Issuu on Google+

View with images and charts How far Establishment of International Criminal Court has been Successful? Introductory 1.1 The Ultimate goal of the Research The ultimate goal of the research is to assess the successfulness of the establishment of the International Criminal Court through evaluating its various activities from its inception. 1.2 Objective of the Research The objectives of the research are summarized in the following: • To know the story behind the establishment of the world’s first permanent International Criminal Court. • To know about the function of the different organs of the International Criminal Court. • To know about all of the key officials of the court. • To have the full knowledge about its activities. • To go through the present situation of each case referred to the International Criminal Court. • To find out its status in the international arena. • To find out the ICC’s relation with state parties, non state parties and other international organization. • To determine the successfulness of the International criminal Court. 1.3 Nature & Scope of the Research The topic of the aforesaid research is “How far establishment of International Criminal Court has been successful”. From the name of the topic it is quite obvious that the matter fall within the area of international law. As we know international law itself is a vast arena. And assessing the successfulness of anything like the International Criminal Court is such a tuff job in nature. And the scope of research of this topic is very wide to combine it in such a small frame. 1.4 Research Methodology There is no single or universal approach to legal research methodologies. The legal research may be a combination of methods for interpreting and applying legally relevant information. There are several approaches to research methodologies such as analytical, empirical, inter disciplinary, comparative, and historical.1 Here in the said research at first we applied the historical methodology of research. Because we believe without going through the history of anything there exist some sorts of incompleteness. So in the beginning it is needed to take a look about the history of establishing the international criminal court. Then we applied the analytical and empirical approaches of research. Which methodologies are important to gain reliable and valid knowledge and to explore the relationship between the theory and practice. As in this research we also tried to evaluate the success of the establishment of the 1

Dr. Abdullah Al Faruque “Essentials of legal research” page no 33


international criminal court through exploring the activities of the ICC in theory (by the review of the Rome Statute) and in practice (by concentrating on the present situation of different cases and investigations of the ICC). Summarizations: • Planning the whole research paper; • Review the entire Rome Statute and some other international instruments; • Concentrated study through lots of books, journals, some national as well as some international publications; • Web site materials; • Review the present activities and existing situations of cases referred to the ICC. Historical Antecedents 2.1 Introduction "There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance."2 The international community has long aspired to the creation of a permanent international court, and, in the 20th century, it reached consensus on definitions of genocide, crimes against humanity and war crimes. And they also felt the necessity to create an independent, permanent criminal court. The International Criminal Court (ICC), governed by the Rome Statute, is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community. On 17 July 1998, the international community reached an historic milestone when 120 States adopted the Rome Statute, the legal basis for establishing the permanent International Criminal Court. Here in this chapter we will see how folks worked and played before the international criminal court comes into existence and also its current situation. Because it is a well known saying that “By looking at what has happened in the past and the current situation of today, we can better understand what can happen in the future.” 2.2 The Establishment of the International Criminal Court The establishment of an international tribunal to judge political leaders accused of war crimes was first made during the Paris Peace Conference in 1919 by the Commission of Responsibilities. The issue was addressed again at conference held in Geneva under the auspices of the League of Nations on 1–16 November 1937, but no practical results followed. The United Nations states that the General Assembly first recognized the need for a permanent international court to deal with atrocities of the kind committed during World War II in 1948, following the Nuremberg and Tokyo Tribunals. At the request of the General Assembly, the International Law Commission drafted two statutes by the early 1950s but these were shelved as the Cold War made the establishment of an international criminal court politically unrealistic.3 2

Benjamin B. Ferencz, a former Nürnberg prosecutor


Benjamin B. Ferencz, an investigator of Nazi war crimes after World War II and the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, one of the twelve military trials held by the U.S. authorities at Nuremberg, later became a vocal advocate of the establishment of an international rule of law and of an International Criminal Court. In his first book published in 1975, entitled Defining International Aggression - The Search for World Peace, he argued for the establishment of such an international court.4 The idea was revived in 1989 when A. N. R. Robinson, then Prime Minister of Trinidad and Tobago, proposed the creation of a permanent international court to deal with the illegal drug trade. While work began on a draft statute, the international community established ad hoc tribunals to try war crimes in the former Yugoslavia and Rwanda, further highlighting the need for a permanent international criminal court. Following years of negotiations, the General Assembly convened a conference in Rome in June 1998, with the aim of finalizing a treaty. On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the United States, and Yemen. The Rome Statute became a binding treaty on 11 April 2002, when the number of countries that had ratified it reached 60. The Statute legally came into force on 1 July 2002, and the ICC can only prosecute crimes committed after that date. The first bench of 18 judges was elected by an Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the court on 1 March 2003.The court issued its first arrest warrants on 8 July 2005, and the first pre-trial hearings were held in 2006.5 2.3 Its Member The Rome Statute is an international treaty, binding only on those States which formally express their consent to be bound by its provisions. These States then become "Parties" to the Statute. The Statute itself said the accepting state shall cooperate with the international criminal court.6 The international criminal court started its journey with the ratification of sixty countries. But as of 12 October 2010, 114 states are members of the International Criminal Court 7. Out of them 31 are African States, 15 are Asian States, 18 are from Eastern Europe, 25 are from Latin American and Caribbean States, and 25 are from Western European and other States.8 The African States which become members of the international criminal court are• Burkina Faso (30 November 1998) , • Senegal (2 February 1999), • Ghana (20 December 1999) , • Mali (16 August 2000 ), • Lesotho (6 September 2000) , 3

Gary T. Dempsey, Reasonable Doubt: The Case Against the Proposed International Criminal Court. The Cato Institute. 4 Benjamin B Ferencz , Biography 5 Please visit: http:// en.wikipedia.org Accessed on 21.9.2010 6 Article 12(3) of the Rome Statute. 7 Please visit: http: // www.coalitionfortheicc.org Accessed on 21.9.2010 8 Please visit: http:// www.icc-cpi.int Accessed on 21.9.2010


• • • • • • • • • • • • • • • • • • • • • • • • • •

Botswana( 8 September 2000 ), Sierra Leone (15 September 2000) , Gabon (20 September 2000) , South Africa (27 November 2000) , Nigeria (27 September 2001), Central African Republic( 3 October 2001), Benin (22 January 2002), Mauritius (5 March 2002), Niger (11 April 2002), Democratic Republic of the Congo (11 April 2002), Uganda (14 June 2002), Namibia ( 20 June 2002), Gambia ( 28 June 2002), United Republic of Tanzania (20 August 2002), Malawi (19 September 2002), Djibouti (5 November 2002), Zambia (13 November 2002), Guinea (14 July 2003), Congo (3 May 2004), Burundi (21 September 2004), Liberia (22 September 2004), Kenya (15 March 2005), Comoros (18 August 2006), Chad (1 January 2007), Madagascar (14 March 2008), Seychelles (10 August 2010).

The Asian States which become members of the international criminal court are• Fiji (29 November 1999), • Tajikistan (5 May 2000), • Marshall Islands (7 December 2000), • Nauru(12 November 2001), • Cyprus( 7 March 2002), • Cambodia( 11 April 2002) , • Mongolia( 11 April 2002), • Jordan(11 April 2002), • Timor-Leste (6 September 2002), • Samoa( 16 September 2002) , • Republic of Korea(13 November 2002) • Afghanistan(10 February 2003), • Japan (17 July 2007) , • Cook Islands(18 July 2008), • Bangladesh (23 March 2010). The States which from Eastern Europe are•

Croatia (21 May 2001),


• • • • • • • • • • • • • • • •

Serbia (6 September 2001), Poland (12 November 2001), Hungary (30 November 2001), Slovenia (31 December 2001), Estonia (30 January 2002), The Former Yugoslav Republic of Macedonia (6 March 2002), Bosnia and Herzegovina (11 April 2002), Slovakia (11 April 2002), Bulgaria (11 April 2002), Romania (11 April 2002), Latvia (28 June 2002), Albania (31 January 2003), Lithuania (12 May 2003), Georgia (5 September 2003), Montenegro (3 June 2006), Czech Republic (21 July 2009), Moldova (12 October 2010).

Latin American and Caribbean States are• • • • • • • • • • • • • • • • • • • • • • • • •

Trinidad and Tobago (6 April 1999), Belize (5 April 2000), Venezuela (7 June 2000), Costa Rica (30 January 2001), Argentina (8 February 2001), Dominica (12 February 2001), Paraguay (14 May 2001), Antigua and Barbuda (18 June 2001), Peru (10 November 2001), Ecuador (5 February 2002), Panama (21 March 2002), Brazil (20 June 2002), Bolivia (27 June 2002), Uruguay (28 June 2002), Honduras (1 July 2002), Colombia (5 August 2002), Saint Vincent and the Grenadines (3 December 2002), Barbados (10 December 2002), Guyana (24 September 2004), Dominican Republic (12 May 2005), Mexico (28 October 2005), Saint Kitts and Nevis (22 August 2006), Suriname (15 July 2008), Chile (29 June 2009), Saint Lucia (18 August 2010),

Western European and Other States are-


• • • • • • • • • • • • • • • • • • • • • • • • •

San Marino (13 May 1999), Italy (26 July 1999), Norway (16 February 2000), Iceland (25 May 2000), France (9 June 2000), Belgium (28 June 2000), Canada (7 July 2000), New Zealand (7 September 2000), Luxembourg (8 September 2000), Spain (24 October 2000), Germany (11 December 2000), Austria (28 December 2000), Finland (29 December 2000), Sweden (28 January 2001), Andorra (30 April 2001), Denmark (21 June 2001), Netherlands (17 July 2001), Liechtenstein (2 October 2001), United Kingdom (4 October 2001), Switzerland (12 October 2001), Portugal (5 February 2002), Ireland (11 April 2002), Greece (15 May 2002), Australia (1 July 2002), Malta (29 November 2002).9

