Interpretation of statutes

This article is written by Amulya Bhatia, currently pursuing B.B.A. LL.B from Symbiosis Law School, NOIDA. This article is an overview of the Rome Statute. It further discusses the role of various organs established under the treaty for overall promotion of international justice.

It has been published by Rachit Garg.

Introduction 

The United Nations has always been of the opinion that the most effective and efficient way to put an end to human suffering and atrocities faced by people is to put a full stop to conflicts in the first place. With this view, history has witnessed the creation of multiple statutes and treaties with the objective of ensuring world peace. Especially, the post-COVID world requires all the nations to move forward in a united manner in order to deal with the problems that are thrown at humankind. One such treaty is the Rome Statute which was established with the objective of ensuring justice to all. The status quo makes the discussion of the treaty more relevant now than ever.

This article will discuss in depth the purpose of the Rome Statute and how the different organs created under its ambit help enhance that purpose.

The Rome Statute

The Rome Statute is nothing but an effort that focuses on the advocacy of human rights and the promotion of international justice to ensure world peace. The treaty was adopted at the United Nations Diplomatic Conference of Plenipotentiaries held in Rome, Italy on 17th, 1998, but only came into force on 1st, 2002, with over 120 countries being party to the treaty. The Rome Statute consists of 13 parts and 128 Articles; the Preamble is based on the recognition of the atrocities that humans face that threaten the peace and security of the world at large, and the treaty serves as a means of resolution of these atrocities.

To celebrate the signing of the Rome Statute and commemorate this significant effort towards the supremacy of justice and protection of human rights, 17th July is celebrated as World Day for International Justice every year. The Rome Statute is also known as the ‘International Criminal Court Statute’ since it established the International Criminal Court (ICC).

The basic idea behind establishing the ICC was to create an apparatus to tackle crimes that affect the international community. Additionally, the Rome Statute also establishes the Assembly of State Parties and the Trust Fund for Victims, both of which act as catalysts for the proper functioning of the ICC. All of these organs that find their origin in the Rome Statute are discussed in this article.

Objective of the Rome Statute

The world was confronted with an extensive increase in atrocities against humanity, especially after World War II, making the entire international community desperate for justice and having to rebuild the world so torn apart by war. It became an immediate priority to prosecute those committing heinous crimes, which came to be referred to as ‘crimes against humanity’. However, state adjudication mechanisms were not considered credible to cater to international violations of humanitarian law. As a result, an initiative was taken by the international community to combat the worst possible atrocities known to humankind and create an interconnected platform to deal with such crimes at a global level. Subsequently, the Rome Statute came into being, which further established the ICC to prevent the most severe crimes from going unpunished and enhance respect for international law. 

History of the Rome Statute

The road to the Rome Statute was long and included many trials and errors. The intent to create a global platform for dealing with global crimes dates back to the early 19th century. Soon after World War II, efforts were made to create a permanent court for crimes against humanity, but failed. The United Nations General Assembly(UNGA) adopted the Convention on the Prevention and Punishment of the Crime of Genocide in 1948 to try criminals by an international tribunal and further invited the International Law Commission (ILC) to establish a more permanent structure to try people accused of genocide. The ILC drafted such a statute, but this initiative was eventually abandoned. The Croat–Bosniak War, which led to the commission of crimes against humanity, war crimes, and genocide, pushed the UN Security Council to establish two ad hoc tribunals to try these crimes. However, a need for a more permanent structure was felt. The International Law Commission (ILC) 1994 presented its final draft for the ICC and asked for a conference to be convened for evaluation of the statute and subsequent enactment. 

For this purpose, the General Assembly established the Ad Hoc Committee on the Establishment of an International Criminal Court, which met twice in 1995. After analysing the report of the above committee, a Preparatory Committee was formulated by the UNGC to consolidate the draft finally. For two years, starting in 1996 to 1998, a total of six meetings were held by the Preparatory Committee in this regard. The United Nations Conference of Plenipotentiaries, also known as the Rome Conference, took place from 15th June till 17th July 1998 with participation from over 160 governments. At last, 120 nations voted in favor of the Rome Statute of the International Criminal Court and 7 nations against the same which included the United States, Israel, China, Iraq, Yemen, Libya, and Qatar. After heightened emotional deliberation and discussion, the Rome Statute was finally established on the 17th of July, 1998. As of today, 123 states are party to the Rome Statute.

