A CRITICAL ANALYSIS ON THE ISSUES OF JURISDICTIONS, ADMISSIBILITY, INVESTIGATIONS, AND PROSECUTIONS UNDER THE ROME STATUTE
The chapter sets a comprehensive discussion critically, and analyses to resolve the issues of jurisdictions, admissibility, investigations and prosecuting under the Rome Statute, through a set of outlines, starting from subject matter jurisdictions of the court. However, according to the statute, the court jurisdictions shall be restricted on serious crimes of concern to the international community as an entire; nevertheless, the court and its statute do not provide the definition of the term and concept of serious crimes of concern to the international community precisely. The chapter plans the issues of preconditions in exercising the jurisdictions, which the court is envisioned to exercise its jurisdictions only on the crimes stipulated under the Rome Statute, and that shall be under the principle of complementary to domestic criminal jurisdictions not to replace it. The chapter discusses the issues of referral the situations and cases to the ICC, whether by the state party, or by a declaration from the non-state party, or through UNSC, or by the prosecutor of the court under the doctrine of proprio motu investigations. The chapter elaborates the issues of executing the warrant of arrest and surrenders to the court, and examine the issues and powers to prosecute under Pre- Trial Chamber (PTC) of the court. The chapter also presents the issues of the immunities of the head of states, government officials under the Rome Statute, and the position of the African constitutions in such matter. The chapter is compassionate dire explorations all that issues through its application in the African situations and cases.
4.2 SUBJECT MATTER JURISDICTIONS OF THE ICC
Basically, every court, whether the domestic or international court must be granted to subject matter jurisdictions in order to handle and hear the cases, otherwise, the court might declare that the particular case is not under its jurisdictions, since the absence of the subject matter jurisdictions. This situation is the same with the international criminal court, which the court could not handle the cases which are out of its subject matter jurisdictions.
In resolving the issues of jurisdictions, the subject matter jurisdictions one of the most important jurisdictions of the ICC, that the ICC only has the jurisdictions in the most serious crimes of concern to the international community elaborated and presented in article 5 of the Rome Statute.
It can be seen that, there are four crimes which the court has the jurisdictions over it, which are: crimes of genocide, war crimes, crimes against humanity, and crimes of aggression. These crimes are called subject matter jurisdictions of the ICC Additionally to the technics jurisdictions which the court must have the jurisdictions over it before preceding the matter, which are: personal jurisdiction, temporal jurisdiction which is ratione temporis jurisdiction, and the territorial jurisdiction.
The subject matter jurisdictions are the crimes which fall within the jurisdictions of the ICC. These crimes have been stipulated under article 51 of the Rome Statute of the court as the following:
a. War crimes
b. Crimes of genocide
c. Crimes against humanity
d. Crimes of aggression, which is called crimes against peace.
Each of these crimes has been defined under article 6, 7, 82 8 bis3 of the Rome Statute.
1. Definitions of the War Crimes under the Rome Statute.
According to the article 82 of the Rome Statute, it could be summarised the meaning of war crimes as the following:
For the purposes of the Statute, the war crimes means that crimes are included mass grave breaches of the four Geneva Conventions (GCs), of the IHL, specifically, any act against individuals or properties secure under the relevant provisions of the GCs, and other serious and grave violations of international law and customs of war, which is applicable in International Armed Conflicts (IAC), namely any act related to the Geneva conventions.
In the situations of armed conflicts which are not of international characters, namely Non-International Armed Conflicts (NIAC), in serious abuses of the article C3 to all the four GCs, and other serious abuses of the international laws and customs of war applied at the time of armed conflict, which is not of international armed conflicts, listed under the GCs. Therefore, the court has jurisdictions in admiration in such war crimes, in specific when perpetrated as in part of a planning or politics, or as part of a comprehensive perpetrating of such crimes.
It can be seen that, the war crimes contain grave breaches of the GCs, additionally to serious abuses of the rules, laws, and customs which are applicable in an armed conflict having an international character, and in a conflict which not having an international character, elaborated under the Rome Statute. Those forbidden doings comprise murder, cruel treatment, and torture, mutilation, captivating of hostages. The war crimes also include direct attacks intentionally against the civilian populations, direct attacks intentionally against buildings and places loyal to religion, art, and science, education, or for charitable purposes, or hospitals, historical monuments. And also include rape and sexual slavery, forced pregnancy, pillaging, and any other forms of sexual violence. And also cover recruiting or enlisting children into the armed forces and groups in using them to take part in armed hostilities.
2. Definition of the Crimes of Genocide under the Rome Statute.
According to the article 6 of the Rome Statute, the genocide crimes can be summarised as the following:
For the purposes of the statute, the meaning of the crimes of genocide is any of the following acts perpetrated, intending to finish entire or part of a national, racial, ethnical, or any religious group:
a) To kill fellows of that group;
b) To cause very serious physical or mental damage to the members of the group;
c) To deliberate the perpetrating to the group the situations of the life designed to get almost its bodily devastation in entire or in part;
d) To impose processes planned to stop childbirths among the group;
e) To forcible removing youngsters of the group to another group.
