Darfur and the ICC

Over at Maxed Out Mama, she wrote a post on the Darfur conflict. I have been working on a project with some others on this issue to get more pressure from the US on the UN security council. This is a complex issue to solve. The first priority is to make sure aide is getting though to the victims - which it is not. Next, we need peace keepers - which we do not really have either. Then we need to have criminal trials for the perpetrators of these atrocities. Below is a draft introduction I still had on this computer about the International Criminal Court. So, if you want to know a little about how the ICC works, read on.

Introduction

With the twentieth century drawing to a close, on July 17th, 1998, the concept of an international court with the ability to prosecute individuals accused of crimes against humanity, genocide, and crimes of war came into fruition. Designed to protect the rights of humankind, the court defends those who have little recourse in traditional justice, especially women and children. After 5 weeks of intense negotiations, 120 countries voted to adopt the Rome Treaty, creating a “permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern.” Art. 1. With its seat in The Hague, the bench is comprised of 18 judges elected to nonrenewable nine-year terms by a vote of two-thirds majority of the States Parties to the Statute. On April 12th, 2002, the threshold of nations needed to ratify the treaty was reached and the ICC’s official jurisdiction began on July 1st, 2002. As of May 3, 2004, 94 nations have ratified the treaty. Those yet to sign the important document include the United States, China, and of current grave concern, the Sudan.

The Road to the International Criminal Court

The concept of an international tribunal, dedicated to bringing to justice those accused of crimes against humanity, is not new. From 1949 to 1954, former Nazi leaders were tried by a multinational court “for the just and prompt trial and punishment of major war criminals of the European Axis.” Charter of the International Military Tribunal, Art. 1. Furthermore, half a decade later, atrocities in the Former Yugoslavia spurred the U.N. to act under Chapter VII of its Charter to pass Resolution 827, creating an ad hoc tribunal to investigate and prosecute claims of genocide, rape, terrorism, etc. Several years later the U.N., acting again under its Charter, passed Resolution 955 to create another ad hoc tribunal for claims of genocide in Rwanda. Finally, in 1998, the international community created a permanent body to take over such duties.

When can the International Criminal Court Act

For an inquiry to be initiated, the complaint must be referred to the court in one of three ways. Art. 13. The complaint may be filed by a State Party, Art. 14, by the Prosecutor on behalf of a State Party, Art. 15 (1), or by the U.N Security Council, acting under Chapter VII of its Charter. Art. 13 (b). Once a complaint is lodged with the Court, three general preconditions must be met in order for the International Criminal Court to claim jurisdiction. Art. 12. First, the crimes must be within the scope of the Rome treaty as described in Article 5. Secondly, the crimes must be within a signatory state’s territory or associated with a signatory state’s citizen. Art.12 (2) Thirdly, the crimes must have been committed after the date a state ratifies the treaty. Art. 11.

Scope of the Rome Treaty

Rooted in the Geneva Convention and the Nuremberg Trials, Article 5 of the Rome Treaty sets forth the jurisdictional requirements of the crimes the court has the authority to prosecute. Broadly outlined, the treaty establishes its jurisdiction as “the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.”
Article 6 defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”
Article 7 defines crime against humanity as “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

It is important to note that the motive behind the enumerated crimes must not be known or proven by the prosecutor. Both final reports produced by The Commissions of Experts for the Former Yugoslavia and Rwanda found that motive, or lack thereof, is immaterial to the Court. Only intent to commit a crime is necessary. UN Doc S/1994/674 (1994) para 97, and UN Doc S/1994/1405 (9 Dec 1994) paras 158-159

Territorial Jurisdiction of the Court

According to Article 12, the court does not have “universal jurisdiction,” but rather it has preconditions to exercising ICC jurisdiction. The court may only act if the alleged crimes have been committed in the territory of signatory state or the accused is a citizen of a signatory states. Otherwise, the ICC cannot assert jurisdiction without United Nations intervention. Currently, the Court has two open investigations referred to it by State Parties. Both the Republic of Uganda and the Democratic Republic of Congo have referred alleged crimes to the prosecutor who has decided the evidence warranted opening up an official investigation.
If an alleged crime happens in the territory of a non-signatory state, the Court is not precluded from investigating. Per Article 13 (b), the Court may act in a “situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter…” The use of Chapter VII of the U.N. Charter to create such tribunals is not a new idea. Chapter VII is the legal mechanism used by the U.N. to create the international tribunals for the former Yugoslavia and for Rwanda prior to ratification of the Rome Treaty. Therefore, while the ICC does not have universal jurisdiction, there is no place on earth that the ICC cannot have jurisdiction.

Temporal Jurisdiction of the Court

The court has jurisdiction only with respect to the crimes committed after the entry into force of its Statute. If a state becomes a party to the Rome Statute after its entry into force, the Court may exercise jurisdiction only with respect to crimes committed after the entry into force of the statute for that state, unless that state has agreed to accept the jurisdiction of the court accordingly. Art. 11, Art. 12(3), Art. 24.

Who Does the International Criminal Court have Jurisdiction Over

The Rome Treaty’s jurisdictional design is non-conventional compared to most international treaty tribunals. Whereas most international tribunals deal with the states as the actors and responsible parties, the ICC exercises its jurisdiction over “natural persons” and not the state itself. Therefore, there must be identifiable persons for an investigation to progress. The State itself cannot be held accountable for the actions of unknown persons under the ICC’s Charter.

Consequences of the International Criminal Court

Once a case has been adjudicated, the panel of judges will determine the guilt or innocence of the accused. For those found guilty of the crimes charged, there are several penalties that may be imposed. Article 77 allows for punishment through imprisonment and/or fines, forfeiture of proceeds, property and assets derived directly or indirectly from that crime. Each individual is to be sentenced according to the gravity of their crimes and the circumstances of the convicted persons. Art. 78 (1)
While the ICC may dole out its own punishment, The Rome Treaty specifically does not preempt States taking additional action against accused persons, nor does the Treaty allow ICC punishment to be restricted to conform to national laws or penalties of the signatory states. Art. 80.
In addition to the usual punishment role of a traditional criminal court, Article 79 of the Rome Treaty allows for the creation of a “Trust Fund” for the benefit of victims. Established by the Assembly of Party States, and funded by those states as well as from the forfeited proceeds and fines collected by Article 77 (2), the victims, or the family of victims may collect reparations from the fund. Funds may also be disbursed to a collectivity or an aid organizations associated with helping the affected persons.

The ICC and Darfur

Much like Rwanda and Yugoslavia, the by the U.N. Security Council should appoint the ICC to investigate the possible crimes against humanity by the U.N. Security Council. With violence still erupting through out the region, regardless of a cease fire recently agreed upon, security cannot be achieved and wounds cannot begin to heal until those responsible for the great injustices have been brought to answer for their actions. As long as those who committed the crimes are free to continue their crimes, not fearing the repercussions of violence, and as long as the victims see the perpetrators go unpunished, peace is a remote possibility. The U.N. Security Council needs to step forward to enforce the rule of international law and to protect the innocent victims of the Darfur region by referring the action to the ICC.