International Criminal Court

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Posted by sonny 02/27/2009 @ 00:01

Tags : international criminal court, international justice, world

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United States and the International Criminal Court

Yes The United States should cooperate with ICC investigations in a way that reflects American sovereignty and promotes our national security interests.

In addition, other candidates in the Presidential election of 2008 also had expressed their interest in joining, or at least cooperating, to a larger extent, with the ICC.

The United States should have the chance to observe and assess the functioning of the court, over time, before choosing to become subject to its jurisdiction. Given these concerns, I will not, and do not recommend that my successor, submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied.

Nonetheless, signature is the right action to take at this point. I believe that a properly constituted and structured International Criminal Court would make a profound contribution in deterring egregious human rights abuses worldwide, and that signature increases the chances for productive discussions with other governments to advance these goals in the months and years ahead.

After the Rome Statute reached the requisite 60 ratifications in 2002, President George W. Bush "unsigned" the Rome Statute on May 6, 2002.

A treaty that is not ratified is not legally binding.

Arguing for the potential necessity of such an amendment to the U.S. Constitution does not in itself constitute opposition to the ICC; such an amendment can be passed through specified constitutional procedures, and ratified by the several states of the Republic. Indeed, it can be argued that the ICC has due process safeguards that are broadly comparable to those of the U.S. Constitution (if not technically compatible with them). It can also be argued that such an amendment would be keeping with--and not repugnant to the letter or the spirit of that same Constitution, whose Framers explicitly acknowledged "offenses against the law of nations" (or what we now know as the public international law) as being crimes subject to punishment under the domestic law of the United States, and with the historical role of the United States--a nation whose own Declaration of Independence notes a "decent respect to the opinions of Mankind"--as an advocate for much of the present system of international law, ranging from the issuance of the Lieber Code, to the key role the U.S. played in the Nuremberg Tribunal, to the chartering of the United Nations, to the ICTY, and the ICTR.

In addition, the Congress of the United States, in a resolution, acknowledged the ICC's authority to prosecute war crimes in Darfur.

The U.S. State Department has published a list of US objections to the Court.

The State Department remarks that under the Rome Statute, the ICC claims the authority to second-guess the actions taken and the results reached by sovereign states with respect to the investigation and prosecution of crimes.

For a number of reasons, the United States decided that the ICC had unacceptable consequences for our national sovereignty. Specifically, the ICC is an organization whose precepts go against fundamental American notions of sovereignty, checks and balances, and national independence. It is an agreement that is harmful to the national interests of the United States, and harmful to our presence abroad.

The ICC does not, and cannot, fit into a coherent, international structural "constitutional" design that delineates clearly how laws are made, adjudicated or enforced, subject to popular accountability and structured to protect liberty. There is no such design, nor should there be. Instead, the Court and the Prosecutor are simply "out there" in the international system. Requiring the United States to be bound by this treaty, with its unaccountable Prosecutor and its unchecked judicial power, is clearly inconsistent with American standards of constitutionalism. This is a macro-constitutional issue for us, not simply a narrow, technical point of law.

Subjecting U.S. persons to this treaty, with its unaccountable Prosecutor and its unchecked judicial power, is clearly inconsistent with American standards of constitutionalism. This is a macro-constitutional issue for us, not simply a narrow, technical point of law. Our concerns about politically motivated charges against U.S. persons are not just hypothetical. Recently in Belgium, allegations of war crimes were brought against the President, the Vice President, the Secretaries of State and Defense, and former President Bush under that country’s notorious and far-reaching universal competence statute. That problem was brought closer to home when senior Belgian officials themselves were charged under the statute, and the law was subsequently amended to limit its scope. Without sufficient protection against such frivolous charges, responsible officials may be deterred from carrying out a wide range of legitimate functions across the spectrum, from actions integral to our national defense to peacekeeping missions or interventions in humanitarian crises or civil wars, such as in Liberia. Simply launching criminal investigations has an enormous political impact. Although subsequent indictments and convictions are unquestionably more serious, a zealous independent Prosecutor can make dramatic news just by calling witnesses and gathering documents, without ever bringing formal charges.

The treaty also creates a proprio motu -- or self-initiating prosecutor -- who, on his or her own authority with the consent of two judges, can initiate investigations and prosecutions without referral to the court of a situation either by a government that is party to the treaty or by the Security Council. We opposed this proposal, as we are concerned that it will encourage overwhelming the court with complaints and risk diversion of its resources, as well as embroil the court in controversy, political decision-making, and confusion.

