JURISDICTION OF THE CRIMINAL INTERNATIONAL COURT

Introduction
World War I was to be “the war to end all wars,” but even its horrors were not enough to
compel post-conflict justice.1 A relatively short time later, the world again found itself
embroiled in another conflict of even greater proportions. After the atrocities of World War II
were revealed, the international community embarked on the first systematic experience in
post-conflict justice.2 After that, the international community promised “never again,” but
that promise was never kept.3 Since then, more than 200 international, regional, and internal
armed conflicts have occurred.4 These conflicts, along with human rights violations
perpetrated by repressive regimes, have resulted in casualties that have resulted in the death
of millions.5 The harmful consequences are almost beyond comprehension when viewed
cumulatively, but these stark realities must now be faced and addressed.6

The Criminal international Court was established by the Rome Statute of the International
Court. The State Parties to the statute being Conscious that all peoples are united by common
bonds, their cultures pieced together in a shared heritage, and concerned that this delicate
mosaic may be shattered at any time; Mindful that during this century millions of children,
women, and men have been victims of unimaginable atrocities that deeply shock the
conscious of humanity; Recognizing that such grave crimes threaten the peace, security and
well-being of the world; Affirming that the most serious of concern to the international
community as a whole must not go unpunished and that their effective prosecution must be
ensured by taking by taking7 measures at the national level and by enhancing international
cooperation; Determined to put an end to impunity for the perpetrators of these crimes and
thus to contribute to the prevention of such crimes; Recalling that it is the duty of evey State
to excercise its criminal jurisdiction over those responsible for international crimes;
Reaffirming the Purposes and Principles of the Charter of the United Nations, and in
particular that all States Shall refrain from the threat or use of force against the territorial
integrity or political independence of any State, or in any other manner inconsistent with the
Purposes of the United Nations; Emphasizing in this connection that nothing in this Statute
shall be taken to as authorizing any State Party to intervene in an armed conflict or in the
internal affairs of any State; Determined to thes ends and for the sake of the present and
future generations, to establish an independent permanent International Criminal Court in
relationship with the United Nations system, with jurisdiction over the most serious crimes of
concern to the international community as a whole , Emphasizing that the International
Criminal Court established under this Statute shall be complementary to national criminal

1
Bassiouni, M. Cherif. Introduction to International Criminal Law, BRILL, 2012.
2
Ibid.
3
Bassiouni M. Cherif, Post-Conflict Justice (2002); Also, Supra. note 1.
4
Bassiouni M. Cherif, Searching for Peace and Achieving Justice, 59 Law & Contemp. Probs. 9, 10 (1996); See
also, Bassiouni, M. Cherif. Introduction to International Criminal Law, BRILL, 2012.
5
Supra. note 1.
6
Ibid.
7
Rome Statute of the International Criminal Court 1998, Preamble
juridictions, Resolved to guarantee lasting respect for and the enforcement of International
justice have agreed as follows:8
However, despite being long-since established as a means to bring to justice the perpetrators
of internationally heinous crimes, it can be argued that the jurisdiction of the ICC, though
seemingly comprehensive, is in reality quite limited in certain aspect. To this end, this paper
will seek to analyze the jurisdiction of ICC, the existing structure for initiating the ICC’s
jurisdiction and ascertain whether it is indeed limited.
Crimes within the jurisdiction of the Court
The juridiction of the Court is 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.9
Jurisdiction ratione temporis
The Court has jurisdiction only with respect to crimes commited after the entry into force the
Rome Statute. If a State becomes a party to the Rome Statute after its entry into force, the
Court may excercise its jurisdiction only with respect to crimes commited after entry into
force of the Rome Statute for that State, unless the State has declared acceptance of the
jurisdiction of the Court.10
Age
The court has no jurisdiction over any person who was under the age of 18 at the time of the
alleged commission of a crime. Article 26 of the Rome Statute of the International Criminal
Court states “The court shall have no jurisdiction over any person who was under the age of
18 at the time of the alleged commission of a crime.”
Preconditions to the excercise of jurisdiction
A state that becomes a Party to the Rome Statute thereby accepts the jurisdiction of the Court
with respect to the crimes referred to in Article 5.11
In the case of article 13, paragraph (a) or (c), the Court may excercise its jurisdiction if one or
more of the following States are Parties to the Rome Statute or have accepted the jurisdiction
of the Court in accordance with pargraph 3:
(a) The State on the territory of which te conduct in question occured or, if the crime was
commited on board a vessel or aircraft, the State of registration of that vessel or
aircraft;12
(b) The State of which the person accused of the crime is a national.13
If the acceptance of a State which is not a Party to the Rome Statute is required under
paragraph 2, that State may, by declaration lodged with the Registrar, accept the execercise 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 of the
Rome Statute.14 . In this regard the court’s jurisdiction is dependent on its law’s ratification
8
Rome Statute of the International Criminal Court 1998, Preamble
9
Rome Statute of the International Criminal Court 1998, Art 5
10
Rome Statute of the International Criminal Court 1998, Art 11
11
Rome Statute of the International Criminal Court 1998, Art 12 (1)
12
Rome Statute of the International Criminal Court 1998, Art 12 (2)(a)
13
Rome Statute of the International Criminal Court 1998, Art 12 (2)(b)
14
Rome Statute of the International Criminal Court 1998, Art 12(3)
by states. For states that don’t, they can accept ICC’s jurisdiction to specific investigations
where their acceptance is voluntary on the state.

