International Journal of Advanced Research in Law and Social Science

1 International Journal of Advanced Research in Law and Social Science (VOL I ISSUE 1) Website www.lexkhoj.com Contact no- 8130059110, 8447163608 Email ID- thelordsadvocate@gmail.com

2 EDITORIAL NOTE We live in a period of increased inequality and decreased confidence in government s effectiveness. There is growing recognition of the need to bridge the silos that structure public problem solving and to collaborate across traditional boundaries. The current generation of lawyers requires the practice of mobilizing people to tackle tough problems and thrive. There is a growing sense that law schools are preparing people for a set of professional roles that do not match the demands or needs of a changing society. Thus, through the International Journal of Advanced Research in Law and Social Science, we strive to ensure that the legal fraternity works in consonance with their appropriate roles. As rightly said by Cicero - " The precepts of the law are these : to live honestly, to injure no-one and to give everyone his due." Law is nothing but the application of reason or common sense simpliciter. The tagline of the journal as written beneath the logo is thus 'dilargior res' which is the Latin equivalent of 'publishing reason'. We, the team of International Journal of Advanced Research in Law and Social Science intend to bring about consciousness and recognition towards contemporary national & international issues in the global legal arena, foster innovative research and discover groundbreaking solutions to the problems prevalent worldwide. International Journal of Advanced Research in Law and Social Science is a peer-reviewed journal that seeks contributions from legal practitioners, scholars, judges, academicians, students from all over the globe. Law is dynamic and so is the role of the legal community in examining critically and modifying the legal systems in the world to keep them aligned with the needs of the masses ensuring justice to one and all.

3 Functioning Body Founder Editors Aman Shukla Varun Suri Vishnu Pandey Editor-in-Chief Udyan Gautam Executive Editors Vishnu Tandi Sukriti Ghai Managing Editor Ritu Gautam

4 CHALLENGES CONFRONTED BY THE INTERNATIONAL CRIMINAL COURT: JURISDICTION AND STATE COOPERATION *Aman Shukla, BA.LLB 3 rd year, Lloyd Law College Introduction War criminals have been prosecuted at least since the time of the ancient Greeks, and probably well before that. The idea that there is some common denominator of behavior, even in the most extreme circumstances of brutal armed conflict, confirms beliefs drawn from philosophy and religion about some of the fundamental values of the human spirit. The early laws and customs of war can be found in the writings of classical authors and historians. Those who breached them were subject to trial and punishment. Modern codifications of this law, such as the detailed text prepared by Columbia University professor Francis Lieber that was applied by Abraham Lincoln to the Union army during the American Civil War, proscribed inhumane conduct, and set out sanctions, including the death penalty, for pillage, raping civilians, abuse of prisoners and similar atrocities. 1 Prosecution for war crimes, however, was only conducted by national courts, and these were and remain ineffective when those responsible for the crimes are still in power and their victims remain subjugated 1. The years between 1940-50 saw a great change on the world forum especially in terms of the international crimes, there were events like the bombing on pearl harbor, the II world war, the atomic bomb explosions in Hiroshima and Nagasaki which not only terrorized the international community but also laid to think about establishing an agency for prosecuting the perpetrators of crimes, which were not not adjudged by the municipal courts genuinely. Hence In 1948, the United Nations General Assembly (UN GA) adopted the Convention on the Prevention and Punishment of the Crime of Genocide in which it called for criminals to be tried by such international penal tribunals as may have jurisdiction and invited the International Law Commission (ILC) to study the desirability and possibility of establishing an international 1 William A. Schabas, 2001, 2004 Isbn-13 978-0-511-18676-9.

