International Criminal Court

The International Criminal Court (ICC), also called the International Criminal Court, is a permanent international court of justice whose mission is to try people accused of committing crimes of genocide, war, aggression and crimes against humanity. It is important not to confuse it with the International Court of Justice, a judicial body of the United Nations, since the ICC has international legal personality, and is not part of the United Nations, although it is related to it in the terms established by the Rome Statute, its founding rule. It is headquartered in the city of The Hague, in the Netherlands.

History

The political and doctrinal foundations behind the establishment of an international court for the prosecution of crimes are long-standing in the West. Already in 1919, once the First World War had ended, the victorious countries wanted to try Kaiser Wilhelm II of Germany for the crime of aggression, but an agreement on the matter was never reached. Its most direct original foundation is found in the international tribunals established in Nuremberg and Tokyo to try war criminals from Germany and Japan for crimes committed during World War II. Despite the fact that the first of these has been the subject of serious criticism —both for criminally punishing legal persons such as the S.S. or the Gestapo, or for not applying the principles of temporality and territoriality of the crimes—were together considered a great advance in the field of international justice. Subsequently, at the dawn of the United Nations Organization, the Security Council recommended to a panel of experts that the possibility of establishing a permanent court of justice in criminal matters be explored, similar or complementary to its main judicial body, the Court Justice International. However, after long academic and political debates, the idea did not prosper until the serious events of the Yugoslav (1991-1995) and Rwandan (1994) genocide. Partly because of these tragic events, and because of the development reached by the International Law of Human Rights and International Criminal Law, a Diplomatic Conference of United Nations Plenipotentiaries on the establishment of an International Criminal Court was held in the city of Rome, in whose final act, signed on July 17, 1998, the International Criminal Court was established. It is thus the first international judicial body of a permanent nature in charge of prosecuting and condemning the most serious crimes, committed by individuals, against International Law.

Aware that all peoples are united by narrow ties and their cultures form a common heritage and with concern that this delicate mosaic can be broken at any time,
Bearing present that, in this century, millions of children, women and men have been victims of atrocities that defy the imagination and deeply reflect the conscience of humanity,
Recognizing that these serious crimes constitute a threat to the peace, security and well-being of mankind,
Affirming that the most serious crimes of relevance to the international community as a whole should not be punished and that, to that end, action must be taken at the national level and international cooperation should be intensified to ensure that they are effectively subjected to justice...

Rome StatutePreamble

Organization

The Court is made up of four (4) bodies, two (2) semi-autonomous offices and The Trust Fund for Victims (TFV). The bodies are: Presidency, Judicial Divisions, Prosecutor's Office and Secretariat.

• President: Judge Piotr Hofmański (Poland).
• First Vice President: Judge Robert Fremr (Czech Republic).
• Second Vice-President: Judge Marc Perrin de Brichambaut (France).
• 18 judges organized within the Division of Issues-Preliminary, the Trial Division and the Appeals Division.
• Chief Prosecutor: Karim Khan, Great Britain.
• Deputy Mayor: James Stewart (Canada)
• Secretary: Peter Lewis (Great Britain).

The semi-autonomous offices are the Office of the Public Advocate for Victims and the Office of the Public Advocate for the Defense.^{[citation needed]}

Assembly of States Parties

The Assembly of States Parties is the legislative body of the International Criminal Court and is charged with overseeing its management. It is composed of representatives of the States that have ratified and acceded to the Rome Statute. Due to the principle of independence of the Court, and to guarantee its political impartiality, the Assembly of States Parties is not an organ of the ICC. The ASP functions, in turn, as the legislative arm of the Court that likewise guarantees its financing. According to the International Criminal Court, on its website, updated until November 2019, 123 countries have signed the Rome Statute of the International Criminal Court, being divided by geographical areas, as follows: African countries, Asian countries, Eastern Europe, Latin America and the Caribbean and Western Europe and other countries. One of the ideas that led that Assembly of States Parties was to turn the Court into a truly international body. Despite the criticism that the ratification rules that do not allow reservations aroused at the time, a high number of quorum was established for it to take office (60 ratifications). Ratifications were achieved in four years, and the Statute entered into force on July 1, 2002.

Operation

The Court functions as an autonomous body from any other power or State. However, this does not prevent him, in the performance of his duty, from counting on the collaboration of the powers that be.

Crimes

The crimes that the Court can hear are limited to those indicated in Article 5 of the Rome Statute, which are:

• Genocide (art. 6).
• Crimes against humanity (art. 7).
• War crimes (art. 8).
• The Crime of Aggression (art. 8 bis, as Resolution 6 of 11/06/2010 of the Assembly of States Parties to the Rome Statute).

