Author : Pallabi Paul, Pursuing B.A.Ll.B(Hons) at Department Of Law ,Assam University Silchar,Assam.
International Criminal Court role is pivotal for the purpose of achieving the International justice which maintains a peace for a long time, maintains stability and progess after the conflict in a society.In this article, the author highlights the adoption of the Rome statute of International Criminal Court, establishment of the Court as well as the Court’s power in deciding various cases of violation of human rights.Further discussion has been made relating to Human Rights Watch Submission to the Independent Review of the knowledgable persons regarding the functions of International Criminal Court and the jurisdiction of Court to apply international laws.In this article detail study of the role of International Criminal Court has been made along with the shortcomings of its authority to decide various issues that covers hijacking as,well as terrorism, which is a major menace required to be controlled in the world,moreover study has been made of various cases referred to the International Criminal Court.
KEYWORDS – International Criminal Court, Rome Statue,Crime,Human Rights,Peace.
For more than fifty years ,the proposal was considered for the purpose of formation of International Criminal Court and the the advisory committee which consists of numbers of Jurists who were given responsibility to form plans,for the constitution of Permanent Court of International Justice.Besides that India has not signed the Rome Statute,and hence are not a party to the Statute of International Criminal Court .Malaysia has recently signed and accepted the Rome Statute and became the 124th State party to the International Criminal Court.
THE FORMATION OF THE STATUTE OF INTERNATIONAL CRIMINAL COURT
The International Criminal Court (ICC) deals with the serious offences like for the purpose of prosecution of heinous international offences , which includes war crimes, genocide,as well as the crimes against humanity.In 1998, the Rome Statute was adopted .However, the function of International Criminal Court started from 2003, after that ad hoc tribunals were established in 1990s in order to deal with issues of atrocities and offences committed in the former Yugoslavia as well as in Rwanda. 20 years after the establishment of Rome Statute, the International Criminal Court has made certain changes in order to bring global attention to responsibilities.On the other side, instances of violation of human rights increases along with many other international offences they may continue to proliferate, its mandate has proven to be both more needed and more daunting than its founders envisioned.(1)
JURISDICTION OF COURT
The International Criminal Court has the jurisdiction in the serious offences related to international community as a whole. The Court has jurisdiction as per the provisions of the statute regarding the crimes like –
- The crime related to genocide which is violating human rights
- Crimes against humanity
- War crimes
- The crimes of aggression
The International Criminal Court has jurisdiction regarding the offences committed after the entry into force of the statute.A state which becomes a party to the statute hereby accepts the jurisdiction of the Court with respect of the crimes referred to in Article 5.However ,the Court shall have no jurisdiction over any person who was under the age of 18 years at the time of the alleged commission of a crimes.The statute is applicable to all persons without any distinction based on official capacity.
Moreover the official as a Head of State or Government, or a member of a Government or Parliament, an elected representatives or a government official shall in no case exempt a person from criminal responsibility under the statutes ,nor shall it,in and of itself, constitute a ground for reduction of sentence. Immunities or special procedural rules which may attach to the official capacity.(2)
APPLICABLE LAWS- As per Article 21 of the Statute -The International Criminal Court is empowered to apply the statute elements of crime as well as the procedures, rules as provided under the Statute. The Court is empowered to apply treaties ,the principles and rules provided under the International Law as well as the principles governing the armed conflict under International Law.Moreover ,the Court is competent to apply the general principles of various national laws of the legal system, however those principles which are in conflict with the statute , the principles under International Law as well as the norms of International law is avoided. The ICC is able to apply the rule of laws and principles decided in the earlier decisions of the Court. Moreover, while interpreting the provision of legislation as per the Article 21 ,it should not be in contravention with the human rights which are internationally accepted and must not be in adverse distinction on the grounds of gender, age,language, religion, race,colours ,political, national, ethic or other belief etc.(3)
CONSTITUTION OF INTERNATIONAL CRIMINAL COURT
As per under Article 34 of the Statute ,the International Criminal Court consists of certain organs –
- The Presidency
- The Prosecutor Office.