5 judicial organ for the trials of persons charged with genocide 2.While the ILC drafted such a statute in the early 1950s, the Cold War stymied these efforts and the General Assembly effectively abandoned the effort pending agreement on a definition for the crime of aggression and an international Code of Crimes 3.But even after the initial march the idea was not acted upon for several years till 1989 when motivated in part by an effort to combat drug trafficking, Trinidad and Tobago resurrected a pre-existing proposal for the establishment of an ICC and the UN GA asked that the ILC resume its work on drafting a statute 4. But the commission of mass crimes in Bosnia-Herzegovina and Croatia as well as in Rwanda led the UNGA to think and also to take certain immediate actions for the construction of some agency which paved the way for the creation of the two ad-hoc tribunals for prosecuting the perpetrators of crime and ultimately showing the urge for a permanent international criminal court. It was in 1994 when the ILC presented its final draft statute for an ICC to the UN GA and recommended that a conference of the nations be convened to negotiate a treaty and enact the Statute also that the court should be flexible and supplementary facility for state parties to the statute and that it should not have exclusive jurisdiction 5. The biggest challenge at that time was that the states which wanted the establishment of a court so as to control the international situation related to crimes which was deteriorating, even were reluctant on the issue of creating an international court with primary jurisdiction because it was a big question mark on the notion of state sovereignty, later the primary jurisdiction state was retained by the national courts. And finally in 1998 The Rome Conference took place from 15 June to 17 July in Rome, Italy, with 160 countries participating in the negotiations and the NGO Coalition closely monitoring these discussions, distributing information worldwide on developments, and facilitating the participation and parallel activities of more than 200 NGOs. At the end of five weeks of intense negotiations, 120 nations voted in 2 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9 1948, S. Exec. Doc. O, 81-1 (1949), 78 U.N.T.S. 277 3 International Criminal Court See also http://www.iccnow.org/?mod=icchistory 4 Ibid.2 5 Gurule, Jimmy, "United States Opposition to the 1998 Rome Statute Establishing an International Criminal Court: Is the Court s Jurisdiction Truly Complementary to National Criminal Jurisdictions?" (2008).

6 favor of the adoption of the Rome Statute of the ICC, with seven nations voting against the treaty (including the United States, Israel, China, Iraq and Qatar) and 21 states abstaining 6. Problems related to Jurisdiction: The major challenge before the international criminal court at its initial stage was the determination of jurisdiction. It cannot be denied that the International Criminal Court lacked any predecessor or was a new experiment on the international plane but the fact was that the international community had never experienced such a court which had a general criminal jurisdiction.also, as mentioned earlier there were some precedence of criminal courts exercising there jurisdiction over some matters of international crimes as a matter of fact the Nuremberg Tribunal had exercised jurisdiction to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations had committed one of the crimes within the Tribunal s subject-matter jurisdiction 7.Which makes it clear that it had jurisdiction on those particular persons, The I.C.T.Y on the other hand had the jurisdiction over the crimes committed in its territory; hence it has the territorial jurisdiction. But it was for the first time when the international community had ratified and agreed upon making such a court which has the personal as well as the territorial jurisdiction on the state parties. Whereas if we consider it thoroughly the crux which comes out makes it clear that the drafters have tried to limit the scope of the court in comparison to the national jurisdiction by adding the admissibility clauses to it. Analyzing all the 3 jurisdictional approaches individually- 6 Supra note.2 7 Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), Annex, (1951) 82 UNTS 279, Art. 6

7 A.Subject matter (rationemateriae) jurisdiction - The article 5 of the International criminal court states the matters on which the court can exercise its jurisdiction. The article contains 4 Genesis of crimes including genocide, crime against humanity, war crimes and crimes of aggression. The word genocide was coined in 1944 by Raphael Lemkin in his book on Nazi crimes in occupiedeurope 8. The statute of the International Criminal Court defines genocide as an act committed with the intent to destroy, in whole or in part, a national, ethical, racial or religious group. B.Temporal (ratione temporis) jurisdiction The Court is a prospective institution in that it cannot exercise jurisdiction over crimes committed prior to the entry into force of the Statute {art 11(1)}. And hence the court cannot exercise its jurisdiction on the crimes committed in the territory of the nation before ratifying the statute of the court which is specifically mentioned in the article 126 of the statute of the court which limits the court in taking up the situation happened before the state party ratifying the statute.also, articles 24 and 11 in the same context provide provisions that, a person cannot be held criminally responsible by the court for conduct prior to the entry into force of the statute and that the court has jurisdiction only with respect to crimes committed after the enforcement of the statute respectively. The court has limited itself up to a great extent as all the ways of exercising its jurisdiction on the situation which has happened before the establishment of court has been blocked by the given provisions but a ray of hope has been left in the face of art 12(2)which provides that a state though not a party to the Rome statute can accept the jurisdiction of the court in a particular matter and then the court can exercise its jurisdiction over that state which as a matter of fact is not a party to the statute 9. But, even in such a case, the Court would obviously be without jurisdiction to prosecute a crime committed prior to the entry into force of the Statute. 8 Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government,Proposals for Redress, Washington: Carnegie Endowment for World Peace, 1944 9 William A. Schabas, 2001, 2004 Isbn-13 978-0-511-18676-9