Jurisdiction of the Rome Statute

The following four core international crimes were essentially established by the Rome Statute, and these crimes are not subjected to the statute of limitation. Further, the ICC can only adjudicate these crimes when the domestic courts are unwilling or unable to do the same, or if the United Nations Security Council authorizes it:

Genocide

Genocide has been defined in Article 6 of the Rome Statute as acts that are committed with the intention of harming a national, ethnic, racial, or religious group, and this would include:

  • Killing of the members of that group,
  • Physical or mental harm to a person from the group, 
  • Taking effective steps to prevent reproduction in that group, 
  • Moving of children in the group to other groups. 

It is to be noted that the crime of genocide is not committed randomly and is meant to target specific groups due to their race, religion, or ethnicity. The actual commission, or in other words, actus reus is not necessary to constitute genocide; physical and biological restrictions and harm complimented by the elimination of a particular group constitute genocide.

Crimes against humanity

Crimes against humanity have not been defined in any other statute or treaty. However, the Rome Statute defines it under Article 7 as acts committed on a large scale and is a systematic attack against a civilian population. These include:

  • Murder;
  • Extermination;
  • Enslavement, deportation, or forcible transfer of population;
  • Imprisonment;
  • Torture;
  • Sexual Violence;
  • Persecution against an identifiable group;
  • Enforced disappearance of persons;
  • The crime of apartheid;
  • Other inhumane acts of a similar character intentionally cause great suffering or serious injury to the body or mental or physical health.

War crimes

War crimes have been listed and codified in multiple documents and legislation such as International Humanitarian Law (the Hague and Geneva Conventions) and International Criminal Law treaties such as the Rome Statute itself.

The Rome Statute defines war crimes under Article 8. It essentially entails a breach of the 1949 Geneva Convention. This includes:

  • Killing, inhumane treatment, torture, or causing serious injury to the body and health.
  • Destruction of property that is not justified by military necessity against the sick, wounded, and shipwrecked persons not taking part in hostilities, prisoners of war, and other detainees, civilians, and civilian objects.
  • Other violations of laws and customs, such as initiating attacks on civilians, attacking and bombarding places that are undefended, and partaking in the use of poisoned weapons.

Furthermore, violation of the laws or customs of war would also come under war crimes, and it includes:

  • Atrocities or offenses against persons or property, constituting violations of the laws or customs of war;
  • Murder, ill-treatment, or deportation to slave labor or for any other purpose of the civilian population in occupied territory;
  • Murder or ill-treatment of prisoners of war or persons on the seas;
  • Killing of hostages;
  • Torture or inhuman treatment, including biological experiments;
  • Plunder of public or private property;
  • Wanton destruction of cities, towns, or villages;
  • Devastation not justified by military necessity.

Crimes of aggression

The fourth crime that falls within the jurisdiction of the ICC but remains more or less unclear is referred to as the crime of aggression. According to the Rome Statute, it refers to the use of armed force by a state against the sovereignty, integrity, or independence of another state. Even the Rome Statute adopted the definition at its first review conference of the Statute that was held in 2010.

International Criminal Court under the Rome Statute

The International Criminal Court traces its origins to the Rome Statute and was established as a permanent judicial mechanism with the purpose of dealing with, and subsequently trying individuals who are accused of crimes that affect the entirety of the international community, more specifically, the four core international crimes specified in the Rome Statute. The ICC is headquartered in the Netherlands at Hague. It serves as the most important aspect of the Rome Statute which receives aid from other organs formed under the Rome Statute.

The ICC serves the purpose of being a court of last resort, meaning that when a national court is unable or unwilling to investigate or prosecute a given case, failing to act, the ICC takes over. However, it is pertinent to note that the ICC was not established as a substitute for the national courts, but only as a mechanism to deal with crimes when the national courts are unable to carry out a proper investigation into the same. The Rome Statute formulated the ICC with the basic purpose of protecting human rights at an international level and holding those accountable who are responsible for the commission of crimes entailing a violation of human rights; some of the worst crimes that can be committed. 

