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International Criminal Court: Jurisdictional Issues

Written by: Ms. Leoni Mahanta - National Law Institute University, Bhopal
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Background:
The International Criminal Court (ICC) was established in 2002 as the first permanent international criminal court for investigation and prosecution of individuals for genocide, crime against humanity, apartheid and war crimes. 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 Rome Statute of the International Criminal Court (The ICC Statute or the Statute) is the most important of the international agreements that defined International Crimes. The jurisdictional relationship between the ICC and various national justice systems is based on the so-called complimentarily principle. Under this principle, national courts take precedence over the ICC in dealing with violations of international humanitarian law. The Court can only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes, thus being a court of last resort.

The idea of a permanent international criminal court is traced to the 1860s, when it was proposed by one of the founders of the Red Cross movement. A permanent international criminal court is needed because there are various crimes, which are not committed, by a group of persons from the same State, nor within the borders of one State or against the civilians of one State. Wars, for example, have been and still are fought across borders; acts of genocide are by definition not committed against the citizens of a single State, but rather against transborder ethnic groups or peoples. These crimes are defined in international law and because there are numerous difficulties in prosecuting those responsible for such crimes before national criminal courts, an international criminal court is needed to bring these people to justice. Although the chance of establishing a court with universal participation is not great and the possibility will always remain that criminals could escape the court's jurisdiction by fleeing to a State that is not a member to the Statute, the chance that justice will be done if an international criminal court is established becomes more realistic.

The movement for the creation of an International Criminal Court to deal with the problem of crimes committed against humanity gained force after the Nuremberg Trial which was established to deal with the genocide and crimes against humanity committed by the Nazis in World War II and by the victorious powers in Tokyo. The trials demonstrated that the existing international legal structure did not have a standing body with the means or jurisdiction to prosecute such crimes. Conventions have entered into force over the last few decades which along with the evolving customary law have increased the list of crimes imposing an individual criminal responsibility that international law now defines.

The International Law Commission at the request of the United Nations General Assembly first proposed the establishment of the Court in 1949. The development of the ICC followed the creation of several ad hoc tribunals to try war crimes in the former Yugoslavia and Rwanda in 1993 and 1994 respectively. Subsequently, there arose a desire to establish a permanent tribunal in order to avoid repeated uses of ad hoc tribunals. The disadvantages of such tribunals are obvious. The ICC was believed to deter crimes by confronting lawbreakers with the possibility of investigation, trial, and punishment. Unlike the temporary tribunals, the new court was assumed to have the greater efficiencies with the authority to build respected precedents over time. A permanent court in place before the conflicts begins is a desirable scenario. Whereas, the ad hoc tribunals were established after the conflicts or while the conflicts were ongoing.

Jurisdiction of the International Criminal Court:

As per Article 5 of the ICC Statute, the Court has jurisdiction with respect to genocide, crime against humanity, war crimes and the crime of aggression. These crimes are defined in Articles 6 to 8 ‘for the purpose of the Statute.’3 The interpretation of these crimes is subject to the Elements of Crime as adopted in September 2002 at the first session of the Assemblies of State Parties.

According to Article 11(1), the Court does not have retroactive jurisdiction over crimes that occurred before the entry into force of the statute on July 1, 2002. This principle of non-retroactivity is reinforced by Article 24(1), which stipulates that no person shall be held liable under this statute for conduct committed prior to the entry of the force of the ICC Statute.

The ICC’s jurisdiction is limited only to natural persons as provided in Article 25 of the Statute. The minimum age of the alleged perpetrator should be 18 years at the time of the commission of the crime.

