1. International and Transnational
LAW 503
International and Transnational
Criminal Law and Procedure
Assist. Prof. R. Murat ÖNOK II

2. CONTENTS
Relationship with national criminal jurisdiction – Principle of “complementarity”
1.1 The meaning
1.2 Why was the principle of “complementarity” adopted?
1.3 The effect of “complementarity”
Pre-conditions to the exercise of jurisdiction (Art. 12)
Jurisdiction Ratione Temporis
Jurisdiction Ratione Personae
Jurisdiction Ratione Materiae
Exercise of jurisdiction
6.1 Trigger Mechanisms
6.2 Referral of a situation by a State Party
6.3 Referral by the UN Security Council
6.4. Excursion- The Sudan Example
6.4.1 UN SC Res (2005), adopted on 31 March 2005
6.4.2 Is there a duty incumbent on Turkey to cooperate with the ICC?
6.5 Proprio motu power of the prosecutor (Art. 15)
6.6 Exercise of jurisdiction concerning the crime of aggression

3. 1. Relationship with national criminal jurisdiction – Principle of “complementarity*”
“The Court is intended to supplement, not to supplant, national jurisdictions” (Cryer et al. at 153).
The ICC is a ‘court of last resort’ and it does not replace national jurisdiction. Indeed, the Rome Statute does not recognise the Court’s primacy.
As explained in paragraph 10 of the Preamble[1] and Art. 1 of the Statute[2] the Court’s jurisdiction is complementary to national criminal jurisdiction. The results of this understanding are illustrated by Art. 17, to which we’ll refer later.
[1] “Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions”
[2] “An International Criminal Court ("the Court") is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. (....)”.
[*] The word “complementarity” is used by scholars and ICL experts to describe this relationship. Although such word didn’t actually exist in English, it was derived from the French word “complémentarité” and created by the ad hoc committee and PrepCom preparing the ICC draft statute.

4. 1.1 The Meaning
Complementarity refers to the fact that the ICC is in a subsidiary/secondary position with regard to national states in respect of prosecuting the crimes within its jurisdiction.
The states have primacy and priority in trying those crimes that fall within the jurisdiction of the ICC. In case they want to exercise jurisdiction they are free to do so. In such case, except for a few exceptions laid down under art. 20 (3), the ICC may not investigate or prosecute these cases.
Only in two cases may the ICC enter into play and replace national criminal jurisdiction: when national prosecution organs are unwilling or unable genuinely to carry out the investigation or prosecution.
The purpose of the principle of complementarity is to establish harmony between concurrent and conflicting jurisdictions over int’l. crimes. In the ICC framework, this balance has been established by creating a rank of precedence between concurrent jurisdictions, and granting national criminal jurisdiction priority.

5. 1.2 Why was the principle of “complementarity” adopted?
The incorporation of the principle of complementarity in the Rome Statute is a clever choice.
Firstly, it is normal that the ICC has only been given the role to fill in the gaps of national jurisdiction: as a result of the principle of sovereignty each state is primarily entitled to exercise jurisdiction over crimes committed on its territory, or within its own jurisdiction.
Second, national states find themselves in a better position with respect to carrying out investigations and prosecutions:
+ National systems are more developed, faster and more efficient. This is because they work within an established law system, rely on a developed and explicit substantive law, take advantage of clear procedural rules, apply clearly defined sanctions that are ready to be enforced through existing systems, and cultural and linguistic problems are not an issue.
+ The state of the country where the crimes was committed is also in a better position with regard to the collection of evidence.

6. Third, had the ICC been given priority, it could have been flooded with applications from all over the world and would have been unable to cope with such workload. In that sense, it is wise that national organs are given primacy unless they are not in a position of carrying out an efficient and fair trial.
Fourth, from a political and pragmatical point of view, the principle affords a balance to be established between the concern to protect national sovereignty, and the necessity to establish a permanent and global judicial organ that can prevent impunity for int’.l crimes.
The principle of complementarity elucidates that the ICC is an ultima ratio organ that can not seize the national organs’ right to exercise jurisdiction.
It is certainly also thanks to this understanding that so many states have decided to ratify the Rome Statute. In fact, agreement on this principle was reached at an early stage (before the Rome Conference) as it was a pre-requisite to obtain the support of many states to the establishment of the Court.

