Role of international courts
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Public international law...
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Submitted By – Sahil Chadhaury
ROLE OF INTERNATIONAL COURT AND RECENT CASES Under the Guidance of Prof. Prof. Ghulam Ghula m Yazdani Y azdani
ACKNOWLEDGEMENT I owe owe my deep deep sens sensee of grat gratit itud udee to my resp respec ecte ted d teac teache herr Prof Prof.. Ghul Ghulam am Yazdan zdani, i, who who rend render ered ed his his cons constr truc ucti tive ve and and valu valuab able le guidance throughout my work, without his perspicacious comments and scholarly guidance; I would never have been able to complete this assignment. is patience to go through the draft meticulously was incredible. I would like to e!press my gratitude to the entire faculty members who rendered their invaluable help. I also acknowledge the help provided to me by the staff members of the library of faculty of law, "amia #illia Islamia. I e!tend my cordial gratitude to my parents for their kind appreciation and help. $ast but not the least, I e!press my gratitude to all the persons who helped me to complete this assignment.
%ahil &haudhary '.(.$$.' )ons* +nd Year, th %emester
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Table of Contents
1. Introduction Introduction to Public Public International International La !. International International Cri"inal Cri"inal Court #. T$E NEED FOR AN INTERNAT NATIONAL CRI%INAL COURT &. T$E FEATURE FEATURES S OF T$E INTERNA INTERNATIONA TIONAL L CRI%INAL CRI%INAL COURT '. Structur Structure e o( t)e Court *. Situation+ and recent recent ca+e+ ca+e+ ,. T$E INTERNATIONAL INTERNATIONAL CRI%INAL CRI%IN AL COURT COURT TODATODA. T$E T$E FUTU FUTURE RE OF T$E T$E INTE INTERN RNA ATION TIONAL AL CRI% CRI%IN INAL AL COURT /. Critici+"+ o( o( t)e International International Cri"inal Court Court 10. Conclu+ion
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Introduction to Public International La Public International $aw is the law of the political system of nation-states. It is a distinct and self-contained system of law, independent of the national systems with which it interacts, and dealing with relations which they do not effectively govern. %ince there is no overall legislature or law-creating body in the international political system, the rules, principles, and processes of international law must be identified through a variety of sources and mechanisms. his can make international law appear difficult to pin down. Public international law refers to those laws, rules, and principles of general application that deal with the conduct of nation states and international organizations among themselves as well as the relationships between nation states and international organizations with natural and /uridical persons. he public international law aims to monitor the behavior between states since where there e!ists a community of states, the maintaining of law and order becomes essential. Primary forum for the creation of public international law is inter-governmental organizations like 0nited 1ations through the codification of customary law by way of international treaties he 01 develops, creates and enforces international law in many levels. 2 It covers relations between states in all their myriad forms, from war to satellites, and regulates the operations of many international institutions. It may be universal or general, in which case the stipulated rules bind all states, or regional, whereby a group of states linked geographically or ideologically may recognize special rules applying only to them. 3or effective implementation of the legal regime in domestic law, there e!ists a recognized body to legislate or creates law, a hierarchy of courts with 1)tt233de4nition+.u+legal.co"33ublic5international5la3 #|Page
compulsory /urisdiction to settle disputes over such laws and accepting system of enforcing those laws. 4ithout legislature, e!ecutive and /udiciary, it would seem that the e!istence of legal order would not be possible. It does not fit this model. It has no legislative body. he General (ssembly of 015 consisting of delegates from all member states e!ist, but its resolutions are not legally binding save for certain organs of 015 for certain purposes. he International &ourt of "ustice does not e!ist but it can decide cases when both the parties agree and it cannot ensure that its decisions are compiled with. (bove all there is no e!ecutive or governing entity. he %ecurity &ouncil of the 015 which was have the role in a sense, has at times been effectively constrained by the veto powers of the 6 permanent members, viz., 0.%.(, 0%%7 )now 7ussia 3ederation*, &hina, 3rance, and 0nited 8ingdom. hus, if there is no identifiable institution either to establish rules, or to clarify them or to see that those who break the law are punished, the realization of such law becomes tricky. he settlement of disputes between the states by /udicial action is only one fact of the enormous problem of the maintenance of international peace and security. In the period of the 0nited 1ations &harter the use of force by individual states as a means of settling disputes is impermissible. Peaceful settlement is the only available means. owever, there is no obligation in general international law to settle disputes, and procedures for settlement by formal and legal procedures rest on the consent of the parties. 0nlike, the legal structure in most primitive societies is hierarchical and authority is vertical, international law system has a horizontal legal structure, consisting of independent states, all e9ual in legal theory )possessing the character of sovereignty* and recognizing none in authority over them. International law is primarily formulated by international agreements which
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create rules binding upon the signatories, and customary rules, which are basically state practices recognized by the community at large as lying down the patterns of conduct that have to be complied with. International law from the very beginning of its development seems to maintain the relations among the nations whose ultimate goal is to maintain peace, security and progress for all people for which cooperation of them in common matters is the most. (s international law developed in the 2:th and 2th centuries, it was widely understood that it was a tool for relations between nation-states. Individuals had no role in the process which resolved disputes between states e!cept as representatives of the states, such as diplomats or naval officers. he classic ueen, but it is now often the bureaucratic representation of the sovereign power, such as the %tate ?epartment, the 3oreign #inistry, the military, etc. 0ntil the middle of the +@th &entury, international law consisted primarily of custom.
#ore recently, customary international law has been increasingly codified. 4hile that part of the governmental entity charged with foreign relations will have the lead role in developing international law for the country, in practice each subunit of a government has some ability to create what can be recognized as International $aw. In the 0nited %tates, for e!ample, the A!ecutive 'ranch )acting through the %tate ?epartment* may sign a treaty, but the President ratifies it with the Badvice and consentB of the %enate, and the &ongress as a whole may pass laws implementing it. In addition, administrative agencies can make and enforce regulations implementing the treaty and the statutes, and the
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courts can interpret any of the above and use non-treaty related international law as an e!ercise of their /udicial power. 5n the global scale, international organizations such as the 0nited 1ations and the Auropean 0nion have become e!tremely important as forums for creating international law. he most recent development in this area has been the recognition that there is a role, within the sphere of public international law, for individuals to pursue remedies against sovereign nations.
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International Cri"inal Court he International &riminal &ourt )I&&*, governed by the 7ome %tatute, is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community. he I&& is an independent international organization, and is not part of the 0nited 1ations system. Its seat is at he ague in the 1etherlands. (lthough the &ourt=s e!penses are funded primarily by %tates Parties, it also receives voluntary contributions from governments, international organizations, individuals, corporations and other entities. he international community has long aspired to the creation of a permanent international court, and, in the +@th century, it reached consensus on definitions of genocide, crimes against humanity and war crimes. he 1uremberg and okyo trials addressed war crimes, crimes against peace, and crimes against humanity committed during the %econd 4orld 4ar.
In the 2CC@s after the end of the &old 4ar, tribunals like the International &riminal ribunal for the former Yugoslavia and for 7wanda were the result of consensus that impunity is unacceptable. owever, because they were established to try crimes committed only within a specific time-frame and during a specific conflict, there was general agreement that an independent, permanent criminal court was needed.
