This article is written by Garvit Saraswat.
The International Criminal Court provides creative and composite structure of justice that consider all the rights and privileges given to suspects. The International Criminal Court has very aspiring target as it not only focuses on establishing International justice, but also peace.
This article evaluates structure of International Criminal Court, its jurisdiction, its Legal Process, its role in establishing International peace and providing justice, challenges and criticism faced by ICC, and rights given to the suspect by ICC.
Further, more this article is covering India’s stand on ICC under which it will cover thoughts and objections of Indian government for ICC.
The article evaluates role of ICC in providing quality justice and in establishing International peace. The basic aim to setup ICC was to investigate, prosecute, and try people accused of committing the most serious offences. The ICC has power to prosecute individuals for the International crimes of genocide, crimes against humanity, war crimes, and crimes of aggression.
The International Criminal Court is a fixed and stable international court which was established to investigate, prosecute, and try people charged for committing serious crimes. The International Criminal Court has power to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes, and crimes of aggression.
The International Criminal Court is situated in The Hague, Netherlands. International Criminal Court was entered into force on 1st July 2002.
International Criminal Court was established by the Rome statute of International criminal Court 1988. International Criminal Court was established to prosecute serious crimes done by individuals in cases where national courts are unable to prosecute criminals or when the U.N. or individual state transfers the situation to the court. The first hearing of International Criminal Court was held in 2006.
Rome Statute: The Rome Statute also known as the International Criminal Court Statute is the treaty which established International Criminal Court.
The Rome Statute of International Criminal Court was adopted at a conference held in Rome on July 17th, 1988 and was formally implemented on July 1st, 2002. The International Criminal Court is self-governing International Court with 123 current state members. The Rome Statute of the International Court is a conciliatory treaty.
The two main working languages of the International Criminal Court are English and French. It also has six official languages which are Arabic, Chinese, English, French, Russian, and Spanish.
The current President of the International Criminal Court is Chile Eboe-Osuji who was elected on 11th March 2018.
The International Criminal Court is composed of mainly 4 primary organs:
- The Presidency.
- The Chambers.
- The Office of the Prosecutors.
- The Registry.
The assembly of parties serves as the court’s management, oversight, and legislative body, and is not an organ of the court. It establishes the budget, elects’ judges and prosecutors, amends law and procedure, and conducts other activities consistent with the Rome Statute (Structure of the ICC)
- It represents the International Criminal Court externally.
- It also performs selected number of judicial functions.
- Presidency organ of International Criminal Court organises the judicial chambers and assigns cases.
The presidency organ of the International Criminal Court is also responsible for the administration of the court except the office of the prosecutor as it is responsible for its own administration. The presidency organ is also responsible in maintaining relations with states & promotes common awareness and perception of the court through external relation.
There are 5 main functions of the chambers:
- To issue arrest and warrants.
- To determine the jurisdiction and admissibility.
- To confirm or rejects the charges.
- To hear the appeals.
- To adjudicate the cases.
The Chamber of the International Criminal Court consists of 18 judges organised into the pre-trial division, the trial division, and the appeal division. The pre-trial division and the trial division have 3 judges each and the appeal division consists of 5 judges.
The pre-trial chamber has a very important role in the very first phase of the trial as the judges of pre-trial chamber makes the decision whether to confirm the charges against the accused or not.
If the charges are confirmed by the pre-trial chamber, then the trial chamber comes into play. The trial chamber’s responsibility is to decide the innocence or guilt of the accused; it also imposes a sentence on a convicted person and may also order the convicted person to pay money for compensation.
If the convicted person or the prosecutor appeals the judgement of the trial chamber, then the appeal chamber comes into role and it may decide to reverse or alter the decision and can also order a new trial before a distinct trial chamber.
The office of the prosecutor
- It analyses the jurisdiction and the admissibility.
- It investigates the crime.
- It prosecutes individuals.
Office of the prosecutor is an independent organ of the court. It is responsible for examining situation under the jurisdiction of court where genocide, crime against humanity, war crimes and aggressions appear to have been committed, and carrying out investigation and prosecution against individuals who were allegedly most responsible for those crimes.
- The registry of International criminal Court administers court services.
- It helps external defence and victim counsel.
- It organises witnesses and victim protection.
- It promotes victim involvement and reparation.
The registry of ICC basically provides the administrative and judicial support to all the organs of the court. It also provides counsel support functions to victim and it also ensures the protection and safety of both witnesses and victims. The registry of ICC is also responsible for supervising and regulating the detention of all who are detained under ICC’s command. Registrar who leads the registry is the principle administrative officer of the court.
