International Criminal Court: Role and Functioning

The Author, Sankalpita Pal, is 2nd year, BBA.LLB student of Symbiosis Law School, Pune. She is currently interning with LatestLaws.com

INTRODUCTION

The establishment of International Criminal Court stemmed from a treaty of Rome Statute. The Rome Statute of the International Criminal Court was ratified by 10 countries On 11 April 2002.  The Rome Statute was a United Nations (UN) treaty. The ICC is head quartered at The Hague in the Netherlands.

The main objective behind the establishment of International Criminal Court (ICC) was that it would be treated as an International court of last resort. Canada was one of the earliest advocates of this historic tribunal. The Rome Statute officially came into force on the 1^st of July 2002 after more than 60 countries ratified this treaty. This Statute laid down the significant aspects of the ICC like general founding principles, jurisdiction, role of the court; basic functioning etc will be discussed in this article. Presently over 120 countries have ratified the legal obligations under ICC.

There are a few criticisms that the ICC has been facing. More so United States of America officially renounced its legal obligations to the International Criminal Court in May 2002 right after it signed the statute in April 2002. Many other Countries have expressed their reservations regarding the actual application of the ICC and its effectiveness. To understand the present conflicting opinions it is important to understand the actual role and the functioning of the ICC.

The Rome Statute is a multilateral treaty which is different from the ad hoc international tribunals. Neither the victors nor the Security Council resolution created it.

ROLE AND FUNCTIONING

The Rome statute contains 128 Articles and encompasses both Substantive and Procedural laws for Criminal resolution. The Statute is an instrument of International Criminal law. This criminal law instrument is further supplemented by Elements of Crime[i], Rules of Procedure & Evidence[ii] and Codification. These are the necessary requirement of the principle of legality and the standards of fair trial in order to protect the accused from procedural harassments[iii].

Purpose

1. The basic outline of Article 1 and the Preamble of the Rome Statute pronounces its primary purpose. The ICC is meant to follow the Principle of Complementarity. This principle lays down the relationship between the National Criminal Justice systems of the state parties and the ICC.  In fact the Preamble states that serious crimes should go unpunished and shall not only be paid heed to at a national level but also must be enhanced via international cooperation.
2. ICC has jurisdiction over persons involved with serious crimes which attract international concern. When a crime committed is essentially against humanity at large (Eg- War crimes) then such crimes are under the purview of the ICC. Crimes which are less serious in nature can easily be dealt with within National jurisdictions.
3. The National courts will be able to exercise jurisdiction over a broader category of crimes. The national courts will be able to deal with international crimes lesser in intensity and falls below the threshold of the ambit of ICC.
4. Article 4 of the Statute lays down two inherent needs of ICC

1. International Legal Personality
2. Legal capacity necessary for the exercise of its functions and the fulfillment of its purposes.

Role of ICC

1. The ICC enforces integrated mechanism for bringing about Individual Accountability for International Crimes.

The main role of ICC is to adjudicate upon individual accused of War crimes, Crimes against humanity and Genocides.  For the past few decades nations have felt the need of a proper mechanism that enforce laws that will hold individuals accountable for serious International crimes. For example- incase of violations of the Geneva Convention, Genocide conventions, customary laws for war crimes etc; national courts were expected to resolve the matter. This created confusion as to which national jurisdiction must be referred to. It is also observed that in most cases the National Courts were reluctant to act on such cases owing to widespread systematic violence and most importantly due to the involvement of States themselves.

Governments themselves were involved in such crimes thus national courts couldn’t effectively resolve such crimes. Thus, the perpetrators remained protected from impunity. Thus, to punish the agents of such governments and bring about not only collective but also individual criminal liability for such crimes, the ICC was established.

Note- the ICC doesn’t have universal jurisdiction. It only has jurisdiction over States which have voluntarily signed under it i.e. the States that have consented to their jurisdiction.

2.  To enforce an International justice System to prevent impunity.

As discussed above since the national courts were unwilling to act upon cases involving international genocide, war crimes etc; there was a dire need for an integrated third party or an International Justice System. ICC fulfills this need.

3. To resolve the limitations of the Ad Hoc tribunals

As evident from history (like the issues of former Yugoslavia and Rwanda or even Nazi Germany) ad hoc tribunals used to be set up to solve international crimes and bring about conviction. However, the scope of such tribunals were limited and thus the ICC steps in, in order to overcome such limitations.

4. The ICC recognizes the role of the Security Council.

The Security Council has a special role to maintain peace and security. It’s mentioned under the Rome Statute that the Security Council will be referring cases to ICC so that unnecessarily loose Ad Hoc tribunals are not created.