5n 2: "uly 2CC, the international community reached an historic milestone when 2+@ %tates adopted the 7ome %tatute, the legal basis for establishing the permanent International &riminal &ourt. he 7ome %tatute entered into force on 2 "uly +@@+ after ratification by D@ countries. he International &riminal &ourt )I&&* is an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes. he I&& is based on a treaty, /oined by 2++ countries )effective as of 2 #ay +@2E*. he I&& is a court of last resort. It will not act if a case is investigated or prosecuted by a national /udicial system unless the national proceedings are not ,|Page
genuine, for e!ample if formal proceedings were undertaken solely to shield a person from criminal responsibility. In addition, the I&& only tries those accused of the gravest crimes. In all of its activities, the I&& observes the highest standards of fairness and due process. he /urisdiction and functioning of the I&& are governed by the 7ome %tatute. A 1AA? 357 (1 I1A71(I51($ &7I#I1($ &507 3or e!perts on human rights it is clear that the protection of individuals from violations of human rights and humanitarian law re9uires appropriate mechanisms to enforce the law. 3or decades, international law lacked sufficient mechanisms to hold individuals accountable for the most serious international crimes. 1aturally, like any other crimes, punishment for grave breaches of the Geneva &onventions or for violations of the Genocide &onvention or the customary law of war crimes and crimes against humanity depended primarily on national courts. he problem is that it is precisely when the most serious crimes were committed that national courts were least willing or able to act because of widespread or systematic violence or because of involvement of agents of the %tate in the commission of crimes. If you look at the past to the best known historical events of that kind-1azi Germany, 7wanda, the former Yugoslavia, &ambodia-the governments themselves or their agents were involved in the commission of those crimes. (nd so the failures of national courts in these conte!ts protected perpetrators with impunity. o prevent impunity in those situations, it is necessary to enforce international /ustice when national systems are unwilling or unable to act. he first actions taken by the international community were to create ad hoc tribunals in such situations. he first tribunals were, of course, those of 1uremberg and okyo after 4orld 4ar II. hen, more recently, the 0nited 1ations set up tribunals for 7wanda and the former Yugoslavia. hese tribunals were e!tremely important. hey were pioneers. hey showed that international /ustice could work, but they all possessed several limitations. 5ne is that only a few %tates participated in their creation. he 1uremberg and okyo tribunals were set up by the victorious (llied powers after 4orld 4ar II, and the 7wanda and Yugoslavia tribunals were created by the %ecurity &ouncil. here are also other limitations. (d hoc tribunals are limited to specific geographic locations. hey respond primarily to events in the past. heir establishment involves |Page
e!tensive costs and delays. $ast but not least, their creation depended, every time, on the political will of the international community at the time. (nd so in some cases there was action; in some cases there was nothing. (s a result, their ability to punish perpetrators of international crimes and to deter future perpetrators has been limited. Aventually, a permanent truly international court was necessary to respond to the most serious international crimes and to overcome the limitations of the ad hoc tribunals. In the summer of 2CC, the 0.1. General (ssembly convened the 7ome &onference to fill this essential need by establishing the I&&. In creating the I&&, %tates were particularly concerned with guaranteeing the &ourtFs underlying legitimacy. 0nlike the ad hoc tribunals, the I&& is the first and only tribunal that was created by an international treaty, which enabled all %tates to participate in its creation. (ll %tates were invited to participate in the negotiations of the statute and the vast ma/ority-2D@-did so. here was a genuine effort to seek wide agreement among %tates without compromising the key values and ob/ectives behind a fair and impartial court. Afforts towards universal acceptance were largely achieved. Aventually, on "uly 2:, 2CC, the %tatute was approved by 2+@ %tates. (fter the 7ome &onference, a Preparatory &ommission met for over three and a half years. It was charged with developing the &ourtFs subsidiary instruments, notably, the 7ules of Procedure and Avidence and the Alements of &rimes. It should be noted that the 7ules of Procedure and Avidence for every other international criminal tribunal were developed by the /udges in those tribunals. In the case of the I&&, they were developed by the %tates, again because %tates wanted to ensure that the system underlying the operation of the I&& would be as tight as possible. here was a very good reason for this; I will go back to that a little later. 'ut it is clear that since the I&& would have prospective /urisdiction over then unknown situations, it was impossible for the %tates to know what e!actly the I&& would deal with. herefore it was absolutely vital for %tates to ensure that the I&& would be a purely /udicial court. 5ut of the desire I referred to earlier to ensure as wide acceptance as possible, all decisions taken by the Preparatory &ommission were taken by consensus-by general agreement. hat included the adoption of both the 7ules of Procedure and Avidence and the Alements of &rimes. 'y this method of consensus, the Preparatory &ommission, contributed significantly to international support for the &ourt. (t the end of +@@@, the deadline for signature of the 7ome %tatute, 2EC %tates had signed the %tatute, which was about twenty more than those that had voted for the %tatute in 2CC. /|Page
o my knowledge, this is a uni9ue case in the history of a treaty negotiation. 1ormally what happens is that you vote for an instrument at the time of the conference because it is easier and then forget about it because that is also easier. In the case of the I&&, the momentum to have a functioning &ourt in place was such that indeed, as I said, the number of signatures was higher than the number of votes at the conference. In the eight years since the adoption of the 7ome %tatute, 2@+ countries representing broad geographical diversity have ratified or acceded to the %tatute. I think it is a very good pace for a treaty establishing an international institution, in particular an international institution that re9uires considerable modifications in the legislation of %tates that have ratified the %tatute. A 3A(07A% 53 A I1A71(I51($ &7I#I1($ &507 he I&& does not have universal /urisdiction. Its /urisdiction is limited to crimes committed on the territory of or by nationals of %tates which have voluntarily consented to its /urisdiction. hese base of /urisdiction-territory of the crime and the nationality of the perpetrator-are the most firmly established bases of criminal /urisdiction. he &ourtFs /urisdictional regime recognizes the special role of the %ecurity &ouncil in maintaining peace and security. 0nder the %tatute, the %ecurity &ouncil may refer situations to the &ourt so that it no longer has to create ad hoc tribunals as it did for the former Yugoslavia and 7wanda. he %ecurity &ouncil has already used this power when it referred the situation in ?arfur, %udan, to the &ourt %udan not being a Party to the 7ome %tatute. he %ecurity &ouncil, acting under &hapter II of the 0.1. &harter, may also defer an investigation or a prosecution for a period of one year. he &ourtFs /urisdiction is also limited temporally. It has /urisdiction only over events since its %tatute entered into force on "uly 2, +@@+. 1o crime committed before that time can be dealt with by the I&&. he &ourtFs sub/ect matter /urisdiction covers the most serious international crimes. In that sense, although obviously the I&& deals with the most serious violations of human rights, it is not a human rights court in the traditional sense. It is a criminal court. It is a criminal court that is limited to genocide, crimes against humanity, and war crimes. he crimes contained in the %tatute are well established in customary and conventional international law as well as national laws. he %tatute also provides that the &ourt has /urisdiction over the crime of aggression, but the &ourt will not e!ercise this /urisdiction until both a definition of aggression, and conditions for the e!ercise of /urisdiction are 10 | P a g e
agreed upon. his has to happen through an amendment to the %tatute, agreed to by the %tates Parties. %uch amendment could occur at the earliest at a review conference to be held in +@@C. (ggression was seen by many %tates as a symbolic crime-a crime that certainly was central to proceedings after 4orld 4ar II. It was a general view among %tates that if aggression were not committed, many other crimes would not be committed and therefore aggression had to be part of the %tatute. owever, there was no agreement on how aggression should be defined and there was certainly no agreement how to move from a declaration of aggression by %tates as an act covered by public international law to proceedings covering individuals having been involved in their crimes under international criminal law. Aven where the &ourt has /urisdiction, it will not necessarily act. his is the fundamental point that has to be understood about the I&&. he I&& is a court of last resort. It is intended to act only when national courts are unwilling or unable to carry out genuine proceedings. his is known as the principle of complementarity. 0nder this principle, a case will be inadmissible if it is being or has been investigated or prosecuted by a %tate with /urisdiction. In addition, a case will be inadmissible if it is not of sufficient gravity to /ustify action by the &ourt. here is an e!ception under the principle of complementarity where the &ourt may act. his is when the %tate is unwilling or unable genuinely to carry out the investigation or prosecution. 3or e!ample, if proceedings were undertaken solely to shield a person from criminal responsibility-and that can take different forms, which are indeed spelled out in the %tatute-or if the proceedings were carried out in a manner inconsistent with an intent to bring the person to /ustice. It follows from what I said earlier, from the concern of %tates to ensure that the &ourt would be a purely /udicial institution and would act in a purely /udicial way, that the guarantee of a fair trial and protection of the rights of the accused have paramount importance before the I&&. he %tatute incorporates the fundamental provisions of the rights of the accused or the rights of the accused and due process common to national and international legal systems. ( particular feature of the I&&, which is different again from ad hoc tribunals, is the treatment given to victims. ictims have of course participated in other international proceedings, but largely as witnesses for the prosecutor or for the defense. In the case of the
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I&&, victims may participate in proceedings even when not called as witnesses. he &ourt also has the power to order reparations to victims including restitution, compensation, and rehabilitation. he I&& has the obligation to take into account the particular interests of victims of violence against women and children.
