Why the International Criminal Court is Different.
Author: Stojanka Mirceva
Originally Published at Peace and Conflict Monitor on: 01/26/2004
Category: Special Report
Widespread violations of international humanitarian law had become a practice in the contemporary world. Thus, growing concerns of the international community[i] resulted in a demand for international criminal prosecution in an international criminal tribunal for crimes recognized under customary international law as a threat to international peace and security (Kittichaisaree, 2001; Wedgwood, 1999). The ad hoc tribunals (ICTY and ICTR)[ii] and the International Criminal Court (ICC)[iii] were introduced in the last decade of 20th century. The idea of “peace through justice” (Popovski, 2000) is consistent with the UN Charter aimed at maintenance of international peace and security. This goal is achievable through the international tribunal exercising jurisdiction irrespective of where or by whom the international crimes are committed, emphasizing individual criminal responsibility and bringing justice for victims. The need for existence of international tribunals that will punish past and deter future crimes is, as Wedgwood pointed out, “to show that the safeguard of civilians and non-combatants is a demand of the law, and not a matter of arbitrage”(1999:94).
The aim of this paper is to analyze the differences in the jurisdiction of the International Criminal Court and the jurisdictions of the International Criminal Tribunal for former Yugoslavia and the International Criminal Tribunal for Rwanda. In particular, what are the grounds for the respective differences and how they can be explained. A comprehensive analysis of all provisions is beyond the scope of this essay. However, the focus is on the comparable differences. This essay has been organized in three sections. The first section will examine the issues of establishment. Emphasis will be placed on the nature of the differing relations that exist between the ICC, ICTY and ICTR with national criminal courts. The second section will be concerned with the differences in initiation of, and particularly it will examine the role and powers of the Prosecutor in the initiation of an investigation and trial. The last section will discuss the issues related to the subject matter jurisdiction. Finally, assuming that these jurisdictional differences between the ad hoc tribunals and the permanent criminal court constitute a historical necessity in the development of international criminal law, I will conclude by speculating about the longer term prospects for the efficient operation of the ICC.
Issues of establishment
The relevant legal mechanisms of the international community for the governance of warfare have become operational with the establishment of the ICTY followed by the ICTR and the permanent ICC. In response to the serious violations of international humanitarian law committed in the territory of former Yugoslavia, on May 25, 1993, the UN Security Council established the International Criminal Tribunal for Former Yugoslavia. By Resolution 827, the Security Council established the Tribunal on an ad hoc basis as a subsidiary organ of the UN. The ICTY has to determine individual criminal responsibility in trials for crimes under the ICTY Statute. Jurisdiction is restricted to crimes committed on the territory of former Yugoslavia since 1991 in an armed conflict (ICTY Statute). The ICTR has been set up by UN Security Council acting under Chapter VII of the UN Charter[iv] following the recognition of the internal conflict in Rwanda as a threat to international peace and security. The Tribunal was established by Security Council’s Resolution 955 of November 8th, 1994, in order to prosecute “persons responsible for serious violations of international criminal law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994”
( Article 1, ICTR Statute). Under the ICTR Statute, beside the requisite nexus with an internal armed conflict, the crimes must be committed on national, political, ethnic, racial or religious grounds. The main characteristic of both Tribunals is that they exercise jurisdiction over natural persons and that they are set up on ad hoc basis by specific political consensus of the Member States of the UN Security Council. Their jurisdiction is binding on all UN member States. They have been created to investigate and prosecute specific atrocities and their jurisdiction is temporally and geographically limited. The primary goal of the Tribunals is to contribute to the restoration of disturbed peace in the territory of former Yugoslavia and Rwanda.