Among all of the above countries it is Moldova, which ratified the ICC Statute on 12 October 2010, will become the 114th state party on 1 January 2011.10 A further 34 countries have signed but not ratified the Rome Statute, 11 and the law of treaties obliges these states to refrain from “acts which would defeat the object and purpose” of the treaty.12 Three of these states—Israel, Sudan and the United States, —have "unsigned" the Rome Statute, indicating that they no longer intend to become states parties and, as such, they have no legal obligations arising from their signature of the statute. 13 A number of states, including China and India are critical of the court and have not signed the Rome Statute. 2.4 Its Head office The ICC is an independent international organization, and is not part of the United Nations system. The official seat of the court is in The Hague, Netherlands (the host state) but its proceedings may take place anywhere as it has been said by the statute itself.14

9

Please visit http://icc-cpi.int

Accessed on 21.9.2010

10 ICC official press release, dated on 14.10.2010. 11

Please visit http://en.wikipedia.org Article 18 of The 1969 Vienna Convention on the Law of Treaties 13 Please visit http://www.heritage.org 14 Article 3 of the Rome Statute 12


The International Criminal Court is currently housed in interim premises on the eastern border of the city of The Hague in The Netherlands. The host state, The Netherlands, is providing the building known as the “Arc” free of charge until 2012. The interim premises do not fulfill the Court’s requirements in terms of office space and security in the long term, and permanent premises are therefore envisaged. Permanent premises are to be built on the site of the Alexanderkazerne, a former military barracks complex on the outskirts of The Hague near Scheveningen. The site is to be provided free of charge by the Host State.15 2.5 Its President There are three presidents in the international criminal court. One is president, one is first vice president and one is second vice president. They are responsible for the proper administration of the Court, with the exception of issues concerning the Office of the Prosecutor. The first president of the international criminal court was Mr.Phillippe Kirsch who acted as the president from 2003 to 2009.16 On 11 March 2009 the judges of the International Criminal Court (ICC) elected Judge Sang-Hyun Song from Republic of Korea as the new President of the Court. Judge Fatoumata Dembele Diarra from Mali was elected as First Vice-President and Judge Hans-Peter Kaul from Germany as Second Vice-President of the international criminal court. All three were elected by an absolute majority for a term of three years. 17 As provided in the Rome Statute 18, the First Vice-President shall act in place of the President in the event that the President is unavailable or disqualified. The Second Vice-President shall act in place of the President in the event that both the President and the First Vice-President are unavailable or disqualified. 2.6 Its Language Regarding the language of the international criminal court there is an individual article contain in its statute. According to this languages are divided particularly for official and working purpose as Official and working languages.19 Regarding the official language of the court The Article said, the official languages of the Court shall be Arabic, Chinese, English, French, Russian and Spanish. The judgments of the Court, as well as other decisions resolving fundamental issues before the Court, shall be published in the official languages too.20 Regarding the working languages of the Court the same Article further said that, the working languages of the court shall be English and French. The Rules of Procedure and Evidence shall determine the cases in which other official languages may be used as working languages.21 Beside the above rules there is also an other option open for any party that is at the request of any party to a proceeding or a State allowed to intervene in a proceeding, the Court shall 15

Please visit http://www.iccnow.org Please visit http://en.wikipedia.org 17 ICC Press Release on 11.03.2009. 18 Article 38 of the Rome Statute. 19 Article 50 of the Rome Statute. 20 Article 50(1) of the Rome Statute. 21 Article 50(2) of the Rome Statute. 16


authorize a language other than English or French to be used by such a party or State, provided that the Court considers such authorization to be adequately justified.22 2.7 Its Finance The ICC is primarily financed by the contributions from the states parties. But as it has been said in the statute that, the Court may receive and utilize, additional funds, voluntary contributions from Governments, international organizations, individuals, corporations and other entities, in accordance with relevant criteria adopted by the Assembly of States Parties23. So the court also receives voluntary contributions other than the state parties. The amount payable by each state party is determined using the same method as the United Nations: each state's contribution is based on the country’s capacity to pay, which reflects factors such as a national income and population. The maximum amount a single country can pay in any year is limited to 22% of the court's budget; Japan paid this amount in 2008. The court spent €80.5 million in 2007, and the Assembly of States Parties has approved a budget of €90,382,100 for 2008 and €101,229,900 for 2009.24 2.8 Miscellaneous The Rome Statute also contains provision relating to withdrawal from being a state party. A State Party may, by written notification addressed to the Secretary-General of The United Nations, withdraw from this Statute and such withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.25 Structural Basis of the International Criminal Court 3.1 Introduction A committee is organic rather than mechanical in its nature: its structure is like a plant. It takes root and grows, it flowers, wilts, and dies, scattering the seed from which other committees will bloom in their turn.26 It is necessary for any Committee, Organization, or Institution to have its own structure based on which such Committee Organization or Institution will be run in the future days. Likewise the International Criminal Court also has its own individual structure. And in this chapter we will see the structure of the International Criminal Court in details. The International Criminal Court (ICC) is governed by an Assembly of States Parties. The court consists of four organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.27 3.2 Assembly of State Parties

22

Article 50(3) of the Rome Statute. Article 116 of the Rome Statute. 24 Please visit http://en.wikipedia.org 25 Article 127(1) of the Rome Statute. A saying of Mr. C. Northcote Parkinson 27 Article 34 of the Rome Statute 23

26


The court's management oversight and legislative body, the Assembly of States Parties, consists of one representative from each state party. Each state party has one vote and "every effort" has to be made to reach decisions by consensus. If consensus cannot be reached, decisions are made by vote.28 The Assembly is presided over by a president and two vicepresidents, who are elected by the members to three-year terms.29 The Assembly meets in full session once a year in New York or The Hague, and may also hold special sessions where circumstances require. Sessions are open to observer states and non-governmental organizations.30 The Assembly elects the judges and prosecutors, decides the court's budget, adopts important texts (such as the Rules of Procedure and Evidence), and provides management oversight to the other organs of the court. The Rome Statute allows the Assembly to remove from office a judge or prosecutor who "is found to have committed serious misconduct or a serious breach of his or her duties" or "is unable to exercise the functions required by this Statute".31 The states parties cannot interfere with the judicial functions of the court.32 Disputes concerning individual cases are settled by the Judicial Divisions. At the seventh session of the Assembly of States Parties in November 2008, the Assembly decided that the Review Conference of the Rome Statute shall be held in Kampala, Uganda, during the first semester of 2010.33 3.3 Presidency The Presidency is one of the four Organs of the Court. It is composed of the President and First and Second Vice-Presidents, all of whom are elected by an absolute majority of the Judges of the Court for a three year renewable term. The judges composing the Presidency serve on a full-time basis. The Presidency is responsible for the overall administration of the Court, with the exception of the Office of the Prosecutor, and for specific functions assigned to the Presidency in accordance with the Statute. 34 According to article 38 of the Rome Statute, the judges of the Court elected the Presidency on 11 March 2009. It is composed of • • •

28

Judge Sang-Hyun SONG (Republic of Korea), President Judge Fatoumata Dembele DIARRA (Mali), First Vice-President Judge Hans-Peter KAUL (Germany), Second Vice-President

Article 112 of the Rome Statute Article 112(3) of the Rome Statute 30 Please visit http://www.amnesty.org Accessed on 15 November 2010 31 Article 46 of the Rome Statute 32 Coalition for the International Criminal Court. Assembly of States Parties. Please visit http://www.iccnow.org . Accessed on 15 November 2010 33 Uganda to host Rome Statute Review Conference, Please visit http://www.haguejusticeportal.net Accessed on 15 November 2010 34 Please visit http://www.icc-cpi.int Accessed on 15 November 2010 29


The Presidency will coordinate and seek the concurrence of the Prosecutor on all matters of mutual concern. 3.4 Judicial Divisions The Judicial Divisions consist of the 18 judges of the court, organized into three divisions— the Pre-Trial Division, Trial Division and Appeals Division—which carry out the judicial functions of the court. The judges of each Division sit in Chambers which are responsible for conducting the proceedings of the Court at different stages.35 The Judges are elected to the court by the Assembly of States Parties. They serve nine-year terms and are not generally eligible for re-election. All judges must be nationals of states parties to the Rome Statute, and no two judges may be nationals of the same state. They must be “persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices”.36 The Prosecutor or any person being investigated or prosecuted may request the disqualification of a judge from "any case in which his or her impartiality might reasonably be doubted on any ground". Any request for the disqualification of a judge from a particular case is decided by an absolute majority of the other judges 37. A judge may be removed from office if he or she "is found to have committed serious misconduct or a serious breach of his or her duties" or is unable to exercise his or her functions. The removal of a judge requires both a two-thirds majority of the other judges and a two-thirds majority of the states parties.38 3.5 Office of the Prosecutor The Office of the Prosecutor is responsible for conducting investigations and prosecutions. It is headed by the Prosecutor, who is assisted by two Deputy Prosecutors. The Rome Statute provides that the Office of the Prosecutor shall act independently; as such, no member of the Office may seek or act on instructions from any external source, such as states, international organizations, non-governmental organizations or individuals. The Prosecutor may open an investigation under three circumstances:39 • • •

when a situation is referred to him by a state party; when a situation is referred to him by the United Nations Security Council, acting to address a threat to international peace and security; or When the Pre-Trial Chamber authorizes him to open an investigation on the basis of information received from other sources, such as individuals or non-governmental organizations.

