Sweden and the Ratification of the Rome Statute - Certain Legal Aspects

Abstract

The strive for international justice have existed for a very long time. We have seen attempts been made to achieve this goal by for example the creations of the Tribunals for former Yugoslavia and Rwanda. The idea has been to prosecute and hold war criminals responsible for their actions. The most recent attempt to establish an international legal system was first made in 1989, when the process of establishing a permanent international criminal court was initiated. These efforts lead to the final adoption of the Rome Statute in 1998, and on July 17, 1998 this document was open for signatures. In order for the Court and the Rome Statute to come into force, it is necessary that sixty states ratify the Statute. On June 28, 2001 Sweden became the thirty-sixth state to ratify the Rome Statute. The Rome Statute is based on the principle of complementarity, which means that the national courts always have jurisdiction over the crimes in the Statute, with the exception that the ICC will act alone when states are either unwilling or unable to act themselves. But even if the State Parties do not have a legal duty to alter their legislation, there still exists a moral duty to do so. This means that the ratification by Sweden raises a lot of questions concerning the national legal system. It is not clear what changes that have to be done in the Swedish national legal system. My purpose with this essay have been to examine some of the alterations that Sweden might find it necessary to make in order to comply with the Statute. I have chosen to focus on some specific criminal law aspects that I think can become problematic when co-operating with the Court in the future. These matters include the possible needs to change some of the Swedish criminal provisions concerning specific crimes in the national Penal Code. This might be necessary in order to have similar crime definitions as the ones in the crime catalogue of the Rome Statute. I also examine the question of immunities and privileges. This matter of concern has gone through a lot of changes during the last years, and this is important both for the future work of the Court and for the regulations in the national legal system. One aspect of this is how the immunity for a Head of State ought to be regulated. The last issue that is studied here concerns the subject of period of limitations. The regulations concerning this area in the Statute are quite different from the provisions that exist in Swedish law today, and possible changes are discussed.