CITY UNIVERSITY, LONDON

Shahzad Hafeez
MA Media and Human Rights

Detailed introduction and structure of

‘International Criminal Court’

24, May 2009

 The International Criminal Court (ICC) is an independent and permanent court
established on 17 July 1998. This court trial those persons who are accused of the most
serious crimes of international Concern like genocide, crimes against humanity and war
crimes. The ICC is based on a treaty, joined by 105 countries. However, a number of
states including China, India and the United States, are not the State Parties to the ICC
Rome Statute. Text of the Rome (Italy) Statute circulated as document A/CONF.183/9 of
17 July 1998 and corrected by process-verb aux of Nov 1998, July 1999, Nov 1999, May
2000, Jan 2001 and Jan 2002. The Statute entered into force on 1 July 2002, it has 128
articles. International Criminal Court officially based in Hague, Netherlands .It has four
main bodies Presidency, the Judicial Divisions, the Office of the Prosecutor and the
Registry. These bodies work with other semi-autonomous offices such as the Office of the
Public Counsel for Defense and the office of Public Counsel for victims etc. The ICC is
an independent international organization. In accordance with article 2 of the Rome
Statute, the relationship with the United Nations system is govern by an “agreement” that
has been approved by the Assembly of States Parties during its first Session held in New
York from 3 to 10 September 2002.Under the Rome Statute article (5), ICC limited only
to most serious crimes like the crime of genocide, crimes against humanity, war crimes
and the crime of aggression. Court framed in four organs Presidency, Judicial Divisions,
the Office of the Prosecutor and Registry. The judicial functions of the Court are carried
out in each Appeal, Trial and Pre-Trial Chambers. Since its inception the ICC has opened
investigations on the cases e.g. situation in Democratic Republic of the Congo, situation
in Uganda, situation in Central African Republic and situation in Darfur, Sudan.

International Criminal court’s official head office is in Hague, Netherlands, but according
to “Article 3” proceedings may take place anywhere in the world. Officially 18th judges
chair the ICC. Currently (on 9 October 2007) court has 485 members of staff from 80
states. According to Article 50 of Rome Statue “ICC has official languages Arabic,
Chinese, English, French, Russian and Spanish but the working languages of the Court
shall be English and French. The Rules of Procedure and Evidence shall determine the
cases in which other official languages may be used as working languages, but Court
shall authorize a language other than English or French to be used by request of a party or
State”,Some time International Criminal Court named as “World Court” and people
jumble it with International Court of Justice, both dealing with international matters-but
originally functioning in different perspectives.

Meanwhile, after UN approval, Rome Statue of International Criminal Court was

opened (accordance to its article 125) for signature by all States in Rome at the
Headquarters of the Food and Agriculture Organization of the United Nations on 17 July
1998. Thereafter, in Ministry of Foreign Affairs of Italy until 17 October 1998 and later
on Statute was opened for signature in New York, at United Nations Headquarters, till 31
December 2000.One hundred fifteen states singed, 29 African, 13 Asian, 16 Eastern
European, 22 Latin American and Caribbean, and 25 Western European States were
signed on it up to 17 October 2007.”US was the first country who unsigned the Rome
Statue on May 6, 2002 after approximately one and half year membership (signed
December 31, 2000)”. Israel did the same on 28 August 2002.

