International Criminal Court

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The International Criminal Court (ICC) was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, and war crimes, as defined by several international agreements, most prominently the Rome Statute of the International Criminal Court. The ICC is designed to complement existing national judicial systems; however, the Court can exercise its jurisdiction if national courts are unwilling or unable to investigate or prosecute such crimes, thus being a "court of last resort," leaving the primary responsibility to exercise jurisdiction over alleged criminals to individual states.

Note that "International Criminal Court" is sometimes initialized as ICCt to distinguish it from "International Chamber of Commerce." Also, the ICC is separate from the International Court of Justice, which is a body to settle disputes between nations, and the Belgian War Crimes Law.

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Cases before the court

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The Chief Prosecutor of the court, Luis Moreno-Ocampo, has decided to open an investigation into three matters, after rigorous analysis in accordance with the Rome Statute and the Rules of Procedure and Evidence:

The Central African Republic, referred itself to the court on January 6, 2005, but the Chief Prosecutor has not yet decided whether to open an investigation into this matter.

On 2006-02-09 the Chief Prosecutor published a letter<ref name="Letter_2006-02-09">Luis Moreno-Ocampo Letter:Public reply with his conclusions allagationsof war crimes during the invasion of Iraq in March 2003 9 February 2006</ref> answering complaints connected with the invasion of Iraq. He concluded that he did not have authority to consider the complaint about the legality of the invasion, and that the available information did not provide sufficient evidence for proceeding with an investigation of war crimes due to the targeting of civilians or clearly excessive attacks; the evidence for wilful killing and inhuman treatment, which covered around 20 people, did not appear to meet the "gravity" threshold for an investigation.

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Development of the ICC

The development of the ICC followed the creation of several ad hoc tribunals to try war crimes in the former Yugoslavia and Rwanda (International Criminal Tribunal for the Former Yugoslavia in 1993, International Criminal Tribunal for Rwanda in 1994). Subsequently, there arose a desire to establish a permanent tribunal as to avoid repeated use of ad hoc tribunals.

The U.N. General Assembly called the "United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court" in Italy, where the Rome Statute of the International Criminal Court was adopted on July 17, 1998. Almost all states participating voted in favor of the statute; the United States joined Israel, People's Republic of China, Iraq, Qatar, Libya and Yemen in voting against it. Israel reversed its decision and signed the statute just before the conference closed, but later reversed again and nullified its signature. Initially, the United States under Bill Clinton signed the treaty but never submitted it for ratification. When George W. Bush took office in 2001, he nullified the signature amid bipartisan consensus on the matter.

The Rome Statute became a binding treaty at the moment 60 states had ratified it, an event ceremonialized at the United Nations Headquarters on 11 April 2002. Ten countries (Bosnia-Herzegovina, Bulgaria, Cambodia, Democratic Republic of Congo, Ireland, Jordan, Mongolia, Niger, Romania and Slovakia) submitted their ratifications at this time, bringing the total to 66, so that no one nation would hold the honor of depositing the 60th ratification. As of October 2005, 100 States are Parties to the Statute. The ICC legally came into existence on 1 July 2002 and can only prosecute crimes that occurred after this date.

The official seat of the ICC is in The Hague (Netherlands); but the Rome Statute permits the court to engage in proceedings anywhere. The ICC became operational when the signatory nations met in the Assembly of State Parties to appoint a prosecutor and 18 judges. The ICC opened on March 11, 2003. The Judge-President is Philippe Kirsch from Canada, and the Vice-Presidents are Akua Kuenyenia from Ghana and Elizabeth Odio Benito from Costa Rica. Its Chief Prosecutor is Luis Moreno Ocampo of Argentina.

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Structure and powers

The International Criminal Court is composed of the Court itself, divided into a number of chambers (Pre-Trial, Trial and Appellate), the Registry, the Office of the Prosecutor and the Assembly of State Parties.

The initial impetus for its establishment came from within the United Nations. Although it is legally a separate entity established by a separate treaty between states, and not the Security Council acting under the United Nations Charter, the UN has a clearly defined role towards the court. The court's relationship with the United Nations is governed by a Relationship Agreement between the Court and the United Nations, which mainly provides for Security Council referrals under the Rome Statute, and for United Nations assistance in payment for any prosecutions made under such a referral.

Countries ratifying the treaty that created the ICC grant it authority to try their citizens for war crimes, crimes against humanity and genocide. It provides for ICC jurisdiction over-state party or on the territory of a non-state party where that non-state party has entered into an agreement with the court providing for it to have such jurisdiction in a particular case (consent).

Many states wanted to add "aggression," "terrorism" and drug trafficking to the list of crimes covered by the Rome Statute; however other states opposed this, on the grounds that these crimes were difficult to define, and that dealing with less serious crimes such as terrorism and drug trafficking would distract from the seriousness of the crimes the ICC was established to deal with. As a compromise, the treaty merely brands "aggression" as a crime without providing a definition, pending adoption of an amendment to the Statute. It may also be amended to include other crimes. However, no amendments can be made to the Rome Statute until seven years after the Statute became legally binding.

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How cases reach the ICC

Cases may be referred to the ICC by one of four methods:

  1. A country member of the Assembly of States Parties (ratified the Court's Statute) sends the case;
  2. A country that has chosen to accept the ICC's jurisdiction sends the case;
  3. The Security Council sends the case (subject to veto from the permanent five members); or
  4. The three-judge panel authorizes a case initiated by the ICC Prosecutor.