8 C.Territorial (ratione loci) jurisdictionthe Court has jurisdiction over crimes committed on the territory of States parties, regardless of the nationality of the offender. This general principle is set out in Article 12(2)(a) of the Statute. It also has jurisdiction over crimes committed on the territory of States that accept its jurisdiction on an ad hoc basis and on territory so designated by the Security Council. The 1948 Genocide Convention provides some precedent for the idea that an international criminal court will have jurisdiction over crimes committed on the territory of a State party. Article VI of the Convention envisages just such an eventuality 10. Territory, for the purposes of criminal law jurisdiction, is a term that needs to be defined. Obviously, it will extend to the land territory of the State. The Statute also considers the concept of territory to include crimes committed on board vessels or aircraft registered in the State party 11. This is a rather common and widely accepted extension of the concept of territorial jurisdiction. Logically, territorial jurisdiction should extend to the air above the State, and to its territorial waters and, possibly, its exclusive economic zone. But the actual scope of these grey areas remains to be determined. There are really no useful precedents from the case law of previous international criminal tribunals. Solutions to these issues will be sought in the practice of national justice systems, although this varies considerably and it is difficult to establish any common rules that are generally accepted. Whatever the result, some territories are necessarily beyond the reach of the Court: the high seas, Antarctica and outer space. If atrocities are committed in these places, jurisdiction will have to be established on the basis of the nationality of the offender. Many national jurisdictions extend the concept of territorial jurisdiction to include crimes that create effects upon the territory of a State. For example, it could be argued that, in the case of a conspiracy to commit genocide 12, the Court might have jurisdiction even if the conspirators actually hatched their plan outside the territory where the crime was to take place. Similarly, an order to take no prisoners, which is a crime in and of itself even if nobody acts upon the order 13, could be committed outside the territory of a State but might be deemed to fall within the jurisdiction of the Court if its effects were felt on the territory. The case becomes somewhat clearer in cases of incitement and abetting. Nevertheless, given the silence of the Statute about 10. Ibid.Pg 70 1 11 Rome Statute, Art. 12(2)(a) 12 Ibid., Arts. 6 and 25(d). 13 Ibid., Arts. 8(2)(b)(xii) and 8(2)(e)(x).

9 effects jurisdiction, there are compelling arguments in favors of a strict construction of Article 12 and the exclusion of such a concept.debates about the scope of territory are likely to lead to disputes, and it is not improbable that the judges of the International Criminal Court will find themselves determining where international borders are placed, and who has title to specific territory. It is said that somewhat more than 50 per cent of international boundaries are disputed. Obviously, the places where these disputes are most acute are also likely to be the trouble spots on which the Court s attention will focus. An example from the Middle East should suffice. Suppose that the leaders of the Palestinian Authority declare independence and, at the same time, accede to the Rome Statute. The Court would have jurisdiction over the territory of an independent Palestine, of which most if not all of the actual boundaries would be contested. Similar issues could arise in the opposite direction if Israel were to make a declaration under Article 12(3) of the Statute, thereby accepting the jurisdiction of the Court with respect to a specific crime committed on its territory. At the time of ratification a few States have made declarations concerning the territorial scope of the Rome Statute. In contrast with many other multi-lateral international instruments, there is no specific provision for this in the Statute. The Netherlands has made a harmless but reassuring statement to the effect that the Statute applies not only to its European territory but also to the Netherlands Antilles and Aruba. More troublesome is Denmark s dec-laration that it does not intend the Statute to apply to the Faroe Islands and Greenland While this was no doubt motivated by admirable sentiments of respect for local autonomy, it has the effect of excluding the reach of the Court from a territory which, on its own, has no right to correct the situa-tion, because neither the Faroe Islands nor Greenland are sovereign States and as a result they cannot accede to the Statute. Were a case to arise, the Court might well take the lead from analogous cases before the European Court of Human Rights 14 and rule the Danish declaration to be an illegal reservation without any effect, in accordance with Article 120 of the Statute, thereby recognizing jurisdiction over the disputed territories. 14 Loizidouv. Turkey (Preliminary Objections), Series A, No. 310.

10 D. Acceptance of Jurisdiction (Article 12) The situations which can be assessed for the acceptance of jurisdiction are, when a State Party refers a situation to the Prosecutor or if the Prosecutor initiates the investigation proprio motu, the ICC may exercise its jurisdiction only if the territorial State, the State where the crime was committed, orthe nationality State of the nationality of the accused, has consented to the jurisdiction of the Court. However, the referral of a situation by the U.N.Security Council acting under its Chapter VII authority does not require the consent of either the territorial or Nationality State 15.The acceptance of jurisdiction can be in the following conditions as mentioned in Article 12: 1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. 2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute Or have accepted the jurisdiction of the Court in accordance with paragraph (a) The State on the territory of which the conduct in question occurred Or, if the crime was committed on board a vessel or aircraft, the State of Registration of that vessel or aircraft;(b) The State of which the person accused of the crime is a national. 3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9. 15 Under Article 12(2), acceptance by a non-state Party of the exercise of the ICC's jurisdiction is only required when the referral is made by a State Party or when the Prosecutor has initiated the investigation.