Any person being investigated or prosecuted may request the disqualification of a prosecutor from any case "in which their impartiality might reasonably be doubted on any ground". 40 Requests for the disqualification of prosecutors are decided by the Appeals Division. A 35

Ibid Article 36 of the Rome Statute 37 Article 41 of the Rome Statute 38 Article 46 of the Rome Statute 39 International Criminal Court. Office of the Prosecutor. Please visit http://www.icc-cpi.int Accessed on 15 November 2010 40 Article 42 of the Rome Statute 36


prosecutor may be removed from office by an absolute majority of the states parties if he or she "is found to have committed serious misconduct or a serious breach of his or her duties" or is unable to exercise his or her functions. 41 However, critics of the court argue that there are “insufficient checks and balances on the authority of the ICC prosecutor and judges” and “insufficient protection against politicized prosecutions or other abuses”. Henry Kissinger says the checks and balances are so weak that the prosecutor “has virtually unlimited discretion in practice”.42 As of October 2009, the Prosecutor is Luis Moreno Ocampo of Argentina, who was elected by the Assembly of States Parties on 21 April 2003 for a term of nine years.43 3.6 Registry The Registry is responsible for the non-judicial aspects of the administration and servicing of the court. This includes, among other things, “the administration of legal aid matters, court management, victims and witness’s matters, defense counsel, detention unit, and the traditional services provided by administrations in international organizations, such as finance, translation, building management, procurement and personnel”.44 The Registry is headed by the Registrar, who is elected by the judges to a five-year term. The current Registrar is Silvana Arbia, who was elected on 28 February 2009 3.7 Other Offices & Detention Unit As we know from the previous chapter that the official seat of the court is in The Hague, Netherlands, but its proceedings may take place anywhere. The ICC also maintains a liaison office in New York and field offices in places where it conducts its activities. As of 18 October 2007, the court had field offices in Kampala, Kinshasa, Bunia, Abéché and Bangui.45 The ICC's detention centre comprises twelve cells on the premises of the Scheveningen branch of the Haaglanden Penal Institution, The Hague suspects held by the International Criminal Tribunal for the former Yugoslavia are held in the same prison and share some facilities, like the fitness room, but have no contact with suspects held by the ICC. 46 The detention unit is close to the ICC's future headquarters in Alexanderkazerne. As of October 2009, the detention centre houses five suspects: Thomas Lubanga, Germain Katanga, Mathieu Ngudjolo Chui, Jean-Pierre Bemba and former Liberian President Charles Taylor. Taylor is being tried under the mandate and auspices of the Special Court for Sierra Leone,47 but his trial is being held at the ICC's facilities in The Hague because of political and security concerns about holding the trial in Freetown.48 41

Article 46 of the Rome Statute Henry A. Kissinger. “The Pitfalls of Universal Jurisdiction”. Page 95. 43 International Criminal Court, 24 April 2003. Election of the Prosecutor. Accessed on 25 November 2010 44 International Criminal Court. The Registry. Accessed on 15 November 2010 45 International Criminal Court, 18 October 2007. The Registrar Inaugurates the ICC Field Office in Bangui Accessed 20 November 2010 46 Emma Thomason, 28 February 2006. “ICC says cells ready for Uganda war crimes suspects”, Reuters. Please visit http://www.publicinternationallaw.org Accessed on 20 November 2010 47 BBC News, 20 June 2006. Q&A: Trying Charles Taylor. Please visit http://www.bbc.co.uk Accessed on 20 November 2010 48 Alexandra Hudson, 31 May 2007. "Warlord Taylor's home is lonely Dutch prison". Reuters. Please visit http://www.alertnet.org Accessed on 20 November 2010 42


3.8 Miscellaneous Apart from above mentioned offices the International Criminal Court also includes a number of semi-autonomous offices such as the Office of Public Counsel for victims and the Office of Public Counsel for Defense. These Offices fall under the Registry for administrative purposes but otherwise function as wholly independent offices. The Assembly of States Parties has also established a Trust Fund for the benefit of victims of crimes within the jurisdiction of the Court and the families of these victims.49 Function & Jurisdictional Competency of the International Criminal Court 4.1 Introduction The normal or special action of the court we known as function where jurisdiction is the court's authority to hear and decide cases. The jurisdiction and functioning of the International Criminal Court is governed by the provisions of the Rome Statute. In this chapter we will see in brief the functions and jurisdictional competency of the International Criminal Court. 4.2 Main Function of the Court As we all know the two main functions of criminal law are; to protect and to punish. And for this purpose permanent judicial body established by the Rome Statute of the International Criminal Court (1998) to prosecute individuals accused of some specific crimes. The Statute itself said that the court may exercise its functions and powers, on the territory of any State Party and, by special agreement, on the territory of any other State. 50 The International Criminal Court hears cases of the gravest breaches of international law, specifically cases of genocide, crimes against humanity, war crimes, and crimes of aggression. A case can be brought to the ICC if one or both parties is a national party to the Treaty of Rome. A case can also be recommended by the UN Security Council through a mandatory Chapter Seven resolution bypassing the signatory to the Treaty of Rome requirement. The ICC is a court of last resort and normally only acts in the most serious of cases as mentioned in above which other countries are unable or unwilling to investigate or prosecute.51 So we can say the main function of the court is to punish those who committed the most serious crimes fall within the jurisdiction of the court which are threaten to the Peace, security, and well- being of the world. 4.3 Jurisdiction of the Court The Court may exercise jurisdiction over genocide, crimes against humanity and war crimes and crime of aggression.52 These crimes are defined in detail in the Rome Statute. In addition, a supplementary text of the “Elements of Crimes� provides a breakdown of the elements of each crime.

49

Please visit http://www.icc-cpi.int Accessed on 20 November 2010 Article 4 of the Rome Statute 51 Please visit http://www.icc-cpi.int 52 Article 5 of the Rome Statute 50


The Court has jurisdiction over individuals accused of above mentioned crimes. This includes those directly responsible for committing the crimes as well as others who may be liable for the crimes, for example by aiding, abetting or otherwise assisting in the commission of a crime. The latter group also includes military commanders or other superiors whose responsibility is defined in the Statute. The Court does not have universal jurisdiction. The overall competencies of the International Criminal Court regarding its jurisdiction are discussed in the following: 4.3.1 Crimes within the jurisdiction of the court Article 5 of the Rome Statute grants the court jurisdiction over four groups of crimes, which it refers to as the “most serious crimes of concern to the international community as a whole”: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The statute defines each of these crimes except for aggression: it provides that the court will not exercise its jurisdiction over the crime of aggression until such time as the states parties agree on a definition of the crime and set out the conditions under which it may be prosecuted. In June 2010, the ICC's first review conference in Kampala, Uganda expanded the definition of "crimes of aggression" and the ICC's jurisdiction over them. The ICC will not be allowed to prosecute for this crime until at least 2017.53 Many states wanted to add terrorism and drug trafficking to the list of crimes covered by the Rome Statute; however, the states were unable to agree on a definition for terrorism and it was decided not to include drug trafficking as this might overwhelm the court's limited resources. India lobbied to have the use of nuclear weapons and other weapons of mass destruction included as war crimes but this move was also defeated. India has expressed concern that “the Statute of the ICC lays down, by clear implication, that the use of weapons of mass destruction is not a war crime. This is an extraordinary message to send to the international community.”54Some commentators have argued that the Rome Statute defines crimes too broadly or too vaguely. For example, China has argued that the definition of ‘war crimes’ goes beyond that accepted under customary international law.55 4.3.2 Territorial jurisdiction of the court During the negotiations that led to the Rome Statute, a large number of states argued that the court should be allowed to exercise universal jurisdiction. However, this proposal was defeated due in large part to opposition from the United States 56. A compromise was reached, allowing the court to exercise jurisdiction only under the following limited circumstances: •

53

where the person accused of committing a crime is a national of a state party (or where the person's state has accepted the jurisdiction of the court);

United Nations Department of Public Information, December 2002. The International Criminal Court. Accessed 23 November 2010. 54 Dilip Lahiri, 17 July 1998. Explanation of vote on the adoption of the Statute of the International Criminal Court. Embassy of India, Washington, D.C. Accessed 23 November 2010 55 Lu Jianping and Wang Zhixiang. “China's Attitude Towards the ICC” in Journal of International Criminal Justice, July 2005. 56 Elizabeth Wilmshurst, 1999. ‘Jurisdiction of the Court’, p. 136. In Roy S Lee (ed.), The International Criminal Court: The Making of the Rome Statute. The Hague: Kluwer Law International


•

where the alleged crime was committed on the territory of a state party (or where the state on whose territory the crime was committed has accepted the jurisdiction of the court); or

•

where a situation is referred to the court by the UN Security Council.57

4.3.3 Temporal jurisdiction of the court The court's jurisdiction does not apply retroactively: it can only prosecute crimes committed on or after 1 July 2002 (the date on which the Rome Statute entered into force). Where a state becomes party to the Rome Statute after that date, the court can exercise jurisdiction automatically with respect to crimes committed after the statute enters into force for that state.58 4.3.4 Complementarities The ICC is intended as a court of last resort, investigating and prosecuting only where national courts have failed. The Rome Statute provides that a case is inadmissible if: "(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court."59 Article 20, paragraph 3, specifies that, if a person has already been tried by another court, the ICC cannot try them again for the same conduct unless the proceedings in the other court: "(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice."60 So in order to take consideration of any case the International Criminal Court must notice about its aforesaid jurisdictional competency which can be said as one of the precondition of referring any case before the court. Procedure followed by the International Criminal Court 57

