International Criminal Court and War Crimes (TH)

Context: The International Criminal Court convicted a Ugandan child soldier-turned-Lord’s Resistance Army commander of war crimes and crimes against humanity.

  • Dominic Ongwen, 45, was found guilty of 61 charges over a reign of terror in the early 2000s, including the first conviction by the ICC for the crime of forced pregnancy.
  • The United Nations says the LRA killed more than 1,00,000 people and abducted 60,000 children in a campaign of violence that spread to three other African nations — Sudan, the Democratic Republic of Congo and the Central African Republic.

Analysis

The International Criminal Court

  • The International Criminal Court (ICC), governed by the Rome Statute, is the first permanent, treaty-based, international criminal court.
  • Earlier international criminal courts were established to try crimes committed only within a specific time-frame and during a specific conflict.
  • The ICC is an independent international organisation, and is not part of the United Nations system.
  • Its seat is at The Hague in the Netherlands.
  • Although the Court’s expenses are funded primarily by States Parties to the Rome Statute, it also receives voluntary contributions from governments, international organisations, individuals, corporations and other entities.
  • It is mandated with investigating and prosecuting (four) crimes of genocide, crimes against humanity, crime of aggression, and war crimes.
  • The Court may exercise jurisdiction over such international crimes only if they were committed on the territory of a State Party or by one of its nationals.
  • Matters referred to ICC by the United Nations Security Council, whose resolutions are binding on all UN member states, are also tried
  • ICC can initiate an investigation or prosecution in three different ways: „
  1. States Parties to the Statute of the ICC can refer situations to it
  2. United Nations Security Council can request ICC to launch an investigation
  3. It may initiate investigations proprio motu (on its own initiative) on the basis of information received from reliable sources.
  • No immunity is granted to any person acting in an official capacity as a head of state, member of government or parliament or as an elected representative or public official
  • In no way, ICC exempts a person from prosecution or criminal responsibility.
  • However, the ICC cannot prosecute persons who were under the age of 18 at the time a crime was allegedly committed.
  • For the first time in the history of international criminal justice, victims have the right to participate in proceedings and request reparations.
  • This means that they may not only testify as witnesses, but also present their views and concerns at all stages of the proceedings
  • The Rome Statute is the founding treaty of the International Criminal Court. Rome Statute then took effect in 2002, upon ratification by 60 States
  • The ICC has jurisdiction over the most serious crimes of concern to the international community as a whole, namely genocide, crimes against humanity and war crimes, when committed after 1 July 2002.
  • Each of these crimes is clearly defined in the Rome Statute and other relevant texts.
  • Under the Rome Statute, the International Criminal Court (ICC) can only investigate and prosecute for international crimes in situations where states are “unable” or “unwilling” to do so themselves; the jurisdiction of the court is complementary to jurisdictions of domestic courts.
  1. This fundamental principle is known as the principle of complementarity.
  2. The court has jurisdiction over crimes only if they are committed in the territory of a state party or if they are committed by a national of a state party.
  • The ICC has jurisdiction over the gravest instances of atrocity crimes and targets only the highest priority perpetrators of these crimes.
  • The ICC prosecutes individuals, not organizations or governments.
  • The ICC is not part of the United Nations.
  • The UN Security Council is empowered, under the Rome Statute, to refer complaints against non-member nations to the International Criminal Court.
  • Cases are referred to the court by national governments or the United Nations Security Council.
  • The 18 judges of the Court serve nine-year terms.
  • The governing body of ICC, the Assembly of States Parties (ASP), currently consists of 123 countries that have ratified and acceded to the Rome Statute: largest number of countries are from the Africa region.
  • Kiribati recently became the latest country to ratify Rome Statute in November 2019.
  • Burundi withdrew from the ICC effective October 2017, and the Philippines gave notice of withdrawal in March 2018, which goes into effect one year later.
  1. An effort by the government of Kenya – at a time when its president and deputy president were facing charges before the court – to lead a mass withdrawal of African states from the treaty failed to materialize.
  2. Burundi is the first member-country to leave the ICC because, in September 2017, a UN commission investigating violence for over two years under President Pierre Nkurunziza recommended a criminal investigation by the court.
  • Some notable countries like United States, Russia, India, China, Israel, Qatar, Iraq, and Libya – aren’t part of the ICC.
  • The Rome Statute has been signed by 139 countries, and 123 have ratified it through their Parliaments and internal process.
  • Although the U.S. was part of the founding movement to build the ICC to try cases of genocide and war crime, especially after the courts in Rwanda failed, it decided not to ratify the Statute in 2002.
  • Countries like Russia, China and India, however, were never in favour of the Rome Statute or the ICC, and never signed on.

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