International Criminal Court

 

The International Criminal Court (ICC or ICCt)^[1] was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression, although it cannot currently exercise jurisdiction over the crime of aggression.^[2] The court came into being on July 1 2002 — the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force^[3] — and it can only prosecute crimes committed on or after that date.^[4]

As of October 2007, 105 states are members of the Court.^[5] A further 41 countries have signed but not ratified the Rome Statute.^[6] However, a number of states, including China, India and the United States, are critical of the Court and have not joined.

The Court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council.^[7] The Court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes.^[8][9] Primary responsibility to investigate and punish crimes is therefore left to individual states.^[10]

To date, the Court has opened investigations into four situations: Northern Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur.^[11] The Court has issued nine public arrest warrants and two suspects are in custody, awaiting trial.

The official seat of the Court is in The Hague, Netherlands, but its proceedings may take place anywhere.^[12] The ICC is sometimes referred to as a "World Court" but it should not be confused with the International Court of Justice, also known as the World Court, which is the United Nations organ that settles disputes between nations.^[13]

History

In 1948, following the Nuremberg and Tokyo Tribunals, the United Nations General Assembly recognised the need for a permanent international court to deal with atrocities of the kind committed during World War II.^[14] At the request of the General Assembly, the International Law Commission drafted two draft statutes by the early 1950s but these were shelved as the Cold War made the establishment of an international criminal court politically unrealistic.^[15]

A. N. R. Robinson, then Prime Minister of Trinidad and Tobago, revived the idea during the forty-fourth session of the General Assembly in 1989, proposing the creation of a permanent international court to deal with the international drug trade.^[15][16] While work began on a draft statute, the international community established ad hoc tribunals to try war crimes in the former Yugoslavia^[17] and Rwanda,^[18] further highlighting the need for a permanent international criminal court.^[19]

Following years of negotiations, the General Assembly convened a conference in Rome, Italy, in June 1998, with the aim of finalising a treaty. On July 17 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were Iraq, Israel, Libya, the People's Republic of China, Qatar, the United States, and Yemen.^[20]

The Rome Statute became a binding treaty on April 11, 2002, when the number of countries that had ratified it reached 60.^[3] The Statute legally came into force on July 1, 2002,^[3] and the Court can only prosecute crimes committed after that date.^[4] The first bench of 18 judges was elected by an Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the Court on March 11 2003.^[21] The Court issued its first arrest warrants on 8 July 2005,^[22] and the first pre-trial hearings were held in 2006.^[23]

Membership

Main article: States Parties to the Rome Statute of the International Criminal Court

As of October 2007, 105 countries have ratified or acceded to the court, including nearly all of Europe and South America, and roughly half the countries in Africa.^[5][6]

A further 41 states have signed but not ratified the treaty;^[6] the law of treaties obliges these states to refrain from “acts which would defeat the object and purpose” of the treaty.^[24] In 2002, two of these states, the United States and Israel, "unsigned" the Rome Statute, indicating that they no longer intend to become states parties and, as such, they have no legal obligations arising from their signature of the statute.^[6][25][26]

See also: United States and the International Criminal Court

Jurisdiction

Crimes within the jurisdiction of the Court

Article 5 of the Rome Statute grants the Court jurisdiction over four groups of crimes, which it refers to as the “most serious crimes of concern to the international community as a whole”: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The statute defines each of these crimes except for aggression: it provides that the Court will not exercise its jurisdiction over the crime of aggression until such time as the states parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.^[2]

Many states wanted to add terrorism and drug trafficking to the list of crimes covered by the Rome Statute; however, the states were unable to agree on a definition for terrorism and it was decided not to include drug trafficking as this might overwhelm the Court's limited resources.^[14] India lobbied to have the use of nuclear weapons and other weapons of mass destruction included as war crimes but this move was also defeated.^[27] India has expressed concern that “the Statute of the ICC lays down, by clear implication, that the use of weapons of mass destruction is not a war crime. This is an extraordinary message to send to the international community.”^[27]

Some commentators have argued that the Rome Statute defines crimes too broadly or too vaguely. For example, China has argued that the definition of ‘war crimes’ goes beyond that accepted under customary international law.^[28]

Article 123 of the Rome Statute provides that a Review Conference shall be convened in 2009, and that this conference may review the list of crimes contained in Article 5.^[29] The final resolution on adoption of the Rome Statute specifically recommended that terrorism and drug trafficking be reconsidered at this conference.^[30]

Territorial jurisdiction

During the negotiations that led to the Rome Statute, a large number of states argued that the Court should be allowed to exercise universal jurisdiction. However, this proposal was defeated due in large part to opposition from the United States.^[31] A compromise was reached, allowing the Court to exercise jurisdiction only under certain limited circumstances, namely:

• where the person accused of committing a crime is a national of a state party (or where the person's state has accepted the jurisdiction of the Court);
• where the alleged crime was committed on the territory of a state party (or where the state on whose territory the crime was committed has accepted the jurisdiction of the Court); or
• where a situation is referred to the Court by the UN Security Council.^[7]

Temporal jurisdiction

The Court's jurisdiction does not apply retroactively: it can only prosecute crimes committed on or after 1 July 2002 (the date on which the Rome Statute entered into force). Where a state becomes party to the Rome Statute after that date, the Court can exercise jurisdiction automatically with respect to crimes committed after the statute enters into force for that state.^[4]

Complementarity

The Court is intended as a court of last resort, investigating and prosecuting only where national courts have failed. Article 17 of the Statute provides that a case is inadmissible if:

‘(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d) The case is not of sufficient gravity to justify further action by the Court.’^[8]

Article 20, paragraph 3, specifies that, if a person has already been tried by another court, the ICC cannot try them again for the same conduct unless the proceedings in the other court:

‘(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.’^[9]

Structure

The Court consists of four organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.^[32]

Presidency

The Presidency is responsible for the proper administration of the Court (apart from the Office of the Prosecutor).^[33] It comprises the President and the First and Second Vice-Presidents — three judges of the Court who are elected to the Presidency by their fellow judges for a maximum of two three-year terms.^[34] As of October 2007, the President is Philippe Kirsch,^[32] who was elected to a second term on 11 March 2006.^[33]

Judicial Divisions

Main article: Judges of the International Criminal Court

The Judicial Divisions consist of the 18 judges of the Court, organized into three divisions — the Pre-Trial Division, Trial Division and Appeals Division — which carry out the judicial functions of the Court.^[35] The Pre-Trial Division (which comprises the First Vice President and six other judges)^[35] confirms indictments and issues international arrest warrants. The Trial Division (the Second Vice President and five other judges) presides over trials. Decisions of the Pre-Trial and Trial Divisions may be appealed to the Appeals Division (the President and four other judges). Judges are assigned to divisions according to their qualifications and experience.^[32]

Judges are elected to the Court by the Assembly of States Parties.^[35] They serve nine-year terms and are not generally eligible for re-election.^[35] All judges must be nationals of states parties to the Rome Statute, and no two judges may be nationals of the same state.^[36] They must be “persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices”.^[36]

Office of the Prosecutor

The Office of the Prosecutor is responsible for conducting investigations and prosecutions.^[10] It is headed by the Prosecutor, who is assisted by two Deputy Prosecutors.^[32] The Rome Statute provides that the Office of the Prosecutor shall act independently;^[37] as such, no member of the Office may seek or act on instructions from any external source, such as states, international organisations, non-governmental organisations or individuals.^[10]

The Prosecutor may open an investigation under three circumstances:^[10]

• when a situation is referred to him by a state party;
• when a situation is referred to him by the United Nations Security Council, acting to address a threat to international peace and security; or
• when the Pre-Trial Chamber authorises him to open an investigation on the basis of information received from other sources, such as individuals or non-governmental organisations.

Critics of the Court argue that there are “insufficient checks and balances on the authority of the ICC prosecutor and judges” and “insufficient protection against politicized prosecutions or other abuses”.^[38] Henry Kissinger says the checks and balances are so weak that the prosecutor “has virtually unlimited discretion in practice”.^[39]

As of October 2007, the Prosecutor is Luis Moreno-Ocampo of Argentina, who was elected by the Assembly of States Parties on 21 April 2003^[40] for a term of nine years.^[10]

Registry

The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court.^[41] This includes, among other things, “the administration of legal aid matters, court management, victims and witnesses matters, defence counsel, detention unit, and the traditional services provided by administrations in international organisations, such as finance, translation, building management, procurement and personnel”.^[41] The Registry is headed by the Registrar, who is elected by the judges to a five-year term.^[32]

Rights of the accused

The Rome Statute provides that all persons are presumed innocent until proven guilty beyond reasonable doubt,^[42] and establishes certain rights of the accused and persons during investigations.^[43] These include the right to be fully informed of the charges against him or her; the right to have a lawyer appointed, free of charge; the right to a speedy trial; and the right to examine the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf.

