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Lakshmi Jagdish from Reva University, Bangalore.
Date: 25.04.2021
INTERNATIONAL CRIMINAL COURT: WHEN DOES IT COME INTO PLAY?
INTRODUCTION
:
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 :-
· Genocide
· 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
JURISDICTION
:-
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.
COMPLEMENTARITY :-
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.
COOPERATION :-
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.
CONCLUSION :-
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.
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