International Criminal Court and its Establishment

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International Criminal Court and its Establishment


1.1 The Ultimate goal of the Research

The ultimate goal of the research is to assess the successfulness of the establishment of the International Criminal Court through evaluating its various activities from its inception.

1.2 Objective of the Research

The objectives of the research are summarized in the following:

· To know the story behind the establishment of the world’s first permanent International Criminal Court.

· To know about the function of the different organs of the International Criminal Court.

· To know about all of the key officials of the court.

· To have the full knowledge about its activities.

· To go through the present situation of each case referred to the International Criminal Court.

· To find out its status in the international arena.

· To find out the ICC’s relation with state parties, non state parties and other international organization.

· To determine the successfulness of the International criminal Court.

1.3 Nature & Scope of the Research

The topic of the aforesaid research is “How far establishment of International Criminal Court has been successful”. From the name of the topic it is quite obvious that the matter fall within the area of international law. As we know international law itself is a vast arena. And assessing the successfulness of anything like the International Criminal Court is such a tuff job in nature. And the scope of research of this topic is very wide to combine it in such a small frame.

1.4 Research Methodology

There is no single or universal approach to legal research methodologies. The legal research may be a combination of methods for interpreting and applying legally relevant information. There are several approaches to research methodologies such as analytical, empirical, inter disciplinary, comparative, and historical.<href=”#_ftn1″ name=”_ftnref1″ title=””>[1] Here in the said research at first we applied the historical methodology of research. Because we believe without going through the history of anything there exist some sorts of incompleteness. So in the beginning it is needed to take a look about the history of establishing the international criminal court. Then we applied the analytical and empirical approaches of research. Which methodologies are important to gain reliable and valid knowledge and to explore the relationship between the theory and practice. As in this research we also tried to evaluate the success of the establishment of the international criminal court through exploring the activities of the ICC in theory (by the review of the Rome Statute) and in practice (by concentrating on the present situation of different cases and investigations of the ICC). Summarizations:

  • Planning the whole research paper;
  • Review the entire Rome Statute and some other international instruments;
  • Concentrated study through lots of books, journals, some national as well as some international publications;
  • Web site materials;
  • Review the present activities and existing situations of cases referred to the ICC.

Historical Antecedents

2.1 Introduction

“There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance.”<href=”#_ftn2″ name=”_ftnref2″ title=””>[2]

The international community has long aspired to the creation of a permanent international court, and, in the 20th century, it reached consensus on definitions of genocide, crimes against humanity and war crimes. And they also felt the necessity to create an independent, permanent criminal court.

The International Criminal Court (ICC), governed by the Rome Statute, is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.

On 17 July 1998, the international community reached an historic milestone when 120 States adopted the Rome Statute, the legal basis for establishing the permanent International Criminal Court.

Here in this chapter we will see how folks worked and played before the international criminal court comes into existence and also its current situation. Because it is a well known saying that “By looking at what has happened in the past and the current situation of today, we can better understand what can happen in the future.”

2.2 The Establishment of the International Criminal Court

The establishment of an international tribunal to judge political leaders accused of war crimes was first made during the Paris Peace Conference in 1919 by the Commission of Responsibilities. The issue was addressed again at conference held in Geneva under the auspices of the League of Nations on 1–16 November 1937, but no practical results followed. The United Nations states that the General Assembly first recognized the need for a permanent international court to deal with atrocities of the kind committed during World War II in 1948, following the Nuremberg and Tokyo Tribunals. At the request of the General Assembly, the International Law Commission drafted two statutes by the early 1950s but these were shelved as the Cold War made the establishment of an international criminal court politically unrealistic.<href=”#_ftn3″ name=”_ftnref3″ title=””>[3]

Benjamin B. Ferencz, an investigator of Nazi war crimes after World War II and the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, one of the twelve military trials held by the U.S. authorities at Nuremberg, later became a vocal advocate of the establishment of an international rule of law and of an International Criminal Court. In his first book published in 1975, entitled Defining International Aggression – The Search for World Peace, he argued for the establishment of such an international court.<href=”#_ftn4″ name=”_ftnref4″ title=””>[4]

The idea was revived in 1989 when A. N. R. Robinson, then Prime Minister of Trinidad and Tobago, proposed the creation of a permanent international court to deal with the illegal drug trade. While work began on a draft statute, the international community established ad hoc tribunals to try war crimes in the former Yugoslavia and Rwanda, further highlighting the need for a permanent international criminal court.

Following years of negotiations, the General Assembly convened a conference in Rome in June 1998, with the aim of finalizing a treaty. On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the United States, and Yemen.

