Crc-journal Volume 1 No 1-2

UDC: 341.645

International Criminal Court, Victory of the Modern Concept of New International Legal Cooperation

Ramadan GASHI

Abstract

With establishment and work commencement of the permanent International Criminal Court, a very important phase of constitution of the international criminal law was concluded. This great achievement is a result of more than hundred years of work, for stipulating legal-penal obstacles, as well as for guaranteeing the individuals’ position as subject of international law. Importance of establishment of this court particularly resides in guaranteeing and protection of human rights. In other words, establishment of this court is victory of the concept of human rights and a foundation of the international legal order, as well as a powerful catalysis for strengthening national criminal laws that will be of function to the ICC and serve for the good of each citizen, each nation and all humankind. Establishment of the International Criminal Court in July 1^st 2002, marks one of greatest achievements in the efforts for developing the International Law and protection of Human Rights. Importance and role of the International Criminal Court are becoming tangible during its functioning. Also, as predicted in the Statute of Rome, the Court begun functioning after it was ratified by 60 state parties, and there are ongoing awareness efforts for the worldwide audience to put this court into action as soon as possible. Most of these states have accepted that the ICC is a great achievement as such, having in mind the earlier nearly hostile reactions of states against interference into their independent penal jurisdiction. International expectations of the ICC are high, and it will be vital for the credibility of the whole Rome Statute system that both the Court and States are able to rise to the challenges.
Establishment of International Criminal Court (ICC) its function and competencies

International criminal courts are a relatively recent development. The modern history of international criminal law began after the First World War (WW I).¹¹⁷ After the war, the Allies established a commission to determine who was responsible for starting the war and committing various violations of the laws of war. The commission recommended that a special tribunal be established to try persons for violations of the laws of war and humanity. Although the Treaty of Versailles includes provisions for prosecutions, none of these provisions were ultimately utilised.

The International Criminal Court is a permanent institution which was created by a treaty, the Rome Statute, in 1998. The Rome Statute came into force on 1 July 2002, after 66 states ratified it. Many features of the ICC are distinct from the ICTY and ICTR, including its role as a complementary, as opposed to the primary, judicial institution with regards to national courts. The ICC is a court of “last resort” and is based on the principle of complementarity—that the primary responsibility for exercising jurisdiction over international crimes rests with domestic jurisdictions and that the ICC cannot act unless the country with jurisdiction over the case is not investigating and prosecuting or is “unwilling or unable genuinely” to do so.¹¹⁸

International Criminal Court, established as a court of last resort to help end of impunity for the perpetrators accused of the most serious crimes of international concern, namely genocide, crimes against humanity, war crimes and aggression. The current status is that there are 139 signatories and 122 States Parties. As of 1 July 2012, 122 countries are States Parties to the Rome Statute. Of these, 34 are from Africa, 18 from Asia-Pacific, 18 from Eastern Europe, 26 from Latin America and the Caribbean and 25 from Western European and North America.¹¹⁹

Establishment of the International Criminal Court in 2002 is among greatest achievements of the International Law development and protection of Human Rights. The Court comprises of 18 judges. The court is situated in Hague. The mandate of the Court is to try individuals rather than States, and to hold such persons accountable for the most serious crimes of concern to the international community as a whole, namely the crime of genocide, war crimes, crimes against humanity, and the crime of aggression, when the conditions for the exercise of the Court’s jurisdiction over the latter are fulfilled. The ICC’s expenses are financed primarily by the States Parties with voluntary contributions from their governments, and by international organisations, individuals, corporations and other entities. The ICC is complementary to the national systems and as a result states have the firot opportunity to investigate and prosecute a suspect.¹²⁰ In contrast to the other ad hoc tribunals such as the ICTY, it does not adhere to the complementary position of national judicial system with an international tribunal but rather emphasizes the primacy of national criminal jurisdiction.

According the Rome Statute, the official languages of the Court shall be Arabic, Chinese, English, French, Russian and Spanish, while the working languages of the Court shall be English and French.¹²¹ The judgements of the Court, as well as other decisions resolving fundamental issues before the Court, shall be published in the official languages. The Presidency shall, in accordance with the criteria established by the Rules of Procedure and Evidence, determine which decisions may be considered as resolving fundamental issues for the purposes of this paragraph.

