Thesis

The Quest for Justice: A Study of the International Criminal Court’s Solemn

Guarantee for Universal Human Rights (2002 – 2005)

An Undergraduate Thesis

Presented to the Faculty of

The College of Liberal Arts

De La Salle University – Dasmariñas

In Partial Fulfillment

Of the Requirement for the Degree in

Bachelor of Arts Major in Political Science

Isabela Francesca P. Amistad

Ray M. Faltado

Johna J. Juarte

Kaye Gay Anne O. Oro

October 2008

APPROVAL SHEET

Certificate of Adviser

This certify that the thesis entitled “ The Quest for Justice: A Study of

International Criminal Court’s Solemn Guarantee for Universal Human

Rights (2002 – 2005) ” submitted by Isabela Francesca P. Amistad, Ray M.

Faltado, Johna J. Juarte and Kaye Gay Anne O. Oro in partial fulfillment of

the requirement for the degree of Bachelor of Arts major in Political Science,

has been approved by undersigned.

Mr. Ricardo T. Santiago, Ph.D.Adviser

Thesis review panel

Approved by the Thesis Committee on oral exam with the grade of

________.

Jose Aims Rocina, MAChair

Accepted and approved in partial fulfillment for the degree of Bachelor

of Arts major in Political science.

Emmanuel F. Calairo, Ph.D.Dean, College of Liberal Arts

De La Salle University – Dasmariñas

Dasmariñas, Cavite

Certificate of Editor

This is to certify that the thesis entitled “The Quest for Justice: A

Study of International Criminal Court’s Solemn Guarantee for Universal

Human Rights (2002 – 2005) ” conducted by Isabela Francesca P. Amistad,

Ray M. Faltado, Johna J. Juarte and Kaye Gay Anne O. Oro has been

edited by the undersigned.

Mr. Rodolfo V. Bagay

Editor

Acknowledgement

This thesis is a product of mutually, financially, and physically

exhausting labor. Because of this, we would like to extend our gratitude to all

the people who provided help in keeping us from breaking the last strand of

understanding.

The work of this thesis represents the concerted efforts of many

individuals over nearly three years. One of the features of the paper is

collaboration and certainly it required many acts of collaboration by quite a

few people in order to come to completion. When we presented our project to

our thesis committee, we began by saying how blessed we felt that the topic

and content of our thesis work were still fascinating and enjoyable to us even

after so many hours of study, processing, and writing. And we are also

grateful that the knowledge gained through this study is so very relevant and

useful to our current teaching practices.

So it is that we begin our thanks to those who lent their support and

expertise to us in the last few years. First, we begin by thanking the students

who enthusiastically permitted us to use them as “lab rats” for this study. We

remember them fondly and remain in contact with a few even after leaving the

school more than two years ago. They were a legion of generous, kind and

caring individuals who possessed keen senses of humor. It was a joy to sift

through the data they shared with us as they made observations and insights

into their own learning processes.

We would like to also express our thanks to our colleagues at De La

Salle University - Dasmariñas. From the Social Sciences Department and to

our thesis adviser Mr. Ricardo T. Santiago, Ph.D. and our Professor Mr. Jose

Aims Rocina were especially supportive in listening to our ideas and helping

us work out logistical details.

To our peers at DLSU-D Political Science 4-2, thank you for your many

hours of support, cheer, and bully through this long process. Cheers!

Of course, I want to thank our parents for patiently putting up with

children like us who could never get enough of school. We can never thank

them enough!

And lastly, and most importantly, this cannot be completed without the

guidance and blessings of Almighty God; we offer this humble work to Him.

IFPA

RMF

JJJ

KGAOO

ABSTRACT

NAME OF INSTITUTION: De La Salle University - Dasmariñas

ADDRESS: Dasmariñas, Cavite 4115

TITLE: “The Quest for Justice: A Study of

the International Criminal Court’s

Solemn Guarantee for Universal

Human Rights (2002 – 2005)”

PROPONENTS: Isabela Francesca P. Amistad

Ray M. Faltado

Johna J. Juarte

Kaye Gay Anne O. Oro

FUNDING SOURCE: Parents Cost: Php 8,500.00

DATE STARTED: November 2007

DATE COMPLETED: January 2009

OBJECTIVES OF THE STUDY:

GENERAL:

This study tries to answer the purpose of the International Criminal

Court in guaranteeing universal human rights.

Specific:

Specifically it seeks to answer the following questions:

1. What is the International Criminal Court?

2. What are the crimes under the jurisdiction of said court?

3. How can the International Criminal Court acquire jurisdiction over

said cases?

4. Who are the complainants and defendants involved in the said

cases?

5. What is the status of the cases filed in the International Criminal

Court?

Scope and Delimitation:

This study will focus only on the following aspects of the study; the

history of International Criminal Court, the jurisdiction of the court, the

structure of the International Criminal Court, the rights of the accused, and the

participation of the victims and reparations.

The jurisdiction of the court shall be limited to the most serious crimes

of genocide, crimes against humanity, war crimes, and crimes of aggression

that will be introduce and carefully analyze. It will not cover the relationship of

ICC with the withdrawal of the United States and its difference to International

Court of Justice (ICJ).

Methodology:

The methods used by the researchers in gathering the necessary data

to give a clear understanding or view of their study aiming to present profound

information in establishing the relevance and importance of the issues being

introduced.

The researcher presents the research method, subject of the study and

the procedures used to collect and analyze data and other relevant

information.

Descriptive and electronic research methods were used in this study.

References in international law as well as on line articles and commentaries

about Rome Statute of the International Criminal Court, its enforcement and

current status were employed as research materials. Legal dictionary and

encyclopedias were also utilized in this research.

The term descriptive is self-explanatory and terminology synonymous

to this type of research is: describe, write on, depict. The aim of descriptive

research is to verify formulated hypotheses that refer to the present situation

in order to elucidate it. Descriptive research is thus a type of research that is

primarily concerned with describing the nature or conditions and degree in

detail of the present situation (Landman, 1988). The emphasis is on

describing rather than on judgment or interpretation.

The subject of the study is the significance of the international criminal

court and its jurisdiction over individuals. It will study the implications,

jurisdiction, the cases and the persons involved in the case that been

investigated by the International Criminal Court.

The researchers use cases that the International Criminal Court had

been investigated from 2002 to 2005. The researcher determines cases

which are unique in some way or cases which are considered typical and

cases which represent a variety of parameters.

The researchers gather cases and documents using multiple sources

like books pertinent to the issue which were significant to the completion and

enhancement of the study. Magazines and newspaper of general circulation

revealing latest information and facts regarding the issue of International

Criminal Court, human rights that are vital to the study. And also cases based

on the internet for documentation analysis.

The principal strategy used was the cross case analysis. The cross

case analysis enabled the comparison of different cases against predefined

categories (Eisenhardt, 1989). Cross case analysis enables the comparison

of multiple cases in many divergent ways, which would not be possible within

a single case analysis. Three tactics are recommended: first, select

categories and look for within-group similarities coupled with inter group

differences; second, select pairs of cases and list the similarities and

differences between each pair, and; third, divide the data by data source to

exploit “unique insights possible from different types of data collection”

(Eisenhardt, 1989).

Major Findings:

1. Filed cases from 2005-2007 were remained unresolved. It will

prove that despite of having a court responsible in trying violation of

human rights cases; there are still circumstances where in liable

persons remained unpunished.

2. The tooth of ICC was insufficient in promoting Human Rights and

imposing sanctions to the accused.

3. there are still inconsistency in defining and setting jurisdiction upon

cases

4. Philippines failed to sign the treaty due to massive influence of

United States.

5. Slow prosecution and weak execution of policies became the

primary reason why piles of cases remained untouched. Some

think that the ICC is guilty of exaggeration and hypocrisy with the

indictment because of how those responsible for the crises in Iraq

and Afghanistan have not been prosecuted.

Conclusion:

From the findings of the study, the researchers concluded the

subsequent statements:

1. The International Criminal Court was in the process of determining

whether it is effective or not. Based on the cases gathered it proves

that at present, there are still unresolved pending cases which are still

filed and under investigation.

2. The Court is designed to complement national judicial systems and

national courts will continue to have priority in investigating and

prosecuting crimes within their jurisdiction. The International Criminal

Court will act only when national courts are unable or unwilling to

exercise jurisdiction based on the criteria provided in the Rome

Statute. The Court may impose a penalty of imprisonment for a

specified number of years, which may not exceed a maximum of 30

years or may order a fine and forfeiture of proceeds, property and

assets derived directly or indirectly from the crime. Consistent with

international human rights standards, the International Criminal Court

has no competence to impose death penalty.

The International Criminal Court will be of particular importance

because it will serve as a permanent deterrent to people considering

the commission of crimes which threaten the peace, security and well-

being of the world. The Court with its wider jurisdiction than existing ad

hoc tribunals will ensure that most serious offenses of global concern

do not go unpunished no matter who committed them. Protection of

victims as well as reparations established in the Statute serve as

solemn guarantees in the promotion and protection of universal human

rights and rule of law.

3. It reason behind why problems exist in defining their jurisdiction of

the court cited in the Rome statute over the crimes. This study

revealed that the International Criminal Court is the first ever treaty

based international criminal court and a permanent institution which

have the power to exercise its jurisdiction over persons for the most

serious crimes of international concern. Likewise, it is independent

from the United Nations and different from the International Court of

Justice.

4. The relationship of the Philippines to the US had already been

deepening by the times they had experience as a colony of the US and

as of now we can’t deny the fact the Philippines or the leader might be

influence by the US that Philippines had failed to sign the treaty. But at

present the Philippines was undergoing to a ratification of the statue.

5. There are still other problems that the court was facing until now,

that despite the promulgation and creation of the Rome Statue. The

creation of this court had been not an easy task. This involves risk of

life and liberty among the organs and also the credibility that the court

stands for. It is considered weak especially to the execution of the

policies and the attainment fast delivery of impartiality among

constituents. And on how the complainants would pursue the

complaints if they would recognize the ICC as ineffective organ.

Communication is another problem, if the communications are alleged

and not yet proven by facts and investigation; this would make the

body incompetent.

Recommendations:

After the intensive study, research and data gathering; the following

recommendations have been reached:

1. Future researchers should gather all the filed cases in ICC from the

date of ratification up to present.

2. Future studies should conduct a survey whether or not the citizens

are aware about the mission and purpose of ICC and be able to

interview one of the officers on how they address ignorance of ICC.

3. Be able to present complete list of departments and persons

involved in establishment of ICC.

4. Future studies should concentrate more on what measures are

being used to maintain and improve the current justice system

particular in human rights.

5. Students who wish to undertake the same study should focus more

on the strengths of ICC and future progress in dealing with the

international conflicts particularly in violation of Human Rights.

TABLE OF CONTENTS

Title Page

Approval Sheet

Certificate of Editor

Acknowledgment

Abstract

Table of Contents

Chapter I The Problem and Its Background

Introduction

Statement of the Problem

Assumptions

Conceptual Framework

Significance of the Study

Scope and Delimitations of the Study

Definition of Terms

Chapter II Review of Related Literature

Local Literature

Foreign Literature

Local Studies

Foreign Studies

Relevance to the Study

Chapter III Methodology

Research Method

Subject of the Study

Data Gathering Instruments

Documents

Case Analysis

Chapter IV Presentation, Analysis and Interpretation of Data

Problem 1

Problem 2

Problem 3

Problem 4

Problem 5

Chapter V Summary of Findings, Conclusions and Recommendations

Summary

Findings

Conclusion

Recommendations

References

List of Figures

Figure 1 Conceptual Framework

Figure 2

Figure 3

List of Table

Table 1

Table 2

Appendix

Appendix

Chapter I

The Problem and Its Background

Introduction

“There can be no global justice unless the worst of crimes –

crimes against humanity – are subject to the law.

In this age more than ever we recognize that the crime of

genocide against one people truly is an assault on us all – a

crime against humanity.

The establishment of an International Criminal Court will ensure

that humanity’s response will be swift and will be just.”

- Kofi Annan

War criminals have been prosecuted since the time of the ancient

Greeks, and probably even before that. The idea that there is some common

denominator of behavior, even in the most extreme circumstances of brutal

armed conflict, confirms beliefs drawn from philosophy and religion about

some of the fundamental values of the human spirit. The early laws and

customs of war can be found in the writings of classical authors and

historians. Those who breached them were subject to trial and punishment.

Prosecution for war crimes, however, was only effected by national courts,

and these remain ineffective when those responsible for the crimes are still in

power and their victims’ remains conquered. National justice systems have

often proven themselves to be incapable of being balanced and impartial in

such cases (Schabas, 2001).

Efforts to create an International Criminal Court began back in the

nineteenth century when, in 1877, Gustav Moynier, one of the founders of the

International Committee of the Red Cross, proposed a permanent court in

response to the crimes of the Franco-Prussian War

(http://huntforjustice.com/4-icc-en.php). After the Nuremberg Judgment in

1946, there was renewed interest that resulted in the establishment of an

International Law Commission (ILC), and an attempt was made at that time to

create a Code of Crimes. In 1948, the U.N. General Assembly adopted the

Convention on the Prevention and Punishment of the Crime of Genocide.

Many reports and drafts were prepared during the following years, but the

Cold War hindered all efforts.

The International Criminal Court (ICC), governed by the “Rome

Statute”, is the first permanent, treaty based court established to help end

impunity for the perpetrators of the most serious crimes of international

concern namely, the Crimes of Genocide, Crimes against Humanity, and War

Crimes. The Court will also have jurisdiction over the Crime of Aggression

once a definition has been adopted by the Assembly of States Parties. The

Statute was adopted on 17 July 1998 and entered into force on 1 July 2002,

is now a fully functional judicial institution. As of 24 September 2007, 105

countries are States Parties to the Rome Statute, which is a significant

milestone in the long march of international law and justice (http://www.icc-

cpi.int/library/about/ataglance/ICC-Ataglance_en.pdf). The Statute recognizes

that States have the primary responsibility for investigating and punishing

these crimes and also the Court is complementary to the efforts of States to

investigate and prosecutes international crimes. The Court is the focal point of

an emerging system of international criminal justice, which includes national

courts, international courts and tribunals with both national and international

components

The recognition of universal jurisdiction had very important

consequences almost immediately. The fact that individuals are the subjects

of international law was recognized in the United Nations Charter. That was

taken further in the Universal Declaration of Human Rights. It was recognized

in developments in the Law of War and in the Genocide Convention.

Governments were required to bring perpetrators of grave crimes to book

regardless of where those crimes were committed. The obligation went even

further. If a country was unwilling to prosecute a suspect within its borders, its

government was required to extradite the suspect to a country willing to

prosecute.

In the Apartheid Convention of the early 1970's, which defined

apartheid as a crime against humanity, jurisdiction was conferred on all

parties to the Convention to charge and to try people guilty of the international

crime of apartheid. In the Genocide Convention of 1948, it was assumed that

there would be an International Criminal Court. In the Convention on

Apartheid there is also a reference to such a court. The rational expectation

was that when you have established international jurisdiction there would be

an International Court in addition to national courts. And it is a sad

commentary on the 20th century, as we reach its end, which the international

community is still only at the point of discussing a treaty for the establishment

of an International Criminal Court (Goldstone, 1998).

Another important development has been the narrowing of the

difference in the manner in which civilians are entitled to be protected during

international armed conflicts and internal civil conflicts. Again, there can be no

decent person who would suggest that innocent civilians should receive

greater protection because a conflict happens to be international. And yet

there is a tremendous resistance on the part of governments to recognize that

in internal conflicts civilians should be given the protection provided in the

case of international conflicts. Of course there is a reason for this which bear

directly on the resistance of governments to the establishment of an

International Criminal Court, and that is the question of sovereignty.

