Open Access Research Article
ROLE OF ICC IN THE PROTECTION OF HUMAN RIGHTS BY: SHISHAM PRADHAN
Published Paper
Article Details
ROLE OF ICC IN THE PROTECTION OF
HUMAN RIGHTS
AUTHORED BY: SHISHAM PRADHAN
(Amity University, Noida)
ABSTRACT
The International Criminal Court
(ICC) has the power to punish crimes like genocide, crimes against humanity,
war crimes, and the crime of aggression. The ICC was set up as a permanent
criminal court to deal with these crimes, which threaten the international
community's peace, security, and well-being. This paper will try to figure out
what these crimes are and how they affect international law and human rights.
The paper will look at how these crimes are defined by the law, how they have
been treated in the past, and how they affect world politics today. In the
paper, the importance of these crimes in shaping the international legal system
and protecting human rights will be shown by analysing relevant literature and
case studies. The paper will also talk about the problems the ICC faces when
trying to prosecute these crimes, such as limited state cooperation, and what
these problems mean for the ICC's ability to deal with these crimes. The paper
will say that the crimes that fall under the ICC's jurisdiction are an
important part of international law and human rights. It will also suggest ways
to deal with the problems that the ICC faces so that it can deal with these
crimes effectively.
Keywords: Human Rights, International Criminal
Court.
INTRODUCTION
A legal body called the International
Criminal Court (ICC) was created to look into and try people for crimes
including genocide, crimes against humanity, war crimes, and aggression.[1] In
order to promote and defend human rights, stop those who commit international
crimes from going unpunished, and provide victims justice, the court was
established in 2002.[2]
There are 123 member nations of the
ICC, which has its headquarters in The Hague, Netherlands.[3]
The Court has jurisdiction over crimes committed on the soil of member states,
crimes committed by citizens of member states, and offences that have been
reported to the nation by either a member state that has acknowledged the
court's authority or the United Nations Security Council.[4]
The International Criminal Court
(ICC) is a court of complementary jurisdiction, which means it works in
conjunction with national courts and only looks into and brings charges for
crimes when national courts are unable or unwilling to do so.[5] In
order to strengthen its ability to look into and punish crimes committed
abroad, the court also collaborates closely with national authorities.[6]
The International Criminal Court
(ICC) has been involved in a number of high-profile cases, including the trial
of Laurent Gbagbo, the former president of the Ivory Coast, and Charles Ble
Goude, who was accused of committing crimes against humanity in connection with
the post-election violence in 2010–2011.[7]
The Sudanese President, Omar al-Bashir, who is accused of genocide, crimes
against humanity, and war crimes committed during the Darfur crisis, is among
the prominent people for whom the court has issued an arrest warrant.[8]
The investigation and prosecution of
international crimes by the ICC is essential for upholding human rights and
avoiding impunity. Holding criminals accountable for the most egregious crimes
is one of the goals of the ICC, which also strives to promote respect for
international law and discourage future crimes.[9] The
ICC's role in bringing justice to victims is particularly crucial because it
may aid in giving people harmed by international crimes a feeling of closure.[10]
Crimes Within the International
Criminal Court's Jurisdiction.
The Rome Statute created the International
Criminal Court (ICC) in 2002 as a permanent international court with the
authority to try people for the most egregious crimes committed abroad.
Genocide, crimes against humanity, war crimes, and, as of 2018, the act of
aggression are among these crimes. Each of these crimes will be thoroughly
examined in this article, along with their definitions and the ICC's authority
to prosecute them.
Genocide
Genocide is the deliberate killing of
members of a national, ethnic, racial, or religious group with the intent of
physically eliminating them or stopping their procreation.[11]
It may also include substantial physical or mental suffering. Genocide
committed on or after July 1, 2022, the day the Rome Statute came into effect,
falls within the purview of the International Criminal Court (ICC).
According to the Rome Statute,
genocide is any of the following acts carried out with the intent to completely
or partially destroy a national, ethnic, racial, or religious group: (a)
killing group members; (b) seriously injuring group members physically or
psychologically; (c) purposefully imposing on the group conditions of life
calculated to bring about its complete or partial physical destruction; (d)
enacting laws intended to prevent births within the group.[12]
The act committed, the explicit
purpose to obliterate a national, ethnical, racial, or religious group either
completely or partially, and the existence of a protected group are all
considered parts of the offense.[13]
Regardless of whether the state in
question is a party to the ICC Statute, the ICC has jurisdiction over the crime
of genocide when it is committed on the territory of a state party, when the
accused is a citizen of a state party, or when the Security Council submits the
case to the ICC.[14]
Moreover, if the accused is a citizen of a state party or if the accused is
present on the territory of a state party and the state consents to the ICC's
exercise of jurisdiction, the ICC may have jurisdiction over genocide committed
beyond the borders of a state party.[15]
The worldwide eradication of a
national, ethnic, racial, or religious group, in whole or in part, is referred
to as genocide. Subject to specific restrictions and circumstances, the ICC has
jurisdiction over crimes of genocide committed on or after July 1, 2002.
