The International Criminal Court investigates and tries individuals charged with the gravest crimes of concern to the international community.
The Court is participating in a global fight to end impunity. Through criminal justice, the Court aims to hold those accountable for their crimes and to help prevent these crimes from happening in the future.
The Court, however, cannot reach these goals alone. As a court of last resort, it seeks to complement, not replace, national Courts. Governed by an international treaty called the Rome Statute, the ICC is the world’s first permanent international criminal court.
The Rome Statute of the International Criminal Court was adopted on 17 July 1998 in Rome at a diplomatic conference of the UN authorized representatives convened with a view to establishing the International Criminal Court and became effective on 1 July.
The Rome Statute grants the ICC jurisdiction over four main crimes. These are the crimes of genocide, crimes against humanity, war crimes and the crime of aggression.
The crime of genocide is characterized by the specific intent to destroy in whole or in part a national, ethnic, racial or religious group by killing its members or by other means: causing serious bodily or mental harm to members of the group, inflicting on the group conditions of life calculated to bring about physical destruction in whole or in part, imposing measures intended to prevent births within the group, or forcibly transferring children of the group to another group.
The crimes against humanity are serious violations committed as part of a large-scale attack against any civilian population. They include, for example, offences such as murder, rape, imprisonment, enforced disappearances, torture, apartheid and deportation.
The war crimes are grave breaches of the Geneva conventions in the context of armed conflict and include, for instance, the use of child soldiers; the killing or torture of civilians or prisoners of war, intentionally directing attacks against hospitals, historic monuments, or buildings deicated to religion, education, art, science or charitable purposes.
And finally, the crime of aggression is the use of armed forces by a State against the sovereignty, territorial integrity or independence of another State.
The Republic of Armenia signed the Rome Statute on 1 October 1999.
In 2004, the President applied to the Constitutional Court for a check of the constitutionality of the obligations stipulated in the Rome Statute. By its Decision No 502, the Constitutional Court concluded that the obligation whereby the International Criminal Court complements the RA domestic bodies competent to exercise criminal jurisdiction is contrary to the Armenian Constitution, since only domestic courts are competent to administer justice in Armenia. Hence, Chapter 9 of the RA Constitution related to the judiciary prevents complementing the judicial bodies exercising criminal jurisdiction with an international judicial body.
This decision rendered it impossible for the National Assembly of Armenia to ratify the Rome Statute.
And it was only 18 years later that the Government of Armenia resumed the discussions on the necessity to ratify the Rome Statute. On 29 December 2022, the Government approved of draft legislation whereby Armenia was retroactively recognizing the jurisdiction of the International Criminal Court in respect of the three crimes foreseen by the Rome Statute – genocide, crimes against humanity and war crimes – since 10 May 2021.
Following this, on 3 January 2023, the Government applied to the Constitutional Court on the issue of the constitutionality of the obligations stipulated in the Rome Statute.
On 24 March 2023, by its Decision no 1680 the Constitutional Court declared the obligations stipulated in the Rome Statute compliant with the Armenian Constitution.
The Decision No 1680 of the Constitutional Court on the Constitutionality of the Rome Statute .Vahe Grigoryan, Vice President of the Constitutional Court explains.
What is the biggest impact of the Decision no 1680 of the Constitutional Court on the Armenian legal system? What impact will it have in the future in the process of checking the constitutionality of international treaties or laws?
This decision of the Constitutional Court is about constitutional axiology. The fundamental message of this decision is reminding first and foremost the Court’s position expressed in its earlier 2021 decision that any interpretation of a constitutional norm will deviate from its axiological grounding if it does not coincide with the principles and values enshrined in the Constitution. Second, by this decision the Constitutional Court clearly posited that the constitutional principle of sovereignty of the Republic of Armenia cannot be contrasted with the values and principles underlying the axiology of the Constitution, and that any such conclusion or analysis is axiologically wrong.
What is the main difference of the positions of the Constitutional Court reflected in its decisions no 502 and no 1680? The Court reached diametrically opposite conclusions in these two decisions. How was this possible?
When we speak about these two decisions, we must be reminded of 3 important circumstances: there are of course many circumstances in regard to the differences between these two decisions but the most important of them are 3. First, the 2023 decision of the Constitutional Court was not adopted as a result of the review of the 2004 decision of the Court. At the very outset, it was a completely new process of examination of the constitutionality of the Rome Statute. And why was it a completely new process? Because there were essential differences between circumstances in 2004 and 2023, which the Court reflected in its decision. The first essential difference concerned the amendment to the relevant provisions of the Constitution in 2015 and to what extent their substance was changed. The second essential difference was that by one of its 2021 decisions the Constitutional Court determined the methodology of interpretation of constitutional norms, and according to this methodology, the values and principles enshrined in the Preamble of the Constitution were not declarations but clear practical axiological guidelines for the interpretation of constitutional norms. And the third difference between these two decisions was the methodology of examination by the Constitutional Court, whereby the Court first examined the compliance between the values underlying the Rome Statute and the Constitution, and found that the goals and values of the Rome Statute fully complied with the assurance of loyalty of the Armenian people to the universal values enshrined in the Preamble of the Constitution. Following this, the Court referred to the principle of complementarity underlying the functioning of the International Criminal Court. Also, the analysis of the principle of complementarity contrary to the logic of the 2004 decision of the Court, which was merely a technical examination of the extent to which the International Criminal Court was envisaged within the system of bodies administering criminal justice in Armenia. The Court analysed in the first place the compliance of this principle with the goals of the Constitution and second to what extent this complied with the system, functioning and the procedures of the International Criminal Court.
The examination of, the adoption and pronouncement of the decision in this case coincided with complex political developments. Do you think that these turbulences anyhow affected the adoption of this decision in this form?
The 2023 decision of the Constitutional Court was in the logic of the democratic processes started in 2018. What I mean by this is that this decision of the Court was not affected by any political event on any political content. However, this decision was influenced by the liberty to fully exercise its powers obtained by the Court. Then, within 3 months of meticulous examination and relying on the weighty circumstances and values already mentioned by me the Court adopted this decision. Furthermore, the axiology underlying the decision of the Court and the circumstances that the Court attached special attention to could not have led to another conclusion. On the contrary, any conclusion differing from the one arrived in this decision would have aroused reasonable suspicions for any objective observer. And such a conclusion would hint of the existence of extra-judicial agendas. The decision was adopted following an in-depth careful examination. And neither was this decision a result of short-term political considerations or political events. This is a decision in which the Court specifically emphasized the status and history of the constituent – the Armenian people having survived a genocide. The Armenian State, which was founded by generations of genocide survivers could not have arrived at a conclusion different from the one required in support of the efforts of the international community to fight and prevent genocide, crimes against humanity, war crimes and the crime of aggression.