Even though the Court has jurisdiction over the crime of international aggression, it will not exercise such jurisdiction until the crime has been further defined. The statute that established the ICC mandates that the state parties attempt to define aggression in 2009.

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List of states party to the treaty

Image:World map ICC member states.png As of October 2005, the following 100 countries have ratified or acceded to the ICC Statute:

In addition to the above states, there are 39 other states which have signed but not ratified the treaty. Signing has some legal consequences from customary international law. A state is expected not to sabotage a treaty it has signed although it has not ratified it. Therefore the USA and Israel "unsigned" the Rome treaty, after which the USA engaged in bilateral agreements which undermine the obligations of states who have ratified.

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Opposition to the ICC

The creation and existence of the court has been controversial with a number of states. The largest disagreement continues to surround the source and nature of the court's jurisdiction.

Some countries object to the court, saying that there is very little legal supervision of the court's apparatus, and that the court's verdicts may become subject to political motives. They argue that the court's mandate was already excessively wide (and would be even more so if the crime of aggression was defined in its Statute), meaning the court could (perhaps unwillingly) become a tool for barratry and pointless legal hassle. Although supporters say that the checks and balances in the ICC made this an unlikely possibility, opponents argue that giving even a temporary member of the Security Council the power to veto any objections of prosecutorial bias gave the ICC no accountability whatsoever.

Supporters would counter that the ICC's definitions are very similar to those of the Nuremberg trials. They also argue that the states which object to the ICC are those which regularly carry out genocide, war crimes and crimes against humanity in order to protect or promote their political or economic interests.

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U.S. objections

Template:Main The United States has not ratified the treaty creating the court, and has stated it does not intend to do so. The country's main objections are the interference with their national sovereignty and a fear of politically motivated prosecutions.

In 2002, the U.S. Congress passed the American Servicemembers' Protection Act (ASPA), which contained a number of provisions, including prohibitions on the U.S. providing military aid to countries which had ratified the treaty establishing the court (exceptions granted), and permitting the President to authorize military force to free any U.S. military personnel held by the court, leading opponents to dub it "The Hague Invasion Act." The act was later modified to permit U.S. cooperation with the ICC when dealing with U.S. enemies.

The U.S. has also made a number of Bilateral Immunity Agreements, or so-called "Article 98" agreements, with a number of countries, prohibiting the surrender to the ICC of a broad scope of persons including current or former government officials, military personnel, and U.S. employees (including non-national contractors) and nationals.

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Israeli objections

Israel initially objected to the Rome Statute because of the clause defining "the war crime of the transfer of parts of the civilian population of an occupying power into occupied territory", which it feared implied that settlement activity in the occupied territories is a "war crime" and "grave offense". [1] Israel fears prosecution of Israeli settlers, or Israeli government officials who support the policy of settlements, as "war crimes". It did eventually sign the treaty establishing the court despite its misgivings, but on 28 August 2002 submitted a letter to the United Nations declaring that it did not intend to ratify the treaty, using the same wording as the US declaration of 6 May 2002.[2]

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Chinese objections

The People's Republic of China has expressed opposition to even the other states involved going ahead with it, claiming that the Statute is an attempt to interfere with the domestic affairs of sovereign states. It has not signed the treaty.

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Zimbabwean objections

The press spokesman for Zimbabwean president Robert Mugabe has dismissed calls by Australia and New Zealand and international human rights organizations for the UN Security Council to indict Mugabe for trial before the ICC for crimes against humanity. Press secretary George Charamba told the local newspaper The Sunday Mirror in January 2006 that the call for Mugabe's indictment was "spurious" and "an attempt to tarnish the image of the president and the country." Charamba went on to say that Zimbabwe is not a signatory to the statute that created the ICC and is therefore not legally bound by its dictates. As a non-signatory state, an ICC trial would require either a UN Security Council indictment or Zimbabwe to accept the ICC’s jurisdiction.

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Other objections to the Statute

Some have argued that the crimes the ICC has jurisdiction over are recognized under international law as crimes of universal jurisdiction, meaning that any state may try individuals who commit these crimes, even if they are committed by foreign nationals on foreign territory. From this perspective, the state parties could therefore have authorized the ICC to exercise this universal jurisdiction on their behalf. However, the concept of universal jurisdiction itself is controversial, not all the crimes for which the Rome Statute provides the court with jurisdiction have been proposed as being subject to universal jurisdiction at the present time under customary international law, and some have argued that even where universal jurisdiction exists it is non-delegable.<ref name=Morris>see Madeline Morris, High crimes and misconceptions: the ICC and non-party states, Law and Contemporary Problems, Winter 2001 vol. 64 no. 1 p. 13ff.</ref>

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In popular culture

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See also

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References

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External links

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UN

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Article

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Other

de:Internationaler Strafgerichtshof es:Corte Penal Internacional fi:Kansainvälinen sotarikostuomioistuin fr:Cour pénale internationale he:בית הדין הבינלאומי הפלילי id:Pengadilan Kriminal Internasional it:Corte Penale Internazionale ja:国際刑事裁判所 nl:Internationaal Strafhof no:Den internasjonale straffedomstolen pl:Międzynarodowy Trybunał Karny pt:Corte penal internacional ro:Curtea Penală Internaţională sv:Internationella brottmålsdomstolen

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