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20 years of the Rome Statute

While it has faced several challenges, especially from the United States, the International Criminal Court has achieved significant successes, write Joyeeta Banerjee & Rajdeep Banerjee.

Joyeeta Banerjee & Rajdeep Banerjee |

Twenty years ago, in Rome, world leaders converged to bring a permanent International Criminal Court (ICC) into existence to deal with serious crimes. The jurisdiction of the Court is limited to the most serious crimes of concern to the international community as a whole. ICC deals with the crime of genocide, crimes against humanity, war crimes and crime of aggression.

The Rome Statute of the International Criminal Court was adopted on 17 July 1998. Following 60 ratifications, the Rome Statute then came into force on 1 July 2002. The first judgment was delivered in 2012 wherein Congolese Lubanga Dyilo was found guilty of war crimes and was sentenced to a total of 14 years of imprisonment. The verdict as well as the sentence was then confirmed by the Appeals Chamber.

The Prosecutor has opened investigations in various states like Democratic Republic of the Congo, Central African Republic, Kenya, Libya, Uganda, Côte d’Ivoire, Burundi, Sudan, Mali and Georgia. The Prosecutor is also conducting preliminary examinations in multiple situations including Afghanistan, Colombia, Iraq/UK, Nigeria, Palestine, Philippines, Ukraine and Venezuela. Proceedings (trials) are going on in the Ongwen case, the Ntaganda case, and the Gbagbo and Blé Goudé case.

Though Sudan is not a party to the Rome Statute yet, as the United Nations Security Council had referred the situation in Darfur, Sudan to the ICC in Resolution 1593 (2005), it is the first ICC investigation on the territory of a non-State Party to the Rome Statute. The situation in Darfur is also the first to be referred to the ICC by the UNSC and also is the first ICC investigation dealing with allegations of genocide.

Sudan’s President Omar Al Bashir is also the first sitting President to be wanted by the ICC, but the warrants of arrest against him have not yet been enforced. Similarly, Libya is also not a Party to the Rome Statute. But the UNSC has unanimously referred the situation in Libya to the ICC in Resolution 1970 (2011).

There have been few trials which have till now concluded. Germain Katanga was convicted in 2014 on one count of crime against humanity and four counts of war crimes and was sentenced to twelve years’ imprisonment. Appeals were discontinued making the judgment final. Former Vice-President of Democratic Republic of the Congo, Jean-Pierre Bemba was sentenced to 18 years’ imprisonment by the Court.

It was the first ICC case which involved a conviction for sexual violence as well as the first case to find a perpetrator guilty of command responsibility under Article 28 of the statute. He was convicted of crimes against humanity and war crimes committed by his troops in the neighbouring Central African Republic where his troops were invited to crush a coup. But the Appeals Chamber recently overturned his conviction holding that he was not responsible for the excesses of his forces.

One of the important ongoing trials before the ICC is of the warlord Bosco Ntaganda who has been accused of multiple counts of war crimes and crimes against humanity committed in the Ituri province of DRC. The charges have been confirmed and the trial is ongoing.

Under the Rome Statute “Crime against humanity” means certain acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Such acts include murder, extermination, enslavement, deportation or forcible transfer of population, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of sexual violence of comparable gravity. It also includes persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious and gender grounds.

“War crimes” has been defined to include grave breaches of the Geneva Conventions of 1949 including 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.

“Crime of aggression” 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 Court can have jurisdiction in relation only to crimes which have been committed after the entry into force of the Statute. The Court can exercise its jurisdiction in a situation in which certain crimes appear to have been committed when it is referred to the Prosecutor by a State Party or it may even be referred to the Prosecutor by the Security Council acting under Chapter VII of the UN Charter.

State Parties can refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed and request the Prosecutor to investigate the situation to determine whether the specific persons could be charged with the commission of the crimes. The Prosecutor may even initiate investigations proprio motu on the basis of information on such crimes.

In 2016, a Pre-Trial Chamber granted the Prosecutor’s request to open an investigation proprio motu in the situation in Georgia, in relation to crimes against humanity and war crimes within the jurisdiction of the Court in the context of an international armed conflict between 1 July and 10 October 2008 in South Ossetia.

