This article has been written by Kavita Chandra, a student of Vivekananda Institute Of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University, Delhi. She has discussed the role of the International Criminal Court.

Introduction

The International Criminal Court (ICC) was established in 2002 and it seeks to prosecute those who are guilty of serious international crimes like war crimes, genocide and crimes against humanity. It offers justice to the victims of atrocities and deters the individuals from committing large scale political crimes. On 1 July, 2002, after receiving more than sixty ratifications the Court began its sittings. Its headquarters are in the Netherlands at The Hague. ICC is different from the International Court of Justice as the ICC handles prosecutions of individuals whereas ICJ hears disputes between the States. The jurisdiction of the Court extends to those offences which occurred after 1 July, 2002, that were committed either by a national of the state that has ratified the agreement or in the State itself. 

But since its inception, the Court has faced setbacks and it has been unable to get support from the major powers including China, United Nations, Russia, etc. As human rights crises continue to increase rapidly, the mandate of ICJ is proving to be both intimidating and more needed than what its founders had envisioned. Although the Rome Statute was widely praised (some 140 countries had signed the agreement by the time it entered into force), few countries in the Middle East or Asia joined. 

Further, by 2002, China, Russia, and the United States had declined to participate, and the United States had threatened to withdraw its troops from the United Nations peacekeeping forces unless its citizens (both military and civilian) were exempted from prosecution by the ICC. Nevertheless, within five years of its first sitting, more than 100 countries had ratified the treaty. All member countries are represented in the Assembly of States Parties, which oversees the activities of the ICC.

What are the Court’s origins?

In the wake of World War II, Nuremberg Trials (the first international war crimes tribunal) was launched by the Allied powers to prosecute top Nazi officials. Until the 1990s, the governments did not coalesce around the idea of forming a permanent court to hold the individuals guilty for the world’s most serious crimes. To deal with war crimes in Yugoslavia and Rwanda, the United Nations had set up ad hoc international criminal tribunals, but these tribunals were considered to be inefficient and inadequate by many international law experts. Trinidad and Tobago requested that a UN commission look into the creation of a permanent court in 1989. Such efforts gained support in the following years, especially in Europe and Africa. The European Union adopted a binding policy in support of the International Criminal Court in 2011. 

In July 1998, at a conference in Rome, the founding treaty of ICC was adopted by the UN General Assembly. In July, 2001, the Rome Statute entered into force after it was ratified by more than sixty countries.

Which countries are members of the Court?

There are 123 countries which are party to the Rome Statute. Countries including Ethiopia, North Korea, Iraq, Turkey, Saudi Arabia, Indonesia, China and India never signed the treaty. Several dozen other countries signed the statute, but it was never ratified by their legislatures. These countries include Egypt, Israel, Iran, Sudan, Russia, Syria, and the US.

How does the Court work?

The ICC is based in The Hague, a city in the Netherlands that hosts many international institutions, and has field offices in several countries. The court does its investigative work through the Office of the Prosecutor, which is led by Fatou Bensouda, a lawyer from Gambia. There are eighteen judges in the Court, each judge is from a different member country and is elected by the member states. The ICC requires that its members seek a gender balanced bench and requires its judiciary to include representatives from each of the United Nations regions. The judges and prosecutors are elected for a term of 9 years and the same is non renewable. The two Vice Presidents and the President of the Court are elected from among the judges of the Court; they handle the administration of the Court along the registry. The court has jurisdiction over the following categories of crimes under international law:

• genocide, or the intention to destroy a national, ethnic, racial, or religious group in whole or in part;
• war crimes, or henious breaches of the laws of war, including the prohibitions placed by the Geneva Conventions’ on torture and attacks on civilian targets, such as schools or hospitals;
• crimes against humanity, or the violations committed through large scale attacks against the civilian populations, or violations committed as part of large-scale attacks against civilian populations, including rape, slavery, torture, imprisionment and murder; and
• crimes of aggression, or the use or threat of armed force by a State against the territorial integrity, sovereignty, or political independence of another State, or violations of the UN Charter.

The court can start investigation into the crimes in one of three possible ways: either a situation within the territory of the member country can be referred by such country to the Court; or the UN Security Council may refer a situation; or the prosecutor can “suo moto” launch an investigation into a member state. The court has the power to investigate individuals from the non member states if the offences alleged took place in the territory of a member state and if the non member state accepts the jurisdiction of the court or with the authorisation of the Security Council.

In order to open an investigation, the prosecutor must ensure that the alleged crimes are of “sufficient gravity” and he may ensure himself about the same after conducting a preliminary examination. After the investigation is opened, in order to collect evidence, the prosecutor’s office sends investigators and other staff. Before issuing the arrest warrant or summons, it must be approved by the judiciary on the basis of information provided by the prosecutor. A group of pretrial judges decide as to whether a case should be brought to trial. Defendants need to represent themselves by a counsel and they may also seek outside counsel to represent them. If necessary, the court pays for the counsel. On a trial bench, at least two out of the three judges need to vote so as to decide the conviction and sentences. The convicted persons may appeal to the ICC’s appellate bench, which consists of 5 judges.

The ICC is intended to complement the national courts, it is not made to replace the same. When national courts have been found to be unable or unwilling to try a case, only then the ICC can act. And it can only exercise jurisdiction over crimes which have been committed/occurred after the statute came into effect in 2002.

