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Territorial Jurisdiction Of International Criminal Courts

The theme of the paper is about the problem of the Jurisdiction faced by the International Criminal Court and how this problem can be potentially solved. The paper discusses various aspects of the jurisdictional laws given in the Rome statute of ICC and what kind of drawbacks it has that can be improved upon. We are trying to approach this issue with doctrinal approach while trying to analyze the old documents in this paper we are trying to approach a conclusion where hypothetically if ICC would be allowed to have more power in its hands and freedom of Jurisdiction how can that type of scenario will play out.

The ICC is the body that came into existence after the adoption of Rome Statute but why is this body so restricted and why is that there is no actions being taken to do something about it. The paper will mostly highlight the points where things can change and what can work when it comes to functioning of International Criminal Court. Lastly this paper will highlight the fact that why UNSC is not the body to determine what cases are to be taken up by the ICC and ICC itself should have that power of adjudicating cases on his own accord.

International Criminal Court is an international body under United Nations Security Council and is the body to adjudicate cases which are more serious crimes unanimously among member states and cannot deal on national level. This court is first of its kind to take up matters which deal with individuals who are in cases like genocide, war crimes etc.

The international criminal court came from the adoption of the Rome Statue on July 1,2002 by United Nations Security council. International criminal court is one of the most successful achievement of international community for promoting and a big step towards international peace. The Jurisdiction of the court for the most part is temporary, the court is only allowed to intervene when United Nations Security Council permits to do so, and nation parties are willing to let International Criminal Court take up the case.

Aside from this the territorial Jurisdiction is a very hazy of ICC. In the first part of paper, we will focus on the existing jurisdiction norms of ICC and what are their conditions in present scenario. Second part will focus on the problem of Jurisdiction and try to analyze it. Third part will point out possible solutions for the existing problem.

Jurisdiction Of International Criminal Courts

The Jurisdiction of ICC is limited to the Rome Statute and Jurisdiction of international criminal courts spread through some of the articles of the statute. Under article 5 of the statute the Jurisdiction of the court will be limited to the most heinous crimes which are considered by international community as whole, At the current position for type of crime are under the belt of the statute to prosecute which are genocide, crime against humanity, war crimes, the crime of aggression.

Whenever one of these crimes is at large in any state party or more than one, then ICC can take exercise its Jurisdiction and adjudicate that case. The article 12 is also an important provision of the statute which states that the state parties who signed with The Rome Statute have accepted the Jurisdiction of this court for crimes that are mentioned in article 5 of this statute. Article 13 of the statute also provides for the situations when the Jurisdiction can be applied under article 12.

Firstly, if one or more crime from article 5 committed and state party referred to the ICC. Secondly, if one or more crime under article 5 committed is referred to ICC by United Nations Security Council action under Chapter vii of the Charter of the United Nations. Thirdly, Prosecutor under Jurisdiction of ICC can initiate an investigation on basis of article 15. The Jurisdiction of International Criminal court is completely limited to Rome Statute only.

Problem Of Jurisdiction

The problem of Jurisdiction In ICC is very complicated. The main problem lies that its Jurisdiction very limited since only Rome Statute covers its cover jurisdiction which also limits its functioning majorly. The reason behind the making of International Criminal Court was to make international dream a reality but with only party who signed on the Rome Statute can enlist the help of ICC, and even if a state wants both of the parties must consent to that.

The International Criminal Court was formed and only court in the world that can prosecute individuals but with limited Jurisdiction the hands of the court are tied and this way it can't prevent the crime which happen in non-parties. The wave of crime in the globe occurs in various aspects of the world not just which are given under article 5 of the statute.

Like the whole world in current situation is in state of lockdown so the cybercrimes have increased by a lot, since all the transactions or the work which the populous used to do it in their offices have to sit at home and do the work, the crimes occur online does not have any territory per se so it's hard to follow how these type of crimes to be resolved, as not all the countries have proper data protection laws except for few like countries like European union, USA and UK etc. even India does not itself have a proper data protection law, so here ICC could be provided extra territorial Jurisdiction where it can prosecute the perpetrator regardless of which nation state it belongs, this will also help maintain peace in international community.

The Jurisdictional problem of the International Criminal Court does end there even if we talk about the crimes mentioned in article 5 of the Rome Statute then also there are some serious drawbacks to that as if we take the example of thew current situation in Afghanistan where Taliban took over the whole country and imposed a dictatorship of sort and the international community is unable to do anything about this situation, Taliban not only enslave the whole country but also imposing its own laws as it see fits for example all the girls are being forced to get married irrespective of age, in the times we are living now this should not be a thought in mind of the people.

The ICC is coming put into existence with a simple thought to bring justice around the globe whatever the case maybe, but despite that it has been restricted to members of the United Nations Security Council who holds the most power over ICC indirectly, the UNSC under article chapter vii of charter UN and article 13(b) of the statute, the UNSC can point the prosecutor to any direction and ICC has to launch an investigation. This really ties the hands of ICC and gives semi control over the Jurisdiction of this court.