7. 1.3 The effect of “complementarity”
What becomes apparent from what is said so far is that effective and bona fide prosecutions carried out by national organs will prevent the ICC from entering into play.
This is an important point which will push national states to enforce their int’l. obligations and prosecute int’l. crimes. States will know that if they are unable to conduct an effective and fair trial governed by internationally accepted human rights standards, the ICC will enter into play in order to make up for the failure of the national system. This is a prospect that states will want to avoid.
This is why many states have enacted national implementing legislation in order to harmonise their national law with the requirements of the Rome Statute. This is done so that crimes within the jurisdiction of the ICC can be effectively prosecuted at the national level.
In this sense, the Rome Statute enhances national prosecution of certain crimes that have gone unpunished for so long.

8. 2. Pre-conditions to the exercise of jurisdiction (Art. 12)
Probably the most important and controversial issue at the Rome Conference was the provision of Art. 12, regarding the conditions under which the ICC may exercise jurisdiction.
The first paragraph of the article lays down the automatic (or inherent) jurisdiction of the court by stating that “A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5”.
In other words, once a State becomes party to the Rome Statute, no further action or statement is required for the recognition of the Court’s competence to assert jurisdiction over the crimes in question.
Therefore, the ICC is in a stronger and more authoritative position when compared to some other int’l. courts, such as the ECtHR and the ICJ.

9. This outcome at the Rome Conference is a major achievement since many states were only willing to accept automatic jurisdiction with regard to genocide. With regard to other crimes, several proposals were submitted:
- Seeking a further second consent over specified crimes (opt-in regime),
- Recognition of the Court’s jurisdiction on a case-by-case basis,
- Recognition of automatic jurisdiction, but the possibility to exclude a crime from the jurisdiction of the Court with regard to the State that makes a declaration to that effect at the moment of ratification (opt-out regime).
All of these proposals would have generated a jurisdiction “à la carte”, thus severely undermining the effectiveness of the ICC.
The 1994 Draft prepared by the ILC was not much better as it provided for inherent jurisdiction only with regard to genocide, and seeked the consent of BOTH the custodial state and the state on the territory of which the act or omission occurred.

10. The fact that automatic jurisdiction was accepted despite these proposals is a major diplomatic success of those States wishing a strong court.
However, a reflection of those requests was incorporated into the transitional provision of Art. 124 which allows a State, on becoming a party to the Statute, to declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to war crimes when a crime is alleged to have been committed by its nationals or on its territory.
The provisions of this article had to be reviewed at the Review Conference convened in accordance with article 123, paragraph 1. At the Conference held in Kampala, Uganda, it was decided to keep Art. 124, and to review it during the fourteenth session of the Assembly of States Parties to the Rome Statute (that would be at the end of 2015).

11. Having automatic jurisdiction does not mean that the ICC may prosecute a crime within its jurisdiction committed anywhere on the world, by any person.
Art. 12 (2) explains where or by whom the crime should be committed in order for it to fall within the jurisdiction of the Court. The Court does not have universal jurisdiction. According to this provision: “.....The Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national”.
In simpler words, the crime within the jurisdiction of the Court must have been committed by the national of or on the territory of a State party to the Rome Statute.
As it can be seen, the grounds for asserting jurisdiction are based on the principle of territoriality and active personality.

12. However, the provision of Art
However, the provision of Art. 12 (3) provides another alternative: “If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.”
In other words, if the crime has been committed by the national of or on the territory of a State which is not a party to the Rome Statute, that State may still accept the jurisdiction of the ICC with regard to the act in question (on a case-by case basis).

