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General Information
International Criminal Court
The Rome Statute of the
International Criminal Court was adopted on 17th July 1998 at the
end of a diplomatic conference of plenipotentiaries organised by the
United Nations.
The idea of an International
Criminal Court was revived in the 19th century by Gustave Moynier to
judge violations of the Geneva Convention of 1864.
After the failure of the
attempts to establish an International Tribunal after the First
World War, the Tribunals of Nuremberg and Tokyo effectively
functioned as such after the Second World War and convicted several
dozen people, thus laying the foundations for international criminal
justice.
The ad hoc Tribunals for
Rwanda and the former Yugoslavia, which have now been operating for
nearly ten years, have shown the usefulness and the need for
international criminal justice. In so doing, they have paved the way
for the creation of a permanent Court.
In 1989, Trinidad and Tobago
proposed to the United Nations the creation of a permanent
International Criminal Court to bring prosecutions for drug
trafficking.
But it was in 1995 that the
negotiations on The Rome Statute of the International Criminal Court
began at the United Nations, based on a draft statute prepared and
then adopted by the International Law Commission in July 1994. At
the initiative of the United Nations' General Assembly, an ad hoc
committee sat twice in 1995 in New York at United Nations
Headquarters to debate the draft statute by the International Law
Commission. At the end of 1995, the United Nations' General Assembly
decided to create a Preparatory Committee to work out a draft
Statute to be submitted to a diplomatic conference. This Preparatory
Committee then met twice in 1996, three times in 1997, then one last
time in March/April 1998 to finalise a draft Statute. All the Member
States of the Nations took part in these negotiations and tabled
numerous proposals.
The Statute was
finally adopted in Rome in July 1998. It comprises thirteen parts
and is particularly detailed.
Part I
concerns the setting up of the Court and in particular provides for
the Court to be a permanent body which, independent of the United
Nations, is bound to it by an Agreement which must be concluded by
the Court’s Presiding Judge. This Agreement was approved by the
Assembly of States Parties to the Statute of Rome in September 2002.
This part also provides for the Court to be based at The Hague in
the Netherlands, but that it can sit elsewhere if it considers this
desirable.
Part II
of the Statute relates to the competence of the Court, which is
restricted to the gravest crimes affecting the entire international
community, in other words, genocide, crimes against humanity and war
crimes. The Court is only competent in respect of crimes committed
after its Statute came into effect, that is, 1st July 2002. Cases
may be submitted to it either by the Security Council, or by a State
Party, or by the ex-officio Prosecutor, acting on the basis of
information received in particular from victims, NGOs or other
sources it considers appropriate. When cases are submitted to the
Court either by a State Party or by the Prosecutor acting in an
ex-officio capacity, it may only exercise its competence when the
State on whose territory the crimes took place or the State of which
the person accused of the crime is a citizen have either ratified
the Statute or accepted the Court’s competence by means of a
declaration filed with the Court Registrar. Without doubt, the most
important principle of the Statute of Rome is that the Court
complements national jurisdictions and that it may only exercise its
jurisdiction if the States concerned are unable or unwilling to
prosecute the perpetrators of crimes which fall within the
competence of the Court.
Part III
concerns the general principles of
criminal law and provides for the criminal responsibility of
individuals, and the criminal responsibility of States or of legal
entities (associations, companies) excluded from the Court’s
competence. It should also be clearly stated that the Court is only
competent in regard to people aged over 18 at the time of the acts.
The position of a Head of State or Head of Government or any other
official position does not prevent the Court from exercising its
competence in regard to that person.
Statutory limitations do not
apply to the crimes falling within the competence of the Court and
the Statute lastly provides for the responsibility of military
chiefs and civilian superiors in respect of crimes committed by
their subordinates when, knowing about these crimes, they did not
take the necessary measures to prevent them from being carried out
or to quell them.
Part IV
concerns the composition and administration of the Court and
provides for the Court to be comprised of 18 Judges, one Prosecutor
and one Court Registrar. The Judges and Prosecutor are elected by
the Assembly of States Parties, whereas the Court Registrar is
elected by the Judges. The organs of the Court are the Presidency
consisting of the President and the First and Second
Vice-Presidents, the Appeals Court, the Trials Court and the
Pre-Trial Chamber, the Prosecutor's Office and the Registry. The
working languages of the Court are English and French. The official
languages are English, Arabic, Chinese, Spanish, French and Russian.
