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The International Criminal Court (ICC) was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression, although it cannot currently exercise its jurisdiction over the crime of aggression. The court can only prosecute crimes committed on or after July 1 2002, the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force.

As of May 2007, 104 states are members of the Court, and a further 41 countries have signed but not ratified the Rome Statute. However, a number of states, including China, India and the United States, are critical of the Court and have not joined.

The Court can generally only exercise jurisdiction in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council. The Court is designed to complement existing national judicial systems: it can only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to exercise jurisdiction over suspected criminals is therefore left to individual states.

The official seat of the ICC is in The Hague, Netherlands, but its proceedings may take place anywhere. The Court is separate from, and should not be confused with, the International Court of Justice (often referred to as the “World Court”), which is the United Nations organ that settles disputes between nations.

"International Criminal Court" is sometimes abbreviated as ICCt to distinguish it from several other organizations abbreviated as ICC. However, the more common abbreviation "ICC" is used in this article.

History

Early development

The movement for the creation of an international court to deal with the problem of crimes committed against humanity gained force after the Nuremberg and Tokyo Trials, established to punish serious crimes committed by the losing sides during World War II. At the request of the United Nations General Assembly, the International Law Commission drafted two draft statutes by the early 1950s, but these were shelved as the Cold War made the establishment of an international criminal court politically unrealistic.

A. N. R. Robinson, then Prime Minister of Trinidad and Tobago, revived the idea during the forty-fourth session of the General Assembly in 1989, proposing the creation of a permanent international court to deal with the international drug trade. While work began on a draft statute, the international community created 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), further highlighting the need for a permanent international criminal court.

Adoption and entry into force of the Rome Statute

Following years of negotiations, the General Assembly convened a conference in Rome, Italy, in June 1998, with the aim of finalising a treaty. On July 17 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were Iraq, Israel, Libya, the People's Republic of China, Qatar, the United States, and Yemen.

The Rome Statute became a binding treaty at the moment 60 states had ratified it, an event ceremonialized at the United Nations Headquarters on April 11, 2002. Ten countries 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. The ICC legally came into existence on July 1, 2002, and can only prosecute crimes committed after that date.

The first bench of 18 judges was elected by an Assembly of State Parties in February 2003. They were sworn in at the inaugural session of the Court on March 11, 2003. The Court issued its first arrest warrants on 8 July 2005, and the first pre-trial hearings were held in 2006.

Membership

As of May 2007, 104 countries have ratified or acceded to the court, including nearly all of Europe and South America, and nearly half of all African countries.

A further 41 states have signed but not ratified the treaty; the law of treaties obliges these states to refrain from “acts which would defeat the object and purpose” of the treaty. In 2002, two of these states, the United States and Israel, "unsigned" the Rome Statute, indicating that they no longer intend to become States Parties and, as such, they have no legal obligations arising from their signature of the statute.

Jurisdiction

Crimes within the jurisdiction of the Court

Article 5 of the Rome Statute grants the Court jurisdiction over four groups of crimes, which it refers to as the “most serious crimes of concern to the international community as a whole”: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The statute defines each of these crimes except for aggression: it provides that the Court will not exercise its jurisdiction over the crime of aggression until such time as the state parties agree on a definition of the crime and set out the conditions under which it may be prosecuted. Article 39 of the United Nations Charter gives the United Nations Security Council jurisdiction for the crime of aggression. "The Rome Statute itself states that provisions of the ICC Statute concerning the crime of aggression “shall be consistent with the relevant provisions of the Charter of the United Nations.”

Many states wanted to add terrorism and drug trafficking to the list of crimes covered by the Rome Statute; however, states were unable to agree a definition for terrorism and it was decided not to include drug trafficking as this might overwhelm the Court's limited resources. India lobbied to have the use of nuclear weapons and other weapons of mass destruction included as war crimes, but this move was also defeated.

Article 123 of the Rome Statute provides that a Review Conference shall be convened in 2009, and that this conference may review the list of crimes contained in Article 5. The final resolution on adoption of the Rome Statute specifically recommended that terrorism and drug trafficking be reconsidered at this conference.

Territorial jurisdiction

During the negotiations that led to the Rome Statute, a large number of states argued that the Court should be allowed to exercise universal jurisdiction. However, this proposal was defeated due in large part to opposition from the United States. A compromise was reached, allowing the Court to exercise jurisdiction only under certain limited circumstances, namely:

1. Where the person accused of committing a crime is a national of a state party (or where the person's state has accepted the jurisdiction of the Court); or
2. Where the alleged crime was committed on the territory of a state party (or where the state on whose territory the crime was committed has accepted the jurisdiction of the Court); or
3. Where a situation is referred to the Court by the UN Security Council.