13. The scope of Art. 12(2) and (3) was also widely discussed during negotiations. The German delegates thought that universal jurisdiction should have applied, since the crimes incorporated into the Statute interest int’l. community as a whole and their perpetrators are ‘hostis humanis generis’ (enemies of mankind).
On the contrary, many states led by the USA thought that BOTH the state on territory of which the crime is committed AND the state of which the perpetrator is national of should accept ICC’s jurisdiction.
In this case, it would not have been possible to prosecute the national of a State that did not consent. In other words, a State that did not intend to become party to the Statute would have guaranteed the immunity of its national from the jurisdiction of the ICC.
USA was persistent on this issue and submitted a proposal in this direction on the very last day of the Rome Conference but other states voted by an overwhelming majority in favour of a no-action motion, thus neutralizing this attempt.
In fact, another package would have provided that acts committed on behalf of the State (“Act of State” doctrine) by nationals of a state non-party to the Rome Statute could not have been prosecuted by the ICC, but this proposal was also rejected.

14. The following result may be derived from what has been said above: the national of a State which is NOT a party to the Statute may still be tried before the ICC if he has committed the act or omission in question on the territory of a State which is party to the Statute.
In addition, even if the State on the territory of which the crime has been committed is not a party to the Statute, the perpetrator may be tried if that State has accepted the jurisdiction of the Court on an ad hoc and case-by-case basis (for the specific event in question).
In conclusion, even if Turkey has not yet acceded to the Statute a Turkish national may still be prosecuted by the ICC.
As a result, some writers have argued that the Rome Statute is in violation of int’l. law as it imposes obligations on third states that are not a party to the Statute.
This argument is incorrect: The consent of the state of nationality of the perpetrator is not required. Due to the principle of territoriality, a state on whose territory a crime is committed is entitled to exercise jurisdiction over such act, no matter the nationality of the perpetrator.
Similarly, there is no doubt that the territorial state is also entitled to express its consent to the transfer of its own right to exercise jurisdiction to an int’l criminal court. This is also a sovereign act which does not require the consent of any other state.

15. 3. Jurisdiction Ratione Temporis
Article 11 of the Rome Statute reads “1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.
2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3”.
This provision, taken together with that of Arts. 22 and 24, lays down the universal principle of non-retroactivity of penal laws, which is a fundamental component of the principle of legality.
Similarly, the principle of non-retroactive application of international treaties provided for by Art. 28 of the 1969 Vienna Convention on the Law of Treaties is also respected.

16. As we mentioned before, it is argued that in ICL the principle of legality shall not be understood exactly as it is in domestic criminal laws. Therefore, it is suggested that an act or omission proscribed by customary law may also be punished through an ICT established at a later date. This approach is also supported by the wording of ECHR art. 7 (2) and ICCPR Art. 15 (2), and the ICTY and ICTR Statutes.
Even so, in order to obtain a wide support by the States, the Rome Statute provides that the Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.
However, according to the provision of the second paragraph, a State which has become a party to the Statute at a later date then its entry into force ( ) may still decide to accept the Court’s jurisdiction with regard to an act (or omission) that was committed before the entry into force of the Statute in its respect.

17. Para. 1 of Art. 22 entitled “nullum crimen sine lege”: A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.”
Para. 1 of Art. 24 entitled “Non-retroactivity ratione personae”: “No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.”

18. 4. Jurisdiction Ratione Personae
We had previously mentioned that the mandate of the Court is to investigate and prosecute the perpetrators of the most serious acts which are of concern to the int’l. community as a whole (Arts. 1 and 5 (1))[1].
An obvious consequence of these provisions is further clarified by Art. 25 which states that “The Court shall have jurisdiction over natural persons pursuant to this Statute”.
In other words, States and other legal persons (be it private or public) may not be tried by the Court.
In reality, it is obvious that the crimes laid down in the Statute will mostly be committed in pursuance of State policy or with the active support of state authorities.
This is why these crimes are sometimes called “state crimes”. The crime of aggression, which is linked to an act of aggression committed by a State against another is the clearest example.
Even so, the truth is that, even when committed on behalf of the state, natural persons plan, prepare and execute the commission of these crimes.
[1] Art. 1 reads: “An International Criminal Court (‘the Court’) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute...”, Art. 5 (1) reads: “The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole”.

