Q&A: International Criminal Court

  • 11 March 2013
  • From the section World
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The International Criminal Court in The Hague has been a controversial addition to the global justice system since it began operating in 2002. The court has been ratified by 121 countries - but not by the US.

The BBC News website examines the main issues surrounding the court.

What is the court designed to do?

To prosecute and bring to justice those responsible for the worst crimes - genocide, crimes against humanity and war crimes - committed anywhere in the world.

It is a court of last resort, intervening only when national authorities cannot or will not prosecute.

Aren't there already several international courts?

Yes, but they either do different jobs or have a limited remit.

The International Court of Justice (sometimes called the World Court) rules on disputes between governments. It cannot prosecute individuals.

The international criminal tribunals for the former Yugoslavia and Rwanda do try individuals for crimes against humanity, but only those crimes committed in those territories over a limited time.

Those tribunals will eventually be wound up. The International Criminal Court however, is a permanent body.

Are there any time limits on what it covers?

The court has no retrospective jurisdiction - it can deal only with crimes committed after 1 July 2002 when the 1998 Rome Statute came into force.

Additionally, the court has automatic jurisdiction only for crimes committed on the territory of a state which has ratified the treaty; or by a citizen of such a state; or when the United Nations Security Council refers a case to it.

What kind of cases is the court pursuing?

All of the cases currently open are in Africa - prompting some African leaders to say it is biased.

The court's first verdict, in March 2012, was against Thomas Lubanga, the leader of a militia in Democratic Republic of Congo. He was convicted of war crimes relating to the use of children in that country's conflict and sentenced in July to 14 years.

The highest profile person to be brought to the ICC is Ivory Coast's former President Laurent Gbagbo.

He faces four charges of crimes against humanity - murder, rape and other forms of sexual violence, persecution and "other inhuman acts".

The charges relate to the violence that followed disputed elections in 2010.

In November 2010, a trial started of Jean-Pierre Bemba, a former DR Congo vice-president.

Mr Bemba - a former rebel leader - is charged with two counts of crimes against humanity and three counts of war crimes over alleged cases of murder, rape and pillage in the Central African Republic (CAR) in 2002 and 2003.

In November 2009 another trial started, against Congolese militia leaders Germain Katanga and Mathieu Ngudjolo Chui. They are charged with war crimes and crimes against humanity.

The ICC has also charged the winner of Kenya's 2013 presidential election, Uhuru Kenyatta, and three other high-profile Kenyans, over allegations of crimes against humanity, including murder and rape, relating to violence after the 2007 election, in which some 1,200 people died.

Among those wanted by the ICC are leaders of Uganda's rebel movement, the Lord's Resistance Army, which is active in northern Uganda, north-eastern DR Congo and South Sudan.

Its leader, Joseph Kony, is charged with crimes against humanity and war crimes, including abduction of thousands of children and forcing them to kill their own parents.

He remains at large and refuses to sign a peace deal until the ICC arrest warrant is revoked.

The court has an outstanding arrest warrant against Sudanese President Omar al-Bashir - the first against a serving head of state. He faces three counts of genocide, two counts of war crimes and five counts of crimes against humanity.

It has also issued arrest warrants for two close allies of Libya's former leader Col Muammar Gaddafi, accused of ordering troops to fire on protesters in 2011.

How can the court secure the arrest and trial of suspects?

The ICC has no police force of its own to track down and arrest suspects.

Instead it must rely on national police services to make arrests and seek their transfer to The Hague.

Mr Bemba was arrested in Brussels in 2008.

But Sudan's President Omar al-Bashir remains at liberty, with several ICC signatory countries refusing to co-operate in his arrest.

Chad and Kenya have both declined to detain him.

The July 2012 African Union summit was moved from Malawi to Ethiopia after Malawi's new leader said she did not want to host Mr Bashir for fearing of antagonising Western donors.

The case illustrates the controversy that can be generated by the ICC - the African Union has instructed members not to carry out the ICC arrest warrant while it conducts its own investigation. It points out that Sudan is not a signatory to the court.

How does the system work?

The prosecutor begins an investigation if a case is referred either by the UN Security Council or by a ratifying state.

He or she can also take independent action, but prosecutions have to be approved by a panel of judges.

Both the prosecutor and the judges are elected by the states taking part in the court. Luis Moreno Ocampo of Argentina was the first chief prosecutor of the court. He has been replaced by Fatou Bensouda from The Gambia.

Each state has a right to nominate one candidate for election as a judge.

Who has agreed to co-operate with the court?

The Rome Treaty has been ratified by 121 states so far, meaning they therefore bound themselves to co-operate. A further 34 have signed and may ratify it in the future.

Only one Arab state has ratified so far - Jordan.

Why isn't the United States involved?

During negotiations, the US argued that its soldiers might be the subject of politically motivated or frivolous prosecutions.

Various safeguards were introduced, and Bill Clinton did eventually sign the treaty in one of his last acts as president but it was never ratified by Congress.

However, the Bush administration was adamantly opposed to the court and to any dilution of US sovereignty in criminal justice.

The US threatened to pull its troops out of the UN force in Bosnia unless they were given immunity from prosecution by the ICC.

In a much-criticised decision, the UN Security Council voted on 12 July 2002 on a compromise that gave US troops a 12-month exemption from prosecution - renewed annually.

But the Security Council - prompted by then UN Secretary General Kofi Annan - refused to renew the exemption in June 2004, two months after pictures of US troops abusing Iraqi prisoners shocked the world.

The court's operation is seen as weakened without US involvement.

However, Washington has not ruled out co-operation with the court in particular cases, such as on the Darfur issue.

The referral of the case to the ICC, the first by the Security Council, was made possible after the US backed away from using its veto.

Washington was given guarantees that its own citizens in Sudan would be exempt from prosecution.

Are there other dissenters?

Yes, a number of important countries seem determined not to submit to the jurisdiction of the ICC.

Some have not even signed the treaty, such as China, India, Pakistan, Indonesia, and Turkey.

Others have signed but remain dubious and have not ratified, for example, Egypt, Iran, Israel and Russia.

It is unlikely that alleged crimes against humanity in those states will be prosecuted.

How does it fit in with each nation's judicial system?

States that join the treaty may want to make sure that they themselves are able to prosecute all the crimes that it covers - otherwise the court may intervene.

Some governments have already introduced legislation to make changes to their own judicial systems.

Who is paying?

The states which take part. This will be according to the same rules that govern their contributions to the UN - roughly based on their national wealth.

The absence of the US in particular will make the funding of the court more expensive for others.

Japan, Germany, France and Britain are among the the largest contributors.

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