37 ICC

Sannoy Das

Introduction:

The setting up of the International Criminal Court (“the Court”), the only permanent international institution of its kind, seated at The Hague, marked a critical moment in international law, bringing a sense of permanence to the fluid discipline known as the international criminal law. The Court is based on a treaty, known as the Rome Statute which entered into force on 1 July 2002, following ratification by sixty States. The Court represents both a continuity with earlier ad hoc international criminal tribunals and a clear break, to the extent that dispensing international criminal justice is no longer perceived as an exceptional measure in international law. The Rome Statute is the key document with respect to the Court, which defines its structure, function and, as a matter of substance, its jurisdiction. The Rome Statute, therefore, is at once a repository of rules of international criminal law and a constitutional document.

This chapter will briefly introduce readers to the history of international criminal law, with a view to setting out the context in which the Court was set up. The module will also explain key provisions of the Rome Statute pertaining to the jurisdiction of the Court, its structure and the method of functioning. Finally, the chapter will introduce some of the situations which the Court is seized of, and some of its important cases.

Learning Outcomes:

On completing this chapter, the reader is expected to understand:

• The development of international criminal justice system, from ad hoc tribunals to the Court;
• The key provisions of the Rome Statute with respect to the jurisdiction of Court;
• The structure of the Court, with particular reference to its judges and the Office of the Prosecutor;
• The functioning of the Court, with particular reference to the manner in which the Court takes cognizance of cases;
• The experience of the Court thus far, including some pitfalls, challenges, and criticism.

Background:

Arguably, most tenets of international criminal law can be traced to the idea of prosecuting war-criminals for violations of the laws of armed conflict – jus ad bellum – in modern times, known as international humanitarian law. This sort of prosecution has an ancient and a medieval history, but the ‘international enforcement’ of laws of armed conflict, through the first decade of the nineteenth century, was mostly informal. The idea of a formal enforcement mechanism can be traced to the call for an international tribunal by Gustave Moynier, one of the founders of the Red Cross, in 1872. Along the long road to the Court, the next important milestone that ought to be noted is the formation of the Allied Commission at the end of World War I, which was charged with the responsibility to address liability for specific war crimes. Its efforts and recommendations were finally subsumed in the Peace Treaty of Versailles concluded in 1919. After the hopes of lasting peace in the era of the League of Nations were dashed following the devastation of World War II, international criminal law, and the method of international adjudication with respect to crimes committed in the situation of an armed conflict, took firm hold with the Nuremberg and Tokyo trials. During the League era, there were attempts spearheaded by Baron Descamps to institutionalize an international court for criminal cases, but these failed owing to a lack of consensus among States; the brutality of the World War II and its result turned the tide. Despite objections over the ex-post facto nature of the prosecutions (and the appurtenant concern of ‘victor’s justice’ being delivered), Nazi and Japanese war-criminals were tried at Nuremberg and Tokyo by the International Military Tribunal and the International Military Tribunal for the Far East. While moral costs were paid in the form of overruling the aforesaid objections to its jurisdiction on tenuous grounds, these trials firmly entrenched the idea that institutionalized mechanisms could be set up to fasten individual responsibility for criminal violations of the laws of armed conflict. Thereafter, early efforts by the United Nations to settle on an international criminal court failed owing to Cold War era disagreements. In the last decade of the 20th century, two tribunals contributed significantly to the development of international criminal jurisprudence – the International Criminal Tribunal for the Former Yugoslavia (“ICTR”), and the International Criminal Tribunal for Rwanda (“ICTR”). The ICTY, in particular, is influential, not just for the cases it decided, but for codifying international crimes in its statute that was “beyond any doubt a part of customary international law”. These efforts moved international criminal law beyond the question of legitimacy.

Rome Statute:

The Rome Statute, the founding document, defines the jurisdiction of the Court, apart from prescribing its structure and function. When the Statute came into force, alongside it was adopted two further documents that are crucial to the adjudication of cases by the Court – the ‘Rules of Procedure & Evidence’ and the ‘Elements of Crimes.’

