Law and You > Criminal Laws > Criminal Jurisprudence >International Criminal Court (ICC)
In this article, we shall discuss about the International Criminal Court.
List of Sub-Topics:
- Introduction
- Objectives of Establishment of ICC
- Roman Statute
- Indian Position on Roman Statute
- Jurisdiction of ICC
- Crime of Genocide
- Crime Against Humanity
- War Crimes
- Crime of Aggression
- Organizational Structure of ICC
- Limitations of ICC
- Distinction Between ICJ and ICC
Some of the most heinous crimes were committed during the conflicts which marked the twentieth century. Unfortunately, many of these violations of international law have remained unpunished. The Nuremberg and Tokyo tribunals were established in the wake of the Second World War. In 1948, when the Convention on the Prevention and Punishment of the Crime of Genocide was adopted, the United Nations General Assembly recognized the need for a permanent international court to deal with the kinds of atrocities which had just been perpetrated. In this article, we shall discuss organizational structure, jurisdiction, limitations of the International Criminal Court (ICC)
The International Criminal Court:
The International Criminal Court (“the ICC” or “the Court”) is a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression. It is governed by an international treaty called ‘The Rome Statute’. Itis the world’s first permanent international criminal court.
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Object of Establishment of ICC:
The International Criminal Court is a permanent court which prosecutes individuals on genocide, crimes against humanity and war crimes. The ICC have four main aims these are,
- to ensure the worst perpetrators are held accountable for their crimes,
- to serve as a court of last resort that can investigate, prosecute and punish the perpetrators of genocide, crimes against humanity and war crimes,
- to assist national judiciaries in the investigation and prosecution of perpetrators with the aim to allow States to be the first to investigate and
- to prosecute and help promote peace and security be deterring potential perpetrators.
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Rome Statute:
On 17 July 1998, a conference of 160 States established the first treaty-based permanent international criminal court. The treaty adopted during that conference is known as the Rome Statute of the International Criminal Court. Among other things, it sets out the crimes falling within the jurisdiction of the ICC, the rules of procedure and the mechanisms for States to cooperate with the ICC. The countries which have accepted these rules are known as States Parties and are represented in the Assembly of States Parties. The Assembly of States Parties, which meets at least once a year, sets the general policies for the administration of the Court and reviews its activities. During those meetings, the States Parties review the activities of the working groups established by the States and any other issues relevant to the ICC, discuss new projects and adopt the ICC’s annual budget.
On 17 July, 1998 Rome Statute was adopted by 120 States in direction of creating a more just world. On 1 July, 2002 Rome Statute took effect upon ratification by 60 states, officially establishing the ICC. Today the ‘Rome Statute’ serves as the ICC’s guiding legal instrument, which is elaborated in such other legal texts as the Elements of Crimes, Rules of Procedure and Evidence and more.
The seat of the Court is in The Hague in the Netherlands. The Rome Statute provides that the Court may sit elsewhere whenever the judges consider it desirable. The Court has also set up offices in the areas where it is conducting investigations. The Court is funded by contributions from the States Parties and by voluntary contributions from governments, international organisations, individuals, corporations and other entities. India, US, and China are not a signatory to Rome Statute.
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Indian Position on Rome Statute and ICC:
India has neither signed nor ratified the Rome Statute of the International Criminal Court. It actively participated in the Preparatory Committee for the Establishment of International Criminal Court and the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, however, India abstained from the motion to adopt the Statute at the conclusion of the conference.
Indian delegates insisted that the reasons for India’s abstention were the powers given to the United Nations Security Council (‘UNSC’) and the non-inclusion of nuclear weapons and other weapons of mass destruction as weapons whose use would constitute a war crime.
India favoured an ICC which could not have jurisdiction over acts committed on Indian territory or by its subjects, but for exceptional scenarios. These exceptional scenarios according to India consisted of situations where the State machinery had collapsed, that is when a “State’s administrative and legal machinery had ceased to function”. To prevent such an eventuality India had strong views on the jurisdiction of the ICC.
India wanted to include in the Statute a crime which it finds most relevant, and for which it has been making efforts in other fora, namely the crime of terrorism.
India wanted the Court to be an impartial judicial institution completely independent of political institutions like the UNSC. Thus, India rejected the power of referral and deferral of the UNSC in the Statute.