Articles 12 & 13 of the Rome Statute Article 11 of the Rome Statute 59 Article 17 of the Rome Statute 60 Article 20 of the Rome Statute 58


5.1 Introduction There are some specific Articles in the Rome Statute which deals with the working procedure of the International Criminal Court. This procedure can be considered as the strategic link between the Court's vision and its day-to-day operations the ultimate goal of which is to provide all a clear and easily understood plan of action required to carry out in order to fulfill the overall object of the International Criminal Court. In this chapter we will see those procedures in detail which the International Criminal Court is required to follow according to the provision of its statute. 5.2 Working Procedure of the Court As like the other statute the Rome Statute also have some provisions which speak about the whole working procedure, of the International Criminal Court which the court is bound to follow in every stage of the court’s proceeding. According to Article 53 of the Rome Statute the Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether: (a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; (b)The case is or would be admissible under article 17; and (c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. 61 After that the Prosecutor shall have the power to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses;62 The Prosecutor may also conduct investigations on the territory of a State: (a) In accordance with the provisions of Part 9; or (b) As authorized by the Pre-Trial Chamber under article 57, paragraph 3 (d). Where the Prosecutor considers an investigation to present a unique opportunity to take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for the purposes of a trial, the Prosecutor shall so inform the 61 62

Article 53(1) of the Rome Statute Article 54 of the Rome Statute


Pre-Trial Chamber.63 In that case, the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defense. 64 At the request of the Prosecutor, the Pre-Trial Chamber may issue such orders and warrants as may be required for the purposes of the investigation.65 At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that: (a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (b) The arrest of the person appears necessary: (i) To ensure the person's appearance at trial, (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings, or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.66 The warrant of arrest shall remain in effect until otherwise ordered by the Court. On the basis of the warrant of arrest, the Court may request the provisional arrest or the arrest and surrender of the person under Part 9. Upon the surrender of the person to the Court, or the person's appearance before the Court voluntarily or pursuant to a summons, the Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed, and of his or her rights under this Statute, including the right to apply for interim release pending trial. But the Pre-Trial Chamber shall also ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor. If such delay occurs, the Court shall consider releasing the person, with or without conditions.67 However within a reasonable time after the person's surrender or voluntary appearance before the Court, the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her counsel. And it must be remembered that within a reasonable time before the hearing, the person shall:

63

According to Article 34 of the Rome Statute the Judicial Divisions of the International Criminal Court organized into the Pre-Trial Division, the Trial Division and the Appeals Division 64 Article 56 of the Rome Statute 65 Article 57(3) of the Rome Statute Article 58(1) of the Rome Statute 67 Article 60 of the Rome Statute 66


(a) Be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial; and (b) Be informed of the evidence on which the Prosecutor intends to rely at the hearing.68 At the hearing, the Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. At the hearing, the person may: Object to the charges, Challenge the evidence presented by the Prosecutor, and Present evidence. The Pre-Trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. Based on its determination, the Pre-Trial Chamber shall: (a) Confirm those charges in relation to which it has determined that there is sufficient evidence, and commit the person to a Trial Chamber for trial on the charges as confirmed; (b) Decline to confirm those charges in relation to which it has determined that there is insufficient evidence; (c) Adjourn the hearing and request the Prosecutor to consider: (i) Providing further evidence or conducting further investigation with respect to a particular charge; or (ii) Amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court. Where the Pre-Trial Chamber declines to confirm a charge, the Prosecutor shall not be precluded from subsequently requesting its confirmation if the request is supported by additional evidence. But where the Pre-Trial Chamber confirm the charges in that case after the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges. If the Prosecutor seeks to add additional charges or to substitute more serious charges, a hearing under this article to confirm those charges must be held. After commencement of the trial, the Prosecutor may, with the permission of the Trial Chamber, withdraw the charges. Once the charges have been confirmed the Presidency shall constitute a Trial Chamber which, shall be responsible for the conduct of subsequent proceedings and may exercise any function of the Pre-Trial Chamber that is relevant and capable of application in those proceedings.69 According to the Rome Statute the accused shall be present during the trial. But if the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom.70 At the commencement of the trial, the Trial Chamber shall have read to the accused the charges previously confirmed by the Pre-Trial Chamber. The Trial Chamber shall satisfy 68

Article 61(3) of the Rome Statute Article 61 of the Rome Statute 70 Article 63 of the Rome Statute 69


itself that the accused understands the nature of the charges. It shall afford him or her the opportunity to make an admission of guilt in accordance with article 65 or to plead not guilty. The Trial Chamber shall also ensure that a complete record of the trial, which accurately reflects the proceedings, is made and that it is maintained and preserved by the Registrar.71 Where the accused makes an admission of guilt and the Trial Chamber also satisfied with the admission than it shall consider the admission of guilt, together with any additional evidence presented, as establishing all the essential facts that are required to prove the crime to which the admission of guilt relates, and may convict the accused of that crime. And where the Trial Chamber is of the opinion that a more complete presentation of the facts of the case is required in the interests of justice, in particular the interests of the victims, the Trial Chamber may: (a) Request the Prosecutor to present additional evidence, including the testimony of witnesses; or (b) Order that the trial be continued under the ordinary trial procedures provided by this Statute, in which case it shall consider the admission of guilt as not having been made and may remit the case to another Trial Chamber.72 In order to convict the accused, the Court must be convinced of the guilt of the accused without any reasonable doubt. The Rome Statute also has some provisions relating to appeal and revision. According to which a decision of the International Criminal Court may be appealed by the convicted person, or the Prosecutor on that person's behalf on any of the following grounds: (i) Procedural error, (ii) Error of fact, (iii) Error of law, or (iv) Any other ground that affects the fairness or reliability of the proceedings or decision.73 So if we summarize the whole aforesaid Articles regarding the working procedure of the court than we can say States Parties or the United Nations Security Council may refer situations of crimes within the jurisdiction of the Court to the Prosecutor. The Prosecutor evaluates the available information and commences an investigation unless he determines there is no reasonable basis to proceed. The Prosecutor may also begin an investigation on his own initiative. In doing so, he receives and analyzes information submitted by a variety of reliable sources. If the Prosecutor concludes there is a reasonable basis to proceed with an investigation, he asks a Pre-Trial Chamber to authorize an investigation. The Prosecutor’s investigations cover all facts and evidence relevant to an assessment of criminal responsibility. The Prosecutor investigates incriminating and exonerating circumstance equally and fully respects the rights of the accused. During the duration of an investigation, each situation is assigned to a Pre-Trial Chamber. The Pre-Trial Chamber is responsible for the judicial aspects of proceedings. Among its functions, the Pre-Trial Chamber, on the application of the Prosecutor, may issue a warrant of arrest or a summons to appear if there are reasonable grounds to believe a person has committed a crime within the jurisdiction of 71

Article 64 of the Rome Statute Article 65 of the Rome Statute 73 Article 81 of the Rome Statute 72


the Court. Once a wanted person has been surrendered to or voluntarily appears before the Court, the Pre-Trial Chamber holds a hearing to confirm the charges that will be the basis of the trial. Following the confirmation of charges, a case is assigned to a Trial Chamber of three judges. The Trial Chamber is responsible for conducting fair and expeditious proceedings with full respect for the rights of the accused. The accused is presumed innocent until proven guilty by the Prosecutor beyond reasonable doubt. The accused has the right to conduct the defense in person or through counsel of his or her choosing. Victims may also participate in proceedings directly or through their legal representatives. Upon conclusion of the proceedings, the Trial Chamber issues its decision, acquitting or convicting the accused. If the accused is convicted, the Trial Chamber issues a sentence for a specified term of up to thirty years or, when justified by the extreme gravity of the crime and the individual circumstances of the convicted person, life imprisonment. The Trial Chamber may also order reparations to victims. Throughout the Pre-Trial and Trial phases, the accused, the Prosecutor or a concerned State may appeal decisions of the Chambers as specified by the Statute. Following the decision of the Trial Chamber, the Prosecutor or the accused may appeal the decision or sentence as provided in the Statute. Legal representatives of victims, the convicted person or bona fide owners of adversely-affected property may appeal reparations orders. All appeals are decided by the Appeals Chamber of five judges. And the whole aforesaid procedure as provided by the Rome Statute is very strictly followed by the International Criminal Court. 5.3 Rights of the Accused The Rome Statute provides that all persons are presumed innocent until proven guilty beyond reasonable doubt,74 and establishes certain rights of the accused and persons during investigations.75 These include the right to be fully informed of the charges against him or her; the right to have a lawyer appointed, free of charge; the right to a speedy trial; and the right to examine the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf. Some argue that the protections offered by the ICC are insufficient. According to one conservative think-tank, the Heritage Foundation, “Americans who appear before the court would be denied such basic constitutional rights as trial by a jury of one's peers, protection from double jeopardy, and the right to confront one's accusers.” 76 The Human Rights Watch argues that the ICC standards are sufficient, saying, “the ICC has one of the most extensive lists of due process guarantees ever written”, including “presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; right to be present at trial; right to have charges proved beyond a reasonable doubt; and protection against double jeopardy”.77 According to David Scheffer, who led the US delegation to the Rome Conference (and who voted against adoption of the treaty), “when we were negotiating the Rome treaty, we always kept very close tabs on, ‘Does this meet U.S. constitutional tests, the formation of this court and the due process rights that are accorded defendants?’ And we were very confident at the end of Rome that those due process rights, in fact, are protected, and that this treaty does meet a constitutional test.” Mr. Scheffer's opinion on whether the 74

