Analysis of the International Criminal Court

In the wake of the Second World War following the Nuremburg and Tokyo trials, the international community came to realize that it was necessary for a standing International Criminal Court to exist. This court would act as both a deterrent and a mechanism for punishment if atrocities approaching those of the Second World War were ever committed again. Due to the rise of the spectre of the Cold War and the stalemate that occurred in the United Nations Security Council between the United States and the USSR, the hope for a body that might preserve humanitarian law was postponed.

In order to fully understand the International Criminal court it is necessary to discuss the signatories and the most significant non-ratifiers as well as the courts overall jurisdiction. Furthermore I intend to outline the most important sections of The Rome Statute of the International Criminal Court, which established the International Criminal Court. These sections of course will concern themselves with the constitution of the ICC as a body. Along with jurisdiction, location, the State Parties and the constitution of the ICC, I will outline the current cases and warrants before the ICC.

In order for the ICC to come to fruition it was necessary for the USSR and the United States to end the Cold War. Without an end to that conflict, either power would use their veto on the UN Security Council to end any motion, which would result in the creation of an International Criminal Court. This cessation came about in the early 1990’s with the fall of the USSR and the birth of the Russian Federation. Added to this end of history[1] the culmination of the events in Rwanda, Sierra Leone, the Congo and the former Yugoslavia led to the international community realizing that the time had come for the institution of an International Criminal Court.

As a result of these conflicts and the atrocities that accompanied them, a diplomatic conference was held in Rome on the 17th of July, 1998[2]. At this conference The Rome Statute of the International Criminal Court was written and “as of 21 July 2009, 110 countries are States Parties to the Rome Statute of the International Criminal Court. Out of them 30 are African States, 14 are Asian States, 17 are from Eastern Europe, 24 are from Latin American and Caribbean States, and 25 are from Western European and other States[3].” Some of the world’s most powerful nations have vocally opposed the court, and although some of this opposition has signed the Rome Statute of the International Criminal Court, none of them have ratified it.

These nations in opposition to the ICC include 3 of the members of the permanent Security Council of the United Nations: the United States of America, the Russian Federation and the People’s Republic of China as well as other prominent nuclear states including India and Pakistan. One reasonable argument for this is that many of these nations engage in practices, which may be construed as war crimes. Because of this their leaders wish to avoid signing onto the statute. Another argument put forward by the Americans is that the ICC will compromise the sovereignty of respective nation-states, by superseding their legal jurisdiction and systems and therefore nations ought to abstain from joining. This is a near identical argument to the one put forward by the United States in regards to the International Court of Justice (not to be confused with the ICC).

The largest counter-argument to this rebuff is the fact that within the ICC’s founding document, the court’s jurisdiction is limited to those cases which the respective nation puts forward after its own investigations or the failure thereof. Furthermore, the United Nations Security Council can suggest any case to the ICC, even though the ICC is at arms length from the UN. The United States with its Security Council veto would be able to halt any motion that involved it or its citizens in the ICC. The most important issue, which might come before the court, involving members of the Security Council is the matter of the approval of Enhanced Interrogation Techniques for the CIA by an Executive Order by US President George W. Bush. These tactics have been determined by many in the international community and the NGO Physicians for Human Rights to be forms of torture which fall into the ICC’s jurisdiction under Part II Article 5 Section 1 Subsections b and c: Crimes against humanity and War crimes respectively[4].

This brings us to a discussion of the ICC’s jurisdiction in full. In regards to the ICC’s physical jurisdiction it is situated in The Hague, the Netherlands, although it is capable of sitting “elsewhere, whenever it considers it desirable, as provided in” The Rome Statute of the International Criminal Court[5] through an agreement with the respective state to become a Host State. Furthermore it may relocate to any location in order to try a case and holds field offices in nations, which are involved in cases that the ICC is trying. Article 4 and 5 limit the judicial jurisdiction of the ICC. Article 4 reads as follows:

1.The Court shall have international legal personality. It shall also have such legalcapacity as may be necessary for the exercise of its functions and the fulfilment ofits purposes.

2. The Court may exercise its functions and powers, as provided in this Statute, onthe territory of any State Party and, by special agreement, on the territory of anyother State.