Governments guard sovereignty with a tremendous vigor which is beyond

rational debate in many cases.

Almost ten years since it was established with the adoption of the

Rome Statute, the International Criminal Court continues to gain inexorable

momentum, surpassing the expectations of even its keenest supporters. In

November 2005 it reached the important threshold of one hundred member

states.

Statement of the Problem

This research includes an examination of the International Criminal

Court (ICC) and its significant implication to the International Criminal Justice

System; specifically, it will seek to answer the following questions:

6. What is the International Criminal Court?

7. What are the crimes under the jurisdiction of said court?

8. How can the International Criminal Court acquire jurisdiction over

said cases?

9. Who are the complainants and defendants involved in the said

cases?

10.What is the status of the cases filed in the International Criminal

Court?

Assumptions

In corollary to the above-mentioned problems, the following

assumptions served as guide in the development of the study and aimed to

foresee hypothetical answers to the questions.

1. That the International Criminal Court rests on the premise that there

are universal moral standards which apply to human behavior.

2. That this court can deter crime, end conflict and bring about justice

through the assignation of criminal responsibility to individual

human agents.

3. That the trials conducted by the International Criminal Court could

accomplish its task and lead to reconciliation.

4. That this study would awaken the justice system of individual

countries of the need to prosecute individuals who perpetrate the

heinous crimes anywhere in the world.

5. That the International Criminal Court would put to work fundamental

judicial principles and values, like accountability, due process,

equality before the law and the protection of basic human rights.

JUSTICE

INTERNATIONAL CRIMINAL COURT

HISTORICAL BACKGROUND

NATURE

STATUS OF THE CASE COMPLAINANT

vs. DEFENDANT

Figure 1. Shows the Structure and Significance of the

International Criminal Court

Conceptual Framework

This figure shows that justice is above the International Criminal Court

which is the primary and sole purpose of the creation of the court. The

International Criminal Court is designed to complement existing national

judicial systems. This study focuses on the nature of the court thus involving

its jurisdiction limited to the most serious crimes concern to the international

community as a whole, namely the crime of genocide, crimes against

humanity, war crimes and the crimes of aggression.

This court will act only if national courts are destroyed or unable to

handle the case, or are deliberately shielding the accused from justice. Its

historical background will indicate the purpose of creation, structure and

jurisdiction fro deeper account. The complainants and defendants are

presented by giving profile description as to their age, gender and status.

They are also significant in considering the cases involved.

Filed cases are also being implicated with regards to its status, the

dates of filing and resolutions. It will serve as a proof whether or not justice is

attained.

Complainants and defendants were presented and well identified

including the crimes committed and their profile descriptions substantive to

the case. There claims for attaining justice thru this court would give them

peace or nether less lessen the conflicts by giving proper reprimand for the

crimes committed by the defendants.

The complementarily suggest that national courts will continue to have

priority in investigating and prosecuting crimes within their jurisdiction. The

protection of the victims as well as the reparations established in the Statue

serves as a solemn guarantee in the promotion and protection of universal

rights, social justice and rule of law. The entire premise of the Court is based

on the principle of complementarities, which means that the Court can only

exercise its jurisdiction when a national court is unable or unwilling to

genuinely do so itself. The first priority always goes to national courts. The

International Criminal Court is in no way meant to replace the authority of

national courts. But to participate in an atrocity themselves, or officials may be

reluctant here may be times when a State's court system collapses and

ceases to function. Similarly, there may be governments that condone or to

prosecute someone in a position of great power and authority.

Significance of the Study

This study was made to enlighten the readers on the establishment of

the International Criminal Court as one of the most recently established

intergovernmental organizations and its effectiveness in handling criminal

cases around the world.

Traditionally, international law has created responsibilities for states

only. However, with the creation of the International Criminal Court (ICC), the

individuals also became responsible in international law.

It will also serve as a reference for the following:

Future researchers. This study will provide them with a reference for their

study of International Relations. It will also develop their

innovation in creating and developing new sets of ideas

and improve their contents.

Students. This study will provide them reference for other studies

related to this topic. It will also make them aware of the

proceedings of the international court to be able to

determine the attainment of justice.

Citizens. This study will provide them with reference for them to be

familiar with their human rights in international relations.

It will also make them aware of their responsibilities as

citizens of the state.

Professors. This would help them to realize how universal human

rights and social justice is attained. And with this

research, professors can extend their knowledge to their

students, and other people that would critic and add

opinion out of this study.

Lawyers/Judges. This study would be beneficial for their profession to

enhance their ability to confer service to the people. And

be able to develop their responsibility and impart

accountability to their occupation.

Scope and Delimitations of the Study

This study will focus only on the following aspects of the study; the

history of International Criminal Court, the jurisdiction of the court, the

structure of the International Criminal Court, the rights of the accused, and the

participation of the victims and reparations.

The jurisdiction of the court shall be limited to the most serious crimes

of genocide, crimes against humanity, war crimes, and crimes of aggression

that will be introduce and carefully analyze. It will not cover the relationship of

ICC with the withdrawal of the United States and its difference to International

Court of Justice (ICJ).

Definition of Terms

For the purpose of the study, the following terms are hereby defined:

Genocide. In international law it is the intentional and systematic

destruction, wholly or in part, by a government in a national, racial, religious

or ethnic group.

War Crimes. In international law it is the violations of the laws of war. Those

accused have been tried by their own military and civilian courts, by those of

their enemies and by expressly established international tribunals.

Crimes against humanity. An act of persecution or any large scale atrocities

against a body of people, and is the highest level of criminal offence.

Crime of Aggression. The Rome Statute of the International Criminal

Court refers as one of the aggression of the “most serious crime of concern to

the international community”.

Attack directed against any civilian population. A course of conduct involving

the multiple commissions of acts against any civilian population, pursuant to

or in furtherance of a State or organizational policy to commit such attack.

Crime of apartheid. Inhumane acts committed in the context of an

institutionalized regime of systematic oppression and domination by one

racial group over any other racial group or groups and committed with the

intention of maintaining that regime.

Deportation or forcible transfer of population. Forced displacement of the

persons concerned by expulsion or other coercive acts from the area in which

they are lawfully present, without grounds permitted under international law.

Enforced disappearance of persons. The arrest, detention or abduction of

persons by, or with the authorization, support or acquiescence of, a State or a

political organization, followed by a refusal to acknowledge that deprivation of

freedom or to give information on the fate or whereabouts of those persons,

with the intention of removing them from the protection of the law for a

prolonged period of time.

Enslavement. The exercise of any or all of the powers attaching to the

right of ownership over a person and includes the exercise of such power in

the course of trafficking in persons, in particular women and children.

Extermination. Includes the intentional infliction of conditions of life, inter

alia the deprivation of access to food and medicine, calculated to bring about

the destruction of part of a population.

Forced pregnancy. The unlawful confinement of a woman forcibly made

pregnant, with the intent of affecting the ethnic composition of any population

or carrying out other grave violations of international law.

Jurisdiction. The authority by which judicial offices take cognizance of and

decide cases

Persecution. The intentional and severe deprivation of fundamental rights

contrary to international law by reason of the identity of the group or

collectively.

State parties. Those countries that have ratified or acceded to the Rome

Statute, the treaty that established the International Criminal Court. States

Parties are entitled to participate and vote in proceedings of the Assembly of

States Parties, which is the Court's governing body.

 Torture. The intentional infliction of severe pain or suffering, whether

physical or mental, upon a person in the custody or under the control of the

accused; except that torture shall not include pain or suffering arising only

from, inherent in or incidental to, lawful sanctions.

Chapter II

Review of Related Literature

This chapter presents studies and local literature which the

researchers considered as significant to their study. This chapter tackles the

different issues involve in the context of the International Criminal Court that

will give deeper understanding to the study and eventually realize their

importance to the subject matter.

This covers human rights situation in the Philippine setting during the

time of the Marcos, Aquino and Ramos regimes, the intervention of the

Supreme Court in the Best Bakery and other Gujarat riot cases due to a

petition by the National Human Rights Commission this has raised the hopes

of the victims, who have been terrorized into silence, lack of a fair trial, which

is related of their quest for justice; it also relates the Armenian genocide and

crimes of aggressions against Iraq. It also considers the views of researchers

who made a study about the ICC in connection to the global community and

the Philippine context.

Local Literature

The Filipinos experience various types of human rights violations that

continue to happen despite the presence of constitutional guarantees for the

protection of the rights of Filipinos as individuals and as people. At this point,

we will go back to the Marcos, Aquino and Ramos regimes to recap the

situations of the people that have been deprived of their rights as human

beings.

According to Jan Willem Bakker in his book The Philippine Justice

System, during the time of the Marcos regime, human rights violations were

clearly identified as those acts committed against political dissents, suspected

political dissents, and any one challenging the economic interest of Marcos’

political clique. The context of human rights violations which includes warrant

less arrest, torture, extra judicial killings, destruction of homes, and

possessions, etc. was clearly political. These violations were furthermore the

consequences of an explicit and systematic government policy to penetrate

its tyrannical power. Human rights advocacy was a form of political dissent in

itself, even branded as a communist agitation by the Marcos regime. The

Philippine experience strongly promoted a close identification of human rights

violation with tyranny and the crushing of the political dissent, and between

human rights violators and abusive state agents. (Bakker, 1997)

These cannot be eliminated by a mere change of administration. Such

problems, particularly the continued affectivity of several repressive decrees

of Marcos, the absence of effective remedies against human rights violations

of state agents, judicial inefficiency, and a fractious and highly politicize

military, were expected to cause headaches to any post-Marcos government.

(Angeles, 1994)

With these statements indeed the people at the time of Marcos regime

experience a clear manifestation of violation of rights that is why the

succeeding regime also experience a tough ruling especially in establishing a

national stability.

During the Aquino administration, access to the various international

human rights instruments and the very clear provisions in the 1987

constitution guaranteeing human rights protection and defense was

introduced to combat such violations to human rights that continue to be

violated with impunity in the Philippines. But in which many human rights

violations by the military, a main, state agent, continued to occur. (1997)

Even government officials admit that the Aquino government’s record

on human rights leaves much to be desired. Human rights education in formal

school and training of the military remains inadequate. This is the reason why

human rights violation is rampant and continues to be committed. (1994)

At the time of the Ramos administration, Lawyers in the Presidential

Anti-Crime Commission, which was created specifically to fight large crime

syndicates, receive death threats. In 1993, one Philippine NGO, Citizen’s

Crime Watch, even estimated that half of the crimes committed in the country

involved policemen. This enormous police involvement as well as the great

difficulties the Ramos administration faced in dealing with these army

syndicates and criminal state employees underlines the fragmentation of

effective power in the Philippines. (1997)

This is not to say that the government is the only one responsible for

promoting human rights. Although international instruments speak of the

obligation of the state parties, the promotion of human rights is addressed to

every one. These rights being inherent in human being, their promotion and

protection is a duty for each and every individual. The only task of the

government is to ensure that everyone is given the opportunity to fulfill this

duty and enjoy the fruit.

Foreign Literature

Justice is hard to attain, some of us are seeking for justice specially

those people who are deprived of it. It is important that there is an institution

that will help us to attain it. The intervention of the courts in deciding matters;

giving the proper justification in solving those cases that blood and life is at

stake are really vital.

Here is a case in which there is an intervention by the Indian Supreme

Court the Best Bakery and other Gujarat riot cases on a petition by the

National Human Rights Commission has raised the hopes of the victims, who

have been terrorized into silence, lack of a fair trial. NARENDRA MODI the

Chief Minister has a very low threshold of tolerance for criticism. At a personal

level, the manner in which the Gujarat Chief Minister chooses to deal with

criticism need not be germane to his public conduct or persona. But the

yawning gap between the demands of propriety and his attitude towards

empowered constitutional authorities is perhaps a different matter, as it

suggests a basic aversion to the democratic ethos. (India's National

Magazine, 2003)

Less than a year since he entered into a public spat with the Election

Commission of India, complete with unseemly personal references and

elaborate simulations of offended hauteur, Modi finds him embroiled in

another dispute with a constitutional body. And the arguments being

advanced in his defense are a faithful reprise of themes heard last year. That

Gujarat is by no means the living hell for minorities it is made out to be; on the

contrary, it is among the most progressive and dynamic States in the country

and the minute scrutiny that the Modi government is being put through is an

affront to the collective dignity of the Gujarati community. (2003)

Just days earlier, Chief Justice Khare had, in a case involving

succession rights within the Christian community, issued an ex cathedra

admonition of Parliament for its failure to enact a uniform civil code for the

country. In removing contradictions based on ideologies, he opined, a

common civil code would promote national integration. These observations,

expectedly, engendered a torrent of comment, both in the realm of politics

and in the media. Unlike in past years, the BJP has in this round of the debate

not quite managed to steal the mantle of gender justice and equality before

the law irrespective of community. The BJP and its affiliates are now required

to explain how they can operationally the uniform criminal code, which has

already been written into the statute. To say that it has been flouted almost as

a matter of routine in the past is simply no option.

(http://www.flonnet.com/fl2017/stories/20030829007900400.htm)

It maybe important to note that the solemn declaration that the

governments vowed to uphold is a direct by-product of the second world war

where the worst crimes were committed by government against their own

people, like those by the Nazis against the German Jews which they define

Genocide as not a moral issue but the practical application of physical means

to social ends. (Guy Wint & Pritchard, 1989)

And by the Italian fascist against the Italian people. But the definition of

the genocide according to the Rome Statue of ICC Article 6 "genocide"

means any of the following acts committed with intent to destroy, in whole or

in part, a national, ethnical, racial or religious group, as such: (a) Killing

members of the group; (b) Causing serious bodily or mental harm to members

of the group; (c) Deliberately inflicting on the group conditions of life

calculated to bring about its physical destruction in whole or in part; (d)

Imposing measures intended to prevent births within the group; (e) Forcibly

transferring children of the group to another group.

(http://www.un.org/law/icc/statute/romefra.htm)

As genocide has been defined, a case study on genocide is presented.

The “Selection” of elite Czech children, here the SS was prepared to destroy

the Czechs nation. The main lines of Nazi policy were laid out in German

documents long since declassified, but one newly declassified Allied

interrogation of an SS officer stationed in Prague Yields striking and ghastly

details of previous unknown plan to murder talented Czechs children. This

program aims not to kill those people labeled defective but “to liquidate

Czechs children who on the account of personality, physical excellence and

high intelligence seemed likely to become future leaders of Czechs national

life.” Nazi believes that if the Czechs nation was to disappear, then the future

Czechs leaders had to die. The exams were conducted and selections were

made but the order to kill the children never arrived. But the work of

examining and classifying Czechs children was not wasted. In the late stages

of war, as Soviet troops approach Czechoslovakia, large number of Czechs

youth, particularly those who had been marked for extermination, were sent to

exposed sectors of the front., allegedly to build fortifications. But the true

intention of these assignments was to bring about their death, which

frequently occurred. (Breitman & Wolfe, 2005)

The Armenian Genocide (1915-1923) was the first modern genocide of

the Twentieth Century. The perpetrator of this crime against humanity was the

Ottoman Government. Using different types of mass extermination practices

including forced marches, 1.5 million Armenians were murdered. Prior to

World War I, approximately three million Armenians were living in Western

Armenia (Anatolia) and had resided there for over 2,500 years. Those who

survived were forced into exile and have never been able to return. An entire

people, and their history, were virtually erased within years. Today, the

Turkish government actively denies the Armenian Genocide. Israel Charny,

the Editor of the Encyclopedia of Genocide, explains that “the denial of

genocide is a form of aggression. It continues the process of genocide. It

strives to reshape history in order to rehabilitate the perpetrators and

demonize the victims. It prevents healing of the wounds inflicted by genocide.