19. In the draft prepared by the PrepCom it was envisaged that legal persons (except States) should also be held responsible in case the crimes were committed on their behalf or by their representatives.
This formula was given up at the Rome Conference.
This is because there was no general principle regarding the criminal liability of legal persons under national domestic legal systems, and many states did not provide for such liability.
Had legal persons been held responsible under the Rome Statute, the principle of complementarity would have largely lost its meaning as most states would have been unable to try legal persons.
Another restriction with regard to personal jurisdiction is that “The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.” (Art. 26).

20. Although states may not be tried by the ICC, a factual reality is that most crimes within the Court’s jurisdiction may only be committed in the existence of State support or official tolerance.
In that case, the ICC will still have to play a role in inter-state relations, because some of the acts which require individual criminal responsibility under the Statute will be official acts of state. In those cases, official state politics will also be indirectly under judicial scrutiny (eg., the use of certain methods of warfare, certain attacks perpetrated on civilian population).
Furthermore, the defendants will be high-ranked state officials.
Even more, in some cases the State that is harmed by such acts will refer the case to the ICC, and when it comes to gathering evidence as to the facts, the States in question will contest the allegations of each other’s representatives. The court will have to decide on the legitimacy of certain actions which a certain state deems to be lawful.
In brief, although only natural persons will be on the docket, inter-state bona fide legal disputes will also arise. This is probably why many strong States, and the US in primis, are so politically sensitive against the ICC.

21. Another provision connected with personal jurisdiction is that of Art
Another provision connected with personal jurisdiction is that of Art. 27: “This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.”
This reflects the principle known as “irrelevance of official capacity”.

22. 5. Jurisdiction Ratione Materiae
Subject matter jurisdiction (“madde bakımından yetki” in Turkish) indicates criminal procedural rules that establish which types of crimes fall within the jurisdiction of a certain court.
As highlighted many times, the ICC’s jurisdiction shall be limited to the most serious crimes of concern to the international community as a whole (para. 10 of the Preamble, Arts. 1 and 5 (1)).
This is not to mean that the crimes within the Court’s jurisdiction have to target the whole int’l. community. The meaning is that these acts are of such gravity that they endanger the int’l. community as a whole. As such, they concern the peace and security of mankind.
Therefore, not every act that might be accepted to entail int’l. individual criminal responsibility has been incorporated into the Statute. Only the so-called “core int’l. crimes” have been enumerated under Art. 5 of the Statute.
According to Art. 5 entitled “crimes within the jurisdiction of the Court”, the ICC has jurisdiction with respect to the following crimes: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.

23. There are the following differences with respect to the subject matter jurisdiction of previous ICT Statutes:
The crime of genocide had not been laid down as a discrete crime in the Nuremberg IMT and Tokyo IMTFE Charters;
The crime of aggression was not within the ICTY’s (and, obviously, ICTR’s) jurisdiction;
A different point from the ICTR is that war crimes committed in int’l. armed conflicts can also punished;
Contrary to the previous Statutes, the crimes in question are defined in detail, especially in the “Elements of Crimes”, leaving less discretion to the judges, and thus providing safeguard to the defendants (and states).

24. The four crimes within the ICC’s jurisdiction are considered crimes committed against int’l. law (“delicta jus gentium”).
However, the crime of aggression, although enumarated under Art. 5, is de facto yet not within the Court’s jurisdiction. This is because states could not reach an agreement on the definition of this crime at the Rome Conference. The principle of legality prevented the punishment of a crime which had no statutory definition.
Indeed, Art. 5 (2) provided that: “The Court shall exercise jurisdiction over the crime of aggression 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 this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.”
So, until a definition is agreed upon, incorporated into the Statute and put into force, acts of aggression could not be tried by the ICC.
In 2009 I had stated the following: “A working group is studying on the subject, but the prospects of succesfully agreeing on a common definition that would get the required number of ratifications seems very slim to me.”

