73 J.L. Pol'y & Globalization 1 (2018)

handle is hein.journals/jawpglob73 and id is 1 raw text is: 



ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online)
Vol.73, 2018                                                                                            HE


A Critical Examination of the Procedure for Instituting Criminal

           Proceedings Before the International Criminal Court

                 *Prof  A. AMUDA-KANNIKE, Ph.D (SAN) **Dr. Sylvanus Abila, Ph.D

Abstract
In order to maintain world  peace and  security, the International Criminal Court was established deriving its
sanctity through the famous Rome  Statute, which in itself makes provision for the ways and manners upon which
criminal proceedings can be instituted before the said Criminal Court. There are three different methods to do
this, which are; through a referral by a State Party, through a referral by the Security Council of the U.N. and
through the I.C.C. Prosecutor acting on his or her volition. This article found and revealed that, upon a critical
examination  of the methods  referred to above, there are challenges bedeviling the triggering mechanisms of
instituting proceedings before the Court. This work accordingly proffered suggestions upon an examination of
the above mentioned  commencement   procedures.
Keywords:   State referrals, self-referral, power, political proclivities, propriomotu authority

Introduction
The  institution of criminal proceedings before the International Criminal Court is usually referred to as the
triggering mechanisms  which would  allow the Court to have jurisdiction to handle the case. It is imperative to
state that, this triggering mechanisms can bring a case to Court, through three different ways which are by:
1.       Referral by a state;
2.       Referral by the Security Council acting under a Chapter VII of United Nations Charter
3.       The institution of an investigation through the I.C.C. prosecutor who acts on his own will.
     It is to be understood that the issues about these methods of filing a criminal case before the International
Court of Justice was part of the discussions in the famous Rome Convention which  ultimately gave birth to the
Rome   Statute. The three methods were adopted by the State Parties.2 This work is intended to critically examine
the procedure for instituting criminal proceedings before the International Criminal Court in accordance with the
Rome   Statute and to see whether this process has enhanced the prosecution of cases before this international
body  or not.3 The various methods of instituting the cases before the court are necessary to be examined first
before taking a position on their importance.

Referral by  a State Party
It is important to state that any state party to the Rome Statute may request the office of the prosecutor to carry
out an investigation about a crime allegedly committed. This means  that what is known as referral by a State
Party is when a State Party files a complaint to the prosecutor of the International Court of Justice.'
     A State that is not a party to the statute can also decide to accept the jurisdiction of the I.C.C. as it concerns
the crime committed  within its territory or by one of its nationals, and once this situation is present, then such a
State can file a request to the office of the prosecutor to investigate the crime involved.5 A close scrutiny of the
Rome   Statute will reveal that, it is clear that a State may decide to refer a request to the prosecutor of the I.C.C.
by virtue of the provision of Article 14 of the Rome  Statute.6 Who then is a State Party? This question is to
enable such  person or entity to have the opportunity to trigger off a criminal proceeding automatically? The
answer to this poser is that a state party refers to such entity/country that has signed the Rome Statute before the
3 1t day of December, 2000  and equally, it includes states which ratified, approved or accepted the bindingness
of the statute or which has agreed as at 3 1t day of December 2000 that she is bound by the Statute.7
     The State Party which can be said to have accepted the jurisdiction of the Court is one that has agreed to the
Court's jurisdiction on the crimes mentioned in the Rome Statute8 such as genocide, crimes against humanity and

Amuda-Kannike,A.  SAN, Professor and Dean, Faculty of Law, Poma International Business University, Ifangni, Igolo, Republic of Benin.
He is a Senior Advocate of Nigeria (SAN) and the Managing Counsel of Amuda-Kannike(SAN) and Co, No 8, Mbonu/Ogbia Street, D-Line,
Port Harcourt, Rivers State.
2 Dr. Sylvanus Abila, PhD (Ekpoma), Senior Lecturer and Head of Department Private and Property Law, Faculty of Law, Niger Delta
University, Wilberforce Island, Bayelsa State, Nigeria and can be reached via email: drsylvanusabila#gmail.com
    Heidi   Bucheister; The    International Court   of   Criminal  Overview,   Accessed   on   the   internet
atwww.beyondintmctability.org/essay/intenational criminal court as at 12/8/2015, P.5
2 Wikipedia, http/en.wikipedia.org/wiki/international criminal court accessed on 12/8/2015 by 11.30pm
Article 13 of the Rome statute of International Criminal Court
4 Understanding the International Criminal Court accessed at www.ICC.CPI.int/iccdocs/ publications/ uicceng.pdf, on 13/8/2015
Ibid
'Aicle 14 of the Rome Statute of the international criminal court
See article 12 (5) of the Rome statute of international criminal court
Aricle 12 (1) of the Rome statute of international criminal court


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