3. Definition of the Crimes against Humanity under the Rome Statute.
According to the Article 7 of the Rome Statute, it can be briefed the meaning of the crimes against humanity as the following:
For the purposes of the Statute, the crime against humanity included any of the following once perpetrated as part of the widespread, or organized and systematic offensive focused against the civilian populations, with a familiarity of the offensive will cause:
e) Deportations, or forcible relocation of the populations;
f) Imprisonment, or other plain deprivations of bodily freedom in violations of essential rules of international laws;
a. Sexual subjugation and rape, slavery and forced prostitution, enforced pregnancy, forced cleansing, or any other forms of the sexual forcefulness of similar seriousness;
b. Persecutions against any recognisable group, or collectivity on racial, political, ethnic, national, religious, cultural, or gender, which is referring to male or female without specify, or other ground that are internationally recognised as not permissible under international laws, in linking with any act mentioned to in the paragraph, or any crimes within the jurisdictions of the ICC.
It seems that, the crimes against humanity comprise any of the resulting acts and doings perpetrated in extensively, such as a systematic direct attack against the civilian populations, with the familiarity of the attack. The crimes against humanity also contain murder, enslavement, extermination, deportation and forcible transfer of populations, imprisonment, and torture; include rape and sexual slavery, forced pregnancy, enforced prostitution, enforced purification, and any other forms of sexual violence in similar gravity. The crimes against humanity also include persecution against a recognisable group, on national, political, racial, ethnic, religious, cultural, and gender grounds, including enforced disappearance of persons, crimes of segregation, and all other inhumane doings and acts with a similar international character causing an abundant pain and suffering, and serious physical and mental injury.
4. Definition of the Crimes of Aggression
In summary, under article 8 bis3 of the Rome Statute, the crimes of aggression have been defined as the following:
For the drives of the statute, the crimes of belligerence that means the preparation or beginning, or implementation by a person in a place successfully in exercising, directly controlling the military or actions of the state in acting of aggression by its characters, gravities and scales, making apparent violation and breaches of the UNC
The acts of aggression that means using the military powers by a state against the territory of the other state, which is called state of sovereignty, integrity and dogmatic independence, or in any other unpredictable way according to the UNC, or and any one of the following activities, at any way of a declaration of war, that shall be in accord with the UNGA resolution number 3314 in 1974, meet the requirements as acts of overrun:
a) To attack or overrun of the territory of a state with the armed power of an entire state, and any military power deployment or occupation consequential from such attack or raid, or any takeover by the use of bombardment military forces.
b) To use the military forces of a state against any territory of another state in bombardment the latter, or a state to use any weapons against the territory of the entire state;
c) Or an acting by a state to blockade the coasts and ports of a state by using armed power.
d) An offensive by using armed forces of a state against another state, whether across the land, airspace, and sea.
e) Using armed forces by a state within the territory of another state by agreements from the delivering state, however, the state has extended their existence in such territory outside the agreements;
f) Permitting the third party to use its territory, which it has located another state, to be used by that state for sending armed forces performing acts of aggression against the third state;
g) Sending armed groups, mercenaries or irregular bands, groups by a state, or on behalf of the state to conduct attacks by using armed force against another state, which the offensive attack of in such gravity as to quantity to the acts.
In accordance, the court only has the subject matter jurisdictions on these crimes above, and the jurisdictions of the court shall be restricted to these crimes, which are the most serious crimes to the international concern. Although, there are no clear interpretations of the term of the most serious crimes of concern to the international community from the statute, only it has been mentioned shallowly by the statue without providing more interpretations of the term.
However, there are technics jurisdictions that the court must have it over the situations before preceding the matter; these technics jurisdictions are the following in details:
1. Personal jurisdiction under the Rome Statute
The international criminal court prosecutes individuals for the most serious crimes of international concern, precisely, war crimes, crimes of genocide, crimes against humanity, and crimes of aggression.
According to the Rome Statute, the court has the jurisdiction over natural person as follows briefly:
1. The court has the jurisdictions over natural person according to the statute.
2. Any person who perpetrates the crimes which are within the jurisdiction of the court will be alone accountable and responsible for penalty according to this statute.
3. Under this statute, a person will be criminally accountable and responsible for a penalty for the crimes which are within the jurisdiction of the court.
Heedlessly of where the person is located or where the crimes perpetrated, as long as the person accused is holding nationally of a state which is party to the court, or the crimes committed by person in territory of a state which is the party to the Rome Statute, or the state nationality of the person suspect which is not a party to the court accepted the jurisdictions of the court, or the state which the crimes occurs is not a party to the court, and it accepted the court jurisdictions, or the situations and cases referred by the UNSC.
2. Temporal jurisdiction (Ratione Temporis)
According to the Rome Statute, the court has jurisdiction if:
1. The crimes perpetrated after the Rome Statute have entered into force.
2. The state has become the party to the court after the statute entered into force; therefore, the court might exercise the jurisdiction within its jurisdiction with to the crimes committed after the statute entered into force.
