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Research on the jurisdiction of non-party states to the
Rome Statute
Geng ZHIMIN
University of World Economics and Diplomacy, Jining Normal University
ARTICLE INFO
ABSTRACT
Article history:
Received August 2024
Received in revised form
15 September 2024
Accepted 15 October 2024
Available online
25 November 2024
Currently, there are still illegal and criminal acts in the
international community that seriously threaten global peace and
the common interests of humanity. However, due to the principle
of national sovereign equality, some serious crimes remain
unpunished. To address this issue, it is necessary to enhance the
role of international criminal courts. The exercise of jurisdiction
over non-party states by the International Criminal Court (ICC)
must comply with the Rome Statute. Additionally, the ICC's
jurisdiction should be clarified based on the specific
circumstances of each case to avoid international disputes and
minimize the negative impact of international crimes. This article
first clarifies the scope of the ICC's jurisdiction over non-party
states. It then provides an in-depth analysis of the relationship
between the ICC’s jurisdiction and the principle of state
sovereignty. Finally, it proposes practical approaches for the ICC
to exercise its jurisdiction over non-party states.
2181-
1415/©
2024 in Science LLC.
https://doi.org/10.47689/2181-1415-vol5-
This is an open access article under the Attribution 4.0 International
(CC BY 4.0) license (https://creativecommons.org/licenses/by/4.0/deed.ru)
Keywords:
International Criminal Court,
non-state party,
Jurisdiction.
Rim statutiga aʼzo boʻlmagan davlatlarning yurisdiksiyasi
boʻyicha tadqiqotlar
ANNOTATSIYA
Kalit so‘zlar:
xalqaro jinoyat sudi,
nodavlat partiya,
yurisdiktsiya.
Hozirgi vaqtda xalqaro hamjamiyatda xalqaro tinchlik va
insoniyatning umumiy manfaatlariga jiddiy tahdid soluvchi
noqonuniy va jinoiy harakatlar davom etmoqda. Biroq, milliy
suveren tenglik tamoyilining ta'siri tufayli ayrim og'ir jinoyatlar
jazosiz qolmoqda. Bunday vaziyatni yanada oldini olish uchun
xalqaro jinoiy sudlarning rolini to'liq o'ynash kerak. Partiyaga
kirmagan davlatlar ustidan yurisdiktsiyani amalga oshirish
1
School of International Law, University of World Economics and Diplomacy, Tashkent, Uzbekistan
School of Marxism, Jining Normal University, Wulanchabu, China.
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Xalqaro jinoiy suddan Rim statutiga rioya qilishni talab qiladi.
Shu bilan birga, Xalqaro jinoiy sud ishtirokida xalqaro nizolarga
yo'l qo'ymaslik va xalqaro jinoyatlarning salbiy ta'sirini sezilarli
darajada kamaytirish uchun ishning o'ziga xos holatlaridan kelib
chiqqan holda Xalqaro jinoyat sudining yurisdiktsiyasini
aniqlashtirish kerak. Shu sababli, ushbu maqola birinchi
navbatda
XKning
a'zo
bo'lmagan
davlatlar
ustidan
yurisdiktsiyasining mazmunini aniqlaydi; ikkinchidan, ICCning
yurisdiktsiyasi o'rtasidagi munosabatlarni chuqur tahlil qiladi;
shu asosda, u XKning a'zo bo'lmagan davlatlar ustidan
yurisdiktsiya amaliyotini taklif qiladi.
Исследование юрисдикции государств, не являющихся
участниками Римского статута
АННОТАЦИЯ
Ключевые слова:
Международный
уголовный суд
,
государство
-
неучастник
,
юрисдикция
.
В современном международном сообществе всё ещё
имеют место незаконные и преступные действия, которые
серьёзно угрожают международному миру и общим
интересам человечества. Однако, из
-
за действия принципа
суверенного равенства государств, некоторые серьёзные
преступления
остаются
безнаказанными.
Чтобы
предотвратить подобные ситуации в будущем, необходимо
максимально раскрыть роль международных уголовных
судов.
Осуществление
юрисдикции
в
отношении
государств, не являющихся участниками, требует от
Международного уголовного суда соблюдения Римского
статута. При этом юрисдикция Международного уголовного
суда должна быть уточнена с учётом конкретных
обстоятельств дела, чтобы избежать международных
споров
в ходе участия МУС и существенно снизить
негативные последствия международных преступлений.
В
данной статье, во
-
первых, разъясняются вопросы,
касающиеся юрисдикции МУС в отношении государств, не
являющихся
участниками;
во
-
вторых,
проводится
углубленный анализ взаимосвязи юрисдикции МУС с
принципами международного права; на этой основе
предлагаются подходы к практике осуществления
юрисдикции МУС в отношении государств, не являющихся
участниками.
