CYIL vol. 14 (2023)

MILAN LIPOVSKÝ CYIL 14 (2023) PCA. While state consent is necessary for the ratification of the Rome Statute and thus to allow the ICC to act, it is the consent of one state for the purposes of exercising jurisdiction in one particular situation. And then the jurisdictional scope in that situation is not limited to crimes and perpetrators of the state party that ratified the RS only. It is entirely possible for the ICC to exercise jurisdiction over crimes of citizens of non-state parties (if committed within state party territory) or over crimes committed outside the territory of state parties (if committed by citizens of state parties). 73 Additionally, the UNSC can even trigger exercise of jurisdiction outside any personal and territorial limits set within the Rome Statute. Thus, the consensual legal basis is not so strictly “binary” as it is in interstate proceedings, such as those in contentious proceedings of the ICJ. And so, the most often referred to basis of existence of the Monetary Gold principle (see above) is missing and the ICC could use that as a reason to reject to apply it. Additionally, it should not be forgotten either that Israel was invited 74 by the ICC, in accordance with Rule 103 of the Rules of Procedure and Evidence of the ICC 75 , to submit its observations and did not deliver any within the time limit. While the author of this article generally agrees with the Chamber that the Monetary Gold principle is not to be applied in proceedings for crimes under international law committed by individuals, it is regrettable that the ICC only dedicated one short paragraph (59) of its reasoning to the topic and did not go into proper details. The suitability of the Monetary Gold principle in proceedings dedicated to an assessment of state responsibility stems from the combination of above-mentioned reasons (e.g., consensual nature of exercise of jurisdiction, res iudicata and quasi-precedential value interplay and the right to be heard). And while some of those aspects of the combination are present in procedural rules of international criminal tribunals as well, there is one more important aspect, the need to punish those individually responsible for crimes of concern to the international community. Sure, states might also commit international crimes, but states are abstract entities and what they do is always driven by individuals. This very aspect – the need for focus on the individual as (possibly) responsible, is what is distinguishing the proceedings leading to assessment of state responsibility and proceedings leading to assessment of individual criminal responsibility. The Monetary Gold principle would be a serious obstacle to international criminal justice. Moreover, international criminal justice did not evolve on the basis of arbitral proceedings the same way interstate proceedings did. Thus, Monetary Gold principle does not stem from procedural rules of individual criminal tribunals. Accordingly, the ICC was right to reject it but could have been more elaborate on the reasoning. 73 See Art. 12(2) RS. 74 ICC, Order setting the procedure and the schedule for the submission of observations, ICC-01/18-14, 28 January 2020, para. 16. 75 “Rule 103 Amicus curiae and other forms of submission 1. At any stage of the proceedings, a Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to submit, in writing or orally, any observation on any issue that the Chamber deems appropriate. 2. The Prosecutor and the defence shall have the opportunity to respond to the observations submitted under sub-rule 1. 3. a written observation submitted under sub-rule 1 shall be filed with the Registrar, who shall provide copies to the Prosecutor and the defence. The Chamber shall determine what time limits shall apply to the filing of such observations. ”

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