Crimes against humanity
Crimes against humanity are
significant offenses committed with the knowledge of the attack and as part of
a widespread or systematic assault on any civilian population.[16]
These crimes include homicide, genocide, slavery, torture, discrimination based
on race and other such inhumane deeds. Crimes against humanity committed on or
after July 1, 2002, the day the Rome Statute took effect, are subject to the
jurisdiction of the International Criminal Court (ICC).[17]
According to the Rome Statute, any of
the following actions that are committed as part of an extensive or systematic
assault against a civilian population with knowledge of the attack constitute
crimes against humanity:
(a) “Murder”
(b) “Extermination”
(c) “Enslavement”;
(d) “Deportation or forceable transfer of
population”;
(e) “Imprisonment or other severe
deprivation of physical liberty in violation of fundamental rules of
international law”;
(f) “Torture”;
(g) “Rape, sexual slavery, forced
prostitution, forced pregnancy, forced sterilization, or any other form of
sexual violence of comparable gravity.”
(h) “Persecution against any identifiable
group or collectively on political”
(i) “Forcible disappearances of people”
(j) “Other inhuman actions of a
comparable kind committed globally that result in significant suffering or
grave bodily harm or impairment of mental or physical health.”[18]
The act performed, the backdrop of a
pervasive or systematic assault on a civilian population, knowledge of the attack,
and the presence of a protected group are all components of the offense.[19]
Regardless of whether the state in
question is a party to the ICC Statute, the International Criminal Court (ICC)
has authority over atrocities against humanity committed on the territory of a
state party, where the accused is a citizen of a state party, or when the
Security Council submits the case to the ICC.[20]
Additionally, if the accused is a citizen of a state party or if the accused is
present on the territory of a state party and the State consents to the
exercise of jurisdiction by the ICC, the ICC may exercise jurisdiction over
crimes against humanity committed outside the territory of a state party.[21]
In conclusion, crimes against
humanity are heinous crimes carried out in the course of a planned, methodical,
and pervasive assault on any civilian population. The ICC has jurisdiction over
human rights violations perpetrated on or after July 1, 2002, under particular
limitations and circumstances.
Crimes of War
Serious transgressions of
international humanitarian law that take place during armed conflict are
referred to as war crimes. The purposeful targeting of civilians or
non-combatants, torture, rape, and the use of weapons that are illegal are only
a few examples of crimes that may be perpetrated by both state and non-state
actors. In the case of an armed conflict that lacks an international component
but involves a government or other organization is actually in control of a
territory, the International Criminal Court (ICC) has jurisdiction over war
crimes that are committed as part of a widespread or systematic assault against
a civilian population.[22]
The Rome Statute, a treaty that has
been adopted by 123 nations as of September 2021, founded the ICC in 2002.[23]
The ICC can only prosecute cases when national courts are unable or unwilling
to do so itself. The ICC's jurisdiction is supplementary to national
jurisdiction, which means that the Court can only do so in certain
circumstances.[24] Anyone
who are citizens of a state party to the Rome Statute or whose crimes were
committed on the territory of a state party, including military and political
leaders, are subject to investigation and prosecution by the ICC for war
crimes.[25]
The International Criminal Court
(ICC) must first decide whether there is enough evidence to sustain accusations
against a person and if it is reasonable to pursue the case before it may begin
a war crimes prosecution.[26]
The person will be taken before the ICC for trial if the Court chooses to go
further. If found guilty, the offender may receive a jail term and be ordered
to compensate the victims for their losses as a consequence of the war crimes.[27]
In general, the ICC's authority over
war crimes is a crucial instrument for encouraging accountability and deterrent
in armed conflict circumstances. The ICC contributes to ensuring that the
principles of international humanitarian law are upheld and that victims of war
crimes get the justice they are due by holding people accountable for their
conduct.
The Crime of Aggression
The use of military force by a state
against the sovereignty, territorial integrity, or political independence of
another state, in violation of the UN Charter, is referred to as an act of
aggression.[28] Subject
to ratification by at least thirty nations parties to the ICC Statute and a
decision by the ICC's Assembly of States Parties to activate the jurisdiction,
the International Criminal Court (ICC) has jurisdiction over acts of aggression
committed on or after July 17, 2018.[29]
A person in a position to effectively
exercise control over or direct the political or military action of a State is
considered to be in a position to plan, prepare, initiate, or carry out an act
of aggression that, by its nature, seriousness, or scale, constitutes a
manifest violation of the United Nations Charter, according to the Rome
Statute.[30] The act
of aggression, the person who performed it, and their awareness of the factual
conditions establishing that the act of aggression would constitute a clear violation
of the UN Charter are all considered components of the crime.[31]
The need that the defendant be a
citizen of a state party or that the crime was committed on its territory is
only two of the restrictions on the ICC's ability to prosecute crimes of aggression.[32]
Moreover, the UN Security Council must decide that a state that is not a
signatory to the ICC Statute or a state party that has not acknowledged the
ICC's jurisdiction over crimes of aggression committed the crime before the ICC
may exercise its jurisdiction over it.[33]
In conclusion, the use of military
force by a state against the sovereignty, territorial integrity, or political
independence of another state in violation of the UN Charter is referred to as
an act of aggression. Certain crimes committed on or after July 17, 2018, are
subject to the jurisdiction of the ICC, subject to specific restrictions and
circumstances.