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Jurisdiction of the Court:
When a State becomes a party to the Rome Statute, it agrees to submit itself to the jurisdiction of the ICC with respect to the crimes enumerated in the Statute. The Court may exercise its jurisdiction in situations where the alleged perpetrator is a national of a State Party or where the crime was committed in the territory of a State Party. Also, a State not party to the Statute may decide to accept the jurisdiction of the ICC. These conditions do not apply when the Security Council, acting under Chapter VII of the United Nations Charter, refers a situation to the Office of the Prosecutor. The ICC prosecutes individuals, not groups or States.
The Rome Statute, grants the ICC jurisdiction over four main crimes:
- The crime of Genocide
- Crimes against Humanity
- War crimes
- Crime of Aggression
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The Crime of Genocide:
According to the Rome Statute, “genocide” means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group:
- killing members of the group;
- causing serious bodily or mental harm to members of the group;
- deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- imposing measures intended to prevent births within the group;
- forcibly transferring children of the group to another group.
When a situation is not within the Court’s jurisdiction, the United Nations Security Council can refer the situation to the ICC granting it jurisdiction.
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Crimes Against Humanity:
“Crimes against humanity” include any of the following acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
- murder;
- extermination;
- enslavement;
- deportation or forcible transfer of population;
- imprisonment;
- torture;
- rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
- persecution against an identifiable group on political, racial, national, ethnic, cultural, religious or gender grounds;
- enforced disappearance of persons;
- the crime of apartheid;
- other inhumane acts of a similar character intentionally causing great suffering or serious bodily or mental injury
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War Crimes:
“War crimes” include grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts “not of an international character” listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale. These prohibited acts include:
- murder;
- mutilation, cruel treatment and torture;
- taking of hostages;
- intentionally directing attacks against the civilian population;
- intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals;
- pillaging;
- rape, sexual slavery, forced pregnancy or any other form of sexual violence;
- conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.
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Crime of Aggression:
As adopted by the Assembly of States Parties during the Review Conference of the Rome Statute, held in Kampala (Uganda) between 31 May and 11 June 2010, a “crime of aggression” means the planning, preparation, initiation or execution of an act of using armed force by a State against the sovereignty, territorial integrity or political independence of another State.
The act of aggression includes, among other things, invasion, military occupation, and annexation by the use of force, blockade of the ports or coasts, if it is considered being, by its character, gravity and scale, a manifest violation of the Charter of the United Nations.
The perpetrator of the act of aggression is a person who is in a position effectively to exercise control over or to direct the political or military action of a State.
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Organizational Structure of ICC:
The Assembly of States Parties provides management oversight for the Court, including electing judges and the Prosecutor and approving the ICC’s budget. The ICC is composed of four primary organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor,
- Presidency: The Presidency consists of three judges (the President and two Vice-Presidents) elected by an absolute majority of the 18 judges of the Court for a maximum of two, three-year terms. It conducts external relations with States, coordinates judicial matters such as assigning judges, situations and cases to divisions, and oversees the Registry’s administrative work. The Presidency is also responsible for carrying out other tasks, such as ensuring the enforcement of sentences imposed by the Court.
- Chambers: The Chambers consist of eighteen judges organized into the Pre-Trial Division, the Trial Division, and the Appeals Division. The judges of each Division are then divided into Chambers which are responsible for conducting the proceedings of the Court on specific cases and situations at different stages of the judicial procedure.
- Office of the Prosecutor: The Office of the Prosecutor (OTP) is responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court. OTP examines these referrals and information, conducts investigations, and conducts prosecutions before the Court. It conducts preliminary examinations, investigations, and prosecutions.
- Registry: It conducts non-judicial activities, such as security, interpretation, outreach, support to Defence and victims’ lawyers etc. The Registry provides judicial and administrative support to all organs of the Court and carries out its specific responsibilities in the areas of defence, victims and witnesses, outreach and detention.
Also separate from the Court is the Trust Fund for Victims, which was created by the Assembly of States Parties (as specified in Article 79 of the Rome Statute) to provide assistance and support to victims of Rome Statute crimes and their families and to help implement Court-ordered reparations. The Trust Fund for Victims seeks to promote restorative justice, reconciliation, and sustainable peace by attempting to address the direct harms of atrocity crimes.
The ICC has field offices in several of the countries in which investigations are being conducted. The ICC detention centre is used to hold in safe, secure and humane custody those detained by the ICC.
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Limitations of ICC:
Lack of Executive/Enforcement Power:
It has no police force of its own. Apart from the post-trial enforcement issue, the ICC also suffers from pre-trial enforcement problem as it depends completely on member states to arrest and transfer defendants. An illuminating example of this is the ICC’s request to arrest and surrender Sudan’s President Omar Al-Bashir for the commitment of the crimes under Article 5. The arrest warrant, first issued in 2009, was ignored by 19 different countries, 9 of with are signatories of the Rome Statute.