5. The ICC deals with 4 types of International Crimes.

1. Genocide- individuals having the intent to destroy in whole or part of a national, ethnic, racial, or religious group
2. War crimes- serious breach of the Geneva Convention. This convention lays down prohibitions on torture and attacks on civilians.
3. Crimes against humanity- gross violations with regard to large-scale attacks against civilian populations. It also includes murder, rape, torture imprisonment, bondage and slavery.
4. Crimes of aggression- threat of armed force by a state against another state. Also covers State actions violative of the UN Charter.

Functioning of the ICC

The ICC has 4 organs-

1. Presidency or the Head of the Court
2. Chambers- Ensuring fair trials
3. Office of the Prosecutor- Conducting investigations and prosecutions
4. Registry Supporting the Court

Presidency or the Head of the Court

The Presidency consists of 3judges (1 President and 2 Vice-Presidents) elected by an absolute majority of the 18 judges of the Court.

Max term- 2-3 years

Role- Administration of Court except for the Office of Prosecutor. It also ensures the enforcement of sentences.

The Chambers

The Court has 3 judicial divisions Pre-trial, Trial & The Appeals composed of seven, six and 5 judges respectively. The 18 judges, President and the Vice- President are assigned to these chambers.

The Office of Prosecutor

This is an independent body of the Court. It mandates, receives and analyses information on situations of international crimes within the jurisdiction of the ICC. It ultimately conducts investigation on such cases. It comprises of three divisions

1. The Investigation division- conducts investigation
2. The Prosecution division
3. The jurisdiction, Complementarity and cooperation division

The Registry

Main role- assists the court to conduct fair and impartial public trials. It provides Administration and operation support to the ICC.

The Operational processes

1. Referrals

Any State can request the Office of Prosecutor to carry out Investigation on a certain case within the jurisdiction. Even if a particular state is not a party to the Rome Statute, it can still request the assistance if the ICC in certain cases. The UN Security Council can also refer cases to the ICC. The Prosecutor himself can take initiatives and launch investigation in case of bonafide information. This is the process of referrals.

2. Analysis

The Prosecutor analyses the situation referred and determines whether the case is within the jurisdiction or not. He also determines the type of case i.e the 4 main categories discussed above before permitting it for investigation. Lastly he notifies the relevant State Parties about the Court intention to initiate investigation.

3. Investigation

The Office of Prosecutor initiates investigation and permits the collection of evidence. The risk involved for the safety of the victims and witnesses are of primary concern. The State parties also assist in such investigations.

Arrests

1. Only the Pre-Trial Chamber can request the Prosecution to issue warrant after proper investigation has been conducted. Even summons are sent after the Pre- Trial chamber permits it.
2. A warrant for arrest may only be issued for the reason of obtaining the appearance of the accused and also to prevent the person from continuing crimes.
3. After warrant is issued the Registrar transmits requests for Cooperation from state parties.
4. Once the necessary accused is arrested the ICC is informed.
5. The ICC doesn’t have any specific power arrest suspects and thus relies on the Cooperation of State Parties.
6. Responsibility to execute warrants issued is on State Parties. ICC is just the Judicial pillar and doesn’t have its own police force. The States form the operational pillar.
7. The ICC has a detention centre which is in conformity to the international human rights.

Note- if the Suspects or accused don’t have a means to pay for legal assistance the Court assigns one for them.

Charges before Trial

1. The suspects appear in Court and once the charges are confirmed in the Pre-trial hearing, The prosecution’s presence is crucial.
2. After the Pretrial the Court has 3 options either to confirm the charges and commit the case or to adjourn the hearing and order the prosecution to come up with sufficient evidence, or decline the charges.
3. Once charges are confirmed the Trial Chamber takes up responsibility. All procedural issues are considered first before the Trial begins.

The Trial

1. The Trial Chamber asks the accused whether he pleads guilty or not.
2. If the accused admits guilt then the Trial Chamber makes sure that the accused understands fully the consequences of his admission.
3. Then it convicts the accused. If he doesn’t admit to his guilt then the trial proceeds and the prosecution tries to prove his case. Material evidence and witnesses are presented. The burden of proof is on the prosecution. the accused has the right to examine the prosecution witnesses.

The Judgment and sentencing

1. After hearing the victims and witnesses and on analysis of the evidence produced before the court the judge determines whether the accused is guilty or not.
2. The judge may award a prison sentence or a fine or forfeiture of the proceeds of assets. The ICC cannot give death penalty. The maximum sentence it can award is 30 years. The ICC can award life sentences in rare cases.
3. The convicted are required to serve their sentence in a particular State designated by the Court. The imprisonment is governed by the respective State laws.

Note- Appeals are allowed. The prosecution may appeal against procedural errors, convictions and acquittals. The convicted remains in custody during pending appeals.

CONCLUSION

The ICC is pretty functional and the procedures are coherent with most of the national jurisdictions. Most importantly it serves a great role in regulating the International Criminal Justice system yet there are a few Criticisms.

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