Substantively, the most crucial provisions of the Rome State are those which define the jurisdiction of the Court. Broadly, jurisdiction can be divided into questions of personal jurisdiction (“rationae personae”), temporal jurisdiction (“rationae temporis”), territorial jurisdiction (“rationae loci”) and subject-matter jurisdiction (“rationae materiae”). In plain words, the Statute determines questions about the jurisdiction of the Court, with respect to the persons who may be tried, the time period for the crimes, the place of commission of the crime and the nature of crimes.

As a general rule, the Court has jurisdiction over crimes committed on the territory of a State party to the Statute, irrespective of the nationality of the perpetrator. Simultaneously, the Court also has jurisdiction over nationals of States parties to the Statute, irrespective of the place of commission of crimes. When exercising jurisdiction over the crime on a territorial basis, the Court may be called upon to examine the understanding of the term territory – its limits in cases of disputed territories, as also what amounts to commission of the crime on a territory. There are several pockets of disagreement in international law over this question – for example, when a conspiracy to commit a crime on a territory is hatched outside thereof, whether the crime would be considered to have been committed on such territory, given that some States adopt an “effects doctrine” to deal with territorial connection to crimes. Similarly, when exercising jurisdiction based on the nationality of a perpetrator, the Court may be faced with questions over the effective nationality of the perpetrator. This may call upon the Court to decide questions about the connection of an individual to a territory, and what amounts to an effective connection.

There are some exceptions to the rules of jurisdiction spelt out above. For example, States may on an ad hoc basis, for particular crimes, accept the jurisdiction of the Court, irrespective of the fact that the State is not a member State to the Rome Statute. It has been argued that, in such cases, States can only accept jurisdiction with respect to a crime committed on its territory by its national. The jurisdiction of the Court with respect to individuals who are entitled to certain forms of immunity under international law is an interesting question. Two provisions of the Rome Statute make it clear that, on the one hand, the immunity of a person owing to his or her official capacity is no bar to the jurisdiction of the Court, while, on the other, if a State does not surrender an individual (of a different nationality than its own) owing to an obligation of granting immunity owed to a third State, the Court cannot proceed with the request. What this implies is that nationals of non-party States are likely to benefit from immunities under international law, as would be the case with President Al-Bashir of Sudan. This provision has been oddly extended by the United States through various treaties with other States to cover all nationals of the United States, irrespective of their official capacity. This is a curious device and has certainly stretched the scope of the exception under the Rome Statute.

On the question of temporal jurisdiction, the Court is different from earlier ad hoc international tribunals. While in each earlier case, starting from the Nuremberg and Tokyo trials, the international tribunals (and importantly, its constitutional document defining the crimes) were brought to existence after the relevant crimes had been committed (ex-post facto), the Rome Statute applies prospectively. The Court does not have jurisdiction, as a general rule, to try criminal actions that took place before the date when the Statute was brought into force, that is, 1 July 2002. Again, on ad hoc basis, when non-party States extend the jurisdiction of the Court to particular crimes, the rule of prospective application may not strictly apply. On a related note, the Statute makes it clear that no person can be tried for an act which is not, at the time of its commission, a crime within the definition of the Statute.

