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Establishing the International Criminal Court

Written by: Amitabh Sengupta - I am pursuing my L.L.B(H) from GGS Indraprastha University, New Delhi and presently in the 9th semester (5th year). My interests include Constitutional law, Intellectual Property Law, Criminal Law and International law
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Criminal law did not have a place anywhere in the sphere of International law when the latter was at its primary stage. This is because it initially accentuated on regulating the relations between countries. Criminal law found its place at a later stage when the international community was enlarged so as to also include individuals.

The first traces can be found where there were attempts by the allied powers after World War I to provide for the prosecution of war crimes committed by the axis powers. In 1919, a commission was established by the victorious powers which recommended the prosecution of enemy nationals and leaders, guilty of offences against "the laws and customs of war or the laws of humanity." Both the Treaty of Sèvres (between the allied powers and Turkey) and the Treaty of Versailles (the allied powers and Germany) provided for the prosecution of central power war criminals (i.e. Turkish and German), including Kaiser Wilhelm II, before international tribunals.

Though the idea of prosecutions by an international tribunal was coined, but no such prosecutions actually ever occurred.

After the World War II, appalled by the atrocities committed by the Nazis and Japanese, the allies created the International Military Tribunal (IMT) for the prosecution of major war criminals of the European axis and a tribunal for the prosecution of high-ranking Japanese accused of war crimes. The Nuremberg and Tokyo tribunals thus played an important role in breaking down the traditional conception of international law. For the first time, individuals were tried by International courts and the concept of ‘individual criminal responsibility’ gained hold. Though the Hague conventions and the early Geneva conventions outlawed certain conduct during war, they did not specifically criminalize such conduct or provide for criminal prosecutions and punishment.

The establishment of an International Criminal Court was first proposed in 1949 by the International Law Commission. Two draft statutes were drafted by the early 1950s but these were shelved because of the Cold War. Several treaties or laws expressly providing for the prosecution of persons guilty of committing ‘international’ crimes, including war crimes, were adopted in subsequent decades like the Genocide Convention, Apartheid Convention etc. The idea was revived in 1989 by A. N. R. Robinson, then Prime Minister of Trinidad and Tobago. The Security Council, in accordance with Chapter VII of the United Nations Charter established the ad hoc tribunals to try war crimes in the former Yugoslavia (ICTR) and Rwanda (ICTY) as a peace enforcement mechanism, further highlighting the need for a permanent international criminal court. ICTR was set up in 1994 after the genocide in Rwanda. It is the first international body charged specifically with prosecuting crimes of genocide. The Tribunal's jurisdiction extends to serious violations of international humanitarian law committed in Rwanda, and to Rwandan citizens responsible for such violations committed in neighbouring States. The Tribunal is based in Arusha, the United Republic of Tanzania. ICTY was established in 1993, after the widespread international media coverage of the atrocities committed in the war in the former Yugoslavia. Its jurisdiction extended to the acts committed in the territories of former Yugoslavia since 1991.

The tribunal is located in Hague, Netherlands. They have jurisdiction over all serious violations of international humanitarian law, including genocide, crimes against humanity and war crimes. But again, their jurisdiction is very confined. Finally, The International Criminal Court (ICC) was established in 1998 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression as per Article 5 of the Rome Statute. The Court came into being on July 1, 2002, the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force. It can only prosecute crimes committed on or after that date. As per Articles 12 & 13, the Court can exercise jurisdiction only under the following limited circumstances:
1) 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);

2) 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

3) where a situation is referred to the Court by the UN Security Council.

The Court is intended as a court of last resort, investigating and prosecuting only where national courts have failed. The Court is governed by an Assembly of States Parties. The Court consists of four organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry. The ICC is legally and functionally independent from the United Nations. But, the Rome Statute recognizes the clear role of the United Nations in relation to the Court. The Security Council may refer to the Court situations that would not otherwise fall under the Court's jurisdiction. Article 16 of the Rome Statute also allows the Security Council to require the Court to defer from investigating a case for a period of 12 months. Such a deferral may be renewed indefinitely by the Security Council. The Court cooperates with the UN in many different areas, including the exchange of information and logistical support. The Court reports to the UN each year on its activities, and some meetings of the Assembly of States Parties are held at UN facilities. The relationship between the Court and the UN is governed by a “Relationship Agreement between the International Criminal Court and the United Nations”.

The ICC currently has twelve detention cells in a Dutch prison in Scheveningen, The Hague. Suspects held by the International Criminal Tribunal for the former Yugoslavia are held in the same prison and share some facilities, like the fitness room, but have no contact with suspects held by the ICC. The detention unit is close to the ICC's future headquarters in Alexanderkazerne.

As of March 2008, 105 states are members of the Court; Madagascar became the 106th state party on 1 June 2008. A further 40 countries have signed but not ratified the Rome Statute. However, a number of states, including China, India and the United States, are critical of the Court and have not joined. The Court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council.

The Court is designed to complement existing national judicial systems. It can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore reserved to individual states. Till now, the Court has opened investigations into four situations: Northern Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur. The Court has issued public arrest warrants for ten people; five of them remain free, two have died, and three are in custody, awaiting trial. The official seat of the Court is in The Hague, Netherlands, but its proceedings may take place anywhere. The ICC is sometimes referred to as a "world court"

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