The Rome Statute became a binding treaty on 11 April 2002, when the number of countries that had ratified it reached 60. The Statute legally came into force on 1 July 2002, and the ICC can only prosecute crimes committed after that date. The first bench of 18 judges was elected by an Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the court on 1 March 2003.The court issued its first arrest warrants on 8 July 2005, and the first pre-trial hearings were held in 2006.<href=”#_ftn5″ name=”_ftnref5″ title=””>[5]

2.3 Its Member

The Rome Statute is an international treaty, binding only on those States which formally express their consent to be bound by its provisions. These States then become “Parties” to the Statute. The Statute itself said the accepting state shall cooperate with the international criminal court.<href=”#_ftn6″ name=”_ftnref6″ title=””>[6]

The international criminal court started its journey with the ratification of sixty countries. But as of 12 October 2010, 114 states are members of the International Criminal Court<href=”#_ftn7″ name=”_ftnref7″ title=””>[7]. Out of them 31 are African States, 15 are Asian States, 18 are from Eastern Europe, 25 are from Latin American and Caribbean States, and 25 are from Western European and other States.<href=”#_ftn8″ name=”_ftnref8″ title=””>[8]

The African States which become members of the international criminal court are-

  • Burkina Faso (30 November 1998) ,
  • Senegal (2 February 1999),
  • Ghana (20 December 1999) ,
  • Mali (16 August 2000 ),
  • Lesotho (6 September 2000) ,
  • Botswana( 8 September 2000 ),
  • Sierra Leone (15 September 2000) ,
  • Gabon (20 September 2000) ,
  • South Africa (27 November 2000) ,
  • Nigeria (27 September 2001),
  • Central African Republic( 3 October 2001),
  • Benin (22 January 2002),
  • Mauritius (5 March 2002),
  • Niger (11 April 2002),
  • Democratic Republic of the Congo (11 April 2002),
  • Uganda (14 June 2002),
  • Namibia ( 20 June 2002),
  • Gambia ( 28 June 2002),
  • United Republic of Tanzania (20 August 2002),
  • Malawi (19 September 2002),
  • Djibouti (5 November 2002),
  • Zambia (13 November 2002),
  • Guinea (14 July 2003),
  • Congo (3 May 2004),
  • Burundi (21 September 2004),
  • Liberia (22 September 2004),
  • Kenya (15 March 2005),
  • Comoros (18 August 2006),
  • Chad (1 January 2007),
  • Madagascar (14 March 2008),
  • Seychelles (10 August 2010).

The Asian States which become members of the international criminal court are-

  • Fiji (29 November 1999),
  • Tajikistan (5 May 2000),
  • Marshall Islands (7 December 2000),
  • Nauru(12 November 2001),
  • Cyprus( 7 March 2002),
  • Cambodia( 11 April 2002) ,
  • Mongolia( 11 April 2002),
  • Jordan(11 April 2002),
  • Timor-Leste (6 September 2002),
  • Samoa( 16 September 2002) ,
  • Republic of Korea(13 November 2002)
  • Afghanistan(10 February 2003),
  • Japan (17 July 2007) ,
  • Cook Islands(18 July 2008),
  • Bangladesh (23 March 2010).

The States which from Eastern Europe are-

  • Croatia (21 May 2001),
  • Serbia (6 September 2001),
  • Poland (12 November 2001),
  • Hungary (30 November 2001),
  • Slovenia (31 December 2001), Estonia (30 January 2002),
  • The Former Yugoslav Republic of Macedonia (6 March 2002),
  • Bosnia and Herzegovina (11 April 2002),
  • Slovakia (11 April 2002),
  • Bulgaria (11 April 2002),
  • Romania (11 April 2002),
  • Latvia (28 June 2002),
  • Albania (31 January 2003),
  • Lithuania (12 May 2003),
  • Georgia (5 September 2003),
  • Montenegro (3 June 2006),
  • Czech Republic (21 July 2009),
  • Moldova (12 October 2010).

Latin American and Caribbean States are-

  • Trinidad and Tobago (6 April 1999),
  • Belize (5 April 2000),
  • Venezuela (7 June 2000),
  • Costa Rica (30 January 2001),
  • Argentina (8 February 2001),
  • Dominica (12 February 2001),
  • Paraguay (14 May 2001),
  • Antigua and Barbuda (18 June 2001),
  • Peru (10 November 2001),
  • Ecuador (5 February 2002),
  • Panama (21 March 2002),
  • Brazil (20 June 2002),
  • Bolivia (27 June 2002),
  • Uruguay (28 June 2002),
  • Honduras (1 July 2002),
  • Colombia (5 August 2002),
  • Saint Vincent and the Grenadines (3 December 2002),
  • Barbados (10 December 2002),
  • Guyana (24 September 2004),
  • Dominican Republic (12 May 2005),
  • Mexico (28 October 2005),
  • Saint Kitts and Nevis (22 August 2006),
  • Suriname (15 July 2008),
  • Chile (29 June 2009),
  • Saint Lucia (18 August 2010),