It means, the ICC shall have the jurisdiction over a state of after signed and ratified the Rome Statute, or after accession to the statute.
3. Territorial jurisdiction
The provisions of the territorial jurisdiction have been elaborated under article 12 of the Rome Statute, as the following:
1. Over territory of the state which becomes the party to the statute, or by accepting the jurisdiction of the court of the crimes under article 5 .
2. The court might exercise the jurisdiction under the case of article 13, para (a) or (c) if one or more of the following categories of the states are parties to the Rome Statute, or have recognised the jurisdiction of the court in accordance with para 3:
a) In the state territory which the conduct in question has occurred or, if the crimes are committed on board of an aircraft or vessel of the state, the state of registration of that aircraft or vessel shall be the jurisdiction of the court.
b) The State of which the person is suspected of the crimes is a national of that state.
c) If the recognition and acceptance of a state which is not a party to the court is required under the provisions of para 2, therefore, the state might make declaration shows that the accept the exercising of the jurisdictions of the court within the court crimes jurisdiction. This accepting by the state shall be with cooperating with the court without any interruption and delay, according to part 9 of the statute.
In accordance, the court has the full jurisdiction after fulfiled these technical jurisdictions discussed above.
4.3 PRECONDITIONS TO EXERCISE THE JURISDICTIONS OF THE ICC
The preconditions are similar and in the same manner with previous territorial jurisdiction, that the court has a right to exercise its jurisdictions over the conditions as following:
1. Over territory of the state which became the party to the statute, or by accepting the jurisdiction of the court to the crimes under article 5.
2. The court might exercise the jurisdictions under the case of article 13, para (a) or (c) if one or more of the following categories of the states are parties to the Rome Statute, or have recognised the jurisdiction of the court in accordance with para 3:
a) In the state territory which the conduct in question has occurred or, if the crimes committed on board of an aircraft or vessel, which the state of registration of that aircraft or vessel are party to the Rome Statue.
b) The state of which the person is suspected of the crimes is a national of that state.
c) If the recognition and acceptance of a state which is not a party to the court is required under the provisions of para 2, therefore, the state might make declaration shows that the accept the exercising of the jurisdictions of the court within the court crimes jurisdictions. This accepting by the state shall be with cooperating with the court without any interruption and delay, according to Part 9 of the statute.
4.4 EXERCISING THE JURISDICTIONS OF THE ICC AND REFERRAL OF THE SITUATIONS AND CASES TO THE COURT
Under the Rome Statute, the court could exercise its jurisdictions directly when the cases and situations are under the following categories, the court might exercise its jurisdictions on the crimes mentioned in article 5 under the provisions of the statute if:
a) The situations in which one or more of the crimes have been perpetrated and referred the situation to the prosecutor by the state party according to the article14.
b) The circumstances, situations and cases which are one, or more than one of the crimes have been perpetrated, and referred it to the prosecutor by the UNSC under chapter VII of the UNC, or
c) The prosecutor has launched and initiated the investigations of such crimes, rendering of the article 15 of this statute.
Also, according to the article 12/3 the court might exercise its jurisdictions over the situations and cases when the non-state party made a declaration in accepting the court jurisdictions.
4.4.1 State Party Referral
According to the article 14 of the Rome Statute, the situations shall be referred to the court by the state party if:
1. The state party to the Rome Statute referred to the prosecutor in the situations and cases in which one or more crimes within the jurisdictions of the court have been perpetrated, and requested the prosecutor to investigate the situations for the purposes of determining whether or not one or more particular persons should be prosecuted for the committing the crimes.
2. Immediately as much as possible, the transfer of the situations shall be escorted by such subsidiary documentations available to the state which referred the situations to the court.
In this regards, the step in referring the situations of the state parties to the court has been made by the several African states which had already become the state party to the Rome Statute.
The situations and cases of the Democratic Republic of the Congo (DRC) have been referred to the court by the government of DRC in April 2004, and the investigations have been opened by the court in June 2004. In Uganda, the situations have been referred to the court by the government of Uganda in January 2004, and the investigations have been opened by the court in June 2004. In Central African Republic (CAR) the situations have been referred to the court by the government of CAR in December 2004, and the investigations have been opened by the court in May 2007. In Mali, the situations have been referred to the court by the government of Mali in July 2012, and the investigations have been opened by the court in January 2013. In Central African Republic (CAR) in situations Number (II) has been referred to the court by the government of CAR in May 2014, and the investigations were opened in September 2014.
4.4.2 Proprio Motu Investigations
First of all, the proprio motu investigation is a doctrine displays that, the court has an independent authority to launch an investigation over the situation. If the situation referred to the court by a government or UNSC, and the investigations launched based on that referral, the latter may intervene in the investigation, hence, this independent investigation could block the government and the UNSC to ask the court to do what the latter wants during the investigations, to favour their interests. Therefore the court has an own investigation over the situations.
The proprio motu investigation is one of the vital aspects of international criminal court’s investigations, that the investigations can be initiated and launched by the ICC, rather than having initiated as a request by a government, or as the request of the UNSC. This doctrine of the court has been quite a development since in a sense of decoration of independence and autonomy by the court was not simply to respond about what state asks the court to do, or what the UN asks the court to do.