Although the idea to establish a permanent international criminal court can be

traced back to nineteenth century. But this idea become more stronger when “twentieth
century come with Holocaust, genocide in Rwanda, Bosnia, and Iraq, with the
depredation of Saddam Hussein, Idi Amin, Slobodan Milosevic, Pol Pot and host of other
despots and murderers-too many lives been lost, many family broken, too many hopes
and dreams snuffed out by this inhumanity”. So, “In 1948 the UN General Assembly
adopted the Convention on the Prevention and Punishment of the Crime of Genocide.
Article 1 of that Convention characterises genocide as "a crime under international law",
and Article 6 provides that persons charged with genocide "shall be tried by a competent
tribunal of the State in the territory of which the act was committed or by such
international penal tribunal as may have jurisdiction” In Brief, after creation (1948) of the
Nuremberg and Tokyo tribunals since world war two (1939-1947) serious discussions
started about creation of permanent International Criminal Court.
In December 1989, in response to a request by “Trinidad” and “Tobago”, UN General
Assembly, in its resolution 44/39 of 4 December 1989, had requested the international
Law Commission to address the question of establishing an international criminal court;
in resolutions 45/41 of 28 November 1990 and 46/54 of 9 December 1991, invited the
Commission to consider further and analyze the issues concerning the question of an
international criminal jurisdiction, including the question of establishing an international
criminal court; and in resolutions 47/33 of 25 November 1992 and 48/31 of 9 December
1993, requested the Commission to elaborate the draft statute for such a court as a matter
of priority.” Later on, “on July, 17 1998, representatives of governments and
nongovernmental organizations will conclude a five-week international conference in
Rome aimed at producing a treaty establishing the ICC. Court will be empowered to
prosecute persons charged with "the most serious crimes of concern to the international
community, "including war crimes, crimes against humanity, and genocide. So, with 116
articles and 200 wording options to be debated by more than 100 countries and
organizations, the Rome conference will likely sew together a legal monstrosity”. At the
end of five weeks of intense negotiations, 120 nations voted in favor of the adoption of
the Rome Statute of the ICC, with seven nations voting against the treaty (Iraq, Israel,
Libya, China, Qatar, the United States, and Yemen.) and 21 states abstaining. No doubt,
US played a major role in laying the groundwork for ICC. But later, United States pursue
a policy of “Three Noes” under the technical reasons- they cast vote against the Rome
Statue and “on July 23, 1998, US Ambassador David Scheffer described a list of statute
abjections statement before the Senate Foreign Relations Committee meeting”.
Afterward, ICC first bench of 18 judges was elected in February 2003. The Netherlands’s
government in Hague on 11 March 2003 hosted the judge’s oath ceremony.

Interrelating this, “The United Nations Diplomatic Conference of

Plenipotentiaries on the establishment of an International Criminal Court, by resolution F
of the Final Act of the Conference, established the Preparatory Commission for the
International Criminal Court with the mandate to prepare proposals for practical
arrangements for the establishment and coming into operation of the ICC, including the
draft texts of: Rules of Procedure and Evidence; Elements of Crimes; A relationship
agreement between the Court and the United Nations; Basic principles governing a
headquarters agreement to be negotiated between the Court and the host country;
Financial regulations and rules ;An agreement on the privileges and immunities of the
Court; A budget for the first financial year; The rules of procedure of the Assembly of
States Parties. For the Rules of Procedure and Evidence and the Elements of Crimes,
resolution F stipulated that the draft texts should be finalized before 30 June
2000.Resolution F stipulated that the Secretary-General of the United Nations should
convene the Preparatory Commission as early as possible at a date to be decided by the
General Assembly of the United Nations. Pursuant to General Assembly resolutions
53/105 of 8 December 1998, 54/105 of 9 December 1999, 55/155 of 12 December 2000
and 56/85 of 12 December 2001, the Commission, which was open to representatives of
States which had signed the Final Act and other States which had been invited to
participate in the conference, held 10 sessions at the Headquarters of the United Nations.

International criminal court structure mainly based on four organs Presidency, the
Judicial Divisions, the Office of the Prosecutor, and the Registry. Firstly, According to
Rome Statute article 38 “The President and the First and Second Vice-Presidents shall be
elected by an absolute majority of the judges. They shall each serve for a term of three
years or until the end of their respective terms of office as judges, whichever expires
earlier. They shall be eligible for re-election once”. Following this article, 18 judges of
the Court elected Judge Philippe Kirsch (Canada) the Presidency at 11 March 2006 for
six-year period. Same as, they elected Judge Mrs. Akua Kuenyehia (Ghana) and Judge
René Blattmann (Bolivia) the first and second Vice-Presidents respectively. A President is
responsible for the overall administration of the Court, with the exception of the Office of
the Prosecutor, and for specific functions assigned to the Presidency in accordance with
the Statute.

Like wise, in second organ “Judicial Divisions”, ICC Judges elected under the
resolution(ICC-ASP/3/Res.6).The Assembly of States Parties elected the “18th Judges”
(February 2003) , for three, six, and nine years terms. “But presently on 1 October,
2007, there are only fifteen active judges working in the court because three judges have
resigned (Judge Maureen Harding Clark (Ireland) resigned on 10 December 2006, Judge
Karl T. Hudson-Phillips (Trinidad and Tobago) resigned 30 September 2007 and Judge
Claude Jorda (France) resigned on 12 August 2007). Seven of the fifteen judges are
female. These judges belong from different regions, 5 from Western European and other
states, 3 from African states, 3 from Latin American and Caribbean states, 2 from Asian
states and 2 belong to Eastern European states”. These judges are organized into three
divisions, the Pre-Trial Division, Trial Division and Appeals Division.

