Lakshmi Jagdish from Reva University, Bangalore.
INTERNATIONAL CRIMINAL COURT: WHEN DOES IT COME INTO PLAY?
International criminal court (ICC) is a permanent judicial body established by the Rome Statute of the International Criminal Court (1998) to prosecute and adjudicate individuals accused of genocide, war crimes, and crimes against humanity. On July 1, 2002, after requisite number of countries (60) ratified the agreement, the court began sittings. It is headquartered in the Netherlands at The Hague.
INTERNATIONAL CRIMINAL COURT : –
The ICC was established as a court of last resort to prosecute the most heinous offenses in cases where national courts fail to act. Unlike the International Court of Justice, which hear disputes between states, the ICC handles prosecutions of Individuals. The Court’s jurisdiction extends to offenses that occurred after July 1, 2002, that were committed either in a state that has ratified the agreement or by a national of such a state.
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 United nation 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.
Defining Genocide: The Nürnberg Charter And The Genocide Convention
In contemporary International Law the crime of genocide is part of the broader category of “crimes against humanity,” which were defined by the Charter of the International Military Tribunal (Nürnberg Charter). The charter granted the tribunal jurisdiction to indict and try the leaders of the Nazi regime for inhumane acts committed against civilians, as well as for acts of persecution on political, racial, or religious grounds; in so doing, it also contributed to the international criminalization of other forms of abusive conduct. The momentum created by the Nurnberg Trails and the ensuing revelations of Nazi atrocities led to the passage by the UN General Assembly of Resolution 96-I (December 1946), which made the crime of genocide punishable under international law, and of Resolution 260-III (December 1948), which approved the text of the Convention on the prevention and Punishment of crime of Genocide. The first UN Human Rights Treaty. The convention, which entered into force in 1951, has been ratified by more than 130 countries. Although the United States played a major role in drafting the convention and was an original signatory, the U.S. Senate did not ratify it until 1988.
Article 2 of the convention defines genocide as :-
any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.
In addition to the commission of genocide, the convention also made conspiracy, incitement, attempt, and complicity in genocide punishable under international law.
The ICC’s jurisdiction includes the crime of genocide, and the statute adopts the same definition of the offense as found in the genocide convention. The establishment of the ICC—though without the participation of the United States, China, and Russia—was another indication of a growing international consensus in favor of vigorous and concerted efforts to suppress and punish the crime of genocide.
WAR CRIMES :-
In International Law, serious violation of the laws or customs of war as defined by international customary law and international treaties.
The term war crime has been difficult to define with precision, and its usage has evolved constantly, particularly since the end of World War I. The first systematic attempt to define a broad range of war crimes was the Instructions for the Government of Armies of the United States in the Field—also known as the “Lieber Code” after its main author, Francis Lieber—which was issued by U.S. President Abraham Lincoln during the American Civil War and distributed among Union military personnel in 1863.
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE PROSECUTION OF PERSON RESPONSIBLE FOR GENOCIDE AND OTHER SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW COMMITED IN TERRITORY OF YUGOSLAVIA AND RWANDA :-
Nearly 50 years passed between the Nürnberg and Tokyo trials and the next formal international prosecution of war crimes. In May 1993, in an attempt to prevent further acts of “ethnic cleansing” in the conflict between states of the former Yugoslavia and to restore peace and security to the Balkan region, the United Nations Security Council established in 1991, commonly known as the ICTY. In November 1994 the UN responded to charges of genocide in Rwanda by creating the ICTR, and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States between 1 January and 31 December 1994.
Both the ICTY and ICTR were international in composition, and neither tribunal sat in the country where the covered conflict occurred; the ICTY was located in the Hague, and the ICTR was located in Arusha, Tanzania. The tribunals had nearly identical governing statutes and a common appellate chamber. Although the Nürnberg and Tokyo tribunals were empowered to impose capital punishment, the ICTR and ICTY could impose only terms of imprisonment. However, no centralized international prison system was established to house persons convicted of war crimes before the tribunals.
The governing statutes of the ICTY and ICTR defined war crimes broadly. The ICTY was given jurisdiction over four categories of crime:
(1) grave breaches of the Geneva conventions,
(2) violations of the laws or customs of war,
(3) genocide, and
(4) crimes against humanity.