We also joined with many other countries during the years of negotiation to oppose the inclusion of crimes of terrorism and drug crimes in the jurisdiction of the court on the grounds that this could undermine more effective national efforts. We had largely prevailed with this point of view only to discover on the last day of the conference that the Bureau's final text suddenly stipulated, in an annexed resolution that would be adopted by the conference, that crimes of terrorism and drug crimes should be included within the jurisdiction of the court, subject only to the question of defining the relevant crimes at a review conference in the future. This last-minute insertion in the text greatly concerned us and we opposed the resolution with a public explanation. We said that while we had an open mind about future consideration of crimes of terrorism and drug crimes, we did not believe that including them will assist in the fight against these two evil crimes. To the contrary, conferring jurisdiction on the court could undermine essential national and transnational efforts, and actually hamper the effective fight against these crimes. The problem, we said, was not prosecution, but rather investigation. These crimes require an ongoing law enforcement effort against criminal organizations and patterns of crime, with police and intelligence resources. The court will not be equipped effectively to investigate and prosecute these types of crimes.

The list of due process rights guaranteed by the Rome Statute are, if anything, more detailed and comprehensive than those in the American Bill of Rights. . . . I can think of no right guaranteed to military personnel by the U.S. Constitution that is not also guaranteed in the Treaty of Rome .

The U.S. conservative group the Heritage Foundation claims that "United States participation in the ICC treaty regime would also be unconstitutional because it would allow the trial of American citizens for crimes committed on American soil, which are otherwise entirely within the judicial power of the United States. The Supreme Court has long held that only the courts of the United States, as established under the Constitution, can try such offenses." This statement refers to several issues. The first is the trial of American citizens by the ICC and implies that the Court does not have the power to try Americans for crimes committed on U.S. territory. The second refers to due-process issues.

As pointed out in the Congressional Research Service's Report for Congress, the ICC is not "an instrumentality of the U.S.".

In 2002 the United States began to undertake measures to shield U.S. nationals from prosecution by the ICC.

In 2002, the U.S. Congress passed the American Servicemembers' Protection Act (ASPA), which contained a number of provisions, including prohibitions on the United States providing military aid to countries which had ratified the treaty establishing the court; however, there were a number of exceptions to this, including NATO members, major non-NATO allies, and countries which entered into an agreement with the United States not to hand over U.S. nationals to the Court (see Article 98 agreements below). ASPA also excluded any military aid that the U.S. President certified to be in the U.S. national interest. Limits on military assistance have been repealed, as outlined below.

In addition, ASPA contained provisions prohibiting U.S. co-operation with the Court, and permitting the President to authorize military force to free any U.S. military personnel held by the court, leading opponents to dub it "The Hague Invasion Act." The act was later modified to permit U.S. cooperation with the ICC when dealing with U.S. enemies.

In addition, the Nethercutt Amendment to the Foreign Appropriations Bill suspends Economic Support Fund assistance to ICC States Parties who have not signed bilateral immunity agreements (BIAs) with the United States. The funds affected support initiatives including peacekeeping, anti-terrorism measures, democracy-building and drug interdiction. The omnibus appropriations bill containing the controversial amendment was signed by President Bush on December 7, 2004.

On October 17, 2006 President Bush signed into law an amendment to ASPA as part of the John Warner National Defense Authorization Act for Fiscal Year 2007 removing International Military Education and Training (IMET) restrictions for all nations. Previously, on October 2, 2006 President Bush had issued a waiver of these same IMET prohibitions with respect to 21 nations. Foreign Military Funds (FMF) restricted under ASPA were not affected by the 2006 waivers or the ASPA amendment. On November 22, 2006 President Bush issued ASPA waivers with respect to the Comoros and Saint Kitts and Nevis, followed by a similar waiver with respect to Montenegro on August 31, 2007.

On January 28, 2008 President Bush signed into law an amendment to the American Servicemembers' Protection Act (ASPA) to eliminate restrictions on Foreign Military Financing (FMF) to nations unwilling to enter into Bilateral Immunity Agreements (BIAs) shielding US nationals from the jurisdiction of the ICC. Section 1212 of HR 4986 effectively guts from ASPA all of the provisions which threaten nations with the loss of military assistance of any kind for refusing a BIA. In October 2006, Congress lifted International Military and Education Training (IMET) restrictions provided for in ASPA. ASPA will still place restrictions on US cooperation to the ICC, subject to the Dodd Amendment which essentially reverses the effect of ASPA by authorizing the US government to participate in a wide-range of international justice efforts, as well as US participation in peacekeeping missions, and authorize military force to free US nationals from the custody of the ICC.

Former Rep. George Nethercutt's so-called "Nethercutt Amendment" to the Foreign Operations, Export Financing, and Related Programs Appropriations Act suspends Economic Support Fund assistance to ICC States Parties who refuse bilateral immunity agreements (BIAs) with the US or have not been provided a Presidential waiver. The funds affected support initiatives including peacekeeping, anti-terrorism measures, democracy-building and drug interdiction. The language of the amendment allows presidential exemptions for NATO, MNNA (major non-NATO allies), and Millennium Fund countries.

