Role of international courts

8/18/2019 Role of international courts

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ROLE OF

INTERNATIONALCOURT AND RECENTCASES

Under the Guidanceof Prof. Ghulam

Yazdani

Submitted By –

Sahil Chadhaury


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ACKNOWLEDGEMENT

I owe my deep sense of gratitude to my respected teacher Prof.

Ghulam Yazdani, who rendered his constructive and valuable

guidance throughout my work, without his perspicacious comments

and scholarly guidance; I would never have been able to complete this

assignment. is patience to go through the draft meticulously was

incredible.

I would like to e!press my gratitude to the entire faculty members

who rendered their invaluable help.

I also acknowledge the help provided to me by the staff members of

the library of faculty of law, "amia #illia Islamia.

I e!tend my cordial gratitude to my parents for their kind appreciation

and help.

$ast but not the least, I e!press my gratitude to all the persons who

helped me to complete this assignment.

%ahil &haudhary

'.(.$$.' )ons*

+nd Year, th %emester

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Table of Contents

1. Introduction to Public International La!. International Cri"inal Court#. T$E NEED FOR AN INTERNATIONAL CRI%INAL

COURT&.T$E FEATURES OF T$E INTERNATIONAL CRI%INAL

COURT'.Structure o( t)e Court*. Situation+ and recent ca+e+,. T$E INTERNATIONAL CRI%INAL COURT TODA-.T$E FUTURE OF T$E INTERNATIONAL CRI%INAL

COURT/. Critici+"+ o( t)e International Cri"inal Court

10. Conclu+ion

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Introduction to Public International La

Public International $aw is the law of the political system of nation-states. It is

a distinct and self-contained system of law, independent of the national systems

with which it interacts, and dealing with relations which they do not effectively

govern. %ince there is no overall legislature or law-creating body in the

international political system, the rules, principles, and processes of

international law must be identified through a variety of sources and

mechanisms. his can make international law appear difficult to pin down.

Public international law refers to those laws, rules, and principles of general

application that deal with the conduct of nation states and international

organizations among themselves as well as the relationships between nation

states and international organizations with natural and /uridical persons. he

public international law aims to monitor the behavior between states since

where there e!ists a community of states, the maintaining of law and order

becomes essential. Primary forum for the creation of public international law is

inter-governmental organizations like 0nited 1ations through the codification

of customary law by way of international treaties he 01 develops, creates and

enforces international law in many levels.2

It covers relations between states in all their myriad forms, from war to

satellites, and regulates the operations of many international institutions. It may

be universal or general, in which case the stipulated rules bind all states, or

regional, whereby a group of states linked geographically or ideologically may

recognize special rules applying only to them.

3or effective implementation of the legal regime in domestic law, there e!ists a

recognized body to legislate or creates law, a hierarchy of courts with

1)tt233de4nition+.u+legal.co"33ublic5international5la3

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compulsory /urisdiction to settle disputes over such laws and accepting system

of enforcing those laws. 4ithout legislature, e!ecutive and /udiciary, it would

seem that the e!istence of legal order would not be possible. It does not fit this

model. It has no legislative body. he General (ssembly of 015 consisting of

delegates from all member states e!ist, but its resolutions are not legally binding

save for certain organs of 015 for certain purposes. he International &ourt of

"ustice does not e!ist but it can decide cases when both the parties agree and it

cannot ensure that its decisions are compiled with.

(bove all there is no e!ecutive or governing entity. he %ecurity &ouncil of the

015 which was have the role in a sense, has at times been effectively

constrained by the veto powers of the 6 permanent members, viz., 0.%.(, 0%%7

)now 7ussia 3ederation*, &hina, 3rance, and 0nited 8ingdom. hus, if there is

no identifiable institution either to establish rules, or to clarify them or to see

that those who break the law are punished, the realization of such law becomes

tricky.

he settlement of disputes between the states by /udicial action is only one fact

of the enormous problem of the maintenance of international peace and security.

In the period of the 0nited 1ations &harter the use of force by individual states

as a means of settling disputes is impermissible. Peaceful settlement is the only

available means. owever, there is no obligation in general international law to

settle disputes, and procedures for settlement by formal and legal procedures

rest on the consent of the parties.

0nlike, the legal structure in most primitive societies is hierarchical and

authority is vertical, international law system has a horizontal legal structure,

consisting of independent states, all e9ual in legal theory )possessing the

character of sovereignty* and recognizing none in authority over them.

International law is primarily formulated by international agreements which

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create rules binding upon the signatories, and customary rules, which are

basically state practices recognized by the community at large as lying down the

patterns of conduct that have to be complied with.

International law from the very beginning of its development seems to maintain

the relations among the nations whose ultimate goal is to maintain peace,

security and progress for all people for which cooperation of them in common

matters is the most.

(s international law developed in the 2:th and 2th centuries, it was widely

understood that it was a tool for relations between nation-states. Individuals hadno role in the process which resolved disputes between states e!cept as

representatives of the states, such as diplomats or naval officers. he classic

ueen, but it is now often

the bureaucratic representation of the sovereign power, such as the %tate

?epartment, the 3oreign #inistry, the military, etc. 0ntil the middle of the +@th&entury, international law consisted primarily of custom.

#ore recently, customary international law has been increasingly codified.

4hile that part of the governmental entity charged with foreign relations will

have the lead role in developing international law for the country, in practice

each subunit of a government has some ability to create what can be recognized

as International $aw. In the 0nited %tates, for e!ample, the A!ecutive 'ranch

)acting through the %tate ?epartment* may sign a treaty, but the President

ratifies it with the Badvice and consentB of the %enate, and the &ongress as a

whole may pass laws implementing it. In addition, administrative agencies can

make and enforce regulations implementing the treaty and the statutes, and the

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courts can interpret any of the above and use non-treaty related international law

as an e!ercise of their /udicial power.

5n the global scale, international organizations such as the 0nited 1ations and

the Auropean 0nion have become e!tremely important as forums for creating

international law. he most recent development in this area has been the

recognition that there is a role, within the sphere of public international law, for

individuals to pursue remedies against sovereign nations.

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International Cri"inal Court

he International &riminal &ourt )I&&*, governed by the 7ome %tatute, is the

first permanent, treaty based, international criminal court established to help endimpunity for the perpetrators of the most serious crimes of concern to the

international community. he I&& is an independent international organization,

and is not part of the 0nited 1ations system. Its seat is at he ague in the

1etherlands. (lthough the &ourt=s e!penses are funded primarily by %tates

Parties, it also receives voluntary contributions from governments, international

organizations, individuals, corporations and other entities.

he international community has long aspired to the creation of a permanent

international court, and, in the +@th century, it reached consensus on definitionsof genocide, crimes against humanity and war crimes. he 1uremberg and

okyo trials addressed war crimes, crimes against peace, and crimes against

humanity committed during the %econd 4orld 4ar.

In the 2CC@s after the end of the &old 4ar, tribunals like the International

&riminal ribunal for the former Yugoslavia and for 7wanda were the result of

consensus that impunity is unacceptable. owever, because they wereestablished to try crimes committed only within a specific time-frame and

during a specific conflict, there was general agreement that an independent,

permanent criminal court was needed.

5n 2: "uly 2CC, the international community reached an historic milestone

when 2+@ %tates adopted the 7ome %tatute, the legal basis for establishing the

permanent International &riminal &ourt.

he 7ome %tatute entered into force on 2 "uly +@@+ after ratification by D@

countries.

he International &riminal &ourt )I&&* is an independent, permanent court that

tries persons accused of the most serious crimes of international concern,

namely genocide, crimes against humanity and war crimes. he I&& is based on

a treaty, /oined by 2++ countries )effective as of 2 #ay +@2E*.

he I&& is a court of last resort. It will not act if a case is investigated or prosecuted by a national /udicial system unless the national proceedings are not

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genuine, for e!ample if formal proceedings were undertaken solely to shield a

person from criminal responsibility. In addition, the I&& only tries those

accused of the gravest crimes.

