Introduction

On the 17th of July 1998, 120 nations unanimously voted for the creation of the ICC which on the 11 th
of April 2002 gained the ratification of sixty nations for its founding Rome Statute requisite for its
legal competence under the accepted laws of public international law, which also established its
jurisdiction and legal framework of operation, which became effective as from 2002 after its
ratification. The jurisdiction of the ICC refers to its legal foundation of the operations and jurisdiction
to initiate legal proceedings, as regulated immediately under the Rome Statute of International
Criminal Court and it extends only to four classes of crime which the ICC was created to outlaw.
Author Geoffrey Robertson imparts a synopsis of the jurisdiction of the ICC elucidating these
aforementioned classes over which the court can exercise its authority of jurisdiction and to this day
these guidelines define the construed juridical hegemony of the ICC. He distinguishes these four
categories to be; wars of aggression, war crimes, genocide ant the last which is the major focus of
this essay; crimes against humanity.

(I)Ratione Materiae

The aim of this essay is to give a critical analysis of the ICC’s jurisdiction with regards to the crimes
against humanity which for the first time in history , under the Rome statute, attained an
independent codified recognition of its existence as contradistinguished from war crimes as
recognised by preceding statutes and conventions. For the purpose of this essay we shall only
examine this category of ratione materiae in as far as what it means for the jurisdiction of the
international criminal court in relation to crimes against humanity. This category deals with the
contextual jurisdiction of the court in light of the statutory regulations of the court’s activities and for
the ICC, this juridical authority is derived from the Rome statute. The Rome statute contains within
its instruments an authoritative definition of these type of crimes which does not just cover any type
of brutish, vicious or heinous act. Crimes against humanity are, by this definition, any acts that are
deliberately committed as part of a widespread or systematic attack directed against any civilian or
an identifiable part of a civilian population. It holds that since individuals are also well capable of
committing these outlawed deeds, they still are not recognised as international crimes in
international law and international crimes constitutes a sort of three stage requirement to fit the
category and thus becomes the first definition of the court’s jurisdiction. This type of jurisdiction as
ratione materiae or subject matter. Article 5 of the Rome Statute gives jurisdiction to the court over
crimes against humanity among other crimes and limits the jurisdiction of the ICC to the application
of the ICC's jurisdiction to only this category to examine crimes against humanity.

The ICC attain jurisdiction over crimes against humanity committed as being part of a ‘widespread or
systematic attack directed against any civilian population’ as defined in Article 7 of the Rome Statute
under section 2 dictates that “for the purpose of paragraph one: “ attack directed on any civilian
population means a course of conduct involving the multiple commission of acts referred to in
paragraph one against any civilian population, pursuant to or in furtherance of a state or
organizational policy to commit such an attack “ . This virtually cancels out the relevance of this
particular crime, in the context of the ICC’s jurisdiction, when it’s committed in singularity or even in
multiplicity so long as it fails to identify with any state or organizational policy. This limitation of the
court’s authority is best shown in one of Luis Moreno Ocampo’s works in which he published articles
which assessed on the inability of the ICC to set trial for the United States over allegations of breach
of crimes against humanity in Iraq, such as extermination and inhumane acts causing suffering, and it
was held that there was no relevant information giving proof of the allegations as the crimes did not
qualify as being widespread, or systematic attacks on civilian population and thus the ICC could not
initiate litigations. The issue here was not whether or not the crimes had been committed but rather
a question of whether the ICC had the necessary jurisdiction to adjudicate justice over it in light of
the Rome Statute instruments which bind its jurisdiction

Furthermore, the wording of the Rome Statute requires the crimes against humanity to have been
committed with direct intent and knowledge of the acts. In recent years, the conviction of Mr Bemba
for crimes against humanity committed in CAR, fully elucidates on the procedural jurisdiction of the
court in its exercise over jurisdiction. In the years 2002 to 2003, the accused was found to be guilty of
the crimes of murder, pillaging and rape among others, with all these acts having been committed by
the armed forces that were deployed under his full command. In the ICC, it was had proven beyond
reasonable doubt of that Mr Bemba had been responsible for the incidence of these crimes against
humanity as it had been had established that all these acts had been committed by his troops in full
knowledge and consciousness of their actions. Regarding their illegality, the crimes had satisfied the
required theoretical genre of crimes against humanity as it was also established that they had been
part of a widespread pattern directed against civilians giving the ICC full jurisdiction to adjudicate
over the matter. The court found Mr Bemba to be individually responsible for these crimes
committed by his Armée de Libération du Congo (the "ALC'') troops based on factors which proved
his mental awareness and knowledge of the events rendering him liable to the court’s jurisdiction.
The defendant had solid and effective power over his troops and was up to date with the full report
of the activities of his soldiers but nevertheless failed to take any measures to mitigate or prevent the
occurrence of these outlawed practices. He was also found to have been involved in the decision-
making process and having been in full communication with his troops and having disciplinary
authority over the misdeeds carried out by his men which he ended approving. All these combined
together provided the ICC with the necessary jurisdiction to prosecute and sentence Mr Bemba.