Visiting the International Criminal Court he International &riminal &ourt welcomes interested members of the public at its seat in he ague, with a view to raising public awareness of its structure, the way it works and the nature of its work. %ome practical information regarding visits is given belowH
To attend hearings only: he hearings of the International &riminal &ourt are generally open to the public, unless the &hamber orders a closed session. 3or more information, we recommend consulting the hearing schedule. Please note that in the interests of public order, under-si!teen-year-olds are not allowed in the &ourt building. 4e also recommend reading the rules related to visits to the &ourt )below*.
What does a isit !onsist o"# he public gallery seats :6 persons. %eats are allocated according to the order of precedence and arrival at the &ourt. You may stay until the end of the hearing. %imultaneous interpretation into Anglish and 3rench is available during hearings. eadphones are available to the public for this purpose.
$o% to &ro!eed# "ust go to the entrance of the &ourt )no need to fill in a form beforehand*. (ny person entering the &ourt building will have to pass through the security checks and present valid identification )passport, identity card or driving license*.
'ules: 4hile in the premises of the &ourt all visitors are re9uired to respect the rules of behavior.
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To re!eie a (rie"ing regarding the Court: Indiidual and grou& isits he International &riminal &ourt welcomes individual or group visits. Groups must comprise at least five persons and, due to the &ourt=s capacity, not more than 6 persons. In the interests of public order, under-si!teen-year-olds are not allowed in the &ourt building. 4e also recommend reading the rules related to visits to the &ourt )below*.
What does a isit !onsist o"# he visit consists of a talk )2 hour E@ minutes* on the mandate, structure and the activities of the &ourt. isitors may beforehand or afterwards, where possible, attend a hearing according to the &ourtFs schedule. he &ourt=s working languages are Anglish and 3rench. owever, the &ourt can arrange for the talk to be conducted in another language where possible.
Structure o( t)e Court he &ourt is an independent institution. he &ourt is not part of the 0nited 1ations, but it maintains a cooperative relationship with the 0.1. he &ourt is based in he ague, the 1etherlands, although it may also sit elsewhere. he &ourt is composed of four organs. hese are the Presidency, the /udicial ?ivisions, the 5ffice of the Prosecutor and the 7egistry. Presidency:
he Presidency is responsible for the overall administration of the &ourt, with the e!ception of the 5ffice of the Prosecutor, and for specific functions assigned to the Presidency in accordance with the %tatute. he Presidency is composed of three /udges of the &ourt, elected to the Presidency by their fellow /udges, for a term of three years. he President of the &ourt is "udge %ang-yun %ong )7epublic of 8orea*. "udge %an/i #masenono #onageng )'otswana* is 3irst ice-President, and "udge &uno arfusser )Italy* is %econd ice-President. •
Judicial DivisionsH
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he "udicial ?ivisions consist of eighteen /udges organized into the Pre-rial ?ivision, the rial ?ivision and the (ppeals ?ivision. he /udges of each ?ivision sit in &hambers which are responsible for conducting the proceedings of the &ourt at different stages. (ssignment of /udges to ?ivisions is made on the basis of the nature of the functions each ?ivision performs and the 9ualifications and e!perience of the /udge. his is done in a manner ensuring that each ?ivision benefits from an appropriate combination of e!pertise in criminal law and procedure and international law. he /udges of the &ourt areH %ang-yun %ong )7epublic of 8orea*, %an/i #masenono #onageng )'otswana*, &uno arfusser )Italy*, ans-Peter 8aul )Germany*, (kua 8uenyehia )Ghana*, Arkki 8ourula )3inland*, (nita 0acka )$atvia*, Akaterina rendafilova )'ulgaria*, "oyce (luoch )8enya*, &hristine van den 4yngaert )'elgium*, %ilvia (le/andra 3ernJndez de Gurmendi )(rgentina*, 8uniko 5zaki )"apan*, #iriam ?efensor-%antiago )Philippines*, oward #orrison )0nited 8ingdom*, (nthony . &armona )rinidad and obago*, 5lga errera &arbuccia )?ominican 7epublic*, 7obert 3remr )&zech 7epublic* and &hile Aboe-5su/i )1igeria*. he following /udges are continuing in office to complete their trials, in accordance with article ED)2@* of the 7ome %tatuteH
"udge Alizabeth 5dio 'enito )&osta 7ica* "udge 7enK 'lattmann )'olivia* "udge 3atoumata ?embele ?iarra )#ali* "udge %ir (drian 3ulford )0nited 8ingdom* "udge %ylvia %teiner )'razil* "udge 'runo &otte )3rance*
Office of the Prosecutor:
he 5ffice of the Prosecutor is responsible for receiving referrals and any substantiated information on crimes within the /urisdiction of the &ourt, for e!amining them and for conducting investigations and prosecutions before the &ourt. he 5ffice is headed by the Prosecutor, #rs. 3atou 'ensouda )he Gambia*, who was elected by the %tates Parties for a term of nine years. %he is assisted by ?eputy Prosecutor "ames %tewart who is in charge of the Prosecutions ?ivision of the 5ffice of the Prosecutor.
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Registry:
he 7egistry is responsible for the non-/udicial aspects of the administration and servicing of the &ourt. he 7egistry is headed by the 7egistrar who is the principal administrative officer of the &ourt. he 7egistrar e!ercises his or her functions under the authority of the President of the &ourt. he current 7egistrar, elected by the /udges for a term of five years, is #s %ilvana (rbia )Italy*.
Other Offices
he &ourt also includes a number of semi-autonomous offices such as the 5ffice of Public &ounsel for ictims and the 5ffice of Public &ounsel for ?efence. hese 5ffices fall under the 7egistry for administrative purposes but otherwise function as wholly independent offices. he (ssembly of %tates Parties has also established a rust 3und for the benefit of victims of crimes within the /urisdiction of the &ourt and the families of these victims.