Temporal jurisdiction

The Court's jurisdiction does not apply retroactively: it can only prosecute crimes committed on or after 1 July 2002 (the date on which the Rome Statute entered into force). Where a state becomes party to the Rome Statute after that date, the Court can exercise jurisdiction automatically with respect to crimes committed after the statute enters into force for that state.

Complementarity

The Court is intended as a court of last resort, investigating and prosecuting only where national courts have failed. Article 17 of the Statute provides 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.’

Structure

The International Criminal Court comprises four organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.

The President of the court is Philippe Kirsch of Canada. The Chief Prosecutor is Luis Moreno-Ocampo of Argentina.

The Judicial Divisions comprise 18 judges organised into three divisions: the Pre-Trial Division, the Trial Division and the Appeals Division.

All judges must be nationals of States Parties to the Rome Statute. They 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”. Each judge is elected by States Parties for a term of up to nine years.

Rights of the accused

The Rome Statute provides that all persons are presumed innocent until proven guilty beyond reasonable doubt, and establishes certain rights of the accused and persons during investigations. These include the right to be fully informed of the charges against him or her; the right to have a lawyer appointed, free of charge; the right to a speedy trial; and the right to examine the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf.

In order to ensure “equality of arms” between defence and prosecution teams, the ICC has established an independent Office of Public Counsel for the Defence (OPCD) to provide logistical support, advice and information to defendants and their counsel. The OPCD also helps to safeguard the rights of the accused during the initial stages of an investigation.

Victim participation and reparations

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." Additionally, Article 68 sets forth procedures that specifically deal with "Protection of the victims and witnesses and their participation in the proceedings." The Court is currently considering, with respect to the Thomas Lubanga case, whether victims may participate in the investigation stage or must wait until the trial stage.

Article 79 establishes a Victims Trust Fund, which will make reparations payments in accordance with Article 75.

Relationship with the United Nations

Unlike the International Court of Justice, the ICC is legally and functionally independent from the United Nations. Nonetheless, the Rome Statute grants the UN a clear role in relation to the Court. The Security Council may refer to the Court cases that would not otherwise fall under the Court's jurisdiction (as it did in relation to the situation in Darfur, which the Court could not otherwise have prosecuted as Sudan is not a state party). Article 16 of the Rome Statute also allows the Security Council to require the Court to defer from investigating a case for a period of 12 months. Such a deferral may be renewed indefinitely by the Security Council.

The Court cooperates with the UN in many different areas, including the exchange of information and logistical support. The Court reports to the UN each year on its activities, and some meetings of the Court's governing body, the Assembly of States Parties, are held at UN facilities. The relationship between the Court and the UN is governed by a “Relationship Agreement between the International Criminal Court and the United Nations”. Bartram S. Brown wrote that in regard to the UN and ICC relationship, Article 103 of the UN Charter controls the relationship. "The terms of the U.N. Charter are controlling, and thus neither the Rome Statute nor any other treaty can reduce the authority of the Security Council."

How cases reach the Court

There are four methods by which a case may reach the ICC:

1. A state party refers the case;
2. A country that has chosen to accept the Court's jurisdiction refers the case;
3. The United Nations Security Council refers the case; or
4. The three-judge panel authorizes a case initiated by the ICC Prosecutor.

Situations before the Court

As of November 2006, the Chief Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, had received 1,700 communications about alleged crimes in 139 countries. However, 80% of these communications have been found outside the Court's jurisdiction. The Prosecutor has so far opened investigations into just four situations: Uganda, Democratic Republic of Congo, Central African Republic and Darfur.

Uganda

In December 2003, the government of Uganda, a state party, referred to the Prosecutor the situation concerning the Lord’s Resistance Army in Northern Uganda. On 8 July 2005, the Court issued its first arrest warrants for the Lord's Resistance Army leader Joseph Kony, his deputy Vincent Otti, and LRA commanders Raska Lukwiya, Okot Odiambo, and Dominic Ongwen. The LRA's leaders have repeatedly demanded immunity from ICC prosecution in return for an end to the insurgency, and the government of Uganda has promised not to turn them over to the ICC if they sign a peace deal.

Democratic Republic of Congo

In March 2004, the government of the Democratic Republic of Congo, a state party, referred to the Prosecutor “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, Thomas Lubanga, former leader of the Union of Congolese Patriots militia in Ituri, became the first person to be arrested under a warrant issued by the court, for allegedly “conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities”.

Central African Republic

In December 2004, the government of the Central African Republic, a state party, referred to the Prosecutor “the situation of crimes within the jurisdiction of the Court committed anywhere on the territory of the Central African Republic since 1 July 2002, the date of entry into force of the Rome Statute.” On 22 May 2007, the Prosecutor announced his decision to open an investigation, focusing on allegations of killing and rape in 2002 and 2003, a period of intense fighting between government and rebel forces.

