Captain Bridgeport and the Maze of Icc Jurisdiction

• Citation: Vol. 10 No. 3
• Publication year: 2007

Gonzaga Journal of International Law Volume 10 - Issue 3 (2006-2007) 10 Gonz. J. Int'l L. 349 (2007)

Captain Bridgeport and The Maze of ICC Jurisdiction

Lance Phillip Timbreza*

"There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstances."

- Benjamin B. Ferencz

Cite as: Lance Phillip Timbreza, Captain Bridgeport and the Maze of ICC Jurisdiction, 10 Gonz. J. Int'l L. 349 (2007), available at http://www.gonzagajil.org.

I. Introduction............................................................................. 349

II. The Establishment of the International Criminal Court....... 350

III. The Jurisdiction of the International Criminal Court.......... 352

A. Territorial Jurisdiction........................................................ 353

B. Objective Territoriality Jurisdiction....................................... 355

C. Command Responsibility..................................................... 358

D. Nationality Jurisdiction....................................................... 362

E. Universal Jurisdiction.......................................................... 363

F. Rationi Temporalis............................................................. 367

IV. Conclusion............................................................................... 369

I. Introduction

The International Criminal Court (ICC) was established with the purpose of ending impunity and ensuring the effective prosecution of war crimes, crimes against humanity, genocide, and crimes of aggression.[1] Benjamin B. Ferencz, a former Nuremburg prosecutor has said, "There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstances."[2] That Court is the International Criminal Court.

Kofi Annan, Secretary General of the United Nations, has noted, "In the prospect of an international criminal court lies the promise of universal justice. . . . Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished."[3] However, in order to successfully punish, prosecute, and end impunity, the ICC must have the jurisdiction to prosecute those who perpetrate these crimes regardless of where they are found.

The jurisdiction of the ICC is limited by the Rome Statute and was one of the "most delicate issues in the creation of the International Criminal Court."[4] The International Criminal Court was established with the idea of consent and, for that reason, it seemed that jurisdiction should be consistent with this notion.[5] As a result, the ICC's jurisdiction was defined with regards to "subject matter (jurisdiction ratione materiae), time (jurisdiction ratione tempris), space (jurisdiction ratione loci) as well as over individuals (jurisdiction ratione personae)."[6] This paper sets out to examine how the limited jurisdiction may actually be applied and, what, if any, affect the jurisdiction may have beyond its intended affect. First, here follows a brief history of the establishment of the Court and the Rome Statute.

II. The Establishment of the International Criminal Court

The Court was established and based, in part, upon previous ad hoc and international tribunals, like the Nuremburg Tribunals.[7] The work to establish and draft a statute for the ICC began in 1994.[8] In June of 1998, the Rome Conference began in Rome, Italy, in which the first draft of the Rome Statute was considered.[9] "One by one, the provisions of the statute were adopted 'by general agreement' in the working groups . . . without a vote."[10] On July 17, 1998, the Rome Statute was adopted by the international community.[11]

On July 1, 2002, the Rome Statute came into force, the date was sixty days after the sixtieth state had ratified the Rome Statute.[12] The Rome Statute has been in effect for nearly five years, but the Court has yet to hear a case.[13] The Court, itself, predicts that it will take some time for a case to come before it, as the jurisdictional conditions and requirements of the Rome Statute would first have to be met.[14] The International Criminal Court is an independent body and separate from the United Nations.[15]

One of the conditions that must be met before the ICC can exercise jurisdiction is complementarity, the idea that it would be complementary to national courts.[16] The concept of complementarity is as follows: A case is not admissible before the ICC if it is being "investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution."[17] Furthermore, if a State with jurisdiction has decided not to prosecute, the ICC may assert its jurisdiction.[18] The doctrine of complementarity applies with regard to State Parties to the Rome Statute, being those States that have consented to the Court's jurisdiction.

Unwillingness and inability are defined in the Statute.[19] In looking at unwillingness, the Court considers what national proceedings are taking place and whether the accused is being shielded from prosecution, whether there is an unjustified delay in the proceedings "inconsistent with an intent to bring the person concerned to justice," and, finally, whether the proceedings are being conducted in an impartial and independent manner, inconsistent "with an intent to bring the person concerned to justice."[20]

In determining inability, the Court considers 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 . . . to carry out" prosecution.[21]

The Court may exercise its jurisdiction in three cases: (1) the State is unwilling to prosecute, (2) the State is unable to prosecute, or (3) the State has decided not to prosecute.[22] The Court may also assert its jurisdiction through a referral from the Security Council or through the consent of a State.[23]

Complementarity is an important and necessary hurdle for the ICC to cross, but it is not the focus of this paper. For each of the jurisdictional analyses and hypothetical situations that appear within this paper, assume that complementarity is not at issue. Thus, preface each hypothetical with the assumption that the State Party or a State Party has decided not to prosecute, so complementarity is not at issue and the Court may proceed with prosecution.[24]

The Rome Statute is clear, in many areas, but it is also vague. The jurisdictional elements may have been laid out in the statute, but there are many questions as to what the actual application of the Rome Statute in certain specific circumstances may be. Due to the fact that the Court has yet to hear any cases, most of these jurisdictional issues are unresolved. It is also unclear, in actuality, how the Court may handle specific jurisdictional questions. For that reason, the role of the ICC, its authority under its own statute, and how it may proceed are all hypothetical questions with hypothetical answers.

However, through an analysis based upon customary international law, traditional domestic statutory approaches, and the approaches taken by various international tribunals, this paper will discuss and attempt to resolve how the Court might address certain jurisdictional issues.

III. The Jurisdiction of the International Criminal Court

This paper is based upon a hypothetical character, Captain Bridgeport, in a number of hypothetical situations. Where possible, these hypothetical situations have been derived from actual cases from actual tribunals, in an attempt to shed light on how the international community has answered such challenges in the past and how they might do so in the future. The specific focus is jurisdiction, namely: territorial jurisdiction, objective territoriality jurisdiction, command responsibility, rationi temporalis, nationality jurisdiction, and universal jurisdiction, and how the International Criminal Court may assert its authority within the scope of the Rome Statute under given circumstances.

A. Territorial Jurisdiction

A State has jurisdiction over acts committed within its territory.[25] This is a basic principle of both domestic and international law.[26] "The 'territorial principle' reflects the global community's recognition that without the power to control acts or things located in its territory, a [S]tate could not exist."[27]

Hypothetical A[28]: Captain Bridgeport, a citizen of Non-Party State, is visiting Party State. While there, Captain Bridgeport commits gross atrocities amounting to crimes against humanity, which are crimes under Article 7 of the Rome Statute. Both states agree that the allegations, if true, would amount to war crimes.

Party State and Non-Party State are signatories to the Vienna Convention on the Law on Treaties, but only Party State is a signatory to the Rome Statute.

At the Rome Convention, Non-Party State's representative to the Convention said, "We, the citizens of Non-Party State do not wish to be bound by the ICC or the Rome Statute. We do not recognize the jurisdiction of this Court. We consciously and purposefully withhold our...