Essay: International criminal law

CHAPTER ONE
1.1 BACKGROUND AND PREAMBLE
Dating far back to 17th July 1998, one hundred and twenty (120) States adopted a statute in Rome – referred to as the Rome Statute of the International Criminal Court (“the Rome Statute”) – founding the International Criminal Court (ICC). History was made on that day when different states resolved acceptance of the legal power of a permanent ICC for the prosecution of the crime offenders of the most heinous crimes entrusted in their domain or by their nationals after the entry into force of the Rome Statute on 1 July 2002. It is a point to note that the International Criminal Court (ICC) is not an alternate for national courts. In line with the Rome constitution, it is the responsibility of each and every State to practice its criminal jurisdiction over those creditworthy for international crimes. The International Criminal Court can only interpose where a State is lacking or unwilling veritably to embark on the investigation and prosecute the perpetrators. The primary mission of the ICC is to assist in putting an end to exemption for the offenders of the most grievous crimes of concern to the international community at large.
Therefore, an adequately and fully updated populace can add to guaranteeing lasting respect for and the social control of international justice wholly. The main objective of this study is therefore to abreast on the guarantees of the accused in the presence of the International Criminal Court (ICC) during pre-trial and post-trial sessions.
1.2 INTRODUCTION
Historically, the International Criminal Court (ICC) is greatly different from other international criminal courts established prior 2002. In order to assess the present situation, there should be a look at the characteristics of the previous courts. A call to establish a new political order has come forth after the World War I, the first war spread over a very wide area, which profoundly had effect on the warring parties and even the parties not called to case, in terms of economic, military, and political aspects, and disrupted the international balance of power. The United States of America (USA), the United Kingdom, and France, the states which emerged as victors from the war attempted to prosecute the high ranking commanders and politicians, who were in charge during the war, of the defeated states such as the Ottoman Empire, Austria, and Germany by establishing an international court for hearings. The legal processes started for numerous officials who were seen as war criminals in this ad hoc court. However, there were repugnances in this court, so that no prosecutions were filed against many German officials. Some prosecutions against the Republic of Turkey which has taken the place of the Ottoman Empire were deliberated in the first place, but these proceedings could not be prompted due to expectations about Turkey‘s main potential alliance. Although it was known that there were also some officials of the victorious states, who committed war crimes, there was no attempt made at all to prosecute these persons either. Despite the suitability between the demand of prosecuting war criminals and the curve of international law, this demand became suspicious due to the tendency toward prosecuting the officials of the defeated states only.
Resentment of German state officials, who were chief players in the massive destruction, was referred to be appropriate on behalf of the international community for same reasons after the Second World War. Based on the requirement of preventing exemption of those who brought war and of prosecuting them, Nuremberg International Military Tribunal was founded in Nuremberg, where some German officials were tried. A similar court was established in Tokyo and some Japan officials were tried there too. The Nuremberg Tribunal, which was established based on the treaty, has some negative aspects like the jurisdiction of trial in absentia. Furthermore, these legal proceedings served as a scene of political information for self-justification of France, the United Kingdom, the USA, and the Soviet Union. However, these prosecutions are important in terms of identifying international crimes and exemplifying the fact that an action not looked at as a crime in national law can be considered as a crime in international law definitely. In addition to war crimes which have been identified since the 19th century, war crimes, genocide and crimes against humanity have also come up and identified as new types of crime during the trials of crime offenders.
A common characteristic of post-war courts is the effort to know major crimes in the international arena. Despite all the issues and problems, the allied states have taken steps seen as significant to establish legal concepts. It was intended to be shown that, those who breach international law will not go unpunished whatever their positions and responsibilities are in the nation.
From the view of the Realist Theory, victorious states tried to keep the balance of power in the international system and that degenerating states were punished in this system. According to this theory, while attempting to create new norms by establishing a court, establishing an international order functioning in their own interest may become a priority. Considering this aspect, efforts to internationalization of justice can be construed as an intention to provide a source of genuineness for their own political orders, power relations, and organizations. However, for the Idealist Theory, the Court has a meaning for giving serious response by the international community to the taxonomical fierceness and the deaths committed and conducted by Germans on Jews and for resenting such actions on behalf of the international community beyond the legal power of nation-states. The concept of international justice would be ameliorated in this regard. Based on the fact that none of the theories is working positively on its own in practice, it may be said that the Nuremberg Tribunal is a common result of these two perspectives.
After the Nuremberg Tribunal, International Criminal Courts (ICC) became non-adaptive because of the politics of Cold War carved up into camps. Indeed, international law rested behind the scene during this period. After 1990s the international criminal courts were established in 1993 and 1994 in the Former Yugoslavia and Rwanda respectively, for prosecuting and passing judgement on individuals who seem responsible for the crimes committed during the conflicts in both territories. By the end of the Cold War, historical series which had been paused during the Cold War started to grow more fiercely. Although being founded after the conflicts, these tribunals are distinct from their predecessor in Nuremberg and Tokyo. In fact, in the late 1940s, one of the projects set forth in the United Nations as regards to human rights was establishing an international criminal court. The International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda, which was established incidental to conflicts and serious human rights violations, have an impact coinciding to this tendency and hastening process, regarding the permanent court. The violence exposed with the end of the Cold War in addition to keeping this violence up by communication channels like newspapers and televisions has aided the general public response and sensitivity to human rights. The courts in the Former Yugoslavia and Rwanda have been established by means of this concern and the desire to overcome the concepts of international law which were remained undervalued during the Cold War. The International Criminal Tribunal for the Former Yugoslavia has been founded by Security Council Resolution, No. 808 based on 41st and 42nd articles of the 7th Chapter of the United Nations Charter. The 7th Chapter of the Charter entitles the Security Council to impose economic sanctions, engage in diplomatic ideas, and to reconstruct the peace on behalf of the international community in case of threat to peace, breach of the peace, and act of aggression against humanity.