The appropriations bill containing the controversial amendment was adopted two years in a row, for FY 2005 and FY 2006. Congress did not pass a foreign operations appropriations bill or any other bill containing the Nethercutt provision for FY 2007. On December 17, 2007 the US Congress approved HR 2764, a comprehensive Consolidated Appropriations Act which reinstates the so-called Nethercutt provision cutting off Economic Support Funds (ESF) to nations unwilling to enter into Bilateral Immunity Agreements (BIAs) or so-called Article 98 Agreements shielding US nationals from the jurisdiction of the ICC.

President Bush signed the bill into law on December 26 and it became Public Law 110-161. As a result, dozens of nations, many of which are allies of the US, may lose millions of dollars in economic assistance for FY 2008 and further alienate the US in the world community. The Nethercutt Amendment differs from former anti-ICC provisions the American Servicemembers' Protection Act (ASPA) by imposing economic aid cuts instead of military aid cuts. Cutting economic assistance is far a more damaging act because in many countries, it intended to bolster local economies instead of national defense. In addition, existing Status of Forces Agreements (SOFAs) and other bilateral agreements already provide full US jurisdiction over US personnel and officials serving abroad.

In July 2002, the United States threatened to use its Security Council veto to block renewal of the mandates of several United Nations peacekeeping operations, unless the Security Council agreed to permanently exempt U.S. nationals from the Court's jurisdiction. The then Secretary General of the United Nations, Kofi Annan, said at the time that the US proposal "flies in the face of treaty law", risked undermining the Rome Treaty setting up the court, and warned that it could end up discrediting the Security Council .

Initially, the United States had sought to prevent personnel on UN missions being tried by any country except that of their nationality. When the other members of the Security Council rejected that approach, the United States made use of a provision of the Rome Statute, which permits the Security Council to direct that the ICC may not exercise its jurisdiction over a certain matter for up to one year. The United States sought the Security Council to convey such a request to the ICC concerning personnel on United Nations peacekeeping and enforcement operations, and to have that request renewed automatically each year. (If renewed automatically each year, then another Security Council resolution would be required to cease the request, which the United States could then veto, which would effectively make the request permanent.) Court supporters argued that the Rome Statute requires the request to be valid to be voted upon anew each year in the Security Council, and hence that an automatically renewing request would violate the Statute. By international law, questions regarding the interpretation of the UN Charter may only be interpreted by the UN Security Council. The UN Charter requires that all UN members abide by the decisions of the Security Council, so only ICC members who are not also UN members are free to dissent.

Members of the Security Council opposed this United States request. However, they were increasingly concerned about the future of peacekeeping operations. The United Kingdom eventually negotiated a compromise, whereby the United States would be granted its request, but only for a period of one year, and a new Security Council vote would be required in July each year for the exclusion of peacekeepers from ICC jurisdiction to be continued. All members of the Security Council eventually endorsed resolution United Nations Security Council Resolution 1422.

NGO supporters of the Court, along with several countries not on the Security Council (including Canada and New Zealand), protested the legality of the resolution. The resolution was made under Chapter VII of the UN Charter, which requires a "threat to international peace or security" for the Security Council to act; ICC supporters have argued that a U.S. threat to veto peacekeeping operations does not constitute a threat to international peace or security. In such a case the UN Charter states that the Security Council will determine if the Security Council's actions conformed with the UN Charter.

A resolution to exempt citizens of the United States from jurisdiction of the ICC was renewed in 2003 by United Nations Security Council Resolution 1487. However, the Security Council refused to renew the exemption again in 2004 after pictures emerged of US troops torturing and abusing Iraqi prisoners in Abu Ghraib, and the US withdrew its demand..

As part of the U.S. campaign to exclude its citizens and military personnel from extradition by the ICC, the U.S. Bush administration has been approaching countries around the world seeking to conclude Bilateral Immunity Agreements, or “Article 98” agreements. Article 98 agreements do not offer Americans impunity, nor do they protect Americans from prosecution by any nation where they may commit any offense.

Others argue that due to the patriation of the ICC into the territory of every state-party, the ICC has effectively become an domestic court of the sovereign state in question, and, as an internal affair of the state-party, exemption of Americans from the jurisdiction of the ICC would render U.S. citizens "above the law"--specifically the domestic law--of the state-party, giving them such rights as Europeans were once given under the "unequal treaties" with other developing countries.

The United States has used bilateral diplomacy (or various forms of coercion) to persuade certain nations to sign these agreements. US law requires the suspension of military assistance and U.S. Economic Support Fund (ESF) aid to those States Parties which do not sign these agreements. The granting of such special favors is of course always subject to diplomacy. In 2002, the United States passed a law cutting off military aid for 35 countries (among them nine European countries), under the terms of an amendment to the American Service-Members' Protection Act. ESF funding entails a wide range of governance programs including international counter-terrorism efforts, peace process programs, anti-drug trafficking initiatives, truth and reconciliation commissions, wheelchair distribution and HIV/AIDS education, among others. Until 2008 U.S. law requires the cessation of such aid payments if a state is unwilling to sign the bilateral agreement (there are exceptions for NATO-members and allies such as Israel, Egypt, Australia and South Korea). However, these decisions were repealed in October 2006 and January 2008. In March 2006, Condoleezza Rice admitted that the United States' position on Article 98 agreements was "sort of the same as shooting ourselves in the foot".

