EXAMINATION OF THE CHALLENGES AND PROSPECTS OF THE INTERNATIONAL CRIMINAL COURT (ICC) IN THE PROSECUTION OF NATIONALS OF NON-PARTY STATES

Abstract

This paper examined the jurisdiction of the International Criminal Court(ICC) over nationals of non-Party States .Article 5(1) of The Rome Treaty for an International Criminal Court provides for the establishment of an international court with jurisdiction over genocide, war crimes, crimes against humanity and the crime of aggression when committed after 1 July 2002. Article 5(2) of the said Treaty however provides that in the case of crime of aggression, the Court shall exercise jurisdiction over the crime once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to the crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations. Article 12 of the Rome Treaty however provides that, in some circumstances, the ICC may exercise jurisdiction even over nationals of States that are not Parties to the Treaty and have not otherwise consented to its jurisdiction. The motivation for this study stemmed from the desire to contribute new knowledge to the society as it relates to the jurisdiction of the International Criminal Court over nationals of States that are not Parties to the Treaty and have not consented to its jurisdiction. Some of the findings in this study include the fact that the ICC suffered pre-enforcement issue and post-trial enforcement issue, as it depends completely on member States to arrest and transfer defendants, the fact that the ICC appeared to focus more of its primary duties of investigating, arrest and prosecuting heinous crimes of genocide, war crimes, crimes against humanity, and the crime of aggression on African leaders in comparison to other leaders in the West or Asia, the Court lacks the institutional resources to ensure that the defendants actually show up in Court, as it has no police force of its own and has no reliably effective means to oblige states to cooperate. This study recommended that the ICC’s Prosecutor should spread his tentacles to other regions of the word when it comes to investigating and prosecuting allegations of heinous crimes such as
genocide, war crimes, crimes against humanity and the crime of aggression. Secondly, the ICC needs to encourage better cooperation from its member states, as well as from other states throughout the world. The court cannot make progress if it is surrounded by hostile states, as all of its investigations depend on the host country’s willingness to cooperate with the court. Thus, since international law is fundamentally contractual, and its enforceability is a complex of some sort, how would the Court navigate through in light of the provision of Article 12? This paper, using doctrinal method of legal research, considered the issues surrounding the implementation of Article 12 and proffers solutions on how the Court can best utilize it.