INTERNATIONAL CRIMINAL COURT AND UNIVERSAL JURISDICTION
CHANGES IN THE CONCEPT OF SOVEREIGNTY

Until World War II, gross violation of human rights continued within the domestic as well as the international sphere. The War proved to be a clinching factor in bringing to book those guilty of crimes against the international community. The Allied Powers set up the Nuremberg International Tribunal to prosecute the Nazis for their alleged actions which constituted war crimes, genocide and crimes against humanity. A similar tribunal called the Tokyo Far Eastern Military Tribunal was set up in Japan . Thus, international criminal justice effectively began with these ad hoc war tribunals. Years of negotiations saw the establishment of the International Criminal Court (hereafter referred to as ICC) in 2002. Though the establishment of the Court was a welcome step in achieving accountability for serious violations of human rights, the jurisdiction of the Court along with the concept of Universal Jurisdiction has created controversies.

THE CONCEPT OF UNIVERSAL JURISDICTION

The term jurisdiction, which constitutes one of the most important elements of international criminal law, may be defined as:

The authority of States to prescribe their law, to subject persons to adjudication in their Courts and other tribunals, and to enforce their law, both judicially and non-judicially. ¹

Thus, jurisdiction in International Law involves two aspects, one of which is rule making and the other, rule enforcing. There are five kinds of jurisdiction; however, the most controversial among them is the principle of Universal jurisdiction. It was held in Adolf v. Eichmann that certain crimes are of such gravity that they are delicta juris gentium or grave offences against the law of nations itself and they shock the conscience of the international community as a whole regardless of the place they were committed and therefore, all nations share, equally, the right to bring the perpetrators of such crimes to justice. Besides piracy, crimes against humanity, war crimes and the crime of genocide is also covered by this principle.

The principle of Universal Jurisdiction can be identified into two divisions: absolute and conditional Universal Jurisdiction. Conditional Universal Jurisdiction requires the presence of the accused in the territory of the prosecuting State before proceedings can be initiated against him. Absolute Universal Jurisdiction requires no link between the accused and the prosecuting State. The Universality principle serves the noble purpose of bringing together the international community against the worst crimes and the culture of impunity. For instance, in the case of war crimes, it often happens that after a war, the country's legal system is in shatters if not in a state of total collapse. If the perpetrators are tried by such a domestic legal system, they may not, more than often, receive a fair trial. In such situations, Universal Jurisdiction can come to the rescue of the State and deliver justice. Thus, Universality principle is a fjord between accountability and impunity. The storm facing Universality is that of disagreement. Judge Guillamme of the International Court of Justice, for example, rejects it because it would

Impair friendly relations between States and may produce judicial chaos because of abundant positive jurisdictional conflicts. ²

THE INTERNATIONAL CRIMINAL COURT AND THE WORLD ORDER

The Rome Statute of the International Criminal Court entered into force on 1 st July, 2002. The then U.N Secretary General described the Court as:

a gift of hope to future generations, and a giant step forward in the march towards universal human rights and rule of law . ³

The ICC thus fills a crucial gap by providing the world with a permanent Court that can prosecute the culprits if the domestic Courts fail to do so. The jurisdiction of the ICC is of complementary nature to that of the domestic legal system.

Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. ⁴ The “trigger mechanism” provides that a case may be referred to the Court by a State party to the Statute, the Security Council or the Prosecutor can, proprio motu take cognisance of certain circumstances. The Council can defer Court proceedings in such a case for a period of 12 months for as long as necessary. This power of the Council is observed as the trump card in the hands of the permanent members while they decide the destiny of the other nations.

According to Article 12 of the Rome Statute of the ICC, if a national of a State, not a party to the Statue, commits a crime on the territory of a State party, he would be subject to the jurisdiction of the ICC even in the absence of the consent of his State of nationality. This is viewed as the violation of the Vienna Convention of the Law of Treaties which provides:

A treaty does not create either obligations or rights for a third State without its consent . ⁵

THE CONCEPT OF SOVEREIGNTY IN INTERNATIONAL LAW

For the sake of definition, sovereignty can be understood to be the exclusive right of governance over a territory or people.

