International Criminal Court, Here Are Its Definition and Jurisdictions

PERTANYAAN

Gross violations of human rights that occur in a country, which attract international attention, the judicial process is delegated to each country. However, if the country concerned is considered unable, unwilling, and unable to carry it out, it will be taken over by the International Criminal Court or ICC.

The questions:

1. What is the International Criminal Court?
2. What are the jurisdictions of the International Criminal Court?
3. What about gross human rights violations that are not processed in a country because there is no law governing them? Then, if it turns out that certain crimes occurred before the establishment of the Rome Statute, then who has the right to prosecute them?
4. How does the ICC jurisdiction apply to non-state parties?

INTISARI JAWABAN

The International Criminal Court ("ICC") is the first permanent and independent international criminal court with jurisdiction over individuals suspected of genocide, crimes against humanity, and/or war crimes.

So, where is the ICC regulated? What is the jurisdiction of the International Criminal Court?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Mahkamah Pidana Internasional, Ini Pengertian dan Yurisdiksinya, written by Renata Christha Auli, S.H., and was published on Tuesday, 5 September 2023.

This article is an update of the article entitled Introduction to the International Criminal Court and its Jurisdiction written by Sigar Aji Poerana S.H. which was published on Wednesday, 16 September 2020.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

The Definition of International Criminal Court

To answer your first question, in international law, the International Criminal Court ("ICC") is the first permanent and independent international criminal court (in the sense that it is not subordinated to the United Nations system/ UN system).[1]

As quoted from What is the International Criminal Court (ICC) and what is its relationship with the UN?, this is the definition of ICC:

The International Criminal Court is an independent judicial body with jurisdiction over persons charged with genocide, crimes against humanity, and war crimes.

Furthermore, it can be briefly explained that the main objectives of establishing the International Criminal Court are:[2]

1. to realize global justice;
2. to eliminate impunity;
3. to help stop conflicts;
4. to improve upon previous international tribunals;
5. take over the authority of national courts;
6. preventing future crimes.

The International Criminal Court is based in The Hague, Netherlands.[3] Furthermore, the basis for the establishment of the International Criminal Court is the Rome Statute, which enters into force upon ratification by 60 states. In 2002, the required number of ratifications was exceeded, so legally, the Rome Statute entered into force.[4]

So, what is the jurisdiction of the International Criminal Court? Here's the explanation.

Jurisdiction of the International Criminal Court

Before answering your second question regarding the jurisdiction of the ICC, please note that according to D. W. Bowett, jurisdiction is "the capacity of a state under international law to prescribe or to enforce a rule of law". In a broad context, jurisdiction is the authority to prescribe law and the authority to enforce a rule of law.[5]

Furthermore, the International Criminal Court has several jurisdictions, namely personal jurisdiction, material jurisdiction, territorial jurisdiction, and temporal jurisdiction.[6]

The following is an explanation of each.

1. Personal Jurisdiction (Rationae Personae)

Based on Article 25 section (1) Rome Statute, the ICC only has jurisdiction to prosecute individuals (natural persons), and the ICC may only prosecute individuals over the age of 18, as stipulated in Article 26 Rome Statute.

If there is a case handling on a person whose age has not reached 18 years, then the person will be returned to his country and the national law of the person's country will be applied.[7]

2. Material Jurisdiction (Rationae Materae)

Basically, the ICC has material jurisdiction over 4 types of crimes regulated in Article 5 section (1) Rome Statute, namely:

1. The crime of genocide, regulated in Article 6 Rome Statute;
2. Crimes against humanity, regulated in Article 7 Rome Statute;
3. War crimes, regulated in Article 8 Rome Statute;
4. The crime of aggression, specifically regarding the crime of aggression has not been regulated in more detail in the Rome Statute,[8] and the Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Article 121 and 123 Rome Statute.[9]

 

3. Territorial Jurisdiction

In general, the Rome Statute emphasizes that the ICC can exercise its functions and powers in the territory of a State Party to the Rome Statute. However, the ICC can also exercise its functions and powers in the territory of non-state party, as long as a special agreement is made.[10]

4. Temporal Jurisdiction (Rationae Temporis)

One of the principles that is considered fundamental in criminal law is the principle of legality which is contained in the adage "nullum delictum nulla poena sine praevia lege poenali" which means that a person cannot be prosecuted and punished on the basis of an act that at the time it was committed had not been declared a criminal offense (crime). The Rome Statute also reflects the same idea through Article 11 section (1), which states that the ICC has jurisdiction only over crimes committed after the statute came into force, namely on July 1^st, 2002.[11]

Furthermore, Article 11 section (2) Rome Statute states that if a state becomes a State Party to the Rome Statute after it has entered into force, the ICC begins to exercise its jurisdiction only over crimes committed after the statute has entered into force in that state, unless the state makes a declaration, as provided for in Article 12 section (3) Rome Statute.

Exercise of the Jurisdiction of the ICC

Regarding the exercise of the ICC's jurisdiction, Article 17 section (1) letter a Rome Statute reads:

Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

1. 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;

Under these provisions, the ICC will declare a particular case inadmissible, among other things, if it is being investigated or prosecuted by a state that has jurisdiction to handle it, unless that state is unwilling or unable to investigate or prosecute.

In the article How the Court works, it is explained that:

The ICC is intended to complement, not to replace, national criminal systems; it prosecutes cases only when States are unwilling or unable to do so genuinely.

