This article is written by Garima Harsh of UPES, intern under Legal Vidhiya
ABSTRACT
In the context of this article, we will discuss about the International Criminal Court and it’s Jurisdiction as it is an autonomous entity whose aim is to try persons for crimes committed within its jurisdiction without the requirement for a special mandate from the United Nations. The ICC and the United Nations struck an agreement on October 4, 2004. The ICC can only investigate and, if necessary, prosecute and try persons if the State in question does not, cannot, or is unwilling to do so.
KEYWORDS– Jurisdiction, International Criminal Court, United Nation
INTRODUCTION
The International Criminal Court (ICC), established by the Rome Statute, is the world’s first permanent, treaty-based international criminal court. A criminal court was established to assist reduce impunity for perpetrators of the most serious crimes of international concern. The International Criminal Court (ICC) is a separate international organization that is not part of the United Nations system. Its headquarters are in The Hague, Netherlands. Although States Parties to the Rome Statute support the majority of the Court’s expenses, it also receives voluntary contributions from governments, international organizations, individuals, corporations, and other entities. The world community has long desired the establishment of a permanent international court, especially in the twentieth century, It came to an agreement on definitions of genocide, crimes against humanity, and war crimes. The Nuremberg and Tokyo trials dealt with war crimes, crimes against peace, and crimes against humanity perpetrated during WWII. Tribunals like the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda were established in the 1990s, following the Cold War’s end, as a result of an agreement that impunity is intolerable. Yet, because they were created to try offenses committed only within a certain time range and there was widespread agreement during a specific conflict that an independent, permanent criminal court was required. On July 17, 1998, the international community reached a watershed moment when 120 countries ratified the Rome Statute, the legal foundation for establishing the permanent International Criminal Court. After 60 nations ratified it, the Rome Statute entered into force on July 1, 2002.
HISTORY
It has been around 50 years since the UN first recognized the need for an international criminal court to try crimes such as genocide. The General Assembly enacted the Convention on the Prevention and Punishment of the Crime of Genocide in Resolution 260 on December 9, 1948, “Recognizing that genocide has inflicted immense losses on humanity at all times of history; and being convinced that, in order to liberate mankind from such an abhorrent scourge, international cooperation is essential.” Article I of the treaty defines genocide as a “crime under international law,” and article VI states that anyone charged with genocide “must be prosecuted by a competent tribunal of the State in the territory of which the act was committed or by such international criminal tribunal as may have authority…” The General Assembly also asked the International Law Commission in the same resolution to “examine the appropriateness and feasibility of establishing an international judicial organ for the trial of people charged with genocide.” After the Commission’s judgment that the establishment of an international court to try anyone accused of genocide or other crimes of equivalent gravity was both desired and feasible, the General Assembly appointed a committee to prepare suggestions for such a court. In 1951, the group produced a draft statute, which was updated in 1953. However, the General Assembly resolved to postpone discussion of the proposed act until a definition of aggression was adopted. Since then, the issue of establishing an international criminal court has been revisited on a regular basis. In response to a request from Trinidad and Tobago, the General Assembly ordered the International Law Commission to resume work on an international criminal court with jurisdiction over drug trafficking in December 1989. However, in 1993, the former Yugoslavia’s conflict erupted, and war crimes, crimes against humanity, and genocide – disguised as “ethnic cleansing” – attracted international attention once more. To put an end to this widespread human suffering, the United Nations Security Council established the ad hoc International Criminal Tribunal for the Former Yugoslavia to punish individuals accountable for the atrocities and, in doing so, deter similar crimes in the future. Shortly after, the International Law Commission concluded its work on the draft legislation for an international criminal court and submitted it to the General Assembly in 1994. The General Assembly established the Ad Hoc Committee on the Creation of an International Criminal Court in 1995 to address important substantive issues raised by the draft legislation. Following considering the Committee’s report, the General Assembly established the Preparatory Committee on the Creation of an International Criminal Court to write a broadly acceptable consolidated draft text for submission to a diplomatic conference. The Preparation Committee, which convened from 1996 to 1998, held its final session in March and April of 1998, finishing the text’s composition. The General Assembly resolved at its fifty-second session to call the United Nations Diplomatic Conference of Plenipotentiaries on the Formation of an International Criminal Court, which was later convened in Rome, Italy, from June 15 to July 17, 1998, “to finalize and adopt a convention on the establishment of an international criminal court.”[1]
“In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realization. We will do our part to see it through till the end. We ask you . . . to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished.”
