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International Criminal Court Q&A

UNDP

On 17 July 1998 in Rome, 160 nations decided to establish a permanent International Criminal Court to try individuals for the most serious offences of global concern, such as genocide, war crimes and crimes against humanity. Many felt the agreement was no less important than the adoption of the United Nations Charter itself and it was hailed by United Nations Secretary-General Kofi Annan as "a giant step forward in the march towards universal human rights and the rule of law."

1. Why do we need another international court? Why not use the International Court of Justice?

This century has seen the worst violence in the history of humankind. In the past fifty years more than 250 conflicts have erupted around the world; more than 86 million civilians, mostly women and children, have died; and over 170 million people were stripped of their rights, their property and their dignity. Most of these victims have been simply forgotten and few perpetrators have been brought to justice.

In spite of rules and laws defining and forbidding war crimes, crimes against humanity and genocide, along with various treaties and conventions, protocols and codicils banning everything from poison gas to chemical weapons, what has been lacking up to now, has been any system for enforcing these norms and for holding individual violators criminally responsible.

The United Nations General Assembly first recognized the need for a permanent mechanism to prosecute mass murderers and war criminals in 1948, following the Nuremberg and Tokyo trials after World War II, and it has been under discussion at the UN ever since. Until now, however, attempts to create such a mechanism have been unsuccessful despite the need for a permanent criminal court to prosecute and punish those individuals committing the most serious crimes.

The International Court of Justice, the principal judicial organ of the United Nations, was designed to deal primarily with disputes between States. It has no jurisdiction over matters involving individual criminal responsibility.

2. How will the Court be different from the ad hoc Tribunals for the Former
Yugoslavia and Rwanda?

The two ad hoc Tribunals for the Former Yugoslavia and Rwanda were created by the UN Security Council to deal with specific situations after egregious crimes had been committed. The jurisdiction of these Tribunals is limited to the time and the territories concerned. They were not intended to address violations that occurred elsewhere or to prevent violations in the future.

The International Criminal Court -- to be headquartered at The Hague, the Netherlands -- will be a permanent institution not constrained by these time and place limitations. It will be able to act more quickly than if an ad hoc tribunal had to be established. As a permanent entity its very existence will be a deterrent, sending a strong warning message to would-be perpetrators. It will also encourage States to investigate and prosecute egregious crimes committed in their territories or by their nationals, for if they do not, the International Criminal Court will be there to exercise its jurisdiction.

3. How strong is the support for the creation of an International Criminal Court?

One hundred and sixty States participated in the United Nations Diplomatic Conference (held in Rome from 15 June to 17 July 1998) which adopted the Statute establishing the International Criminal Court. Hundreds of representatives of non-governmental organizations contributed to this process. Fifty-five States, from all regions of the world, have already signed the Statute. Many States were unable to sign immediately due to constitutional requirements such as the need for prior approval by parliament, but are expected to sign in the near future. The vast majority of States that sign are expected to ratify. Sixty States need to ratify the Statute for the Court to come into existence.

The draft text submitted to the Diplomatic Conference was full of competing options and had over 1400 brackets indicating disagreement on the text. Through working groups, informal negotiations and open debates, a very delicately balanced text emerged; a generally agreed solution was found for the many politically sensitive and legally complex issues. The Statute and the Final Act were put forward as a complete "package" for adoption. This package was the product of intense negotiations and judicious compromises designed to reach widespread agreement. India and the United States tried to amend the package. In each case, a "no-action motion" -- a procedural device for not considering these amendments -- was adopted by an overwhelming majority. For the no-action motion to stop the Indian amendment, the vote was 114 to 16, with 20 abstentions; to stop the United States amendment, the vote was 113 to 17, with 25 abstentions. The package was thus maintained and then agreed in its entirety by a vote of 120 in favour, 7 against with 21 abstentions.

4. Why did some States vote against the Statute?

Seven States voted against the Statute in an unrecorded vote so the names of the countries voting were not recorded. Three States -- China, USA and Israel -- stated their reasons for voting against. China thought that the power given to the pre-trial Chamber to check the Prosecutor's initiative was not sufficient and that the adoption of the Statute should have been by consensus, not by a vote.

The United States' principal objection was over the concept of jurisdiction and its application over non-State parties. It also stated that the Statute must recognize the role of the Security Council in determining an act of aggression.

Israel said that it failed to comprehend why the action of transferring populations into an occupied territory was included in the list of war crimes.

5. What crimes will the Court deal with?

The Court will deal with the most serious crimes committed by individuals: genocide, crimes against humanity, and war crimes. These crimes are specified in the Statute and are carefully defined to avoid ambiguity or vagueness. Crimes of aggression will also be dealt with by the Court when States Parties have agreed on the definition, elements and conditions under which the Court will exercise jurisdiction.