Western European and Other States are-

  • San Marino (13 May 1999),
  • Italy (26 July 1999),
  • Norway (16 February 2000),
  • Iceland (25 May 2000),
  • France (9 June 2000),
  • Belgium (28 June 2000),
  • Canada (7 July 2000),
  • New Zealand (7 September 2000),
  • Luxembourg (8 September 2000),
  • Spain (24 October 2000),
  • Germany (11 December 2000),
  • Austria (28 December 2000),
  • Finland (29 December 2000),
  • Sweden (28 January 2001),
  • Andorra (30 April 2001),
  • Denmark (21 June 2001),
  • Netherlands (17 July 2001),
  • Liechtenstein (2 October 2001),
  • United Kingdom (4 October 2001),
  • Switzerland (12 October 2001),
  • Portugal (5 February 2002),
  • Ireland (11 April 2002),
  • Greece (15 May 2002),
  • Australia (1 July 2002),
  • Malta (29 November 2002).<href=”#_ftn9″ name=”_ftnref9″ title=””>[9]

Among all of the above countries it is Moldova, which ratified the ICC Statute on 12 October 2010, will become the 114th state party on 1 January 2011.<href=”#_ftn10″ name=”_ftnref10″ title=””>[10]

A further 34 countries have signed but not ratified the Rome Statute,<href=”#_ftn11″ name=”_ftnref11″ title=””>[11] and the law of treaties obliges these states to refrain from “acts which would defeat the object and purpose” of the treaty.<href=”#_ftn12″ name=”_ftnref12″ title=””>[12] Three of these states—Israel, Sudan and the United States, —have “unsigned” the Rome Statute, indicating that they no longer intend to become states parties and, as such, they have no legal obligations arising from their signature of the statute.<href=”#_ftn13″ name=”_ftnref13″ title=””>[13] A number of states, including China and India are critical of the court and have not signed the Rome Statute.

2.4 Its Head office

The ICC is an independent international organization, and is not part of the United Nations system. The official seat of the court is in The Hague, Netherlands (the host state) but its proceedings may take place anywhere as it has been said by the statute itself.<href=”#_ftn14″ name=”_ftnref14″ title=””>[14]

The International Criminal Court is currently housed in interim premises on the eastern border of the city of The Hague in The Netherlands. The host state, The Netherlands, is providing the building known as the “Arc” free of charge until 2012. The interim premises do not fulfill the Court’s requirements in terms of office space and security in the long term, and permanent premises are therefore envisaged.

Permanent premises are to be built on the site of the Alexanderkazerne, a former military barracks complex on the outskirts of The Hague near Scheveningen. The site is to be provided free of charge by the Host State.<href=”#_ftn15″ name=”_ftnref15″ title=””>[15]

2.5 Its President

There are three presidents in the international criminal court. One is president, one is first vice president and one is second vice president.They are responsible for the proper administration of the Court, with the exception of issues concerning the Office of the Prosecutor.

The first president of the international criminal court was Mr.Phillippe Kirsch who acted as the president from 2003 to 2009.<href=”#_ftn16″ name=”_ftnref16″ title=””>[16] On 11 March 2009 the judges of the International Criminal Court (ICC) elected Judge Sang-Hyun Song from Republic of Korea as the new President of the Court. Judge Fatoumata Dembele Diarra from Mali was elected as First Vice-President and Judge Hans-Peter Kaul from Germany as Second Vice-President of the international criminal court. All three were elected by an absolute majority for a term of three years.<href=”#_ftn17″ name=”_ftnref17″ title=””>[17]

As provided in the Rome Statute<href=”#_ftn18″ name=”_ftnref18″ title=””>[18], the First Vice-President shall act in place of the President in the event that the President is unavailable or disqualified. The Second Vice-President shall act in place of the President in the event that both the President and the First Vice-President are unavailable or disqualified.

