JAMIA MILLIA ISLAMIA
2019-1020
PUBLIC INTERNATIONAL LAW
TOPIC: ROME STATUTE- SCOPE AND EVALUTION
SUBMITTED TO: Mrs. Noorjahan Momin
SUBMITTED BY: Mohd Altmash
SEM: 4TH (Regular) ROLL NO.: 37
COURSE: B.A LL. B (Hons.)
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For the first time in the history of the world, states decided to establish the permanent
International Criminal Court (hereinafter referred as ICC) for prosecuting the perpetrators for
the most serious crimes committed within the territory or by their nationals. On 17 th July 1998,
120 out of 160 states, adopted the statute of ICC in Rome, that’s why the same statute is known
as the “Rome Statute”, contained 128 articles, which came into force on 1 st July 2002. At
present 124 countries are the members of ICC. ICC can only intervene where the state is unable
or unwilling genuinely to carry out the investigation and prosecute the perpetrators.
Initially due to the absence of any permanent criminal court states established Ad Hoc
Tribunals, which had too many defects like they consumed too much time and the question
competency in the appointment of judges and prosecutors. After the world war second, two
international military tribunals were established1. In 1993 and 1994 tribunals were also
established at the former territory of Yugoslavia and at Rwanda respectively by the security
council2.
Objective of ICC:
To protect the fundamental interest of the international community3.
To try and prevent the individual from involving in serious crimes like genocide, war
crimes, crimes against humanity and aggression4.
Scope and Jurisdiction:
The part second (articles 5 to 21) of the ICC talks about the jurisdiction of the court. ICC sets
out crimes falling within the jurisdiction of ICC and provides the procedures and mechanism for
states to co-operate with ICC. The countries which have accepted these rules known as state
parties, meet at least once a year and set the general policies for its administration and its review
its policies.
Even though The Hauge is the permanent seat of the ICC but the Rome statute provides that the
court may sit elsewhere whenever the judges consider it desirable. The Rome Statute provides
1
One at Nuremberg and second at Tokyo for punishing war criminals of German and Japan.
2
Due to the violation international humanitarian law and genocide.
3
Dr. H. O. Agarwal, International Law and Human Rights, Central Law Publication, 17th Edition 2010.
4
Available at: https://www.icc-cpi.int/pages/cases.aspx
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that it can investigate and, where warranted, prosecute and try individuals only if the State
concerned does not, cannot or is unwilling genuinely to do so.
Crimes within the jurisdiction of the ICC: It totally depends upon the states to find out the
nature of the crime. states themselves recognize international crime because these crimes disrupt
or jeopardize the normal course of international relationships and threaten international peace
and security.
Initially what kind of crime will be treated as an international crime, was not clear. Classical
thinkers of international law did not pay attention to international crimes except the crime of
piracy because the individual was the object rather it's subject but for the modern thinkers, it
was the main concern.
During league of nation few crimes were classified like slavery, counterfeiting, and narcotic
drugs. The United Nation had played a vital role for crime prevention and formulation of
standards and norms of criminal justice even article 1 para 3 says it is the duty of every nation
to solve problems of each other with co-ordination5.
Finally, in statute numbers of crime have been recognized by the international community as
international crimes like genocide, crimes against humanity, the crime of aggression, war
crimes, piracy on the high sea, aircraft hijacking, traffic in women children, counterfeiting, and
narcotic drugs, etc.
What is genocide crime6?
Article 6 of the statute says “genocide” means any of the following acts committed with the
intent to destroy, in whole or in part, a national, ethnical, racial or religious group:
Killing members of the group,
Causing serious bodily or mental harm to the members of the group,
Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part,
Imposing measures intended to prevent births within the group,
Forcibly transferring children of the group to another group.
5
Supra note 3.
6
Understanding the International Criminal Court, available at: uicceng.in
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Above mentioned grounds are similar to the grounds mentioned under article 2 of the Genocide
Convention of 1948.
The Prosecutor v. Omar Hassan Ahmad Al Bashir7
In this case, Omar Hassan Ahmad Al Bashir was suspected of genocide allegedly committed in
Darfur, Sudan and the case is still going on before ICC. He is not in ICC custody8.
What are the crimes against humanity9?
Article 7 of the statute includes any of the following acts committed as part of a widespread or
systematic attack directed against any civilian population, with knowledge of the attack:
Murder,
Extermination,
Enslavement,
Deportation or forcible transfer of population,
Imprisonment,
Torture,
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or
any other form of sexual violence of comparable gravity,
Persecution against an identifiable group on political, racial, national, ethnic, cultural,
religious or gender grounds,
Enforced disappearance of persons,
The crime of apartheid
Other inhumane acts of a similar character intentionally causing great suffering or
serious bodily or mental injury.
What are war crimes10?
Article 8 of the statute includes grave breaches of the Geneva Conventions of 12 th August, 1949
and other serious violations of the laws and customs applicable in international armed conflict
7
ICC-02/05-01/09
8
Case information sheet, available at: www.icc-cpi.in
9
Ibid.
10
Id.
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and in conflicts “not of an international character” listed in the Rome Statute, when they are
committed as part of a plan or policy or on a large scale. These prohibited acts include:
Murder,
Mutilation, cruel treatment, and torture,
Taking of hostages,
Intentionally directing attacks against the civilian population,
Intentionally directing attacks against buildings dedicated to religion, education, art,
science or charitable purposes, historical monuments or hospitals,
Pillaging,
Rape, sexual slavery, forced pregnancy or any other form of sexual violence,
Conscripting or enlisting children under the age of 15 years into armed forces or groups
or using them to participate actively in hostilities.