Genocide covers those specifically listed prohibited acts (e.g. killing, causing serious harm) committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.

Crimes against humanity cover those specifically listed prohibited acts when committed as part of a widespread or systematic attack directed against any civilian population. Such acts include murder, extermination, rape, sexual slavery, the enforced disappearance of persons and the crime of apartheid.

Genocide and crimes against humanity are punishable irrespective of whether they are committed in time of peace or of war.

War crimes cover grave breaches of the Geneva Conventions of 1949 and other serious violations, as listed in the Statute, committed on a large scale in international armed conflicts.

In the past 50 years, the most serious violations of human rights have occurred, not in international conflicts, but within States. Therefore, the Court's Statute incorporates contemporary international humanitarian law standards that criminalize, as war crimes, serious violations committed in internal armed conflicts, excluding internal disturbances or riots.

The definitions of the crimes in the Statute are the product of years of hard work involving many delegations and their experts. Each definition is precisely formulated to reflect existing international law and is crafted to meet the requirement of clarity in criminal justice. The Judges of the Court are required to strictly construe the definitions and are not to extend them by analogy. The aim is to establish objective international standards, leaving no room for arbitrary decisions. In cases of ambiguity, the definitions are to be interpreted in favour of the suspect or accused.

6. What about the crime of aggression?

Support was widespread from both States and the NGO community at the Rome Conference for the inclusion of aggression as a crime. However, there was not time to reach a definition of aggression that was acceptable to all. As a result, the Statute provides that the Court may not exercise jurisdiction over the crime of aggression until agreement is reached by States Parties at a Review Conference on the definition, elements, and conditions under which the Court shall exercise jurisdiction with respect to aggression.

Under the United Nations Charter, the Security Council has exclusive competence to determine whether an act of aggression has been committed. It is provided in the Statute that the final text on the crime of aggression must be consistent with the relevant provisions of the UN Charter.

7. Will the Court prosecute sexual crimes?

Yes. The Statute includes crimes of sexual violence such as rape, sexual slavery, enforced prostitution and forced pregnancy as crimes against humanity when they are committed as part of a widespread or systematic attack directed against any civilian population. They are also war crimes when committed in either international or internal armed conflict.

In Rwanda and the former Yugoslavia, rape and gender-based violence were widely used as weapons to inflict terror and to humiliate and degrade the women of a particular ethnic group as well as the entire community to which they belonged. In prosecuting cases of rape and other gender-based violations, the ad hoc Tribunals found that victims were often afraid to come forward with their stories and even feared being victimized by the process.

To help victims and witnesses face the judicial process, the International Criminal Court will have a Victims and Witnesses Unit to provide protective measures and security arrangements, counselling and other assistance for witnesses and victims, while fully respecting the rights of the accused. The Court must also take appropriate measures to protect the privacy, the dignity, the physical and psychological well-being and the security of victims and witnesses, especially when the crimes involve sexual or gender violence.

8. Will victims be entitled to compensation?

The Court will establish principles for reparations to victims, including restitution, compensation and rehabilitation. The Court is empowered to determine the scope and extent of any damage, loss and injury to victims, and to order a convicted person to make specific reparation. A Trust Fund may be established for the benefit of victims and their families. Sources for the Fund will include money and other property collected through fines and forfeiture imposed by the Court.

9. Will the court prosecute terrorist activities and drug trafficking which are the most important crimes committed in many parts of the world?

States could not agree on a definition of terrorism at the Rome Conference. Some States considered that the prosecution of drug crimes involved problems of investigation which would strain the resources of the Court. Many others, however, argued that such prevalent and subversive crimes should not escape the Court's jurisdiction. In response to this concern, a resolution adopted at the Rome Conference recommends that the Review Conference consider the inclusion of such crimes in the Court's jurisdiction. The Court will thus be able to exercise its jurisdiction over the crimes of terrorism and drug trafficking when they are so included by the Review Conference.

10. Can high-level government officials or military commanders be prosecuted by the Court?

Yes. Criminal responsibility will be applied equally to all persons without distinction as to whether he or she is a Head of State or government, a member of a government or parliament, an elected representative or a government official. Nor may such official capacity constitute a ground for reduction of sentence.

The fact that a crime has been committed by a person on the orders of a superior does not normally relieve that person of criminal responsibility.

A military commander is criminally responsible for crimes committed by forces under his/her command and control. Criminal responsibility also arises if the military commander knew or should have known that the forces were committing or were about to commit such crimes, but nevertheless failed to prevent or repress their commission.

11. Will the Court be able to impose the death penalty? Isn't that the most effective deterrent?

Consistent with international human rights standards, the International Criminal Court has no competence to impose a death penalty. The Court can impose lengthy terms of imprisonment of up to 30 years or life when so justified by the gravity of the case. The Court may, in addition, order a fine, forfeiture of proceeds, property or assets derived from the committed crime.