According to Article Five of Rome Statute ICC has the authority & powers over genocide crimes against humanity, war crimes & crimes of aggression.
ICC has jurisdiction and control on the crimes mentioned in Article Five of the Statute. Minimum age of the accused must be eighteen years at the time of commission of the offence.
According to Article eleven clause one, ICC do not have any retroactive authority over crimes that were committed before the Statute was enforced. The principal of non-retro activity is re-enforced by Article 24 clause one which say that no individual will be held liable under this statute for conduct done before the enforcement of ICC’s statute.
Article 6 of the Rome Statute defines genocide crimes as:
- Killing members of any group.
- Causing mental harm or serious bodily harm to members of any group.
- Coercively transferring children of a group to any other group.
- Imposing measures intended to forbid births within any group.
Genocide was firstly recognised as a crime under International law in 1946 by the United Nations general assembly.
Crimes against humanity
Article 7 of the Rome Statute:
It means any of the acts when done as part of wide-spread or organized attacks directed against any civilian population with knowledge of attacks:
- Deportation or forced transfer of people.
- Detention or Serious Deprivation of physical freedom in Infringement of International rules of International law.
- Rape; Sexual slavery; Forced prostitution; Forced pregnancy; or any other Sexual violence of similar gravity.
- Enforced disappearance of individuals.
- Crimes of apartheid.
- Another inhuman act of comparable nature purposely causing great suffering; genuine injury to body or mental or physical health.
Article 8 of Rome Statute defines War Crimes.
War crime is an offence that makes a severe violation of the law of war which gives rise to individual criminal responsibility. War crimes can also be defined as unjustified acts of violence, infringement of treaties, or violating practices that rule military conflicts.
War crimes include grave breaches of Geneva Convention.
War crimes are generally committed by army personnel but some time it may also be done by politicians and civilians. Some examples of War Crimes are:
- Intentionally killing of civilians.
- Torturing civilians.
- Destroying civilian property.
- Taking hostages.
- Using child soldiers.
- Sexual slavery.
Crimes of Aggression
It is a particular type of crime where an individual plans, commences or performs an act of aggression by using state military force that infringes the charter of the United Nations. Crimes of aggression is defined under Article eight bis of Rome Statute.
There are two essential elements which are required in the crime of aggression:
- The offender of the crime must be political leader or a military leader.
- The court must have to show that the offender was involved in the planning, preparation, commission, and execution of the crime.
An “act of aggression” means “the use of armed force by state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the charter of the United Nation” Article 8(2) bis Rome Statute.
As Global Court the ICC’s statutory process functions differently from your national jurisdiction:
Office of the Prosecutor decides that there is enough and adequate proof of an offence of enough gravity falling in the ICC authority, whether there is authentic state hearing & whether starting of an inquiry will bring the interest of law & the sufferer.
When conditions are not good for starting an inspection or if the offence committed is not in the court’s jurisdiction & authority, the ICC’s prosecution cannot inspect.
After the collections & findings from evidence & recognising the accused, the prosecution plea judges of the court for issuance of:
- Warrant for arrest- The International Criminal Court depends on member states for making arrests & sending of the accused to International Criminal Court.
- Summon to appear- Accused appears willingly and If they do not appear then warrant for arrest is delivered.
When the conditions are not good for starting an inquiry or if offence committed is not in the ICC’s authority, the prosecution cannot start inquiry & investigation.
The Prosecution of ICC can again go for the verification of charges by finding and introducing new evidence.
- Introductory appearance: 3 judges of Pre-Trial committee verify accused identity and make sure that accused understands the charges against him.
- Conformation of charges hearing: After hearing the prosecution, the defence and the legal spoke person of the victims, the judges of pre-trial committee decides whether there is sufficient proof for case to go for hearing or not.
When the accused is not arrested or is not emerged, legal submissions are to be done but proceedings cannot initiate.
In front of 3 judges of trial phase the prosecution should establish beyond justifiable doubt the wrongdoing of suspect. Judges observes every proof after that pass a judgement and if there is a judgement of guilt, the judges can sentence an individual up to thirty years of imprisonment & in extraordinary situations a life sentence. Judges of trial committee may order compensation for the sufferer. If the evidence is not sufficient then in that case the case is terminated & suspect is acquitted. In case of acquittal the defence and the prosecutor can appeal the case before the appeal committee.
Prosecutor and the defence both have the right to appeal the judgement of the trial chamber before the Appeal Chamber. Convicted persons and victims both can appeal an order for compensation before the appeal chamber.
An appeal committee consists of 5 judges who are not the same judges which have passed the original judgement.