— Kofi Annan, United Nations Secretary-General
Why Do we Need an International Criminal Court?
To achieve justice for all
“For nearly half a century — almost as long as the United Nations has been in existence — the General Assembly has recognized the need to establish such a court to prosecute and punish persons responsible for crimes such as genocide. Many thought . . . that the horrors of the Second World War — the camps, the cruelty, the exterminations, the Holocaust — could never happen again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time — this decade even — has shown us that man’s capacity for evil knows no limits. Genocide . . . is now a word of our time, too, a heinous reality that calls for a historic response.”
— Kofi Annan, United Nations Secretary-General [2]
An international criminal court has been described as the international legal system’s “missing link.” The International Court of Justice in The Hague exclusively hears matters involving states, not individuals. Acts of genocide and gross breaches of human rights frequently go unpunished in the absence of an international criminal court to deal with individual accountability as an enforcement tool. There have been several cases of crimes against humanity and war crimes in the previous 50 years for which no individuals have been brought guilty. The Khmer Rouge slaughtered an estimated 2 million people in Cambodia throughout the 1970s. There has been a great loss of civilian life in armed wars in Mozambique, Liberia, El Salvador, and other countries, including a shocking number of unarmed women and children.
To end impunity
“A person stands a better chance of being tried and judged for killing one human being than for killing 100,000.”
— José Ayala Lasso, former United Nations High Commissioner for Human Rights[3]
The Nürnberg Tribunal’s decision stated that “crimes against international law are committed by men, not esoteric enterprises, and only by disciplining individuals who act in this manner can the provisions of international law be enforced” – establishing individual criminal personal responsibility for all who commit such acts as a cornerstone of international criminal law. According to the International Law Commission’s Draft Code of Crimes Against the Peace and Security of mankind[4], completed in 1996 at the request of the General Assembly, this concept applies equally and without distinction to any individual within the governmental hierarchy or military chain of command.
To assist in the resolution of conflicts
“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.”
— Benjamin B. Ferencz, a former Nürnberg prosecutor [5]
In instances involving ethnic strife, violence breeds more violence; one slaughter breeds more slaughter. The assurance that at least some perpetrators of war crimes or genocide would face justice acts as a deterrence and increases the likelihood of ending a conflict. In this decade, two ad hoc international criminal tribunals, one for the former Yugoslavia and one for Rwanda, were established in the intention of hastening the end of the conflict and preventing it from recurring.
… to step in when national criminal justice authorities refuse or are unable to act
“Crimes under international law by their very nature often require the direct or indirect participation of a number of individuals at least some of whom are in positions of governmental authority or military command.”
— Report of the International Law Commission, 1996[6]
Countries generally agree that criminals should be prosecuted by national authorities. But, in times of conflict, whether internal or external, such national institutions are frequently unwilling or unable to act, typically for one of two reasons. As was the case in the former Yugoslavia, governments frequently lack the political will to prosecute their own population, let alone high-level officials. Instead, as in the case of Rwanda, national institutions may have crumbled.
To deter future war criminals
“From now on, all potential warlords must know that, depending on how a conflict develops, there might be established an international tribunal before which those will be brought who violate the laws of war and humanitarian law. . .. Everyone must now be presumed to know the contents of the most basic provisions of international criminal law; the defence that the suspects were not aware of the law will not be permissible.”