Denying genocide is the final stage of genocide — it murders the dignity of

the survivors and destroys the remembrance of the crime.”(Goldberg, 2006)

Since the beginning of the 20th century millions of people from all

corners of the world have perished in genocides. Despite the continuation of

genocide, The global community, have no solutions for stopping this ongoing

tragedy whether it was the genocide of the Hereto people (which occurred

bet. 1904 -1907 in current day Namibia) or the victims of the genocide in

Darfur. (2006)

With these case study and situations happened there is really a need

of an institution that will stop this kind of situations that deprived the life of

other people. And that would be the International Criminal Court who has

jurisdiction over the genocide.

As indicated by John H. Kim (2003) in his article entitled the crime of

aggression against Iraq, which in a televised address to the nation on

March 17, 2003, President Bush issued an ultimatum to Saddam Hussein that

he and his sons “must leave Iraq within 48 hours.” Bush then threatened that

“their refusal to do so will result in military conflict, commenced at a time of

our choosing.”1 On March 19, 2003, the U.S.-U.K. Coalition planes started

bombing various military facilities in Iraq, thereby launching a full military

invasion against Iraq. After conquering Iraq easily, more than 150,000 US-UK

forces still occupy Iraq at this time. It is extremely unfortunate that the UN

Security Council has failed so far to condemn the U.S.-U.K. invasion as a

crime of aggression, even though it is required to do so under Article 39 of the

UN Charter.2 Thus, it is critical for the international community—as least the

legal community and the civil society—to reflect on the illegal nature of the

2003 invasion, in observance of the 60th anniversary of the birth of the United

Nations this year, and hold those high officials responsible for the aggression

accountable. In addition, the international community must undertake an

urgent reform of the UN system of the collective security so that the United

Nations can deal with any future aggression by a permanent member of the

Security Council.

Concerning the 2003 invasion, it is to be noted that, for more than a

decade prior to this Gulf War II, the U.S. and U.K. have been engaging in acts

of aggression against Iraq by attacking various military sites in Iraq, after

unilaterally establishing the so-called northern “no-fly” zone in 1991 and the

southern “no-fly” zone in 1992. In particular, in December 1998, the US forces

committed a serious aggression against Iraq by conducting a massive

bombing campaign called “Operation Desert Fox,” a series of air strikes that

continued for four days and nights, to degrade Iraq’s military capability.

However, this memo will focus its discussion on the US crime of aggression

as it was perpetrated in March 2003. (Kim, 2003)

George W. Bush was the Commander in Chief of the U.S. forces at the

time of the March 2003 invasion. President Bush was the main instigator and

co-conspirator who initiated and ordered the naked war of aggression against

Iraq (a.k.a. Gulf War II), and thus his crimes against peace must be

condemned and prosecuted by the international community in order to uphold

the existing international law and preserve the world peace. Otherwise, the

rule of force will prevail in the future over the rule of law. (2003)

In connection to these, human rights looses credibility as universal

values around which actors upholding human dignity and social justice can

rally when states take up human rights only when their national interest is at

stake. It happens when the prospect of economic gain influences human

rights positions. When national security interests are in the play, the risk of a

purely instrumental use of human rights is even higher. The reliance on

human rights by the coalition forces as part of the justification for the 2003

armed intervention in Iraq offers a case in point. (Feyter, 2005)

It can be concluded here that the westerners or the U.S. by gaining

its economic influences can make allegations within the Iraqi of the weapon of

mass destruction or the biological weapon. With these they had violated the

Security Council because they intervenes this country.

Local Studies

As stated by Pedro Roman M. Ariston (2000) in his thesis about the

International Criminal Court, The Republic of the Philippines became the

124th State Signatory to the Rome Statute of an International Criminal Court

(ICC) on 28 December 2000. Consistent with the country's treaty-ratification

process, Senate concurrence would secure "State Party-hood." Accordingly,

the Executive Department is thoroughly assessing the Statute. The emerging

general consensus favors ratification, although aware of complex and difficult

constitutional and legal concerns. One key concern queries whether the core

crimes of genocide, crimes against humanity and war crimes can be

construed as criminalized under Philippine domestic law sans statutory

criminalization and yet compliant with the principle of complementarily and

principle of legality, nullum crimen, nulla poena sine lege.

Although there are debates and arguments regarding the issue of

whether these crimes mentioned are applicable to the Philippine domestic

law, one thing is good, for it can be ratified regardless or in accord with the

our principal law or national law.

He also said that the Rome Statute aims to put an end to impunity for

the perpetrators of the most serious crimes of concern to the international

community as a whole, thereby effecting deterrence. There are three pillar-

principles support the Statute: first, the principle of complementarily; second,

it exclusively deals with the most serious crimes of international concern;

third, it remains, as far as possible, within the realm of customary international

law especially in criminalizing the said crimes. Complementarily lays on the

shoulders of national justice systems the primary responsibility of

investigating, prosecuting and punishing perpetrators of the core crimes,

consistent with their national laws. The ICC would exercise its jurisdiction

when the national criminal jurisdiction concerned proves unwilling or unable to

genuinely carry out its responsibility. As such, the Statute is catalytic: it spurs

the domestic justice system of states to internalize aversion to impunity. In

epitomizing jus scriptum, the Statute's criminalization of the core crimes

transcends mere codification of pertinent customary international law by

likewise embodying progressive development of international law. In a

nutshell, the innovations introduced involve defining crimes against humanity

and war crimes, and entrusting the punishment of core crimes perpetrators to

a multilateral treaty-created permanent international criminal court

empowered to impose a penalty of imprisonment, coupled with a fine or

forfeiture. (2000)

The court has been created to define grave and serious crimes that

lives are at stake that is why penalty should be inflict to those offender

specially those recidivist or having a habitual delinquent with a crime.

Persistent with his statements, he submits that any legislative

implementation of the Rome Statute should necessarily criminalize genocide,

crimes against humanity and war crimes. For fidelity to the Philippines'

affirmed commitment of taking the establishment of the ICC seriously

inevitably entails taking the most serious crimes of international concern

seriously. Pedro Roman M. Ariston Ateneo Law Journal, Vol. 47 Issue No. 2,

September, 2002 (http://www.ateneolawjournal.com/articlemain.php)

This institution is applicable and helpful to those countries even the

Philippines for future national security purpose. With these, it can avoid the

crimes which can hinder our national and universal human rights.

Foreign Studies

Ekaterina Kuznetsova (2000) of Universidad San Martin de Porres

Peru (USMP) in her thesis entitled: THE INTERNATIONAL CRIMINAL

COURT: a DANGEROUS EXPERIMENT OR a STEP TOWARD a MORE

ACCOUNTABLE GLOBAL ENVIRONMENT concluded that the Rome

Conference succeeded in designing the missing link in the international legal

order: a permanent structure which will adjudicate the most serious and

alarming crimes against humanity.  Whether or not everyone supports the

forces and consequences of globalize order, the ICC was founded on a

conviction of establishing a new international system based on universally

binding standards and therefore bringing an end to actions determined

exclusively by politically motivations.  Even though the problem of human

rights violations continues to exist, the concept, according to which the

interests of the majority could be satisfied at the expense of minority, is

becoming an illusion.  If the rights of an individual person are not protected,

the humanity as a whole suffers.

Along with she added that we, as citizens of the world, have to ask our

governments and ourselves a question.  Do we need the ICC and will the

benefits from a permanent international court outweigh the costs? However, it

can be argued that the more the Court establishes its reputation as a fair-

minded organization, the greater will be the compulsion of states to accept

and abide by its jurisdiction. Of course, the ICC cannot be a perfect deterrent,

but if it prevents even occasional atrocities from happening, it is worth it.

(Kuznetsova, 2000) (http://www.un.org/icc)

In her argument it presented both sides of which the International

Criminal Court could be observe as one that could be a dangerous

experiment that the lives of others could be at stake, or whether it will be a

complement in attaining accountable global environment. Both are vital on

weighing the instances that the court is needed and approve in the test of

human lives is concerned. Not only for the signatory but also for those who

are concerned in the matter.

In relation to these Amy Jeanne Bann on her thesis entitled The Non-

Governmental Organization Coalition for an International Criminal

Court: A Case Study on NGO networking also said that “The process of

contracting needs to be studied in a real world setting. We would then learn of

the problems that are encountered and of how they are overcome and we

would certainly become aware of the richness of the institutional alternatives

among which we have to choose”. She somehow favored institutional

alternatives which could be the ICC. (Bann, 2000)

Along with, she concluded that the CICC network brings about change

through a multitude of actors and actions. NGOs have in part set the agenda

regarding the ICC, through ways such as public education, participation in the

UN system, campaigning with individual states, etc. The overall value of the

case study in the context of academic research is indeterminate, as she write

this while NGOs continue to network around countless issues, the

International Criminal Court is developing into a viable institution, and

academics attempt to keep pace with such events. NGO networking in the

context of international politics has outpaced the correlating theoretical

efforts. (2000)

In consistent with that she incorporated what Bill Pace said “that to

replace war and brute power and violence as primary way in which

international affairs are determined would be a major victory”? The existence

of the ICC will result in tens of millions of saved lives, and prevent hundreds

of millions of displaced people. It is a small step but fundamental in human

history to restrain war. It will result in tens of billions of dollars saved in

repairs. It is not a great tool of punishment, but one of peace. The

International Criminal Court is one of a constellation of tools: we also need

improvements in the areas of diplomacy, rapidly deployable forces, smarter

sanctions, the Security Council... So the CICC will continue to play a role in

creating a strong and permanent court. (Bill Pace - Convener of the NGO

CICC, 2000)

With the aid of the NGOs the work could be better because they will be

the one to confer communication and networking proceedings which are

essential to append to the aggravating and mitigating consequences of

certain cases, in rendering decisions, and in investigation of certain cases

involved. This is done through networking in international politics. With also

their help the coalition would therefore strive in coming up a well and

accountable service not only to one but to all.

In addition, Joshua Maiyo (2006) of University of Amsterdam in his

thesis entitled, Justice in Conflict: The Suitability of International Justice

in Conflict Resolution - The International Criminal Court in Northern

Uganda, conceptualized the rise of an international consensus against

impunity for crimes against humanity culminating in the creation of the

International Criminal Court has been hailed as a great success for

international justice and human rights. This apparent triumph of Kantian neo-

liberal idealism that promotes respect for individual rights, the erosion of state

sovereignty in favor of universal jurisdiction belies the hegemony of the realist

global order and the on-going tussle between the two ideologies for the

domination of global politics and conduct of International affairs.

The balance between peace and justice is the more difficult to strike in

the context of an on going conflict such as Northern Uganda’s where the

pursuit of justice by the ICC risks exacerbating the conflict and diminishing

the prospects for peace. It critiques the ICC’s strict and minimalist

interpretation of its mandate in the Rome Statute and its subsequent failure to

take into account existing peace processes and a national amnesty. It

juxtaposes this against local and traditional conceptions of and preferences

for alternative forms of justice, negative (mis)perceptions of the ICC and the

interest of community leaders, civil society and majority of the population for a

peaceful settlement of the conflict as opposed to seeking a military solution

and eventual prosecution. (2006)

It concludes with an argument for a deconstruction and redefinition of

international justice to adopt a much broader conception of justice beyond the

narrow retributive approach. For International justice to be relevant to conflict

resolution, it has to redefine its position with regard to alternative forms of

justice such as truth commissions, traditional practices of truth telling and

forgiveness and other local conceptions of justice. In this regard, the ICC also

needs to re-evaluate its pursuit for justice and the issuance of arrest warrants

for the leadership in the light of new developments towards a negotiated

settlement to the conflict.

Relevance to the Study

The foregoing literature had indeed enlightened the readers of the

topic. It has given more information for readers to understand further what the

study was all about. Although limited in substance, it has at least given

additional data and knowledge that will make the readers better acquainted

with the study.

In the Philippines human rights is somehow justified but certainly not

attained especially at the time of those leaders who only want oppression of

their powers. This somehow connected to the real world of ours, the present

situation not only individually but also as a cluster crying for justice and

attainment of individual rights.

Justice is the central attention of this study. By presenting the facts,

issues and case studies, this somehow helps the researchers and readers to

deepen their understanding on attaining justice. Different actors are also

presented which have greater participation for the execution of the acts,

communication and connection like the NGOs and other organizations.

Furthermore researchers presented their arguments, views, opinions,

and comments regarding the International Criminal Court, and although there

are countries opposing it, much in number are those who accept it as the

highest court internationally.

With this chapter the readers would be more enlightened of the subject

matter as the core knowledge and defensive force for future debates and

discussions.

Chapter III

Methodology

This chapter provides the methods used by the researchers in

gathering the necessary data to give a clear understanding or view of their

study aiming to present profound information in establishing the relevance

and importance of the issues being introduced.

This chapter presents the research method, subject of the study and

the procedures used to collect and analyze data and other relevant

information.

Research Method

Descriptive and electronic research methods were used in this study.

References in international law as well as on line articles and commentaries

about Rome Statute of the International Criminal Court, its enforcement and

current status were employed as research materials. Legal dictionary and

encyclopedias were also utilized in this research.

The term descriptive is self-explanatory and terminology synonymous

to this type of research is: describe, write on, depict. The aim of descriptive

research is to verify formulated hypotheses that refer to the present situation

in order to elucidate it. Descriptive research is thus a type of research that is

primarily concerned with describing the nature or conditions and degree in

detail of the present situation (Landman, 1988). The emphasis is on

describing rather than on judgment or interpretation.

Subject of the Study

The subject of the study is the significance of the international criminal

court and its jurisdiction over individuals. It will study the implications,

jurisdiction, the cases and the persons involved in the case that been

investigated by the International Criminal Court.

Data Gathering Instruments

The researchers use cases that the International Criminal Court had

been investigated from 2002 to 2005. The researcher determines cases

which are unique in some way or cases which are considered typical and

cases which represent a variety of parameters.

Documents

The researchers gather cases and documents using multiple sources

like books pertinent to the issue which were significant to the completion and

enhancement of the study. Magazines and newspaper of general circulation

revealing latest information and facts regarding the issue of International

Criminal Court, human rights that are vital to the study. And also cases based

on the internet for documentation analysis.

Case Analysis

The principal strategy used was the cross case analysis. The cross

case analysis enabled the comparison of different cases against predefined

categories (Eisenhardt, 1989). Cross case analysis enables the comparison

of multiple cases in many divergent ways, which would not be possible within

a single case analysis. Three tactics are recommended: first, select

categories and look for within-group similarities coupled with inter group

differences; second, select pairs of cases and list the similarities and

differences between each pair, and; third, divide the data by data source to

exploit “unique insights possible from different types of data collection”

(Eisenhardt, 1989).

CHAPTER IV

Presentation, Analysis and Interpretation of Data

This chapter presents data, analysis and interpretations to provide

answers to the questions posed on this study.

Problem 1: What is the International Criminal Court?

The International Criminal Court (ICC) is the first permanent, treaty

based, established to promote the rule of law and ensure that the gravest

international crimes do not go unpunished. It shall be a permanent institution

and shall have the power to exercise its jurisdiction over persons for the most

serious crimes of international concern, as referred to in Rome Statute, and

shall be complementary to national criminal jurisdiction. (Rome Statute, Art.1)

1.1 Historical Background

According to Kofi Annan, the Secretary General of the United Nations,

for nearly a half a century – almost as long as the United Nations has been in

existence – the General Assembly has recognized the need to establish such

a court to prosecute and punish persons responsible for crimes such as

genocide. Many thought that the horrors of the Second World War – the

camps, the cruelty, the exterminations, the Holocaust – could never happen

again. Yet they have. Our time – has shown us the man’s capacity for evils

knows no limits. Genocide is now a word of our time, too, a heinous reality

that cause for a historic response.

