International Criminal Court

Introduction to the ICC

Since its inception in July 2002, the International Criminal Court (ICC) has become a dominant organization in international relations and the premiere tribunal for the prosecution of war crimes. Despite being founded only a decade ago, the ICC has already investigated atrocities in countries including the Democratic Republic of Congo, Kenya, Libya, Sudan and Uganda. As the court's ongoing investigations progress, the resulting verdicts and effects on international relations will define the legitimacy and efficacy of the ICC.

The Rome Statute

The establishment of the ICC by the UN is the final product of fifty years of work aimed at developing an international judicial body with the capability of adjudicating cases of genocide and crimes against humanity. The efforts to create such a body began in 1872 with Hustav Moynier, one of the founders of the International Committee of the Red Cross (ICRC), who proposed a permanent court to respond to the crimes committed during the Franco-Prussian War. The drafters of the Treaty of Versailles raised the idea again in 1919, when an ad hoc international court tried the Kaiser and German war criminals for the events of World War I. Finally, the concept became a reality when the Allies created the Nuremberg and Tokyo tribunals to try Axis war criminals in the aftermath of World War II. At each step, it became clear that there was a definite need for an international body of justice.

The modern ICC grew out of a concept first suggested after the conclusion of World War II. On December 9, 1948, the third UN General Assembly passed Resolution 260, stating the need for international cooperation to punish and end genocide around the world. The resolution included the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide, which characterized genocide as "a crime under international law." In that resolution, the General Assembly stated the need for the International Law Commission (ILC) to study the possibility of an international judicial apparatus for trying those charged with the crime of genocide. The ILC concluded that the creation of an international court of this kind was both possible and desired by many nations. The committee prepared a draft statute by 1951 and a revised version in 1953. However, the General Assembly decided to postpone the statute's consideration until they could create a concrete definition of "aggression."

The ILC proposed the creation of the ICC again in 1989, motivated by an effort to end international drug trafficking. Trinidad and Tobago reinvigorated the existing ILC proposal for the establishment of an ICC, and the General Assembly responded by asking the ILC to resume its work on drafting the statute with a focus on curbing drug trafficking. In the early 1990s, the conflicts in Bosnia-Herzegovina, Croatia and Rwanda resulted in many incidents of crimes against humanity, war crimes and acts of genocide. In response to these incidents, the UN Security Council (UNSC) established two separate temporary ad hoc tribunals to hold individuals accountable for the atrocities. The nature of these conflicts highlighted the need for an international criminal court.

The topic of the proposed body was occasionally raised within the General Assembly many times, but it was not until the 1993 conflict in the former Yugoslavia that the General Assembly asked the ILC to resume work on the project as a means of prosecuting genocide. In its efforts to end the suffering of the conflict, the General Assembly created an ad hoc criminal tribunal for the former Yugoslavia in order to deter future war crimes by punishing those who committed the atrocities. As a result of the work done at that time, the ILC submitted a draft statute in June 1994 to the General Assembly. In order to consider major substantive issues in the drafted statute, the General Assembly established the Ad Hoc Committee on the Establishment of an International Criminal Court, which met twice in 1995.

The General Assembly reviewed the Committee's report, which led to the creation of the Preparatory Committee on the Establishment of the ICC in order to prepare a finalized draft text of the statute. The Preparatory Committee met for six sessions between 1996 and 1998 at the UN headquarters in New York. At these sessions, various NGOs contributed to the discussions under the direction of the NGO Coalition for an ICC (CICC). The Preparatory Committee convened an intersessional meeting in Zutohen, the Netherlands, in January 1998 in order to consolidate and restructure the articles into a final draft.