In order for the &ourt to fulfill its mandate its role and /udicial activities must be understood by a variety of audiences. In this respect, the &ourt=s outreach programme has been created to ensure that affected communities in situations sub/ect to investigation or proceedings can understand and follow the work of the &ourt through the different phases of its activities. 5utreach is one of the &ourt=s various e!ternal communications functions which also include e!ternal relations and public information as defined in the Integrated %trategy for A!ternal 7elations, Public Information and 5utreachH •
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E)ternal relations refers to the constructive dialogue between the &ourt and
%tates Parties, 1on-%tates Parties, international organizations, 1G5s and other key partners with the aim of building and maintaining support and cooperation facilitating the &ourt=s ability to fulfill its statutory mandate. *u(li! in"ormation relates to the process of delivering accurate and timely information about the principles, ob/ectives and activities of the &ourt to the public at large as well as to specific audiences, through a variety of means.
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Outrea!h is a process of establishing sustainable, two-way communication between the &ourt and communities affected by the situations that are sub/ect to investigations or proceedings, and to promote understanding and support of the /udicial process at various stages as well as the different roles of the organs of the I&&. 5utreach aims to clarify misperceptions and misunderstandings and to enable affected communities to follow trials.
5utreach activities are adapted to the conte!t in which the &ourt is operating, including the different security situations, the various stages of investigation or proceedings and the different needs of the &ourt=s audiences. he &ourt has therefore developed a general %trategic Plan for 5utreach and situation related strategies and action plans. Programmes and approaches are also adapted to particular circumstances, such as the phases of the /udicial process, the conte!t of operations and the specificities of target groups. he outreach programme conducts meetings with target groups and uses radio and other media to reach the public at large. (ction plans are prepared and implemented by staff based in the field offices in a manner that is consistent with the general principles that are the foundation of the &ourt=s outreach programme. ( relatively small complement of staff at ead9uarters, organised in the 5utreach 0nit of the Public Information and ?ocumentation %ection of the 7egistry, oversee co-ordination between the organs and offices on planning and implementing activities, and support the teams in the field.
6icti"+ and itne++e+ 5ne of the great innovations of the %tatute of the International &riminal &ourt and its 7ules of Procedure and Avidence is the series of rights granted to victims. 3or the first time in the history of international criminal /ustice, victims have the possibility under the %tatute to present their views and observations before the &ourt. Participation before the &ourt may occur at various stages of the proceedings and may take different forms. owever, it will be up to the /udges to give directions as to the timing and manner of participation. Participation in the &ourtFs proceedings will in most cases take place through a legal representative and will be conducted Lin a manner which is not pre/udicial or inconsistent with the rights of the accused and a fair and impartial trial.M 1* | P a g e
he victim-based provisions within the 7ome %tatute provide victims with the opportunity to have their voices heard and to obtain, where appropriate, some form of reparation for their suffering. It is this balance between retributive and restorative /ustice that will enable the I&& to not only bring criminals to /ustice but also to help the victims themselves rebuild their lives.
6icti"+ and itne++e+ rotection and +uort he 7ome %tatute, the 7ules of Procedure and Avidence and the 7egulations of the &ourt and of the 7egistry contain important provisions for the protection and support of victims and witnesses. hese provisions are key for the successful functioning of the &ourt, aiming to ensure that victims can participate in proceedings and witnesses testify freely and truthfully without fear of retribution or suffering of further harm. (rticle D)2* of the 7ome %tatute provides that the &ourt shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. o this end, pursuant to (rticle E)D*, the 7egistrar has set up a ictims and 4itnesses 0nit within the 7egistry to provide protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the &ourt and others who are at risk on account of testimony. 5n +C and E@ "anuary +@@C, the 7egistrar organised a roundtable on the protection of victims and witnesses at the seat of the &ourt in he ague. It was organised in order to e!plain how the protection system operates, what challenges are faced and what support the &ourt re9uires to fulfil its mandate. he round table was also intended as a discussion forum to allow different points of view to be e!changed from the perspectives of 1on-governmental organisations, other international criminal tribunals and institutional partners of the &ourt. +C and E@ "anuary +@@C - %ummary 7eport on the 7ound able on the Protection of ictims and 4itnesses (ppearing 'efore the International &riminal &ourt
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+ 1ovember +@2@ - %ummary 7eport on the %eminar on Protection of ictims and 4itnesses (ppearing 'efore the International &riminal &ourt. Vi!tims and Witnesses +nit
he ictims and 4itnesses 0nit )40* thus has a statutory mandate to provide protection, support and other appropriate assistance to witnesses and victims who appear before the &ourt. he 7ules of Procedure and Avidence further stipulate that the ictims and 4itnesses 0nit shall provide witnesses, victims who appear before the &ourt and others who are at risk on account of testimony with ade9uate protective and security measures and formulate long-and short-term plans for their protection; recommend to the organs of the &ourt the adoption of protection measures and assist witnesses when they are called to testify before the &ourt. he ictims and 4itnesses 0nit is a neutral service provider, providing e9ual services to Prosecution and ?efence. he unit does not identify witnesses or victims on its own, but acts upon referral or re9uest. (lthough protection and support services are particularly pertinent during the trial stage, the services of the ictims and 4itnesses 0nit can be re9uested and provided at all stages of proceedings, from pre-trialNinvestigation to post-trial. he ictims and 4itnesses 0nit has developed protocols and cooperation agreements with a number of national and international partners and is committed to remain at the forefront of best international practice within its areas of e!pertise. *rote!tion:
Protection aims to minimise and manage any risk that may be faced by witnesses and victims who appear before the &ourt resulting from their interaction with the &ourt. he basic fundament of any meaningful protection system lies in the adherence to good practices when interacting with victims and witnesses. hrough the establishment and maintenance of response and protection measures in the &ourt=s areas of operation and through procedural protective measures ordered by &hambers further protection can be ensured. 3inally, as a measure of last resort, protection can be provided through participation in the I&& Protection Programme. 1 | P a g e
In accordance with 7ule 2D of the 7ules of Procedure and Avidence the 7egistrar may negotiate confidential agreements on relocation and provision of support services on the territory of a %tate on behalf of the &ourt. he ictims and 4itnesses 0nit actively pursues a policy of concluding relocation and other cooperation agreements with %tates Parties and other parties in order to establish an effective national and international protection regime for witnesses, victims who appear before the &ourt and others who are at risk on account of testimony. ,u&&ort:
In order to ensure their psychological well-being, dignity and privacy, the ictims and 4itnesses 0nit provides support services and assistance to witnesses and victims who appear before the &ourt when re9uired, based on an assessment of their individual needs. he ictims and 4itnesses 0nit=s support team provides information and guidance to witnesses and victims appearing before the &ourt, as well as their accompanying persons. he support team offers assistance during the travel of victims and witnesses to the location of the hearings and provides services to them + hours per day and seven days per week. hese services include, inter alia, the provision of psycho-social support, crisis intervention, information and debriefings before and after testimony, and access to medical care when needed. he services are monitored regularly and tailored to meet the specific needs of victims and witnesses, taking into account their cultural, religious and social re9uirements. Particular attention is given to vulnerable groups, such as victims of se!ual or gender violence, children, the elderly and persons with disabilities. he 40 support services promote gender-sensitive measures to facilitate the testimony of victims of se!ual violence. he multi-disciplinary support team of the ictims and 4itnesses 0nit is e!perienced and trained in issues of trauma, se!ual violence, security and confidentiality. he support services aim to promote a setting in which the e!perience of testifying does not result in further harm, suffering or trauma. O&erations:
In addition to protection and support services, the ictims and 4itness 0nit provides other appropriate assistance to witnesses and victims who appear before the &ourt. hese include logistical arrangements and immigration 1/ | P a g e
procedures to ensure the timely and secure appearance of witnesses and victims in &ourt. he operations element within the ictims and 4itnesses 0nit moreover provides operational and logistical support to the unit=s protection and support officers and coordinates the unit=s activities in the &ourt=s areas of operation. De"en!e
he defence is a fundamental pillar of the scales of /ustice at the International &riminal &ourt, and a key component of a fair trial.