The main role of the Appeal Chamber is to decide whether to reverse, alter the judgement or uphold the decision of the trial chamber. The Appeal Chamber can also order a new trial in a different trial chamber.
Imposition of sentence
Sentences are only for those member states which has concurred to implement courts sentences. If the judgement of culpability is not upheld, then accused is acquitted.
Key points about legal procedure of ICC
- The ICC cannot prosecute persons of the age of 18 or below when the crime was committed.
- A Primary examination recognising such situations as enough proof, jurisdiction, & in interest of law must be conducted by the prosecutor before starting the investigation.
- During the investigation, the prosecutor must gather and reveal both the incriminating and exoneration proof.
- The accused is treated innocent till proven guilty. Burden of proof is always on prosecutor.
- Throughout every phase of proceeding, accused is having the right of information in the language which he or she understands clearly, that is why ICC’s proceedings are carried out in different languages; during the proceedings, a team of interpreters and translators is always present.
- Judges of pre-trial chamber issues arrest warrants and make sure that there is sufficient evidence before a matter goes for hearing.
- Throughout the pre-trial stage the accused is said as a suspect and as soon as case has reached the trial chamber, as the charges against the defendants are confirmed in pre-trial phase so in trial phase defendant is referred as accused.
- When a case is terminated without any judgement of guilty, the case can be open again if the prosecutor introduces fresh proofs.
Suspects are assumed as innocents until proven guilty before the court. The prosecution must have to prove the wrongdoing of the suspect and the trial chamber will sentence a suspect only if the charges against the suspect have been proven beyond reasonable doubt.
Following are some Rights of Suspect under ICC:
- They have a Right of a public, fair, and impartial hearing of the matter.
- Suspects have a Right to be get defended by the lawyer of their wish.
- Suspects have a Right to show proofs and witnesses of their own choice.
- Suspects can use a language in which they are comfortable and can understand, speak clearly.
- The suspect has a Right to know about all the charges against him.
- The suspect has a Right to have sufficient time and facilities for the preparation of the case and to connect freely and in confidence with the attorney.
- The suspect has Right to be tried in front of court without any delay.
- The suspect cannot be forced to give evidence or to admit guilt and to remain silent.
- In case, the suspect is not having the means to pay for legal assistance he/she has the Right to get legal assistance from the court.
After Rome Statute was enforced it was clear that the ICC will be facing difficulties. There are some serious challenges which have been faced by the court:
Challenges & Loopholes
- There are many grounds on which court must upgrade and make its own work more systematic.
- The International Criminal Court needs more acceptance and more state members.
- A particularly major challenge for ICC was mandatory provision for providing safety to the witnesses & the sufferer. Witnesses and victims of African states like Uganda, Sudan, Kenya, which are ready for testifying are generally at greater danger & faces concrete warnings & threats.
- ICC totally depends on its member state. Lack of executive powers is another challenge faced by ICC.
- Since 2008, it has become more particularly observable that some state parties try to reduce funding for the court. This is a major challenge faced by the ICC as funding is mostly done by member states.
- The Rome Statute of the International Criminal Court has no enforcement mechanism for the state parties which do not coordinate with the court.
The ICC is generally criticized for biasness, it is criticized for punishing commanders of small and powerless states while avoiding crimes committed by richer and strong states. Till 2016 all the 9 cases which the ICC was working on were of African countries. The U.S. department of state proclaims that there are inadequate checks and balances on the authority of ICC’s judges and prosecutors. The International Criminal Court was set up for removing the load of requesting & supervising the investigation & prosecution of International Criminal Law infringement from the UN Security Council.
The ICC is usually blamed for being ineffective, incapable & expensive, given judgement only of 4 convictions which are (Katanga, Thomas Lubanga, Jaen Pierre Bemba & Al Mahdi) in fifteen years of period. International Criminal Court also faces difficulties which are sometimes unnoticed. Before a case is prepared against an individual the Office of Prosecutor should investigate the condition in country to examine if the court can act to determine the accused & to make case contrary to them.
Genocide cases, war crimes & crimes against humanity are very complicated & involve dealing with big volumes of proofs from an overseas authority. As it is noticeable from an ad hoc panel which opposed to the International Criminal Court are attentive on very 1st spot only. The International panel for the past Yugoslavia & the International Criminal panel for Rwanda, these types of matters take time & resource.
The International Criminal Court is many times in highlight not for its role in tackling impunity but for the desertion of its state members. South Africa has informed its intent to withdraw from the Rome Statute. India has not yet signed the Rome Statute, but attended the conference of Rome Statute which was held in 1998. India is amongst those countries which have neither signed nor accepted the Rome Statute of the ICC.