Darfur, Sudan

On 31 March 2005, the United Nations Security Council passed Resolution 1593, referring “the situation prevailing in Darfur since 1 July 2002” to the Prosecutor. In February 2007 the chief prosecutor announced that two men — Sudanese humanitarian affairs minister Ahmad Muhammad Harun and Janjaweed militia leader Ali Kushayb — had been identified as key suspects, accused of war crimes and crimes against humanity. On 2 May 2007, the Court issued arrest warrants for the two men. However, Sudan claims the court has no jurisdiction over this matter, and refuses to hand over the suspects.

Other situations

In June 2006, it was agreed that the trial of former Liberian President Charles Taylor would take place using the International Criminal Court's facilities in the Hague. Taylor is being tried under the mandate and auspices of the Special Court for Sierra Leone, but his trial will be held the Hague because of political and security concerns about holding the trial in Freetown.

On 9 February 2006, the Chief Prosecutor published a letter answering complaints connected with the 2003 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 willful killing and inhuman treatment, which covered around 20 people, did not appear to meet the "gravity" threshold for an investigation.

Criticisms of the Court

Potential for politically motivated prosecutions

Opponents of the Court argue that there are “insufficient checks and balances on the authority of the ICC prosecutor and judges” and “insufficient protection against politicized prosecutions or other abuses”. Henry Kissinger has claimed that the checks and balances are so weak that the prosecutor “has virtually unlimited discretion in practice”.

Lack of due process

Many American critics of the Court, such as the Heritage Foundation, claim that “Americans who appear before the court would be denied such basic constitutional rights as trial by a jury of one's peers, protection from double jeopardy, and the right to confront one's accusers.”

However, Human Rights Watch argues that “the ICC has one of the most extensive lists of due process guarantees ever written”, including “presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; right to be present at trial; right to have charges proved beyond a reasonable doubt; and protection against double jeopardy”.

Inequality of arms between prosecution and defence

Thomas Lubanga's defence team claim that they have been given a smaller budget than the Prosecutor and that evidence and witness statements have been slow to arrive.

Interference with national reconciliation processes

In the past, governments have granted amnesty to human rights abusers as part of agreements to end conflict. It is sometimes argued that these amnesties are necessary to allow the peaceful transfer of power from abusive regimes. By denying states the right to offer amnesty to human rights abusers, the International Criminal Court may make it more difficult to negotiate an end to conflict and a transition to democracy. Czech politician Marek Benda argues that “he ICC as a deterrent will in our view only mean the worst dictators will try to retain power at all costs.” For example, the outstanding arrest warrants for four leaders of the Lord's Resistance Army are regarded as an obstacle to ending the insurgency in Uganda.

However, the United Nations and the International Committee of the Red Cross maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law. In any case, Article 16 of the Rome Statute allows the Security Council to prevent the Court from investigating or prosecuting a case, and Article 53 allows the Prosecutor the discretion not to initiate an investigation if he or she believes that “an investigation would not serve the interests of justice”. These provisions may allow the Court some leeway to respect national reconciliation processes.

Crimes within the jurisdiction of the Court

As noted above, some states were unhappy about the exclusion of terrorism, drug trafficking and the use of weapons of mass destruction from the Court's jurisdiction. The government of India, for example, expressed concern that “the Statute of the ICC lays down, by clear implication, that the use of weapons of mass destruction is not a war crime. This is an extraordinary message to send to the international community.”

Other commentators have argued that the Rome Statute defines crimes too broadly or too vaguely. For example, China has argued that the definition of ‘war crimes’ goes beyond that accepted under customary international law.

Criminal Impunity & ICC Prosecution

The ICC Prosecutor is empowered to decide that following investigation there is not a sufficient basis for a prosecution because there is not a sufficient legal or factual basis to seek a warrant or a summons;or the case is inadmissible on any of the bases set out in Article 17 of the Statute which are

on the grounds of gravity;

the case is being investigated or prosecuted by a State which has jurisdiction over it;

the case has been investigated by a state with jurisdiction over and it has been decided not to prosecute, and this decision does not result from a unwillingness or inability of the state genuinely to prosecute;or

the person concerned has already been tried for the conduct which is the subject of the complaint.

In addition, Article 53(2) of the Statute provides the prosecutor may conclude that there is not a sufficient basis to proceed with the prosecution because

"A prosecution is not in the interests of justice taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime,".

