International Criminal Court
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The International Criminal Court (ICC) was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC is designed to complement existing national judicial systems: the Court can only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes, thus being a "court of last resort". Primary responsibility to exercise jurisdiction over alleged criminals is therefore left to individual states. The court can only prosecute crimes that were committed on or after 1 July 2002, the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force.
The total number of member states of the court is currently 103. Chad will become a state party on 1 January 2007, bringing the total to 104, and a further 35 countries have signed but not yet ratified the Rome Statute. The official seat of the ICC is in The Hague, Netherlands, but the proceedings may take place anywhere.
The ICC is functionally independent of the United Nations in terms of both personnel and financing, although some meetings of the ICC governing body, the Assembly of States Parties to the Rome Statute, are held at the UN. There is a "relationship agreement" between the ICC and the UN that governs how the two institutions regard each other legally.
The ICC is separate from, and should not be confused with, the International Court of Justice (often referred to as the “World Court”), which is the United Nations organ that settles disputes between nations.
It should also be noted that "International Criminal Court" is sometimes abbreviated as ICCt to distinguish it from the "International Chamber of Commerce" or the "International Cricket Council," both of which also use the abbreviation ICC. However, the more common abbreviation (ICC) is used in this article.
 Early development
The movement for the creation of an international court to deal with the problem of crimes committed against humanity gained force after the Nuremberg Trials, established to deal with the genocide and crimes against humanity committed by the Nazis in World War II. The trials demonstrated that the existing international legal structure did not have a standing body with the means or jurisdiction to prosecute such crimes.
The establishment of the court was first proposed in 1949 by the International Law Commission at the request of the United Nations General Assembly. The work which led to the International Law Commission was begun in Resolution of the Assembly of the League of Nations of September 22, 1924.
The development of the ICC followed the creation of several ad hoc tribunals to try war crimes in the former Yugoslavia and Rwanda (International Criminal Tribunal for the Former Yugoslavia in 1993, International Criminal Tribunal for Rwanda in 1994). Subsequently, there arose a desire to establish a permanent tribunal in order to avoid repeated use of ad hoc tribunals.
 Adoption and entry into force of the Rome Statute
The General Assembly called the "United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court" in Italy, where the Rome Statute of the International Criminal Court was drafted. On 17 July 1998, the Statute was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were the United States, Israel, People's Republic of China, Iraq, Qatar, Libya, and Yemen.<ref>Michael P. Scharf, August 1998. Results of the Rome Conference for an International Criminal Court. The American Society of International Law. Accessed 2006-12-04.</ref>
The Rome Statute became a binding treaty at the moment 60 states had ratified it, an event ceremonialized at the United Nations Headquarters on April 11, 2002. Ten countries (Bosnia-Herzegovina, Bulgaria, Cambodia, Democratic Republic of Congo, Ireland, Jordan, Mongolia, Niger, Romania, and Slovakia) submitted their ratifications at this time, bringing the total to 66, so that no one nation would hold the honor of depositing the 60th ratification. The ICC legally came into existence on July 1, 2002, and can only prosecute crimes committed after that date.
To date, 104 countries have ratified or acceded to the court, including nearly all of Europe and South America, and nearly half of all African countries.<ref name="parties">International Criminal Court, 2006. The States Parties to the Rome Statute. Accessed 2006-11-23.</ref> A further 35 states have signed but not yet ratified the treaty,<ref>The American Non-Governmental Organizations Coalition for the International Criminal Court. Ratifications & Declarations. Accessed 2006-12-04.</ref> which under the law of treaties obliges states to refrain from “acts which would defeat the object and purpose” of the treaty.<ref>The 1969 Vienna Convention on the Law of Treaties, Article 18. Accessed 2006-11-23.</ref> The USA and Israel have "unsigned" the Rome treaty in order to avoid these obligations.
 Crimes within the jurisdiction of the Court
Article 5 of the Rome Statute grants the Court jurisdiction over four crimes, which it refers to as “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. The statute defines each of these crimes except for aggression: it provides that the Court will not exercise its jurisdiction over the crime of aggression until such time as the state parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.<ref>Article 5 of the Rome Statute. Accessed 2006-11-23.</ref>
Many states wanted to add terrorism and drug trafficking to the list of crimes covered by the Rome Statute; however other states opposed this on the grounds that these crimes were difficult to define and that dealing with less serious crimes such as terrorism and drug trafficking would distract from the seriousness of the crimes the ICC was established to deal with. After July 2009, the statute may be amended to include these and other crimes.