25. Even so, States did manage to agree on 11 June 2010 on a definition at the Review Conference held in Kampala, Uganda.
Article 8 bis adopted in Kampala defines in its first paragraph that ‘For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
The meaning of “act of aggression” is then defined in para. 2. We’ll study the elements of aggression later on.
However, Art. 15bis and 15ter explain when jurisdiction over this crime may be exercised:
First of all, the Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.
Even more important, the Court shall exercise jurisdiction over the crime of aggression “subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.” (para. 3).

26. In other words, although the amendments were adopted by consensus in accordance with Article 5(2) of the Statute and will enter into force under Article 121(5), the provisions of both article 15 bis and article 15 ter provide that the Court will not be able to exercise its jurisdiction over the crime of aggression until:
- at least 30 States Parties have ratified or accepted the amendments; and
- a decision is taken by two–thirds of States Parties to activate the jurisdiction at any time after 1 January 2017. 

27. On the other hand, there are some other crimes such as int’l
On the other hand, there are some other crimes such as int’l. terrorism, drug trafficking, trafficking in human beings, that are not within the Court’s jurisdiction although their incorporation had been supported by certain states.
The reasons why these crimes were not incorporated within the ICC’s jurisdiction may be summarised as follows:
- These crimes have not yet gained the status of int’l. crime according to customary law;
- They are not as grave as the other core int’l. crimes;
- Some of the int’l. treaties laying down these crimes have not been ratified by a large number of states;
- There are other international instruments which provide a tool for fighting against these crimes;
- It is believed that at national level these crimes would be better repressed;
- With regard to terrorism in particular, it was impossible to reach consensus on a commonly acceptable formula which can meet the requirements of clarity and determinacy connected with the principle of legality;
- With regard to int’l. trafficking in drugs it is thought that classical bilateral and regional cooperation options may suffice.

28. The incorporation of these other crimes into the Rome Statute could have distanced the ICC from its real purpose, to fight against the most serious int’l. crimes which are of concern to the int’l. community as a whole.
Furthermore, those States that were not so keen on an ICC tried at least to keep its scope of jurisdiction narrow.
However, in the Final Act adopted at the end of the Rome Conference it was recommended that a Review Conference pursuant to Article 123 of the Statute of the International Criminal Court considers the crimes of terrorism and drug crimes with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court.
Thus, the first step in this direction has already been taken. However, because the amendment procedure requires a very high majority, such inclusions seem highly unlikely in the near future.
In any case, no such amendment has been adopted at the Review Conference in Kampala (in the 9th meeting of the ASP (December 2009) it had been decided not to submit any such amendment for negotiation before the Conference).

29. 6. Exercise of jurisdiction
Up to now, we have stressed out the complementary nature of ICC’s jurisdiction, then analyzed the pre-conditions to the exercise of jurisdiction, and then studied the temporal, personal and subject-matter jurisdiction of the Court.
By pre-conditions to the exercise of jurisdiction we understand that in order for the Court to have jurisdiction over a certain conduct, the act or omission must be committed on the territory or by the national of a state party to the Rome Statute. Furthermore, the conduct must have occurred after the entry into force of the Statute (temporal jurisdiction), must have been committed by a person not under the age of 18 at the time of the commission of the conduct (personal jurisdiction), and the conduct must fall within the scope of one of the crimes enumerated in Art. 5 (subject matter jurisdiction).
However, even the existence of all these conditions does not suffice to trigger an investigation/prosecution by the Court.
In order for the ICC to handle a situation, a case that may fall within its jurisdiction must be referred to it, ie., it must be brought before/to the attention of the court.
Initiation of proceedings depends on the matter being taken before the Court. The term ‘trigger mechanisms’ is used to refer to the methods initiating proceedings.

30. 6.1 Trigger Mechanisms
The articles regarding the exercise of jurisdiction regulate under which conditions the Court may take up a case that falls within its jurisdiction. Article 13 of the Statute reads: “The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15”.
Thus, the first alternative is referral by a State Party, the second alternative is referral by the Security Council acting under Chapter VII of the UN Charter, and the last alternative is the institution of an investigation by the Prosecutor acting on his own iniative (proprio motu power conferred on the prosecutor).
There would also be a fourth option not explicitly mentioned in Art. 13: A state which is not a party to the Statute may still refer a certain situation in which a crime within the Court’s jurisdiction seems to have been committed on its own territory, or by its own national, and accept the Court’s jurisdiction (Art. 12 (3)).