In all of its activities, the I&& observes the highest standards of fairness and due process. he /urisdiction and functioning of the I&& are governed by the 7ome

%tatute.

A 1AA? 357 (1 I1A71(I51($ &7I#I1($ &507

3or e!perts on human rights it is clear that the protection of individuals from

violations of human rights and humanitarian law re9uires appropriate

mechanisms to enforce the law. 3or decades, international law lacked sufficient

mechanisms to hold individuals accountable for the most serious internationalcrimes. 1aturally, like any other crimes, punishment for grave breaches of the

Geneva &onventions or for violations of the Genocide &onvention or the

customary law of war crimes and crimes against humanity depended primarily

on national courts. he problem is that it is precisely when the most serious

crimes were committed that national courts were least willing or able to act

because of widespread or systematic violence or because of involvement of

agents of the %tate in the commission of crimes. If you look at the past to the

best known historical events of that kind-1azi Germany, 7wanda, the former Yugoslavia, &ambodia-the governments themselves or their agents were

involved in the commission of those crimes. (nd so the failures of national

courts in these conte!ts protected perpetrators with impunity. o prevent

impunity in those situations, it is necessary to enforce international /ustice when

national systems are unwilling or unable to act.

he first actions taken by the international community were to create ad hoc

tribunals in such situations. he first tribunals were, of course, those of

1uremberg and okyo after 4orld 4ar II. hen, more recently, the 0nited

1ations set up tribunals for 7wanda and the former Yugoslavia. hese tribunals

were e!tremely important. hey were pioneers. hey showed that international

/ustice could work, but they all possessed several limitations. 5ne is that only a

few %tates participated in their creation. he 1uremberg and okyo tribunals

were set up by the victorious (llied powers after 4orld 4ar II, and the 7wanda

and Yugoslavia tribunals were created by the %ecurity &ouncil. here are also

other limitations. (d hoc tribunals are limited to specific geographic locations.

hey respond primarily to events in the past. heir establishment involves

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e!tensive costs and delays. $ast but not least, their creation depended, every

time, on the political will of the international community at the time. (nd so in

some cases there was action; in some cases there was nothing. (s a result, their

ability to punish perpetrators of international crimes and to deter future

perpetrators has been limited. Aventually, a permanent truly international court

was necessary to respond to the most serious international crimes and to

overcome the limitations of the ad hoc tribunals. In the summer of 2CC, the

0.1. General (ssembly convened the

7ome &onference to fill this essential need by establishing the I&&. In creating

the I&&, %tates were particularly concerned with guaranteeing the &ourtFs

underlying legitimacy. 0nlike the ad hoc tribunals, the I&& is the first and only

tribunal that was created by an international treaty, which enabled all %tates to participate in its creation. (ll %tates were invited to participate in the

negotiations of the statute and the vast ma/ority-2D@-did so. here was a

genuine effort to seek wide agreement among %tates without compromising the

key values and ob/ectives behind a fair and impartial court. Afforts towards

universal acceptance were largely achieved. Aventually, on "uly 2:, 2CC, the

%tatute was approved by 2+@ %tates. (fter the 7ome &onference, a Preparatory

&ommission met for over three and a half years. It was charged with developing

the &ourtFs subsidiary instruments, notably, the 7ules of Procedure andAvidence and the Alements of &rimes. It should be noted that the 7ules of

Procedure and Avidence for every other international criminal tribunal were

developed by the /udges in those tribunals. In the case of the I&&, they were

developed by the %tates, again because %tates wanted to ensure that the system

underlying the operation of the I&& would be as tight as possible. here was a

very good reason for this; I will go back to that a little later. 'ut it is clear that

since the I&& would have prospective /urisdiction over then unknown

situations, it was impossible for the %tates to know what e!actly the I&& woulddeal with. herefore it was absolutely vital for %tates to ensure that the I&&

would be a purely /udicial court. 5ut of the desire I referred to earlier to ensure

as wide acceptance as possible, all decisions taken by the Preparatory

&ommission were taken by consensus-by general agreement. hat included the

adoption of both the 7ules of Procedure and Avidence and the Alements of

&rimes. 'y this method of consensus, the Preparatory &ommission, contributed

significantly to international support for the &ourt. (t the end of +@@@, the

deadline for signature of the 7ome %tatute, 2EC %tates had signed the %tatute,which was about twenty more than those that had voted for the %tatute in 2CC.

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o my knowledge, this is a uni9ue case in the history of a treaty negotiation.

1ormally what happens is that you vote for an instrument at the time of the

conference because it is easier and then forget about it because that is also

easier. In the case of the I&&, the momentum to have a functioning &ourt in

place was such that indeed, as I said, the number of signatures was higher than

the number of votes at the conference. In the eight years since the adoption of

the 7ome %tatute, 2@+ countries representing broad geographical diversity have

ratified or acceded to the %tatute. I think it is a very good pace for a treaty

establishing an international institution, in particular an international institution

that re9uires considerable modifications in the legislation of %tates that have

ratified the %tatute.

A 3A(07A% 53 A I1A71(I51($ &7I#I1($ &507

he I&& does not have universal /urisdiction. Its /urisdiction is limited to crimes

committed on the territory of or by nationals of %tates which have voluntarily

consented to its /urisdiction. hese base of /urisdiction-territory of the crime and

the nationality of the perpetrator-are the most firmly established bases of

criminal /urisdiction. he &ourtFs /urisdictional regime recognizes the special

role of the %ecurity &ouncil in maintaining peace and security. 0nder the

%tatute, the %ecurity &ouncil may refer situations to the &ourt so that it no

longer has to create ad hoc tribunals as it did for the former Yugoslavia and

7wanda. he %ecurity &ouncil has already used this power when it referred the

situation in ?arfur, %udan, to the &ourt %udan not being a Party to the 7ome

%tatute. he %ecurity &ouncil, acting under &hapter II of the 0.1. &harter,

may also defer an investigation or a prosecution for a period of one year. he

&ourtFs /urisdiction is also limited temporally. It has /urisdiction only over

events since its %tatute entered into force on "uly 2, +@@+. 1o crime committed

before that time can be dealt with by the I&&.

he &ourtFs sub/ect matter /urisdiction covers the most serious international

crimes. In that sense, although obviously the I&& deals with the most serious

violations of human rights, it is not a human rights court in the traditional sense.

It is a criminal court. It is a criminal court that is limited to genocide, crimes

against humanity, and war crimes. he crimes contained in the %tatute are well

established in customary and conventional international law as well as national

laws. he %tatute also provides that the &ourt has /urisdiction over the crime of

aggression, but the &ourt will not e!ercise this /urisdiction until both adefinition of aggression, and conditions for the e!ercise of /urisdiction are

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agreed upon. his has to happen through an amendment to the %tatute, agreed to

by the %tates Parties. %uch amendment could occur at the earliest at a review

conference to be held in +@@C. (ggression was seen by many %tates as a

symbolic crime-a crime that certainly was central to proceedings after 4orld

4ar II. It was a general view among %tates that if aggression were not

committed, many other crimes would not be committed and therefore

aggression had to be part of the %tatute. owever, there was no agreement on

how aggression should be defined and there was certainly no agreement how to

move from a declaration of aggression by %tates as an act covered by public

international law to proceedings covering individuals having been involved in

their crimes under international criminal law. Aven where the &ourt has

/urisdiction, it will not necessarily act.

his is the fundamental point that has to be understood about the I&&. he I&&

is a court of last resort. It is intended to act only when national courts are

unwilling or unable to carry out genuine proceedings. his is known as the

principle of complementarity. 0nder this principle, a case will be inadmissible if

it is being or has been investigated or prosecuted by a %tate with /urisdiction. In

addition, a case will be inadmissible if it is not of sufficient gravity to /ustify

action by the &ourt. here is an e!ception under the principle of

complementarity where the &ourt may act. his is when the %tate is unwillingor unable genuinely to carry out the investigation or prosecution. 3or e!ample,

if proceedings were undertaken solely to shield a person from criminal

responsibility-and that can take different forms, which are indeed spelled out in

the %tatute-or if the proceedings were carried out in a manner inconsistent with

an intent to bring the person to /ustice.

