Critically Evaluate The Effectiveness Of Procedural International Criminal Law Of The International Criminal Justice System In Combatting International Crimes

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Critically evaluate the effectiveness of procedural international criminal law of the international criminal justice system in combatting international crimes, with particular focus on The International Criminal Court.

Abstract

Literature on international criminal law has generally approached questions of its effectiveness, even ignoring the demand for credible and relevant administration of international criminal justice. Since the International Criminal Court was founded its efficiency and efficacy were of big interest among the specialists. The purpose of this paper is to examine the procedural law of the International Criminal Court as it emerges from its legal bases and to evaluate its effectiveness in combatting international crimes.

The Rome Statute established almost 20 years ago the International Criminal Court, the first organism of its kind. The Statute includes a very extensive codification for genocide, crimes against humanity, crimes of war and smaller crimes, like the crime of aggression. The extensive codification found in the Statute has its bases on the agreement and the consent of the international community.

The International Criminal Court. The Debate Surrounding Its Effectiveness

Most of the heinous crimes of the humanity were committed during a very conflicted period of time, during the twentieth century and many of the international law violations that happened then are still unpunished.

After the Cold War ended, the thought of an international system of justice for crimes emerged. A big impact on this decision were the terrible crimes committed in Yugoslav War and Rwanda, so in 1998 in Rome the International Criminal Court (ICC) was founded, as the organism for international criminal justice.

The International Criminal Court was formed as an organism with the responsibility to first investigate crimes, to prosecute and then to put to trial those individuals that were accused of committing crimes that concerned all of the international community. The procedure of the International Criminal Court applies to crimes committed within Court`s jurisdiction, an aspect that guarantees the consistent application of the Court`s procedural law.

It is very clear that the International Criminal Court doesn`t look to replace the national criminal justice system of the states. The Court investigates, prosecutes and tries individuals if a state cannot do it or is unwilling to do it. Usually the Court steps in when proceedings are delayed or criminals are shielded willingly from any responsibility. This represents the principle of complementarity of the procedural law of the Court. In this case, even though states have the responsibility to send the perpetrators behind bars, in some cases the Court`s help is needed.

The International Criminal Court prosecutes individual criminals, not groups of individuals or states. In that light, any suspect who is believed to have committed any type of crimes within the Court`s jurisdiction can be brought before the Court for prosecution. The Office of the Prosecutor has a policy to focus on the individuals that bear responsibility for the crimes, without taking into account any official position held by the perpetrators.

The efficiency and the effectiveness of the Court represent major factors in determining the Court`s credibility and legitimacy among the States. The most important strategic objective of the Court includes ”conducting reasonable and effective proceedings, in addition to being a model of public administration” . The issue of the Court’s efficiency is complex and should continue to be studied.

While high efficiency can be achieved through restructuring in some cases, judicial processes are different, because judges have to take into account the impact of every measure they take on the rights of the person accused and on the fairness of the respective proceeding.

The legal bases of the Court`s procedure are found in its foundational treaty, in the Court`s Statute and also in the Court`s Rules of Procedure and Evidence (RPE). The Court`s Statute defines the procedure of the Court, and its provisions are complemented by the Court`s Rules of Procedure and Evidence and by the Court`s Regulations. The Rules of Procedure and Evidence are not affecting in any way the procedural rules applicable for the national courts or for the legal system of the states, or for the purpose of any type of national proceedings.

The International Criminal Court has made lots of progress since its founding. Significant efforts were made in order to consolidate its organizational structure, thus ensuring adequate support mechanisms for the victims of the crimes, for the witnesses and for the defendants. Increasing efforts were made in order to develop and implement some strategies for public information. Important decisions were made on procedural issues like jurisdiction and admissibility, participation of the victims, victim and witness protection, admissibility or disclosure of the evidence.

The structure of the Court`s Statute was developed and agreed upon by all of the member states. The framework for an innovative system of international criminal justice was developed, containing elements from different domestic legal systems, in particular from the areas of civil and common law. At that point was reached an agreement on some substantive issues, was established a relationship between the national courts and the International Court, and several other general principles of criminal law that would be included in the Court`s Statute.

The Court has taken numerous steps in enhancing its efficiency. The Court knows that the judicial determination of procedural issues has a big impact on the efficiency of some proceedings, as it`s very clear to us that a big number of procedural issues brought to the Court are not yet properly settled, therefore still needing time and substantial resources in order to be solved.

While the interlocutory appeals and rulings on the procedural issues of the Court are not peculiar to proceedings, the Court affords the victims with the opportunity to participate in proceedings. This aspect has a big impact on the number of filings presented by the participants, the duration of the proceedings and the way in which issues are addressed by judges.