Recognizing that crimes against humanity do not necessarily involve a “nexus to armed conflict” and taking into account legislation specifically enacted by the Rwandan government, the statute of the ICTR limited the jurisdiction of the tribunal to Rwandan leaders, while lower-level defendants were to be tried in domestic courts. In both tribunals rape, murder, torture, deportation, and enslavement were subject to prosecution. The tribunals thus were among the first international bodies to recognize sexual violence formally as a war crime.
.ROLE OF INTERNATIONAL CRIMINAL COURT :-
The court’s founding treaty, called the Rome Statue, grants the ICC jurisdiction over four main crimes :-
· Crimes against humanity
· War Crimes
· Crime of aggression
GENOCIDE :- It is characterised by the specific intent to destroy in whole or in part a national, ethnic, racial or religious group by killing its members or by other means: causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; or forcibly transferring children of the group to another group.
CRIME AGAISNT HUMANITY : which are serious violations committed as part of a large-scale attack against any civilian population. The 15 forms of crimes against humanity listed in the Rome Statute include offences such as murder, rape, imprisonment, enforced disappearances, enslavement – particularly of women and children, sexual slavery, torture, apartheid and deportation.
WAR CRIMES : which are grave breaches of the Geneva conventions in the context of armed conflict and include, for instance, the use of child soldiers; the killing or torture of persons such as civilians or prisoners of war; intentionally directing attacks against hospitals, historic monuments, or buildings dedicated to religion, education, art, science or charitable purposes.
CRIME OF AGGRESSION :
It is the use of armed force by a State against the sovereignty, integrity or independence of another State. The definition of this crime was adopted through amending the Rome Statute at the first Review Conference of the Statute in Kampala, Uganda, in 2010.
On 15 December 2017, the Assembly of States Parties adopted by consensus a resolution on the activation of the jurisdiction of the Court over the crime of aggression as of 17 July 2018
The Court may exercise jurisdiction in a situation where genocide, crimes against humanity or war crimes were committed on or after 1 July 2002 and:
· the crimes were committed by a State Party national, or in the territory of a State Party, or in a State that has accepted the jurisdiction of the Court; or
· the crimes were referred to the ICC Prosecutor by the United Nations Security Council (UNSC) pursuant to a resolution adopted under chapter VII of the UN charter.
As of 17 July 2018, a situation in which an act of aggression would appear to have occurred could be referred to the Court by the Security Council, acting under Chapter VII of the United Nations Charter, irrespective as to whether it involves States Parties or non-States Parties.
In the absence of a UNSC referral of an act of aggression, the Prosecutor may initiate an investigation on her own initiative or upon request from a State Party. The Prosecutor shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. Where no such determination has been made within six months after the date of notification to the UNSC by the Prosecutor of the situation, the Prosecutor may nonetheless proceed with the investigation, provided that the Pre-Trial Division has authorized the commencement of the investigation. Also, under these circumstances, the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.
The ICC is intended to complement, not to replace, national criminal systems: it prosecutes cases only when states do not are unwilling or unable to do so genuinely.
The ICC does not have its own police force or enforcement body; thus, it relies on cooperation with countries worldwide for support, particularly for making arrests, transferring arrested persons to the ICC detention centre in The Hague, freezing suspects’ assets, and enforcing sentences.
While not a United Nations organization, the Court has a cooperation agreement with the United Nations. When a situation is not within the Court’s jurisdiction, the United Nations Security Council can refer the situation to the ICC granting it jurisdiction. This has been done in the situations in Darfur (Sudan) and Libya.
The ICC actively works to build understanding and cooperation in all regions, for example, through seminars and conferences worldwide. The Court cooperates with both States Parties and non-States Parties.
The Court works in particularly close cooperation with its host state, the Netherlands, regarding practical matters such as constructing the Court’s new permanent buildings, transferring suspects to the ICC Detention Centre, facilitating their appearances before the Court, and many other matters.
The ICC is pretty functional and the procedures are coherent with most of the national jurisdictions. Most importantly it serves a great role in regulating the International Criminal Justice system yet there are a few criticisms.