It follows from what I said earlier, from the concern of %tates to ensure that the

&ourt would be a purely /udicial institution and would act in a purely /udicial

way, that the guarantee of a fair trial and protection of the rights of the accused

have paramount importance before the I&&. he %tatute incorporates the

fundamental provisions of the rights of the accused or the rights of the accused

and due process common to national and international legal systems. (

particular feature of the I&&, which is different again from ad hoc tribunals, is

the treatment given to victims. ictims have of course participated in other

international proceedings, but largely as witnesses for the prosecutor or for the

defense. In the case of the

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I&&, victims may participate in proceedings even when not called as witnesses.

he &ourt also has the power to order reparations to victims including

restitution, compensation, and rehabilitation. he I&& has the obligation to take

into account the particular interests of victims of violence against women and

children.

Visiting the International Criminal Court

he International &riminal &ourt welcomes interested members of the public at

its seat in he ague, with a view to raising public awareness of its structure,

the way it works and the nature of its work. %ome practical information

regarding visits is given belowH

To attend hearings only:

he hearings of the International &riminal &ourt are generally open to the

public, unless the &hamber orders a closed session. 3or more information, we

recommend consulting the hearing schedule. Please note that in the interests of

public order, under-si!teen-year-olds are not allowed in the &ourt building. 4e

also recommend reading the rules related to visits to the &ourt )below*.

What does a isit !onsist o"#he public gallery seats :6 persons. %eats are allocated according to the order of

precedence and arrival at the &ourt. You may stay until the end of the hearing.

%imultaneous interpretation into Anglish and 3rench is available during

hearings. eadphones are available to the public for this purpose.

$o% to &ro!eed#

"ust go to the entrance of the &ourt )no need to fill in a form beforehand*. (ny person entering the &ourt building will have to pass through the security checks

and present valid identification )passport, identity card or driving license*.

'ules:

4hile in the premises of the &ourt all visitors are re9uired to respect the rules of

behavior.

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To re!eie a (rie"ing regarding the Court:

Indiidual and grou& isits

he International &riminal &ourt welcomes individual or group visits. Groupsmust comprise at least five persons and, due to the &ourt=s capacity, not more

than 6 persons. In the interests of public order, under-si!teen-year-olds are not

allowed in the &ourt building. 4e also recommend reading the rules related to

visits to the &ourt )below*.

What does a isit !onsist o"#

he visit consists of a talk )2 hour E@ minutes* on the mandate, structure and the

activities of the &ourt. isitors may beforehand or afterwards, where possible,

attend a hearing according to the &ourtFs schedule.

he &ourt=s working languages are Anglish and 3rench. owever, the &ourt can

arrange for the talk to be conducted in another language where possible.

Structure o( t)e Court

he &ourt is an independent institution. he &ourt is not part of the 0nited

1ations, but it maintains a cooperative relationship with the 0.1. he &ourt is

based in he ague, the 1etherlands, although it may also sit elsewhere.

he &ourt is composed of four organs. hese are the Presidency, the /udicial

?ivisions, the 5ffice of the Prosecutor and the 7egistry.

Presidency:

he Presidency is responsible for the overall administration of the &ourt,

with the e!ception of the 5ffice of the Prosecutor, and for specific functions

assigned to the Presidency in accordance with the %tatute. he Presidency is

composed of three /udges of the &ourt, elected to the Presidency by their

fellow /udges, for a term of three years. he President of the &ourt is

"udge %ang-yun %ong )7epublic of 8orea*. "udge %an/i #masenono

#onageng )'otswana* is 3irst ice-President, and "udge &uno

arfusser )Italy* is %econd ice-President.

• Judicial DivisionsH

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http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/presidency/the%20first%20vice%20president/Pages/judge%20sanji%20mmasenono%20monageng%20_botswana_.aspxhttp://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/presidency/the%20first%20vice%20president/Pages/judge%20sanji%20mmasenono%20monageng%20_botswana_.aspxhttp://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/presidency/the%20second%20vice%20president/Pages/judge%20cuno%20jakob%20tarfusser%20_italy_.aspxhttp://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/presidency/the%20second%20vice%20president/Pages/judge%20cuno%20jakob%20tarfusser%20_italy_.aspxhttp://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/presidency/the%20second%20vice%20president/Pages/judge%20cuno%20jakob%20tarfusser%20_italy_.aspxhttp://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/presidency/the%20second%20vice%20president/Pages/judge%20cuno%20jakob%20tarfusser%20_italy_.aspxhttp://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/presidency/the%20first%20vice%20president/Pages/judge%20sanji%20mmasenono%20monageng%20_botswana_.aspxhttp://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/presidency/the%20first%20vice%20president/Pages/judge%20sanji%20mmasenono%20monageng%20_botswana_.aspx


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he "udicial ?ivisions consist of eighteen /udges organized into the Pre-rial

?ivision, the rial ?ivision and the (ppeals ?ivision. he /udges of each

?ivision sit in &hambers which are responsible for conducting the

proceedings of the &ourt at different stages. (ssignment of /udges to

?ivisions is made on the basis of the nature of the functions each ?ivision

performs and the 9ualifications and e!perience of the /udge. his is done in a

manner ensuring that each ?ivision benefits from an appropriate

combination of e!pertise in criminal law and procedure and international

law. he /udges of the &ourt areH %ang-yun %ong )7epublic of 8orea*,

%an/i #masenono #onageng )'otswana*, &uno arfusser )Italy*, ans-Peter

8aul )Germany*, (kua 8uenyehia )Ghana*, Arkki 8ourula )3inland*, (nita

0acka )$atvia*, Akaterina rendafilova )'ulgaria*, "oyce (luoch )8enya*,

&hristine van den 4yngaert )'elgium*, %ilvia (le/andra 3ernJndez de

Gurmendi )(rgentina*, 8uniko 5zaki )"apan*, #iriam ?efensor-%antiago

)Philippines*, oward #orrison )0nited 8ingdom*, (nthony . &armona

)rinidad and obago*, 5lga errera &arbuccia )?ominican 7epublic*,

7obert 3remr )&zech 7epublic* and &hile Aboe-5su/i )1igeria*.he following /udges are continuing in office to complete their trials, in

accordance with article ED)2@* of the 7ome %tatuteH

"udge Alizabeth 5dio 'enito )&osta 7ica*

"udge 7enK 'lattmann )'olivia*

"udge 3atoumata ?embele ?iarra )#ali*

"udge %ir (drian 3ulford )0nited 8ingdom*

"udge %ylvia %teiner )'razil*

"udge 'runo &otte )3rance*

Office of the Prosecutor:

he 5ffice of the Prosecutor is responsible for receiving referrals and anysubstantiated information on crimes within the /urisdiction of the &ourt, for

e!amining them and for conducting investigations and prosecutions before

the &ourt. he 5ffice is headed by the Prosecutor, #rs. 3atou 'ensouda

)he Gambia*, who was elected by the %tates Parties for a term of nine years.