There are further steps that must be taken in order to enhance the efficiency of Court`s judicial proceedings, an important one being aiming for greater judicial consistency, it is still very important to allow the practice of the Court to develop organically in order to ensure that foundational decisions are being made at this stage of the Court`s judicial development.

Another issue is that the measures taken in order to streamline processes and to clarify roles are in an early implementation phase, being very difficult to fully assess the Court`s impact on international crime. The lack of clarity of the roles and obligations of the Court in some areas, such as the witness protection programs, is preventing the efficiency of the Court in some aspects. It is, however, very early to assess the impact of Court`s efforts, because numerous measures are not yet implemented, or are in an early implementation phase.

In addition, the reports submitted by the Court are incomplete, such as the case of a report that only addressed issues like internal coordination and the overlapping of roles between the procedural law of the Court and the national criminal justice systems, but did not clarify the roles of the Court and those of the national criminal justice systems.

On the other hand, there are some challenges in the efficiency and effectiveness of the International Criminal Court`s procedural law that require textual amendment. Some of the issues affecting the effectiveness of the Court`s proceedings were structural, based on the nature of international proceedings regarding criminals and the uniqueness of the Court`s Statute.

This aspects will improve once more cases are tried, and conflicts are resolved by judges. In time, the Court will develop its own organic practice, but some issues, such as the the fact that the judges are not able to compel a certain witness in order to appear and testify in front of the International Criminal Court, will need a future amendment in the Court`s legal aspects.

States have a big role in ensuring the efficiency of the Court, because inefficiency in Court`s operations cannot only be attributed to the Court`s judicial procedures, operational policy and strategies. The assessment of the Court`s efficiency would be incomplete without taking into consideration the crucial role played by every state in helping the Court fulfill its mandate. Non-cooperation or poor-cooperation from the states in areas like enforcing outstanding arrest warrants or responding to Court`s requests for judicial assistance, contributes to the inefficiency of the Court`s procedural law and undermines the Court`s potential to stop impunity.

The procedural framework of the Court is primarily designed to reconcile the two opposing sides, the effective activity of the Court on one hand, and the states right to investigate and prosecute on the other hand . This last aspect, regarding states rights to investigate and prosecute, is enforced by the fact that the states have the right to challenge the admissibility of a certain case in court in the very first stages of the proceedings. The procedural regime is based on a known fact, that says that the Court has the ability to determine if a certain case is admissible or not.

The Prosecutor normally is obligated to notify the member states if and when a country has referred a certain situation to the International Criminal Court. Although in practice, just some of the states prosecute suspects if a link to the crime is absent .

The term ”normally” used in the Statute severely limits the states that have to be notified to states which have jurisdiction over the case and have an additional link to the crime that was committed. Another condition is that ”the additional link to the crime must be known and must be available to the Prosecutor”.

Following the Court`s objectives, prompt and effective proceedings, the number of states to be informed is kept limited. Because states are not obligated to inform the Office of the Prosecutor regarding the states jurisdictional regime, the Office can not be obliged to ascertain before launching an investigation which of the states have set universal jurisdiction.

A link like this exists only where the member states are entitled to exercise jurisdiction under traditional international law criteria, where certain crimes have been committed on the states territory and where state nationals are victims of a crime. A certain link exists when the suspect is a resident or is currently present on the territory of the state in question . Aspects referring to the link mentioned before may apply in case that the states have informed the ICC that they have set and they are currently exercising universal jurisdiction, even where no specific connection or link exists.

A specific goal of the Court`s Statute is represented by the effective punishment of international crimes, so it could be very frustrating if it was possible that every member state could resort to the complementarity principle, even though the link is not strong enough or the probability of recovering evidence is very small .

The problem that appears is whether the one month time limit for informing the Court that a certain state is investigating a situation or has investigated one in the past still is applicable. Within the one month period, states can inform the ICC that they have investigated or are currently investigating the crime.

The Court`s Statute doesn`t regulate on how far a state has to go in order to prove that it has jurisdiction, therefore not having to inform the Court that is investigating, will investigate or it has investigated an international crime in the past. According to the Statute a state can make a formal request for postponing a case in order to provide the Court with essential information regarding the ongoing investigation. In this case, the Prosecutor can request the state to provide the additional material in its possession. This rule is very restrictive, because it`s only puting the Court`s Prosecutor in a position to seek an authorization for using the additional material, rather than making him evaluate the information submitted. This problem doesn`t represent a reference to the Court`s Statute, because it represents an obligation of the states and the Court and it has to be taken into account.

