particular crime depends on the existence of legislation

stating that the particular act is an offence, and for a specific penalty to be imposed for
that offence, the legislation in force at the time of its commission must include that
particular penalty as one of the possible sanctions for that crime.

• The purpose of this principle is to ensure that legislation is specific and predictable so that
individuals may reasonably foresee the legal consequences of their actions. The ICC
Statute contains a specific provision on the principle of legality (Art. 22).
•
• The principle of legality is associated with the principle of non-
retroactivity, the principle of specificity, and the prohibition of analogy.

• The principle of non-retroactivity states that the law proscribing a given act
must have existed before the act in question occurred. As such, this
principle prohibits the retroactive application of the law.

• The principle of specificity requires that the definition of the proscribed act
be sufficiently precise, while the prohibition of analogy requires the
definition to be strictly construed.
Ne bis in idem
• This Latin maxim enunciates the principle that no person should be
tried or punished more than once for the same crime. It ensures
fairness for defendants since they can be sure that the judgment will
be final and protects against arbitrary or malicious prosecution at
both domestic and international level. Further, this principle
endeavors to ensure that investigations and prosecutions are
scrupulously initiated and carried out.
• It is important to note that the specific application of ne bis in idem at the international level
depends upon its formulation in the relevant statutes of international tribunals.

• For example, the Statutes of the International Criminal Tribunals for the former Yugoslavia (ICTY)
and Rwanda (ICTR) provide that no national court may try a person for acts already tried before
the international tribunal, while under certain specific circumstances the international tribunal
may try a person that a national court has already tried.

• The ICC Statute provides for a slightly different application of the principle of ne bis in idem in that
a person may be tried at national level for conduct which already constituted the basis of a
conviction by the ICC.

• The ICTY, ICTR and ICC Statutes all provide for the possibility of trying an individual for conduct
that was already the subject of proceedings at national level where the proceedings were
designed to shield the person from criminal responsibility at international level (Art. 10(2)(b), ICTY
Statute; Art 9(2)(b), ICTR Statute; Art. 20(3)(a), ICC Statute).
Assignment to be submitted next week
22/3/23
• Consider the ICC, ICTR & ICTY its formation/structure, Jurisdiction and
the stages of processes it follows from when a crime occurs until the
punishment of that crime?

• 2 pages
• Cover page
• Times New Roman (12)
• Submit in Print
Stages of How ICC Work
• Preliminary Examination Stage:
• The Office of the Prosecutor must determine whether there is sufficient
evidence of crimes of sufficient gravity falling within the ICC’s jurisdiction,
whether there are genuine national proceedings, and whether opening an
investigation would serve the interests of justice and of the victims.

• If the requirements are not met for initiating an investigation, or if the

situation or crimes are not under the ICC’s jurisdiction, the ICC’s
Prosecution cannot investigate.
•
• Investigations: After gathering evidence and identifying a suspect, the
Prosecution requests ICC judges to issue:
• an arrest warrant: the ICC relies on countries to make arrests and transfer
suspects to the ICC; or a summons to appear: suspects appear voluntarily (if not,
an arrest warrant may be issued).

• If the requirements are not met for initiating an investigation, or if the situation
or crimes are not under the ICC’s jurisdiction, the ICC’s Prosecution cannot
investigate.
• The Prosecution may seek again the confirmation of charges, by presenting new
evidence.
• Pre-Trial stage
• Initial appearance: Three Pre-Trial judges confirm suspect's identity
and ensure suspect understands the charges.
• Confirmation of charges hearings: After hearing the Prosecution, the
Defence, and the Legal representative of victims, the judges decide
(usually within 60 days) if there is enough evidence for the case to go
to trial.
• If the suspect is not arrested or does not appear, legal submissions
can be made, but hearings cannot begin.
• Trial stage
Before three Trial judges, the Prosecution must prove beyond reasonable doubt the guilt of
the accused. Judges consider all evidence, then issue a verdict and, when there is a verdict
of guilt, issue a sentence. The judges can sentence a person to up to 30 years of
imprisonment, and under exceptional circumstances, a life sentence.

• Verdicts are subject to appeal by the Defence and by the Prosecutor.

• Judges can also order reparations for the victims.

• If there is not enough evidence, the case is closed and the accused is released.

• Acquittals are subject to appeal by the Defence and by the Prosecutor.

• Appeals stage
• Both the Prosecutor and the Defence have the right to appeal a Trial Chamber's
decision on the verdict (decision on guilt or innocence of the accused) and the
sentence.

