Gesellschaft

After centuries of impunity, individuals that have committed grave atrocities such as genocide, crimes against humanity and war crimes can today be tried before the permanent International Criminal Court (ICC) in the Haag.

The International Criminal Court has its origin in the military tribunals of Nuremberg and Tokyo, which called the chief war criminals of the Second World War to account. It was a long time, however, before representatives of governments could agree on the establishment of a permanent Criminal Court. An important intermediate step was the establishment of ad hoc tribunals for Yugoslavia (ICTY, 1993) and Rwanda (ICTR, 1994), instituted by resolutions of the UN Security Council in New York. The success of their work paved the way for negotiating the Rome Statute, which, after long and sometimes difficult discussions of draft proposals, was accepted on July 17, 1998 by representatives of 120 states, including Germany, with seven dissenting votes (China, Iraq, Israel, Yemen, Qatar, Libya and the USA) and twenty-one abstentions.

After the depositing of the 60 ratification documents, the ICC Statute went into effect on July 1, 2002. Up to now (August 1, 2009), 110 states have acceded to the Rome Statute. The Federal Republic of Germany joined the agreement on December 11, 2000.

Structure and jurisdiction

A trial before the ICC can be initiated by a member state, the chief prosecutor of the ICC or the Security Council of the United Nations. Generally, the ICC hears cases of only the gravest violations of international law; less serious cases fall within the jurisdiction of national courts. Following the principle of complementarity, the ICC goes into action expressly only when a state ‘is not willing or not in the position’ to prosecute a crime at the national level. Moreover, according to the principle that prohibits ex post facto laws, the Court can also exercise jurisdiction only for those crimes that have been committed since the Rome Statute came into effect, that is, after July 1, 2002.

The ICC consists of four main bodies:

- The Presidency: it consists of three ICC judges, elected from among all the judges for a three-year term. The Presidency is responsible for the administration of the Court, with the exception of the Office of the Prosecutor, and for other tasks conferred upon it by the Statute. The present president is Judge Richter Sang-Hyun Song (Korea); first and second vice-presidents are Judge Fatoumata Dembele Diarra (Mali) and Judge Hans-Peter Kaul (Germany).

- The Judicial Divisions: they consist of the pre-trial division (at least six judges), the trial division (at least six judges) and the appeals division (the President and four other judges). Depending on the division, three to five judges sit in each. The judges, presently eight women and nine men, are elected by the Assembly of State Parties for a term of nine years.

- The Office of the Prosecutor: its responsibility is to receive and examine information about crimes subject to the jurisdiction of the ICC, to carry out investigations, and to represent indictments before the Court. The director of the Office of the Prosecutor, presently Luis Moreno-Ocampo (Argentina), is the chief prosecutor. He is elected by an absolute majority of the Assembly of State Parties for a term of nine years.

- The Registrar: this office is responsible for all non-legal aspects of the administration and services of the Court. The present director of the Registry is Silvana Arbia (Italy); the Registrar is elected from among all the judges of the ICC for a term of five years. The Registry includes the “Division for Victims and Witnesses”, which is concerned with the protection and security, counsel and other services for witnesses and victims appearing before the Court.

The ICC is financed by contributions from the contracting states and voluntary contributions from governments, international organisations, individuals and other institutions. Its budget for 2010 amounts to about 100 million euros, an increase of 1,75 million euros (1,7%) in comparison with 2009. Presently (January 2009) the ICC employs 285 women and 302 men from over 85 states.

Current work of the International Criminal Court

In eight cases the Court has introduced proceedings in connection with the four so-called “situations” in the Democratic Republic of the Congo, Uganda, the region of Darfur in the Sudan and the Central African Republic. The first defendant is the Congolese militia leader Thomas Lubanga, who is accused of the forced recruitment of children and their deployment in war-like conflicts. His trial began on January 26, 2009. This year a further trial will be opened against Germain Katanga and Mathieu Ngudjolo Chui on charges of war crimes and crimes against humanity. The proceedings against Jean-Pierre Bemba Gombo of the Central African Republic and Bahr Idriss Abu Garda of Dafur are in their pre-trial stage.

The arrest warrant against the Sudanese President Omar Al Bashir, which was issued on March 4, 2009, is the first case in which an acting head of state has been called to answer for his actions before the ICC. He has been charged with crimes against humanity and war crimes. He, two other defendants from Dafur, one from the Congo and all four from Uganda have not yet been turned over to the ICC and are still at large. For their extradition, the ICC must rely on the relevant governments fulfilling their obligation to co-operation laid down in the Rome Statute.

Along with the successful prosecution of these trials, a great challenge facing the ICC will be to gain universal acceptance for its work, and in particular the acceptance of the hitherto dissenting states such as the USA, China and India. Then the ICC can fulfil its role as the most important international instrument for the punishment of the gravest crimes.