International Criminal Court: what it is and how it works

The International Criminal Court is a permanent court constituted to judge exclusively individuals, and not States, who, as organs of the State or as private citizens, have committed very serious crimes against humanity (genocide, war crimes, crimes against humanity and crimes of aggression) provided for in the Statute of the Court; the Statute referred to, i.e. the Treaty adopted by the Diplomatic Conference in Rome in 1998, and entered into force in 2002, defines the jurisdiction, competencies and functioning of the Court.

As many as 123 countries have acceded to the Treaty, while another 32 have joined but not yet ratified the document. These countries include the State of Israel, Russia, the United States and Sudan.China, on the other hand, is a special case since it has never signed or ratified the treaty.

In this regard, the literature has pointed out that the U.S.’s refusal to adhere could prove to be a major obstacle to the process of the Court’s action. The question raised on this matter is undoubtedly alarming, especially when one considers that the ratification process aimed at the entry into force of the Statute is now in full swing and that the position taken in this regard by a superpower such as the U.S.A. is bound to influence the choices of numerous other countries.

A spill-over effect on the already granted accessions occurred following the initiatives to support the indictees at the top of the Sudanese and Kenyan states, which were the subject of numerous investigations by the ICC.

There has indeed been the phenomenon of protests by African states about the Court’s alleged harassment of the continent and its political management practices. As a result, several states on the African continent announced their willingness to withdraw from the Rome Statute in order to exclude the Court’s jurisdiction over their territory.

With regard to its jurisdiction, this body can judge crimes committed on the territory of an adhering state as well as crimes committed by an individual from a non-adhering state but still on the territory of a country party to the Court. A peculiarity is that states that are not party to the Treaty are not obliged to extradite nationals accused of offences under the Treaty.

What crimes against humanity can the International Criminal Court judge

In principle, the crimes covered by the Court’s jurisdiction are genocide, crimes against humanity, war crimes and aggression (although the later definition of the crime of aggression is somewhat controversial). Central to the treaty are the articles on jurisdiction: this may be exercised at the request of a state party, the Security Council, or if the prosecutor has initiated an investigation sua sponte. To date, 30 cases have been brought to the Court’s attention and its work has focused heavily on cases involving the African continent. In general, however, the ongoing trials predominantly concern alleged crimes against humanity, as well as the notorious crime of genocide. It should now be emphasised that a crime against humanity is defined as one of the acts listed below, when committed as part of a widespread or systematic attack against civilian populations:

Murder;
Extermination;
Enslavement;
Deportation or forcible transfer of population;
Imprisonment or other serious deprivation of liberty in violation of fundamental norms of international law;
Torture;
Rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilisation and other forms of sexual violence of similar gravity;
Persecution against a group or collectivity with its own identity, inspired by political, racial, national, ethnic, cultural, religious or gender-based reasons;
Enforced disappearance of persons;

Apartheid. The role of President is currently held by Nigerian Judge Chile Eboe-Osuji. It is very important that the International Criminal Court is not confused with the International Court of Justice, also known as the International Tribunal in The Hague, which is the main judicial organ of the United Nations.

Defence before the Criminal Court

International Lawyers Associates has highly skilled, senior lawyers who have gained unparalleled experience and expertise. These lawyers are accustomed to assisting before such an authoritative institution and have participated in the most delicate trials before all national and international authorities. The team of International Lawyers Associates offers as full unparaelled legal defence service in matters of genocide, war crimes, crimes against humanity and crimes of aggression, guaranteeing the defence of any individual. This defence is provided by the team of International Lawyers Associates without seeking media resonance, even in the case of maxi-trials, thanks to the valuable contribution of these professionals.

How does the International Criminal Court work?

International criminal law condemns individual international crimes, i.e. those crimes committed by individuals and detrimental to internationally widespread interests and values.

Criminal law in this case refers directly against the perpetrators of such crimes and not only to the states to which they belong; this results in a jurisdictional model that is addressed to all individuals who are part of the system, regardless of the legalally-subjective position they hold.

In response to the need to create a special body for the prosecution of this type of conduct, the International Criminal Court was established, a jurisdictional body, completely independent in its development and operation from the United Nations: the relationship between the Court and the United Nations Organisation is based exclusively on the agreement approved by the Assembly of States.

Those wishing to receive legal assistance involving serious and qualified international legal cooperation may turn to the International Lawyers Associates team; this team of lawyers boasts the collaboration of some of the best lawyers specialised in representing clients before the International Criminal Court.

Defence in this area requires experience gained through constant participation in trials against known defendants, knowledge of all international legislation and that relating to investigative cooperation between judicial authorities of different countries.

The activation of the International Criminal Court’s intervention is the responsibility of the Prosecutor, a State Party, or the United Nations Security Council; the latter has a dual power: it can refer a situation to the Court when it considers that the conditions for its intervention are met and, in addition, it has the power to interrupt the investigation and proceedings for a period of 12 months following its request.

The Court’s activity is subject to certain important conditions of admissibility, also called ‘trigger mechanisms’. In this regard, its activity can only be directed against crimes committed since 2002, then it can only rule if there is a crime within its jurisdiction, if the perpetrator of that crime is a national of a ratifying state or one that has accepted its jurisdiction, or if the crime occurred in the territory of a state party.

We are therefore faced with a clearly complementary type of jurisdiction. This body is activated when the state that would be competent to judge and rule is completely inactive or proves to be ‘unable’ to proceed, as well as in cases of extreme seriousness of the crime.

A key role in these proceedings is played by the Prosecutor of the Court who, according to the Statute, constitutes the head of a hierarchically organised prosecution office. Within this office, the powers, functions and responsibilities are attributed solely to the Chief Prosecutor.

According to the provisions of the aforementioned Statute, the prosecutor’s activities are carried out in four stages: first, he collects information about the commission of crimes, then he decides, in a completely discretionary manner, whether to proceed with the opening of investigations, and finally he formulates the most appropriate charges.

Recently, the International Criminal Court, in order to better protect the victims of these particularly serious crimes, is attempting to draw guidelines for the introduction of the institution of the reparation order, an institution to be placed alongside possible convictions.

The introduction of the reparation order into the Court’s system is a clear expression of the importance accorded to victims in such circumstances. The remedial system made available to victims in the ICC context is characterised by its peculiar dual structure mainly in conceptual and procedural terms.

Within the general concept of ‘reparation’ in favour of the victims of crimes within the jurisdiction of the Court, a distinction must in fact be made between the two categories of reparation, a distinction from which specific institutional implications derive. The term ‘reparation’, however, is used in the normative context of the ICC to refer to the power assigned to the Court to issue judicial orders containing reparatory measures, in the context of a specific judicial proceeding which is placed, chronologically, at a later stage than the ascertainment of criminal responsibility. The issuance of such restorative orders thus presupposes the prior conviction of the defendant!

Recently, the ICC, an international court based in the Netherlands, sentenced former Congolese rebel Bosco Ntaganda, who had been found guilty of war crimes and crimes against humanity in July, to 30 years in prison, the highest sentence ever handed down by the court. He was the first person to be sentenced by the International Criminal Court for the crime of sexual slavery; other crimes he was convicted of include murder, rape, and the use of child soldiers.

As is evident from the information above, the procedure in these cases is quite complex, therefore, the assistance of experienced professionals in the defence before the International Criminal Court such as those employed by International Lawyers Associates is essential.