As international law is more of a common goal and a law of co-ordination between the sovereign jurisdictions of individual States than a law of sub-ordination , ⁶ sovereignty is one of the crucial elements, vital for securing organisation among the international players. It is perceived that any restriction upon the jurisdiction of a nation within its own territory, deriving vitality from an external source, would imply a diminution in sovereignty of that nation. ⁷ Hence, the Courts in one country have no jurisdiction over an independent foreign sovereign of another country, unless he submits to the jurisdiction. ⁸ It is in the above context that the ICC and Universality principle are subject to criticism.

To meet the new challenges and opportunities of the trans-national co-operation effectively, sovereignty may have to be limited in its capacity to deny international responsibilities and domestic obligations. This check on sovereignty does not mean its demise: but it means change. ⁹ The balance between sovereignty and international obligations has begun to shift once again. As sovereign freedom is imperative for a State to conduct its affairs, compatibility between sovereignty and international law is essential to achieve international peace.

CONCLUDING REMARKS

A general concern is that the idea of Universal Jurisdiction is simply incompatible with a system of international relations based on sovereign States. A sovereign State is deemed to exercise a near monopoly on domestic lawmaking power. The principle of Universal Jurisdiction thus appears to be problematic both in theory and practice. Furthermore, opening national legal systems to intervention from third States brings with it a significant potential for abuse. ¹⁰ Universal Jurisdiction is necessary as

Leaving it up to the State of commission to prosecute international crimes would often mean making the perpetrators their own judges. ¹¹

In the wider background of the ICC and the Universality principle, the fact that comes to light is that States and the people want an end to impunity for the world's worst crimes. Thus, sovereignty as State absolutism no longer makes the grade of a tenable precept in International Criminal Law. Sovereignty is not a license to kill, to make war or commit crimes against humanity. It is an essential element of internal governance of a State that derives its authority from the “general will” of the people.

State sovereignty is an ambivalent concept in International Law, a brute fact of power and a barrier to transparent global relations. ¹² True sovereignty lies not in shielding the executors of international crimes but in bringing them to justice. Only a State that respects human rights is allowed to represent its people internationally and can claim to be a sovereign. The objective and the challenge before the world community today, are to dispense complete justice with minimum but necessary constraints on sovereignty. The International Criminal Court and the concept of Universal Jurisdiction call for the backing of the people of the world to usher in an age of justice without borders.

Sanjhi Jain,
NALSAR University of Law , Hyderabad ,
sweetsanjhi@gmail.com , 09391167855.

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1. Restatement (Third) of the Foreign Relations Law of the United States Section 402(1) (a) and comment (1987).
2. Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium) p. 185.
3. Eve La Haye, “The Jurisdiction of the International Criminal Court: Controversies over the Preconditions for Exercising its Jurisdiction”, NETHERLANDS INTERNATIONAL LAW REVIEW , Vol. XLV (1999).
4. Article 27(2) of the Rome Statue of the International Criminal Court.
5. Article 34 of the Vienna Convention on the Law of Treaties.
6. William R. Slomanson, FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW, 4 th ed. 2002, p. 39.
7. The Schooner Exchange v. Mc Fadden , 136 US (7 Cranch) 116, 136 (1812) ( Marshall C.J).
8. Mighell v. Sultan of Johore : [1894] 1 QB 149.
9. Ibid.
10. Gerhard Werle, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW, 1 st ed. 2005, p.61.
11. Henry A. Kissinger, “Pitfalls of Universal Jurisdiction”, FOREIGN AFFAIRS, July/August 2001, p. 63.
12. Gerry Simpson, “ Feminism and State Sovereignty in International Law, Transnational Law and Contemporary Problems”, 1993, p. 302 in: Gerry Simpson , THE NATURE OF INTERNATIONAL LAW, 1 st ed. 2001, p. 394.