What Is The Role Of International Criminal Court | Global Scale

Introduction

On July 17, 1998, a group of international states adopted a treaty called The Rome Statute in a convention in Rome, Italy.

The Philippines was one of the Contracting State Parties of that statute, prior to its withdrawal of membership. The country has made headlines considering that its head of state has been charged, along with other prominent government personalities before the ICC for crimes against humanity.

This was the offshoot of some of those earlier war tribunals which tried heinous crimes committed during World War 2, like the Nuremberg trials which tried and prosecute NAZI war criminals and others.

The international community led by the United Nations recognized the need for establish a permanent tribunal to try heinous committed even after World War 2.

This Rome Statute was the foundation for the creation of the International Criminal Court (ICC), the world’s first permanent court to try heinous and horrific crimes because some of these heinous crimes were still committed by some states and leaders even after the war.

The structure and jurisdiction of the ICC was provided by the Rome Statute. ICC sometimes called a supranational court.

Nonetheless, it only has jurisdiction on four core crimes:

a.) Genocide

b.) Crimes against humanity

c.) War crimes

d.) Crime of Aggression

Surprisingly, ICC has no jurisdiction over states, even if they have state-sponsored such crimes, which are not contracting state party or not a signatory to the Rome Statute.

It will only try and hear and prosecute individuals who have committed any of the four core crimes as provided in the statute provided that:

• such individual is a member of a state party, or
• that individual committed a crime in the territory of the state party, or
• the UN Security Council referred the crime to the ICC prosecutor.

Why? The subject Criminals were not ordinary individuals, they were mostly leaders of their own countries. Some wrongful acts were even consented to by their own supporters, especially when it comes to ethnic cleansing like genocide.

This is premised on the fact that their own justice system and their own courts have refused to try these criminals, precisely because they were part of the crime itself, thereby, supporting the acts of their criminal leader.

This is where the International Criminal Court will come in. The latter will serve as the final institution that will lend its wielding justice against the aggressors and in favor of those who are aggrieved by the leaders of their state in relation to the latter’s commission of the core crimes, of which the ICC has jurisdiction.

A good case example was the case of Slobodan Milosevic of Serbia. He wanted to create a greater Serbia. Thus, he ordered the killings of opposition Bosnian and Croatian population, bombed and massacred them. Even the dogs and cats died and were not spared. Yet, the Serbian government protected him, worse, hailed him as a hero, defended him against the ICC for war crimes. Fortunately, the ICC ordered his capture, hence, prosecuted and convicted him.

What is role of the International Criminal Court in Global Governance | Purpose of International Criminal Court

International Criminal Court, as the world’s first permanent court was created by the Rome Statute primarily to investigate and prosecute individuals who committed the following crimes:

a.) Genocide,

b.) Crimes against humanity,

c.) War crimes,

d.) Crime of Aggression.

These are the only crimes that the ICC has jurisdiction of. It must also be remembered that its authority to hear and decide cases only applies to individual criminals and not against the state itself.

Although the subjects are individuals or natural persons, such jurisdiction still meets the requirement that the crime is committed by a state party national or committed within the territory of the state party or a crime referred to by the Security Council.

What the ICC aims to correct is the effective and deliberate refusal of a state party to hold accountable and prosecute the erring government official who has been sponsoring the above criminal acts, whether alone or in cahoots with others, who may also be high ranking officials of the state party.

It is also the goal of the ICC to assist or complement the national courts of included states to ensure that the perpetrators of those crimes mentioned above are prosecuted and made answerable thereof, and that such offenses will never be repeated, much less tolerated.

What is the difference between the International Criminal Justice [ICJ] and International Criminal Court [ICC]?

The International Criminal Court (ICC) has been created by a treaty and not by the United Nations. The ICC, however, cooperates with UN but remains independent therefrom.

The ICC’s Judgment has a binding force and are without appeal for the parties concerned. It tries individuals or cases involving the most serious crimes of concern to the international community. These are, as mentioned, crimes relating to Genocide, War Crimes, Crime Against humanity, and Crimes of Aggression.

On the other hand, the International Court of Justice (ICJ) has been established by the United Nations. All members of the UN are ipso facto party to the ICJ statute.

Its founding documents and statutes are Integral parts of charter of the United Nations. ICJ is also known as World’s Court.

When one state has considered that another violated a treaty or another rule of international law or when the UN or one of its agencies needs an opinion on a legal issue, they may refer to the International Court of Justice.

The subject matters of ICJ will include issues concerning sovereignty, boundary disputes, maritime disputes, trade, natural resources, human rights, treaty violation and more relative to the parity of States.

In ICJ, only UN members can appeal but in ICC individual case could also be heard. The jurisdiction of ICC is more on the individuals and not on the state itself as compared to ICJ.

ICJ’s jurisdiction is mainly civil nature. Consequently, it was difficult for the ICJ to handle international criminal case in an integrated manner. Therefore, a body like ICC was quite necessary to deal with such problems.

What cases does the International Criminal Court [ICC] hear?

According to the Rome Statute, which the founding treaty of the International Criminal Court (ICC), the ICC hear cases involving the most serious crimes of concern to the international community.

