Chapter 14: The Permanent International Criminal Court
377
non-renewable nine year term by the ASP.
17
Unlike the ad hoc tribunals, there is a
requirement that at least nine judges possess competency in criminal proceedings
while a minimum of five judges must be experts in relevant areas of international
law, such as international humanitarian law and human rights. Moreover, both the
pre-trial and trial chambers are to be composed predominately of judges with criminal
law experience.
18
Under Art 43(4) the judges are also empowered to elect the registrar
for a five year term, whose office is open to re-election only once. As will be shown
below the prosecutor is an independent organ of the Court. He or she may designate
appropriate deputy prosecutors whose candidacy must be approved by the ASP
They shall serve on a full time basis.
19
The ICC enjoys subject matter jurisdiction over four core offences: genocide, crimes
against humanity, war crimes and aggression.
20
No consensus was reached during
the Rome diplomatic conference on a definition for the crime of aggression, which
will remain dormant until such time as theASP approves a definition that is consistent
with the Charter of the UN. Before we proceed to examine these offences in detail,
the regulation of the court’s jurisdiction and admissibility procedures will be first
analysed.
14.2 JURISDICTION AND ADMISSIBILITY
In accordance with Art 34 of the 1969 Vienna Convention on the Law of Treaties,
21
international agreements are capable of binding only contracting parties. They do
not bind third States without their consent. Practice suggests, however, that
multilateral treaty arrangements may on the basis of political or legal reality impose
certain constraints on the behaviour of third States. These constraints do not result
from legal obligations, but accrue instead from the formation of a broad international
consensus stemming from multilateral agreements that possess a ‘constitutional’
nature.
22
Although this is true in the case of the UN, if this is also true with regard to
the ICC, this means that the ICC, as an international legal entity, has the capacity
through its Statute to affect States parties as well as non-parties, albeit in expressly
defined and specifically limited circumstances. This result was confirmed by the
International Court of Justice (ICJ) in its Advisory Opinion in the
Reparations
case,
where it held that universal intergovernmental organisations possess ‘objective
international legal personality, and not merely personality recognised by [their
members] alone’.
23
Under Art 12 of its Statute, the ICC’s jurisdiction over a case or ‘situation’ may be
triggered in any of the following cases; either where a situation or offence takes
17
Ibid,
Art 35. If the workload of the court, however, does not justify the full time engagement of all 18
judges, the Presidency of the Court may decide from time to time to what extent the remaining judges
shall be required to serve on a full time basis.
18
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