2.6 Its Language

Regarding the language of the international criminal court there is an individual article contain in its statute. According to this languages are divided particularly for official and working purpose as Official and working languages.<href=”#_ftn19″ name=”_ftnref19″ title=””>[19]

Regarding the official language of the court The Article said, the official languages of the Court shall be Arabic, Chinese, English, French, Russian and Spanish. The judgments of the Court, as well as other decisions resolving fundamental issues before the Court, shall be published in the official languages too.<href=”#_ftn20″ name=”_ftnref20″ title=””>[20]

Regarding the working languages of the Court the same Article further said that, the working languages of the court shall be English and French. The Rules of Procedure and Evidence shall determine the cases in which other official languages may be used as working languages.<href=”#_ftn21″ name=”_ftnref21″ title=””>[21]

Beside the above rules there is also an other option open for any party that is at the request of any party to a proceeding or a State allowed to intervene in a proceeding, the Court shall authorize a language other than English or French to be used by such a party or State, provided that the Court considers such authorization to be adequately justified.<href=”#_ftn22″ name=”_ftnref22″ title=””>[22]

2.7 Its Finance

The ICC is primarily financed by the contributions from the states parties. But as it has been said in the statute that, the Court may receive and utilize, additional funds, voluntary contributions from Governments, international organizations, individuals, corporations and other entities, in accordance with relevant criteria adopted by the Assembly of States Parties<href=”#_ftn23″ name=”_ftnref23″ title=””>[23]. So the court also receives voluntary contributions other than the state parties.

The amount payable by each state party is determined using the same method as the United Nations:each state’s contribution is based on the country’s capacity to pay, which reflects factors such as a national income and population. The maximum amount a single country can pay in any year is limited to 22% of the court’s budget; Japan paid this amount in 2008. The court spent 80.5 million in 2007, and the Assembly of States Parties has approved a budget of €90,382,100 for 2008and €101,229,900 for 2009.<href=”#_ftn24″ name=”_ftnref24″ title=””>[24]

2.8 Miscellaneous

The Rome Statute also contains provision relating to withdrawal from being a state party. A State Party may, by written notification addressed to the Secretary-General of The United Nations, withdraw from this Statute and such withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.<href=”#_ftn25″ name=”_ftnref25″ title=””>[25]

Structural Basis of the International Criminal Court

3.1 Introduction

A committee is organic rather than mechanical in its nature: its structure is like a plant. It takes root and grows, it flowers, wilts, and dies, scattering the seed from which other committees will bloom in their turn.<href=”#_ftn26″ name=”_ftnref26″ title=””>[26]

It is necessary for any Committee, Organization, or Institution to have its own structure based on which such Committee Organization or Institution will be run in the future days. Likewise the International Criminal Court also has its own individual structure. And in this chapter we will see the structure of the International Criminal Court in details.

The International Criminal Court (ICC) is governed by an Assembly of States Parties. The court consists of four organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.<href=”#_ftn27″ name=”_ftnref27″ title=””>[27]

3.2 Assembly of State Parties

The court’s management oversight and legislative body, the Assembly of States Parties, consists of one representative from each state party. Each state party has one vote and “every effort” has to be made to reach decisions by consensus. If consensus cannot be reached, decisions are made by vote.<href=”#_ftn28″ name=”_ftnref28″ title=””>[28] The Assembly is presided over by a president and two vice-presidents, who are elected by the members to three-year terms.<href=”#_ftn29″ name=”_ftnref29″ title=””>[29]

The Assembly meets in full session once a year in New York or The Hague, and may also hold special sessions where circumstances require. Sessions are open to observer states and non-governmental organizations.<href=”#_ftn30″ name=”_ftnref30″ title=””>[30]

The Assembly elects the judges and prosecutors, decides the court’s budget, adopts important texts (such as the Rules of Procedure and Evidence), and provides management oversight to the other organs of the court. The Rome Statute allows the Assembly to remove from office a judge or prosecutor who “is found to have committed serious misconduct or a serious breach of his or her duties” or “is unable to exercise the functions required by this Statute”.<href=”#_ftn31″ name=”_ftnref31″ title=””>[31]

The states parties cannot interfere with the judicial functions of the court.<href=”#_ftn32″ name=”_ftnref32″ title=””>[32] Disputes concerning individual cases are settled by the Judicial Divisions.

At the seventh session of the Assembly of States Parties in November 2008, the Assembly decided that the Review Conference of the Rome Statute shall be held in Kampala, Uganda, during the first semester of 2010.<href=”#_ftn33″ name=”_ftnref33″ title=””>[33]

3.3 Presidency

The Presidency is one of the four Organs of the Court. It is composed of the President and First and Second Vice-Presidents, all of whom are elected by an absolute majority of the Judges of the Court for a three year renewable term. The judges composing the Presidency serve on a full-time basis.

The Presidency is responsible for the overall administration of the Court, with the exception of the Office of the Prosecutor, and for specific functions assigned to the Presidency in accordance with the Statute. <href=”#_ftn34″ name=”_ftnref34″ title=””>[34]

According to article 38 of the Rome Statute, the judges of the Court elected the Presidency on 11 March 2009. It is composed of

The Presidency will coordinate and seek the concurrence of the Prosecutor on all matters of mutual concern.