%he is assisted by ?eputy Prosecutor "ames %tewart who is in charge of the

Prosecutions ?ivision of the 5ffice of the Prosecutor.

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Registry:

he 7egistry is responsible for the non-/udicial aspects of the administration

and servicing of the &ourt. he 7egistry is headed by the 7egistrar who is

the principal administrative officer of the &ourt. he 7egistrar e!ercises hisor her functions under the authority of the President of the &ourt. he current

7egistrar, elected by the /udges for a term of five years, is #s %ilvana (rbia

)Italy*.

Other Offices

he &ourt also includes a number of semi-autonomous offices such as the5ffice of Public &ounsel for ictims and the 5ffice of Public &ounsel for

?efence. hese 5ffices fall under the 7egistry for administrative purposes

but otherwise function as wholly independent offices. he (ssembly of

%tates Parties has also established a rust 3und for the benefit of victims of

crimes within the /urisdiction of the &ourt and the families of these victims.

In order for the &ourt to fulfill its mandate its role and /udicial activities must beunderstood by a variety of audiences. In this respect, the &ourt=s outreach

programme has been created to ensure that affected communities in situations

sub/ect to investigation or proceedings can understand and follow the work of

the &ourt through the different phases of its activities.

5utreach is one of the &ourt=s various e!ternal communications functions which

also include e!ternal relations and public information as defined in the

Integrated %trategy for A!ternal 7elations, Public Information and 5utreachH

• E)ternal relations refers to the constructive dialogue between the &ourt and

%tates Parties, 1on-%tates Parties, international organizations, 1G5s and

other key partners with the aim of building and maintaining support and co-

operation facilitating the &ourt=s ability to fulfill its statutory mandate.

• *u(li! in"ormation relates to the process of delivering accurate and timely

information about the principles, ob/ectives and activities of the &ourt to the

public at large as well as to specific audiences, through a variety of means.

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Outrea!h is a process of establishing sustainable, two-way communication

between the &ourt and communities affected by the situations that are sub/ect to

investigations or proceedings, and to promote understanding and support of the

/udicial process at various stages as well as the different roles of the organs of

the I&&. 5utreach aims to clarify misperceptions and misunderstandings and to

enable affected communities to follow trials.

5utreach activities are adapted to the conte!t in which the &ourt is operating,

including the different security situations, the various stages of investigation or

proceedings and the different needs of the &ourt=s audiences. he &ourt has

therefore developed a general %trategic Plan for 5utreach and situation related

strategies and action plans.

Programmes and approaches are also adapted to particular circumstances, such

as the phases of the /udicial process, the conte!t of operations and the

specificities of target groups. he outreach programme conducts meetings with

target groups and uses radio and other media to reach the public at large.

(ction plans are prepared and implemented by staff based in the field offices in

a manner that is consistent with the general principles that are the foundation of

the &ourt=s outreach programme. ( relatively small complement of staff at

ead9uarters, organised in the 5utreach 0nit of the Public Information and?ocumentation %ection of the 7egistry, oversee co-ordination between the

organs and offices on planning and implementing activities, and support the

teams in the field.

6icti"+ and itne++e+

5ne of the great innovations of the %tatute of the International &riminal &ourt

and its 7ules of Procedure and Avidence is the series of rights granted tovictims. 3or the first time in the history of international criminal /ustice, victims

have the possibility under the %tatute to present their views and observations

before the &ourt. Participation before the &ourt may occur at various stages of

the proceedings and may take different forms. owever, it will be up to the

/udges to give directions as to the timing and manner of participation.

Participation in the &ourtFs proceedings will in most cases take place through a

legal representative and will be conducted Lin a manner which is not pre/udicial

or inconsistent with the rights of the accused and a fair and impartial trial.M

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he victim-based provisions within the 7ome %tatute provide victims with the

opportunity to have their voices heard and to obtain, where appropriate, some

form of reparation for their suffering. It is this balance between retributive and

restorative /ustice that will enable the I&& to not only bring criminals to /ustice

but also to help the victims themselves rebuild their lives.

6icti"+ and itne++e+ rotection

and +uort

he 7ome %tatute, the 7ules of Procedure and Avidence and the 7egulations of

the &ourt and of the 7egistry contain important provisions for the protection

and support of victims and witnesses. hese provisions are key for thesuccessful functioning of the &ourt, aiming to ensure that victims can

participate in proceedings and witnesses testify freely and truthfully without

fear of retribution or suffering of further harm.

(rticle D)2* of the 7ome %tatute provides that the &ourt shall take appropriate

measures to protect the safety, physical and psychological well-being, dignity

and privacy of victims and witnesses.

o this end, pursuant to (rticle E)D*, the 7egistrar has set up a ictims and4itnesses 0nit within the 7egistry to provide protective measures and security

arrangements, counselling and other appropriate assistance for witnesses,

victims who appear before the &ourt and others who are at risk on account of

testimony.

5n +C and E@ "anuary +@@C, the 7egistrar organised a roundtable on the

protection of victims and witnesses at the seat of the &ourt in he ague. It was

organised in order to e!plain how the protection system operates, what

challenges are faced and what support the &ourt re9uires to fulfil its mandate.

he round table was also intended as a discussion forum to allow different

points of view to be e!changed from the perspectives of 1on-governmental

organisations, other international criminal tribunals and institutional partners of

the &ourt.

+C and E@ "anuary +@@C - %ummary 7eport on the 7ound able on the

Protection of ictims and 4itnesses (ppearing 'efore the International

&riminal &ourt

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+ 1ovember +@2@ - %ummary 7eport on the %eminar on Protection of ictims

and 4itnesses (ppearing 'efore the International &riminal &ourt.

Vi!tims and Witnesses +nit

he ictims and 4itnesses 0nit )40* thus has a statutory mandate to provide

protection, support and other appropriate assistance to witnesses and victims

who appear before the &ourt.

he 7ules of Procedure and Avidence further stipulate that the ictims and

4itnesses 0nit shall provide witnesses, victims who appear before the &ourt

and others who are at risk on account of testimony with ade9uate protective and

security measures and formulate long-and short-term plans for their protection;

recommend to the organs of the &ourt the adoption of protection measures andassist witnesses when they are called to testify before the &ourt.

he ictims and 4itnesses 0nit is a neutral service provider, providing e9ual

services to Prosecution and ?efence. he unit does not identify witnesses or

victims on its own, but acts upon referral or re9uest. (lthough protection and

support services are particularly pertinent during the trial stage, the services of

the ictims and 4itnesses 0nit can be re9uested and provided at all stages of

proceedings, from pre-trialNinvestigation to post-trial.

he ictims and 4itnesses 0nit has developed protocols and cooperation

agreements with a number of national and international partners and is

committed to remain at the forefront of best international practice within its

areas of e!pertise.

*rote!tion:

Protection aims to minimise and manage any risk that may be faced by

witnesses and victims who appear before the &ourt resulting from their interaction with the &ourt.

he basic fundament of any meaningful protection system lies in the adherence

to good practices when interacting with victims and witnesses. hrough the

establishment and maintenance of response and protection measures in the

&ourt=s areas of operation and through procedural protective measures ordered

by &hambers further protection can be ensured. 3inally, as a measure of last

resort, protection can be provided through participation in the I&& Protection

Programme.

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In accordance with 7ule 2D of the 7ules of Procedure and Avidence the

7egistrar may negotiate confidential agreements on relocation and provision of

support services on the territory of a %tate on behalf of the &ourt. he ictims

and 4itnesses 0nit actively pursues a policy of concluding relocation and other

cooperation agreements with %tates Parties and other parties in order to

establish an effective national and international protection regime for witnesses,

victims who appear before the &ourt and others who are at risk on account of

testimony.

