PUBLIC INTERNATIONAL LAW ASSIGNMENT 2017-18

Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY, LUCKNOW

AN ASSIGNMENT

ON

INTERNATIONAL CRIMINAL COURT

UNDER THE SUPERVISION OF

Prof. (Dr.) GULAB RAI

SUBMITTED TO SUBMITTED BY

Dr. GULAB RAI DEVANAND PANDEY

ASSISTANT PROFESSOR B.COM.LLB (Hons.)
FACULTY OF LAW 7TH SEMESTER (2017-18)
D.S.M.N.R.U D.S.M.N.R.U

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ACKNOWLEDGEMENT

I would like to thank my Assistant Professor Dr. Gulab Rai for providing me this great
opportunity to learn from the topic “International Criminal court”.

I would also like to thank my friends and well-wishers for their kind support and help during
the making of this assignment.

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TABLE OF CONTENTS

1) INTRODUCTION………………………………………………………………………….4-5

2) CRIMINAL JUSTICE AND RULE OF LAW………………………………………...6-10

3) INTERNATIONAL CRIMINAL COURT ………………….………………………...11-14

4) POWERS AND FUNCTIONS………………………………………………………….15-16

5) CONCLUSION……………….…………………………………………...............................17

6) BIBLIOGRAPHY……………………………………………………………………………18

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INTRODUCTION
The International Criminal Court (ICC) is an independent and permanent court established on
17 July 1998. This court trial those persons who are accused of the most serious crimes of
international Concern like genocide, crimes against humanity and war crimes. The ICC is
based on a treaty, joined by 105countries. However, a number of states including China, India
and the United States, are not the State Parties to the ICC Rome Statute. Text of the Rome
(Italy) Statute circulated as document A/CONF.183/9 of 17 July 1998 and corrected by
process-verb aux of Nov 1998, July 1999, Nov 1999, May 2000, Jan 2001 and Jan 2002. The
Statute entered into force on 1 July 2002, it has 128 articles. International Criminal Court
officially based in Hague, Netherlands .It has four main bodies Presidency, the Judicial
Divisions, the Office of the Prosecutor and the Registry. These bodies work with other semi-
autonomous offices such as the Office of the Public Counsel for Defense and the office of
Public Counsel for victims etc. The ICC is an independent international organization. In
accordance with article 2 of the Rome Statute, the relationship with the United Nations
system is govern by an “agreement” that has been approved by the Assembly of States Parties
during its first Session held in New York from 3 to 10 September 2002.Under the Rome
Statute article (5), ICC limited only to most serious crimes like the crime of genocide, crimes
against humanity, war crimes and the crime of aggression. Court framed in four organs
Presidency, Judicial Divisions, the Office of the Prosecutor and Registry. The judicial
functions of the Court are carried out in each Appeal, Trial and Pre-Trial Chambers. Since its
inception the ICC has opened investigations on the cases e.g. situation in Democratic
Republic of the Congo, situation in Uganda, situation in Central African Republic and
situation in Darfur, Sudan.

International Criminal court’s official head office is in Hague, Netherlands, but according to
“Article 3” proceedings may take place anywhere in the world. Officially 18th judges chair
the ICC. Currently (on 9 October 2007) court has 485 members of staff from 80 states.
According to Article 50 of Rome Statue “ICC has official languages Arabic, Chinese,
English, French, Russian and Spanish but the working languages of the Court shall be
English and French. The Rules of Procedure and Evidence shall determine the cases in which
other official languages may be used as working languages, butCourt shall authorize a
language other than English or French to be used by request of a party or State”,Some time
International Criminal Court named as “World Court” and people jumble it with International

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Court of Justice, both dealing with international matters-but originally functioning in

different perspectives.

