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From Rome to the Hague — An Appraisal of the International Criminal Court
by Sarvesh Singh and Saurabh Mishra*
Cite as : (2004) PL WebJour 18
Introduction
At the dawn of the new millennium, one event of great significance that took place — and unfortunately, which was not properly addressed in the Indian scholarly works, and for that matter, in the Indian media — was the establishment of the International Criminal Court (hereinafter also referred to as “ICC” or “the Court”). This assumes more importance as India has not signed the Treaty establishing ICC till date.
Efforts to create a permanent international criminal tribunal hark back to World War II and the establishment of International Military Tribunals for Nuremberg1 and the Far East2. At that time, there were discussions about a permanent tribunal. The Genocide Convention3 even contained language bestowing jurisdiction over the crime of genocide to an eventual permanent court. The onset of the Cold War in the years following the end of World War II prevented further plans towards such a court. The scope, scale and hateful nature of atrocities that have taken place during the last 20 years in many parts of the world gave impetus to creating a permanent mechanism to bring to justice the perpetrators of such crimes as genocide, ethnic cleansing, sexual slavery and maiming, including amputation of limbs of non-combatants, even women and children, and to finally put an end to the impunity so often enjoyed by those in positions of power.4
Plans were resumed in 1995 when the first serious negotiations began. At that point, with the end of the Cold War in the late eighties, and the Security Council’s establishment of ad hoc International Criminal Tribunals for the Former Yugoslavia (ICTY)5 and Rwanda (ICTR)6 in 1993 and 1994, the international community recognised that the time had come for a permanent court. Negotiations were held from 1995 to 1998. Finally, on 17-7-1998, at the Diplomatic Conference for Plenipotentiaries in Rome, the “Statute of the International Criminal Court”7 (hereinafter referred to as “the Rome Statute” or “the Statute”) was adopted by a vote of 120-7, creating the world’s first independent and permanent International Criminal Court.
This paper is an attempt to provide a comprehensive overview of the International Criminal Court. It focuses on key aspects of the Rome Statute including inter alia the crimes encompassed, jurisdiction, prosecution and trial procedures, institutional arrangements and the investigating role of the Prosecutor. Ambiguities or inadequacies, if any, are indicated and solutions suggested to the best of the abilities of the authors. The issue of the opposition to ICC is not included here and is addressed in another paper, due to space constraint.
The Rome Statute
Since the adoption of the Rome Statute, 139 countries have signed the Treaty and as of 14-5-2003, 90 countries have ratified it.8 The Treaty entered into force on 1-7-2002. Following the adoption of the Rome Statute, a Final Act was adopted. The Statute which is subdivided into 13 parts and 128 articles defines the individual crimes, clarifies the jurisdiction, establishment, structure and financing of the Court, as well as the general principles of criminal law, the sentences, the procedure, the execution of sentences and cooperation in criminal law.
The Statute also sets out the supplementary documents that must be negotiated to assist in the functioning of the Court. For this purpose, the “Preparatory Commission for the International Criminal Court” was established in 1998 by a resolution of the Final Act of the Rome Conference.9 It was assigned a number of tasks to be completed for the establishment and smooth functioning of the Court. In July 2002, it completed the tasks assigned to it, thus fulfilling its mandate, and in September 2002 it submitted its report to the first session of the “Assembly of State Parties” to the Rome Statute of the International Criminal Court, held in New York. Among the texts finalised — essential to the successful functioning of the Court — were the Rules of Procedure and Evidence, the Elements of Crimes, the Relationship Agreement between the Court and the United Nations, the Financial Regulations, the Agreement on the Privileges and Immunities of the Court, the Rules of Procedure of the Assembly of State Parties, the budget for the first financial period, basic principles governing a Headquarters Agreement between the Court and the Government of the Netherlands (the host country), as well as procedures for the nomination and election of the Judges, Prosecutor and Deputy Prosecutor.10
The most important of these documents — the Rules of Procedure and Evidence11 and the Elements of Crimes12 — set parameters for the functioning of ICC and define the specific aspects of each crime listed in the Statute respectively. The completion of the Elements of Crimes is considered a landmark achievement in and of itself, because of its contribution to the development of international law. It is a cataloguing of the conditions, contexts and mental component, or intent, required for genocide, war crimes and crimes against humanity to be committed. The Elements of Crimes elaborate the definitions of the crimes in the Statute. Throughout the drafting process, great care was taken that the intent of the Statute not be changed. The Elements of Crimes are not in themselves binding, but have a “persuasive character”.
The Rules of Procedure and Evidence set out general principles and clear descriptions of specific procedures underpinning and supplementing the provisions of the Statute. All procedures referred to in the Statute are thoroughly described. Specific guidelines are given for the various participants, describing how they are to carry out particular actions referred to in the Statute, the steps they must take, the sequence, the circumstances — all procedural details. Both the Elements of Crimes and the Rules of Procedure and Evidence are subordinate to the provisions of the Statute.
Thus, the Statute is a comprehensive international treaty in which international criminal law has been successfully and uniformly codified and further developed, taking account of the different criminal law systems of the United Nations member States with their different traditions. Hence — regardless of its character as a general compromise and the many individual compromises it contains — the Statute marks a remarkable success in the efforts to enhance the rule of law in international relations. The Statute reaffirms the concept of individual responsibility in criminal law as a guiding principle of world order based on freedom and justice where the most serious violations of international law which constitute an attack on the international community as a whole can also be individually punished. It is a monumental achievement in the field of international legal policy that individuals who have transgressed their obligations to the international community as a whole may be held responsible by an independent international judicial institution. ICC thus symbolizes jurisdiction exercised on behalf of the community of nations.13
Institutional arrangement
ICC is situated at The Hague, the Netherlands and is a permanent tribunal that will investigate and try individuals for the most serious international crimes — genocide, crimes against humanity and war crimes. ICC will be the first standing court of its kind, a unique and important development in the history of human rights protection and international justice. All State parties must cooperate with the Court’s investigations and prosecutions. ICC will rely on State cooperation in its investigation and prosecution of cases. ICC will not have its own police force and will work side by side with national authorities.