At the risk of being repetitive, it may still wise to point out that such crimes of concerns relate to Genocide, War Crimes, Crime Against humanity and Crimes of Aggression.

Specifically, ICC can exercise jurisdiction with respect to certain crimes mentioned in Article 5 of the said Rome Statute:

“Article 5 – Crimes within the jurisdiction of the Court The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

• The crime of genocide;
• Crimes against humanity;
• War crimes;
• The crime of aggression ”

To exercise the jurisdiction of ICC, referrals or Investigation can be initiated in three different ways. It can be referred by a State Party to the Rome Statute:

• by the United Nations Security Council or
• by the initiative of the Office of the Prosecutor itself.

The ICC’s involvement should be reserved only for the most serious crimes. Thus, it is important to evaluate the level of gravity of the crime before the ICC can step into. The ICC, therefore, respects the domestic approach of any member state.

Primarily, it is the responsibility of national courts and tribunals to prosecute crimes. Nevertheless, if not willing, the ICC is, then, the last resort and a last hope for victims of the most serious crimes to take actions against these notorious criminals, thereby, serving the ends of justice.

Who can the International Criminal Court [ICC] investigate? 

According to an article published by the Human Rights Watch, the International Criminal Court is an independent judicial institution empowered to investigate and prosecute war crimes, crimes against humanity, genocide, and the crime of aggression.

Currently, 123 countries are ICC members, giving the ICC authority, under its founding treaty, the Rome Statute, to investigate and prosecute crimes committed by their nationals or by anyone on their territory.

As a matter of policy, the ICC prosecutor gives priority to cases against individuals whom he determines are the most responsible for the crimes under the court’s jurisdiction, regardless of their official position.

In connection with this, the Court has jurisdiction over any individual accused of a crime within the jurisdiction of the ICC, except for any person who was under the age of eighteen at the time of the alleged commission of the crime (Statute, Art. 26, Rome Statute).

Hence, it includes all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative, or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. (Article 27, Rome Statute)

When a citizen of a non-member country commits a crime on the territory of an ICC member country, such citizen may be punished by the ICC. However, said citizen must have committed war crimes, crimes against humanity, and genocide on the territory of an ICC member country.

Who can bring a case to the International Criminal Court [ICC]?

The Coalition for the International Criminal Court provides that cases at the ICC can be initiated one of three ways, such as by a state who is party to the Rome Statute (by nationality or territoriality), by a referral from the UN Security Council, or by the ICC Prosecutor choosing to investigate a certain case.

A State who is party to the Rome Statute may bring a case before the ICC.

A referral from the UN Security Council is also another way to bring a case to the Court.

Article 15 provides that the Court may exercise jurisdiction over the crime of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.

The referral or the determination of the Security Council is necessary before the Prosecutor concludes that there is a reasonable basis to proceed with the investigation.

Lastly, a State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed, hence, requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.

After which, the Prosecutor may initiate investigations motu propio on the basis of information on crimes within the jurisdiction of the Court.

Has the International Criminal Court Convicted Anyone? 

The International Criminal Court (ICC) had 4 convictions: Thomas Lubanga Dyilo, Germain Katanga, Jean-Pierre Bemba Gombo, and Ahmad al-Faqi al-Mahdi.¹

Presently, the International Criminal Court has the following statistical data:

1. 124 States Parties have ratified or acceded to the Rome Statute;
2. 31 States have signed the Rome Statute, but have not yet ratified;
3. 32 States have ratified the Kampala Amendments;
4. There are 23 cases in 10 situations;
5. There are 42 indictees, 33 arrest warrants, and 9 people summoned; and
6. The ICC consists of 18 judges and has a 2016 budget of 153.32 million²

As we now know, the International Criminal Court is handling cases related to the four core crimes committed by citizens of State Parties, however the criticism against the ICC are the following:

1. Lack of executive/enforcement power;
2. Low Conviction Rates;
3. Exclusive Focus on African Countries; and
4. Lack of Resources³

Perhaps the most significant criticism is the ICCs exclusive focus on African countries, which may be a result of its lack of power to enforce its own decisions.

This criticism, however, does not address the fact that the four core crimes are being committed within the African continent. This logistical focus, however, should not be just shrugged off by its member States, as it imposes a valid impartiality issue.

What are the Crimes against Humanity? 

Article 7 of the Rome Statute defined crimes against humanity as:

“. . . any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: 

• Murder;
• Extermination;
• Enslavement;
• Deportation or forcible transfer of population;
• Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
• Torture;
• Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
• Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
• Enforced disappearance of persons;
• The crime of apartheid;
• Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical

It is the Rome Statute which provided the most recent and most expansive list of crimes against humanity.⁴ Crimes against humanity can be attributed to State agents, non-State agents or armed groups, and/or paramilitary forces. It can also be committed during peacetime.⁵

1. ICC in Numbers[↩]
2. Ibid.[↩]
3. F. Wong, Criticisms and Shortcomings of the ICC[↩]
4. Crimes Against Humanity[↩]
5. Ibid.[↩]