International Criminal Court

CITY UNIVERSITY, LONDON Shahzad Hafeez MA Media and Human Rights

Detailed introduction and structure of ‘International Criminal Court’

24, May 2009

The International Criminal Court (ICC) is an independent and permanent court established on 17 July 1998. This court trial those persons who are accused of the most serious crimes of international Concern like genocide, crimes against humanity and war crimes. The ICC is based on a treaty, joined by 105 countries. However, a number of states including China, India and the United States, are not the State Parties to the ICC Rome Statute. Text of the Rome (Italy) Statute circulated as document A/CONF.183/9 of 17 July 1998 and corrected by process-verb aux of Nov 1998, July 1999, Nov 1999, May 2000, Jan 2001 and Jan 2002. The Statute entered into force on 1 July 2002, it has 128 articles. International Criminal Court officially based in Hague, Netherlands .It has four main bodies Presidency, the Judicial Divisions, the Office of the Prosecutor and the Registry. These bodies work with other semi-autonomous offices such as the Office of the Public Counsel for Defense and the office of Public Counsel for victims etc. The ICC is an independent international organization. In accordance with article 2 of the Rome Statute, the relationship with the United Nations system is govern by an “agreement” that has been approved by the Assembly of States Parties during its first Session held in New York from 3 to 10 September 2002.Under the Rome Statute article (5), ICC limited only to most serious crimes like the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Court framed in four organs Presidency, Judicial Divisions, the Office of the Prosecutor and Registry. The judicial functions of the Court are carried out in each Appeal, Trial and Pre-Trial Chambers. Since its inception the ICC has opened investigations on the cases e.g. situation in Democratic Republic of the Congo, situation in Uganda, situation in Central African Republic and situation in Darfur, Sudan. International Criminal court’s official head office is in Hague, Netherlands, but according to “Article 3” proceedings may take place anywhere in the world. Officially 18th judges chair the ICC. Currently (on 9 October 2007) court has 485 members of staff from 80 states. According to Article 50 of Rome Statue “ICC has official languages Arabic, Chinese, English, French, Russian and Spanish but the working languages of the Court shall be English and French. The Rules of Procedure and Evidence shall determine the cases in which other official languages may be used as working languages, but Court shall authorize a language other than English or French to be used by request of a party or

State”,Some time International Criminal Court named as “World Court” and people jumble it with International Court of Justice, both dealing with international matters-but originally functioning in different perspectives. Meanwhile, after UN approval, Rome Statue of International Criminal Court was opened (accordance to its article 125) for signature by all States in Rome at the Headquarters of the Food and Agriculture Organization of the United Nations on 17 July 1998. Thereafter, in Ministry of Foreign Affairs of Italy until 17 October 1998 and later on Statute was opened for signature in New York, at United Nations Headquarters, till 31 December 2000.One hundred fifteen states singed, 29 African, 13 Asian, 16 Eastern European, 22 Latin American and Caribbean, and 25 Western European States were signed on it up to 17 October 2007.”US was the first country who unsigned the Rome Statue on May 6, 2002 after approximately one and half year membership (signed December 31, 2000)”. Israel did the same on 28 August 2002.

Although the idea to establish a permanent international criminal court can be traced back to nineteenth century. But this idea become more stronger when “twentieth century come with Holocaust, genocide in Rwanda, Bosnia, and Iraq, with the depredation of Saddam Hussein, Idi Amin, Slobodan Milosevic, Pol Pot and host of other despots and murderers-too many lives been lost, many family broken, too many hopes and dreams snuffed out by this inhumanity”. So, “In 1948 the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. Article 1 of that Convention characterises genocide as "a crime under international law", and Article 6 provides that persons charged with genocide "shall be tried by a competent tribunal of the State in the territory of which the act was committed or by such international penal tribunal as may have jurisdiction” In Brief, after creation (1948) of the Nuremberg and Tokyo tribunals since world war two (1939-1947) serious discussions started about creation of permanent International Criminal Court.