During June and July 1998, the UN General Assembly met in Rome, Italy, to convene the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. One hundred and sixty countries participated in the "Conference of Rome," of which 120 voted in favor of adoption of the Rome Statute of the ICC. Seven nations, including the US, Israel, China, Iraq and Qatar, voted against the treaty. UN Secretary-General Kofi Annan spoke at the session in which the Assembly finalized and adopted the convention establishing the ICC:

In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realization. We will do our part to see it through till the end. We ask you . . . to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished.
The Preparatory Commission (PrepCom) was charged with establishing the court and ensuring it functioned smoothly. PrepCom also oversaw the negotiation and adoption of rules of procedure, evidence, elements of crimes and a relationship agreement between the court, the UN and the nations who chose to adhere to its jurisdiction. On April 11, 2002, the sixtieth ratification necessary to trigger the entry into force of the Rome Statute was deposited in conjunction by several states.

The treaty entered into full force of law on July 1, 2002.

ICC Jurisdiction

Articles 5 through 20 of the Rome Statute govern the jurisdiction of the ICC. There are four major factors to consider when assessing the court's jurisdiction. First, the specific crime committed has to fit the definition of one of the four crimes outlined in the statute. Second, the court must be able to assert territorial jurisdiction over the accused person. Third, the crime in question must have been committed within the temporal jurisdiction of the court. Finally, there must be no option of bringing the trial in a competent national court.

Article 5 lists specific crimes over which the ICC with have jurisdiction:

The jurisdiction of the Court shall be limited to 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.
While Article 5 gives the ICC the power to prosecute anyone who commits any of these crimes, the crimes in question must still fit the specific definitions laid out by the Rome Statute.

Charges

"Genocide" is defined in Article 6 of the Rome Statute:

For the purpose of this statute, "genocide" means 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
To exercise jurisdiction over someone suspected of committing genocide, their actions must conform to this definition. The intent requirement requires any of the mentioned actions to be committed with the specific intent of destroying any of the protected types of groups listed. In addition, an important consideration is what types of groups are protected under the criminal heading of "genocide." The statute specifically mentions ethnic, racial and religious groups, but leaves out designations such as political groups. A good example of this distinction can be found in the case against Omar al-Bashir.

The charge of crimes against humanity, governed by Article 7, includes many broad categories of crimes, including murder, extermination, enslavement, deportation, imprisonment, torture, rape, forced disappearance and apartheid. The specific definitions of each crime can be found in Article 7(2) (b)-(e). These actions must be "directed against any civilian population" and must constitute a "widespread or systemic attack." According to the statute, "'directed against any civilian population" means "a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack." If the accused's actions fit any of these categories, the ICC can exercise jurisdiction, such as when Libyan autocrat Muammar Gaddafi was charged with crimes against humanity in May 2011.

War crimes, which are defined by Article 8, include a wide range of different crimes. They are broken up into three different categories. If an individual's actions fall into any one of these categories, he or she may be subject to ICC jurisdiction.

The first war crime category encompasses "grave breaches" of the Geneva Conventions of 1949. Such breaches include: willful killing, torture and inhumane treatment, extensive destruction of property, forcing a prisoner of war to serve the opposite side, unlawful deportation and the taking of hostages.

The second war crime category includes 26 crimes adopted from international custom in armed conflict. They include intentionally directing attacks against civilian populations, killing or wounding a combatant who has surrendered, pillaging a town or place, employing poison or poisoned weapons and conscripting or enlisting children under the age of fifteen years into the national armed forces. These offenses are limited to actions taken during an international armed conflict.

The third war crime category, which is limited to actions during "armed conflicts not of an international character," is based on accepted customs during an internal armed conflict. These offenses are similar to the second category and include: intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, ordering the displacement of civilian populations, killing or wounding treacherously a combatant and subjecting persons of another party to physical mutilation or to medical or scientific experiments. This section "applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups." This category would include situations such as civil wars. A good example of this type of case is the trial of former Congolese militia leader Thomas Lubanga Dyilo, who was found guilty in March 2012 in the ICC's first verdict.

