International Criminal Court

File:International Criminal Court logo.gif

The official logo of the ICC.

The International Criminal Court (ICC) 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 its jurisdiction over the crime of aggression. The court can only prosecute crimes committed on or after July 1 2002, the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force.

104 states are currently members of the Court, and a further 41 countries have signed but not ratified the Rome Statute. However, a number of states, including the United States, China and India, continue to oppose it.

The Court can generally only exercise jurisdiction 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. The Court is designed to complement existing national judicial systems: it can only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to exercise jurisdiction over alleged criminals is therefore left to individual states.

The official seat of the ICC is in The Hague, Netherlands, but its proceedings may take place anywhere. The Court is separate from, and should not be confused with, the International Court of Justice (often referred to as the “World Court”), which is the United Nations organ that settles disputes between nations.

It should also be noted that "International Criminal Court" is sometimes abbreviated as ICCt to distinguish it from several other organizations abbreviated as ICC. However, the more common abbreviation "ICC" is used in this article.

History

Early development

The movement for the creation of an international court to deal with the problem of crimes committed against humanity gained force after the Nuremberg and Tokyo Trials, established to punish serious crimes committed by the losing sides during World War II. At the request of the United Nations 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.

Then Prime Minister A. N. R. Robinson 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. While work began on a draft statute, the international community created several ad hoc tribunals to try war crimes in the former Yugoslavia and Rwanda (International Criminal Tribunal for the Former Yugoslavia in 1993, International Criminal Tribunal for Rwanda in 1994), further highlighting the need for a permanent international criminal court.

Adoption and entry into force of the Rome Statute

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.

The Rome Statute became a binding treaty at the moment 60 states had ratified it, an event ceremonialized at the United Nations Headquarters on April 11, 2002. Ten countries submitted their ratifications at this time, bringing the total to 66, so that no one nation would hold the honor of depositing the 60th ratification. The ICC legally came into existence on July 1, 2002, and can only prosecute crimes committed after that date.

The first bench of 18 judges was elected by an Assembly of State Parties in February 2003. They were sworn in at the inaugural session of the Court on March 11, 2003. The Court issued its first arrest warrants on 8 July 2005, and the first pre-trial hearings were held in 2006.

Membership

World map of ICC member states

Main article: State Parties of the International Criminal Court

As of January 2007, 104 countries have ratified or acceded to the court, including nearly all of Europe and South America, and nearly half of all African countries. A further 41 states have signed but not ratified the treaty, which under the law of treaties obliges states to refrain from “acts which would defeat the object and purpose” of the treaty. The USA and Israel have "unsigned" the Rome treaty in order to avoid these obligations.

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 state parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.

Many states wanted to add terrorism and drug trafficking to the list of crimes covered by the Rome Statute; however, states were unable to agree a definition for terrorism and it was decided not to include drug trafficking as this might overwhelm the Court's limited resources. 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.

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. The final resolution on adoption of the Rome Statute specifically recommended that terrorism and drug trafficking be reconsidered at this conference. It has also been suggested that ‘cyberterrorism and serious cybercrimes’ should be included.

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. A compromise was reached, allowing the Court to exercise its jurisdiction only under certain limited circumstances, namely:

1. 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); or
2. 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
3. Where a situation is referred to the Court by the UN Security Council.

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.

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.’

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.’

Structure

File:ICC.jpg

The International Criminal Court in The Hague

Composition of the court

Main article: Judges of the International Criminal Court

The International Criminal Court comprises four organs: the Presidency, the Judicial Divisions (the Pre-Trial Division, the Trial Division and the Appeals Division), the Office of the Prosecutor, and the Registry.

The court consists of 18 judges, all of whom are nationals of States Parties to the Rome Statute. 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”. Each judge is elected by States Parties for a term of up to nine years.

The President of the court is Philippe Kirsch of Canada. The Chief Prosecutor is Luis Moreno-Ocampo of Argentina.

How cases reach the court

There are four methods by which a case may reach the ICC:

1. A state party refers the case;
2. A country that has chosen to accept the Court's jurisdiction refers the case;
3. The United Nations Security Council refers the case; or
4. The three-judge panel authorizes a case initiated by the ICC Prosecutor.

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 cases 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. 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. The Court reports to the UN each year on its activities, 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”.

Victim participation and reparations

The Rome Statute provides for an unprecedented level of victim participation in the proceedings of ICC cases and situations. For example, Article 43(6) establishes a Victims and Witnesses Unit within the court's Registry, with the mandate of providing "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." Additionally, Article 68 sets forth procedures that specifically deal with "Protection of the victims and witnesses and their participation in the proceedings." The Court is currently considering, with respect to the Thomas Lubanga case, whether victims may participate in the investigation stage or must wait until the trial stage.

Article 79 also establishes a Victims Trust Fund, which will make reparations payments in accordance with Article 75.

Cases before the Court

Main article: Cases before the International Criminal Court

As of November 2006, the Chief Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, had received 1,700 communications about alleged crimes in 139 countries. However, 80% of these communications have been found outside the Court's jurisdiction. The Prosecutor has so far opened investigations into just three situations: Uganda, Democratic Republic of Congo, and Darfur.