The history of the establishment of the International Criminal Court

(ICC) spans over more than a century. The “road to Rome” was a long and

often contentious one. Below is the timeline of creation of the International

Criminal Court (Leonard, 2005):

1872 Gustav Moynier – one of the founders of the

International Committee of the Red Cross –

proposed a permanent court in response to the

crimes of the Franco-Prussian War.

1919 The drafters of the Treaty of Versailles envisaged

an ad hoc international court to try the Kaiser and

German war criminals of World War I. Following

World War II, the Allies set up the Nuremberg and

Tokyo tribunals to try Axis war criminals.

1948 The United Nations General Assembly (UN GA)

adopted the Convention on the Prevention and

Punishment of the Crime of Genocide in which it

called for criminals to be tried “by such

international penal tribunals as may have

jurisdiction” and invited the International Law

Commission (ILC) “to study the desirability and

possibility of establishing an international judicial

organ for the trials of persons charged with

genocide.”

Early 1950s While the ILC drafted such a statute the Cold War

hindered these efforts and the General Assembly

effectively abandoned the efforts pending

agreement on a definition for the crime of

aggression and an International Code of Crimes.

June 1989 Trinidad and Tobago resurrected a pre-existing

proposal for the establishment of an ICC and the

UN GA asked that the ILC resume its work on

drafting a statute.

Early 1990s The UN Security Council to establish two separate

temporary ad hoc tribunals to hold individuals

accountable for these atrocities further highlights

the need for a permanent international criminal

court.

1994 The ILC presented its final draft statute for an ICC

to the UN GA and recommended that a

conference of plenipotentiaries be convened to

negotiate a treaty and enact the Statute.

1995 The Ad Hoc Committee on the Establishment of

an International Criminal Court met twice, to

consider major substantive issues in the draft

statute.

1996 – 1998 Six sessions of the UN Preparatory Committee

were held at the United Nations headquarters in

New York, in which NGOs provided input into the

discussions and attended meetings under the

umbrella of the NGO Coalition for an ICC (CICC).

Jan. 1998 The Bureau and coordinators of the Preparatory

Committee convened for an Inter-Sessional

meeting in Zutphen, the Netherlands to technically

consolidate and restructure the draft articles into a

draft.

June - July The Rome Conference took place in Rome, Italy

with

1998 160 countries participating in the negotiations and

the NGO Coalition closely monitoring these

discussions, distributing information worldwide on

developments, and facilitating the participation and

parallel activities of more than 200 NGOs. At the

end of five weeks of intense negotiations, 120

nations voted in favor of the adoption of the Rome

Statute of the ICC, with seven nations voting

against the treaty (including the United States,

Israel, China, Iraq and Qatar) and 21 states

abstaining.

April 2002 The 60th ratification necessary to trigger the entry

into force of the Rome Statute was deposited by

several states in conjunction.

July 1, 2002 The treaty entered into force.

Sept. 2002 Following the completion of the PrepCom’s

mandate and the entry into force, the Assembly of

State Parties (ASP) met for the first time.

Even though the Statute entered into force on 1 July 2002, it will take

some time before the Court begins its operations. A number of statutory

measures and practical steps still have to be taken before the Court becomes

operational. Whereas the two ad hoc Tribunals for Yugoslavia and Rwanda

could be set up within the framework of the United Nations, the ICC will have

to be set up as a completely new international organization

(www.icc-cpi.int/about/ataglance/history.html ) .

The International Criminal Court has long enough paths to come these

far. Since 1872, when Gustav Moynier proposed to have a body that will

prosecute the crimes committed during the Prussian war and consequently

until at present war and conflicts is still a major problem that hath not yet been

solved. When the treaty entered into force July 1, 2002 the time that have

been waiting for that these body will guarantee to prosecute crimes and liable

individuals will be punish, Thus justice will attain by the help of this organ.

1.1.1 State Signatories

States were entitled to sign the Statute until 31 December 2000.

Although signature of a treaty may also, under certain circumstances,

constitute a means of indicating its acceptance, in the context of the Statute

signature is only a preliminary act – a first step to participation – and must be

followed by deposit of an instrument of ratification, approval or accession for

the State to become a party to the Statute. Customary Law, as codified in the

1969 Vienna Convention on the Law of Treaties, requires that between the

time of signature and ratification a State is obliged to refrain from acts which

would defeat the object and purpose of a treaty, until it shall have made its

intention clear not to become a party to the treaty.

The terms ratification, acceptance, approval and accession

describe the international act by which a State establishes on the international

plane its consent to be bound by a treaty. Although all four terms are

acceptable, the acts they describe are colloquially referred to as ‘ratification’.

States which have already signed the Statute deposit instruments of

ratification, acceptance or approval. Those that have not deposit instruments

of ‘accession’. Deposit of these instruments is done with the depositary, which

is designated as the Secretary-General of the United Nations.

The Statute will enter into force on the first day of the month after the

sixtieth day following the date of the deposit of the sixtieth instrument of

ratification, acceptance, approval or accession with the Secretary-General of

the United Nations. For States that ratify, accept, approve or accede after the

entry into force of the Statute, it will enter force for them on the first day of the

month after the sixtieth day following the deposit of instruments of ratification,

acceptance, approval or accession. It is possible for States to withdraw from

the Statute by sending a written notice to the Secretary-General of the United

Nations. Withdrawal takes effect one year after the receipt of the notification,

unless the State in question specifies a later date. But a State that withdraws

cannot escape obligations that arose while it was a party, including financial

obligations. A State that reacted to outcome of one of its senior officials by

withdrawing from the Statute could not affect any pending investigation or

trial. The Statute does not explain what would happen if there were enough

withdrawals to bring the number of ratifications below the number of sixty.

Table 1. Rome statute Signature and Ratification Chart, as of June 1,

2005

Country Signature Ratification/

Accession (a)

Afghanistan 02/10/03 (a)

Albania 07/18/98 01/31/03

Algeria 12/28/00

Andorra 07/18/98 04/30/01

Antigua and Barbuda 10/23/98 06/18/01

Argentina 01/08/99 02/08/01

Armenia 10/01/99

Australia 12/09/98 07/01/02

Austria 10/07/98 12/28/00

Bahamas 12/29/00

Bahrain 12/11/00

Bangladesh 09/16/99

Barbados 09/08/00 12/10/02

Belgium 09/10/98 06/28/00

Belize 04/05/00 04/05/00

Benin 09/24/99 01/22/02

Bolivia 07/17/98 06/27/02

Bosnia and Herzegovina 07/17/00 04/11/02

Botswana 09/08/00 09/08/00

Brazil 02/07/00 06/20/02

Bulgaria 02/11/99 04/11/02

Burkina Faso 11/30/98 04/16/04

Burundi 01/17/99 09/21/04

Cambodia 10/23/00 04/11/02

Cameroon 07/17/98

Canada 12/18/98 07/07/00

Cape Verde 12/28/00

Central African Republic 12/07/99 10/03/01

Chad 10/20/99

Chile 10/11/98

Colombia 10/10/98 08/05/02

Comoros 09/22/00

Congo (Brazzaville) 07/17/98 05/03/04

Costa Rica 10/07/98 06/07/01

Cote d’ivoire 11/30/98

Croatia 10/12/98 05/21/01

Cyprus 10/15/98 06/07/02

Czech Republic 04/13/98

Democratic Republic of Congo 09/08/00 04/11/02

Denmark 09/25/98 06/21/01

Djibouti 10/07/98 11/05/02

Dominica 02/12/01(a)

Dominican Republic 09/08/00 05/13/05

Ecuador 09/07/98 02/05/02

Egypt 12/96/00

Eritrea 10/07/98

Estonia 12/97/99 01/30/02

Fiji 11/29/99 11/29/99

Finland 10/07/98 12/29/00

France 07/18/98 06/09/00

Gabon 12/22/98 09/21/00

Gambia 12/07/98 06/28/02

Germany 12/10/98 12/11/00

Georgia 07/18/98 09/05/03

Ghana 07/18/98 12/20/99

Greece 07/18/98 05/15/02

Guinea 09/08/00 07/14/03

Guinea-Bissau 09/12/00

Guyana 12/28/00 09/24/04

Haiti 02/26/99

Honduras 10/07/98 07/01/02

Hungary 12/15/98 11/30/01

Iceland 08/26/98 05/25/00

Iran 12/21/00

Ireland 10/07/98 04/11/02

Israel* 12/31/00

Italy 07/18/98 07/26/99

Jamaica 09/08/00

Jordan 10/07/98 04/11/02

Kenya 08/11/99 03/15/05

Kuwait 09/08/00

Kyrgyzstan 12/08/98

Latvia 04/22/99 06/28/02

Lesotho 11/30/98 09/06/00

Liberia 07/17/98 09/22/04

Lichtenstein 07/18/98 10/02/01

Lithuania 12/10/98 05/12/03

Luxembourg 10/13/98 09/08/00

Macedonia (F.Y.R) 10/07/98 03/06/02

Madagascar 07/18/98

Malawi 03/03/99 09/19/02

Mali 07/17/98 08/16/00

Malta 07/17/98 11/29/02

Marshall Islands 09/06/00 12/07/00

Mauritius 11/11/98 03/05/02

Mexico 09/07/00

Monaco 07/18/98

Mongolia 12/29/00 04/11/02

Morocco 09/08/00

Mozambique 12/28/00

Namibia 10/27/98 06/25/02

Nauru 12/13/00 11/12/01

Netherlands 07/18/98 07/17/01

New Zealand 10/07/98 09/07/00

Niger 07/17/98 04/11/02

Nigeria 06/01/00 09/27/01

Norway 08/28/98 02/16/00

Oman 12/20/00

Panama 07/18/98 03/21/02

Paraguay 10/07/98 05/14/01

Peru 12/07/00 11/10/01

Philippines 12/28/00

Poland 04/09/99 11/12/01

Portugal 10/07/98 02/05/02

Republic of Korea 03/08/00 11/13/02

Republic of Moldova 09/08/00

Romania 07/07/99 04/11/02

Russian Federation 09/13/00

St. Lucia 08/27/99

St. Vincent and the Grenadines 12/03/02 (a)

Samoa 07/17/98 09/16/02

San Marino 07/18/98 05/13/99

Sao Tome and Principe 12/28/00

Senegal 07/18/98 02/02/99

Serbia and Montenegro 12/19/00 09/06/01

Seychelles 12/28/00

Sierra Leone 10/17/98 09/15/00

Slovakia 12/23/98 04/11/02

Slovenia 10/07/98 12/31/01

Solomon Islands 12/03/98

South Africa 07/17/98 11/27/00

Spain 07/18/98 10/25/00

Sudan 09/08/00

Sweden 10/07/98 06/28/01

Switzerland 07/18/98 10/12/01

Syrian Arab Republic 11/29/00

Tajikistan 11/30/98 05/05/00

Tanzania (United Republic) 12/29/00 09/20/02

Thailand 10/02/00

Timor Leste 09/06/02 (a)

Trinidad and Tobago 03/23/99 04/06/99

Uganda 03/17/99 06/14/02

Ukraine 01/20/00

United Arab Emirates 11/27/00

United Kingdom 11/30/98 10/04/01

United States of America* 12/31/00

Uruguay 12/19/00 06/28/02

Venezuela 10/14/98 06/07/00

Yemen* 12/28/00

Zambia 07/17/98 11/13/02

Zimbabwe 07/17/98

* Despite their formal signature on 12/31/00, Israel, Yemen and the United

States have since withdrawn their signature. US opposition to the Rome

Statute rests primarily on the fear that the I.C.C will unfairly prosecute U.S

service members or citizens simply because of political motivation.

According to the law of treaties, a state that has signed but not ratified

a treaty is obliged to refrain from “acts which would defeat the object and

purpose” of the treaty; however, these obligations do not continue if the state

makes clear that it does not intend to become a party to the treaty

Figure 2. The graph shows that in 1998, there were few state parties

signed the statute and it increased more in 2002. The number of the state

parties increase due to Iraq bombing, 9/11 bombing and other conflicts in the

areas of the Middle East. Up to present there are 108 states are members of

the Court. A further 40 states have signed but not ratified the treaty, and

several states have not signed the treaty but have indicated their intention to

accede to it.

1.2 Purpose of the International Criminal Court

There has been substantial (and a mostly successful) effort to set up

an International Criminal Court (ICC). The purpose is to have a body that can

prosecute serious crimes against humanity no matter who committed them

and to try people for gross violations of human rights, such as those

committed during military conflicts.

The preamble of the Rome Statute establishes the purpose of the

International Criminal Court. In general, the Court will seek “to guarantee

lasting respect for and the enforcement of international justice.” Prior to the

Rome Statute, the only forms of international criminal justice, concerning

individuals and not states, were ad hoc tribunals, and although these tribunals

served their purpose well, scholars often accused these tribunals of both

“selective justice” and a lack of rapid response.

With the establishment of a permanent ICC the tools of justice are

already in place. There is no need for broad agreement among the

international community to take action and there is no delay in the pursuit of

justice because of infrastructure problems. Past tribunals needed the

approval of the Security Council or the approval of a set of key nation-states

before their establishment. The Rome Statute already has the approval of the

international community. A permanent ICC also has the necessary

infrastructure in place, thus allowing for rapid reaction to acts of genocide,

crimes against humanity, crimes against aggression and war crimes. Put

simply, a permanent ICC already has the tools of justice assembled and

approved.

The establishment of an International Criminal Court also rectifies the

failure of the nation-state system to protect human rights. Traditionally, the

protection of individual human rights was considered a domestic issue.

1.3 Organizational Structure

The Court, as provided under Article 34 of the statute, shall be

composed of the following organs namely; (a) The Presidency; (b) The

Judicial Divisions consists of an Appeals Division, a Trial Division and a Pre-

Trial Division; (c) The Office of the Prosecutor; and (d) The Registry (see

Figure 2).

The President, together with the First and Second Vice-Presidents,

shall constitute the Presidency (see Figure 3), which shall be responsible for

the proper administration of the Court, with the exception of the Office of the

Prosecutor; and other functions conferred upon it in accordance with the

Rome Statute. In discharging its responsibility the Presidency shall coordinate

with and seek the concurrence of the Prosecutor on all matters of mutual

concern. The President and the First and Second Vice-Presidents shall be

elected by an absolute majority of the judges. They shall each serve for a

term of three years or until the end of their respective terms of office as

judges, whichever expires earlier. They shall be eligible for re-election once.

The First Vice-President shall act in place of the President in the event that

the President is unavailable or disqualified. The Second Vice-President shall

act in place of the President in the event that both the President and the First

Vice-President are unavailable or disqualified.

There shall be 18 judges of the Court, elected by secret ballot by the

highest number of votes but no less than two-thirds of the States Parties

present and voting. The Presidency, acting on behalf of the Court, may

propose an increase in the number of judges. The judges shall be chosen

from among persons of high moral character, impartiality and integrity who

possess the qualifications required in their respective States for appointment

to the highest judicial offices. No two judges may be nationals of the same

State and to ensure that the composition will be truly balanced and

international; their election must take into account the need to represent the

principal legal systems of the world, equitable geographical representation, a

fair representation of female and male judges, and expertise on violence

against women or children

Under Article 39, as soon as possible after the election of the judges,

the Court shall organize itself into the judicial divisions (see Figure 4). The

Appeals Division shall be composed of the President and four other judges.