The Rules of Procedure and Evidence shall determine the cases in which other official languages may be used as working languages. So far, 21 cases in eight (8) situations have been brought before the ICC and most of the cases are from Africa which leads part of the international community to express inter alia the idea that the Court is functioning as an African Court. Pursuant to the Rome Statute, the Prosecutor can initiate an investigation on the basis of a referral from any State party or from the United Nations Security Council. In addition, the Prosecutor can initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court received from individuals or organisations .

Overview about the International Criminal Court

The International Criminal Court is an independent permanent institution which has an international legal personality.¹²² Even though the Court was established by the United Nations (UN), it is not part of it, but it maintains a cooperative relationship with the UN.¹²³

The Court is composed of four organs: Presidency, Judicial Divisions, Office of the Prosecutor, Registry, Other Offices

Universal Jurisdiction and Complementarity

Considering the provisions in the Rome Statute and the ICC criminal jurisdiction over the most serious crimes of international concern as elicited above, all the States Parties are obliged to take measures for the prosecution or extradition of those responsible under the maxim aut dedere out judicare.

This refers to the obligation of a state under the international law either to extradite someone who has committed a crime of international concern to another state, which is prepared to try him or to have him prosecuted before its own courts.¹²⁴ In the meantime, the universal jurisdiction binds all the states to cooperate or initiate the proceedings to prosecute, surrender, and extradite the suspects of serious crimes to the ICC despite where and against whom the crimes were committed.

However, the Court does not have a universal jurisdiction. It has a limited jurisdiction and exercises it:

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  if the accused is a national of a State Party to the Rome Statute;
  
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  if the alleged crime took place on the territory of a State Party;
  
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  if a situation is referred to the Court by the United Nations Security Council; and, or
  
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  if a State not party to the Statute “accepts” the Court's jurisdiction.
  

Even though the ICC has a complementary power to the existing national judicial systems, it may only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes. Therefore, the primary responsibility to investigate and prosecute the Rome Statute crimes occurring within their jurisdiction is upon the States.

1. 
   Territorial jurisdiction of the ICC
   

Considering its limited power to exercise fully the universal jurisdiction, the Court is allowed to exercise its jurisdiction only in the following cases, where:

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  the accused who committed a crime is a national of a State Party or have accepted the jurisdiction of the ICC;¹²⁵
  
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  the alleged crime was committed on the territory of a State Party; or
  
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  a situation is referred to the Court by the UN Security Council.¹²⁶
  

Crimes of the ICC jurisdiction and beyond

As mentioned before, according to Article 5 of the Rome Statute, the ICC has jurisdiction over four groups of crimes committed by nationals of a State Party or on the territory of a State Party on or after 1 July 2002, the date of entry into force of the Rome Statute. These crimes are referred 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.

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  The crime of genocide -means any of the following acts committed with intent to destroy, in whole or part, a national, ethnical, racial or religious group by methods such as : Killing members of the group; Causing serious bodily or mental harm to members of the group; Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intended to prevent births within the group; Forcibly transfering children of the group to another group.
  

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  Crimes against humanity - means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Murder; Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; Torture; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity; Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court Enforced disappearence of persons; The crime of apartheid; Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
  

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  War Crimes - means grave breaches of the dispositions of the Geneva Conventions of 1949 as well as other serious violations of the laws and customs of war. It should be noted that a war crime can be committed within the framework of both national and international conflicts.
  

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  Crime of Aggression - the definition of this crime could not be agreed upon at the Rome conference and it is foreseen to rediscuss this crime at the revision conference scheduled for 2009.
  

With respect to the jurisdiction rationae personae, the Rome Statute provides that the ICC only has jurisdiction over natural persons at least eighteen years of age at the time the crime was allegedly committed. There is no immunity under the Statute due to the official rank of the accused person. It should be noted that the question of pursuing moral persons was raised during the Rome conference. Nevertheless the discussion on this subject raised disagreements amongst so many States, that it was decided not to integrate this competence into the ICC.