(ii) Ratione Temporis

Jurisdiction of the International Criminal court also arises through the principle of ratione temporis
(i.e. temporal jurisdiction). The authority of the International Criminal Court is not retrospective. This
means that all crimes against humanity committed before the crime came into force are beyond the
legal jurisdiction of the court. Under Article 11 of the Rome Statute, it is provided respectively, that,
‘the court shall have jurisdiction only with respect to crimes committed after the entry into force of
this statute’ and ‘no person shall be criminally responsible under the statute for conduct prior to the
entry into force of the statute. This means that prior to 2002; the ICC could not exercise any
jurisdiction with respect to any allegations of crimes that had been committed before this date.
Moreover, even after its entry into force, the court could not open litigations and prosecute any
individuals for the crimes they had committed before the court had been set up.

(iii) Ratione Loci

territorial jurisdiction is amongst the first subjects one considers in relation to the jurisdiction of the
court. Where the ICC can and cannot exercise its authority is classified as ratione loci (i.e. territorial
jurisdiction), and according to Article 12.2 (a) ''the court shall assume jurisdiction upon crimes
committed on the territory of the state parties, regardless of the nationality of the offender.'' This
last type of jurisdiction is derived from the notion of territoriality. This is a principle of public
international law that dictates that any sovereign state can indict delinquent offences that occur
within its juridical borders. This further goes on to include all the offences of crimes against humanity
committed within the territory of non-state parties who give consent to the jurisdiction of the court
on ad hoc basis. For instance, on the Paris terror attacks, the question of how the responsible
criminals could be prosecuted was raised as the said criminals were not nationals to any party state
of the Rome statute. These Islamic terror attacks of June 2017 were classified as crimes against
humanity under murder and it was argued that the territoriality principle could be used in
apprehending these convicts. The principle requires a certain territorial link to the state in which the
crime had been committed (i.e. France in this case in the area of Paris and Brussels). When narrowly
interpreted, this link exists when the crime involved was perpetrated in the territory of the state
party or by a non-state party actor resident within the state party's territory although the question of
the strength of this link is still on debate amongst scholars. The case of the Paris terror attacks was
further complicated by the fact that a transnational who was an active assassin sent by the Islamic
state has no territory and operates within territories of non-ICC member states, for instance in Iraq,
Turkey, Syria and Libya. However, the fact that the aforementioned crimes occurred within the
territory of a member state gives sufficient jurisdiction to the ICC under public international law as
agreed by the scholars and the sitting judges at the hearing and was based on the notion of objective
territoriality. This principle asserts that a state may assert its juridical supremacy over actions outside
of its borders that effect disadvantageous disservice within the state.

(iv) Ratione Personae

The last of the four defining principles that establish the various circumstances under which the ICC
may exercise its jurisdiction in relation to crimes against humanity is the notion of ratione personae.
Article 12. 2(b) dictates that the court would have juridical competency upon nationals of a state
party and those of non-state parties on ad hoc basis as such when the state in question consents to
the jurisdiction of the court by explicit declaration. The ICC can also attain jurisdiction over a non-
state national by referral, which is when the Security Council refers a case to the ICC under Article 13
(b) by resolution adopted under Chapter VII UN Charter. Under such circumstances then the court
can exercise full juridical competency to all matters relating to the crimes, crimes against humanity
included, without any necessary dissimilarity founded upon bureaucratic capacity. It is also of
paramount importance to mention that the jurisdiction of ICC is complementary to that of the state
in which it operates in. It will have its authority only in cases where the relevant state is unwilling or
incapable of exercise its competency. This then begs the question for the necessity of the ICC when
states already have the capacity to litigate for themselves. Another issue is the universal jurisdiction
of states which imbues them with the capacity to prosecute all international crimes already covered
under the Rome Statute which then confers international criminal jurisdiction over the ICC by the
states. However, to this end we can conclude by a practical evaluation of the success of the ICC in
light of its jurisdiction with regards to crimes against humanity.

Conclusion

In summary, the jurisdiction of the International Criminal Court is quite expansive in relation to
crimes against humanity, although certain limitations do exist which as expected; limit the
competency of the court. Overly, the ICC has jurisdiction over crimes against humanity on the basis
of ratione loci, ratione personae, ratione materiae and ratione temporis. These clarify the jurisdiction
of the ICC with respect to its extend and limitations.

Reference

-The Legislative History Of The International Criminal Court: An Article-by-Article Evolution Of

Statute.

M. Cherif Bassiouni

-Rome Statute Of The International Criminal Court Articles

-ICC press release, Mali

-ICC press release, Uganda

-European Journal of International Law

-Harvard Article publications

-International Criminal Court- Situation in the Central African Republic Situation in the Central African
Republic the Prosecutor v. Jean-Pie ICC-01/05-01/08