International Criminal Court and
The International Criminal Court
was set up at an international conference in
States that have not become party to
the Statute include the
Crimes the ICC can prosecute
The ICC may, in certain circumstances, prosecute individuals (not states) for (a) genocide, (b) war crimes, and/or (c) crimes against humanity, as defined in Articles 6, 7 and 8 of the Statute .
The Statue also mentions “the crime of aggression”, but the founding conference couldn’t agree on a definition. Article 5 says:
“The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted … defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.”
It would be nice to see a future
Tony Blair prosecuted by the ICC for the crime of aggression, but it isn’t
going to happen.
The ICC has jurisdiction in respect of genocide, war crimes and crimes against humanity, committed in the territories of states that are party to the Statute, or by nationals of states that are party to the Statute. However, the primary duty for prosecuting these crimes lies with the state in which they were committed – and the ICC only acquires jurisdiction to prosecute them if the state fails to prosecute them. In principle, the ICC can prosecute any individual responsible for these crimes, regardless of his/her civilian or military status or official position.
This means that, in theory, a
national of a state that is not party to the Statute, for example, a
To enforce this, in 2002 the
“does not and will not accept the jurisdiction of the ICC over the peacekeepers that it contributes to operations established and authorized by the United Nations” .
A temporary solution was found by passing resolution 1422  on 12 July 2002, which used the provisions in Article 16 of the Rome Statute empowering the Security Council to defer ICC investigations for a year, and then another year (see below). Paragraph 1 of the resolution stated:
“[The Security Council] Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise;”
In that way, the possibility of ICC
In the meantime, the
“The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.”
Hence, these agreements are referred to as Article 98 agreements.
ICC not an independent judicial body
The answer lies in Article 13(b) of the Statute, which states that the ICC may exercise jurisdiction in respect of genocide, war crimes and crimes against humanity if:
“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 of the United Nations;”
So, the ICC is not an independent
judicial body, the jurisdiction of which states can choose to reject, as the
Of course, this cannot happen to
veto-wielding members of the Security Council, who have chosen not to become a
party to the Statute – since they can wield their veto to block any attempt by
the Security Council to extend the ICC’s jurisdiction to their territory. So,
And neither will
Security Council refers Darfur to ICC
On 31 March 2005, the Security
Council passed Chapter VII resolution 1593 , sponsored
“to refer the
and ordered the Government of Sudan to cooperate with the ICC, even though it isn’t a party to the Rome Statute.
But Paragraph 5 emphasised:
“the need to promote healing and reconciliation and encourages in this respect the creation of institutions, involving all sectors of Sudanese society, such as truth and/or reconciliation commissions, in order to complement judicial processes and thereby reinforce the efforts to restore long-lasting peace, with African Union and international support as necessary;”
Institutions such as truth and/or reconciliation commissions involve drawing a line under the past and dispensing with formal judicial processes in respect of past activity that was unquestionably illegal. As such, their operation is incompatible with that of the ICC, which is duty bound to prosecute individuals in accordance with the Rome Statute, and cannot exempt individuals from prosecution, even if it was probable that prosecuting them would inhibit “healing and reconciliation”, or lead to further loss of life.
Lords Resistance Army
Here, it is worth recalling the
ICC’s involvement in the conflict in northern
Later, when attempts to broker a political settlement got under way, the existence of these charges became stumbling blocks toward an agreement, the LRA leaders naturally insisting that the charges be dropped as a condition for entering into an agreement. The Ugandan government has asked the ICC to drop the charges so that an agreement can be made, but there is no provision in the Rome Statute to allow the ICC to drop them, understandably so.
This illustrates the incompatibility between the application of a formal judicial process and a political process in attempting to resolve a conflict.
Resolution 1593 was passed by 11
“We are not
in favour of referring the question of Darfur to the International Criminal
Court (ICC) without the consent of the Sudanese Government, because we are
afraid that that would not only severely complicate efforts to secure an early
settlement of the Darfur issue, but also have unforeseeable consequences for
the north-south peace process in the
Now the Sudanese president has been
charged by the ICC, many people are wishing that
“We cannot accept any exercise of the ICC’s jurisdiction against the will of non-State parties, and we would find it difficult to endorse any Security Council authorization of such an exercise of jurisdiction by the ICC.”
That makes a case for vetoing the resolution, rather than abstaining. Anne Patterson continued:
not to oppose the resolution because of the need for the international
community to work together in order to end the climate of impunity in the
This protection for nationals of states, including the US, that are not parties to the Rome Statute is provided in Paragraph 6 of the resolution, which says that they cannot be prosecuted by the ICC without the consent of the states of which they are nationals. Paragraph 6 says:
“[The Security Council] Decides that nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State;”
Later, Anne Patterson said:
“We believe that, in the future, absent consent of the State involved, any investigations or prosecutions of nationals of non-party States should come only pursuant to a decision by the Security Council.”
This is significantly different to
the position she stated earlier, namely, that the
Of course, in the particular case of
US nationals, the two positions are identical since the
As a result of resolution 1593, the
ICC Prosecutor, Luis Moreno-Ocampo, presented cases against Ahmad Harun (a
minister in the Sudanese Government) and Ali Kushayb to the Pre-Trial Court of
the ICC, accusing them of war crimes and crimes against humanity in
And on 14 July 2008, Luis
Moreno-Ocampo accused President al-Bashir with genocide, as well as war crimes
and crimes against humanity. It will be
up to the
Moreno-Ocampo had the option of
making a “sealed” request to the
A prosecutor that chooses to act in such a way as to make it extremely unlikely that his prosecution will succeed, instead of in a way that it has a chance of succeeding, is not in the business of prosecution. He’s in the business of puffing himself up. The only rational explanation for Luis Moreno-Ocampo’s behaviour is that he wanted to be the first prosecutor to accuse a sitting head of state of the “crime of crimes”, that is, genocide. Although in September 2004 the US officially described what happened in Darfur as “genocide” , few people believe that genocide as defined in the Rome Statute took place in Darfur and that there is a chance of convicting anybody of genocide. But, first of all, the accused has to be brought to court, and that is very unlikely.
Will the Security Council intervene?
It remains to be seen if the
Interesting questions will arise for Western diplomats, if a warrant is issued for the President’s arrest, for example, will they be prepared to deal politically with a person who is wanted by the ICC, or with any member of his government?
Even if a warrant is issued, it is still possible for the Security Council to put the whole thing on the long finger (though it cannot make the ICC drop the charges). Article 16 of the Rome Statute gives it the power to do so. It states:
“No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”
So, the Security Council could defer
the prosecution for a year, and then another year, and so on. Admittedly, the Council will look a bit
foolish doing that, since it referred the situation in
Strangely, it seems as if the
with our long-standing views about the appropriate role of the Security
Council, we expect that, by having the Security Council refer the situation in
It remains to be seen if the Council exercise this “oversight” to the extent of deferring the prosecution indefinitely.
20 July 2008