《國際刑事法院羅馬規約》的修正與適用實踐述評

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

《國際刑事法院羅馬規約》通過至今已曆25年，但國際刑事法院的實踐成就卻似乎乏善可陳，不僅受理的案件寥寥無幾，而且在政治上也受到來自國際社會的各種批評，特別是來自非洲國家的批評尤為尖銳。25年來，締約國對《國際刑事法院羅馬規約》進行了重大修正，締約國大會通過了關於侵略罪定義與適用範圍的修正案；在該規約中增添了非國際性武裝衝突中的罪行；國際刑事法院對驅逐出境罪作了擴大解釋並創造性適用了間接共同犯罪的犯罪形態，以擴大法院的管轄權；堅持官方身份無關性原則，並認定了該原則在習慣國際法上的地位；對被害人參與作出了有益的實踐。不難預測，國際刑事法院很可能會進一步擴大其管轄權並加強國際刑法的執行力，特別是對非締約國而言，受到國際刑事法院管轄的情況可能會逐漸增多。

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.