In detail,Pre-Trial Division work under assigned the six judges headed by First Vice-
President of the ICC ,“This division has three Pre-Trial Chambers currently constituted,
which consist of three judges each (although a single judge can be designated to perform
Certain Functions ). Each situation (Congo, Uganda and Sudan)” Pre-Trial chambers
have authority an investigation of Article15 crimes; the Chamber has powers in
determining issues of admissibility and jurisdiction (Articles 18 and 19). Powers of the
Pre-Trial Chamber can be found throughout the Statute, notably under Article 56, which
allows the Chamber to order measures to ensure the efficiency and integrity of the
proceedings and protect the rights of the Defence. Likewise, five judges assigned to the
Trial Division under head the Second Vice-President of the ICC, Three judges of the
Division carry out the judicial functions of the Trial Chamber (Article 39 (2)(b)(ii), this
Chamber responsible for the conduct of subsequent proceedings under (Article 61(11).
Trial Chamber hearing that case (Article 39(4). Financial penalties can be imposed
(Article 77). The Trial Chamber can also order a convicted person to pay money for
compensation, restitution or rehabilitation for victims (Article 75 (2).Trial Division
hearing the Case of The Prosecutor v Thomas Lubanga Dyilo.

Third part of the Judicial Divisions is Appeal Division worked under five judges
under the supervision of the President of the ICC, According to Rome Statue article
39(2)(b)(i) “The Appeals Chamber shall be composed of all the judges of the Appeals
Division” The Appeals Division is composed of judges primarily elected from Judges
“List B”, with established competence in relevant areas of international law, such as
international humanitarian law and the law of human rights. The Prosecutor or the
convicted person can appeal against the decisions of the Pre-Trial and of the Trial
Chambers to the Appeals Chamber.

Third organ of the ICC “The Office of the Prosecutor” works under Rome Statute
of ICC Article 34 .The Office is responsible for conducting investigations and
prosecutions, when a situation is referred to him by a state party or United Nations
Security Council and when the Pre-Trial Chamber authorizes him to open an
investigation on the basis of information received from other sources, such as individuals
or non-governmental organizations. “The Office is headed by the Prosecutor, Luis
Moreno Ocampo (Argentina), who was elected by the States Parties for a term of nine
years. The Prosecutor is assisted by two Deputy Prosecutors, Serge Brammertz (Belgium)
with responsibility for investigations and Fatou Bensouda (The Gambia) with
responsibility for prosecutions.”

Last organ “The Registry” has responsibility for non-judicial aspects of the
administration and servicing of the court (article 43(1) of the Rome Statute. The
communication functions of the court have a significant impact on all organs of the court,
consequently it is appropriate that communications functions be dealt with in the context
of the general administration of the court and, hence, within the draft Regulations of the
Registry”. Registry is responsible for the administration of legal aid matters, court
management, victims and witness’s matters, defense counsel, detention unit, and the
traditional services provided by administrations in international organizations, such as
finance, translation, building management, procurement and personnel. “Registry would
be the principal administrative organ of the court”. Registry help to handle the
administrative duties of the court and will appoint a competent staff to help fulfil these
duties.”.

In consciousness, Rome Statute of the ICC mentioned different rights of accused

persons in many articles, like all prisoners are assumed innocent until proven guilty
beyond.Article (66)(1) described that “everyone shall be presumed innocent until proved
guilty before the Court in accordance with the applicable law”. Article (64)(2) says, “The
Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full
respect for the rights of the accused” like wise article 67 explain the all “Rights of the
accused”.

