The International Criminal Court (ICC)

By: Pan Mohamad Faiz K.W.

Brief Introduction

The U.N. General Assembly, in 1989, requested the International Law Commission to address the question of establishing an international criminal court. The commission prepared a Draft Statue. The Rome Conference – U.N. Diplomatic Conference of Plenipotentiaries, in Italy, adopted the statue known as the “Rome Statue of the International Criminal Court” on 17 June 1998. The Conference was attended by 162 countries.

Beside the Preamble, there are 128 Articles in the Statue, divided into 13 parts. According to Art. 126, the Statue shall come into force on the 1st day of the month after 60th day following the date of deposit of the 60th instrument of ratification, acceptance, approval or accession with the U.N. Secretary General. The Statue of ICC has come into force from 1st January 2003.

Earlier, an International Tribunal for Prosecution of Violators of International Humanitarian Law in Former Yugoslavia was established in 1883 by the Security Council. It was for the first time that UN has established an International Criminal Court with jurisdiction to prosecute crimes committed during armed conflict. The Tribunal is to deal with “crimes against humanity”, such as murder, extermination, enslavement, torture, rape, persecution on political racial and religious grounds and other inhuman acts. It may be noted that “crimes against humanity” were first recognized in the UN Charter and judgment of Nuremberg Tribunal (1945).

Then, Rwanda International Criminal Tribunal was established in 1994 under Chapter VII of the UN Charter by the Security Council for the purpose of prosecuting persons responsible for genocide, etc. committed in the territory of Rwanda and other neighbouring States.

Major Features of International Criminal Court (ICC)

1. Establishment of the Court.

Art. 1, which establishes the ICC, provides that it shall be a permanent institution and shall have power to exercise jurisdiction over persons for the “most serious crimes” of International concern. The ICC shall be complementary to national courts. The ICC will exercise jurisdiction only when the national judiciary concerned is genuinely unwilling or unable to prosecute crimes mentioned in the Statue of ICC.

The Court shall be brought into relationship with UN through an agreement to be approved by the Assembly of State to this. The seat of the Court shall be established at the Hague (Netherlands).

2. Jurisdiction

The Court has jurisdiction in accordance with the Statue with respect to the following crimes: (a) Crime of genocide, (b) Crime against humanity, (c) War crimes, (d) Crime of aggression (Art. 5). The Court has jurisdiction only with respect to crimes committed after the entry into force of the Statue (Art. 11). A State which becomes a party to the Statue thereby accepts the jurisdiction pf the Court with respect to these crimes (Art.12).

The Statue shall apply equally to all persons without any distinction based on official capacity (a Head of State/Government, a Member of Parliament, etc.); Immunities or special procedural rules which may attach to the official capacity (under national or international law) shall not bar the court (Art. 27). However, the Court shall have no jurisdiction over a person under age of 18 at the time of the commission of a crime (Art. 26).

3. Applicable Law

According to Art. 21 (1), the Court shall apply firstly this Statue’ elements of crime and its rules of procedure and evidence; secondly, where appropriate, applicable treaties and principles of international law (including those of armed conflict); lastly, general principles of law derived by Court from national laws of legal system of the world including the national laws of States that would normally exercise jurisdiction over the crime (provided that those principles are not inconsistent with the statue/international law).

Art. 21 (2) lays down that the Court may apply principles and rules of law as interpreted in its previous decision. Art. 21 (3) provides that the with internationally recognized “human rights”, and be without any adverse distinction founded on grounds such as gender, age, race, colour, language, religion/belief, political or other opinion, national/ethnic/social origin, wealth, birth or other status.

A person shall not be criminally responsible under this Statue unless the conduct in question constitutes, at the time it takes place, a crime within the court’s jurisdiction –Nullum crimen sine lege. The definition of a crime shall be strictly construed; in case of ambiguity, there shall be interpretation in favour of persons being investigated, prosecuted or convicted (Art. 22).

A person convicted by the court may be punished only in accordance with this Statue – Nulla poena sine lege (Art. 23). Art. 24 lays down that no person shall be liable for conduct prior to the entry into force of the Statue. In the event of a change in the law applicable to a given case prior to final judgment, the law more favourable to the persons being investigated, etc. will apply.