3.4 Judicial Divisions

The Judicial Divisions consist of the 18 judges of the court, organized into three divisions—the Pre-Trial Division, Trial Division and Appeals Division—which carry out the judicial functions of the court. The judges of each Division sit in Chambers which are responsible for conducting the proceedings of the Court at different stages.<href=”#_ftn35″ name=”_ftnref35″ title=””>[35]

The Judges are elected to the court by the Assembly of States Parties. They serve nine-year terms and are not generally eligible for re-election. All judges must be nationals of states parties to the Rome Statute, and no two judges may be nationals of the same state. They must be “persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices”.<href=”#_ftn36″ name=”_ftnref36″ title=””>[36]

The Prosecutor or any person being investigated or prosecuted may request the disqualification of a judge from “any case in which his or her impartiality might reasonably be doubted on any ground”. Any request for the disqualification of a judge from a particular case is decided by an absolute majority of the other judges<href=”#_ftn37″ name=”_ftnref37″ title=””>[37]. A judge may be removed from office if he or she “is found to have committed serious misconduct or a serious breach of his or her duties” or is unable to exercise his or her functions. The removal of a judge requires both a two-thirds majority of the other judges and a two-thirds majority of the states parties.<href=”#_ftn38″ name=”_ftnref38″ title=””>[38]

3.5 Office of the Prosecutor

The Office of the Prosecutor is responsible for conducting investigations and prosecutions. It is headed by the Prosecutor, who is assisted by two Deputy Prosecutors. The Rome Statute provides that the Office of the Prosecutor shall act independently; as such, no member of the Office may seek or act on instructions from any external source, such as states, international organizations, non-governmental organizations or individuals.

The Prosecutor may open an investigation under three circumstances:<href=”#_ftn39″ name=”_ftnref39″ title=””>[39]

  • when a situation is referred to him by a state party;
  • when a situation is referred to him by the United Nations Security Council, acting to address a threat to international peace and security; or
  • When the Pre-Trial Chamber authorizes him to open an investigation on the basis of information received from other sources, such as individuals or non-governmental organizations.

Any person being investigated or prosecuted may request the disqualification of a prosecutor from any case “in which their impartiality might reasonably be doubted on any ground”.<href=”#_ftn40″ name=”_ftnref40″ title=””>[40] Requests for the disqualification of prosecutors are decided by the Appeals Division. A prosecutor may be removed from office by an absolute majority of the states parties if he or she “is found to have committed serious misconduct or a serious breach of his or her duties” or is unable to exercise his or her functions.<href=”#_ftn41″ name=”_ftnref41″ title=””>[41] However, critics of the court argue that there are “insufficient checks and balances on the authority of the ICC prosecutor and judges” and “insufficient protection against politicized prosecutions or other abuses”. Henry Kissinger says the checks and balances are so weak that the prosecutor “has virtually unlimited discretion in practice”.<href=”#_ftn42″ name=”_ftnref42″ title=””>[42]

As of October 2009, the Prosecutor is Luis Moreno Ocampo of Argentina, who was elected by the Assembly of States Parties on 21 April 2003 for a term of nine years.<href=”#_ftn43″ name=”_ftnref43″ title=””>[43]

3.6 Registry

The Registry is responsible for the non-judicial aspects of the administration and servicing of the court. This includes, among other things, “the administration of legal aid matters, court management, victims and witness’s matters, defense counsel, detention unit, and the traditional services provided by administrations in international organizations, such as finance, translation, building management, procurement and personnel”.<href=”#_ftn44″ name=”_ftnref44″ title=””>[44] The Registry is headed by the Registrar, who is elected by the judges to a five-year term. The current Registrar is Silvana Arbia, who was elected on 28 February 2009

3.7 Other Offices & Detention Unit

As we know from the previous chapter that the official seat of the court is in The Hague, Netherlands, but its proceedings may take place anywhere. The ICC also maintains a liaison office in New York and field offices in places where it conducts its activities. As of 18 October 2007, the court had field offices in Kampala, Kinshasa, Bunia, Abéché and Bangui.<href=”#_ftn45″ name=”_ftnref45″ title=””>[45]

The <href=”#Detention_centre” title=”People detained by the International Criminal Court”>ICC’s detention centre comprises twelve cells on the premises of the Scheveningen branch of the Haaglanden Penal Institution, The Hague suspects held by the International Criminal Tribunal for the former Yugoslavia are held in the same prison and share some facilities, like the fitness room, but have no contact with suspects held by the ICC.<href=”#_ftn46″ name=”_ftnref46″ title=””>[46] The detention unit is close to the ICC’s future headquarters in Alexanderkazerne.

