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====Separation of powers==== ====Separation of powers====


The U.S. argues that the court's authority is excessively vague, that many of the crimes are not well defined and do not have extensive case law. As definitions are subject to interpretation only by the court itself, it could chose to extend its remit by reinterpreting it's statute, which the United States argues are essentially political and legislative functions. The courts do not include a jury, so that determinations of guilt and sentence are both made by the same judges. The member-countries can, at any later date, extend the range of crimes that are tryable by the court. The U.S. argues that the court's authority is excessively vague, that many of the crimes are not well defined and do not have extensive case law. As definitions are subject to interpretation only by the court itself, it could chose to extend its remit by reinterpreting its statute, which the United States argues are essentially political and legislative functions. The courts do not include a jury, so that determinations of guilt and sentence are both made by the same judges. The member-countries can, at any later date, extend the range of crimes that are tryable by the court.


In general there are insufficient structures to separate the functions of defining, adjudicating and enforcing laws, subject to popular accountability and protection of liberty. This separation of powers is more clearly established in the ] than in ], which is why Europeans are generally more supportive of the court. In general there are insufficient structures to separate the functions of defining, adjudicating and enforcing laws, subject to popular accountability and protection of liberty. This separation of powers is more clearly established in the ] than in ], which is why Europeans are generally more supportive of the court.

Revision as of 20:43, 26 March 2006

File:International Criminal Court logo.gif
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 initialized as ICCt to distinguish it from "International Chamber of Commerce." Also, the ICC is separate from the International Court of Justice, which is a body to settle disputes between nations, and the Belgian War Crimes Law.

Cases before the court

Main article: Cases before the International Criminal 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.

On 2006-02-09 the Chief Prosecutor published a letter 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 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, it was desired to create a permanent tribunal, so that an ad hoc tribunal would not have to be created after each occurrence of these crimes.

The 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; only the United States, Israel, People's Republic of China, Iraq, Qatar, Libya and Yemen voted against. Israel went on to sign the Statute just before the statute was closed for signatures but later nullified its signature. The United States under Bill Clinton signed the treaty, but never submitted it for ratification. When George W. Bush took office shortly afterwards, he nullified the signature amid bipartisan consensus on the matter.

The Statute became a binding treaty after it received its 60th ratification, which was deposited at a ceremony at 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 its Statute permits it to hold its proceedings anywhere. The court became operational when the signatory nations met in the Assembly of State Parties to appoint a prosecutor and 18 judges. It 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 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.

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

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. Signing has some legal consequences from customary international law. A state is expected not to sabotage a treaty it has signed although it has not ratified it. Therefore the USA and Israel "unsigned" the Rome treaty, after which the USA engaged in bilateral agreements which undermine the obligations of states who have ratified.

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, amid bipartisan consensus, has stated that it does not intend to ratify the treaty creating the court. Although the then U.S. President, Bill Clinton, signed the court treaty, he stated he would not support its ratification as it stood, and only signed so that the United States could participate in negotiations on the court's rules of procedure. Under United States and International Law, a signature is not binding unless and until a treaty is ratified. Commentators have sugested that the treaty could not be ratified without a constitutional amendment, as it creates a court of appeal above the U.S. Supreme Court, which would be able to act if it decided that the country was unable or unwilling to prosecute any alleged crimes.

National sovereignty

The United States argues that fear of prosecution by an independent prosecutor would restrain legitimate American discretion on foreign policy decisions, where these are already subject to adequate domestic constitutional checks. This impinges on the principle of national sovereignty, which the United States cannot be compelled to give up.

The United States accepts that American citizens who travel to other coutries, including troops and politicians, are bound by the laws of those countries. However it argues that a country cannot, under international law, delegate the enforcement of those laws to a supra-national court without the consent of the home state. Therefore the indictment by the court of any American citizen for a crime committed in the teritory of a state party would be a breach of american sovereignty.

Many in the U.S. believe that the U.S. has a history of supporting human rights and is more qualified to move against war criminals than many of the signatories of the ICC. They cite the following examples to support their case:


Politically motivated prosecutions

The U.S. claims that American soldiers and political leaders are at risk of "frivolous or politically motivated prosecutions" (a form of barratry). American troops and civilians are active in over 100 countries in the world and are therefore in a uniquely vulnerable position. Anti-Americanism is common throughout the world and is also reflected in other independent bodies within the United Nations system. There is no mechanism within the court for the United States to effectively control an independent prosecutor who pursued such an agenda.