Back in March 2019,it was reported that the US has denied visas to members of the
International Criminal Court (ICC), which was investigating war crimes that were alleged to
have been committed by the US armed forces and the CIA in Afghanistan. Although the ICC
could legitimately indict US officials for crimes committed on the territory of a State Party,
the Court’s ability to do so depended heavily on its ability to properly investigate the alleged
crimes. In terms of investigation and prosecution, the Rome Statute imposes an obligation on
State Parties to co-operate with the ICC. No such duty, however, exists in respect of non-
State parties, meaning that the US was under no obligation to assist. Not only did the US fail
to assist the ICC, but it actively obstructed its efforts by refusing visas for ICC staff,
and claimed that the ICC was an “illegitimate court” which posed a “threat…to American
national sovereignty”.
In 2010, the ICC opened an investigation into violence that killed more than one
thousand people following Kenya’s 2007 presidential election. It eventually named
Kenyatta and five other major political figures as suspects of crimes against humanity.
The investigation continued as Kenyatta won the presidency in 2013, with fellow ICC
suspect William Ruto as his running mate. The court dropped the charges against
Kenyatta the following year and those against Ruto in 2016, with the prosecutor’s office
claiming that the Kenyan government was uncooperative and that witness tampering had
undermined the case.
Excercise of jurisdiction
The Court may excercise its jurisdiction with respect to a crime reffered to in article 5 of the
Rome Statute in accordance with the provisions of the Statute if:15
(a) A situation in which one or more of such crimes appears to have been committed is
reffered to the prosecutor by a State party in accordance with article 14;16
(b) A situation in which one or more of such crimes appear to have been commited is
reffered to the Prosecutor by the Security Council acting under Chapter VII of the
Charter of the United Nations;17 or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance
with article 15 of the Rome Statute.18
The Court my excercise over the crime of aggression(State refferal, proprio motu)
in accordance with article 13, paragraphs (a) and (c), subject to the provisions of article 15
bis.19The Court may excercise jurisdiction only with respect to crimes of aggression
commited one year after ratification or acceptance of the ammendments by thirty States
Parties.20 The Court may, in accordance with article 12 of the Rome Statute, excercise
jurisdiction over a crime of aggression commited by a State Party, unless that State Party has
15
Rome Statute of the International Criminal Court 1998, Art 13
16
Rome Statute of the International Criminal Court 1998, Art 13(a)
17
Rome Statute of the International Criminal Court 1998, Art 13(b)
18
Rome Statute of the International Criminal Court 1998, Art 13(c)
19
Rome Statute of the International Criminal Court 1998, Art 15 bis (1)
20
Rome Statute of the International Criminal Court 1998, Art 15 bis (2)
previously declared that it does not accept such jurisdiction by lodging a declaration with the
Registrar. The withdrawal of such a declaration may be effected at any time and shall be
considered by the State Party within three years.21
In respect of a State that is not a party to the Rome Statute, the Court shall not excercise its
jurisdiction over the crime of aggression when committed by that State’s nationals or on its
territory22.
Complimentary Jurisdiction
When the Rome Statute was negotiated, it was clear that the model of primacy adopted for
the ICTY and ICTR was not a realistic option for a permanent international criminal court. 23
States were prepared to tolerate interference with their sovereignty for the purposes of an ad
hoc, temporary court established by the Security Council as part of its mandate for
maintaining international peace and security.24 However, they were not prepared to do so on a
permanent basis, for significant crimes, in particular the crime of aggression, and for a court
to be established by a treaty rather than by a Security Council resolution.25
States settled instead on the principle of complementarity; that is, the notion that international
proceedings should complement, but not replace, national proceedings.26 Complementarity
requires that national courts will bear the primary responsibility for enforcement of
international criminal law. Accordingly, the ICC is to function as a court of last resort, where