ICC is different from the International Court of Justice (ICJ or the World Court) in that the ICJ is a civil tribunal that hears disputes between countries. ICC is a criminal tribunal that will prosecute individuals. The two ad hoc War Crimes Tribunals for the former Yugoslavia and Rwanda are similar to ICC but the two Tribunals are limited in their territorial and temporal jurisdiction and do not cover the full range of international crimes. Their legal bases are Security Council Resolutions, which do not reflect the same determination of the international community as a multilateral treaty with a wide or universal acceptance would.14 ICC, as a permanent court, will also avoid the delay and start-up costs of creating country-specific tribunals from scratch each time the need arises.
ICC shall consist of three organs — the Judiciary (the Presidency, an Appeals Division, a Trial Division and a Pre-Trial Division), the office of the Prosecutor, and the Registry, which includes a Victims and Witnesses Unit. The Registrar will be responsible for non-judicial aspects of administration of ICC. The Judges, the Prosecutor, and the Deputy Prosecutor will be elected by a two-third majority of the State parties to ICC Statute, though they need not be nationals of State parties.15 States that do not become parties will therefore be left outside the selection process.16 The Assembly of State Parties will meet once a year to provide management oversight.
The Judges must meet criteria of professional competence, integrity, independence and experience in relevant areas of law such as criminal or international law. Only those eligible to hold high judicial office in their own country can be nominated as Judges of ICC. They will be prohibited from any activity during their term in office that might jeopardize their independence, and can be excused from particular cases if there is any question of partiality. The Statute contains provision for the removal from office or other disciplinary measure against any Judge or the Prosecutor in conflict-of-interest situations and in exceptional cases of serious misconduct.17 The State parties shall take into account the need for a “fair representation of female and male Judges” and the need to include Judges with “legal expertise on specific issues, including but not limited to, violence against women and children”.
A Victim and Witness Unit is established within the Registry, independent of the Prosecutor’s office with responsibility for “protective measures, security arrangements, counselling 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.18
ICC is a separate entity from the United Nations. According to the Statute, its expenses shall be funded by assessed contributions made by State parties and by voluntary contributions from the Governments, international organizations, individuals, corporations and other entities. In special circumstances, funds could be provided by UN, subject to the approval of the General Assembly, when they relate to expenses incurred due to “situations” referred to the Court by the Security Council. The contributions of the State parties will be assessed based on the scale adopted by UN for its regular budget, but any State that wish to do so may voluntarily contribute additional funds.
Jurisdiction of the Court
The provisions on jurisdiction lie at the heart of the Rome Statute. ICC’s jurisdiction will be complementary to national jurisdictions. This means that national courts will still have the first opportunity to investigate and prosecute persons responsible for these crimes. ICC will assume jurisdiction where national courts are unable or unwilling to investigate or prosecute those suspected of having committed these crimes. ICC has a prospective jurisdiction, meaning that it will only have jurisdiction over events occurring after the Statute entered into force.
When a State ratifies the Treaty, it thereby accepts the Court’s jurisdiction over all crimes within its scope. There is, therefore, no possibility of a State party accepting jurisdiction over certain crimes and not others, or being required to consent to the exercise of jurisdiction on a case-by-case basis.
The most problematic aspect of the whole Treaty is the provision relating to the preconditions for the exercise of jurisdiction.19 ICC may exercise jurisdiction over crimes committed on the territory of any State party, or by citizens of any State party, or where a non-State party has accepted ICC’s jurisdiction with respect to crimes on its territory or by its citizens.20 It can try any individual responsible for such crimes, regardless of his or her civilian or military status or official position.
According to this, in cases other than Security Council referrals, ICC will only be able to act where the State on whose territory the crimes were committed or the State of nationality of the accused have ratified the Treaty or accepted the Court’s jurisdiction over the crime. As the State of territory and nationality of the accused will often in practice be one and the same State, and that State may well not be State party, this is likely to be the greatest impediment to the Court’s ability to make a difference in the real world. This could have been rectified by allowing a State with custody of the accused or a State of nationality of the victims to provide the necessary jurisdictional link. However defective, the provision is not necessarily fatal to the Court and there are ways to circumvent it. In particular, much will depend on the extent of ratification of the Treaty i.e. the closer to universal ratification, the less the potential of this provision to disempower the Court.21
ICC can take cognizance of any situation referred to it in one of the following ways under Article 13:
- ( The Prosecutor may, on his or her own initiative, examine information that a crime has been committed and, if he or she concludes that there is a reasonable basis to proceed, seek approval from a panel of ICC Judges to begin an investigation.22 In a crucial positive outcome, the source of this “information” can be the victims, non-governmental organisations or any other reliable source.23 This is crucial given likely State and Security Council reluctance to refer situations to the Court. Moreover, the ex officio provisions are arguably the most important of those that give the victim and survivors a role in ICC process, by enabling them to trigger investigations. There are two limits on the Prosecutor’s power. Firstly, the Prosecutor must obtain approval or authorisation to proceed with an investigation from a Pre-Trial Panel of Judges, and secondly, the Security Council may elect to defer an investigation or prosecution for a period of 12 months and the deferral may be renewed for an unlimited number of times. The need to obtain prior judicial approval for investigations has been put in place to prevent frivolous prosecutions, while at the same time preserving the independence of the Prosecutor.
- ( Any country that has ratified the Statute may refer a situation in which a crime or crimes appear to have been committed to the Prosecutor for investigation. The referral of “situations” was to prevent political entities making accusations against particular individuals, thereby unduly politicizing the process. Rather, it will be for the Court itself to decide which individuals should be investigated and prosecuted and which should not.