'ights o" de"en!e
he permanent International &riminal &ourt aims to be a model of /udicial administration. he &ourt is steadfast in its commitment to ensure the proceedings before it are in conformity with the highest legal standards and due process rights of suspects and accused persons.
he importance of safeguarding the rights of the defence is reflected in the &ourt=s founding instrument, the 7ome %tatute, as well as other legal te!ts of the &ourt. 3undamental principles enshrined in the %tatute include, amongst others, the grounds for e!cluding criminal responsibility and the presumption of innocence. he rights of the accused to a public, impartial and fair hearing, amongst other minimum guarantees are provided in (rticle D: of the %tatute. hese rights are effectively guaranteed by the overseeing /udicial powers of &hambers.
Assistan!e &roided to de"en!e
In addition to the provisions in the 7ome %tatute, the 7ules of Procedure and Avidence places a positive obligation on the 7egistrar to organize the staff of the 7egistry in a manner that promotes the rights of the defence consistent with principles of fair trial as defined in the %tatute. his general duty comprises several obligations, including but not limited toH facilitating the implementation of the rights of suspects and accused persons implicated in proceedings before the &ourt, and for indigent persons to have legal assistance paid by the &ourt so as to benefit from an effective and efficient defence. !0 | P a g e
T)e ICC Detention Centre he I&& ?etention &entre is located within a ?utch prison comple! in %cheveningen - on the outskirts of he ague. It functions to hold in safe, secure and humane custody those persons detained under the authority of the I&&. he I&& 7egistrar has overall responsibility for all aspects of management of the ?etention &entre, including security and order; and makes all decisions relating thereto, as stipulated in 7egulation C@ of the 7egulations of the &ourt. In fulfilling its mandate, the I&& 7egistrar endeavors to ensure the mental, physical and spiritual welfare of the detained persons within an efficient system of detention, with consideration to their cultural diversity and their development as individuals. In achieving this aim, the daily programme of the ?etention &entre allows the detained persons access to fresh air, recreational time and sports activities. hey have access to library books, news and television. ?etained persons have access to computer facilities to work on their own cases. If needed, detained persons are given the opportunity of computer training. 3ollowing the mandate of the I&&, as an e-&ourt, each detained person has a computer in hisN her cell, which is linked to one specific computer at the &ourt; only his defence has access to that computer. he ?efence can upload caserelated material which the detained person can access and make comments on. (cknowledging the right of a detained person to privacy with hisN her ?efence; and recognising the importance for himN her to communicate freely with the consular or diplomatic representative of hisN her country of origin; a detained person is entitled to privileged communication with persons falling under those two categories. his denotes that such communication shall not monitored be by the ?etention &entre staff. In addition, the detained persons are entitled to visits by a minister or spiritual advisor of their religion or belief, for which an area within the ?etention &entre is allocated. !1 | P a g e
4ith a view of maintaining family links, as provided for by the 7egulations of the 7egistry, the 7egistrar gives specific attention to visits by the family and visits by the wife or partner of the detained persons; and may take measures to assist the family in the necessary procedures thereof, if re9uired. ?etained persons are provided with suitably prepared food that satisfies in 9uality and 9uantity the standards of dietetics and modern hygiene. (dditionally, detained persons are allowed to cook for themselves; they can purchase additional items, listed on the shopping list of the ?etention &entre, as available, in order for them to ad/ust the meals provided to them, according to their taste and cultural re9uirements. Pursuant to the agreement between the I&& and the International &ommittee of the 7ed &ross )I&7&*, concluded in +C #arch +@@D, the I&7&, being the inspecting authority, has unrestricted access to the ?etention &entre. Its delegates pay unannounced visits to the ?etention &entre, with the purpose of e!amining the treatment of the detained persons, their living conditions and their physical and psychological conditions, in conformity with widely accepted international standards governing the treatment of persons deprived of liberty. ?etained persons are presumed innocent until proven guilty. If convicted of crimes under the /urisdiction of the I&&, they do not serve their sentences at the I&& ?etention &entre as it is not a facility made for the purposes of managing a regime of convicted prisoners; they are transferred to a prison outside of he 1etherlands to serve their time, sub/ect to an agreement between the I&& and the %tate of enforcement. ,ituations and re!ent !ases
2 cases in situations have been brought before the International &riminal &ourt. Pursuant to the 7ome %tatute, the Prosecutor can initiate an investigation on the basis of a referral from any %tate Party or from the 0nited 1ations %ecurity &ouncil. In addition, the Prosecutor can initiate investigations proprio motu on the basis of information on crimes within the /urisdiction of the &ourt received from individuals or organisations )LcommunicationsM*. o date, four %tates Parties to the 7ome %tatute O 0ganda, the ?emocratic 7epublic of the &ongo, the &entral (frican 7epublic and #ali O have referred !! | P a g e
situations occurring on their territories to the &ourt. In addition, the %ecurity &ouncil has referred the situation in ?arfur, %udan, and the situation in $ibya O both non-%tates Parties. (fter a thorough analysis of available information, the Prosecutor has opened and is conducting investigations in all of the abovementioned situations. 5n E2 #arch +@2@, Pre-rial &hamber II granted the Prosecution authorisation to open an investigation proprio motu in the situation of 8enya. In addition, on E 5ctober +@22, Pre-rial &hamber III granted the Prosecutor=s re9uest for authorisation to open investigations proprio motu into the situation in &te d=Ivoire.
,ituation in +ganda
he case The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen is currently being heard before Pre-rial &hamber II. In this case, five warrants of arrest have been issued against QtheR five top members of the $ords 7esistance (rmy )$7(*. 3ollowing the confirmation of the death of #r $ukwiya, the proceedings against him have been terminated. he four remaining suspects are still at large. ,ituation in the Demo!rati! 'e&u(li! o" the Congo
In this situation, five cases have been brought before the relevant &hambersH ; The Prosecutor v. osco !taganda ;The Prosecutor v. "ermain Katanga ; The Prosecutor v. #athieu !gud$olo %hui;The Prosecutor v. %alli&te #barushimana; and The Prosecutor v. 'ylvestre #udacumura. he accused homas $ubanga ?yilo, Germain 8atanga and #athieu 1gud/olo &hui and the suspect &alli!te #barushimana are currently in the custody of the I&&. he suspect 'osco 1taganda remains at large. rial &hamber I convicted #r $ubanga ?yilo on 2 #arch +@2+. 5n 2@ "uly +@2+, he was sentenced to a total period of 2 years of imprisonment. he time he spent in the I&&=s custody will be deducted from this total sentence. he trial in this case, The Prosecutor v. Thomas (ubanga Dyilo, had started on +D "anuary +@@C.