The victims and the convicted person may appeal an order for reparations.

An appeal is decided by five judges of the Appeals Chamber, who are never the
same judges as those who gave the original verdict.

The Appeals Chamber decides whether to uphold the appealed decision, amend it,
or reverse it. This is thus the final judgment, unless the Appeals Chamber orders a
re-trial before the Trial Chamber.
• Enforcement of sentence
• Sentences are served in countries that have agreed to enforce ICC
sentences.
• If a verdict of guilt is not upheld, the person may be released.
Structure of the Court (ICC)

• The Court is an independent institution. The Court is not part of the

United Nations, but it maintains a cooperative relationship with the
U.N. The Court is based in The Hague, the Netherlands, although it
may also sit elsewhere. The Court is composed of four organs. These
are:
• the Presidency,
• the judicial Divisions,
• the Office of the Prosecutor and
• the Registry.
• Pursuant to the Rome Statute, the Prosecutor can initiate an
investigation on the basis of a referral from any State Party or from
the United Nations Security Council. In addition, the Prosecutor can
initiate investigations proprio motu on the basis of information on
crimes within the jurisdiction of the Court received from individuals
or organizations.
The aims of international criminal justice
1. Retribution
• Retributive theories have a long history in criminal law, but are now
often associated with Immanuel Kant. They focus on the necessity of
punishing those who have violated societal norms, irrespective of the
possible future benefits of prosecution, on the basis that the
offenders deserve punishment for what they have done.
2. Deterrence
• Deterrence is perhaps the best known of the justifications of
punishment. Such theories were championed in particular by
utilitarian political theorists such as Jeremy Bentham, who, in
distinction to retributivists, focused on the future-related benefits of
prosecution. It is a commonplace that punishment ought to be
imposed to prevent both the offender and the population more
generally from engaging in prohibited conduct
• 3. Incapacitation
• Incapacitation is another utilitarian justification of punishment. It has links to
individual deterrence, in that it seeks to prevent crimes by keeping the person in
detention. This has not had a great influence on international criminal law,
although Judge Röling, in the Tokyo IMT, asserted that the justification for
prosecuting aggression, in spite of the fact that it was not previously criminal, was
that the defendants were dangerous and their influence on Japan had to be
excluded by their imprisonment.

• Some of the arguments against amnesty, that rely on the idea that those who
seek amnesties will not quietly retire, are linked to this justification of
punishment. Incapacitative theories of punishment are controversial, as they rely
on the imprecise science of determining who will reoffend and who will not. They
do not focus on what has been done but, in effect, punish people for what they
might do in the future
4. Rehabilitation
• Rehabilitation is a theory of punishment which can trace its history
back to the eighteenth century, and is based on the idea that the
point of criminal sanctions is reformation of the offender. It is a
theory of punishment that has many advocates in the human rights
community at the domestic level, in particular those who are
supporters of restorative justice.
5. Denunciation/education
• One of the more modern theories designed to justify punishment, and one
which has considerable support, is that of communication/denunciation.
Some of the most sophisticated defences of international criminal law
adopt this defence of punishment for international crimes.
• In other words criminal procedures and punishment are ‘an opportunity for
communicating with the offender, the victim and wider society the nature
of the wrong done’.
• This is designed to engage offenders, and attempt to make them
understand what was wrong with what they have done, whilst also
reaffirming the norm in the community and educating society about the
unacceptable nature of the conduct condemned. Others add that it
reaffirms faith in the rule of law
6. Justice for victims
• There are certain other goals which have been suggested for international
criminal law, all of which have a utilitarian focus, and relate in some ways
to the future of the societies in which international crimes are committed.
• The first of these is that prosecutions may engender a sense of justice
having been done, or ‘closure’ for victims, either on the basis that seeing
their persecutors prosecuted will have that result, or that the process of
testifying will do so. Such a role in relation to victims was noted by the ICTY
in the Nikolic´ case, which asserted that ‘punishment must therefore reflect
both the calls for justice from the persons who have – directly or indirectly
– been victims of the crimes
7. Recording history
• The next postulated goal is that of truth telling. The claim is that the
process of subjecting evidence to forensic scrutiny will set down a
permanent record of the crimes that will stand the test of time. Some
go further to suggest that trials should be structured to create a
narrative which will be useful to a post-conflict society.
• States must uphold them while also respecting their own national
principles of criminal law and any specific principles outlined in the
instruments of the regional bodies to which they are party.
• The four categories of international crimes are genocide, crimes
against humanity, war crimes, and the crime of aggression.
JURISDICTION
• Jurisdiction concerns the power of the state under international law to
regulate or otherwise impact upon people, property and circumstances
and reflects the basic principles of state sovereignty, equality of states and
non-interference in domestic affairs.