Aspects of the ICC's procedure
relating to jurisdiction and admissibility
The most severe international crimes,
including genocide, war crimes, and crimes against humanity, are handled by the
International Criminal Court (ICC), a permanent court. Yet before a case can go
to trial, some procedural problems need to be carefully considered. These
concerns relate to the ICC's jurisdiction and admissibility. This article will
go through the ICC's jurisdictional and admissibility procedural difficulties.
Its jurisdiction is restricted to
crimes committed within its reach, which includes crimes committed on the
territory of a state party to the Rome Statute, crimes committed by a national
of a state party, and crimes referred to the ICC by the United Nations Security
Council.[34]
Jurisdiction is the ability of a court to hear and decide a case of the ICC.
Moreover, if a non-state party has specifically agreed to the ICC's
jurisdiction or if the crime was committed on its territory, the ICC has
jurisdiction over that non-state party's crimes.[35]
Contrarily, admissibility refers to
whether a matter is suitable for the ICC to examine. Admissibility is based on
a number of factors, such as whether the case is being investigated or
prosecuted by a state with jurisdiction over the crime, whether it is being
done so in a way that complies with the complementarity principle, and whether
it is being done so in a way that respects the rights of the accused.[36]
The absence of universal acceptance
of the Rome Statute is one of the issues the ICC has with respect to
jurisdiction. The Rome Statute has been ratified by 123 nations, including the
majority of those in South America, Africa, and Europe.[37]
Nevertheless, several significant nations, like China, Russia, and the United
States, have not. This implies that unless the crimes are submitted to the ICC
by the United Nations Security Council, the ICC cannot exercise its
jurisdiction over crimes committed in those countries or by citizens of those
countries.
Another important procedural issue
for the ICC is admissibility. The ICC must only become involved under the
complementarity principle when national authorities are unable or unwilling to
look into and punish international crimes. This indicates that the ICC can only
look into and try cases of crimes committed abroad. This implies that the ICC
may only look into and bring charges in a case if the state in issue is unable
or unwilling to do so, or if the investigation or prosecution is carried out in
a way that violates the complementarity principle.[38]
Conclusion: Before a case may go
forward to trial, a number of procedural factors that must be carefully
considered affect the ICC's jurisdiction and admissibility. The ICC's
jurisdiction is restricted to crimes committed within its territorial scope,
and admissibility is based on a number of criteria, including whether the case
is being investigated or prosecuted by a state with jurisdiction over the
crime, whether it is being done so in accordance with the complementarity
principle, and whether it respects the rights of the accused.
Jurisdiction over the Subject Matter
The crimes committed on the territory
of a state party to the Rome Statute, the crimes committed by citizens of a
state party, or the crimes that the UN Security Council has referred to the ICC
fall within the ICC's purview.[39]
There will be 123 states that have ratified the Rome Statute as of April 2023.[40]
The ICC can only exercise
jurisdiction if national authorities are unable or unwilling to investigate and
prosecute the relevant offences. The ICC's authority is supplementary to
national criminal jurisdictions.[41]
The ICC may also only bring criminal charges against people, not against
governments, and it cannot impose civil or political sanctions.[42]
The subject matter jurisdiction of
the ICC has generated significant debate. The ICC should be able to pursue a
wide variety of crimes, including corruption and environmental crimes,
according to critics who claim that the organization's authority is too broad.[43]
The subject matter jurisdiction of
the ICC is very important in securing responsibility for the most severe international
crimes, notwithstanding the dispute. The ICC seeks to prevent other crimes and
advance respect for international law by bringing those responsible for these
crimes accountable.
Genocide-related Subject Matter
Jurisdiction.
The crime of genocide, which is
defined as certain actions "committed with intent to eliminate, in whole
or in part, a national, ethnical, racial, or religious group," falls
within the purview of the International Criminal Court (ICC).[44]
The International Criminal Court (ICC)
must conclude that genocide was committed on the soil of a state party to the
Rome Statute, by a citizen of a state party, or that the UN Security Council
has referred the case to the ICC in order to establish subject matter
jurisdiction.[45]
The ICC's jurisdiction over genocide
is a crucial instrument for bringing perpetrators of this crime responsible
since it is one of the most heinous international crimes. The Prosecutor v.