Meanwhile, after UN approval, Rome Statue of International Criminal Court was

opened (accordance to its article 125) for signature by all States in Rome at the Headquarters
of the Food and Agriculture Organization of the United Nations on 17 July 1998. Thereafter,
in Ministry of Foreign Affairs of Italy until 17 October 1998 and later on Statute was opened
for signature in New York, at United Nations Headquarters, till 31 December 2000.One
hundred fifteen states singed, 29 African, 13 Asian, 16 Eastern European, 22 Latin American
and Caribbean, and 25 Western European States were signed on it up to 17 October
2007.”US was the first country who unsigned the Rome Statue on May 6, 2002 after
approximately one and half year membership (signed December 31, 2000)”. Israel did the
same on 28 August 2002.

Although the idea to establish a permanent international criminal court can be traced
back to nineteenth century. But this idea become more stronger when “twentieth century
come with Holocaust, genocide in Rwanda, Bosnia, and Iraq, with the depredation of Saddam
Hussein, Idi Amin, Slobodan Milosevic, Pol Pot and host of other despots and murderers-too
many lives been lost, many family broken, too many hopes and dreams snuffed out by this
inhumanity”. So, “In 1948 the UN General Assembly adopted the Convention on the
Prevention and Punishment of the Crime of Genocide. Article 1 of that Convention
characterizes genocide as "a crime under international law", and Article 6 provides that
persons charged with genocide "shall be tried by a competent tribunal of the State in the
territory of which the act was committed or by such international penal tribunal as may have
jurisdiction” In Brief, after creation (1948) of the Nuremberg and Tokyo tribunals since
world war two (1939-1947) serious discussions started about creation of permanent
International Criminal Court.

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CRIMINAL JUSTICE AND RULE OF LAW

The death penalty

Global abolition of the death penalty is a priority for the Government. We oppose the death
penalty because we consider that its use undermines human dignity, that there is no
conclusive evidence of its deterrent value, and that any miscarriage of justice leading to its
imposition is irreversible and irreparable.

The Government publicly launched its strategy for the abolition of the death penalty in
October, to coincide with the World Day Against the Death Penalty and the European Day
against the Death Penalty. The strategy sets out our policy on the death penalty and provides
guidance to our embassies and high commissions on how they can support our efforts to:

 increase the number of abolitionist countries, or countries with a moratorium on the

use of the death penalty;
 restrict the use of the death penalty in retentionist countries and reduce the numbers of
executions; and
 ensure EU minimum standards are met in retentionist countries.

Our strategy also identifies those countries and regions where our embassies and high
commissions have been specifically tasked to implement the strategy. We focus our efforts
where we believe that we can achieve real results. We have selected our five priority
countries/regions for a number of reasons: China is the most prolific user of the death
penalty; Iran continues to use the death penalty for juvenile offenders and is second only to
China in the overall number of executions; Belarus is the last country in Europe that retains
this sanction; in the Caribbean, although the number of executions is low, every English-
speaking country retains the death penalty on its books; and abolition in the US would send
an important signal to the rest of the world.

There have been some positive developments in 2010. Mongolia introduced a moratorium
on the use of the death penalty in January; Kyrgyzstan acceded to the 2nd Optional Protocol
to the International Covenant on Civil and Political Rights which aims for abolition of the
death penalty; and Guyana ended the mandatory death penalty for most categories of murder.

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But there have also been setbacks. Both South Korea and Singapore ruled the mandatory
death penalty to be constitutional, after unsuccessful legal challenges; Taiwan broke its five-
year de-facto moratorium by executing four death row inmates; and the prime minister of
Mauritius announced his intention to reintroduce the death penalty.

In 2010 we funded project work in the Caribbean, Africa, Asia and the Middle East. We also
funded the Death Penalty Project, an NGO with which we work closely. Its work in 2010 on
the case of Godfrey Mutiso led to the mandatory death penalty being ruled unconstitutional in
Kenya, following similar work which led to the 2009 ruling in Uganda that the mandatory
death penalty was unconstitutional, resulting in167 death sentences being commuted to life
imprisonment. The Death Penalty Project also ran a successful workshop in Barbados,
bringing together legal experts from across the Caribbean to consider the issues and
challenges that need to be addressed in order to further restrict the death penalty in the region.