- ( The United Nations Security Council may also refer a situation in which a crime or crimes appear to have been committed to the Prosecutor for investigation. Referral by the Security Council will have the unique consequence of binding all member States of the UN, whether or not parties to the statute. Article 12(2) states that the preconditions to the exercise of jurisdiction do not apply in the event of Security Council referral. This makes such referral potentially extremely important tool, ex officio powers notwithstanding.24
Complementarity
The Treaty gives ICC jurisdiction that is complementary to national jurisdictions. This “principle of complementarity”, as it is known, gives States the primary responsibility and duty to prosecute the most serious international crimes, while allowing ICC to step in only as a last resort if the national system is “unwilling” or “unable” to do so. This is in contrast to the ICTY and ICTR, which have “primacy” over national systems. Primacy means that these Tribunals get to decide which suspects they try and the national system must surrender these accused to the Tribunal and forego their national case against them.25
Some States fear the jurisdiction of an independent ICC, and favour further limits, including complex “State consent” requirements and a formal role for the Security Council in initiating or blocking investigations and prosecutions. Complementary international jurisdiction will be credible and effective only if there is an impartial, reliable and non-political process for identifying important cases of international concern, evaluating the action of any national justice systems involved, and triggering the jurisdiction of ICC when truly necessary. Since even the ICTY, with its primacy, depends upon the support of the Security Council, States have little reason to fear abuse of ICC’s lesser complementarity jurisdiction. Complementarity will require ICC to defer to national jurisdiction in most cases, and its de facto dependence upon the Security Council for enforcement and support will operate as an additional safeguard of legitimate State interests.26
Bona fide efforts to discover the truth and to hold accountable those responsible for any acts of genocide, crimes against humanity, or war crimes will bar ICC from proceeding. In determining “unwillingness”, the Court must inquire whether if there are proceedings, they are taken in “bad faith” to shield the accused from prosecution at the international level; whether there is an “unjustified delay” which is inconsistent with a sincere desire or willingness to bring the accused to trial; or whether the principles of “independence” and “impartiality” of the judiciary are not at work in the national system. In determining whether a national system is “unable” to pursue the case, the Court must determine whether “due to total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused, the necessary evidence and testimony, or otherwise cannot conduct its proceedings”.27
One concern, on a practical level, is the difficulty for the Court to gain access to information regarding a criterion as subjective as the intent of State authorities. In addition, this standard means that the Court would have to investigate and make subjective assessments as to the willingness of State authorities to bring to justice the perpetrators of serious violations. “Unavailability” and “ineffectiveness” are established standards used by human rights bodies to monitor whether domestic remedies have been exhausted as required for the exercise of jurisdiction of these bodies.28 The criterion of “ineffectiveness” and “unavailability” provide not only an established but also an objective standard by which to assess the investigation or prosecution, rather than the more subjective criterion of “unwillingness” or “inability”.
Article 18 provides that when a situation has first been referred to the Court, the Prosecutor must notify all States “that would normally exercise jurisdiction” of the intention to proceed with an investigation. Any State, whether party or non-party to the Treaty, may then inform the Court that it is dealing with the situation domestically and the Prosecutor will defer to that investigation, unless the Pre-Trial Chamber decides to authorise the investigation. The deferral is open to review by the Prosecutor after six months or at any time when there has been a significant change in the State’s unwillingness or inability genuinely to carry out the investigation.
States, again including non-parties to the Treaty, have another opportunity to block a prosecution by challenging the admissibility of particular cases.29A case could be challenged not only where the State itself is investigating or prosecuting, or has prosecuted, but also where the State decided not to proceed with a prosecution, unless the decision was due to the “inability” or “unwillingness” of the State. Another ground open to a State of territory or nationality, if a non-State party, would be that it had not accepted jurisdiction, as provided for in Article 12. Several parties may challenge the admissibility of a case — an accused person, any State that has jurisdiction over the case because it is investigating or prosecuting the case or has investigated or prosecuted it, or the State of territory or nationality of the accused. In this challenge, the referring State, the Security Council as well as victims may submit observations to the Court. Decisions on admissibility may be appealed to the Appeals Chamber.
Unfortunately, it may be difficult for ICC, once it has deferred to a State, to exercise jurisdiction in the future if the national proceedings turn out not to be genuine. Draft provisions that obliged States to notify the Court of the steps taken on the national level have been deleted. Not even State parties are expressly obliged to do so under the present Statute. This would have equipped the Court with the information to assess whether the deferral continued to be justified.30
International Cooperation and judicial assistance
Once the Court has determined that it may exercise jurisdiction, State parties agree under Article 86 to “cooperate fully with the Court in the investigation and prosecution of crimes within the jurisdiction of the Court”. Therefore, they should ensure that ICC Prosecutor and the defence can conduct effective investigation in their jurisdiction, that their courts and other authorities provide full cooperation in obtaining documents, locating and seizing assets of the accused, conducting searches and seizures of evidence, locating and protecting witnesses and arresting and surrendering persons accused of crimes in the Court. States should also cooperate with the Court in enforcing sentences by making detention facilities available to convicted persons. As noted above, in the absence of an independent police force, State cooperation is essential at all stages. Although the Statute refers to the general duty to cooperate fully with the Court, other provisions, therein, do make clear that there is in fact a legal obligation on State parties to comply with requests from the Court. Non-State parties are not, of course, under any obligation towards the Court.
There are no exceptions to the duty to transfer suspects to the Court which is a very positive development. The weakness in the cooperation framework lies, however, in two major exceptions to the duty of State parties to provide “other forms of cooperation”. First, the Court cannot order disclosure of information or prevent an individual from giving evidence if, in the State’s view, it would prejudice its “national security” interests. The Court can however find a State to be in breach of its obligation to cooperate in good faith and refer the matter to the Assembly of State Parties.31 The second exception is where compliance with a request is prohibited on the basis of an existing fundamental legal principle of national law.32 In such case, the Statute provides that, after consultation with the State, the Court must amend the request. A preferable approach, and one more solidly based on legal principle, would have been to oblige the State to amend its law, not ICC to amend its request. These provisions reflect the enormous deference to arguments of “State sovereignty” apparent throughout the Statute.