Furthermore the ICC is restricted to specific trials as follows:

1. The jurisdiction of the Court shall be limited to the most serious crimes of concernto the international community as a whole. The Court has jurisdiction inaccordance with this Statute with respect to the following crimes:

(a) The crime of genocide;

(b) Crimes against humanity;

(c) War crimes;

(d) The crime of aggression.

This jurisdiction is limited by an international legal discrepancy regarding the act of aggression and resolved in the following article:

2. The Court shall exercise jurisdiction over the crime of aggression once a provisionis adopted in accordance with articles 121 and 123 defining the crime and settingout the conditions under which the Court shall exercise jurisdiction with respect tothis crime. Such a provision shall be consistent with the relevant provisions of theCharter of the United Nations.[6]

Until such a time that the crime of aggression can be agreed upon by the General Assembly of the United Nations as well as the Security Council there won’t be any cases brought before the ICC concerning this international legal issue. Part of the reason for this is that by defining the crime of aggression states would most certainly shackle themselves to a model of international relations, which denied any opportunity for a pre-emptive strike, something extolled in the Bush Doctrine of international relations and a complimentary doctrine to the Powell Doctrine, which espouses a disproportionate use of force in order to end conflict as rapidly as possible. Without this strike against other nations, especially in the case of arms races, pre-emptive attacks would be largely mitigated, which are a critical part of war theory in international relations. Most states that accept war theory, as an integral part of international relations, are unwilling to accept that in the case of their instigating aggression they would be charged. Furthermore aggression can be interpreted in many different ways, blockades, threat of force, and trade embargoes can and have, all been interpreted as forms of aggression.

Another jurisdictional limitation binding the ICC is that of temporal jurisdiction. The ICC may not try a case that occurred prior to The Rome Statute of the International Criminal Court coming into effect, 1 July 2002. This limitation is based upon the legal principle of ratione temporis, that the law cannot act ‘backwards’ in time. This quite obviously prevents cases being brought forward ad infinitum from events prior to the law. Furthermore it would be impossible for a law to be broken or a court to rule on that law when the law did not exist during the time of the supposed breach. Also and very importantly the second section of the act reads:

If a State becomes a Party to this Statute after its entry into force, the Court mayexercise its jurisdiction only with respect to crimes committed after the entry intoforce of this Statute for that State, unless that State has made a declaration underarticle 12, paragraph 3.[7]

However, the ICC may act on any case that is brought to its attention by member states, even those states that are not party to the ICC but have engaged a Party State of the ICC. This is pursuant to Article 4, Section 2:

“The Court may exercise its functions and powers, as provided in this Statute, onthe territory of any State Party and, by special agreement, on the territory of anyother State.[8]

The constitution of the ICC itself is made of five bodies: The Assembly of State Parties, The Presidency, The Judicial Divisions, The Office of the Prosecutor and the Registry. Each of these bodies serves an important purpose within the machinations of the International Criminal Court.

The Assembly of State Parties is the body of State Parties, who have signed on to and ratified the Rome Statute of the International Criminal Court. There is one representative from each member state to speak on their behalf to The Assembly of State Parties. The general rule of the ICC is to attempt to achieve consensus on all matters regarding the court. The Assembly of State Parties controls many of the issues involving the ICC’s governance, including:

(b) Provide management oversight to the Presidency, the Prosecutor and theRegistrar regarding the administration of the Court;

(d) Consider and decide the budget for the Court;[9]

The Assembly elects the 18 judges of the court as well as the ICC’s President and Vice-Presidents.

The 18 judges are elected along a geographically representative principal, and no two judges from the same nation may hold seats at the same time. These elections along with terms of office and precedence are governed by: The Rome Statute of the International Criminal Court and The Regulations of the Court 26 May 2004 as well as the amendments put into effect 18 December 2007. The judges are, “chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.[10]” The judges’ terms last 9 years. If for any reason a judge must leave their office, tradition, but not mandate, dictates that another judge is elected to fill their position until the term is finished from the same country.