The Security Council adopted a declaration regarding authorisations and then established this Court in 1993 to investigate severe violations of law within the boundary of former Yugoslavia. In fact, there is no idiom in the relevant section related with the subject directly for establishing such type of a court. But, the authority has been used based on these articles. Under the normal considerations, establishing such a court is forecasted within the frame of a many-sided agreement, rather than an inaugural taken by the Security Council. A multilateral agreement provides benefits for states for decision-making about establishing a court and for the conditions exposed to their national sovereignty or the relevant limitations on their national sovereignty. However, the Security Council preferred to establish a court binding the member states speedily after the commission report.
Prosecuting the persons involved in horrible violations in the Former Yugoslavia‘s territory instantly were found necessary from a humanistic perspective and in terms of barricading the dispute, preventing dissemination thereof, and finding political solutions. Self-authorization of the Security Council to establish courts and the possibility of exercising this authority in the future have not met with serious objections from the international community. The Court has equipped with powers like a national court to demand delivering perpetrators and evidences, to conduct proceedings and even to collect evidences against the suspect. According to Bodley, it has almost gained an international feature. In the case of Nuremberg Court, the war criminals were prosecuted by an international court. However, considering the fact that Germany was defeated and won and under the influence of the victorious states and the potential of the Court, which was established by the victorious states, in obtaining all evidences without any intermediary of a sovereign state, supersession of the subsisting national courts by the International Criminal Tribunal for the Former Yugoslavia can be understood to be a quite distinct and impressive improvement. While the Tribunal was entitled to collaborate with the national courts, it could have the preference as well. Put another way, a case tried in a national court can be transferred to the international court upon request.
The International Criminal Tribunal for Rwanda has been established in 1994 and deployed in Arusha, the capital city of Tanzania, to investigate and prosecute the violations of law that happened in Rwanda during the period between January 1st and December 31st, 1994, based on Resolution No. 955 by the United Nations Security Council. This Tribunal is one of the significant and uncommon developments in terms of international law. The structure and organization of the Tribunal, international crimes under its jurisdiction, senior officials among those who have been put on trial, and its purpose and objective of establishment to achieve social and regional peace on the initiative of United Nations Security Council (UNSC) are some of the special characteristics of the Tribunal. More than twenty years have passed since the establishment of the Tribunals in the Former Yugoslavia and Rwanda. Since established temporarily for only a certain location and time span (ad hoc), both tribunals have gotten to the stage of termination. In this situation, their jurisdiction and the remaining pending case will be transferred either to national courts or to the Residual Mechanism for Criminal Tribunals. Both Tribunals left their great experience and an idealistic law view and perspective for the international law while their missions are coming to a close. In addition to many contributions of these tribunals to law and politics, it is known that they have been exposed to many criticisms as well.
The will of international lawyers and legal persons to establish a new understanding of international law after the Cold War and to help international law, has created an speedily effect both on international criminal tribunals already established in the Former Yugoslavia and Rwanda and for establishing a permanent international criminal court. The way to a permanent international court paved by the restrictions of criminal tribunals to a specific region, event, and period due to their ad hoc characteristics. The need to punish individuals affianced in and caused disputes all over the world, the growth in the sensitivity of the international community, and the convenience of the international politics and environment at a new understanding and activeness of international law coated the way for a new, universal and permanent court by the end of the Cold War.
Apart from the authorisation to enlist the statute of an international criminal court deduced from Article VI of the Genocide Convention, in the post-war euphoria about war crimes prosecution, the General Assembly (GA) also had requested the institute to prepare the ‘Nuremberg Principles’, an activity it accomplished in 1950, and the ‘Code of Crimes Against the Peace and Security of Mankind’, an event that took a longer period of time. Surely, larger chunk of the actions on the draft statute of an international criminal court and the draft code of crimes went on within the Commission in latitude, almost as if the tasks were unconvincingly correlated. The cat’s-paw can be known by analogy with domestic law. They go in line in a general sense to the conceptualizations of crimes and general maxims determined in criminal or penal codes (‘code of crimes’), and the institutional and adjective framework found in codes of criminal.
In the meantime, aboard the work of the International Law Commission, the General Assembly also set up a special commission entrusted with the responsibility of drafting the statute of an international criminal court. A total of seventeen (17) countries participated in drafting and submission of the report in 1952. However, another citizens committee was formed by the General Assembly to critique and review the draft statute in accordance with the comments by Member States, which was submitted to the General Assembly in 1954. The International Law Commission (ICC) ensured to make considerable advance on its draft code and in reality submitted a copy of the proposal in 1954. During that time, the General Assembly intentionally debarred the mandates, apparently pending the most intense task of conceptualizing the crime of aggression. In fact, political tensions related with the Cold War had made more advances on the war crimes agenda mostly infeasible.
The General Assembly finally embraced a definition of aggression, in 1974, but the act did not directly resume on the proposed international criminal court. In 1981, the General Assembly made it the responsibility of the International Law Commission to revive the work on its draft code of crimes. Doudou Thiam was designated the special rapporteur of the Commission, and he produced annual reports on various aspects of the draft code for more than a decade. Thiam’s work, and the associated debates in the Commission, addressed a range of questions, including definitions of crimes, criminal participation, defences and penalties. An adequately and carefully revised version of the 1954 draft code was provisionally retained by the Commission in 1991, and then sent to Member States of the ICC for their comments and reactions.
The code did not inevitably involve an international jurisdiction; that aspect of the work was only broached in 1989, the year of the fall of the Berlin Wall. Trinidad and Tobago, one of enormous Caribbean States blighted by narcotics issues and correlated transnational crime issues, initiated a declaration in the General Assembly commanding the International Law Commission to deliberate the subject of an international criminal court within the setting of its work on the draft code of crimes. Special registrar Doudou Thiam made a primary presentment on the subject in 1992. Further, by 1993, the Commission had geared up a draft legislative act, this time under the direction of Special Rapporteur James Crawford. The draft statute was investigated that year by the General Assembly, which spurred the Commission to finish up its work. The following year, in 1994, the Commission reported and submitted the final version of its draft statute for an international criminal court to the General Assembly.