The Trial Division is consists of the Second Vice President and five other

judges. The Pre-Trial Division is consists of the First Vice President and six

other judges. The Pre-Trial Division confirms indictments and issues

international arrest warrants, whereas the Trial Division presides over trials.

Decisions of the Pre-Trial and Trial Divisions may be appealed to the Appeals

Division.

The assignment of judges to divisions shall be based on the nature of

the functions to be performed by each division and the qualifications and

experience of the judges elected to the Court, in such a way that each

division shall contain an appropriate combination of expertise in criminal law

and procedure and in international law. The Trial and Pre-Trial Divisions shall

be composed predominantly of judges with criminal trial experience. The

judges shall be independent in the performance of their functions and shall

not engage in any activity which is likely to interfere with their judicial

functions or to affect confidence in their independence.

The Office of the Prosecutor (see Figure 5), under Article 42 of the

statute, is responsible for receiving referrals and any substantiated

information on crimes within the jurisdiction of the Court, for examining them

and for conducting investigations and prosecutions before the Court. It is

headed by the Prosecutor, who is assisted by two Deputy Prosecutors. The

Prosecutor shall be elected by secret ballot by an absolute majority of the

members of the Assembly of States Parties and must meet stringent

qualifications: she or he must possess the highest moral character,

competence and experience in the prosecution or trial of criminal cases. The

Deputy Prosecutors shall be elected in the same way from a list of three

candidates for each position of the Deputy Prosecutor nominated and

prepared by the Prosecutor.

The Rome Statute provides that the Office of the Prosecutor shall act

independently as a separate organ of the Court, and a member of the Office

shall not seek or act on instructions from any external source. The Prosecutor

will not be allowed to participate in any case in which his or her impartiality

may be doubted. Any question concerning disqualification will be decided by

the Court's Appeals Chamber. The Assembly of States Parties has the power

to remove the Prosecutor if he or she is found to have committed serious

misconduct or a serious breach of duties.

Under Article 43 of the statute, the Registry shall be responsible for the

non-judicial aspects of the administration and servicing of the Court, without

prejudice to the functions and powers of the Prosecutor. The Registry (see

Figure 6) shall be headed by the Registrar, who shall be the principal

administrative officer of the Court, which shall be elected by secret ballot by

an absolute majority of the judges, taking into account any recommendation

by the Assembly of States Parties, and if the need arises and upon the

recommendation of the Registrar, the judges shall elect in the same manner a

Deputy Registrar. The Registrar shall exercise his or her functions under the

authority of the President of the Court. The Registrar and the Deputy

Registrar shall be persons of high moral character, be highly competent and

have an excellent knowledge of and be fluent in at least one of the working

languages of the Court.

The Registrar shall set up a Victims and Witnesses Unit within the

Registry. This Unit shall provide, in consultation with the Office of the

Prosecutor, protective measures and security arrangements, counseling and

other appropriate assistance for witnesses, victims who appear before the

Court and others who are at risk on account of testimony given by such

witnesses. The Unit shall include staff with expertise in trauma, including

trauma related to crimes of sexual violence.

1.3.1 Ethical Matters

Judges, Prosecutor, Deputy Prosecutors, Registrar and Deputy

Registrar are all required to make solemn undertaking in open court to

exercise their functions impartially and conscientiously (Ibid. Art.45). Any of

them may be removed from office on grounds of serious misconduct, a

serious breach of duties, or inability to exercise the functions required by the

Statute. In the event of misconduct of a less serious nature, disciplinary

measures may be imposed (Ibid. Art.47).

Removal is the result of a decision taken by the Assembly of State

Parties (Ibid. Art.46). Removal of a judge first requires a recommendation to

this effect by a two-thirds majority of the other judges. Then, a two-thirds

majority of the States parties must agree. The Prosecutor is more vulnerable,

and can be removed by a majority of the States parties. The Registrar and

Deputy Registrar may be removed by a majority of the judges.

Salaries of the Judges, The Prosecutor and Deputy Prosecutors, and

the Registrar and the Deputy Registrar, are set by the Assembly of States

Parties and may not be reduced during their terms of office (Rome Statute,

Art.49).

1.3.2 Languages

The Court has two working languages, English and French, although it

may designate other working languages on a case-by-case basis. Judges, the

Prosecutor, the Registrar and their deputies, as well as defense counsel, are

all required to have fluency in one or the other of these languages (Rome

Statute, Art.50). The Court has six official languages; Arabic, Chinese,

English, French, Russian and Spanish. Judgments of the Court, as well as

other decisions ‘resolving fundamental issues before the Court’ are to be

published in the official languages. The requirement is consistent with United

Nations practice, but may prove awkward in the case of judgments running

into several hundreds of pages, as has been the practice at the ad hoc

tribunals. Although the ad hoc have only two official languages, as a general

rule they have proven to be unable to issue judgments in both languages at

the same time.

The primary reason why it was chosen to be their official language is

that in reality, their staff will have to deal with many more languages because

of the variety of locations from which the accused persons, witnesses and

victims will come. This will be one of the challenges that have to be address

as we seek to identify and train interpreters for languages that are not

commonly used in international circuits.

1.4 Jurisdiction of the Court

The Court can generally exercise jurisdiction only in cases where the

accused is a national of a state party, the alleged crime took place on the

territory of a state party, or a situation is referred to the Court by the United

Nations Security Council. The Court is designed to complement existing

national judicial systems: it can exercise its jurisdiction only when national

courts are unwilling or unable to investigate or prosecute such crimes.

Primary responsibility to punish crimes is therefore left to individual states.

During the negotiations that led to the Rome Statute, a large number of

states argued that the Court should be allowed to exercise universal

jurisdiction. However, this proposal was defeated due in large part to

opposition from the United States. A compromise was reached, allowing the

Court to exercise jurisdiction only under certain limited circumstances,

namely: (1) Where the person accused of committing a crime is a national of

a state party (or where the person's state has accepted the jurisdiction of the

Court); or (2) Where the alleged crime was committed on the territory of a

state party (or where the state on whose territory the crime was committed

has accepted the jurisdiction of the Court); or (3) Where a situation is referred

to the Court by the UN Security Council (http://www.un.org/law/icc/).

1.5 Sources of Court’s Funds

The International Criminal Court is a separate entity from the United

Nations. According to the Statute, its expenses shall be funded by assessed

contributions made by States Parties and by voluntary contributions from

Governments, international organizations, individuals, corporations and other

entities. In special circumstances funds could be provided by the UN, subject

to the approval of the General Assembly, when they relate to expenses

incurred due to "situations" referred to the Court by the Security Council. The

contributions of the States Parties will be assessed based on the scale

adopted by the United Nations for its regular budget, but any States that wish

to do so may voluntarily contribute additional funds. The Netherlands, the

host country for the Court, has expressed its willingness to contribute funds

for the first meetings of the Assembly of States Parties.

Problem 2: What are the crimes under the jurisdiction of the said court?

Part 2 of the Rome Statute discusses the jurisdiction of the Court. As

stated in Article Five, the International Criminal Court has jurisdiction over the

following four crimes: crime of genocide, crimes against humanity, war crimes

and the crime of aggression. The Court has jurisdiction over these crimes

from the time the Statute enters into force therefore, the ICC is temporarily

bound to the point of its ratification. No crimes committed prior to July 1,

2002, are within the Court’s jurisdiction.

2.1 Nature of the Crimes

Scholars often refer to the crimes themselves as the “core crimes” of

international humanitarian law. The definitions of the crime of genocide,

crimes against humanity and war crimes are all predicated on established

international law. The statute defines each of these crimes except for crimes

against aggression for it provides that the Court will not exercise its

jurisdiction over the crime and set out the conditions under which it may be

prosecuted.

2.1.1 The crime of Genocide

Article 6 of the Rome Statute, and Article II of the Genocide

Convention, define genocide as five specific acts committed with the intent to

destroy a national, ethnical, racial or religious group as such. The five acts

are: killing members of the group; causing serious bodily or mental harm to

members of the group; imposing conditions on the group calculated to destroy

it; preventing births within the group; and forcibly transferring children from

the group to another group. The definition has been incorporated in the penal

codes of many countries, although actual prosecutions have been rare.

It is often said that what distinguishes genocide from all other crimes is

its dolus specialis or ‘special intent’. In effect, all three crimes that are defined

by the Rome Statute provide for prosecution for killing or murder. What sets

genocide apart from crimes against humanity and war crimes is that the act,

whether killing or one of the other four acts defined in Article 6, must be

committed with the specific intent to destroy in whole or in part a national,

ethnical, racial or religious group as such. As can be seen, this ‘special intent’

has several components.

The perpetrator’s intent must be ‘to destroy’ the group. During the

adoption of the Genocide Convention, the forms of destruction were grouped

into three categories: physical, biological and cultural. Cultural genocide was

the most difficult of the three, because it could well be interpreted in such a

way as to include the suppression of national languages and similar

measures. The words ‘to destroy’ can readily bear the concept of cultural as

well as physical and biological genocide, and bold judges might be tempted to

adopt such progressive constructions. In any event, evidence of ‘cultural

genocide’ has already been proven to be an important indicator of the intent

to perpetrate physical genocide.

With the words ‘in whole or in part’ the definition indicates a

quantitative dimension. The prevailing view is that where only part of a group

is destroyed, it must be a ‘substantial part’. There is much confusion about

this, because it is often thought that there is some particular numerical

threshold of real victims before genocide can take place. But the reference to

quantity is in the description of the mental element of the crime, and what is

important is not the actual number of victims, rather that the perpetrator

intended to destroy a large number of members of the group. The greater

number of real victims, the more logical the conclusion that the intent was to

destroy the group ‘in whole or in part’.

The destruction must be directed at one of the four groups listed in the

definition: national, ethnical, racial or religious. The four terms themselves are

not easy to define. Taken as a whole, the four terms correspond closely to

what human rights law refers to as ethnic or national minorities, expressions

that themselves have avoided precise definition.

The description of the crime of genocide concludes with the

bewildering words ‘as such’. The two concepts are not equivalent. Individuals

may commit crimes intentionally, but for a variety of motives: greed, jealousy,

hatred and so on. Proof of motives creates an additional obstacle to effective

prosecution, and it is for this reason that several delegations opposed

requiring it as an element of the crime.

Killing is at the core of the definition and is without doubt the most

important of the five acts of genocide. The term killing is synonymous with

murder or intentional homicide. The second act of genocide, causing serious

bodily or mental harm, refers to acts of major violence falling short of

homicide. Stating that such conduct may include ‘acts of torture, rape, sexual

violence or inhuman or degrading treatment’ (Elements of Crimes, Art.6 (b)).

The third act of genocide, imposing conditions of life calculated to destroy the

group, applies to cases like the forced marches of the Armenian minority in

Turkey in 1915.

The delegates attending the Rome Conference unanimously accepted

this definition and rapidly incorporated it into the Statute. Under this article,

not only does the Court have the right to impose punishment for acts of

genocide, but also conspiracy to commit genocide, public incitement to

commit genocide, attempted genocide and complicity in genocide.

2.1.2 Crimes against Humanity

Back several centuries, the term ‘crimes against humanity’ was first

used in its contemporary context in 1915. The massacres of Turkey’s

Armenian population were criticized as a crime against humanity in a

declaration of three Allied powers pledging that those responsible would be

held personally accountable (United Nations War Crimes Commission). But,

in the post-war peace negotiations, there were objections that this was a form

or retroactive criminal legislation and no prosecution were ever undertaken on

an international level for the genocide of the Armenians. But once again, the

arguments about retroactivity resurfaced, but they were successfully rebuffed.

Article 7 of the Rome Statute begins with an introductory paragraph

stating: ‘For the purpose of this Statute, “crime against humanity” means any

of the following acts when committed as part of a widespread or systematic

attack directed against any civilian population, with knowledge of the attack.’

Like genocide, then, there is an important threshold that elevates the ‘acts’

set out later in the provision to the level of crimes against humanity.

First among them is the requirement that these acts be part of a

‘widespread or systematic attack’. Some of the earlier proposals had required

that the attack be widespread and systematic. But the apparent broadening of

the entry may be a deception, because further in Article 8 the term attack is

defined as ‘a course of conduct involving the multiple commission of acts

referred to in paragraph 1 against any civilian population, pursuant to or in

furtherance of a State or organizational policy to commit such attack’. The

attack must be directed against a civilian population, distinguishing it from

many war crimes, which may be targeted at combatants or at civilians. The

attack need not be a military attack. The attack must also be carried out

‘pursuant to or in furtherance of a State or organizational policy to commit

such attack’. This phrase indicates that crimes against humanity may in some

circumstances be committed by non-State actors. Finally, the perpetrator

must have ‘knowledge of the attack’. This amounts to a form of specific intent,

although one that is less demanding than the specific intent required by the

definition of genocide. An individual participates in crimes against humanity

but who is unaware that they are part of a widespread or systematic attack on

a civilian population may be guilty of murder and perhaps even war crimes

but cannot be convicted by the International Criminal Court for crimes against

humanity. On the other hand, according to the Elements of Crimes, this does

not require ‘that the perpetrator had knowledge of all characteristics of the

attack or the precise details of the plan or policy of the State or organization’.

The chapeau of paragraph 1 of Article 7 is followed by a list of eleven

acts of crimes against humanity. The list was considerably shorter. It has

been enriched principally by developments in international human rights law.

There are subparagraphs dealing with specific types of crimes against

humanity that have already been the subject of prohibitions in international

law, namely, apartheid, torture and enforced disappearance. Some terms that

were recognized at the time of Nuremberg have also been developed and

expanded. For example, ‘deportation’ is now added the words ‘forcible

transfer of populations’, recognizing our condemnation of what in recent years

has been known as ‘ethnic cleansing’, particularly when this takes place

within a country’s own borders. However, proposals to include other new acts

of crimes against humanity, including economic embargo, terrorism and mass

starvation, did not really sufficient support.

The most vivid example of enlarging the scope of the crime is found in

the very substantial list of ‘gender crimes’. The Nuremberg Charter did not

even recognize rape as a form of crime against humanity, at least clear,

although this was corrected by judicial interpretation as well as in the texts of

subsequent definitions. The Rome Statute goes much further, referring to

‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced

sterilization, or any other form of sexual violence of comparable gravity’.

According to the Holy See, the term ‘forced pregnancy’ was the most

problematic, because some believed it might be construed as creating an

obligation upon States to provide women who had been forcibly impregnated

with access to abortion. A definition of the term was agreed to: “Forced

pregnancy” means the unlawful confinement, of women forcibly made

pregnant with the intent of affecting the ethnic composition of any population

or carrying out other grave violations of international law. This definition shall

not in any way interpreted as affecting national laws relating to pregnancy.

The second sentence was added to reassure some States that the Rome

Statute would not conflict with anti-abortion laws.

Article 7 concludes with two further paragraphs that endeavor to define

some of the more difficult terms of paragraph 1. Accordingly, the term ‘attack’

is defined as well as extermination, enslavement, and deportation or forcible

transfer of population, torture, forced pregnancy, persecution, and the crime

of apartheid and enforced disappearance of persons. A special provision

defines ‘gender’, not only for the purposes of crimes against humanity but as

it may be used elsewhere in the Statute as well.

The court considers all of these actions crimes against humanity as

long as they are “committed as part of a widespread or systematic attack

directed against any civilian population.” It is also important to note that the

Rome Statute does not require that such acts be committed within the context

of an armed conflict. Therefore, according to the Rome Statute’s definition,

crimes against humanity can also be committed in times of civil strife or even

peace.

