International Criminal Court


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Background

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The International Criminal Court (French: Cour Penal Internationale; commonly referred to as the ICC) is an independent, permanent tribunal based in the Hague, Netherlands. The ICC tries individuals accused of the most serious international crimes, such as crimes against humanity, genocide, and war crimes. The Court was founded on July 1, 2002 by the Rome Statute of the ICC which was ratified by 60 countries[1]. The ICC can only prosecute crimes committed after that date.

History

The concept of establishing an international tribunal to prosecute war crimes first developed at the Paris Peace Conference in 1919 by the Commission of Responsibilities. The concept was not brought to fruition at that time, however, but the topic was discussed again later by the League of Nations in Geneva at a conference in November of 1937. The first tangible step towards creating the tribunal came in 1948 following the Nuremburg and Tokyo Tribunals: the General Assembly recognized a strong need for a permanent international tribunal to address the war crimes like those committed in World War II, and thus requested the International Law Commission to draft two statues by the early 1950s. These statues, however, were not put into effect because the Cold War made the creation of an international criminal tribunal unrealistic.

Certain international lawyers and academics continued to argue for the creation and necessity of such an international tribunal. Benjamin B. Ferencz, the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial at Nuremburg, was a particularly vocal advocate of the cause, and wrote extensively about the establishment of the ICC, particularly in his first book, published in 1975, entitled Defining International Aggression- The Search for World Peace." Momentum began to build again in the world political scene for the creation of the court in 1989, when A.N.R Robinson, the Prime Minister of Trinidad and Tobago, suggested the creation of a permanent international court to handle illegal drug trade cases. Countries began drafting the courts statue, and the establishment of the ad hoc tribunals for war crimes in Rwanda and the former Yugoslavia further emphasized the necessity of establishing a permanent international criminal court.

After several years of negotiations, the General Assembly called the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome in June of 1998 to finalize a treaty. The Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining on the 17th of July, 1998. The Rome Statute became a binding treaty on April 11, 2002, when the ratification count reached 60, and the Statute legally came into force on July 1, 2002. The ICC can only prosecute crimes committed after this date. The first bench of 18 judges was elected by the Assembly of State Parties in February 2003, and was sworn in at the inaugural session of the Court on March 1, 2003. The Court issued its first arrest warrants on July 8th, 2005, and held its first pre-trial hearings in 2006. [2]

Composition of the Court

The Assembly of State Parties

The Assembly of State Parties, which acts as the court's management and legislative body, is comprised of one representative from each of the 124 state parties that have signed the Rome Statute. The Assembly's responsibilities include electing the judges and prosecutors, approving the court's budget, providing management oversight to the other bodies of the court, and adopting important texts. Article 46 of The Rome Statute also permits the Assembly to remove a judge or prosecutor from office if they are "found to have committed serious misconduct or a serious breach of his or her duties," or "is unable to exercise the functions required by the Statute." The Assembly is chaired by the President and two Vice Presidents-ICC judges elected to the position for their fellow judges for a term of three years.

The Assembly meets in full session once a year in either the Hague or New York, but may also hold special sessions where circumstances require. Non-governmental and observer states are permitted to attend these sessions.

The state parties cannot interfere with the judicial functions of the court. Challenges about individual cases are settled by the Judicial Divisions.

The Presidency

The Presidency is accountable for specific functions assigned to the Presidency in accordance with the Rome Statute, and the general administration of the Court, with the exception of the Office of the Prosecutor. The Presidency is comprised of three judges of the Court who are elected to the Presidency by their fellow judges for three year terms, with a maximum of two terms served. Currently, the President of the Court is Judge Silvia Fernández de Gurmendi (Argentina) elected on March 11, 2015 [3]. Judge Joyce Aluoch (Kenya) is First Vice-President [4], and Judge Kuniko Ozaki (Japan) is Second Vice-President. [5].

Judicial Division

The Judicial Division is comprised of the 18 judges of the court, organized into three divisions: The Pre-Trial Division, Trial Division, and the Appeals Division [6] . The judges appointed to each division are responsible for conducting the proceedings of the Court at the different stages. Assignment of the judges to each division is made on the basis of the functions each Division performs and the experience and qualifications of each judge, with an eye toward ensuring that each division maintains a proper combination of expertise in international, procedural, and criminal law.