The International Law Commission’s draft statute of 1994 concentrated on procedural and organisational issues, suspending the inquisition of defining the crimes and the related legal principles to the code of crimes, which it had yet to finalise. Some years later (2 years plus), the Commission adopted the final draft of its ‘Code of Crimes against the Peace and Security of Mankind’ in year 1996. The draft statute of 1994 and the draft code of 1996 played a germinal role in the formulation of the Statute of the International Criminal Court. The International Criminal Tribunal for the former Yugoslavia has commented that ‘the Draft Code is an authoritative international tool which, contingent upon the main question at issue, may;
(i) consist evidence of customary law; or
(ii) exuviate light on customary rules which are of not authentic content or are in the process of formation, or, at the very least;
(iii) be declarative of the legal views of eminently most qualified publicists representing the major legal systems of the world’.
While the draft statute of an international criminal court was being conceived in the International Law Commission, events obliged the setting up of a court on an ad hoc basis in order to address the heinous crimes being committed in the former Yugoslavia. Already, in mid-1991, there had been discussions in Europe of constituting a tribunal to prosecute Saddam Hussein and other Iraqi leaders as an event following the Gulf War. In late 1992, as war raged in Bosnia, a Commission of Experts founded by the Security Council described a range of war crimes and crimes against humanity that had been committed and that were still on. It inspired the establishment of an international criminal tribunal, a thought that had originally been advocated by Lord Owen and Cyrus Vance, who themselves were dissembling on a proposal from French constitutional judge Robert Badinter. The proposal was approved by the General Assembly in a December 1992 declaration. The rapporteurs appointed Hans Correll, Gro Hillestad Thune and Helmut Turk, following the Moscow Human Dimension Mechanism of the Conference on Security and Cooperation in Europe took the idea to machinate a draft statute. Also, several governments deferred draft proposals or other than commented upon the creation of a tribunal.
Furthermore, the Security Council adjudicated upon the establishment of a tribunal designated to prosecute ‘persons responsible for flagitious infraction of international humanitarian law charged in the territory of the former Yugoslavia since 1991’ on 22 February 1993. The draft advised by the Secretary-General was adopted without making any change by the Security Council in its Resolution 827 of 8th May, 1993. In accordance with the Secretary-General’s report, the tribunal was to enforce rules of international humanitarian law that are ‘more than any doubt part of the accustomed law’. The Statute plainly took over from the work then in the making within the International Law Commission on the statute and the code of crimes, in effect joining the two into an instrument that both conceptualised the crimes and constituted the function before the court. The Tribunal’s confined jurisdiction was limited within the boundary of the former Yugoslavia. With regard, it was ennobled to prosecute offences starting in 1991, deserting its end-point to be established by the Security Council.
Acting on a request from Rwanda in November 1994, the Security Council voted to establish a second ad hoc tribunal, confided with the prosecution of genocide and other life-threatening violations of international humanitarian law committed in Rwanda and in contiguous countries during the year 1994. Its Statute tightly corresponds that, of the International Criminal Tribunal for the Former Yugoslavia, although the war crimes provisions mull over the fact that the Rwandan genocide took event within the confinement of a clearly internal armed conflict. The resolution making the Tribunal evinced the Council’s ‘grave concern at the reports designating that genocide and other systematic, widespread and egregious violations of international humanitarian law have been consecrated in Rwanda’, and referred to the reports of the Special Rapporteur for Rwanda of the United Nations Commission on Human Rights, as well as the prelim report of the Commission of Experts, which the Council had founded earlier in the year.
The Yugoslav and Rwandan Tribunals are in-force joined at the hip, sharing not only mostly identical statutes but also some of their institutions. The Prosecutor is the same for both tribunals, as is the composition of the Appeals Chamber. The aftermath, at least in theory, is economy of scale as well as similarity of both prosecuting attorney policy and appellate jurisprudence. The first major discernment by the Appeals Chamber of the Yugoslav Tribunal, the Tadic jurisdictional decision of 2nd October 1995, elucidated necessary legal issues in association to the creation of the body. It also directed the Judicature towards an advanced and progressive perspective of war crimes law, going well outside the Nuremberg precedents by adjudging that crimes against humanity could be committed in peacetime and by founding the punishability of war crimes during internal armed discord.
Accompanying rulings of the ad hoc tribunals on an assortment of matters fed the debates on creation of an international criminal court. The discoveries in Tadic with relation to the scope of war crimes were importantly incorporated into the Statute of the International Criminal Court. Its obiter dictum that crimes against humanity could be committed in moment of peace and not only during wartime, as it had been illustrated at the Nuremberg, was also approved. Other decisions, such as a contentious holding that excluded appeal to a defence of force, actuated drafters of the Statute to endorse a provision ensuring incisively the opposite. The issue of ‘national security’ information, dismissed by the International Law Commission, was thrust to the vanguard of the deliberations after the Tribunal commanded Croatia to present government documents, and resulted in one of the lengthiest and most oracular provisions in the final Statute. The Rome Conference also departed from some of the advances aimed by the Security Council itself, choosing, for instance, to acknowledge a limited defence of high-ranking orders, whereas the Council’s drafters had favoured simply to bar this with an unambiguous provision. But the Tribunals did more than simply set legal case law to guide the drafters. They also left a reassuring model of what an international criminal court might look like. This was particularly necessary in debates concerning the role of the Prosecutor. The integrity, neutrality and good judgment of Richard Goldstone and his heir, Louise Arbour, replied those who warned of the dangers of a reckless and carefree ‘Dr Strangelove prosecutor’.
1.3 DRAFTING OF ICC STATUTE
The world organization, United Nations General Assembly resolved to pursue work towards the founding of an international body, which will be bestowed with the power to persecute offenders in the international community (ICC) in 1994, taking the International Law Commission’s draft statute as a basis. It convoked a committee, which met at least two times in 1995. It was unravelled that debates within the Ad Hoc Committee showcased profound differences among States about the complexion of the future court, and some delegations went further to challenge the overall possibility of the project, although their union became intensively subdued as the negotiations and bargaining progressed. The International Law Commission (ICC) draft conceived of a court with ‘primacy’, much like the ad hoc tribunals for the Former Yugoslavia and Rwanda. If the court’s prosecutor decides to go further with a case, inland courts could not pre-empt this by taking it upon themselves to do the job. In meetings of the Ad Hoc Committee, a new construct nurtured its head, that of ‘reciprocity’, by which the court could only exert jurisdiction if domestic courts were defiant or unable to prosecute. Another departure of the Ad Hoc Committee from the International Law Commission draft was its pressure that the crimes within the court’s jurisdiction be conceptualized in some detail and not simply itemized. The International Law Commission had debated itself with listing the crimes subject to the court’s jurisdiction – war crimes, aggression, crimes against humanity, genocide and other crimes – presumptively because the draft code of crimes, on which it was also working, would present the more encompassing definitional aspects. Starting up with the Ad Hoc Committee, the close to fifty-year-old differences between the ‘statute’ and the ‘code’ disappeared. Therefore, henceforward, the statute would include detailed conceptualization of crimes as well as fully detailed provisions concerning general principles of law and other essential matters. The Ad Hoc Committee concluded that the new court was to adapt to principles and rules that would make sure that the highest criterion of justice, and that these should be integrated in the statute rather than being left to the dubiety of judicial discretion.
