Thursday, August 14, 2008

International Criminal Court

The International Criminal Court (ICC or ICCt) was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression, although it cannot currently exercise jurisdiction over the crime of aggression. The Court came into being on 1 July 2002 — the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force — and it can only prosecute crimes committed on or after that date.
As of July 2008, 106 states are members of the Court;Suriname and Cook Islands will become states parties on 1 October 2008, bringing the total to 108. 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.[citation needed]
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 left to individual states.
To date, 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 twelve people; six of them remain free, two have died, and four are in custody. The Court's first trial, of Congolese militia leader Thomas Lubanga, was due to begin on 23 June 2008 but it was halted on 13 June when judges ruled that the Prosecutor's refusal to disclose potentially exculpatory material had breached Lubanga's right to a fair 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"; it should not be confused with the International Court of Justice, also known as the World Court, which is the United Nations organisation that settles disputes between nations.
Territorial jurisdiction
During the negotiations that led to the Rome Statute, a large number of states argued that the Court should be allowed to exercise universal jurisdiction. However, this proposal was defeated due in large part to opposition from the United States. A compromise was reached, allowing the Court to 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
Temporal jurisdiction
The Court's jurisdiction does not apply retroactively: it can only prosecute crimes committed on or after 1 July 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
The ICC's temporary headquarters in The Hague

The Court is intended as a court of last resort, investigating and prosecuting only where national courts have failed. Article 17 of the Statute provides that a case is inadmissible if:
"(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court."Article 20, paragraph 3, specifies that, if a person has already been tried by another court, the ICC cannot try them again for the same conduct unless the proceedings in the other court:
"(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognised by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice."
The Court is governed by an Assembly of States Parties.[38] The Court consists of four organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.[39]

Assembly of States Parties
The Court's management oversight and legislative body, the Assembly of States Parties, consists of one representative from each state party.[40] Each state party has one vote and every effort has to be made to reach decisions by consensus.[40] If consensus cannot be reached, decisions are made by vote.[40]
The Assembly meets in full session once a year in New York or The Hague, and may also hold special sessions where circumstances require.[40] Sessions are open to observer states and non-governmental organisations.[41]
The Assembly elects the judges and prosecutors, decides the Court's budget, adopts important texts (such as the Rules of Procedure and Evidence), and provides management oversight to the other organs of the Court.[40][38] Article 46 of the Rome Statute allows the Assembly to remove from office a judge or prosecutor who "is found to have committed serious misconduct or a serious breach of his or her duties" or "is unable to exercise the functions required by this Statute".[42]
The states parties cannot interfere with the judicial functions of the Court.[43] Disputes concerning individual cases are settled by the Judicial Divisions.[43]


Philippe Kirsch, President of the Court
The Presidency is responsible for the proper administration of the Court (apart from the Office of the Prosecutor).[44] It comprises the President and the First and Second Vice-Presidents — three judges of the Court who are elected to the Presidency by their fellow judges for a maximum of two three-year terms.[45] As of July 2008, the President is Philippe Kirsch,[39] who was elected to a second term on 11 March 2006.[44]

Judicial Divisions
Main article: Judges of the International Criminal Court
The Judicial Divisions consist of the 18 judges of the Court, organized into three divisions — the Pre-Trial Division, Trial Division and Appeals Division — which carry out the judicial functions of the Court.[46] The Pre-Trial Division (which comprises the First Vice President and six other judges)[46] confirms indictments and issues international arrest warrants. The Trial Division (the Second Vice President and five other judges) presides over trials. Decisions of the Pre-Trial and Trial Divisions may be appealed to the Appeals Division (the President and four other judges). Judges are assigned to divisions according to their qualifications and experience.[39]
Judges are elected to the Court by the Assembly of States Parties.[46] They serve nine-year terms and are not generally eligible for re-election.[46] All judges must be nationals of states parties to the Rome Statute, and no two judges may be nationals of the same state.[47] They must be “persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices”.[47]
The Prosecutor or any person being investigated or prosecuted may request the disqualification of a judge from "any case in which his or her impartiality might reasonably be doubted on any ground".[48] Any request for the disqualification of a judge from a particular case is decided by an absolute majority of the other judges.[48] A judge may be removed from office if he or she "is found to have committed serious misconduct or a serious breach of his or her duties" or is unable to exercise his or her functions.[42] The removal of a judge requires both a two-thirds majority of the other judges and a two-thirds majority of the states parties.[42]