In China we provided capacity building for legislative reform. A revision to China’s

criminal code in 2011 is likely to reduce the number of capital crimes from 68 to 55. This
will be implemented by a restructuring of the criminal punishment system. In addition, on 1
July China introduced new evidence guidance on death penalty cases. Along with the EU,
we are the main foreign donor working closely with the Chinese authorities on reform and
eventual abolition of the death penalty. We also fund two death penalty-related projects as
part of a wider EU programme.

The UN plays an important role in creating momentum towards global abolition. In

December we co-sponsored the cross-regional UN General Assembly resolution on the
Moratorium on the Use of the Death Penalty and lobbied actively for support. This resolution
calls upon states to establish a moratorium on executions with a view to abolishing the death
penalty. The steady increase of support for this resolution, previously adopted in 2007 and
2008, reinforces the international trend towards global abolition. We lobbied Mongolia and
Gambia, both of which voted to support the resolution for the first time. We also raised our
concerns about the death penalty during the Universal Periodic Review process in the UN
Human Rights Council, including, for example, recommending to the US that it establish a
moratorium on the use of the death penalty at the federal and state level as a first step towards
abolition.

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Bilaterally we raised the death penalty directly with governments in a number of countries
and regions, including China, the US, the Caribbean and Japan. Where a UK national faces
the death penalty abroad, we use all appropriate influence to prevent their execution. We also
work with the EU to lobby other governments and to raise individual cases of third country
nationals facing the death penalty.

Torture prevention
Our work on torture prevention includes encouraging states to sign and ratify the
international instruments prohibiting and preventing torture; where appropriate, raising
specific cases where allegations of torture are made; strengthening the institutional capacity
of the FCO to tackle torture by ensuring that all staff are alert to allegations of mistreatment
in their host country; and supporting reform in institutions overseas where torture is most
likely to occur, for example in prisons and other places of detention. In September, we
hosted a one-day seminar with the Arts and Humanities Research Council which brought
together British and European academics and NGO experts on torture prevention. On the
basis of this seminar, we will launch an updated global torture prevention strategy in 2011.

The main international instruments which prohibit and prevent torture are the International
Covenant on Civil and Political Rights, the European Convention on Human Rights and the
UN Convention against Torture and its Optional Protocol. The Convention against Torture
obliges states to take measures to prevent acts of torture in any territory under their
jurisdiction and to ensure that all acts of torture are criminalised. Under the Optional
Protocol, signatories must establish independent safeguards and checks in places of detention
so that officials cannot mistreat detainees without being brought to account. We encourage
countries to ratify the Optional Protocol and to establish national preventive mechanisms to
monitor places of detention. In Nigeria, we supported a project to improve the
documentation of torture and to achieve redress for victims which led to case reviews and
prosecutions and resulted in a group of core volunteer lawyers and medical practitioners
being set up to look at cases. Our support for the Geneva-based NGO, the Association for the
Prevention of Torture, helped maintain momentum towards establishing a national preventive
mechanism in Kazakhstan and in Kyrgyzstan, and in Nepal their work led to the National

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Human Rights Commission adopting new guidelines on detention monitoring. We also

worked with them in Ghana, Lebanon, Paraguay, Senegal and Tajikistan.

We continued to lobby states to sign and ratify the Optional Protocol. As of 31 December, 57
states had become party to it. Seven states ratified the Optional Protocol during 2010:
Burkina Faso, the Democratic Republic of Congo, Ecuador, Gabon, Luxembourg, the
Netherlands and Togo and a further three states signed it: Bulgaria, Panama and Zambia. In
October, the monitoring body established under the Optional Protocol, the Sub-Committee
for the Prevention of Torture, grew from 10 to 25 members (its maximum) as a result of the
increased number of ratifications. This will significantly increase the capacity of the sub-
committee to conduct monitoring visits to places of detention. The Government has pledged
an additional £520,000 in 2011 to the Special Fund for Torture Prevention held by the Office
of the UN High Commissioner for Human Rights, which will help finance the work of the
sub-committee in providing expertise on establishing national preventive mechanisms and in
providing assistance to countries on implementing the recommendations of the sub-
committee.