There are three ways by which the Court’s jurisdiction over crimes listed in Article 5 is triggered: Firstly, by a referral of a situation by a state party. Any state party may refer a situation to the Court and request that the prosecutor initiate an investigation6; Secondly, by the Security Council, which can adopt a resolution under Chapter 7 of the United Nations Charter and refer a situation to the Court; and Lastly, the prosecutor can initiate the investigation on his/ her own motion.7 A number of safeguards have been provided to ensure that the prosecutor is not led by political motives but bases his decision on objective criteria. The prosecutor is required to file a request with the Pre-Trial Chamber for authorization of an investigation. The Pre-Trial Chamber has to authorize an investigation if it is found that there is a reasonable basis to carry on such an investigation. In case, the Pre Trial-Chamber refuses to authorize an investigation, the prosecutor may re-submit a request only if it is based on new facts and evidence.

The Court has automatic jurisdiction over the crimes listed in Article 5 of the statute. The automatic jurisdiction of the Court is tied to two different principles of jurisdiction: the territoriality principle and the nationality principle. Territorial jurisdiction is the most uncontested principle of jurisdiction because it is closely related to the notion of sovereignty. On the basis of these principles national courts can also assert their jurisdiction over crimes proscribed in their national legal orders. The Court can also exercise its jurisdiction if the State of nationality or territoriality is not a party to the Statute but accepts the jurisdiction of the Court with respect to the crime, by lodging a declaration with the Registrar.8 The proposal put forward by the Korean delegation provided for two additional jurisdictional links --- the custodial state and the state of nationality of the victim. 9 It gained support for the statute as it accommodated the United States to some degree. This has accelerated the overall ratification process by bringing many other states on board.

Cases Before The International Criminal Court:


After scrupulous analysis in accordance with the Rome Statute and the Rules of Procedure and Evidence10, the Chief Prosecutor Mr. Luis Moreno-Ocampo decided to open investigations into three situations:

In the Republic of Uganda on January 29, 2004, the case on Lord’s Resistance Army was referred to ICC

The Lord’s Resistance Army is a rebel paramilitary group, which formed in 1987 operating mainly in Northern Uganda. LRA led by Joseph Kony is engaged in an armed rebellion against the Ugandan Government.11 The International Criminal Court issued arrest warrants on July and September 2005, against Joseph Kony, his deputy Vincent Otti, and three LRA commanders. All the five leaders are charged with crime against humanity and war crimes including, rape, murder, sexual slavery and enlisting of children as combatants. All the warrants were filed under seals and their details had been sent to Uganda, Sudan and Congo (DRC), where LRA is active. The regional Government of Southern Sudan had ignored previous ICC warrants and instead supplied the LRA with cash, and food as an incentive to stop them from attacking their citizens.12 The LRA leadership had long stated that unless they were granted immunity from prosecution they would not surrender.

A series of ongoing meetings popularly known as the Juba Talks have been held since July 2006 between the Government of Uganda and LRA. The talks mediated by Riek Machar, the Vice-President of Southern Sudan and by the Community of Sant’Edigo had resulted in ceasefire by September 2006.
The various International Human Rights Groups have condemned the request by the Government for ICC to suspend war crimes charges against the LRA leaders. According to the political analysts, the Ugandan Government’s behaviour reflects ploy to gain local support.13

The situation in Ituri, Democratic Republic of Congo (DRC), which was referred to the court by the DRC on April 19, 2004

In April 2004, Joseph Kabila, the President of DRC sent a formal request to ICC in order to investigate possible war crimes commited in the country.14 The Office of the Prosecutor of ICC has opened its first investigation in DRC where 4 millions civilian have died in violence raging since 1990s. As the Rome Statute extends the jurisdiction of the Court to cimes committed after 1 July 2002, the office of the Prosecutor can examine allegation of mass murder, rape, summary execution, forced displacement, torture, and the use of children as soldiers. This is an important step on the part of the International community to hold those responsible for grave violation of human rights answerable for their actions.
On 17 March 2006, Thomas Lubanga Dyilo, a national of DRC and alleged founder of Union Des Patriotes Congalias (UPC) was arrested and transferred to the International Criminal Court. He has been charged with commiting war crimes under Article 8 of the Rome Statute of the International Criminal Court, which includes enlisting and conscripting children under the age of fifteen and using them to partipate actively in hostilities.