On the other hand, the International Criminal Court although empowered with criminal jurisdiction for prosecution of international crimes, significantly differs from the Tribunals. The Statutes and the combined jurisprudence of the Tribunals have significantly contributed towards the creation of the ICC Statute. As Jonathan J. Channey states “The ICTY and ICTR have legitimated the prosecution of international crimes . . . thus created a substantial and tangible body of jurisprudence, which was lacking in the past”(2001:122). The adoption of the ICC Statute and future establishment of the court constitutes significant progress in international criminal law. Namely, the ICC is a multilateral, treaty based, permanent court with the status of an independent international organization, separate and apart from UN. The relationship between the UNSC and ICC is characterised by its complementary nature (as opposed to subordination). (Schabas, 2001). The Statute of the ICC was adopted by a large majority during the Diplomatic conference in Rome from 15-17 July 1998, attended by 166 States. The Statute entered into force on July 1st, 2002, after required sixty ratifications were obtained. At this precise moment in time (April, 2003) 89 States had ratified the Rome Statute. The ICC will ultimately have jurisdiction over individuals charged with serious crimes of international concern (Article 1, ICC Statute). The key difference between the court and the ICTY/ICTR stems from the different basis of establishment. The multilateral, treaty basis underpinning the jurisdiction of the ICC has led to the pre-eminence of the principle of complementarity with national jurisdictions (as contained in Article 17 of the ICC Statute). In this context Ruth Philips (1999) has noted that the ICC Statute establishes a concept of inadmissibility once national jurisdiction has been exercised over a case. The respective approach serves to emphasis that primary responsibility to prosecute international crimes rests with States. The complementary role of the ICC is intended to actively facilitate a climate that serves to encourage and expand the prosecution for international crimes in domestic courts whilst simultaneously strengthening national jurisdictions. The court will exercise its jurisdiction only when a State is unwilling or unable to proceed with a viable prosecution. Although the ICC gives priority to national prosecutions of crimes under its Statute, the Court is authorised to determine the admissibility of a case. Accordingly, the Court might carry out the prosecution of a case which has been prosecuted by a State with jurisdiction over it, if the standards stipulated in article 17[v] are not met. In the former situation the ICC has the power to determine the competency of the national investigations and court proceedings and where appropriate bring a decision in order to achieve its goal of eliminating impunity for international crimes. Furthermore, the ICC can exercise its jurisdiction over citizens of non-party States who have committed crimes under the ICC Statute. The consent regime of ICC jurisdiction is derived from the Court’s recognition of concurrent and primary jurisdiction of national legal systems. In marked contrast, the ICTY/ICTR Statutes recognizes the primary jurisdiction of the Tribunals over any national court. On this ground the Prosecution of Dusko Tadic was deferred by the German national court to the ICTY[vi]. Moreover, the binding character of Tribunal’s decisions prevail over a State’s existing treaty obligations, while in ICC jurisdiction the requested State will comply with the Court’s request if it is consistent with State’s other treaty obligations ( Sarooshi: ibid.).
The creation of the ad hoc Tribunals and their primary jurisdiction must be seen within a wider context of international-domestic interactions intended to serve as a direct response to massive human rights abuses. The aim of the Tribunals is to restore the peace in regional crises where breaches of peace were identified as a threat to international security, and to prevent the expansion of atrocities. The Tribunals were established in the aftermath of tragedy, ethnic cleansing led to ICTY and genocide led to ICTR. Consequently, the international community’s concept of justice significantly differed from the concept of a particular state (Yugoslavia or Rwanda) in which the human rights violations occurred. In turn this disagreement between international and domestic actors has led to “international-state conflict” (Peskin, 2000) over the legitimacy[vii] of the ad hoc Tribunals. Both Tribunals suffered a crisis of legitimacy in the eyes of Rwandan and Yugoslavian governments. The compulsory concept of the Tribunal’s jurisdiction is designed to safeguard the enforcement of international humanitarian law and to prevent obstacles that may arise if State consent is required. Recent reforms in both countries have changed the general perception of and attitude toward the Tribunals resulting in formal acceptance of the Tribunals and cooperation. While the Tribunals are intended to deliver justice for the crimes of a particular time and place in the aftermath of the tragedy, the permanent ICC is aimed to strengthen and expand the enforcement of International Humanitarian Law based on prior consent of its Member States, to act as an independent, impartial and effective court with jurisdiction over crimes committed after the entry into force of it’s Statute. Discussing effectiveness of the Court, Jonathan Charney (1999) applies a notion of intersection of international crimes with international political relations as a key obstacle to the ICC efficient operation. Although the ICC Statute implies apolitical approach in the prosecution of international crimes, the reality in which it must operate presents conflicting goals of the international legal and political system. Nevertheless, multilateral and treaty based establishment of the ICC, to some extent, provides political independence in the prosecution of international crimes.