Deterrence is not just effected by the death penalty. Deterrence is brought about by the entire criminal justice process from investigation, followed by prosecution, trial, delivery of the judgement, sentencing and punishment. The publicity associated with a trial will have an additional deterrent effect.

12. When will the Court have jurisdiction over crimes?

A State must first consent to become a party to the Statute by ratifying or acceding to it. Once it is a party, it accepts the Court's jurisdiction. This automatic jurisdiction represents a major advance in international law because in the past, the acceptance of jurisdiction has, in most cases, been subject to additional State consent. In the case of war crimes, a State may withdraw its consent for seven years. However, this does not affect the Court's jurisdiction when it is conferred by the Security Council (see question 15).

The Court's jurisdiction will not be retroactive. It can only address crimes committed after the entry into force of the Statute and the establishment of the court.

The Court may exercise its jurisdiction over a specific case when either the State in whose territory the crime was committed, or the State of the nationality of the accused, is a party to the Statute. Non-party States may also accept the Court's jurisdiction on a case-by-case basis. The Court will also have jurisdiction over cases referred to it by the Security Council whether or not the State concerned is a party to the Statute (see question 15).

13. Will the International Criminal Court infringe on the jurisdiction of national courts?

No. The International Criminal Court will not supersede, but will complement national jurisdiction. National courts will continue to have priority in investigating and prosecuting crimes within their jurisdiction. Under the principle of complementarity, the International Criminal Court will act only when national courts are unable or unwilling to exercise jurisdiction. If a national court is willing and able to exercise jurisdiction, the International Criminal Court cannot intervene and no nationals of that State can be brought before it except in cases referred to it by the United Nations Security Council acting under Chapter VII of the UN Charter. The grounds for admitting a case to the Court are specified in the Statute and the circumstances that govern inability and unwillingness are carefully defined so as to avoid arbitrary decisions. In addition, the accused and interested States, whether or not parties to the Statute, may challenge the jurisdiction of the Court or admissibility of the case. They also have a right to appeal any related decision.

14. Will the Court violate international law by having jurisdiction over members of national forces or of peacekeeping missions? Won't this make States unwilling to participate in peacekeeping operations?

No. Under existing international law, the State in whose territory genocide, war crimes or crimes against humanity have been committed, or whose nationals are victims of such crimes, has the right to and is legally obligated to investigate and prosecute persons accused of committing such crimes. The Court's Statute does not violate any principle of treaty law and has not created any entitlements or legal obligations not already existing under international law. The cooperation of a non-party State is purely voluntary and no legal obligation is imposed on a non-party State.

The Court's Statute provides special protection for peacekeepers by prohibiting intentional attacks against personnel, installations, material units or vehicles involved in humanitarian assistance or peacekeeping missions. Such violations constitute war crimes and, under certain circumstances, also crimes against humanity. In addition, the Statute does not affect existing arrangements, for example, with respect to UN peacekeeping missions, since the troop-contributing countries continue to retain criminal jurisdiction over their members of such missions.

15. What role will the UN Security Council have in the Court's work?

The work of the Security Council and the International Criminal Court will complement each other. The Court's Statute recognizes the role of the Security Council in the maintenance of international peace and security under the UN Charter by accepting that the Security Council, acting under Chapter VII of the UN Charter, may refer a "situation" to the Court when one or more of the crimes covered by the Statute appears to have been committed. This would provide a basis for the Prosecutor to initiate an investigation.

Since the referral of a situation by the Security Council is based on its competence under Chapter VII which is binding and legally enforceable in all States, the exercise of the Court's jurisdiction becomes part of the enforcement measures. It's jurisdiction becomes binding even when neither the State in whose territory crimes have been committed nor the State of nationality of the accused is a party. In those instances, the International Criminal Court, through investigation and prosecution, helps the Security Council in maintaining peace. This jurisdiction, resulting from a Security Council referral, enhances the role of the Court in enforcing international criminal law. At the same time, the Court's jurisdiction is expanded to cover even non-party States, in these instances.

The Security Council may request that the Court defer an investigation or prosecution for a renewable period of 12 months when it is exercising its Chapter VII peace-making or enforcement powers. This deferral is to ensure that the Security Council's peace-making efforts will not be hindered by the Court's investigation or prosecution.

16. How independent will the Prosecutor be?

An independent Prosecutor, with the power to initiate investigations when sufficient evidence points to serious violations, was widely supported during negotiations at the Rome Conference. While the Prosecutor may initiate such investigations, detailed provisions are included in the Statute to ensure proper checks and balances with respect to this power. In the first place, the Prosecutor must defer to States willing and able to pursue their own investigation. Before initiating an investigation, the Prosecutor is required to submit all supporting materials collected and to obtain permission from the Pre-Trial Chamber, composed of three judges. The suspect and the States concerned also have the right to challenge at the investigative stage action taken by the Prosecutor. States and the accused can also challenge the jurisdiction of the Court or the admissibility of the case at the trial stage. These measures provide ample opportunity to ensure that the case is substantial and deserves investigation and prosecution by the Court.

