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, and war crimes, as defined by several international agreements, most prominently the Rome Statute of the International Criminal Court.

Note that "International Criminal Court" is sometimes initialized as ICCt to distinguish it from "International Chamber of Commerce." Also, the ICC is separate from the International Court of Justice, which is a body to settle disputes between nations, and the War Crimes Law (Belgium).

Contents

Cases before the court

Three parties (countries that have ratified the Court's Rome Statute) have referred situations to the Office [1] of the Prosecutor (OTP) of the ICC: the Republic of Uganda on January 29, 2004; the Democratic Republic of the Congo on April 19, 2004; and the Central African Republic on January 6, 2005. In March 2005, the OTP received its first United Nations Security Council referral for Darfur, Sudan. After rigorous analysis in accordance with the Rome Statute and the Rules of Procedure and Evidence, the Chief Prosecutor decided so far to open investigations into three situations: in the Democratic Republic of the Congo, in the Republic of Uganda, and in Darfur, Sudan [2]. On October 6, 2005 the ICC issued its first warrants for the Lord's Resistance Army leader Joseph Kony, his deputy Vincent Otti, and LRA commanders Raska Lukwiya, Okot Odiambo and Dominic Ongwen.

Development of the ICC

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, International Criminal Tribunal for Rwanda). Subsequently, it was desired to create a permanent tribunal, so that an ad hoc tribunal would not have to be created after each occurrence of these crimes.

The General Assembly called the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, in Rome, Italy, where the Rome Statute of the International Criminal Court was adopted, July 17, 1998. Almost all states participating voted in favor of the Statute; the United States, Israel, People's Republic of China, Iraq, Qatar, Libya and Yemen voted against. The United States and Israel went on to sign the Statute just before the deadline to do so; both countries later nullified their signatures.

The Statute became a binding treaty after it received its 60th ratification, which was deposited at a ceremony at United Nations Headquarters on 11 April 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 1 July 2002. The official seat of the ICC is in The Hague, Netherlands; but its Statute permits it to hold its proceedings anywhere.

The court became operational when the signatory nations met in the Assembly of State Parties to appoint a prosecutor and 18 judges. It opened on March 11, 2003. The Judge-President is Philippe Kirsch from Canada, and the Vice-Presidents are Akua Kuenyenia from Ghana and Elizabeth Odio Benito from Costa Rica. Its Chief Prosecutor is Luis Moreno Ocampo of Argentina.

Structure and powers

The International Criminal Court is composed of the Court itself, divided into a number of chambers (Pre-Trial, Trial and Appellate), the Registry, the Office of the Prosecutor and the Assembly of State Parties.

The initial impetus for its establishment came from within the United Nations. Although it is legally a separate entity established by a separate treaty between states, and not the Security Council acting under the United Nations Charter, the UN has a clearly defined role towards the court. Its relationship with the United Nations is governed by an agreement between the Court and the United Nations, which mainly provides for Security Council referrals under the Rome Statute, and for United Nations assistance in payment for any prosecutions made under such a referral.

Countries ratifying the treaty that created the ICC grant it authority to try their citizens for war crimes, crimes against humanity and genocide (called States Parties). It provides for ICC jurisdiction over offences committed on the territory of a State Party (including crimes committed on that territory by a national of a non-state party), by a national of a state, over crimes committed by any person when granted jurisdiction by the UN Security Council, and over crimes committed by nationals of a non-state party or on the territory of a non-state party where that non-state party has entered into an agreement with the court providing for it to have such jurisdiction in a particular case (consent).

Many states wanted to add "aggression," "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. As a compromise, the treaty merely brands "aggression" as a crime without providing a definition, pending adoption of an amendment to the Statute. It may also be amended to include other crimes. However, no amendments can be made to the Rome Statute until seven years after the Statute became legally binding.