11 Article 12(1) confers jurisdiction directly and permits the Court to exercise its jurisdiction if either the territorial State or the State of nationality of the accused is a Party to the Statute. However, if neither is a Party to the Rome Statute and the case is referred to the Prosecutor by a State Party, or the investigation has been initiated by the Prosecutor proprio motu, the territorial State or the State of nationality must consent to the jurisdiction of the ICC 16. Thus, if both the State where the alleged criminal acts occurred, and the State where the accused is a national object to the Court's jurisdiction, the ICC is denied jurisdiction over the complaint 17. 16 Id. art.12(3). 17 Gurule, Jimmy, "United States Opposition to the 1998 Rome Statute Establishing an International Criminal Court: Is the Court's Jurisdiction Truly Complementary to National Criminal Jurisdictions?" (2008)

12 E. ISSUE OF ADMISSIBILITY -Central to the principle of complementarily is the concept of "inadmissibility embodied in Article 17 of the Rome Statute 18. Article 17 provides that a case is "inadmissible," meaning the Court is barred from considering it,if any of four circumstances exist: (1) the case is being investigated or prosecuted by a State that has jurisdiction over it; (2) the case has been investigated by a State that has jurisdiction over it and the State has decided not to prosecute the persons concerned; (3) the person concerned has already been tried for conduct that is the subject of the complaint, and a trial by the ICC is not permitted under Article 20, paragraph 3 (ne bis in idem principle); or (4) the case is not of sufficient gravity to justify further action by the Court 19.However, with respect to the first three reasons for finding a case inadmissible,article 17 recognizes an exception to the rule if a State with jurisdiction is "unwilling or unable" to carry out an investigation or prosecution 20. The Statute does not require deferral to State jurisdiction when the decision not to prosecute resulted from (1) the "unwillingness or inability of the State genuinely to prosecute 21,"or (2) in the case of a person who has already been prosecuted, the State proceedings were for the purpose of "shielding" the person concerned from criminal responsibility, or (3) otherwise were not conducted independently and impartially 22.Under the Statute, the words "unwilling" and "unable" carry special meaning. With respect to whether the State is "unwilling" "genuinely" to carry out the investigation or prosecution, or the decision not to prosecute resulted from the "unwillingness" of the State "genuinely" to prosecute. 18 Art.17(1) 19 Article 17 states in relevant part: 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;(d) The case is not of sufficient gravity to justify further action by the Court. 20 Id. art. 17(1)(a). 21 Id. art. 17(1)(b). 22 Id. arts. 17(1)(c), 20.

13 Thus, under Article 17(2), the term "unwilling" has three related meanings. First, under subparagraph (a), a State may be found unwilling to carry out a pending investigation or prosecution when the State proceedings were undertaken or are being undertaken, or the decision not to prosecute was made for the purpose of "shielding" the suspect from criminal responsibility 23.In such a case, the ICC is not required to defer. Second, pursuant to subparagraph (b), the ICC is not required to defer if a State is unwilling to undertake its obligations to investigate or prosecute a particular case if there has been an "unjustified delay" in the State proceedings, which under the circumstances is inconsistent with intent to bring the suspect to justice 24. Finally, pursuant to subparagraph (c), the ICC is not required to defer if the State proceedings were not or are not being conducted "independently or impartially," and were or are being conducted in a manner inconsistent with an intent to bring the person concerned to justice 25.The reasons advanced under Article 17(2) for finding that a State is "unwilling" to investigate or prosecute, i.e., "shielding," "unjustified delay, and lack of "independent or impartial" proceedings, are not mutually exclusive. For example, evidence that there has been an unjustified delay in the State proceedings could be relevant to prove that the proceedings were for the purpose of "shielding" the offender from justice, as well as demonstrate that the proceedings were not being conducted "independently or impartially. It should be emphasized that to determine "unwillingness" in a particular case, the ICC must apply "principles of due process recognized by international law" 26. Thus, whether the State attempted to "shield" the offender, the proceedings were "unjustifiably delayed," or the proceedings were not conducted "independently or impartially" should be measured against "principles of due process recognized by international law 27.With respect to a State's inability to prosecute or carry out an investigation, the Court shall consider whether "due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings. 23 Id. art. 17(2)(a). 24 Id. art. 17(2)(b). 25 Id. art. 17(2)(c). 26 Id. art.17(2). 27 Gurule, Jimmy, "United States Opposition to the 1998 Rome Statute Establishing an International Criminal Court: Is the Court's Jurisdiction Truly Complementary to National Criminal Jurisdictions?" (2008).