As of October 2009, the detention centre houses five suspects: Thomas Lubanga, Germain Katanga, Mathieu Ngudjolo Chui, Jean-Pierre Bemba and former Liberian President Charles Taylor. Taylor is being tried under the mandate and auspices of the Special Court for Sierra Leone,<href=”#_ftn47″ name=”_ftnref47″ title=””>[47] but his trial is being held at the ICC’s facilities in The Hague because of political and security concerns about holding the trial in Freetown.<href=”#_ftn48″ name=”_ftnref48″ title=””>[48]

3.8 Miscellaneous

Apart from above mentioned offices the International Criminal Court also includes a number of semi-autonomous offices such as the Office of Public Counsel for victims and the Office of Public Counsel for Defense. These Offices fall under the Registry for administrative purposes but otherwise function as wholly independent offices. The Assembly of States Parties has also established a Trust Fund for the benefit of victims of crimes within the jurisdiction of the Court and the families of these victims.<href=”#_ftn49″ name=”_ftnref49″ title=””>[49]

Function & Jurisdictional Competency of the International Criminal Court

4.1 Introduction

The normal or special action of the court we known as function where jurisdiction is the court’s authority to hear and decide cases. The jurisdiction and functioning of the International Criminal Court is governed by the provisions of the Rome Statute.

In this chapter we will see in brief the functions and jurisdictional competency of the International Criminal Court.

4.2 Main Function of the Court

As we all know the two main functions of criminal law are; to protect and to punish. And for this purpose permanent judicial body established by the Rome Statute of the International Criminal Court (1998) to prosecute individuals accused of some specific crimes.

The Statute itself said that the court may exercise its functions and powers, on the territory of any State Party and, by special agreement, on the territory of any other State.<href=”#_ftn50″ name=”_ftnref50″ title=””>[50]

The International Criminal Court hears cases of the gravest breaches of international law, specifically cases of genocide, crimes against humanity, war crimes, and crimes of aggression. A case can be brought to the ICC if one or both parties is a national party to the Treaty of Rome. A case can also be recommended by the UN Security Council through a mandatory Chapter Seven resolution bypassing the signatory to the Treaty of Rome requirement.

The ICC is a court of last resort and normally only acts in the most serious of cases as mentioned in above which other countries are unable or unwilling to investigate or prosecute.<href=”#_ftn51″ name=”_ftnref51″ title=””>[51]

So we can say the main function of the court is to punish those who committed the most serious crimes fall within the jurisdiction of the court which are threaten to the Peace, security, and well- being of the world.

4.3 Jurisdiction of the Court

The Court may exercise jurisdiction over genocide, crimes against humanity and war crimes and crime of aggression.<href=”#_ftn52″ name=”_ftnref52″ title=””>[52] These crimes are defined in detail in the Rome Statute. In addition, a supplementary text of the “Elements of Crimes” provides a breakdown of the elements of each crime.

The Court has jurisdiction over individuals accused of above mentioned crimes. This includes those directly responsible for committing the crimes as well as others who may be liable for the crimes, for example by aiding, abetting or otherwise assisting in the commission of a crime. The latter group also includes military commanders or other superiors whose responsibility is defined in the Statute.

The Court does not have universal jurisdiction. The overall competencies of the International Criminal Court regarding its jurisdiction are discussed in the following:

4.3.1 Crimes within the jurisdiction of the court

­­­Article 5 of the Rome Statute grants the court jurisdiction over four groups of crimes, which it refers to as the “most serious crimes of concern to the international community as a whole”: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The statute defines each of these crimes except for aggression: it provides that the court will not exercise its jurisdiction over the crime of aggression until such time as the states parties agree on a definition of the crime and set out the conditions under which it may be prosecuted. In June 2010, the ICC’s first review conference in Kampala, Uganda expanded the definition of “crimes of aggression” and the ICC’s jurisdiction over them. The ICC will not be allowed to prosecute for this crime until at least 2017.<href=”#_ftn53″ name=”_ftnref53″ title=””>[53]

Many states wanted to add terrorism and drug trafficking to the list of crimes covered by the Rome Statute; however, the states were unable to agree on a definition for terrorism and it was decided not to include drug trafficking as this might overwhelm the court’s limited resources. India lobbied to have the use of nuclear weapons and other weapons of mass destruction included as war crimes but this move was also defeated. India has expressed concern that “the Statute of the ICC lays down, by clear implication, that the use of weapons of mass destruction is not a war crime. This is an extraordinary message to send to the international community.”<href=”#_ftn54″ name=”_ftnref54″ title=””>[54]Some commentators have argued that the Rome Statute defines crimes too broadly or too vaguely. For example, China has argued that the definition of ‘war crimes’ goes beyond that accepted under customary international law.<href=”#_ftn55″ name=”_ftnref55″ title=””>[55]