In December 1989, in response to a request by “Trinidad” and “Tobago”, UN General Assembly, in its resolution 44/39 of 4 December 1989, had requested the international Law Commission to address the question of establishing an international criminal court; in resolutions 45/41 of 28 November 1990 and 46/54 of 9 December 1991, invited the Commission to consider further and analyze the issues concerning the question of an international criminal jurisdiction, including the question of establishing an international criminal court; and in resolutions 47/33 of 25 November 1992 and 48/31 of 9 December 1993, requested the Commission to elaborate the draft statute for such a court as a matter of priority.” Later on, “on July, 17 1998, representatives of governments and nongovernmental organizations will conclude a five-week international conference in Rome aimed at producing a treaty establishing the ICC. Court will be empowered to prosecute persons charged with "the most serious crimes of concern to the international community, "including war crimes, crimes against humanity, and genocide. So, with 116 articles and 200 wording options to be debated by more than 100 countries and organizations, the Rome conference will likely sew together a legal monstrosity”. At the end of five weeks of intense negotiations, 120 nations voted in favor of the adoption of the Rome Statute of the ICC, with seven nations voting against the treaty (Iraq, Israel, Libya, China, Qatar, the United States, and Yemen.) and 21 states abstaining. No doubt, US played a major role in laying the groundwork for ICC. But later, United States pursue a policy of “Three Noes” under the technical reasons- they cast vote against the Rome Statue and “on July 23, 1998, US Ambassador David Scheffer described a list of statute abjections statement before the Senate Foreign Relations Committee meeting”. Afterward, ICC first bench of 18 judges was elected in February 2003. The Netherlands’s government in Hague on 11 March 2003 hosted the judge’s oath ceremony. Interrelating

this,

“The

United

Nations

Diplomatic

Conference

of

Plenipotentiaries on the establishment of an International Criminal Court, by resolution F of the Final Act of the Conference, established the Preparatory Commission for the International Criminal Court with the mandate to prepare proposals for practical arrangements for the establishment and coming into operation of the ICC, including the draft texts of: Rules of Procedure and Evidence; Elements of Crimes; A relationship

agreement between the Court and the United Nations; Basic principles governing a headquarters agreement to be negotiated between the Court and the host country; Financial regulations and rules ;An agreement on the privileges and immunities of the Court; A budget for the first financial year; The rules of procedure of the Assembly of States Parties. For the Rules of Procedure and Evidence and the Elements of Crimes, resolution F stipulated that the draft texts should be finalized before 30 June 2000.Resolution F stipulated that the Secretary-General of the United Nations should convene the Preparatory Commission as early as possible at a date to be decided by the General Assembly of the United Nations. Pursuant to General Assembly resolutions 53/105 of 8 December 1998, 54/105 of 9 December 1999, 55/155 of 12 December 2000 and 56/85 of 12 December 2001, the Commission, which was open to representatives of States which had signed the Final Act and other States which had been invited to participate in the conference, held 10 sessions at the Headquarters of the United Nations. International criminal court structure mainly based on four organs Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry. Firstly, According to Rome Statute article 38 “The President and the First and Second Vice-Presidents shall be elected by an absolute majority of the judges. They shall each serve for a term of three years or until the end of their respective terms of office as judges, whichever expires earlier. They shall be eligible for re-election once”. Following this article, 18 judges of the Court elected Judge Philippe Kirsch (Canada) the Presidency at 11 March 2006 for six-year period. Same as, they elected Judge Mrs. Akua Kuenyehia (Ghana) and Judge René Blattmann (Bolivia) the first and second Vice-Presidents respectively. A President is responsible for the overall administration of the Court, with the exception of the Office of the Prosecutor, and for specific functions assigned to the Presidency in accordance with the Statute. Like wise, in second organ “Judicial Divisions”, ICC Judges elected under the resolution(ICC-ASP/3/Res.6).The Assembly of States Parties elected the “18th Judges” (February 2003) , for three, six, and nine years terms. “But presently on 1 October, 2007, there are only fifteen active judges working in the court because three judges have

resigned (Judge Maureen Harding Clark (Ireland) resigned on 10 December 2006, Judge Karl T. Hudson-Phillips (Trinidad and Tobago) resigned 30 September 2007 and Judge Claude Jorda (France) resigned on 12 August 2007). Seven of the fifteen judges are female. These judges belong from different regions, 5 from Western European and other states, 3 from African states, 3 from Latin American and Caribbean states, 2 from Asian states and 2 belong to Eastern European states”. These judges are organized into three divisions, the Pre-Trial Division, Trial Division and Appeals Division. In detail,Pre-Trial Division work under assigned the six judges headed by First VicePresident of the ICC ,“This division has three Pre-Trial Chambers currently constituted, which consist of three judges each (although a single judge can be designated to perform Certain Functions ). Each situation (Congo, Uganda and Sudan)” Pre-Trial chambers have authority an investigation of Article15 crimes; the Chamber has powers in determining issues of admissibility and jurisdiction (Articles 18 and 19). Powers of the Pre-Trial Chamber can be found throughout the Statute, notably under Article 56, which allows the Chamber to order measures to ensure the efficiency and integrity of the proceedings and protect the rights of the Defence. Likewise, five judges assigned to the Trial Division under head the Second Vice-President of the ICC, Three judges of the Division carry out the judicial functions of the Trial Chamber (Article 39 (2)(b)(ii), this Chamber responsible for the conduct of subsequent proceedings under (Article 61(11). Trial Chamber hearing that case (Article 39(4). Financial penalties can be imposed (Article 77). The Trial Chamber can also order a convicted person to pay money for compensation, restitution or rehabilitation for victims (Article 75 (2).Trial Division hearing the Case of The Prosecutor v Thomas Lubanga Dyilo. Third part of the Judicial Divisions is Appeal Division worked under five judges under the supervision of the President of the ICC, According to Rome Statue article 39(2)(b)(i) “The Appeals Chamber shall be composed of all the judges of the Appeals Division” The Appeals Division is composed of judges primarily elected from Judges “List B”, with established competence in relevant areas of international law, such as international humanitarian law and the law of human rights. The Prosecutor or the