- A Division for appeal ,trial and pre trial
- The Registry
The International Criminal Court consists of 18 Judges who must have certain qualities like high moral character, decision of the Judge should be impartial, and must have the distinguish qualifications as needed in their own nations for the purpose of appointment to the highest Judicial Services ,the candidates for election to the Court should be nominated by the State party to the statute .The person nominated for election or for electing him further in the Court should have competence in substantive and Procedure of the Criminal law and experience in professional legal capacity which is required for decision making in the Court.Moreover, the candidate must be expert in speaking any languages of the Court including English, French, Russian, Spanish, Chinese,Arabic.Moreover no judge is allowed to be from two national of the same state and the elected Judges works in the Court for a tenure of nine years.As per Article 62 of the Statute ,in case prior decision has not made ,the place of trial will be the seat of the International Criminal Court.(4)
PENALTIES – As per Article 77 of the Rome Statute ,it states –
As per Article 110,the International Criminal Court is empowered to conferr any of the given penalty on a person who is convicted of a offences under Article 5 of Rome Statute
- The ICC is empowered to impose an imprisonment upto 30 years maximum to the convicted person.
- In case of gravity and serious offence ,and based upon the circumstances of the case ,the Court is empowered to confer life imprisonment.
- The Court is empowered to impose fines as per the criteria under the Rules of Procedure and Evidence.
- The Court is empowered to seize,forfeit the properties and assests received from any crime. (5)
COMPENSATION TO AN ARRESTED OR CONVICTED PERSON –
Any victim who has been unlawfully arrested or detained in the prison shall have right to get compensation as per Article 85 of the Statute.
HUMAN RIGHTS WATCH SUBMISSION TO THE INDEPENDENT EXPERT REVIEW OF THE INTERNATIONAL CRIMINAL COURT
The International Criminal Court (ICC) plays a vital role for providing justice ,especially in the worst international crimes and it has given decision on various issues.
Moreover in case of any heinious,serious crimes committed in violation of human rights urges or influences the Court to provide justice to the victims of atrocities all over the world in case all other doors are closed for providing justice.
The International Criminal court plays a viral role in asserting the rule-of-law globally by assisting in the principle that nobody is above the law.The court’role became subject of criticism due to internal and external challenges that have hampered its delivery of justice and did not meet the legitimate expectations of victims of several offences.
An important step was taken by The Assembly of States Parties (ASP) after taking decision to commission an Independent Expert Review, after the urge of the court’s leadership to determine the performance, The review procedures of the Independent Expert , after 2020 elections for electing the prosecutor and appointment of six new judges, gave a chance to launch certain processes with the purpose to get relevant improvement in Courts function.While,the International Criminal court and member states should take the opportunities properly.. The International Criminal Court is bound by the primary goal during time of weakened commitment to the global rule-of-law and its Court is required to function efficiently in order to fight against against impunity.
However ,the certain changes made in order to enhance the strength of the court’s policy and procedures for practicing will lead the court to face politicized opposition in order to enhance the reach of individual criminal responsibility even to the most powerful,as created by the originator.
The Human Rights Watch found ,after that certain suggestions were given to help the experts in their review.(6)
The capability of International Court of Justice to be a declaration of the rule-of-law can be possible in case the matter is considered and comprehended by the victims of several crimes. In order to make the expert review effective,There is requirement of being perceived as credible and legitimate by all stakeholders. The issues which are considered for review includes the following – prosecutorial strategies in preliminary examinations, case selection and prioritization, completion strategies, and processes to support judicial decision-making—raise sensitive questions at the heart of this independence. Due to that , Human Rights Watch expects that large number of people may give recommendations which may be considered by the court officials.During the period, the active support made by state party and ASP is quite relevant to the court’s success.(7)
INTERNATIONAL CRIMINAL COURT INVESTIGATION
From 1st July ,2002 when Rome Statute has enforced, a dispute took place between the Lord’s Resistance Army and the authorities of Uganda ,where many instances of crime violating human rights and war crimes took place.
