International Criminal Court and National Criminal Justice on International Crimes - Assignment Example

Number: ial Day: Time: Word count: 3000 Question A In the Rome Statue article provides the establishment of an International Criminal Court1. The established International Court shall be an institution that is permanent and will have the authority to implement it jurisdictions over people who have committed serious crimes that are of international concern. The crimes that will be handled by the International Criminal Law will be those that are complementarity to the Jurisdiction of National Criminal. These statues provision shall govern the function and jurisdiction of the court. As the establishment of the international Court was through the Rome Statues and it’s drafting involved most of the countries. The criminal international court has a jurisdiction on cases that are of concern to the international while at the same time it has a power that is limited by complementarity. This is to mean that for any criminal act that is international concern, the International Criminal Court’s jurisdiction comes second after the National jurisdiction2. In the statues introduction, the parties of the state declared their wish to set up a court that is permanent to bring an end to the impunity of these crime perpetrators which will contribute to the prevention of such crimes3. Furthermore the statue will ensure effective prosecution of the crime perpetrators through taking actions at the national level and by international cooperation enhancement4. In addition, the permanent court will be complementarity to the jurisdiction of the national criminal5 in case of the efficiency or unavailability of the trial procedures. The complementarity main idea is for the sovereignty of the State to be maintained in which it is every states duty to exercise the jurisdiction of its criminals responsible for crimes that are referred as international6. The complementarity basic is also to improve the jurisdiction of the national over the forbidden core crimes in the Statue. Furthermore, it is to improve the legal system of the nation so as to attain the prosecuting and the investigative needs of a person who committed one of the listed Statue international crimes. Since the national and international criminal courts have a jurisdiction that is concurrent over crimes that both the humanitarian law and the international criminal law, there is a possibility of confusion between the two jurisdiction. However, for the former Yugoslavian International Criminal Tribunal and Rwanda International Criminal Tribunal there will be no conflict as the both the tribunal are measures that were taken by the United Nations Security Council. Both the two tribunal statues provides that tribunal of the international will have primacy over the court of a nation7. While the complementary principle provided in the Statues of the Rome shows that the courts of the nation have primacy over the international court to exercise jurisdiction over the Statues prohibited crime. This is to mean that the, international criminal court have no power to exercise over any international crime unless the concerned state in unwilling or unable to prosecute or investigate the crime8. According to article 17(1), there are four scenarios in which the international criminal court can have no power to admit a case. The first scenario is if the national court is prosecuting or investigating the case. The second scenario is if the national court has been investigating over the case and has decided not prosecute the accused person. The third scenario is the concerned person has already been tried on the case. And the forth scenario is that the case has no sufficient grounds for the international criminal court to take further action. For the international criminal court to accept the case, the State should be unwilling or unable to prosecute or investigate the case. The inability criteria are provided clearly in Article 17(3) in a way that is more objective. The inability situation does not only mean national disaster that causes a considerable or total collapse of the judicial system of the nation or the conflict of national armed situation that is running for years for example as experienced in the Rwanda and former Yugoslavia during the 1990s. However, inability situation also mean a situation in which the judicial system of the nation have collapsed substantially or totally or are unavailable and the State are not in a position to handle criminal proceedings. The inability may also refer to inexistence of a law that is substantive or an existing legislation that has no qualification or meet the standards of the international human right that is recognized. Article 17 talks of three types of existing unwillingness. The first is that the court proceeding are in the process or the decision of the nation were made to protect the perpetrator. When the international criminal court determines weather the nation was unwilling, it will majorly base its decision on factors behind the states decision-making or the trial procedure. The second consideration is that there have been baseless delays in the case proceedings which are inconsistence in various circumstances with intention to bring the perpetrator to justice. However, the Statue does not provide the definition of unjustified delay but allow the ICC to decide on that. The third is that the case proceedings are not being carried out impartially or independently and are being conducted in a way that is inconsistence with bringing the perpetrator to justice. This is mainly because the Statues of the Rome needs all the concerned State including the countries that are not part of the Rome Statue including the innocent presumption, the rights to have public hearing, non- retroactivity personae ratione, choose the lawyer at the free will of the accused, ne bis in idem, free legal assistance acquisition, and the right to remain silent, to be informed, not to be forced to self- incrimination, and right top examine the witness. The major role of the complementarity principle is the encouragement of the parties of State to put into practice the statues provision, strengthening the jurisdiction of the nation over crimes that are serious. The State sovereignty will not be affected as long as the states legal system can effectively prosecute