As stipulated under article 15 of the statute, the prosecutor might initiate investigations under the proprio motu principle, which based on evidences and information provided on the crimes within the jurisdictions of the court. After that, then the prosecutor makes some of the stage before launching the investigation:
1. The prosecutor analyses the importance and seriousness of the evidences and information received, and collaborates with United Nations organs, intergovernmental organisations, non-governmental organisations, and any reliable sources in order to obtain more evidences and information on the situations and cases.
2. After that, if the prosecutor has concluded and determined that, there are reasonable evidences and information to continue with the investigations, the prosecutor submits the file to the pre-trial chamber in order to request the authorisation for investigations.
3. The pre-trial chamber gives the authorisation to the prosecutor to continue in investigations or the chamber rejects the request.
If the pre-trial chamber refusal the prosecutor to investigate the situations and cases, the prosecutor has a mandate and authority to initiate the investigations and prosecutions on itself without referring to the chamber.
In article 53 the statute mentions to initiating the investigations by the prosecutor under the issues of investigations and prosecutions.
However, after the prosecutor having the evaluations the evidences and information received, in determining whether to initiate an investigation, the prosecutor takes into consideration whether:
a) The evidences and information which are available and provided to the prosecutor are reasonable and believe that the crimes within the jurisdictions of the court has been perpetrated.
b) The situations and cases are admissible under article 17, and
c) Putting into account the gravity of the crimes, and the benefits and interests of victims, and serve the interests of international justice
In this regard, in resolving the issues of jurisdictions and admissibility arise here, there a direct relationship between the jurisdictions and admissibility issues in accepting the situations and cases before the ICC.
Under article 17 which is the issues of admissibility mentioned that, the para 10 of the preamble and article 1 of the statute mentions that, the court determines whether the case is inadmissible or not.
This could not be until the court has fulfiled all the conditions to exercise its jurisdictions over the situations and cases, after that, the court can touch the issues whether the case shall be admissible by the court or not.
The court might have the full jurisdiction in a case, however, might not have admissibility of the case.
The court cannot have admissibility of the case if the situations
1. Has been investigated and prosecuted by the state in such capable and competent.
2. The situations and cases are not of enough gravity to justify in taking the action by the court
In this regard, referring the situations under proprio motu investigations by the prosecutor to the court, and to launch the investigations on the situations and cases has been made in practice in several African situations and cases, which had already become the state party to the Rome Statute.
In Kenya situation, the prosecutor has opened proprio motu investigations in March 2010. In Côte D’Ivoire also the prosecutor has opened proprio motu in October 2011. In Burundi also where the prosecutor has opened proprio motu on 25 October 2017.
The proprio motu investigations cannot be opened by the prosecutor without having authorisation from the Pre-Trial Chamber (PTC) of the court.
4.4.3 UN Security Council’s Referral
Under article 13 of the statute, the situations in which one or more of the crimes have been perpetrated refers to the prosecutor through the United Nation Security Council UNSC, in interim under Chapter VII of the United Nations Charter.
This based on the understanding of the collective security framework under chapter VII of the UN charter through the UNSC.
This phase has been made in practice by the UNSC to refer the situations to the court. In several African situations and cases which are not party to the Rome Statute, were the situations referred by the UNSC to the court. On Darfur, Sudan, the situation was referred to the court by the UNSC in March 2005, and the investigations were opened in June 2005. On Libya, the situation has been referred to the court by the UNSC in February 2011, and the investigations have been opened in March 2011.
4.4.4 Declaration State Non Party to the ICC
In the issues of accepting the jurisdictions of the court and referring the situations and cases by a non-state state party, the non-state party to the Rome Statute can make a declaration to accept the jurisdictions of the court, referral the situations and cases for investigations and prosecutions before the court.
Under article 12 (2/3) of the Rome Statute stipulates that, the court exercises the jurisdictions when one or more have accepted the jurisdictions of the court under para 3. If the recognition and acceptance of the court jurisdictions made by a state which is not a party to the statute with mandatory under para 2, the state shall make the declaration with the registration in accepting exercising of jurisdictions by the court within the crimes of the court.
However, the accepting jurisdictions of the state shall include cooperation with the court without delay or exceptions; this is in accordance with part 9 of the Rome Statute.
In this regard, the step has been made by the state of Côte D’Ivoire when it accepted the jurisdictions of the court by a declaration on April 2003.
This was before the Côte D’Ivoire signed and ratified the Rome Statute which was on 15 February 2013. Therefore, the prosecutor of the court was opened proprio motu investigations on the situations and cases in Côte D’Ivoire, by virtue of accepting the jurisdictions of the court, through the declaration made by the government of Côte D’Ivoire in April 2003, not by ratifying of the Rome Statute, and the investigations were launched by the court on 3 October 2011.
