Once the charges are confirmed against the individual, a case is directed to a Trial Chamber which consists of three judges. The Trial Chamber is responsible for conducting the trial proceedings against the accused and is expected to provide a ‘fair expeditious proceedings with full respect of the rights of the accused’. The Defendant may self-represent or seek legal representation and victims are eligible to participate in the proceedings.
At the conclusion of the trial the Trial Chamber determines the guilt or innocence of the accused. If the accused is found guilty they may be sentenced for up to thirty years imprisonment or in extreme situations, depending on the nature and gravity of the crime, they can receive life imprisonment. The Trial Chamber may also compensate the victim or victims. However, due to the nature of the crimes which the ICC deals with, it appears unlikely that all victims can be compensated for due to the overwhelming number of victims which the crimes may affect. For example, crimes against humanity or genocide will generally involve hundreds if not thousands of victims. Common sense suggests that compensation for thousands of victims is inconceivable. Further problems which limit the effectiveness of the ICC will be discussed, in detail, later on in the essay.
The Appeals process is dealt with by the Appeals Chamber which consists of five judges. During the Pre-Trial and Trial intervals, the Prosecutor or any relevant State may appeal the decisions made by the Chamber. At the conclusion of the Trial Chambers decision the Prosecutor and the accused may appeal the decision or sentence. The victim may appeal any reparation orders made.
THE JURISDICTION OF THE ICC
The jurisdiction of the ICC is set out extensively in the Rome Statute of the International Criminal Court. The court exercises jurisdiction over genocide, crimes against humanity and war crimes which are detailed under the Rome Statute and under a supplementary material titled “Elements of Crime”. A Triggering Mechanism has been put in place which outlines when the ICC may act. As briefly mentioned above, there are three scenarios which can trigger the exercise of the ICC’s jurisdiction:
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Referral to the ICC’s Prosecutor by the Security Council acting pursuant to its powers set out in Chapter VII under the Charter of the United Nations;
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Referral to the ICC’s Prosecutor by a State party to the Statute;
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Referral by the ICC’s Prosecutor acting on proprio motu(on their own initiative) following an independent investigation.
The court has jurisdiction over individuals accused of the crimes under the Rome Statute. It extends not only to those directly responsible for committing the crimes but also those who are found to have contributed to the crimes. For example, a person who aids or abets in the commission of the crime[s] under the Rome Statute, may come under the jurisdiction of the ICC. The court may only exercise jurisdiction if:
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The accused is a national to a State Party who has accepted the jurisdiction of the court; (a Nation does so by ratifying the Roman Statute).
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The crime took place on the territory of a State Party who has accepted the jurisdiction of the court;
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The United Nations Security Council has referred the situation to the prosecutor, irrespective of the nationality of the accused or the location of where the crime took place.
The jurisdiction of the ICC is not applied retrospectively or “after the fact”. Therefore the court is unable to try cases where the alleged crime[s] took place before the creation of the Rome Statute; 1 July 2002. Furthermore, if a State joins the jurisdiction of the ICC after 1 July 2002, the court will only have jurisdiction over that Nation from the date that the Roman Statute comes into force in that State. The State can pass over jurisdiction to the court for matters which occurred prior to the commencement of the Rome Statute, but not matters which extend past the date of 1 July 2002.
The court has wide ranging jurisdiction and as a result it has the potential to cover many criminal matters. The court will not act in every situation where it is eligible to as this would be impractical due to the size and resources of the court. Generally, a case to the ICC will be inadmissible if the matter is already being dealt with by a State with jurisdiction. However a case may be held to be admissible when ‘the investigating or prosecuting State is unwilling or unable to genuinely carry out the investigation or prosecution’. For example, if a State was attempting to protect the accused from criminal liability and was unwilling to act, the ICC may interfere.
EVALUATION OF THE ICC
The drafting of the Roman Statute for the International Criminal Court was an arduous task. Many countries were involved in negotiating the jurisdiction of the ICC and as a result the process was tedious. The jurisdiction of the ICC has been limited in certain situations, in order to reach an agreement, which may affect its overall impact. Limitations were a practicality of the drafting of the ICC, as without compromise the Rome Statute may never have been drafted.