On the other hand, International criminal court has jurisdiction hear and decide about
four groups of crimes genocide, Crimes against Humanity, war crime, and the crime of
aggression under the Article 5 of the Rome Statute. December, 1948 declarations, United
Nation Convention on the Prevention and Punishment of the Crime of Genocide
(CPPCG) define the genocide in article (2) “In the present Convention, genocide means
any of the acts committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such: Killing members of the group; Causing serious bodily
or mental harm to members of the group; Deliberately inflicting on the group conditions
of life calculated to bring about its physical destruction in whole or in part; Imposing
measures intended to prevent births within the group; Forcibly transferring children of the
group to another group”. Similarly Rome Statue Article 7 defines the crime against
humanity, primarily“crime against humanity" means any of the coming acts when
committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack: of Murder; Extermination; Enslavement;
Deportation or forcible transfer of population; Imprisonment or other severe deprivation
of physical liberty in violation of fundamental rules of international law; Torture; Rape,
sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any
other form of sexual violence of comparable gravity; Persecution against any identifiable
group or collectively on political, racial, national, ethnic, cultural, religious, gender as
defined in paragraph 3, and Other inhumane acts of a similar character intentionally
causing great suffering, or serious injury to body or to mental or physical health”.
International Criminal Court also have right to hear the cases on “war crime” which
define in Rome Statute Article 8 “ ‘war crimes’ means: any of the mentioned acts against
persons or property protected under the provisions of the relevant Geneva Convention:
Wilful killing; Torture or inhuman treatment, including biological experiments; Wilfully
causing great suffering, or serious injury to body or health; Extensive destruction and
appropriation of property, not justified by military necessity and carried out unlawfully
and wantonly; Compelling a prisoner of war or other protected person to serve in the
forces of a hostile Power ;Wilfully depriving a prisoner of war or other protected person
of the rights of fair and regular trial; Unlawful deportation or transfer or unlawful
confinement , taking of hostages”. Likewise, “Court shall exercise jurisdiction over the
crime of aggression once a provision is adopted in accordance with articles 121 and 123
defining the crime and setting out the conditions under which the Court shall exercise
jurisdiction with respect to this crime. Such a provision shall be consistent with the
relevant provisions of the Charter of the United Nations”.

However, “Up to 4 October 2007 overall ICC received 2,889 communications since start
on up mentioned crimes. The vast majority of these were dismissed as manifestly outside
the jurisdiction of the Court”. The communications include reports on alleged crimes in
139 countries in all regions of the world. In addition currently, “The Office of the
Prosecutor has received over 240 communications concerning the situation in Iraq. These
communications express the concern of numerous citizens and organizations regarding
the launching of military operations and the resulting human loss. ICC responded on this
communications-“the Court's jurisdiction in Iraq was limited to the actions of nationals of
states parties, and that he did not have authority to consider complaints about the legality
of the Iraq invasion”

However, ICC investigate and prosecute the Northern Uganda, Democratic

Republic of the Cango (DRC), Central African Republic (CAR) and Darfur, Sudan until
18 October 2007.In December 2003 the Uganda President Yoweri Museveni took the
decision to refer the situation concerning the Lord’s Resistance Army (LRA) to the
Prosecutor of the International Criminal Court. ICC opened the investigation on July
2004.Later on, 13 October 2005, Pre-Trial Chamber II unsealed the warrants of arrest for
five senior leaders of LRA.

Same as, President of the Democratic Republic of Congo (DRC) referring to him the
situation of crimes within the jurisdiction of the Court allegedly committed anywhere in
the territory of the DRC since the entry into force of the Rome Statute on 1 July 2002.
On 17 March 2006, in Kinshasa, Mr Thomas Lubanga Dyilo, a Congolese national and
alleged founder and leader of the Union des Patriotes Congolais (UPC) was arrested and
transferred to the International Criminal Court. He was first person to be arrested under a
warrant issued by the court under crimes against humanity,

Like wise Central African Republic has problem with rebel forces. With reference
this, On 22 December 2004, the ICC Office of the Prosecutor received a referral from the
Government of the Central African Republic. After examining it “The International
Criminal Court 's prosecutor launched an investigation (on 22 May 2007) into complaints
of rape, sexual cruelty and other abuses committed in the Central African Republic,
notably in 2002 and 2003, a period of intense fighting between government and rebel
forces”

In Darfur, Sudan,“under the Chapter VII of the United Nations Charter, the Security
Council decided on 31/03/2005 to refer the situation prevailing in Darfur since 1 July
2002 to the Prosecutor of the International Criminal Court. Adopting resolution 1593
(2005) by a vote of 11 in favour, none against with 4 abstentions (Algeria, Brazil, China,
United States), the Council decided also that the Government of the Sudan and all other
parties to the conflict in Darfur would cooperate fully with the Court and Prosecutor,
providing them with any necessary assistance”. It is estimated that over 200,000 people
have been killed during southern rebels an attack against a government garrison and 2.5
million driven from their homes since the conflict began in 2003.

