International Criminal Court
The International Criminal Court (ICC or ICCt)[2] is an intergovernmental organization and international tribunal seated in The Hague, Netherlands. It is the first and only permanent international court with jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes and the crime of aggression. The ICC is distinct from the International Court of Justice, an organ of the United Nations that hears disputes between states.
Not to be confused with the International Court of Justice (ICJ).
International Criminal Court
Cour pénale internationale
Cour pénale internationale
المحكمة الجنائية الدولية
国际刑事法院
Международный уголовный суд
Corte Penal Internacional
The Hague, Netherlands
124
17 July 1998
1 July 2002
Established in 2002 pursuant to the multilateral Rome Statute, the ICC is considered by its proponents to be a major step toward justice,[3] and an innovation in international law and human rights.[4] However, it has faced a number of criticisms. Some governments have refused to recognise the court's assertion of jurisdiction, with other civil groups also accusing the court of bias, Eurocentrism and racism.[5] Others have also questioned the effectiveness of the court as a means of upholding international law.
Individual criminal responsibility
The Court has jurisdiction over natural persons.[74]: article 25(1) A person who commits a crime within the jurisdiction of the Court is individually responsible and liable for punishment in accordance with the Rome Statute.[74]: article 25(2) In accordance with the Rome Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;[74]: article 25(3)(a) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;[74]: article 25(3)(b) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;[74]: article 25(3)(c) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose.[74]: article 25(3)(d) In respect of the crime of genocide, directly and publicly incites others to commit genocide;[74]: article 25(3)(e) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions[74]: article 25(3)(f)
Procedure
Trial
Trials are conducted under a hybrid common law and civil law judicial system, but it has been argued the procedural orientation and character of the court is still evolving.[115][116] A majority of the three judges present, as triers of fact in a bench trial, may reach a decision, which must include a full and reasoned statement.[117] Trials are supposed to be public, but proceedings are often closed, and such exceptions to a public trial have not been enumerated in detail.[118] In camera proceedings are allowed for protection of witnesses or defendants as well as for confidential or sensitive evidence.[119] Hearsay and other indirect evidence is not generally prohibited, but it has been argued the court is guided by hearsay exceptions which are prominent in common law systems.[120] There is no subpoena or other means to compel witnesses to come before the court, although the court has some power to compel testimony of those who chose to come before it, such as fines.[121]
Rights of the accused
The Rome Statute provides that all persons are presumed innocent until proven guilty beyond reasonable doubt,[74]: article 66 and establishes certain rights of the accused and persons during investigations.[122][123] These include the right to be fully informed of the charges against them; the right to have a lawyer appointed, free of charge; the right to a speedy trial; and the right to examine the witnesses against them.
To ensure "equality of arms" between defence and prosecution teams, the ICC has established an independent Office of Public Counsel for the Defence (OPCD) to provide logistical support, advice and information to defendants and their counsel.[124][125] The OPCD also helps to safeguard the rights of the accused during the initial stages of an investigation.[126] Thomas Lubanga's defence team said they were given a smaller budget than the Prosecutor and that evidence and witness statements were slow to arrive.[127]
Victim participation
One of the great innovations of the Statute of the International Criminal Court and its Rules of Procedure and Evidence is the series of rights granted to victims.[128][129] For the first time in the history of international criminal justice, victims have the possibility under the Statute to present their views and observations before the Court.
Participation before the Court may occur at various stages of proceedings and may take different forms, although it will be up to the judges to give directions as to the timing and manner of participation.
Participation in the Court's proceedings will in most cases take place through a legal representative and will be conducted "in a manner which is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial".