31. 6.2 Referral of a situation by a State Party
Art. 14: “1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.
2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.”
According to Rule 45 of the Rules of Procedure and Evidence the request must be in writing. The failure to attach supporting documentation to the request should not by itself require the rejection of the application.
A thing that must be noted straightaway is that a state party to the Statute may refer to the prosecutor situations that have not been committed on its own territory, or by its own national.
At the Rome Conference it was argued that only “concerned” states should be able to refer situations. In this case, the concerned state would have been the state of which the perpetrator or victim is a national of, the custodial state, or the state on the territory of which the crime is committed. Such restrictive formula was later abandoned because it was thought that all states party to the Statute have an interest in the prosecution of the serious crimes within the Court’s jurisdiction.
In addition, ‘self-referral’ (States referring crimes committed within their own territory to the Court) is possible and was, indeed, the case with the first cases to be brought before the Court.

32. A state that is not a party to the Statute may only apply to the ICC under Art. 12 (3) when a crime has been committed on its territory or by its national. If that is not the case, such State may either take the issue before the UN SC hoping for a referral decision to be adopted, or may inform the prosecutor of the situation in the hope that he will begin an investigation on his own motion.
The article allows a state party to refer a certain “situation”, but not a specific case or matter.
The word “situation” was preferred because of its more general nature, whereas the word “matter” was found to be too specific for the independent functioning of the Court.
So, once a general referral is made to the prosecutor (eg., the violations occurring during the internal armed conflict in a certain place), it is up to the prosecutor to determine the investigations to follow and the suspects to be charged.
Thus, in crimes committed by various perpetrators, states may not restrict the referral to certain perpetrators.
Similarly, if various crimes have been committed within a certain context, the referral may not exclude some of them.

33. The referral made by states is not binding on the prosecutor
The referral made by states is not binding on the prosecutor. In other words, the prosecutor is free to decide whether charges should be brought and an indictment be drawn.
Indeed, if the case is being investigated or prosecuted by a State which has jurisdiction over it (Art. 17), or there is not a sufficient legal or factual basis to seek a warrant or summons (Art. 53/2), the Prosecutor may decide that there is no basis for prosecution.
Even more important is the provision of Art. 53 (2) (c) which allows the Prosecutor to discontinue the investigation if “A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime”.
To sum up, the prosecutor may decide not to proceed with the investigation despite a request made by a state party. These provisions illustrate the independence and impartiality of the prosecutor.

34. 6.3 Referral by the UN Security Council
Article 13 (b) provides that “A situation in which one or more of such crimes appears to have been committed” may be referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.
Prima facie evidence is enough for the UN SC to be able to refer a situation to the prosecutor. In other words, the Council must satisfy itself that at first sight it looks possible that a crime within the Court’s jurisdiction might have been committed.
Again, the referral has to be of a general nature (“situation”) , it is up to the prosecutor to determine the crimes and suspects to be investigated.
The Statute does not regulate the method to be followed by the UN SC in referring a situation to the prosecutor. The only specification is that the Council must be acting under Chapter VII of the UN Charter. In other words, int’l. peace and security must have been breached or must be under threat.

35. The Rome Statute does not specify the method to be followed by the UN SC. It is not clear whether the referral must be made through an official resolution, or if such referral is binding on the prosecutor or not.
It is normal, and even obligatory that the method of referral has not been laid down in the Statute: the method for passing resolutions in the SC is regulated by the UN Charter, and even if a different method was to be envisaged with regard to the ICC, it would only have been possible through an amendment made to the UN Charter itself.
Thus, Art. 27 of the UN Charter shall apply to the matter. Since a referral to the ICC can not be considered a procedural matter, the decision shall be made by an affirmative vote of nine members including the concurring votes of the permanent members.

