INTERNATIONAL CRIMINAL LAW

JURISDICTION OF THE
INTERNATIONAL CRIMINAL COURT

Sudev Singh
Division B
B.A. LLB
17010125169
Preface

The International Criminal Court is the first permanent international criminal tribunal.
Although affiliated with the United Nations, it is not an extension of the UN and was born out
of a multi-lateral treaty known as the 1988 Rome Statute, coming into force on the 1st of July
2002. The ICC differs from the International Court of Justice in that the latter is an organ of
the UN and aims to hold nations responsible as opposed to imposing individual criminal
responsibility. Based in the Hague, Netherlands, the ICC is intended to act as a
supplementary judicial body to national judicial systems. This is to say that it kicks in when a
state is unable or unwilling to prosecute crimes under the Rome Statute that occur within its
territory. The ICC has 123 states that ratify its power, which is unfortunate as the court’s
jurisdiction relies heavily upon member states.

Outlook and Functioning

The International Criminal Court has certain specific areas of focus. They may be broadly
categorised as:1

o Genocide – Intentional or systematic killing of individuals belonging to a certain

race, religion, ethnicity or nationality.

o Crimes against humanity – Deliberate and planned acts of widespread violence

perpetrated against any civilian population or settlement.

o War crimes – Acts in armed conflict that violate the Laws of War, and require
individual criminal responsibility such as: intentional killing of civilians, conducting
torture, indiscriminate attacks, taking hostages etc.

o Crime of aggression – Any planned and executed act of aggression using state
military force that goes against the Charter of the United Nations such as: military
occupation, annexation by force, bombardment, and blockade of ports.

1
 Article 5 of the Rome Statute of the International Criminal Court- “Crimes within the jurisdiction of the court”
The ICC is set up with a mandate to oversee nations in their efforts or lack thereof, in
identifying and adjudicating upon the aforementioned crimes within their respective
territories. The Court is however handicapped in that its jurisdiction does not trump that of a
State and thus it cannot operate in isolation and depends on international cooperation. In
addition to this, the ICC may only adjudicate upon crimes that have taken place after its
establishment i.e. 1st July 2002.2 Not having retrospective power in this case is another blow
considering how recently the Court has been set up.

Jurisdictional Hurdles

The ICC lacks universal territorial jurisdiction and may only investigate and prosecute
crimes committed within member states, committed by nationals of member states, or in
instances referred by the United Nations Security Council. Although 123 countries recognise
the ICC’s authority, some notable exceptions are India, Russia, China and the United States.
The various non-participants have their own reasons for not ratifying, for example the United
States maintains the position that their own methods of foreign policy are sufficient and that
outside analysis or intervention would lead to American state actors being prosecuted for
certain actions. India in turn opposes the ICC’s stance on nuclear weapons and terrorism and
shares the common apprehension that ratifying will mean giving up some measure of
sovereignty over their own territory as well as judicial system.3 This is a common fear as
countries like Russia and China which are notoriously private about internal affairs and do
not appreciate outside interference or scrutiny naturally shy away from any international body
which will exercise jurisdiction over their own soil. Both China and the US are happy to
assist the ICC in their endeavours outside their own borders.

Another notable non-signatory is Israel, which is currently engaged in a starkly one-sided

conflict with Palestine. While reserving judgement, it is important to note the statistics
2
“Jurisdiction” under “How the Court works” at www.icc-cpt.int – The Court may exercise jurisdiction in a
situation where genocide, crimes against humanity or war crimes were committed on or after 1 July 2002.

3
Clause 2(ii) of PIB Press Releases– A posture of “No First Use” nuclear weapons will only be used in retaliation
against a nuclear attack on Indian territory or on Indian forces anywhere
concerning the conflict. At least 10,055 Palestinians and 1,277 Israelis have been killed by
someone from the other side since 2000.4 The State of Palestine occupies a square footage of
slightly over 6000km squared, while Israel covers an area of nearly 21,000km squared. The
International Criminal Court's chief prosecutor Fatou Bensouda has opened a formal
investigation into the alleged commission of war crimes in Palestinian territory. Israel’s
Prime Minister Benjamin Netanyahu has issued rhetoric that strongly opposes such actions
and says that this amounts to anti-Semitism. Palestine has been providing evidence of war
crimes against their citizens since 2015 and has up until now been ignored or merely
acknowledged rather than acted upon. The Israeli occupation of Palestine is widely regarded
as the longest military invasion of a State in modern history, and general consensus comes to
the conclusion that this is merely a colonizing agenda by Israel rather than a much more
complex issue. The sheer difference in the number of casualties and reports of innocent
civilians in Palestine being shelled with whole towns reduced to rubble in a veritable small-
scale war begs the question of what the Israeli motive really is.

In context of the ICC, it is well within its rights to investigate crimes within Palestinian
territory and considering the amount of collateral damage, the least that can be done is launch
an enquiry into what is causing such devastation. The ICC has the authority to prosecute
those accused of genocide, crimes against humanity and war crimes on the territory of states
party to the Rome Statute, its founding treaty. Israel has never ratified the Rome Statute, but
the court ruled that it had jurisdiction because the United Nations secretary general accepted
the Palestinians' accession to the treaty in 2015. The problem arises with the realization that
even though Israel is suspected of forwarding an elaborately disguised agenda to colonize the
weaker State, an investigation by the ICC has taken decades to begin and still is subject to
hurdles of rhetoric by Israel. The mere fact that a simple investigation is being opposed so
strongly belies the fact that the stronger state is apprehensive of what it may yield. Ms.
Bensouda explained that her office was obliged to act "where a state party has referred a
situation" to it and "it is determined that a reasonable basis exists to commence an
investigation". Israeli military operations in Gaza and the construction of Jewish settlements
in the West Bank - which most of the international community consider illegal under
international law are the primary focus of the prosecution.

4
Source: UN OCHA
In conclusion, the ICC is criticised for not pursuing investigations in western countries with
all their convictions so far being from low income African countries. Its jurisdiction is not
compulsory and while it can indict and prosecute individuals accused of committing war
crimes and issue arrest warrants, it still relies on member states to effectuate those arrests.
These serious limits to authority have the effect of the Court being easily sidestepped or even
ignored by members that have not ratified its power, and this is highly concerning given that
the genre of crime that the Court looks into is not of civil but heinous and criminal nature.

Bibliography:

https://israelpalestinetimeline.org/charts/

https://www.bbc.com/news/world-middle-east-56249927

http://www.legalserviceindia.com/article/l163-International-Criminal-Court-and-Universal-
jurisdiction.html