Implementation of the Rome Statute of the International Criminal Court in the Estonian Legal System
Upon becoming a State Party to the Rome Statute of the International Criminal Court, most countries face the need to adopt implementing legislation. This is due to the so-called principle of complementarity, which tacitly presumes that States are able to prosecute the same crimes at the ICC, and also because legislation might be necessary for the State to cooperate with the Court. In Estonia, the relevant provisions are contained in the fairly new and modern Penal Code and the Code of Criminal Procedure. The article at hand outlines some of the problems that still remain in Estonian law with regard to the ICC.
Although international crimes are generally well-implemented in Estonia, crimes against humanity are somewhat loosely defined, and some war crimes not entirely satisfactorily covered. In most instances, the war crimes in question would nonetheless be punishable as ordinary offences aggravated by the fact that they were committed in time of war. This does not entirely solve the problem, as, for instance, the command responsibility provision in the Penal Code is expressly limited to the part of the Code that defines international crimes as such.
It is noted that the Estonian Constitution provides for the immunity of certain high office holders from criminal proceedings. No express exception has been made to these rules for the purposes of prosecuting crimes covered by the Rome Statute, but the procedure for lifting the constitutional immunities makes it possible for Estonia to take advantage of its prerogative under the principle of complementarity. More problematically, however, there exists a constitutional provision to the effect that a member of the Riigikogu shall not be held legally responsible for votes cast or political statements they make in the Riigikogu or in any of its bodies. This provision would seem to bar criminal proceedings against a member of the Riigikogu who had made a speech containing incitation to a crime punishable under the Statute. There appears to be no provision in domestic law for setting aside this indemnity.
It is concluded, in light of the foregoing, that the generally favourable attitude of the Estonian legal system towards applying treaties domestically does not in itself absolve the legislature from the responsibility of implementing treaties through legislation. Incorporation of treaties into domestic law provides a convenient fallback option in case there is no implementing legislation, but may cause some additional difficulties, particularly at the constitutional level.