Applicable law
Article 21 provides that the law to be applied by the Court will be firstly, the Statute, the Elements of Crimes and the Rules of Evidence and Procedure, secondly, international law and thirdly, general principles derived from national systems so far as consistent with international human rights. “General principles of law recognised by civilised nations” is one of the sources of international law, as established in Article 38 of the Statute of the International Court of Justice.33 As such, the reference in Article 20(1)(b) to “the principles and rules of general international law”, already comprises the principles and rules of law generally recognised in national legal systems.34 However, in the interest of clarity, specific reference is made to these general principles of law as a source of applicable law. In the area of international criminal law, customary international and treaty law may not be sufficiently developed at the present time to provide legal guidance on all possible matters concerning the application of the Statute. General principles, derived from practice in a range of national legal systems, should be drawn upon to fill any potential lacuna. The International Court of Justice has relied upon this source of law in the exercise of its judicial function,35 as has the ICTY.36
An important and contentious provision was incorporated under this article stating that the Statute and other sources must be applied and interpreted consistently with internationally recognised human rights and be “without any distinction as to gender, age, race … or other Status”. The Court may also apply the principles and rules of law as interpreted in its previous decisions. This provision would facilitate the cohesive development of the Court’s jurisprudence, and contribute to the development of the emerging body of international criminal law. The Statute does not propose establishing a system of binding legal precedent, or seek to oblige the Court to adhere to the terms of its earlier decisions. Rather, it is permissive, empowering the Court to do so. The Court’s express ability to apply the principles that emerge from its previous judgments would contribute to greater consistency between cases and predictability, which are aspects of the principle of legality.
Role of the Security Council
Given its primary role under the United Nations Charter for maintaining international peace and security, the Security Council should have an important role in referring cases to the Court. However, subjecting ICC to the control of the Security Council — and to its highly political decision-making process — would have had a profoundly negative impact on the Court’s ability to function independently, as well as on its legitimacy, authority and credibility.37
As mentioned before, the Security Council my refer cases to ICC for investigation and prosecution acting under Chapter VII of the Charter of the United Nations. The Security Council may also request ICC to suspend investigations for twelve months at a time if it feels that ICC proceedings might interfere with the Security Council’s responsibility to maintain peace and security.38 Deferral would require a decision of the Council, and therefore excludes the possibility of one State’s veto-blocking jurisdiction, but it does leave open the possibility of unlimited renewal and perpetual deferral.
The International Court of Justice expressed the relationship between itself and the Security Council in the following terms: “The Council has powers of a political nature … whereas the Court exercises purely judicial functions. The organs can therefore perform their separate but complementary functions with respect to the same events.”39 It went on to State that: “The fact that a matter is before the Security Council should not prevent it being dealt with by the Court and that both proceedings can be pursued pari passu.”40
These statements apply with equal if not greater force to an international criminal court with functions quite separate from the political functions of the Council, but very much complementary in the protection of international peace and security. Argument forwarded during the negotiations that ICC jurisdiction may interfere with the promotion of peace agreements is spurious. Rather, any suggestion that the Court’s jurisdiction might be used as a negotiable element in any potential peace agreement brokered by the Council, which would inevitably seriously diminish the Court’s stature, politicize its role and, hence, undermine its credibility, should be rejected. Just as the International Court of Justice has jurisdiction to consider cases whether or not they arise from situations being dealt with by the Security Council under its Chapter VII powers,41 ICC should not be precluded for exercising jurisdiction because the Security Council is dealing with a matter.
The crimes
The International Criminal Court will deal with the most serious crimes committed by individuals — genocide, crimes against humanity, war crimes and aggression.42 These crimes are specified in the Statute and are carefully defined to avoid ambiguity and vagueness. Crimes of aggression will also be dealt with by the Court when State parties have agreed on the definition, elements and conditions under which the Court will exercise jurisdiction.
The Statute contains the first precisely negotiated and exactly defined catalogue of crimes under international law. It is particularly important that genocide and crimes against humanity, for the first time exactly defined in a treaty, may be prosecuted in all circumstances and not just when committed in an armed conflict. Therefore, especially the definition of crimes against humanity, as contained in Article 7 of the Statute, constitutes a very important, unprecedented breakthrough in the codification of international law in this area. It is also very significant that war crimes fall under the jurisdiction of the Court committed in international or in non-international, internal armed conflicts i.e. civil wars. Since about ninety per cent of all modern conflicts are of a predominantly internal nature, this wide scope of jurisdiction is of particular importance.43 The Statute contains in Article 8 fifty individual war crimes and thus a very comprehensive definition, including grave breaches of the Geneva Conventions.
Although the Statute makes no mention of adding other crimes in the future, there has been discussion among State parties for the need to include crimes involving terrorism,44 the use of nuclear weapons, the trafficking of narcotics and psychotropic substances and crimes against the United Nations and associated personnel.45 Despite the arguments for including these additional crimes, the consensus among State parties was to restrict the Court’s jurisdiction to a few core crimes in order to facilitate a broader acceptance of ICC.