The government of India has frequently opposed the ICC. India with holds in the vote adopting the Rome Statute in 1998.The main reason of not accepting the Rome Statute is that the Rome Statute of the ICC defines war crimes including the ‘Armed Conflict not of an international character’. The insertion of armed dispute not of Global nature for describing war crime in the Article eight of Rome Statute for ICC has meet up with refusal by Indian Government.
Reasons for Rejections of Indian Government to the Rome Statute
- It makes the ICC inferior from the UN Security Council & there are many governmental interventions by giving it the authority to transfer cases to ICC and the authority to stop ICC’s hearings.
- Give exceptional powers to the UN Security Council for binding non state parties to ICC; this infringes basic concept of the Vienna convention of law of treaties that no country shall be forced to accept an agreement or to be restrained by the provisions of an agreement it has not approved.
- Blurred lawful difference among normative customary law & treaty responsibility especially in respect of interpretation of crime against humanity & their relevancy to private conflicts, putting countries in apposition of being bound to concur through the Rome Statute to provisions of Global treaties which they have not signed.
- Allows no reservation or withdraw provisions to empower state for safeguarding their involvement id placed in the above matter.
- Awkwardly vested wide capacity & power to start investigations & target jurisdiction of the court in the hand of a specific prosecutor.
- Declines to designate the usage of nuclear arms & ammunition & terrorism among offence within the fight of ICC, as suggested by India.
The Prosecutor v. Mathieu N. Chui
Judgement in accordance with Article 74 of the Rome Statute.
Mathieu N. Chui was claimed as chief of Front Des Nationalist et Integrationnistes (Fni). He was alleged of three offence committed against humanity & 7 war crime for which he was relieved by the second trial chamber of ICC.
He was accused of committing:
- Three crimes against humanity which were- Murder under Article 7(1)(a) of the statute, sexual slavery, and rape under Article 7(1)(g) of the statute.
- Seven war crimes which were- Using children below the age of 15 to take active part in hostilities under Article 8(2)(b)(xxvi) of the statute, intentionally directing an attack over a civilian population as such of an individual civilians or against individual civilian not taking direct part in hostilities under Article 8(2)(b)(i), wilful killing under Article 8(2)(a)(i), destruction of estate in Article Eight (two)(b)(xiii), pillaging in Article Eight (two)(b)(xvi), sexual slavery & rape in Article Eight (two)(b)(xxii) of the statute.
The hearing was started in Nov. 2009 & continued till 18 /12 /2012 where in the judgement was given that N. Chui will be released because of court’s judgement for not convicting the defendant without genuine evidence. He was free from custody on 21/12/2012 & this decision was appealed by the office of the prosecutor on 27th February 2015, the appeal chamber sticks to the decision of the trial chamber ii of acquitting Ngudjolo Chui.
Through this verdict the court gave a simple and clear message that ICC will be unwilling for convicting an accuse person if there are no proper substantive and meticulous evidence.
The Prosecutor v. Thomas Lubanga Dyilo
Thomas Lubanga Dyilo was indicted on 10th February, 2006 for three counts of war crimes. Lubanga Dyilo was also accused of enlisting children and using them to participate actively in hostilities. All the charges against Lubanga were confirmed on 29th January, 2007. His trial was started on 26th January, 2009 and ended with a conviction of all three crimes on 14th March, 2012. He was sentenced to 14 years of imprisonment on 10th July, 2012.The appeal chamber supported the decision of both the conviction and the sentence.
Analyses and role of International Criminal Court is necessary for the world to know the importance of the court. This analysis also helps in understanding any further improvements that are required to be done for ICC. The ICC is a fixed and stable International Court established to investigate, prosecute, and try people charged for committing serious crimes.
The ICC has power to prosecute individuals for the International crimes of genocide, crimes against humanity, war crimes, and crime of aggression. ICC prosecutes serious crimes done by individuals in cases where National courts are unable to prosecute criminals or when the U.N. or individual state transfers the situation to the court. This paper reviews the background, structure, Legal process, Jurisdiction of ICC. It also reviews India’s stand on ICC and current condition of ICC (which includes challenges and criticism faced by ICC).
The ICC has very aspiring targets as it not only focuses on establishing International justice but also peace. ICC is gradually being recognised worldwide as a justifiable institution. The ICC must provide centre of attention on equality, local justice, and International Social justice to upgrade its legality and work. To enhance the effect of ICC, its member states have an important role to play in assisting the court to provide International justice.
Trials of ICC may be slow and costly, but ICC is surely revealing that it can work jointly with National and Regional courts for delivering quality justice.
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