 Territorial jurisdiction
During the negotiations that led to the Rome Statute, a large number of states argued that the Court should be allowed to exercise universal jurisdiction. However, this proposal was defeated due in large part to opposition from the United States.<ref>Elizabeth Wilmhurst, 1999. ‘Jurisdiction of the Court’, p. 136. In Roy S Lee (ed.), The International Criminal Court: The Making of the Rome Statute. The Hague: Kluwer Law International. ISBN 904111212X.</ref> A compromise was reached, allowing the Court to exercise its jurisdiction only under certain limited circumstances, namely:
- Where the person accused of committing a crime is a national of a state party (or where the person's state has accepted the jurisdiction of the Court);
- Where the alleged crime was committed on the territory of a state party (or where the state on whose territory the crime was committed has accepted the jurisdiction of the Court); or
- Where a situation is referred to the Court by the UN Security Council.<ref>Articles 12 & 13 of the Rome Statute. Accessed 2006-11-23.</ref>
 Temporal jurisdiction
The Court's jurisdiction does not apply retroactively: it can only prosecute crimes committed on or after 1 July 2002 (the date on which the Rome Statute entered into force). Where a state becomes party to the Rome Statute after that date, the Court can exercise jurisdiction automatically with respect to crimes committed after the statute enters into force for that state.<ref>Article 11 of the Rome Statute. Accessed 2006-11-23.</ref>
 Court of last resort
The Court is intended as a court of last resort, investigating and prosecuting only where national courts have failed. Article 17 of the Statute provides that a case is inadmissible if:
- ‘(a) 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;
- (b) 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;
- (c) 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;
- (d) The case is not of sufficient gravity to justify further action by the Court.’<ref>Article 17 of the Rome Statute. Accessed 2006-12-04.</ref>
Article 20, paragraph 3, specifies that, 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:
- ‘(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
- (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.’<ref>Article 20 of the Rome Statute. Accessed 2006-12-04.</ref>
 Composition of the court
The International Criminal Court comprises four organs: the Presidency, the Judicial Divisions (the Pre-Trial Division, the Trial Division and the Appeals Division), the Office of the Prosecutor, and the Registry.<ref>International Criminal Court. Structure of the Court. Accessed 2006-11-23.</ref>
The court consists of 18 judges, all of whom are nationals of States Parties to the Rome Statute. They must be “persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices”. Each judge is elected by States Parties for a term of up to nine years.<ref>Article 36 of the Rome Statute. Accessed 2006-11-23.</ref>
 How cases reach the court
There are four methods by which a case may reach the ICC:
- A member country of the Assembly of States Parties (ratified the Court's Statute) refers the case;
- A country that has chosen to accept the ICC's jurisdiction refers the case;
- The United Nations Security Council refers the case; or
- The three-judge panel authorizes a case initiated by the ICC Prosecutor.
 Relationship with the United Nations
Unlike the International Court of Justice, the ICC is legally independent from the United Nations. Nonetheless, the UN has a clearly defined role towards the Court. The Security Council may refer to the Court cases that would not otherwise fall under the Court's jurisdiction (as it did in relation to the situation in Darfur, which the Court could not otherwise have prosecuted as Sudan is not a state party). Article 16 of the Rome Statute also allows the Security Council to request that the Court defer from investigating a case for a period of 12 months.<ref>Article 16 of the Rome Statute. Accessed 2006-11-23.</ref> Such a deferral may be renewed indefinitely by the Security Council.