Romania was one of the first countries to sign an Article 98 agreement with the United States. In response to Romania's action, the European Union requested that candidate countries not sign Article 98 agreements with the United States until the EU ministers had met to agree upon a common position. In October 2002, the Council of the European Union adopted a common position, permitting member states to enter into Article 98 agreements with the United States, but only concerning U.S. military personnel, U.S. diplomatic or consular officials, and persons extradited, sent to their territories by the United States with their permission; not the general protection of U.S. nationals that the United States sought; furthermore the common position provided that any person protected from ICC prosecution by such agreements would have to be prosecuted by the United States. This was in agreement with the original position of the EU, that Article 98 agreements were allowed to cover these restricted classes of persons but could not cover all the citizens of a state.

The United States has cut certain forms of military and economic funding for several countries that have not signed bilateral Article 98 agreements. Countries who have so declined aid include Barbados, Bolivia, Brazil, Costa Rica, Ecuador, Mexico, Paraguay, Peru, Saint Vincent and the Grenadines, Trinidad and Tobago, Uruguay and Venezuela. Mali, Namibia, South Africa, Tanzania and Kenya publicly rejected signing Article 98 agreements in 2003, and subsequently saw their Overseas Development Aid funding cut by more than 89 million dollars.

Benjamin B. Ferencz, an investigator of Nazi war crimes after World War II and the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, one of the twelve military trials held by the U.S. authorities at Nuremberg, later became a vocal advocate of the establishment of an international rule of law and of an International Criminal Court. In his first book published in 1975, entitled Defining International Aggression-The Search for World Peace, he argued for the establishment of an international court.

In a 2005 poll of 1,182 Americans by the Chicago Council on Foreign Relations and the Program on International Policy Attitudes at the University of Maryland, 69% favored US participation in the Court. However, knowledge of the Court was limited with only half of the Republicans knowing that the Court was opposed by the US government. Levels of support among Republicans were lower after the interviewees learned that the Court was opposed by the Bush administration.

We should be the natural leader in ... these areas ... when America doesn't engage in these international institutions, when we show disrespect for international agreements, it makes it extraordinarily difficult when we need the world community to rally around us ... we didn't used to be the country of Guantanamo and Abu Ghraib. We were the great light for the rest of the world, and America needs to be that light again.

We must repair our alliances...renew our commitment to International Law and multilateral cooperation...this means joining the International Criminal Court.

As president of the United States, I intend to take America in a different direction, rejecting war as an instrument of policy, reconnecting with the nations of the world, so that we can address the real issues that affect security all over the globe and affect our security at home: getting rid of all nuclear weapons, the United States participating in the chemical weapons convention, the biological weapons convention, the small arms treaty, the landmine treaty, joining the International Criminal Court, signing the Kyoto climate change treaty.

Fourth, Europe must acknowledge that the United States has global responsibilities that create unique circumstances. For example, we are more vulnerable to the misuse of an international criminal court because of the international role we play and the resentments that flow from that ubiquitous presence around the world. That does not mean, in my opinion, that the United States should walk out of the International Criminal Court. But it does mean we have legitimate concerns that the world should address, and it is fair to ask that there be sensitivity to those concerns that are really focused on the fact that the United States is active on every continent in the world. As we look to the future, there are so many opportunities for us to renew our relationship and we need to because we face so many challenges.

Consistent with my overall policy of reintroducing the United States to the world, I will as President evaluate the record of Court, and reassess how we can best engage with this institution and hold the worst abusers of human rights to account.

I want us in the ICC, but I’m not satisfied that there are enough safeguards.

Yes The United States should cooperate with ICC investigations in a way that reflects American sovereignty and promotes our national security interests.

The United Nations and the ICC are inherently incompatible with national sovereignty. America must either remain a constitutional republic or submit to international law, because it cannot do both. The Constitution is the supreme law of the land, and the conflict between adhering to the rule of law and obeying globalist planners is now staring us in the face. At present we fortunately have a President who opposes the ICC, but ultimately it is up to Congress – and concerned citizens – to insure that no American ever stands trial before an international court.

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International Criminal Court

Official logo of

The International Criminal Court (ICC or ICCt) (not to be confused with the International Court of Justice) is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although it cannot currently exercise jurisdiction over the crime of aggression).

The Court came into being on 1 July 2002 — the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force — and it can only prosecute crimes committed on or after that date. The official seat of the Court is in The Hague, Netherlands, but its proceedings may take place anywhere.