Omar Hassan Ahmad Al Bashir, in which the ICC issued arrest warrants for the former
president of Sudan for his suspected involvement in the genocide in Darfur, is
one of the cases the ICC has looked into and prosecuted.[46]
But, the ICC's authority to prosecute
genocide has also come under challenge. Others contend that the ICC's definition
of genocide is too limited and should include encompass other crimes, such as
ecocide and cultural genocide.[47]
Some contend that the ICC's authority to investigate cases of genocide is too
wide and infringes on national sovereignty.[48]
The ICC's subject matter jurisdiction
over genocide is a crucial instrument for achieving responsibility for one of
the most terrible crimes under international law, notwithstanding the debate.
Subject Matter Jurisdiction on Crimes
against Humanity.
The crime of crimes against humanity,
which is defined as certain actions "committed as part of a widespread or
systematic assault intended against any civilian population, with knowledge of
the attack," is subject to subject matter jurisdiction by the
International Criminal Court (ICC).[49]
The International Criminal Court
(ICC) must establish that the crime was committed on the soil of a state party
to the Rome Statute, by a country of a state party, or that the UN Security
Council has referred the case to the ICC in order to have subject matter
jurisdiction over crimes against humanity.[50]
The ICC's jurisdiction over crimes
against humanity is a crucial instrument for bringing perpetrators of these
crimes responsible since they are among the most heinous international crimes.
One essential instrument for bringing perpetrators of heinous crimes
responsible is the ICC. A number of cases containing claims of crimes against
humanity have been looked into and tried by the ICC, notably The Prosecutor v.
Thomas Lubanga Dyilo, in which the court found a Congolese warlord guilty for
his part in eliminating and recruiting young soldiers.[51]
Yet the ICC's authority over crimes
against humanity has also come under assault. Others contend that the
definition of crimes against humanity used by the ICC is excessively wide and
that other behaviours, such as drug and people trafficking, should be included.[52]
Others contend that the ICC should have the authority to prosecute crimes
committed by non-state entities like companies and armed groups and that its
jurisdiction over crimes against humanity is too narrow.[53]
Notwithstanding the debate, the ICC's
subject matter jurisdiction over crimes against humanity is a crucial
instrument for making sure those responsible for one of the most horrific
crimes are recognized by international law.
Subject Matter Jurisdiction on War Crimes
War crimes, which are defined as
certain actions "committed as part of a plan or policy or as part of a
large-scale commission of such crimes," are crimes that fall within the subject
matter jurisdiction of the International Criminal Court (ICC).[54]
The International Criminal Court
(ICC) must determine that the crime was committed on the territory of a state
party to the Rome Statute, by a national of a state party, or that the United
Security Council has referred the case to the ICC in order to establish subject
matter jurisdiction over war crimes.[55]
The ICC's authority over war crimes
is a crucial instrument for bringing perpetrators of these crimes responsible
since they are among the most heinous international crimes. The Prosecution v.
Bosco Ntaganda case, in which the ICC found a Congolese rebel commander guilty
of war crimes including murder, rape, and sexual enslavement, is one of several
cases the ICC has looked into and prosecuted.[56]
But, the ICC's authority to prosecute
war crimes has also come under challenge. Others contend that the ICC's
definition of war crimes is too limited and that it should include additional
behaviours, such as the use of drone strikes and depleted uranium.[57] Others
contend that the ICC's authority to prosecute war crimes is overbroad and
infringes on national sovereignty.[58]
The subject matter jurisdiction of
the ICC for war crimes, notwithstanding the dispute, is a crucial instrument
for securing responsibility for one of the most horrific crimes under
international law.
Subject matter jurisdiction on Crimes
of Aggression
The crime of aggression, is defined
as the "planning, preparation, initiation or execution, by a person in a
position effectively to exercise control over or to direct the political or
military action of a state, of an act of aggression which, by its character,
gravity, and scale, constitutes a manifest violation of the Charter of the
United Nations," is subject to subject matter jurisdiction by the
International Criminal Court (ICC).[59]
The International Criminal Court
(ICC) must determine that the crime was committed on the territory of a state
party to the Rome Statute, by a national of a state party, or that the UN
Security Council has referred the case to the ICC in order to establish subject
matter jurisdiction over the crime of aggression.[60]
Once the Rome Statute's Kampala
Amendments were approved on July 17, 2018, the ICC's jurisdiction over the
crime of aggression became effective.[61]
An essential method for holding people responsible for one of the most severe
international crimes under international law is the ICC's jurisdiction over the
crime of aggression.
But, the ICC's authority to prosecute
crimes of aggression has also come under challenge. Others claim that the
International Criminal Court's (ICC) definition of the crime of aggressiveness
is too broad and allows the ICC too much latitude in defining what counts as an
aggressive conduct.[62]
Others contend that the International Criminal Court's (ICC) jurisdiction over
the crime of aggression infringes on state sovereignty and might be used as a
political swaying tool.[63]
Notwithstanding the opposition, the
International Criminal Court's (ICC) subject matter jurisdiction over the crime
of aggression is a crucial instrument for guaranteeing responsibility for one
of the most heinous crimes under international law.