This relationship with the UN is governed by a “Relationship Agreement between the International Criminal Court and the United Nations”.<ref>Negotiated Relationship Agreement between the International Criminal Court and the United Nations. Accessed 2006-11-23.</ref><ref>Coalition for the International Criminal Court, 12 November 2004. Q&A: The Relationship Agreement between the ICC and the UN. Accessed 2006-11-23.</ref>
 Victim participation and reparations
The Rome Statute provides for an unprecedented level of victim participation in the proceedings of ICC cases and situations. For example, Article 43(6) establishes a Victims and Witnesses Unit within the court's Registry, with the mandate of providing "protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses."<ref>Article 43(6) of the Rome Statute. Accessed 2006-11-23.</ref> Additionally, Article 68 sets forth procedures that specifically deal with "Protection of the victims and witnesses and their participation in the proceedings."<ref>Article 68 of the Rome Statute. Accessed 2006-11-23.</ref> The Court is currently considering, with respect to the Thomas Lubanga case, whether victims may participate in the investigation stage or must wait until the trial stage.<ref>ICC Office of the Prosecutor, 6 June 2006. Prosecution's Observations on the Applications for Participation of Applicants a/0001/06 to a/0003/06. Accessed 2006-11-23.</ref>
Article 79 also establishes a Victims Trust Fund,<ref>Article 79 of the Rome Statute. Accessed 2006-11-23.</ref> which will make reparations payments in accordance with Article 75.<ref>Article 75 of the Rome Statute. Accessed 2006-11-23. For more information, see the Trust Fund for Victims, Victims and Witnesses Issues, and Victims Trust Fund</ref>
 Cases before the court
To date, the ICC has received 1,700 communications about alleged crimes in 139 countries.<ref name="cfr">Stephanie Hanson, 17 November 2006. Africa and the International Criminal Court. Council on Foreign Relations. Accessed 2006-11-23.</ref> However, 80% of these communications have been found outside the Court's jurisdiction.<ref name="cfr">Stephanie Hanson, 17 November 2006. Africa and the International Criminal Court. Council on Foreign Relations. Accessed 2006-11-23.</ref> The Prosecutor, Luis Moreno-Ocampo, has so far opened an investigation into three situations: <ref>International Criminal Court, 2006. Situations and Cases. Accessed 2006-11-23.</ref>
- Uganda and the Lord's Resistance Army (LRA), which was referred to the court on January 29, 2004 by Republic of Uganda, a 'state party' of the court (the term indicates that they are a country that has ratified the Court's Rome Statute). On October 6, 2005 the court issued its first public arrest warrants for the Lord's Resistance Army leader Joseph Kony, his deputy Vincent Otti, and LRA commanders Raska Lukwiya, Okot Odiambo, and Dominic Ongwen.
- The situation in Ituri, Democratic Republic of Congo (DRC), which was referred to the court by the DRC on April 19, 2004. On 17 March 2006, Thomas Lubanga, former leader of the Union of Congolese Patriots militia in Ituri, became the first person to be arrested under a warrant issued by the court;
- The situation in Darfur, Sudan, which was referred to the court in March 2005 by the United Nations Security Council. In November 2006, the prosecutor said his investigation was "nearly complete" and he has sufficient evidence to file charges of persecution, torture, rape and murder. <ref> ICC says Darfur evidence enough to prosecute, The Scotsman, 2006-11-23 </ref>
In a special case, former Liberian President Charles Taylor was transferred to the buildings of the ICC in June 2006 for a trial under the mandate and auspices of the Special Court for Sierra Leone. This was due to political and security concerns about holding the trial in Freetown.
On 9 February 2006, the Chief Prosecutor published a letter<ref>Luis Moreno-Ocampo, 9 February 2006. Letter concerning the situation in Iraq. Accessed 2006-11-23.</ref> answering complaints connected with the invasion of Iraq. He concluded that he did not have authority to consider the complaint about the legality of the invasion, and that the available information did not provide sufficient evidence for proceeding with an investigation of war crimes due to the targeting of civilians or clearly excessive attacks; the evidence for willful killing and inhuman treatment, which covered around 20 people, did not appear to meet the "gravity" threshold for an investigation.
 Opposition to the ICC
The creation and existence of the court has been controversial with a number of states. The largest disagreement continues to surround the source and nature of the court's jurisdiction.
Some countries object to the court, saying that there is very little legal supervision of the court's apparatus, and that the court's verdicts may become subject to political motives. They argue that the court's mandate was already excessively wide (and would be even more so if the crime of aggression was defined in its Statute), meaning the court could (perhaps unwillingly) become a tool for barratry and pointless legal hassle. Although supporters say that the checks and balances in the ICC made this an unlikely possibility, opponents argue that giving even a temporary member of the Security Council the power to veto any objections of prosecutorial bias gave the ICC no accountability whatsoever.
Supporters would counter that the ICC's definitions are very similar to those of the Nuremberg trials. They also argue that the states which object to the ICC are those which regularly carry out genocide, war crimes and crimes against humanity in order to protect or promote their political or economic interests.