The 18 judges are elected to the ICC by the Assembly of State Parties to serve nine year teams without eligibility for re-election. All judges must be nationals of states signed to the Rome Statute, and no two judges maybe be nationals of the same state. According to the stipulations of the Rome Statute, the judges 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."

The Prosecutor or any person being investigated or prosecuted by the ICC may request banning a judge from "any case in which his or her impartiality might reasonably be doubted on any ground." A judge can only be banned if the other judges unanimously vote to ban him/her. Judges may also be permanently removed from office for serious misconduct, by a two-thirds majority vote of the other judges and a two-thirds majority vote of the members of the Assembly of State Parties.

The current judges of the court are: Silvia Fernandez de Gurmendi (Argentina), Joyce Aluoch (Kenya), Kuniko Ozaki (Japan), Sanji Monageng (Botswana), Christine Van den Wyngaert (Belgium), Howard Morrison (United Kingdom of Great Britain and Northern Ireland), Olga Herrera-Carbuccia (Dominican Republic), Robert Fremr (Czech Republic), Chile Eboe-Osuji (Nigeria), Geoffrey Henderson (Trinidad and Tobago), Marc Perrin de Brichambaut (France), Piotr Hofmański (Poland), Antoine Kesia-Mbe Mindua (Democratic Republic of the Congo), Bertram Schmitt (Germany), Péter Kovács (Hungary), Chang-ho Chung (Republic of Korea), Raul Cano Pangalangan (Philippines).

The Office of the Prosecutor

The Office of the Prosecutor is responsible for receiving referrals for crimes committed within the jurisdiction of the ICC, as well as for investigations and prosecutions. The office is headed by the Prosecutor, who is assisted by two deputy prosecutors. The Prosecutor is elected by the Assembly of State Parties for a term of nine years. The current Prosecutor Fatou Bensouda from The Gambia. She is assisted by Deputy Prosecutor Mr James Stewart from Canada who is in charge of the Prosecution Division of the Office of the Prosecutor [7].

As dictated by the Rome Statute, the Office of the Prosecutor must operate independently. The Office of the Prosecutor thus cannot seek advice from or act on instructions from external sources such as states, non-governmental organizations, international organizations, or individuals.

The Prosecutor may open an investigation under three circumstances:

  • When a situation is referred to him by a state party;
  • When a situation is referred to him by the United Nations Security Council, in response to a threat to international peace and security; or
  • When the Pre-Trial Chamber sanctions him to open an investigation on the basis of information received from other sources, such as NGOs or individuals.

Any person being investigated or prosecuted by the ICC may request the disqualification of a prosecutor if he/she doubts the prosecutor's impartiality. Requests for such a disqualification are ruled upon by the Appeals Division. The Assembly of State Parties also has the right to permanently remove a prosecutor from office for serious misconduct.

The Registry

The Registry is responsible for all of the non-judicial aspects of the administration and servicing of the Court. The Registry is governed by the Registrar, who is elected by the judges to a five year term. The Registry's duties include, "the administration of legal aid matters, court management, victims and witness matters, defense counsel, detention unit, and the traditional services provided by administrations in international organizations, such as finance, translation, building management, procurement and personnel." The current Registrar is Herman von Hebel, who was elected on March 8, 2013 [8].

Other Offices

The Court also includes a number of semi-autonomous offices which fall under the Registry for administrative purposes but otherwise function as independent offices. These offices include the Office of Public Council for Victims and the Office of the Public Counsel for Defense, as well as a Trust Fund, established by the Assembly of State Parties for the benefit of victims of crimes within the jurisdiction of the Court and their families.

  • The Office of Public Counsel for Victims

The Office of the Public Counsel for Victims was established in accordance with regulation 81 of the Regulations of the Court, and seeks to ensure effective involvement of victims in the proceedings before the Court. The Office provides legal support and assistance to victims and their legal representative. In addition, pursuant to regulation 80 in the Regulations of the Court, members of the Office may also be appointed as legal representatives of victims free of charge. The Office was created on September 19, 2005 [9] .