The crime of aggression, at first, was not given an official definition in the Rome Statute and, thus, did not give the court a basis for jurisdiction. In order to enter into force, the signatories needed to agree on a definition of the crime and pass an amendment to the Rome Statute in accordance with Articles 121 and 123. The signatories eventually came to an agreement and passed a definition in 2010. They agreed that a crime of aggression [PDF] "means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations." The amendment also clearly defined the elements of the crime:

(1) The perpetrator planned, prepared, initiated or executed an act of aggression. (2) The perpetrator was a person in a position effectively to exercise control over or to direct the political or military action of the State, which committed the act of aggression. (3) The act of aggression - the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations - was committed. (4) The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations. (5) The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations. (6) The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations.
This provision will not enter into force until 2017 due to the Rome Statute's amendment procedures.

Limitations

The nature of these offenses puts them within the scope and specific goals of the court itself, but there are several restrictions preventing the court from exercising universal jurisdiction in all instances of these crimes. The place in which the crime occurred, as well as where the accused person is from, are important considerations when determining jurisdiction. Article 12 details the specifics of this restriction by establishing that all nations which are parties to the Rome Statute are subject to ICC jurisdiction. If the state where the crimes took place is a party to the statute, or if they took place on board a vessel registered in that state, the ICC may exercise jurisdiction. Further, if the accused is a national of a state that is a party, the ICC may exercise jurisdiction. The statute also provides for states to accept jurisdiction without being a party. However, this provision has proven controversial. While considering jurisdiction over a war crimes case in Palestine, the ICC determined that Palestine did not meet the definition of a state according to Article 12, and thus is not within the court's jurisdiction even though the Palestinian Prime Minister requested that the investigation take place.

In addition, according to Article 13, the court may only exercise jurisdiction over a situation if

(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) 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; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
This essentially means that the prosecutor must properly initiate the investigation in order to exercise jurisdiction over a particular situation.

The ICC may only exercise jurisdiction over crimes that were committed after the Rome Statute entered into force. This means the court cannot retroactively punish offenses that occurred before the court actually existed. This limitation is the reason the court determined it had no jurisdiction over the case against Saddam Hussein in 2005 for crimes he allegedly committed in 1982.

The court, according to Article 17, may only exercise jurisdiction if the court of an individual state is "unwilling or unable to genuinely carry out the investigation or prosecution." There are three factors the court must consider before determining if a state is "unwilling":
(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
One of these factors must exist to make this determination. A state is determined to be "unable to carry out the investigation or prosecution" if the court finds "due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings." The controversy that can result from this determination can be seen in the trial of high-ranking Kenyan officials, known as the "Ocampo Six," after the ICC determined Kenya was "unwilling" to investigate the situation completely.

Non-Signatory Countries

Of the 139 states that signed the Rome Statute, 32 have not yet ratified the treaty. According to the Vienna Convention on the Law of Treaties [PDF], a state that has signed but not ratified a treaty is obliged to refrain from "acts which would defeat the object and purpose" of the treaty. Israel, Sudan and the US have unsigned the Rome Statute, indicating that they no longer intend to become a party to the treaty. Thus, they have no legal obligations arising from their signature of the statute.

The ICC's jurisdiction includes: individuals who are citizens of a state that has ratified the treaty, individuals who commit their alleged crimes on the territory of a state party and cases referred to the ICC by demand of the UNSC. The principle of complementarity in Article 17 of the Rome Statute prohibits the ICC from initiating an investigation when a domestic judicial system has already addressed the issue. International law already allows individual states to try perpetrators of genocide, war crimes and crimes against humanity under the principle of universal jurisdiction.

A non-party state may not have acceded to the ICC, but it may still be subject to an obligation to cooperate in certain cases. According to the general principle of the law of treaties, as embodied in the Vienna Convention on the Law of Treaties, the obligation of non-party states to cooperate differs from that of state parties. While Article 86 of the Rome Statute requires party states to cooperate fully with an investigation and prosecution, Article 87 provides for cooperation with the ICC by non-party states. It stipulates that the Court ''may invite any State not party to this statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.'' Non-party states are not obligated to cooperate without their consent.

When the UNSC refers a situation to the ICC, it involves UN member states, whether they are party states to the ICC or not. These referrals arise when a nation is unable or unwilling to try suspects of crimes against humanity or war crimes.