Genocide
ICC’s inclusion of the crime of genocide and its definition is largely inspired by the Genocide Convention of 1948,46 the Geneva Convention of 1949 and the application of the crime of genocide by the ad hoc Tribunal in Rwanda. Genocide is any one of a number of acts aimed at the destruction of all or part of certain groups of people. It is this intent that distinguishes genocide from other crimes against humanity. Under Article 6 of the Statute, the following five prohibited acts, if committed with the intention to destroy in whole or part a national, ethnical, racial or religious group, as such, may constitute genocide — killing, causing serious bodily or mental harm to the members of a group; deliberately inflicting conditions of life calculated to bring about physical destruction of a group; imposing measures intended to prevent births within a group; and forcibly transferring children of a group to another group. While some delegates at the Rome Conference rallied to have acts against social and political groups included in this definition, the majority of State parties felt these acts could be addressed under crimes against humanity.47
Anyone can be tried for genocide, no matter what the person’s position. This means that not only those who pulled the trigger, whether foot soldiers or next-door neighbours, can be guilty of the crime, but also the head of State or government minister who planned or ordered the act. ICC jurisdiction does not allow for immunity afforded to heads of State. Following illegal orders of superiors is not a defence to genocide. Under Article 25(3)(b) of the Statute, anyone who orders, solicits, or induces someone who committed the acts of genocide, is also guilty of genocide. Further, the customary nature of the principles forming the basis of the Genocide Convention48 has been recognised since the 1950s49 and consequently, Article 1 of the Genocide Convention states that genocide is a crime under international law “whether committed in time of peace or in time of war”.
Crimes against humanity
ICCs definition of crimes against humanity is not influenced by treaties, but by precedents such as the Nuremberg Charter50 and the ad hoc Tribunals for the former Yugoslavia51 and Rwanda.52 Crimes against humanity have been clearly defined in the Rome Statute under Article 7 and are distinguished from ordinary crimes in three ways. Firstly, the acts constituting the said crimes such as murder, must have been committed as part of a widespread or systematic attack. Secondly, they must be knowingly directed against a civilian population and thirdly, they must have been committed pursuant to a State or organizational policy. Thus, they can be committed by State agents or by persons acting at their instigation or with their acquiescence, such as vigilantes or paramilitary units. Crimes against humanity can also be committed pursuant to policies of organizations, such as rebel groups, which have no connection with the Government.
The Rome Statute covers eleven types of acts, which may amount to crimes against humanity including murder, extermination, enslavement, unlawful imprisonment, torture, deportation of population, sexual violence, persecution against an identifiable group, enforced disappearance of persons apartheid and other inhumane acts that cause “great suffering” or “serious bodily or mental injury”.53 Unlike the crime of genocide, these acts need not be committed in persecution of any particular group to establish liability for punishment. The Statue also does not require the acts be committed during an armed conflict in order to establish a conviction for crimes against humanity because systematic attacks against civilians can also occur during peacetime.54 Further, there is no requirement that the inhumane acts constituting crimes against humanity other than “persecutions” be perpetrated on “discriminatory grounds” or with “discriminatory intent”.55
In addition, ICC definition contains an expanded, but still open-ended, enumeration of acts. Of particular note is the expansion of the list of crimes of sexual violence to include “sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity”.56 Another important expansion took place in the list of cognizable grounds for persecution. For the first time, this list includes “gender” as a ground of persecution.57 Most importantly, the list of grounds is left open-ended with the inclusion of “other grounds that are universally recognised as impermissible under international law”.58
War crimes
War crimes have been punishable by national courts since the middle ages. There have been numerous international humanitarian treaties developed in the 1990s in this regard, notably the Hague Convention IV of 1907 and its Regulations,59 the four Geneva Conventions of 1949 and their 1977 Protocols.60 Article 8 of the Rome Statute gives ICC jurisdiction over a wide range of war crimes committed during international armed conflicts, which are recognised in these treaties and international customary law. It also reaffirmed recent developments in international law by giving by ICC the power to try war crimes committed in internal armed conflicts, such as civil wars, which are the most common conflicts today. War crimes are, as the name suggests, crimes committed during armed conflict including acts such as torture, sexual violence, pillage, employing poisonous weapons and intentionally starving civilians. Unlike crimes against humanity, which are committed in the context of widespread and systematic attacks against the civilian population, a single, isolated dispersed or random act may be considered a war crime if committed during armed conflict.
Article 8 of the Rome Statute divides was crimes into four sections — grave breaches, other war crimes committed in international conflict, violations of Common Article 3 of the Geneva Conventions and other war crimes committed in non-international armed conflicts. The division of international and non-international conflicts mirrors the distinction enshrined in humanitarian treaty law. This distinction, which exists as a result of the historical context from which the treaties emerged, is becoming increasingly blurred as humanitarian law develops. The Statute, in creating an institution for the future reflects this trend and establishes the Court’s jurisdiction over serious war crimes, whether committed in internal or international conflicts.61
Serious violations of the laws and customs of international armed conflict include acts such as “intentional direct attacks against civilian population not directly involved in the hostilities, transferring the civilian population of the occupying power into the territory it occupies, and employing certain weapons which cause superfluous injury or unnecessary suffering”. When there is armed conflict not of an international nature, the Statute forbids acts committed against persons taking “no active part in the hostilities”, including members of armed forces who have surrendered their arms.62 Grave breaches are acts against persons or property including wilful killing, torture or inhumane treatment, wilfully causing great suffering, extensive destruction and appropriation of property not justified by military necessity, compelling prisoners of war to serve in the forces of a hostile power, depriving prisoners of war the right to a fair trial, unlawful deportation, transfer or confinement and taking of hostages. However, ICC’s jurisdiction does not apply to “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature” which are not considered as “armed conflicts not of an international nature”.63
The crime of aggression
The Statute does not define the crime of aggression and therefore leaves a potentially explosive issue unresolved. What constitutes the crime of aggression will still be discussed by signatories to the Rome Statute.64 Defining aggression has historically been a very controversial and extremely political undertaking.65 In international law, the concept of aggression has been slowly taking shape particularly in cases involving military actions involving the United States, Nicaragua, Costa Rica and EI Salvador.66 Some countries such as the United States, voted against the inclusion of the crime of aggression in the Statute, fearful that it would expose military commanders who conduct military operations in other countries.