Temporal jurisdiction
International crimes committed after
the Rome Statute, the International Criminal Court's founding instrument, went
into effect on July 1, 2002 fall within the ICC's temporal jurisdiction.[64]
To the extent that they were committed during an armed conflict and were not
pardoned, crimes that took place before that date may likewise fall within the
purview of the ICC.[65]
This is referred to as retroactive jurisdiction, and it is accepted by
international law since the law is not arbitrarily or unfairly applied in this
way.[66]
Additionally, crimes that continue to
be committed after the Rome Statute comes into effect may potentially fall
within the purview of the ICC. This is referred to as continuing jurisdiction,
and it implies that even after its jurisdiction has been invoked, the ICC may
continue to look into and pursue criminal offences.[67]
This is crucial in situations when crimes are committed over time, such in
genocide or crimes against humanity prosecutions.
It is important to remember that the
ICC only has jurisdiction over crimes committed on the soil of nations that
have accepted the Rome Statute or if the accused offender is a citizen of one
of those nations.[68]
Even though the nation where the crimes were committed is not a signatory to
the Rome Statute, the UN Security Council may nevertheless send cases to the
ICC.[69]
This was the case with the Sudanese crisis in Darfur, which the Security
Council referred to the ICC in 2005.
In addition to temporal jurisdiction,
the ICC also possesses personal jurisdiction over suspects in international
crime cases as well as geographical jurisdiction over crimes committed on the
soil of a state signatory to the Rome Statute.[70]
If the crime was reported to the court by the Security Council or if the
accused is a citizen of a state party to the Rome Statute, the ICC may also
have jurisdiction over crimes committed on the territory of a non-state party.[71]
Ultimately, the ICC's jurisdiction is
precisely defined and subject to a number of restrictions, but it nonetheless
serves as a crucial instrument for making sure that those responsible for the
most heinous crimes against humanity are brought to justice.
Territorial Jurisdiction
Genocide, crimes against humanity,
war crimes, and crimes of aggression are the four main international crimes
that fall within the purview of the International Criminal Court (ICC), a court
of last resort. When certain crimes are committed by a national of a State
Party to the Rome Statute, the agreement that formed the ICC, or on the
territory of a State Party, the ICC has jurisdiction over them.[72]
Territorial jurisdiction describes a
court's ability to hear cases depending on the location of the offense. The
ICC's geographical jurisdiction is restricted to crimes committed on a State
Party's territory. Hence, the ICC lacks the authority to bring charges against
offenders who commit crimes on the territory of a State Party.
There are two significant exceptions
to this rule, however. First, regardless of whether the crimes were committed
on the territory of a State Party, the UN Security Council has the authority to
submit circumstances to the ICC for investigation and prosecution. Second, if a
non-State Party State recognises the ICC's jurisdiction, the ICC may claim
jurisdiction over crimes committed there.[73]
The ICC has personal jurisdiction
against those who commit international crimes in addition to territorial
jurisdiction. The ability of a court to hear cases depending on the nationality
or place of residence of the accused is known as personal jurisdiction.
Individuals who are citizens of a State Party or who are alleged to have
committed crimes on its soil fall within the personal jurisdiction of the ICC.[74]
Conclusion
With two significant
exceptions—referrals from the UN Security Council and admission of jurisdiction
by a non-State Party—the ICC's territorial jurisdiction is restricted to crimes
committed on the territory of a State Party. Also, those who commit crimes
abroad while being citizens of a State Party or while on its soil are within
the personal jurisdiction of the ICC.
Personal Jurisdiction
Those who commit crimes against humanity
are subject to personal jurisdiction by the International Criminal Court (ICC).
The ability of a court to hear cases depending on the nationality or place of
residence of the accused is known as personal jurisdiction. Individuals who are
citizens of a State Party or who are alleged to have committed crimes on its
soil fall within the personal jurisdiction of the ICC.[75]
The accused's country or place of
residence at the time of the offence are not factors in determining the ICC's
personal jurisdiction. The ICC may nonetheless exercise jurisdiction if the
crime was committed on the territory of a State Party or if the accused was a
national of a State Party at the time of the offence, even if the accused is no
longer a resident of or a citizen of a State Party.[76]
In addition to having personal
jurisdiction over people, the ICC may prosecute legal organisations like
companies for crimes committed abroad.[77]
This kind of jurisdiction is less well-known and has not yet been put to the
fullest practicable test.
Conclusion
Those who commit crimes on the soil
of a State Party or who are citizens of a State Party are subject to the
personal jurisdiction of the ICC. The accused's nationality or place of
residence at the time of the offence are not restrictions on this jurisdiction.
While this sort of jurisdiction is less well-established, the ICC also has
jurisdiction over organisations that engage in international crimes.