Trigger mechanisms [viii]
The investigation under ICC jurisdiction can be initiated by three different trigger mechanisms: by referral from States, by reference to the Prosecutor by Security Council, or by proprio motu decision of the Prosecutor. In initiating an investigation Member States and Security Council are empowered to refer a situation, but not individual cases to the Prosecutor, which are within the jurisdiction of the Court. Both referrals can initiate investigation without any authorization by the Pre-Trial Chamber. The alternative referral option, an independent prosecutorial initiation of investigation is the most significant achievement of the ICC Statute that confirms the judicial, non-political status of the Court. Under the ICC Statute, the Prosecutor, although has the power to undertake prosecutions essentially at his own discretion, still he/she cannot start an investigation alone pursuant to Art. 15. The independent proprio motu investigatory power is constraint with three limitations. The first limitation is in the context of the Security Council’s primary role in peace enforcement and peace keeping. Pursuant to Art. 16 of the Statute, the SC in exercising its deferral authority may compel the ICC to postpone the investigation for a period of 12 months. The other two limitations are certainly of judicial nature. The Prosecutor may conduct only a “preliminary examination” without obtaining an authorization from the Pre-Trial Chamber in order to determine whether there are reasonable basis to proceed with an investigation. Furthermore, in accordance with Art. 18, the Prosecutor must inform “all States parties and those States which taking into account the information available, would normally exercise jurisdiction over the crimes concerned”. Limited to complementary jurisdiction the Prosecutor has the obligation to defer to a national investigation. The intention is to allow concerned States to start investigation or prosecution. All these limitations to the prosecutor-initiated investigations under ICC Statute are not applicable to the Prosecutor of the ad hoc Tribunals. The request for independent judicial review by the Pre-Trial Chamber and complementarity regime of the ICC Statute with regard to the independence of the Prosecutor shall be seen in the context of international law enforcement while giving primacy of the principle of national sovereignty. In this context, Turone argues that, “in the system of the ICC independence of the Prosecutor and national sovereignty are heavily conflicting interests” ( 2002 :1140). On the other hand, the Statutes of the two ad hoc Tribunals push the boundaries of sovereignty accepting the stance that sovereignty cannot be a sufficient defence for human rights violations[ix] and thus do not imply constraints to the powers of the Prosecutor. Philipose states that, “one of the guiding principles of the ICTY is that sovereignty is not an acceptable defence for the extreme violations of individuals’ human rights “(2002:175). In other words, the ICC Prosecutor is obliged to defer a case to national investigation pursuant to complementarity regime which is in marked contrast to the primary jurisdiction of both ad hoc Tribunals over national courts.
Unlike complex regulations for the initiation of investigation conceived in the ICC Statute, the Statutes[x] of the two ad hoc Tribunals very simple and clearly gave the Prosecutor a power to decide to initiate investigation. But, allowing the ad hoc Tribunal’s Prosecutor to initiate proceedings without a need for any authorization from a State or SC, does not mean that the Prosecutor has unlimited choices in initiating investigations .After all, the UNSC has already been responsible for the establishment of the two ad hoc Tribunals. Accordingly, the ad hoc Tribunal’s Prosecutor is confined to initiate investigation only in the framework of the situation referred by SC’s Resolution. Such Prosecutor’s independence is temporally and geographically limited, and to great extent by ethnicity. Similarly, the ICC Prosecutor shall have such independence only when commencing investigation on a SC’s referrals on a situation. This implies that in such specific investigations, the ICC Prosecutor does not need authorization by the Pre-Trial Chamber, nor they have to be notified to the States pursuant to Art.18. SC’s referrals when acting under Chapter VII of the UN Charter (art.39), increases the powers of the Court regarding territorial and nationality limitations on ICC jurisdiction. Namely, if a matter that is referred to the ICC by the SC concerns not States Parties and they have not accepted the jurisdiction of the Court, it is possible for the ICC to fully exercise its jurisdiction, as if it were a kind of permanent ad hoc Tribunal.