We are also strengthening our institutional capability to tackle torture and cruel, inhuman or
degrading treatment. We are updating the guidance for all our staff on how to report
allegations and concerns they may have about suspected torture or cruel, inhuman or
degrading treatment that occur overseas so that they can be acted upon appropriately. The
updated guidance will be published and issued to staff in 2011.

Prison reform
Prison conditions in many countries do not meet human rights standards. Independent
oversight of prisons is important to maintain prison standards and prevent the mistreatment of
prisoners. In 2010, we worked with the International Centre for Prison Studies to bring
prison management practices in China towards international human rights standards. Prison
construction standards have been updated and in 2011 the prison law will be revised. We
also funded a project with the Great Britain China Centre to establish independent monitoring
of police detention centres in China. After a successful pilot programme, two more lay
visitor schemes were launched in October. In Nigeria we funded a project to develop a new

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curriculum for prison service training resulting in a marked improvement in prison

management by those who attended the pilot management and leadership course.

International justice system

The Government is committed to the principle that there should be no impunity for the most
serious international crimes. We are unique in being actively engaged with all six existing
international criminal tribunals: as a State Party to the Rome Statute of the International
Criminal Court; as a member of the Security Council, which oversees the international
criminal tribunals for the former Yugoslavia and Rwanda; and as a major donor and member
of the management bodies of the voluntary-funded tribunals for Sierra Leone, Cambodia and
Lebanon.

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INTERNATIONAL CRIMINAL COURT

Since the International Criminal Court was set up in 2002, it has established itself as a corner-
stone of international justice. The UK has had a long-standing reputation for promoting and
supporting the work of the Court. In 2010, the UK provided political and practical support to
the Court for its ongoing cases and investigations. For example, we welcomed the Kenyan
government’s commitment to co-operate fully with the Court’s investigation and provided
£200,000 to support measures to protect and relocate vulnerable witnesses. We consistently
encouraged the Kenyan government to stand by its obligations under the Rome Statute and as
a UN member state. We made clear our disappointment that President Bashir of Sudan was
allowed to visit Kenya in defiance of the Court’s arrest warrants for war crimes, crimes
against humanity and genocide.

We also supported the growth and consolidation of the Court at the first-ever Review
Conference in Kampala in June. We made three pledges at the conference, setting out our
commitment to cooperate with the Court; deliver justice to the victims of crimes under the
Court’s jurisdiction; and promote wider ratification of the Rome Statute. We also donated
£40,000 to the Court’s Trust Fund for Victims, which assists victims to rebuild their lives and
communities. We will announce a further substantial donation to this fund in 2011. We will
also explore opportunities to provide further support for victims and for developing national
capacity and action to combat impunity.

The Review Conference also considered amendments to the original Rome Statute, which has
not been revised since it was first agreed in 1998. States Parties considered including a
definition of the crime of aggression and establishing the conditions under which the Court
could exercise its jurisdiction over this crime; and including the use of certain weapons in a
non-international armed conflict as a war crime, in particular bullets that flatten on impact
and toxic gases. We will now consider whether to ratify the amendments agreed at the
Review Conference.

Throughout 2010, the UK participated actively in working groups in New York and The
Hague to support and develop management and oversight of the Court to ensure that it
continues to mature as an efficient and effective institution. We led negotiations at the

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International Criminal Court’s Assembly of States Parties in December to agree a new

independent oversight mechanism, as part of a robust and transparent management system.