Recent Cases
Al Mahdi
Introduction
The International Criminal Court
(ICC) began looking into the situation in Mali in 2012.[78]
Ahmad Al Faqi Al Mahdi was the first individual to admit guilt to the war crime
of planning assaults on Timbuktu, Mali's historical and cultural landmarks
before the International Criminal Court (ICC) in 2016. The case of Al Mahdi and
its ramifications for international criminal law will be examined in this case
study.
Case Summary
In 2012, Timbuktu, Mali, was governed
by the Islamic extremist organisation Ansar Dine, of which Al Mahdi was a
member. Al Mahdi enforced the group's version of Islamic law in Timbuktu as a
member of the "Morality Police" organisation. Ansar Dine considered
these structures to be idolatrous and ordered their demolition.
Al Mahdi supervised the burning of
nine mausolea and the Sidi Yahia Mosque in Timbuktu during June and July of
2012. The demolition of these locations, which had strong cultural and
religious importance, was extensively denounced by the world community.
In September 2015, Al Mahdi was taken
into custody by Nigerian police and handed up to the ICC. In accordance with
Article 8(2)(e)(iv) of the Rome Statute, he pled guilty to the war crime of
deliberately ordering assaults on historical and cultural landmarks in August
2016. He received the lightest punishment ever imposed by the ICC: nine years
in jail.[79]
Implications for International
Criminal Law
The Al Mahdi case was notable for a
number of reasons. It was the first instance in which a person has been accused
and found guilty under international criminal law exclusively for the
destruction of cultural property. This case exemplified the value of cultural
heritage, the part it plays in shaping community identity and memory, and the
dedication of the international community to preserving cultural heritage.
The case also emphasised the ICC's
authority to investigate crimes against cultural property. Article 8(2)(e)(iv)
of the Rome Statute, which defines the war crime of intentionally directing
attacks against buildings dedicated to religion, education, art, science, or
charitable purposes, as well as historic monuments, hospitals, and locations
where the sick and injured are gathered, establishes the ICC's jurisdiction
over such crimes.
Ultimately, the Al Mahdi case
illustrated the significance of international collaboration in the struggle
against the continuation of international crimes with impunity. The
collaboration between the countries of Niger and Mali as well as the ICC itself
led to Al Mahdi's arrest and transfer to the ICC.[80]
Conclusion
The Al Mahdi case was a significant
turning point in the development of international criminal law because it
established the International Criminal Court's (ICC) authority over crimes
against cultural property and the commitment of the international community to
preventing the destruction of cultural property. In the struggle against
international criminal impunity, it also served as a reminder of the value of
international collaboration.
Ali Abd-Al-Rahman
Under the Gaddafi dictatorship, Ali
Abd-Al-Rahman worked for the Libyan Arab Jamahiriya's intelligence service. He
was accused of war crimes, including as torture and inhumane treatment of
prisoners in Libyan jails, as well as a crime against humanity that included
persecuting and imprisoning people. The Libyan authorities detained Ali
Abd-Al-Rahman in 2011, and the International Criminal Court took possession of
him (ICC).
In 2011, the Office of the Prosecutor
(OTP) of the ICC completed an initial investigation into the situation in Libya
and found that there was cause to suspect that war crimes and crimes against
humanity had been committed there since February 15, 2011. A warrant for the
arrest of Muammar Gaddafi, his son Saif Al-Islam Gaddafi, and his intelligence
head Abdullah Al-Senussi was sought by the OTP in June 2011. The ICC Pre-Trial
Chamber issued the arrest warrants in July 2011.[81]
Ali Abd-Al-Rahman was detained by the
authorities of Libya in August 2011 and accused of war crimes and crimes
against humanity.[82] The
Libyan government notified the ICC in September 2011 that Ali Abd-Al-Rahman
would not be handed over because they could and would prosecute him at home.[83]
In an October 2013 ruling, the ICC Pre-Trial Chamber determined that Libya was
unable to conduct Ali Abd-Al-trial Rahman's and that the case was consequently
admissible to the ICC.[84]
Ali Abd-Al-Rahman was handed up to
the International Criminal Court (ICC) in The Hague, Netherlands, in January
2014.[85]
Ali Abd-Al-Rahman was found guilty of crimes against humanity and war crimes by
the ICC Trial Chamber in July 2016 after the matter had gone to trial, and he
was given a nine-year jail term.[86]
The Lai Abd-AL-Rahman case brings to
light the difficulties the complementarity principle presents for the ICC's
admissibility system. The concept mandates that the ICC only intervenes when
governments are unwilling or unable to carry out processes, even if it seeks to
guarantee that nations have the main duty for investigating and prosecuting
crimes that fall within their purview.[87]
As can be seen in this instance, the ICC Pre-Trial Court decided that Libya was
unable to conduct the procedures against Ali-Al-Rahman, and as a result, the
case was admissible to the ICC.[88]
Ali Abd-Al-Rahman was only brought to the ICC's custody three years after the
admission decision, and it took a further two years for the case to go to
trial. This case, however, also highlights the difficulties in implementing ICC
rulings.[89]
CONCLUSION
In conclusion, by giving people a way
to be held responsible for grave international crimes, the International
Criminal Court (ICC) plays a crucial role in defending human rights. While the
ICC's authority is restricted to crimes that endanger humanity, its capacity to
confront and prevent these crimes helps to advance respect for and protection
of human rights across the world. Nevertheless, a number of circumstances, such
as state parties' cooperation, the court's justice and impartiality, and the
promotion of complete ratification of the Rome Statute, affect how well the ICC
protects human rights. Strengthening the ICC's standing and capacity to defend
human rights requires addressing these issues.