Accountability

The United States argues that the court does not have sufficient political accountability to ensure that its actions are in the public interest. The court lacks sufficient oversight mechanisms for confirmation of officials, and their impeachment where necessary. Nominations for officials are unduly influenced by "quota systems and back room deals". Particularly, it is not subject to sufficient oversight by the United Nations Security Council. Although the council is able to defer a prosecution by a year, this can only be done with an affirmative vote, which may be vetoed. A prosecution does not require a positive referral from the Security Council, as it did with, for example, the International Criminal Tribunal for the former Yugoslavia, and can be started on the prosecutor's own initiative, overseen only by the court's own judges.

Therefore the United States, on it's own, could not prevent a prosecution taking place by using it's Security Council veto powers.

Separation of powers

The U.S. argues that the court's authority is excessively vague, that many of the crimes are not well defined and do not have extensive case law. As definitions are subject to interpretation only by the court itself, it could chose to extend its remit by reinterpreting its statute, which the United States argues are essentially political and legislative functions. The courts do not include a jury, so that determinations of guilt and sentence are both made by the same judges. The member-countries can, at any later date, extend the range of crimes that are tryable by the court.

In general there are insufficient structures to separate the functions of defining, adjudicating and enforcing laws, subject to popular accountability and protection of liberty. This separation of powers is more clearly established in the United States than in Europe, which is why Europeans are generally more supportive of the court.

Undermining the U.N. Security Council

The United States argues that the court could undermine the work of the United Nations Security Council, which is charged with maintaining peace and security between nations. The prosecutor is able to issue initiate prosecutions and issue indictments which can disrupt local processes of peace and reconciliation. This has also been the complaint of some in Uganda with regard to the court's investigation there.

By insisting on a universal principle that certain crimes should always be punished, the court is restricting the flexibility available to the international community in dealing with future circumstances, where a Truth and Reconciliation Commission, for example, may be more effective.

Poor detection

Courts such as these have a poor record in ensuring that those guilty of serious crimes are brought to justice. The Bosnian Serb indictees Radovan Karadžić and Ratko Mladić have been able to evade justice for many years, and it was political pressure, rather than legal institutions that led to the trials of Milosovic and Saddam Hussein. The court is not an effective deterrent to future Pol Pot's because it does not have strong enough enforcement mechanisms. Indeed, effective enforcement may rely on action by the United States, as has been the case with previous international courts.

U.S. attempts to undermine the ICC

When it became clear in 2002 that the treaty creating the ICC would receive the requisite number of ratifications to enter into force, the United States began to undertake a number of measures to exempt U.S. nationals from the Court's jurisdiction.

Sceptics say there may be other reasons, than those advanced by the Bush administration, for frustrating the International Criminal Court. One might think of the role the U.S. administration or U.S. subjects have played in conflicts around the world in the past, i.e. Gulf of Tonkin Incident, My Lai Massacre, aid to Operation Condor through the School of the Americas. Continuing these policies today, under the ICC Statute, could be grounds for prosecution.

In addition, they point to the possible legal challenges as a result of the "war on terror" regarding the memos refuting the Geneva Convention, the use of unlawful combatant status, extraordinary rendition and the invasion of Iraq. They all could be seen as war crimes.

American Servicemembers Protection Act

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; however, there were a number of exceptions to this, including NATO members, major non-NATO ally, and countries which entered into an agreement with the United States not to hand over U.S. nationals to the Court (see "Article 98" agreements below). ASPA also excluded any military aid that the U.S. President certified to be in the U.S. national interest.

In addition, ASPA contained provisions prohibiting U.S. co-operation with the Court, 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.

In addition, the Nethercutt Amendment to the Foreign Appropriations Bill suspends Economic Support Fund assistance to ICC States Parties who have not signed bilateral immunity agreements (BIAs) with the US. The funds affected support initiatives including peacekeeping, anti-terrorism measures, democracy-building and drug interdiction. The omnibus appropriations bill containing the controversial amendment was signed by President Bush on December 7, 2004.

