Articles 5 through 20 of the Rome Statute govern the jurisdiction of the ICC. There are four major factors to consider when assessing the court’s jurisdiction. First, the specific crime committed has to fit the definition of one of the four crimes outlined in the statute. Second, the court must be able to assert territorial jurisdiction over the accused person. Third, the crime in question must have been committed within the temporal jurisdiction of the court. Finally, there must be no option of bringing the trial in a competent national court.
Article 5 lists specific crimes over which the ICC with have jurisdiction:
The jurisdiction of the Court shall be 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.
While Article 5 gives the ICC the power to prosecute anyone who commits any of these crimes, the crimes in question must still fit the specific definitions laid out by the Rome Statute.
“Genocide” is defined in Article 6 of the Rome Statute:
For the purpose of this statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group;(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group
To exercise jurisdiction over someone suspected of committing genocide, their actions must conform to this definition. The intent requirement requires any of the mentioned actions to be committed with the specific intent of destroying any of the protected types of groups listed. In addition, an important consideration is what types of groups are protected under the criminal heading of “genocide.” The statute specifically mentions ethnic, racial and religious groups, but leaves out designations such as political groups. A good example of this distinction can be found in the case against Omar al-Bashir.
The charge of crimes against humanity, governed by Article 7, includes many broad categories of crimes, including murder, extermination, enslavement, deportation, imprisonment, torture, rape, forced disappearance and apartheid. The specific definitions of each crime can be found in Article 7(2) (b)-(e). These actions must be “directed against any civilian population” and must constitute a “widespread or systemic attack.” According to the statute, “‘directed against any civilian population” means “a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.” If the accused’s actions fit any of these categories, the ICC can exercise jurisdiction, such as when Libyan autocrat Muammar Gaddafi was charged with crimes against humanity in May 2011.
War crimes, which are defined by Article 8, include a wide range of different crimes. They are broken up into three different categories. If an individual’s actions fall into any one of these categories, he or she may be subject to ICC jurisdiction.
The first war crime category encompasses “grave breaches” of the Geneva Conventions of 1949. Such breaches include: willful killing, torture and inhumane treatment, extensive destruction of property, forcing a prisoner of war to serve the opposite side, unlawful deportation and the taking of hostages.
The second war crime category includes 26 crimes adopted from international custom in armed conflict. They include intentionally directing attacks against civilian populations, killing or wounding a combatant who has surrendered, pillaging a town or place, employing poison or poisoned weapons and conscripting or enlisting children under the age of fifteen years into the national armed forces. These offenses are limited to actions taken during an international armed conflict.
The third war crime category, which is limited to actions during “armed conflicts not of an international character,” is based on accepted customs during an internal armed conflict. These offenses are similar to the second category and include: intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, ordering the displacement of civilian populations, killing or wounding treacherously a combatant and subjecting persons of another party to physical mutilation or to medical or scientific experiments. This section “applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.” This category would include situations such as civil wars. A good example of this type of case is the trial of former Congolese militia leader Thomas Lubanga Dyilo, who was found guilty in March 2012 in the ICC’s first verdict.
The crime of aggression, at first, was not given an official definition in the Rome Statute and, thus, did not give the court a basis for jurisdiction. In order to enter into force, the signatories needed to agree on a definition of the crime and pass an amendment to the Rome Statute in accordance with Articles 121 and 123. The signatories eventually came to an agreement and passed a definition in 2010. They agreed that a crime of aggression [PDF] “means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” The amendment also clearly defined the elements of the crime:
(1) The perpetrator planned, prepared, initiated or executed an act of aggression. (2) The perpetrator was a person in a position effectively to exercise control over or to direct the political or military action of the State, which committed the act of aggression. (3) The act of aggression – the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations – was committed. (4) The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations. (5) The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations. (6) The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations.
This provision will not enter into force until 2017 due to the Rome Statute’s amendment procedures.
The nature of these offenses puts them within the scope and specific goals of the court itself, but there are several restrictions preventing the court from exercising universal jurisdiction in all instances of these crimes. The place in which the crime occurred, as well as where the accused person is from, are important considerations when determining jurisdiction. Article 12 details the specifics of this restriction by establishing that all nations which are parties to the Rome Statute are subject to ICC jurisdiction. If the state where the crimes took place is a party to the statute, or if they took place on board a vessel registered in that state, the ICC may exercise jurisdiction. Further, if the accused is a national of a state that is a party, the ICC may exercise jurisdiction. The statute also provides for states to accept jurisdiction without being a party. However, this provision has proven controversial. While considering jurisdiction over a war crimes case in Palestine, the ICC determined that Palestine did not meet the definition of a state according to Article 12, and thus is not within the court’s jurisdiction even though the Palestinian Prime Minister requested that the investigation take place.
In addition, according to Article 13, the court may only exercise jurisdiction over a situation if
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
This essentially means that the prosecutor must properly initiate the investigation in order to exercise jurisdiction over a particular situation.
The ICC may only exercise jurisdiction over crimes that were committed after the Rome Statute entered into force. This means the court cannot retroactively punish offenses that occurred before the court actually existed. This limitation is the reason the court determined it had no jurisdiction over the case against Saddam Hussein in 2005 for crimes he allegedly committed in 1982.
The court, according to Article 17, may only exercise jurisdiction if the court of an individual state is “unwilling or unable to genuinely carry out the investigation or prosecution.” There are three factors the court must consider before determining if a state is “unwilling”:
(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
One of these factors must exist to make this determination. A state is determined to be “unable to carry out the investigation or prosecution” if the court finds “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.” The controversy that can result from this determination can be seen in the trial of high-ranking Kenyan officials, known as the “Ocampo Six,” after the ICC determined Kenya was “unwilling” to investigate the situation completely.