Finally insofar as the jurisdiction rationae temporis is concerned the ICC has jurisdiction only for crimes committed after the entry into force of the Rome Statute (1st of July 2002). Furthermore, for States which become Parties subsequently, the competence of the ICC only holds for the crimes committed after the Statute comes into force for that State. But it would suffice that either the State where the crime was committed or that the nationality of the author of the crime be party to the Statute for the competence of the ICC to be acknowledged.

To conclude it is to be noted that the ICC is competent to pass sentence in three instances: imprisonment, fining and confiscation. Imprisonment is the principal sanction; confiscation and fining being accessory punishments (punishments which can be an adjunct to the principal sanction but which cannot be imposed independently.

Obligation of state parties and other states to cooperate, with the purpose of prosecuting the criminals for offences that fall under the Statute of Rome

The ICC, is based on the principle of complementarity which binds all State Parties of the ICC with the obligation to cooperate and assist the Court in all requests for assistance. Under the general obligation to cooperate, provides that the States Parties shall, in accordance with the provisions of the Rome Statute¹²⁷, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court, prosecution of crimes within the jurisdiction of the Court.

Moreover, the States are obliged to cooperate fully with the execution of arrest warrants and surrender requests, as well as provide other forms of cooperation set out in article 93 of the Rome Statute. This was reiterated at the Assembly of States Parties 12 th session, on 27 November 2013 as a major challenge for the Court considering the lack of cooperation from some States in the implementation of judicial orders, irrespective of them being parties to the Rome Statute or not; the lack of ideological and financial support from some States as well as the absence of support by others to safeguard its reputation and credibility.

Indeed, the political support to the Court is crucial so that it obtains the necessary cooperation from States Parties, even though this remains a major challenge for the Court in preserving “its judicial independence as it will continue to involve on a complex internal political scene." The Court’s independence is not just a consideration of political nature; it seems to also be both structural and financial: a better understanding by Member States of the functioning of the ICC as an independent court as well as the need for streamlining judicial proceedings in order to avoid lengthy trials entail structural internal reforms and considerable financial support from Member States.

One of the main topics of the Assembly of States Parties session was also the Agreement on Privileges and Immunities. The Assembly emphasized the importance of respect for the privileges and immunities of the Court’s staff and officials in accordance with article 48 of the Rome Statute, called upon States Parties to ratify the Agreement on Privileges and Immunities, and also called upon States Parties and other States, where possible, to consider entering into agreements or arrangements with the Court concerning, inter alia, protective measures for witnesses and so forth. Those difficulties confirm that the universality of the Rome Statute beyond the numerical ratification is not yet a reality. In this regards, a staff member of the Court is of the view that , as long as the international society remains a community of individual sovereign States, the non-cooperation of States will hamper the efforts of the Court to ensure that justice is done and is seen to be done.
Principle of Complementarity

The ICC is a court of “last resort” and is based on the principle of complementarity. The complementarity principle in the Rome Statute of the ICC is one of the cornerstones on which the international criminal justice is based. It regulates the theoretical and practical division of labour between the Court and domestic jurisdictions. While the United Nations ad hoc Tribunals have precedence or primacy over national jurisdictions, the ICC will only exercise jurisdiction when a state is inactive or ‘‘unwilling or unable genuinely to carry out the investigation or prosecution’’ of alleged perpetrators of core international crimes such as war crimes, crimes against humanity and genocide. The ICC is complementary to its domestic counterparts, creating a relationship of vertical influence and guidance with respect to national criminal law systems.¹²⁸

The ICC does not come into play unless a state is either ‘‘unwilling’’ or ‘‘unable’’ to genuinely prosecute and punish international crimes committed within its jurisdiction¹²⁹. Consequently, if a state tries to shield the person responsible for mass atrocities by undertaking sham prosecutions designed to acquit, the ICC may step in and take over the proceedings. A similar ground for admissibility when national proceedings have already been concluded, 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 were not genuinely carried out:

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  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;
  
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  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;
  
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  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;
  
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  The case is not of sufficient gravity to justify further action by the Court."
  

The logic conclusion is that the complementarity principle requires from all States to show good faith in delivering themselves justice to avoid impunity and ensuring accountability at national level.