Chapter 14: The Permanent International Criminal Court
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criminal jurisdiction over offences committed by its personnel on the territory of the
host State—but does in no way grant a licence for impunity, as this would violate
the object and purpose of the ICC Statute.
Of even more limitation to the ICC prosecutor’s competence, and strong US signal
of opposition to the court’s aim and purpose, was the adoption of Security Council
Resolution 1244, on 12 July 2002. The short history of this Resolution can be traced
to 19 June 2002 when the US threatened to veto the continuation of the mandate of
the UN Mission in Bosnia and Herzegovina (UNMIBH), because US troops could
potentially be prosecuted by the ICC under Art 12(2) of its Statute.
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Following several
Council meetings concerning the future of UNMIBH, the Council decided to adopt
Resolution 1244 under Chapter VII of the UN Charter, para 1 of which requested
that, in accordance with Art 16 of the ICC Statute:
If a case arises involving current or former officials or personnel from a contributing
State not a party to the Rome Statute over acts or omissions relating to a United
Nations established or authorized operation, [then the ICC] shall for a twelve-month
period starting 1 July 2002 not commence or proceed with investigation or
prosecution of any such case, unless the Security Council decides otherwise.
The Resolution went on to say that such deferral may be extended for further twelve
month periods by the Council, and that UN Member States must take no action
inconsistent with para 1 and their international obligations. This Resolution is
worrying in the sense that, besides the impunity it grants, it implies that the
application of justice constituted under the Rome Statute represents a threat to
international peace and security!
One of the safeguards that should alleviate some of the mistrust and apprehension
is the principle of complementarity, which is found in the Statute’s preamble and its
Art 1, which establishes that the court may assume jurisdiction only when national
legal systems are genuinely unable or unwilling to do so, or where an accused has
already been tried for the same offence.
31
In determining unwillingness in a particular
case, the court shall consider whether national proceedings are intended to shield
the accused or avoid impartial prosecution.
32
The establishment of truth commissions
whose purpose is to avoid criminal proceedings would generally be incompatible
with a party’s obligation to diligently prosecute under the ICC Statute. The granting
of amnesties in accordance with national law does not release a person from criminal
responsibility under international law. A determination by the court of either
shielding or lack of impartiality can be challenged by the accused, the State which
has commenced or completed investigation of the case, or a State from which
acceptance of jurisdiction is required under Art 12(2).
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Thus, unlike the ICTY and
International Criminal Tribunal for Rwanda (ICTR), national courts enjoy primacy
in cases of concurrent jurisdiction with the ICC, but, clearly, this is neither unlimited
nor without challenge from the prosecutor and other States with concurrent
jurisdiction or custody of the accused. In fact, there is no requirement that the
custodial State should even consent to the jurisdiction of the ICC where an order for
30
UN Press Release SC/7430 (21 June 2002).
31
ICC Statute, Art 17(1).
32
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