These 18 judges are divided into three courts, the Pre-Trial Division, the Trial Division and the Appeals Division. Each of these courts is presided over by 6 judges, each headed by either the President or one of the two Vice-Presidents. Each of these courts function according to the following:

2. (a) The judicial functions of the Court shall be carried out in each division by Chambers.

(b) (i) The Appeals Chamber shall be composed of all the judges of the Appeals Division;

(ii) The functions of the Trial Chamber shall be carried out by threejudges of the Trial Division;

(iii) The functions of the Pre-Trial Chamber shall be carried out either by three judges of the Pre-Trial Division or by a single judge of that division in accordance with this Statute and the Rules of Procedure and Evidence;[11]

The Pre-Trial division deals with issues concerning warrants, admissibility of trials and the administration of initial charges against individuals being laid., the Trial division rules upon the cases after individuals have been brought to trial and the Appeals division deals with any appeals brought before the court after a ruling has been issued.

The Prosecutor or any member involved in a trial may request a judge remove themselves from trial in “any case in which his or her impartiality might reasonably be doubted on any ground.[12]” Any such request must be judged on by an absolute majority of the other judges.

The Office of the Prosecutor conducts both investigations and prosecutions for the ICC. The Prosecutor is the head of the department and is assisted by two Deputy Prosecutors. The Office of the Prosecutor is independent from all other branches of the ICC, and “shall not seek or act on instructions from any external source.[13]” The Prosecutor and deputy Prosecutors must be of different nations according to Article 42 Section 2. In regards to the choice of officers an absolute majority on secret ballots in The Assembly of Member States elects the Prosecutor; the Deputy Prosecutors are elected in a similar manner from a list put forward by the Prosecutor to The Assembly of Member States.[14] The President may excuse the Prosecutor or the Deputy Prosecutors from any case if petitioned by them.[15] In regards to disqualification of any of the Deputy Prosecutors or the Prosecutor only the Appeals Chamber shall rule on the matter. This issue is dealt with in Article 42 Section 8:

8. Any question as to the disqualification of the Prosecutor or a Deputy Prosecutorshall be decided by the Appeals Chamber.

(a) The person being investigated or prosecuted may at any time request thedisqualification of the Prosecutor or a Deputy Prosecutor on the groundsset out in this article;

(b) The Prosecutor or the Deputy Prosecutor, as appropriate, shall be entitledto present his or her comments on the matter.

This leaves the Registry. The Registry is the bureaucratic organ of the ICC, it governs the everyday goings on of the court, and is not directly involved in the legal proceedings of the court. The Registry is headed by the Registrar, who is the chief administrator of the ICC and exercises their “functions under the authority of the President of the Court.[16]” The Registrar may request a Deputy Registrar should the need arise. Both the appointment of the Registrar and the Deputy Registrar are decided by a secret ballot of the 18 judges, requiring an absolute majority, and taking into account any suggestion by The Assembly of Member States.[17] The Registrar is also responsible for establishing the Victims and Witness Unit, which “shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling 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.[18]” To assist the Office of the Registrar as well as the offices above mentioned, numerous staff shall be appointed as per the guidance of Article 44.

After coming to an understanding of the jurisdiction of the court and the constitution of its bodies we must understand the courses and warrants before the court. These cases and warrants involve four African states: Uganda, Democratic Republic of the Congo, the Central African Republic and Sudan; specifically regarding Darfur.

Uganda has citizens before the court who are members of The Lord’s Resistance Army, this case was suggested by the Ugandan government, a State Party. Members of this group have been accused of committing war crimes and crimes against humanity. The Lord’s Resistance Army has stated that they will end violence against the government if the Ugandan government withdraws its suggestion for a trial before the ICC. The Ugandan government has entertained the idea of instituting a national tribunal that would meet international standards to try the accused instead. The members accused are: Joseph Kony (Fugitive), Vincent Otti (believed to be deceased as of 2007), Raska Lukwiya (Deceased 12 August 2006), Okhot Odiambo (Fugitive), Dominic Ongwen (Fugitive). These individuals have been accused under Articles 7 and 8 of The Rome Statute of the International Criminal Court.

