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

78 introduction to the international criminal court
Territorial (ratione loci) jurisdiction
The Court has jurisdiction over crimes committed on the territory of States
parties, regardless of the nationality of the offender. This general principle
is set out in Article 12(2)(a) of the Statute. It also has jurisdiction over
crimes committed on the territory of States that accept its jurisdiction on
an ad hoc basis and on territory so designated by the Security Council. The
1948 Genocide Convention provides some precedent for the idea that an
international criminal court will have jurisdiction over crimes committed
on the territory of a State party. Article VI of the Convention envisages just
such an eventuality.
Territory, for the purposes of criminal law jurisdiction, is a term that
needs to be defined. Obviously, it will extend to the land territory of the
State. The Statute also considers the concept of territory to include crimes
committed on board vessels or aircraft registered in the State party. 46 This is
a rather common and widely accepted extension of the concept of territorial
jurisdiction. Logically, territorial jurisdiction should extend to the air above
the State, and to its territorial waters and, possibly, its exclusive economic
zone.Buttheactualscopeofthesegreyareasremainstobedetermined.There
are really no useful precedents from the case law of previous international
criminal tribunals. Solutions to these issues will be sought in the practice of
national justice systems, although this varies considerably and it is difficult
to establish any common rules that are generally accepted. Whatever the
result, some territories are necessarily beyond the reach of the Court: the
high seas, Antarctica and outer space. If atrocities are committed in these
places, jurisdiction will have to be established on the basis of the nationality
of the offender.
Many national jurisdictions extend the concept of territorial jurisdiction
to include crimes that create effects upon the territory of a State. For example,
it could be argued that, in the case of a conspiracy to commit genocide, 47
the Court might have jurisdiction even if the conspirators actually hatched
their plan outside the territory where the crime was to take place. Similarly,
an order to take no prisoners, which is a crime in and of itself even if nobody
acts upon the order, 48 could be committed outside the territory of a State
but might be deemed to fall within the jurisdiction of the Court if its effects
46 Rome Statute, Art. 12(2)(a). 47 Ibid., Arts. 6 and 25(d).
48 Ibid., Arts. 8(2)(b)(xii) and 8(2)(e)(x).