The idea of a permanent international criminal court emerged out of the debris of World War I and the defeat of the Germany and its former Emperor. Subsequently arraigned for a supreme offence against international and the sanctity of treaties under the Treaty of Versailles, there was a need for a special tribunal to try him, a need that was captured under the provisions of the Treaty of Versailles.
The treaty also envisaged the establishment of military tribunals of international composition to try persons charged with crimes against the nationals of more than one of the Allied or Associated Powers. However, no such military tribunal, or for that matter, a permanent international criminal tribunal was ever established.
The events of World War II changed all that as two ad hoc international military tribunals - the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East at Tokyo - were established to try individuals who committed war crimes, crimes against peace and crimes against humanity.
With the emergence of the United Nations in place of the League of Nations in 1946, the International Law Commission received the mandate to codify the legal principles that emerged during the Nuremberg and Tokyo trials. Beyond that, Progress proved slow and was eventually frozen out by the Cold War years.
The end of the Cold War provided a fresh impetus, towards the end of the 20th century, for the establishment of a permanent international criminal jurisdiction with universal scope. The ad hoc nature of the International Criminal Tribunal for the Former Yugoslavia (ICTY) -as well as that of the International Criminal Tribunal for Rwanda (ICTR coupled with the reality of the impunity with which serious crimes, many with international dimensions were being committed, led to the adoption of the Rome Statute of the International Criminal Court (ICC) in July 1998. The statute, under Article 16, was to enter into force after the deposit of the 60th instrument of ratification or accession: a mark that was reached on July 1st, 2002. Currently, about 114 countries, including Nigeria, have accepted the ICC jurisdiction.
The end of the Cold War provided a fresh impetus, towards the end of the 20th century, for the establishment of a permanent international criminal jurisdiction with universal scope. The ad hoc nature of the International Criminal Tribunal for the Former Yugoslavia (ICTY) -as well as that of the International Criminal Tribunal for Rwanda (ICTR coupled with the reality of the impunity with which serious crimes, many with international dimensions were being committed, led to the adoption of the Rome Statute of the International Criminal Court (ICC) in July 1998. The statute, under Article 16, was to enter into force after the deposit of the 60th instrument of ratification or accession: a mark that was reached on July 1st, 2002. Currently, about 114 countries, including Nigeria, have accepted the ICC jurisdiction.
The ICC has power to try persons accused of the most serious international crimes (i.e., genocide, crimes against humanity, war crimes and, if and when agreement on a definition can be reached, the crime of aggression).
Even though the roots of the Rome Statute can be traced back directly to the ICTY and ICTR, (two still existing tribunals) along with a draft statute prepared in 1994 by the International Law Commission. the ICC differentiates itself from the ICTY and ICTR in several legal and structural features.
First, unlike the Yugoslavia and Rwanda tribunals, the ICC is a permanent judicial body, the jurisdiction of which is not limited by any time limits, without prejudice to the principle of non-retroactivity. Secondly, unlike the jurisdiction of the ICTY and ICTR which are concurrent with national courts and at the same time have primacy over national courts – may at any stage of the procedure formally request the national courts to defer competence, the judicial activity of the ICC is intended only to complement that of national courts. It’s jurisdiction could only be activated when national courts are unwilling or unable genuinely to carry out the investigation or prosecution of a person accused of the crimes defined in the Rome Statute.
Another fundamental difference is that while the ICTY and the ICTR are subsidiary organs of the Security Council, and as such embedded in the United Nations, the ICC is designed to be independent to the extent that UN members are not, ipso facto, party to the Rome Statute establishing it. It is the Assembly of the State parties, and not the Security Council, as in the case of the ICTY and ICTR, that supervise the work of the ICC (except in those situations which have been referred to the Court by the Security Council itself).The Assembly is empowered to review the administration of the Court, approve its budget, and receive reports on its operation and procedure and even address instances of failure on the part of the States to cooperate with the Court. Again, while the ICTY and ICTR prosecutor is appointed by the Security Council based on a nomination by the Secretary-General, in the case of the ICC he or she is to be elected by the States parties.
Nonetheless, the ICC maintains significant links with the United Nations. The UN Security Council can refer situations in which one or more crimes appear to have been committed to the ICC Prosecutor acting under Chapter VII of the UN Charter, or by a State party to the Rome Statute. The Rome Statute also provides for UN participation in the funding of the ICC, together with States party, especially in relation to the expenses incurred in cases initiated through referral by the Security Council.
Another fundamental difference is that while the ICTY and the ICTR are subsidiary organs of the Security Council, and as such embedded in the United Nations, the ICC is designed to be independent to the extent that UN members are not, ipso facto, party to the Rome Statute establishing it. It is the Assembly of the State parties, and not the Security Council, as in the case of the ICTY and ICTR, that supervise the work of the ICC (except in those situations which have been referred to the Court by the Security Council itself).The Assembly is empowered to review the administration of the Court, approve its budget, and receive reports on its operation and procedure and even address instances of failure on the part of the States to cooperate with the Court. Again, while the ICTY and ICTR prosecutor is appointed by the Security Council based on a nomination by the Secretary-General, in the case of the ICC he or she is to be elected by the States parties.
Nonetheless, the ICC maintains significant links with the United Nations. The UN Security Council can refer situations in which one or more crimes appear to have been committed to the ICC Prosecutor acting under Chapter VII of the UN Charter, or by a State party to the Rome Statute. The Rome Statute also provides for UN participation in the funding of the ICC, together with States party, especially in relation to the expenses incurred in cases initiated through referral by the Security Council.
Instructively, the ICC is the only international judicial body with a statutory provision empowering it to receive and utilize funds (on top of those made available by the States party and the UN, when applicable) and voluntary contributions from governments, international organizations, individuals, corporations and any other entities.
The ICC’s Rome Statute is also distinguished from all of its predecessors, and in particular from ICTR and ICTY, by providing, for the first time, access to victims of crimes and their families to express their views and concerns and to claim reparation for wrongs suffered.
For instance, in the ICTR and ICTY, victims can enter the courtroom only as witnesses, providing one of the means through which evidence may be brought before the tribunal. Under the Rome Statute, however, the standing of those who have suffered wrongs has been elevated from acting as mere aids in the judicial process with no personal interest to protect into legitimate participants. Several provisions in the Rome Statute stipulate the involvement of victims during all phases of the case.
Most importantly, victims of international crimes can claim reparation for the violation of their rights. They will do so on their own behalf or through their representatives, not through a state.
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