INTRODUCTION
Due to the influence of the principle of equal rights of states, some international
crimes are prone to problems in which the offending country does not take the initiative to
take jurisdiction, or the relevant country is unable to take jurisdiction. When law
enforcement is difficult, an international judicial institution, namely the International
Criminal Court, needs to be established. In the process of exercising jurisdiction of the
International Criminal Court, the main legal basis is the Rome Statute. However, some
problems are prone to occur in specific practice. Among them, the most influential issue is
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the jurisdiction of the court. If you are not careful, the International Criminal Court will be
affected. hinder the implementation of follow-up work. Therefore, it is necessary to study
the jurisdiction of the International Criminal Court over non-party states, thereby reducing
the probability of international disputes.
LITERATURE REVIEW
The Rome Statute, adopted in 1998, grants the ICC jurisdiction over crimes committed
on the territory of member states or by their nationals. However, Article 12(3) of the Statute
allows non-party states to accept the jurisdiction of the Court on an ad hoc basis, making it
possible for the ICC to intervene in specific situations upon the consent of those states. This
has led scholars like Schabas (2010) to argue that the Statute is designed to respect the
sovereignty of non-member states by not imposing obligations without their consent, except
in situations referred by the United Nations Security Council (UNSC) under Chapter VII of
the UN Charter.
The UNSC holds a unique role in extending the ICC's jurisdiction over non-party states
through referral mechanisms, as seen in the cases of Darfur, Sudan (2005), and Libya (2011).
These referrals have sparked discussions on the political nature of such decisions and the
implications for the principle of state sovereignty. Scholars like Gaeta (2009) and Akande
(2012) have critiqued this power, highlighting concerns over the selective nature of UNSC
referrals and their potential use as geopolitical tools rather than as instruments of impartial
justice.
The exercise of jurisdiction over non-party states through UNSC referrals has also
raised debates about the legality and legitimacy of the ICC’s actions in such contexts. Critics
argue that this approach undermines the principle of state consent, while proponents
suggest that it enhances the accountability of states responsible for serious international
crimes, especially where domestic legal systems are unwilling or unable to prosecute.
The issue of cooperation from non-party states poses significant challenges to the
effectiveness of the ICC’s jurisdiction. Non
-party states are not obligated to comply with the
ICC’s requests for arrests, investigations, or evidence collection, which can hinder the Court’s
ability to carry out its mandate. For instance, the lack of cooperation from states like Sudan
and the complexities in apprehending suspects such as Omar al-Bashir has been extensively
analyzed by scholars (Mégret, 2011; Nouwen, 2013), w
ho emphasize the political and
practical barriers to securing accountability when a state remains outside the jurisdiction of
the Rome Statute.
1. Contents of the International Criminal Court’s jurisdiction over non
-party
states
1.1Specific circumstances in which the International Criminal Court exercises
jurisdiction
At present, the International Criminal Court can only exercise jurisdiction over a non-
party state under three circumstances. One is a national of a non-state party who has
committed criminal activities within the territory of a state party; the other is a relevant non-
state party whose nationals have committed criminal activities within the territory of a state
party. Submit a declaration independently and be willing to accept the jurisdiction of the
United Nations Security Council and the International Criminal Court; the third is a national
of a state party who has committed criminal activities within the territory of a non-state
party. These three situations are all relatively typical jurisdictional issues, but the specific
jurisdictional matters involved are different and require a comprehensive analysis based on
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the actual situation to ensure the rationality of the International Situation Court's exercise
of jurisdiction.
1.2 Forms of exercise of jurisdiction by the International Criminal Court
The essence of the International Criminal Court's jurisdiction over nationals of non-
party states is to exercise basic territorial jurisdiction and directly transfer relevant rights
to the court following the principle of national unity. As for the criminal activities carried out
by nationals of a contracting state in a non-state party, the main basis for the International
Criminal Court to have jurisdiction is that the specific criminal perpetrator belongs to the
nationality of the state party in terms of nationality. What the court can exercise is the
personal jurisdiction of the state party. Although the above two situations are closely related
to non-contracting states, they are essentially jurisdiction exercised over contracting states,
emdiving the principle of personality and territoriality, and have little connection with the
jurisdiction of non-contracting states. It can be seen that in the strict sense when the
International Criminal Court exercises jurisdiction over non-party states, the main situation
is that the non-state party submits a declaration on its initiative and is willing to accept
jurisdiction from the United Nations Security Council, and the Court. In this case, the
jurisdiction it has mainly comes from the non-state party. With the consent of the state
parties, this not only does not violate national sovereignty, but also does not interfere with
the internal affairs of other countries, and is in line with the basic principles of international
law. For issues submitted by the United Nations Security Council involving criminal acts by
non-party states, the jurisdiction of the National Criminal Court mainly comes from direct
resolutions of the Security Council.