The situation in Darfur, Sudan, which was referred to the Court in March 2005 by the United Nations Security Council

In 2003, ‘Janjaweed’ militias began a murderous campaign against the African tribes in the Darfur region which has resulted in the death of thousands of people and displacement of around 1.5 million people from their homes. In addition to direct killings, thousands of people have died since 2003 as a result of lack of shelter, and basic neccesities for survival due to destruction of homes, foodstocks, looting of property, and livestock, as well as obstacles to the provision of life-saving humanitarian assistance. The militias were allegedly backed by the Sudanese Government.

In March 2005, the U.N. Security Council referred the case of Darfur to the ICC. In April 2005, the UN submitted a list of 51 Sudanese suspects to ICC. The Sudanese government vowed never to surrender any citizens to ICC. It is assumed that the reason was the inclusion of the names of many high-ranking officials. Sudan’s official position was that the ICC did not have any jurisdiction and it has proceeded with local justice initiatives viz. establishment of the Darfur Special Court as an alternative to to the prosecution of cases by the ICC and has thus invoked the complementary framework underpinning the Rome Statutes. However, it is alleged that these trials are only ‘show trials’ as the government was investigating and proseuting only minor cases. Thus, the trials do little to hold actual perpetrators accountable for the atrocites in Darfur. The officials were willing to discuss only the progres of trials or the role of national justice  with ICC investigators.

We can say that more than Darfur needing the International Criminal Court, it is the reverse that is a more believable proposition. This is because it is Security Council’s first referral to the ICC. Fundamentally, it fulfills the Court’s main goal: to redress widespread atrocities when government cannot or will not do so. The success of Darfur will reflect ICC’s credibility as a mechanism for accountability.

There was a special case in which the former Liberian President Charles Taylor was transferred to the buildings of the ICC in June 2006 for a trial under the mandate and auspices of the Special Court for Sierra Leone. The Special Court was established in 16 July 2002 as the result of an agreement signed between the Government of Sierra Leone and the U.N., which is an independent judicial body to try those who are responsible for war crmes and crime against humanity committed in Sierra Leone after 30 November 1996.

On 2006-02-09, the Chief Prosecutor published a letter answering complaints connected with the invasion of Iraq. 15 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.

Critical Analysis of International Criminal Court in Lieu of Jurisdiction:

The International Criminal Court is not in a position to adjudicate all international crimes but its jurisdiction is limited to the four categories of crime viz. genocide, crimes against humanity, war crimes and crime of aggression as stipulated in Article 5 of the ICC Statute. It is to be noted that the Court will be able to exercise its jurisdiction over the crime of aggression only when this crime is defined.16 Due to the highly political nature of this crime, it is unlikely that a consensus in this regard would be arrived at in the near future. Also, to reach at a definition of aggression would require an amendment of the Statute, which can only happen 7 years from the date of its entry into force and in accordance with the rules laid down under Articles 121 and 123. The crime of aggression is included de jure even if de facto the Court is unable to exercise its jurisdiction over this crime.

It is regrettable that some war crimes have been excluded from the list that was adopted in Rome Statute. There are no provisions on unjustifiable delay in the repatriation of prisoners of war or civilians or on the launching of indiscriminate attacks affecting the civilian population or civilian objects.
It is worth noting that the Rome Statute does not provide for the jurisdiction of the ICC over drug trafficking even though the main impetus for restarting negotiations on the establishment of a permanent ICC came from a coalition of sixteen Carribean and Latin American nations, who envisaged such a Court as an effective way of dealing with drug crimes.

The ICC also does not have jurisdiction over acts of terrorism. The main reason for the exclusion of terrorism from the Court’s jurisdiction was the lack of an internationally accepted definition and the view of many states that the Court will become politicized if it is included.

The Court’s jurisdiction is limited to ratione personae, ie, natural persons. The proposal of the French delegation for the inclusion of legal persons within the jurisdiction of the ICC was rejected on the ground that there will be evidentiary difficulties and the fact that corporate criminal liability is not yet recognised most national criminal justice systems.

