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The International Criminal Court, which came into existence on 1 July 2002, is a permanent tribunal created to prosecute individual defendants implicated in genocide, crimes against humanity, war crimes, and, in the future, the crime of aggression. The court is located at The Hague in the Netherlands, but it can sit and hear cases almost anywhere in the world.
The International Criminal Court (ICC) is the first global permanent court with jurisdiction to prosecute people for crimes of greatest concern to the international community: genocide; crimes against humanity; war crimes; and, after a definition is agreed upon, aggression. The ICC originated on 17 July 1998, when 120 countries met at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Located at The Hague in the Netherlands, the ICC formally came into existence on 1 July 2002.
The creation of the ICC is the culmination of a decades-long effort to establish an international court with jurisdiction to try people for crimes against humanity. The legal definition of such crimes after World War II was part of the construction of new international legal structures, such as the United Nations, to preserve international peace and security and prevent upheavals capable of unleashing the horrors of modern warfare.
The tribunals designed to prosecute Nazi and Japanese war criminals established the precedent for the ICC. In singling out national agents for international responsibility, the organizers of the tribunals hoped that international criminal law would provide an incentive for high-ranking government officials to refrain from devising and executing policies promoting atrocities or aggressive war. Additionally, the prosecution of war criminals provided incentive for low-ranking nationals to refuse to obey orders to carry out such policies. The tribunals were expected to contribute to preventing violent conflict between—and atrocities by—nations.
After the Nuremberg and Tokyo tribunals had completed their task, however, initial moves to establish a permanent international jurisdiction to succeed them faltered because of growing hostility between the Soviet Union and the United States. In the atmosphere of suspicion and obstructionism brought on by the Cold War, enforcement was left to national systems. Conflicts continued, and atrocities occurred, often with the acquiescence or direct involvement of one of the superpowers. Not until the 1990s did the international community again prosecute crimes against humanity with the 1993 creation of the International Criminal Tribunal for Yugoslavia (ICTY), and the 1994 creation of the International Criminal Tribunal for Rwanda (ICTR). However, like the Nuremberg and Tokyo tribunals, the ICTY and ICTR were created ad hoc (for the particular end or case at hand) with limited jurisdiction.
State Sovereignty
The ICC is designed to transcend politics because trials theoretically will be international, impartial, and nonselective. State sovereignty is protected because the jurisdiction of the ICC is restricted to a relatively small number of cases whose criminality is generally believed to be beyond dispute. Terrorism and drugsmuggling cases, involving matters subject to widely different interpretations, remain under national jurisdiction. Yet, a number of nations, especially the United States, doubted that the ICC as created would be truly nonpolitical. Seven nations (the United States, China, Libya, Iraq, Israel, Qatar, and Yemen) voted against the establishment of the ICC, chiefly because of concerns over state sovereignty.
The most contentious question involving the ICC revolves around the level of independence that it possesses in regard to national courts and the United Nations Security Council. The ICC exercises jurisdiction only when national courts of the country in which the crime took place or whose citizens are accused are unable or unwilling to prosecute. The United States seeks an ICC that would be controlled by the Security Council under the reasoning that, as the sole remaining superpower, it was expected to intervene to maintain or restore international peace and security and to halt humanitarian catastrophes all over the world. U.S. fulfillment of that expectation would leave U.S. personnel vulnerable to the potential jurisdiction of the ICC. The United States fears that an independent prosecutor, motivated by anti-Americanism, might single out U.S. military personnel for persecution and that they would be denied the protections guaranteed by the U.S. Constitution.
Structure
Many legal authorities have challenged such fears, citing in particular the structure of the ICC. The court is composed of the presidency, the chambers, the office of the prosecutor, and the registry. The ICC does not provide for trial by jury; instead, it follows the civil law tradition of employing a panel of judges to decide questions of fact and law. Eighteen judges, serving staggered nine-year terms, are permanent members of the court and are elected by secret ballot at a meeting of the Assembly of the States Parties.
The judges elect the presidency and constitute the chambers. On 11 March 2003, the judges elected Judge Philippe Kirsch (Canada) as president, Judge Akua Kuenyehia (Ghana) as first vice president, and Judge Elizabeth Odio Benito (Costa Rica) as second vice president. On 22 April 2003, the nations participating in ICC chose Luis Moreno-Ocampo of Argentina for a nine-year term as the first chief prosecutor. In his capacity as an Argentine attorney, Moreno- Ocampo has prosecuted Nazi war criminals, Chilean secret police officials, and Argentine leaders of the “Dirty War.” As of 2010 the president of the court is Sang-Hyun Song of South Korea, who was elected on 11 March 2009.
The last element of the ICC, the registry, is responsible for the nonjudicial aspects of the administration and servicing of the court, such as finance, translation, building management, procurement, personnel, as well as services, which are unique to an international court. The latter include administration of legal aid matters, defense counsel, court management, and a detention unit. In addition, in a revolutionary development, a victims and witnesses unit is set up within the registry. This unit enables victims to participate in legal procedures and claim compensation for the first time in the history of international criminal justice. Victims may include rape victims in need of trauma counseling, villagers in need of money to rebuild homes and businesses lost in fighting and, child soldiers who were forced into military service and who may have suffered great ordeals. During its brief existence, the court has received thousands of reports of violations sent by people and nongovernmental organizations from numerous countries around the world, most of which are outside the jurisdiction of the ICC. As of December 2009, three States Parties—Uganda, the Democratic Republic of the Congo (DROC), and the Central African Republic—have referred complaints to the court, while the U.N. Security Council has also referred the situation in Darfur, Sudan, a non-State Party. In respect to Uganda, five arrest warrants have been issued against leading members of the Lord’s Resistance Army. Three cases are being heard as result of investigations in DROC: The Prosecutor v. Thomas Lubanga Dyilo; The Prosecutor v. Bosco Ntaganda; and The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui. The Central African Republic case, The Prosecutor v. Jean-Pierre Bemba Gombo, a former vice-president of DROC is at the pre-trial stage. In regard to Darfur, Sudan, three cases are pre-trial: The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”); The Prosecutor v. Omar Hassan Ahmad Al Bashir; and The Prosecutor v. Bahr Idriss Abu Garda. Only Bahr Idriss Abu Garda has appeared voluntarily before the Court, the others, including Sudanese president Omar Al Bashir, remain at large.
As of late 2009, 110 counties had joined the ICC and a further 38 have signed but not yet ratified the Treaty of Rome. Those that have not signed include some the world’s great powers home to the majority of our world’s population, including China, India, Russia, and the United States.
Bibliography:
- Broomhall, B. (2003). International justice and the International Criminal Court: Between sovereignty and the rule of law. New York: Oxford University Press.
- Cassese, A.; Gaeta, P.; & Jones, J. R. W. D. (Eds.). (2002). The Rome Statute of the International Criminal Court: A commentary. Oxford, U.K.: Oxford University Press.
- Elsea, J. (2003). International Criminal Court: Overview and selected legal issues. New York: Novinka Books.
- McGoldrick, D.; Rowe, P.; & Donnelly, E. (Eds.). (2004). The permanent International Criminal Court: Legal and policy issues. Portland, OR: Hart Publishing.
- Roach S. C. (Ed.). (2009). Governance, order, and the International Criminal Court: Between realpolitik and a cosmopolitan court. Oxford, U.K.: Oxford University Press.
- Schabas, W. A. (2004). An Introduction to the International Criminal Court (2nd ed.). Cambridge, U.K.: Cambridge University Press.
- B. N. (2008). Building the International Criminal Court. Cambridge, U.K.: Cambridge University Press.
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