On March 31, 2005, the UNSC approved a draft resolution granting the ICC jurisdiction over the conflict in Darfur, Sudan. This was the first instance of the UNSC utilizing Article 13(b) of the Rome Statute, the ICC's investigation mechanism. Sudan remains uncooperative despite its obligations to take any steps it deems appropriate to cooperate with the investigation. Sudan, a non-party to the Rome Statute, refuses to recognize ICC jurisdiction. In response, on May 26, 2010, the ICC reported Sudan to the UNSC for lack of cooperation in the pursuit of three alleged war criminals, including Sudanese Defense Minister Abdel Raheem Muhammad Hussein.

Democratic Republic of Congo

In accordance with Article 14 (referrals to the ICC by the states parties), formal investigations into possible war crimes in the Democratic Republic of Congo (DRC) began on June 23, 2004. On August 26, 2006, the ICC formally charged DRC militia leader Thomas Lubanga Dyilo with recruitment, enlistment and use of child soldiers, marking the beginning of the first ever formal investigation conducted by the ICC. On March 14, 2012, the ICC issued its first verdict, against Dyilo for the war crime of enlistment of child soldiers. The ICC announced in August 2012 that it would begin implementation of its first plan for reparations to the victims affected by Dyilo.

In March 2013, Congolese war crimes suspect General Bosco Ntaganda, who had been wanted since 2006 by the ICC on charges of enlisting and conscripting children under the age of 15 and of using them to participate actively in DRC hostilities, surrendered to a US embassy in Rwanda and requested extradition to the ICC. Ntaganda then formally surrendered to the ICC and denied all charges against him at his first appearance before the court.

Uganda

The government of Uganda referred the conflict in northern Uganda to the ICC on December 16, 2003. In accordance with Article 14 of the Rome Statute (referrals to the ICC by party states), formal investigations into possible war crimes in northern Uganda began on July 29, 2004. In October 2005, the ICC issued warrants under seal for the arrest of five leaders of the Lord's Resistance Army (LRA), including Joseph Kony. The ICC called for global cooperation in facilitating the arrests, but none of the suspects have yet stood trial. All five defendants were consolidated into one case, but dropped to only four defendants after the confirmation of Raska Lukwiya's death. Efforts to apprehend Kony have sparked international activism, such as when then-ICC Chief Prosecutor Luis Moreno-Ocampo announced his support for a publicity campaign by Invisible Children advocating the capture of Kony. Although the arrest warrants remain in place, Uganda could conceivably challenge the admissibility of the case under Article 19 of the Rome Statute by showing that the conditions surrounding the need for a referral to the ICC no longer exist.

The situation in Uganda highlights possible tension between the ICC and sovereign governments. JURIST Guest Columnist Wes Rist argued:

By creating a special war crimes division in the Ugandan High Court, the government is taking the steps that the ICC was created to promote. This is not a failure for Ocampo or the ICC. In fact, this is the result that the ICC should be hoping for. The outstanding indictments against Joseph Kony, Vincent Otti, Okot Obhiambo and Dominic Ongwen have been a persistent bar to the attempts by both sides to reach a permanent peace agreement. In addition, there seem to be substantial reports that the population of Uganda wishes to see these individuals face justice in their own country and not at the ICC. In this case, and certainly in cases to come, there is a very difficult and fine line that the ICC must walk between pursuing justice and preventing peace. But in this case, it seems that both objectives are obtainable if the ICC is willing to cooperate.
Central African Republic

On April 14, 2006, the Central African Republic (CAR) Court, declaring itself incompetent to handle war crimes proceedings, referred DRC's former president Ange Felix Patasse and Congo's Vice-President Jean Pierre Bemba to the ICC, on war crimes charges stemming from accusations that security forces executed and raped civilians. On May 24, 2008, Belgian authorities arrested Bemba after the ICC issued the warrant for his arrest.