Several proposals have been considered in this regard.67 Some countries feel that, in line with the UN Charter and the mandate it gives to the Security Council, only the Council has the authority to find that an act of aggression has occurred. If this is agreed, then such a finding by the Council would be required before the Court itself could take any action. Other countries feel that such authority should not be limited to the Security Council. There are proposals under consideration that would give that role to the General Assembly or to the International Court of Justice, if an accusation of aggression were made and the Security Council did not act within a certain time. Some scholars feel that a non-political judiciary created by consenting States could help protect against abuse by the Security Council by its independent authority to determine if an individual is guilty of the crime of aggression.68 Whatever is the result of these discussions, the trial and punishment of violators of the crime of aggression can only be enforced once State signatories agree on its definition and elements.
Mental element of the crimes
The mental element is crucial from the perspective of both the accused and the prosecution. The level of intent required for the crime will directly influence the Prosecutor’s selection of individuals for prosecution.69 For example, if commission of a crime against humanity requires individual awareness of the details of a policy, the Prosecutor may be constrained to indict only members of the upper ranks of the command structure who were directly involved in developing the policy. The mental element also impacts the available defences. For example, if the mental element requires a discriminatory intent to persecute a particular group, an accused may defend against a charge of crimes against humanity with the assertion that he or she in fact accepts or supports the relevant group. Therefore, the elucidation of a clear standard for the mental element of crimes will facilitate a consistent and just adjudication of these international crimes.70
Article 30 of the Rome Statute states “unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge”. Where no reference is made in the Elements of Crimes to a mental element for any particular conduct, consequence or circumstance listed, it is understood that the relevant mental element i.e. intent, knowledge or both, set out in Article 30 applies. Existence of intent and knowledge can be inferred from relevant facts and circumstances. With respect to mental elements associated with elements involving value judgment, such as those using the terms “inhumane” or “severe”, it is not necessary that the perpetrator personally completed a particular value judgment, unless otherwise indicated. Grounds for excluding criminal responsibility or the absence thereof are generally not specified in the elements of crimes listed under each crime. The requirement of “unlawfulness” found in the Statue or in other parts of international law, in particular international humanitarian law, is generally not specified in the Elements of Crimes.
In particular, genocide requires the “intent to destroy, in whole or in part, a national ethnical, racial or religious group”.71 Crimes against humanity must be “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”, and that attack must involve the multiple commission of crimes against any civilian population, “pursuant to or in furtherance of a State or organisational policy to commit such attack”.72 War crimes fall within ICC jurisdiction “in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”,73 and only when the material elements of the crime are committed with intent and knowledge.
The Elements of Crimes impose stricter discipline on the prosecution of ICC crimes than found only in the Statute.74 In general, a person must commit material elements of a crime with intent and knowledge about that crime.75 With respect to the crime of genocide, the conduct must take place “in the context of a manifest pattern of similar conduct directed against the group or was conduct that could itself effect such destruction”.76
With respect to crimes against humanity, the necessary “policy to commit such attack” against a civilian population requires that the State or organisation “actively promote or encourage such an attack against a civilian population”.77 The perpetrator must have known that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.78 This requirement of intent and knowledge, of course, does not apply to the chapeau79 elements of crimes against humanity since the chapeau states that knowledge alone suffices.80 This knowledge requirement stands in contradistinction to the specific intent required for the crime of genocide. The knowledge standard rejects the notion that crimes against humanity require a discriminatory intent to persecute a particular group.
With respect to war crimes, the elements of war crimes must be interpreted within the established framework of the international law of armed conflict including, as appropriate, the international law of armed conflict applicable to armed conflict at sea.81 The perpetrator must be aware of the factual circumstances that established the existence of an armed conflict. Regarding the war crimes of attacking civilians or civilian objects, the perpetrator must have intended the civilian population as such or individual civilians not taking direct part in hostilities or such civilian objects to be the object of the attack.82 Regarding the war crime of excessive incidental death, injury, or damage, it must be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated.83
General principles of criminal law
Part 3, headed “General Principles of International Law”, constitutes the first comprehensive agreement in an international legal instrument on what could be called the “general section of international criminal law”. The general principles of criminal law pursuant to the Statute, taking account of pertinent international and national court rulings as well as of the various criminal law traditions (for example involvement of several persons in an offence, criminal liability for omissions and limitation), cover almost all key questions of general criminal law system. Together with the definitions of crimes in the Statute, Part 3 produces a concept of the “international criminal offence” consisting of the following three components — occurrence of objective and, as the case may be, specific characteristics of an international criminal offence, fulfilment of the general requirement for the subjective aspect of the offence and the absence of a reason to exclude criminal responsibility. It is worth highlighting that the concept of a reason to exclude criminal responsibility includes grounds of justification, excuse and exemption from punishment.
The Statute contains no statute of limitations and is prospective in scope. ICC has to follow the principle of legality and provides for protection against double jeopardy. The Court would only have jurisdiction over persons of 18 years of age or older at the time of the alleged commission of a crime.84 ICC will not have jurisdiction to declare legal persons such as organizations criminal.
Specifically, individual criminal responsibility attaches where a person — commits a crime as an individual, jointly with or through another person; orders, solicits or induces the commission of a crime or attempted crime; aids, abets, or assists in the commission or attempted commission of the crime; intentionally contributes to the crime or attempted crime by a group of persons acting with a common purpose; directly and publicly incites others to commit genocide; or attempts to commit a crime with “action that commences its execution by means of a substantial step, but the crime does not occur due to circumstances independent of the person’s intentions.”85
The right to prepare one’s defence is a fundamental human right.86 Inherent in the enjoyment of this right is knowledge of the defences the Court will and will not consider. One consequence of not making the defences explicit in the Statute is the uncertainty it would create for the accused as to whether a particular defence is possible, which may in turn affect the plea tendered by the accused.87 The basis for making the available defences explicit is the need for uncompromising fairness to the accused, as expressed in the following terms:
“[F]airness requires giving due notice of what constitutes prohibited conduct and of what will happen if the line between permissible and prohibited conduct is crossed. Insofar as the object is to indicate where to draw the line, and therefore to provide a practical guide to permissible conduct, it would follow that the law should not only define offences but also specify in advance the kind of justifications that will render otherwise prohibited conduct permissible.”88
The Statute, therefore, sets out an extensive but non-exhaustive list of possible defences.