[1] “About the Court,” International
Criminal Court, accessed April 10, 2023, https://www.icc-cpi.int/about
[2] Ibid
[3] “States Parties,” International
Criminal Court, accessed April 10, 2023, https://www.icc-cpi.int/states-parties.
[4] “Jurisdiction and Admissibility,”
International Criminal Court, accessed April 10, 2023,
[5] “Complementarity,” International
Criminal Court, accessed April 10, 2023,
[6] Ibid
[7] “ICC Trial Chamber I acquits Mr
Gbagbo and Mr Ble Goude from all charges of crimes against humanity,”
International Criminal Court, January 15, 2019,
https://www.icc-cpi.int/PAges/item.aspx?name=190115-press-release-acquittal-gbagbo-blegoude.
[8] “Sudanese President Omar Al-Bashir
Wanted by ICC for Genocide, War Crimes and Crimes Against Humanity,”
International Criminal Court, March 4, 2009,
[9] “The ICC and the prevention of
Genocide, Crimes Against Humanity and War Crimes,” International Criminal
Court, accessed April 10, 2023, https://www.icc-cpi.int/ prevention.
[10] “Justice for Victims,”
International Criminal Court, accessed April 10, 2023,
[11] Convention on the Prevention and
Punishment of the Crime of Genocide, art. 2, Dec. 9, 1948, 78 U.N.T.S. 277,
available at https://www.ohchr.org/en/professionalinterest/pages/cppcg.aspx.
[12] Id. art. 6.
[14] Id. art. 12.
[15] Id. art. 12(2).
[16] Rome Statute of the International
Criminal Court, art. 7, July 17, 1998, 2187 U.N.T.S. 90, available at https://www.icc-cpi.int/resource-library/Documents/RS-Eng.pdf
[18] Id. art. 7.
[19] Id. art. 7(1).
[21] Id. art. 12(2).
[22] Rome Statute of the International
Criminal Court, Article 8.
[23] International Criminal Court,”
States Parties,” accessed September 27, 2021, https://www.icc-cpi.int/about/states-parties.
[25] Rome Statute, Article 12.
[26] Rome Statute, Article 53-55.
[27] Rome Statute, Article 75.
[28] United Nations General Assembly,
Definition of Aggression, GA Res. 3314 (XXIX) (Dec. 14, 1974), available at http://www.un-documents.net?a29r3314.htm
[29] United Nations General Assembly,
Definition of Aggression, GA Res. 3314 (XXIX) (Dec. 14, 1974), available at http://www.un-documents.net?a29r3314.htm
[30] Rome Statute of the International Criminal
Court, art. 8bis (1), July 17, 1998, 2187 U.N.T.S. 90, available at https://www.icc-cpi.int/resource-library/Documents/RS-Eng.pdf.
[31] Id. Art. 8bis (2).
[32] Id. Art. 15bis (1).
[33] Id. Art. 15bis (4).
[34]
Rome Statute of the International Criminal Court, Art. 12-13 (1998).
[35]
Rome Statute of the International Criminal Court, Art. 12(2) (1998).
[36]
Rome Statute of the International Criminal Court, Art. 17 (1998).
[37] International Criminal Court,
States Parties, https://www.icc-cpi.int/pages/asp_sattes.aspx (last visited Apr. 11, 2023).
[38] Rome Statute of the International
Criminal Court, Art. 17(1) (1998).
[39] Rome Statute of the International
Criminal Court, art. 12, July 17, 1998, 2187 U.N.T.S. 3.
[40] “Status of Ratifications,”
International Criminal Court, accessed April 10, 2023, https://www.icc-int/about/status-of-ratifications.
[41] Rome Statute of the International
Criminal Court, art. 17
[42] Rome Statute of the International
Criminal Court, art. 25.
[43] Benjamin N. Schiff, “The International
Criminal Court: A Short Introductions,” Congressional Research Service, January
23, 2017, https://fas.org/sgp/crs/misc/R44207.pdf.
[44] Rome Statute of the International
Criminal Court, art. 6, July 17, 1998, 2187 U.N.T.S. 3.
[45] Rome Statute of the international
Criminal Court, art. 12.
[46] “Situation in Darfur, Sudan,”
International Criminal Court, accessed April 10, 2023, https://www.icc-cpi.int/darfur.