Another significant difference originates from whether the Prosecutor is appointed or elected. While under the Statutes of the ad hoc Tribunals the Prosecutor is appointed by Security Council on nomination by the UN Secretary General, Art. 42 of the ICC Statute stipulates that the “Prosecutor shall be elected by secret ballot by an absolute majority of the members of the Assembly of States Parties”., and will be accountable to the Assembly. Another safeguard for independent Prosecutor are Statute’s provisions addressing qualifications of the Prosecutor, emphasizing experience in criminal prosecution. State’s nominations should be guided by criteria of competence, independence and impartiality. Once having independent, highly professional and elected Prosecutor will be additional guarantee against political pressure.
The prosecutor’s principal duty is to determine the cases that will be brought before the Court. The Prosecutor when determining whether to initiate an investigation has mandate to consider if there is a sufficient basis for prosecution and to examine the admissibility of a case. Additionally, a determination must be made in respect of sufficient gravity of a case and whether the investigation would serve the interests of justice. The “sufficient gravity” is the Court’s principle determining that the ICC’s interest is limited to prosecution of most important crimes. The ICC Prosecutor is entitled with highly discretionary powers in making its decision on the investigation. Similarly, the Statutes of ad hoc Tribunals allows for discretionary powers stipulating that the most important cases should be brought before the Tribunals. Besides these elements of common law concept incorporated in the ICC Statute, what differentiates the ICC Prosecutor from the Prosecutor of the ad hoc Tribunals is provision of establishing the truth, listed in art.54 of the ICC Statute. Namely, the ICC Prosecutor is supposed to act as an “impartial organ of Justice” with a duty to investigate both sides of the case equally. In comparison, the Prosecutor of ad hoc Tribunals is not required to research the exonerating evidence (Turone, ibid), where the concept of adversarial common law system is applied. Furthermore, acting as an impartial organ of justice, the Prosecutor shall perform all the functions in respect to the interests of victims and witnesses, as well as the rights of the accused.
Subject matter jurisdiction
The definition of international crimes contained in the ICTY/ICTR Statutes have largely influenced the provisions in the ICC Statute. Accordingly, the Statutes of the two ad hoc Tribunals and the Statute of the ICC stipulates that the crimes within the ICTY/ICTR and ICC jurisdiction include genocide, crimes against humanity and war crimes. The only exception is that ICC have a mandate to prosecute crimes of aggression (once a definition of aggression is agreed in the future).
