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International Criminal Court

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Official logo of the ICC.
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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, and war crimes, as defined by several international agreements, most prominently the Rome Statute of the International Criminal Court. The ICC is designed to complement existing national judicial systems; however, the Court can exercise its jurisdiction if national courts are unwilling or unable to investigate or prosecute such crimes, thus being a "court of last resort," leaving the primary responsibility to exercise jurisdiction over alleged criminals to individual states.

Note that "International Criminal Court" is sometimes abbreviated as ICCt to distinguish it from the "International Chamber of Commerce" or the "International Cricket Council," both of which also use the abbreviation ICC. However in these articles the more common abbreviation of ICC is used.

Also, the ICC is separate and not to be confused from the International Court of Justice, which is a body to settle disputes between nations, and the Belgian War Crimes Law.

Contents

Cases before the court

The Chief Prosecutor of the court, Luis Moreno-Ocampo, has decided to open an investigation into three matters, after rigorous analysis in accordance with the Rome Statute and the Rules of Procedure and Evidence:

The Central African Republic, referred itself to the court on January 6, 2005, but the Chief Prosecutor has not yet decided whether to open an investigation into this matter.

In a special case, former Liberian President Charles Taylor was transferred to the buildings of the ICC in June 2006 for a trial under the mandate and auspices of the Special Court for Sierra Leone. This was due to political and security concerns about holding the trial in Freetown.

On 2006-02-09 the Chief Prosecutor published a letterLuis Moreno-Ocampo [Letter:Public reply with his conclusions allegations of war crimes during the invasion of Iraq in March 2003] 9 February 2006 answering complaints connected with the 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 wilful killing and inhuman treatment, which covered around 20 people, did not appear to meet the "gravity" threshold for an investigation.

Development of the ICC

The movement for the creation of an international court to deal with the problem of crimes committed against humanity gained force after the Nuremburg Trials, established to deal with the genocide and crimes against humanity committed by the Nazis in World War Two. The trials demonstrated that the existing international legal structure did not have a standing body with the means or jurisdiction to prosecute such crimes.

The establishment of the court was first proposed in 1949 by the International Law Commission at the request of the UN General Assembly. The work which led to the International Law Commission was begun in Resolution of the Assembly of the League of Nations of 22 September 1924.

The problem with existing international law was highlighted again after the 1961 trial in Jerusalem of Adolf Eichmann, a Nazi war criminal kidnapped by the Mossad from Argentina.

The development of the ICC followed the creation of 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). Subsequently, there arose a desire to establish a permanent tribunal in order to avoid repeated use of ad hoc tribunals.

The U.N. General Assembly called the "United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court" in Italy, where the Rome Statute of the International Criminal Court was adopted on July 17, 1998. Almost all states participating voted in favor of the statute; the United States joined Israel, People's Republic of China, Iraq, Qatar, Libya and Yemen in voting against it. Israel reversed its decision and signed the statute just before the conference closed, but later reversed again and nullified its signature. Initially, the United States under Bill Clinton signed the treaty but never submitted it for ratification. When George W. Bush took office in 2001, he nullified the signature amid bipartisan consensus on the matter.

The Rome Statute became a binding treaty at the moment 60 states had ratified it, an event ceremonialized at the United Nations Headquarters on 11 April 2002. Ten countries (Bosnia-Herzegovina, Bulgaria, Cambodia, Democratic Republic of Congo, Ireland, Jordan, Mongolia, Niger, Romania and Slovakia) 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. As of October 2005, 100 States are Parties to the Statute. The ICC legally came into existence on 1 July 2002 and can only prosecute crimes that occurred after this date.

The official seat of the ICC is in The Hague (Netherlands); but the Rome Statute permits the court to engage in proceedings anywhere. The ICC became operational when the signatory nations met in the Assembly of State Parties to appoint a prosecutor and 18 judges. The ICC opened on March 11, 2003. The Judge-President is Philippe Kirsch from Canada, and the Vice-Presidents are Akua Kuenyenia from Ghana and Elizabeth Odio Benito from Costa Rica. Its Chief Prosecutor is Luis Moreno Ocampo of Argentina.

Structure and powers

The International Criminal Court is composed of the Court itself, divided into a number of chambers (Pre-Trial, Trial and Appellate), the Registry, the Office of the Prosecutor and the Assembly of State Parties.

The initial impetus for its establishment came from within the United Nations. Although it is legally a separate entity established by a separate treaty between states, and not by the Security Council acting under the United Nations Charter, the UN has a clearly defined role towards the court. The court's relationship with the United Nations is governed by a Relationship Agreement between the Court and the United Nations, which mainly provides for Security Council referrals under the Rome Statute, and for United Nations assistance in payment for any prosecutions made under such a referral.

