The recent war in Iraq has provoked worldwide reactions calling upon states to fully respect their international legal obligations stemming from the UN Charter, the Geneva Conventions and the Rome Statute for the International Criminal Court. Hereafter follows a brief legal analysis on how would the ICC jurisdiction functions over crimes ´potentially´ committed in Iraq.
Non-retroactivity:
The ICC does not have jurisdiction over crimes committed before the 1st July 2002, the date the Rome Statute entered into force.
Crimes within the jurisdiction of the ICC:
The ICC’s jurisdiction encompasses crimes of genocide, war crimes and crimes against humanity. In theory, in the case of the war in Iraq, the Court could consider these three crimes. A fourth crime, the crime of aggression, is also listed in the Rome Statute, in article 5 (d). Nevertheless, this crime needs to be defined first before the ICC can have jurisdiction over it. States Parties were not able to agree on its definition before the Rome Conference in July 1998 adopted the final text of the Rome Statute. The States Parties of the Rome Statute must formally adopt a legal definition and agree on the conditions under which the Court shall exercise its jurisdiction with respect to this crime. This could occur in 2009, at the first Review Conference of the Rome Statute. Thus, the ICC would be unable to consider any charge of aggression against Iraq.
Principle of complementarity:
According to the Rome Statute, national jurisdictions have primacy over the jurisdiction of the ICC. Thus, the ICC will only intervene if the State Party is unwilling or unable to investigate, prosecute and trial an individual who allegedly committed crimes foreseen in the Rome Statute.
Triggering mechanisms to initiate a case before the ICC:
1. If the Prosecutor or any State Party refers a crime to the ICC, one of the following preconditions shall apply:
a. Territoriality: The ICC has jurisdiction over crimes committed in the territory of States Parties regardless of the nationality of the perpetrator.
b . Nationality of the accused: The ICC has jurisdiction over crimes committed by individuals who are nationals of States Parties, regardless of where the crime is committed.
2. The referral and acceptance of the jurisdiction of the ICC by a Non State Party: Non States Parties can refer a certain situation to the ICC and “accept the exercise of the jurisdiction of the Court with respect to the crime in question“, in accordance to Article 12 paragraph 3.
3. The Security Council referral to the ICC: The Security Council can, acting under Chapter VII (the five permanent members must agree) of the Charter of the United Nations, refer a situation in which one or more crimes appears to have been committed. No prerequisite of territoriality or nationality is necessary.
Source: European Newsletter # 31- Coalition for the International Criminal Court (PDF format)