In general, the Treaty allows for quite a broad range of defences, each set out in some detail in the Statute. Some of these are incapacitating mental disease or defect, involuntary intoxication, self-defence or defence of others, extreme duress etc. The specified defences constitute a non-exhaustive list. The Court is allowed to accept additional defences to those specified in the Statute, if it is satisfied that such defences are enshrined in the principles of criminal law common to civilised nations.89 Under Article 33, mistakes of fact or law extinguish criminal responsibility only insofar as they negate the mental element in crime. As such, their inclusion within the Statute as a defence is unnecessary, as they are already covered under the relevant mens rea provisions.
The provisions on the responsibility of commanders, along with superior orders, created much controversy. On “command responsibility”, the Statute distinguishes between military and other commanders. For the former, it sets out the Nuremberg test — he or she must have known, or owing to the circumstances, should have known and failed to take reasonable measures to prevent the crimes, or to submit them for investigation afterwards. For civilian superiors however, the standard is higher and the approach apparently unprecedented. The superior has to have effective authority and control over the persons and activities constituting the crimes, and must have known or consciously disregarded information that clearly indicated that subordinates were committing or were about to commit crimes and failed in the manner referred to above.90
Regarding superior orders as a defence,91 ICC Treaty takes a step back from the Nuremberg Charter and the Statutes of the ad hoc Tribunals, which contained an absolute prohibition on superior orders as a defence. While the Statute is controversial in not ruling out the application of the defence, it does greatly restrict its scope. It only applies where the following criteria are met — there was a legal obligation to obey the orders; the person did not know the order was unlawful; and the order was not manifestly unlawful. It expressly cannot apply in cases of genocide and crimes against humanity, which the Statute deems inherently manifestly unlawful.92
Investigation and prosecution
ICC Statute contains numerous provisions to ensure that its procedures are carried out in accordance with recognised international standards of justice and guarantees of due process and fair trial. These rights are protected not only in trial and appeal procedures but also during investigations.
The Prosecutor must decide whether to initiate an investigation based upon the following considerations:
- ( Whether the information available “provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed”,
- ( Whether the requirements of general admissibility under Article 17 are satisfied; and
- ( Whether there are “substantial reasons to believe that an investigation would not serve the interests of justice” in light of the “gravity of the crime, the interests of victims, the age or infirmity of the perpetrator, and the role (of the perpetrator) in the alleged crime”.93
If the Prosecutor determines there is a reasonable basis to proceed, a request must be submitted to the Pre-Trial Chamber along with supporting material, under Article 15. A Pre-Trial finding that the case has a “reasonable basis” and jurisdiction to proceed, authorizes commencement of the investigation, “without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of the case”. These requirements are incorporated to screen out frivolous or politically motivated cases. On the other hand, if the Prosecutor determines that the case lacks sufficient basis for prosecution, he or she must inform the Pre-Trial Chamber and all parties referring information, as to the reasons underlying that conclusion. Furthermore, the Pre-Trial Chamber can only question the Prosecutor’s decision not to proceed, if it was based on the “interests of justice”.94 In light of the above exception, a Prosecutor’s decision not to proceed with an investigation is final, unless he or she finds new facts or evidence to the contrary.
Following the initiation of an investigation and upon the Prosecutor’s request, the Pre-Trial Chamber retains the power to issue an arrest warrant, or in the alternative, to issue a summon to appear before the Court under Article 58. A State must promptly surrender the designated person to the Court after the State’s judiciary determines that the person’s identity matches that of the warrant and all corresponding rights have been respected. However, the State is not permitted to consider whether the Court’s issuance of the warrant was correct.95 In addition, the Chamber may “provide for the protection and privacy” of evidence, victims, witnesses, the arrested, or national security information. When a State is “clearly unable” to cooperate with a request to provide information due to the unavailability of authority or the lack of a judicial system component, the Chamber can authorize the Prosecutor to take investigative steps without having “secured cooperation” of that State.96
Once the suspect is placed in the Pre-Trial Chamber’s custody, a hearing is conducted to confirm the charges on which the Prosecutor intends to seek a trial. The accused may object to the charges, challenge the Prosecutor’s evidence and present evidence, before the Chamber determines the sufficiency of evidence to proceed to the Trial Chamber.97 In addition, the accused may apply for interim release pending trial if the Chamber determines that the issuance of the warrant or summons was not in compliance with Article 58.98 At all times during the investigation and questioning, the suspect has a variety of rights to insure fairness.99
The trial
The Statute provides for Trial Court proceedings that operate in a fair and expeditious manner with “full respect for the rights of the accused and due regard for the protection of victims and witnesses”.100 This is further substantiated in the Rules of Procedure and Evidence. In performing its functions, under Article 64, the Trial Chamber has the ability to — refer preliminary issues to the Pre-Trial Chamber in order to ensure “effective and fair functioning”; require attendance and testimony of witnesses; ensure production of documents and other evidence; allow for protection of confidential information; and provide for the protection of the accused, witnesses and victims. At the commencement of the trial, the Trial Chamber must “satisfy itself that the accused understands the nature of the charges” and should give him or her, the opportunity to make an admission of guilt or plead not guilty. Admissions of guilt will only be considered by the Court if — the accused “understands the nature and consequences of his admission”, the admission is made voluntarily by the accused following “sufficient consultation” with the defence counsel; and the admission is supported by facts contained in the charges and evidence presented by both parties. Any agreement between the Prosecutor and defence counsel to modify the admission of guilt or the imposed penalty is not binding on the Court.101
When the accused pleads not guilty, he or she is presumed innocent until proven guilty beyond a reasonable doubt.102 The accused must be present during the trial where he or she has the following rights — the right to be “informed promptly and in detail of the charges”, to have full time and facilities for the preparation of one’s defence and free communication with counsel, to trial without delay, to be present during trial, to cross-examine witnesses and obtain attendance of witnesses, to an interpreter, not to incriminate oneself, to be presumed innocent until proven guilty beyond reasonable doubt, to have evidence disclosed which shows or mitigates the guilt of the accused or affect the credibility of prosecution evidence etc. The Prosecutor has continued responsibility to share evidence with the defence that would tend to show the innocence of the accused, mitigate the guilt of the accused, or affect the credibility of the prosecution’s evidence.103
As the crimes before the Court are of very serious and grave nature, another important function of the Trial Court is to “take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of the victims and witnesses” under Article 68. The Court affords protection especially when the crime involves children, sexual violence, or gender violence. In these instances, the Trial Chambers may conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. Furthermore, victims are permitted to express their views and concerns before the Court, in a manner that is non-prejudicial to the accused, when the victims’ personal interests were affected. Additional measures to help witnesses and victims deal with security arrangements, trauma, or medical attention are referred to the Victims and Witnesses Unit.