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. 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. Lukwiya was killed in battle on 12 October 2006; the other four suspects have yet to be captured.

Democratic Republic of Congo

In March 2004, the government of the Democratic Republic of Congo (DRC), 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.” 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”.

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. In November 2006, the Prosecutor said his investigation was “nearly complete” and he had sufficient evidence to file charges soon. In February 2007 the chief prosecutor announced that a Sudanese minister and a militia leader had been identified as the two key suspects, accused of war crimes and crimes against humanity. Sudan has claimed that the court has no jurisdiction over this matter.

Other situations

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.” However, in December 2006, the Prosecutor indicated that he had not yet decided whether to open an investigation.

In June 2006, it was agreed that the trial of former Liberian President Charles Taylor would take place using the International Criminal Court's facilities in the Hague. Taylor is being tried under the mandate and auspices of the Special Court for Sierra Leone, but his trial will be held the Hague because of political and security concerns about holding the trial in Freetown.

On 9 February 2006, the Chief Prosecutor published a letter answering complaints connected with the 2003 invasion of Iraq. He concluded that he did not have authority to consider the complaint about the legality of the invasion, and that the available information did not provide sufficient evidence for proceeding with an investigation of war crimes due to the targeting of civilians or clearly excessive attacks; the evidence for willful killing and inhuman treatment, which covered around 20 people, did not appear to meet the "gravity" threshold for an investigation.

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

Criticisms of the Court

Potential for politically motivated prosecutions

Opponents 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”. Henry Kissinger has claimed that the checks and balances are so weak that the prosecutor “has virtually unlimited discretion in practice”.

Lack of due process

Many American critics of the Court, such as the Heritage Foundation, claim that “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.”

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”. 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.”

Interference with national reconciliation processes

In the past, governments have granted amnesty to human rights abusers as part of agreements to end conflict. It is sometimes argued that these 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. 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.” It is widely believed, for example, that the ICC arrest warrants outstanding for four Lord's Resistance Army leaders are an obstacle to peace negotiations in Uganda.

It is worth noting, however, that the United Nations, the International Committee of the Red Cross, and others maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law. Moreover, Article 16 of the Rome Statute allows the Security Council to prevent the Court from investigating or prosecuting a case, 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”. These provisions may allow the Court some leeway to respect national reconciliation processes.

Crimes within the jurisdiction of the Court

As noted above, some states were unhappy about the exclusion of terrorism, drug trafficking and the use of weapons of mass destruction from the Court's jurisdiction. The government of India, for example, 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.”

At the same time, other 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.

Opposition to the Court

While over 50% of the world's states are members of the Court, the majority of the population of the world is outside the jurisdiction of the court and a number of significant countries continue to oppose it.

The United States

Main article: United States and the International Criminal Court

Although the US originally voted against the adoption of the Rome Statute, President Bill Clinton unexpectedly reversed his position on December 31 2000 and signed the treaty, but indicated that he would not recommend that his successor, George W. Bush, submit it to the Senate for ratification. On May 6 2002, the Bush administration announced it was cancelling the United States' signature of the treaty. However, public opinion polls routinely show strong popular support for the Court: the most recent poll, conducted in February 2005, found that 69% of Americans supported referal of allegations of war crimes in Darfur, Sudan to the ICC.

The country's main objections are interference with their national sovereignty and a fear of politically motivated prosecutions.

In 2002, the U.S. Congress passed the American Servicemembers' Protection Act (ASPA), which contained a number of provisions, including prohibitions on the U.S. providing military aid to countries which had ratified the treaty establishing the court (exceptions granted), and permitting the President to authorize military force to free any U.S. military personnel held by the court, leading opponents to dub it the "Hague Invasion Act." The act was later modified to permit U.S. cooperation with the ICC when dealing with U.S. enemies.

The U.S. has also made a number of Bilateral Immunity Agreements (BIAs, also known as "Article 98 Agreements") with a number of countries, prohibiting the surrender to the ICC of a broad scope of persons including current or former government officials, military personnel, and U.S. employees (including non-national contractors) and nationals. As of August 2 2006, the US Department of State reported that it had signed 101 of these agreements. The United States has cut aid to many countries which have refused to sign BIAs.

In 2002, the United States threatened to veto the renewal of all United Nations peacekeeping missions unless its troops were granted immunity from prosecution by the Court. In a compromise move, the Security Council passed Resolution 1422 on July 12 2002, granting immunity to personnel from ICC non-states parties involved in United Nations established or authorized missions for a renewable twelve-month period. This was renewed for twelve months in 2003 but the Security Council refused to renew the exemption again in 2004, after pictures emerged of US troops abusing Iraqi prisoners in Abu Ghraib, and the US withdrew its demand.