and investigate the prohibited serious crimes in the Statute and free of any meddling by the ICC. However, if any State is not willing or unable to prosecute or investigate a case, the international criminal court will appeal to the complementarity principle to admit the concerned case and implement jurisdiction over it. Therefore, the complementarity principle has an effect on the implementation of the substantive international criminal law of the State as well as the State’s implementation of jurisdiction in many ways. For the State to avoid the interference with the international criminal law, it has to set up a legal system in line with the Statue requirement. Question B The ICTY was started due to the frustration after exhausting all the existing measures to try and stop the brutal war , except the step that took a lot of courage, and that the ICTR started due to guilt of doing nothing while half a million people were being killed within hundred days9. The doubt surrounding the ad hoc tribunal establishment was exacerbated the information of the vote of Rwanda against Resolution 95510, which formed the ICTR, even though it later accepted to cooperate with the prosecution of the tribunal. Jurisdiction was granted to the ICTY over the 1949 Geneva Convention’s grave breaches, the war custom or the law violation, crime against the humanity and genocide. As the crisis of Rwanda was an internal conflict, although there was definitely international involvement and pressure, the establishment of the jurisdiction of ICTR was as including crime against humanity, genocide and the breach of Article 3 common to the Geneva Convections of the 1949 and additional protocol II11. In spite of cynicism that are significant with respect to the spent money and tribunal ability to obtain reconciliation and true peace, as well as challenges in arresting those that the ICTY have indicted,12 both the tribunals have made progress that are historic in the international humanitarian law. For example, at the ICTY, enslavement and rape have been identified as crime against humanity13and the president was indicted while still holding the office. Some of the people who were indicted surrendered to the Court voluntarily; this incident that most of the observers have been shocked to witness14. In reference to the Rwandan genocide, its former PM admitted that he played a role on the murder of people amounting to more than half a million15. In the year 1998, the decision of Akeyesu of the ICTR was the international tribunal first conviction, including the Tribunal for Nuremberg, for the genocide crime16. The ICTR and ICTY statutes placed the duties and roles of the prosecutors in details that are much grater than any same body that previously existed. Unlike the Nuremberg team of prosecutors, the prosecutors at the ICTR and ICTY are not national teams of military layers with procedural and legal matter matters of shared assumptions that are separate17. The team of prosecution comes from legal and justice system that has a background that is divers. The UN secretary of council has the responsibility of appointing the ICTY chief Prosecutor to act for a period of four years as an entity that is independent and cannot receive or seek guide from the national government18. The office of the prosecutor ifs different from the tribunal itself, however, any indictment that is proposed must be approved by the ICTY judges19. Therefore, the discretion of the prosecutor as to who is to be prosecuted by the tribunal is tempered by the oversight of the judicial. The prosecutors of ICTR is likewise an organ that is independent that dose not receive or seek direction from the government or any other sources20. The dissimilarity among the tribunals relates to the jurisdiction of the subject matter, as Rwanda was basically a conflict that was internal. However, the role of the prosecutor is similar and in every case the chief prosecutor has a responsibility for the tribunal. The Nuremberg Tribunals are considerably different from the ad hoc tribunal which was a military, not truly international, multilateral court. It was composed of victorious associates as part of a political settlement, while the functioning of the ICTY started while the Balkans conflict continued to range. In Nuremberg most of the defenders were in custody, and there was permit of the trials in absentia. The Allies had a prosecutor’s staff of only eleven simple and one hundred rules of evidence. And Nuremberg Tribunal had no right of appeal21. The ICTR and ICTY demonstrate a progress of the concept of a prosecutor that is independent. Although having a political authority that is grater than their counterparts who are Nuremberg, the tribunals are still the make of the United Nation Secretary Council and are obliged to it for enforcement and funding assistance. And there is judicial oversight as because authorization is needed by the prosecution. The ICTR and ICTR spent a negotiation and establishment preparation that took them two years. Hence, confirming a permanent ICC necessity. The permanent court will not only avoid the process of time consuming establishment, but it may also deal with incidents of small-scale that will not acquire the political will to form another tribunal that is ad hoc. The general assembly managed to receive a draft statute, which contained the provisions of the international criminal court22. In the year 1996, the international criminal court foundation committee was founded. And there was the submission of an amended draft statute in the year 1998 setting the ground in Rome for a conference of five weeks in the month of June. In the country of Colombia, the conflict that was experienced between the Government of Colombia and the Revolutionary Armed Forces and other armed military groups has resulted to the violation of human right that has been very unpleasant. Some of these violations may fall in the international crime category. However, despite the preliminary examination of the ICC that has been prolonged, the ICC has never started a full investigation in Colombia. While in Guinea, the ICC is also reluctant from moving forward into full investigation. The case under investigation is about the Conakry massacre of protesters which was in the year 2009. This case also included allegations on sexual violence, persecution, and inhuman treatment. The prosecutor’s