The Jurisdiction of the International Criminal Court

In July 1998 in Rome, 120 Member States of the United Nations adopted a treaty to establish -for the first time in the history of the world – a permanent International Criminal Court (ICC). This treaty entered into force on July 1, 2002, sixty days after sixty States have become parties to the Statute through ratification or accession.

“The long-held dream of a permanent International Criminal Court is nearing reality,” United Nations Secretary-General Kofi Annan said recently. “Our hope is that, by punishing the guilty, the ICC will bring some comfort to the surviving victims and to the communities that have been targeted. More important, we hope it will deter future war criminals, and bring nearer the day when no ruler, no State, no junta and no army anywhere will be able to abuse human rights with impunity.”

It is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression, although it cannot currently exercise jurisdiction over the crime of aggression. It can only prosecute crimes committed on or after the date it came into force i.e., July 1, 2002.

As of November 2008, 108 states are members of the Court; a further 40 countries have signed but not ratified the Rome Statute. However, a number of states, including China, Russia, India and the United States, are critical of the Court and have not joined.

The Court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council. The Court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore left to individual states.

To date, the Court has opened investigations into four situations: Northern Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur. The Court has issued public arrest warrants for twelve people; six of them remain free, two have died, and four are in custody. The Court’s first trial, of Congolese militia leader Thomas Lubanga, is due to begin in January 2009.

The official seat of the Court is in The Hague, Netherlands, but its proceedings may take place anywhere.

CHAPTER I

The end of a great war frequently brings a revision of the laws of war in its wake. The close of World War I saw the drafting of the 1929 Geneva Conventions to protect wounded soldiers and prisoners of war. A more elaborate set of treaties, the Geneva Conventions of 1949, granting further protections to soldiers, sailors, prisoners of war, and civilians, followed the conclusion of World War II. The aftermath of the Cold War saw its own revolution in the laws of war. This revision, however, did not occur in the context of a formal treaty negotiation. The post-1989 development has been more complex and subtle than earlier efforts, and its full contours remain unclear. This latest phase in the life of the laws of war is a consequence of the interaction between two formally separate legal regimes: the law of armed conflict and international criminal law. [1]

The UN Charter gave to the General Assembly the responsibility, among other things, to initiate studies and make recommendations for “promoting international co-operation in the political field and encouraging the progressive development of international law and its codification.” [2] The International Law Commission (ILC) is a body of experts named by the UN General Assembly and charged with codification and progressive development of international law. After the Second World War, the General Assembly had asked the Commission to prepare what are known as the ‘Nuremberg Principles’, a task it completed in 1950, and the ‘Code of Crimes Against the Peace and Security of Mankind’, a job that took considerably longer. Much of the work on the draft statute of an international criminal court and the draft code of crimes went on within the Commission in parallel, as if the two tasks were hardly related. [3] The General Assembly also established a committee that was in charge of drafting the statute of international criminal court. Composed of seventeen States, it submitted its report and draft statute in 1952. [4] But by then, political tensions associated with the Cold War had made progress on the war crimes agenda virtually impossible.

In 1989, Trinidad and Tobago introduced a suggestion in the General Assembly for the establishment of a specialized international court to combat drug trafficking. The General Assembly requested that the ILC complete the draft statute.’ This draft became the basis for the negotiating text for the treaty of the International Criminal Court (“ICC”) that would be approved by 120 nations in Rome in 1998 and subsequently known as the Rome Statute.

When Yugoslavia began to spiral into civil war in 1991, the United Nations Security Council had emerged from the Cold War paralysis of the previous forty years. The reinvigorated Council, however, proved incompetent at stopping the bloodshed in Yugoslavia or at halting the atrocities. In July 1992, reporters began filing stories chronicling death camps that revived memories of Nazi Germany. Numerous NGOs and international organizations reported mass rapes, killings, and torture committed in Bosnia. The Security Council’s attempts to fashion political solutions to the conflict and to discourage the commission of atrocities through economic and military sanctions fell flat. Individuals from prominent NGOs, leading political figures, and organizations associated with the United Nations called for the establishment of an international tribunal, modeled on the Nuremberg Tribunal, to prosecute perpetrators of war crimes committed in Yugoslavia.

