Elicitation of complexities of ratification and implementation of the Rome Statute of International Criminal Court (on the example of Kazakhstan) as a possibility of establishing Worldwide Criminal Court
Автор: Салыкова Динара Омиртасовна
Рубрика: 20. Международное право
Дата публикации: 09.07.2015
Статья просмотрена: 18 раз
Салыкова Д. О. Elicitation of complexities of ratification and implementation of the Rome Statute of International Criminal Court (on the example of Kazakhstan) as a possibility of establishing Worldwide Criminal Court [Текст] // Право: история, теория, практика: материалы III Междунар. науч. конф. (г. Санкт-Петербург, июль 2015 г.). — СПб.: Свое издательство, 2015. С. 141-143.
Syria, Egypt, Libya, Turkey… There are thousands of victims and no legal responsibility for criminals. Unfortunately, there is any worldwide instance that would sentence criminal from any state who committed a crime in the International Law field. International Criminal Court, but only half of countries ratified the Rome Statute. Main issue of this research is possibility of creating Worldwide Criminal Court by identifying complexities of ratification and implementation of the Statute. In this paper I would like to elicit and research complexities of ratification and implementation of the Statute in Kazakhstan by comparing the articles of Statute that contradict to the legislation of Kazakhstan and try to find the solution of these problems.
Rome Statute of International Criminal Court was established on September 17, 1998 on United Nations diplomatic conference and entered into force July 1, 2002. Kazakhstan was a participant of this diplomatic conference and Mr. Rogov, professor of Jurisprudence, represented our country.  During his speech, Mr. Rogov emphasized that Constitution of Kazakhstan fixed further statement: Human rights and freedoms shall belong to everyone by virtue of birth, be recognized as absolute and inalienable, and define the contents and implementation of laws and other regulatory legal acts. At this point, he said, Kazakhstan endorses without any doubt the idea of establishing ICC. At the same time, not only universal issues should be taken into consideration, but also complexity of guarantying sovereignty and independence of each state. In my opinion, this guarantee fixed in the preamble — the States Parties emphasize that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions.  And also involvement of the ICC is only possible when such systems are absent or unable or unwilling to prosecute criminals.
Kazakhstan as a competent member of international community ratified the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment of 1984, the International Convention on the Elimination of All Forms of Racial Discrimination of 1965 and etc. All of these conventions are the sources of International Criminal Law. Also some clauses of these conventions are fixed in our Criminal Code. For instance, Chapter 4 of Criminal Code is called “Crimes against Peace and Safety of Mankind”, article 160 is devoted to Genocide. 
Thus, Kazakhstan adopted measures to make our legislation appropriate to generally recognized principles and norms of international law; also inevitability of responsibility for genocide was fixed in Kazakhstan Criminal Code.
But we didn’t ratified The Rome Statute yet. Why?
During my research I emphasized 3 complexities of ratification and implementation of Rome Statute by Kazakhstan:
1. Issue of competence of Court
2. Issue of responsibility for senior officials, including the president of Republic of Kazakhstan
3. Issue of appealing for pardon
In my opinion, statement of Statute Preamble about “being a complementary to national criminal jurisdictions” contradicts to Article 75 of Constitution of Kazakhstan. Article 75 states:
1. Justice in the Republic of Kazakhstan shall be exercised only by the court.
2. The courts of the Republic shall be the Supreme Court of the Republic, local and other courts of the Republic established by law.
3. The judicial system of the Republic shall be established by the Constitution of the Republic and the constitutional law. The establishment of special and extraordinary courts under any name shall not be allowed. 
Thus, only Kazakhstan Supreme Court, local and other courts of Republic are allowed on the territory of Kazakhstan. If we want to ratify the Rome Statute, Kazakhstan should supplement Article 75 with norm. Norm must accept ICC as an instance that would equal to national criminal jurisdictions. For example, before France ratified the Rome Statute, there was couple of amendments in Constitution of France. Constitutional Council of France identified 4 articles of Statute that contradicted to French Constitution. And issue of competence of Court was one of these complexities. As a result, July 8, 1999 French Constitution was supplemented with Article 53–2:
“The Republic may recognize the jurisdiction of the International Criminal Court as provided for by the Treaty signed on 18 July 1998”. 
The Rome Statute was ratified on June 9, 2000.