That decisions of the Security Council are binding on international organizations, since member states can`t give an international organization more powers than the states have and mustn`t prevent their obligations by creating an international organization which exercises its obligations in contradiction to the United Nations. The Security Council can utilize an international organization if and when the framework set by the Statute is kept.

Member states have founded the Court as a complementary organism, but retained the right to investigate and prosecute, so Security Council sees that as a restriction on the Court`s objectives. It is highly unlikely that the ICC would disagree with the Council regarding it`s legal assignments, since the Court`s rights are somehow disrespected.

The Statute establishes a general presumption regarding state action, but this aspect only emphasizes that the national authorities of each state should primarily try to deal with this sensitive and delicate matter. The words used in the Statute do not give any indication as to the burden of admitting an information as proof in legal proceedings, that the state itself has the responsibility to inform the Court that it is investigating or has investigated a certain case. Also the member states have the responsibility to inform the Court that they have jurisdiction over the case mentioned.

Another question that rises is if the duty to provide proof is reversed if the suspect challenges the admissibility of his case. The Statute of the Court only speaks about the guilt of the suspect, merely providing the suspect with the benefit of the doubt. The suspect should at least have the right to show that the state that is investigating his case has jurisdiction.

Speaking about proof, the Court`s history shows that the judges have to be certain about things, so they should be convinced beyond reasonable doubt, because it`s impossible to incorporate in the Court`s Statute the proposal to accept reasonable doubts.

States can waive their rights to investigate a case, but only if the Office of the Prosecutor has accepted a consensual division of labor and burden of the proof is shared between member states and ICC. The acceptance must take into consideration that at least one of the states has enacted laws that give them the possibility to refrain from exercising their jurisdiction in favor of prosecution by the ICC.

It is possible for a state to waive its rights regarding a case, if the case in question has an international importance or if the case is politically way too sensitive to be handled by a member state. If states understand the complementarity principle as it was written, like a safeguard for the national sovereignty in which states have the right to prosecute a suspect, then we can argue that by not exercising their rights, the states are indeed waiving their rights, thus enabling the Court to act on their behalf.

If we argue that the complementarity principle of the law is not protecting state sovereignty, creating a right for the suspect, then a waiver is out of the question, because a member state can`t take any rights away from a person, the complementarity principle has been already been agreed to.

As concluded, given that the Court`s Statute doesn`t allow such rights to suspects, the waiver would be possible, but only regarding a state`s right to prosecute, and not regarding other states that have jurisdiction over the case. A waiver of complementarity cannot be proscribed where there exists a duty to exert criminal jurisdiction over suspects that are responsible for committing international crimes. On this line, handing over a case to the Court would not be breaching international obligation, because the state will still be fulfilling its duties and obligation.

In the question of the legality of a waiver, we must differentiate between the inability or the unwillingness to act. The requirements of sufficient gravity are very important when proving the validity of a case prosecuted in front of the Court, being quasi-jurisdictional. The gravity requirement is not limited to protecting the right to investigate or prosecute. It is not conceivable for a state to waive its right to investigate and prosecute, because this waiver could totally taint with the requirements beforementioned.

Judicial determination of procedural issues have a significant impact on the efficiency of the Court`s proceedings. Fundamental procedural issues at the Court remain unsettled, demanding time and resources. During the period reviewed, filings and decisions in trial and pre-trial proceedings concerned victims participation on the trial, disclosure of the evidence, protective measures for the victims and for the witnesses and the admissibility of the evidence. However, the decisions made by the Court were not consistent at all times.

Interlocutory appellate matters occupy a significant amount of Court`s time. Interlocutory appeals and rulings on some of the procedural issues are not strange to proceedings at the Court and it is worth recalling that the Court is affording the victims the opportunity to participate in the proceedings. Also the Court gives a big role to the States, thus having a big impact on the numerous filings presented by the parties and the participants, the length of the respective proceedings and in the way some issues are unaddressed by the judges.

Even though there are further steps that must be taken when looking to enhance the efficiency of the Court`s procedures, it is important that the Court is allowed to continue to develop organically, in order to ensure that the decisions are being made at this stage of the Court`s judicial development. Considering the aspects mentioned before, we see that is not a problem to partially waive complementarity for the states. If it`s possible for a member state to waive all its rights, then the state can decide at what extent it gives up specific rights. The complementarity principle is still open to consensual approach, as the Court has to deal with serious criminal cases, and the investigation of small perpetrators can be left to the member states.

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