The Rome Statute marked a milestone in history, establishing a permanent court that will judge those criminals responsible for committing the most serious crimes against human dignity and against world peace: genocide, crimes against humanity, war crimes and that of aggression.
introduction
- Serious violations of DD. H H. and war crimes committed during World War II demonstrated the need to implement mechanisms to prosecute those responsible for these atrocities.
- In this way, the international community decides to create Courts in Nuremberg and Tokyo, becoming the first step towards consolidating permanent international criminal justice.
II. Definition
- The ICC is a permanent international court of justice whose mission is to try people who have committed crimes of genocide, war, and against humanity and aggression.
- It is based in The Hague, The Netherlands.
III. Foundations of your establishment
- They are political and doctrinal, but their most direct original foundation is found in the Nuremberg Trials and the Tokyo Trials.
- Subsequently, at the dawn of the United Nations, the Security Council recommended to a panel of experts to explore the possibility of establishing a permanent court of justice in criminal matters.
- However, after long debates, the idea did not prosper until the serious events of the Yugoslav genocide (1991-1995) and the Rwandan genocide (1994).
IV. Background
- In 1948 the United Nations General Assembly considered for the first time the possibility of establishing a permanent international court to prosecute genocide, crimes against humanity, war crimes and aggression.
- In 1992, said assembly requested the International Law Commission to prepare a draft statute for an international criminal court.
- In 1993, crimes against humanity and genocide took place in Yugoslavia, for which the International Criminal Tribunal for the former Yugoslavia was established.
- 1994 the same assembly established the ad hoc Committee for the establishment of an International Criminal Court.
- 1998 (July 17), after many years of discussion, the «Rome Statute of the International Criminal Court» is adopted in Rome.
- 2001 (October 9), DS 079-2001-RE is published, through which Peru ratifies said Statute.
- 2002 (July 1), entered into force (article 126).
- 2005 (October 28) Mexico was the hundredth country to ratify the Statute.
V. The importance of its establishment
- It is extremely transcendental in nature because a) it is established by recognizing that crimes (genocide, against humanity, war and aggression) constitute a threat to the peace, security and well-being of humanity b) and furthermore, that such crimes should not remain unpunished.
- It is necessary to prosecute and punish those responsible for the most serious crimes, since the International Court of Justice (ICJ) only deals with cases between States without prosecuting individuals.
- Because it avoids the inherent delays of preparing an ad hoc court that can be used by criminals to escape or disappear; Witnesses may be intimidated, or political and social conditions may worsen, and investigations become more expensive.
- Also because the ICC can act when national justice institutions are involuntary or unable to act.
- It can also prevent the commission of crimes against humanity by detaining future war criminals.
- The first cases known to the ICC were situations of serious human rights violations in the Congo, Uganda and Sudan; forwarded by the countries themselves and by the United Nations Security Council.
- On a historic day, on October 14, 2005, the ICC announced to the press that its Prosecutor issued international search and arrest warrants against 05 Ugandan soldiers for serious crimes committed in their African country.
SAW. Operation.-
- The ICC functions as an autonomous body of any other power or state.
- However, this does not prevent the fulfillment of his duty, with the collaboration of the public powers of each country.
- It is the only international body with generalized competence to judge individuals.
VII. Determination of the action of the ICC.-
- That the state has instituted the process with the purpose of removing the person from his criminal responsibility.
- That there is an unwarranted delay in the trial.
- That the process has not been or is not being substantiated independently and impartially.
VIII. Crimes you may know.-
(Article 5 of the Rome Statute):
A) Genocide.
B) Crimes against humanity.
C) War crimes.
D) The crime of aggression.
A) Genocide…- (art. 6). Any act perpetrated with the intention of totally or partially destroying a national, ethnic, racial or religious group; such as death and injury to the physical or moral integrity of the members of the group, extermination, the adoption of measures aimed at preventing births in the group or the forcible transfer of children.
B) Crimes against humanity.- Leso means wronged, hurt, offended (art. 7). Any act that is committed as part of a widespread or systematic attack against a civilian population and with knowledge of such attack; such as murder, extermination, deportation or forced displacement, imprisonment, torture, rape, forced prostitution, forced sterilization, persecution for political, religious, ideological, racial, ethnic or other expressly defined reasons, forced disappearance or any inhuman acts that cause serious suffering or attempt against the mental or physical health of those who suffer them.
C) War crimes.- (art. 8). When committed as part of a plan or policy or as part of the large-scale commission of:
a) Violation of the Geneva Conventions of August 12, 1949; b) Violation of the laws of war in force, both national and international; and c) Violation of applicable customs of war.