Office of the Prosecutor
The Office of the Prosecutor is responsible for conducting investigations and prosecutions.[12] It is headed by the Prosecutor, who is assisted by two Deputy Prosecutors.[39] The Rome Statute provides that the Office of the Prosecutor shall act independently;[49] 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.[12]
The Prosecutor may open an investigation under three circumstances:[12]
when a situation is referred to him by a state party;
when a situation is referred to him by the United Nations Security Council, 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.
Any person being investigated or prosecuted may request the disqualification of a prosecutor from any case "in which their impartiality might reasonably be doubted on any ground".[49] Requests for the disqualification of prosecutors are decided by the Appeals Division.[49] A prosecutor may be removed from office by an absolute majority of the states parties if he or she "is found to have committed serious misconduct or a serious breach of his or her duties" or is unable to exercise his or her functions.[42] However, critics of the Court argue that there are “insufficient checks and balances on the authority of the ICC prosecutor and judges” and “insufficient protection against politicized prosecutions or other abuses”.[50] Henry Kissinger says the checks and balances are so weak that the prosecutor “has virtually unlimited discretion in practice”.[51]
As of July 2008, the Prosecutor is Luis Moreno-Ocampo of Argentina, who was elected by the Assembly of States Parties on 21 April 2003[52] for a term of nine years.[12]

[edit] Registry
The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court.[53] This includes, among other things, “the administration of legal aid matters, court management, victims and witnesses matters, defence counsel, detention unit, and the traditional services provided by administrations in international organisations, such as finance, translation, building management, procurement and personnel”.[53] The Registry is headed by the Registrar, who is elected by the judges to a five-year term.[39]

Rights of the accused
The Rome Statute provides that all persons are presumed innocent until proven guilty beyond reasonable doubt,[54] and establishes certain rights of the accused and persons during investigations.[55] These include the right to be fully informed of the charges against him or her; the right to have a lawyer appointed, free of charge; the right to a speedy trial; and the right to examine the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf.
Some argue that the protections offered by the ICC are insufficient. According to the Heritage Foundation, “Americans who appear before the court would be denied such basic constitutional rights as trial by a jury of one's peers, protection from double jeopardy, and the right to confront one's accusers.”[30] However, Human Rights Watch argues that “the ICC has one of the most extensive lists of due process guarantees ever written”, including “presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; right to be present at trial; right to have charges proved beyond a reasonable doubt; and protection against double jeopardy”.[56] According to David Scheffer, who led the US delegation to the Rome Conference (and who voted against adoption of the treaty), “when we were negotiating the Rome treaty, we always kept very close tabs on, ‘Does this meet U.S. constitutional tests, the formation of this court and the due process rights that are accorded defendants?’ And we were very confident at the end of Rome that those due process rights, in fact, are protected, and that this treaty does meet a constitutional test.”[57]
In order 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.[58][59] The OPCD also helps to safeguard the rights of the accused during the initial stages of an investigation.[60] However, Thomas Lubanga's defence team say they have been given a smaller budget than the Prosecutor and that evidence and witness statements have been slow to arrive.[61]

Victim participation and reparations
The Rome Statute provides for victim participation in the Court's proceedings.[62][63] 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."[64] Article 68 sets out procedures for the "Protection of the victims and witnesses and their participation in the proceedings."[65] The Court has also established an Office of Public Counsel for Victims, to provide support and assistance to victims and their legal representatives.[66] Article 78 of the Rome Statute establishes a Trust Fund to make financial reparations to victims and their families.[67]

Relationship with the United Nations

The UN Security Council has referred the situation in Darfur to the ICC
Unlike the International Court of Justice, the ICC is legally and functionally independent from the United Nations. However, the Rome Statute grants certain powers to the United Nations Security Council. Article 13 allows the Security Council to refer to the Court situations that would not otherwise fall under the Court's jurisdiction (as it did in relation to the situation in Darfur, which the Court could not otherwise have prosecuted as Sudan is not a state party). Article 16 allows the Security Council to require the Court to defer from investigating a case for a period of 12 months.[68] 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.[69] The Court reports to the UN each year on its activities,[69][70] 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”.[71][72]

[edit] Amnesties and national reconciliation processes
It is unclear to what extent the Court is compatible with reconciliation processes that grant amnesty to human rights abusers as part of agreements to end conflict.[73] Article 16 of the Rome Statute allows the Security Council to prevent the Court from investigating or prosecuting a case,[68] 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] The President of the ICC, Philippe Kirsch, has said that "some limited amnesties may be compatible" with a country's obligations genuinely to investigate or prosecute under the statute.[73]
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.[75][76] 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”.[77] However, the United Nations[78] and the International Committee of the Red Cross[79] maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law.

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