 The United States
Although the US originally voted against the adoption of the Rome Statute, President Bill Clinton unexpectedly reversed his position on 31 December 2000 and signed the treaty,<ref>Amnesty International. US Threats to the International Criminal Court. Accessed 2006-11-23.</ref><ref>Brett D. Schaefer, 9 January 2001. Overturning Clinton's Midnight Action on the International Criminal Court. The Heritage Foundation. Accessed 2006-11-23.</ref> but indicated that he would not recommend that his successor, George W. Bush, submit it to the Senate for ratification.<ref>Curtis A Bradley, May 2002. U.S. Announces Intent Not to Ratify International Criminal Court Treaty. The American Society of International Law. Accessed 2006-11-23.</ref> On 6 May 2002, the Bush administration announced it was nullifying the United States' signature of the treaty.<ref>John R Bolton, 6 May 2002. International Criminal Court: Letter to UN Secretary General Kofi Annan. US Department of State. Accessed 2006-11-23.</ref> However, public opinion polls routinely show strong popular support for the Court: the most recent poll, conducted in February 2005, found that 69% of Americans supported U.S. participation in the ICC.<ref name="ccfr">Chicago Council on Foreign Relations, 1 March 2005. Media Release: Large Bipartisan Majority of Americans Favors Referring Darfur War Crime Cases to International Criminal Court. Accessed 2006-12-01.</ref>
The country's main objections are interference with their national sovereignty and a fear of politically motivated prosecutions.
In 2002, the U.S. Congress passed the American Servicemembers' Protection Act (ASPA), which contained a number of provisions, including prohibitions on the U.S. providing military aid to countries which had ratified the treaty establishing the court (exceptions granted), and permitting the President to authorize military force to free any U.S. military personnel held by the court, leading opponents to dub it "The Hague Invasion Act." The act was later modified to permit U.S. cooperation with the ICC when dealing with U.S. enemies.
The U.S. has also made a number of Bilateral Immunity Agreements (BIAs, also known as "Article 98 Agreements") with a number of countries, prohibiting the surrender to the ICC of a broad scope of persons including current or former government officials, military personnel, and U.S. employees (including non-national contractors) and nationals. As of 2 August 2006, the US Department of State reported that it had signed 101 of these agreements.<ref name="BIAs">Coalition for the International Criminal Court, 2006. Status of US Bilateral Immunity Acts. Accessed 2006-11-23.</ref> The United States has cut aid to many countries which have refused to sign BIAs.<ref name="BIAs">Coalition for the International Criminal Court, 2006. Status of US Bilateral Immunity Acts. Accessed 2006-11-23.</ref>
United Nations Security Council Resolutions <h5>
In July 2002, the United States threatened to use its Security Council veto to block renewal of the mandates of several United Nations peacekeeping operations, unless the Security Council agreed to permanently exempt U.S. nationals from the Court's jurisdiction.
Initially, the U.S. had sought to prevent personnel on UN missions being tried by any country except that of their nationality. When the other members of the Security Council rejected that approach, the United States then sought to make use of a provision of the Rome Statute, which permits the Security Council to request the ICC not to exercise its jurisdiction over a certain matter for up to one year at a time. The United States sought the Security Council to convey such a request to the ICC concerning personnel on United Nations peacekeeping and enforcement operations, and to have that request renewed automatically each year. (If it was renewed automatically each year, then another Security Council resolution would be required to cease the request, which the U.S. could then veto—which would effectively make the request permanent.) Court supporters argued that the Rome Statute requires that for the request to be valid it must be voted upon anew each year in the Security Council, and hence that an automatically renewing request would violate the Statute.
Other members of the Security Council opposed this United States request also. However, they were increasingly concerned about the future of peacekeeping operations. The United Kingdom eventually negotiated a compromise, whereby the U.S. would be granted its request, but only for a period of one year, and a new Security Council vote would be required in July each year for the exclusion of peacekeepers from ICC jurisdiction to be continued. All members of the Security Council endorsed this resolution, although many did so reluctantly. The result was UN Security Council Resolution 1422.
NGO supporters of the Court, along with several countries not on the Security Council (including Canada and New Zealand), protested the legality of the resolution. The resolution was made under Chapter VII of the UN Charter, which requires a "threat to international peace or security" for the Security Council to act; ICC supporters have argued that a U.S. threat to veto peacekeeping operations does not constitute a threat to international peace or security.
A resolution to exempt citizens of the U.S. from jurisdiction of the court was renewed in 2003 by Resolution 1487, but after the abuse of prisoners in Abu Ghraib, Iraq it became clear that there was no majority for it, the U.S. withdrew its second proposed renewal of the resolution.
