International Criminal Court – ICC

Intro

International criminal court (ICC) is a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression.

Court investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes and crimes against humanity.

Court is participating in a global fight to end impunity, and through international criminal justice, the Court aims to hold those responsible accountable for their crimes and to help prevent these crimes from happening again.

The Court cannot reach these goals alone. As a court of last resort, it seeks to complement, not replace, national Courts. Governed by an international treaty called the Rome Statute, the ICC is the world’s first permanent international criminal court.

ICC prosecutes perpetrators of crimes against humanity, war crimes and genocide, on the principle of complementarity. The crime of genocide is characterized by the intent to destroy a national, ethnic, religious or racial group by killing its members or by other means.

Why ICC established:

Some of the most heinous crimes were committed during the conflicts which marked the twentieth century. Unfortunately, many of these violations of international law have remained unpunished. The Nuremberg and Tokyo tribunals were established in the wake of the Second World War. In 1948, when the Convention on the Prevention and Punishment of the Crime of Genocide was adopted, the United Nations General Assembly recognised the need for a permanent international court to deal with the kinds of atrocities which had just been perpetrated.

The idea of a system of international criminal justice re-emerged after the end of the Cold War. However, while negotiations on the ICC Statute were underway at the United Nations, the world was witnessing the commission of heinous crimes in the territory of the former Yugoslavia and in Rwanda.

In response to these atrocities, the United Nations Security Council established an ad hoc tribunal for each of these situations. These events undoubtedly had a most significant impact on the decision to convene the conference which established the ICC in Rome in the summer of 1998.

What is Rome Statute

On 17 July 1998, a conference of 160 States established the first treaty-based permanent international criminal court. The treaty adopted during that conference is known as the Rome Statute of the International Criminal Court. Among other things, it sets out the crimes falling within the jurisdiction of the ICC, the rules of procedure and the mechanisms for States to cooperate with the ICC.

The countries which have accepted these rules are known as States Parties and are represented in the Assembly of States Parties.

The Assembly of States Parties, which meets at least once a year, sets the general policies for the administration of the Court and reviews its activities. During those meetings, the States Parties review the activities of the working groups established by the States and any other issues relevant to the ICC, discuss new projects and adopt the ICC’s annual budget.

How it differs from other international courts:

The ICC is a permanent autonomous court, whereas the ad hoc tribunals for the former Yugoslavia and Rwanda, as well as other similar courts established within the framework of the United Nations to deal with specific situations only have a limited mandate and jurisdiction.

The ICC, which tries individuals, is also different from the International Court of Justice, which is the principal judicial organ of the United Nations for the settlement of disputes between States.

The ad hoc tribunal for the former Yugoslavia and the International Court of Justice also have their seats in The Hague.

The ICC is an independent body whose mission is to try individuals for crimes within its jurisdiction without the need for a special mandate from the United Nations. On 4 October 2004, the ICC and the United Nations signed an agreement governing their institutional relationship.

The ICC does not replace national criminal justice systems; rather, it complements them. It can investigate and, where warranted, prosecute and try individuals only if the State concerned does not, cannot or is unwilling genuinely to do so. This might occur where proceedings are unduly delayed or are intended to shield individuals from their criminal responsibility. This is known as the principle of complementarity, under which priority is given to national systems. States retain primary responsibility for trying the perpetrators of the most serious of crimes.

Criticism of ICC

The creation of the ICC was partly an attempt to answer criticisms of imperialism or bias, but the fact that of the 36 people the ICC has indicted in the entirety of its existence, all 36 have been African leaders. This implies unfair selectivity at best, and smacks of neo-colonialism at worst.

ICC’s efficacy has also come under scrutiny. For a start, despite its growing budget (which in 2015 alone is projected to top $152 million), the court has only successfully convicted two people

It has been argued that the bar for qualification of judges needs to be higher, requiring expertise in international law and prior trial experience. It is unquestionably desirable that the judges be of the highest caliber possible and have such experience.

Some argue that the powers of the Prosecutor are too broad. It should be pointed out that these were established by the Statute and would require amending to be changed. In particular, some have argued that the Prosecutor should not have a right to indict persons whose nations are not signatory; however, this appears to be a misunderstanding as the Statute limits indictment to signatories or other nations which have agreed to an indictment even if they are not signatory.

There is no appeal to a higher court. It might be worth considering the creation of an appeals court outside of the ICC.

There are legitimate complaints about lack of transparency. Many of the Courts sessions and proceedings are held in secret. While there may be legitimate reasons for some of this (protection of witnesses, inter alia), the highest degree of transparency possible is required and the Court needs to review its procedures in this regard.

Some critics have argued that the standards of due process are not up to the highest standards of practice. If this is the case, it must be corrected.

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