Articles 6 through 8bis of the Statute define the subject-matter jurisdiction of the Court, that is, the specific crimes which may be tried by the Court. These crimes, briefly listed in Article 5, are the crimes of genocide, crimes against humanity, war crimes and the crime of aggression. The acts that constitute each of these crimes are listed under Articles 6 through 8bis. Further, as a tool of interpretation, Article 9 of the Statute makes it clear that when interpreting and applying Articles 6 through 8bis, the Court will refer to the adopted document known as the ‘Elements of Crimes.’ It is beyond the scope of this module to address each crime in detail, but the following general points ought to be noted – genocide refers to the acts of killing, causing serious bodily and mental harm, inflicting conditions on a population that physically destroys it, imposing forcible measures preventing birth, and forcible transfer of children, of members of an identifiable national, ethnical, religious or racial group. These acts must be accompanied by the intention (the “animus”) to destroy the group in whole or in part. Crimes against Humanity refer to a broader set of crimes than those covered by genocide. While the physical acts are somewhat similar and involve murder, extermination, enslavement, forcible deportation, rape, sexual slavery, the list is more extensive, and also includes apartheid, enforced disappearance, persecution, and other inhumane acts. These crimes need to be widespread and systematic, in the sense that they are directed against the civilian population. War crimes, the oldest of international crimes, are defined as grave violations of the Geneva Conventions of 1949, and customary laws applicable to armed conflicts. Several specific acts are listed as war crimes under the Statute. The crime of aggression was inserted by an amendment to the Statute on 11 June 2010 and captures acts that constitute aggression as a manifest violation of the United Nations Charter.

Structure and Function:

This section will review the judicial structure of the Court, its judicial function and the functioning of the Office of the Prosecutor. It is important to turn to the functioning of the Prosecutor first because this has relevance to the manner in which the jurisdiction of the Court is triggered. In earlier ad hoc tribunals, the question of triggering jurisdiction was largely irrelevant because the crimes in question had already been committed. Here, it is a matter of concern of when should the Court take cognizance of the situation. Given that the Court’s functioning is ultimately linked to the consent of States, the first trigger mechanism is when a State party itself refers a situation to the Court for it to take cognizance. In these situations, the referring State itself gives up on any claim of local jurisdiction over the crimes in question and defers to the mechanism of the Court. The second triggering mechanism is through a resolution of the Security Council referring a situation to the Court. The third, and the most innovative aspect of the Court’s functioning is that the Prosecutor can prioprio motu (on his or her own initiative) commence an investigation into any situation with a view to ultimately prosecuting the matter before the Court.

The procedure that the Court follows has been described as a hybrid of the common law adversarial approach, and the inquisitorial system of Romano-Germanic legal systems. Any case before the Court goes through a pre-trial stage that involves investigation, arrest and surrender, and confirmation; a trial stage and an appellate stage. At the trial and appellate stages, the procedure is somewhat closer to the adversarial system.

In order for a case to be tried by the Court, the first step is for the Prosecutor to commence an ‘investigation’ into the situation with a view to collecting enough evidence in order to bring a prosecution. In situations that are referred by States parties or by the Security Council, the Prosecutor ought to directly proceed to investigate; however, when the Prosecutor intends to commence investigation proprio motu, he or she must obtain an order to commence investigation from the judicial division of the Court. The division concerned with granting such orders is called the Pre-Trial Chamber. Further orders during the investigation phase, critically, for obtaining arrest warrants or summonses to appear, must be obtained by the Prosecutor by applying to the Pre-Trial Chamber.

The Court is divided into four main organs – the Presidency, the three judicial divisions (Appeals, Trial and Pre-Trial), the Office of the Prosecutor and the Registry. In the paragraphs above, the unique functions of the Prosecutor have already been noticed. The Registry, as the name suggests, is concerned with the administration of the Court with respect to all non-judicial matters. The judges who form the judicial organ of the Court elect, among themselves, the President, the first Vice-President and the second Vice-President. Together, these three form the Presidency of the Court, concerned mainly, with the allocation of judicial work. The judicial function of the Court is mostly discharged by its three divisions – the Appellate, Trial and Pre-Trial Chambers. The Appellate Chamber, composed of the President and four other judges, sits en banc to decide appeals from decisions of the Trial Chamber and certain decisions of the Pre-Trial Chamber. The Trial and Pre-Trial Chambers are mandated to be composed of not less than six judges. These Chambers sit in divisions of the three judges, but the Pre-Trial Chamber may sit through a single judge.