convicted person can appeal against the decisions of the Pre-Trial and of the Trial Chambers to the Appeals Chamber. Third organ of the ICC “The Office of the Prosecutor” works under Rome Statute of ICC Article 34 .The Office is responsible for conducting investigations and prosecutions, when a situation is referred to him by a state party or United Nations Security Council and when the Pre-Trial Chamber authorizes him to open an investigation on the basis of information received from other sources, such as individuals or non-governmental organizations. “The Office is headed by the Prosecutor, Luis Moreno Ocampo (Argentina), who was elected by the States Parties for a term of nine years. The Prosecutor is assisted by two Deputy Prosecutors, Serge Brammertz (Belgium) with responsibility for investigations and Fatou Bensouda (The Gambia) with responsibility for prosecutions.” Last organ “The Registry” has responsibility for non-judicial aspects of the administration and servicing of the court (article 43(1) of the Rome Statute. The communication functions of the court have a significant impact on all organs of the court, consequently it is appropriate that communications functions be dealt with in the context of the general administration of the court and, hence, within the draft Regulations of the Registry”. Registry is responsible for the administration of legal aid matters, court management, victims and witness’s matters, defense counsel, detention unit, and the traditional services provided by administrations in international organizations, such as finance, translation, building management, procurement and personnel. “Registry would be the principal administrative organ of the court”. Registry help to handle the administrative duties of the court and will appoint a competent staff to help fulfil these duties.”. In consciousness, Rome Statute of the ICC mentioned different rights of accused persons in many articles, like all prisoners are assumed innocent until proven guilty beyond.Article (66)(1) described that “everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law”. Article (64)(2) says, “The

Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused” like wise article 67 explain the all “Rights of the accused”. On the other hand, International criminal court has jurisdiction hear and

decide about

four groups of crimes genocide, Crimes against Humanity, war crime, and the crime of aggression under the Article 5 of the Rome Statute. December, 1948 declarations, United Nation Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) define the genocide in article (2) “In the present Convention, genocide means any of the acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 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”. Similarly Rome Statue Article 7 defines the crime against humanity, primarily“crime against humanity" means any of the coming acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: of Murder; Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; Torture; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; Persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, and Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”. International Criminal Court also have right to hear the cases on “war crime” which define in Rome Statute Article 8 “ ‘war crimes’ means: any of the mentioned acts against persons or property protected under the provisions of the relevant Geneva Convention: Wilful killing; Torture or inhuman treatment, including biological experiments; Wilfully causing great suffering, or serious injury to body or health; Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully

and wantonly; Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power ;Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; Unlawful deportation or transfer or unlawful confinement , taking of hostages”. Likewise, “Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations”. However, “Up to 4 October 2007 overall ICC received 2,889 communications since start on up mentioned crimes. The vast majority of these were dismissed as manifestly outside the jurisdiction of the Court”. The communications include reports on alleged crimes in 139 countries in all regions of the world. In addition currently, “The Office of the Prosecutor has received over 240 communications concerning the situation in Iraq. These communications express the concern of numerous citizens and organizations regarding the launching of military operations and the resulting human loss. ICC responded on this communications-“the Court's jurisdiction in Iraq was limited to the actions of nationals of states parties, and that he did not have authority to consider complaints about the legality of the Iraq invasion” However, ICC investigate and prosecute the Northern Uganda, Democratic Republic of the Cango (DRC), Central African Republic (CAR) and Darfur, Sudan until 18 October 2007.In December 2003 the Uganda President Yoweri Museveni took the decision to refer the situation concerning the Lord’s Resistance Army (LRA) to the Prosecutor of the International Criminal Court. ICC opened the investigation on July 2004.Later on, 13 October 2005, Pre-Trial Chamber II unsealed the warrants of arrest for five senior leaders of LRA. Same as, President of the Democratic Republic of Congo (DRC) referring to him 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, in Kinshasa, Mr Thomas Lubanga Dyilo, a Congolese national and alleged founder and leader of the Union des Patriotes Congolais (UPC) was arrested and transferred to the International Criminal Court. He was first person to be arrested under a warrant issued by the court under crimes against humanity, Like wise Central African Republic has problem with rebel forces. With reference this, On 22 December 2004, the ICC Office of the Prosecutor received a referral from the Government of the Central African Republic. After examining it “The International Criminal Court 's prosecutor launched an investigation (on 22 May 2007) into complaints of rape, sexual cruelty and other abuses committed in the Central African Republic, notably in 2002 and 2003, a period of intense fighting between government and rebel forces” In Darfur, Sudan,“under the Chapter VII of the United Nations Charter, the Security Council decided on 31/03/2005 to refer the situation prevailing in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court. Adopting resolution 1593 (2005) by a vote of 11 in favour, none against with 4 abstentions (Algeria, Brazil, China, United States), the Council decided also that the Government of the Sudan and all other parties to the conflict in Darfur would cooperate fully with the Court and Prosecutor, providing them with any necessary assistance”. It is estimated that over 200,000 people have been killed during southern rebels an attack against a government garrison and 2.5 million driven from their homes since the conflict began in 2003. In all mentioned prosecutes or cases, the convicted person, or the Prosecutor on that person's behalf, may make an appeal under the Rome Statue Article 50(a)(b) against the ICC decision, on any of the following grounds “Procedural error, error of fact, or error of law”.