In September 1992, the German foreign minister, Klaus Kinkel, had formally introduced the idea of an international war crimes tribunal to the United Nations General Assembly. In January 1993, President Clinton took office in the United States. His U.N. Ambassador, Madeline Albright, was enthusiastic about the idea of a tribunal. Heading off a rival U.S. proposal, France officially brought the idea of a tribunal to the Security Council early in 1993. Privately, however, key French officials were opposed to the idea, fearing that it would endanger French troops serving as peacekeepers in Bosnia and hamper the European-led peace negotiations. The British opposed the tribunal on the same grounds. Thus after increasing publicity about ongoing atrocities highlighted the failure of the Security Council’s political efforts, members of the Security Council acquiesced to the proposals for a tribunal the International Criminal Tribunal for the former Yugoslavia (ICTY) came into existence. It is a United Nations court of law dealing with war crimes that took place during the conflicts in the Balkans in the 1990’s. Since its establishment in 1993 it has irreversibly changed the landscape of international humanitarian law and provided victims an opportunity to voice the horrors they witnessed and experienced. [5]

What appeared in 1993-1994 to be minor gestures toward international criminal responsibility proved to be major steps in institutionalization of international criminal law and important precedent for the ICC. In the 1990s, two streams of justice converged: transitional justice from the wave of democratizations and the Nuremberg-type justice in the ICTY and International Criminal Tribunal for Rwanda [6] (ICTR). [7]

In 1994, the UN General Assembly decided to pursue work towards the establishment of an international criminal court, taking the International Law Commission’s draft statute as a basis. [8] The Following years of negotiations aimed at establishing a permanent international tribunal to punish individuals who commit genocide and other serious international crimes, the United Nations General Assembly convened a five-week diplomatic conference in Rome in June 1998 “to finalize and adopt a convention on the establishment of an international criminal court”. [9] On 17 July 1998, the Rome Statute was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were Iraq, Israel, Libya, the People’s Republic of China, Qatar, the United States, and Yemen.

Article 126 of the statute provided that it would enter into force shortly after the number of states that had ratified it reached sixty. [10] This happened on 11 April 2002, when ten countries ratified the statute at the same time at a special ceremony held at the United Nations headquarters in New York. The treaty entered into force on 1 July 2002; the ICC can only prosecute crimes committed on or after that date.

The negotiation of the war crimes provision in the statute reflects the continuing influence of the Great Powers, particularly the permanent members of the Security Council. The adoption of the Court’s jurisdictional scheme, however, diverged sharply from the history of the development of the laws of war in the preceding fifty years because it represented a significant defeat of the U.S. position.

The unlikely success of the ICC negotiations was partly due to the end of the Cold War and the ensuing burst of international cooperation. The ICTY and ICTR also contributed to the birth of the ICC in important ways. The Tribunals demonstrated that international criminal punishment can be successfully, if awkwardly, accomplished. Furthermore, the Tribunals’ statutes and jurisprudence provided a key model for the negotiations of the ICC treaty.

CHAPTER II

The ICC is the first permanent international criminal tribunal. While the ICC has a relationship with the United Nations, it is a treaty-based body. [11] The ICC was created by a multi-lateral treaty, known as the Rome Statute. The Statute and hence the ICC system, entered into force on July 1st, 2002 – after a sufficient number of countries had ratified the treaty. There are 108 States, parties as of January 1st, 2009. The ICC has jurisdiction only over crimes committed after the entry or force of the statute i.e. by the earliest July, 2002. The ICC covers a narrow range of international crimes, those that are traditionally considered as crimes against the international community: crimes of genocide, crimes against humanity, war crimes and the crime of aggression. [12]

Although the ICC was created to establish “jurisdiction over the most serious crimes of concern to the international community as a whole,” [13] the ICC does not establish universal jurisdiction. It is complementary to national criminal jurisdictions. The ICC must defer to State jurisdiction over alleged crimes, unless the State is unwilling or unable to genuinely investigate or prosecute. [14]

The office of the prosecutor of the ICC is formally investigating 4 “situations”. States self-referred three situations: Uganda and the Democratic Republic of Congo (DRC) and Central African Republic. The United Nations Security Council referred the third situation – Darfur, Sudan.