Sudan

In accordance with the Rome Statute, the ICC also has the power to report the status of suspects entering party states. On July 12, 2010, the ICC issued an arrest warrant for Sudanese President Omar al-Bashir, charging him with three counts of genocide. On August 27, 2010, the ICC reported al-Bashir's visit to Kenya and directed that country to take any actions deemed necessary to apprehend him. Officials in Kenya failed to arrest al-Bashir, effectively failing to meet Kenya's international obligations as a party to the Rome Statute. While the Sudan is not a party state, and therefore not obligated to take action in regard to the investigation, Kenya is legally bound to act as a signatory to the statute. Weeks earlier, al-Bashir was able to visit Chad, another party state to the Rome Statute, without arrest, despite Moreno-Ocampo's call for international cooperation. Under the Rome Statute, ICC member nations that do not comply with cooperation requests can be referred to the UNSC for non-cooperation. On November 28, 2011, a Kenyan court issued a ruling declaring that al-Bashir must be arrested if he ever returns to Kenya.

The failure of officials to arrest al-Bashir indicates a problem with the legitimacy of the court when nations are not willing to cooperate. JURIST Guest Columnist Eric Leonard argued:
The Kenyan government's actions are but one example of this broader problem. Yes, the ICC has the capacity to issue arrest warrants for those individuals accused of violating the international norms of humanitarian law, but in order to act upon those warrants the Court needs state cooperation. The anarchical nature of the international system requires such cooperation. Thus, the ICC, in many ways, is only as effective as the member states make it.
Ivory Coast

On October 3, 2011, the ICC announced that it would begin an investigation into alleged war crimes committed in the Ivory Coast during the post-election violence since November 2010. The Ivory Coast is not a party to the Rome Statute. However, pursuant to Article 12(3), the State has accepted the ICC's jurisdiction over the crimes as if it were a party state. A state utilizing Article 12(3) jurisdiction cannot refer a case to the ICC, but the prosecutor can open an investigation after a pre-trial chamber gives its consent to do so, as was the case in the Ivory Coast. On February 2, 2012, the pre-trial Chamber permitted Moreno-Ocampo to expand his investigation of war crimes in the Ivory Coast to incidents dating back to 2002. On June 12, 2012, the ICC agreed to allow postponement of the hearing of the charges against former Ivory Coast president Laurent Gbagbo after his defense team requested additional time. Allegations against Gbagbo include murder, persecution, inhumane acts, rape and other forms of sexual violence allegedly committed during the 2010 post-election period. National authorities surrendered him to the ICC on November 30, 2011.

Kenya

On January 23, 2012, Moreno-Ocampo confirmed charges against four out of the six suspects allegedly involved in post-election disorder following the December 2007 Kenyan elections, during which an estimated 1,100 people were killed. The Kenyan investigation is surrounded by controversy, as the government of Kenya and the National Assembly both attempted to halt the ICC process, arguing that the government is capable of prosecuting the six men domestically, and thus, according to the Rome Statute, should maintain jurisdiction over the case. Under the Rome Statute's complementarity principle, the ICC only has jurisdiction over cases where the relevant state is unwilling or unable to investigate.

The Kenya ICC trial was scheduled to begin in April 2013 until Kenyan Presidential candidate Uhuru Kenyatta requested that the ICC postpone his trial. ICC Chief Prosecutor Fatou Bensouda granted Kenyatta's request and delayed the trial of four of the defendants, which was subsequently approved by ICC judges. The ICC also postponed the trial of Kenyan Vice Presidential candidate William Ruto in order to ensure trial preparedness. In March 2013, the ICC dropped charges of crimes against humanity against Kenyan politician Francis Muthaura, citing evidence and witness testimony issues. Subsequently, Kenyatta requested that the ICC also drop charges against him due to lack of evidence.

Also in March 2013, a Kenyan election commission declared Kenyatta the winner of the country's 2013 presidential election, results that were disputed by rival candidate Prime Minister Raila Odinga. Odinga appealed the election results, which resulted in the Supreme Court of Kenya imposing a gag order on all parties to the case, then ordering a recount. The Court subsequently upheld the results of the election, and Kenyatta was sworn in as Kenya's fourth president in April 2013.