Israel

Israel states that it has "deep sympathy" with the goals of the court. However, it has concerns that political pressure on the court would lead it to reinterpret international law or to "invent new crimes". It cites the inclusion of "the transfer of parts of the civilian population of an occupying power into occupied territory" as a war crime as an example of this, whilst at the same time disagrees with the exclusion of terrorism and drug trafficking. Israel sees the powers given to the prosecutor as excessive and the geographical appointment of judges as disadvantaging Israel which is not part of any of the UN Regional Groups.

Israel voted against the adoption of the Rome Statute but later signed the Statute. In 2002 it submitted a letter to the United Nations declaring that it did not intend to ratify the treaty, using the same wording as the similar letter from the United States.

The ICC in popular culture

• In the 2005 film The Interpreter, a fictional African president travels to New York to try to persuade the UN Security Council not to allow the ICC to prosecute him for crimes against humanity.

• The Trial of Tony Blair is a satirical television programme that aired in the UK on 15 January 2007. Set in the year 2010, it depicts the extradition of Tony Blair to an "International Criminal Court tribunal" in the Hague to stand trial for crimes relating to the 2003 invasion of Iraq.

• In a January 2007 episode of Judge John Deed, Judge Deed travels to the Hague to hear the case of a young British soldier accused of war crimes in Iraq.

See also

• AMICC (American NGO Coalition for the International Criminal Court)
• Command responsibility
• International Law
• Peace Palace
• World Government
• World Federalist Movement

Publications

• Ilaria Bottigliero, Redress for Victims of Crimes under International Law, Martinus Nijhoff Publishers, The Hague (2004), 304 pages.
• Ilaria Bottigliero, “Redress and International Criminal Justice in Asia and Europe”, Asia Europe Journal, Vol. 3 (4) 2005, pp. 453-461. http://asef.on2web.com/subSite/ccd/documents/finalpaper.pdf
• Ilaria Bottigliero, “The Contribution of Humanitarian Law to Gender Justice in Asia through the ICC”, 3 ISIL Yearbook of International Humanitarian and Refugee Law (2003), pp. 48-58.
• Ilaria Bottigliero, “The International Criminal Court - Hope for the Victims”, 32 SGI Quarterly, April 2003, pp. 13-15. http://www.sgi.org/english/Features/quarterly/0304/perspective.htm
• Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law. Oxford: Oxford University Press (2003).
• Anne-Marie de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR, Antwerp - Oxford: Intersentia (2005). ISBN 90-5095-533-9
• Hans Köchler, Global Justice or Global Revenge? International Criminal Justice at the Crossroads. Vienna/New York: Springer, 2003, ISBN 3-211-00795-4
• Hans Köchler, “Universal Jurisdiction and International Power Politics: Ideal versus Real”, in: Yeditepe’de Felsefe / Philosophy at Yeditepe, Istanbul, Vol. 1, No. 5 (August 2006), pp. 1-16.
• Roy S Lee (ed.), The International Criminal Court: The Making of the Rome Statute. The Hague: Kluwer Law International (1999). ISBN 90-411- 1212-X
• Roy S Lee & Hakan Friman (eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence. Ardsley, NY: Transnational Publishers (2001). ISBN 1-57105-209-7
• Madeline Morris, “High crimes and misconceptions: the ICC and non-party states”, Law and Contemporary Problems, Winter 2001, vol. 64, no. 1, p. 13ff. Accessed 2006-11-23.
• William A Schabas, An Introduction to the International Criminal Court (2nd ed.). Cambridge: Cambridge University Press (2004). ISBN 0-521-01149-3
• Nicolaos Strapatsas, ‘Universal Jurisdiction And The International Criminal Court’, Manitoba Law Journal, 2002, vol. 29, p. 2.
• Lyal S. Sunga, The Emerging System of International Criminal Law: Developments in Codification and Implementation (1997).
• Lyal S. Sunga, The Crimes within the Jurisdiction of the International Criminal Court (Part II, Articles 5-10), Vol. 6/4 (No. European Journal of Crime, Criminal Law and Criminal Justice (1998) 377-399.
• Lyal S. Sunga, The Attitude of Asian Countries Towards the International Criminal Court, 2 Indian Society of International Law Yearbook of International Humanitarian and Refugee Law (2002) 18-57.
• Lyal S. Sunga, International Criminal Law: Protection of Minority Rights, Beyond a One-Dimensional State: An Emerging Right to Autonomy? (ed. Zelim Skurbaty)(2004) 255-275.

External links

UN & ICC websites

• Official ICC website
• UN website on the Statute of the International Criminal Court
• Text of the Rome Statute
• Rome Statute of the International Criminal Court: depositary notifications

Other

• The Coalition for the International Criminal Court
• American NGO Coalition for the International Criminal Court
• No Peace Without Justice
• Article 126 - unofficial ICC blog
• The McNabb Associates International Crimes Blog
• Objections to the ICC under the U.S. Constitution and International Law
• “Don't Fear the International Criminal Court” by David Kaye, in Foreign Policy, January/February 2006
• “The International Criminal Court” by Amnesty International USA
• International Criminal Court Exhibition
• "Instrument of Justice: The ICC Prosecutor Reflects" by ICC Prosecutor Luis Moreno-Ocampo, JURIST