Some argue that the protections offered by the ICC are insufficient. According to the Heritage Foundation, “Americans who appear before the court would be denied such basic constitutional rights as trial by a jury of one's peers, protection from double jeopardy, and the right to confront one's accusers.”^[26] However, Human Rights Watch argues that “the ICC has one of the most extensive lists of due process guarantees ever written”, including “presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; right to be present at trial; right to have charges proved beyond a reasonable doubt; and protection against double jeopardy”.^[44] According to David Scheffer, who led the US delegation to the Rome Conference (and who voted against adoption of the treaty), “when we were negotiating the Rome treaty, we always kept very close tabs on, ‘Does this meet U.S. constitutional tests, the formation of this court and the due process rights that are accorded defendants?’ And we were very confident at the end of Rome that those due process rights, in fact, are protected, and that this treaty does meet a constitutional test.”^[45]

In order to ensure “equality of arms” between defence and prosecution teams, the ICC has established an independent Office of Public Counsel for the Defence (OPCD) to provide logistical support, advice and information to defendants and their counsel.^[46][47] The OPCD also helps to safeguard the rights of the accused during the initial stages of an investigation.^[48] However, Thomas Lubanga's defence team say they have been given a smaller budget than the Prosecutor and that evidence and witness statements have been slow to arrive.^[49]

Victim participation and reparations

The Rome Statute provides for victim participation in the Court's proceedings.^[50][51] Article 43(6) establishes a Victims and Witnesses Unit to provide "protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses."^[52] Article 68 sets out procedures for the "Protection of the victims and witnesses and their participation in the proceedings."^[53] The Court has also established an Office of Public Counsel for Victims, to provide support and assistance to victims and their legal representatives.^[54] Article 78 of the Rome Statute establishes a Trust Fund to make financial reparations to victims and their families.^[55]

Relationship with the United Nations

Unlike the International Court of Justice, the ICC is legally and functionally independent from the United Nations. Nonetheless, the Rome Statute grants the UN a clear role in relation to the Court. The Security Council may refer to the Court situations that would not otherwise fall under the Court's jurisdiction (as it did in relation to the situation in Darfur, which the Court could not otherwise have prosecuted as Sudan is not a state party). Article 16 of the Rome Statute also allows the Security Council to require the Court to defer from investigating a case for a period of 12 months.^[56] Such a deferral may be renewed indefinitely by the Security Council.

The Court cooperates with the UN in many different areas, including the exchange of information and logistical support.^[57] The Court reports to the UN each year on its activities,^[57][58] and some meetings of the Court's governing body, the Assembly of States Parties, are held at UN facilities. The relationship between the Court and the UN is governed by a “Relationship Agreement between the International Criminal Court and the United Nations”.^[59][60]

Amnesties and national reconciliation processes

It is unclear to what extent the Court is compatible with reconciliation processes that grant amnesty to human rights abusers as part of agreements to end conflict.^[61] Article 16 of the Rome Statute allows the Security Council to prevent the Court from investigating or prosecuting a case,^[56] and Article 53 allows the Prosecutor the discretion not to initiate an investigation if he or she believes that “an investigation would not serve the interests of justice”.^[62] The President of the ICC, Philippe Kirsch, has said that "some limited amnesties may be compatible" with a country's obligations genuinely to investigate or prosecute under the statute.^[61]

It is sometimes argued that amnesties are necessary to allow the peaceful transfer of power from abusive regimes. By denying states the right to offer amnesty to human rights abusers, the International Criminal Court may make it more difficult to negotiate an end to conflict and a transition to democracy. For example, the outstanding arrest warrants for four leaders of the Lord's Resistance Army are regarded as an obstacle to ending the insurgency in Uganda.^[63][64] Czech politician Marek Benda argues that “[t]he ICC as a deterrent will in our view only mean the worst dictators will try to retain power at all costs.”^[65] However, the United Nations^[66] and the International Committee of the Red Cross^[67] maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law.

Headquarters and detention unit

As of 29 September 2006, the ICC’s staff consisted of 444 persons from 74 states.^[54] The official seat of the Court is in The Hague, Netherlands, but its proceedings may take place anywhere.^[12][68].

The Court is currently housed in interim premises on the eastern edge of The Hague.^[69] A number of options are being considered for the Court's permanent headquarters; the Court is currently focusing on a proposal to construct a facility in Alexanderkazerne, on a site currently used as a Dutch army barracks near a beach on the north of The Hague.^[69][70]

The ICC currently has twelve detention cells in a Dutch prison in Scheveningen, The Hague.^[71] Suspects held by the International Criminal Tribunal for the former Yugoslavia are held in the same prison and share some facilities, like the fitness room, but have no contact with suspects held by the ICC.^[71] The detention unit is close to the ICC's proposed permanent headquarters in Alexanderkazerne.^[72]

As of October 2007, the ICC's detention unit houses three suspects: Thomas Lubanga, Germain Katanga and former Liberian President Charles Taylor. Taylor is being tried under the mandate and auspices of the Special Court for Sierra Leone, but his trial is being held at the ICC's facilities in The Hague because of political and security concerns about holding the trial in Freetown.^[73][74]

