Lecture 21 international criminal court For the prosecution on international criminals The International Criminal Court (ICC) is an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes.  The ICC is based on a treaty, joined by 106 countries. The ICC is a court of last resort.  It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine, for example if formal proceedings were undertaken solely to shield a person from criminal responsibility.  In addition, the ICC only tries those accused of the gravest crimes. 

21.2 The International Criminal Court was established by the Rome Statute of the International Criminal Court, so called because it was adopted in Rome, Italy on 17 July 1998.   The Rome Statute is an international treaty, binding only on those States which formally express their consent to be bound by its provisions.  These States then become “Parties” to the Statute.  In accordance with its terms, the Statute entered into force on 1 July 2002, once 60 States had become Parties.  AS OF 2008 106 have become Parties to the Statute.  The States Parties meet in the Assembly of States Parties which is the management oversight and legislative body of the Court.

12.3 History: In 1948, following the Nuremberg and Tokyo Tribunals, the United Nations General Assembly recognised the need for a permanent international court to deal with atrocities of the kind committed during World War II. At the request of the General Assembly, the International Law Commission drafted two draft statutes by the early 1950s but these were shelved as the Cold War made the establishment of an international criminal court politically unrealistic. The idea was revived in 1989 when A. N. R. Robinson, then Prime Minister of Trinidad and Tobago, proposed the creation of a permanent international court to deal with the illegal drug trade. While work began on a draft statute, the international community established ad hoc tribunals to try war crimes in the former Yugoslavia and Rwanda, further highlighting the need for a permanent international criminal court.[22]

21.4 Crimes: Article 5 of the Rome Statute grants the Court jurisdiction over four groups of crimes, which it refers to as the “most serious crimes of concern to the international community as a whole”: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The statute defines each of these crimes except for aggression: it provides that the Court will not exercise its jurisdiction over the crime of aggression until such time as the states parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.

21.5 Many states wanted to add terrorism and drug trafficking to the list of crimes covered by the Rome Statute; however, the states were unable to agree on a definition for terrorism and it was decided not to include drug trafficking as this might overwhelm the Court's limited resources. India lobbied to have the use of nuclear weapons and other weapons of mass destruction included as war crimes but this move was also defeated. India has expressed concern that “the Statute of the ICC lays down, by clear implication, that the use of weapons of mass destruction is not a war crime. This is an extraordinary message to send to the international community.”

21.6 Some commentators have argued that the Rome Statute defines crimes too broadly or too vaguely. For example, China has argued that the definition of ‘war crimes’ goes beyond that accepted under customary international law.

2.7 the Court exercise jurisdiction only under the following limited circumstances: where the person accused of committing a crime is a national of a state party (or where the person's state has accepted the jurisdiction of the Court); where the alleged crime was committed on the territory of a state party (or where the state on whose territory the crime was committed has accepted the jurisdiction of the Court); or where a situation is referred to the Court by the UN Security Council.

21.8 Temporal jurisdiction The Court's jurisdiction does not apply retroactively: it can only prosecute crimes committed on or after 1 June 2002 (the date on which the Rome Statute entered into force). Where a state becomes party to the Rome Statute after that date, the Court can exercise jurisdiction automatically with respect to crimes committed after the statute enters into force for that state.[

21.9 Office of the Prosecutor The Office of the Prosecutor is responsible for conducting investigations and prosecutions.It is headed by the Prosecutor, who is assisted by two Deputy Prosecutors. The Rome Statute provides that the Office of the Prosecutor shall act independently; as such, no member of the Office may seek or act on instructions from any external source, such as states, international organisations, non-governmental organisations or individuals.

21.10 The Prosecutor may open an investigation under three circumstances: when a situation is referred to him by a state party; when a situation is referred to him by the UNSC, acting to address a threat to international peace and security; or when the Pre-Trial Chamber authorises him to open an investigation on the basis of information received from other sources, such as individuals or non-governmental organisations

21.11 It is sometimes argued that amnesties are necessary to allow the peaceful transfer of power from abusive regimes. By denying states the right to offer amnesty to human rights abusers, the International Criminal Court may make it more difficult to negotiate an end to conflict and a transition to democracy. For example, the outstanding arrest warrants for four leaders of the Lord's Resistance Army are regarded by some as an obstacle to ending the insurgency in Uganda. Czech politician Marek Benda argues that “the ICC as a deterrent will in our view only mean the worst dictators will try to retain power at all costs”. However, the United Nations and the International Committee of the Red Cross maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law.

21.12 The Court has received complaints about alleged crimes in at least 139 countries[92] but, as of July 2008, the Prosecutor has opened investigations into just four situations: Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur.[13]

21.13 As of 4 October 2007, the Prosecutor had received 2889 communications about alleged crimes in at least 139 countries. After initial review, however, the vast majority of these communications were dismissed as “manifestly outside the jurisdiction of the Court”.

21.14 On 10 February 2006, the Prosecutor published a letter responding to complaints he had received concerning the 2003 invasion of Iraq. He noted that "the International Criminal Court has a mandate to examine the conduct during the conflict, but not whether the decision to engage in armed conflict was legal", and that the Court's jurisdiction is limited to the actions of nationals of states parties. He concluded that there was a reasonable basis to believe that a limited number of war crimes had been committed in Iraq, but that the crimes allegedly committed by nationals of states parties did not appear to meet the required gravity threshold for an ICC investigation.