CURRENT REGIONAL FOCUS -NORTHERN UGANDA
PRE-TRIAL CHAMBER II
Judge Antoine Kesia-Mbe Mindua, Presiding Judge
Judge Tomoko Akane
Judge Rosario Salvatore Aitala
Jurisdiction in the general situation
Uganda ratified the Rome Statute, after that in January 2004, the dispute between the parties was sent in 1 July 2002 to the International Criminal Court. The International Criminal Court is empowered to exercise its jurisdiction on the dispute filed to it as well as upon the crimes violating human rights as per the Rome Statute committed on the territory of Uganda or by its people from 1 July 2002 onwards.
Context and alleged crimes
The International Criminal Court have done investigations and made attention towards the allegations of war crimes and crimes against humanity in Uganda that was committed in the context of an armed conflict predominantly between the Lord’s Resistance Army (LRA) and the national authorities, mainly in Northern Uganda, since 1 July 2002.
Later on when received the referral from the Government of Ugandan, a press was released by the Office of the Prosecutor ,where it stated that
In order to arrest the key leaders, support of various states as well as international institutions to sustain the efforts of the authorities of Ugandan is required . Many members of LRA were abducted and brutalised by the LRA leadership.Thus ,the reintegration of these individuals into Ugandan society is basic for sustainability of people of Northern Uganda.
In July 2004, the initiation of investigation took place and alleged crimes in this situation include:
War crimes, heinous offences like rape ,assault as well as bodily injuries ,cruel treatment of civilian,murder ,intentionally directing an attack against a civilian population; pillaging; and forced enlistment of children; and crimes against humanity, enslavement; sexual enslavement;and inhumane acts and suffering.The Court seats at the Hague in the Netherlands.After that incidents in 2005, the ICC’s Pre-Trial Chamber judges to issue the Court’s issued the warrant of arrest, against the members of the LRA. Then in 2015, a member of LRA surrendered himself. As per the The Rome Statute ,International Criminal Court is allowed to sit anywhere based upon the decision of the judges.The Court has formed offices in the places of conducting investigations.(8)
The fund provided in Court – However the International Criminal Court is supported financially by the member States and by contributions from, various international organisations, individuals, corporations as well as from the other entities.The International Criminal Court is an ad hoc tribunals for the former Yugoslavia and Rwanda, and for those courts which are established within the support structure of the United Nations in order to handle certain situations only have a limited primary goals and jurisdiction. (9)
WHETHER THE ESTABLISHMENT OF ICC REPLACES NATIONAL COURTS?
The ICC is a complements of the National court or justice system. It is competent to inquire and to try people, when nation concern of the person is not willing genuinely to do so. When the legal proceedings unnecessary delayed or their purpose is to shield individuals from their criminal responsibility. This is known as the principle of complementarity, where importance is given to national systems.While the States have certain responsibility for proceedings the criminals of the most of offences of heinous nature .(10)
PEACE OR JUSTICE: THE ICC’S ROLE IN THE PROTECTION OF HUMAN RIGHTS
The International Criminal Court, has been formed with the purpose to prosecute the violations of international law involving war crimes, crimes against humanity, and genocide, thus ICC plays a vital role in the protection of human rights.
