《国际刑事法院罗马规约》的修正与适用实践述评

Review of the Practice of Amendments to and Application of the Rome Statute of the International Criminal Court

《国际刑事法院罗马规约》通过至今已历25年,但国际刑事法院的实践成就却似乎乏善可陈,不仅受理的案件寥寥无几,而且在政治上也受到来自国际社会的各种批评,特别是来自非洲国家的批评尤为尖锐。25年来,缔约国对《国际刑事法院罗马规约》进行了重大修正,缔约国大会通过了关于侵略罪定义与适用范围的修正案;在该规约中增添了非国际性武装冲突中的罪行;国际刑事法院对驱逐出境罪作了扩大解释并创造性适用了间接共同犯罪的犯罪形态,以扩大法院的管辖权;坚持官方身份无关性原则,并认定了该原则在习惯国际法上的地位;对被害人参与作出了有益的实践。不难预测,国际刑事法院很可能会进一步扩大其管辖权并加强国际刑法的执行力,特别是对非缔约国而言,受到国际刑事法院管辖的情况可能会逐渐增多。

It has been 25 years since the adoption of the Rome Statute of International Criminal Court(ICC Statute). It seems that its judicial activities are far from the expectation. It has entertained few cases and politically been criticized by some states, especially by African countries. In the past 25 years, the International Criminal Court(ICC) has developed its jurisprudence by the adoption of the major amendments of the Statute and by the interpretation and application of the law. The Assembly of the Contracting Parties to the ICC Statute adopted the amendments by adding the definition and applicable scope of the crime of aggression. The Assembly of the Contracting Parties to the ICC Statute also increased the crimes occurred during the non-international armed conflict in the Statute. The ICC has expanded the interpretation of the crime of deportation so as to extent its jurisdiction to non-State Parties and creatively applied the mode of liability of indirect joint co-perpetration. At the same time, the ICC insists on the principle of irrelevance of the official capacities and confirms the position of non-immunity of the top officials when indicted for international crimes before an international criminal tribunal in customary international law. ICC through its practice also gained some experience on the victim participation in its judicial proceedings. It is not difficult to predict that the International Criminal Court will further enhance its law enforcement capability, expand its jurisdiction and bring more and more cases occurred in the territories of non-State Parties to the Rome Statute to its jurisdiction.