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South Korea Floats Compromise on Jurisdiction

Delegates spent much of Friday haggling over whether the International Criminal Court (ICC) will have the inherent ability to try genocide and other core crimes, with or without the consent of interested states, or would require the consent of several types of involved states.

At the same time, South Korea threw a new idea into the mix, asking for a compromise based on the idea that any one of four types of states involved in a major crime could consent to the Court's jurisdiction.

The four types identified by Seoul are the state on whose territory a crime is committed, the "custodial state" which is home to the accused, the state of the accused's nationality or the state of the victim's nationality.

South Korea also suggests that, once a state is party to the statute for the ICC, it should be "considered as having accepted, and agreed to the exercise of, the jurisdiction of the Court for once and for all."

The proposal in some ways resembles that of Britain, which had sought the consent of both the territorial and custodial states to decide whether the Court's jurisdiction would apply. That idea has worried some human rights groups, which are convinced that it will be difficult to obtain the consent of both states. The South Korean proposal, by contrast, would "give the Court a wider window of opportunity to exercise its jurisdiction."

It would not, however, be as wide as the window contained in proposals by the "like-minded" group of nations, which had wanted the Court to have inherent jurisdiction - that is, the automatic ability to try certain crimes of a heinous nature - without requiring consent.

That effort has been unpopular with many nations that want at least some degree of state input into whether or not the Court's jurisdiction applies; several have tried compromises which allow for inherent jurisdiction in some parts of the ICC docket.

Russian Deputy Foreign Minister U.V. Ushakov, for example, argued that the jurisdiction of the Court "must combine compulsory and optional elements. The Court (should have) compulsory jurisdiction in all cases where a situation of international concern is referred to it by a decision of the Security Council, and also in cases of the perpetration of the crime of genocide."

The compromise by South Korea - a member of the like-minded group on many issues - would mean that the range of applicability of the Court would be so wide in practical terms that in many cases jurisdiction would be easily established, one human rights analyst said.

However, he warned, if crimes were to occur in certain regions where few states had even acceded to the statute, then jurisdiction might not apply even given the wide list of states who could confer consent.


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