The international criminal court is an independent jurisdiction established in 2002 to investigate and prosecute crimes. ICC was established after the United Nations recognized the need for an international court to prosecute crimes. It concerns itself with war crimes against humanity and the worst international crimes like genocide or crimes of aggression. The ICC has prosecuted cases since 2002; up to date, they have handled a dozen cases, and some are still ongoing. Although ICC aims to end conflicts within the countries and it helps to end crimes and impunities, not all countries are members of the International Criminal Court for various reasons. This essay will focus on why a nation may choose not to be part of the International Criminal Court’s jurisdiction.
A nation may choose not to be part of the ICC’s jurisdiction if the court scrutinizes and violates state sovereignty. When a nation joins the ICC, the ICC has the power to judge if the national court can make an investigation or prosecution of major crimes; ICC involves itself. Some nations may consider this a violation of sovereignty because the ICC’s complementarity regime has to make an opinion of the judicial system of that nation before taking over the case. The regime gives the ICC power to assert its jurisdiction in that particular nation as long it is a member nation of the court. A nation may choose not to join the court when they know that their various government officials may be prosecuted or linked to the crimes when outside the country. The ICC cannot prosecute them on its own since they have no jurisdiction over a non-member nation.
The national constitution of a nation makes it not to be involved since the constitution may be incompatible with international criminal court jurisdiction. For instance, the Russian constitution states that the constitutional law’s judicial system stipulates that there is no slot for an international court to be involved in the national courts. Russia is one of many nations that do not allow the substitution of the judicial system even in the most adverse situations (Cairn international edition, n.d). A nation cannot ignore the constitution, which is the governing tool in various things of that nation. It would lead to ignoring other laws, which could cause a lot of chaos.
There is a concern that if a nation joins the ICC, the court will prosecute its nationals for the foreign policy made by its country. The ICC prosecutes a person or persons when there is consent from the territorial country the crime was committed to or from the person’s national country that is a court member (International Criminal Court, n.d). A nation might fear joining the ICC jurisdiction in order to protect its citizens. ICC jurisdiction is only on four crimes; therefore, citizens from a non-member nation would be prosecuted outside their own country as long as the other country agrees to prosecute them.
To protect its people, a nation might want to be involved in giving consent to its citizens being prosecuted by other nations. For example, the US argues that the person to be prosecuted by ICC should acquire the consent of the person’s nationality apart from the state in the crime was committed (Dworkin, 2020). It is a free world. Therefore, every nation has a right to make a decision they see fit for its citizen.
References
Cairn international edition. (n.d.). The objections of larger nations to the International Criminal Court. Cairn International Edition.
Dworkin, A. (2020). Why America is facing off against the International Criminal Court. ECFR.
International Criminal Court. (n.d.). How the court works. Welcome to the International Criminal Court.