How cases reach the ICC

Cases may be referred to the ICC by one of four methods:

  1. A country member of the Assembly of States Parties (ratified the Court's Statute) sends the case;
  2. A country that has chosen to accept the ICC's jurisdiction sends the case;
  3. The Security Council sends the case (subject to veto from the permanent five members); or
  4. The three-judge panel authorizes a case initiated by the ICC Prosecutor.

Even though the Court has jurisdiction over the crime of international aggression, it will not exercise such jurisdiction until the crime has been further defined. The statute that established the ICC mandates that the state parties attempt to define aggression in 2009.

List of states party to the treaty

Image:ICCMitgliedsstaaten.png

As of August 2005, the following 99 countries have ratified or acceded to the ICC Statute: [3]

In addition to the above states, there are 41 other states which have signed but not ratified the treaty. Since signing a treaty has no legal effect without ratification, these states are not party to the treaty until and unless they ratify it.

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 Statue), 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.

Until the past two centuries, transportation and communication over great distances was difficult, and so governing over distances was also difficult. But now, corporations act internationally, governments act internationally in furtherance of their military and political goals, diseases spread internationally, terrorism occurs in complete disregard to national borders, and refugees spread across national borders from conflicts in such a way that no armed conflict can safely be ignored by the international community. The main institution that affects the lives of people and protects them, but does not do so internationally, is the law. If all the activities which are governed by laws occur on an international stage, the law must also act on an international stage.

While some may have qualms about present-day arrangements for the Court with certain member-states lacking credibility given their own level of political and legal development or due to other circumstantial factors, in cases involving egregious crimes of a local majority individual against a foreign (or minority) individual, the principle that those with some distance from a controversy at hand (in this case, representatives from foreign countries who would not be as likely to align themselves with one side or another) are often, in aggregate, more capable of being objective is well-recognized in legal and ethical systems around the world.

Just as neighbors are not expected to be reliable in adjudicating serious conflicts, especially where they are themselves concerned parties, assuming there is an adequately constituted police force at hand, so too is it seen that justice (or injustice) is not the exclusive property of one nation or its people.

U.S. objections

The United States, which signed but did not ratify the statute during the Clinton administration, withdrew its support soon after George W. Bush assumed the presidency. It signed the ICC Statute at the last minute, primarily so that it could continue to take part in negotiations on the rules of procedure for the new court, in an attempt to obtain an exemption for U.S. nationals taking part in UN-sponsored peacekeeping missions—as several other countries were able to do.

The U.S. has since stated that it does not intend to ratify the treaty, and so is not legally bound by it.

Many safe-guards were built into the ICC statute to prevent abuses of its power. For example, the ICC may only open a case through a Security Council referral, if a nation requests an investigation or if the Prosecutor and a three judge panel agree. Because the United States has a Security Council veto, it is able to prevent any S.C. referral of U.S. citizens to the ICC. The Prosecutor may not open a case against a country national unless that country is "unwilling or unable" to prosecute the individual themselves. Therefore, the ICC would only have jurisdiction to prosecute a U.S. citizen if the U.S. itself refused to do so or if there was a complete breakdown of the U.S. justice system. Finally, the ICC only has jurisdiction over the most serious types of crimes, like genocide and large scale rape and murder of civilians.

The U.S. fears that American soldiers and political leaders may be subject to "frivolous or politically motivated prosecutions." (a form of barratry) Supporters of this position have argued that many countries in the world have an anti-American agenda, and may enjoy constantly charging American politicians or military officials with trumped-up war crimes charges, simply to cause embarrassment and bad publicity for the United States. As stated above, however, only the Prosecutor and the Security Council may file charges. Therefore, the vast majority of nations have no power to bring a case against a United States citizen in the ICC. Such opponents of the ICC cite that in the past, when the U.S. failed to act quickly enough to prevent disaster (e.g. Rwanda), the U.S. is criticized for allowing genocide to occur; yet in cases where the U.S. has acted quickly (e.g. Yugoslavia, Somalia) they are still criticized- and even accused of war crimes. Supporters of the ICC point out that it has no jurisdiction to prosecute government individuals for failure to prevent crimes ocuring in other countries (such as Rwanda).