accountability cannot be secured at the national level.27 In delineating the jurisdiction of the
ICC from that of states, in particular national courts, the principle of complementarity is
perhaps the key feature of the Rome Statute.28 The principle was described by several states
during the negotiation process ‘as an essential element in the establishment of an
international criminal court’.29
The principle of complementarity is reflected in the preamble to the Rome Statute, which
recalls that ‘it is the duty of every state to exercise its criminal jurisdiction over those
responsible for international crimes’, and also in article 1, which provides that the ICC ‘shall
be complementary to national criminal jurisdictions’. Complementarity is considered as an
issue of admissibility under article 17 of the Rome Statute, rather than as a question of
jurisdiction.30 Thus, even though the Court may otherwise have jurisdiction in a particular
situation, the Court will be unable to exercise that jurisdiction other than in certain
21
Rome Statute of the International Criminal Court 1998, Art 15 bis (3)
22
Rome Statute of the International Criminal Court 1998, Art 15 bis (4)
23
B Brown, ‘Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International
Criminal Tribunals’ (1998) 23 Yale Journal of International Law 383.
24
Supra. note 11
25
J Holmes, ‘The Principle of Complementarity’ in R Lee (eds), The International Criminal Court: The Making
of the Rome Statute: Issues, Negotiation, Results (Leiden, Martinus Nijhoff Publishers, 1999).
26
M El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and
Practice (Leiden, Martinus Nijhoff Publishers, 2008).
27
M Benzing, ‘The Complementarity Regime of the International Criminal Court: International Criminal Justice
between State Sovereignty and the Fight against Impunity’ (2003) 7 Max Planck Yearbook of United Nations
Law 591, 599.
28
C Stahn, ‘Complementarity: A Tale of Two Notions’ (2008) 19 Criminal Law Forum 87, 96; M Bergsmo,
‘Occasional Remarks on Certain State Concerns about the Jurisdictional Reach of the International Criminal
Court, and Their Possible Implications for the Relationship between the Court and the Security Council’ (2000)
Nordic Journal of International Law 69.
29
Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, GAOR 50th
Session, Supplement No 2 (1995) UN Doc A/50/22, para 29.
circumstances.31 Article 17 of the Rome Statute retains a role for the ICC where: (1) the state
has not taken action; (2) the case has been investigated or prosecuted by a state, but the state
is ‘unwilling or unable genuinely to carry out the investigation or prosecution’; or (3) the case
has been investigated by a state and a decision not to prosecute the accused has been made,
but that decision ‘resulted from the unwillingness or inability of the State genuinely to
prosecute’.
The drafters of the Rome Statute provided limited guidance as to when a state may be
considered ‘unwilling or unable’.32 In determining inability in a particular case, the Court is
required to 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’.33 Complementarity places the
ICC in a limited supervisory role, in relation to ‘irresponsible states that refuse to prosecute
nationals who commit heinous inter national crimes’ but balances that power ‘against the
sovereign right of states to prosecute their own nationals without external interference’. 34
CONCLUSION
Proceeding from all the above, it becomes clear that despite a universal sentiment by States
for accountability for the perpetrators of atrocities, it is these very States that actively limit
the role to be played by the ICC. Despite having the mandate to prosecute certain crimes, the
procedure followed by the ICC is agitatingly slow and seems to be greatly hampered by
international politics which take the form of restricting provisions in the Rome Statute.
To this end, at best the ICC is operating with one arm tied behind its back in the fight against
international crimes, at its worst the ICC is simply another brand of international posturing
that only serves to seemingly portray international remorse for past atrocities while
safeguarding the interests of States and is yet another tool used in international politics.

30
Schabas, An Introduction to the International Criminal Court; A discussion of the difference between
jurisdiction and admissibility in the Rome Statute.
31
Supra. note 11.
32
Ibid.
33
Supra. note 11.; Rome Statute Art. 17 (3)
34
M Newton, The Complementary Conundrum: Are We Watching Evolution or Evisceration?’ (2010) 8 Santa
Clara Journal of International Law 115, 127.