Chapter 5 - Assessing Selective Enforcement from an Admissibility Perspective

Summary

This chapter explores the admissibility rules within the Rome Statute, looking at how they have been applied by different organs of the Court, especially the Office of the Prosecutor and the Chambers, in order to analyse whether or not the application contributed to the claims of selective enforcement of international criminal law by the Court. The admissibility rules seek to balance the relationship between national authorities ‘ right to prosecute and that of the Court.

The establishment of the Court coincided with a period when the prevailing perception in international law was that state sovereignty was becoming less important and was thus giving way to individuals in the enforcement of international criminal law. This occurred during the period when the Appeals Chamber Judges at the Yugoslav Tribunal declared that, under international law:

[A] state-sovereignty-oriented approach has been gradually supplanted by a human being oriented approach. Gradually the maxim of Roman law hominum causa omene jus constitutum est (all law is created for the benefit of human beings) has gained a firm foothold in the international community as well.

Despite the perceived evolution referred to in the remarks above, it is still an undisputed legal fact that under international law, states have the right to exercise criminal jurisdiction over all acts committed in their territories and elsewhere by their citizens. Sovereign absolutism insists on the primacy of sovereign states in the management of global affairs.

The state-oriented international system oft en makes states sceptical of the prospect of letting super-international institutions such as the Court (or even the UN) take over their sovereign duties. Part of that scepticism is a result of uncertainty that may result in surrendering some sovereign rights to international forums, as that would mean losing a measure of their control and self-determination. As a result, states tend to ensure that the principle of state sovereignty is highly respected whenever possible, even in areas where they are willing to cede some of their sovereign powers. Therefore, when entering into multilateral treaties such as the Rome Statute, sovereign absolutists tend to lean towards the preservation of traditional sovereign rights.

Still, it is important to underscore the fact that states have different perceptions of both their sovereign rights and their capabilities in exercising them, including criminal jurisdiction over their population.