Countries ratifying the treaty that created the ICC grant it authority to try their citizens for war crimes, crimes against humanity and genocide. It provides for ICC jurisdiction over-state party or on the territory of a non-state party where that non-state party has entered into an agreement with the court providing for it to have such jurisdiction in a particular case (consent).

Many states wanted to add "aggression," "terrorism" and drug trafficking to the list of crimes covered by the Rome Statute; however other states opposed this, on the grounds that these crimes were difficult to define, and that dealing with less serious crimes such as terrorism and drug trafficking would distract from the seriousness of the crimes the ICC was established to deal with. As a compromise, the treaty merely brands "aggression" as a crime without providing a definition, pending adoption of an amendment to the Statute. It may also be amended to include other crimes. However, no amendments can be made to the Rome Statute until seven years after the Statute became legally binding.

Victim participation

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."Rome Statute [Article 43(6)] Additionally, Article 68 sets forth procedures that specifically deal with "Protection of the victims and witnesses and their participation in the proceedings."Rome Statute [Article 68] Furthermore, Article 79 establishes a Victims Trust FundRome Statute [Article 79], which will make reparations payments in accordance with Article 75.Rome Statute [Article 75] See also: [Trust Fund for Victims] on the ICC website, [Victims and Witnesses Issues] on the ICC website, and [Victims Trust Fund] on the CICC (NGO) website. Currently, there is an issue in the Thomas Lubanga case regarding whether victims may participate in the investigation stage or must wait until the trial stage.ICC Office of the Prosecutor [Prosecution's Observations on the Applications for Participation of Applicants a/0001/06 to a/0003/06], June 6, 2006.

How cases reach the ICC

Cases may be referred to the ICC by one of four methods:

  1. A country member of the Assembly of States Parties (ratified the Court's Statute) sends the case;
  2. A country that has chosen to accept the ICC's jurisdiction sends the case;
  3. The Security Council sends the case (subject to veto from the permanent five members); or
  4. The three-judge panel authorizes a case initiated by the ICC Prosecutor.
Even though the Court has jurisdiction over the crime of international aggression, it will not exercise such jurisdiction until the crime has been further defined. The statute that established the ICC mandates that the state parties attempt to define aggression in 2009.

List of states party to the treaty

World map of ICC member states
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World map of ICC member states

As of October 2005, the following 100 countries have ratified or acceded to the ICC Statute:

In addition to the above states, there are 39 other states which have signed but not ratified the treaty. Under customary international law a state that has signed but not ratified a treaty is obliged to refrain from acts which would defeat the object and purpose of the treaty. Therefore the USA and Israel have "unsigned" the Rome treaty.

Opposition to the ICC

The creation and existence of the court has been controversial with a number of states. The largest disagreement continues to surround the source and nature of the court's jurisdiction.

Some countries object to the court, saying that there is very little legal supervision of the court's apparatus, and that the court's verdicts may become subject to political motives. They argue that the court's mandate was already excessively wide (and would be even more so if the crime of aggression was defined in its Statute), meaning the court could (perhaps unwillingly) become a tool for barratry and pointless legal hassle. Although supporters say that the checks and balances in the ICC made this an unlikely possibility, opponents argue that giving even a temporary member of the Security Council the power to veto any objections of prosecutorial bias gave the ICC no accountability whatsoever.

Supporters would counter that the ICC's definitions are very similar to those of the Nuremberg trials. They also argue that the states which object to the ICC are those which regularly carry out genocide, war crimes and crimes against humanity in order to protect or promote their political or economic interests.

U.S. objections

The United States has not ratified the treaty creating the court, and has stated it does not intend to do so. The country's main objections are the interference with their national sovereignty and a fear of politically motivated prosecutions.

In addition to the interference with national sovereignty, the U.S. duly feels that the Rome Statute circumvents the provisions in the UN charter for criminal courts and tribunals and, in doing so, robs the U.N. of some influence in a matter the U.N. was created to oversee.

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, or so-called "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. The United States has cut aid and development funding for many countries cooperating with the ICC. Countries who have lost aid include Brazil, Costa Rica, Peru, Venezuela, Ecuador, South Africa, and several other Latin American and African countries.

United Nations Security Council Resolutions
In July 2002, the United States threatened to use its Security Council veto to block renewal of the mandates of several United Nations peacekeeping operations, unless the Security Council agreed to permanently exempt U.S. nationals from the Court's jurisdiction.