It became evident that the assumption that the Ad Hoc Committee’s work would set the stage for a diplomatic conference where the statute could be adopted was premature. The General Assembly decided to convene a ‘Preparatory Committee’ at its 1995 session, inviting participation by Member States, non-governmental organisations and international organisations of various sorts. The ‘PrepCom’, as it became known, conducted three-week sessions in 1996 in two different occasions, acquainting the General Assembly with a tortuous report consisting of a hefty number of intended amendments to the International Law Commission draft. The committee organized another meeting in 1997, this time they held three sessions. These were accentuated by informal inter-sessional meetings, of which the most essential was sure that held in Zutphen, in the Netherlands, in January 1998. The ‘Zutphen draft’ consolidated the several proposals into a more or less coherent text. The draft was made over somewhat at the overall final session of the PrepCom, and then reported for necessary consideration by the Diplomatic body. Very minute provisions of the original International Law Commission proposal had survived intact; most of the Articles in the final draft were companied with a categorization of choices, surrounded by square brackets to indicate a lack of unanimity, prognosticating difficult negotiations and bargaining at the Diplomatic Conference. Some important matters such as ‘complementarity’ – recognition that cases would only be permissible before the new court when national justice systems were not willing or unable to try them – were enormously dissolved during the PrepCom process. The challenge to the negotiators at the Diplomatic Conference was to ensure that these issues were not reopened. Other issues, such as the matter of capital punishment, had been studiously prevented during the sessions of the PrepCom, and were to egress unexpectedly as impasses in the final negotiations.
Consistent to General Assembly declarations adopted in 1996 and 1997, the Diplomatic Conference of diplomats on the Establishment of an International Criminal Court convened on 15 June 1998 in Rome, at the headquarters of the Food and Agriculture Organization. More than 160 States were represented at the Conference, as well as a range of international organisations and literally hundreds of non-governmental organisations. The ebullience was quite staggering, with importantly all of the delegations expressing their accompaniment for the idea. Driving the pizazz of the Conference were two new constituencies: a geographically heterogeneous group of States known as the ‘like-minded’; and a homogenous coalition of non-governmental organisations. The ‘like-minded caucus’, ab initio chaired by Canada, had been alive since the early stages of the PrepCom, gradually solidifying its stands while at the same time expanding its membership. By the time the Rome Conference began, the ‘like-minded caucus’ included more than sixty of the 160 participating States. The ‘like-minded’ were consecrated to a handful of key suggestions that were substantially at odds with the assumptions of the 1994 International Law Commission draft and, generally, in conflict with the conception of the court held by the permanent members of the Security Council. The maxims of the ‘like-minded’ were: an underlying jurisdiction of the court over the ‘core crimes’ of genocide, crimes against humanity, war crimes and other crimes (and, perhaps, aggression); the deletion of a Security Council veto on prosecutions; an independent prosecutor with the power to initiate proceedings proprio motu; and the prevention of reservations to the statute. While functioning relatively informally, the like-minded quickly commanded the construction of the Conference. Key affairs, including the chairs of most of the working groups, as well as membership in the Bureau, which was the executive body that directed the day-to-day affairs of the Conference, were taken up by its members. Canada dispensed with the chair of the ‘like-minded’ when the legal advisor to its foreign ministry, Philippe Kirsch, was popularly selected president of the Conference’s Committee of the Whole.
However, there existed some other caucuses and groupings at work, a lot of them reflections of existing settings within other international bodies, like the United Nations. The caucus of the Non-Aligned Movement (NAM) was particularly active in its insistence that the crime of aggression be created within the subject-matter jurisdiction of the court. A comparatively new force, the Southern African Development Community (SADC), under the dynamic influence of post-apartheid South Africa, took necessary and important positions on human rights, providing a worthful counter-weight to the Europeans in this field. The caucus of the Arab and Islamic States was active in a variety of ways, including a call for the forbiddance of nuclear weapons, and support for inclusion of the death penalty within the statute. The beauty of the like-minded caucus, indeed the key to its great success, was its might to cut across the traditional regionalist lines. Abiding by the election of the Labour government in the United Kingdom, the like-minded caucus even tried to recruit a permanent member of the Security Council to its ranks.
The Rome Conference began with a few days of formal speeches from political personalities, United Nations officials and officials from the rapid growing ranks of those really involved in international criminal prosecution, including the presidents of the two ad hoc tribunals and their Prosecutor. Then the Conference carved into a series of working groups with obligation for matters such as general principles, routine and sanctions. Much of this involved details; unlikely to create insuperable difficulties to the extent that designates were devoted to the success of the attempt. But a handful of core issues – jurisdiction, the ‘trigger mechanism’ for pursuance, the role of the Security Council – persisted under the wing of the chest. These difficult questions were not publicly debated for most of the Conference, although much negotiating took place informally.
Gradually, the provisions of the statute were adopted ‘by general agreement’ in the working groups, that is, without a vote. The process was tedious, in that it allowed an overwhelming number of States or even one of them to hold up progress by refusing to join consensus. The chairs of the working groups would calmly negotiate compromises, drawing on comments by States who often showcased their views on a provision but then indicated their interest to be flexible. Within a week of the starting of the Conference, the working groups were forwarding progress reports to the Committee of the Whole, indicating the provisions that had already met with one accord. These were subsequently investigated by the Drafting Committee, chaired by a professor, Cherif Bassiouni, for coherency of terminology and linguistic in the various official language versions of the statute.