,u&&ort:

In order to ensure their psychological well-being, dignity and privacy, the

ictims and 4itnesses 0nit provides support services and assistance to

witnesses and victims who appear before the &ourt when re9uired, based on an

assessment of their individual needs.

he ictims and 4itnesses 0nit=s support team provides information and

guidance to witnesses and victims appearing before the &ourt, as well as their

accompanying persons. he support team offers assistance during the travel of

victims and witnesses to the location of the hearings and provides services to

them + hours per day and seven days per week. hese services include, inter

alia, the provision of psycho-social support, crisis intervention, information anddebriefings before and after testimony, and access to medical care when needed.

he services are monitored regularly and tailored to meet the specific needs of

victims and witnesses, taking into account their cultural, religious and social

re9uirements. Particular attention is given to vulnerable groups, such as victims

of se!ual or gender violence, children, the elderly and persons with disabilities.

he 40 support services promote gender-sensitive measures to facilitate the

testimony of victims of se!ual violence.

he multi-disciplinary support team of the ictims and 4itnesses 0nit is

e!perienced and trained in issues of trauma, se!ual violence, security and

confidentiality. he support services aim to promote a setting in which the

e!perience of testifying does not result in further harm, suffering or trauma.

O&erations:

In addition to protection and support services, the ictims and 4itness 0nit

provides other appropriate assistance to witnesses and victims who appear before the &ourt. hese include logistical arrangements and immigration

1/ | P a g e


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procedures to ensure the timely and secure appearance of witnesses and victims

in &ourt.

he operations element within the ictims and 4itnesses 0nit moreover

provides operational and logistical support to the unit=s protection and supportofficers and coordinates the unit=s activities in the &ourt=s areas of operation.

De"en!e

he defence is a fundamental pillar of the scales of /ustice at the International

&riminal &ourt, and a key component of a fair trial.

'ights o" de"en!e

he permanent International &riminal &ourt aims to be a model of /udicial

administration. he &ourt is steadfast in its commitment to ensure the

proceedings before it are in conformity with the highest legal standards and due

process rights of suspects and accused persons.

he importance of safeguarding the rights of the defence is reflected in the

&ourt=s founding instrument, the 7ome %tatute, as well as other legal te!ts of

the &ourt. 3undamental principles enshrined in the %tatute include, amongst

others, the grounds for e!cluding criminal responsibility and the presumption of

innocence. he rights of the accused to a public, impartial and fair hearing,

amongst other minimum guarantees are provided in (rticle D: of the %tatute.

hese rights are effectively guaranteed by the overseeing /udicial powers of

&hambers.

Assistan!e &roided to de"en!e

In addition to the provisions in the 7ome %tatute, the 7ules of Procedure and

Avidence places a positive obligation on the 7egistrar to organize the staff of

the 7egistry in a manner that promotes the rights of the defence consistent with

principles of fair trial as defined in the %tatute. his general duty comprises

several obligations, including but not limited toH facilitating the implementation

of the rights of suspects and accused persons implicated in proceedings before

the &ourt, and for indigent persons to have legal assistance paid by the &ourt so

as to benefit from an effective and efficient defence.

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T)e ICC Detention Centre

he I&& ?etention &entre is located within a ?utch prison comple! in

%cheveningen - on the outskirts of he ague. It functions to hold in safe,

secure and humane custody those persons detained under the authority of the

I&&.

he I&& 7egistrar has overall responsibility for all aspects of management of

the ?etention &entre, including security and order; and makes all decisions

relating thereto, as stipulated in 7egulation C@ of the 7egulations of the &ourt.

In fulfilling its mandate, the I&& 7egistrar endeavors to ensure the mental,

physical and spiritual welfare of the detained persons within an efficient system

of detention, with consideration to their cultural diversity and their development

as individuals.

In achieving this aim, the daily programme of the ?etention &entre allows the

detained persons access to fresh air, recreational time and sports activities. hey

have access to library books, news and television.

?etained persons have access to computer facilities to work on their own cases.

If needed, detained persons are given the opportunity of computer training.

3ollowing the mandate of the I&&, as an e-&ourt, each detained person has a

computer in hisN her cell, which is linked to one specific computer at the &ourt;

only his defence has access to that computer. he ?efence can upload

caserelated material which the detained person can access and make comments

on.

(cknowledging the right of a detained person to privacy with hisN her ?efence;and recognising the importance for himN her to communicate freely with the

consular or diplomatic representative of hisN her country of origin; a detained

person is entitled to privileged communication with persons falling under those

two categories. his denotes that such communication shall not monitored be by

the ?etention &entre staff.

In addition, the detained persons are entitled to visits by a minister or spiritual

advisor of their religion or belief, for which an area within the ?etention &entre

is allocated.

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4ith a view of maintaining family links, as provided for by the 7egulations of

the 7egistry, the 7egistrar gives specific attention to visits by the family and

visits by the wife or partner of the detained persons; and may take measures to

assist the family in the necessary procedures thereof, if re9uired.

?etained persons are provided with suitably prepared food that satisfies in

9uality and 9uantity the standards of dietetics and modern hygiene.

(dditionally, detained persons are allowed to cook for themselves; they can

purchase additional items, listed on the shopping list of the ?etention &entre, as

available, in order for them to ad/ust the meals provided to them, according to

their taste and cultural re9uirements.

Pursuant to the agreement between the I&& and the International &ommittee of

the 7ed &ross )I&7&*, concluded in +C #arch +@@D, the I&7&, being the

inspecting authority, has unrestricted access to the ?etention &entre. Its

delegates pay unannounced visits to the ?etention &entre, with the purpose of

e!amining the treatment of the detained persons, their living conditions and

their physical and psychological conditions, in conformity with widely accepted

international standards governing the treatment of persons deprived of liberty.

?etained persons are presumed innocent until proven guilty. If convicted of

crimes under the /urisdiction of the I&&, they do not serve their sentences at the

I&& ?etention &entre as it is not a facility made for the purposes of managing a

regime of convicted prisoners; they are transferred to a prison outside of he

1etherlands to serve their time, sub/ect to an agreement between the I&& and

the %tate of enforcement.

,ituations and re!ent !ases

2 cases in situations have been brought before the International &riminal

&ourt.

Pursuant to the 7ome %tatute, the Prosecutor can initiate an investigation on the

basis of a referral from any %tate Party or from the 0nited 1ations %ecurity

&ouncil. In addition, the Prosecutor can initiate investigations proprio motu on

the basis of information on crimes within the /urisdiction of the &ourt received

from individuals or organisations )LcommunicationsM*.

o date, four %tates Parties to the 7ome %tatute O 0ganda, the ?emocratic

7epublic of the &ongo, the &entral (frican 7epublic and #ali O have referred

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situations occurring on their territories to the &ourt. In addition, the %ecurity

&ouncil has referred the situation in ?arfur, %udan, and the situation in $ibya O

both non-%tates Parties. (fter a thorough analysis of available information, the

Prosecutor has opened and is conducting investigations in all of the above-

mentioned situations.

5n E2 #arch +@2@, Pre-rial &hamber II granted the Prosecution authorisation

to open an investigation proprio motu in the situation of 8enya. In addition, on

E 5ctober +@22, Pre-rial &hamber III granted the Prosecutor=s re9uest for

authorisation to open investigations proprio motu into the situation in &te

d=Ivoire.

,ituation in +ganda

he case The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and

Dominic Ongwen is currently being heard before Pre-rial &hamber II. In this

case, five warrants of arrest have been issued against QtheR five top members of

the $ords 7esistance (rmy )$7(*.