Role of International Criminal Court

The Rome Statute mandates the ICC to perform certain key functions for the overall achievement of the objectives of the treaty:

  1. The ICC is an integrated mechanism that is required to adjudicate upon the individuals who are accused of the four core international crimes, as established by the Rome Statute since, for the longest time, nations have felt the need to hold those accountable who commit these serious crimes, especially because the national courts are unwilling to act on such cases due to internal systematic failures.
  2. The ICC is entrusted with the responsibility of promoting international justice. It serves as a more structured mechanism to appropriately deal with these crimes, given how grave they are and their impact on global peace. The ICC has replaced the ad hoc tribunals.
  3. The ICC must also take into account the role played by the UN Security Council. The UN Security Council plays an important role in maintaining international peace and security and has the authority to refer cases to the ICC for investigation.

Structure of International Criminal Court

The ICC has four principal organs: 

  • the Presidency, 
  • the Chambers, 
  • the Office of the Prosecutor, and 
  • the Registry.

The Presidency, or the Head of the Court, is formed by 3 judges who are elected by a majority of 18 judges. The Presidency is responsible for catering to the proper functioning of the Court and acting as the face of the ICC in global stature. 

There are three judicial divisions in the court, namely, pre-trial, trial, and appeal, and these functions are fulfilled by the 18 judges who form the Chambers. They are entrusted with the responsibility of carrying out a fair and expeditious trial, and further have to decide the admissibility of the case before the court. Additionally, they protect the rights of both the accused as well as the victim.

The Office of the Prosecutor is an independent body of the Court and is responsible for analyzing the information received on potential crimes that are within the jurisdiction of the ICC. They are to determine the validity of the information received and accordingly conduct an investigation and pursue the case before the Chamber of the Court.

The last organ of the ICC is the Registry which is required to support the Court in carrying out its functions.

Process followed by International Criminal Court

The process that is followed by the ICC to perform its role as an international judicial mechanism is as follows:

Step 1: Determining the validity of information received

The purpose of the ICC is to ensure justice when domestic courts are unable to do so. Therefore, any state may request the office of prosecutor to carry out an investigation on a specific matter that would come under their jurisdiction. Additionally, such a state is not required to mandatorily be a party to the Rome Statute in order to seek the assistance of the ICC in particular cases. The United Nations Security Council also has the authority to ask the ICC to examine specific matters. Following this, the prosecutor may initiate an investigation after a primary examination of the information received. This is better known as the process of referrals.

Step 2: Analysis of information received

On receipt of information either by any state or by the UN Security Council, the prosecutor is required to decipher whether the case would fall within the jurisdiction of the ICC or not and also determines whether the case would be considered under the four core international crimes, as explained above. After understanding the validity of the referral so received, the ICC will further inform the relevant state parties about the initiation of the investigation.

Step 3: Conducting the investigation

After verifying the information received, the prosecutor commences the process of investigation which involves the collection and examination of evidence. The state parties may also assist in this process. After a preliminary investigation, based on the findings, the prosecutor may approach the judges of the ICC to either issue a warrant of arrest or a summon to appear.

Step 4: Arrest

Now, a warrant of arrest or even a summons can only be issued after obtaining prior permission from the pre-trial chamber. These are only issues either for the appearance of the accused, or to prevent the accused from committing further crimes.

Step 5: Charges before trial

Once the suspect appears in Court, the Chambers have 3 options:

  1. Confirm the charges,
  2. Adjourn the proceedings due to lack of evidence and give instructions accordingly, or
  3. Decline the charges in their entirety.

If the first option is opted for, the trial chamber begins the trial, specifying all the issues that shall be considered thereof.

Step 6: The trial

The first step in this process is asking the accused whether he pleads guilty or not. If there is an admission of guilt, it is the responsibility of the trial chamber to fully inform the accused of the consequences of such admission which is followed by their conviction,
However, if there is no admission of guilt, the trial then proceeds wherein the burden of proof of the charges is upon the prosecution and material evidence is required to be produced.