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As early as 1949, and even before, States were ready to discern international legal obligations, including international criminal obligation, arising between them. However, they were far more hesitant when it came to internal problems and conflict or civil war, which many counted to be nobody’s business but their own. In the Tadic jurisdictional decision, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia pointed to proof that crimes committed in internal armed conflict had been forbade by international law as early as the terror charging of civilians during the Spanish Civil War. The 1949 Geneva Conventions refer to non-international armed conflict in only one provision, known as ‘common Article 3’ because it is similar in all four Conventions. Efforts to expand the scope of common Article 3 in 1977, in the adoption of Protocol Additional II, were only moderately fortunate. The Protocol works out somewhat on the laconic terms of common Article 3, but does not extend the concept of ‘grave breaches’ to non-international armed conflict, nor does it identify prisoner of war status in such wars.
Therefore, subject to a few minor exceptions, paragraphs (c) and (d) of Article 8 apply to non-international armed conflicts contemplated by common Article 3 of the four Geneva Conventions, while paragraphs (e) and (f) apply to non-international armed conflicts within the area of Protocol Additional II. The threshold of application of common Article 3 is somewhat lower. The area of both provisions is also limited in a negative sense, it being stated that they apply to armed conflicts not of an international character, but not ‘to states of internal disturbances and tensions, such as riots, singled out and sporadic acts of violence or other acts of a similar nature’. But the Protocol Additional II crimes listed in paragraph (e) apply to ‘armed conflicts that take place in the boundary of a State when there is lengthy armed conflict between governmental authorities and organized and structured armed groups or between such groups’. There is a further limitation on the common Article 3 crimes: ‘Nothing in paragraphs 2(c) and (d) shall affect the responsibility of a Government to maintain and hold or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.’ These thresholds, drawn from the Geneva Conventions and Protocol Additional II, have been constantly criticised for their non-equivocal scope. In effect, in cases of internal disturbances and tensions, atrocities may be punishable as crimes against humanity but they will not be punishable, at least by the International Criminal Court, as war crimes or any other offence.
1.4.4 OTHER OFFENCES
The Court is also given law power over what are called ‘offences against the administration of justice’, when these relate to proceedings before the Court. The Statute specifically noted that such offences must be committed intentionally. These are: perjury or the presentation of evidence known to be false or forged; influencing or interfering with witnesses or investigation; corrupting or bribing officials of the Court or retaliating against them whatsoever way(s); and, in the case of officials of the Court, soliciting or accepting bribes. The Court can impose a term of imprisonment of up to five years or a fine upon conviction. States Parties are obliged to provide for criminal offences of the same nature with respect to offences against the administration and carrying out of justice that are committed on their territory or by their nationals.
The Court can also ‘sanction’ misconduct before the Court, such as disruption of its proceedings or deliberate and intentional refusal to comply and cooperate with its directions. But, unlike the case of ‘offences against the administration of justice’, the measures available are limited to the temporary or permanent removal from the courtroom and a fine of up to € 2,000.
1.5 STRUCTURE AND ORGANIZATION OF THE COURT: INVOLVING AUTHORITY
The court is located in The Hague, Switzerland. The court is at liberty to open field offices for investigation in various countries of concern. The court can also decide to hold hearings in a place that is closer to the site of the crime than The Hague. For example, if the court does prosecute crimes committed in Democratic Republic of Congo (DRC), it is at all liberty to open an office in the Democratic Republic of Congo (DRC).
The Court has three functioning organs: the Office of the Prosecutor, the Chambers, and the Office of the Registrar. Non-Governmental Organizations (NGOs) will most often be in contact with the Office of the Prosecutor, but there are also priviledges for contact with the Registrar.
The Prosecutor and his Office work together to gather information about crimes and present evidence against an accused before the Court during hearing. The Prosecutor’s Office acts independently on its own as a separate organ from the Court. The Prosecutor of the International Criminal Court currently is Luis Moreno Ocampo. Before now, an Argentinean state prosecutor, Mr. Moreno Ocampo played a significant role in prosecuting members of the military junta following Argentina’s “dirty war.” As the Assistant Prosecutor he was so much involved in the pursuance of nine military commanders for the role they played in crimes against humanity committed during the military government of 1976-1983. In 1985, five of the commanders were sentenced to varying prison terms. During that time he pushed for the prosecution of organized and well-structured crime and corruption in business and has advised governments and international bodies on controlling corruption in Argentina and other neighbouring countries.
Judiciary: The judicial functions of the Court are carried out by those referred to as chambers. The chambers are each composed of several judges from member countries. The Court has three chambers with varying number of judges, the Pre-Trial Chamber (with seven judges), the Trial Chamber (with six judges) and the Appeals Chamber (with five judges). The Pre-Trial Chamber is that who decides whether the Prosecutor is allowed at all to start a formal investigation into a criminal case. The Trial Chamber decides whether the accused person is found guilty as charged and if they find him or her guilty, will assign the punishment for the crime and any damages to be paid to the victims accordingly. It also must ensure and ascertain that a trial is fair and expeditious, and is conducted with full respect for the rights of the accused with regard for the protection of victims and witnesses. When the Prosecutor or the convicted person appeals against the decision of the Pre-trial or Trial Chambers, the case could then get to the Appeals Chamber. This is the highest chamber in the International Criminal Court (ICC). The Appeals Chamber may therefore decide to reverse or amend a decision, judgment, or sentence. It can also order a new trial before a different Trial Chamber if found necessary.
The Registrar has the task of running the administration of the Court and keeping proper records. The Registry locates and gets witnesses and victims and provides for their protection in participation during investigations and trials.
Investigation is the first phase of international criminal procedure. Compared to national criminal procedure, this phase of proceedings presents to be much more “blurred”, especially due to the large volume of the circumstances under which the criminal acts concerned tend to be committed. An investigation is started by the Prosecutor on the basis of information on the commission of crimes that fall within the law power of the International Criminal Court. The procedural mechanisms associated to the initiation of prosecution and the position of the Prosecutor in the proceedings are distinct as well, mainly due to the different events of and reasons for the establishment of ad hoc tribunals and International Criminal Court on the both ends.