As of February 2009, 108 states are members of the Court; A further 40 countries have signed but not ratified the Rome Statute. However, a number of states, including China, Russia, India and the United States, are critical of the Court and have not joined.

The Court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council. The Court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore left to individual states.

To date, the Court has opened investigations into four situations: Northern Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur. The Court has issued public arrest warrants for twelve people; six of them remain free, two have died, and four are in custody. The Court's first trial, of Congolese militia leader Thomas Lubanga, began on 26 January 2009.

In 1948, following the Nuremberg and Tokyo Tribunals, the United Nations General Assembly recognised the need for a permanent international court to deal with atrocities of the kind committed during World War II. At the request of the General Assembly, the International Law Commission drafted two draft statutes by the early 1950s but these were shelved as the Cold War made the establishment of an international criminal court politically unrealistic.

Benjamin B. Ferencz, an investigator of Nazi war crimes after World War II and the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, one of the twelve military trials held by the U.S. authorities at Nuremberg, later became a vocal advocate of the establishment of an international rule of law and of an International Criminal Court. In his first book published in 1975, entitled Defining International Aggression-The Search for World Peace, he argued for the establishment of such an international court.

The idea was revived in 1989 when A. N. R. Robinson, then Prime Minister of Trinidad and Tobago, proposed the creation of a permanent international court to deal with the illegal drug trade. While work began on a draft statute, the international community established ad hoc tribunals to try war crimes in the former Yugoslavia and Rwanda, further highlighting the need for a permanent international criminal court.

Following years of negotiations, the General Assembly convened a conference in Rome in June 1998, with the aim of finalising a treaty. On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the United States, and Yemen.

The Rome Statute became a binding treaty on 11 April 2002, when the number of countries that had ratified it reached 60. The Statute legally came into force on 1 July 2002, and the Court can only prosecute crimes committed after that date. The first bench of 18 judges was elected by an Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the Court on 1 March 2003. The Court issued its first arrest warrants on 8 July 2005, and the first pre-trial hearings were held in 2006.

As of February 2009, 108 countries have joined the Court, including nearly all of Europe and South America, and roughly half the countries in Africa. However, these countries only account for a minority of the world's population.

A further 40 states have signed but not ratified the Rome Statute; the law of treaties obliges these states to refrain from “acts which would defeat the object and purpose” of the treaty. In 2002, two of these states, the United States and Israel, "unsigned" the Rome Statute, indicating that they no longer intend to become states parties and, as such, they have no legal obligations arising from their signature of the statute.

Article 5 of the Rome Statute grants the Court jurisdiction over four groups of crimes, which it refers to as the “most serious crimes of concern to the international community as a whole”: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The statute defines each of these crimes except for aggression: it provides that the Court will not exercise its jurisdiction over the crime of aggression until such time as the states parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.

Some commentators have argued that the Rome Statute defines crimes too broadly or too vaguely. For example, China has argued that the definition of ‘war crimes’ goes beyond that accepted under customary international law.

A Review Conference is due to take place in the first half of 2010. Among other things, the conference will review the list of crimes contained in Article 5. The final resolution on adoption of the Rome Statute specifically recommended that terrorism and drug trafficking be reconsidered at this conference.

The Court's jurisdiction does not apply retroactively: it can only prosecute crimes committed on or after 1 July 2002 (the date on which the Rome Statute entered into force). Where a state becomes party to the Rome Statute after that date, the Court can exercise jurisdiction automatically with respect to crimes committed after the statute enters into force for that state.

The Court is governed by an Assembly of States Parties. The Court consists of four organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.

The Court's management oversight and legislative body, the Assembly of States Parties, consists of one representative from each state party. Each state party has one vote and every effort has to be made to reach decisions by consensus. If consensus cannot be reached, decisions are made by vote.

The Assembly meets in full session once a year in New York or The Hague, and may also hold special sessions where circumstances require. Sessions are open to observer states and non-governmental organisations.

The Assembly elects the judges and prosecutors, decides the Court's budget, adopts important texts (such as the Rules of Procedure and Evidence), and provides management oversight to the other organs of the Court. Article 46 of the Rome Statute allows the Assembly to remove from office a judge or prosecutor who "is found to have committed serious misconduct or a serious breach of his or her duties" or "is unable to exercise the functions required by this Statute".

The states parties cannot interfere with the judicial functions of the Court. Disputes concerning individual cases are settled by the Judicial Divisions.

At the seventh session of the Assembly of States Parties in November 2008, the Assembly decided that the Review Conference of the Rome Statute shall be held in Kampala, Uganda, during the first semester of 2010.

The Presidency is responsible for the proper administration of the Court (apart from the Office of the Prosecutor). It comprises the President and the First and Second Vice-Presidents — three judges of the Court who are elected to the Presidency by their fellow judges for a maximum of two three-year terms. As of February 2009, the President is Philippe Kirsch, who was elected to a second term on 11 March 2006.