Therefore, the investigations on the situations made by the court upon referral by the states parties, or by the UNSC, or under proprio motu initiative by the ICC prosecutor, and with the authorization from PTC of the court, or by accepting the jurisdictions of the court via the declaration by the non-state parties to the Rome Statute. However, the investigators must be watchful that not to create and make any risk to the casualties and witnesses.
4.5 POWER OF PROSECUTIONS UNDER PRE-TRIAL CHAMBER OF THE ICC
Under article 57 of the Rome Statute, the Pre-Trial Chamber (PTC) has the powers in prosecuting the persons suspected, except as provided in the present statute.
The PTC may exercise the functions in accordance and under the provisions of the present article, and that shall be made by a majority of the PTC judges.
In all circumstances on situations and cases, a single judge of the PTC can exercise the functions and powers of prosecuting the persons suspected through the chamber, except otherwise provided in the Rules of Procedure and Evidence (RPE), or by the majority of the PTC. This is unlike the ICTY and ICTR, where the PTC was not constructed as a part of the procedures and prosecutions of the tribunals.
Power of Prosecutions under Pre- Trial Chamber of the ICC in African Situations and Cases
The chamber has a power in prosecuting the perpetrators. However, this cannot be done unless the person suspected is present before the court, and at the chamber room.
Currently there are several cases against African leaders before the international criminal court in the Pre-Trial Chamber (PTC) such as Prosecutor of the ICC v. Omar Hassan Ahmad Al Bashir case on Darfur, Sudan situations, Prosecutor v. Mr. Barasa case, Prosecutor v. Saif Al-Islam Gaddafi case of Libyan situations, Prosecutor v. Mr. Paul Gicheru and Philip Kipkoech Bett case, Prosecutor v. Harun and Kushayb case on Darfur, Sudan situations, Prosecutor v. Abdel Raheem Muhammad Hussein case on Darfur, Sudan situations, Prosecutor v. Mr. Al-Tuhamy Mohamed Khaled case, on Linbyan situations, Prosecutor v. Mr. Raska Lukwiya and Okot Odhiambo case, Prosecutor v. Sylvestre Mudacumura case, on Democratic Republic of the Congo (DRC) situations, and Prosecutor v. Mr. Simone Gbagbo case.
All these cases remain in the PTC stage until those persons suspected detained and arrested and transferred to the seat of the ICC in The Hague. The court does not try individuals except the suspects are present in the courtroom.
4.6 WARRANT OF ARREST AND SURRENDER TO THE ICC
There are two forms of issuance the letter against the person suspected to transfer and surrender to the court at The Hague.
1. Warrant of arrests against the person suspected to detain and surrender to the court.
2. Summons to the person suspected to appear before the court without detaining the person alleged.
The difference between the two forms of the letters is that, the warrant of arrest can lead the person to be detained and surrendered to the detention center of the court at The Hague, while the summons only makes the person suspected to appear before the court in his self, freely without detaining him, and depriving his liberties.
The ICC issues the summons instead the arrest warrant to try to keep the cooperation relationship with governments rather than confrontation and hostile relationship.
Under article 58 of the Rome Statute, the pre-trial chamber shall issuance of the warrant of arrest and the summons to surrender and appear the persons suspected to the court.
At any time after the instigation of investigations, the PTC shall issue a warrant of arrest against a person suspected if, having inspected the request and the evidences or other information submitted by the prosecutor to the chamber, gratified and showed that there are sensible surroundings believing that the person has perpetrated crime within the jurisdictions of the ICC, and the arresting the person to appear is wanted necessary, and to confirm the appearance of that person for trial, and to guarantee that person does not block or threaten the investigations or the court procedures.
The application and the letter of warrant of arrest or summons of the prosecutor comprises the name of the person suspected, and any other related classifying information, and the exact situation to the crimes within the jurisdictions of the court which are the person or persons are suspected to have perpetrated, and the brief statements of the details of facts which are suspected to constitute these crimes, and the summary of the evidences which found realistic facts in believing that the person perpetrated these crimes, and the reasons why the prosecutor of the court trusts in arresting the person wanted. The warrant of arrest or summons remains valid and in effect until any comment and ordered by the court.
In accordance, the basis of the warrant of arrest and summons, the court may demand the temporary arrest, or the arrest and surrender of the person suspected under part 9 of the Rome Statute. The warrant of arrest or summons might adjust or adding more crimes. That shall be by a request from the prosecutor to the PTC.
The prosecutor of the court might pass the file to ask the chamber to issue summons to the suspect in order to turn out and stand before the court. This summons letter has the same manner, forms and provisions with the arrest warrant, which comprises the name of the person wanted, and any other related detecting information exact mentions to the crimes within the jurisdictions of the ICC, which the person suspected to have perpetrated, and the short statement of the facts and situations which are supposed constitutes the crimes. The only differ provisions is mention the specific date on which the person wanted to appear before the court.
Arrest Warrant and Submission to the ICC in African situations and Cases
There are several of the warrants of arrest has been released by the court against the African leaders and others, however, executing the letters of the warrant are remain obstacles and challenges facing the court.
The first letter of warrant to detain was launched against the Sudanese president Omar Al-Bashir was in 2009, and the second one was in 2010, and both have not been carried out.
