[This post is by guest-writer Line Løvåsen].
In an earlier post, we gave an historical overview of the birth of the International Criminal Court. In the current one, we’ll examine how the ICC functions, what it is supposed to do, what it can’t do, and what it should do. More specifically, we focus on the problems it faces bringing justice to the world.
Structure of the ICC
The ICC has its seat in The Hague, as its sibling, the International Court of Justice which is more focused on inter-state disputes and not, as the ICC, on individual responsibility. The ICC consists of several organs:
- the Presidency
- the Judiciary
- an Appeals Division
- a Trial Division and a Pre-trial division
- the Prosecutor and the Registry.
In addition to this, an institution was added as an oversight tool by state that are parties to the treaty, the Assembly of States Parties.
18 highly qualified judges are elected by the Assembly of States Parties. There is only one from a particular nation at a time. Three of these judges form the Presidency, elected by the judges. The Presidency is responsible for the administration of the Court. The Appeals Division consists of the President and four judges, while the Trial Division and Pre-Trial-Division consist of six judges. The Prosecutor is an independent organ and elected by the Assembly of States Parties (Schabas 2004, pp.176-180). The Registry is responsible for the non-judicial features of the administration, and the Registrar is also elected by the judges.
The ICC vows to respect high morality, various kinds of experience, and nationality and gender balance. The Assembly of States Parties is also responsible for administrative matters and the implementation of amendments to the Rome Statute governing the ICC. Each state has one representative (ibid. 2004, pp.182-185).
Mission of the ICC
The Court’s fundamental missions are first, to impose an international legal order based on the rule of law. The rule of law means fixed laws, free from random judgments in individual cases and the instability of interpretation. Second, the Court wants to fight the culture of impunity (exemption from punishment) and build a global culture of accountability (responsibility).
Jurisdiction of the ICC
Article13 of the Rome Statute specifies when the Court may exercise its jurisdiction:
- after initiation of a case by the Prosecutor,
- by a State Party, or
- by the Security Council.
There was a huge amount of discussion during the Rome Conference where the ICC was prepared in order to reach agreement on the subject matter of the jurisdiction, or, in other words, on the definition of the core crimes within the jurisdiction of the Court. It was agreed that the ICC should be able to take cases linked to 4 types of crimes:
The precise definition of the first 3 has been established. The crime of genocide can be committed in both war and peace time; it does not have to be widespread or be a systematic attack on the basis of an organized plan, but it is characterized by the intent-requirement. The Statute in article 30 puts weight on the mens rea principle (guilty mind); the accused had intentions behind the crime, were aware of the consequences, and hence are personally responsible (ibid. 2004, p.108). Criminal offense thus is constituted by two elements, actus reus (the physical act), and the mental element (McGoldrick et.al. 2004, p.263).
Crimes against humanity on the other hand do require a widespread systematic attack, but are like genocide applied both to war and peace time. War crimes again do not require a large-scale and planned attack, but cover both internal and external conflicts, and apply only to war.
The crime of aggression is not defined yet as it was included in the Statute at the last minute of the negotiations, and it thus was impossible to reach a consensus on the definition. Its quite paradoxical that it is at the same time called the “supreme crime”. Thus compared to the three other crimes, the Court will not have jurisdiction over this crime until an agreement is reached (Hebel-Robinson 2002, p.81). In the meantime, this crime falls under the jurisdiction of the UN Security Council.
The temporal jurisdiction, ratione temporis, gives the ICC only jurisdiction in cases that occurred after the Statute has entered into force. This ex post facto element (no retroactivity) has been criticized, as it implies that many offenders are able to get away with their crimes (Schabas 2004, pp.69-70). The territorial jurisdiction, ratione loci, gives the Court jurisdiction over crimes committed on the territory of States Parties (ibid. 2004, pp.78-80). Personal jurisdiction, ratione personae, gives the ICC jurisdiction over persons who are citizens of a State Party, or of a non State Party that has accepted the jurisdiction of the ICC. So the Court can exercise jurisdiction only in cases where the accused is a national of a State Party or the alleged crime took place on the territory of a State Party. The only exception to this rule is when a situation is referred to the Court by the United Nations Security Council.
Problems with the ICC
The ICC faced and still faces political obstacles from some reticent states, as well as inherent challenges. A compressed time frame for the finalization of the text before a rushed signing in Rome resulted in some technical errors and unclear definitions in the Statute. Both content and interpretation have been debated, and the complexity of the Statute in general has raised problems with interpretation. The fact that negotiations were held in six languages because of the 160 participating states at the Rome Conference did not make things easier. Neither did the fact that there were distinctive legal systems and values present, all of which had to be taken into account (Lee 2002, pp.11-14).
The ICC is also a political compromise because the purpose was to have a near-universal acceptance of the Court. Some of these compromises become apparent when examining the organizational and institutional structure of the ICC. In article 21 of the Rome Statute, you can find the legal sources of the ICC.
- At the top, there is the Statute itself;
- then there are the treaties (international law and the Geneva Conventions);
- and then there is domestic law.
The third part comes into play when the Court fails to resolve an issue when applying the first two sources. This means that the law can vary depending on the place of the crime or the nationality of the criminal, which is incompatible with the universality and equality principles (Schabas 2004, pp.90-92).
There is also the complementarity principle; jurisdiction falls to the ICC when states are unwilling or unable to investigate themselves. This seems to be unfair to developing countries with relatively weak judicial systems. It also means wasting valuable time. While one takes the time to determine that countries fail, evidence gets lost, criminals flee etc.
The jurisdiction of the Court is restricted to the four core crimes mentioned above (which for the moment means only three). As a result, many international crimes, like terrorism, drug trafficking, environmental damages etc. still are within national jurisdiction. But national jurisdiction is often imperfect, a fact which initiated the ICC in the first place.
Furthermore, the Court only has jurisdiction when either the state in which the crime was committed or the state of the accused is a party to the Statute or has accepted the jurisdiction of the Court. This again excludes many crimes. The Court may be able to exercise its jurisdiction on a non-party state if this state has committed one of the 4 core crimes in a State Party, but not if it commits these crimes in its own territory and against its own citizens. And, sadly, this happens very often.
There is the possibility that the Court acts when a case is referred to it by the Security Council, and then it has jurisdiction even if the states involved are not Parties, because the competence of the Security Council is premised under chapter VII of the UN Charter. This is another development from traditional international law were the principle of consent has dominated, but unfortunately this course of action will be very rare given the veto power of the 5 permanent members of the Security Council. Moreover, when the Prosecutor initiates a case, the Security Council has the right to take it out of his hands.
The U.S. insisted at the Rome conference that consent from both the territorial and national states involved should be required for a prosecution to take place. According to the Bush administration, the ICC broke with long-standing international legal precedent by asserting ICC jurisdiction over nationals and military personnel from states that are not party to the treaty. The U.S. wanted to limit the power of the Prosecutor and prevent cases against U.S. troops that have committed crimes during peace-keeping or peace-enforcement efforts. For the U.S., a case can be initiated only when both the State of the accused and the state of the territory where the crime has taken place have ratified the Statute (because then a U.S. veto could protect their personnel). However, the conference decided otherwise, which resulted in the U.S. rejecting the ICC. The U.S. is also busy “convincing” other states, which have accepted the Statute, to sign bilateral agreements in which they promise not to hand over U.S. citizens to the ICC (this is possible according to article 98 of the Rome Statute).
However, even given all these problems, the ICC deserves support. Only a constructive engagement with the ICC will make it possible to improve it.
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