Step 7: Judgment

Once both the parties are heard, witnesses are examined, and the entire proceeding is conducted in a free and fair manner, it is upon the judge to determine the conclusion of the trial, and accordingly either punish with a fine or any other manner or acquit the accused. It is to be noted that the maximum sentence the ICC can award is 30 years and a life sentence can be awarded in special cases. The imprisonment of the accused is governed by the respective state.

Step 8: Appeal

All the parties involved have the right to appeal the judgment given by the trial chamber to the appeal chamber. Such appeal may lie against any procedural errors or wrongful conviction or acquittal. The role of the appeal chamber is to come to the conclusion of whether the judgment by the trial chamber is to be reversed, altered, or upheld.

High-profile ICC cases

The following are some of the first and most significant cases that the ICC has tried:

The Prosecutor v. Thomas Lubanga(2012)

The first hearing conducted by the ICC was in 2006 when the question before the Court was whether to charge Thomas Lubanga. He was accused of recruiting child soldiers in the Democratic Republic of Congo. The ICC held that the accused was guilty of the offense in 2012 and a 14-year sentence was imposed on him.

The Prosecutor v. Abdel Raheem Muhammad Hussein (2012)

The ICC also issued an arrest warrant on December 2, 2011, for Sudan’s defense minister, Abdelrahim Mohamed Hussein, for 7 crimes against humanity and 6 war crimes in total that were committed in Darfur from August 2003 to March 2004.

The Prosecutor v. Omar Hassan Ahmad Al Bashir (2009)

A similar warrant as in the above case was issued against Sudanese President, Omar Hassan Ahmad al-Bashir for genocide in Darfur and this was the first time the Court issues a warrant for a head of state.

The Prosecutor v. Ahmad Al Faqi Al Mahdi (2016) 

In September 2016, the Islamic Militant, Ahmad al-Faqi al-Mahdi was sentenced to nine years of prison after pleading guilty to war crimes which included the destruction of religious historic monuments in Mali. 

The Assembly of State Parties

The Assembly of State Parties (“the Assembly”) is a legislative body that consists of representatives on behalf of all states who are party to the Rome Statute and are responsible for managerial oversight of the ICC. Article 112 of the Rome Statute governs the structure and functioning of the Assembly of State Parties. According to Article 112 of the Rome Statute, the Assembly is required to meet at the headquarters of the Statute or UN Headquarters in New York once a year, and may even convene a meeting in special circumstances. These annual sessions are held for discussing basic matters such as the budget of the court, audit reports, activities of the court, regulation of Trust funds for victims, etc. Moreover, the election of judges and other members of the ICC is also upon the Assembly.

The most recent session of the Assembly was held from 6th December 2021 to 10th December 2021 which was the Assembly’s twentieth session; the next session is to be held from 5th December 2022 to 10th December 2022.

The Twentieth session witnessed the adoption of five resolutions which included:

  • Budget for 2022;
  • Cooperation;
  • Review of the ICC and the Rome Statute system to make it more effective;
  • Strengthening the ICC and Assembly of State Parties;
  • Outcome of work of the Study Group on Governance

Structure of the Assembly of State Parties

The Assembly of State Parties consists of five organs for the effective and efficient functioning of the body:

  1. Secretariat of the Assembly of State Parties: The Assembly adopted a Permanent Secretariat of the Assembly at its second session.
  2. Bureau of the Assembly: The bureau consists of a President, two Vice-presidents, and 18 members that are all elected by the Assembly for a three-year term.
  3. Committee on Budget and Finance: The Committee on Budget and Finance of the ICC was established in April, 2003. It is responsible for managing the financial and budgetary functions of the Court. This 12-member committee consists of experts in international financial matters.
  4. Oversight Committee on permanent premises: It was only in December 2007 that the Assembly decided that the ICC must be built on a permanent premise. For this purpose, the Oversight Committee was established to provide strategic oversight of this project. In 2015, the ICC was provided with a permanent premise in The Hague, the Netherlands.
  5. Board of Directors of the Trust Fund for Victims: The Trust Fund for Victims is discussed in the next part of this article. However, for its regulation, a five-member board is elected by the Assembly for a term of three years. This board is responsible for the activities and projects of the fund.