ICC’s jurisdiction over crimes listed in Article 5 can also be triggered by the adoption of resolution by the Security Council under Chapter VII of the United Nations Charter. However, knowing that the Security Council is a highly politicised body, it will be political expediency and not the rule of law which will decide when such a situation occurs.

There is the provision for deferral by the Security Council under Article 16 which provides for the intervention of the Security Council in the functioning of the Court. For instance, if an investigation or prosecution takes place contrary to the maintenance of international peace and security, the Security Council may through a resolution under Chapter VII of the U.N.Charter may request the Court either not to commence or proceed with an investigation or prosecution for the period of 1 year which can be further renewed. This emphasises the dependence of the Court and political control over the judicial body.

The ICC statute puts emphasis on the complementary nature of the Court’s jurisdiction. In case a national criminal justice system is unable or unwilling to adjudicate the offenders of the crime then the ICC can decide the case. The onus of proof lies on the Court to show that the intention of the national proceeding is in order to shield the offender. If the onus of proof is too high, it will be difficult to exercise automatic jurisdiction of the Court.

Conclusion:
There exists a debate on whether ICC should have Universal Jurisdiction or State- consent regime in order to decide international crimes. The State Consent regime requires obtaining the custodial and territorial consent of other States before the Court can exercise its jurisdiction. However, under the existing principle of Universal Jurisdiction, any State has the right to prosecute persons alleged to have committed war crimes and no consent is required from any other State. This principle reaffirms the deep-seated notion that war criminals are not immune from prosecution but those responsible for the commission of war crimes are answerable for their acts and must be brought to justice.

Therefore, if the Court were to act on the basis of the consent of the States, it would pave the way to the frustration of our purpose. Universal jurisdiction, as an exception under international law to the general principle of territorial jurisdiction, was initially recognised as applying to such crimes as piracy and slave trade e.g. in United States vs. Klintock. In order to have ICC as an effective Court of justice, it must have inherent jurisdiction over the core crimes of genocide, crimes against humanity and war crimes. In the Augusto Pinochet case, the Spanish Court issued an indictment against General Augusto Pinochet of Chile for acts of torture, amongst others, and based its jurisdiction on the principle of universality that is encoded in Spanish law. It must not allow legal principles to be used as weapons to settle political scores. It is important that certain types of military and political actions should be criminalized which thereby brings about a more humane conduct of international relations.

The Princeton Project on Universal Jurisdiction has come up with Princeton Principles, which advocate a broad notion of universal jurisdiction for piracy, slavery, crimes against peace, war crimes, crimes against humanity, genocide and torture. The jurisdiction of the Court over these crimes is inherent and can form the basis of an extradition request. The purpose of it was to increase accountability of the national courts for certain serious crimes under international law.

The continued U.S. insistence that no person should be tried without the consent of his or her national government seems a self-defeating condition, which if established, would enable any world-class criminal to stay out of court. It is difficult to imagine the governments of Saddam Hussein or Slobodan Milosevic consenting to the prosecution of their own crimes! U.S. officials fear that the mere existence of an independent court might limit U.S. uses of military power. To have a court ready to investigate U.S. officials for war crimes or crimes against humanity might inhibit officials from sending forces into combat and using aerial bombardment that might kill many civilians.

Yet the establishment of the proposed court does not change the law governing international military conduct. As U.S. military actions are legal, it has nothing to fear from the court. It is essential that the advantages of universal criminal jurisdiction with the guarantees of legal protection that an international criminal court can provide should be combined. Insofar as offences against the peace and security of mankind are concerned; acts constituting offences of this kind are international matters lying outside the area of state sovereignty.

Finally, the emphasis now should be to provide unambiguous definitions of crimes that would come within the ICC’s jurisdiction. Also, there should be a solution for the simple collection of evidence. A method must be devised for appointing impartial prosecutors acceptable to the entire international community.

The author can be reached at: leonimahanta@legalserviceindia.com / Print This Article

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