Subject-matter jurisdiction of the international criminal court

Several decades of efforts at establishing a permanent international criminal court finally bore fruit by the adoption in 1998 the Statute of Rome of the International Criminal Court. Very important, if not the most important question during the negotiations was the definition of its jurisdiction. The International Criminal Court has automatic competence with respect to crimes mentioned in article 5 of the Statute of Rome making unnecessary the special consent of contracting states to be tried by this Court for crimes committed by their nationals or at their territory. In contrast to the two ad hoc international tribunals that have priority with respect to national courts, the International Criminal Court has a subsidiary jurisdiction. It will undertake criminal prosecution only in case the national courts are unwilling or unable to carry out the appropriate criminal procedure. The International Criminal Court only supplements but does not replace the national judiciary, since it was intended that primary responsibility for punishing the international crimes be left over to particular states. Although there were various suggestions, it was accepted that the International Criminal Court shall have real jurisdiction for crimes of genocide, crimes against humanity, war crimes and aggression. With respect to genocide and crimes against humanity, there has been a wide agreement about their definition and the need for them to be within the jurisdiction of the International Criminal Court. Since some of the states among them the USA, Great Britain and France, opposed the automatic jurisdiction in case of war crimes, it was agreed that the International Criminal Court in any case shall have such jurisdiction, while the states are authorized to exclude the jurisdiction of the International Criminal Court for war crimes for an initial period of seven years. The situation is even worse concerning aggression, since the International Criminal Court has only ostensible jurisdiction in case of this crime. The true jurisdiction will only be accomplished when the contracting parties reach the agreement concerning the definition of aggression and the conditions under which the International Criminal Court may try cases of this crime. Having in mind the provisions of the Statute of Rome, it may be said that all the expectations concerning the real jurisdiction of the International Criminal Court have not been realized, particularly concerning the aggression. However, it should not be forgotten that this is the first permanent international criminal court and that the compromise reached certainly represents an important step forward. It should be born in mind that the Statute of Rome provides for a possibility, and the Final Act of the Conference in Rome even recommends amendments of the provisions on real jurisdiction, so that it is reasonable to expect certain changes in this respect. This would mean continuation of the process of building and strengthening the system of international criminal liability.