Non-States

On April 3, 2012, Moreno-Ocampo's office issued its decision on the struggles in Palestine, stating that it is unable to proceed with its preliminary investigation of possible war crimes because it does not have the authority to declare Palestine a state for the purposes of the Rome Statute. The decision came over three years after Palestine submitted a declaration under Article 12(3) of the Rome Statute to trigger the jurisdiction of the court as a non-party state to the statute.

JURIST Guest Columnist Valentina Azarov criticized Moreno-Ocampo's decision:

The Office of the Prosecutor's (OTP) fuzzy reasoning, which blurred the law and the politics of international relations, begs the question of whether the decision on Palestine was as impartial and rigorous as should be expected. Arguably, the sharp turn in the OTP's approach could even form the basis for a claim that the quality of the examination breached the OTP's professional duties to ensure a standard of rigor and impartiality in its examination of cases.
Legitimacy of the Court

The politicization of the ICC continues to threaten its legitimacy. One of the biggest critics of the ICC is the US, which stands virtually alone as the only Western nation not to ratify the Rome Statute. Parties to the statute criticize the US decision to abstain from participating in the court, claiming that the US seeks to immunize its officials and soldiers from becoming defendants in war crimes prosecutions. Indeed, on March 18, 2007, Moreno-Ocampo claimed that then-US President George W. Bush may face a war crimes investigation (pending jurisdictional requirements) stemming from the conduct of coalition forces in Iraq. Though President Bill Clinton signed the Rome Statute in 2000, the Clinton administration did not submit the treaty to the Senate for ratification. In 2002, President George W. Bush unsigned the treaty. Although President Barack Obama's administration has expressed greater support for the ICC than the Bush Administration, it is unlikely that the US will become a party to the Rome Statute in the near future.

Involvement in Libya

The Libya Conflict developed from long-standing sectarian rivalries in the country, which resulted in an armed clash between autocrat Colonel Muammar Gaddafi's supporters and those seeking to oust him from power. In a bid to end the unrest, Gaddafi's son, Saif al-Islam, gave a televised address in which he announced the government would consider adopting a constitution, but warned of civil war if the protests continued. Shortly after, 230 protester deaths were reported, prompting the UN to accuse the Libyan government of committing crimes against humanity, resulting in an investigation by the ICC.

On February 26, 2011, the UNSC voted unanimously to refer the situation in Libya to the ICC. The ICC investigation quickly uncovered evidence of Gaddafi's involvement in the killing of innocent civilians, mass arrests, torture and forced disappearances. In March 2011, Moreno-Ocampo stated that the ICC would bring formal charges against Gaddafi and that no immunity would be granted. On May 16, 2011, Moreno-Ocampo announced that he would seek arrest warrants for Gaddafi, Gaddafi's son Saif al-Islam Gaddafi (the "de facto Prime Minister") and his brother-in-law, Abdullah al-Sanussi. The ICC issued the warrants the following month. Specifically, the warrants alleged that the three men conspired to perpetrate and cover-up crimes against humanity committed between February 15 and February 28, 2011.

On October 20, 2011, Gaddafi was captured and killed by Libyan opposition forces. However, Saif al-Islam Gaddafi and Abdullah al-Senussi reportedly left Libya in order to turn themselves in to the ICC. They were ultimately unsuccessful, as Libyan officials confirmed on March 17, 2012 that they had arrested both Saif al-Islam and al-Senussi; however, Libya refused to hand over custody of Saif al-Islam to the ICC, prompting Moreno-Ocampo to report Libya to the UN for its refusal to comply with its obligations under the Rome Statute.