With respect to the crimes of genocide, the jurisdiction of the two ad hoc Tribunals and of the ICC is in the framework of the Convention[xi]-based definition. The only difference is that Statutes of ICTY/ICTR specify in the definition of crime what acts are punishable[xii], while under the ICC Statute, the punishable acts are listed in the General principles of Criminal law (Sarooshi, 1999). Article 25 of the ICC Statute enlarges the punishable acts, adding soliciting or inducing the commission of a crime of genocide as punishable acts. Unlike the crimes of genocide, the crimes against humanity have never been defined in a Convention. Divergent approaches to the definition and ratione materiae requirement for the commission of crimes against humanity are expressed in the Statutes of ICTY, ICTR and ICC. Essentially, the crimes against humanity consist of any crime of murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecution on political, racial or religious grounds, or other inhuman act when committed as a part of a widespread or systematic attack against a civilian population. Under the Art. 5 of the ICTY Statute, the crimes must be committed in an armed conflict[xiii] whether internal or international in character. The “armed conflict” requirement determines the ratio materiae jurisdiction of the ICTY. It is sufficient to prove that crimes are geographically and temporally linked with the armed conflict. The justification for inclusion of the “armed conflict” requirement (although under international customary law crimes against humanity do not need to be linked to any armed conflict) can be explained in specific circumstances of the conflict. The ICTR Statute explicitly requires discriminatory intent for commission of crimes against humanity. Art.3 of the ICTR Statute requires that crimes against humanity must be committed “as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds”. Such requirement is intended to accommodate atrocities that are generated from the social and historical context of inter-ethnic division of Rwandan society. In comparison with Art.5 of the ICTY Statute that confines its jurisdiction over crimes against humanity that are committed in an armed conflict only, and in the case of ICTR Statute a discriminatory intent requirement must be met, the ICC Statute adds the requirement that the crime against humanity must be committed “with knowledge of the attack”. The requirement for link between crimes against humanity and “widespread or systematic attack against any civilian population” is expressly mentioned in the Statutes of the ICTR and ICC. The commission of crimes in context of a widespread or systematic attack distinguishes crimes against humanity from ordinary crimes. Furthermore, the ICC Statute stipulates that the perpetrator must be aware of committing crimes as part of a widespread or systematic attack. The ICC provision of “attack directed against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack” mandates the ICC to prosecute crimes against humanity even when they are committed outside a state of war. Most importantly, the ICC Statute departs away from ad hoc Tribunal Statutes in detailed definition of the crimes against humanity, as well as enlarging the list of crimes against humanity. Under the ICC statute enforced disappearance of persons and the crime of apartheid are enumerated as additional crimes against humanity. The crime of “forcible transfer of the population” is also added as an alternative to “deportation”. Particularly, the ICC Statute has advanced international law including acts of sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity as crimes of sexual violence, while the Statutes of the two ad hoc Tribunals recognize only the crime of rape and sexual violence. Undoubtedly, the ICTY/ICTR[xiv] case law essentially contribute to the ending of the history of impunity for gender based international crimes.
Unlike the ICTY and ICC Statutes, the Art.4 of the ICTR Statute stipulates that ICTR shall have jurisdiction in respect of war crimes when committed in internal conflict. Under ICTY Statute war crimes are divided in two articles: Art.2 proscribing grave breaches of four Geneva Conventions[xv] of 1949, thus grave crimes committed within the context of armed conflict; and Art.3 covering serious violations of laws or customs of war irrespective whether “the serious violations has occurred within the context of an international or internal armed conflict”.[xvi] On the contrary, the ICC provisions concerning “other serious violations of the laws and customs of war” applicable in an international armed conflict and such serious violations applicable in armed conflict not of an international character are divided in different paragraphs, providing exhaustive enumeration of war crimes. Furthermore, in respect to war crimes in internal armed conflict, under art.8 (2)(c) explicitly are proscribed serious violations of common Article 3 of the four GC of 1949. This is not the case with the provisions of ICTY Statute, although the Appeal Chamber of the Tribunal in Tadic held that customary international law prohibits serious violations of common article 3 in an internal armed conflict.[xvii]
The Future Prospects
The political context in which almost always international crimes are committed has a powerful pressure on exercising of national jurisdictions. Unimaginable atrocities that occured on the territory of Yugoslavia and Rwanda respectively were not peculiar of the concerned States only, but of the international community as a whole, thus justifying establishment of the ICTY and ICTR. Not only the two States where the crimes were committed have been reluctant to enforce national jurisdiction, but also they refused to cooperate with the Tribunals despite the binding obligations imposed on them by SC Resolutions. The ICC, although treaty based and primary aimed at strengthening of international law enforcement while prioritizing and facilitating national jurisdictions, similarly, may face obstacles related to State cooperation. While cooperative States will be able and willing to carry out a prosecution for international crimes in domestic courts, the non-cooperative States will refuse to extradite, prosecute or provide evidence. An essential element in the Court’s efficient operation will be the cooperation of the States, since, orders and requests of the ICC are to be enforced through national jurisdictions. Like all international treaties, the enforcement of the ICC Statute will depend on States political will to implement it. Moreover, lack of universal support will seriously undermine the Court. Without the cooperation of some of the most powerful states not only the efficacy of the Court will be impeded, but will also affect its international legitimacy. The future challenges to international criminal law enforcement through the ICC will be political as well as legal. Whether the ICC will develop as a truly important institution in international law enforcement and will it affect development of universal standards and their implementation in national legislations, remains to be seen.
