The Preconditions for the International Criminal Court to Exercise its Jurisdiction

Abstract

The present chapter analyses the preconditions for the exercise of the International Criminal Court’s (ICC) jurisdiction. These are tightly linked to the elements of time (temporal jurisdiction or jurisdiction ratione temporis), geography (territorial jurisdiction or jurisdiction ratione loci) and person (jurisdiction ratione personae) pursuant to the active personality principle. It is of course well-known that, pursuant to Article 126 ICCRSt, the ICC’s temporal jurisdiction was established on “the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations”, which made 1 July 2002 its starting date. The principle of territorial jurisdiction that is reflected in Article 12(2)(a) ICCRSt is deeply rooted in international law, as well as in the legal orders of almost all States. In other words, it is consistently accepted that a State has indisputable jurisdiction over all criminal offences committed on its territory, according to the principle of state sovereignty. This can be easily ascertained from a significant number of international conventions and bilateral extradition agreements. Nonetheless, the ‘Achilles’ heel’ of Article 12(2) ICCRSt appears to lie in the establishment of the ICC’s jurisdiction almost exclusively on two pillars: the principle of territorial jurisdiction and the principle of active personality, which determines the Court’s jurisdiction based on the offender’s nationality. Moreover, the chapter analyses the intriguing issue of the ICC’s contested territorial jurisdiction, namely with regard to excluded, occupied and disputed territories. Finally, the chapter focuses on the comparative analysis and interpretation of the critical terms ‘crime’, ‘case’ and ‘situation’, while commenting on the ad hoc acceptance of the ICC’s jurisdiction by a state non-party to the Rome Statute.