The International Criminal Court

By: L Rao Penna

Law School: National University of Singapore

Towards the end of 1995 the General Assembly of the United Nations established the Preparatory Committee on the Establishment of an International Criminal Court. The Preparatory Committee was given a mandate to discuss the substantive and administrative issues arising out of the Draft Statute prepared by the International Law Commission and finalize a convention on an International Criminal Court for consideration by a conference of plenipotentiaries. The Preparatory Committee concluded its second session on 30 August 1996. This article examines the prominent provisions of the Draft Statute in the context of the deliberations before various committees. It also evaluates the extent to which the national laws of a state, for example Singapore, may have to be modified.

I. INTRODUCTION

FOR the first time in nearly four decades the United Nations is actively negotiating a Convention on the organization of a permanent International Criminal Court (hereinafter referred to as “the ICC”). The Preparatory Committee on the Establishment of an International Criminal Court (hereinafter referred to as “the PrepCom”) having met since 12 August completed its second session on 30 August 1996 at the headquarters of the United Nations in New York. The first session was held during 25 March to 12 April 1996. The PrepCom was set up by the General Assembly of the United Nations on 18 December 1995 with the mandate to “further discuss the major substantive and administrative issues arising out of the draft statute prepared by the International Law Commission and, taking into account the different views expressed during the meetings, to draft texts, with a view to preparing a consolidated text of a convention for an International Criminal Court as a next step towards consideration by a conference of Plenipotentiaries.” Earlier that Draft Statute for an International Criminal Court (hereinafter referred to as “the Draft Statute”) was referred to an Ad Hoc Committee on the Establishment of an International Criminal Court (hereinafter referred to as “the Ad Hoc Committee”) constituted by the General Assembly. This article examines the salient features of the Draft Statute in the context of the deliberations before the Sixth (Legal) Committee of the General Assembly, the Ad Hoc Committee, and the two sessions of the PrepCom. It also evaluates the extent to which the municipal law of a state, for example Singapore, may have to be modified mutatis mutandis if it is ratified in its present form.

II. BASES OF JURISDICTION IN INTERNATIONAL LAW

Criminal law is closely associated with the concept of state sovereignty embodied in Article 2, paragraph 1 of the Charter of the United Nations. It is within the exclusive province of a state to apply criminal law within its territory and in relation to persons and activities within its jurisdiction. National courts do apply foreign private or civil law. Criminal law, however, is a subject of national policy within the exclusive province of the lex fori.

International law recognises five criteria for assuming criminal jurisdiction.

A. The Territoriality Principle

This theory is a concomitant of sovereignty and is universally recognised, whereby a state prescribes and enforces rules of conduct within its physical boundaries, because qui in territorio meo est, etiam meus subditus est (who is in my territory, is also subject to me). Territorial sovereignty extends over internal waters, territorial sea and the superjacent airspace. The territoriality of jurisdiction also extends over crimes committed on board ships, aircrafts, and spacecraft.

 

Related Categories: Criminal-Justice, International