— Hans Corell, United Nations Under-Secretary-General for Legal Affairs[7]
Throughout history, most perpetrators of war crimes and crimes against humanity have gone unpunished. Despite the military tribunals established after WWII and the two recent ad hoc international criminal tribunals established for the former Yugoslavia and Rwanda, the same remains true for the twentieth century. Having said that, it is safe to conclude that the vast majority of perpetrators of such atrocities believed their crimes would go unpunished. A fundamental goal of those striving to establish the international criminal court is effective deterrence. Once it is clear that the international community will no longer tolerate such heinous acts without assigning responsibility and meeting outlandish punishment – to heads of state and commanding officers as well as the most junior soldiers in the field or militia recruits – it is hoped that those who would incite genocide; launch an ethnic cleansing campaign; murder, rape, and brutalize civilians caught up in an armed conflict; or use children for barbarous meditative purposes will be deterred.
The structure of the ICC
What does the Presidency do?
The Presidency is made up of three judges (the President and two Vice-Presidents) who are chosen for a maximum of two three-year terms by an absolute majority of the Court’s 18 judges. With the exception of the Prosecutor’s Office, the Presidency is in charge of Court administration. It represents the Court to the outside world and aids in the organization of the judges’ work. The Presidency is also in charge of carrying out additional functions, such as ensuring that the Court’s sentences are carried out.
What do the Chambers do?
The Court’s 18 judges, including the three President judges, are divided into three judicial divisions: the Pre-Trial Division (consisting of at least six judges), the Trial Division (made of at least six judges), and the Appeals Division (composed of at least six judges). Division (consisting of five judges) (composed of five judges). They are assigned to the Pre-Trial Chambers (each composed of one or three judges), the Trial Chambers (each composed of three judges), and the Appeals Chamber (composed of the Appeals Division’s five judges). The judges’ functions and responsibilities are explained here, by Pre-Trial, Trial, and Appeals Chambers.
How are the judges elected?
The judges are people of strong moral character, impartiality, and honesty who meet the prerequisites for appointment to the highest judicial offices in their respective states. All have substantial judicial experience related to the Court’s work. The judges are chosen by the Assembly of States Parties based on their demonstrated competence in criminal law and procedure, as well as important areas of international law such as international humanitarian law and human rights law. They have in-depth knowledge of specific topics, such as violence against women and children. The judges are chosen with the need for representation of the world’s major legal systems, a fair representation of men and women, and an equal geographical distribution in mind. The judges guarantee that the processes are fair and that justice is properly administered.
What is the role of the Pre-Trial Chambers?
Any matters that arise before the trial phase are resolved by the Pre-Trial Chambers, which are made up of one or three judges. Their primary responsibility is to oversee how the Office of the Prosecutor conducts its investigations and prosecutions. prosecutorial activity, to protect the rights of suspects, victims, and witnesses during the investigation phase, and to preserve the proceedings’ integrity. The Pre-Trial Chambers then decide whether to issue arrest warrants or summonses to appear at the request of the Prosecutor’s Office, as well as whether to confirm the charges against a person accused of a crime. They may also make decisions about the admissibility of situations and cases, as well as the participation of victims, at the pre-trial stage.
What’s the part of the Trial Chambers?
Once an arrest leave is issued, the suspected malefactor is restrained, and the charges are validated by a Pre-Trial Chamber, the Presidency appoints a Trial Chamber of three judges to try the case. The top ideal of a Trial Chamber is to insure that trials are fair and ready, and that they’re conducted with full respect for the rights of the indicted and due attention for the protection of victims and substantiations. It also governs victim participation in the trial stage. The Trial Chamber assesses whether an indicted is innocent or shamefaced of the allegations and, if shamefaced, may put a judgment of imprisonment for a specific number of times not to exceed thirty times or life imprisonment. Financial penalties are also possible. A Trial Chamber may therefore bear a shamefaced person to make remedies for the victims’ detriment, similar as compensation, reparation, or recuperation. What are the main functions of the Appeals Chamber? The prayers Chamber is made up of the Court’s President and four fresh judges. All trial parties have the right to appeal or seek leave to appeal judgments made by the Pre-Trial and Trial Chambers. The prayers Chamber has the authority to maintain, reverse, or change the decision under appeal, including judgements and sentencing opinions, and to order a fresh trial before a different Trial Chamber. It may indeed amend a final conviction or discipline.
