Context at the International Criminal Court

Abstract

The evolution of international criminal law leading to a permanent International Criminal Court has endeavoured to assert jurisdiction over the most serious crimes of international concern. However, the increasingly cross-border nature of modern conflict perpetrated by quasi-governmental and rebel forces in addition to the lack of universality in adopting the Rome Statute have created jurisdictional gaps where attacks that ought to fall within the ICC’s jurisdiction do not. In this article, I propose a contextual approach to jurisdiction normatively to be adopted by the Court’s Office of the Prosecutor and Pre-Trial Chamber in investigating and eventually prosecuting crimes under the Rome Statute. Under this contextual approach, I contend that both the Prosecutor and Pre-Trial Chamber are able to consider evidence outside the traditional notions of territorial and temporal jurisdiction to conceptualize a conflict in its entirety. The totality of cross-border and inter-temporal evidence should be considered when deciding whether to investigate attacks that the Prosecutor has a reasonable basis to believe fall within the Court’s jurisdiction. Adopting a contextual approach honors the Rome Statute’s current procedural and textual framework. Procedurally, the multi-step jurisdictional framework, the “Funnel Approach,” — beginning with the preliminary examination of a situation and proceeding to the arrest warrant for an accused — provides flexibility to admit extra-jurisdictional evidence. Textually, the open-ended ‘gravity’ threshold does not limit the Prosecutor to considering evidence within the Rome Statute’s territorial or temporal limitations. The argument for considering an expansive contextual approach when deciding whether to assert jurisdiction was recently put forth by Comoros pursuant to the Gaza Flotilla Raid. Nonetheless, there are examples in both the ad hoc tribunals and the ICC of information considered outside the Rome Statute’s strict jurisdictional limitations. By adopting a policy of expansive jurisdiction at the preliminary examination and investigation stages, the Court will aptly fill the impunity gap. This approach is not without its limitations and potential criticisms including a conflict with state sovereignty, a potential tendency to (further) politicize the Prosecutor’s role and that of the Pre-Trial Chamber and a penchant for ambiguous jurisdictional determinations.