Applicable principles

The operation of the Court is governed by a series of rules and principles that transform it into a special court, only to hear really particular cases. The applicable principles are:

• Complementarity: the Court functions only when a country does not judge or cannot judge the facts of jurisdiction of the court.
• Nullum crime sine lege: the crime must be defined at the time of the commission and that it is the jurisdiction of the Court.
• Nulla poena sine lege: a convicted person of the Court can only be punished as the Statute orders.
• Irretroactivity ratione personae: no one can be persecuted by the Court for acts or crimes committed prior to its entry into force.
• Individual criminal responsibility: legal persons shall not be subject to punitive pretension except as an aggravating act by unlawful association.
• The Court is not competent to prosecute those who were under 18 at the time of the alleged crime.
• Improcedence of official office: all are equal before the Court, even if the accused is, for example, Head of State.
• Accountability.
• Imprescriptibility.
• Responsibility for performance: it is not exempt from criminal liability.

Investigation and prosecution

The investigation of the facts that constitute crimes can be initiated in three ways (art. 13):

• By transfer of a State party to the Court of a particular situation;

• At the request of the United Nations Security Council (where the veto is invested)

• Of course by the prosecutor of the court.

Once the prosecutor handles this record, he can either file it or present an accusation that is reviewed by the Chamber of Preliminary Affairs, which reviews the records asserted by the prosecutor. If it is appropriate, the accusation is accepted, which becomes known by the Chamber of First Instance, where the trial is carried out. Once acquitted or sentenced, both the prosecutor and the sentenced in his case, can appeal or marry before the Court of Appeals.

Sentences and compliance

The penalties that the sentence can establish can be imprisonment for a term not exceeding 30 years, or (due to the seriousness of the crimes) life imprisonment, in addition to a fine and the confiscation of the species that are property of the sentenced (art. 77).

The sentence can be carried out in the country where the Court is located (Holland) or in another in accordance with the agreements that may be established between the Court and other countries.

Relationship with States and International Organizations

The Court, by virtue of the norms of the Statute that authorize it, may agree with different States on various forms of cooperation, investigation or enforcement of sentences. These pacts are usually considered complementary to the Statute for those who sign them. By way of example, in 2005, Austria signed a cooperation and support agreement for the investigations carried out by the Court.

Regarding the United Nations, Article 2 of the Statute states that: the Court will be linked to the United Nations by an agreement that must be approved by the Assembly of States Parties to this Statute and then conclude the President of the Court on behalf of the Court. In this sense, it is important to highlight the situation of the "inverted veto", established in the Statute. This modification changes the effect of the application by any of the countries that have a permanent seat in the Security Council, of their right to veto. This means that when using this right, it will only have the effect of preventing the Council from applying its right to request that the Court not initiate or suspend an ongoing investigation before the Court.

The case of Article 98

Article 98 of the Statute states:

1. The Court may refuse to proceed with a request for surrender or assistance under which the requested State must act in a manner incompatible with its obligations under international law with respect to the immunity of a State or diplomatic immunity of a person or a property of a third State, unless it obtains the cooperation of that third State for the waiver of immunity.

2. The Court shall not proceed with a request for surrender under which the requested State must act in a manner inconsistent with its obligations under an international agreement which requires the consent of the State to send to the Court a person subject to the jurisdiction of that State, unless the latter first obtains the cooperation of the State to submit its consent to the surrender of the person to the Court,

These rules establish a way to avoid compliance with the Court's resolutions when there is an international treaty that protects the national of another state that is not part of the Statute. In practical terms, the United States has made use of this situation that was expected to be exceptional in cases, establishing cooperation treaties with various countries in the terms indicated in the aforementioned article.

Starting in 2003, the United States decided to put an end to military aid to countries that decided not to agree to an exclusion treaty based on Article 98. This means of pressure, with which in June 2005 It had already managed to reach agreements with close to 100 countries, it was not accepted by several States that saw their military contributions by the United States affected. Among the latter are Brazil, Costa Rica, Ecuador, Peru, South Africa, Venezuela and other countries in Africa and Latin America.

The opposition of the federal government of the United States

The US federal government is fighting to immunize US citizens from prosecution for war crimes. Former President George W. Bush refused to sign any treaty related to the issue; he also withdrew the signature of the Rome Statute.

The United States federal government has signed Bilateral Immunity Agreements (BIAs) with 60 countries, mostly small countries, with fragile democracies and weak economies including Bhutan, El Salvador, India, Nepal, Colombia and Sri Lanka. (Colombia making the exception regarding military aid since it was in agreement with the United States of America). The US government withdrew military aid from countries that refused to sign these treaties, as did Brazil, Uruguay, Croatia, Lithuania and Malawi, to name a few.

