The International Criminal Court

SYNOPSIS

This article aims to outline the instances where one can approach the International Criminal Court, also known as the ICC. The article has thrown light upon the jurisdiction of the court. the article particularly has focused on three main crimes that come under the jurisdiction of the ICC. This article particularly focuses on the overview of the crimes that fall under the category of genocide, crimes against humanity, and war crimes.

BACKGROUND OF THE INTERNATIONAL CRIMINAL COURT

The existence of the International Criminal Court was established as a result of the heinous crimes that began to rise after 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.

It was in July 17th 1998 that 160 states established the first treaty-based permanent International Criminal Court. The treaty that was adopted during the conference, and was then known the Roman Statute of the International Criminal Court. The Roman Statute had officially come into force on the 1st of July 2002.

The Statute had laid down the significant aspects of the International Criminal Court like general founding principles, jurisdiction, role of the court; basic functioning etc, which will be discussed in this article. The Roman Statute is different from the ad hoc international tribunals. Neither the victors nor the Security Council.

The International Criminal Court has its headquarters in The Hague, Netherlands.

The main objective of the International Criminal Court is to be treated as the last resort of appeal.

The International Criminal Court is not a substitute for national courts. According to the Roman Statute, it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. The International Criminal Court can only intervene where a State is unable or unwilling genuinely to carry out the investigation and prosecute the perpetrators.

JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT

The ICC possess the jurisdiction only in respect to those events which occurred after the enforcement of its Statute on 1 July 2002. . If a State becomes a party to the Statute after its enforcement, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of the Statute for that State, unless that State has made a declaration accepting the jurisdiction of the ICC retroactively. However, the Court cannot exercise jurisdiction with respect to events which occurred before 1 July 2002. For a new State Party, the Statute enters into force on the first day of the month after the 60th day following the date of the deposit of its instrument of ratification, acceptance, approval or accession.

The ICC prosecutes individuals, not groups or States. Any individual who is alleged to have committed crimes within the jurisdiction of the ICC may be brought before the ICC. In fact, the Office of the Prosecutor's prosecutorial policy is to focus on those who, having regard to the evidence gathered, bear the greatest responsibility for the crimes, and does not take into account any official position that may be held by the alleged perpetrators.

It is important to note that the ICC does not possess any jurisdiction over children. Any crimes concerned and committed by individuals under the age of 18.

One more thing to keep in mind is that no one is exempted from prosecution because of his or her current functions or because of the position he or she held at the time the crimes concerned were committed.

Acting as a Head of State or Government, minister or parliamentarian does not exempt anyone from criminal responsibility before the ICC.

In some circumstances, a person in a position of authority may even be held responsible for crimes committed by those acting under his or her command or orders.

Likewise, amnesty cannot be used as a defence before the ICC. As such, it cannot bar the Court from exercising its jurisdiction.

STRUCTURE OF THE INTERNATIONAL CRIMINAL COURT

There are four organs the ICC is composed of. Those include the Presidency, the Chambers, the Office of the Prosecutor and the Registry.

The Presidency

The Presidency consists of three judges (the President and two Vice-Presidents) elected by an absolute majority of the 18 judges of the Court for a maximum of two, three-year terms.

The Presidency is responsible for the administration of the Court, with the exception of the Office of the Prosecutor. It represents the Court to the outside world and helps with the organizational work of the judges. The Presidency is also responsible for carrying out other tasks, such as ensuring the enforcement of sentences imposed by the Court.

The Chambers

The 18 judges, including the three judges of the Presidency, are assigned to the Court's three judicial divisions: the Pre-Trial Division (composed of seven judges), the Trial Division (composed of six judges), and the Appeals Division (composed of five judges). They are assigned to the following Chambers: 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 five judges of the Appeals Division).

The Prosecutor

The Office of the Prosecutor is an independent organ of the Court. Its mandate is to receive and analyse information on situations or alleged crimes within the jurisdiction of the ICC, to analyse situations referred to it in order to determine whether there is a reasonable basis to initiate an investigation into a crime of genocide, crimes against humanity, war crimes or the crime of aggression, and to bring the perpetrators of these crimes before the Court.

In order to fulfil its mandate, the Office of the Prosecutor is composed of three divisions: (i) the Investigation Division, which is responsible for conducting investigations (including gathering and examining evidence, questioning persons under investigation as well as victims and witnesses). In Understanding the International Criminal Court 11 this respect, for the purpose of establishing the truth, the Statute requires the Office of the Prosecutor to investigate incriminating and exonerating circumstances equally. (ii) The Prosecution Division has a role in the investigative process, but its principal responsibility is litigating cases before the various Chambers of the Court. (iii) The Jurisdiction, Complementarity and Cooperation Division, which, with the support of the Investigation Division, assesses information received and situations referred to the Court, analyses situations and cases to determine their admissibility and helps secure the cooperation required by the Office of the Prosecutor in order to fulfil its mandate.