Israel states that it has "deep sympathy" with the goals of the court. However, it has concerns that political pressure on the court would lead it to reinterpret international law or to "invent new crimes". It cites the inclusion of "the transfer of parts of the civilian population of an occupying power into occupied territory" as a war crime as an example of this, whilst at the same time disagrees with the exclusion of terrorism and drug trafficking. Israel sees the powers given to the prosecutor as excessive and the geographical appointment of judges as disadvantaging Israel which is not part of any of the UN Regional Groups.<ref>Israel Ministry of Foreign Affairs, 30 June 2002. Israel and the International Criminal Court. Accessed 2002-06-30.</ref>
Israel voted against the adoption of the Rome Statute but later signed the court. In 2002 it submitted a letter to the United Nations declaring that it did not intend to ratify the treaty, using the same wording as the similar letter from the United States.<ref>The American Non-Governmental Organizations Coalition for the International Criminal Court. Ratifications & Declarations. Accessed 2006-12-04.</ref>
 The ICC in popular culture
- The Interpreter is a 2005 film featuring a fictional African head of state seeking to avoid being sent to the ICC by the UN Security Council for crimes against humanity.
 See also
- AMICC (American NGO Coalition for the International Criminal Court)
- Command responsibility
- International Law
- Peace Palace
- World Government
- World Federalist Movement
- Ilaria Bottigliero, Redress for Victims of Crimes under International Law, Martinus Nijhoff Publishers, The Hague (2004), 304 pages.
- Ilaria Bottigliero, “Redress and International Criminal Justice in Asia and Europe”, Asia Europe Journal, Vol. 3 (4) 2005, pp. 453-461. http://asef.on2web.com/subSite/ccd/documents/finalpaper.pdf
- Ilaria Bottigliero, “The Contribution of Humanitarian Law to Gender Justice in Asia through the ICC”, 3 ISIL Yearbook of International Humanitarian and Refugee Law (2003), pp. 48-58.
- Ilaria Bottigliero, “The International Criminal Court - Hope for the Victims”, 32 SGI Quarterly, April 2003, pp. 13-15. http://www.sgi.org/english/Features/quarterly/0304/perspective.htm
- Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law. Oxford: Oxford University Press (2003).
- Hans Köchler, Global Justice or Global Revenge? International Criminal Justice at the Crossroads. Vienna/New York: Springer, 2003, ISBN 3-211-00795-4
- Hans Köchler, “Universal Jurisdiction and International Power Politics: Ideal versus Real”, in: Yeditepe’de Felsefe / Philosophy at Yeditepe, Istanbul, Vol. 1, No. 5 (August 2006), pp. 1-16.
- Roy S Lee (ed.), The International Criminal Court: The Making of the Rome Statute. The Hague: Kluwer Law International (1999). ISBN 904111212X
- Roy S Lee & Hakan Friman (eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence. Ardsley, NY: Transnational Publishers (2001). ISBN 1571052097
- Madeline Morris, “High crimes and misconceptions: the ICC and non-party states”, Law and Contemporary Problems, Winter 2001, vol. 64, no. 1, p. 13ff. Accessed 2006-11-23.
- William A Schabas, An Introduction to the International Criminal Court (2nd ed.). Cambridge: Cambridge University Press (2004). ISBN 0-5210-1149-3
- Nicolaos Strapatsas, ‘Universal Jurisdiction And The International Criminal Court’, Manitoba Law Journal, 2002, vol. 29, p. 2.
- Lyal S. Sunga, The Emerging System of International Criminal Law: Developments in Codification and Implementation (1997).
- Lyal S. Sunga, The Crimes within the Jurisdiction of the International Criminal Court (Part II, Articles 5-10), Vol. 6/4 (No. European Journal of Crime, Criminal Law and Criminal Justice (1998) 377-399.
- Lyal S. Sunga, The Attitude of Asian Countries Towards the International Criminal Court, 2 Indian Society of International Law Yearbook of International Humanitarian and Refugee Law (2002) 18-57.
- Lyal S. Sunga, International Criminal Law: Protection of Minority Rights, Beyond a One-Dimensional State: An Emerging Right to Autonomy? (ed. Zelim Skurbaty)(2004) 255-275.
 External links
 UN & ICC websites
- Official ICC website
- UN website on the Statute of the International Criminal Court
- Text of the Rome Statute
- Rome Statute of the International Criminal Court: depositary notifications
- The Coalition for the International Criminal Court
- No Peace Without Justice
- American NGO Coalition for the International Criminal Court
- Article 126 | the unofficial ICC blog
- The McNabb Associates International Crimes Blog
- Objections to the ICC under the U.S. Constitution and International Law
- “Don't Fear the International Criminal Court” by David Kaye, in Foreign Policy, January/February 2006
- "The International Criminal Court and Its Significance", by Cenap CAKMAK, Rutgers, The State University of New Jersey
- "Myths and Facts About the International Criminal Court" - by Human Rights Watch
- “The International Criminal Court” by Amnesty International USA
- International Criminal Court Exhibition
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