Democratic Republic of the Congo has four former members of government who have been accused before the ICC due to the events of March 2004. These individuals are: Thomas Lubanga (in ICC custody, trial began 26th January 2009), Germain Katanga (in ICC custody, trial began 24th November 2009), Mathieu Ngudjolo Chui (in ICC custody, trial began 24th November 2009) and Bosco Ntaganda (Fugitive).

Central African Republic has one former member of government, Jean-Pierre Bemba. After his arrest warrant was signed Bemba was found in Brussels the following day. Bemba, a former Vice-President of the Central African Republic, was transferred to ICC custody on the 3rd of July 2008. His trial begins on the 27th of April 2010. His trial is in regards to both War Crimes and Crimes against humanity.

Sudan, unlike the other states concerned had citizens suggested to the ICC by the UN Security Council. These accusations are in regards specifically to the conflict in Darfur. The citizens accused before the ICC are: Ahmed Haroun (Fugitive), Ali Kushayb (Fugitive), Omar al-Bashir (Fugitive) and Bahr Idriss Abu Garda who unlike any other in the courts history is appearing before the court voluntarily. His confirmation of charges hearing began 12th of October 2009.

These individuals will be tried before the court to the fullest extent of its power, which includes:

1. Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute:

(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or

(b) Aterm of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.

2. In addition to imprisonment, the Court may order:

(a) Afine under the criteria provided for in the Rules of Procedure and Evidence;

(b) Aforfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.[19]

Following a ruling, the charged may appeal the courts decision as per Articles 81, 82, 83 and 84. In regards to the victims of these crimes a Trust is established by the court which may pay out compensation for the damages done as per Article 79 of The Rome Statute of the International Criminal Court.

The International Criminal Court has yet to demonstrate that it, as an international judicial body, has teeth. Despite this the ICC has already apprehended and proceeded with trial on 5 of the 12 individuals who still have active warrants on them. Only a resolution to the trials currently before the ICC will determine whether this court has will be able to live up to its mandate “to guarantee lasting respect for international justice.[20]” This is a large expectation of a body that does not have a majority of the world’s population signed onto it, and 5 of the world’s nuclear states refusing to sign on or ratify The Rome Statute. If the ICC is to survive as a respected body, it will require the sanction and support of the world’s Great Powers, otherwise, the ICC like many international institutions before it will risk becoming outdated, ineffectual and under utilized in some of the major issues of the 21st Century.

[1] Fukuyama, Francis. The End of History. The National Interest. 1989.

[2] Rome Statute of the International Criminal Court. 17th July, 1998. The International Criminal Court.

[3] International Criminal Court Website. Mar. 23, 2010.

[4] Physicians for Human Rights. Leave No Marks Enhanced Interrogation Techniques and the Risk of Criminality. August 2007.

[5] Rome Statute of the International Criminal Court. Part I, Art. 3, Sec. 1-3.

[6] The Rome Statute of the International Criminal Court. Part II Art. 5, Sec. 1, 2 Sub. (1. a, b, c, d).

[7] The Rome Statute of the International Criminal Court. Art. 11, Sec. 2.

[8] The Rome Statute of the International Criminal Court. Art. 4, Sec. 2.

[9] The Rome Statute of the International Criminal Court. Art. 112, Sec. 2, Sub. (b, d).

[10] The Rome Statute of the International Criminal Court. Art. 36, Sec. 3, Sub. (a).

[11] The Rome Statute of the International Criminal Court. Art. 39, Sec. 2, Sub. (a, b, c).

[12] The Rome Statute of the International Criminal Court. Art. 41, Sec. 2, Sub. (a, b, c).

[13] The Rome Statute of the International Criminal Court. Art. 42, Sec. 1.

[14] The Rome Statute of the International Criminal Court. Art. 42, Sec. 4.

[15] The Rome Statute of the International Criminal Court. Art. 42, Sec. 6.

[16] The Rome Statute of the International Criminal Court. Art. 43, Sec. 2.

[17] The Rome Statute of the International Criminal Court. Art. 43, Sec. 4.

[18] The Rome Statute of the International Criminal Court. Art. 43, Sec. 6.

[19] The Rome Statute of the International Criminal Court. Art. 77, Sec 1, 2.

[20] The Rome Statute of the International Criminal Court. Preamble.

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