Article 66 of the Rome Statute The rights of persons during an investigation are provided in Article 55. Rights of the accused are provided in Part 6, especially in Article 67 of the Rome Statute 76 Brett D. Schaefer. Please visit http://www.heritage.org Accessed on 25 November 2010 77 Human Rights Watch. Myths and Facts About the International Criminal Court. Accessed 25 November 2010 Please visit http://www.hrw.org 75


treaty satisfies the requirements of the U.S. Constitution is simply the opinion of a diplomat; no U.S. court has opined on the issue leaving it open to dispute.78 To ensure “equality of arms” between defense and prosecution teams, the ICC has established an independent Office of Public Counsel for the Defense (OPCD) to provide logistical support, advice and information to defendants and their counsel. 79 The OPCD also helps to safeguard the rights of the accused during the initial stages of an investigation. 80However, Thomas Lubanga's defense team say they have been given a smaller budget than the Prosecutor and that evidence and witness statements have been slow to arrive.81 5.4 Victims Participation & Reparation One of the great innovations of the Statute of the International Criminal Court and its Rules of Procedure and Evidence is the series of rights granted to victims. 82 For the first time in the history of international criminal justice, victims have the possibility under the Statute to present their views and observations before the Court. Participation before the Court may occur at various stages of proceedings and may take different forms. Although it will be up to the judges to give directions as to the timing and manner of participation. Participation in the Court's proceedings will in most cases take place through a legal representative and will be conducted in a manner which is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial. The victim-based provisions within the Rome Statute provide victims with the opportunity to have their voices heard and to obtain, where appropriate, some form of reparation for their suffering. It is this balance between retributive and restorative justice that will enable the ICC, not only to bring criminals to justice but also to help the victims themselves obtain justice. Article 43(6) establishes a Victims and Witnesses Unit to provide "protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court and others who are at risk on account of testimony given by such witnesses." Article 68 sets out procedures for the "Protection of the victims and witnesses and their participation in the proceedings.” The court has also established an Office of Public Counsel for Victims, to provide support and assistance to victims and their legal representatives.83 Article 79 of the Rome Statute establishes a Trust Fund to make financial reparations to victims and their families. 5.4.1 Participation of victims in proceedings 78

Please visit http://en.wikipedia.org Accessed on 25 November 2010 Katy Glassborow, 21 August 2006. “Defending the Defenders” please visit http:www.globalpolicy.org Accessed on 25 November 2010 80 Please visit http://www.derechos.org Accessed on 25 November 2010 81 Stephanie Hanson, 17 November 2006. Africa and the International Criminal Court Please visit http://www.cfr.org Accessed on 25 November 2010 82 Ilaria Bottigliero, April 2003. "The International Criminal Court — Hope for the Victims” please visit http://www.sgiquarterly.org 83 Please visit http://www.icc-cpi.int Accessed on 25 November 2010 79


The Rome Statute contains provisions which enable victims to participate in all stages of the proceedings before the Court. Hence victims may file submissions before the Pre-Trial Chamber when the Prosecutor requests its authorization to investigate. They may also file submissions on all matters relating to the competence of the Court or the admissibility of cases. More generally, victims are entitled to file submissions before the Court chambers at the pretrial stage, during the proceedings or at the appeal stage. The rules of procedure and evidence stipulate the time for victim participation in proceedings before the Court. They must send a written application to the Court Registrar and more precisely to the Victims' Participation and Reparation Section, which must submit the application to the competent Chamber which decides on the arrangements for the victims' participation in the proceedings. The Chamber may reject the application if it considers that the person is not a victim. Individuals who wish to make applications to participate in proceedings before the Court must therefore provide evidence proving they are victims of crimes which come under the competence of the Court in the proceedings commenced before it. The Section prepared standard forms and a booklet to make it easier for victims to file their petition to participate in the proceedings. It should be stipulated that a petition may be made by a person acting with the consent of the victim, or in their name when the victim is a child or if any disability makes this necessary. Victims are free to choose their legal representative who must be equally as qualified as the counsel for the defense (this may be a lawyer or person with experience as a judge or prosecutor) and be fluent in one of the Court's two working languages (English or French). To ensure efficient proceedings, particularly in cases with many victims, the competent Chamber may ask victims to choose a shared legal representative. If the victims are unable to appoint one, the Chamber may ask the Registrar to appoint one or more shared legal representatives. The Victims' Participation and Reparation Section is responsible for assisting victims with the organization of their legal representation before the Court. When a victim or a group of victims does not have the means to pay for a shared legal representative appointed by the Court, they may request financial aid from the Court to pay counsel. Counsel may participate in the proceedings before the Court by filing submissions and attending the hearings.84 The Registry, and within it the Victims' Participation and Reparation Section, has many obligations with regard to notification of the proceedings to the victims to keep them fully informed of progress. Thus, it is stipulated that the Section must notify victims, who have communicated with the Court in a given case or situation, of any decisions by the Prosecutor not to open an investigation or not to commence a prosecution, so that these victims can file submissions before the Pre-Trial Chamber responsible for checking the decisions taken by the Prosecutor under the conditions laid down in the Statute. The same notification is required before the confirmation hearing in the Pre-Trial Chamber to allow the victims to file all the submissions they require. All decisions taken by the Court are then notified to the victims who participated in the proceedings or to their counsel. The Victims' Participation and Reparation Section has wide discretion to use all possible means to give adequate publicity to 84

Please visit http://en.wikipedia.org Accessed on 25 November 2010


the proceedings before the Court (local media, requests for co-operation sent to Governments, aid requested from NGOs or other means).85 5.4.2 Reparation for victims For the first time in the history of humanity, an international court has the power to order an individual to pay reparation to another individual; it is also the first time that an international criminal court has had such power. Pursuant to the Rome Statute the Court may lay down the principles for reparation for victims, which may include restitution, indemnification and rehabilitation. 86 On this point, the Rome Statute of the International Criminal Court has benefited from all the work carried out with regard to victims, in particular within the United Nations. The Court must also enter an order against a convicted person stating the appropriate reparation for the victims or their beneficiaries. This reparation may also take the form of restitution, indemnification or rehabilitation. The Court may order this reparation to be paid through the Trust Fund for Victims, which was set up by the Assembly of States Parties in September 2002. To be able to apply for reparation, victims have to file a written application with the Registry, which must contain the evidence laid down in Rule 94 of the Rules of Procedure and Evidence. The Victims' Participation and Reparation Section prepared standard forms to make this easier for victims. They may also apply for protective measures for the purposes of confiscating property from the persons prosecuted. The Victims' Participation and Reparation Section is responsible for giving all appropriate publicity to these reparation proceedings to enable victims to make their applications. These proceedings take place after the person prosecuted has been declared guilty of the alleged facts. The Court has the option of granting individual or collective reparation, concerning a whole group of victims or a community, or both. If the Court decides to order collective reparation, it may order that reparation to be made through the Victims' Fund and the reparation may then also be paid to an inter-governmental, international or national organization. Leading Cases & Investigations of the International Criminal Court 6.1 Introduction Pursuant to the Rome Statute, the Prosecutor can initiate an investigation on the basis of a referral from any State Party or from the United Nations Security Council. In addition, the Prosecutor can initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court received from individuals or organizations (“communications”). To date, three States Parties to the Rome Statute – Uganda, the Democratic Republic of the Congo and the Central African Republic – have referred situations occurring on their 85 86

Please visit http://www.icc-cpi.int Accessed on 25 November 2010 Article 75 of the Rome Statute


territories to the Court. In addition, the Security Council has referred the situation in Darfur, Sudan – a non‐State Party. After a thorough analysis of available information, the Prosecutor has opened and is conducting investigations in all of the above-mentioned situations. On 31 March 2010, Pre-Trial Chamber II granted the Prosecution authorization to open an investigation proprio motu in the situation of Kenya.87 Here in this chapter we will see all the cases referred to the ICC by the above mentioned States. 6.2 Case referred by Uganda The only case referred to the ICC by Uganda is The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen which is currently being heard before Pre-Trial Chamber II. In December 2003, the government of Uganda, a state party, referred to the Prosecutor the situation concerning the Lord’s Resistance Army in Northern Uganda.88 In this case, five warrants of arrest have been issued against the five top members of the Lords Resistance Army (LRA). On 8 July 2005, the court issued its first arrest warrants for the Lord's Resistance Army leader Joseph Kony, his deputy Vincent Otti, and LRA commanders Raska Lukwiya, Okot Odiambo, and Dominic Ongwen.89 Lukwiya was killed in battle on 12 August 2006,90 and Otti was killed in 2007, apparently by Kony. 91 Following the confirmation of the death of Mr Lukwiya, the proceedings against him have been terminated. The four remaining suspects are still at large.92 The LRA's leaders have repeatedly demanded immunity from ICC prosecution in return for an end to the insurgency.93 The government of Uganda says it is considering establishing a national criminal tribunal that meets international standards, thereby allowing the ICC warrants to be set aside.94 6.3 Cases referred by Democratic Republic of the Congo In March 2004, the government of the Democratic Republic of the Congo, a state party, referred to the Prosecutor “the situation of crimes within the jurisdiction of the Court allegedly committed anywhere in the territory of the DRC since the entry into force of the Rome Statute, on 1 July 2002.” 95 Among all cases referred by Democratic Republic of the Congo three cases are being heard before the relevant Chambers: The Prosecutor v. Thomas Lubanga Dyilo; The Prosecutor v. 87