What does the Office of the Prosecutor do?
The Prosecutor’s Office is a separate institution of the Court. Its accreditation is to admit and dissect information on situations or contended crimes within the ICC’s governance, as well as to probe situations appertained to it. However, crimes against humanity, war crimes, if there’s a reasonable base to open an disquisition into a crime of genocide. To carry out its accreditation, the Office of the Prosecutor is divided into three divisions.
1. The Investigation Division is in charge of conducting examinations( including carrying and assessing substantiation, questioning suspects as well as victims and substantiations). In this regard, for the purpose of In order to prove the verity, the Statute authorizations the Prosecutor’s Office to probe both indicting and exculpating circumstances inversely.
2. The Prosecution Division participates in the investigative process, but its primary job is to litigate matters before the Court’s multitudinous Chambers.
3. The governance, Complementarity, and Cooperation Division, which, with the backing of the Investigation Division, assesses information entered and situations appertained to the Court, analyzes situations and cases to determine admissibility, and assists the Office of the Prosecutor in carrying the cooperation needed to carry out its accreditation. Governance.
JURISIDCTION
The International Criminal Court ( ICC) has governance over the most serious crimes of concern to the transnational community as a whole. videlicet, genocide, crimes against humanity, and war crimes committed after July 1, 2002, as well as aggression, as of July 17, 2018, under particular conditions and processes. The Rome Statute and other applicable publications define each of these offenses in detail. Only within the home of a State Party or by one of its residers may the Court exercise governance over similar transnational crimes. These restrictions, still, don’t apply if the Prosecutor is appertained to a circumstance. United Nations Security Council, whose judgments are obligatory on all UN member countries, or if a state declares acceptance of the Court’s governance The Court’s purpose is to condense, not replace, public felonious justice systems. It can only pursue cases if public justice systems don’t carry out procedures or if they profess to do so but are unintentional or unfit to carry out similar processes in good faith. This abecedarian notion is known as the complementarity principle. The Prosecutor can launch an disquisition or execution in three ways Nations that have ratified the Statute of, the ICC may submit circumstances to the Prosecutor; the United Nations Security Council may prompt the Prosecutor to open an disquisition; and the Prosecutor’s Office may initiate examinations proprio motu (on its own action) grounded on information entered from estimable sources. In this situation, the Prosecutor must gain previous blessing from a Pre-Trial Chamber made up of three independent judges.
REFERENCES
https://legal.un.org/icc/rome/proceedings/E/Rome%20Proceedings_v1_e.pdf
https://www.bartleby.com/essay/The-United-States-and-the-International-Criminal-F3CGTNNZTC
https://www.un.org/law/ilc/texts/dcodefra.htm
http://encyclopedia.uia.org/en/strategy/203738
https://www.refworld.org/cases,ICC,4e6a389a2.html
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[1] https://legal.un.org/icc/rome/proceedings/E/Rome%20Proceedings_v1_e.pdf, last seen at 4/7/2023
[2] https://www.bartleby.com/essay/The-United-States-and-the-International-Criminal-F3CGTNNZTC, last seen at 4/7/2023
[3] https://go.gale.com/ps/i.do?id=GALE%7CA354145833&sid=googleScholar&v=2.1&it=r&linkaccess=abs&issn=15466981&p=AONE&sw=w&userGroupName=anon%7E1ece345c, last seen at 4/7/2023
[4] https://www.un.org/law/ilc/texts/dcodefra.htm , last seen at 4/8/2023
[5] https://www.jtl.columbia.edu/volume57-3/no-peace-without-justice-no-justice-without-law-a-review-essay , Last seen at 4/9/2023
[6] https://www.un-ilibrary.org/content/periodicals/2521621x#:~:text=The%20International%20Law%20Commission%20was,United%20Nations%20Office%20at%20Geneva. , last seen at 4/10/2023
[7] http://encyclopedia.uia.org/en/strategy/203738 , last seen at 4/10/2023
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