[47] Kirsten J. Fisher,” Ecocide and
Genocide: Defining the Relationship and Charting a Way Forward,” Journal of
Human Rights and the Environment 8, no. 2 (2017): 163-191.
[48] William Schabas, “THE
International Criminal Court: A Commentary on the Rome Statute,” (Oxford
University Press, 2010), 198-199.
[50] Rome Statute of the International
Criminal Court, art. 12.
[51] The Prosecutor v. Thomas Lubanga
Dyilo, “International Criminal Court, accessed April 10, 2023, https://www.icc-cpi.int/lubanga.
[52] W. Michael Reisman, “Crimes
Against Humanity.” The American Journal of International Law 93, no. 1 (1999):
43-58.
[53] William Schabas, “The
International Criminal Court: A Commentary on the Rome Statute,” (Oxford
University Press, 2010), 166-168.
[54] Rome Statute of the International
Criminal Court, art. 8, July 17, 1998, 2187 U.N.T.S. 3.
[55] Rome Statute of the International
Criminal Court, art. 12.
[56] “The Prosecutor v. Bosco
Ntaganda,” International Criminal Court, accessed April 10, 2023, https://www.icc-cpi.int/ntaganda.
[57] Bonnie Docherty and Tyler
Giannini, “Drones and the International Rule of Law,” Harvard International Law
Journal 54, no. 1 (2013): 1-75.
[58] William Schabas, “The
International Criminal Court: A Commentary on the Rome Statute,” (Oxford
University Press, 2010), 137-139.
[59] Rome Statute of the International
Criminal Court, art. 8 bis, July 17, 1998, 2187 U.N.T.S. 3
[60] Rome Statute of the International
Criminal Court, art. 15 bis.
[61] “The Crime of Aggression,”
International Criminal Court, accessed April 10, 2023, https://www.icc-cpi.int/crime-of-aggression.
[62] Jennifer Trahan, “The Kampala
Compromise on the Crime of Aggression: Did States Bargain Away Too Much?”
Leiden Journal of International Law 25, no. 1 (2012): 49-72.
[63] John Dugard, “The International
Criminal Court and the Crime of Aggression,” South Africa Journal on Huma
Rights 21, no. 1 (2005): 71-87.
[64] Rome Statute of the International
Criminal Court, art. 11(1).
[65] Ibid., art. 11(2).
[66] See, e.g., Prosecutor v.
Furundzija, Judgement, Trial Chamber II, 10 December 1998, para. 151.
[67] Rome Statute of the International
Criminal Court, art. 12(2).
[68] Ibid., art. 12(2)(a).
[69] Ibid., art. 13(b).
[70] Ibid., arts. 12-13.
[72] Rome Statute of the International
Criminal Court, Article 12.
[73] Ibid., Article 13.
[75] Rome Statute of the International
Criminal Court, Article 12.
[76] Ibid., Article 25(1).
[78] ICC, Situation in the Republic of
Mali, ICC-01/12-01/15, https://www.icc-cpi.int/mali/al-mahdi.
[79]
Ibid.
[80]
ICC, Al Mahdi Case: First ICC Case to Focus on the Destruction of Cultural
Heritage, https://www.icc-cpi.int/Pages/item.aspx?name=pr1263.
[81] Situation in the Libyan Arab
Jamahiriya, ICC-01/11-01/11, Pre-Trial Chamber I (June 27, 2011).
[82] Prosecutor v. Abd-Al-Rahman,
ICC-01/11-01/11-198, Pre-Trial Chamber I (Aug. 31, 2011).
[83] Situation in Libya, ICC-01/11,
Pre-Trial Chamber I (Nov. 22, 2011).
[84] Prosecutor v. Abd-Al-Rahman,
ICC-01/11-01/11-529, Pre-Trial Chamber I (Oct. 11, 2013).
[85] ICC, Libya: Ali Abd-AL-Rahman
transferred to the ICC, ICC-CPI-20140121-PR963 (Jan. 21, 2014).
[86] Prosecutor v. Abd-al-Rahman,
ICC-01/11-01/11-212, Trial Chamber I (July 15, 2016).
[87] See Rome Statute of the
International Criminal Court, art. 17.
[88] ICC, Situation in Libya: Pre-Trial
Chamber I reject Libya’s challenge to the admissibility of the case against
Saif Al-Islam Gaddafi and refers the matter to the ICC Prosecutor for
non-compliance by Libya with requests for cooperation, ICC-CPI-20120401-PR773
(Apr. 1, 2012).
[89] ICC, Libya: Ali Abd-AL-Rahman
transferred to the ICC, ICC-CPI-20140121-PR963 (Jan. 21, 2014); Prosecutor v.
Abd-Al-Rahman, ICC-01/11-01/11-212, Trial Chamber I (July 15, 2016).
Article Information
ROLE OF ICC IN THE PROTECTION OF HUMAN RIGHTS BY: SHISHAM PRADHAN
Authors: SHISHAM PRADHAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/14
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
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