David Balogun

This blog post is about the International Criminal Court impact on Justice in the 21st Century, it will provide a background on the creation of the International Criminal Court, its jurisdiction and how the Court has made some impacts on justice in the 21st century.

Introduction

In the past century, the world witnessed various crimes committed against humanity, crimes like extrajudicial killings,  genocide, war crimes, systematic tortures were witnessed during peace times, during the world wars, inter regional conflicts. Moving forward, events after the Second World War have seen justice take a new dimension in the International System. Efforts made by the International Community range from Nuremberg Trials, Tokyo Military Tribunals, International Criminal Tribunals for the Former Yugoslavia and International Criminal Tribunals for Rwanda.  The above tribunals were built upon the foundations of the International Humanitarian Law which had its main focus on crimes committed during war times, the focus has since changed as the new International Criminal Law now focuses on crimes committed during both peace and war times.

Rome Statute

The Rome Statute served as the foundation upon which the International Criminal Court was established, the Rome Statute became effective in July 2002 commemorating the birth of the Court. The Rome Statute is comprised of 13 parts and 128 articles, all of which explains the functionality of the Court. There are also some underlying principles of the Rome Statute, they include:

• The first principle which is the principle of complementarity according to the Rome Statute allows the Court to put into use its jurisdiction when state parties are unwilling or unable to exercise their jurisdiction over crimes. This mean that if a state is willing to investigate and prosecute offenders within their territory, the ICC would not have any need to intervene.  The principle of complementarity is an important one because the Court was not established to replace national courts but rather to complement national courts. The principle of complementarity can be seen in both the preamble and main section of the Rome statutes as provided in  Articles 1 and 17 – 19 of the Statute.
• The second underlying principle of the Rome Statute allows the Court focus on crimes that are deemed to be of great concern to the International Community. This is in place to avoid the Court being overwhelmed with crimes that can easily be handled at the national court of state parties.  Article 5 of the Statute explains that the Court is limited to the most serious crimes of concern to the International Community which ranges from any of these: crime of genocide, crimes against humanity, war crimes and the crime of aggression.
• The third underlying principle of the Rome Statute allows the court to operate within the tenets of the Customary International Law, this was put in place in order to make the Statute establishing the court to be widely accepted by states.

Jurisdiction and Crimes under the Rome Statute

Jurisdiction is an integral part of the Rome Statute as it is the core objectives of the Court, articles 11 -19 of the Statute focuses on the jurisdiction of the Court. In Article 11 of the Statute, it was explained that the Court cannot try and prosecute individuals or groups said to have committed heinous crimes against humanity before the establishment of the court in 2002. Article 11 also explains that if a State become party after the full entry into force of the Rome Statute, the Court can only prosecute or exercise its jurisdiction on crimes that were committed after such State became a part to the Statute. Under Article 16, the United Nations Security Council acting according to the provisions of Chapter VI of the United Nations Charter can request for deferral of an investigation which is renewable on a 12 month basis in cases of a possible conflict. As spelt out in Article 13 of the Rome Statute, only the United Nations Security Council, State Parties of the ICC who have already ratified the Statute and the Prosecutor, the Prosecutor can only refer cases with the approval of the Pre-Trial Chamber of the Court.

Crimes under the Jurisdiction of the Court was highlighted in Article 5, these crimes are also tagged as crimes of great concern to the International Community. The crimes under the jurisdiction of the ICC are: the crime of genocide, crimes against humanity, war crimes and the recently added crimes of aggression.

International Criminal Court: Overview

The International Criminal Court also known as ICC or the Court is a permanent court established upon the provisions of the Rome Statute which came into effect in July 2002. The ICC is responsible for trying individuals or groups behind heinous crimes of great concern to the International Community committed against humanity. The Statute establishing the Court was ratified by 60 State Parties upon inception but has significantly risen to 123 State Parties ratifying the Statute as of 2022.

From the perspective of the ICC, the Court is regarded as ” a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole”.

Explaining Crimes under the Jurisdiction of the Court.

• Crime of Genocide

The crimes considered to be the crime of genocide by the court are intentional crimes committed with the sole aim of systematically taking out in whole or part of a society, ethnic, racial or religious groups by killing its members or any other means.

• Crimes against humanity

The Rome Statute listed about 15 forms of crimes against humanity, they include: “murder, rape, imprisonment, enslavement, sexual slavery, torture, apartheid, deportation, enforced disappearances, dehumanization, extermination, persecution against unidentifiable groups, sexual violence, other inhumane acts of a similar character causing great suffering”.

• War Crimes

War crimes is regarded as the direct breach of the Geneva Convention as it relates to issues surrounding armed conflicts. War crimes include: systematic torture and killing of civilians, intentional attacks of social infrastructures like hospitals and schools, the use of child soldiers.