The Judicial Divisions consist of the 18 judges of the Court, organized into three divisions — the Pre-Trial Division, Trial Division and Appeals Division — which carry out the judicial functions of the Court. Judges are elected to the Court by the Assembly of States Parties. They serve nine-year terms and are not generally eligible for re-election. All judges must be nationals of states parties to the Rome Statute, and no two judges may be nationals of the same state. They must be “persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices”.

The Prosecutor or any person being investigated or prosecuted may request the disqualification of a judge from "any case in which his or her impartiality might reasonably be doubted on any ground". Any request for the disqualification of a judge from a particular case is decided by an absolute majority of the other judges. A judge may be removed from office if he or she "is found to have committed serious misconduct or a serious breach of his or her duties" or is unable to exercise his or her functions. The removal of a judge requires both a two-thirds majority of the other judges and a two-thirds majority of the states parties.

The Office of the Prosecutor is responsible for conducting investigations and prosecutions. It is headed by the Prosecutor, who is assisted by two Deputy Prosecutors. The Rome Statute provides that the Office of the Prosecutor shall act independently; as such, no member of the Office may seek or act on instructions from any external source, such as states, international organisations, non-governmental organisations or individuals.

Any person being investigated or prosecuted may request the disqualification of a prosecutor from any case "in which their impartiality might reasonably be doubted on any ground". Requests for the disqualification of prosecutors are decided by the Appeals Division. A prosecutor may be removed from office by an absolute majority of the states parties if he or she "is found to have committed serious misconduct or a serious breach of his or her duties" or is unable to exercise his or her functions. However, critics of the Court argue that there are “insufficient checks and balances on the authority of the ICC prosecutor and judges” and “insufficient protection against politicized prosecutions or other abuses”. Henry Kissinger says the checks and balances are so weak that the prosecutor “has virtually unlimited discretion in practice”.

As of February 2009, the Prosecutor is Luis Moreno-Ocampo of Argentina, who was elected by the Assembly of States Parties on 21 April 2003 for a term of nine years.

The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court. This includes, among other things, “the administration of legal aid matters, court management, victims and witnesses matters, defence counsel, detention unit, and the traditional services provided by administrations in international organisations, such as finance, translation, building management, procurement and personnel”. The Registry is headed by the Registrar, who is elected by the judges to a five-year term.

The Rome Statute provides that all persons are presumed innocent until proven guilty beyond reasonable doubt, and establishes certain rights of the accused and persons during investigations. These include the right to be fully informed of the charges against him or her; the right to have a lawyer appointed, free of charge; the right to a speedy trial; and the right to examine the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf.

In order to ensure “equality of arms” between defence and prosecution teams, the ICC has established an independent Office of Public Counsel for the Defence (OPCD) to provide logistical support, advice and information to defendants and their counsel. The OPCD also helps to safeguard the rights of the accused during the initial stages of an investigation. However, Thomas Lubanga's defence team say they have been given a smaller budget than the Prosecutor and that evidence and witness statements have been slow to arrive.

The Rome Statute provides for victim participation in the Court's proceedings. Article 43(6) establishes a Victims and Witnesses Unit to provide "protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses." Article 68 sets out procedures for the "Protection of the victims and witnesses and their participation in the proceedings." The Court has also established an Office of Public Counsel for Victims, to provide support and assistance to victims and their legal representatives. Article 79 of the Rome Statute establishes a Trust Fund to make financial reparations to victims and their families.

Unlike the International Court of Justice, the ICC is legally and functionally independent from the United Nations. However, the Rome Statute grants certain powers to the United Nations Security Council. Article 13 allows the Security Council to refer to the Court situations that would not otherwise fall under the Court's jurisdiction (as it did in relation to the situation in Darfur, which the Court could not otherwise have prosecuted as Sudan is not a state party). Article 16 allows the Security Council to require the Court to defer from investigating a case for a period of 12 months. Such a deferral may be renewed indefinitely by the Security Council.

The Court cooperates with the UN in many different areas, including the exchange of information and logistical support. The Court reports to the UN each year on its activities, and some meetings of the Assembly of States Parties are held at UN facilities. The relationship between the Court and the UN is governed by a “Relationship Agreement between the International Criminal Court and the United Nations”.