This provision has been an issue of concern for some and has been criticised on the basis that "justice" is not defined. Such prosecutorial discretion is not the same as a formal ICC grant of amnesty, particularly since a grant of amnesty would contradict long-standing UN policy. "...the United Nations has consistently maintained the position that amnesty cannot be granted in respect of international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law." However, the view has been expressed that what may in effect be an amnesty, may be conferred in certain situations as a consequence of the provisions of Article 54(3)(d) of the Statute which provides that the Prosecutor may

"enter into such arrangements or agreements, not inconsistent with this Statute, as may be necessary to faciliate the cooperation of a State, inter-governmental organization or person"

It has been commented that that this provision would, for instance, in principle enable the Prosecutor to enter into an agreement granting immunity to a major war criminal in order to seek his cooperation in investigating allegations against other persons. However, it also been contended that

"an agreement giving immunity to a major war criminal would be consistent with the Statute only if his subsequent cooperation would allow the collection of evidence against other major criminals (rather than minor suspects) in such a way as to be "in the interests of justice" (and in the interest of victims), as intended by the drafters of the Statute. In other words, there must be a reasonable correspondence between the weight of the granted immunity and the subsequent advantages of justice"

The Prosecutor's discretion in these matters is subject to various process based restrictions. Article 53 provides that he must inform the Pre-Trial Chamber and relevant states of his conclusion that there is a not a sufficient basis to prosecute. In a case where this is because it is concluded that "it is not in the interests of justice" the Pre-Trial Chamber may review that decision either at the request of a state, or on its own initiative. Article 53(3)(b) provides that in such a case, the decision of the Prosecutor on this point "shall be effective only if confirmed by the Pre-Trial Chamber."

The Risk of Universal Judicial Tyranny

Henry Kissinger expressed concern that: "Widespread agreement that human rights violations and crimes against humanity must be prosecuted has hindered active consideration of the proper role of international courts. Universal jurisdiction risks creating universal tyranny -- that of judges." ..."The danger lies in pushing the effort to extremes that risk substituting the tyranny of judges for that of governments; historically, the dictatorship of the virtuous has often led to inquisitions and even witch-hunts." Kenneth Roth replied: "Henry Kissinger's criticisms of universal jurisdiction are misplaced and overblown. His alternative to a global "tyranny of judges" would mean impunity for the real tyrants."

See also

• International Criminal Court in popular culture
• American Non-Governmental Organizations Coalition for the International Criminal Court
• United States and the International Criminal Court
• International law
• Command responsibility
• Human security
• World Government
• World Federalist Movement

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Publications

• Ilaria Bottigliero, Redress for Victims of Crimes under International Law. The Hague: Martinus Nijhoff Publishers (2004). ISBN 9004138846
• 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
• Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law. Oxford: Oxford University Press (2003). ISBN 019927424X
• Anne-Marie de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR, Antwerp - Oxford: Intersentia (2005). ISBN 90-5095-533-9
• Hans Köchler, Global Justice or Global Revenge? International Criminal Justice at the Crossroads. Vienna/New York: Springer, 2003, ISBN 3-211-00795-4
• Hans Köchler, “Universal Jurisdiction and International Power Politics: Ideal versus Real”, in: Yeditepe’de Felsefe / Philosophy at Yeditepe, Istanbul, Vol. 1, No. 5 (August 2006), pp. 1-16.
• Roy S Lee (ed.), The International Criminal Court: The Making of the Rome Statute. The Hague: Kluwer Law International (1999). ISBN 90-411-1212-X
• Roy S Lee & Hakan Friman (eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence. Ardsley, NY: Transnational Publishers (2001). ISBN 1-57105-209-7
• Madeline Morris, “High crimes and misconceptions: the ICC and non-party states”, Law and Contemporary Problems, Winter 2001, vol. 64, no. 1, p. 13ff. Accessed 2006-11-23.
• William A Schabas, An Introduction to the International Criminal Court (2nd ed.). Cambridge: Cambridge University Press (2004). ISBN 0-521-01149-3
• Nicolaos Strapatsas, ‘Universal Jurisdiction And The International Criminal Court’, Manitoba Law Journal, 2002, vol. 29, p. 2.
• Lyal S. Sunga, The Emerging System of International Criminal Law:Developments in Codification and Implementation (AAA Yearbooks). Springer, 1997. ISBN 9041104720
• 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.

External links

UN & ICC websites

• Official ICC website
• UN website on the Statute of the International Criminal Court
• Text of the Rome Statute
• Rome Statute of the International Criminal Court: depositary notifications

Other

• The Coalition for the International Criminal Court
• American NGO Coalition for the International Criminal Court
• No Peace Without Justice
• Article 126 - unofficial ICC blog
• The McNabb Associates International Crimes Blog
• Objections to the ICC under the U.S. Constitution and International Law
• “Don't Fear the International Criminal Court” by David Kaye, in Foreign Policy, January/February 2006
• “The International Criminal Court” by Amnesty International USA
• International Criminal Court Exhibition
• "Instrument of Justice: The ICC Prosecutor Reflects" by ICC Prosecutor Luis Moreno-Ocampo, JURIST

• 2002 establishments
• Human rights bodies
• International Criminal Court
• International courts
• The Hague