3ollowing the confirmation of the death of #r $ukwiya, the proceedings against

him have been terminated. he four remaining suspects are still at large.

,ituation in the Demo!rati! 'e&u(li! o" the Congo

In this situation, five cases have been brought before the relevant &hambersH

; The Prosecutor v. osco !taganda;The Prosecutor v. "ermain Katanga; The

Prosecutor v. #athieu !gud$olo %hui;The Prosecutor v. %alli&te

#barushimana; and The Prosecutor v. 'ylvestre #udacumura. he accused

homas $ubanga ?yilo, Germain 8atanga and #athieu 1gud/olo &hui and the

suspect &alli!te #barushimana are currently in the custody of the I&&. hesuspect 'osco 1taganda remains at large.

rial &hamber I convicted #r $ubanga ?yilo on 2 #arch +@2+. 5n 2@ "uly

+@2+, he was sentenced to a total period of 2 years of imprisonment. he time

he spent in the I&&=s custody will be deducted from this total sentence. he trial

in this case, The Prosecutor v. Thomas (ubanga Dyilo, had started on +D

"anuary +@@C.

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he trial in the case of The Prosecutor v. "ermain Katanga and #athieu

!gud$olo %hui started on + 1ovember +@@C. &losing statements in the case

were heard from 26 to +E #ay +@2+. 5n +2 1ovember +@2+, rial &hamber II

decided to sever the charges against #athieu 1gud/olo &hui and Germain

8atanga. 5n 2 ?ecember +@2+, rial &hamber II ac9uitted #athieu 1gud/olo

&hui of the charges of war crimes and crimes against humanity and ordered his

immediate release. 5n +2 ?ecember +@2+, #athieu 1gud/olo &hui was released

from custody. he 5ffice of the Prosecutor has appealed the verdict.

he verdict regarding German 8atanga will be delivered at a later stage.

he confirmation of charges hearing in the case The Prosecutor v. %alli&te

#barushimana took place from 2D to +2 %eptember +@22. 5n 2D ?ecember

+@22, Pre-rial &hamber I decided by #a/ority to decline to confirm the

charges against #r #barushimana. #r #barushimana was released from the

I&&=s custody on +E ?ecember +@22, upon the completion of the necessary

arrangements, as ordered by Pre-rial &hamber I.

,ituation in Dar"ur- ,udan

here are five cases in the situation in ?arfur, %udanH The Prosecutor v. )hmad

#uhammad *arun +)hmad *arun- and )li #uhammad )li )bd)l/ahman

+0)li Kushayb-; The Prosecutor v. Omar *assan )hmad )l ashir ; The

Prosecutor v. ahar 1driss )bu "arda; The Prosecutor v. )bdallah anda

)bakaer !ourain and 'aleh #ohammed Jerbo Jamus; and The Prosecutor v.

)bdel /aheem #uhammad *ussein.

4arrants of arrest have been issued by Pre-rial &hamber I for #essrs arun,

8ushayb, (l 'ashir and ussein. he four suspects remain at large.

( summons to appear was issued for #r (bu Garda, who appeared voluntarily

before the &hamber on 2 #ay +@@C. (fter the hearing of confirmation of

charges, on 3ebruary +@2@, Pre-rial &hamber I declined to confirm the

charges. #r (bu Garda is not in the custody of the I&&.

wo other summonses to appear were issued for #r 'anda and #r "erbo who

appeared voluntarily on 2: "une +@2@; the confirmation of charges hearing took

place on ?ecember +@2@. 5n : #arch +@22, Pre- rial &hamber I

unanimously decided to confirm the charges of war crimes brought by the I&&=s

Prosecutor against #r 'anda and #r "erbo, and committed them to trial. he

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trial in the case The Prosecutor v. )bdallah anda )bakaer !ourain and 'aleh

#ohammed Jerbo Jamus is scheduled to start on 6 #ay +@2.

,ituation in the Central A"ri!an 'e&u(li!

he situation was referred to the &ourt by the Government of the &entral

(frican 7epublic in ?ecember +@@. he Prosecutor opened an investigation in

#ay +@@:. In the only case in this situation, The Prosecutor v. JeanPierre

emba "ombo, Pre-rial &hamber II confirmed, on 26 "une +@@C, two charges

of crimes against humanity and three charges of war crimes, and committed the

accused to trial before rial &hamber III. he trial started on ++ 1ovember

+@2@.

,ituation in the 'e&u(li! o" Kenya

5n E2 #arch +@2@, Pre-rial &hamber II granted the Prosecutor=s re9uest to

open an investigation proprio motu in the situation in 8enya, %tate Party since

+@@6. 3ollowing summonses to appear issued on #arch +@22, si! 8enyan

citizens voluntarily appeared before Pre-rial &hamber II on : and (pril +@22.

he confirmation of charges hearing in the case The Prosecutor v. 2illiam

'amoei /uto and Joshua )rap 'ang were held from 2 to %eptember +@22. he

confirmation of charges hearing in the case The Prosecutor v. 3rancis Kirimi

#uthaura and 4huru #uigai Kenyatta took place from +2 %eptember to 6

5ctober +@22. 5n +E "anuary +@2+, the /udges declined to confirm the charges

against enry 8iprono 8osgey and #ohammed ussein (li. Pre-rial &hamber

II confirmed the charges against 4illiam %amoei 7uto, "oshua (rap %ang,

3rancis 8irimi #uthaura and 0huru #uigai 8enyatta and committed them to

trial. 5n +C #arch +@2+, the I&& Presidency constituted rial &hamber and

referred to it the two cases. 5n 22 #arch +@2E, the Prosecutor filed a notice to

the "udges to withdraw charges against 3rancis 8irimi #uthaura. he trial

against 4illiam %amoei 7uto and "oshua (rap %ang is scheduled to start on +

#ay +@2E and the trial against 0huru #uigai 8enyatta is scheduled to start on C

"uly +@2E.

,ituation in Li(ya

5n +D 3ebruary +@22, the 0nited 1ations %ecurity &ouncil decided

unanimously to refer the situation in $ibya since 26 3ebruary +@22 to the I&&

Prosecutor. 5n E #arch +@22, the I&& Prosecutor announced his decision to

open an investigation in the situation in $ibya, which was assigned by the

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Presidency to Pre-rial &hamber I. 5n +: "une +@22, Pre-rial &hamber I

issued three warrants of arrest respectively for #uammar #ohammed )bu

#inyar "adda5i, 'ai5 )l1slam "adda5i and )bdullah )l'enussi for crimes

against humanity )murder and persecution* allegedly committed across $ibya

from 26 until at least + 3ebruary +@22, through the %tate apparatus and

%ecurity 3orces. 5n ++ 1ovember +@22, Pre-rial &hamber I formally

terminated the case against #uammar Gaddafi due to his death. he two other

suspects are not in the custody of the &ourt.

,ituation in C.te d/Ioire

&te d=Ivoire, which is not party to the 7ome %tatute, had accepted the

/urisdiction of the I&& on 2 (pril +@@E; more recently, and on both 2

?ecember +@2@ and E #ay +@22, the Presidency of &te dFIvoire reconfirmed

the country=s acceptance of this /urisdiction. 5n E 5ctober +@22, Pre-rial

&hamber III granted the Prosecutor=s re9uest for authorisation to open

investigations proprio motu into the situation in &te d=Ivoire with respect to

alleged crimes within the /urisdiction of the &ourt, committed since +

1ovember +@2@, as well as with regard to crimes that may be committed in the

future in the conte!t of this situation. 5n ++ 3ebruary +@2+, Pre-rial &hamber

III decided to e!pand its authorisation for the investigation in &te d=Ivoire to

include crimes within the /urisdiction of the &ourt allegedly committed between

2C %eptember +@@+ and + 1ovember +@2@.