One of the principles of international law is that a treaty does not create either obligations or rights for third states (pacta tertiis nec nocent nec prosunt) without their consent, and this is also enshrined in the 1969 Vienna Convention on the Law of Treaties. The co-operation of the non-party states with the ICC is envisioned by the Rome Statute of the International Criminal Court to be of voluntary nature. However, even states that have not acceded to the Rome Statute might still be subjects to an obligation to co-operate with ICC in certain cases. When a case is referred to the ICC by the UN Security Council all UN member states are obliged to co-operate, since its decisions are binding for all of them. Also, there is an obligation to respect and ensure respect for international humanitarian law, which stems from the Geneva Conventions and Additional Protocol I, which reflects the absolute nature of IHL. Although the wording of the Conventions might not be precise as to what steps have to be taken, it has been argued that it at least requires non-party states to make an effort not to block actions of ICC in response to serious violations of those Conventions. In relation to co-operation in investigation and evidence gathering, it is implied from the Rome Statute that the consent of a non-party state is a prerequisite for ICC Prosecutor to conduct an investigation within its territory, and it seems that it is even more necessary for him to observe any reasonable conditions raised by that state, since such restrictions exist for states party to the Statute. Taking into account the experience of the ICTY (which worked with the principle of the primacy, instead of complementarity) in relation to co-operation, some scholars have expressed their pessimism as to the possibility of ICC to obtain co-operation of non-party states. As for the actions that ICC can take towards non-party states that do not co-operate, the Rome Statute stipulates that the Court may inform the Assembly of States Parties or Security Council, when the matter was referred by it, when non-party state refuses to co-operate after it has entered into an ad hoc arrangement or an agreement with the Court.

It is unclear to what extent the Court is compatible with reconciliation processes that grant amnesty to human rights abusers as part of agreements to end conflict. Article 16 of the Rome Statute allows the Security Council to prevent the Court from investigating or prosecuting a case, and Article 53 allows the Prosecutor the discretion not to initiate an investigation if he or she believes that “an investigation would not serve the interests of justice”. The President of the ICC, Philippe Kirsch, has said that "some limited amnesties may be compatible" with a country's obligations genuinely to investigate or prosecute under the statute.

It is sometimes argued that amnesties are necessary to allow the peaceful transfer of power from abusive regimes. By denying states the right to offer amnesty to human rights abusers, the International Criminal Court may make it more difficult to negotiate an end to conflict and a transition to democracy. For example, the outstanding arrest warrants for four leaders of the Lord's Resistance Army are regarded by some as an obstacle to ending the insurgency in Uganda. Czech politician Marek Benda argues that “the ICC as a deterrent will in our view only mean the worst dictators will try to retain power at all costs”. However, the United Nations and the International Committee of the Red Cross maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law.

The Court is financed by contributions from the states parties. The amount payable by each state party is determined using the same method as the United Nations: each state's contribution is based on the country’s capacity to pay, which reflects factors such as a national income and population. The maximum amount a single country can pay in any year is limited to 22% of the Court's budget; Japan paid this amount in 2008.

The Court spent €80.5 million in 2007, and the Assembly of States Parties has approved a budget of €90,382,100 for 2008 and €101,229,900 for 2009. As of September 2008, the ICC’s staff consisted of 571 persons from 83 states.

The official seat of the Court is in The Hague, Netherlands, but its proceedings may take place anywhere. The Court is currently housed in interim premises on the eastern edge of The Hague. The Court intends to construct permanent premises in Alexanderkazerne, to the north of The Hague.

The ICC also maintains a liaison office in New York and field offices in places where it conducts its activities. As of 18 October 2007, the Court had field offices in Kampala, Kinshasa, Bunia, Abéché and Bangui.

The ICC's detention centre comprises twelve cells on the premises of the Scheveningen branch of the Haaglanden Penal Institution, The Hague. Suspects held by the International Criminal Tribunal for the former Yugoslavia are held in the same prison and share some facilities, like the fitness room, but have no contact with suspects held by the ICC. The detention unit is close to the ICC's future headquarters in Alexanderkazerne.

As of February 2009, the detention centre houses five suspects: Thomas Lubanga, Germain Katanga, Mathieu Ngudjolo Chui, Jean-Pierre Bemba and former Liberian President Charles Taylor. Taylor is being tried under the mandate and auspices of the Special Court for Sierra Leone, but his trial is being held at the ICC's facilities in The Hague because of political and security concerns about holding the trial in Freetown.

The Court has received complaints about alleged crimes in at least 139 countries but, as of February 2009, the Prosecutor has opened investigations into just four situations: Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur.

In December 2003, the government of Uganda, a state party, referred to the Prosecutor the situation concerning the Lord’s Resistance Army in Northern Uganda. On 8 July 2005, the Court issued its first arrest warrants for the Lord's Resistance Army leader Joseph Kony, his deputy Vincent Otti, and LRA commanders Raska Lukwiya, Okot Odiambo, and Dominic Ongwen. Lukwiya was killed in battle on 12 August 2006, and Otti was killed in 2007, apparently by Kony. The LRA's leaders have repeatedly demanded immunity from ICC prosecution in return for an end to the insurgency. The government of Uganda says it is considering establishing a national criminal tribunal that meets international standards, thereby allowing the ICC warrants to be set aside.