In Northern Uganda, the Government has been fighting the rebel group, the Lord’s Republican Army (LRA), since the mid-1980s. The LRA has kidnapped and brutalized an estimated 20,000 children to serve as soldiers or sex-slaves. Other children have become “night commuters” – forced to flee their villages every night to avoid abduction. There are currently almost a million people displaced due to the conflict. Alleged abuses include summary executions, torture and mutilation, recruitment of child soldiers, child sexual abuse, rape, forcible displacement and looting and destruction of civilian property. These acts may constitute war crimes, crimes against humanity, or even genocide. While the man perpetrators are members of the LRA, there are accusations of war crimes and other violations against the Ugandan Government.

In the DRC, armed conflict has raged since the 1990s. Millions of civilians have died in this largely forgotten war. Reports of states and organizations allege that there have been thousands of deaths by mass murder and summary execution since 2002, when the ICC would have jurisdiction. These reports also allege widespread rape, torture, forced displacement and the use of child soldiers.

In Central African Republic, On December 21, 2004, the ICC Prosecutor, Luis Moreno Ocampo, received a letter from the Government of the CAR, referring to the Court crimes within its jurisdiction committed on the country’s territory since July 1, 2002. The referral identified Angé-Felix Patassé and Jean-Pierre Bemba as individuals responsible for the violence. On May 22, 2007, the Prosecutor accepted CAR’s request to investigate the situation. The allegations refer to large scale acts of sexual violence such as massive rapes of hundreds of victims. In accordance with the ICC’s Rome Statute, the Prosecutor investigations focus on those individuals he believes bear the greatest responsibility for the gravest crimes. Prior to his decision to investigate, the Prosecutor conducted a thorough analysis of information provided by the Central African authorities and non-governmental and international organizations with regard to the alleged crimes. In November 2005, the Prosecutor sent a team to Bangui to collect additional information and speak with the victims. In accordance with the requirements of the Rome Statute, the Prosecutor determined that the situation meets the jurisdiction, admissibility, and interests of justice criteria.

In Darfur, Sudan, the death toll is rising every day despite the presence of African Union troops to supposedly keep the peace between the Government and rebel groups. Over 1.5 million people have been internally displaced with hundreds of thousands fleeing over the border into Chad. The government and its allied militias known as “Janjaweed” have been accused of widespread atrocities. Government forces and militia allegedly conduct indiscriminate attacks against civilians, include mass killings, “torture”, enforced disappearances, destruction of villages, rape and other forms of sexual violence, pillaging and forced displacement throughout Darfur.

The victims of these situations are entitled to a remedy under international law. Specifically, international human rights law generally recognizes a right to a remedy for victims, including:

Restitution (restoring victim to original position in terms of property, liberty, employment, etc.);

Compensation (for physical or emotional harm, lost opportunities and earnings, harm to reputation, cause for legal or expert assistance, and the like);

Rehabilitation (medical and psychological care, as well as legal and social services);

Satisfaction (cessation of violations, truth-telling, official recognition, and apology); and

Guarantee of non-repetition (measures to prevent re-occurrence of violence). [15]

The ICC statute provides that the Court establish principles for reparation to victims, including Restitution, Compensation and Rehabilitation. [16] The term “victims” includes natural persons, who have suffered harm from any crime within the jurisdiction of the Court. [17] Because certain war crimes are usually directed at legal persons, “victims” also include organizations or institutions that have sustained direct harm to property like a building used exclusively for religious purposes. [18]

While the ICC Statute does not explicitly exclude traditionally recognized remedies, such as Satisfaction and Non-repetition, the ICC does not have jurisdiction over States. Therefore, official recognition or apology or other forms of State action are beyond its powers. Collective awards, however, may approximate such forms.

On 26 January 2009, the ICC opened its first trial in the case against Congolese warlord Thomas Lubanga Dyilo. Lubanga was the first person charged in the Democratic Republic of Congo (DRC) situation as well as the Court’s first detainee. The leader of the Union of Congolese Patriots (UPC) is accused of enlisting and conscripting child soldiers to participate actively in hostilities. The Prosecution, the Defence, the Registry and 8 Legal Representatives of Victims representing 93 victims are participating in trial hearings. The trial marks a turning point for the Rome Statute, the ICC’s founding treaty, which entered into force only six years ago. The case also highlights the gravity of recruitment, enlistment and conscription of child soldiers.