The Prosecutor v. Thomas Lubanga Dyilo11
The International Criminal Court issued its first verdict, a unanimous decision that Democratic
Republic of Congo (DRC) militia leader Thomas Lubanga Dyilo is guilty of the war crimes of
enlisting and conscripting children under the age of 15 and using them to participate actively in
hostilities12.
What is a crime of aggression13?
Article 8 Bis14of the statute says a “crime of aggression” means:
The planning,
Preparation,
Initiation or execution of an act of using armed force by a State against the sovereignty,
territorial integrity or political independence of another State.
The act of aggression includes, among other things, invasion, military occupation, and
annexation by the use of force, blockade of the ports or coasts, if it is considered being, by its
character, gravity, and scale, a manifest violation of the Charter of the United Nations.
11
2012
12
Supra note 8.
13
Id.
14
Inserted by resolution RC/Res.6 of 11 June 2010.
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The perpetrator of the act of aggression is a person who is in a position effectively to exercise
control over or to direct the political or military action of a State.
Exception15: Article 26 of the statute provides some conditions where this court has no
jurisdiction-
Age: Any person who is under 18 years at the time of the commission of the crime.
Disease: If a person is suffering from mental disease or defect that destroys that person’s
capacity to control his conduct as per law.
Intoxication: If a person involuntarily consumed liquor and becomes incapable to
identify the unlawfulness or nature of his conduct.
Sentencing policy:
Part seven (Articles 77 to 80) of the statute gives the power to punish the criminal. Once the
parties have presented their evidence, the Prosecution and the Defense are invited to make their
closing statements and after closing statements the court by virtue Article 77 of the statute can
impose:
Imprisonment which may not exceed a maximum of 30 years,
Life imprisonment when justified by the extreme gravity of the crimes,
Fine as per the rules and procedure,
Forfeiture of proceeds, property, and assets derived directly or indirectly from the crime.
It is to be noted that the ICC cannot impose a death sentence.
Evaluation:
As everything has its positive and negative aspects similarly ICC also has some pros and cons-
Pros:
It is a permanent autonomous body different from ad hoc tribunal 16 and other similar
courts established within the framework of the United Nations to deal with specific
situations only have a limited mandate and jurisdiction. The ICC, which tries
15
Supra note 3.
16
For the former Yugoslavia and Rwanda.
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individuals, is also different from the International Court of Justice (The principal
judicial organ of the United Nations).
It is an independent body whose objective is to try individuals for crimes within its
jurisdiction without the need for a special mandate from the United Nations.
ICC respects the municipal laws of the nations. The ICC does not replace national
criminal justice systems; rather, it complements them.
ICC treats every individual equally. It does not provide any type of immunity to anyone
whether a person is bearing the greatest responsibility hold high political or military
office. Likewise, amnesty cannot be used as a defense before the ICC. As such, it cannot
bar the Court from exercising its jurisdiction.
ICC operates detainees in conformity with the highest international human rights
standards. The detainees have the opportunity to take walks in the courtyard, exercise,
receive medical care, take part in manual activities, access to the facilities at their
disposal for the preparation of their defense, access to computers, TV, books, and
magazines.
Cons:
ICC has prospective jurisdiction, it means the ICC has jurisdiction only with respect to
events which occurred after the entry into force of its Statute on 1 July 2002.
The ICC is often criticized for being inefficient, excessively expensive, and ineffective,
having secured only four convictions (Katanga, Lubanga, Bemba and Al Mahdi) in 17
years of work.
ICC was established in 2002 but gave his first decision in 2012 in the case The Prosecutor v.
Thomas Lubanga Dyilo.
ICC cannot take Suo moto cognizance, it can take cognizance only when the state is
unwilling or not prosecuting the criminal as per the laws.
Sometimes it may be influenced by politics because sometimes it takes cognizance when
states refer the case to it. For e.g. the referrals by Uganda, the Democratic Republic of
the Congo (DRC), the Central African Republic, Mali, the Union of Comoros, and
Gabon.
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Most recently, the Foreign Minister of Palestine, Riyad al-Maliki, personally delivered a file to
the ICC containing an 18-page document that asked the prosecutor to open an investigation into
crimes committed on Palestinian territory. Palestine argues that war crimes and crimes against
humanity have been committed by Israel and asks for an investigation of “matters related to the
Israeli settlement regime,” forcible transfer, murder, torture, persecution, “crimes involving the
establishment of a system of apartheid” among others17
In conclusion, the emergence of the Statute of Rome and the eventual establishment of the
International Criminal Court were a welcomed development in the field of international
criminal law and international humanitarian law. They ended the long-awaited cry for the
adoption of a Statute and a Court with jurisdiction to try the perpetrators of international crimes.
Bibliography:
1) Dr. H. O. Agarwal, International Law and Human Rights, Central Law Publication, 17th
Edition 2010.
2) Mark Klamberg, Commentary on the Law of the International Criminal Court, Torkel
Opsahl Academic E-Publisher, Brussels, 2017.
3) Rome Statute of the International Criminal Court, Published by the International
Criminal Court,2011
4) www.uicceng.in
5) www. theglobalobservatory.org.in
6) www.icc-cpi.int
17
The Chief Prosecutor of the ICC, Fatou Bensouda, addressing the Assembly of States Parties to the Rome Statute
available at: /theglobalobservatory.org/2018/08/twenty-years-icc-politicization-mechanisms.
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