On 17 March 2006, Thomas Lubanga, former leader of the Union of Congolese Patriots militia in Ituri, became the first person to be arrested under a warrant issued by the Court, for allegedly “conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities”. His trial was due to begin on 23 June 2008, but it was halted on 13 June when the Court ruled that the Prosecutor's refusal to disclose potentially exculpatory material had breached Lubanga's right to a fair trial. The Prosecutor had obtained the evidence from the United Nations and other sources on condition of confidentiality, but the judges ruled that the Prosecutor had incorrectly applied the relevant provision of the Rome Statute and, as a consequence, "the trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial". The Court lifted this suspension on 18 November 2008, and Lubanga's trial began on 26 January 2009.

Two more suspects, Germain Katanga and Mathieu Ngudjolo Chui, have also been surrendered to the Court by the Congolese authorities. Both men are charged with six counts of war crimes and three counts of crimes against humanity, relating to an attack on the village of Bogoro on 24 February 2003, in which at least 200 civilians were killed, survivors were imprisoned in a room filled with corpses, and women and girls were sexually enslaved. The charges against both men include murder, sexual slavery and using children under the age of fifteen to participate actively in hostilities.

In December 2004, the government of the Central African Republic, a state party, referred to the Prosecutor “the situation of crimes within the jurisdiction of the Court committed anywhere on the territory of the Central African Republic since 1 July 2002, the date of entry into force of the Rome Statute.” On 22 May 2007, the Prosecutor announced his decision to open an investigation, focusing on allegations of killing and rape in 2002 and 2003, a period of intense fighting between government and rebel forces.

On 23 May 2008, the Court issued an arrest warrant for Jean-Pierre Bemba, a former Vice President of the Democratic Republic of the Congo, charging him with war crimes and crimes against humanity, committed when he interfered in the the events in the Central African Republic in 2002 and 2003. He was arrested near Brussels the following day. On 3 July, 2008 he was surrendered to the ICC.

On 31 March 2005, the United Nations Security Council passed Resolution 1593, referring “the situation prevailing in Darfur since 1 July 2002” to the Prosecutor. In February 2007 the Prosecutor announced that two men — Sudanese humanitarian affairs minister Ahmad Muhammad Harun and Janjaweed militia leader Ali Kushayb — had been identified as key suspects, accused of war crimes and crimes against humanity. On 2 May 2007, the Court issued arrest warrants for the two men. However, Sudan says the Court has no jurisdiction over this matter, and refuses to hand over the suspects. On 14 July 2008, the Prosecutor accused Sudanese President Omar al-Bashir of genocide, crimes against humanity and war crimes, and requested that the Court issue an arrest warrant for him.

As of 4 October 2007, the Prosecutor had received 2889 communications about alleged crimes in at least 139 countries. After initial review, however, the vast majority of these communications were dismissed as “manifestly outside the jurisdiction of the Court”.

On 10 February 2006, the Prosecutor published a letter responding to complaints he had received concerning the 2003 invasion of Iraq. He noted that "the International Criminal Court has a mandate to examine the conduct during the conflict, but not whether the decision to engage in armed conflict was legal", and that the Court's jurisdiction is limited to the actions of nationals of states parties. He concluded that there was a reasonable basis to believe that a limited number of war crimes had been committed in Iraq, but that the crimes allegedly committed by nationals of states parties did not appear to meet the required gravity threshold for an ICC investigation.

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List of people indicted by the International Criminal Court

This is a list of people who have been indicted by the International Criminal Court (ICC), which was established in 2002 to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. The list includes all individuals for whom the court has issued public arrest warrants as of 12 February 2009.

To date, the ICC has opened investigations into four situations: Northern Uganda, the Democratic Republic of the Congo (DRC), the Central African Republic (CAR) and Darfur. The court has issued public arrest warrants for twelve people; six of them remain free, two have died, and four are in custody, awaiting trial. The court's first trial, of Congolese militia leader Thomas Lubanga, began on 26 January 2009.

All twelve of the indicted individuals have been charged with war crimes, and ten of them have also been charged with crimes against humanity. To date, no-one has been indicted for genocide, and the court cannot currently prosecute people for the crime of aggression.

In addition to the twelve people listed below, the prosecutor has also sought the arrest of Omar al-Bashir, the President of Sudan, for genocide, war crimes and crimes against humanity but, as of 12 February 2009, the judges have not decided whether to issue an arrest warrant.

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International Criminal Court Act 2001

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The International Criminal Court Act (c.17) is a Act of the Parliament of the United Kingdom. The Act implements into the law of England, Wales and Northern Ireland the Rome Statute of the International Criminal Court.

In 2006, three British military personnel were charged with inhumane treatment, a war crime, under the Act. Two of the three soldiers were cleared but the third, Corporal Donald Payne, became the first British person to be convicted of a war crime under this act.

The corresponding Act of the Scottish Parliament is the International Criminal Court (Scotland) Act 2001 (asp 13).

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Source : Wikipedia