Please visit http://www.icc-cpi.int International Criminal Court, 29 January 2004. President of Uganda refers situation concerning the Lord's Resistance Army (LRA) to the ICC. Accessed on 21 November 2010 89 International Criminal Court, 14 October 2005. Warrant of Arrest unsealed against five LRA Commanders. Accessed on 23 November 2010 90 International Criminal Court, 11 July 2007. Decision to Terminate the Proceedings against Raska Lukwiya Accessed on 23 November 2010 91 Please visit http://news.bbc.co.uk Accessed on 23 November 2010 92 Please visit http://www.icc-cpi.int Accessed on 23 November 2010 93 Human Rights Watch: Ugandan rebels must face justice, even if not before international court. Please visit http://www.pr-inside.com Accessed on 23 November 2010 94 Please visit http://en.wikipedia.org Accessed on 24 November 2010 95 International Criminal Court, 19 April 2004. Prosecutor receives referral of the situation in the Democratic Republic of Congo. Accessed on 25 November 2010 88


Bosco Ntaganda; The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui and The Prosecutor v. Callixte Mbarushimana. Two cases are at the pre-trial stage, while the proceedings against Thomas Lubanga Dyilo are at the trial stage. And this is the first and only case of the ICC which reach at the Trial Stage till today. It was on 17 March 2006, Thomas Lubanga, former leader of the Union of Congolese Patriots militia in Ituri, he became the first person to be arrested under a warrant issued by the court, for allegedly responsible, as co-perpetrator, of war crimes consisting of: a. Enlisting and conscripting of children under the age of 15 years into the Forces patriotiques pour la libération du Congo (Patriotic Forces for the Liberation of Congo) (FPLC) and using them to participate actively in hostilities in the context of an international armed conflict from early September, 2002 to 2 June, 2003 (punishable under article 8(2)(b)(xxvi) of the Rome Statute); b. Enlisting and conscripting children under the age of 15 years into the FPLC and using them to participate actively in hostilities in the context of an armed conflict not of an international character from 2 June, 2003 to 13 August, 2003 (punishable under article 8(2) (e)(vii) of the Rome Statute).96 His trial was due to begin on 23 June 2008, but it was halted on 13 June when the court ruled that the Prosecutor's refusal to disclose potentially exculpatory material had breached Lubanga's right to a fair trial.97 The Prosecutor had obtained the evidence from the United Nations and other sources on condition of confidentiality, but the judges ruled that the Prosecutor had incorrectly applied the relevant provision of the Rome Statute and, as a consequence, "the trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial". 98 The court lifted this suspension on 18 November 2008,99 and Lubanga's trial began on 26 January 2009. The trial before Trial Chamber I commenced on 26 January, 2009. The Prosecution concluded the presentation of this case on 14 July. Over 22 weeks, during 74 days of hearings, the Chamber heard 28 witnesses called by the Office of the Prosecutor, including three experts. The Chamber also called two other experts to testify. The defense team cross-examined all the witnesses presented by the Prosecution. On 8 July, 2010, Trial Chamber I ordered to stay the proceedings of the case considering that the fair trial of the accused is no longer possible due to non-implementation of the Chamber’s orders by the Prosecution. The judges had ordered the Office of the Prosecutor to confidentially disclose to the Defense the names and other necessary identifying information, of intermediary 143. On 8 October, 2010, the Appeals Chamber reversed Trial Chamber I’s decision considering that the Trial Chamber erred by resorting immediately to a stay of proceedings without first imposing sanctions to bring about the Prosecutor’s compliance with its orders. Currently the accused Thomas Lubanga Dyilo is in the custody of the ICC.100 96

Please visit http://www.icc-cpi.int Accessed on 25 November 2010 Please visit http://www.cfr.org Accessed on 25 November 2010 98 International Criminal Court, 13 June 2008. Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008 Accessed on 26 November 2010 99 Agence France-Presse, 18 November 2008. ICC's long-delayed first trial to start January. Please visit http://www.google.com Accessed on 26 November 2010. 100 Please visit http://www.icc-cpi.int Accessed on 25 November 2010 97


Two other Congolese rebel leaders named Germain Katanga and Mathieu Ngudjolo Chui, have also been surrendered to the court by the Congolese authorities. Both men are charged with six counts of war crimes and three counts of crimes against humanity, relating to an attack on the village of Bogoro on 24 February 2003, in which at least 200 civilians were killed, survivors were imprisoned in a room filled with corpses, and women and girls were sexually enslaved. The charges against both men include murder, sexual slavery and using children under the age of fifteen to participate actively in hostilities. Now the both are in the custody of the ICC. The another suspect Bosco Ntaganda remains at large.101 6.4 Cases of Darfur, Sudan referred by the UN In the situation in Darfur, Sudan, three cases are being heard before Pre-Trial Chamber I: The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-AlRahman (“Ali Kushayb”); The Prosecutor v. Omar Hassan Ahmad Al Bashir; The Prosecutor v. Bahar Idriss Abu Garda and The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus The suspect Bahr Idriss Abu Garda appeared voluntarily for the first time before Pre-Trial Chamber I on 18 May 2009. He is not in custody. The three other suspects remain at large. The situations of these cases in brief are given in the following: Ahmed Haroun and Ali Kushayb On 27 February 2007, the Prosecutor announced that two men—Sudanese humanitarian affairs minister Ahmad Muhammad Harun and Janjaweed militia leader Ali Kushayb—had been identified as key suspects, accused of war crimes and crimes against humanity. 102 On 2 May 2007, the court issued arrest warrants for the two men. However, Sudan says the court has no jurisdiction over this matter, and refuses to hand over the suspects.103 President al-Bashir indicted Sudanese President Omar al-Bashir, wanted by the ICC for war crimes and crimes against humanity On 14 July 2008, the Prosecutor accused Sudanese President Omar al-Bashir of genocide, crimes against humanity and war crimes. The court issued an arrest warrant for al-Bashir on 4 March 2009 for war crimes and crimes against humanity, but ruled that there was insufficient evidence to prosecute him for genocide. Al-Bashir was the first sitting head of state indicted by the ICC.104 Al-Bashir denies all the charges, describing them as "not worth the ink they are written in".105 In July 2009 the member-states of the African Union (AU) agreed not to cooperate in his arrest.106 Nevertheless, several African Union members who are also States Parties of the ICC, including South Africa and Uganda, let it be known that al-Bashir might 101

Please visit http://en.wikipedia.org Accessed on 24 November 2010 Sonja Pace, 27 February 2007. "International Court Names Top Suspects in Darfur War Crimes” Please visit http://www.voanews.com Accessed on 27 November 2010 103 Alexandra Hudson, 2 May 2007. ICC judges issue arrest warrants for Darfur suspects Please visit http://www.reuters.com Accessed on 27 November 2010 102

104

Please visit http://news.bbc.co.uk Accessed on 27 November 2010 Please visit http://www.irinnews.org Accessed on 27 November 2010 106 Please visit http://www.dw-world.de Accessed on 27 November 2010 105


be arrested if he entered their territory. However, in July and August 2010 al-Bashir traveled to Chad and Kenya, neither of which turned him over to the ICC despite being States Parties; the ICC has reported both member states to the UN Security Council and the ICC Assembly of States Parties. Second warrant of arrest: genocide On 3 February 2010, the Appeals Chamber of the ICC reversed the Pre-Trial Chamber's rejection of the genocide charge, ruling that the PTC had applied a too stringent standard of proof. Subsequently, the First Pre-Trial Chamber issued a second warrant of arrest against alBashir on 12 July 2010, in which he was charged with genocide against three ethnic groups in Darfur. Rebel leaders appear voluntarily Abu Garda On 17 May 2009, it was the first time that a suspect appeared voluntarily before the Court. Bahr Idriss Abu Garda, commander of the United Resistance Front (URF), a Darfuri rebel group, was accused of responsibility for the attack on the African Union`s peace mission in Haskanita (North-Darfur) on 29 September 2007. In this attack 12 soldiers were allegedly killed and eight injured. Abu Garda denies the charge, but reported voluntarily, stating that "every leader should co-operate with justice and observe the law". A summon was issued against Abu Garda, but no warrant of arrest. He was allowed to await the further proceedings while in liberty. On 8 February 2010, Pre-Trial Chamber I of the Court ruled that there was insufficient evidence to proceed to trial on charges against Abu Garda. On 23 April 2010, this Chamber also declined the Prosecutor`s application to appeal the decision. Under the Rome Statute, such a move to the Appeals Chamber can only be made once leave of the Pre-Trial Chamber has been granted. Both decisions do not preclude the Prosecution from subsequently requesting the confirmation of the charges against Abu Garda if such a request is supported by additional evidence. Banda and Jerbo On 16 June 2010, two other rebel leaders came voluntarily to the Court. Abdallah Banda Abakaer Nourain (Banda) and Saleh Mohammed Jerbo Jamus (Jerbo), leaders of small Darfuri rebel groups, are also charged with war crimes for their alleged roles in the attack in Haskanita described above. Prosecutor Moreno Ocampo stated that their voluntary appearance was the culmination of months of efforts to secure their co-operation. On 17 June 2010, they faced Pre-Trial Chamber I, which ruled that there are reasonable grounds for their prosecution. Just as in the case against Abu Garda, the Prosecutor has not made a request for warrants of arrest against them.107 6.5 Cases referred by the Central African Republic