CHAPTER III

The ICC is the first permanent criminal court with jurisdiction over the most serious crimes of concern to the international community as a whole. As stated in the Preamble to the Rome Statute, a primary reason for establishing the ICC was to put an end to impunity for the perpetrators of these crimes and to contribute to their prevention. However, even though the ICC is mandated to achieve these goals, the Preamble expressly acknowledges the obvious fact that the Court will not be in a position to accomplish this objective in isolation: it affirms that the effective investigation and prosecution of such crimes must be ensured by taking measures at the national level and by enhancing international cooperation, recalling that it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes.

This acknowledgement of the limited scope of the ICC’s activities has fundamental legal and practical reasons. First, the jurisdiction of the Court is limited in multiple ways. As far as jurisdiction ratione materiae is concerned, the Court is limited to adjudicating over the most serious crimes. [19] Its jurisdiction ratione temporis only exists with a view to crimes committed after July 1st 2002. Also, as on January 2009, only 108 states have become parties to the Rome Statute, which necessarily restricts its jurisdictional reach. Moreover, states which could predictably become territorial states (where relevant crimes occur) are less likely to become state parties in the reasonably near future, [20] so that the objective identified by the Preamble to the Rome Statute may become frustrated for lack of jurisdiction of the Court in many instances.

In addition to its limited jurisdiction, the ICC was given a deliberately restrictive admissibility regime. [21] According to the all-important principle of complementarity, the Court will only be able to commence proceedings where relevant states are not investigating or prosecuting the alleged international crimes, or where they purport to do so but in reality are unwilling or unable to genuinely carry out proceedings. [22]

Apart from these legal thresholds to the operation of the Court, there are considerable practical limitations on the work of the ICC: due to its limited resources, and since it is not per se restricted in its operation to only one conflict region, [23] the Court will not be in a position to judicially process all conflicts and situations in which crimes under the jurisdiction of the Court have been or are being committed. The reality is that such work regrettably seems to exist in abundance for both the ICC and national courts in foreseeable future. The issue at hand is how internationalized courts can fit into the picture, and whether and how these courts can be utilized to help render criminal justice in a timely, efficient, and consistent manner.

The Rome Statute itself provides in its Preamble, as pointed out earlier, that the main responsibility for the investigation and prosecution of crimes under the ICC’s jurisdiction lies with the states. It thus seems that if states avail themselves of the possibility to discharge their duties with the help of the international community, specifically the UN with regard to the management of their criminal justice system, and more specifically by cooperating with the UN within the framework of internationalized courts, then this is entirely in accordance with the object and purpose of the Rome Statute. [24]

CONCLUSION

Calls to establish an international criminal court date from the end of World War I. Since that time, however, the idea of an international criminal court was largely viewed as an idealistic quest pursued only by the hardiest of international idealists. The drive to establish an international criminal court paralleled, but did not form part of, the development of the laws of war. Indeed, as we have seen, the drafters of the laws of war consistently rejected proposals to provide for their enforcement in an international court.

Although the laws of war and international criminal law were briefly united in the Nuremberg and Tokyo Tribunals, they quickly diverged after the conclusion of those proceedings. At the same time that preparations for the 1949 Diplomatic Conference on the Geneva Conventions were underway, the United Nations General Assembly instructed its Committee on Codification of International Law to prepare a draft code of international criminal law. A separate sub- committee of the Committee on Codification pursued a draft code for an international criminal court. In the heat of the Cold War, neither the United States nor the Soviet Union welcomed these developments, and for decades they came to nothing.

The ICC exists to implement a treaty, the Rome Statute of 1998, which contains objectives, principles, and mechanisms over which there was a long debate, dispute, compromise, and finally both elation and disappointment. The Statute should be thought of more as a negotiated cognitive and political map than an architectural plan because even though it charts the territory and encompasses crucial compromises, there is no guarantee that it is a coherent design for an organization. [25]