2.1.3 War Crimes

Article 8 of the Rome Statute is one of the longest provisions in the

Statute, a striking observation when compared with the concise provisions of

the Nuremberg Charter and the Geneva Conventions. To some extent it

represents a progressive development over these experiences, because it

expressly covers non-international armed conflicts. Some war crimes are

defined in considerable detail, focusing attention on their forms and

variations. Yet such detailed definition may also serve to narrow the scope of

war crimes in some cases. But, of course, the definitions in the Statute can

always be amended, but the process is unwieldy.

In customary law, a major distinction between war crimes and the other

two categories, crimes against humanity and genocide, is that the latter two

have jurisdictional thresholds while the former does not. Crimes against

humanity must be ‘widespread’ or ‘systematic’, and genocide requires a very

high level of specific intent. War crimes, on the other hand, can in principle

cover even isolated acts committed by individual soldiers acting without

direction or guidance from higher up. While genocide and crimes against

humanity would seem to be prima facie serious enough to warrant

intervention by the Court, these will not always the case for war crimes. As a

result, Article 8 begins with what has been called a ‘non-threshold’. The Court

has jurisdiction over war crimes ‘in particular when committed as a part of a

plan or policy or as a part of a large-scale commission of such crimes’. The

language brings war crimes closer to crimes against humanity. The Rome

Conference found middle ground with the words ‘in particular’, thereby

compromising between those favoring a rigid threshold and those opposed to

any such limitation on jurisdiction.

The preliminary issue to be determined in charges under Article 8 is

the existence of an armed conflict, be it international or non-international. In

terms of time, some war crimes can be committed after the conclusion of

overt hostilities, particularly those relating to the repatriation of prisoners of

war. Therefore, war crimes can actually be committed when there is no armed

conflict or after the conclusion of the conflict. From the standpoint of territory,

war crimes law applies in some cases to the entire territory of a State, and not

just the region where hostilities have been committed. The elements clarify

that while the Prosecutor must establish there threshold elements of war

crimes, he or she need not prove that the perpetrator had knowledge of

whether or not there was an armed conflict, or whether it was international or

non-international. According to the Elements, ‘there is only a requirement for

the awareness of the factual circumstances that established the existence of

an armed conflict that is implicit in the terms “took place in the context of and

was associated with”’.

The first category or war crimes that is listed in Article 8 is that of

‘grave breaches’ of the Geneva Conventions. The ‘grave breaches’ of the

Geneva Conventions are set out in Article 8(2) (a) of the Rome Statute.

Nothing in paragraph (a) insists that these apply only to international armed

conflict, although the context suggests that this must necessarily be the case.

The chapeau describes grave breaches as acts committed ‘against persons

or property protected under the provisions of the relevant Geneva

Convention’.

The second category of war crimes that is listed in Article 8 of the

Rome Statute is ‘other serious violations of the laws and customs applicable

in international armed conflict, within the established framework of

international law’. The wording makes it quite explicit that this category, found

in paragraph (b), is like the crimes in paragraph (a), confined to international

armed conflict. There is no requirement, unlike the situation for ‘grave

breaches’, that the victims be ‘protected persons’. Indeed, the overall focus of

Hague Law is on combatants themselves as victims. Hague Law is concerned

not so much with the innocent victims of war as with its very authors, the

combatants.

In addition to those provisions reflecting the terms of the 1907

instrument, there are also some ‘new’ crimes in paragraph (b). These were in

a sense codified by the drafters at Rome and it is not improbable that those

accused in the future will argue that they were not part of customary law

applicable at the time the Statute was adopted. Among the new provisions

included in Article 8(2)(b) are those concerning the protection of humanitarian

or peacekeeping missions and prohibiting environmental damage. The most

controversial provision was sub-paragraph (viii), defining as a war crime ‘the

transfer, directly or indirectly, by the Occupying Power of parts of its own

civilian population into the territory it occupies, or the deportation or transfer of

all or parts of the population of the occupied territory within or outside this

territory’.

Several of the provisions of paragraph (b) deal with prohibited

weapons. These include poison or poisoned weapons, asphyxiating,

poisonous or other gases and bullets that expand or flatten easily in the

human body (Clark, 1998).

2.1.4 Crime of Aggression

The last crime within the Court’s jurisdiction is the crime of aggression.

This particular crime has proved a sticking point for the establishment of an

International Criminal Court since the early post World War II era. In 1954, the

United Nations’ General Assembly prevented the formation of an ICC

because the ILC could not define “aggression”. The UN Special Committee

finally defined the concept in 1974, but this issue has remained a contentious

one. The 1974 definition was rather expansive, but the primary content of the

definition was as follows: “Aggression is the use of armed force by State

against the sovereignty, territorial integrity or political independence of

another State, or in any other manner inconsistent with the Charter of the

United Nations, as set out in this definition.”

This definition went on to include the following acts as evidence of

aggression: invasion or attack by an armed force of a State, bombardment by

an armed force of a State, blockade of ports or coasts by an armed force of a

State, the use of mercenaries by a State to carry out acts of armed force and

any other act that the Security Council determines is an act of aggression

under the provision of the Charter.

With the renewed discussion of an ICC in the 1990s, the debate

concerning a definition of crimes of aggression once again took center stage.

With none of the post-Cold War ad hoc tribunals’ prosecuting this crime, the

Preparatory Committee did not have any recent precedent to call upon that

dealt with individual acts of aggression. Despite the definitional problem, it

was clear that the Preparatory Committee was determined to see that this

issue was discussed at Rome. In fact, the crime of aggression was included

in the draft statute of the Rome Conference and it included three definitions

that would be presented as options to the attending delegates. As the

Conference progressed it became clear that there was support for the

inclusion of this crime in the final Statute, but once again, there was a lack of

consensus on how to define this crime.

Many states wanted to add terrorism and drug trafficking to the list of

crimes covered by the Rome Statute; however, the states were unable to

agree on a definition for terrorism and it was decided not to include drug

trafficking as this might overwhelm the Court’s limited resources.

All three crimes, the war crimes, crimes against humanity, and crimes

of aggression that are defined by the Rome statue pertains to sort of crimes

that involves the violation of human rights, thus include the killing, murder

2.1.5 Other Offenses

The Court is also given jurisdiction over what are called “offenses

against the administration of justice”, when these relate to proceedings before

the Court (Art.70, Rome Statute). The Statute specifies that such offenses

must be committed intentionally. These are: perjury or the presentation of

evidence known be false or forged, influencing or interfering with witnesses,

corrupting or bribing officials of the Court or retaliating against them, and, in

the case of officials of the Court, soliciting or accepting bribes. The Court can

impose a term of imprisonment of up to five years or a fine upon conviction.

States Parties are obliged to provide for criminal offenses of the same nature

with respect to offenses against administration of justice that are committed

on their territory or by their nationals.

The Court can also “sanction” misconduct before the Court, such as

disruption of its proceedings or deliberate refusal to comply with its directions.

But, unlike the case of “offenses against the administration of justice”,

available measures are limited to temporary or permanent removal from the

courtroom and a fine of up to 2,000 euros (Art.71, Rome Statute).

2.2 Fundamental Principles

There are fundamental principles that considered in the establishment

of the International Criminal Court. It includes general principles of criminal

law, as well as incurrence of and exclusion from criminal responsibility.

General principles of criminal law were adopted by the Rome Statute

like nullum crimen sine lege, nullum poena sine lege and non-retroactivity.

Article 22 of the Statute provides that a person shall not be criminally

responsible unless the conduct in question constitutes, at the time it takes

place, a crime within the jurisdiction of the Court. Likewise, the definition of a

crime shall be strictly construed and shall not be extended by analogy, and in

case of ambiguity, the definition shall be interpreted in favor of the person

being investigated, prosecuted or convicted. Article 23 of the Statute further

provides that a person convicted by the Court may be punished only in

accordance with the Statute.

Non-retroactivity was embodied under Article 24 and provides that no

person shall be criminally responsible under the Rome Statute for conduct

prior to the entry into force of the Statute. In other words the Court’s

jurisdiction will not be retroactive. It can only address crimes committed after

the entry into force of the Statute and the establishment of the Court which

was on July 1, 2002. However, in the event of a change in the law applicable

to a given case prior to a final judgment, the law more favorable to the person

being investigated, prosecuted or convicted shall apply.

Aside from the aforementioned general principles, the Rome Statute

also adopted the doctrines of individual criminal responsibility, irrelevance of

official capacity and command responsibility.

Individual criminal responsibility is provided under Article 25 of the

statute, this means that the Court shall have jurisdiction over natural persons,

and that a person who commits a crime within the jurisdiction of the Court

shall be individually responsible and liable for punishment in accordance with

the Statute. Moreover, no provision relating to individual criminal responsibility

shall affect the responsibility of States under international law. A person shall

be criminally responsible and liable if that person (a) commits such a crime,

whether as an individual, jointly with another or through another person,

regardless of whether that other person is criminally responsible; (b) orders,

solicits or induces the commission of such a crime which in fact occurs or is

attempted; (c) for the purpose of facilitating the commission of such a crime,

aids, abets or otherwise assists in its commission or its attempted

commission, including providing the means for its commission; (d) in any

other way contributes to the commission or attempted commission of such a

crime by a group of persons acting with a common purpose.

Irrelevance of official capacity is consistent with the thrust of the Court

to punish persons for most serious offenses of global concern no matter who

committed them. The doctrine is enshrined under Article 27 of the statute

which provides that the statute shall apply equally to all persons without any

distinction based on official capacity. In particular, official capacity as a Head

of State or Government, a member of a Government or parliament, an elected

representative or a government official shall in no case exempt a person from

criminal responsibility, nor shall it, in and of itself, constitute a ground for

reduction of sentence. In addition, immunities or special procedural rules

which may attach to the official capacity of a person, whether under national

or international law, shall not bar the Court from exercising its jurisdiction over

such a person.

Command responsibility is another ground for incurring criminal liability

under the statute. The fact that a crime has been committed by a person on

the orders of a superior does not normally relieve that person of criminal

responsibility. The responsibility of commanders and other superiors are laid

down under Article 28,  which provides that a military commander or person

effectively acting as a military commander shall be criminally responsible for

crimes within the jurisdiction of the Court committed by forces under his or her

effective command and control, or effective authority and control as the case

may be, as a result of his or her failure to exercise control properly over such

forces, where: (a) that military commander or person either knew or, owing to

the circumstances at the time, should have known that the forces were

committing or about to commit such crimes; and (b) that military commander

or person failed to take all necessary and reasonable measures within his or

her power to prevent or repress their commission or to submit the matter to

the competent authorities for investigation and prosecution.

With respect to other superior and subordinate relationships, a superior

shall be criminally responsible for crimes within the jurisdiction of the Court

committed by subordinates under his or her effective authority and control, as

a result of his or her failure to exercise control properly over such

subordinates, where: (a) the superior either knew, or consciously disregarded

information which clearly indicated, that the subordinates were committing or

about to commit such crimes; (b) the crimes concerned activities that were

within the effective responsibility and control of the superior; and (c) the

superior failed to take all necessary and reasonable measures within his or

her power to prevent or repress their commission or to submit the matter to

the competent authorities for investigation and prosecution.

The statute further provides that a person shall be criminally

responsible and liable for punishment for a crime within the jurisdiction of the

Court only if the material elements are committed with intent and knowledge

which constitute mental element. Under Article 30 of the statute, knowledge

means awareness that a circumstance exists or a consequence will occur in

the ordinary course of events, and that the terms “know” and ‘knowingly’ shall

be construed accordingly. Also, a person has intent where: (a) in relation to

conduct, that person means to engage in the conduct; (b) in relation to a

consequence, that person means to cause that consequence or is aware that

it will occur in the ordinary course of events.

Just like any other criminal justice system, the Rome statute prescribed

the grounds for excluding criminal responsibility. Under Article 31 of the

statute, a person shall not be criminally responsible if, at the time of that

person's conduct: (a) the person suffers from a mental disease or defect that

destroys that person's capacity to appreciate the unlawfulness or nature of his

or her conduct, or capacity to control his or her conduct to conform to the

requirements of law; (b) the person is in a state of intoxication that destroys

that person's capacity to appreciate the unlawfulness or nature of his or her

conduct, or capacity to control his or her conduct to conform to the

requirements of law, unless the person has become voluntarily intoxicated

under such circumstances that the person knew, or disregarded the risk, that,

as a result of the intoxication, he or she was likely to engage in conduct

constituting a crime within the jurisdiction of the Court; (c) the person acts

reasonably to defend himself or herself or another person or, in the case of

war crimes, property which is essential for the survival of the person or

another person or property which is essential for accomplishing a military

mission, against an imminent and unlawful use of force in a manner

proportionate to the degree of danger to the person or the other person or

property protected. (d) the conduct which is alleged to constitute a crime

within the jurisdiction of the Court has been caused by duress resulting from a

threat of imminent death or of continuing or imminent serious bodily harm

against that person or another person, and the person acts necessarily and

reasonably to avoid this threat, provided that the person does not intend to

cause a greater harm than the one sought to be avoided. Such a threat may

either be made by other persons or constituted by other circumstances

beyond that person's control.

Article 33 of the statute provides that the fact that a crime within the

jurisdiction of the Court has been committed by a person pursuant to an order

of a Government or of a superior, whether military or civilian, shall not relieve

that person of criminal responsibility unless: (a) the person was under a legal

obligation to obey orders of the Government or the superior in question; (b)

the person did not know that the order was unlawful; and (c) the order was

not manifestly unlawful. However, for the purposes of the said article, orders

to commit genocide or crimes against humanity are manifestly unlawful.

Mistake of fact is also a ground for excluding criminal responsibility

only if it negates the mental element required by the crime. Mistake of law as

to whether a particular type of conduct is a crime within the jurisdiction of the

Court shall not be a ground for excluding criminal responsibility, unless it

negates the mental element required by such a crime, or as provided for in

Article 33.

2.3 Judgment

The Court may impose one of the following penalties on a person

convicted of a crime referred to in article five of the Rome Statute: (a)

imprisonment for a specified number of years, which may not exceed a

maximum of 30 years; or (b) a term of life imprisonment when justified by the

extreme gravity of the crime and the individual circumstances of the convicted

person. In addition to imprisonment, the Court may order a fine and forfeiture

of proceeds, property and assets derived directly or indirectly from that crime,

without prejudice to the rights of bona fide third parties. In determining the

sentence, the Court shall take into account such factors as the gravity of the

crime and the individual circumstances of the convicted person. Consistent

with international human rights standards, the International Criminal Court

has no competence to impose death penalty.

Problem 3: How can the International Criminal Court acquire jurisdiction over

the said cases?

Based on Article 13 of the Statute, the Court may exercise its

jurisdiction with respect to a crime referred to in Article 5 if: (a) a situation in

which one or more of such crimes appear to have been committed is referred

to the Prosecutor by a State Party; (b) a situation in which one or more of

such crimes appears to have been committed is referred to the Prosecutor by

the UN Security Council; or (c) the Prosecutor has initiated an investigation.

However, the Statute provides the preconditions to the exercise of

jurisdiction. Under Article 12, a State which becomes a Party to this Statute

thereby accepts the jurisdiction of the Court. In the case of article 13,

paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of

the following States are Parties to this Statute or have accepted the

jurisdiction of the Court. If the acceptance of a State which is not a Party to

this Statute is required, that State may, by declaration lodged with the

Registrar, accept the exercise of jurisdiction by the Court with respect to the

crime in question. The accepting State shall cooperate with the Court without

any delay or exception.