Ten key facts about the legal process

In furtherance to the key features that are listed above, some of the basics are as follows:

1. The ICC does not prosecute those who are under the age of eighteen years when a crime was committed.
2. Before a prosecutor can investigate, a preliminary examination must be conducted considering the matters such as jurisdiction, gravity, complementarity, sufficient evidence and the interests of justice.
3. While investigating, the Prosecutor must disclose and collect both incriminating and exonerating evidence.
4. The defendant would be considered innocent until he/she is proven guilty. The onus of proof lies with the Prosecutor.
5. During all stages of proceedings, that is, Pre-Trial, Trial and Appeals, it is the duty of the prosecutor that the defendant should be given all the information related to the case in a language he or she understands fully; thus the ICC proceedings are conducted in multiple languages, with teams of interpreters and translators at work.
6. Pre-Trial judges may issue warrants of arrest and have to ensure that there is enough evidence available so as to send a case for trial.
7. During the Pre-Trial phase, (before a case is committed to trial) the defendant is referred to as a suspect and not as an accused. Once the case reaches its trial stage, the defendant would be referred to as the accused as at that point the charges have been confirmed. 
8. Trial judges hear the evidence from the defence, the Prosecutor and the victims’ lawyers, render a verdict, and sentence and decision on reparations if a person is found guilty. 
9. Judges who hear appeals render decisions on appeals from the defence or Prosecutor. 
10. A case which has been closed without a verdict of guily can be reopened if the prosecutor brings on record new evidence.

How is it funded?

The ICC’s annual budget in 2017 stood around $160 million. The majority of the funding comes from member states. The largest contributions in the year 2017 came from Germany, France, Japan and the United Kingdom. Where the cases are referred to the Court by the Security Council, the UN General Assembly can approve additional funding in such cases. Voluntary contributions are also offered by some transnational organisations and governments. Some analysts criticize ICC as being too expensive.

What cases has the ICC opened?

The ICC has held more than forty individuals; all are from African countries. 16 people have been detained at The Hague, 8 have been convicted of crimes and 4 have been acquitted. The Government of Central African Republic, Uganda, Mali and the Democratic Republic of Congo have referred cases related to the civil wars and various other conflicts that have raged in these countries. The first referral to ICC was made by the UN Security Council in 2005, for alleged crimes in the Darfur region of Sudan. In 2011, the UN Security Council again made a referral for alleged crimes in Libya. In addition to this, the prosecutor’s office opened many investigations suo motu in Kenya in 2010, Georgia in 2016, Ivory coast in 2011 and Burundi in 2017. In ten countries including Afghanistan, Myanmar, Ukraine, Columbia and Venezuela, preliminary examinations have been opened by the ICC.

High-profile cases include

Muammar al-Gaddafi: The situation in Libya was referred to ICC by the Security Council in 2011, on the basis of the allegations that during the Arab Spring Protests, the Libyan Leader was responsible for killing unarmed civilians. The Court issued arrest warrants for Qaddafi as well as his brother-in-law and his son in June, 2011, but he went into hiding and before he could be apprehended, he was killed. Saif al-Islam (Qaddafi’s son) remains a fugitive.

Omar al-Bashir: Bashir, the first sitting president was indicted by the ICC for allegations of genocide, war crimes and crimes against humanity in Sudan’s Darfur region. He is accused of planning deportations of members of ethnic groups and mass killings. Bashir avoided arrest by travelling abroad after the assurances of foreign leaders that they won’t turn him in. The Sudanese military in April, 2019 ousted Bashir and placed him under arrest due to anti-government protests but they said that they won’t extradite him. Sudan’ has recently signaled that Al Bashir might appear in the ICC.

Uhuru Kenyatta: The ICC opened an investigation into violence in 2010 that killed more than 1000 people. Kenyatta and five other major political leaders were named as suspects of crimes against war and humanity. The investigation continued as Kenyatta won the presidency in 2013 with another ICC suspect William Ruto as his running mate. The charges against Kenyatta were dropped by the ICC in 2014 and the charges against Ruto were dropped in 2016. Further, the prosecutor’s office claimed that the Kenyan government was uncooperative and the tampering of witnesses made the case fall out. 

Criticism

Some believe that the court does not have much authority which makes it ineffective and inefficient at putting away war criminals while others believe that the court has too much prosecuting powers which threatens state sovereignty and that it lacks due process. Debates about the qualification of judges were also going on. On the other hand, some worry that this prospect of international justice results in prolonging conflicts by deterring criminals from surrendering. The advocates of the court have also admitted that it has shortcomings. ICC has been accused of disproportionately targeting the African continent by many African nations. The court has more than two dozen cases and most of these have dealt with the alleged crimes in African states. Kenyatta called on the members of the African Union at a 2013 summit, to take back their support from the Court. In Kenya and in other countries, the Court still maintains broad public support.

References

1. https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32011D0168&from=EN
2. https://asp.icc-cpi.int/iccdocs/asp_docs/ASP16/ICC-ASP-16-INF2-ENG.pdf
3. https://www.nytimes.com/roomfordebate/2014/12/11/do-we-need-the-international-criminal-court/iccs-dismal-record-comes-at-too-high-a-price
4. https://www.theguardian.com/world/2020/feb/11/sudan-says-it-will-send-former-dictator-omar-al-bashir-to-icc
5. https://www.project-syndicate.org/commentary/icc-criticism-afghanistan-investigation-by-aryeh-neier-2019-05

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