The Registry

The Registry helps the Court to conduct fair, impartial and public trials. The core function of the Registry is to provide administrative and operational support to the Chambers and the Office of the Prosecutor. It also supports the Registrar's activities in relation to defence, victims, communication and security matters. It ensures that the Court is properly serviced and develops effective mechanisms for assisting victims, witnesses and the defence in order to safeguard their rights under the Roman Statute and the Rules of Procedure and Evidence.

As the Court's official channel of communication, the Registry also has primary responsibility for the ICC's public information and outreach activities.

WHICH TYPE OF CASES CAN BE HEARD BY THE INTERNATIONAL CRIMINAL COURT?

The ICC is the world's only permanent international court with a mandate to investigate and prosecute genocide, crimes against humanity, and war crimes. These three sets of crimes — collectively called "atrocity crimes"— have many overlapping characteristics.

The primary mission of the International Criminal Court is to help put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole, and thus to contribute to the prevention of such crimes.

Genocide

According to the Rome Statute, "genocide" means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethical, racial or religious group:

• killing members of the group;
• 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;
• forcibly transferring children of the group to another group.

The word 'genocide' was first coined by Polish lawyer RaphÓ“el Lemkin in 1944 in his book Axis Rule in Occupied Europe. It consists of the Greek prefix genos, meaning race or tribe, and the Latin suffix cide, meaning killing. Lemkin developed the term partly in response to the Nazi policies of systematic murder of Jewish people during the Holocaust, but also in response to previous instances in history of targeted actions aimed at the destruction of particular groups of people. Later, Lemkin led the campaign to have genocide recognised and codified as an international crime.

Genocide was first recognised as a crime under international law in 1946 by the United Nations General Assembly. It was codified as an independent crime in the 1948 Convention on the Prevention and Punishment of the crime of Genocide. The Convention has been ratified by 149 States (as of January 2018). The ICJ (International Court of Justice) has also stated that the prohibition of genocide is a peremptory norm of international law (or ius cogens) and consequently, no derogation from it is allowed.

The definition of the crime of genocide as contained in Article II of the general Genocide Convention was the result of a negotiating process and reflects the compromise reached among United Nations Member States in 1948 at the time of drafting the Convention. Genocide is defined in the same terms as in the Genocide Convention in the Rome Statute of the International Criminal Court (Article 6), as well as in the statutes of other international and hybrid jurisdictions. Many States have also criminalised genocide in their domestic law; others are yet to do so.

The intent is the most difficult element to determine. To constitute genocide, there must be a proven intent on the part of perpetrators to physicallydestroy a national, ethnical, racial or religious group. Cultural destruction does not suffice, nor does an intention to simply disperse a group. It is this special intent, or dolus specialis, that makes the crime of genocide so unique. In addition, case law has associated intent with the existence of a State or organisational plan or policy, even if the definition of genocide in international law does not include that element.

Importantly, the victims of genocide are deliberately targeted – not randomly – because of their real or perceived membership of one of the four groups protected under the Convention (which excluded political groups, for example). This means that the target of destruction must be the group, as such, and not its members as individuals. Genocide can also be committed against only a part of the group, as long as that part is identifiable (includable within a geographically limited area) and 'substantial.'

Crimes against humanity

"Crimes against humanity" include any of the following acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

• murder;
• extermination;
• enslavement;
• deportation or forcible transfer of population;
• imprisonment;
• torture;
• rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
• persecution against an identifiable group on political, racial, national, ethnic, cultural, religious or gender grounds;
• enforced disappearance of persons;
• the crime of apartheid;
• other inhumane acts of a similar character intentionally causing great suffering or serious bodily or mental injury.

It is not clear in which context the term "crimes against humanity" was first developed. Some scholars (or very similar terms) as early as late 18th and early 19th century, especially in the context of slavery and the slave trade, and to describe atrocities associated with European colonialism in Africa and elsewhere such as, the atrocities committed by Leopard II of Belgium in the Congo Free State. Other scholars point to the declaration issued in 1915 by the Allied governments (France, Great Brittan and Russia) condemning the mass killing of Armenians in the Ottoman Empire, to be the origin of the use of the term as the label for a category of international crimes.