office has visited Guinea in several occasions but has been reluctant in moving forward the international criminal court intervention due to the complementarity consideration that is on going. This has majorly crated confusion if the national criminal system is to undertake the prosecution or the international criminal court. Question C First, it is vital to remember from the beginning that complimentarity, as situated in the Rome Statute, is mainly in relation to the jurisdictions of domestic criminal23. This has ignited some debates as to whether some rooms may be left for the accountability mechanism of the nation that may fall short of proceedings in criminal. While there is always an interpretation room in that respect, is seems that complementarity dose not provide the local solution much flexibility in a sitting of a post conflict as most of the people would want to think24. However, it can be argued that there is a little consideration room for alternative mechanism within a complementarity principle strict construction25. In deed one has to remember that the international criminal court dose not decide on the local justice legality mechanism, it just evaluates if a given mechanism can be an obstacle to a particular case exercise of jurisdiction. This is to be understood that the mechanism that is local will continue to be operational for all the other cases, whatever is decided by the international criminal court. Secondly, when a person looks at the practices of complementarity at the international criminal court, it should be identified that the complementarity legal framework is definitely not a simplicity example that cannot be conducive to a pedagogic effect of the states provision26. One problem is that two organs of the court are applying complementarity, this is mainly the OTP and Chambers, with no latter’s assessment of the judicial control of the complementarity at the phase of preliminary examination. Going into more details on the application of complementarity, people have to understand that the interpretation of the legal frame work have not always been adopted by the chamber that is favorable in finding a balance between motivating the institutions that are local to carry on in the local crime prosecution and respect of the local institutions. In term of the local prosecution respect, the chambers have adopted a restrictive test that is fair with the aim to determine the constitution of the same for the purpose of article 17. It is to be admitted that it is clear from the case law the exact meaning of this. Even after the Libya decision clarification, the case of the Lubanga showed the extent of the approach. Indeed Lubanga for serious domestic crimes which included murder, and torture, however, the case was still categorized as admissible because it was not the conduct that was specific that was under investigation by the international criminal court27. This dose not provide much room for the discretion of domestic prosecutorial for the Rome Statute goal to be achieved for bringing an end for the impunity of the crimes that are international. This is some how ironic given the hard time faced by the ICC prosecutor for not eventually charging sexual violence. This is evidence that finding a balance that is right in the discretion of prosecutorial is not an easy exercise. Still on the same line, the Kenya situation pre trial chamber had no patient with the country in providing them a chance to implement mechanism of accountability for the post electoral violence. However, the prosecution may have got some good reason for not trusting Kenya. However, on principle, manly when a person witnesses the time taken by the international criminal to investigate and prosecute on the cases that are handful which makes the court not to be credible when judging the efforts of the domestic judicial28. It could be wise for a more realistic time frame to be envisioned before the stepping in of the ICC. The gap between the broad complementarity assessment undertaken by the OTP at the phase of the preliminary assessment and the firm approach advocated by the OTP at the phase of the case is another problem that is possible. This results to a given situation in which a good number of specific cases in a given situation have a possibility of not attaining the threshold of admissibility will certainly be admissible because of lack of the institution of specific against a given individual like in other situation like that of Cote d’Ivoire cases are proceeding as admissible29. This happens in spite of the number of domestic prosecution that are on going that will in real situation render the situation as inadmissible as a whole if there is an authorization for an investigation to be opened were to be requested. There is no existence of an ideal way for things to be balanced out. One of the possible solutions that can be considered is one that was anticipated by the Gbagbo team of defense in the year 2013 and was greatly applied in the Senussis admissibility decision in October 2013. It argues that the considered conduct should be that which relates to crime collective dimension. This will majorly work in the case of the leaders prosecution for there general role in the commission of the crime30. For example, in the case of Gbagbo, the case will be inadmissible if the proceedings of domestic are related to the person’s alleged role in the violence of the post- election. This is as defined in the common plan presented by the prosecutor in his charges document. This avoids discussions that are casuistic on whether a given incidents or act are availed in the two proceedings. Bibliography Amerasinghe, Chittharanjan, Jurisdiction of International Tribunals (Kluwer Law International, 2002). Arbour, Louise, ‘The Prosecution of International Crimes: Prospects and Pitfalls,’ (1999)1 Washington University Journal of Law and Policy. Boot, Machteld B,, Genocide, Crimes against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court (Intersentia, 2002) 229. Brown, Bartram S, Research Handbook on International Criminal Law (Edward Elgar Pub, 2011). Cheriff, Bassiouni M,, International Criminal Law: Sources, Subjects and Contents (M. Nijhoff Publishers, 3rd ed, 2008). Dominic,, The Permanent International Criminal Court: Legal and Policy Issues (Hart, 2004) 128. 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