An Introduction To The International Criminal Court - Institute for ...

74 introduction to the international criminal court
upon diplomats, 31 nuclear safety, 32 terrorism, 33 apartheid 34 and torture. 35
The application of universal jurisdiction is also widely recognised for genocide,
crimes against humanity and war crimes, that is, for the core crimes
of the Rome Statute, although a recent decision of the International Court
of Justice provoked a variety of individual opinions on the subject, leaving
the matter not only unresolved but also still in some doubt. 36
During the drafting of the Statute, some argued that what States could
do individually in their own national justice systems they could also do
collectively in an international body. 37 Consequently, if they have the right
to exercise universal jurisdiction over the core crimes of genocide, crimes
against humanity and war crimes, they ought also to be able to create an
international court that can do the same. If the Statute were to provide for
universal jurisdiction in such a way, it was asserted, then the new international
court would have the authority to try anybody found on the territory
of a State party, even if the crime had been committed elsewhere and if
the accused was not a national of the State party. But such an approach
met with two objections. 38 First, some States felt the solution too ambitious
and likely to discourage ratifications. It is true that, in practice, universal
jurisdiction is rarely exercised by States, and many would probably prefer
not to be pushed into matters that in the past, for diplomatic or other reasons,
they have sought to avoid. Secondly, a few States quarrelled with the
legality of an international court that could exercise universal jurisdiction.
The United States in particular argued that there was no rationale in law for
such a court, and insisted that the only legal basis would be active personal
31 Convention on the Prevention and Punishment of Crimes Against Internationally Protected
Persons Including Diplomatic Agents, (1977) 1035 UNTS 167.
32 Vienna Convention of 1980, (1984) 1456 UNTS 101.
33 European Convention on the Suppression of Terrorism, (1978) 1137 UNTS 99; International
Convention Against the Taking of Hostages, (1983) 1316 UNTS 205.
34 International Convention on the Suppression and Punishment of the Crime of Apartheid, (1976)
1015 UNTS 243, Art. IV(b).
35 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
(1987) 1465 UNTS 85, Art. 10.
36 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 15
February 2002. See Nicolaos Strapatsas, ‘Universal Jurisdiction and the International Criminal
Court’, (2002) 29 Manitoba Law Journal 1.
37 Daniel D. Ntanda Nsereko, ‘The International Criminal Court: Jurisdictional and Related Issues’,
(1999) 10 Criminal Law Forum 87 at 101.
38 Morten Bergsmo, ‘The Jurisdictional Regime of the International Criminal Court (Part II, Articles
11–19)’, (1998) 6 European Journal of Crime, Criminal Law and Criminal Justice 29; Philips, ‘The
ICC Statute’.