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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 complimentarity
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.
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International Criminal Court: Jurisdictional Issues
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author can be reached at: leonimahanta@legalserviceindia.com /
