INTERNATIONAL CRIMINAL COURT

SALIENT FEATURES:

1. The International Criminal Court was established by the Rome Statute of the International Criminal Court, so called because it was adopted in Rome, Italy on 17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. The Rome Statute is an international treaty, binding only on those States which formally express their consent to be bound by its provisions. These States then become “Parties” to the Statute. In accordance with its terms, the Statute entered into force on 1 July 2002, once 60 States had become Parties.

2. As of July 2008, 106 states are members of the Court;[6] Suriname and Cook Islands will become states parties on 1 October 2008, bringing the total to 108.[7] A further 40 countries have signed but not ratified the Rome Statute.[8] However, a number of states, including China, India and the United States, are critical of the Court and have not joined.[citation needed]

3. As of 1st June 2008, 106 countries are States Parties to the Rome Statute of the International Criminal Court. Out of them 30 are African States, 13 are Asian States, 16 are from Eastern Europe, 22 are from Latin America and the Caribbean, and 25 are from Western Europe and other States.

4. The official seat of the Court is in The Hague, Netherlands, but its proceedings may take place anywhere.[16] The ICC is sometimes referred to as a "world court"; it should not be confused with the International Court of Justice, also known as the World Court, which is the United Nations organisation that settles disputes between nations.[17]

5. The Court is composed of four organs. These are the Presidency, the judicial Divisions, the Office of the Prosecutor and the Registry.
Presidency
Judicial Divisions
Office of the Prosecutor
Registry

6. The Court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council.[9] The Court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes.[10][11] Primary responsibility to investigate and punish crimes is therefore left to individual states.[12]

7. To date, the Court has opened investigations into four situations: Northern Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur.[13] The Court has issued public arrest warrants for twelve people; six of them remain free, two have died, and four are in custody. The Court's first trial, of Congolese militia leader Thomas Lubanga, was due to begin on 23 June 2008 but it was halted on 13 June when judges ruled that the Prosecutor's refusal to disclose potentially exculpatory material had breached Lubanga's right to a fair trial.[14][15]

8. Crimes within the jurisdiction of the Court
Article 5 of the Rome Statute grants the Court jurisdiction over four groups of crimes, which it refers to as the “most serious crimes of concern to the international community as a whole”: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The statute defines each of these crimes except for aggression: it provides that the Court will not exercise its jurisdiction over the crime of aggression until such time as the states parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.[2][3]

9. During the negotiations that led to the Rome Statute, a large number of states argued that the Court should be allowed to exercise universal jurisdiction. However, this proposal was defeated due in large part to opposition from the United States.[37] A compromise was reached, allowing the Court to exercise jurisdiction only under the following limited circumstances:
--where the person accused of committing a crime is a national of a state party (or where the person's state has accepted the jurisdiction of the Court);
--where the alleged crime was committed on the territory of a state party (or where the state on whose territory the crime was committed has accepted the jurisdiction of the Court); or
--where a situation is referred to the Court by the UN Security Council.[9]

10. The Court's jurisdiction does not apply retroactively: it can only prosecute crimes committed on or after 1 July 2002 (the date on which the Rome Statute entered into force). Where a state becomes party to the Rome Statute after that date, the Court can exercise jurisdiction automatically with respect to crimes committed after the statute enters into force for that state.[5]

11. Even where the Court has jurisdiction, it will not necessarily act. The principle of “complementarity” provides that certain cases will be inadmissible even though the Court has jurisdiction. In general, a case will be inadmissible if it has been or is being investigated or prosecuted by a State with jurisdiction. However, a case may be admissible if the investigating or prosecuting State is unwilling or unable to genuinely to carry out the investigation or prosecution. For example, a case would be admissible if national proceedings were undertaken for the purpose of shielding the person from criminal responsibility. In addition, a case will be inadmissible if it is not of sufficient gravity to justify further action by the Court.

12. Assembly of States Parties
The Court's management oversight and legislative body, the Assembly of States Parties, consists of one representative from each state party.[40] Each state party has one vote and every effort has to be made to reach decisions by consensus.[40] If consensus cannot be reached, decisions are made by vote.[40]

13. The Assembly meets in full session once a year in New York or The Hague, and may also hold special sessions where circumstances require.[40] Sessions are open to observer states and non-governmental organisations.[41]

14. The Assembly elects the judges and prosecutors, decides the Court's budget, adopts important texts (such as the Rules of Procedure and Evidence), and provides management oversight to the other organs of the Court.[40][38] Article 46 of the Rome Statute allows the Assembly to remove from office a judge or prosecutor who "is found to have committed serious misconduct or a serious breach of his or her duties" or "is unable to exercise the functions required by this Statute".[42]

15. The states parties cannot interfere with the judicial functions of the Court.[43] Disputes concerning individual cases are settled by the Judicial Divisions.

16. The Rome Statute provides that all persons are presumed innocent until proven guilty beyond reasonable doubt,[54] and establishes certain rights of the accused and persons during investigations.[55] These include the right to be fully informed of the charges against him or her; the right to have a lawyer appointed, free of charge; the right to a speedy trial; and the right to examine the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf.

17. In order to ensure “equality of arms” between defence and prosecution teams, the ICC has established an independent Office of Public Counsel for the Defence (OPCD) to provide logistical support, advice and information to defendants and their counsel.[58][59] The OPCD also helps to safeguard the rights of the accused during the initial stages of an investigation.[60] However, Thomas Lubanga's defence team say they have been given a smaller budget than the Prosecutor and that evidence and witness statements have been slow to arrive.[61]

18. The Rome Statute provides for victim participation in the Court's proceedings.[62][63] Article 43(6) establishes a Victims and Witnesses Unit to provide "protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses."[64] Article 68 sets out procedures for the "Protection of the victims and witnesses and their participation in the proceedings."[65] The Court has also established an Office of Public Counsel for Victims, to provide support and assistance to victims and their legal representatives.[66] Article 78 of the Rome Statute establishes a Trust Fund to make financial reparations to victims and their families.[67]

19. Situations before the court
The Court has received complaints about alleged crimes in at least 139 countries[92] but, as of July 2008, the Prosecutor has opened investigations into just four situations: Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur.[13]

20. FINANCE
The Court is financed by contributions from the states parties. The amount payable by each state party is determined using the same method as the United Nations:[80] each state's contribution is based on the country’s capacity to pay, which reflects factors such as a national income and population. The maximum amount a single country can pay in any year is limited to 22% of the Court's budget; Japan paid this amount in 2008.