5n +E 1ovember +@22, Pre-rial &hamber III issued a warrant of arrest under

seal in the case The Prosecutor v. (aurent "bagbo for four counts of crimes

against humanity. he arrest warrant against #r Gbagbo was unsealed on E@

1ovember +@22, when the suspect was transferred to the I&& detention centre at

he ague, by the Ivorian authorities. 5n 6 ?ecember +@22, Pre-rial &hamber

III held an initial appearance hearing. he confirmation of charges hearing took place between 2C and + 3ebruary +@2E.

5n ++ 1ovember +@2+, Pre-rial &hamber I decided to unseal a warrant of

arrest issued initially on +C 3ebruary +@2+ against %imone Gbagbo for four

counts of crimes against humanity allegedly committed in the territory of &te

dFIvoire between 2D ?ecember +@2@ and 2+ (pril +@22. #rs. Gbagbo is not in

the custody of the &ourt.

,ituation in Mali

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5n 2D "anuary +@2E, the 5ffice of the Prosecutor opened an investigation into

alleged crimes committed on the territory of #ali since "anuary +@2+.

he situation in #ali was referred to the &ourt by the Government of #ali on

2E "uly +@2+. (fter conducting a preliminary e!amination of the situation,including an assessment of admissibility of potential cases, the 5P determined

that there was a reasonable basis to proceed with an investigation.

he situation in #ali is assigned to Pre-rial &hamber II.

A I1A71(I51($ &7I#I1($ &507 5?(Y

I would like to turn ne!t to where the &ourt is today. hree %tates Parties havereferred situations occurring on their own territories to the &ourt and in

addition, as I mentioned earlier, the %ecurity &ouncil has referred the situation

in ?arfur, %udan, a non-%tate Party. (fter analyzing the referrals for /urisdiction

and admissibility, the Prosecutor began investigations in three situationsH

0ganda, the ?emocratic 7epublic of the &ongo, and ?arfur, %udan. he

Prosecutor is also monitoring five other situations. In #arch this year, the first

wanted person was surrendered to the &ourt. #r. homas $ubanga ?yilo, a

national of the ?emocratic 7epublic of the &ongo, is alleged to have committedwar crimes; namely, conscripting and enlisting children under the age of 26 and

using them to participate actively in hostilities. he confirmation of charges

against #r. $ubanga is scheduled for %eptember and if the charges are

confirmed, the trial will begin thereafter. (rrest warrants have also been issued

in the situation in 0ganda for five members of the $ordFs 7esistance (rmy,

including its leader "oseph 8ony. In that case, the alleged crimes against

humanity and war crimes contained in the warrants include se!ual enslavement,

rape, intentionally attacking civilians, and the forced enlistment of childsoldiers. he arrest warrants were initially issued under seal because of

concerns about the security of victims and witnesses. he warrants were only

made public once the Pre-rial &hamber was satisfied that the &ourt had taken

ade9uate measures to ensure security. his illustrates a ma/or difference

between the I&& and other international tribunals, which by and large were

dealing with crimes that had been committed in the past in the course of

conflicts that were over. he I&& deals with crimes that continue to be

committed in the course of conflicts that are ongoing. (s a result, the I&& facesmany challenges in particular in relation to its field activities and security.

!, | P a g e


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A 3007A 53 A I1A71(I51($ &7I#I1($ &507

3inally, I would like to turn to what we can e!pect from the &ourt and from the

wider system of international /ustice in the future. (s investigations and trials

proceed, the &ourt of course recognizes that it has the primary responsibility todemonstrate its credibility in practice through fair, impartial and efficient

proceedings consistent with due process and proper administration of /ustice.

'ut the &ourt will never be able to end impunity alone. Its success will depend

upon the support and commitment of %tates, international organizations, and

civil society. he &ourt is complementary, as I said, to national /urisdictions and

%tates will continue to have the primary responsibility to investigate and

prosecute crimes-the &ourt being, as I said, only a court of last resort. here will

be situations where national systems do not work properly or are unable towork. 'ecause the &ourtFs /urisdiction is limited to national and territories of

%tates Parties, continued ratification of the %tatute is essential to the &ourt

having a truly global reach. 4hen the &ourt does act, it will re9uire cooperation

from %tates at all stages of the proceedings, such as by e!ecuting arrest

warrants, providing evidence, and enforcing sentences of the convicted.

&ooperation is absolutely crucial. 3or e!ample, without sufficient support in

arresting and surrendering persons, there can be no trials. 1ot only the %tates

where crimes were committed or wanted persons are located can help, but all%tates in a position to provide cooperation can assist the &ourt. 4hat %tates

wanted when they created the I&& was a strong /udicial institution, but not an

institution that had at its disposal the normal tools of any national court. he

I&& has no army. he I&& has no police. hatFs what %tates wanted, and-having

wanted that system-now %tates need to cooperate with the &ourt to ensure that

the system works.

International organizations also provide critical support for the &ourt. he

support of the 0nited 1ations is particularly important in this regard. he

0nited 1ations and the &ourt cooperate on a regular basis, both in our field

activities and our institutional relations. In 5ctober, +@@, the %ecretary General

of the 0nited 1ations and I concluded a relationship agreement, which was later

supplemented by an agreement with the 0.1. #ission in the ?emocratic

7epublic of &ongo. he &ourt is also developing its cooperation with regional

organizations. In (pril, the &ourt entered into a cooperation agreement with the

Auropean 0nion. 4e hope to do the same with the (frican 0nion in the near

future. here is also a role for cooperation by the 5rganization of (merican

! | P a g e


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%tates )B5(%B*. he 5(% has been a strong proponent of the &ourt. &ourt

officials, including myself, have participated in a number of meetings of the

5(%. hen we come to non-governmental organizations )B1G5sB* andcivil

society more broadly, which are also instrumental to the work of the &ourt.

1G5s have played a large role in urging ratification of the %tatute. hey have

assisted %tates in developing legislation implementing the 7ome %tatute. $ocal

1G5s may possess knowledge which is directly relevant to the &ourtFs work in

the field.

1G5s also continue to have a critical role in disseminating information about

and building awareness of the I&&. (s I said at the outset, academic institutions

such as this (cademy have a particularly important role in relation to the &ourt.

It is my e!perience, truly, that ignorance is one of the biggest obstacles to thesuccess of the &ourt. 5ften, opposition to the &ourt is based on misconceptions

which can be easily avoided. I believe that the more people understand the

&ourt, the more it will be accepted. 5f course, for that to happen there needs to

be a dialogue. If there is no dialogue, the chances of mutual understanding are

much lower.

In conclusion, I would say that the creation of the I&& was a truly historic

achievement, more than fifty years in the making, but its creation was only the

beginning. he &ourt now stands as a permanent institution capable of

punishing perpetrators of the worst offenses known to humankind. Indeed, as

early as +@@, the 0.1. %ecretary General stated that the &ourt Bwas already

having an important impact by putting would-be violators on notice that

impunity is not assured and serving as a catalyst for enacting national laws

against the gravest international crimes.BF Indeed, we at the &ourt who have a

system of monitoring media reports on issues of international criminal /ustice

and a fairly broad set of related issues do know how much notice is taken of the

&ourt in many situations some situations which are already under the

/urisdiction of the &ourt and many other situations elsewhere.

o be fully effective, we must continue our efforts to ensure that the &ourt has

the support necessary to dispense /ustice as fairly and efficiently as possible. If

there is only one thing that you should retain from this piece, it is that the &ourt

will do whatever it can to be as credible as possible, but that it will only succeed

with concrete, tangible support.