Since then, the notion of crimes against humanity has evolved under international customary law and through the jurisdictions of international courts such as the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. Many States have also criminalised crimes against humanity in their domestic law.

Crimes against humanity have not yet been codified in a dedicated treaty of international law, unlike genocide and war crimes, although there are petitions to do so. Crimes against humanity similar to the prohibition of genocide, has been considered a peremptory norm of international law, from which no derogation is permitted and which is applicable to all States.

The 1998 Rome Statute establishing the International Criminal Court (Rome Statute) is the document that reflects the latest consensus among the international community on this matter. It is also the treaty that offers the most extensive list of specific acts that may constitute the crime.

War crimes

"War crimes" include grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts "not of an international character" listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale. The prohibited acts include:

• murder;
• mutilation, cruel treatment and torture;
• taking of hostages;
• intentionally directing attacks against the civilian population;
• intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals;
• pillaging;
• rape, sexual slavery, forced pregnancy or any other form of sexual violence;
• conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.

The concept of war crimes developed particularly at the end of the 19th century and beginning of the 20th century, when the law of armed conflict (also known as the international humanitarian law) was codified. The Hague Conventions adopted in 1899 and 1907 focus on the prohibition to warring parties to use certain means and methods of warfare. Several other treaties have been adopted since then. In contrast, the Geneva Convention of 1864 and subsequent Geneva Conventions, notably the four 1949 Geneva Conventions and the two 1997 Additional Protocols, focus on the protection of persons not or no longer taking part in hostilities. Both Hague Law and Geneva Law identify several of the violations of its norms, though not at all, as war crimes. List of war crimes can be found in both international humanitarian law and international criminal law treaties, as well as in international customary law.

The 1949 Geneva Conventions have been ratified by all Members of States of the United Nations, while the Additional Protocols and other international humanitarian law treaties have not yet reached the same level of acceptance. However, many of the rules contained in these treaties have been considered as part of customary law and, as such, are binding on all States (and other parties to the conflict), whether or not States have ratified the treaties themselves. In addition, many rules of customary international law apply in both international and non-international armed conflict, expanding in this way the protection afforded in non-international armed conflicts, which are regulated only by common article 3 of the four Geneva Conventions and Additional Protocol II.

War crimes are those violations of international humanitarian law (treaty or customary law) that incur individual criminal responsibility under international law. As a result, and in contrast to the crimes of genocide and crimes against humanity, war crimes must always take place in the context of an armed conflict, either international or non-international.

What constitutes a war crime may differ, depending on whether an armed conflict is international or non-international. For example, Article 8 of the Rome Statute categories war crimes as follows:

• Grave breaches of the 1949 Geneva Conventions, related to international armed conflict;
• Other serious violations of the laws and customs applicable in international armed conflict;
• Serious violation of Article 3 common to the four 1949 Geneva Conventions, related to armed conflict not of an international character;
• Other serious violations of the laws and customs applicable in armed conflict not of an international character.

From a more substantive perspective, war crimes could be divided into: a) war crimes against persons requiring particular protection; b) war crimes against those providing humanitarian assistance and peacekeeping operations; c) war crimes against property and other rights; d) prohibited methods of warfare; and e) prohibited means of warfare.

Some examples of prohibited acts include: murder; mutilation, cruel treatment and torture; taking of hostages; intentionally directing attacks against the civilian population; intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals; pillaging; rape, sexual slavery, forced pregnancy or any other form of sexual violence; conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.

War crimes contain two main elements:

1. A contextual element: "the conduct took place in the context of and was associated with an international/non-international armed conflict";
2. A mental element: intent and knowledge both with regards to the individual act and the contextual element.

In contrast to genocide and crimes against humanity, war crimes can be committed against a diversity of victims, either combatants or non-combatants, depending on the type of crime. In international armed conflicts, victims include wounded and sick members of armed forces in the field and at sea, prisoners of war and civilian persons. In the case of non-international armed conflicts, protection is afforded to persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause. In both types of conflicts protection is also afforded to medical and religious personnel, humanitarian workers and civil defence staff.

CONCLUSION

The International Criminal Court (ICC) lacks the proper resources to enforce the laws prescribed by the Rome Statute (RS). It is ineffective when issuing arrest warrants for individuals who have/is committed/committing crimes against humanity. The ICC needs more international recognition, respect, and support for it to properly execute its power. The ICC is designed to prosecute and punish individuals who commit crimes against humanity as described by the RS. The ICC needs a task force from its signatories to create a joint-task force to enforce the ICC rulings and to serve arrest warrants.