However, apart from adoption of the Declaration of Human Rights, and various treaties set up for the protection of human rights, the presence of their support can’t be considered as insurance of protection of human rights by all States. Besides that fundamental human rights are still violated all over the world. (11)
The basic structure of human rights recognized various fundamental human rights which are required to be protected , but does not include a means of effectively enforcing their protection. But in absence of the mechanism for enforcement, the treaties helps only in referring the importance of human rights.(12)
Inter-American Court of Human Rights and the European Court of Human Rights, used to decide the disputes of the matters like grievances against States, not deals with violation of individual’s right.However ,the International Criminal Court performs important function of prosecuting common people who have committed an act in contravention of international law. The courts inflicted penalty, the penalty acts to serve as a preventive measures for criminals of various offences. ICC’s mandate include to prevent the violations of international law in order to protect fundamental human rights.(13)
ICC – LIZ
An exterior view of the International Criminal Court, where in 5th Dec 2011, Laurent Gbagbo,who was the Ivory Coast President appeared before the Court in order to answer four charges of crimes against humanity in the Hague, Netherlands.The impact of the ICC as a means of effectively enforcing the human rights framework and deterring violations of those rights remains in question, however. The role of ICC in dealing with the crimes, and the establishment of peace act effectively lower the instances of violations of human rights. However in the case of ICC, the decision of establishment of justice is binding over the establishment of peace as courts function.
As per Article 53 of Rome Statute, the Prosecution is bound to look after the interests of justice as well as victims before initiating investigative works.
Thus the Prosecutor considers the requirements of victims as generally weighing in favor of prosecutions, for conferring the justice to the parties,on the other hand ,protection of victims is also given attention. The investigation of ICC would assist in determining its function in the protection of human rights.While, from Office of the Prosecutor or the organs of the Court,no one subsequently evaluates the effect of the Court’s work. Michael Broache,a scholar reiterated that indictments conferred by the ICC acts as deterrance of atrocities, moreover indictments exacerbate crimes. Hyeran Jo and Beth Simmons also asserted the effectiveness of the Court in preventing offences. (14)
The International Criminal Court is required to examine their work,in finding the effectiveness of the prosecutions. While, the ICC performs important role in filling the gap of accountability for protecting the international human rights framework, it should take measures for reducing the future violations of human rights. That can be done by organized and continued evaluation of the effect of its investigations and prosecutions in order to find the best practices, on the other hand the parties have start reasearch for an adoption of the similar practice by the Court, which will permit research and implementation of the conclusion of such work. (15)
In 2011,due to the allegations against the Libyan Leader and others that they were involved in killing numbers of unarmed civilian while the protest took place in Arab ,after that UN Security Council referred the dispute for resolution to International Criminal Court.Then ICC issued warrant of arrest for Qaddafi,his son and his brother-in-law,but in order to escape from getting arrested Qaddafi hided and later on killed before his apprehension and his son, Saif al-Islam, still in fugitive.(16)
In Sudan’s Darfur ,Omar al-Bashir was alleged to have committed the offence of war crimes, genocide including offences against humanity and punishment was awarded to him by International Criminal Court He was involved in the conspiracy of mass killings and deportations of people belongs to different ethnic groups.In order to escape from being caught he traveled with friendly foreign leaders.Then in April 2019, the military of Sudanese Government ousted him after few months of anti-government protests and then arrests him.
Uhuru Kenyatta.After the Presidential Election in Kenya ,in 2010 ,an investigation initiated regarding violence, offences where large number of people were killed ,where five politicians were suspected to have committed the offences, then Kenyatta won the election in 2013,after that too investigation continued, where William Ruto was prime sustect .
The International Criminal court extinguished the charges against Kenyatta then in 2016 charge was filed against Ruto with the prosecutor’s office stated that Kenyan government was not supportive and due to tampering of witnesses ,the case was undermined .(17)
WHAT IS THE U.S. INSTANCE ?
The administration of Bill Clinton U.S.,took participation in discussion related to Rome Statue and many policy makers uphold the role of ICC.
