POSSIBILITIES , PROSPECTS AND TASK AHEAD

The ICC has started functioning and exercised jurisdiction, considered admissibility matters quite successfully and this hard-won human institution to terminate impunity, fix individual criminal responsibility, promote international due process of law,rule of law and international criminal justicing system has come to stay.By now, ICC fundamentals reach out to civil society.

The ICC has become an article of faith rather than being considered simply as a deterrence- instrumentality. As the ICC jurisprudence unfolds gradually, certain hiccups call for academic and diplomatic attention.

Diplomats, decision- makers, jurists, statesmen and legal researchers demonstrate genuine concern at the interlocking jurisdictional and admissibility issues which the ICC has already experienced. The paper does not reiterate the ICC fundamentals ,but hastens to focus on the select , profound problem areas and urgent task ahead exclusively.

ISSUES & TASK AHEAD
RATIONE MATERIAE

Drug trafficking and terrorism[1] which could have been included in the concluding negotiation process may be brought to the ICC material jurisdiction in the near future review conference of the ASP. Unlike international terrorism that had been brought under the regime of a dozen of international conventions, drug trafficking eludes an effective international regime.

Definition of Aggression[2] could be worked out with the active efforts of the hyperstates , which apparently are bent upon de-criminalizing the ICC statutory offence in terms of primacy of foreign policy considerations. ICC could remain in seize of the aggression issue subsequently after the UN system addresses into the matter.

Nuremberg principles and the near consensus so far arrived at ,among others could prepare a better framework.For operational reasons, the opt-out procedure tagged to war crimes could also be tagged to aggression even after aggression has been defined. The opt-out procedure would give breathing states to rogue states and also to states like the USA.

RATIONE TEMPORIS

The ICC statute provides for prospective enforcement of the statute after July 2002 or, after the material state had implemented subsequently after the treaty ratification. The problem lies in the matter of Continuous crimes[3] like enforced disappearances of persons before the Rome statute had been enforced in a material state -territorial state or state of nationality.The semantic hurdles like' committed','commenced' and' non-retroactively' [4] would renforce the ongoing validity of the issue regarding Continuous crimes

RATIONE PERSONAE

The ICC faces the problem of exercising its jurisdiction over certain entities like- the stateless personnels, dual nationals and suspected offenders[5] . States exercise jurisdiction in customary law over the surrenderees and arguments have been advanced that the ICC would have universal jurisdiction over the surrenderees.

Albeit the US firefighting domestic laws for the Peacekeepers and the existing national jurisdictions over the national components of Peace keeping operations, the UN Security Council reserves its power to make prosecutions either politically or in whatever terms diplomatic nuances would permit. The p-5 enjoys perpetual hegemony over the UN Security Council - the ICC trigger mechanism. The USA is virtually the triggering mechanism .

A non-state party can make a declaration by way of accepting the ICC jurisdiction in the matter of a situation[6], and the possibility of aiming the gun at the adversary might not be ruled out. The ICC lacks the authority to ask a state to arrange surrender in regard to third state.

On the other hand , the possible abuse by the powers like the USA, of 'Status of Forces Agreement'[7], in order to incapacitate the ICC to reach out to the US personnels is a forseeable issue. The issue of bringing previous offenders under universal jurisdiction is another matter worthy of impunity termination.

RATIONE LOCI

Besides the existence of territories outside the ICC jurisdiction like the High seas, Outer space, Antarctica and other areas[8] unexplored by the comity of nations, question arises about the strict interpretation of article 12 of the 1998[9] multilateral Treaty.

The application of ratione personae jurisdiction could be difficult in practical terms, in regard to dissolving states or contested territories and disputed boundaries[10]. 50% of the contemporary international boundaries are apparently disputed. The issue could also be compounded whenever custodial states[11] are involved.

Declarations made by some states so as to exclude ICC territorial jurisdiction bears ominous ramifications.

Challenges

The ICC could possibly face certain challenges -apparent and real-in its operations. The ICC jurisprudence is in the making and it is the best time for effective legal research, diplomatic and international concern for mid-path correction or trajectory re-definition.

The possible challenges could be in the province of sham trials [12] by states, lack of extradition treaties or more emphatically in the domain of Amnesty [13] by the state or pardon awarded to national offenders, skillfully crafted by states in order to evade the ICC jurisdiction in the thick of cumbersome legalese.

Truth commissions[14] in South Africa or East Timor might have been national political strategies and at the same time they can reduce accountability to a jargon and resurrect impunity as surrogate deterrence . 'Unwillingness' or'inability[15]' in article 17 could be easily misconstrued with sham legality.