  • The Office of Public Counsel for Defense

The Office of Public Counsel for Defense was created pursuant to Regulation 77 of the Regulations of the Court with a mandate to represent and protect the rights of the Defense. The goal of the Office is to reinforce the equality of arms and to enable a fair trial as outlined in the Rome Statute. The Office represents and protects the rights of the defense during the investigation, provides support and assistance to the Defense Counsel, and acting as ad hoc Counsel if appointed by a Chamber, or as a duty Counsel if selected by a suspect who has not yet secured permanent legal representation. Further, in the event of a dispute between the person entitled to legal assistance and his or her Counsel, the OPCD may be requested to act as a mediator [10] .

  • The Trust Fund for Victims

The Trust Fund for Victims was created by the Rome Statute with a mission "to support programs which address the harm resulting from crimes under the jurisdiction of the ICC by assisting victims to return to a dignified and contributor life within their communities." The TFV works to raise awareness of the situations of victims of genocide, to mobilize resources to help victims rebuild their lives, and implements reparation orders made by the ICC [11].

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Jurisdiction

Crimes

Article 5 of the Rome Statute grants the ICC jurisdiction over four categories of crimes which are described as the "most serious crimes of concern to the international community as a whole"-- the crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. Definitions of each of these crimes are detailed in the Rome Statute, with the exception of aggression; it was stated that the court will not exercise jurisdiction over crimes of aggression until state parties agree on a definition of the crime and the conditions under which it may be prosecuted. In June 2010, the definition of "crimes of aggression," and the ICC's jurisdiction over them was expanded at the ICC's first review conference in Kampala, Uganda. The ICC, however, will not be permitted to prosecute for crimes of aggression until 2017 at the earliest.

The ICC has jurisdiction over individuals accused of any of the aforementioned crimes. This includes persons directly responsible for committing the crimes, as well as others who may be involved in the crime through aiding, abetting, or otherwise assisting in the commission of the crime. This group also includes military commanders and other superiors whose responsibility is defined in the Rome Statute [13].

Territorial Jurisdiction

The ICC does not have universal jurisdiction, and may only exercise jurisdiction over individuals in the following circumstances:

  • The accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court;
  • The crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court; or
  • The United Nations Security Council has referred the situation to The Prosecutor, irrespective of the nationality of the accused or the location of the crime.

Temporal Jurisdiction

The Court's jurisdiction is also limited in regards to the time frame of the crimes committed, as it does not have retroactive jurisdiction over crimes committed before the Rome Statute went into effect on July 1, 2002. Furthermore, if a State joins the ICC after July 1, 2002, the ICC only has jurisdiction after the statute entered into force in that State. Such a State may, however, agree to accept the jurisdiction of the Court for the period before the Statute's entry into force in its country, though not before July 1, 2002.

Complementarity

The ICC was created as a court of last resort, and as such, the Court will not necessarily act on a case even when it has jurisdiction. The principle of "complementarity," as described in the Rome Statute, provides that certain cases will be inadmissible to the Court. Article 17 of the Statute describes 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."

Procedure for filing a case

Cases are brought before the ICC through reports made by state parties or the United Nations Security Council to the Prosecutor. Upon receiving a report of a crime within the jurisdiction of the ICC, the Prosecutor evaluates the report and determines if he will begin an investigation. The Prosecutor is also permitted to start an investigation on his own initiative. In these situations, he receives and evaluates information and reports submitted by a variety of reliable sources. Once the Prosecutor determines that there is reasonable basis to proceed with an investigation, he must request that the Pre-Trial Chamber authorize an investigation.

Once an investigation has been authorized, the Prosecutor's investigation attempts to discover all facts and evidence relevant to assess the criminal responsibility of the accused. In his investigations, the Prosecutor thoroughly investigates both incriminating and exonerating circumstances equally. Each situation under investigation by the Prosecutor is assigned to a Pre-Trial Chamber which is responsible for the judicial aspects of the proceeding. In this manner, if requested by the Prosecutor, the Pre-Trial Chamber may issue a summons to appear or a warrant of arrest once it is established that there are reasonable grounds to believe the accused has committed a crime within the Court's jurisdiction.