The statement confirms the position of the ICC in accordance with the provisions of Article 17 section (1) letter a Rome Statute, that the jurisdiction of the ICC is only complementary to the national legal system so that as long as the country that has jurisdiction is still willing and able to process the criminal case, the ICC does not have jurisdiction to prosecute.

Absence of Law to Prosecute

In relation to your third question, Article 17 section (3) Rome Statute confirms that:

In order to determine inability in a particular case, the Court 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.

Thus, based on these rules, one of the benchmarks that a country is unable is the absence of a national legal system.

Then, according to the article Informal expert paper: The principle of complementarity in practice (p. 31), one of the indications of the absence of a national legal system is:

lack of substantive or procedural penal legislation rendering system “unavailable”

So, that answers your question, that one of the indications of a state that is unable to process criminal cases is the absence of applicable law, and in such a situation, the ICC can exercise jurisdiction to prosecute.

Jurisdiction over Crimes Prior to the Entry into Force of the Rome Statute

Furthermore, what if certain crimes were committed before the entry into force of the Rome Statute? Based on Article 11 section (1) Rome Statute which we explained above, the ICC does not have jurisdiction over such crimes.

According to the article The Mandate of the International Criminal Court, for crimes that occurred before the entry into force of the Rome Statute, other law enforcement alternatives are needed, such as prosecution by national legal systems, the establishment of ad hoc international judicial bodies, or prosecution by other countries that have jurisdiction, including countries that apply universal jurisdiction. You can find the definition of universal jurisdiction in Maritime Zone Delimitations and International Law of the Sea Dispute Resolution.

One of the countries that recognizes universal jurisdiction in its positive law is Belgium as outlined in the article Universal Jurisdiction and the Humanitarian Criminal Court.

Application of ICC Jurisdiction to Non-State Parties

Answering your last question, there are basically 3 situations that can cause ICC jurisdiction to apply to non-state parties, namely:[12]

1. If a situation that occurs in a non-state party is brought before the ICC through a UN Security Council Resolution (Article 13 letter b Rome Statute);
2. If a citizen of a non-state party commits a crime in the territory of a state party to the ICC (Article 12 section (2) Rome Statute);
3. If a non-state party recognizes the jurisdiction of the ICC over certain crimes that are ICC crimes based on an ad-hoc declaration (Article 12 section (3) Rome Statute).

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

Rome Statute of the International Criminal Court.

Reference:

1. Arie Siswanto. Yurisdiksi Material Mahkamah Kejahatan Internasional. Bogor: Ghalia Indonesia, 2005;
2. Diajeng Wulan Christianti. Hukum Pidana Internasional. Jakarta: Sinar Grafika, 2021;
3. Didi Prasatya. Eksistensi Mahkamah Pidana Internasional (International Criminal Court) Dalam Penyelesaian Kasus Tindak Pidana Terorisme. Jurnal Ilmu Hukum Legal Opinion, Edisi 2, Vol. 1, 2013;
4. Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Pustaka Yustisia, 2014;
5. How the Court works, International Criminal Court, accessed on Monday, 4 September 2023, at 14.39 Western Indonesian Time (zone);
6. Informal expert paper: The principle of complementarity in practice, International Criminal Court, accessed on Monday, 4 September 2023, at 14.39 Western Indonesian Time (zone);
7. Joining the International Criminal Court Why does it matter?, International Criminal Court, accessed on Monday, 4 September 2023, at 14.39 Western Indonesian Time (zone);
8. The Mandate of the International Criminal Court, Human Rights Watch, accessed on Monday, 4 September 2023, at 14.39 Western Indonesian Time (zone);
9. What is the International Criminal Court (ICC) and what is its relationship with the UN?, United Nations, accessed on Monday, 4 September 2023, at 14.40 Western Indonesian Time (zone).

---

[1] Diajeng Wulan Christianti. Hukum Pidana Internasional. Jakarta: Sinar Grafika, 2021, p. 189.

[2] Diajeng Wulan Christianti. Hukum Pidana Internasional. Jakarta: Sinar Grafika, 2021, p. 189.

[3] Article 3 section (1) Rome Statute of the International Criminal Court (“Rome Statute”).

[4] Arie Siswanto. Yurisdiksi Material Mahkamah Kejahatan Internasional. Bogor: Ghalia Indonesia, 2005, p. 9.

[5] Arie Siswanto. Yurisdiksi Material Mahkamah Kejahatan Internasional. Bogor: Ghalia Indonesia, 2005, pp. 38-39.

[6] Didi Prasatya. Eksistensi Mahkamah Pidana Internasional (International Criminal Court) Dalam Penyelesaian Kasus Tindak Pidana Terorisme. Jurnal Ilmu Hukum Legal Opinion, Edisi 2, Vol. 1, 2013, p. 4.

[7] Didi Prasatya. Eksistensi Mahkamah Pidana Internasional (International Criminal Court) Dalam Penyelesaian Kasus Tindak Pidana Terorisme. Jurnal Ilmu Hukum Legal Opinion, Edisi 2, Vol. 1, 2013, p. 4.

[8] Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Pustaka Yustisia, 2014, p. 257.

[9] Article 5 section (2) Rome Statute.

[10] Article 4 section (2) Rome Statute.

[11] Joining the International Criminal Court Why does it matter?, International Criminal Court, accessed on Monday, 4 September 2023, at 14.39 Western Indonesian Time (zone).

[12] Diajeng Wulan Christianti. Hukum Pidana Internasional. Jakarta: Sinar Grafika, 2021, p. 194.