The Court is designed to complement existing national judicial

systems. The principle of complementarity’s suggests that national courts will

continue to have priority in investigating and prosecuting crimes within their

jurisdiction, and that the International Criminal Court will act only when

national courts are unable or unwilling to exercise jurisdiction. Thus, if a

national court is willing and able to exercise jurisdiction, the International

Criminal Court cannot intervene and no nationals of that State can be brought

before it, otherwise challenges to the jurisdiction of court and admissibility of

the case may be made, as provided under Article 19 of the statute, by (a) an

accused or a person for whom a warrant of arrest or a summons to appear

has been issued; (b) a State which has jurisdiction over a case, on the ground

that it is investigating or prosecuting the case or has investigated or

prosecuted; or (c) a State from which acceptance of jurisdiction is required

under article 12 of the statute.

The admissibility of a case or the jurisdiction of the Court may be

challenged only once and the challenge shall take place prior to or at the

commencement of the trial. If a challenge is made by the State referred to in

Article 19, the Prosecutor shall suspend the investigation until such time as

the Court makes a determination.

Under Article 17 of the statute, the Court shall determine that a case is

inadmissible where: (a) the case is being investigated or prosecuted by a

State which has jurisdiction over it, unless the State is unwilling or unable

genuinely to carry out the investigation or prosecution; (b) the case has been

investigated by a State which has jurisdiction over it and the State has

decided not to prosecute the person concerned, unless the decision resulted

from the unwillingness or inability of the State genuinely to prosecute; (c) the

person concerned has already been tried for conduct which is the subject of

the complaint, and a trial by the Court; (d) the case is not of sufficient gravity

to justify further action by the Court.

In order to determine unwillingness in a particular case, the Court shall

consider, having regard to the principles of due process recognized by

international law, whether one or more of the following exist, as applicable: (a)

the proceedings were or are being undertaken or the national decision was

made for the purpose of shielding the person concerned from criminal

responsibility for crimes within the jurisdiction of the Court; (b) there has been

an unjustified delay in the proceedings which in the circumstances is

inconsistent with an intent to bring the person concerned to justice; (c) the

proceedings were not or are not being conducted independently or impartially,

and they were or are being conducted in a manner which, in the

circumstances, is inconsistent with an intent to bring the person concerned to

justice.

In order to determine inability in a particular case, the Court shall

consider whether, due to a total or substantial collapse or unavailability of its

national judicial system, the State is unable to obtain the accused or the

necessary evidence and testimony or otherwise unable to carry out its

proceedings.

Article 20 of the Rome Statute provides that no person shall be tried

before the Court with respect to conduct which formed the basis of crimes for

which the person has been convicted or acquitted by the Court. Likewise, no

person shall be tried by another court for a crime referred to in Article 5 for

which that person has already been convicted or acquitted by the Court.

Furthermore, no person who has been tried by another court for conduct

referred to in Article 5 shall be tried by the Court with respect to the same

conduct unless the proceedings in the other court: (a) were for the purpose of

shielding the person concerned from criminal responsibility for crimes within

the jurisdiction of the Court; or (b) otherwise were not conducted

independently or impartially in accordance with the norms of due process

recognized by international law and were conducted in a manner which, in the

circumstances, was inconsistent with an intent to bring the person concerned

to justice.

Problem 4: Who are the complainants and defendants involved in the cases?

4.1. Complainants

The International Criminal Court has launched investigations into four

situations: Northern Uganda, the Democratic Republic of Congo, the Central

African Republic and Darfur (Sudan). The court had issued public arrest

warrants for the twelve people from these four situations.

The complainants include the following: (1) the government of Uganda,

(2) the government of Democratic Republic of Congo, (3) the government of

Central African Republic, and (4) the United Nation Security Council who

passed resolution 1593 referring the situation prevailing in Darfur (Sudan)

since July 1, 2002 to the prosecutor on the ICC.

The government of Uganda in December 2003 referred to the

prosecutor the situation concerning the Lord’s Resistance Army in the

Northern Uganda. The reason for this referral is because of the conflicts in

Northern parts of the country continues to generate reports of abuse between

the LRA and the Ugandan Army. But the government of Uganda is currently

having peace talks with the LRA. The LRA’s leaders have repeatedly

demanded immunity from the ICC prosecution in return for the end to the

insurgency. The government of Uganda says it is considering establishing a

national tribunal that meets international standards thereby allowing the ICC

warrant to be set aside.

The government of the Democratic Republic of Congo in March

2004 referred to the prosecutor “the situation of crimes within the jurisdiction

of the court allegedly committed anywhere in the territory of the DRC since

the entry of the Rome Statue. The referral was due to issues involving

women’s human rights who were decreasing rapidly for the reason that they

were raped, slaves for men, and when they are finally released, they some

times kill themselves or check into a hospital were they die anyway because

the brutal soldiers have ruined them internally, completely. The war situation

has made the life of women more precarious. As of now, the ones responsible

for committing these crimes were already in custody of the ICC.

The government of the Central African Republic in December 2004

referred to the prosecutor “the situation of crimes within the jurisdiction of the

Court committed anywhere on the territory of the Central African Republic

since 1 July 2002, Prosecutor announced his decision to open an

investigation, focusing on allegations of killing and rape in 2002 and 2003, a

period of intense fighting between government and rebel forces. On 23 May

2008, the Court issued an arrest warrant for Jean-Pierre Bemba, a former

Vice President of the Democratic Republic of the Congo, charging him with

war crimes and crimes against humanity.

The United Nation Security Council who passed resolution 1593

referring the situation prevailing in Darfur (Sudan) since July 1, 2002 to the

prosecutor on the ICC. The referral was due to the identified suspects Ahmad

Muhammad Harun and Janjaweed militia leader Ali Kushayb accused of war

crimes and crimes against humanity. On 2 May 2007, the Court issued arrest

warrants for the two men. However, Sudan says the Court has no jurisdiction

over this matter, and refuses to hand over the suspects.

The complainants have raised their issues regarding the situations

encountered by their constituents who were victims of human rights

violations. They entrusted the establishment of the court for them to solved

conflicts and attain justice as their constituents wants to have. There claims

for attaining justice thru this court would give them peace or nether less

lessen the conflicts by giving proper reprimand for the crimes committed by

the defendants.

4.2. Defendants

The defendants include the twelve inductees who committed crimes

which the International Criminal Court is conducting investigation. They are

Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo, Dominic

Ongwen, Thomas Lubanga, Bosco Ntaganda, Ahmed Haroun, Ali Kushayb,

Germain Katanga, Mathieu Ngudjolo Chui, and Jean-Pierre Bemba.

The figure shows the names, age, gender, nationality, and the profile

description of the defendants or indicters that were alleged to be committing

crimes under the jurisdiction of the court.

Among those was Joseph Kony who is already 46 years old born on

1962, from Uganda. He is the head of the Lord's Resistance Army (LRA), a

guerrilla group that is engaged in a violent campaign to establish a theocratic

government in Uganda, which claims to be based on the Christian Bible and

the Ten Commandments. The LRA, which earned a terrifying reputation for its

brutality against the people of northern Uganda, has abducted an estimated

20,000 children since its rebellion began in 1987. He committed the crimes

against humanity of murder, enslavement, sexual enslavement, rape and

serious bodily injury and the war crimes of murder, cruel treatment of civilians,

attacking civilians, pillage, inducing rape and enlisting child soldiers.

Kony's deputy, Vincent Otti, was 62 years of age, born on 1946, and a

citizen of Uganda. He was deputy-leader of the Lord's Resistance Army

(LRA), a rebel guerrilla army operating mainly in Northern Uganda and

Southern Sudan. He was one of the five persons for whom the International

Criminal Court (ICC) issued its first arrest warrants on 8 July 2005. Rumors of

his death began to circulate in October 2007 but were not confirmed until

January 2008. He committed the crimes against humanity of murder, sexual

enslavement and serious bodily injury and the war crimes of inducing rape,

attacking civilians, enlisting child soldiers, cruel treatment of civilians, pillage

and murder.

Okot Odiambo, a citizen of Uganda, is a senior leader of the Lord's

Resistance Army rebel group founded in Northern Uganda in 1987. He is also

referred to as Two-Victor, his radio call sign. He is currently one of three

Deputy Army Commanders. As such he is a member of the "Control Altar" of

the LRA that direct military strategy, including attacks and brutality aimed at

civilians Army Commander of the LRA. He committed the crime against

humanity of enslavement and war crimes of attacking civilians, pillage and

enlisting child soldiers; Odiambo reportedly led an attack on Barlonya refugee

camp in February 2004 when more than 300 people were massacred.

LRA commander Raska Lukwiya committed the crime against

humanity of enslavement and the war crimes of cruel treatment of civilians,

attacking civilians and pillage. He is the third highest ranking leader of the

Lord's Resistance Army rebel group founded in northern Uganda. He served

successively as Brigade General, Deputy Army Commander and Army

Commander of the LRA. He was killed in fighting on 12 August 2006 with the

government Uganda People's Defense Force while peace negotiations

brokered by the government of Southern Sudan were still underway.

LRA commander, Dominic Ongwen is a male citizen of Uganda. He is

the Brigade Commander of the Sinia Brigade of the Lord's Resistance Army

(LRA) rebel group founded in northern Uganda. As the head of one of the four

LRA brigades, Ongwen is a member of the "Control Altar" of the LRA that

directs military strategy. Ongwen is the lowest ranking of the five LRA leaders

for whom the International Criminal Court (ICC) issued their first ever

warrants in June 2005. He is charged with seven counts of crimes against

humanity and war crimes. He committed the crimes against humanity of

murder, enslavement and serious bodily injury and the war crimes of murder,

cruel treatment of civilians, attacking civilians and pillage.

Thomas Lumbanga is 48 years old from the Democratic Republic of

Congo (DRC) and former leader of the Union of Congolese Patriots (UPC), an

armed militia in Ituri, northeastern Democratic Republic of the Congo (DRC).

Implicated in numerous human rights violations against civilians and the

murder of UN peacekeepers, he was arrested on authority of an arrest

warrant issued by the International Criminal Court (ICC) and is the first person

put on trial by the ICC in The Hague, Netherlands.

Germain Katanga also known as Simba. He is 30 years old, born

1978 from the Democratic Republic of Congo (DRC). He is a former leader of

the Patriotic Resistance Force in Ituri (FRPI). On 17 October 2007, the

Congolese authorities surrendered him to the International Criminal Court

(ICC) to stand trial on six counts of war crimes and three counts of crimes

against humanity. The charges include murder, sexual slavery and using

children under the age of fifteen to participate actively in hostilities.

Mathieu Ngudjolo Chui is 38 years old, born on 1970, from the

Democratic Republic of Congo (DRC). He is a colonel in the Congolese army

and a former senior commander of the National Integrationist Front (FNI) and

the Patriotic Resistance Force in Ituri (FRPI). On 6 February 2008, he was

arrested by the Congolese authorities and surrendered to the International

Criminal Court (ICC) to stand trial on six counts of war crimes and three

counts of crimes against humanity. The charges include murder, sexual

slavery and using children under the age of fifteen to participate actively in

hostilities. He is also known as Mathieu Cui Ngudjolo or Cui Ngudjolo.

Bosco Ntaganda is 35 years of age, born on 1973, and a citizen of

Rwanda. He became the military chief of staff of the National Congress for

the Defense of the People (CNDP), an armed militia group operating in the

North Kivu province of the Democratic Republic of the Congo (DRC). He is a

former member of the Rwandan Patriotic Army and allegedly a former Deputy

Chief of the General Staff of the Forces Patriotiques pour la Libération du

Congo (FPLC). He is also known as "the Terminator" and his surname is

sometimes given as Tanganda, Ntanganda, Ntangana, Ntagenda, Baganda

or Taganda.

Jean-Pierre Bemba Gombo is 46 years old born on 1962. He was the

former Vice-President of the Democratic Republic of the Congo and on May

25, 2008, was arrested during a visit to Belgium under a sealed warrant under

accusations of war crimes and crimes against humanity committed in CAR.

Ahmad Muhammad Harun is 44 years old, born on 1964. He is one of

two Sudanese men wanted by the International Criminal Court (ICC) for war

crimes and crimes against humanity in Darfur. Despite international pressure

on the government of Sudan to surrender him to the ICC, Haroun continues to

serve as the Sudan's Minister of State for Humanitarian Affairs. In September

2007, he was appointed to lead an investigation into human rights violations

in Darfur.

Ali Muhammad Ali Abd-Al-Rahman is 51 years old, born on 1957, a

citizen of Sudan. Ali Muhammad Ali Abd-Al-Rahman, commonly known as Ali

Kushayb, is a former senior Janjaweed commander and current International

Criminal Court (ICC) war crimes suspect. He was known as aqid al oqada

("colonel of colonels") and was active in Wadi Salih, West Darfur. On

February 27, 2007, Prosecutor Luis Moreno-Ocampo charged Kushayb with

crimes against civilians in Darfur during 2003 and 2004, accusing him of

ordering killings, rapes, and looting. An ICC arrest warrant issued for him and

Ahmed Haroun, his co-defendant, on May 2, 2007.

Defendants were presented, all were males and five of which are

Ugandan located East Africa. ICC’s focus was on countries with on-going

conflicts such as Darfur and Northern Uganda. Most of the indictments of ICC

are also from Africa: Joseph Coney of Lord Resistance Army of Uganda,

Charles Taylor of Liberia, and Muhammad Harun of the Sudan and Ali

Mohamed Ali Abdelrahman of the Janjaweed of Darfur. In addition, they also

issued an arrest warrant on two Sudanese who have been indicted for their

involvement in crimes against humanity and war crimes in Darfur. These are

Ali Mohamed Ali Abdelrahman and Muhammad Harun. The ICC clarify that

they handle crimes that has reasonable grounds that the suspects were

involved. And Even if Sudan is not a state member to the ICC, it however, is

legally bound to respect the ruling of the court as the prosecution is based on

the request of the UN Security Council. Failure to hand over the suspects

could lead to further measures by the UN Security Council.

Problem 5: What is the status of the cases already resolved by the

International Criminal Court?

The status of the investigations and prosecutions by the International

Criminal Court, As of July 2008, the International Criminal Court has launched

investigations into four situations: Northern Uganda, the Democratic Republic

of the Congo, the Central African Republic and Darfur (Sudan). The Court has

issued public arrest warrants for twelve people; six of them remain free, two

have died, and four are in custody, awaiting trial.

As of October 4, 2007, the Office of the Prosecutor had received 2889

communications about alleged crimes in at least 139 countries. After initial

review, however, the vast majority of these communications were dismissed

as “manifestly outside the jurisdiction of the Court”.

The Figure shows that in December 2003, the government of Uganda,

a state party, referred to the Prosecutor the situation concerning the Lord’s

Resistance Army in Northern Uganda. The Prosecutor decided to open an

investigation into this matter on July 29, 2004, and on July 5, the situation

assigned to Pre-Trial Chamber II. The prosecutor opened the investigation on

July 2004.

The first is Joseph Kony, one of the inductees. Kony refused to sign

the peace agreement at the end of the day in Juba, South Sudan because of

fears he can be arrests because of warrant from the International Criminal

Court in De Hague, Netherlands.  Now his troops of un-merry men is causing

havoc in the Democratic Republic of Congo, the Central African Republic

where over 300 were abducted recently and still in Southern Sudan, but there

have been no activities in Northern Uganda. It is unknown whether Kony has

any assets that affected by this designation. He remains free until now.

Vincent Otti, deputy-leader of the Lord's Resistance Army. On 8 July

2005, a Pre-Trial Chamber of the International Criminal Court found that there

were reasonable grounds to believe that Otti had committed war crimes and

crimes against humanity, and issued a sealed warrant for his arrest. In

October 2007, sources in the Ugandan military reported that "Otti was killed

on or around 8 October 2007 during a high command meeting that Kony

convened at his base camp in Garamba", following a disagreement with Kony

over the peace process.