Suggestions For Jurisdiction Problem

The Jurisdiction problem of International criminal court is one that can be solved with some changes, the ICC is meant to establish a system where everything should work in harmony that all the states in the international community are to work with each other in unison with as much as less crime rate possible.

The first and foremost thing is to free ICC from the clutches of United Nations Security Council, all the permanent members for security are developed nations as well as powerhouses on their own. USA used to hold a dominant position in the past, it is still to this day has a big influence in global community, other members like China, UK, France, Russia also hold a big influence over other states, China is a special economic zone, UK used to rule half the world, France is fashion industry of the worlds.

Each of these member states have their individual interests, so their interests hinder the functioning of ICC to achieve the goals they set out personally. Therefore, if International Criminal Court becomes a separate and independent body it can work on its own accord adjudicate matters with more efficiency.

The ICC also should remove the Rome Statute ratification system and signing system where Nation party to the statute and it should establish a more comprehensive and easier to access system where nations even the individual could approach ICC to get their matters resolved without the worry of the nations being the problem.

The International Criminal Court provide immunity to the people who bring the matters to it and become the intermediary between the individual and Nation, so the problem does not escalate. The point behind this type of system is that ICC can have the power to deal with the international issues even if it is coming from individuals or group of individuals. The ICC and even the ICJ should hold the influence over the global community on level where they can work as if the entire world is a nation.

One more option is their which also raised by many authors before in their respective papers and article which is the concept of universal Jurisdiction. This Jurisdiction will provide a court with option of adjudicating any matter in the world irrespective of their boundaries.

The universal Jurisdiction should be provided to the International Criminal Court for the main reason is that it deals with international criminal matters but it being restricted to Rome Statute it cannot take up all criminal matters which can potentially turn into international threats like the situation in Afghanistan.

If ICC had the universal Jurisdiction, it could have just suo motto taken up the matter for investigation and readily adjudicate on that, not only it will help in containing international crime but also give the additional benefit that the cases of this nature or matters will be dealt with swiftly. These cases will even set precedents for the nation state for their national matters which dealt within the court.

The International Criminal Court is a controversial body. The ICC was established to ensure that international peace and justice in global community can be maintained but at the same time it can only focus crimes like genocide, war crimes, crime of aggression, crime against humanity and they do not cover all types of crime in general. The times are changing but ICC is still holding on to the position which had in 1998 when it was officially forming and there not have been so many drastic changes to the statute. In fact, many laws are out there which are not fully updated, and this always led to loopholes which are used by actual offenders to get out their situation unscathed. The Jurisdiction being one of the major components not being updated.

These laws are built to strengthen the global community but the lack attention to these provisions leads to the justice not being served fully. The Jurisdiction of any court is a important element of the system, it decides the power of the court to deal with the issue in front of it. But the International Community is so vast, diverse and independent that even if the ICC want it can't enforce its Jurisdiction properly without violation the natural rights of the individuals. The nations generally don't enlist the aid of ICC because when it comes to their national matters, they prefer to keep it within its territory but that is where can be problem that come in because nation state may never know that it can turn into a international incident.

 The ICC if put in the position like any Supreme Court of nation than it can be a good thing, there is a possibility that it can abuse power but that is less likely, the point is that ICC is could work a lot better if it not exactly but similar position can work a lot better because the biggest thing would be is that its area of working will increase which directly relates to the idea that its Jurisdiction will increase and that is the main goal anyway.

The Permanent members of UNSC will always try to deny and restrict the working of International Criminal Court but the fact is their own personal interests are so important to them that they forget sometimes that there are other countries who are in need of body like ICC to help them pull out of their miserable state, one such state is Afghanistan which is in dire need of help and even the countries like US have pulled out of that when the time came to protect its own interests.

The object of these countries is to dictate the world through shadows while other countries think that they are living in a state of peace. The big thing to take away from all of this is that the world is in state of pandemic and most of the countries are locked away from one another and are not allowing to travel between specific nations it is all the more reason that judicial bodies like these should come together and make the world realize that is has to unite against the threats whenever they strike may be criminal, diseases related or economic.

  1. Johan D van der Vyver, 'Personal and Territorial Jurisdiction of the International Criminal Court' (2000) 14 Emory Int'l L Rev 1
  2. B C Nirmal, 'Jurisdiction of the International Criminal Court' (2003) 3 ISIL YB Int'l Human & Refugee L 116
  3. Marco Roscini, 'The Efforts to Limit the International Criminal Court's Jurisdiction over Nationals of Non-party States: A Comparative Study' (2006) 5 Law & Prac Int'l Cts & Tribunals 495
  4. Hans-Peter Kaul, 'Special Note: The Struggle for the International Criminal Court's Jurisdiction' (1998) 6 Eur J Crime Crim L & Crim Just 364
  5. Ademola Abass, 'The International Criminal Court and Universal Jurisdiction' (2006) 6 Int'l Crim L Rev 349
  6. Nicolaos Strapatsas, 'Universal Jurisdiction and the International Criminal Court' (2002) 29 Man LJ 1
  7. David Scheffer, 'The International Criminal Court: The Challenge of Jurisdiction (1999) 93 Am Soc'y Int'l L Proc 68

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