Low Conviction Rates:
It took the ICC 16 years to convict less than ten suspects. Due to the complexity of the crimes, multiple crime sites, a high number of distinct charges, large number of witnesses and volume of documentation per makes process lengthy. Effective administration of justice in the context of the ICC requires the cooperation of the States concerned, which, as demonstrated above, is often lacking.
Exclusive Focus on African Countries:
Many African countries have repeatedly criticised the ICC as being inappropriately political by only focusing on situations in Africa. Despite the assertion, most of the African situations were referred to the ICC by African governments themselves.
Lack of Resources:
Without States’ support and cooperation, the ICC would have no funding, no defendants to prosecute, and no evidence with which to conduct prosecutions, all of which would go against the very purpose of setting up the ICC. Despite the number of signatories to the Rome Statute, there are more than 70 States that have yet to join, including the world’s four most populous countries.
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ICC and National Courts:
The treaty gives the ICC jurisdiction that is complementary to national jurisdictions. This “principle of complementarity,” as it is known, gives states the primary responsibility and duty to prosecute the most serious international crimes, while allowing the ICC to step in only as a last resort if the states fail to implement their duty — that is, only if investigations and, if appropriate, prosecutions are not carried out in good faith. Bona fide efforts to discover the truth and to hold accountable those responsible for any acts of genocide, crimes against humanity, or war crimes will bar the ICC from proceeding.
Distinction Between ICJ and ICC:
| International Court of Justice (ICJ) | International Criminal Court (ICC) |
| States that ratify the U.N. Charter become parties to the ICJ Statute under Article 93. Non-UN member states can also become parties to the ICJ by ratifying the ICJ Statute. Each state must provide consent to any contentious case by explicit agreement, declaration, or treaty clause | Authorizing mechanism is Rome Statute. |
| It is official court of the U.N., commonly referred to as the “World Court.” | It is independent. May receive case referrals from the UN Security Council. Can initiate prosecutions without UN action or referral. |
| It is established in 1946 | It is established in 2002 |
| Its Head Quarter is situated in Hague, Netherlands | Its Head Quarter is situated in Hague, Netherlands |
| Jurisdiction is U.N. member-states (i.e. national governments) | Jurisdiction is individual |
| Its subject matters are sovereignty, boundary disputes, maritime disputes, trade, natural resources, human rights, treaty violations, treaty interpretation, and more. | Genocide, crimes against humanity, war crimes, crimes of aggression |
| There are no appeals. The ICJ decision in a contentious case is binding upon the parties. If a State fails to comply with the judgment, the issue may be taken to the UN Security Council, which has the authority to review, recommend, and decide upon enforcement. | There is Appeals Chamber. Article 80 of the Rome Statute allows retention of an acquitted defendant pending appeal. |
| It is UN-Funded. | Assess contribution from state parties to the Rome Statute; voluntary contributions from the U.N.; voluntary contributions from governments, international organizations, individuals, corporations and other entities. |
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Conclusion:
The ICC, as the world’s first permanent international criminal institution, plays an important role in the global legal framework for the promotion, protection and fulfillment of human rights, despite the fact that it is not, itself, a human rights court. The ICC will help end the impunity often enjoyed by those responsible for the most serious international human rights crimes. It will provide incentives and guidance for countries that want to prosecute such criminals in their own courts, and it will offer permanent back up in cases where countries are unwilling or unable to try these criminals themselves, because of violence, intimidation, or a lack of resources or political will.
Unlike the ad hoc tribunals that preceded it, the ICC does not have primacy of jurisdiction, and this means that it cannot deem a case admissible before it purely on the basis that the accused would not receive a fair trial in a domestic court. However, the ICC is bound to interpret its law in a manner that is consistent with international human rights law. Conversely, the ICC has been able to bring about progressive developments in the interpretation of its core crimes, all of which are closely linked to human rights.
It is sometimes expected to play a greater role in international politics, by ending conflicts, deterring future atrocities, or forcing states to respect their human rights obligations.
Suggestions:
- States should actively encourage cooperation with ICC and support human rights defenders working towards international justice and the fulfilment of the ICC’s mandate.
- To enhance its credibility the court needs to broaden its ambit by including more permanent members of UN and by strengthening of investigations and prosecutions.
- ICC role is very important as international justice can contribute to long‐term peace, stability and equitable development in post‐conflict societies.
- Having said so it is also important to know that the ICC actively works to build understanding and cooperation in all regions through seminars and conferences worldwide.