14 ICC's Challenge: Lack of State Cooperation- Fifteen years after the signing of its founding treaty, one of the main challenges facing the International Criminal Court is to secure the cooperation of member states. The major issue here is that due to lack in its own enforcement mechanism, the ICC is entirely dependent on States and other entities to carry out many of its core functions. As former ICC President Philippe Kirsch has noted Like any judicial system, the ICC system is based on two pillars. The Court is one pillar, the judicial pillar. The operational pillar belongs to States, international organizations, and civil society 28. Part nine of the ICC Statute is devoted to the issue of State cooperation. Article 88 specifically obliges States Parties to alter their domestic legal arrangements in connection with ratification of the treaty.9 In particular, States Parties are to ensure that their domestic legal arrangements enable them to render a number of forms of cooperation, including the arrest and transfer of suspects, the freezing of assets, the protection of victims and witnesses, and the procuring of documentary and testimonial evidence (see Articles 86-93). In the event of noncompliance, the Court can refer the matter to the Assembly of States Parties or, where the Security Council hreferred the matter to the Court, to the Security Council (Article 87(7)) 29. Tese obligations are subject to exceptions yet to be tested in situations in which the disclosure of information would threaten national security, as determined by the State itself in consultation with the Court (Article 72). In addition, the Court can provide assistance to States Parties investigating and prosecuting ICC crimes pursuant to Article 93(10). States parties are to execute requests for assistance in accordance with their relevant domestic procedures pursuant to Article 99(1), although domestic law may not be invoked to deny cooperation per Article 93(3). In the event of noncompliance, the Assembly of States Parties likely cannot do much more than make a finding to this effect. In the event that the Council refers a situation, it can utilize its Charter based enforcement powers to gain State cooperation.article 87(5) of the ICC Statute also envisions that the Court might invite assistance from non-states Parties, such as the United States and two other permanent members of the Security Council that have yet to join the Court: China and the Russian Federation. Non-States Parties are welcome to enter into cooperative arrangements with the Court on an ad hoc basis. If 28 Citizens for Global Solutions, Citizens for Global Solutions with President Kirsch, http://www.globalsolutions.org/node/1175. 29 State Cooperation & The International Criminal Court: A Role for the United States? Beth Van Schaack Associate Professor of Law Santa Clara University School of Law This paper can be downloaded without charge from the Social Science Research Electronic Paper Collection: http://ssrn.com/abstract

15 these non-state Parties fail to cooperate, they too can be forwarded to the Assembly of States Parties, or the Security Council in the event of a Council referral. Conclusion It should be considered that the text of the preamble, which declare that the ICC shall be complementary to national criminal jurisdictions is violated by the practices of the ICC. The ICC's jurisdiction is not complementary, as the statute does not mandate the ICC prosecutor to defer to national prosecutions conducted in good faith. Rather, the ICC's exercise of jurisdiction is ultimately based on the court's ability to second guess national prosecutions by faulting the independence and impartiality of national prosecutions, predicated on the vague notion of "principles of due process recognized by international law 30. Hence it shall have powers to exercise its jurisdiction even if the national prosecutions prima facie appears to be conducted without malice, though it appears to pose a threat to the sovereignty of the state parties but certain additions of these sought are required at this hour of time where international crimes are increasing at a very fast rate. Second, for solving the problem of state cooperation where, the national prosecutions appear to shield the alleged perpetrators, the prosecutor must have the support of a special police force which shall be exclusively maintained by the court, which would ultimately reduce the dependence of the prosecutor on the state s where the crime has been committed and the state parties after shielding the perpetrators now continue to try to protect them from the investigations and procedures of the prosecutor of the International Crime Court. The Rome Statute creates a super-international appellate court with unchecked de novo review over national jurisdictions. Hence the appropriate changes must be made at this point of time. 30 Gurule, Jimmy, "United States Opposition to the 1998 Rome Statute Establishing an International Criminal Court: Is the Court's Jurisdiction Truly Complementary to National Criminal Jurisdictions?" (2008).