D) The crime of aggression.- Or crime against peace (not defined by the ICC Statute). However, it should constitute the absolute prohibition and the potential application of the punitive claim of the Court, against those who organize, endorse or carry out wars of aggression or conquest. (Chapter VII of the Charter of the United Nations).
XI. Applicable principles.-
- Complementarity (The Court works only when a country does not judge or cannot judge the facts within the jurisdiction of the court);
- Nullum crime sine lege (the crime must be defined at the time of the commission and that is the competence of the Court);
- Nullum poena sine lege (A person convicted by the Court can only be punished as ordered by the Statute);
- Non-retroactivity ratione personae (No one may be prosecuted by the Court for acts or crimes committed prior to its entry into force);
- Individual criminal liability (Legal persons will not be subject to the punitive claim, except as an aggravating fact by unlawful association);
- The Court is not competent to judge those who were under 18 years of age at the time of the alleged crime;
- Inadmissibility of official office (all are equal before the Court, for example, head of state);
- Responsibility for the position;
- Imprescriptibility; and
- Responsibility for compliance with the charge (not exempt from criminal liability).
X. Research.-
The investigation of the facts that constituted crimes can be started in three ways (article 13 of the Statute):
- By referral by a State Party to the Court of a particular situation;
- At the request of the United Nations Security Council (where the inverted veto applies); and
- Ex officio by the Prosecutor of the Court.
XI. Penalties and compliance.-
- Prison up to a term not exceeding 30 years, or life imprisonment, in addition to a fine and confiscation of the species that are the property of the condemned.
- Its compliance can be carried out in the country where the Court is based -Holland- or in another according to the agreements that may be established between the Court and other countries.
XII. Organs of the court.-
The ICC is made up of four main organs:
- The presidency.
- The Chambers.- a) Appeals Division, b) Trial Division and c) Pre-trial Division.
- The Prosecutor's Office.
- The Secretary.
XIII. Judges.-
The ICC is made up of 18 Judges who are chosen from two lists:
- List A: Consists of candidates with great competence in criminal and procedural law, as well as the necessary experience as a judge, prosecutor, lawyer or other similar work in criminal proceedings.
- List B: Consists of candidates with great competence in areas of international law, such as international humanitarian law and the codification of human rights, as well as extensive professional legal experience that is relevant to the judicial work of the Court
The current Judges were chosen from list A and are of the following nationalities: Trinidad and Tobago, France, Cyprus, Costa Rica, Samoa, Republic of Korea, Ireland, Mali, United Kingdom, Brazil, South Africa, Germany, Italy, Ghana, Canada, Bolivia, Finland and Latvia.
XIV. CPI limits of competence.-
- Temporary.- It can only be extended on crimes committed after the entry into force of the Statute (art. 11.1) - not retroactive-, so that cases such as that of Pinochet could not be judged by this Court, due to retroactive action to the detriment of the defendant.
- Territorial.- You can only exercise your jurisdiction in cases where the crime has taken place in the territory of one of the States Parties or, in the case that it has been committed on board a ship or an aircraft, its registration outside that of one of those States (art. 12.2, letter "a").
However, it can also hear those cases in which the accused is a national of one of the States mentioned (art. 12.2, letter "b"), regardless of the territory where the events occurred.
In addition, it provides for the exception provided for in articles 4.2, 12.3 and 87.5, consisting of the possibility that the Court exercise its jurisdiction for specific crimes committed by nationals or in the territory of a non-Party State, through a special agreement.
XV. Rome Statute of the ICC.-
- It is the constituent instrument of the ICC. It consists of 128 articles.
- On July 17, 1998, 120 states voted to adopt it. It entered into force on July 1, 2002.
- It will prosecute individuals (from heads of state who ordered or forgiven a crime to the common citizen who committed it) who are accused of the most serious crimes under international law: genocide, crimes against humanity, war crimes and aggression.
- It will compensate the victims and survivors of such crimes and can, over time, prove to have a deterrent effect against the commission of these crimes.
- It will extend the application of the law at the international level, urging national judicial systems to investigate and prosecute these crimes (thus strengthening these systems) and at the same time guaranteeing that an international court is ready to act when they fail.
- However, to be effective, the ICC will depend not only on a general ratification of the Rome Statute, but also on States Parties fully complying with their obligations in the treaty. The original in true copies consists of: Arabic, Chinese, Spanish, French, English and Russian; which was sent and will be sent (by the general secretariat of the united nations, in certified copy) to the States that ratified it and to the new ones that decide to do so, respectively (Article 128).
XVI. Resistances before the signature and ratification of the statute of the ICC.-
- During the Conference for its approval, the United States, Israel and China made common cause against it.