107

Please visit http://en.wikipedia.org Accessed on 27 November 2010


The Central African Republic referred to the ICC the case, The Prosecutor v. Jean-Pierre Bemba Gombo which is at the pre-trial stage of the proceedings and is currently being heard before Pre-Trial Chamber II. In December 2004, the government of the Central African Republic, a state party, referred to the Prosecutor “the situation of crimes within the jurisdiction of the court committed anywhere on the territory of the Central African Republic since 1 July 2002, the date of entry into force of the Rome Statute.”108 On 22 May 2007, the Prosecutor announced his decision to open an investigation, focusing on allegations of killing and rape in 2002 and 2003, a period of intense fighting between government and rebel forces.109 On 23 May 2008, the court issued an arrest warrant for Jean-Pierre Bemba, a former Vice President of the Democratic Republic of the Congo, charging him with war crimes and crimes against humanity, committed when he interfered in the events in the Central African Republic in 2002 and 2003.He was arrested near Brussels the following day. On 3 July 2008 he was surrendered to the ICC.110 Now the case is at the pre-trial stage of the proceedings and is currently being heard before Pre-Trial Chamber II.111 6.6 Cases referred by the Republic of Kenya After the Prosecutor had sought an authorization from the Court to commence an investigation proprio motu on crimes against humanity allegedly committed in the Republic of Kenya during the events that took place between 1 June 2005 and 26 November 2009, the judges of the Pre-Trial Chamber II of the ICC, by majority, have granted on the 31 March 2010 the Prosecutor's request.112 On 6 November, 2009, the Presidency of the International Criminal Court (ICC) issued a decision assigning the situation in the Republic of Kenya to Pre-Trial Chamber II. Pre-Trial Chamber II granted the Prosecutor, on 31 March 2010, authorization to open an investigation in the situation of Kenya. 6.7 Other complaints As of 4 October 2007, the Prosecutor had received 2889 communications about alleged crimes in at least 139 countries. After initial review, however, the vast majority of these communications were dismissed as “manifestly outside the jurisdiction of the Court”.113 108

International Criminal Court, 15 December 2006. Prosecution's Report Pursuant to Pre-Trial Chamber Ill's 30 November 2006 Decision Requesting Information on the Status of the Preliminary Examination of the Situation in the Central African Republic Accessed on 27 November 2010 109 Nora Boustany, 23 May 2007. “Court Examines Alleged Abuses in Central African Republic”, Please visit http://www.washingtonpost.com Accessed on 27 November2010 110 Please visit http://en.wikipedia.org Accessed on 27 November 2010 111 Please visit http://www.icc-cpi.int Accessed on 27 November 2010 112 Press Release of the ICC (2010-31-03).ICC judges grant the Prosecutor’s request to launch an investigation on crimes against humanity with regard to the situation in Kenya. International Criminal Court. Retrieved 201001-04. 113 International Criminal Court, 18 October 2007. Report on the activities of the Court Accessed 27 November 2010


On 10 February 2006, the Prosecutor published a letter responding to complaints he had received concerning the 2003 invasion of Iraq. He noted that "the International Criminal Court has a mandate to examine the conduct during the conflict, but not whether the decision to engage in armed conflict was legal� and that the court's jurisdiction is limited to the actions of nationals of states parties. He concluded that there was a reasonable basis to believe that a limited number of war crimes had been committed in Iraq, but that the crimes allegedly committed by nationals of states parties did not appear to meet the required gravity threshold for an ICC investigation.114 Success of the International Criminal Court- An Evaluation 7.1 Introduction The birth of the International Criminal Court which is the first permanent court to prosecute individuals for Genocide, Crime against humanity, War crimes, and Crime of aggression (although the court cannot currently exercise jurisdiction over the crime of aggression) is widely acclaimed by the world in view of its immense importance in contributing to the establishment of a just, fair and equitable world. 115 As we know from the previous chapters that the court comes into existence in 2002. The ICC issued its first arrest warrants in 2006 and began its first-ever trial in 2009 with the case The Prosecutor v. Thomas Lubanga Dyilo which is still at the trial stage. The judgment of this case is expecting to have in March 2011. So it is only eight years the Court officially doing its work and activities. And to evaluate the success of THE INTERNATIONAL CRIMINAL COURT on the basis of this limited period is quite difficult. Moreover the court does not give any judgment, which could be the way of determining the role of the court in the world of justice. However in the absence of any judgment here I tried in this chapter to evaluate the success of the ICC based on the fulfillment of the object of its Statute and based on its overall activities along with its impact and ultimate outcome. 7.2 Based on the fulfillment of the object of its Statute The first and foremost object of the ICC’s statute popularly known as the Rome Statute based on which the International Criminal Court was established is recognizing those grave crimes which are threaten to the peace, security and well-being of the world. These crimes are genocide, crime against humanity, war crimes, and crime of aggression.116 And affirming these serious crimes of concern to the international community as a whole must not go unpunished and their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation. 117 Along with punishing the perpetrators of these crimes and to contribute to the prevention of such crimes. Now the matter is up to what extent the court is successful to fulfill the aforesaid object? In such case it can be said that till now the court is successful to fulfill the object of its Statute in some matter and in some is not so. For example we can say the court is exercising its jurisdiction over genocide, crime against humanity, war crimes but not over Crime of aggression though it passed eight years. Another failure of this court would lacking of universal jurisdiction. It only can exercise its jurisdiction when the state allows except the 114

Please visit http://en.wikipedia.org Accessed on 27 November 2010 Mahesh Prasad Tandon & Rajesh Tandon , Public International Law, Fifteenth Ed , 2002 P-518 116 Article 5 of the Rome Statute 117 Preamble of the Rome Statute of the International Criminal Court 115


reference of UN. Again the preamble of the statute of the ICC speaks about enhancing international cooperation but the state parties of the international criminal court themselves are not so cooperating towards the court. For instance we can say there are 114 state parties of the International Criminal Court as of 12 October 2020.118 But among this there are only four state parties referred their situation to the ICC and another situation was referred by UN for a non state party. Another thing is noticeable here the most cases referred to the ICC is from African region. In this regard Mr. Bensouda said in an interview with Newsweek that the African referrals to the ICC show "the resolve the African governments have to say that impunity must end.” 119 However beside some above said matter we can’t ignore the other side of coin that is the successfulness of the ICC on fulfilling its object. As The ICC is very keen to maintain the peace, security and well-being of the world by fulfilling its other objects, like by doing investigations and taking those cases which are serious crimes of concern to the international community as a whole. The all such cases which now handled by the ICC are against those serious crimes threaten to the international community. And when the accused will be proved for doing these crimes they will not go unpunished by the ICC. And dealing these each & every organ of the ICC doing their best for making this court more successful. 7.3 Based on its Activities The International Criminal Court’s all activities regarding the present cases have already been discussed in the previous chapter. Though the final judgment of any case has not been given yet but if we give a look the way the ICC is doing its activities like by providing various kinds of support to victims, witnesses through participating them in the proceedings , reparation for victims etc. it just tremendous itself. Beside this the court providing various right to the accused person, including: presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; right to be present at trial; right to have charges proved beyond a reasonable doubt; and protection against double jeopardy which we can see in the whole proceeding of the Lubanga’s case. Moreover we must admit the marked success of The ICC’s judiciary division in dealing with the situations in all the cases referred before the court. However Mr. Juan Méndez, director of the International Center for Transitional Justice, mentioned in an interview that the next few years would tell whether the ICC was going to be a success or failure. But observing the present activities of the court it can be said that the court is in the way of becoming a successful one. Which will be more visible after pronouncing its first judgment as hoping by the entire world. 7.4 The overall impact of the International Criminal Court According to the Rome Statute the International Criminal Court posses an international legal personality.120 Having this personality the International Criminal Court is successful to make its impact not only over its member state but also over those state not party to the statute, or other international organization. Here we will see the ICC’s impact over the non state parties and other international organization through its relation with them. 118

Please visit: http:// www.icc-cpi.int Accessed on 27 November 2020 Mr.Bensouda is the Deputy Prosecutor of the International Criminal Court Please visit http://www.cfr.org Accessed on 27 November 2010 120 Article 4 (1) of the Rome Statute 119


7.4.1 The International Criminal Court & states not party to Rome Statute One of the principles of international law is that a treaty does not create either obligations or rights for third states (pacta tertiis nec nocent nec prosunt) without their consent, and this is also enshrined in the 1969 Vienna Convention on the Law of Treaties.121 The co-operation of the non-party states with the ICC is envisioned by the Rome Statute of the International Criminal Court to be of voluntary nature. 122 However, even states that have not acceded to the Rome Statute might still be subjects to an obligation to co-operate with ICC in certain cases. When a case is referred to the ICC by the UN Security Council all UN member states are obliged to co-operate, since its decisions are binding for all of them.123 Also, there is an obligation to respect and ensure respect for international humanitarian law, which stems from the Geneva Conventions and Additional Protocol I,124 which reflects the absolute nature of IHL.125 Although the wording of the Conventions might not be precise as to what steps have to be taken, it has been argued that it at least requires non-party states to make an effort not to block actions of ICC in response to serious violations of those Conventions. In relation to cooperation in investigation and evidence gathering, it is implied from the Rome Statute that the consent of a non-party state is a prerequisite for ICC Prosecutor to conduct an investigation within its territory, and it seems that it is even more necessary for him to observe any reasonable conditions raised by that state, since such restrictions exist for states party to the Statute.126 Taking into account the experience of the ICTY (which worked with the principle of the primacy, instead of complementarity) in relation to co-operation, some scholars have expressed their pessimism as to the possibility of ICC to obtain co-operation of non-party states.127 As for the actions that ICC can take towards non-party states that do not co-operate, the Rome Statute stipulates that the court may inform the Assembly of States Parties or Security Council, when the matter was referred by it, when non-party state refuses to cooperate after it has entered into an ad hoc arrangement or an agreement with the court.128 7.4.2 The International Criminal Court & the United Nation Unlike the International Court of Justice, the ICC is legally and functionally independent from the United Nations. However, the Rome Statute grants certain powers to the United Nations Security Council. Article 13 allows the Security Council to refer to the court situations that would not otherwise fall under the court's jurisdiction (as it did in relation to the situation in Darfur, which the court could not otherwise have prosecuted as Sudan is not a state party). Article 16 allows the Security Council to require the court to defer from investigating a case for a period of 12 months.129 Such a deferral may be renewed indefinitely by the Security Council. The court cooperates with the UN in many different areas, including the exchange of information and logistical support. The court reports to the UN each year on its activities and 121