Under Article 17, the ICC does not have jurisdiction when "[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution." Since the Libyan national judiciary was actively investigating Saif al-Islam, Libya argued that the ICC did not have jurisdiction. ICC prosecutor Moreno-Ocampo recognized the historic nature of the case, stating:

This is the first time in the short history of the International Criminal Court that a State is requesting jurisdiction to conduct a national investigation against the same individual and for the same incidents under investigation by the International Criminal Court. The challenge goes to the heart of the system of justice established in 1998 by the Rome Statute: national States have the primary obligation to conduct proceedings and the International Criminal Court's intervention will be complementary.
JURIST Guest Columnist Eric Leonard argued that the ICC should allow Libya to proceed with its own trial:
The real issue is whether Libya has the ability to prosecute. The newly-formed interim government, the Transitional National Council (TNC), is trying to establish some sense of legitimacy in this war-torn state. Their authority is still questionable, while the situation on the ground remains shaky and fluid. So in such an unstable situation, should the Libyan government be provided the opportunity to prosecute such high profile cases? Absolutely. . . . [T]he ICC is a court of last resort. This means that the court should always privilege the principle of complementarity. If Libya can prosecute these cases, this shows the ICC as an effective institution. It also shows that the TNC has some sense of legitimacy and does not need the ICC to clean up its post-revolution mess.
Despite this tension between Libya and the ICC, the case also demonstrates the importance of a permanent international court. JURIST Guest Columnist Leila Hanafi discussed the importance of the support of the international community:
The international community will need to assist Libya in its efforts to establish transitional justice, bearing in mind that some justice mechanisms already exist in Libya, but, also, that there is a shortage of such mechanisms. In this respect, the role of capacity building for civil society organizations cannot be overemphasized, including documentation of human rights violations, protection of victims and witnesses in view of litigation and legislative reform.
The trial was set to begin in June 2012; however, on June 7, 2012, four ICC staff members were detained in Libya during a meeting with Saif al-Islam. Reports emerged that Libyan officials were interrogating the ICC staff members in order to determine whether they had broken the law. The ICC and other UN-backed courts, including the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY), called for the staffers' release. Nearly four weeks after the staffers were initially detained, the Libyan government released them with a hearing scheduled for July 23. A lawyer that was among the ICC staffers announced upon release that she did not believe Saif al-Salam could receive a fair trial in Libya.

In June 2013, the ICC pre-trial chamber ruled that the Libyan judicial system was not prepared to handle Saif al-Islam's trial, meaning jurisdiction fell to the ICC. The Libyan government, which may appeal the ICC ruling, was ordered to turn over Saif al-Islam for trial at the ICC.

Other International Courts

Although the ICC's name implies exclusivity, it is one of many international criminal tribunals. Several permanent international tribunals dealing in civil matters have also developed, ranging from the Permanent Court of Arbitration to the International Tribunal for the Law of the Sea to the World Trade Organization's Dispute Settlement Body. The UNSC controls the International Court of Justice (ICJ), which settles legal disputes between UN nations that typically include acts of war or disputes arising out of settled conflicts. UNSC members have the power to veto any judgment made by the court. Recent rulings of note from the ICJ have included attempts to intervene in the Georgia-Russia conflict and force negotiations between the two nations, the granting of immunity to Germany from other UN states' claims for reparations resulting from World War II and ordering Thailand and Cambodia to withdraw from a temple on their disputed border.

There are also a number of tribunals similar to the ICC dedicated to war crimes, but with focuses on specific conflicts that have an especially large number of potential defendants. These include the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Special Tribunal for Lebanon (STL). While the ICC derives its authority from the Rome Statute, the ICTY and ICTR were created out of UN resolutions to handle the aftermath of the Bosnian civil war and the Rwanda genocide, respectively. The other courts derive from specific agreements between the UN and the affected states. The SCSL tries cases resulting from the Sierra Leone civil war, and the ECCC tries members of the Khmer Rouge, who committed widespread acts of torture and genocide in Cambodia during the 1970s. The STL is unique in that it is investigating a singular event, the 2005 assassination of former Lebanese Prime Minister Rafik Hariri.

