ICC’s extreme folly (3)

ICC’s jurisdiction may not reach nationals of non-consenting, non-party States without the express consent of such States.

The Rome Statute which created the International Criminal Court stressed the need for consent for the tribunal to intervene in the judiciary of a country that is the subject of a complaint.

The principle of complementarity requires that the local judiciary exhaust all means to prosecute a case before the ICC can step in — which is when the Philippine courts fall short in addressing serious allegations which in the case of the administration of former President Rodrigo Duterte were the killings associated with the war on drugs.

Solicitor General Menardo Guevarra sought last Wednesday another suspension of the ICC probe as the government claimed the ICC’s lack of jurisdiction and encroachment of sovereignty.

Both points are supported by the Florida Journal of International Law’s treatise called “An Unlawful Overreach: Trying Nationals of Non-Consenting, Non-Party States.”

The paper said the stated goals of the Rome Statute, which are to ensure that the most serious international crimes do not go unpunished and to end impunity, are laudable. However, consistent with the rule of law and in the interest of justice, one must use lawful means to achieve such ends.

“Customary international law governs all states, whereas conventional international law governs only those states that have acceded thereto,” it indicated.

The Rome Statute contains a provision in Article 12(2)(a) that states that nationals of non-consenting, non-party can be ensnared in the ICC’s jurisdictional web.

“That is a clear violation of customary international law which recognizes that third-party ‘States’ (by which we mean nationals and territories of such States) are not — and cannot be — bound, absent their consent, by the terms of a treaty to which such States have not acceded.”

Accordingly, the offending provision in the Rome Statute is ultra vires and legally unenforceable concerning the nationals of non-consenting, non-party States. Any application of Article 12(2)(a) against nationals of such States by either the ICC Prosecutor or any ICC judge would violate the rights of those States under customary international law and be unlawful, absent prior consent by appropriate authorities of such States.

“The rule of law is the bedrock principle that underlies civilized society. It is too important a principle to compromise because once compromised, it is difficult to regain the trust that was lost,” the study explained.

It adds that in the final analysis, even the most desirable ends do not justify unlawful means to achieve them.

“The Rome Statute created a court of limited jurisdiction. Such limitations must be acknowledged and respected,” the paper stated.

Universal jurisdiction does not inevitably lead to the conclusion that nationals of non-consenting, non-party States are triable by a court created under an international treaty like the Rome Statute, according to the paper.

“The inherent sovereignty of the non-consenting, non-party State takes precedence over other States’ grant of authority to such a court. In short, a non-sovereign entity like the ICC has no lawful authority to assert jurisdiction over nationals of a non-consenting, non-party, sovereign State,” the paper underlined.

The Rome Statute also includes a provision that unlawfully extends the ICC’s jurisdiction to reach nationals of non-consenting, non-party States in clear and direct violation of customary international law.

“Such a provision must be acknowledged as violating customary international law and be rejected as ultra vires and void ab initio vis-i-vis the nationals of non-consenting, non-party States to the Rome Statute,” it argued.

In conclusion, the paper indicated that ICC’s jurisdiction may not reach nationals of non-consenting, non-party States without the express consent of such States.

“To exert such jurisdiction without proper consent would be a lawless act in clear violation of an unambiguous principle of international law,” it maintained.

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