The year 2011 is likely to see the first judgment from the Court, with two other ongoing trials
continuing and the possibility of three other trials starting. Further trial and pre-trial activity
is likely to take place on the Court’s new investigation in Libya, which was opened on 3
March 2011 following a unanimous decision of the UN Security Council to refer the Libya
situation to the ICC. We will work closely with key partners to ensure that the Court
continues to receive international support and cooperation and to combat attempts to
undermine it.

International criminal tribunals for the former Yugoslavia and Rwanda

In 2010, the UK played a leading role in the UN Security Council tribunals working group
for the international criminal tribunals for the former Yugoslavia and Rwanda. In December,
after three years of discussions, the UN Security Council adopted a resolution to safeguard
the legacy of the tribunals, once they have completed their trials and appeals, including by
ensuring that any remaining fugitives are not allowed to escape justice; that witnesses remain
protected, and that appropriate arrangements are made for the management of the tribunals’
archives.

We also offered political and practical support to both tribunals, including ensuring that full
cooperation with the tribunal for the former Yugoslavia remains a key precondition for
progress towards the EU for the countries of the Western Balkans.

In Serbia we funded a project by the Belgrade Centre for Human Rights to change attitudes
towards the tribunal for the former Yugoslavia and to promote awareness of war crimes. This
included public surveys, conferences and a publication in Serbia, Croatia and Bosnia and
Herzegovina. Further conferences in Zagreb and Sarajevo are planned.

In Bosnia and Herzegovina, the UK supported a number of activities in the justice sector
including a project aimed at enhancing the effectiveness of the State Prosecutor’s Office in

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dealing with Srebrenica-related war crimes, through seconding prosecutors and legal officers,
as well as through capacity-building programmes. We also supported the International
Commission on Missing Persons to continue its work with the tribunal for the former
Yugoslavia and domestic courts, providing DNA reports and expert testimony for war crimes
cases.

In Kosovo we seconded expert staff to EULEX Kosovo, the EU Rule of Law Mission,
including two judges, three prosecutors and the head of the organised crime unit. The
Kosovo Special Prosecution Office, under supervision of EULEX prosecutors, filed three war
crimes indictments, one of which led to a conviction and seven years’ imprisonment.
EULEX also increased its cooperation with the Serbian authorities and the tribunal for the
former Yugoslavia in investigating ongoing war crimes.

Extraordinary Chambers of the Court of Cambodia

In July, judgment was delivered in Case 1 at the Court. The defendant, KaingGuekEav, also
known as Duch, was found guilty of crimes against humanity and was sentenced to 35 years’
imprisonment. The appeal hearing will take place in March 2011. Throughout the course of
Duch’s trial we have funded a TV series in Cambodia which has provided information to
more than 2 million rural Cambodians each week on the trial’s proceedings. Our
Ambassador was present at the reading of the verdict and embassy staff joined community
members in the provinces to watch it on television. As Jeremy Browne said upon its
announcement, the verdict “will play an important role in helping Cambodians come to terms
with the past as they move forward with national reconciliation”.

A closing order in Case 2 at the Court against the four remaining senior leaders of the Khmer
Rouge regime was signed in September. This trial is expected to commence in mid-2011 and
will address charges of genocide, crimes against humanity, grave breaches of the Geneva
Conventions and offences under the 1956 Cambodian criminal code.

We also provided practical support to the Court. We supported it in its efforts to raise funds,
which are pledged on a voluntary basis. In December we contributed £215,000 to the Court,
bringing our total contribution to date to around £2.3 million, and we also provided additional

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resources for court monitoring and training for the Office of the Co-Prosecutors and the
Victims Support Unit.

Special Court for Sierra Leone

Securing funding for the Special Court, also pledged on a voluntary basis, grew increasingly
difficult throughout 2010. The UK contributed more than £2 million but extensive appeals to
donors for further essential funds yielded insufficient results and the Special Court faced
critical financial shortfalls. In response, we worked to secure emergency UN funding for the
Special Court which will move it onto a more secure financial footing for 2011. We also
played a key role in securing a provisional agreement with the government of Sierra Leone
on a cost effective Residual Mechanism for the Special Court, which should guarantee that
essential functions, such as witness protection and security of the archives, can continue
effectively.

