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

crimes prosecuted by the court 29
There would be little disagreement with the proposition that the Court
is not designed to try all perpetrators of the four core crimes. It will be concerned
not only with ‘the most serious crimes’ but also with the most serious
criminals, generally leaders, organisers and instigators. Lower-level offenders
are unlikely to attract the attention of a prosecutor whose energies must
be concentrated, if only because of budgetary constraints. Article 17(1)(d)
of the Statute says that the Court must declare a case inadmissible if it is not
‘of sufficient gravity’. The Prosecutor, in the exercise of his or her discretion
as to whether to proceed with a case, is instructed to forego prosecution
when ‘[a] prosecution is not in the interests of justice, taking into account
all the circumstances, including the gravity of the crime, the interests of
victims and the age or infirmity of the alleged perpetrator, and his or her
role in the alleged crime’. 8 In the case of juvenile offenders, the Statute does
this explicitly, declaring simply that the Court is without jurisdiction over
a person who was under the age of eighteen at the time of the alleged commission
of a crime. 9 This does not, of course, mean that a young person of
seventeen cannot commit a crime against humanity or a war crime. Rather,
it is a policy decision made by the drafters of the Statute that was driven by
considerations about the nature of the accused rather than the nature of the
crime.
In addition, all of the definitions of crimes within the jurisdiction of the
Court have some form of built-in threshold that will help to focus these
decisions and limit the discretion of the Prosecutor. In the case of genocide,
the result is achieved by the very high level of dolus specialis or ‘special intent’
that is part of the definition of the crime. The offender must intend to destroy
the targeted group in whole or in part. Many of those who participate in
a genocide may well fall outside this definition. Although they are actively
involved, they may lack knowledge of the context of the crime and for that
reason lack the requisite intent. In the case of crimes against humanity, this
issue is addressed somewhat differently, with a criterion by which the offence
must be part of a ‘widespread or systematic attack’. Both genocide, by its
very nature, and crimes against humanity, by the ‘widespread or systematic’
qualification, have a quantitative dimension. They are not isolated crimes,
and will in practice only be prosecuted when planned or committed on a
8 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (hereinafter ‘Rome
Statute’), Art. 53(2)(c).
9 Ibid., Art. 26.