2. The main relationship between the jurisdiction of the International Criminal Court
and the
2.1 The relationship between the exercise of jurisdiction of the International Criminal
Court and the principle of national sovereignty
According to the provisions of the Rome Statute, the jurisdiction exercised by the
National Criminal Court over a non-contracting state usually affects the judicial power of the
non-contracting state, but it does not negate the national sovereignty of the non-contracting
state. First of all, the International Criminal Court exercises jurisdiction over criminal acts
committed by nationals of non-party states in the territory of other state parties based on
the specific content of the statute. However, this does not preclude non-party states from
combining personal and territorial jurisdiction to prosecute their nationals and nationals.
When nationals of other contracting state exercise jurisdiction over criminal acts within
their territory, conflicts arising in this case need to be combined with the principle of
complementary jurisdiction of the International Criminal Court to determine that the non-
state party is unable to exercise jurisdiction over specific crimes before exercising its
jurisdiction. This also Fully respects the national sovereignty of non-party states; secondly,
the existence of the jurisdiction of the International Criminal Court will have a certain degree
of impact on national sovereignty, but it does not mean a direct denial of national
sovereignty; thirdly, during the operation of the International Criminal Court, all countries
need to provide necessary support and cooperation. The actual process of exercising
jurisdiction over non-party states requires cooperation from relevant states. However, if
such cooperation is not voluntary, non-party states can also refuse, and the court has no
power to force cooperation; finally, in the daily operation of the International Criminal Court,
the main purpose is to try cases involving more serious crimes in the international
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community. Its jurisdiction is based on comprehensive considerations of safeguarding social
interests and is not intended to weaken the sovereignty of some countries or enhance the
influence of the court.
2.2 The relationship between the jurisdiction of the International Criminal Court and
universal jurisdiction
Under special circumstances, the International Criminal Court can conduct necessary
trials and jurisdiction over illegal acts that endanger international peace that occur in non-
party states. This is consistent with universal jurisdiction in domestic law. To avoid conflicts
between the two conflict, it is necessary to further clarify the differences between universal
jurisdiction and the jurisdiction of the International Criminal Court in international law. The
International Criminal Court is an international organization established based on
international treaties. At the same time, the contracting states have also given life to the
International Criminal Court. The state is a subject of international law and has basic rights
recognized by national law, such as the right to self-defense, the right to independence, and
the right to equality. These rights are all rights derived from national sovereignty. States can
construct international judicial cooperation through international judicial cooperation. The
International Criminal Court has jurisdiction over serious crimes that have occurred in the
international community. In this case, the International Criminal Court must be given
corresponding jurisdiction. In short, the jurisdiction of the International Criminal Court is
mainly formed based on principles agreed by all countries. It can be seen from this that the
jurisdiction of the International Criminal Court is not only a self-limitation of the sovereignty
of the state parties by fully combining their national interests and international common
interests, but also a special way for the state to exercise its sovereignty. State parties transfer
part of their jurisdiction to the International Criminal Court based on the principle of
national unity. Territorial jurisdiction represents core crimes that occur in a state party.
Whether committed by nationals of a state party or a non-state party, it can exercise
jurisdiction. right. Personal jurisdiction means that as long as the crime is committed by a
Chinese national of the contracting state, it has jurisdiction no matter where it occurs.
However, when jurisdiction over acts committed by nationals of non-contracting
states within the territory of a contracting state, a declaration accepting jurisdiction from
the non-contracting state is required.
3. Submissions of situations to the International Criminal Court by non-party states
3.1. Submission to jurisdiction by non-contracting states
From the perspective of the jurisdiction of the International Criminal Court, the
voluntary acceptance of relevant declarations submitted by non-party states has created
some legal issues involving substantive and procedural aspects.
3.1.1. The subject of the submission statement is not clear enough. Usually, the
government department of a non-party state formally submits a declaration to the
International Criminal Court to accept jurisdiction. This situation is easier to carry out under
the premise that there is only one government in the country, but if the non-state party is in
a state of armed conflict, and the existence of multiple regimes requires thinking about
which regime can submit a jurisdictional declaration on behalf of the state. After years of
practice, only legitimate state powers can submit declarations.