36. An unclear issue is whether such a referral is binding on the prosecutor or not. While the wording of Art. 16 regarding deferral of investigation or prosecution makes it clear that the request is binding, there is no such clarity with regard to Art. 13 (b).
However, art. 53 regarding the initiation of an investigation provides that “The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute.”
The same article also provides that the prosecutor shall consider the issues of admissibility laid down in art. 17 in reaching his decision.
So, no distinction is made between state and UN SC referrals. Thus, it may be concluded that the prosecutor is not under an obligation to initiate an investigation when the situation is referred by the UN SC.

37. The most important feature about the UN SC referral is that in such case the pre-conditions to the exercise of jurisdiction no longer apply. In other words, ICC’s jurisdiction will cover any UN member state, regardless of whether it is party to the Statute or not. This is because all UN members must accept and implement UN SC resolutions according to Art. 25 of the UN Charter.
It follows that in case of UN SC referral, all UN member states are also under a duty to cooperate with the court in the investigation and prosecution (if the relevant SC resolution so requires). Thus, a UN SC referral will allow the prosecutor to enjoy wider territorial powers and guarantee stronger effectiveness.
In sum, when the ICC conducts an investigation/prosecution based on a referral by the Security Council, it acts as an ad hoc global tribunal with regard to the situation that was the matter of the referral.

38. 6.4 Excursion- The Sudan Example
Sudan has signed the ICC Statute, but has not ratified it and is thus not a state party.
Nevertheless, the Security Council referred the Darfur situation to the Court acting under Chapter VII of the U.N. Charter, which gives the Council enforcement powers when it finds that a situation poses a threat to the peace, breach of the peace or act of aggression.

39. 6.4.1 UN SC Res. 1593 (2005), adopted on 31 March 2005
The Security Council,
Taking note of the report of the International Commission of Inquiry on violations of international humanitarian law and human rights law in Darfur (S/2005/60),
Recalling article 16 of the Rome Statute under which no investigation or prosecution may be commenced or proceeded with by the International Criminal Court for a period of 12 months after a Security Council request to that effect,
Also recalling articles 75 and 79 of the Rome Statute and encouraging States to contribute to the ICC Trust Fund for Victims,
Taking note of the existence of agreements referred to in Article 98-2 of the Rome Statute,
Determining that the situation in Sudan continues to constitute a threat to international peace and security,
Acting under Chapter VII of the Charter of the United Nations,
1. Decides to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court;
2. Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;
3. Invites the Court and the African Union to discuss practical arrangements that will facilitate the work of the Prosecutor and of the Court, including the possibility of conducting proceedings in the region, which would contribute to regional efforts in the fight against impunity;

40. 4. Also encourages the Court, as appropriate and in accordance with the Rome Statute, to support international cooperation with domestic efforts to promote the rule of law, protect human rights and combat impunity in Darfur;
5. Also emphasizes the need to promote healing and reconciliation and encourages in this respect the creation of institutions, involving all sectors of Sudanese society, such as truth and/or reconciliation commissions, in order to complement judicial processes and thereby reinforce the efforts to restore longlasting peace, with African Union and international support as necessary;
6. Decides that nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union,unless such exclusive jurisdiction has been expressly waived by that contributing State;
7. Recognizes that none of the expenses incurred in connection with the referral including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily;
8. Invites the Prosecutor to address the Council within three months of the date of adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;
9. Decides to remain seized of the matter.

41. 6.4.2 Is there a duty incumbent on Turkey to cooperate with the ICC?
“2. Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully”.

42. YES, Turkey must cooperate: Art
YES, Turkey must cooperate: Art. 25 UN Charter: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”
NO, States not parties to the Rome Statute do not have to cooperate: The UN SC resolution does urge such states to cooperate, however it uses non-obligatory language. While the arrest warrant and the request for surrender have been transmitted to members of the United Nations that are not party to the Rome Statute, the Pre-Trial Chamber of the ICC also acknowledged that non-states parties are not required to comply with its request for cooperation. Absent future resolutions imposing a binding obligation to cooperate, there is therefore no obligation on a non-state party to arrest and surrender President Bashir to the ICC.