In order to ensure the integrity of ICC, the Trial Court has jurisdiction over persons committing intentional offences against its administration of justice. Offences against the Court include — giving false testimony, presenting false evidence, corruptly influencing a witness, impeding a court official from performing his or her duties, retaliating against a witness, impeding a court official from performing his or here duties, retaliating against a court official and soliciting or accepting bribes as a court official. If convicted, the individual may be subject to imprisonment for up to five years or a fine deemed appropriate by the Court.104
As regards the importance of national security issues that may arise during trial, where a person has refused to provide information or evidence because it might prejudice national security interests, the interested State has the right to intervene in order to resolve the issue.105 In addition, under Article 73, information obtained by a State from a third party in order to satisfy the request of the Court, must have the consent of the originator of the document or information. Essentially, this provision allows for pre-existing obligations of third-party confidentiality to be honoured.106
At the conclusion of the trial, the Trial Chamber Judges deliberate secretly and issue an oral and written decision containing “a full and reasoned statement of the Court’s findings on the evidence and conclusions”. Any decision is solely based upon the facts and circumstances described in the charges and presented at trial. Although the Judges are required to strive for unanimity in the decision, only a majority vote is needed to convict the accused.107
A person convicted by the Trial Court or the Prosecutor has the opportunity to appeal based on grounds of procedural error, error of fact, or error of law. If the Appeals Chamber finds an error, it may reverse or amend the sentence, remand a factual issue to the original Trial Court, or order a new trial before a different Trial Chamber. In addition, a sentence may be appealed by either party where the penalty given is claimed to be disproportionate with the crime committed. A convicted person remains in the Court’s custody during the appeal process. However, in the case of an acquittal, the accused will be released immediately absent exceptional circumstances. In the unfortunate instance where a person has been unlawfully arrested or convicted, Article 85 of the Statute makes appropriate provision for compensation. The right of the accused to compensation in enumerated circumstances is also enshrined in broadly ratified human rights instruments.108 The Appeals Chamber reserves the right to deliver the judgment in the absence of the person acquitted or convicted.109
Penalties
The Statute permits the Court to impose two types of penalties — imprisonment for a specified term or life imprisonment.110 After much debate over whether there should be minimum and maximum limits set on the terms of imprisonment, in the end, the Statute only contains a thirty-year maximum. A provision for a mandatory review of penalties, when the person has “served two-thirds of the sentence or 25 years in the case of life imprisonment”111 was added to mitigate some of the concerns about life imprisonment. The Court may also order fines and forfeitures. The Statute recognizes that these penalties would be “in addition to” imprisonment.
There was a lot of debate over the issue of death penalty. The Statute does not provide for the death penalty. Article 80 titled “Non-prejudice to national application of penalties and national law”, was offered as a compromise to those States that were pushing for the inclusion of the death penalty, which reads that “nothing in this part of the Statute affects the application by States of penalties prescribed by their national law”.
Reparation to victims
The making of reparations from perpetrator to victims can play a critical role in the healing process of victims and societies as a whole, and is itself a factor in preventing future violations. Reparation is an essential element in the administration of international justice. The Rome Statute, under Article 75, mandates that the Court establish principles relating to reparations, which include compensation, restitution and rehabilitation. The Court may upon request by victims or, in exceptional cases, on its own initiative, make a determination about the nature and scope of damages in a particular case. When appropriate the Court may issue an award of reparations directly against a convicted person. The Court may also make an award of reparations to victims which may draw on the Trust Fund112 to be established for the benefit of victims and witnesses, as appropriate.
Conclusion
ICC Statute is a comprehensive international treaty in which international criminal law has been successfully and uniformly codified and further developed, taking account of the different criminal law systems of the United Nations member States with their different traditions. Hence — regardless of its character as a general compromise and the many individual compromises it contains — the Statute marks a remarkable success in the efforts to enhance the rule of law in international relations. The Statute reaffirms the concept of individual responsibility in criminal law as a guiding principle of a world order based on freedom and justice where the most serious violations of international law which constitute an attack on the international community as a whole can also be individually punished. It is a monumental achievement in the field of international legal policy that individuals who have transgressed their obligations to the international community as a whole may be held responsible by an independent judicial institution. ICC thus symbolizes jurisdiction exercised on behalf of the community of nations.113
Besides, the best way to prevent international crimes is through the spread of democracy, transparency and rule of law. Nations with accountable, democratic governments do not abuse their own people or wage wars of conquest and terror. A world of self-governing democracies is our best hope for a world without inhumanity. To conclude, the world should give attention to the following words of the Secretary General of the United Nations, Kofi Annan — “The best chance humankind has ever had to end the ‘culture of impunity’ is within our grasp. We must not let it fall.”114..
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