Basic Principles For An Independent And Effective International Criminal Court

Basic Principles For An Independent And Effective International Criminal Court

May 1998

Introduction

Fifty years after the Nuremberg and Tokyo trials, the international community is entering the final stage of work on the establishment of a permanent International Criminal Court (ICC). On June 15, 1998, governments will assemble in Rome for a five-week Diplomatic Conference to finalize a treaty creating the ICC. The primary aim of the Court would be to bring to justice persons responsible for the most serious crimes under international law, such as genocide, war crimes and crimes against humanity, when domestic criminal justice systems fail to do so. The forthcoming Diplomatic Conference provides a unique opportunity to adopt an ICC treaty and create an independent, effective and fair International Criminal Court.

The Lawyers Committee for Human Rights is encouraged by the growing support for the timely establishment of an ICC. By providing an international criminal enforcement mechanism complementary to national legal systems, the Court would constitute a major step forward in efforts to end impunity for egregious crimes that are still being committed worldwide. The court would also serve as an important deterrent to future atrocities and provide a venue for redress to victims of gross human rights abuses. Furthermore, the International Criminal Court would act as a standard-setting institution in the area of fair trial and due process standards, and serve as a model of international justice.

The Lawyers Committee believes that the following basic principles—not listed in order of importance—must underpin the Court’s design if the ICC is to be independent, effective and fair:

I. The jurisdiction of the International Criminal Court should initially be limited to three “core” crimes: genocide, war crimes and crimes against humanity.

The ICC should initially have jurisdiction over the three core crimes of genocide, war crimes and crimes against humanity. All three crimes constitute exceptionally serious crimes of concern to the international community as a whole and are well established as crimes under customary international law. Other categories of crimes should be included in the ICC Statute only if agreement on their definition can be reached at an early stage at the Diplomatic Conference.

The ICC Statute should define genocide pursuant to the definition provided for in the 1948 Genocide Convention, which has been ratified by many states and is widely accepted as reflecting customary international law. Acts of genocide may be committed in peacetime as well as in armed conflict.
War crimes included in the ICC Statute should cover acts committed both in international and non-international armed conflict. The enumeration of crimes committed in international armed conflict should correspond to: (i) the grave breaches of the 1949 Geneva Conventions; the grave breaches and denials of fundamental guarantees of Additional Protocol I to those Conventions, and violations of the 1907 Hague Convention IV and its Regulations, and (ii) crimes committed in non-international armed conflict, provided for in Common Article 3 of the Geneva Conventions and Additional Protocol II to those Conventions. For the purposes of the ICC Statute, no other requirements or thresholds should be incorporated in the definitions of war crimes.
Crimes against humanity should be defined as acts committed on a widespread or systematic basis against a civilian population. The Statute’s enumeration of such crimes should include: murder; extermination; enslavement; deportation; arbitrary detention; torture; extrajudicial executions; forced disappearance of persons; rape; forcible transfers of populations within or across national borders; persecution on political, ethnical, racial religious or other grounds and other inhumane acts. The definition must also provide that crimes against humanity can be committed both in time of peace and in armed conflict, by official and non-state actors.

II. The International Criminal Court should have automatic (inherent) jurisdiction over the three core crimes.

The International Criminal Court should have automatic (inherent) jurisdiction over genocide, war crimes and crimes against humanity, which means that a state party accepts the Court’s jurisdiction over those crimes upon ratification of the ICC treaty. No further state consent should be required for the Court to proceed. The Court should have the same jurisdiction over the core crimes as states currently do under international law in keeping with the principle of universal jurisdiction. Universal jurisdiction has long been established over genocide, war crimes and crimes against humanity and permits states to investigate and prosecute persons suspected of the crimes regardless of who the perpetrator is or where the crime was committed or any other link. In order to be an effective complement to national courts, the International Criminal Court should have the same jurisdiction over these crimes.