The jurisdiction of international ad hoc tribunals was in this sense limited ratione temporis and ratione loci and thus decided the privileged status of the Prosecutors. That is why the Prosecutor is the first to be given the power to start criminal proceedings and the Prosecutor has discretionary authority to determine whether to go ahead with the investigation or not (Paragraph 1 of Article 18 of the ICC Statute or Article 17 of the ICTR Statute).
This is different in the case of the International Criminal Court, with its generally acceptable and permanent jurisdiction, and the fact that it has been allowed with “a triggering mechanism”. Under Article 13 of the ICC Statute, the Court can exert law power ratione materiae if a situation in which it appears that a crime within the jurisdiction of the Court has been committed is regarded to the Prosecutor by a Party to the Statute, or the Security Council acting under Chapter VII of the Charter of the United Nations; or if the Prosecutor has begun an investigation in respect of such a crime by him/herself. If the Prosecutor initiates an investigation motu proprio and resolves that there are provable grounds to further with the investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation (Article 15 of the ICC Statute). In contrast to proceedings before ad hoc tribunals, proceedings before the International Criminal Court differentiate between an investigation of an event and an investigation of a case, the relevant milestone being the issuing of an arrest endorsement or the serving of a summons on a specific person. This act of the Pre-Trial Chamber leads to the dividing of the investigation of a specific case – the commission of one or more crimes under the jurisdiction of the Court by one or more suspects – from the comprehensive investigation of a situation decided by “temporal, territorial and eventually personal parameters.” From the perspective of providing procedural guarantees in general, it is not essential whether we are dealing with an investigation of an event which may be ceased if the Prosecutor resolves that there do not exist reasonable grounds to proceed with the case (Article 53 of the ICC Statute) or whether we are dealing with an investigation of a case that may, on the other hand, be closed by a confirmation of charges before the main hearing is opened (Article 61 of the ICC Statute). The difference will become clearer in the course of a more detailed analysis of the individual guarantees relating to human rights.
Procedural guarantees that serve to protect persons during the investigation phase of international criminal procedure have available material grounds in universal as well as regional instruments for the protection of human rights. These include, in particular, provisions regulating the protection of persons from torture or inhuman or humiliating treatment (Art. 5 UDHR, Art. 7 ICCPR, Art. 3 ECHR) an arbitrary and abused arrest or detention (Art. 9 UDHR, Art. 9 ICCPR, Art. 5 ECHR) on one hand, and provisions guaranteeing the right to be heard by an impartial and independent court with the right to get a lawyer for defence (Art. 6 UDHR, Art. 14 ICCPR, Art. 6 ECHR) on the other hand.
From a historical point of view, it may be pointed out that prior to the existence of post-war military tribunals, the accused were also provided and offered with certain procedural guarantees in the course of an investigation (preliminary rulings), although explicite in a very limited measure. In order to ensure and guarantee a fair trial for the accused (largo sensu), under the Charter of the International Military Tribunal, the accused is entitled to and receives a copy of the indictment in the language he or she understands a sufficient period of time in advance of the trial itself. Further, in the course of an investigation the accused had all rights to give an explanation with regard to the charges brought against him or her by the prosecutor. Also, the all the investigation of the accused was to be conducted in a language or translated into a language that the accused can possibly read as well as understand. Nonetheless, a look alike provision cannot be found in the Charter of the Military Tribunal for the Far East. For example, under Article 9, paragraph b, “the trial and relating proceedings are to be performed in English, in addition to the language of the accused.” Thus, it may be concluded that relating proceedings meant the proceedings preceding the trial, i.e. the preliminary examination. Moreover, from the present-day perspective, post-war tribunals were not yet international in nature. In other words, if the proceedings before the tribunal are to be regarded, a precursor of international criminal proceedings or of the International Criminal Court, then the investigation that preceded them was the least internationalised phase, if not an entirely national phase. The Allied Powers (4 individual prosecutors) investigated individual acts independently, though in cooperation with the chief Prosecutor and other Prosecutors (Article 15 of the Charter of the IMT). In the case of military tribunal for the Far East, the situation was even much more complicated as the team of Prosecutors constituted of eleven representatives of Allied member countries. Therefore, that is why, be it in the case of the Nuremberg Tribunal or the Tokyo Tribunal, in view of the very general provisions regulating rules for the protection of procedural guarantees of persons during an investigation, individual Prosecutors referred to national practices, adjusted to the specifics of (“internationalised”) criminal investigation activities.
Fifty years later, provisions providing persons with procedural guarantees and rights during an investigation have become more exact as well as precise. Although the procedural rules of ad hoc tribunals (Paragraphs 2 and 3 of Article 18 of the ICTY Statute, or Article 17 of the ICTR Statute) in the Statutes themselves are much more on the order of an imperfect copy of those in the International Pact, they are adjusted in the Rules of Procedure and Evidence (Article 42 and 43 of the ITCY RPE or ICTR RPE). Especially extensive in this regard is Article 55 of the ICC Statute (Rights of Persons during an Investigation), which goes much advanced than universal instruments for the protection of human rights. That is why the analysis of individual procedural guarantees for persons during an investigation will draw on the provisions of the ICC Statute. However, first there is need to describe the procedural position of persons during an investigation in general under the new conception of the ICC Statute.
1.6 INVESTIGATION: APPLICATION OF BASIC RULES
The Prosecutor is expected ‘to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate impeaching and exonerating instances equally’. The wording suggests a Prosecutor with a high level of neutrality and impartiality. Such a Prosecutor is rather more like the investigating magistrate or juge d’instruction of the continental legal system than the adversarial prosecuting attorney of the customary law. This provision is one of many instances of the trials of the drafters to seek some balance among common law and Romano-Germanic procedural models. Other language in the same provision recalls the often ticklish and highly sensitive nature of investigations into war crimes, crimes against humanity and genocide and other offences. The Prosecutor is to respect the interests and personal circumstances of victims and witnesses, and to be most especially thoughtful in issues involving sexual violence, gender violence, violence against children or any violence against humanity.