Many in the U.S. who believe that the U.S. has a history of supporting human rights also believe that the United States is more qualified to move against war criminals than many of the signatories of the ICC. They cite the following examples to support their case:

Supporters of the Court point out that it is illegal for a sovereign state to unilaterally intervene in the internal affairs of another state. It is for this reason that many nations consider the U.S. invasion of Iraq to be illegal. Therefore, it is not possible for the United States to legally capture the head of state of another country on its own initiative. The Nuremberg trials were actually conducted by an international court that was the forerunner of the ICC. The ICC was conceived during the Nuremberg trials as the natural extension of the principles of international justice. The United States itself was instrumental in early efforts to bring the ICC into being. Recent attempts by the United States government in opposition to the ICC run contrary to the official U.S. position during Nuremberg.

Furthermore, opponents contend that neither the ICC nor the United Nations has any real power to enforce the extradition of war criminals from signatory states. Therefore, any kind of military action to force compliance would have to be undertaken (in large part) by the U.S. Supporters of the Court point out that it is true that the ICC relies on member states to find and capture criminals inside their own borders(called extradition), no law allows a state to capture ICC suspects in foreign states. The United States would therefore only be responsible for war criminals inside its own borders. Thus, Enos Irigaba Kagaba, a participant in the Rwandan genocide, was arrested in Minneapolis in 2004 and later deported to Rwanda. However, many people wanted by the Special Court in Sierra Leonne for war crimes are living in surrounding African countries which refuse extradition.

Prosecution of a US national would not lead to the obligation of the US to cooperate or assist the court in any way and would therefore not create any 'obligation for a non-State party'. Supporters of the Court further argue that under international law states have the right to try foreign nationals for crimes committed on their territory anyway; and if a state has the right to exercise jurisdiction in this case, that state can request an international organization to exercise that jurisdiction on its behalf by means of the treaty establishing that organization - traditionally in international law, international organizations are considered to be instruments through which their member states act. Providing the ICC with jurisdiction over U.S. nationals in this case would not interfere with U.S. sovereignty, say ICC proponents. Some have, however, argued that their territorial jurisdiction is non-delegable [see Madeline Morris, High crimes and misconceptions: the ICC and non-party states, Law and Contemporary Problems, Winter 2001 vol. 64 no. 1 p. 13ff]. [4]

U.S. measures against the ICC

When it became clear in 2002 that the treaty creating the ICC would receive the requisite number of ratifications to enter into force, the United States began to undertake a number of measures to exempt U.S. nationals from the Court's jurisdiction.


American Servicemembers Protection Act

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; however, there were a number of exceptions to this, including NATO members, "major non-NATO allies" (such as Australia, Israel, the Republic of China (Taiwan) and a number of other countries), countries which entered into an agreement with the United States not to hand over U.S. nationals to the Court (see "Article 98" agreements below). ASPA also excluded any military aid that the U.S. President certified to be in the U.S. national interest.

In addition, ASPA contained provisions prohibiting U.S. co-operation with the Court, 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.

In addition, the Nethercutt Amendment to the Foreign Appropriations Bill suspends Economic Support Fund assistance to ICC States Parties who have not signed bilateral immunity agreements (BIAs) with the US. The funds affected support initiatives including peacekeeping, anti-terrorism measures, democracy-building and drug interdiction. The omnibus appropriations bill containing the controversial amendment was signed by President Bush on December 7, 2004.

United Nations Security Council Resolutions

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 the request to be valid to 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 Iraq it became clear that there was no majority for it, the U.S. withdrew its second proposed renewal of the resolution.

"Article 98" agreements

The U.S. has attempted to pressure other states into signing bilateral agreements with it by holding it as a condition of receiving military and economic aid. In 2003 the U.S. stopped military aid for 35 countries (among them nine European countries). U.S. law requires the cessation of such aid payments if a state is unwilling to sign the bilateral agreement (there are exceptions for NATO-members and allies such as Israel, Egypt, Australia and South Korea).