43. 6.5 Proprio motu power of the prosecutor (Art. 15)
Art. 15 (1) provides that “The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court”.
This was one of the most contentious and controversial issues at and after the Conference, since recognition of the prosecutor’s power to act on his own motion would have deeply affected the functioning of the court.
The prosecutor may initiate an investigation on the basis of information. According to Art. 15 (2), the Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court. So, as in domestic criminal proceedings, concrete information and facts are needed in order to kick off the investigation.

44. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected (Art. 15(3)). Obviously, the prosecutor’s conclusion cannot be arbitrary, but must be reasoned.
If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case (Art. 15 (4)). It is only after this point that the prosecutor may enjoy the powers conferred to him by Art. 54 of the Statute.
The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation (Art. 15 (5)).
If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence (Art. 15 (6)).

45. If we consider these rules as a whole, it may be concluded that the power conferred to the prosecutor by Art. 15 is not to start a full-scale investigation, but rather to initiate a preliminary examination.
If the prosecutor concludes that there is a reasonable basis to proceed with an investigation, he has to apply to a judicial organ, the Pre-Trial Chamber.
It is only after being authorised by the Chamber that the prosecutor may conduct a full investigation and enjoy the investigatory powers laid down in Art. 54 of the Statute.
So, the proprio motu power of the prosecutor is not as far-reaching as it first seems. In addition, the procedures provided by Arts. 17 and 18 (see next slides) also offer sufficient safeguards against a prosecutor pursuing his personal political agenda.
The introduction of the Pre-Trial Chamber, which is constituted by one or three judges was an important safeguard which will protect both states and prosecutors from concerns regarding impartiality. Although this method may render the prosecution slower and more expensive, state concerns were accomodated by sharing the powers of the prosecutor with a judicial organ, thus inducing states to accept proprio motu powers.

46. To summarise, although reduced in scope and judicially curtailed, the acceptance of such a power is still an important feature of judicial independence, and it is a novelty in ICL.
The proprio motu power of the prosecutor are particularly important if considered that inter-state complaint mechanisms regarding int’l. human rights control mechanisms have often remained inactive. In other words, states are usually reluctant to make an application against each other.
The UN SC is also a political organ, so the same considerations apply to SC referrals.
This is why it was important to grant the prosecutor proprio motu powers in order not to have a dormant Court.
Even so, as of November 2009 the Prosecutor had yet to rely on Art. 15 as three referrals were made by States, and one by the UN SC so far. However, the Prosecutor used his own initiative to look into the situation of Kenya, and he later requested ( ) and obtained authorization ( ) to open an investigation. Later, Côte d’Ivoire is the only other example of the use of proprio motu powers.

47. 6.6 Exercise of jurisdiction concerning the crime of aggression
As explained above, a special jurisdictional regime has been established with regard to the crime of aggression.
In general, it might be said that Articles 15 bis and 15 ter set out the conditions for the Court’s exercise of jurisdiction over the crime of aggression.
Where a ‘situation’ is referred to the Prosecutor by the UN Security Council, article 15 ter of the Statute provides that the Court’s jurisdiction is triggered in the same manner as with the other crimes in the Statute, meaning the Prosecutor may proceed with an investigation into the crime of aggression.
With regard to referrals not made by the SC, Art. 15bis, in addition to the conditions already listed above, seeks additional requirements.
One of them is that the Court may exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, only if that State has not previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar (para. 4). So, there is an opt-out regime.

48. In addition, in contrast to Security Council referrals, under article 15 bis, the Prosecutor may only proceed with an own motion (proprio motu) investigation or an investigation based on a State referral of a situation into the crime of aggression:
after first ascertaining whether the Security Council has made a determination of the existence of an act of aggression (under article 39 of the UN Charter) and waiting for a period of 6 months;
where that situation concerns an act of aggression committed between States Parties; and
after the Pre-Trial Division of the Court has authorized the commencement of the investigation. 
Both articles 15 bis and 15 ter note that any determination by an organ outside of the Court (such as the Security Council) will be without prejudice to the Court’s own finding of an act of aggression.