Once a wanted person voluntarily appears or has been surrendered to the Court, the Pre-Trial Chamber holds a hearing to confirm the charges that will be the basis of the trial. The case is then assigned to a Trial Chamber of three judges who are responsible for conducting fair and expeditious proceedings with full respect for the rights of the accused. Upon conclusion of the trial, the Trial Chamber issues its decision, either acquitting or convicting the accused. If the accused is convicted, the Trial Chamber issues a sentence from a specified term of up to thirty years or, if applicable by the extreme gravity of the crime and the individual circumstances of the convicted person, for lifet. The Trial Chamber may also order reparations to victims.

Following the decision of the Trial Chamber, the accused or the Prosecutor may appeal the decision, the sentence, or both. Convicted persons, legal representatives of victims, or bona fide owners of adversely-affected property may appeal reparations orders as well. All appeals are ruled upon by the Appeals Chamber of five judges.

Rights of the Accused

All accused by the ICC are presumed innocent until proven guilty beyond a reasonable doubt, as dictated by the Rome Statute. The Statute also establishes certain rights of the accused during investigations. Such rights include the right to be fully informed of the charges against him or her; the right to a lawyer free of charge; the right to a prompt trial; and the right to examine witnesses against him or her and to conduct the defense in person or through counsel.

Rights and Participation of Victims

Victims of crimes under investigation by the ICC have the right to participate in all stages of the proceedings before the Court- during the pre-trial, trial, and appeals stages. Victims may file submissions to the Pre-Trial Chamber when the Prosecutor begins an investigation, and may also file submissions on matters relating to the competence of the Court or the admissibility of cases.

In order to participate in proceedings before the Court, victims must send a written application to the Court Register and to the Victims Participation and Reparation Section. This section then submits the application to the appropriate Chambers which decides on the arrangements for the victim's participation in the proceedings. The application must include evidence proving that the applicant is a victim of the crime in question. The Chamber has the right to reject any application if it determines that the applicant is not a victim. An application may also be made by a person acting with the consent of the victim, or in their name if the victim is a child or if a disability makes it necessary. Victims are allowed to choose their own legal representative who must be equally qualified as counsel representing the defense, and must be fluent in one of the Court's official working languages (French or English). In cases with many victims, the Chamber may ask victims to choose a shared legal representative in order to ensure efficient proceedings. When a victim or group of victims does not have the means to pay for legal representation, they may request financial aid from the Court. The Victim's Participation and Reparation Section is responsible for helping victims organize their legal representation before the Court.

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Current Investigations and Trials of the ICC

Since its creation, the ICC has received complaints of alleged crimes in at least 139 countries. As of March, 2010, the Prosecutor had opened investigations into just five crimes in the nations of the Democratic Republic of the Congo, The Central African Republic, Darfur, Kenya, and Uganda.

The ICC began its first trial, that of Congolese militia leader Thomas Lubanga, on January 26, 2009. The ICC's second trial, that of Congolese militia leaders Germain Katanga and Mathieu Ngudjolo Chui, began on Novermber 24, 2009. [15]

Codes and Tools

The Official Journal of the ICC was created pursuant to regulation 7 of the Regulations of the Court and contains the following texts and amendments thereto:

  • The Rome Statute;
  • The Rules of Procedure and Evidence;
  • The Elements of Crimes;
  • The Regulations of the Court;
  • The Regulations of the Office of the Prosecutor;
  • The Regulations of the Registry;
  • The Code of Professional Conduct for counsel;
  • The Code of Judicial Ethics;
  • The Staff Regulations;
  • The Financial Regulations and Rules;
  • The Agreement on the Privileges and Immunities of the International Criminal Court;
  • Agreement between the International Criminal Court and the United Nations;
  • The Headquarters Agreement with the Host State;
  • Any other material as decided by the Presidency in consultation with the Prosecutor and/or the Registrar.

Resources

ICC website

Notes


See International Law