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[i] The term “international community” is used to refer to the group of countries as represented in the United Nations.
[ii] International Tribunal for the Prosecution of Persons responsible for serious violations of International Humanitarian Law committed in the territory of former Yugoslavia since 1991, Statute, UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993), – ICTY Statute; International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law committed on territory of Rwanda and Rwandan citizens responsible for Genocide and other such violations committed in the territory of Neighboring States between 1 January and 31 December 1994, Statute, SC Res. 955, annex, UN SCOR, 49th Sess. Res & Dec., at 15, UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994) – ICTR Statute.
[iii] United Nations Diplomatic Conference of Plenipotentiaries on the establishment of an International Court, Rome Statute of the International Criminal Court, July, 17, 1998, UN Doc. A/CONF.183/9*, corrected Nov. 10, 1998 and July 12, 1998, reprinted in 33 ILM 999 (1998) – ICC Statute
[iv] Charter of the United Nations, Jun.26, 1945, 59 Stat. 1031,T.S. No. 933, 3 Bevans 1153, art. 39: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken . . . to maintain or restore international peace and security”.
[v] Art.17 determine unwillingness when “the proceedings were … or national decision was made for the purpose of shielding the person concerned with criminal responsibility; or .. unjustified delay in the proceedings …; or the proceedings were not conducted independently or impartially”.
[vi] Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, ICTY T. Ch. II, 7 May 1997, paras 6-9.
[vii] Prosecutor v. Dusko Tadic. Case No. IT-94-1-AR72, ICTY App. Ch., Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995, para.30.
[viii] Used by Ruth B. Philips in “The International Criminal Court Statute: Jurisdiction and Admissibility”, 1999, Criminal Law Forum 10, p.71.
[ix] ICTY, App.Ch. Decision, 2 Oct.1995, para 32.
[x] Art.18(1) of the Statute of the ICTY and Art.17(1) of the ICTR Statute: “The Prosecutor shall initiate investigations ex-officio or on the basis of information obtained from any source, particularly from Government, United Nations organs, intergovernmental and non-governmental organizations”.
[xi] Convention on the Prevention and Punishment of the Crime of Genocide, Dec.9,1948. 78 UNTS 277.
[xii] Prosecutor v. Akayesy, Case No.ICTR-96-4-T. 2 Sept. 1998, paras. 523-525. The ICTR Case of Akayesy crystallized the application of the dolus specialis in genocide.
[xiii] ICTY, App.Ch. Decision, 2 Oct.1995, para 141
[xiv] Prosecutor v. Tadic, Opinion and Judgment, NO.IT-94-1-T (May 7, 1997); Prosecutor v. Furundzija, Judgment, No IT-95-17/1-T (Dec.10, 1998); Prosecutor v. Delalic, Judgment, No. IT-96-21-T(Nov.16, 1998)
[xv] The Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31; The Geneva Convention for the Ameliorationa of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea of 12 Augusts 1949, 75 UNTS 85; The Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135; The Geneva Convention Relative to the Protection of Civilian Persons in time of War of 12 August 1949, 75 UNTS 287.
[xvi] ICTY, App.Ch. Decision, 2 Oct.1995, paras 86-94
[xvii] Tadic, I.L.R., supra n.45, at p.523 (para 134 of judgement)
Bio: Stojanka Mirceva is a researcher in Macedonia.