Criti!isms o" the International Criminal Court

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A0 The *oliti!ally Motiated *rose!utor

&learly, what many I&& opponents fear most is a prosecutor who initiates

proceedings proprio motu for purely political reasons. "ohn 7. 'olton, former

(merican Permanent 7epresentative to the 01, has suggested that the 0nited%tates should be mainly concerned Lfor the President, the &abinet officers who

comprise the 1ational %ecurity &ouncil, and other senior civilian and military

leaders responsible for our defense and foreign policy. hey are the real

potential targets of the politically unaccountable prosecutor.M owever,

safeguards have been built into the 7ome reaty precisely to guard against

politically motivated prosecutions. International crime is inherently political.

(nyone who assumes the prosecutorial role at the I&& will, of course, come

with his or her political perspective on the world and its conflicts, and e!ternal political pressure may be e!erted in an effort to bring a complaint when it might

not be /ustified or even helpful in a particular political conte!t. owever,

several factors O notably, a process of vigorous internal indictment review, such

as that in place at the I&Y and I&7; the re9uirement of confirmation by a

/udge; and the inevitable ac9uittal that would result from an unfounded

prosecution O likely prevent any abuse of power by a politically driven

prosecutor. In fact, the I&&=s goal is to alleviate the adverse effect of political

pressures in the realm of international /ustice. %tates have historically beenreluctant to e!ercise universal /urisdiction in respect of grave crimes, due to

political pressures from other states that wish to avoid e!posure of their

complicity. he I&& serves to shift some of this risk from individual states and

thereby overcome political obstacles to prosecution.

%ome states also opposed the proprio motu power of the prosecutor on the

ground that the office would be overwhelmed with frivolous complaints and

would have to waste precious resources addressing them. he real challenge,

however, might actually lie in choosing from among meritorious complaints the

appropriate ones for intervention, rather than weeding out the weaker ones. 3or

e!ample, before the appointment of the current prosecutor, more than +@@

complaints had been registered, but the prosecutor has been able to dispose

9uickly of large 9uantities of unsubstantiated allegations, as a large percentage

do not meet the /urisdictional re9uirements.

10 ,oldiers Con"used (y the La%s o" War

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?uring the I&& preparatory phase and in 7ome in 2CC, the issue of how to

address amnesties was never discussed, in part due to pressure from human

rights groups. %ignificantly, (rticle 6E of the %tatute does allow for the

prosecutor to refuse to proceed with an investigation or prosecution if it would

not serve the interests of /ustice. (s discussed earlier, this decision is sub/ect to

review by the Pre-rial &hamber.

he amnesty versus prosecution debate is at issue in at least two of the

situations currently under investigation by the I&& prosecutor. In ?arfur, the

arrest warrant issued for the %udanese President, al-'ashir, is feared by some as

a potential threat to the peace process and as endangering humanitarian and

peacekeeping operations on the ground. owever, others argue that the threat of

an arrest warrant has encouraged the government to reach out to its domesticrivals during the conflict, thus enhancing prospects for peace. In 0ganda, some

observers hold that the I&& arrest warrants were critical in bringing "oseph

8ony and others to the negotiating table. owever, the $7( leaders are now

demanding to be shielded from prosecution in e!change for their further

participation in the peace process. (s such, international and 0gandan

opposition to the role of the I&& is mounting. hus far, the prosecutor has

refused to withdraw the warrants.

D0 The ICC *ur&orts to E)er!ise 2urisdi!tion Oer Non3*arty Nationals

he 0% government has e!pressed concern that the 7ome reaty purports to

e!ert /urisdiction over 0% servicemen even if the 0nited %tates has not ratified.

In fact, following the principle of universal /urisdiction accepted under

international law, any state has the right to prosecute the crimes defined in the

7ome reaty O genocide, war crimes and crimes against humanity O regardless

of /urisdictional links such as nationality and territoriality. he 0% itself has

historically supported this principleH %ince its beginnings in the 2th century, the0% has recognized the power of its courts to prosecute individuals for the act of

piracy; and by participating in the 1uremberg and okyo tribunals it has clearly

recognized universal /urisdiction with respect to war crimes and crimes against

humanity. he (merican 7estatement of $aw confirms thisH

( state has /urisdiction to define and prescribe punishment for certain

offences recognized by the community of nations as of universal concern,

such as piracy, slave trade, attacks on or hi/acking of aircraft, genocide,

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war crimes, and perhaps certain acts of terrorism, even where none of the

bases of /urisdiction S is present.

7ecent 0% court cases have indicated an increased reliance on the principle of

universality. It would seem to follow that the I&& would be competent as a stateto prosecute serious international crime.

E0 Cost and Delay

(s the I&& matures, critical voices are mounting with respect to the e!pense

and delay involved in I&& proceedings. 'y early +@@, the I&& had cost the

international community over TD@@ million and had yet to be anywhere near its

first conviction. he $ubanga case, the case that had advanced the furthest, had

essentially been derailed by late +@@. Aven proponents of the I&& have begunto ask whether the I&& is losing credibility.

5n the other hand, although ma/or prosecutions proceeded slowly, things are

not at a standstill. hey are even beginning to move faster O between 1ovember

+@@: and #ay +@@ almost :@@ application process filings and decisions were

made at the I&&; and status, rights and modalities for victim participation

during investigation, and at the pre-trial and trial stage, were also determined.

he problem is that success at the procedural level inevitably slows progress in

the actual trials, bogging down the larger issues at play. he main 9uestion is

whether the I&& can retain its preventative power in the face of such delays.

he I&& will remain credible only as long as it can remain a powerful symbol

for deterrence.

40 The 4o!us on A"ri!a

3inally, one recent concern of some significance is the I&& prosecutor=s

e!clusive focus on sub-%aharan (frica. ( number of critics have e!pressed

serious reservations about this practice, and voice fear about bias and the

perception that the I&& is yet another instrument of foreign intervention in a

long history of 4esternN1orthern interference in (frican affairs. Aven if various

geopolitical pressures have simply made it easier for the prosecutor to begin

investigations in (frica rather than elsewhere, commentators contend that this

sends a negative signal about how the I&& may continue to work, and they

maintain that the I&& cannot investigate (frican crises alone.

Proponents of the I&& raise a number of e!planations for the &ourt=sconcentration on (frica. 3irst, each of the situations under investigation has

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been initiated upon referral by an (frican government or the 01 %ecurity

&ouncil. It is difficult to claim that the prosecutor is biased against (frica in his

investigations if three of the four investigations were re9uested by the

governments of those countries themselves. he prosecutor has also noted that

he has begun his investigations because it is in (frica that the breaches of

humanitarian law are most severe. %e!ual assault, forced displacement and

massacre are issues that are present on a massive scale in the countries under

investigation. e says it is only natural that they should come under

investigation first. 1ational legal systems are also weak in (frica, so the

complementarity principle has led to I&& /urisdiction faster than in some other

states. 3inally, it is important to note that although the prosecutor has initiated

official investigations in (frica only thus far, he is also seriously monitoring the

situation in other countries around the world, including (fghanistan, Georgia

and &olombia.

Con!lusion

?espite criticism of the I&&, it is important to remember that the &ourt is a

LbabyM institution O essentially the first of its kind. 'uilding upon the history of

1uremberg and the I&Y and I&7, the I&& is dealing with comple!humanitarian law issues in a way that could not even have been contemplated

6@ years ago. International criminal law has grown in leaps and bounds in the

last decade. rials may be slow and costly, but the mere fact that they are

occurring is a milestone. he success of the I&& needs to be /udged long-term

instead of by short-term actions. It is a body that is slowly but surely showing

that it can work, together with national and regional courts, truth and

reconciliation commissions and other peace and /ustice processes, to create a

powerful role for international criminal law.

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Role of international courts

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