Trigger Mechanisms and the Exercise
of the Court's Jurisdiction

One of the core issues under consideration regarding the establishment of the International Criminal Court is the question of the Court's jurisdiction. In a situation where crimes such as genocide, crimes against humanity, or war crimes covered by the Statute have been committed, when would the Court have jurisdiction to try persons alleged to be responsible for these crimes? A number of options have been proposed, some of which are discussed below.

Trigger Mechanism
The draft statute contains three possible mechanisms by which the jurisdiction of the Court could be "triggered".

Complaint by a State party
The first mechanism that could activate the jurisdiction of the Court relates to a complaint lodged by a State party or States parties to the treaty. A State party could lodge a complaint with the Prosecutor and request him/her to investigate the situation. It has been suggested that the State lodging the complaint may be one of the following: the State on the territory of which the act was committed; the custodial State on whose territory the alleged offender is present; the State of the nationality of the suspect; or the State of the nationality of the victims. The Court could then initiate an investigation into possible crimes.

Referral by the Security Council
The second possible trigger mechanism, which is still under consideration, would enable the Security Council to refer a "matter" or "situation" -- not a specific case -- to the Court, and the Court could then investigate and possibly prosecute crimes arising from that "situation".

It has been proposed that in any situation with which the Security Council is involved, the Security Council should first grant permission to the Court before the Court could act. Some States have expressed concern regarding the political nature of the Security Council and the possible veto by one of the five permanent members to prevent the Court from taking action. Since most conflict situations in the world would likely be on the agenda of the Security Council, many believe that this provision could grant the Security Council tremendous control over the Court. This particular provision has been the subject of extensive debate.

A suggested compromise which has generated some interest would provide that the Court would proceed to act on a situation but that the Security Council could decide to bar the Court from taking any action.

Trigger by the Prosecutor
The third possible trigger mechanism, which is also still under consideration, would allow the Prosecutor to bring a matter before the Court. Some feel that an independent prosecutor is necessary for an independent and effective Court. Others are of the view that in order to prevent abuse of power, the Prosecutor's role should be checked by an independent Chamber of the Court composed of a number of judges.

Acceptance of the jurisdiction of the Court
Some States have suggested that an important consideration in the process leading to the Court's hearing a case is the condition that the States concerned have accepted the Court's jurisdiction over the crime in question. Furthermore, a State's acceptance of the jurisdiction of the International Criminal Court has implications for the criminal jurisdiction of its national courts, which is an essential element of its sovereignty.

Three options concerning acceptance of the Court's jurisdiction have been put forward. A State could, at the time of ratification or later, indicate its willingness to accept the Court's jurisdiction for specific crimes. In this way, a State could ratify the treaty establishing the Court and retain the right to choose the crimes for which it would accept the Court's jurisdiction. This is referred to as "opting in". Also discussed was another slightly different variation. States could "opt out" of accepting jurisdiction for specific crimes. Additionally, States could choose to opt in for a specific amount of time, or, having once opted in, could choose to opt out at a later time.

State consent
It has been suggested that, except in cases that are referred to the Court by the Security Council, consent may be required from one or more of the following States:

• the custodial State, i.e., the State that has custody of the accused, or the State where the accused is residing;
  
• the territorial State, i.e., the State where the alleged crime occurred;
  
• the State that has requested the custodial State to surrender a suspect (if applicable);
  
• the State of which the accused is a national.

"Inherent" jurisdiction
The notion of inherent jurisdiction can be traced to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The Convention declared genocide a crime against international law; it declared the international community's intention to punish and prevent genocide; and, most significant in the context of the Court's jurisdiction, it provided for the crime of genocide to be tried by an international criminal court or tribunal. States parties to the Genocide Convention have thus already expressed their willingness to accept an international criminal court's jurisdiction over the crime of genocide. For this reason, the Court's jurisdiction over the crime of genocide could be considered "inherent" for a State party to the Genocide Convention which subsequently becomes a party to the Statute of the Court.

In preparatory meetings for the Rome Conference over the last two years, the view has been expressed that such inherent jurisdiction should be extended to other "core crimes" -- war crimes, crimes against humanity and, possibly, the crime of aggression. It should be noted that inherent jurisdiction does not mean that the Court would have jurisdictional supremacy over any national legal institutions. It would instead mean that no further consent would be required from the States parties concerned.

The role of the Security Council
Under the United Nations Charter, Member States have agreed to abide by Security Council decisions relating to the maintenance of international peace and security. They would therefore be required to accept the jurisdiction of the Court in situations referred by the Security Council. It has consequently been suggested that in such situations no State consent would be required for the exercise of jurisdiction by the Court, and all States would be required to cooperate with the Court.

It has also been suggested, in view of Article 39 of the Charter, that if the crime of aggression is included in the statute, the Security Council should determine that an act of aggression has occurred before the Court could act regarding a complaint of aggression.

There are different views concerning the role of the Security Council in triggering the Court's jurisdiction or in determining the existence of an act of aggression as a condition for the Court's exercise of jurisdiction in such cases. While some States are concerned about the implications of such a role for the Security Council on the judicial independence and effectiveness of the Court, others are concerned about safeguarding the Security Council's responsibility for the maintenance of international peace and security under Chapter VII of the Charter.

Complementarity
As previously mentioned, the proposed Court is not meant to supersede national jurisdiction. It is intended only to complement national courts when the State concerned is unwilling or genuinely unable to carry out the investigation or prosecution. This is expressed in the draft statute as an overall limitation on the Court's jurisdiction. In other words, if the national courts concerned were functioning properly, the Court would not exercise its jurisdiction.

Prepared by the United Nations Department of Public Information
May 1998