Part V
concerns investigations and prosecutions, and provides for the
opening of investigations to be the responsibility of the Prosecutor
under the control of the Pre-Trial Chamber comprised of one or three
judges, depending on the functions involved. The Prosecutor must
conduct pre-trial hearings of witnesses for both the prosecution and
the defence. The Pre-Trial Chamber alone is responsible for issuing
arrest warrants and summonses to appear before the Court. The
investigations and prosecutions phase ends with a confirmation
hearing of the charges before the Pre-Trial Chamber, which must
decide whether or not to confirm the charges and transfer the
defendant to the Trial Court.
Part VI
concerns the trial, which is conducted
before a Trial Court made up of three Judges. The trial may not take
place in the absence of the accused, as proceedings in absentia are
not viable before the International Criminal Court. The rights of
the accused and the victims are read out in detail: the accused is,
in particular, entitled to the free assistance of a defence lawyer
if he is unable to pay for one and victims are entitled to make
submissions and to be represented by counsel. The Victim and Witness
Support Division is responsible, within the Registry, for providing
support and assistance for the witnesses and victims who appear
before the Court. The decision regarding guilt is taken by a
majority of the judges. For the first time in the history of
international criminal justice, the International Criminal Court has
the authority to grant compensation to victims, which can include
restitution, indemnification or rehabilitation.
Part VII
concerns the enforceable penalties.
As the death penalty is excluded, life imprisonment is the highest
penalty which may be handed down. The Court may add a fine to this
prison sentence as well as the confiscation of profits, property or
assets directly or indirectly gained from the crime committed. The
Court may order that the proceeds from these fines and confiscations
be paid into a Fund for the benefit of victims and their families
which was created by the Assembly of States Parties in September
2002 as provided for in the Rome Statute.
Part VIII
concerns appeal and review. Appeals are brought before the Court of
Appeal, consisting of five Judges. A person pronounced guilty may
submit an appeal before the Court of Appeal to review a decision
concerning a final sentence, particularly if a new fact comes to
light. Finally, there is provision that the Court may compensate
people arrested or sentenced and subsequently pronounced innocent.
Part IX
concerns international co-operation and
legal assistance and provides that the States Parties must
co-operate fully with the Court, especially with regard to handing
over people prosecuted by the Tribunal or seeking items of evidence.
In order to comply with this, in their national legislation the
States Parties must provide for procedures enabling these forms of
co-operation to be set up. The Court may also request the
co-operation on an ad hoc basis of States which are not parties to
the Statute, or the co-operation of inter-governmental
organisations.
Part X
concerns execution of the penalties and confiscation measures and
provides for the prison sentences to be carried out in a State
appointed by the Court from the list of States that have stated they
are willing to accept those who are convicted. The Court alone is
empowered to decide to reduce a sentence and it must re-examine this
sentence to determine whether there is reason to reduce it when the
person has served two-thirds of his sentence or, in the case of life
imprisonment, when that person has already served 25 years'
imprisonment. The Court may not re-examine a sentence before these
terms.
Part XI
concerns the Assembly of States Parties,
which is composed of one representative per State Party. Each State
Party has one vote. The other States which have either signed the
Statute or signed the Final Act of the Rome Diplomatic Conference
may sit on the Assembly as observers. This Assembly is responsible
for electing the Judges and Prosecutor, adopting the Court’s budget
and of deciding, if necessary, to increase the number of Judges. The
Assembly of States Parties also plays an important legislative role,
since it is responsible for adopting the Court’s rules of procedure
and evidence as well as the Elements of Crimes. The Assembly meets
at least once a year. The Assembly has its own Office, consisting of
a President, two vice-presidents and 18 members.
Part XII
concerns financing and provides for the Court’s costs to be funded
by compulsory contributions by the States Parties and, subject to
approval by the General Assembly, by financial resources provided by
the United Nations, especially in regard to costs associated with
the submission of a case to the Court by the Security Council. The
contributions by the States Parties are calculated according to a
scale of shares based on the United Nations' scale for its ordinary
budget. The Court can also accept voluntary contributions from
Governments, international organisations, private individuals,
companies or other entities.
Part XIII
concerns the final clauses and provides that the General Secretary
of the United Nations shall convene a conference to review the
Statute seven years after it comes into force, that is, in 2009. The
Court’s Statute allows no reservations. Finally, article 126
provides for the Statute to come into force after the submission of
sixty instruments of ratification. Accordingly, the Rome Statute
came into force on 1st July 2002. On 25th February 2003, the Rome
Statute of the International Criminal Court was ratified by 89
States from all continents. |