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 the request to be valid to 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 Iraq it became clear that there was no majority for it, the U.S. withdrew its second proposed renewal of the resolution.
"Article 98" agreements
Map of countries which have signed Article 98 agreements with the US

As part of the U.S. campaign to exclude its citizens and military personnel from the jurisdiction of the ICC, the U.S. Bush administration has been approaching countries around the world seeking to conclude Bilateral Immunity Agreements, or so-called “Article 98” agreements.

These agreements prohibit 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. These agreements, which in some cases are reciprocal, do not always include an obligation by the United States to subject those suspected persons to investigation and/or prosecution.

The U.S. has attempted to pressure states into signing these bilateral agreements with it by adopting legislation requiring the suspension of military assistance and U.S. Economic Support Fund (ESF) aid to those States Parties which do not sign these agreements. ESF funding entails a wide range of governance programs including international counter-terrorism efforts, peace process programs, anti-drug trafficking initiatives, truth and reconciliation commissions, wheelchair distribution and HIV/AIDS education, among others. In 2003 the U.S. stopped military aid for 35 countries (among them nine European countries). U.S. law requires the cessation of such aid payments if a state is unwilling to sign the bilateral agreement (there are exceptions for NATO-members and allies such as Israel, Egypt, Australia and South Korea).

Article 98 of the Rome Statute provides that a country need not hand over a foreign national to the Court if it is prohibited from doing so by an agreement with that national's country. The U.S. has used this measure in an attempt to exempt its nationals from the Court's jurisdiction, by negotiating agreements with State Parties making use of Article 98.

Amnesty International and the European Commission Legal Service, along with several other groups supporting the ICC, have claimed that these agreements the U.S. is attempting to negotiate are not valid under Article 98. They argue that the language in Article 98 is normally used in international law to refer to Status of Forces Agreements (SOFA), mission agreements and extradition treaties; hence they claim that Article 98 can only be used for these purposes, and not to create a general exclusion for other states' nationals from being handed over to the ICC.

Romania and Israel (even though the latter is not a party to the Statute) were the first to sign Article 98 agreements with the U.S. In response to Romania's action, the European Union requested that candidate countries not sign Article 98 agreements with the United States until the EU ministers had met to agree upon a common position. The U.S. State Department called this action inappropriate. ICC supporters countered that the United States was attempting to use issues of military aid and NATO membership to "bully" other countries into signing.

Finally, in October 2002, the Council of the European Union adopted a common position, permitting member states to enter into Article 98 agreements with the United States, but only concerning U.S. military personnel, U.S. diplomatic or consular officials, and persons extradited, sent to their territories by the United States with their permission; not the general protection of U.S. nationals that the U.S. sought; furthermore the common position provided that any person protected from ICC prosecution by such agreements would have to be prosecuted by the United States. This was in agreement with the original position of the EU, that Article 98 agreements were allowed to cover these restricted classes of persons but could not cover all the citizens of a state.

On December 26, 2002, India became the 15th country to sign a bilateral agreement with the U.S. under Article 98. The agreement aims to prevent the "extradition of nationals of either country to any international tribunal without the other country's express consent".

By June 2005 around 100 states had signed a bilateral agreement with the U.S., including at least seven of them that signed the agreement secretly. Many of these agreements are with non-States Parties to the Court. 58 of the 100 countries have not signed these bilateral agreements, despite U.S. pressure. At least 54 governments (including Brazil, Canada, Estonia, Peru, South Africa, and Trinidad and Tobago) and several intergovernmental bodies have publicly opposed these agreements and have encouraged other states to resist signing such agreements. Less than 30% of these agreements have actually been ratified by national parliaments. Instead, it is unclear how the majority of these agreements have been entered into, though at least 18 of them are known to have been secured through “executive agreements" which many legal experts argue are unconstitutional and require the approval of parliament.

The United States has cut aid and development funding for many countries in retaliation for 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.

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". 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.

Chinese objections

The People's Republic of China has expressed opposition to even the other states involved going ahead with it, 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 Zimbabwe to 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.

In popular culture

See also

References

  1. ^ 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.

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