The victim-based provisions within the Rome Statute provide victims with the opportunity to have their voices heard and to obtain, where appropriate, some form of reparation for their suffering. It is the aim of this attempted balance between retributive and restorative justice that, it is hoped, will enable the ICC to not only bring criminals to justice but also help the victims themselves obtain some form of justice. Justice for victims before the ICC comprises both procedural and substantive justice, by allowing them to participate and present their views and interests, so that they can help to shape truth, justice and reparations outcomes of the Court.[130]
Article 43(6) establishes a Victims and Witnesses Unit to provide "protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses."[74]: article 43(6) Article 68 sets out procedures for the "Protection of the victims and witnesses and their participation in the proceedings."[74]: article 68 The Court has also established an Office of Public Counsel for Victims, to provide support and assistance to victims and their legal representatives.[131]
Reparations
Victims before the International Criminal Court can also claim reparations under Article 75 of the Rome Statute. Reparations can only be claimed when a defendant is convicted and at the discretion of the Court's judges.[132] So far the Court has ordered reparations against Thomas Lubanga.[133] Reparations can include compensation, restitution and rehabilitation, but other forms of reparations may be appropriate for individual, collective or community victims. Article 79 of the Rome Statute establishes a Trust Fund to provide assistance before a reparation order to victims in a situation or to support reparations to victims and their families if the convicted person has no money.[134]
Cooperation by states not party to Rome Statute
One of the principles of international law is that a treaty does not create either obligations or rights for third states without their consent, and this is also enshrined in the 1969 Vienna Convention on the Law of Treaties.[135] The cooperation of the non-party states with the ICC is envisioned by the Rome Statute of the International Criminal Court to be of voluntary nature.[74]: article 87 (5)(a) States not acceded to the Rome Statute might still be subject to an obligation to cooperate with ICC in certain cases.[136] When a case is referred to the ICC by the UN Security Council all UN member states are obliged to cooperate, since its decisions are binding for all of them.[137] Also, there is an obligation to respect and ensure respect for international humanitarian law, which stems from the Geneva Conventions and Additional Protocol I,[138] which reflects the absolute nature of international humanitarian law.[139]
In relation to cooperation in investigation and evidence gathering, it is implied from the Rome Statute[74]: article 99 that the consent of a non-party state is a prerequisite for ICC Prosecutor to conduct an investigation within its territory, and it seems that it is even more necessary for him to observe any reasonable conditions raised by that state, since such restrictions exist for states party to the Statute.[136] Taking into account the experience of the International Criminal Tribunal for the former Yugoslavia (which worked with the principle of the primacy, instead of complementarity) in relation to cooperation, some scholars have expressed their pessimism as to the possibility of ICC to obtain cooperation of non-party states.[136] As for the actions that ICC can take toward non-party states that do not cooperate, the Rome Statute stipulates that the Court may inform the Assembly of States Parties or Security Council, when the matter was referred by it, when non-party state refuses to cooperate after it has entered into an ad hoc arrangement or an agreement with the Court.[74]: article 87(5)
Amnesty and national reconciliation processes
It is unclear to what extent the ICC is compatible with reconciliation processes that grant amnesty to human rights abusers as part of agreements to end conflict.[140] Article 16 of the Rome Statute allows the Security Council to prevent the Court from investigating or prosecuting a case,[74]: article 16 and Article 53 allows the Prosecutor the discretion not to initiate an investigation if he or she believes that "an investigation would not serve the interests of justice".[74]: article 53 Former ICC president Philippe Kirsch has said that "some limited amnesties may be compatible" with a country's obligations genuinely to investigate or prosecute under the Statute.[140]
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.[141][142] 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".[143] The United Nations[144] and the International Committee of the Red Cross[145] maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law.
International Criminal Court
Completed
Office
The Hague, Netherlands
Autumn 2012
December 2015
52,000 m2 (560,000 sq ft)
Combination Visser & Smit Bouw and Boele & van Eesteren ('Courtys')
Criticism and opposition
African states
In October 2016, after repeated claims that the court was biased against African states, Burundi, South Africa and the Gambia announced their withdrawals from the Rome Statute.[306] Following Gambia's presidential election later that year, which ended the long rule of Yahya Jammeh, Gambia rescinded its withdrawal notification.[307] A decision by the High Court of South Africa in early 2017 ruled that the attempted withdrawal was unconstitutional, as it had not been agreed by Parliament, prompting the South African government to inform the UN that it was revoking its decision to withdraw.[308][309]