It is at the investigation stage that major differences between national and international justice are highlighted. Under a national justice system, the prosecuting authority has more or less unfettered access to witnesses and material evidence, subject to judicial authorisation where search or seizure are involved. The matter is not nearly as simple for an international court, because the Prosecutor must conduct investigations on the territory of sovereign States. The investigation however depends on the receptivity of the domestic legal system to ideas from the Prosecutor’s office. This will be especially difficult in the case of States that are not parties to the Statute or States that find themselves endangered by such an investigation, both of them rather probable scenarios.
The Prosecutor’s powers during an investigation consist of gathering as well as examination of evidence and attendance and questioning of suspects, victims and witnesses. Here, the Prosecutor may seek the cooperation and alliance of States or intergovernmental organisations, and even enter into arrangements or agreements necessary to facilitate and hasten up such cooperation. He or she may also agree to the non-disclosure of materials that are obtained under the condition of confidentiality and solely for the purpose of generating new evidence for the purpose of the investigation. The effect of such a provision is to prevent such information from any requirement of disclosure to the defence.
The Prosecutor’s ability to conduct ‘on site investigations’, as they were referred to during the drafting, was highly arguable. Some delegations were unambiguously rejected, taking the perspective that investigation was solely the perquisite of the State in question, as it would be in the case of inter-State judicial cooperation and alignment. Ultimately, the Prosecutor is allowed under the Statute to undertake specific investigative steps in the territory of a State without having previously obtained its consent and cooperation. But any such investigation is depending upon judicial leave. Thus, the Pre-Trial Chamber must authorise any such measures, and it can only do so after determining that the State is clearly unable to carry out a request for cooperation due to the unavailability of any appropriate authority within its judicial system. In practice, such a power ‘is not practicable and cannot be effectively utilized or used’, as Fabricio Guariglia has pointed out. Elsewhere, the Statute offers the Prosecutor the privileges to take evidence and interview witnesses within a State and without its consent, but all of this must be carried out on a voluntary basis and after seeking permission from the State properly.
Cases may arise where a State party is ‘clearly unable to perform a request for cooperation due to the unavailability of any authority or any component of its judicial system competent to execute the request for cooperation’. In such situations, the Pre-Trial Chamber may authorise the Prosecutor to take specific investigative steps within that State’s territory without its consent, although the Statute urges that this be done ‘whenever possible having regard to the views of the State in play’.
Member states are under a general obligation and duty to cooperate with the Court in its investigation of crimes and offences. They must ensure that they have domestic legal preparations in effect in order to provide such adequate cooperation. But the formulation of this obligation, which would seem open enough for States parties to the Statute, proved difficult at Rome. According to Phakiso Mochochoko, ‘representations were divided on the issue of whether cooperation should be defined as a matter of legal obligation that the Court can rely upon, or whether such cooperation should remain an uncertain variable, subject to the will or circumstances of a particular State’. The resulting compromise specifies precise and exact obligations with respect to cooperation, but also requires more generally that States parties ‘cooperate fully’ with the Court.
The mechanisms developed by the Court will be extensively familiar to States, in that they closely resemble those that already exist in the form of bilateral or multilateral treaties on judicial assistance. Requests for cooperation are to be transferred through the diplomatic channel or any other appropriate mechanism designated by each State party. The request is to be formulated in an official language of the State, or in a language designated by the State. States are also required to safeguard the privacy of the request, except to the extent necessary for its fulfilment. Requests may also be transmitted through Interpol or an appropriate regional police organisation (inter-organizational).
The specific forms of cooperation to which the Court is entitled are listed in Article 93 of the Statute, although there is a more general obligation and duty to provide any type of assistance not prevented by the law of the requested State, with a perspective to facilitating investigation. States parties are also required to offer assistance in: identifying and determining the whereabouts of persons or the location of items; the taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court to help in the trial phase; the questioning of suspects; the service of documents; facilitating the voluntary appearance of persons as witnesses or experts before the Court; the examination of places or sites, including the exhumation and examination of grave sites if necessary; the execution of searches and seizures; the provision of records and documents, including official records and documents; the protection of victims and witnesses and the preservation of evidence; and identifying, tracing and freezing or seizing proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture including bank accounts. States are only entitled to deny requests for production of documents or disclosure of evidence relating to ‘national security’, a matter of which they seem to be the sole arbiter and inappropriate., because of the threat to national security. Incidentally, there is a certain reciprocity to the cooperation procedures, in that the Court may also provide adequate assistance to States parties that are conducting their own investigations into serious crimes.
In most States, specific enforcing legislation is contingent in order to authorise cooperation with the Court. Some have had to address complex constitutional issues, such as prohibitions on the extradition of nationals or of extradition to States where life imprisonment may be imposed. For most, however, it has been a relatively straightforward matter, though one that is usually technically of considerable complex and ambiguous. Although there are some exemplary life cases, most States parties to the Rome Statute have not insisted upon having such implementing legislation in place and operational before ratifying the Statute. As of early 2003, it was estimated that only fifteen of the nearly ninety States parties had adopted comprehensive national implementing legislation.
Although most of the investigation will take place in practice under the provisions of a State’s national law, with respect to questioning, search, seizure and similar processes, the rights of individuals during investigations are subject to special protection as provided by Statute. National law varies considerably in this area, and it would be exorbitant for the Court to implicate itself in domestic judicial proceedings that breach fundamental rights greatly. In fact, the Statute almost seems to be saying that it cannot trust domestic justice systems to provide adequate respect for the rights of the individual basically. The provisions in the Statute set a high standard and offer a good model for national systems. According to Article 55, during investigation a person shall not be obliged to incriminate himself or herself or to confess guilt under duress; shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment; shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; shall not be subjected to arbitrary arrest or detention; and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are founded in the Statute. If such standards were universally respected by all institution, there would probably be no need for an international criminal court.