3.1.2. The effect of the statement is not clear enough. Although declarations can
ensure that the International Criminal Court can obtain jurisdiction, the jurisdiction of the
court is not clear enough in terms of the time frame and needs to be interpreted based on
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the content of specific declarations by non-party states. The specific content of the Rome
Statute makes it clear that the International Criminal Court can only exercise relevant
jurisdiction over core crimes that occurred after the statute came into effect or after it
became a party to the statute. Moreover, the court's jurisdiction lacks retroactive effect.
However, in the process of submission of declarations of jurisdiction by major non-party
states, the main goal is to hand over to the International Criminal Court those crimes that
have occurred but that the state itself cannot handle. If it is necessary to always insist on the
jurisdiction of the International Criminal Court The basic principle of retroactivity is
contrary to the original intention of non-party states to submit declarations. Therefore, the
main function of such declarations is retroactive. The International Criminal Court can only
target various crimes that occurred before the declaration. conduct reasonable jurisdiction.
3.1.3. There is a flaw in the handler. According to the provisions of the Rome Statute,
the internal procedures of the International Criminal Court are diversified, including
submissions by state parties, the Security Council, and prosecutors' investigations. In
judicial practice, when the court exercises jurisdiction over non-party states, most cases are
investigated by prosecutors themselves, which ensures the independence and efficiency of
the court, but also gives prosecutors more discretion. Whether the case enters the
substantive trial stage mainly depends on the prosecutor's personal experience. will, and
lacks a complete judicial supervision mechanism. Therefore, if there are problems with the
declaration processing procedure, it is necessary to fully integrate the declaration of
acceptance of the court's jurisdiction with the submission form, thereby enhancing the
supervision of the prosecutor's power.
3.2 The United Nations Security Council proactively submitted jurisdiction
When the United Nations Security Council refers to situations involving non-party
states, the main problem faced by the International Criminal Court is cooperation between
it and states. For example, in terms of execution such as the issuance of arrest warrants, it
will not only affect the jurisdiction of the International Criminal Court. Realization will also
affect the authority of international judicial institutions themselves, and there are two main
reasons why cooperation between states and courts is more difficult
。
3.2.1. The issue of pardon for officials. The Rome Statute stipulates the principle of
irrelevance of official status. Simply put, the Statute is equal to everyone and has extremely
high applicability. There will be no difference due to different status and no one can use
status as a basis. By refusing to accept criminal responsibility. This irrelevance of official
status also excludes the application of diplomatic immunity, but the overall scope of the
exclusion is relatively limited, that is, it is only among contracting states and between
contracting states, but between non-contracting states and contracting states, diplomatic
immunity will still be used. In different countries due to completely different applicable laws,
it is easy to cause conflicts of obligations. Therefore, at this stage, if the International
Criminal Court requires relevant countries to arrest and transfer the specific perpetrators
of crimes, it will cause countries to conflict with obligations. It is caught in a dilemma. On the
one hand, the country needs to cooperate with the jurisdiction of the court by the resolutions
of the Security Council; on the other hand, non-party states also have the obligation not to
arrest the criminal perpetrators in conjunction with diplomatic immunity. The court is faced
with this. In such a dilemma, it is difficult to achieve perfect results.
3.2.2 Admissibility of the case. Among them, the two factors that need to be
considered are "unwillingness" and "unable". "Unwillingness" is mainly reflected in false
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investigations, shielding individuals, and unfairness, while "unable" is reflected in the
insufficient domestic judicial system. Integrity and inaccessibility to the judicial system. In
the practical stage, although the judgment of unwillingness will be affected by various
subjective factors, there are still relatively objective standards for judgment. Among them,
the most difficult content to make reasonable judgments lies in the aspect of inability. In the
aspect of inability, when making an evaluation, priority needs to be given to whether the
domestic legal mechanism is complete and whether the state can ensure the safety of the
defendant and various types of evidence. In a specific case, whether a country can handle
the content of the case more fairly and justly will not be directly judged by the simple
rhetoric of one party. Non-party states can take targeted measures to cover up their inability
to hear the case, thereby refusing to cooperate, it is relatively difficult to realize the
jurisdiction of the International Criminal Court.
To sum up, in the current development process of the international society, the
emergence of the International Criminal Court has also further solved various problems that
existed in the field of international justice in the past, especially the problem of jurisdiction
blanks, and on this basis to improve the fairness of legal trials. After the establishment of the
International Criminal Court, after decades of development, it has made certain
achievements in the field of international criminal justice. This also marks that although the
international community always follows the principle of sovereign equality of states, the
international community is not an extra-legal space. The International Criminal Court has
the right to intervene in international travel cases with relatively serious consequences. To
better ensure the independence of the court, it is necessary to solve the jurisdiction issues
of non-party states in light of specific circumstances, to gain recognition from major
countries in the world. This will also be conducive to the smooth progress of the subsequent
work of the International Criminal Court. carry out.
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