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he trial in the case of The Prosecutor v. "ermain Katanga and #athieu !gud$olo %hui started on + 1ovember +@@C. &losing statements in the case were heard from 26 to +E #ay +@2+. 5n +2 1ovember +@2+, rial &hamber II decided to sever the charges against #athieu 1gud/olo &hui and Germain 8atanga. 5n 2 ?ecember +@2+, rial &hamber II ac9uitted #athieu 1gud/olo &hui of the charges of war crimes and crimes against humanity and ordered his immediate release. 5n +2 ?ecember +@2+, #athieu 1gud/olo &hui was released from custody. he 5ffice of the Prosecutor has appealed the verdict. he verdict regarding German 8atanga will be delivered at a later stage. he confirmation of charges hearing in the case The Prosecutor v. %alli&te #barushimana took place from 2D to +2 %eptember +@22. 5n 2D ?ecember +@22, Pre-rial &hamber I decided by #a/ority to decline to confirm the charges against #r #barushimana. #r #barushimana was released from the I&&=s custody on +E ?ecember +@22, upon the completion of the necessary arrangements, as ordered by Pre-rial &hamber I. ,ituation in Dar"ur- ,udan
here are five cases in the situation in ?arfur, %udanH The Prosecutor v. )hmad #uhammad *arun +)hmad *arun- and )li #uhammad )li )bd)l/ahman +0)li Kushayb-; The Prosecutor v. Omar *assan )hmad )l ashir ; The Prosecutor v. ahar 1driss )bu "arda; The Prosecutor v. )bdallah anda )bakaer !ourain and 'aleh #ohammed Jerbo Jamus; and The Prosecutor v. )bdel /aheem #uhammad *ussein. 4arrants of arrest have been issued by Pre-rial &hamber I for #essrs arun, 8ushayb, (l 'ashir and ussein. he four suspects remain at large. ( summons to appear was issued for #r (bu Garda, who appeared voluntarily before the &hamber on 2 #ay +@@C. (fter the hearing of confirmation of charges, on 3ebruary +@2@, Pre-rial &hamber I declined to confirm the charges. #r (bu Garda is not in the custody of the I&&. wo other summonses to appear were issued for #r 'anda and #r "erbo who appeared voluntarily on 2: "une +@2@; the confirmation of charges hearing took place on ?ecember +@2@. 5n : #arch +@22, Pre- rial &hamber I unanimously decided to confirm the charges of war crimes brought by the I&&=s Prosecutor against #r 'anda and #r "erbo, and committed them to trial. he !& | P a g e
trial in the case The Prosecutor v. )bdallah anda )bakaer !ourain and 'aleh #ohammed Jerbo Jamus is scheduled to start on 6 #ay +@2. ,ituation in the Central A"ri!an 'e&u(li!
he situation was referred to the &ourt by the Government of the &entral (frican 7epublic in ?ecember +@@. he Prosecutor opened an investigation in #ay +@@:. In the only case in this situation, The Prosecutor v. JeanPierre emba "ombo , Pre-rial &hamber II confirmed, on 26 "une +@@C, two charges of crimes against humanity and three charges of war crimes, and committed the accused to trial before rial &hamber III. he trial started on ++ 1ovember +@2@. ,ituation in the 'e&u(li! o" Kenya
5n E2 #arch +@2@, Pre-rial &hamber II granted the Prosecutor=s re9uest to open an investigation proprio motu in the situation in 8enya, %tate Party since +@@6. 3ollowing summonses to appear issued on #arch +@22, si! 8enyan citizens voluntarily appeared before Pre-rial &hamber II on : and (pril +@22. he confirmation of charges hearing in the case The Prosecutor v. 2illiam 'amoei /uto and Joshua )rap 'ang were held from 2 to %eptember +@22. he confirmation of charges hearing in the case The Prosecutor v. 3rancis Kirimi #uthaura and 4huru #uigai Kenyatta took place from +2 %eptember to 6 5ctober +@22. 5n +E "anuary +@2+, the /udges declined to confirm the charges against enry 8iprono 8osgey and #ohammed ussein (li. Pre-rial &hamber II confirmed the charges against 4illiam %amoei 7uto, "oshua (rap %ang, 3rancis 8irimi #uthaura and 0huru #uigai 8enyatta and committed them to trial. 5n +C #arch +@2+, the I&& Presidency constituted rial &hamber and referred to it the two cases. 5n 22 #arch +@2E, the Prosecutor filed a notice to the "udges to withdraw charges against 3rancis 8irimi #uthaura. he trial against 4illiam %amoei 7uto and "oshua (rap %ang is scheduled to start on + #ay +@2E and the trial against 0huru #uigai 8enyatta is scheduled to start on C "uly +@2E. ,ituation in Li(ya
5n +D 3ebruary +@22, the 0nited 1ations %ecurity &ouncil decided unanimously to refer the situation in $ibya since 26 3ebruary +@22 to the I&& Prosecutor. 5n E #arch +@22, the I&& Prosecutor announced his decision to open an investigation in the situation in $ibya, which was assigned by the !' | P a g e
Presidency to Pre-rial &hamber I. 5n +: "une +@22, Pre-rial &hamber I issued three warrants of arrest respectively for #uammar #ohammed )bu #inyar "adda5i, 'ai5 )l1slam "adda5i and )bdullah )l'enussi for crimes against humanity )murder and persecution* allegedly committed across $ibya from 26 until at least + 3ebruary +@22, through the %tate apparatus and %ecurity 3orces. 5n ++ 1ovember +@22, Pre-rial &hamber I formally terminated the case against #uammar Gaddafi due to his death. he two other suspects are not in the custody of the &ourt. ,ituation in C.te d/Ioire
&te d=Ivoire, which is not party to the 7ome %tatute, had accepted the /urisdiction of the I&& on 2 (pril +@@E; more recently, and on both 2 ?ecember +@2@ and E #ay +@22, the Presidency of &te dFIvoire reconfirmed the country=s acceptance of this /urisdiction. 5n E 5ctober +@22, Pre-rial &hamber III granted the Prosecutor=s re9uest for authorisation to open investigations proprio motu into the situation in &te d=Ivoire with respect to alleged crimes within the /urisdiction of the &ourt, committed since + 1ovember +@2@, as well as with regard to crimes that may be committed in the future in the conte!t of this situation. 5n ++ 3ebruary +@2+, Pre-rial &hamber III decided to e!pand its authorisation for the investigation in &te d=Ivoire to include crimes within the /urisdiction of the &ourt allegedly committed between 2C %eptember +@@+ and + 1ovember +@2@. 5n +E 1ovember +@22, Pre-rial &hamber III issued a warrant of arrest under seal in the case The Prosecutor v. (aurent "bagbo for four counts of crimes against humanity. he arrest warrant against #r Gbagbo was unsealed on E@ 1ovember +@22, when the suspect was transferred to the I&& detention centre at he ague, by the Ivorian authorities. 5n 6 ?ecember +@22, Pre-rial &hamber III held an initial appearance hearing. he confirmation of charges hearing took place between 2C and + 3ebruary +@2E. 5n ++ 1ovember +@2+, Pre-rial &hamber I decided to unseal a warrant of arrest issued initially on +C 3ebruary +@2+ against %imone Gbagbo for four counts of crimes against humanity allegedly committed in the territory of &te dFIvoire between 2D ?ecember +@2@ and 2+ (pril +@22. #rs. Gbagbo is not in the custody of the &ourt. ,ituation in Mali
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5n 2D "anuary +@2E, the 5ffice of the Prosecutor opened an investigation into alleged crimes committed on the territory of #ali since "anuary +@2+. he situation in #ali was referred to the &ourt by the Government of #ali on 2E "uly +@2+. (fter conducting a preliminary e!amination of the situation, including an assessment of admissibility of potential cases, the 5P determined that there was a reasonable basis to proceed with an investigation. he situation in #ali is assigned to Pre-rial &hamber II.