- Despite this, the first signed but did not ratify it.
- In fact, the signature on the American side was made by ex-President Bill Clinton just one day before he left George W. Bush in power.
- Despite international experience in signing multilateral treaties, the same statute set a high quorum for its entry into force (60 countries).
- However, the process was extremely rapid, starting in Senegal until ten countries together deposited the instrument of ratification with the United Nations General Secretariat on April 11, 2002.
XVII. From the jurisdiction by exception of the ICC.-
While such an exception may appear to be a purely terminological matter, the expressions "do not exist" and "are not effective" as used in the draft Statute, or the phrase "unwilling to carry out the prosecution or cannot actually do so ”, which is contained in article 17.1 (b) of the Rome Statute, may be a source of ambiguities until the Court determines the criteria to be applied. The provisions of articles 17.2 and 17.3 of the Rome Statute do little to clarify the expressions mentioned. On the contrary, when referring to other subjective notions, they further complicate the problem.
XVIII. Application of the complementary jurisdiction.-
- You can only act in default of the latter.
- A State may request the inhibition of the Prosecutor of the Court, when the latter is conducting or has carried out an investigation into the people under its jurisdiction regarding acts that may constitute crimes described in art. 5 of the Statute (art. 18.2).
- Also, the possibility that this State has to challenge the competence or admissibility of a case by the International Criminal Court (art. 19).
- The effective inhibition depends on the decision that the Pre-Trial Chamber adopts in this regard (art. 18.2 in fine). In addition, it may be reviewed in your case six months after its adoption or when there has been a significant change in circumstances, and that the Prosecutor requests that you be regularly informed of the progress of the investigations or the subsequent trial (art. 18.3 and 5, respectively).
- Article 17 enables the Court to examine whether a State has a true disposition to act in a specific case, establishing determining criteria for this purpose, or whether it will be incapable of doing so, given the situation of its national administration of justice. To the extent that, according to article 20, it is possible to prosecute a person again when the intention has been to remove them from their criminal responsibility for crimes for which this international Tribunal is competent. As well as when the cause has not been independently or impartially investigated.
XIX. Denunciation of the statute of the ICC.-
- Any State party may denounce the present statute by means of written notification addressed to the Secretary General of the United Nations.
- The denunciation shall take effect one year after the date on which the notification is received, unless a later date is indicated therein.
- The denunciation shall not exonerate the State from the obligations incumbent upon it in accordance with this statute while it was a party to it, in particular the financial obligations that it may have contracted.
- The complaint shall not impede cooperation with the court in the context of criminal investigations and prosecutions in relation to which the complaining state is obliged to cooperate and which were initiated before the date on which the complaint takes effect;
- the denunciation shall not in any way hinder the further examination of the issues that the court had before it before the date on which the denunciation takes effect (article 127).
XX. Conclusions.-
- The consolidated establishment of the ICC in the field and International Jurisdiction, is an imperative need of humanity, which becomes more important in this world with social differences, where "Globalization" as a phenomenon has not only reached the market economy, to banking, to politics, to culture, to the way of life, but opposed and fatally, also to criminality, morbidness, decadence and the ways of doing evil and causing human panic.
- The titanic and noble work carried out by many States within the framework of the Rome Conferences of July 1998, for the definitive establishment of an International Criminal Court, demonstrates that there is still the good will and initiative of the nations of the earth for face that "demon" called the most serious and abominable crime that can be known by humanity.
- The Rome Statute marked a milestone in history, establishing a permanent jurisdictional body that will judge those criminals responsible for committing the most serious crimes against human dignity and against world peace: genocide, crimes against humanity, war crimes and that of aggression.
- The Peruvian State had a great success in ratifying the ICC Statute.
- Likewise, this permanent international criminal instrument exemplifies a new world order, more democratic and inclusive of the great diversity of nations that make up the international community.
- The norms and principles that have been studied throughout this work are not only legal, but also legitimate; As they are the product of a consensus of more than 120 nations, as well as hundreds of non-governmental organizations, it therefore includes human rights principles based on the diversity of ideologies, legal systems, nationalities and human conditions.
XXI. Recommendations.-
- The effective implementation of the Court is that they must be taken by our country, basically the real application of the Rome Statute, then administrative, police and judicial awareness and training, since it is essential that all the authorities of the Peruvian State who may eventually have the obligation to cooperate or assist with the Court or to know of the commission of one of the crimes included in said Statute, know the regulations of this international instrument, its Elements of Crimes and the Rules of Procedure and Evidence. This, since the ignorance of the authorities is perhaps the greatest obstacle to effective cooperation with the Court.
- Civil society, public and private institutions should be the ones to lead the supervisory role for this purpose.