Automatic (inherent) jurisdiction is not an encroachment on state sovereignty, as the Court will take on a case only when a national criminal justice system is genuinely unwilling or unable to investigate and prosecute genocide, war crimes and crimes against humanity, pursuant to the principle of complementarity.

III. The prosecutor of the International Criminal Court should be able to initiate proceedings on his or her own motion (ex officio).

The independence and effectiveness of the future Court heavily depend on its ability to exercise jurisdiction when a national criminal justice system fails to do so. The ICC prosecutor must be able to initiate proceedings on his or her own motion (ex officio) and not have to rely solely on Security Council referrals or state complaints in order to proceed. While Security Council referrals and state complaints are necessary trigger mechanisms, they are insufficient if the Court is to be effective in punishing and deterring international crimes. The Security Council might be politically paralyzed in referring situations to the Court and states are unlikely to file complaints unless they perceive their interests to be at stake. The ICC Prosecutor must therefore be allowed to initiate proceedings on his or her own motion, based on information from reliable sources, including inter-governmental and non-governmental organizations. Ex officio prosecutions should be subject only to review by appropriate judicial panels of hte Court itself.

IV. The International Criminal Court should be able to proceed without involvement from the Security Council or any other political body.

As an independent and impartial judicial body, the Court should be free from pressure or involvement by the Security Council or any other political body. The competence of the Security Council to maintain and restore international peace and security does not conflict with the need to ensure international justice. The Court’s proceeding in a given case should therefore not be subject to Security Council approval, nor should the Security Council be able to delay or block investigations or prosecutions when crimes within the Court’s jurisdiction arise from a situation being dealt with by the Security Council.

V. The International Criminal Court should ensure the highest international standards of fair trial and due process.

In order to be just and to serve as a standard-setting body in the area of international criminal justice, the Court must ensure the application of all the relevant international standards of fair trial and due process at all stages of the proceedings. Particularly relevant are the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Inhuman, or Degrading Treatment or Punishment, as well as standards on various aspects of criminal justice adopted within the UN system. The Court must scrupulously adhere to these standards if justice is to be done and to be seen to be done.

VI. The International Criminal Court should ensure justice and protection for women, children, victims and witnesses of international crimes.

The ICC Statute should explicitly include provisions on crimes of sexual and gender violence and provisions on the protection of children. The Statute should also incorporate legal principles and procedures on the prosecution of such crimes. It should also provide for redress to victims of crimes within the Court’s jurisdiction and ensure adequate protection of victims and witnesses.

VII. States parties should cooperate fully with the International Criminal Court and comply with its orders and decisions.

In order to operate effectively, the Court must have the full cooperation of states parties in the performance of its tasks, and be able to ensure compliance with its orders and decisions. The Statute should include an unequivocal obligation by states parties to cooperate with the ICC at all stages of the proceedings. States parties should not be able to refuse cooperation in providing information or transferring individuals to the Court based on grounds for refusal included in state-to-state cooperation agreements. If a state party fails to comply with a Court order or decision, the ICC should be able to make a finding of non-compliance and refer the matter to the Assembly of States Parties and its Bureau to take measures to effect compliance. The Prosecutor should also be able to report instances or patterns of lack of assistance or failure to comply to the Assembly of States Parties and the Bureau.

VIII. The International Criminal Court should be financed out of the regular UN budget.

The International Criminal Court should be financed out of the regular UN budget, supplemented by voluntary state contributions. Despite current problems, this method is most likely to provide the Court with the secure and stable resources that it will need to carry out its mandate. It would also ensure the Court’s universality by encouraging financially weaker states to become parties to the ICC treaty.

Since 1978, the Lawyers Committee for Human Rights has worked to protect and promote fundamental human rights. Its work is impartial, holding each government to the standards affirmed in the International Bill of Human Rights, including

the right to be free from torture, summary execution, abduction and "disappearance";
the right to be free from arbitrary arrest, imprisonment without charge or trial, and indefinite incommunicado detention; and
the right to due process and a fair trial before an independent judiciary.

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