Well engineerd international peace treaties for mutual or unilateral non-prosecution[16] of heinous war criminal as India and Pakistan did in 1971 can confortably shield forever the heinous criminals who had committed war crimes and genocide. The fig leaf peace treaty could decorate heinous criminals with garland of impunity.

Prosecutorial discretion is a two- edged sword; he can seek a ruling from the court in matters relating to jurisdictional issues and admissibility. Till the prosecutorial jurisprudence has been firmly determined and settled the legalese assault on prosecutor by hyper state are unfounded though.

US Black- hole doctrine

The USA, which had initially mooted and hammered out the ICC agenda backed out of its own initial agenda[17]. Notwithstanding the pull out at the later stage,the hyper state did not give its signature on the 31st December, 2000[18] without sharing the ICC philosophy.

American foreign policy considerations had probably outweighed the initial US commitments that reached international consensus with sufficient American inputs. The US-created unilateral or bilateral legalese black hole has twisted the multilateral and consensual.

ICC operations which otherwise are pregnant with a brilliant international impunity termination[19] justicing system. The 'impunity agreements' reached by the state parties to the Rome statute could lead to transgression of state obligations as mooted in article 86 of the statute, and irreparably damage the 'international due process of law'. The spirit of article 86 has been left to wilderness in the legalese of the baseless impuniy agreements crafted by the hyper state.

The US Black- hole doctrine is preposterous from its first premises that the only super power in the new order would shy away from the multilateral Rome Treaty- its own chosen instrument at the incipient stage, and would attempt to net in the ICC trappings into its bilateral and even unilateral legal event horizon.

The US's legalese assault on articles 12, 15 and 17 of the Rome treaty[20] on the grounds primarily of the erosion of the absolute national sovereignty and non- party states are found to be baseless, considering the fact that the US-led international human rights regime, its US-led globalization political, economic and legal agenda, and extradition laws had long back abandoned the insularist unilateralism[21] and medieval absolutist sovereignty.

The fear psychosis induced by article 12(2) of the Rome statute that haunts the the US administration from the very beginning is characterized by the apparent universal jurisdiction the ICC prosecution could seek to apply to the would be American criminals or, forces whatever.

International criminal law had long back recognized the universal jurisdiction over international crimes like- piracy, slave trade, terrorism, hijacking, torture, trafficking in child and woman.

The argument that article 12(2) transgresses the treaty law that it should be binding only to contracting parties has overlooked the recent developments in international criminal law, jus cogens international human rights laws, and the justification behind making of ICTY and ICTR statutes based upon termination of impunity.

The article 17 complementarity provision is in fact not complementary in the true sense of the term, as it provides a subsidiary ICC forum to the primacy of national and domestic jurisdiction.Looking a little far ahead, in the event of every state party prosecuting and convicting its own homegrown heinous criminals within the three core crimes of the ICC, article 17 virtually issues a defunct certificate to the ICC mechanism.

The article 98 ( Rome treaty) agreements and instruments reached by the USA government are ultra vires the Rome treaty. The Armed Personnels' Protection Act, 2002 (ASPA) - which is otherwise feared by the humanity at large as the 'Hague Invasion Act [22]', has empowered the US President to shelve US personnels from the ICC jurisdiction, and authorized the President to use force.

To free US service personnels from the ICC custody in reminiscent of the pre-199I Cold war days. The US government is not worthy of launching international law cold war in the contemporary international rule of law, particularly in the ICC province.

The same government has been loudly skeptical of the UN Security Council as an imagined ICC political[23] prosecutor. The USA is the dominant veto-friendly permanent member of the Security Council through which it has materialized its non-negotiable foreign policy objectives. The US-imposed Security Council deferral resolution 1422 of 2002[24] on condition of annual renewl, has prevented ICC prosecution of UN peacekeeping personnels.

The Security Council resolution 1422 is of questionable legality and the ICC has its inherent authority to review the illegality of resolution 1422. In the same way as the ICTY has exercised it power to review the legality of the ICTY statute with the active encouragement of the hyper states, the ICC has its inherent power to review the abuse of Chapter VII of the UN charter in the context of justicing. The USA could bank upon the same standard in the international criminal law justicing The resolution has posed a direct threat to the ICC jurisdiction and operations.

The immediate concern

The ICC has become a reality and the international community including the hyper states whosoever do have humanitarian obligations to sustain the ICC as the most respectable human institution .

The jurisdictional and admissibility issues should be fully addressed to by the ICC,and the ASP as well in order to remove the teething troubles in the international criminal law justicing system.