Initially, the U.S. had sought to prevent personnel on UN missions being tried by any country except that of their nationality. When the other members of the Security Council rejected that approach, the United States then sought to make use of a provision of the Rome Statute, which permits the Security Council to request the ICC not to exercise its jurisdiction over a certain matter for up to one year at a time. The United States sought the Security Council to convey such a request to the ICC concerning personnel on United Nations peacekeeping and enforcement operations, and to have that request renewed automatically each year. (If it was renewed automatically each year, then another Security Council resolution would be required to cease the request, which the U.S. could then veto—which would effectively make the request permanent.) Court supporters argued that the Rome Statute requires that for the request to be valid it must be voted upon anew each year in the Security Council, and hence that an automatically renewing request would violate the Statute.

Other members of the Security Council opposed this United States request also. However, they were increasingly concerned about the future of peacekeeping operations. The United Kingdom eventually negotiated a compromise, whereby the U.S. would be granted its request, but only for a period of one year, and a new Security Council vote would be required in July each year for the exclusion of peacekeepers from ICC jurisdiction to be continued. All members of the Security Council endorsed this resolution, although many did so reluctantly. The result was UN Security Council Resolution 1422.

NGO supporters of the Court, along with several countries not on the Security Council (including Canada and New Zealand), protested the legality of the resolution. The resolution was made under Chapter VII of the UN Charter, which requires a "threat to international peace or security" for the Security Council to act; ICC supporters have argued that a U.S. threat to veto peacekeeping operations does not constitute a threat to international peace or security.

A resolution to exempt citizens of the U.S. from jurisdiction of the court was renewed in 2003 by Resolution 1487, but after the abuse of prisoners in Abu Ghraib, Iraq it became clear that there was no majority for it, the U.S. withdrew its second proposed renewal of the resolution.

Israeli objections

Israel initially objected to the Rome Statute because of the clause defining "the war crime of the transfer of parts of the civilian population of an occupying power into occupied territory", which it feared implied that settlement activity in the occupied territories is a "war crime" and "grave offense". [link] Israel fears prosecution of Israeli settlers, or Israeli government officials who support the policy of settlements, as "war crimes". It did eventually sign the treaty establishing the court despite its misgivings, but on 28 August 2002 submitted a letter to the United Nations declaring that it did not intend to ratify the treaty, using the same wording as the US declaration of 6 May 2002.[link]

Chinese objections

The People's Republic of China has expressed opposition even to other states' involvement in creating the court, claiming that the Statute is an attempt to interfere with the domestic affairs of sovereign states. It has not signed the treaty.

Zimbabwean objections

The press spokesman for Zimbabwean president Robert Mugabe has dismissed calls by Australia and New Zealand and international human rights organizations for the UN Security Council to indict Mugabe for trial before the ICC for crimes against humanity. Press secretary George Charamba told the local newspaper The Sunday Mirror in January 2006 that the call for Mugabe's indictment was "spurious" and "an attempt to tarnish the image of the president and the country." Charamba went on to say that Zimbabwe is not a signatory to the statute that created the ICC and is therefore not legally bound by its dictates. As a non-signatory state, an ICC trial would require either a UN Security Council indictment or that Zimbabwe accept the ICC’s jurisdiction.

Other objections to the Statute

Some have argued that the crimes the ICC has jurisdiction over are recognized under international law as crimes of universal jurisdiction, meaning that any state may try individuals who commit these crimes, even if they are committed by foreign nationals on foreign territory. From this perspective, the state parties could therefore have authorized the ICC to exercise this universal jurisdiction on their behalf. However, the concept of universal jurisdiction itself is controversial, not all the crimes for which the Rome Statute provides the court with jurisdiction have been proposed as being subject to universal jurisdiction at the present time under customary international law, and some have argued that even where universal jurisdiction exists it is non-delegable.see Madeline Morris, [High crimes and misconceptions: the ICC and non-party states, Law and Contemporary Problems], Winter 2001 vol. 64 no. 1 p. 13ff.

In popular culture

See also

References

External links

UN

Article

  • 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

  • [Don't Fear the International Criminal Court] from Foreign Policy
  • 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.

Other


> >
International criminal law
Sources of law:
Charter of the IMT - Crime against international law - Crime against humanity - Crime against peace
Crime of apartheid - Crime of genocide - Customary law - Laws of war - Nuremberg Principles
Peremptory norm - Statute of the ICC - Universal jurisdiction - War crime - War of aggression
Courts:
War responsibility trials in Finland - International Military Tribunal for Europe
International Military Tribunal for the Far East - Khabarovsk War Crime Trials
Tribunal for the former Yugoslavia - Tribunal for Rwanda - Tribunal for Sierra Leone
International Criminal Court
History:
List of war crimes

 

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