Issue of responsibility for senior officials is urgent and disputable. There are two legislators’ opinions:
1. Legislators claim that official capacity influences on responsibility and gives prerogatives,
2. Legislators consider that responsibility must be equal for everyone no matter who criminal is-president or ordinary worker.
In this situation Kazakhstan is the first legislator and the Rome Statute is the second one. Hereby, we can see contradiction.
According to Article 27 of the Rome Statute this document shall apply equally to all persons without any distinction based on official capacity. Also immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.  So, it means that nobody can avoid punishment, even president. But according to Article 47 of Constitution of our country there is only one crime for which president can be discharged from office by Parliament- the case of high treason.
This issue is one of the most important complexities of the Rome Statute ratification and implementation. Kazakhstan is not the first state that faces with such kind of problem. Netherlands, Spain, Czech Republic, Belgium, Sweden, South Korea encountered with this complexity too and the solutions differed from each other. Being a constitutional monarchy, Belgium, Netherlands and Spain were extremely careful while trying to find a solution of this contradiction. So, Council of State of Spain and Council of Netherlands decided that monarch could avoid responsibility and punishment if public acts were signed by an official, who carried it for individual criminal responsibility. In my opinion, it is principle of countersignature. Sweden recognized the full incompatibility between Article 27 of Rome Statute and absolute immunity of monarch and decided to create constitutional amendments on this point. Now, let us consider responsibility of members of Parliament and Government. Spain and Czech Republic recognized that immunities could be withdrawn by Parliament. In South Korea conflict between Art. 27 of the Statute and Art. 84 of the Constitution has been resolved by the presumption that national law must be interpreted in accordance with international obligations.  Finland’s solution of this problem was unusual. It was recognized that the immunities of the President, members of Parliament and Government concerned only national courts. 
Thus, international community’s experience gives Kazakhstan a multiple choice of solving this problem.
One of the constitutional rights of sentenced person that fixed in Art.15 of Constitution of Republic of Kazakhstan is to appeal for pardon. According to Kazakhstan Criminal Code, pardon is a prerogative of the President of Kazakhstan and amnesty is prerogative of Parliament. 
So the question is: Can a President of the Republic, which is the symbol and guarantor of the rights and freedoms of man and citizen, by the act of pardon release the person who was sentenced by ICC? Answer is short-no. According to Article 84 of the Statute revision of conviction or sentence is exclusive prerogative of Appeals Chamber of ICC. Also Article 110 emphasizes that the state of enforcement shall not release the person before expiry of the sentence pronounced by the Court. The Court alone shall have the right to decide any reduction of sentence, and shall rule on the matter after having heard the person. 
Some of you will consider that it is violation of the sovereignty of Kazakhstan, but pardon and amnesty apply to penalties that are prescribed only by national legislations i. e. they are intrastate. So president still can give a pardon for prisoners that were sentenced by national courts. Especially, do not forget that only serious crimes, caused mass casualties, such as genocide, crimes against humanity and war crimes are under the jurisdiction of the ICC.
Finally, we analyzed three complexities of ratification and implementation of the Rome Statute of International Criminal Court on the example of Kazakhstan. Arabic Spring, clashes in Turkey, Euro-Maidan and Crimea. Now, we live in the period of time when everything is changing even map of the world and as a result of these changes we have thousands of innocent victims. How can we fall asleep at night when something's clearly wrong?
I believe that elicitation of these complexities will help us to create Statute that would be ratified by entire international community. Only International Law can deal with such serious crimes as genocide, crimes against humanity and war crimes. It is not only about reestablishment of social justice but also issue of preventive mechanism. Establishing Worldwide Criminal Court, international community will confirm the Celsus statement: Ius est ars boni et aequi that means: Law is the art of the good and the equitable.
1. Specialized monthly magazine «LAWYER», September,№ 9,Almaty,2002
2. The Rome Statute of International Criminal Court, 1 July 2002, preamble, Art.27, Art.110
3. Law No. 167 of 16 July 1997 of the Republic of Kazakhstan — Criminal Code of the Republic of Kazakhstan, Chapter 4, Art.160
4. Constitution of the Republic of Kazakhstan, 30 August 1995, Art. 15,Art.47, Art.75
5. Constitution of France, 4 October 1958,Art.53–2
6. Constitution of South Korea, 17 July, 1948, Art. 84
7. Constitution of Finland, 11 June 1999, Art.59