International Criminal Court

Introduction

• The International Criminal Court (ICC) is an intergovernmental organization and international tribunal that sits in The Hague, Netherlands
• The ICC 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
  • However, the ICC lacks universal territorial jurisdiction and may only investigate and prosecute crimes committed within member states, crimes committed by nationals of member states, or crimes in situations referred to the Court by the United Nations Security Council
• The ICC began operations in 2002, upon the entry into force of the Rome Statute, a multilateral treaty that serves as the court’s foundational and governing document
• The official seat of the Court is in The Hague, Netherlands, but its proceedings may take place anywhere

Key features of ICC

• • Fair trials
    • ICC judges conduct judicial proceedings and ensure the fairness of proceedings
  • Independent prosecution
    • The Office of the Prosecutor is an independent organ of the Court. The Prosecutor conducts preliminary examinations, investigations and is the only one who can bring cases before the Court
  • Defendants’ rights are upheld
    • Defendants are entitled to public, fair proceedings that they can follow in a language they fully understand
  • Victims’ voices are heard
    • Victim’s voices are heard in the Courtroom, as the Rome Statute grants victims unprecedented rights to participate in ICC proceedings
  • Participating victims and witnesses are protected
    • The ICC has a victim and witness protection programme that uses both operational and procedural protective measures

Organisation

• • • The ICC has four principal organs
      • The Presidency
        • This is responsible for the proper administration of the Court
      • The Judicial Divisions
        • This consist of the 18 judges of the Court, organized into three chambers—the Pre-Trial Chamber, Trial Chamber and Appeals Chamber—which carry out the judicial functions of the Court.
      • The Office of the Prosecutor and
        • The Office of the Prosecutor (OTP) is responsible for conducting investigations and prosecutions
      • The Registry
        • The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court

• • Jurisdiction
    • The Rome Statute, grants the ICC jurisdiction over four main crimes:
      • The crime of Genocide
      • Crimes against Humanity
      • War crimes
      • Crime of Aggression
  • Finance
    • The ICC is financed by contributions from the states parties. The amount payable by each state party is determined using the same method as the United Nations: each state’s contribution is based on the country’s capacity to pay, which reflects factors such as a national income and population.
    • The maximum amount a single country can pay in any year is limited to 22% of the Court’s budget
  • Referring a case to the International Criminal Court
    • Various parties have the right to refer a case to the ICC:
      • any State Party to the Rome Statute, irrespective of any involvement in the alleged offence;
      • the Prosecutor of the ICC;
      • the United Nations Security Council
    • Further, The United Nations Security Council may ask the ICC to defer investigation of a case for a limited period if it considers that the proceedings would constitute an obstruction to its powers

India and International Criminal Court

• India has neither signed nor ratified the Rome Statute (‘Statute’) of the International Criminal Court (‘ICC’)
• The principal objections of India to the Rome Statute are that it:
  • Made the ICC subordinate to the UN Security Council, and thus in effect to its permanent members, and their political interference, by providing it the power to refer cases to the ICC and the power to block ICC proceedings
  • Provided the extraordinary power to the UN Security Council to bind non-States Parties to the ICC ; this violates a fundamental principle of the Vienna Convention on the Law of Treaties that no state can be forced to accede to a treaty or be bound by the provisions of a treaty it has not accepted
  • Blurred the legal distinction between normative customary law and treaty obligations, particularly in respect of the definitions of crimes against humanity and their applicability to internal conflicts, placing countries in a position of being forced to acquiesce through the Rome Statutes to provisions of international treaties they have not yet accepted
  • Permitted no reservations or opt-out provisions to enable countries to safeguard their interests if placed in the above situation
  • Inappropriately vested wide competence and powers to initiate investigations and trigger jurisdiction of the ICC in the hands of an individual prosecutor
  • Refused to designate of the use of nuclear weapons and terrorism among crimes within the purview of the ICC, as proposed by India
• Should India become a member of ICC now?
  • The Indian position towards the Statute is not much different from that of other Asian States who have decided to not ratify based on their concern that it would lead to the dilution of their sovereignty
  • In this pursuance, India should not ratify the Statute in the near future owing to its concerns regarding the primacy of national jurisdiction
  • At the same time, India’s current status vis-à-vis the ICC is what it always wanted: she preserves the primacy of her national courts, and still has the option to accept the jurisdiction of the ICC for a specific conduct or period.
• Thus, instead of discussions on the possibility of India ratifying the Statute, the discourse should focus on if and when India may submit an Article 12(3) declaration.

• Criticisms against ICC
  • Accused of Bias
    • The ICC has been accused of bias and as being a tool of Western imperialism, only punishing leaders from small, weak states while ignoring crimes committed by richer and more powerful states
    • This sentiment has been expressed particularly by African leaders due to an alleged disproportionate focus of the Court on Africa
  • Insufficient Checks and Balances
    • The United States Department of State argues 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”
  • Unintentional consequences
    • Research indicates that prosecutions of leaders who are culpable of international crimes in the ICC makes them less likely to peacefully step down, which can prolong conflicts and incentivize them to make continued use of mass violence
    • It is also argued that justice is a means to peace: “As a result, the ICC has been used as a means of intervention in ongoing conflicts with the expectation that the indictments, arrests, and trials of elite perpetrators have deterrence and preventive effects for atrocity crimes. Despite these legitimate intentions and great expectations, there is little evidence of the efficacy of justice as a means to peace”
  • No enforcement body
    • As a judicial institution, the ICC does not have its own police force or enforcement body
    • Thus, it relies on cooperation with countries worldwide for support, particularly for making arrests, transferring arrested persons to the ICC detention centre in The Hague, freezing suspects’ assets, and enforcing sentences
  • No retrospective jurisdiction
    • The ICC court has no retrospective jurisdiction as it can deal only with crimes committed after 1 July 2002 when the 1998 Rome Statute came into force.
    • Hence, seeking justice for crimes done earlier in present context isn’t possible

Way Forward

• In the current situation, What is needed is a court that can undertake efficient and effective criminal proceedings, delivering fair and impartial justice in the small number of cases which it is reasonable to expect it to address, in the light of the evidential challenges, limited resources and limited state cooperation
• Governments should decide together at the Assembly of States Parties to set in hand a review of the ICC’s operations
  • It has been suggested that a group of experts might be mandated to assess the management of the court
• Further, Governments should adopt new rules and practices to address matters such as the election process for judges and their training
  • In this pursuance, governments might consider reaching their own understandings on how some provisions of the ICC Statute should be interpreted in practice.
• Also, Governments should reach out to the many civil society organizations which have supported the court over the years, to ensure that they are involved in the process