The Trust Fund for victims under Article 19 of the Rome Statute

The Trust Fund for Victims (TFV) has a separate status from the ICC and was established by the Assembly of State Parties in 2004 by virtue of Article 19 of the Rome Statute.

The TFV was established to assist those who are the victims of the crimes and cases that are being dealt with by the International Criminal Court. The purpose of the Rome Statute is to hold those accountable who are responsible for the commission of serious crimes and further help those who have suffered in this process’ TFV enhances this objective.

The victims of genocide, war crime, and crimes against humanity are given a voice through this platform to increase awareness about the same in the global sphere. Additionally, multiple self-help projects are also built to ensure that the victims are given another chance to better their lives after being subjected to heinous crimes.

Purpose

The Rome Statute has established a system to provide retributive as well as a restorative mechanism of providing justice to victims through TFV. The Assembly of States Parties (ASP) created the Trust Fund for Victims, “for the benefit of victims of crimes within the jurisdiction of the Court, and the families of such victims”. The basic objective of the TFV is to promote empowerment, hope, and dignity of those who are most vulnerable since they are victims of the worst possible crimes and to help them rebuild their lives. Merely punishing those who commit the crimes is not enough; the victims should be allowed to go back to a dignified life, one that they deserve. This fund plays a significant role in ensuring that the international promise for justice with which the Rome Statute was established is fulfilled. 

How does the Trust Fund for victims help them?

The victims of crimes that come under the jurisdiction of the ICC require support not just by way of reparation, but as well as material support such as rehabilitation. While the ICC is responsible for the former, the TFV deals with the latter and provides the victims support in a three-fold manner:

  1. Physical rehabilitation: Victims who have suffered physical injury are assisted so as to help them recover and resume their roles as responsible members of society.
  2. Mental Rehabilitation: Cost-effective psychological, social, and other health benefits are given to the victims who have suffered mentally and are helped to recover.
  3. Material Support: This entails providing education and economic support to the victims and helping them create employment opportunities.

Conclusion

In 2014, United Nations General Assembly President, John Ashe stated, “Stability and peace are essential enablers of sustainable development, just as violence is one of its greatest obstacles”. We are living in 2022, and this statement holds more relevance now than ever. The importance of dealing with conflict and violence has become necessary, given the unprecedented times we are living in, owing to the pandemic. Social stability allows all individuals in a society to align their personal goals with the broader goals of the world, without disruption. In this process, the protection of all individuals becomes necessary. Apropos of this, the value of the Rome Statute cannot be enhanced further. 

The Rome Statute provides stability to the nations by allowing them to approach a resolution mechanism when states are unable to deal with certain matters. There is a need for a larger platform to discuss issues that impact all nations in the long run, and the Rome Statute is the answer.

Frequently Asked Questions (FAQs)

What is the purpose of the Rome Statute?

The Rome Statute aims at establishing an international platform to deal with the worst possible crimes and ensure that justice prevails.

Who is bound by the Rome Statute?

The states that have signed the Rome Statute are party to it, and thus, bound by it as well. There are a total of 123 states that have signed the Rome Statute. Out of them, 33 are African States, 19 are Asia-Pacific States, 18 are from Eastern Europe, 28 are from Latin American and Caribbean States, and 25 are from Western European and other States.

Why was the ICC established?

The ICC serves as the common platform for all nations which can be approached for the investigation of serious crimes, and thereon fulfils the purpose of the Rome Statute.

How does the Rome Statute help in getting justice?

There are three main organs of the Rome Statute, namely, the International Criminal Court which is the foremost adjudicating authority to hold the accused accountable, the Assembly of State Parties which is a legislative body and also held in regulating the management of the ICC, and the Trust Fund for Victims that helps the victims in the restoration of their lives after being subjected to an atrocity.

References

  1. https://www.abc.net.au/news/2012-03-14/cases-before-the-icc/3888680
  2. https://www.icc-cpi.int/tfv
  3. https://www.hrw.org/news/1998/12/01/summary-key-provisions-icc-statute
  4. https://asp.icc-cpi.int/sessions/documentation/20th-session
  5. https://www.icc-cpi.int/about/how-the-court-works

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