Likewise, the warrant to detain was issued against Mr. Barasa in 2013, and another one was issued in October 2013, both have not been executed.
Similarly, the document to arrest against Saif Al-Islam Gaddafi has been released in 2011, and up to date he is out of the court’s detention centre.
In the case involved the Abdullah Al-Senussi and Muammar Gaddafi, the arrest warrant was issued in 2011, and Gaddafi died without executing it.
In the case against Abdullah Al-Senussi, the warrant of arrest is not executed, and the court declared inadmissible of the case in 2013.
The arrest warrant was issued against Paul Gicheru and Philip Kipkoech Bett in 2015, and another warrant against them was released on September 2015, and up to date is not in the court’s custody and detention center.
The warrant for arrest against Abdel Raheem Muhammad Hussein has been issued on in 2012, and still not executed.
The arrest warrant has been issued against Al-Tuhamy Mohamed Khaled on in 2013, and another warrant was released in 2017, however, the Al-Tuhamy Mohamed Khaled is not arrested or detained and transferred to the seat of the ICC in The Hague.
The arrest warrants were issued against Raska Lukwiya and Okot Odhiambo in 2005, and other warrants released in October 2005, nonetheless, the perpetrators are not being arrested until their passing.
The warrant of arrest has been issued against Sylvestre Mudacumura in 2012, and the suspect still not yet arrested.
The arrest warrant was issued and released against Simone Gbagbo in 2012, and another warrant was launched in November 2012, nevertheless, the warrants still are not executed, and the Simone Gbagbo is not in the ICC’s custody and detention center.
The Legal Procedures of ICC
The ICC as an international court, the legal procedure is functioning contrarily from that of domestic jurisdictions and procedures.
Basically, the international criminal court has a three Judicial Divisions (JD), which precedes the judgments, and each division contains numerous chambers for trial.
These JD are Pre-Trial Division (PTD), Trial Division (TD), and Appeals Division (AD), these divisions contains 18 judges through their chambers. The judges of the international criminal court must be with judicial independence, impartiality, integrity, and confidentiality to carry out the duty properly.
Pre-Trial Division (PTD)
Each division includes a chamber which the judges of the court make the trials through it, and each chamber has the duties and functions
Under this division, there is a chamber which the judges of the divisions conduct the trials. The Pre-Trial Chamber (PTC) comprises several judges; however, usually, three judges handle the cases.
The main duty and function of the PTC are to decide whether there is enough evidence for the case and sufficient to go the trial or not, if yes, the chamber confirms the case and charges and passes the case to the Trial Chamber (TC). And also the chamber is issuing the warrant of arrest or summons to appeal the case before the court. Additionally, the chamber gives authority to the prosecutor to launch an investigation on the situations, and the investigation division has the responsibility in arranging the investigations.
Trial Division (TD)
The trial division contains a number of judges. Under this division, also there is a chamber which the judges of the divisions conduct the trials. However, usually, three judges handle the cases. The main duty and function of the chamber is to conduct the fair trials.
Appeals Division (AD)
The appeals division contains several judges
Similarly, under the division, there is a chamber which the judges of the divisions conduct the appeals trials.
It comprises five judges, and usually those five judges handle appeals made and filed by the parties. The duty and function of the chamber are upholding the decision appealed, or making an amendment, or reversing, the decision, or the AC gives the order and instructions for pre-trial before the TC.
After the crimes within the court jurisdiction occurs, the prosecutor of the court determines whether there are enough evidences of the crimes occurred, and in that sufficient gravity in the crimes, and whether there are honest and genuine domestic proceedings or not, and in whether to open an investigation or not is determined to serve the interest of justice and victims.Therefore, the ICC’s prosecutor cannot initiate an investigation if the requirements are not fulfiled in the crimes, or if the ICC is not having the jurisdictions on the situation.
Notably, all forms of the evidences whether written, or oral, or any kind of evidences is acceptable before the court.
After finding and identifying the person alleged, the prosecutor of the court requests the ICC judges to prepare and issue the summons or warrant of arrests to the suspect, to come and appear before the court freely without arrest and detention. This should be after collecting information and evidence .
The next step, three judges from the PTC confirms the identity of the person, and confirms the suspect in understanding the charge, and though the legal procedures and submissions can proceed, however, trials and hearings cannot be if the suspect is not detained and arrested and not appear before the court.
If the person arrested and surrendered to the court, three judges from the trial chamber show sensible doubt of the responsibility of the suspect .
The trial chamber issues a verdict after funding guilt against the suspect, then issuing a sentence. This is after the judges have considered all the information and evidence; otherwise, the person suspected could be free.The sentence against a person convicted can be to up to thirty 30 years imprisonment; however, the judges can issue a sentence of life imprisonment under exceptional circumstances. Yet, both defense and prosecutor have an inherent right to take the appeals stage through the trial chamber with released the decisions, verdicts, and sentences .
The appeals by the prosecutor are against the decisions and verdicts which made the person accused to innocent, while, the appeals made by the defendant are against the decisions, verdicts, and sentences which make the person guilty. The appeals include reparations which both convicted person and victims may appeal.
