UNDERSTANDING THE ICC

I have no qualms with the International Criminal Court (ICC) executing its job, but I am worried about the degree of ignorance about the ICC’s jurisdiction, powers and functions.

The ICC is a court of last resort. It complements national courts. It means that the ICC does not replace the national courts. Therefore, States have the primary responsibility to investigate, try and punish the perpetrators of the most serious crimes. The Hague-based court will only step in if the State where serious crimes under the ‘court’s jurisdiction’ have been committed is unwilling or unable to genuinely address them. It is important that I mention that the ICC investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community. Underline this – “gravest crimes of concern to the international community.”

These crimes are genocide, war crimes, crimes against humanity and the crime of aggression. It is governed by an international treaty called the Rome Statute. First, look at it this way; does the ICC have jurisdiction over the cases committed in Russia if they were any that warranted the court’s intervention? Okay, can the ICC try individuals from Eswatini? Why do I pose this question? Russia and Eswatini are not State parties to the Rome Statutes. It means the court has no jurisdiction over these countries. But, it may have a special jurisdiction. I will explain later in the article. 

There was a mixed reaction to the arrest warrant for the President of Russia, Vladimir Putin. The warrant was issued by the ICC judges on the basis of an application by the Office of the Prosecutor. Others hailed the court for a good response to the Russia-Ukraine war, whilst others criticised the institution for overstepping its boundaries. This is because Russia, as stated above, is not a State party to the Rome Statute, which establishes the ICC. In fact, the three first world powers, USA, Russia and China are not members of the ICC.

Former US President Bill Clinton had signed the Rome Treaty but his successor, George W. Bush revoked it. It is understood that Bush was possibly afraid that American soldiers would be a target for the ICC. He, too, could have been held for crimes against humanity, wherein he authorised US’s invasion of Iraq.

Respect

In terms of respect for human rights and ratification of the Rome Treaty, countries like China, Russia, Israel, Qatar, Libya and others are a non-brainer. It is only surprising that the USA is not a member of the ICC. Bringing it back home, some users of social media, mainly Facebook, hailed a move by Bonginkhosi ‘IB’ Dlamini, the Chairman of the Eswatini Diaspora, to report or attempt to report a case against Eswatini. It was reported that Dlamini flew to Hague in the Netherlands to report the case. Did he know that Eswatini is not a member of the ICC? Since he is a clued-up liSwati and a former executive member of one of the country’s giant companies, I believe Dlamini, an educated fellow, was aware of the country’s status at ICC. I must state that even if a State is not a member of the court, individuals from that country can still be brought before it.   The court, it must be emphasised, does not prosecute countries but individuals.

Pay attention, in terms of the Rome Statute, the ICC can only exercise jurisdiction in the territory of the following –

• State Parties,
• Non-State Parties that consent to jurisdiction,
• State Parties that are referred to the court by the United Nations Security Council;

In this particular case, the only way that individuals from Eswatini and Russia could be brought before the ICC is through a directive from the UN Security Council. There are five permanent members of the UN Security Council. In total, there are 15 members. Interestingly, one of the Permanent members of the Council is Russia and its ally China. The other three are France, United Kingdom and the United States. It must be said that the five permanent members have the power to veto any substantive resolution. The veto is the power to block adoption of a resolution but not to prevent or end the debate.  

Permanent membership in the Council was granted to the five States, based on their importance in the aftermath of World War II. Elected by the UN General Assembly for two-year terms, the non-permanent members are Albania, Brazil, Ecuador, Gabon, Ghana, Japan, Malta, Mozambique, Switzerland and United Arab Emirates. It is clear then that there was no Council resolution authorising the ICC to issue the arrest warrant for Putin. Obviously, Russia would have vetoed the resolution. China would have also done the same if Russia recused itself.

Bypassed

Who might have bypassed the UN Security Council to order the ICC judges to issue the warrant for Putin’s arrest? Your guess is as good as mine.
I am not condoning possible criminal behaviour in Russia, nor do I support the Russia-Ukraine war. I condemn the war in the strongest possible terms. I am only concerned about law, jurisdiction, powers and procedure.  The biggest question now is who can bring individuals from Eswatini without the approval of the UN Security Council. Who can veto this resolution? Continue guessing!

 I take notice that any individual, group or organisation can send information on alleged crimes to the Office of the Prosecutor (OTP) of the ICC. These are referred to as “communications.” They can be sent by post, by fax or by e-mail to Hague. This is in accordance with Article 15 of the Rome Statute. The court’s founding treaty grants the ICC jurisdiction over four main crimes - first, the crime of genocide. The case of genocide must be characterised by the specific intent to destroy in whole or in part a national, ethnic, racial or religious group by killing its members or by other means.
The prosecutors must establish that the intent should be to also cause serious bodily or mental harm to members of the group. The intent is to deliberately inflict 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; or forcibly transferring children of the group to another group.

Humanity

Secondly, the ICC can prosecute crimes against humanity, which are serious violations committed as part of a large-scale attack against any civilian population. The 15 forms of crimes against humanity listed in the Rome Statute include offences such as murder, rape, imprisonment, enforced disappearances, enslavement – particularly of women and children, sexual slavery, torture, apartheid and deportation. According to the ICC, crimes against humanity are acts committed as part of a widespread or systematic attack directed against any civilian population. The court prosecutes the perpetrators even if the crimes were not committed in times of war.

The third crime that the ICC has jurisdiction over or has powers to try is called war crimes. This relates to grave breaches of the Geneva Conventions in the context of armed conflict. The breaches include, for instance, the use of child soldiers; the killing or torture of persons such as civilians or prisoners of war; intentionally directing attacks against hospitals, historic monuments, or buildings dedicated to religion, education, art, science or charitable purposes.

Finally, the fourth crime falling within the ICC’s jurisdiction is the crime of aggression. It is the use of armed force by a State against the sovereignty, integrity or independence of another State. The definition of this crime was adopted through amending the Rome Statute at the first Review Conference of the Statute in Kampala, Uganda, in 2010. The OTP is an independent organ of the Court. It is responsible for examining situations under the jurisdiction of the court where genocide, crimes against humanity, war crimes and aggression appear to have been committed, and carrying out investigations and prosecutions against the individuals who are allegedly most responsible for those crimes.

According to the ICC, it is for the first time in history that an international prosecutor has been given the mandate, by an ever-growing number of States, to independently and impartially select situations for investigation where atrocity crimes are or have been committed on their territories or by their nationals. The OTP benefits from the services of approximately 380 staff members from over 80 different nationalities. profession They include members of the legal profession, investigators and analysts, psycho-social experts, individuals with experience in diplomacy and international relations, public information and communication, and others. It is worth mentioning, that the current prosecutor is  Karim Khan from the United Kingdom and his Deputies are Mame Mandiaye Niang (Senegal) and Nazhat Shameem Khan from Fiji.

How does the prosecutor start operations? Under Article 13 of the Rome Statute, there are three ways the exercise of the court’s jurisdiction can be triggered where crimes under its jurisdiction appear to have been committed. The ICC explains that any State party of the Rome Statute may request the prosecutor to carry out an investigation. This was the case for the Democratic Republic of Congo (DRC), Uganda, Central African Republic (CAR) and Mali.

As pointed out above, the UN Security Council may also refer a situation to the prosecutor. Cases referred to the ICC by the Council include Darfur and Libya. Referrals from the Council may also give the court jurisdiction over States not Party to the Rome Statute;
I have learnt that the prosecutor may also open an investigation on her own initiative after the authorisation of the judges.
Finally the prosecutor cannot,  on his motion, investigate non State parties.

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