• Crimes of Aggression

The crime of aggression newly added to crimes under jurisdiction of the Court was adopted during the Review Conference in 2010 involves using of the armed forces of a state to invade the sovereignty of another country. Examples of such crimes are annexation through the use of force, military invasion.

Organization of the Court

The ICC is made up of four principal organs:

The Presidency – The Presidency of the Court consists of 18 judges headed by a President  and two Vice-Presidents who are elected for a two or three year term. The President conducts external relations with other states as well as overseeing the administrative worked performed by the Registry arm of the Court.

The Judicial Divisions (Chambers) –  The judicial divisions are made up of 18 judges split into there chambers; Pre-Trial, Trial and Appeal divisions. Each of these three divisions are involved in conducting judicial proceedings.

Office of the Prosecutor – The Prosecutor is an independent organ which examines and  analyse cases where crimes under the Jurisdiction of the Court have been committed, opening investigation and prosecution against individuals or groups accused of committing crimes.

Registry – The Registry performs the administrative duties of the Court, it gives administrative support to the judicial divisions as well as the office of the prosecutor. The activities of the Registry is monitored by the Presidency.

Impacts of the Court on Justice in the 21st Century

The ICC was established as a permanent court in July 2002 with the aim of bringing to Justice individual or groups behind the most serious crimes in the International Community. The impacts of the Court on justice in the 21st century is one that cannot be overlooked despite some of the challenges faced by the Court.  Here are some of the impacts of the Court as it relates to serving justice in the 21st Century.

• Ending Impunity

The need to end impunity in the International Community was part of what led to the establishment of the ICC. Since its establishment in 2002 as the first permanent court that can exercise jurisdiction over individuals or groups accused of committing the most serious crimes of concern to the International Community as a whole. Since its inception, the court has delivered on its mandate of justice as accused individuals or groups brought before the Court have been tried and prosecuted accordingly.

• Deterrence

The establishment and operations of the Court serves as a deterrence to future offenders. In an article by Catherine Gegout, she posited that the ICC primary aim which is to prosecute individuals or groups accused of committing heinous crimes and as such would serve as a form of deterrence to individuals or groups who are nursing plans to commit crimes. The presence and operation of the court serves a a form of deterrence for future offenders which would ultimately see the International Community witness reduction in the rates of crimes committed.

• Complementarity

One of the underlying principles of the Rome Statute is the principle of complementarity which allows the Court to exercise its jurisdiction if the state is unable or unwilling to exercise its jurisdiction over crimes committed. In instances where state parties can’t exercise or are unwilling their jurisdiction, the Court steps in to make sure justice is delivered to perpetrators of crimes. Hence, the ICC complementing national courts can be regarded as  a channel for ensuring justice is delivered at all times. An example of this was recorded in Uganda when the country could not bring to justice the Lord’s Resistance Army, a group that had committed several crimes against humanity ranging from murder, rape enslavement recruiting children as child soldiers. The ICC had to swing into action to bring to justice Dominic Ongwen who was a senior commander in the Lord’s Resistance Army.

• Protection and support for victims and witnesses 

The Court encourages the participation of victims and witnesses during proceedings which allows them to be involved in the trail process. Hence, the need to protect victims and witnesses becomes as important as the trial itself .  In Article 68 of the Rome Statute, provisions were made for the protection, security, mental and physical wellbeing of victims and witnesses. In line with Article 43 of the Statute, the Court created a “Victim and Witnesses Unit” which operates directly under the Registry arm of the Court.  The Victims and Witnesses Unit also work with the Office of the Prosecutor for protective measures and provision of assistance to victims when they appear before the Court.

• Impartiality

The ICC is an independent court which means the Court is not affiliated or associated with any of its State Parties. Hence, judgements of the Court is not biased in nature, this can be regarded as an impact on delivering unbiased justice. The Statute establishing the Court allows for it (Judges and Prosecutor inclusive) to be independent of any State Party, government and even the United Nations Security Council. This makes the Court a symbol of hope as it can be counted on to deliver unbiased justice to individual or groups behind the most serious crimes of concern to the International Community.

Career Prospective

Right from the days of my undergraduate studies, I have always had interest in justice and international law. In the nearest future, I can picture myself working within the four walls of a justice and law oriented international organization. A visit to the ICC would be of good benefit to me as it would be a step in the right direction to achieving my dream. Visiting the ICC would also help me in understanding the dynamics and operation of the Court as I would be keen on taking notes and asking insightful questions about the Court from officials. Going forward, I would also ask relevant career questions that would set me in the right direction to achieve my dream of working in an international organization.

Visiting the ICC would expose me to real life situations which I can then combine with what I have learnt in academic seminars. Hence, visiting the ICC would serve as a link between experiencing both academic and real lift situations as it relates to international organizations.