Later on the administration was against adopting the treaty regarding the issue that prosecutor would have over power and that may lead to prosecution against the soldiers of United States and officials. Then Clinton authorized officials in United States to sign and accented the statute, but he opposed to sent it to the Senate for approval until U.S. concerns were addressed.Then in 2002, President George W. Bush withdrew the U.S. signature.The fear of U.S. is that International Criminal Court would prosecute U.S. soldiers operating in combat zones. The Congress enacted the American Service-Members’ Protection Act,where provision was included in order to reduce financial support to the members of ICC who were not in favour to surrender U.S. personnel to the International Criminal Court.Moreover, the President was also legally authorized to apply all methods in order to free Americans who were detained by the International Criminal Court. The Bush administration refused to obliged by the bilateral agreements with many other countries which made them not to hand over U.S. personnel.In several instances, Washington has backed the efforts made by the International Criminal Court, but the Bush administration in 2005 permitted the United Nations Security Council to send the matter of Darfur case, then it provide assistance for the investigation of ICC. In 2011, the administration of President Barack Obama voted and supported the Security Council to refer the matter of Libya investigation. It assisted to refer many fugitives to the Hague and made proposal for providing dollars of amount as rewards for information on individuals accused of atrocities.Later on the Trump administration has taken a harder line, and Bensouda asked to investigate about the armed forces of United States as well as CIA personnel for war crimes including violation of human rights in Afghanistan, as well as by her investigation into allegations relating to Israeli crimes in the occupied West Bank and Gaza Strip. In a September 2018 ,John Bolton, National Security Advisor John Bolton made declarations that the White House would not support the International Criminal Court and would stop connection with the citizens of U.S. or Israeli.
In 2019,Bensouda’s U.S. visa was cancelled due the threatening of the Secretary of State Mike Pompeo to cancel the visas of any ICC members who is involved in investigation of the United States. Then in 2020,ICC focused into offences in Afghanistan ,overruling the earlier decision of Court.Then,Trump signed an order, announcing a national emergency over the investigation and inflicting punishment against individuals associated with the ICC.(18)
CRITICISM OF INTERNATIONAL CRIMINAL COURT
Some of the criticism was that Court has been conferred less power due to which its not effective enough to prevent war criminals from controlling any more offences.While some are of the view that excessive prosecutorial power,threatening state sovereignty, and that reduces its other role of considering the issue of political bias.Arguments regarding the qualifications of judges also made .Meanwhile, some worry that the anticipation of international justice would increase disputes further by convincing the war criminals from surrendering.Moreover, the counselor in ICC have supported regarding the shortcomings.Other than that complaints of US Major power were made. China and India,stated that would ultimately violate on their sovereignty. In 2016, Moscow stated to removing its signature from the treaty, when ICC in 2014 inserted annexation of Crimea as an occupation.And ICC was accused by some African countries on the allegations of disproportionately targeting the African continent,many of the cases filed in ICC have dealt with alleged crimes in African states. Ultimate in 2016, the African Union made a proposal for a mass withdrawal.(19)
The International Criminal Court performs a vital role in protection of human rights ,though there are certain limitations that includes the offences of hijacking and terrorism, which is a major terror all over the world and cause a huge impact in the international community like to the innocent people. Moreover, the State Parties by following the provisions given under the Rome Statue, cooperate with the International Criminal Court in the process of investigation and prosecution of various offences.Based on the Statue of Rome ,a conclusion has been made that all States are not prepared to form a Court strong enough to have jurisdiction over all the international crimes.A review conference is required to be held in order to remove the current shortcomings.
(1)Dr.S.K.Kapoor,International Law & Human Rights, 387,(Dr.Nagendra Singh,20th edition, 2016)
(3)Id – 389
(4)Dr.S.K.Kapoor,International Law & Human Rights, 390 (Dr.Nagendra Singh,20th edition, 2016)
(6)Human Right Watch,April 15, 2020https://www.hrw.org/news/2020/04/16/human-rights-watch-submission-independent-expert-review-international-criminal,accessed July 2,2020
(11)Liz White,Peace for Justice-The ICC’s role in protection of Human Rights,
https://kenan.ethics.duke.edu/peace-or-justice-the-iccs-role-in-the-protection-of-human-rights/ accessed July 2,2020
(12)Liz White,Peace for Justice – The ICC’s role in protection of Human Rights, https://kenan.ethics.duke.edu/peace-or-justice-the-iccs-role-in-the-protection-of-human-rights/accessed July 2,2020