Situations before the Court

Main article: Cases before the International Criminal Court

Summary of investigations and prosecutions by the International Criminal Court (as of 18 October 2007)

Situation	Referral (date)	Investigation opened	Arrest warrants issued	Surrendered to the ICC	Trial commenced	Verdict	Comments
Northern Uganda	Government of Uganda (December 2003)	July 2004	Joseph Kony
			Vincent Otti
			Raska Lukwiya				Died 12 August 2006
			Okot Odhiambo
			Dominic Ongwen
Democratic Republic of the Congo (DRC)	Government of the DRC (March 2004)	June 2004	Thomas Lubanga	17 March 2006
			Germain Katanga	17 October 2007
Central African Republic (CAR)	Government of the CAR (December 2004)	May 2007
Darfur, Sudan	UN Security Council (March 2005)	June 2005	Ahmed Haroun
			Ali Kushayb

As of 1 February 2006, the Office of the Prosecutor had received 1732 communications about alleged crimes in 139 countries.^[75] After initial review, however, 80% of these communications were found to be “manifestly outside the jurisdiction of the Court”.^[75] The Prosecutor has so far opened investigations into just four situations: Uganda, Democratic Republic of Congo, Central African Republic and Darfur.^[11]

Uganda

In December 2003, the government of Uganda, a state party, referred to the Prosecutor the situation concerning the Lord’s Resistance Army in Northern Uganda.^[76] On 8 July 2005, the Court issued its first arrest warrants for the Lord's Resistance Army leader Joseph Kony, his deputy Vincent Otti, and LRA commanders Raska Lukwiya, Okot Odiambo, and Dominic Ongwen.^[22] The LRA's leaders have repeatedly demanded immunity from ICC prosecution in return for an end to the insurgency,^[77] and the government of Uganda has promised not to turn them over to the ICC if they sign a peace deal.^[77]

Democratic Republic of Congo

In March 2004, the government of the Democratic Republic of Congo, a state party, referred to the Prosecutor “the situation of crimes within the jurisdiction of the Court allegedly committed anywhere in the territory of the DRC since the entry into force of the Rome Statute, on 1 July 2002.”^[78][79]

On 17 March 2006, Thomas Lubanga, former leader of the Union of Congolese Patriots militia in Ituri, became the first person to be arrested under a warrant issued by the court, for allegedly “conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities”.^[80] On 17 October 2007, a second suspect, Germain Katanga, was transferred to the Court by the Congolese authorities.^[81] He is charged with six counts of war crimes and three counts of crimes against humanity.^[81][82] The charges include murder, sexual slavery and using children under the age of fifteen to participate actively in hostilities.^[81]

Central African Republic

In December 2004, the government of the Central African Republic, a state party, referred to the Prosecutor “the situation of crimes within the jurisdiction of the Court committed anywhere on the territory of the Central African Republic since 1 July 2002, the date of entry into force of the Rome Statute.”^[83] On 22 May 2007, the Prosecutor announced his decision to open an investigation,^[84][85] focusing on allegations of killing and rape in 2002 and 2003, a period of intense fighting between government and rebel forces.^[86]

Darfur, Sudan

On 31 March 2005, the United Nations Security Council passed Resolution 1593, referring “the situation prevailing in Darfur since 1 July 2002” to the Prosecutor.^[87] In February 2007 the Prosecutor announced that two men — Sudanese humanitarian affairs minister Ahmad Muhammad Harun and Janjaweed militia leader Ali Kushayb — had been identified as key suspects, accused of war crimes and crimes against humanity.^[88] On 2 May 2007, the Court issued arrest warrants for the two men.^[89] However, Sudan says the court has no jurisdiction over this matter,^[88] and refuses to hand over the suspects.^[89]

Other situations

On 10 February 2006, the Prosecutor published a letter answering complaints connected with the 2003 invasion of Iraq.^[90] He noted that the Court's jurisdiction in Iraq was limited to the actions of nationals of states parties, and that he did not have authority to consider complaints about the legality of the invasion. He concluded that the available information constituted a reasonable basis to believe that a limited number of instances of wilful killing and/or inhuman treatment had occurred, but that the crimes allegedly committed by nationals of states parties in Iraq did not appear to meet the gravity threshold required for an ICC investigation.^[54]

See also: The International Criminal Court and the 2003 invasion of Iraq

See also

• Cases before the International Criminal Court
• International law
• Command responsibility
• Human security
• World government
• World Federalist Movement
• American Non-Governmental Organizations Coalition for the International Criminal Court

Notes and references