4.3.2 Territorial jurisdiction of the court

During the negotiations that led to the Rome Statute, a large number of states argued that the court should be allowed to exercise universal jurisdiction. However, this proposal was defeated due in large part to opposition from the United States<href=”#_ftn56″ name=”_ftnref56″ title=””>[56]. A compromise was reached, allowing the court to exercise jurisdiction only under the following limited circumstances:

  • where the person accused of committing a crime is a national of a state party (or where the person’s state has accepted the jurisdiction of the court);
  • where the alleged crime was committed on the territory of a state party (or where the state on whose territory the crime was committed has accepted the jurisdiction of the court); or
  • where a situation is referred to the court by the UN Security Council.<href=”#_ftn57″ name=”_ftnref57″ title=””>[57]

4.3.3 Temporal jurisdiction of the court

The court’s jurisdiction does not apply retroactively: it can only prosecute crimes committed on or after 1 July 2002 (the date on which the Rome Statute entered into force). Where a state becomes party to the Rome Statute after that date, the court can exercise jurisdiction automatically with respect to crimes committed after the statute enters into force for that state.<href=”#_ftn58″ name=”_ftnref58″ title=””>[58]

4.3.4 Complementarities

The ICC is intended as a court of last resort, investigating and prosecuting only where national courts have failed. The Rome Statute provides that a case is inadmissible if:

“(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d) The case is not of sufficient gravity to justify further action by the Court.”<href=”#_ftn59″ name=”_ftnref59″ title=””>[59]

Article 20, paragraph 3, specifies that, if a person has already been tried by another court, the ICC cannot try them again for the same conduct unless the proceedings in the other court:

“(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.”<href=”#_ftn60″ name=”_ftnref60″ title=””>[60]

So in order to take consideration of any case the International Criminal Court must notice about its aforesaid jurisdictional competency which can be said as one of the precondition of referring any case before the court.

Procedure followed by the International Criminal Court

5.1 Introduction

There are some specific Articles in the Rome Statute which deals with the working procedure of the International Criminal Court. This procedure can be considered as thestrategic link between the Court’s vision and its day-to-day operations the ultimate goal of which is to provide all a clear and easily understood plan of action required to carry out in order to fulfill the overall object of the International Criminal Court.

In this chapter we will see those procedures in detail which the International Criminal Court is required to follow according to the provision of its statute.

5.2 Working Procedure of the Court

As like the other statute the Rome Statute also have some provisions which speak about the whole working procedure, of the International Criminal Court which the court is bound to follow in every stage of the court’s proceeding.

According to Article 53 of the Rome Statute the Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

(a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

(b)The case is or would be admissible under article 17; and

(c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. <href=”#_ftn61″ name=”_ftnref61″ title=””>[61]

After that the Prosecutor shall have the power to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses;<href=”#_ftn62″ name=”_ftnref62″ title=””>[62]

The Prosecutor may also conduct investigations on the territory of a State:

(a) In accordance with the provisions of Part 9; or

(b) As authorized by the Pre-Trial Chamber under article 57, paragraph 3 (d).

Where the Prosecutor considers an investigation to present a unique opportunity to take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for the purposes of a trial, the Prosecutor shall so inform the Pre-Trial Chamber.<href=”#_ftn63″ name=”_ftnref63″ title=””>[63] In that case, the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defense. <href=”#_ftn64″ name=”_ftnref64″ title=””>[64]

At the request of the Prosecutor, the Pre-Trial Chamber may issue such orders and warrants as may be required for the purposes of the investigation.<href=”#_ftn65″ name=”_ftnref65″ title=””>[65]

At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that:

(a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and

(b) The arrest of the person appears necessary:

(i) To ensure the person’s appearance at trial,

(ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings, or

(iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.<href=”#_ftn66″ name=”_ftnref66″ title=””>[66]

The warrant of arrest shall remain in effect until otherwise ordered by the Court. On the basis of the warrant of arrest, the Court may request the provisional arrest or the arrest and surrender of the person under Part 9. Upon the surrender of the person to the Court, or the person’s appearance before the Court voluntarily or pursuant to a summons, the Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed, and of his or her rights under this Statute, including the right to apply for interim release pending trial. But the Pre-Trial Chamber shall also ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor. If such delay occurs, the Court shall consider releasing the person, with or without conditions.<href=”#_ftn67″ name=”_ftnref67″ title=””>[67]

However within a reasonable time after the person’s surrender or voluntary appearance before the Court, the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her counsel. And it must be remembered that within a reasonable time before the hearing, the person shall:

(a) Be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial; and

(b) Be informed of the evidence on which the Prosecutor intends to rely at the hearing.<href=”#_ftn68″ name=”_ftnref68″ title=””>[68]

At the hearing, the Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. At the hearing, the person may: Object to the charges, Challenge the evidence presented by the Prosecutor, and Present evidence.