With trial activity in Freetown already completed, the only remaining trial at the Special
Court is that of Charles Taylor, the former Liberian president. This is taking place in The
Hague. Mr Taylor is charged with crimes against humanity and war crimes in Sierra Leone.
November saw the closure of the defence case in the Taylor trial and a verdict is now
expected in the summer of 2011. If convicted, Mr Taylor will serve his sentence in the UK
under a 2007 sentence enforcement agreement.

Special Tribunal for Lebanon

During 2010, the tribunal continued its investigative phase and prepared for the start of
judicial activity. On 17 January 2011 the Prosecutor submitted the first indictment to the pre-
trial judge. The UK announced a further £1 million funding for the tribunal for 2011, which
brought our total contribution up to £2.3 million.

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POWERS AND FUNCTIONS

On the other hand, International criminal court has jurisdiction hear and decide about four
groups of crimes genocide, Crimes against Humanity, war crime, and the crime of aggression
under the Article 5 of the Rome Statute. December, 1948 declarations, United Nation
Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) define the
genocide in article (2) “In the present Convention, genocide means any of the acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as
such: Killing members of the group; Causing serious bodily or mental harm to members of
the group; Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part; Imposing measures intended to prevent births within
the group; Forcibly transferring children of the group to another group”. Similarly Rome
Statue Article 7 defines the crime against humanity, primarily“crime against humanity"
means any of thecoming acts when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack: of Murder;
Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment or
other severe deprivation of physical liberty in violation of fundamental rules of international
law; Torture; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity; Persecution against
any identifiable group or collectively on political, racial, national, ethnic, cultural, religious,
gender as defined in paragraph 3, and Other inhumane acts of a similar character intentionally
causing great suffering, or serious injury to body or to mental or physical health”.
International Criminal Court also have right to hear the cases on “war crime” which define in
Rome Statute Article 8 “ ‘war crimes’ means: any of the mentioned acts against persons or
property protected under the provisions of the relevant Geneva Convention: Wilful killing;
Torture or inhuman treatment, including biological experiments; Wilfully causing great
suffering, or serious injury to body or health; Extensive destruction and appropriation of
property, not justified by military necessity and carried out unlawfully and wantonly;
Compelling a prisoner of war or other protected person to serve in the forces of a hostile
Power ;Wilfully depriving a prisoner of war or other protected person of the rights of fair and
regular trial; Unlawful deportation or transfer or unlawful confinement , taking of
hostages”.Likewise, “Court shall exercise jurisdiction over the crime of aggression once a
provision is adopted in accordance with articles 121 and 123 defining the crime and setting

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out the conditions under which the Court shall exercise jurisdiction with respect to this crime.
Such a provision shall be consistent with the relevant provisions of the Charter of the United
Nations”.

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CONCLUSION

International criminal law has long been limited by the fact that criminal lawyers and
criminal law judges rarely work with international law or international cases, while
international lawyers and international judges tend to have little experience with criminal
law. This changed as the work of the ICTY and ICTR, and the negotiations leading to the
birth of a permanent ICC, brought the world's top specialists in international law into contact
with specialists in criminal law from the various nations. The result was an unprecedented
period of progress for international criminal law.

The jurisdiction of the soon-to-be established ICC will initially be very limited, but
supporters hope that it will grow into a strong, independent, and effective institution of
international justice. Critics oppose creating a stronger and more comprehensive system of
international criminal law, fearing the loss of state sovereignty and national freedom of
action. In light of this persistent attitude, it remains to be seen how far and how effectively
the institutionalization of international criminal law will progress in the future.

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BIBLIOGRAPHY
PRIMARY SOURCES

1. INTERNATIONAL COURT OF JUSTICE STATUTE

SECONDARY SOURCES

Websites
1. www.indiankannon.com
2. www.lawyerclubofindia.com

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