A I1A71(I51($ &7I#I1($ &507 5?(Y I would like to turn ne!t to where the &ourt is today. hree %tates Parties have referred situations occurring on their own territories to the &ourt and in addition, as I mentioned earlier, the %ecurity &ouncil has referred the situation in ?arfur, %udan, a non-%tate Party. (fter analyzing the referrals for /urisdiction and admissibility, the Prosecutor began investigations in three situationsH 0ganda, the ?emocratic 7epublic of the &ongo, and ?arfur, %udan. he Prosecutor is also monitoring five other situations. In #arch this year, the first wanted person was surrendered to the &ourt. #r. homas $ubanga ?yilo, a national of the ?emocratic 7epublic of the &ongo, is alleged to have committed war crimes; namely, conscripting and enlisting children under the age of 26 and using them to participate actively in hostilities. he confirmation of charges against #r. $ubanga is scheduled for %eptember and if the charges are confirmed, the trial will begin thereafter. (rrest warrants have also been issued in the situation in 0ganda for five members of the $ordFs 7esistance (rmy, including its leader "oseph 8ony. In that case, the alleged crimes against humanity and war crimes contained in the warrants include se!ual enslavement, rape, intentionally attacking civilians, and the forced enlistment of child soldiers. he arrest warrants were initially issued under seal because of concerns about the security of victims and witnesses. he warrants were only made public once the Pre-rial &hamber was satisfied that the &ourt had taken ade9uate measures to ensure security. his illustrates a ma/or difference between the I&& and other international tribunals, which by and large were dealing with crimes that had been committed in the past in the course of conflicts that were over. he I&& deals with crimes that continue to be committed in the course of conflicts that are ongoing. (s a result, the I&& faces many challenges in particular in relation to its field activities and security. !, | P a g e
A 3007A 53 A I1A71(I51($ &7I#I1($ &507 3inally, I would like to turn to what we can e!pect from the &ourt and from the wider system of international /ustice in the future. (s investigations and trials proceed, the &ourt of course recognizes that it has the primary responsibility to demonstrate its credibility in practice through fair, impartial and efficient proceedings consistent with due process and proper administration of /ustice. 'ut the &ourt will never be able to end impunity alone. Its success will depend upon the support and commitment of %tates, international organizations, and civil society. he &ourt is complementary, as I said, to national /urisdictions and %tates will continue to have the primary responsibility to investigate and prosecute crimes-the &ourt being, as I said, only a court of last resort. here will be situations where national systems do not work properly or are unable to work. 'ecause the &ourtFs /urisdiction is limited to national and territories of %tates Parties, continued ratification of the %tatute is essential to the &ourt having a truly global reach. 4hen the &ourt does act, it will re9uire cooperation from %tates at all stages of the proceedings, such as by e!ecuting arrest warrants, providing evidence, and enforcing sentences of the convicted. &ooperation is absolutely crucial. 3or e!ample, without sufficient support in arresting and surrendering persons, there can be no trials. 1ot only the %tates where crimes were committed or wanted persons are located can help, but all %tates in a position to provide cooperation can assist the &ourt. 4hat %tates wanted when they created the I&& was a strong /udicial institution, but not an institution that had at its disposal the normal tools of any national court. he I&& has no army. he I&& has no police. hatFs what %tates wanted, and-having wanted that system-now %tates need to cooperate with the &ourt to ensure that the system works. International organizations also provide critical support for the &ourt. he support of the 0nited 1ations is particularly important in this regard. he 0nited 1ations and the &ourt cooperate on a regular basis, both in our field activities and our institutional relations. In 5ctober, +@@, the %ecretary General of the 0nited 1ations and I concluded a relationship agreement, which was later supplemented by an agreement with the 0.1. #ission in the ?emocratic 7epublic of &ongo. he &ourt is also developing its cooperation with regional organizations. In (pril, the &ourt entered into a cooperation agreement with the Auropean 0nion. 4e hope to do the same with the (frican 0nion in the near future. here is also a role for cooperation by the 5rganization of (merican ! | P a g e
%tates )B5(%B*. he 5(% has been a strong proponent of the &ourt. &ourt officials, including myself, have participated in a number of meetings of the 5(%. hen we come to non-governmental organizations )B1G5sB* andcivil society more broadly, which are also instrumental to the work of the &ourt. 1G5s have played a large role in urging ratification of the %tatute. hey have assisted %tates in developing legislation implementing the 7ome %tatute. $ocal 1G5s may possess knowledge which is directly relevant to the &ourtFs work in the field. 1G5s also continue to have a critical role in disseminating information about and building awareness of the I&&. (s I said at the outset, academic institutions such as this (cademy have a particularly important role in relation to the &ourt. It is my e!perience, truly, that ignorance is one of the biggest obstacles to the success of the &ourt. 5ften, opposition to the &ourt is based on misconceptions which can be easily avoided. I believe that the more people understand the &ourt, the more it will be accepted. 5f course, for that to happen there needs to be a dialogue. If there is no dialogue, the chances of mutual understanding are much lower. In conclusion, I would say that the creation of the I&& was a truly historic achievement, more than fifty years in the making, but its creation was only the beginning. he &ourt now stands as a permanent institution capable of punishing perpetrators of the worst offenses known to humankind. Indeed, as early as +@@, the 0.1. %ecretary General stated that the &ourt Bwas already having an important impact by putting would-be violators on notice that impunity is not assured and serving as a catalyst for enacting national laws against the gravest international crimes.BF Indeed, we at the &ourt who have a system of monitoring media reports on issues of international criminal /ustice and a fairly broad set of related issues do know how much notice is taken of the &ourt in many situations some situations which are already under the /urisdiction of the &ourt and many other situations elsewhere. o be fully effective, we must continue our efforts to ensure that the &ourt has the support necessary to dispense /ustice as fairly and efficiently as possible. If there is only one thing that you should retain from this piece, it is that the &ourt will do whatever it can to be as credible as possible, but that it will only succeed with concrete, tangible support. Criti!isms o" the International Criminal Court !/ | P a g e
A0 The *oliti!ally Motiated *rose!utor
&learly, what many I&& opponents fear most is a prosecutor who initiates proceedings proprio motu for purely political reasons. "ohn 7. 'olton, former (merican Permanent 7epresentative to the 01, has suggested that the 0nited %tates should be mainly concerned Lfor the President, the &abinet officers who comprise the 1ational %ecurity &ouncil, and other senior civilian and military leaders responsible for our defense and foreign policy. hey are the real potential targets of the politically unaccountable prosecutor.M owever, safeguards have been built into the 7ome reaty precisely to guard against politically motivated prosecutions. International crime is inherently political. (nyone who assumes the prosecutorial role at the I&& will, of course, come with his or her political perspective on the world and its conflicts, and e!ternal political pressure may be e!erted in an effort to bring a complaint when it might not be /ustified or even helpful in a particular political conte!t. owever, several factors O notably, a process of vigorous internal indictment review, such as that in place at the I&Y and I&7; the re9uirement of confirmation by a /udge; and the inevitable ac9uittal that would result from an unfounded prosecution O likely prevent any abuse of power by a politically driven prosecutor. In fact, the I&&=s goal is to alleviate the adverse effect of political pressures in the realm of international /ustice. %tates have historically been reluctant to e!ercise universal /urisdiction in respect of grave crimes, due to political pressures from other states that wish to avoid e!posure of their complicity. he I&& serves to shift some of this risk from individual states and thereby overcome political obstacles to prosecution. %ome states also opposed the proprio motu power of the prosecutor on the ground that the office would be overwhelmed with frivolous complaints and would have to waste precious resources addressing them. he real challenge, however, might actually lie in choosing from among meritorious complaints the appropriate ones for intervention, rather than weeding out the weaker ones. 3or e!ample, before the appointment of the current prosecutor, more than +@@ complaints had been registered, but the prosecutor has been able to dispose 9uickly of large 9uantities of unsubstantiated allegations, as a large percentage do not meet the /urisdictional re9uirements. 10 ,oldiers Con"used (y the La%s o" War
#0 | P a g e
(nother concern that finds e!pression in the debate is that the I&& endangers soldiers because its e!istence will prevent them from acting when they should, for fear of potential prosecution. hose who e!press this opinion contend that if the prosecutor initiates proceedings without supervision by any national government, cases could be pursued without understanding the dilemmas that are faced by soldiers in armed conflict. In response to this assertion, (dam 7oberts suggests that many senior 08 officers take a positive view of the laws of war. his is not an isolated perspective. In the 2CC2 Gulf 4ar and in the 2CCC 8osovo conflict, western forces found that the law actually assists in the professional and effective conduct of military operations. In addition, (rticle of the 7ome %tatute limits the prosecution of soldiers for isolated incidents, regardless of whether they might be considered criminal acts. I&& /urisdiction is meant to apply to, in particular, war crimes that are committed as part of a plan or policy or part of a large-scale commission of such crimes. C0 A 1arrier to *ea!e and 'e!on!iliation
#any commentators have e!pressed their concern that the I&& may stand as an obstacle to reconciliation and the resolution of conflicts. In the past, many countries, including %outh (frica, &hile and, to some e!tent, Great 'ritain in relation to 1orthern Ireland, have granted amnesties in order to end conflicts. he fear is that as the I&& becomes involved in ongoing or recent conflicts, wars will be fought longer, peace processes will be disrupted and leaders will be reluctant to relin9uish power if facing indictment. 0ltimately, the argument is that removing the possibility for amnesty removes incentives for settlement, and may even encourage leaders to remain in power. &onversely, others suggest that amnesty is not the reason that dictators relin9uish power. hey argue that instead, dictators leave only when they are weak and vulnerable and desperate to get whatever they can, not whatever they want. #oreover, an indictment does not necessarily have a negative effect. 3or e!ample, the arrest of (ugusto Pinochet in $ondon in 2CC did not destabilize &hile. 5pinion polls at the time suggested that the arrest had no influence on voting intentions, that most were certain of his guilt and, although there was a preference that /ustice be meted out at home, most realized that this was a practical impossibility. %imilarly, while it cannot yet be said what effect the indictment of #ilosevic had in his downfall, it arguably did not result in his clinging stubbornly to power.
