Referral of situations to the international criminal court : towards an effective international criminal justice system

Abstract

Most State-Parties to the Rome Statute are unaware of the proper process of making a referral to the international criminal court. Non-Party States are all together suspicious of the activities of the Court and as a result would not ratify the Rome Statute at all. As a result of the lack of the proper understanding of the processes involved in the making of a successful referral or the activation of the complementarity principle in favour of the default jurisdiction which lies in a State-Party; preliminary examinations and investigations take a long toll and expend a lot of time, money, energy and resources of all parties involved. The referral of a situation and the activation of the complementarity principle and all the criteria therein are not fully expatiated in the Rome Statute and as a result the bulk of interpretation is left to the Office of the Prosecutor. This research focused on the activities of the Office of the Prosecutor during the Pre-Trial Stages of countries that are in the preliminary examination phase and the investigation phase in order to observe the known and the hidden criteria expected of a State-Party and other stakeholders that are interested or invested in the outcome of a referral. It was discovered that any party making a referral had to determine whether the crimes committed were likely to be under the temporal, material and territorial jurisdiction of the court; whether the referral is likely to be admissible considering the complementarity and the gravity criteria; whether the referral is in the interests of justice and that the State involved was unwilling or unable to investigate and prosecute the crimes. Regarding the activation of the complementarity principle, which gives the default jurisdiction to the State-Party rather than the ICC; such a State-Party that wants to try its own cases should ensure that it has incorporated the Rome Statute into its National Laws in order to be seen as a ‘willing and able’ government interested in investigating and prosecuting crimes under the Rome Statute. Observing the above stated criteria and proper processes before making a referral guarantees making the work of the Office of the Prosecutor more efficient and helping to ensure a smoother and more effective international criminal justice system.