Some of the functions of the unique Pre-Trial Chamber, like authorizing an investigation and issuing warrants, have been noted above. The Pre-Trial Chamber also considers question of releasing accused pending their trial. Finally, the Pre-Trial Chamber holds a confirmation hearing in each case, as if to preliminarily confirm charges, before committing the case to trial. This procedure is expected to filter out any case where prosecution would be vexatious. The trial on evidence of each case takes place before the Trial Chamber, and appeals therefrom are carried to the Appeals Chamber.

Admission of Cases & Principles of Criminal Responsibility:

Two further crucial aspects of the Rome Statute that are critical to the functioning the Court are the rules that govern the question of admissibility, and the principles of criminal law that the Court applies to all cases. The Rome Statute draws a distinction between questions of jurisdiction (discussed above) and that of admissibility. It is possible, thus, that a case, while fulfilling all jurisdictional requirements, may still not be admissible before the Court. The main principle concerned with admissibility has been described as the principle of ‘complementarity,’ which is supposed to be at the core of the Court’s foundations. In simple terms, the principle requires that a case can only be brought before a Court when the relevant national jurisdiction is ‘unwilling or genuinely unable’ to prosecute it. This principle address any conflict that may arise between national and the international jurisdiction. There is an additional requirement in the admissibility calculus, known as the principle of ‘Gravity.’ By the words of the Statute, it appears to imply that there is an independent requirement that the crime must be committed at a sufficiently grave level to merit an international prosecution, notwithstanding that the elements of the crime have been formally fulfilled. However, a very early decision of the Appeals Chamber appears to have raised some questions as to whether ‘gravity’ is an independent factor in the analysis, given that the crimes under the Rome Statute, by their very definition, are grave and usually heinous.

Article 21 of the Rome Statute deals with sources of law for the Court. Unlike Article 38 of the Statute of the International Court of Justice, Article 21 here creates a hierarchy between sources. The Rome Statute, Elements of Crimes and the Rules on Procedure and Evidence are to be applied as the highest sources of law, followed by international treaties, principles, and rules of international law and law of armed conflict, and, finally, the Court may draw general principles from national legal systems. Articles 22 through 33 of the Statute codify substantive but general rules of international criminal law, applicable to any international criminal trial. Some of these provisions are continuations from constitutional documents of earlier ad hoc tribunals, while some others are improvements or are entirely new, given that several principles of international criminal law emerged from the voluminous jurisprudence of ad hoc international criminal tribunals. Some of these principles, concerning immunity and non-retroactivity, have been noted earlier. The Statute also codifies grounds for excluding criminal responsibility (general defences), and, critically, codifies rules that govern responsibility of military commanders and superiors. Earlier ad hoc tribunals have evolved substantial jurisprudence on the question of command/superior responsibility, and the terms of its codification within the Rome Statute invited much debate during the drafting process.

The Court in Action – Situations & Cases:

Nine situations have till date been brought before the Court. The word ‘situation’ here refers to an armed conflict or the occurrence of one or more than acts that constitute crimes within the jurisdiction of the Court. Within each situation, the Prosecutor may bring one or more cases against one or more responsible individuals. Of the nine situations, the ones in Congo, Uganda, the two situations in Central African Republic and Mali, were referred to the Court by the States parties themselves. The Security Council has referred the situation in Darfur, Sudan and the situation in Libya, and the Prosecutor has commenced investigations. The Prosecutor has commenced proprio motu investigations, authorized by the Pre-Trial Chamber, in Kenya and Cote d’Ivoire.

Of the nine situations listed above, the situation in Congo has witnessed the largest number of individual cases. In the two most prominent cases decided by the Court, against Thomas Lubanga Dyilo and Germain Katanga, the Trial Chamber has pronounced guilty verdicts, which have been confirmed on appeals and sentences have been handed out.