The success of the various international tribunals has been mixed. JURIST Contributing Editor Haider Ala Hamoudi questioned the legitimacy of all such international tribunals, including the ICC:

The source of the danger lies in the Rome Statute of the ICC, which has a rather narrow prescription of jurisdiction, limiting it for the most part to specified international crimes either (i) occurring in States which are parties to the statute or in which a national of such a State is a Party or (ii) referred to it by the Security Council. To put the matter starkly, if China — not a member to the Rome Statute and with veto power in the Security Council — were to engage in a broad genocide of Tibet's population (no intention to suggest that this is at all within China's contemplation, and offered only by way of illustrative hypothetical), the ICC would lack jurisdiction entirely. The same would not be true if a government without a permanent seat in the Security Council were to kill dozens of protesters in a rally, and the Security Council were to refer the matter to the court for resolution. This disturbing discrepancy is scarcely defended by those earnestly engaged in the work of international criminal justice but rather justified as a necessary compromise to political realities ... To the extent that these courts are understood to be nothing more than the (well-intentioned) legal enforcement wing of the Security Council, less engaged in justice and more in pursuing selectively chosen political enemies for prosecution while ignoring allies whose crimes are no less great, the grave threat to legitimacy thereby arises.
Additionally, international tribunals based in native countries have been accused of ineffectiveness — if not outright corruption. Most notably, the impartiality of the ECCC has been questioned. The STL has faced the unique problem of having to try its main suspects in absentia due to the Lebanese government's reluctance to arrest members of Hezbollah. JURIST Guest Columnist Niccolo Pons discussed how this will present a number of obstacles for the tribunal, including raising the burden on the prosecution:
[T]he STL will have to bear a much more challenging and sensitive burden. The victims of terrorism and Lebanese people more generally are waiting for answers and have great expectations. The STL will have to meet these expectations and demonstrate that proceedings in absentia, should they really take place, do not represent a failure of the judicial system or a shortcoming to the establishment of truth, but one of the legitimate resources provided by international law on which the Tribunal can rely to honor its mandate and hold a fair and impartial trial.
Due to their connections with the state, tribunals such as the ICTY and the ICTR have suffered the consequences of nations' unwillingness to admit their past crimes, whereas the ICC functions as an independent body that enters a nation to delineate justice. In particular, ICTR suspects have been fully acquitted as a result of genocide denial, although JURIST Guest Columnist Eric Leonard of the Henkel Family Chair in International Affairs at Shenandoah University argued that the ICC should embrace complementarity and conduct more trials in the locations of the war crimes, with regional influence welcomed.

Another difficulty has been the treatment and sentencing of suspects. At the 2010 Review Conference of the Rome Statute, the ICC identified [PDF] the difficulty with housing eventual war crimes convicts and voted to amend the Rome Statute to encourage signatory states to accept this responsibility:
A sentence of imprisonment can also be served in a prison facility made available to the designated State by an international or regional organization, arrangement or agency.
(b) states parties and states that have indicated their willingness to accept sentenced persons should, directly or through competent international organizations, promote actively international cooperation at all levels, particularly at the regional and sub regional levels.
Typically, in international tribunals like The Hague, defendants are housed in spacious living arrangements with all of their basic needs provided for. They have access to top attorneys and research facilities. There is also concern that sentences, especially for notorious war criminals such as Charles Taylor, can in no way balance the scales of justice against the crimes that have been committed. JURIST Guest Columnist Kenneth Gallant criticized the sentencing of Taylor particularly for a wealth of missed opportunities in not demanding reparations. The ICC has not yet suffered from as many of these criticisms, having only truly completed one trial with the conviction of Thomas Lubanga Dyilo in March 2012.

Currently, none of the international tribunals, including the ICC, impose the death penalty.


JURIST Calls for Commentary
Timeline

6/20/2013: Kenya president's war crimes trial was postponed

6/18/2013: Lawyer for Gaddafi son accused Libya of defying ICC

6/18/2013: ICC granted Kenya VP's request to skip parts of upcoming trial

6/17/2013: ICC delayed preliminary hearing for Congo war crimes suspect

6/5/2013: ICC chief prosecutor expressed disappointment in lack of UN action on Darfur

6/3/2013: ICC postponed proceedings against former Ivory Coast president

6/3/2013: HRW claimed that ICC suspect was seen at more recent Sudan crime scenes

 ...[more]

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