A person suspected of having committed a crime subject to the jurisdiction of the Court is as well entitled to be informed of other specific rights prior to starting the questioning session. The person shall be adequately informed that he or she is indeed suspected of having committed a crime, that he or she may remain silent without such silence being a consideration in determining guilt or innocence at trial, to have legal assistance, if necessary provided for them in cases of indigence and where the interests of justice so require, and to be questioned in the presence of counsel unless this right has been voluntarily waived by the accused individual. These rights go well beyond the requirements of international human rights norms set out in such instruments as the International Covenant on Civil and Political Rights, and as a general rule surpass the rights recognised in even the most advanced and progressive justice systems. The Statute however insists that these norms be duly honoured, even if the questioning is being carried out by officials of national justice systems pursuant to a request from the Court. If these rules are violated, the Court is entitled to exclude any evidence obtained, such as a confession either true questioning or however means. However, before excluding evidence the Court must also satisfy itself that the violation ‘raises substantial doubt on the reliability and validity of the evidence’ or that ‘the admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings’. In any event, given these enormous provisions, it is hard to imagine and believe why any suspect would ever agree to talk to investigators from the office of the Prosecutor in the first place. Certainly competent defence counsel will almost invariably advise against any cooperation, except in exceptional circumstances, such as a declaration that an alibi defence will be aroused at trial.
The Statute makes special provision for testimony or evidence that may not be available at trial. An instance would be testimony of a victim who will die before trial. While the interests of justice require that special provision be made to allow for the admissibility of such evidence, or rather a record of it, there is also the need to protect the rights of the accused. Article 56 entitles the Prosecutor, when there is a ‘unique investigative opportunity’ with respect to testimony or evidence that may subsequently be unavailable as at the period, to request authorisation to record the testimony or to collect and test the evidence as stated. The Pre-Trial Chamber is to ensure that measures are taken to guarantee the efficiency and integrity of the proceedings and, in particular, that the rights of the defence are protected. The Pre-Trial Chamber is to name one of its judges to attend proceedings in this respect. The Prosecutor is therefore expected to seek such measures, even when the evidence is favourable to the defence, in keeping with the duty of neutrality and equity.
The Pre-Trial Chamber has a certain role in supervising the Prosecutor, and may as well challenge the latter if measures to preserve testimony or evidence in such cases are not sought. If the Prosecutor’s failure to do so is deemed unjustifiable, the Pre-Trial Chamber may take such measures on its own discretion. Here too, the Statute departs from a purely adversarial model in favour of the more neutral prosecution of the continental or Romano- Germanic system of criminal system.
1.6.1 ARREST AND SURRENDER
At any time after the initiation of an investigation, the Prosecutor may seek a warrant of arrest from the Pre-Trial Chamber. The Chamber must be adequately satisfied that there are reasonable grounds to believe the person has committed a crime within the Court’s law power, and that the arrest of the person is highly important. Arrest is considered necessary in order to ensure appearance at trial, to prevent obstruction of the investigation, or to prevent the person from undertaking any further activity prohibited by the Statute. The Prosecutor must include a succinct statement of the relevant facts and a summary of the evidence in order to justify the existence of reasonable grounds, as well as supporting materials to account for the need for arrest. The warrant of arrest, if issued, should therefore contain a concise statement of the facts but does not need to present or outline the evidence that supports this. Summons is offered as an alternative to arrest, where it will be sufficient to ensure a person’s appearance before the Court most times.
The Court communicates its request for arrest to the State concerned, which is then required to take immediate steps to arrest the person in play with her resources. The State is called the ‘custodial State’ in the Statute. The arrested person is to be brought promptly before the competent judicial authority in the custodial State which is to then decide that the warrant applies to that person, that proper process has been followed and that the person’s rights have been duly respected. In urgent cases, the Court may request the provisional arrest of the person, pending presentation of the request for surrender together with the supporting documents. The request for provisional arrest may be granted ‘by any medium capable of delivering a written record’. A person arrested provisionally is entitled to be released if the formal request for surrender and the supporting documents are not given within sixty days. However, a suspect may consent to surrender even prior to the expiry of the period if the laws of the custodial State permit this adequately in the statute.
The competent authorities of the custodial State are expressly and overtly forbidden by the Statute from questioning whether the warrant was properly issued by the Pre-Trial Chamber of the ICC. However, the Statute unequivocally envisages other forms of requests by the accused. For example, an accused may challenge arrest on the grounds of double jeopardy, in which case the custodial State is to consult with the Court to determine whether there has been a ruling on admissibility. If the Court is considering the issue of admissibility, then the custodial State may postpone execution of the request for wilful surrender.
The ICC Statute does not use the term ‘extradition’ to describe the rendition of a suspect from a State party to the ICC. This is consistent with an approach to this issue already adopted in the statutes of the ad hoc tribunals, which speak of ‘surrender or transfer’ (le transfert ou la traduction). So that there is no doubt about the point, the ICC Rome Statute includes a rather exceptional definitional provision that declares extradition to be ‘the delivering up of a person by one State to another as provided by treaty, convention or national legislation’ and surrender to be ‘the presenting the suspect by a State to the Court, pursuant to this Statute’. But the international court is really only the sum of its parts, and ‘transfer’ or ‘surrender’ is in a sense the ‘extradition’ to corps de ballet of States, acting together. The reason for what at first blush seems dumb terminology is to respond to dissents from States that have legislation, and sometimes even constitutional provisions, prohibiting the extradition of their own citizens. Obviously, a refusal to extradite citizens would be totally incompatible with a State’s obligations under the Statute. But early drafts of the Statute had given the States the privilege and right to refuse surrender of their nationals, and the matter remained controversial through to the final days of the Rome Conference.
It is somewhat difficult to predict how national courts will take to these differences, and there are few precedents. Three rationales have been advanced by academic and law writers for the prohibitions on extradition of nationals that are comparatively common in domestic laws: national judges are the natural judges of the offence; a State must protect its own nationals; and a foreigner would be subject to prejudice. None of these apply to the International Criminal Court, especially given that States parties have the first bite at the apple, in relation to the principle of complementarity. Yet some national judges seem to have a visceral hostility to international justice, as can be seen in the embarrassingly belated efforts of the United States to secure the transfer of a Rwandan suspect to the Arusha tribunal. Accordingly, that a national judge would consider a distinction between ‘transfer or surrender’ and ‘extradition’ to be little more than legal sophistry cannot be ruled out, despite the plain and clear words of Article 102.