The Pre-Trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. Based on its determination, the Pre-Trial Chamber shall:

(a) Confirm those charges in relation to which it has determined that there is sufficient evidence, and commit the person to a Trial Chamber for trial on the charges as confirmed;

(b) Decline to confirm those charges in relation to which it has determined that there is insufficient evidence;

(c) Adjourn the hearing and request the Prosecutor to consider:

(i) Providing further evidence or conducting further investigation with respect to a particular charge; or

(ii) Amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court.

Where the Pre-Trial Chamber declines to confirm a charge, the Prosecutor shall not be precluded from subsequently requesting its confirmation if the request is supported by additional evidence. But where the Pre-Trial Chamber confirm the charges in that case after the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges. If the Prosecutor seeks to add additional charges or to substitute more serious charges, a hearing under this article to confirm those charges must be held. After commencement of the trial, the Prosecutor may, with the permission of the Trial Chamber, withdraw the charges. Once the charges have been confirmed the Presidency shall constitute a Trial Chamber which, shall be responsible for the conduct of subsequent proceedings and may exercise any function of the Pre-Trial Chamber that is relevant and capable of application in those proceedings.<href=”#_ftn69″ name=”_ftnref69″ title=””>[69]

According to the Rome Statute the accused shall be present during the trial. But if the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom.<href=”#_ftn70″ name=”_ftnref70″ title=””>[70]

At the commencement of the trial, the Trial Chamber shall have read to the accused the charges previously confirmed by the Pre-Trial Chamber. The Trial Chamber shall satisfy itself that the accused understands the nature of the charges. It shall afford him or her the opportunity to make an admission of guilt in accordance with article 65 or to plead not guilty. The Trial Chamber shall also ensure that a complete record of the trial, which accurately reflects the proceedings, is made and that it is maintained and preserved by the Registrar.<href=”#_ftn71″ name=”_ftnref71″ title=””>[71]

Where the accused makes an admission of guilt and the Trial Chamber also satisfied with the admission than it shall consider the admission of guilt, together with any additional evidence presented, as establishing all the essential facts that are required to prove the crime to which the admission of guilt relates, and may convict the accused of that crime. And where the Trial Chamber is of the opinion that a more complete presentation of the facts of the case is required in the interests of justice, in particular the interests of the victims, the Trial Chamber may:

(a) Request the Prosecutor to present additional evidence, including the testimony of witnesses; or

(b) Order that the trial be continued under the ordinary trial procedures provided by this Statute, in which case it shall consider the admission of guilt as not having been made and may remit the case to another Trial Chamber.<href=”#_ftn72″ name=”_ftnref72″ title=””>[72]

In order to convict the accused, the Court must be convinced of the guilt of the accused without any reasonable doubt.

The Rome Statute also has some provisions relating to appeal and revision. According to which a decision of the International Criminal Court may be appealed by the convicted person, or the Prosecutor on that person’s behalf on any of the following grounds:

(i) Procedural error,

(ii) Error of fact,

(iii) Error of law, or

(iv) Any other ground that affects the fairness or reliability of the proceedings or decision.<href=”#_ftn73″ name=”_ftnref73″ title=””>[73]

So if we summarize the whole aforesaid Articles regarding the working procedure of the court than we can say States Parties or the United Nations Security Council may refer situations of crimes within the jurisdiction of the Court to the Prosecutor. The Prosecutor evaluates the available information and commences an investigation unless he determines there is no reasonable basis to proceed. The Prosecutor may also begin an investigation on his own initiative. In doing so, he receives and analyzes information submitted by a variety of reliable sources. If the Prosecutor concludes there is a reasonable basis to proceed with an investigation, he asks a Pre-Trial Chamber to authorize an investigation. The Prosecutor’s investigations cover all facts and evidence relevant to an assessment of criminal responsibility. The Prosecutor investigates incriminating and exonerating circumstance equally and fully respects the rights of the accused. During the duration of an investigation, each situation is assigned to a Pre-Trial Chamber. The Pre-Trial Chamber is responsible for the judicial aspects of proceedings. Among its functions, the Pre-Trial Chamber, on the application of the Prosecutor, may issue a warrant of arrest or a summons to appear if there are reasonable grounds to believe a person has committed a crime within the jurisdiction of the Court. Once a wanted person has been surren