The Prosecutor reasoned that though under the complementarity principle the ICC could not proceed if national authorities were already undertaking genuine domestic proceedings into the same cases, yet in the present case the relevant national proceedings in Georgia were indefinitely suspended. Though earlier both the competent national authorities of Georgia as well as Russia were engaged in conducting investigations against those who appeared to be responsible for the crimes.

Regarding investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court, the Statute directs the Prosecutor to analyse the seriousness of the information received and she can further seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that she deems appropriate and may even receive written or oral testimony at the seat of the Court.

On finding a reasonable basis to proceed with an investigation she will submit to the Pre-Trial Chamber a request for authorisation of an investigation and then the Pre-Trial Chamber, upon examination of the request and the supporting material may authorize the commencement of the investigation.

A person can be held criminally responsible only if the conduct in question constitutes a crime within the jurisdiction of the Court. Further the definition of a crime has to be strictly construed and in any case of any ambiguity, the definition has to be interpreted in favour of the accused. The statute declares that a person who commits a crime within the jurisdiction of the Court will be individually responsible. An accused can be punished when he commits a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible or orders, solicits or induces the commission of a crime.

The Act declares that it applies equally to all persons without any distinction based on official capacity. Even if the accused is a Head of State or Government, a member of a Government or parliament, a government official, still there can be no case of exemption from criminal responsibility under the Act. The Act further states that the holding of such a post cannot even be a ground for reduction of sentence. Even immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, cannot bar the Court from exercising its jurisdiction.

The requirements for a person to be criminally responsible is that the material elements are committed with intent and knowledge. A mistake of law as to whether a particular type of conduct is a crime has not been made a ground for excluding criminal responsibility. But a mistake of fact can be a ground for excluding criminal responsibility provided it negates the mental element required by the crime.

Even an act committed pursuant to an order of a Government or of a military or civilian superior, cannot relieve that person of criminal responsibility unless that person was under a legal obligation to obey orders of the Government or the superior in question and the person did not know that the order was unlawful as well as the order was not manifestly unlawful. The statute mandates that orders to commit genocide or crimes against humanity will be considered manifestly unlawful.

The Court does not replace national criminal justice systems but only complements them as it investigates and prosecutes and tries individuals only if the State concerned does not, cannot or is unwilling to do so.

The relationship between USA and the ICC has been strained. Though the Clinton Administration signed the Rome Statute in 2000, George W. Bush authorised the United States to “un-sign” the Rome Statute in 2002. United Sates has serious objections to the Court’s wide jurisdiction as it can even prosecute individuals of non-State Parties.

In 2002, to protect American service members from the jurisdiction of the Court, US Congress passed the American Service Members’ Protection Act which authorizes the President to use all means ‘necessary and appropriate’ to bring about the release of any U.S. or allied personnel being detained by, on behalf of, or at the request of the International Criminal Court. US has also negotiated more than one hundred binding, bilateral agreements to prevent other countries from delivering American personnel to the ICC.

In the situation in Afghanistan, the Prosecutor has determined that there is a reasonable basis to believe that war crimes were committed by members of the United States armed forces on the territory of Afghanistan, and by members of the US Central Intelligence Agency in secret detention facilities in Afghanistan and on the territory of other States that are parties to the Rome Statute, principally in the period 2003-2004 and that these had occurred within the Court’s jurisdiction.

In November 2017, the Prosecutor requested authorization to investigate such war crimes. US has now even threatened action against the International Criminal Court in response to such ICC investigation of US personnel with regard to the situation in Afghanistan.

US suggested that it can respond against the ICC and its personnel to the extent permitted by US law including banning its judges and prosecutors from entering the United States and sanctioning their funds in the American financial system and even prosecution under the US criminal system.

In spite of several challenges including few convictions and growing distrust among the African states, the Rome Statute in the last twenty years has done a great service to humankind by prosecuting and punishing serious crimes and ensuring a more just society.

The writers are Mumbai-based advocates and legal consultants.