| Abstract: | The study tried to analyze the challenges and limitations that the International Criminal Court has faced
because of different legal, factual and other restrictions obstructing it from pursuing its aim of meeting
the highest legal standards of independence, effectiveness and fairness expected by the International
Community and as a result to bring about legal justice. The International Criminal Court (ICC) exercises
its authority on crimes under its jurisdiction, as a means of last resort, after all the available judiciary
remedies in the national jurisdiction failed. It is when national courts prove “unwilling” or “unable” to
investigate or prosecute the defendant, that the ICC can require the national government to surrender the
targeted perpetrator to the Court. At this juncture, the principle of complementarity which rests on two
basic pillars, namely, safeguarding respect for the primary jurisdiction of states, and efficiency and
effectiveness to put an end to impunity comes in to play. However, the International Community’s
decision to incorporate the complementarity principle in the preamble of its final draft statute was
intended to provide plausible compromise between national sovereignty and the court’s jurisdiction. The
complementarity appears as a mechanism devised to maintain the balance and shape the Court’s
operational dynamics. The ICC, on the other hand, teeters between values of sovereignty and
internationalism. As the international criminal institution and national courts have concurrent
jurisdiction over the most serious international crimes, there inevitably will be conflicts between the two
jurisdictions. Consequently, the principle of complementarity, at the same time, creates a curious pair of
conflicting forces and hence a dilemma for the Court itself. One perspective to these conflicting forces
stresses that the ICC limits itself in exercising jurisdiction without the consent of a sovereign government
that could otherwise exercise jurisdiction on its own. Accordingly, the court seeking to exercise
jurisdiction in a hostile way: trying to exercise jurisdiction against states actually trying to conduct their
own proceedings is seen to have proved very far from reality. If anything in the ICC’s cases, states
evidence no intention of trying certain crimes even mock proceedings for the purpose of holding off ICC
jurisdiction. Thus, there is a paradox between the creation of the ICC’s exercise of sovereignty and that
of the nations. The study documents that ICC has had subject matter jurisdiction and admissibility regime
which is restricted by the preconditions set on its exercise of temporal jurisdiction. The objectives of the
Principle of Complementarity are to serve as complementary to the national criminal jurisdictions of the
states in the world. The Complementarity Principle also appears as a mechanism devised to maintain the
balance and shape the Court’s operational dynamics. However, this Principle has impact on the states’
sovereignty in that the ICC encroaches upon their sovereignty. Thus, the ICC has been challenged by lack
of support and cooperation for effective enforcement of its decisions and legitimacy on the part of the
states which emanate from the gaps and challenges of the Principle of Complementarity as well as from
the Court’s political nature. These may, in turn, affect justice and rule of law at international level. It can
be concluded that the ICC has jurisdiction limitations and challenges to effectively enforce its decisions
and legitimacy – ‘toothless Court’. Therefore, comprehensive jurisdiction measures such as the practices
of diplomatic cooperation of the states as a golden thread that underlies the Rome Statue using possible
and plausible should be taken, and the Court should also be assessed in-depth based on different
international criminal cases in different socio-cultural, economic and political contests from all corners
of the world. |