Some of the limitations or lack of ‘far reaching powers’ of the ICC, which Kofi Annan may be referring to, include Article 31 of the Roman Statute which outlines the grounds available to the defence to avoid criminal responsibility. The defences listed are insanity, intoxication, duress and self-defence. These defences enable an accused to defend their actions in committing the most heinous crimes. Some may argue that it is absurd for an accused to have avenues enabling them defend their actions. However the defences set out in Article 31 which give grounds to exclude criminal responsibility are not concerned with producing a loop hole for criminals to escape conviction, but rather is concerned with the principles of crime; namely mens rea(intent). For example, duress involves the suppression of ones freedom of choice and therefore the intent of the accused becomes a big question when hearing a case where the accused has come under duress. There appears to be justification for Articles 31 to have been included in the Rome Statute. Without it, it would be unfair to the accused and every Defendant, no matter how heinous the crime, deserves basic human rights which include the ability to defend their actions. I agree with the opinion of Jeremie Gilbert, in his article Justice not Revenge, that Article 31 provides the necessary balance ‘required for human justice’. These provisions are unlikely to impact on the effectiveness of the ICC as an accused would have to show mitigating factors in order to be found non-culpable for their actions.
One of the triggering mechanisms to the ICC’s jurisdiction has limitations. There is scepticism over State Parties initiating proceedings against other states or nationals due to the political and diplomatic problems which such actions can bring to a country. However it appears that this will not hinder the effectiveness of the ICC as it is likely that most of the Courts referrals will come from the hands of the UN Security Council.
The ICC is a jurisdiction which does not act retrospectively and therefore any atrocities which took place prior to the commencement of the Rome Statute (1 July 2002) can not be dealt with by the ICC. This restricts the ICC from dealing with any matters occurring pre July 2002. Although its presents a limitation on the ICC, it can be construed positively as it looks toward the future and deals with present cases, rather than past atrocities. Furthermore, it is a legal necessity for Statute’s not to act ‘after the fact’. If Statutes were to act retrospectively, a person may be charged with a crime for an act which at the time it was committed was perfectly legal.
A weakness of the ICC is the listing of Prohibited weapons under its “War Crimes” jurisdiction. It is an area under Article 8 of the Rome statute which, according to Timothy McCormack and Sue Robertson, is ‘inconsistently and inadequately covered’. It only includes the use of poison and poisonous weapons as prohibited weapons. It also fails to recognise the use of nuclear weapons as a war crime and makes no reference to chemical or biological weapons. This is an area of the ICC which imposes significant limitations on its ability to hear cases involving the use of weapons, due to its lack-defining statute. However it is possible that this may be rectified in the future as under Article 8(2)(b)(xx) the States Parties may agree to expand the list of prohibited weapons at an early Review Conference.
A further weakness to the ICC is Article 124 of the Rome Statute which enables a State Party to elect to exclude the Court from dealing with a war crime that is alleged to have occurred on its territory or by one of its nationals. It is an ‘opting out’ provision that acts as an exception to the general rule of the ICC having automatic jurisdiction of the States Parties. This exception only applies to war crimes. In the case of genocide and crimes against humanity the ICC withholds its jurisdiction over the States Parties. The ‘opting-out’ provision may affect the ICC’s ability to hear a war crime case. The ICC may push for the provision to be quashed at the next Review Conference which occurs seven years after the entry into force of the Rome Statute.
The ICC only has jurisdiction to hear cases related to war crimes, crimes against humanity and the yet to be defined crime of aggression. This may be seen as a restriction on the ICC, as it does not include other serious crimes such as Terrorism. Having a limited jurisdiction can be justified as it prevents the court from being overburdened with matters. In addition, Terrorism was not included in the Rome Statute as there is yet an agreed definition of the crime. It may be a positive move in the future for Terrorism to be incorporated into the Rome Statute as it is a crime capable of causing wide spread and systematic violence. It is an area which will hopefully be discussed at the Review Conference in 2009.
CONCLUSION
On evaluation of the ICC’s jurisdiction and function there appears to be areas which could be improved by implementing more “far reaching powers”. However the jurisdiction of the ICC reflects the reality of political compromise and it should be congratulated on its ability to combine varying nation’s rules of law in the creation of a universal court.
W. Schabas, An Introduction to the International Criminal Court, p. ix.
International Criminal Court, ICC at a Glance, (2004), International Criminal Court, <http://www.icc-cpi.int/Site_info.html>at 27 October 2007.
T. McCormack, S. Robertson, Jurisdictional Aspects of the Rome Statute for the New International Criminal Court, (1999), MULR 25, p. 3.
Rome Statute for the International Criminal Court, (2001), Article 31.
Jeremie, Gilbert, Justice not Revenge: The International Criminal Court and the Grounds to Exclude Criminal Responsibility-Defences or Negation of Criminality’, 10(2) IJHR 235 (2004), p 23.
Wasana, Punyasena, Conflict Prevention and the International Criminal Court: Deterrence in a Changing World, 14 Michigan State Journal of International Law 28 (2006), p 43.