Jurisdiction of the ICC: The Realpolitik by State Parties to the Rome Statute and United Nations Security Council in Its Efficaciousness

Abstract

The International Criminal Court was created as a deterrent to impunity, as a means towards eliminating the world‘s most horrendous crimes and as an instrument to redress the victims of genocide, war crimes and crimes against humanity. The Rome Statute of the ICC was a subject of intensive negotiations and careful crafting with the main controversy being with respect to Part 2, on Jurisdiction, Admissibility and Applicable Law.

A compromise informed the Court‘s jurisdictional infrastructure, the jurisdiction of the ICC, the trigger mechanism and admissibility. The notion of jurisdiction has a broad meaning in the Statute and includes the competence of the Office of the Prosecutor to investigate. Complimentarity is the cornerstone upon which the ICC was established. However, it has been one of the most contentious issues during the drafting of the Statute, which was generally the result of a political compromise to secure support from the largest possible number of states. The principle of complimentarity can be traced in the Preamble of the Statute, which affirms the primary responsibility of member states to punish perpetrators within their territories and therefore identifies the ICC as an institution to only supplement or compliment this duty. In sum, complimentarity remains a critical component on the successful discharge of the mandate by the Court.

This paper assesses the efficacy of the ICC jurisdiction in dispensing justice and combating impunity, within the context of the important role expected to be played by state parties and their foreign policy determined by expediency rather than ethics or world opinion. Power politics - realpolitik - inform state actions, concluding that, although the ICC jurisdiction is besieged with practical hurdles it portends positive but gradual jurisprudential development in international criminal justice. It instills a culture of accountability upon states to punish criminals responsible for the most serious crimes in international law, deter the commission of such crimes, and create greater international stability by fostering the rule of law in countries affected by conflict and crimes.

Keywords: Transnational justice, International Criminal Court, Kenya, complimentarity, realpolitik