The Prosecutor will be elected by secret ballot by the States Parties and must meet stringent qualifications: she or he must possess the highest moral character, competence and experience in the prosecution or trial of criminal cases. The Prosecutor will not be allowed to participate in any case in which his or her impartiality may be doubted. Any question concerning disqualification will be decided by the Court's Appeals Chamber. The Assembly of States Parties has the power to remove the Prosecutor if he or she is found to have committed serious misconduct or a serious breach of duties.

17. What guarantee is there that suspects will receive due process and a fair trial?

The Court's Statute creates a true international criminal justice system. It will provide impartial and qualified judges, due process and fair trials to individuals accused of crimes falling within the jurisdiction of the Court. The Statute recognizes a full range of rights of the accused, and even extends the standards embodied in major international human rights instruments.

There are some particular advantages to the Statute. One is the screening mechanisms by the investigative and prosecutorial organ and the judicial organ of the Court, which are designed to protect innocent individuals from frivolous, vexatious or politically motivated criminal investigations or prosecutions. In addition, the persons who are entrusted with making decisions relating to the initiation of a criminal investigation or trial must possess the highest qualifications of competence, independence and impartiality. Every individual will be entitled to the highest international standards and guarantees of due process and fair trial.

In addition, the Statute also contains elaborate provisions (over 60 articles) on criminal law principles, investigation, prosecution, trial, cooperation and judicial assistance and enforcement. These provisions required the harmonization of divergent and sometimes diametrically opposed national criminal laws and procedures. It is an important achievement that agreement was reached on these highly technical matters. As the product is a truly international criminal justice system, it provides the highest standard of protection for individuals before the Court.

18. What guarantee is there that judges will be qualified and impartial? What safeguards are included to prevent outside political influence on the Court?

Judges must possess the highest professional competence and must be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices. They must also be independent in the performance of their functions, and cannot engage in any activity that is likely to interfere with their judicial functions or to affect confidence in their independence.

The Court will have 18 judges with competence in criminal law and procedure, and the necessary relevant experience in criminal proceedings. In addition, judges will have competence in relevant areas of international law such as international humanitarian law and human rights law. To ensure that the composition will be truly balanced and international, their election must take into account the need to represent the principal legal systems of the world, equitable geographical representation, a fair representation of female and male judges, and expertise on violence against women or children. No two judges may be nationals of the same State and judges may only serve one nine-year term. They will be elected by secret ballot, by the highest number of votes but no less than two-thirds of the States Parties present and voting.

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. All these safeguards are intended to ensure independence, integrity and competence and to prevent outside political influence.

19. To whom is the Court accountable? And how will this affect its independence?

The States Parties oversee the work of the Court and will provide management oversight regarding the administration of the Court to the President, the Prosecutor and the Registrar, decide on the budget for the Court, decide whether to alter the number of judges, and consider any questions relating to non-cooperation. The States Parties cannot interfere with the judicial functions of the Court. Any disputes concerning the Court's judicial functions are to be settled by a decision of the Court itself.

20. What are a State Party's obligations under the Statute?

States party to the Statute are required to assist and cooperate fully with the Court in all stages of its work and to respect international standards regarding the rights of victims, suspects and accused in investigations, prosecutions and trials. If a State Party refuses to comply with a request to cooperate, the Assembly of States Parties or the Security Council may review the matter.

21. What contribution did Non-Governmental Organizations make to the establishment of the Court?

A large coalition of NGOs has been involved since 1995 in the process of establishing the Court. They developed close working relations with delegations, organized briefings for the Conference participants and published pamphlets, reports and papers on various topics of special interest. They provided a substantive contribution to the work of the Conference and a momentum to its successful negotiations. It is expected that many will be active in the campaign to get the Statute ratified by as many States as possible.

22. What must still be done before the Court comes into operation?

A Preparatory Commission will begin work in early 1999 to prepare proposals for practical arrangements for the entry into force of the Statute -- once it is ratified by 60 States -- and for the establishment of the Court. The Commission will take up such matters as elements of crimes, rules of procedure and evidence, and rules of the Court. All these are critical to the manner in which the Statute will actually be applied and implemented. The Commission will also be involved in making arrangements for the physical establishment of the Court. Participation in the Preparatory Commission is open to all States even those that have not signed the Statute. The Secretary-General is requested to provide to the Commission such necessary resources as it may require, subject to the approval of the General Assembly.

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