Under the statute, the ICC can assume the national jurisdiction of a country to try crimes. The United States opposes this. The crimes prosecuted by the ICC are crimes of universal jurisdiction. In turn, the ICC statute protects the principle of universal jurisdiction. It will only prosecute when the country of which the offender is a citizen is unable or unwilling to do so.

Principle of complementarity

The principle of complementarity is the legal mechanism that establishes the interaction of the International Criminal Court with national jurisdictions. The Rome Statute contemplates in the tenth paragraph of the preamble, as well as in its article 1, that the International Criminal Court will have a complementary character to national jurisdictions.

This means that the Court will not be an exclusive jurisdiction; Thus, it will not be the only court that can hear international crimes under the Rome Statute. In this sense, the Statute itself contemplates that it will be the national criminal jurisdictions that will have formal primacy to hear such crimes.

Investigations

Investigations in progress:

Investigations of the International Criminal Court
Official investigations (Burundi, Central African Republic (2), Ivory Coast, Darfur, Sudan, Georgia, Kenya, Libya, Mali, Democratic Republic of the Congo, Uganda and Venezuela) Authorization to open requested research (no one currently) Current Preliminary Examinations (Afghanistan, Comoros, Guinea, Philippines, Iraq, Nigeria, Palestine and Ukraine) Closed preliminary reviews (South Korea, Honduras and Colombia)

Criticism

The Statute of the Court has not been signed or ratified, among other countries, by the United States, Russia, China, India, Israel, Cuba and Iraq, which denotes the policy of avoiding submitting international and international issues to supranational organizations. of leaving them to intergovernmental organizations or, simply, that they are not regulated.^{[citation needed]}

The particular case of the United States is the most controversial. On August 2, 2002, the US Congress passed the American Servicemembers Protection Act with the clear objective of weakening the Court.^{[citation required]}

This law prohibits U.S. federal, state, and local governments and agencies (including courts and law enforcement agencies) from attending court. Accordingly, the extradition of any person from the United States to the Court is prohibited, and agents of the Court are prohibited from conducting investigations in the United States.^{[citation required]}

The law also prohibits US military aid to countries that are parties to the Court. In addition, the President of the United States is hereby authorized to use "all means necessary and appropriate to secure the release of any [US or allied personnel] detained or imprisoned, on behalf of of, or at the request of the International Criminal Court", which represents the figure of sedition against International Law.^{[citation required]}

US Sanctions

On November 20, 2017, the Court's Prosecutor's Office requested authorization from the preliminary judges to initiate an investigation into alleged abuses committed in the Afghan war, in particular charges against 44 people for genocide and crimes against humanity or war in connection with the armed conflict in Afghanistan since May 1, 2003, as well as with respect to similar crimes related to the armed conflict allegedly committed on the territory of other States parties to the Rome Statute since July 1, 2002.

Since Donald Trump took office, his government's sanctions against the Court intensified On March 17, 2019, Secretary Mike Pompeo declared that he has given the order to withdraw entry visas to this country from employees of the Court in reprimand for the opening of an investigation. The prosecutor stated that she will continue to investigate "without fear and without favoritism." A week later, in April 2019, the ICC judges refused to investigate the abuses or crimes committed in Afghanistan alleging that an "investigation at this time would not serve the interests of justice" indicated a statement from the ICC. Regarding this decision, the NGO Human Rights Watch commented "it is a devastating blow for the victims who suffered serious crimes, without having obtained reparation" in a statement.

On September 27, 2019, the Appeals Chamber of the International Criminal Court scheduled a hearing to receive oral arguments in the appeals of the victims and the prosecutor. The hearing was held in open court from December 4 to 6, 2019. On March 5, 2020, the court unanimously authorized the attorney general to begin investigations into possible war crimes in Afghanistan. In June 2020, the Trump administration signed an executive order authorizing economic sanctions and travel restrictions against court workers directly involved in the investigation. In September, United States Secretary of State Mike Pompeo announced sanctions against the Attorney General Bensouda and against the head of the Jurisdiction, Complementation and Cooperation Division of the ICC Prosecutor's Office, Phakiso Mochochoko, and any individual or entity that supports the ICC and its members.

In 2021, the new president of the United States, Joe Biden, revoked the sanctions imposed on the International Criminal Court by his predecessor Donald Trump, considering them "inappropriate and ineffective," although Biden expressed his discrepancies by the agency's measures on the situation in Afghanistan and Palestine. The Secretary of State, Antony Blinken, indicated that an end to the "threats and imposition of economic sanctions and visa restrictions on members of the Court", in particular, the sanctions against the prosecutor Bensouda and the head of the division Mochochoko were lifted.