For war crime suspects International Criminal court need to build detainee’s prisoner’s cells. On 28 Feb, 2006, the officials of ICC announced “International Criminal Court have 12 cells in Scheveningen (Hague, Netherlands), these Cells are ready to receive war crimes suspects”, suspects will share facilities like fitness room in these cells. The court has its own director of prisons. Earlier,“On 13 October 2005, Pre-Trial Chamber II unsealed the warrants of arrest for five (Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen and Raska Lukwiya) senior leaders of the Lord’s Resistance Army (LRA) for Crimes against Humanity and War Crimes committed in Uganda since July 2002.The warrants of arrest were issued under seal by Pre-Trial Chamber II on 8 July 2005” Although, ICC work as an independent institution but Court need much funds to compete

with its offices, Proceedings, Management and administration expenses.

However, ICC budget is to be determined by the state parties (through the Assembly of States Parties) and will be financed by these. Additionally, contributions can be received from UN funds and from voluntary governments, international organisations and individuals, according to certain prescribed criteria. The ICC will not be cheap; it is likely to cost as much as a hundred million dollars annually. Funding is always a problem for international institutions. Consequently, one can imagine a situation where unsatisfied states withhold their dues in order to force national objectives on the ICC. However, “according to the ICC financial regulation 3.1 and financial rule 103.2, the proposed programme budget for 2007 was submitted in September by the Registrar of the ICC, to the Assembly of States Parties (ASP). The ASP will decide upon the budget submission, for a total of €93.46 million, during their next session, scheduled to take place in December 2007. Court envisions increasing the budget by more than €500,000 in this year. It is envisaged that a standard hearing will involve 43 persons in the Courtroom alone, at a cost of €3,900,000 per year” On 1 December 2006, ICC assembly approved a budget totaling €88,871,800 and a staffing level of 647 for 2007. It also decided that the Court shall adopt the scale of assessments for the apportionment of expenses of the United Nations applicable for 2007.

After analysis of relevant resources, pre going discussion summarizes that International Criminal Court was a historic development in efforts to hold accountable perpetrators of the most serious international crimes e.g. war crimes, crimes against humanity and genocide. Moreover, since creation, ICC successfully trying to enforce individual criminal liability without distinction, whether the accused is a head of state, a representative of parliament or a military commander (Article 25 and 28). Official capacity is not grounds for reducing the sentence (Article 7). A military commander is criminally liable for the crimes committed by forces under his or her command or control (Article 28). Criminal responsibility also applies when the military commander knew or should have known that his or her forces were committing or about to commit such crimes and failed to take all necessary measures to prevent or repress their commission (Article 28). The fact that a crime was committed by a person under the orders of a superior generally does not relieve that person of criminal responsibility. In addition, the ICC judicial system characterized by political independence, impartiality, equality between the accused and the victims, and the principle of complementarity, which strengthens national judicial systems and represents a legal symbol of peacebuilding for the international community. However, the ICC’s jurisdiction is not limited geographically or temporally, Investigation of cases must respect the needs, interests and circumstances of the victims and the rights of the accused. Like wise, the adoption of the Rome Statute on the International Criminal Court provides an inspirational start for the new century. The Statute is built upon a base of shared values - values that reflect the collective desire of the international community to no longer tolerate impunity for serious violations of human rights and international humanitarian law. Although, International Criminal Court playing a vital role to control world crimes such as crime of genocide, Crimes against humanity, War crimes and The crime of aggression but it still need more help and sport from international bodies and states for achieving its primary goals .