In all mentioned prosecutes or cases, the convicted person, or the Prosecutor on

that person's behalf, may make an appeal under the Rome Statue Article 50(a)(b) against
the ICC decision, on any of the following grounds “Procedural error, error of fact, or
error of law”.
 For war crime suspects International Criminal court need to build detainee’s
prisoner’s cells. On 28 Feb, 2006, the officials of ICC announced “International Criminal
Court have 12 cells in Scheveningen (Hague, Netherlands), these Cells are ready to
receive war crimes suspects”, suspects will share facilities like fitness room in these cells.
The court has its own director of prisons. Earlier,“On 13 October 2005, Pre-Trial
Chamber II unsealed the warrants of arrest for five (Joseph Kony, Vincent Otti, Okot
Odhiambo, Dominic Ongwen and Raska Lukwiya) senior leaders of the Lord’s
Resistance Army (LRA) for Crimes against Humanity and War Crimes committed in
Uganda since July 2002.The warrants of arrest were issued under seal by Pre-Trial
Chamber II on 8 July 2005”

Although, ICC work as an independent institution but Court need much funds to
compete with its offices, Proceedings, Management and administration expenses.
However, ICC budget is to be determined by the state parties (through the Assembly of
States Parties) and will be financed by these. Additionally, contributions can be received
from UN funds and from voluntary governments, international organisations and
individuals, according to certain prescribed criteria. The ICC will not be cheap; it is likely
to cost as much as a hundred million dollars annually. Funding is always a problem for
international institutions. Consequently, one can imagine a situation where unsatisfied
states withhold their dues in order to force national objectives on the ICC. However,
“according to the ICC financial regulation 3.1 and financial rule 103.2, the proposed
programme budget for 2007 was submitted in September by the Registrar of the ICC, to
the Assembly of States Parties (ASP). The ASP will decide upon the budget submission,
for a total of €93.46 million, during their next session, scheduled to take place in
December 2007. Court envisions increasing the budget by more than €500,000 in this
year. It is envisaged that a standard hearing will involve 43 persons in the Courtroom
alone, at a cost of €3,900,000 per year” On 1 December 2006, ICC assembly approved a
budget totaling €88,871,800 and a staffing level of 647 for 2007. It also decided that the
Court shall adopt the scale of assessments for the apportionment of expenses of the
United Nations applicable for 2007.
 After analysis of relevant resources, pre going discussion summarizes that
International Criminal Court was a historic development in efforts to hold accountable
perpetrators of the most serious international crimes e.g. war crimes, crimes against
humanity and genocide. Moreover, since creation, ICC successfully trying to enforce
individual criminal liability without distinction, whether the accused is a head of state, a
representative of parliament or a military commander (Article 25 and 28). Official
capacity is not grounds for reducing the sentence (Article 7). A military commander is
criminally liable for the crimes committed by forces under his or her command or control
(Article 28). Criminal responsibility also applies when the military commander knew or
should have known that his or her forces were committing or about to commit such
crimes and failed to take all necessary measures to prevent or repress their commission
(Article 28). The fact that a crime was committed by a person under the orders of a
superior generally does not relieve that person of criminal responsibility.

In addition, the ICC judicial system characterized by political independence, impartiality,

equality between the accused and the victims, and the principle of complementarity,
which strengthens national judicial systems and represents a legal symbol of peace-
building for the international community. However, the ICC’s jurisdiction is not limited
geographically or temporally, Investigation of cases must respect the needs, interests and
circumstances of the victims and the rights of the accused. Like wise, the adoption of the
Rome Statute on the International Criminal Court provides an inspirational start for the
new century.

The Statute is built upon a base of shared values - values that reflect the collective desire
of the international community to no longer tolerate impunity for serious violations of
human rights and international humanitarian law.

Although, International Criminal Court playing a vital role to control world crimes such
as crime of genocide, Crimes against humanity, War crimes and The crime of aggression
but it still need more help and sport from international bodies and states for achieving its
primary goals .