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?uring the I&& preparatory phase and in 7ome in 2CC, the issue of how to address amnesties was never discussed, in part due to pressure from human rights groups. %ignificantly, (rticle 6E of the %tatute does allow for the prosecutor to refuse to proceed with an investigation or prosecution if it would not serve the interests of /ustice. (s discussed earlier, this decision is sub/ect to review by the Pre-rial &hamber. he amnesty versus prosecution debate is at issue in at least two of the situations currently under investigation by the I&& prosecutor. In ?arfur, the arrest warrant issued for the %udanese President, al-'ashir, is feared by some as a potential threat to the peace process and as endangering humanitarian and peacekeeping operations on the ground. owever, others argue that the threat of an arrest warrant has encouraged the government to reach out to its domestic rivals during the conflict, thus enhancing prospects for peace. In 0ganda, some observers hold that the I&& arrest warrants were critical in bringing "oseph 8ony and others to the negotiating table. owever, the $7( leaders are now demanding to be shielded from prosecution in e!change for their further participation in the peace process. (s such, international and 0gandan opposition to the role of the I&& is mounting. hus far, the prosecutor has refused to withdraw the warrants. D0 The ICC *ur&orts to E)er!ise 2urisdi!tion Oer Non3*arty Nationals
he 0% government has e!pressed concern that the 7ome reaty purports to e!ert /urisdiction over 0% servicemen even if the 0nited %tates has not ratified. In fact, following the principle of universal /urisdiction accepted under international law, any state has the right to prosecute the crimes defined in the 7ome reaty O genocide, war crimes and crimes against humanity O regardless of /urisdictional links such as nationality and territoriality. he 0% itself has historically supported this principleH %ince its beginnings in the 2th century, the 0% has recognized the power of its courts to prosecute individuals for the act of piracy; and by participating in the 1uremberg and okyo tribunals it has clearly recognized universal /urisdiction with respect to war crimes and crimes against humanity. he (merican 7estatement of $aw confirms thisH ( state has /urisdiction to define and prescribe punishment for certain offences recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hi/acking of aircraft, genocide,
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war crimes, and perhaps certain acts of terrorism, even where none of the bases of /urisdiction S is present. 7ecent 0% court cases have indicated an increased reliance on the principle of universality. It would seem to follow that the I&& would be competent as a state to prosecute serious international crime. E0 Cost and Delay
(s the I&& matures, critical voices are mounting with respect to the e!pense and delay involved in I&& proceedings. 'y early +@@, the I&& had cost the international community over TD@@ million and had yet to be anywhere near its first conviction. he $ubanga case, the case that had advanced the furthest, had essentially been derailed by late +@@. Aven proponents of the I&& have begun to ask whether the I&& is losing credibility. 5n the other hand, although ma/or prosecutions proceeded slowly, things are not at a standstill. hey are even beginning to move faster O between 1ovember +@@: and #ay +@@ almost :@@ application process filings and decisions were made at the I&&; and status, rights and modalities for victim participation during investigation, and at the pre-trial and trial stage, were also determined. he problem is that success at the procedural level inevitably slows progress in the actual trials, bogging down the larger issues at play. he main 9uestion is whether the I&& can retain its preventative power in the face of such delays. he I&& will remain credible only as long as it can remain a powerful symbol for deterrence. 40 The 4o!us on A"ri!a
3inally, one recent concern of some significance is the I&& prosecutor=s e!clusive focus on sub-%aharan (frica. ( number of critics have e!pressed serious reservations about this practice, and voice fear about bias and the perception that the I&& is yet another instrument of foreign intervention in a long history of 4esternN1orthern interference in (frican affairs. Aven if various geopolitical pressures have simply made it easier for the prosecutor to begin investigations in (frica rather than elsewhere, commentators contend that this sends a negative signal about how the I&& may continue to work, and they maintain that the I&& cannot investigate (frican crises alone. Proponents of the I&& raise a number of e!planations for the &ourt=s concentration on (frica. 3irst, each of the situations under investigation has ## | P a g e
been initiated upon referral by an (frican government or the 01 %ecurity &ouncil. It is difficult to claim that the prosecutor is biased against (frica in his investigations if three of the four investigations were re9uested by the governments of those countries themselves. he prosecutor has also noted that he has begun his investigations because it is in (frica that the breaches of humanitarian law are most severe. %e!ual assault, forced displacement and massacre are issues that are present on a massive scale in the countries under investigation. e says it is only natural that they should come under investigation first. 1ational legal systems are also weak in (frica, so the complementarity principle has led to I&& /urisdiction faster than in some other states. 3inally, it is important to note that although the prosecutor has initiated official investigations in (frica only thus far, he is also seriously monitoring the situation in other countries around the world, including (fghanistan, Georgia and &olombia.
Con!lusion
?espite criticism of the I&&, it is important to remember that the &ourt is a LbabyM institution O essentially the first of its kind. 'uilding upon the history of 1uremberg and the I&Y and I&7, the I&& is dealing with comple! humanitarian law issues in a way that could not even have been contemplated 6@ years ago. International criminal law has grown in leaps and bounds in the last decade. rials may be slow and costly, but the mere fact that they are occurring is a milestone. he success of the I&& needs to be /udged long-term instead of by short-term actions. It is a body that is slowly but surely showing that it can work, together with national and regional courts, truth and reconciliation commissions and other peace and /ustice processes, to create a powerful role for international criminal law.
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