The Appeal Chamber (AC) decides through five judges of the chamber who are not ever the same judges who released the original decisions, verdicts, and sentences. The decisions of the AC are whether upholding the verdicts, and sentences appealed, or making an amendment, or reversing it, or the AC gives the order and instructions for re-trial before TC .
The enforcement of the sentences is helped in countries that have promised to implement the ICC sentences .
In this regards, the arrested person are recognised as innocent until the guilt has proven against him.
The ICC does not have its own prisons; however, the court only has a safe and secure detention center which is based in The Hague. The convicted persons are not spending their punishments at the ICC Detention Centre (IDC), as it is not for the purposes of handling a regime of sentenced persons. The prisoners are moved to prisons outside to spend and serve their time through a bilateral agreement between the court and the state of enforcement. However, the state of enforcement is not necessary to be a party to the Rome Statute. The IDC is only for the purposes of detained persons as custody before and during the trial.
In the concept of humanity and the rights of the detained persons, the IDC permits the arrested persons to access to fresh air, sports activities, recreational time, and have access to library books, news and television during their stay in the IDC. The IDC is humane custody of detainees under the responsibility of the ICC.
Detainees also have access to the computers, and facilities in order to work on their own cases. The IDC provides the computer training to detainees if needed, each detainee has a computer in his/ her cell .
The IDC also allows the detainees to communicate with diplomatic representatives of their countries of origin, and are permitted to visit by ministers or advisors of their religion or belief, and are entitled to visit with their families within the area of the detention centre. The medical facilities and the meals are provided to the detainees, according to their flavour and taste, and based on their cultural requirements. In addition are allowed to cook for their selves, and can buy additional items listed and available at the shop in the detention centre.
The agreement between the ICC and the ICRC concluded, that the ICRC runs an inspection on the detention centre, with the purposes of investigating the treatment of the detainees, in term of their living conditions, including physical and mental conditions, in confirming that the detainees are treated with broadly recognised international values, principles and standards governing the treatment of the person deprived his liberty .
The international criminal court has key facts which the legal procedures are accorded.
The court has specified 18 ages as a minimum, which the person cannot prosecute when the crime was perpetrated.
Conducting a preliminary examination in order to determine whether the situation has been in such enough testimonies and evidence, and the issues of jurisdictions to authorise the court, and the crimes were in such gravity, and the issues complementarity have been fulfiled, that the domestic criminal legal system is not genuine, and is unwilling and unable and unfair trial, and proceeding the case can serve the justice, then the prosecutor launches the investigations on the situation.
The prosecutor must gather and release both exonerating and incriminating of evidence during the investigation.
That means the ICC procedures and evidence contain the elements of the inquisitorial system provided by the civil law. This has been in order to make balance and fill the gaps of the major minuses of the adversarial system provided by the common law. Therefore, the prosecutor must investigate on both exonerating and the incriminating evidence in order to establish the right and truth, and the victims have an inherent right to participate in the court proceedings to present their opinions at all stages of the court proceedings. This is by contrast to two UN Adhoc tribunals, where the victims have not been allowed to participate in the trial proceedings and to deliver their view before the tribunals during the judgments.
At all stages and circumstances, the person is innocent until confirmed the guilty and convicted, and the prosecutor burdens of the proof lie. However, the court has the responsibility for protecting the witnesses, and the court has several options, and good strategies for doing so.
At all stages and circumstances, whether during pre-trial, trial, and appeals, the person has an inherent right to choose the language in order to fully understand the trial. The court proceedings are leading in various languages, with providing competent translators and interpreters directly at work .
The authorisation for issuing the warrants of arrest is with PTJ, which can be after ensuring having enough evidence, and the case goes to the trial.
Based on the ICC legal philosophy and terminologies of the trial proceedings, the case is called phase when in the PTC, and the defendant referred to suspect, and the then form suspect referred to the accused when the trial confirmed by the TC.
Based on the ICC legal philosophy of the trial proceedings, the trial judges hear the evidence from the prosecutor, while the defense of the person and the lawyers of the victims are rendering the verdicts. However, if the person was convicted and found guilty, the sentences and decisions on reparations are included.
The appeals judges render decisions, verdicts for appeals from the prosecutor of the court or defense of the convicted.
The case might be closed without verdicts of conviction and guilt. However, if the prosecutor of the court provided new evidence it can be reopened again.
Likewise, there is no limitation and legal prescription on the cases before the ICC.
4.7 IMMUNITY UNDER THE ROME STATUTE AND THE AFRICAN CONSTITUTIONS
The Rome Statute of the international criminal court does not provide the immunities to any person to exempt him from prosecutions before the international criminal court.
The Rome statute stipulates clearly that there are no immunities whether under the national or international law which could prevent the court exercise its jurisdictions over the person suspected.
Under article 27, the Rome Statute stipulates that the present statute applied likewise to all persons accused without any difference based on official position, such as heads of states or government officials, or members of government or parliaments, all these positions shall not exempt the person from criminal accountability under the statute.
