Jurisdiction of International Criminal Court & The Cyberspace

The author of this blog is Vikash Kumar  4th Year B.A. LL.B.School of LAW, UPES, Dehradun.

The Rome Statute of the International Criminal Court (ICC) in article 12 presents pre-conditions to the exercise of the jurisdiction that it must either have been committed on the territory of that State Party or by a national of that State or have been committed on the territory of a State which has made a declaration under Article 12(3) of the Statute or by nationals of that State.’[1] The ICC as per article 13 may also exercise jurisdiction if the situation in which one or more of such crimes appears to have been committed is referred to the prosecutor by the UNSC [2]. This means that the court shall not have unlimited jurisdiction over any act of war crimes, the crime of aggression, crimes against humanity, and the crime of genocide. The jurisdiction must be exercised under the statute. The recent evolution of cyberspace will raise a lot of issues in exercise of jurisdiction. 

Let’s take an example of two neighboring countries Alpha and Delta; Alpha is a party to the Rome Statute while Delta is not the party to the Rome Statute. A citizen of Delta named ABC posted multiple posts on a social networking site Facebook intentionally targeting the majority group of Alpha, the post incites the majority group of Alpha to commit genocide against the minorities of Alpha. Here in this example, ABC has individual criminal responsibility as per article 25 of ICCSt because ABC incites the violence in Alpha, but ABC resides in the Delta and all his action was from Delta. The Alpha started the investigation and requested Delta for the extradition of ABC for the trial as he incites violence in Alpha. Delta denied the request first because there was no extradition treaty between both of them and second, ABC is not liable as per the domestic law of Delta. Alpha approached the ICC for the prosecution of ABC, but the question is whether ICC has jurisdiction over a national of a non-state party, as per the plain language of article 12 ICC has no such jurisdiction. Furthermore, article 34 of the Vienna Convention on Law of Treaties (VCLT) clearly states that there cannot be any obligations on the third state which means in this scenario the Delta has no obligations under ICC. Like other treaties, the Rome treaty also respects the theory of state consent and agreement and the interpretation must be as exactly what has been consented and agreed by the state parties. 
The jurisdiction of ICC is complementarily in nature[3], so, the first question arises that whether the state has the power to exercise beyond its jurisdiction.
The Lotus Case at the Permanent Court of International Justice was the first case to answer this question. It recognized that a state may exercise jurisdiction on its territory over the conduct which commenced abroad, which is important in these scenarios is States’ legitimate interests [4]. The effects occurred in Alpha was because of the Cyberspace connection between Alpha and Delta as ABC used Facebook and social networking site which is used all over the world and we know that the cyberspace recognizes no geographic boundaries and an actor sitting outside of a nation-state’s jurisdiction may employ the universal reach and access of cyberspace and create effects, anywhere they want. The basic foundation of cyberspace was established as a new medium of communication but criminal activity followed in parallel. In 2002, the Commission of the European Union for a Council Framework Decision on Attacks against Information Systems highlighted that “Computer-related crimes are committed across cyberspace and do not stop at the conventional, political state-borders. They can, in principle, be perpetrated from anywhere and against any computer user in the world.[5]

Now, the effects doctrine will come in the picture which means a court can exercise jurisdiction over the act of foreign national which created effects in their territory [6], the same in this example the action of the citizen of Delta from Delta created an effect in Alpha. But till now, ICC doesn’t recognize the principle of effects jurisdiction and even commented nothing on this. As per article 12 of ICC the conduct in question must occur on the territory of the state party, but how much conduct is required is nowhere mentioned in the Rome Statute. As per the previous practice of the prosecution, the conduct requirement means “at least one legal element of article 5 crime must occur on the territory of a state party[7]. The recent decision on the situation in Bangladesh/Myanmar highlights the same principle in which the coercive acts underlying the alleged deportation occurred on the territory of Myanmar which is not the party to the Rome Statute but one of the elements of the crime which is crossing borders occurred on the State party to the Rome Statute i.e., Bangladesh, so, the ICC may exercise jurisdiction[8]. Even in this example of Alpha-Delta, the element of the crime of genocide as mention in article 6 of ICCSt like ‘killings members of the group’, occurred on the territory of the Alpha which is a party to the Rome Statute. 

VCLT, 1969 states that interpretation must be done in good faith and the light of its object and purpose. We need to emphasize that the objective and the purpose of the Rome Statute is the most serious crimes of the international community must not go unpunished and there must need to put an end to impunity for the perpetrators to contribute to the prevention of crimes.[9] Also, as per VCLT, a treaty is not binding on the third state but it can create an obligation on the nationals of the third state, a state, and an individual are two different subjects of International Law which means in this example Delta is under no obligation of ICC but ICC may exercise their jurisdiction on ABC. 

Furthermore, the effects the principle is part of many national jurisdictions like in the USA, if ‘if criminal acts committed outside the United States affect the country, then it is permissible to prosecute those acts’[10]. Same in the Indian Information Technology Act, 2000 and Indian Penal Code, 1860, as they both have extra-territorial operation. In ArgentinaJapanChina, ‘a crime is deemed to have been committed within the territory’ when “either the act or the effects of the crime take place within the territory”. 

In much high technology crimes the physical presence of the accused is not a defining factor, it can be anywhere in the world, even in the country having the weakest legal framework. In recent times different groups are using cyberspace to spread hate speech and incite groups from sitting anywhere in the world. It was alleged even in the Rohingya case of Myanmar that the reason behind the mass killings and deportation was social networking posts that incite violence against them. In light of these situations, there is a need to widen the ambit of ICC jurisdiction to prosecute beyond the state party jurisdiction if there is a the substantial territorial connection between the acts and the effects. No doubt, the ICC doesn’t have unlimited jurisdiction and article 12 acts as a jurisdictional brake but the interpretation of article 12 must have been done in good faith and every state must exercise its criminal jurisdiction over those responsible for international crimes and if the member states were unable to exercise jurisdiction because of his inability or unwillingness, the ICC can exercise jurisdiction as per the complementarity principle.   

  [1] Rome Statute of the International Criminal Court, 1998, art. 12.    
[2] Rome Statute of the International Criminal Court, 1998, art. 13.    
[3] Rome Statute of the International Criminal Court, 1998, art. 1.    
[4] S.S. Lotus (France v. Turkey), ICGJ 248 P.C.I.J. 1927. 
[5] Commission of the European Union, “Proposal for a Council Framework Decision on Attacks against Information Systems” 16 Official Journal of European Communities 109 (2002). 
[6] Public International Law, John H. Currie, available at https://www.irwinlaw.com/cold/effects_doctrine (last visited on April 05, 2020). 
[7] ICC (Pre-Trial Chamber III), Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, Decision according to Article 15 of the Rome Statute on the Authorisation of an Investigation, ICC- 01/19-27 (November 14, 2019).
[8] ICC Pre-Trial Chamber I rules that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh, ICC, available at https://www.icc-cpi.int/Pages/item.aspx?name=pr1403 (last visited on March 15, 2020).
[9] Vienna Convention on the Law of Treaties, 1969, art. 31. 
[10] Strassheim v. Daily, U.S. 221 (1911).