• Jurisdiction refers to the ability of a State to make and enforce its laws.
While often related to sovereignty, and intrinsically linked to its territory,
jurisdiction can exist without a connection to territory. Jurisdiction can be
held to exist in a variety of contexts, depending on the location of events,
the nationality of participants or the surrounding circumstances, and will
also indicate whether a State may be able to undertake enforcement action
to uphold its law.
• the Statute does not deprive States of the power to prosecute the
perpetrators of international crimes. Further, the ICC’s jurisdiction
defers to that of States Parties. While the Statute does not relieve
States of the power to prosecute perpetrators of crimes within its
jurisdiction, it institutes a Court that will do so in the event that States
Parties neglect to prosecute these criminals or do not possess the
means to do so
• The ICC Statute entered into force on 1st July 2002. Therefore, as per
Article 11, the earliest date from which the ICC can have jurisdiction
over crimes under the Statute is 1st July 2002
• Article 5 - Crimes within the jurisdiction of the Court
The jurisdiction of the Court shall be limited to the most serious crimes
of concern to the international community as a whole. The Court has
jurisdiction in accordance with this Statute with respect to the
following crimes:
• (a) The crime of genocide;
• (b) Crimes against humanity;
• (c) War crimes;
• (d) The crime of aggression
• In the case of article 13, paragraph (a) or (c), the Court may exercise its
jurisdiction if one or more of the following States are Parties to this Statute or
have accepted the jurisdiction of the Court in accordance with paragraph 3:
• (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 of registration of that vessel or aircraft;

• (b) The State of which the person accused of the crime is a national.

• 3. If the acceptance of a State which is not a Party to this Statute is required

under paragraph 2, that State may, by declaration lodged with the Registrar,
accept the exercise of jurisdiction by the Court with respect to the crime in
question. The accepting State shall cooperate with the Court without any delay or
exception in accordance with Part 9.
• Article 13 Exercise of jurisdiction
• The Court may exercise its jurisdiction with respect to a crime referred to in
article 5 in accordance with the provisions of this Statute if:
• (a) A situation in which one or more of such crimes appears to have been committed
is referred to the Prosecutor by a State Party in accordance with article 14;

• (b) A situation in which one or more of such crimes appears to have been committed
is referred to the Prosecutor by the Security Council acting under Chapter VII of the
Charter of the United Nations; or

• (c) The Prosecutor has initiated an investigation in respect of such a crime

• Article 21 Applicable law
• 1. The Court shall apply:
(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;

(b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the
established principles of the international law of armed conflict;

(c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as
appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles
are not inconsistent with this Statute and with international law and internationally recognized norms and standards.
• 2. The Court may apply principles and rules of law as interpreted in its previous decisions.

• 3. The application and interpretation of law pursuant to this article must be consistent with internationally
recognized human rights, and be without any adverse distinction founded on grounds such as gender, age,
race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth,
birth or other status
The nationality principle
• The second generally accepted principle of jurisdiction is nationality
(sometimes known as ‘active nationality’). States are entitled under
international law to legislate with respect to the conduct of their
nationals abroad.

• Many States adopt this head of jurisdiction quite broadly. Article

12(2) of the Bosnia/Herzegovina Criminal Code, for example, states
that
• ‘[t]he criminal legislation of Bosnia and Herzegovina shall be applied
to a citizen of Bosnia and Herzegovina who, outside the territory of
Bosnia and Herzegovina, perpetrates a criminal offence ... ’
• Nationality is an important basis of jurisdiction in international
criminal law, in particular in relation to armed forces stationed
overseas who, in the legislation of most States, ‘carry the flag’ abroad
with them. The principle, nonetheless, applies beyond the armed
forces, and also covers civilians.
• Under this principle, for example, a sovereign (state) can make it a
crime for its nationals to engage in sexual relations with minors while
outside of its borders or to pay bribes outside of its borders to public
officials of another state.

• The nationality principle has the effect of allowing a state to adopt

laws that make it a crime for its nationals to engage in conduct that is
not illegal in the place where the conduct is performed.
• The nationality (or “active personality”) principle—that a state has
authority to make criminal law for its nationals wherever they act in
the world—is the second fundamental principle of jurisdiction.