Art, 25 deals with “individual criminal responsibility”. The Court shall have jurisdiction over natural pursuant to this Statue. A person committing a crime shall be individually responsible and liable for punishment; it does not matter whether he commits crime as and individual, jointly with another or through another person. A Person is also criminally responsible if he orders, solicits or induces the commission of a crime which in fact occurs or is attempted.

A person is also liable if for the purpose of facilitating the commission of a crime, he aids, abets, etc. in its commission; contributes to the commission (or attempt) of a crime by a group of persons acting with a common purpose; in respect of the crime of genocide, directly and publicly incites other to commit crime.

It also laid down that no provision in this Statue relating to individual responsibility shall effect the responsibility of States under international law.

4. Composition of Court

According to Art. 34, the Court shall be composed of: (a) The Presidency; (b) Appeal Division, Trial Division and Pre-Trial Division; (c) Office of the Prosecutor; and (d) The Registry.

The Court is to consist of 18 judges (having established competence in Criminal Law and Procedure as a judge, prosecutor, advocate, etc, or international humanitarian law and the law of human rights). Nominations of candidates for election to the Court may be made by any State Party to the Statue; every candidate is required to be fluent in one of the working languages of the Court (i.e. Arabic, Chinese, English, French, Russian and Spanish). No two judges may be nationals of the same State.

The judges shall hold office for a term of 9 years. But at the first selection, 1/3rd of judges elected shall be selected to serve for a term of 3 year; 1/3rd to serve for a term of 6 years; and the remainder for a term of 9 years (Art. 36). The ‘place of trial’ shall be the seat of the Court.

5. Penalties

Art. 77 lays down the following penalties: Imprisonment up to a maximum of 30 years; or a term of life-imprisonment when justified by the extreme gravity of the crime and individual circumstances. These penalties are subject to Art. 110 (review by the Court concerning reduction of sentence).

In addition to imprisonment, the Court may order a fine; a forfeiture of proceeds, property and asserts derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.

6. Appeal and Revision

A decision under Art. 74 may be appealed in accordance with the Rules of Procedure and Evidence (Art. 81). The convicted person, or his spouse, children, etc. may apply to the Appeals’ Chamber to revise the final judgment of conviction/sentence on the ground specified in the Statue (Art. 84).

Anyone who has been the victim of unlawful arrest/detention shall have an enforceable ‘right to compensation’.

7. Assembly of State Parties

The State Parties are under a general obligation to cooperate with Court (Art. 86). A sentence of imprisonment shall be served in a State designated by the Court from a list of States, which have indicated their willingness to accepts sentenced persons (Art. 103).

The Rome Statue also established an Assembly of State Parties; each State Party to have one representative. Other States, which have signed the Statue, may be observes in the Assembly (Art. 112). The Assembly shall’ve a Bureau consisting of a President, two Vice-President and 18 members.

The Assembly shall consider and adopt recommendations of the Preparatory Commission; provide management oversight; decide the court’s budget; decide, whether to alter, the number of judges; to consider question relating to non-cooperation. The Assembly may establish subsidiary bodies for evaluation and investigation of the Court, in order to enhance its efficiency. The Assembly shall adopt its own rules of procedure.

8. Settlement of Disputes

Any dispute concerning the judicial functions of the Court shall be settled by the Court’s decision. Any other dispute between two or more State Parties relating to the interpretation or application of the Statue shall be referred to the Assembly of State Parties; the latter may itself seek to settle it or make recommendations on further means of settlement including referral to the ICJ (Art. 119).

9. Miscellaneous

A unique feature of the Rome Statue is that it does not provide for any reservations (Art. 120). A State Party may, be written notification addressed to the UN Secretary General, withdraw from this Statue (Art. 127).

Seven years after the entry into force of this Statue, the Secretary General of U.N. shall convene a Review Conference to consider any amendments to this Statue. Such review may include, but is not limited to, the list of crimes contained in Art. 5.

[1] Writer is a Postgraduate Student of Master of Comparative Law (M.C.L.) at Faculty of Law, University of Delhi and Master of Political Science at Indira Gandhi University.


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