The all immunities and distinct bureaucratic rules and regulations which might attach to the official or any formal position of the persons, whether under international or national law, shall not block the court from the exercising its jurisdictions over such person accused.
However, pertaining to the issues of immunities, there are contradictions between the Rome Statute and the African constitutions. Most of the African constitutions granted the immunities to the heads of states and government officials against holding criminal liability, whether domestically or internationally against them during their office, while the Rome Statute of the international criminal court denies that, and does not provide the immunities to any person suspected of committing crimes fall within the courts’ jurisdictions.
For illustrate, the constitution of Botswana, Benin, Congo, Central African Republic, Chad, Comoros, Côte D’Ivoire, Djibouti, Egypt, Eritrea, Gabon, Gambia, Ghana, Guinea, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritius, Morocco, Namibia, Niger, Rwanda, Senegal, Seychelles, South Africa, Sudan, Tanzania, Tunisia, Uganda, Zambia, and Zimbabwe, stipulates that, the president shall be immune from any legal procedures, and any proceedings, and from detention and arrest, or on any accountability of any act committed. The officials immune from detention and arrest during joining, and going to or back from the assemblies of the legislature, excepting for betrayal, crime of peace of the state, or breach of the peace of the state.
The Republic of Kenya is the only country made it clear in its constitution that the immunities of the president under this constitution shall not cover the crimes for which the president might be prosecuted under any international treaty which Kenya is a party to the treaty.
These contradictions are also forms the obstacles and challenges in refraining some of the African states to sign and ratify the Rome Statute, and those who are party to the statute still having obstacles and challenges in domesticating and implementing the Rome Statute into their judicial systems correctly. Hence, that correction and revision in African constitutions are required to domesticate and implement the court’s statute; this may grant the chance to apply the principle of complementarity, and execute the international criminal justice and to end impunity for international crimes in Africa.
Despite that, the most of the African constitutions stipulates that the state could not sign and ratify any treaty, convention and agreement if the treaty, convention, and agreement contradict the provisions of the constitution, and the latter should be revised before the sign and ratification. However, the practice is totally different when the African states have signed and ratified the Rome Statute of the ICC, since, the statute contains the provisions which totally contradicts the African constitutions, which are the issues of the immunities of heads of states and government officials, while the Rome Statute made it clear that does not provide any immunity to the heads of states and government officials, parliaments, or house of assembly and representatives members. Whereas the African constitutions provide the immunities to them and the Rome Statute has been signed and ratified by the African states without any revision of their constitutions.
For instance, the constitution of the Republic of Senegal, Mali, Gabon, South African, Central African Republic (CAR), the Republic of Benin, the Republic of Niger, Djibouti, Burkina Faso, Congo, Comoros, Chad, Madagascar, and Côte D’Ivoire, stipulates that, if the constitutional board has acknowledged that an international obligation contains provisions and clauses contrasts to the constitution, the permission to sign and ratify it may only enter force after the review of the constitution. However, the African countries have signed and ratified the statute of the ICC, despite the provisions which contradicts their constitutions in the statute, and the constitutions does contain any clause to fix the contradictions between the provisions of immunity in the Rome statute, and the immunity in their constitutions, but, unfortunately that they have signed and ratified the Rome Statues of the ICC which contains the provisions contradicts their constitutions clearly.
The Republic of Kenya is only country made it clear in its constitution, that the immunities of the president under this constitution shall not cover the crimes for which the president might be prosecuted under any international treaty which Kenya is a party to the treaty.
Therefore, it is advised to the African states to revise their constitutions to harmonise with the provisions of the Rome Statute, in order to end impunity of the perpetrators of international crimes in Africa.
The issues of the jurisdictions, admissibility, investigations before prosecuting the person suspected are the essential procedures of the ICC under the Rome Statute. Constructed to these principles, the subject matter jurisdictions of the court and its technical jurisdictions must be fulfilled and taken into consideration by the court before taking any steps to proceed in a situation and case. The court exercises its jurisdictions only on the crimes stipulated under the Rome Statute. However, there are forms of referring the situations and cases to the court before exercising the jurisdictions, whether by the state party, or by a declaration from the non-state party, or through UNSC, or by the prosecutor of the court under the doctrine of proprio motu investigation. Likewise, the Pre – Trial Chamber (PTC) of the court has the power to prosecute the person suspected. However, the court cannot proceed to this step while the person accused is absent. Talks on the arrest warrants of the court show the weaknesses in executing it, to detain and surrender the person to the court at The Hague. Conversely, as an alternate way, and the best solution of this matter, the court can release a summons to the person suspected to appear before the court without detaining him. This could be more executable than warrant of arrest. The African constitutions allowed the immunities to the heads of states and government officials, to prevent holding criminal liability against them, in both domestic and international levels, while the Rome Statute of the international criminal court rejects to provide the immunities to any person suspected of committing crimes fall within the jurisdictions of the court. As it has been mentioned in the past chapter, these contradictions are forms challenges and obstacles before the African states to domesticate and implement the Rome Statutes in their domestic judicial systems properly.