One interesting aspect of the Court’s functioning is the concern for victims of crimes in the judicial process. The Rome Statute provides a mechanism for victim participation and the entitlement of victims to reparations. With the leave of the Court, victims are entitled to be heard at any stage of the proceedings before the Court, provided that their participation does not prejudice the right of the accused to a fair and impartial trial. Several victims have been granted leave to be heard, as in the Dyilo case, despite it having become quite obvious that deciding the procedural aspects of their participation is both time-consuming and costly. As a part of its decision-making process, apart from handing out punishment, the Court is empowered to order reparations to victims, either directly from perpetrators or from a ‘Trust Fund’ set up by the States parties for this purpose. In Dyilo, an initial order for reparations was made by the Trial Chamber, but that order has since been modified by the Appeals Chamber and the Trust Fund for Victims is now mandated to prepare a new proposal for reparations.

Criticism:

Given its uniqueness as an international institution, the Court, in terms of its structure, powers and its work thus far, has been subject to some criticism. States parties, during the time of the drafting of the Rome Statute, disagreed over several critical provisions of the Statute, reflecting, in many ways, their domestic conceptions of the appropriate scope of the international criminal law. One form of internationalist criticism of the Court has been that, despite its powers, the Court’s functions may be thwarted by the efforts of sovereign States, and that, ultimately, the Court has not eroded the paramount role of State consent in international law. Given that accused persons under the international criminal law are often powerful officials, the ultimate reliance on State consent presents a unique challenge to the Court’s success. For example, the Court’s reliance on national authorities for arrest and/or surrender of the accused makes it probable that several perpetrators will be able to avoid the Court’s jurisdiction with impunity.

Further, as a realistic matter, the Court’s future is also dependent on a change of attitude of the United States towards it. Till date, America continues to count as an ‘opposing voice,’ given its concern over the Court overreaching into matters of domestic jurisdiction. The United States, through various legal instruments, has been able to completely insulate its nationals from the jurisdiction of the Court, and these continue to be a hindrance to the Court’s success.

On a different note, there have been clear voices of criticism against the Court for its emphasis on situations in Africa, showing an obvious asymmetry of power in international relations, and a possible ‘western’ bias in its functioning.

Summary:

The International Criminal Court is one of the most significant institutional innovations in international law, marking a new point of departure for international criminal law. Till its formation, international criminal justice had been delivered through ad hoc tribunals, constituted after the commission of crimes, which has always been a question-begging move in international law. Unlike its predecessor tribunals, the Court applies the provisions of its constitutional document, the Rome Statute, prospectively. The Rome Statute is an extensive repository on substantive aspects of international criminal law, apart from providing for the structure and function of the Court. The Statute defines the crimes within the jurisdiction of the court – genocide, war crimes, crimes against humanity and the crime of aggression. It also codifies several general principles applicable in international criminal law and defines the jurisdiction of the Court. The Court’s procedure is a hybrid of adversarial and inquisitorial systems, with the trial procedure being largely adversarial. The Court has four organs, the Presidency, the judicial division (composed of the Pre-Trial, Trial and Appeals Chambers), the Office of the Prosecutor and the Registry. The Office of the Prosecutor is responsible for investigating, whether upon referral of a State party or the Security Council or on his or her own initiative, situations where crimes under the jurisdiction of the Court have been committed, with a view to bringing their trial to the Court. Some of these investigation procedures are subject to supervision by the judicial division of the Court. So far, the Court is seized of nine situations internationally, and about twenty-three cases have been commenced before it. Despite the Court having great prospect of success, and despite the hope that it will provide a fair and neutral ground for investigating the most heinous of crimes, its functioning has been far from smooth and it is faced with several challenges, and an effective International Criminal Court can be said to be in the process of evolution.

Reference

1. Jackson Maogoto, Early Efforts to Establish an International Criminal Court, in THE LEGAL REGIME OF THE INTERNATIONAL CRIMINAL COURT 3 (Jose Doria, Gasser and Cherif-Bassiouni eds., 2009).
2. Rome Statute of the International Criminal Court, 17 Jul. 1998, 2187 U.N.T.S. 3, art. 12(2) [hereinafter “Rome Statute”].
3. WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT (4th ed. Cambridge, 2011).