Article 34 of the Vienna Convention Article 85 (5)(a) of the Rome Statute 123 Article 25 of the UN Charter 124 Article 89 of Additional Protocol 125 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of America), Merits, Judgment, ICJ Reports 1986, p. 114, para. 220. 122

126

Article 99 of the Rome Statute Zhu, Wenqi. "On co-operation by states not party to the International Criminal Court� please visit http://www.icrc.org Accessed on 27 November 2010 128 Article 87(5) of the Rome Statute 129 Article 16 of the Rome Statute 127


some meetings of the Assembly of States Parties are held at UN facilities. The relationship between the court and the UN is governed by a “Relationship Agreement between the International Criminal Court and the United Nations”.130 7.4.3 The International Criminal Court & the Palestinian Authority On January 22, 2009, the Office of the Prosecutor of the International Criminal Court received an official communication from the Minister of Justice of the Palestinian Authority (PA), Ali Kashan, which expressed the PA's readiness to recognize the jurisdiction of the ICC over “the territory of Palestine.” The PA's declaration purported to invoke Article 12 (3) of the Rome Statute which originally established the court, which specifically enables a “state” which is not a party to the treaty to request that the ICC exercise its jurisdiction on an ad hoc basis with respect to an alleged crime on that state’s territory or involving its nationals. In other words, the PA's declaration to the Office of the Prosecutor amounted to an official request to confirm that the PA can be considered a state for purposes of ICC jurisdiction.131 7.4.4 The International Criminal Court & Bangladesh Bangladesh was one of the 120 countries that voted in favor of adoption of the Statute of the ICC in Rome in 1998. Bangladesh is the first South Asian country to have expressed interest in the International Criminal Court by signing the Rome Statute in 1999. It is yet to ratify the Statute and all efforts in this regard have been overtaken by political developments. Odhikar, a human rights organization in Bangladesh, has been campaigning for the International Criminal Court (ICC) for last few years. It organizing many regional workshop regarding the ICC and this organization focused on why the ratification of the ICC Statute is necessary for Bangladesh. And for this it is trying to create awareness in the society.132 7.5 The ultimate outcome from the International Criminal Court The progress made on establishing an International Criminal Court in less that ten years is remarkable. All of the Court’s key officials have been selected and the Court is now fully functional and conducting its first two investigations. Ratification and implementation efforts and underway in numerous countries at a rapid pace. However for more effectiveness of the court we can say ratifications and accessions must be accompanied by implementation that gives full legal effect to those principles in domestic law. Only in this way will we ensure a strong and effective International Criminal Court in a world free of “safe havens”. 8.1 Findings The International Criminal Court is designed to be a fair, independent judicial body that respects the highest standards of justice. After going through the ICC’s begining story till its 130

Please visit http://icc.now.org Accessed on 27 November 2010 Please visit: http:// en.wikipedia.org Accessed on 27 November 2010 132 Please visit http://www.odhikar.org Accessed on 27 November 2010 131


present situation we find some positive side of the court as well as some challenges for the court. If we have to speak about the positive side of the International Criminal Court we must say The ICC’s Statute contains a comprehensive list of rights enjoyed by any accused person, including: presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; right to be present at trial; right to have charges proved beyond a reasonable doubt; and protection against double jeopardy.133 In order to speak about the challenges or complications the Court faced so far in the case against Mr. Lubanga indicate that the relatively young institution still faces numeral challenges in its development process. The first years of the Court's work largely revolved around the interpretation of its constitutional and material legal texts. Building partly on the work of other courts, such as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, the ICC has managed to take international criminal law to a broader and more developed stage. So far, the Court has indicted fourteen suspects of whom seven remain fugitive; two are believed to have died; four are in custody and one appeared before the Court on a voluntary basis. The ICC booked considerable success in the first decade of its existence, but much work remains to be done. Firstly, the number of prosecutions started and effectively completed by the Court will be essential in the assessment of the Court's capabilities, as well as the image the world outside acquires of it. The prosecutorial strategy the Office of the Prosecutor presented in 2009 mentioned that over the next three years at least one new trial should commence. As MÊndez stated it is doubtful whether such a low-profile approach will have the desired effect the ICC needs on the international community. The recognition for the Court will not only depend upon the effective completion of the cases it starts, but also the number of proceedings running. Quality counts, but so does quantity. Especially states considering joining the Court might eventually be reluctant to do so if the entire budget of the Court is spend on a handful of cases. Secondly, the different backgrounds of the Court's lawyers and judges address the challenges it faces in merging different legal systems from different cultures in its own proceedings, while also the participation of victims in the proceedings of the Court - the ICC is the first international court offering this possibility - remains its difficulties in implementation, something of which the retraction of the testimony by the first witness presented by the prosecutors in the Lubanga-case as an example. The opposition of the US, Russia and China against the Court remains what is perhaps the weakest spot of the Court's overall practical and constitutional structure. All three countries are permanent members of the UN Security Council and have the ability to strengthen the Court tremendously through both their political and financial power. The United States signed the Rome Statute during President Bill Clinton's last days in office but his successor George Bush refused to ratify the treaty and nullified the American signature. In 2002, the American Congress even adopted the American Service-member Protection Act, providing the president with the possibility "to use all means necessary and appropriate to bring about the release of any person who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court."134 133 134

Popularly known as The Rome Statute based on which the International Criminal Court was established Please visit http://www.opendnews.com Accessed on 27 November 2010


Nevertheless, with the current administration in the US a slight change in approach towards the ICC is noticeable. The Obama-administration is reconsidering the aforementioned act and during the last annually Assembly of States Parties of the Court, in November 2009, the government sent its first-ever delegation since the establishment of the Court in 1998 participating in the Assembly as an observer. But where the American opposition against the ICC can be explained by the generally scrutinizing view of the US government towards international treaties, the opposition of Russia and China is perhaps more profound as it is likely to result from the fear the prosecutor might open investigations in what they consider to be national interest, such as the situations in Chechnya and Nepal. 8.2 Recommendations Dr Ahmed Zia Uddin135 in one of the Regional Conference of The ICC gave some recommendations regarding The ICC which can be summarized along with some other recommendations on part of me are as following: • ICC could be a part of academic curricula. •

People can be trained to act as experts on the ICC.

Comprehensive booklet on the ICC in respective country language.

Launching regional website on the ICC.

Comparative study on the Rome Statute and national laws of respective countries.

Identify important and influential people, like legal advisor of the Foreign Ministries, in the countries of the region who can play important role in signing and ratification.

The International Criminal Court should organize more & more awareness raising workshops and seminars worldwide in its own initiative.

The ICC should use the strong electronic media especially in every region in order to give updates and latest development of the International Criminal Court as it is a very powerful means to reach people so that it will encourage people to come before the court wanting for justice.

The State Parties of the ICC’s Statute should be more cooperative regarding its budget as well as all other side.

• •

The jurisdiction of the court should be increased. The International Criminal Court should convince more countries specially some big countries like US, China, Russia, India, Pakistan, Indonesia, Iraq , Turkey to involve to be as State Parties because without their involvement the Courts operation will be seen as quite weaker. The working procedure of the court regarding cases & investigations should be less time consuming. The ratifications and accessions of state parties must be accompanied by implementation.

• • 135

He is a Convener, Asian Network for the International Criminal Court (ANICC).


8.3 Conclusion “Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity”…136 And most perpetrators of these war crimes and crimes against humanity throughout history have gone unpunished. In spite of the military tribunals following the Second World War and the two recent ad hoc international criminal tribunals for the former Yugoslavia and for Rwanda, the same holds true for the twentieth century. The establishment of the International Criminal Court was a historic development in efforts to hold accountable perpetrators of the most serious international crimes and to deter such crimes. So in conclusion we can say with Dr. Asif Nazrul that the birth of ICC is widely acclaimed in view of its immense importance in contributing to the establishment of a just, fair and equitable world so ICC is needed to achieve justice for all, to end impunity, to help end conflicts, to remedy the deficiencies of ad hoc tribunals and to deter future war criminals.137 Every day the Court is making substantial progress in developing its capacity and exercising its core functions as this Court is the centerpiece of an emerging system of international criminal justice which includes national courts, international courts and hybrid tribunals with both national and international components. However, the Court cannot succeed alone. The work of the Court as a common endeavor, dependent on the support and cooperation of all state parties, as well as other non states, international organizations and civil society in order to establish and maintain international peace and security. As commented by the UN Secretary General on the International Criminal Court “The establishment of the Court is still a gift of hope to future generations, and a giant step forward to in the march towards universal human rights and the rule of law,” So at the very end of the entire discussion it can be said that the International Criminal Court was born as a ray of hope with lots of expectations for doing justice by punishing the most heinous criminals who acted against the peace of the world. The beginning years of the court has already been passed with lots of work like by creating different offices, its headquarter or by doing interpretation of its constitutional and material legal texts etc. but now its high time to make some implementation or execution about those promises made by its Statute expecting of which the entire world is looking before it. And then it will be easier to evaluate its success in the true meaning.

136

Preamble of the Rome Statute of the International Criminal Court Dr. Asif Nazrul , “Rome Statute and Summary of ICC Mechanism” Please visit http://www.odhikar.org Accessed on 27 November 2010 137


international criminal court