LRA commander Raska Lukwiya committed the crime against

humanity of enslavement and the war crimes of cruel treatment of civilians,

attacking civilians and pillage

LRA commander Dominic Ongwen committed the crimes against

humanity of murder, enslavement and serious bodily injury and the war

crimes of murder, cruel treatment of civilians, attacking civilians and pillage

On March 2004, the government of the Democratic Republic of the

Congo, a state party, referred to the Prosecutor “the situation of crimes within

the jurisdiction of the Court allegedly committed anywhere in the territory of

the DRC. On June 2004, the prosecutor decided to open an investigation into

the matter and on 4 July, the case allocated to Pre-Trial Chamber I. On 17

March 2006, Thomas Lubanga, former leader of the Union of Congolese

Patriots militia in Ituri was transferred to the ICC. Lubanga's trial was due to

begin on 23 June 2008, but it was halted on 13 June when the Court ruled

that the Prosecutor's refusal to disclose potentially exculpatory material had

breached Lubanga's right to a fair trial. Two more participants in the Ituri

conflict, Germain Katanga and Mathieu Ngudjolo Chui, have also surrendered

to the Court by the Congolese authorities. Katanga, the former leader of the

Ngiti-majority Front for Patriotic Resistance of Ituri militia, was transferred to

the Court on 17 October 2007; Ngudjolo, former leader of the National

Integrationist Front, was transferred to the Court on 6 February 2008. The

hearing to confirm the charges against them began on 27 June 2008. Bosco

Ntaganda, another fugitive from the DRC and currently in search to address

his case over the court.

In December 2004, the government of the Central African Republic, a

state party, referred to the Prosecutor “the situation of crimes within the

jurisdiction of the Court committed anywhere on the territory of the Central

African Republic since 1 July 2002, the date of entry into force of the Rome

Statute.” The Court of Cassation of the Central African Republic investigating

charges committed by Congolese Vice-President Jean-Pierre Bemba said

that they could not secure the arrest of the suspects, despite international

arrest warrants, and requested the ICC to take responsibility. The allegations

against Bemba date to when his Movement for the Liberation of Congo rebel

army invited by Patasse into the capital Bangui to fight rebels who were

fighting against Patasse.

On 31 March 2005, the United Nations Security Council passed

Resolution 1593, referring “the situation prevailing in Darfur since 1 July

2002” to the Prosecutor. The Prosecutor opened an investigation into this

situation on June 6, and the case allocated to Pre-Trial Chamber I. In

February 2007 the Prosecutor announced that two men — Sudanese

humanitarian affairs minister Ahmad Muhammad Harun and Janjaweed militia

leader Ali Kushayb — had been identified as key suspects, accused of war

crimes and crimes against humanity. On 2 May 2007, the Court issued arrest

warrants for the two men. However, Sudan claims the court has no

jurisdiction over this matter, and refuses to hand over the suspects.

List of people indicted by the International Criminal Court

These are the list of people who have been indicted by the

International Criminal Court (ICC), which was established in 2002 to

prosecute individuals for genocide, crimes against humanity, war crimes, and

the crime of aggression. The list includes all individuals for whom the court

has issued public arrest warrants as of 14 July 2008.

Table 4. List of people indicted by the International

Criminal Court

Name   Situation   Indicted   WC   CAH   G   Transferred

to the ICC  Current status  

Arrest

warrant

Joseph Kony Uganda 8 July 2005 Yes Yes No Fugitive

8 July 2005 as

amended on

27 September

2005

Vincent Otti Uganda 8 July 2005 Yes Yes No Died in 2007 8 July 2005

Raska Lukwiya Uganda 8 July 2005 Yes Yes NoDied on 12

August 20068 July 2005

Okot Odhiambo Uganda 8 July 2005 Yes Yes No

Fugitive,

rumored to have

died in April 2008

8 July 2005

Dominic Ongwen Uganda 8 July 2005 Yes Yes No Fugitive 8 July 2005

Thomas Lubanga DRC10 February

2006Yes No No 17 March 2006

In ICC custody;

trial halted on 13

June 2008

10 February

2006

Bosco Ntaganda DRC22 August

2006Yes No No Fugitive

22 August

2006

Ahmed Haroun Darfur 27 April 2007 Yes Yes No Fugitive 27 April 2007

Ali Kushayb Darfur 27 April 2007 Yes Yes No Fugitive 27 April 2007

Germain Katanga DRC 2 July 2007 Yes Yes No 17 October 2007In ICC custody,

awaiting trial2 July 2007

Mathieu Ngudjolo

ChuiDRC 6 July 2007 Yes Yes No 6 February 2008

In ICC custody,

awaiting trial06 July 2007

Jean-Pierre Bemba CAR 23 May 2008 Yes Yes No 3 July 2008In ICC custody,

awaiting trial23 May 2008

LEGEND:

WC = War Crimes

CAH = Crimes against Humanity

G = Genocide

ICC = International Criminal Court

DRC = Democratic Republic of Congo

CAR = Central African Republic

The ICC has opened investigations into four situations: Northern

Uganda, the Democratic Republic of the Congo (DRC), the Central African

Republic (CAR) and Darfur. The court has issued public arrest warrants for

twelve people; six of them remain free, two have died, and four are in

custody.

The ICC's first trial, of Congolese militia leader Thomas Lubanga, was

due to begin on 23 June 2008 but it was halted on 13 June when judges ruled

that the Prosecutor's refusal to disclose potentially exculpatory material had

breached Lubanga's right to a fair trial. Three other individuals — Germain

Katanga, Mathieu Ngudjolo Chui, and former Vice President of the DRC

Jean-Pierre Bemba — are in the ICC's custody, awaiting trial.

All twelve of the indicted individuals have charged with war crimes, and

ten of them have charged with crimes against humanity. To date, no one has

indicted for genocide, and the court cannot currently prosecute people for the

crime of aggression.

This only shows that the court as of now the ffiled cases from 2005-

2007 were remained unresolved. It will prove that despite of having a court

responsible in trying violation of human rights cases; there are still

circumstances where in liable persons remained unpunished. There is a hope

that ICC indictment would deter other people from committing similar acts of

international crime by inducing ICC effect. That ICC indictment will have

‘effect’ but will it be ‘effective’ to bring justice and peace. The ICC indictment

will surely have an effect be it negative or positive on the ground, but ensuring

it remains effective in terms of serving justice and contributing to peace is

another challenge. Then will the ICC indictment be effective in serving justice

and bringing peace. Arguably, the ICC indictment would consolidate the

efforts of the African Union and the United Nations in Sudan. Any one should

have to be responsible for their actions, and therefore accountable for their

misdeeds and crimes. Victims also have the right to justice. But not at all cost,

not at the cost of more deaths, more rapes and more victims. Prosecutors do

not prosecute criminals because they think they are criminals. In a decision

making of prosecution, they do not only take into account the crime or the

victims. A range of factors such as the deterrence effect, contribution to

peace and stability, timing as well as law and order are vital in the equation of

decision to prosecute. This is particularly true when the prosecution is of

political in nature and a group of people who can affect the law and order of

the country, the peace and stability of a community are prosecuted. That is

the reason why a mass amnesty is some time granted to a group of criminals.

Of course amnesty does not work on the case of crimes against humanity,

war crime and the crime of genocide. And in most cases amnesty may

amounts impunity. But the question is still is delaying justice impunity.

Chapter V

Summary of

Findings, Conclusion and Recommendation

This chapter presents the summary of findings, conclusions and

recommendations of the Study.

The study analyzed the establishing of the International Criminal Court

in the international arena in deterring crimes and questing for justice from

2002 to 2005. Specifically, it sought to answer the following questions:

1. What is the International Criminal Court?

2. What are the crimes under the jurisdiction of the said court?

3. How can the International Criminal Court acquire jurisdiction over

said cases?

4. Who are the complainants and defendants involved in the said

cases?

5. What is the status of the cases already resolved by the International

Criminal Court?

The study focused on the five assumptions which served as a

guideline to the researchers and to the presentation of the study. The

researchers have assumed that:

1. That the International Criminal Court rests on the premise that there

are universal moral standards which apply to human behavior.

2. That this court can deter crime, end conflict and bring about justice

through the assignation of criminal responsibility to individual human agents.

3. That the trials conducted by the International Criminal Court could

accomplish its task and lead to reconciliation.

4. That this study would awaken the justice system of individual

countries of the need to prosecute individuals who perpetrate the heinous

crimes anywhere in the world.

5. That the International Criminal Court would put to work fundamental

judicial principles and values, like accountability, due process, equality before

the law and the protection of basic human rights.

Descriptive and electronic research method was used in this research

wherein a careful study of different available documents and data such as the

Rome Statute of the International Criminal Court, International Law, existing

provisions of laws concerning the study, cases from the website of the

International Criminal Court, theses, as well as literature and journals that

was made.

Findings

After conducting a thorough research regarding the International

Criminal Court’s Solemn Guarantee from Universal Human Rights, the

researchers arrived at the following findings:

1. Filed cases from 2005-2007 were remained unresolved. It will

prove that despite of having a court responsible in trying violation of human

rights cases; there are still circumstances where in liable persons remained

unpunished.

2. The tooth of ICC was insufficient in promoting Human Rights and

imposing sanctions to the accused.

3. There are still inconsistency in defining and setting jurisdiction upon

cases.

4. The ICC indictment will surely have an effect be it negative or

positive on the ground, but ensuring it remains effective in terms of serving

justice and contributing to peace is another challenge. Then will the ICC

indictment be effective in serving justice and bringing peace..

5. Slow prosecution and weak execution of policies became the

primary reason why piles of cases remained untouched. Some think that the

ICC is guilty of exaggeration and hypocrisy with the indictment because of

how those responsible for the crises in Iraq and Afghanistan have not been

prosecuted.

Conclusion

From the findings of the study, the researchers concluded the

subsequent statements:

1. The International Criminal Court was in the process of determining

whether it is effective or not. Based on the cases gathered it proves that at

present, there are still unresolved pending cases which are still filed and

under investigation.

2. The Court is designed to complement national judicial systems and

national courts will continue to have priority in investigating and prosecuting

crimes within their jurisdiction. The International Criminal Court will act only

when national courts are unable or unwilling to exercise jurisdiction based on

the criteria provided in the Rome Statute. The Court may impose a penalty of

imprisonment for a specified number of years, which may not exceed a

maximum of 30 years or may order a fine and forfeiture of proceeds, property

and assets derived directly or indirectly from the crime. Consistent with

international human rights standards, the International Criminal Court has no

competence to impose death penalty.

The International Criminal Court will be of particular importance

because it will serve as a permanent deterrent to people considering the

commission of crimes which threaten the peace, security and well-being of

the world. The Court with its wider jurisdiction than existing ad hoc tribunals

will ensure that most serious offenses of global concern do not go unpunished

no matter who committed them. Protection of victims as well as reparations

established in the Statute serve as solemn guarantees in the promotion and

protection of universal human rights and rule of law.

3. It reason behind why problems exist in defining their jurisdiction of

the court cited in the Rome statute over the crimes. This study revealed that

the International Criminal Court is the first ever treaty based international

criminal court and a permanent institution which have the power to exercise

its jurisdiction over persons for the most serious crimes of international

concern. Likewise, it is independent from the United Nations and different

from the International Court of Justice.

4. The relationship of the third world countries to the US had already

been deepening by the times they had experience as a colony of the US and

as of now we can’t deny the fact these countries or the leaders might be

influence by the US that the reason they had failed to sign the treaty. But at

present the some of this country was undergoing to a ratification of the statue.

5. There are still other problems that the court was facing until now,

that despite the promulgation and creation of the Rome Statue. The creation

of this court had been not an easy task. This involves risk of life and liberty

among the organs and also the credibility that the court stands for. It is

considered weak especially to the execution of the policies and the attainment

fast delivery of impartiality among constituents. And on how the complainants

would pursue the complaints if they would recognize the ICC as ineffective

organ. Communication is another problem, if the communications are alleged

and not yet proven by facts and investigation; this would make the body

incompetent.

Recommendations

After the intensive study, research and data gathering; the following

recommendations have been reached:

1. Future researchers should gather all the filed cases in ICC from the

date of ratification up to present.

2. Future studies should conduct a survey whether or not the citizens

are aware about the mission and purpose of ICC and be able to

interview one of the officers on how they address ignorance of ICC.

3. Be able to present complete list of departments and persons

involved in establishment of ICC.

4. Future studies should concentrate more on what measures are

being used to maintain and improve the current justice system

particular in human rights.

5. Students who wish to undertake the same study should focus more

on the strengths of ICC and future progress in dealing with the

international conflicts particularly in violation of Human Rights.

References

Books

Angeles, Leonora C. The quest for justice: obstacles to the redress of

human rights violations in the Philippines. Diliman, Q.C.: University

of the Philippines. Center for Integrative and Development Studies,

c1994

Bakker, Jan Willem the Philippine justice system: the independence and

impartiality of the judiciary and human rights from 1986 till 1997.

Leiden, Netherlands: Leiden University, c1997

Breitman, Richard & Wolfe, Robert U.S. Intelligence and the Nazis.

American University: Cambridge University Press, c2005

Feyter, K. de (Koen) Human rights: social justice in the age of the market.

Manila: IBON Books, c2005

Goldstone, Jack A. The Encyclopedia of political revolutions. Washington,

D.C.: Congressional Quarterly, c1998

Landman, W. A. Navorsingsmetodologiese Grondbegrippe. Pretoria:

Serva, c1988

Schabas, William A. An Introduction to the International Criminal Court.

Cambridge: Cambridge University Press, c2001

Thesis

Bann, Amy Jeanne the Non- Governmental Organization Coalition for an

International Criminal Court: A Case Study on NGO Networking.

c2000

http://209.85.173.104/search?

q=cache:eYsY_Oj2Zz4J:scholar.lib.vt.edu/theses/available/etd-

07202000-16380051/unrestricted/AmyThesis.pdf+The+Non-

+Governmental+Organization+Coalition+for+an+International+Criminal

+Court:

+A+Case+Study+on+NGO+Networking&hl=en&ct=clnk&cd=2&gl=ph

Estrada, R.J., ET. Al. Cases of Bureaucratic Malady in the Province of

Cavite filed with the Sandiganbayan from 1987 – 1996 Aklatang

Emilio Aguinaldo Archives: DLSU-D, 1998

Kuznetsova, Ekaterina the International Criminal Court: A Dangerous

Experiment or a Step toward a more accountable global

environment. Universidad San Martin de Porres: Peru, c2000

http://www.un.org/icc

Maiyo, Joshua Justice in Conflict: The Suitability of International Justice

in Conflict Resolution - The International Criminal Court in

Northern Uganda. University of Amsterdam, c2006

http://www.tesionline.it/default/tesi.asp?idt=14890

Articles

Ariston, Pedro Roman M. Taking the Most Serious Crimes of International

Concern Seriously. Volume No. 47 Issue No. 4 Ateneo de Manila

University, c2000

http://www.ateneolawjournal.com/articlemain.php?id=63

Kim, John H. The crime of aggression against Iraq. c2003

http://www.codepink4peace.org/downloads/CrimeofAggression-

Iraq2.pdf

Documentary

Goldberg, Andrew the Armenian Genocide. c2006

http://www.learngenocide.com/educators_parents.php

Internet

http://huntforjustice.com/4-icc-en.php

http://www.icc-cpi.int/library/about/ataglance/ICC-Ataglance_en.pdf

http://www.flonnet.com/fl2017/stories/20030829007900400.htm

http://www.un.org/law/icc/statute/romefra.htm

Magazine

India's National Magazine, 2003