Article 98 of the Rome Statute provides that a country need not hand over a foreign national to the Court if it is prohibited from doing so by an agreement with that national's country. The U.S. has used this measure in an attempt to exempt its nationals from the Court's jurisdiction, by negotiating agreements with State Parties making use of Article 98.

Amnesty International and the European Commission Legal Service, along with several other groups supporting the ICC, have claimed that these agreements the U.S. is attempting to negotiate are not valid under Article 98. They argue that the language in Article 98 is normally used in international law to refer to Status of Forces Agreements (SOFA), mission agreements and extradition treaties; hence they claim that Article 98 can only be used for these purposes, and not to create a general exclusion of another states nationals from being handed over to the ICC.

Romania and Israel (even though the latter is not a party to the Statute) were the first to sign Article 98 agreements with the U.S. In response to Romania's action, the European Union requested that candidate countries not sign Article 98 agreements with the United States until the EU ministers had met to agree upon a common position. The U.S. State Department called this action inappropriate. ICC supporters countered that the United States was attempting to use issues of military aid and NATO membership to "bully" other countries into signing.

Finally, in October 2002, the Council of the European Union adopted a common position, permitting member states to enter into Article 98 agreements with the United States, but only concerning U.S. military personnel, U.S. diplomatic or consular officials, and persons extradited, sent to their territories by the United States with their permission; not the general protection of U.S. nationals that the U.S. sought; furthermore the common position provided that any person protected from ICC prosecution by such agreements would have to be prosecuted by the United States. This was in agreement with the original position of the EU, that Article 98 agreements were allowed to cover these restricted classes of persons but could not cover all the citizens of a state.

On December 26, 2002, India became the 15th country to sign a bilateral agreement with the U.S. under Article 98. The agreement aims to prevent the "extradition of nationals of either country to any international tribunal without the other country's express consent". By June 2005 around 100 states had signed a bilateral agreement with the U.S., including at least seven of them that signed the agreement secretly.

Critics of these US policies to contain the Court claim that the sole aim of the USA is to be above international law.

The United States has cut aid and development funding for many poor countries in retaliation for cooperating with the ICC. Countries who have lost aid include Brazil, Costa Rica, Peru, Venezuela, Ecuador, South Africa, and several other Latin American and African countries.

Israeli objections

Israel initially objected to the Rome Statute because of the clause defining "the war crime of the transfer of parts of the civilian population of an occupying power into occupied territory", which it feared implied that settlement activity in the occupied territories is a "war crime" and "grave offense". [5] Israel fears prosecution of Israeli settlers, or Israeli government officials who support the policy of settlements, as "war crimes". It did eventually sign the treaty establishing the court despite its misgivings, but on 28 August 2002 submitted a letter to the United Nations declaring that it did not intend to ratify the treaty, using the same wording as the US declaration of 6 May 2002.[6]

Chinese objections

The People's Republic of China has expressed opposition to even the other states involved going ahead with it, claiming that the Statute is an attempt to interfere with the domestic affairs of sovereign states. It has not signed the treaty.

Other objections to the Statute

Some have argued that the crimes the ICC has jurisdiction over are recognized under international law as crimes of universal jurisdiction, meaning that any state may try individuals who commit these crimes, even if they are committed by foreign nationals on foreign territory. From this perspective, the state parties could therefore have authorized the ICC to exercise this universal jurisdiction on their behalf. However, the concept of universal jurisdiction itself is controversial, not all the crimes for which the Rome Statute provides the court with jurisdiction have been proposed as being subject to universal jurisdiction at the present time under customary international law, and some have argued that even where universal jurisdiction exists it is non-delegable ibid .

In popular culture

  • The Interpreter is a 2005 film featuring a fictional African head of state seeking to avoid being sent to the ICC for crimes against humanity.

See also

External links

UN

Other

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