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International legal forum with reference to International criminal court

Chapter I
A)RESEARCH METHODOLOGY
Aims and objective
There is a very well-known saying-"There can be no peace without justice,
no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance."

So the primary objective of the United Nations is to secure universal respect for human rights and fundamental freedoms of individuals throughout the world and its main aim is to promote international peace and co-operation. It strives towards bringing universal justice for all and to put an end to all kind of conflicts.

Hypothesis1) The international criminal court - A hope for future generation. 2)It renders justice for all. 3) Does it help in resolving conflicts? 4) Whether the court acts as a remedy for the deficiencies of ad hoc tribunals ? 5) The International criminal court deters future war criminals.

Scope and Limitations:


The project is basically based on the doctrinal method of research as no field work is done on this particular topic. The whole project is made with the use of
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the secondary sources. Though the topic is an immense project and pages can be written over the topic but because of certain restrictions and limitations I was not able to deal with the topic in great detail. Points on which special emphasis has been given in this research are: 1) Structure and Subject matter of ICC 2) India and ICC 3) Achievemnets and shortcommings of ICC

Methodology:
There are two types of research methodology i)doctrinal,ii)non -doctrinal. In the present project the researcher has adopted doctrinal method of research because it is purely based on article,books and jornal and not on observation.

Method of Writing:
The method of writing followed in the course of this research paper is primarily analytical and descriptive .

Mode of Citation:
The researcher has followed a uniform mode of citation throughout the course of this research.

Sources of Data:
The following secondary sources of data have been used in the project -

1.Articles 2. Books 3.Websites

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B)INTRODUCTION
The international criminal court A hope to future generation
Following World War II, a war crimes tribunal was held in Tokyo to try Japanese political and military leaders. There is no doubt that the defendants were responsible for appalling atrocities, but, as the Indian judge on the tribunal wrote in his dissenting opinion, the victorious allies had themselves committed grave crimes, and the U.S. atomic bombings of Hiroshima and Nagasaki were the most horrific war crimes of the Pacific War. But only the atrocities committed by the Japanese were punished. In short, the war crimes trial represented victors justice. Stephen R. Shalomation The statute of the international criminal court (ICC) was adopted in Rome on July 17; 1998.Sir Kofi Annan, the Secretary General of United Nations observed that the establishment of the court is still a hope to future generations, and a giant step forward in the march to universal human rights and the rule of law. However, in the very beginning the gift of hope has many lacunae. Most of the population of the globe remains out o f the reach of the court. Most of the populous countries like China and India are not party to the statute of the court. Besides, other 26 nations have also opposed the establishment of the court. Nevertheless, the statute of the ICC also known as the Rome treaty or Rome statute was adopted by 120 countries voting in favour of the statute. After the requisite ratifications by 66 nations, the statute has come into force from July 1, 2002.But still the court will require some more time for actual functioning. The major lacuna of the ICC is its opposition by the leader of the Euro -Atlantic hegemonic group of countries, the United States of America. Notwithstanding the signing of the treaty on the last date, United States has refused to clear it and the US administration has stated that the treaty will not be submitted to the senate for ratifaction. 1 ___________________
1. Leila, Nadya Sadat, Insights , American society of International Law, April 2002

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Chapter II
A)Historical Background
Crime prevention is possible only when itsperpetrators are punished .The

history of crime prevention is a has passes through arduous paths of self-help, group or clan assistance and culminated in organized state trials with the emergence of nation state. With the advent of the inter-state relations and particularly after the industrial revolution the states came in contact frequently and certain rules were required for regulating their relations. Thus the law of nations or international law came into existence. Rapid growth of science and technology gave momentum to inter -state relations. The quest for power and pelf is an instinct of human beings. The states consist of human beings and their urge for aggrandizement resulted in wars. These wars initiallyreminded confined to the neighborhood but gradually engulfed the entire world. Thefirst
war(1914-1918) and the second world war(1939 -1945) witnesses a spate of

crimes committed during the war in brazen violation of rule s of warfare.The victory of the allied powers in the Second World War also resulted in the establishment of the Nuremberg and Tokyo War Crimes Tribunals for the trail of defeated Germans and Japanese. Notwithstanding the criticism of these trials, they represented a water-shed in the process towards an effective
international criminal law regime 2. The most important contribution of the

Nuremberg trial was shaking the foundation of the state sovereignty as a bulwark against crimes in international law. Making the individual criminally
_______________ 2. The law of war crimes-national and international approaches (1977) quoted in 23 Mel Ul Rev 635f.n. 11 (1999).

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responsible for violating international law, the tribunal wrote in its judgment -3
Crimes against international law are committed by men, not b y abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. Thus, the international military tribunal at Nuremberg was monumentally the first instance in the modern era where individuals were brought to justice for international war crimes .Later on this thread was picked up by the United Nations General Assembly, which in 1946 affirmed the principles of International law recognized by the Charter of the Nuremberg Tribunal. In 1951 the UN established a committee to consider the possibility of establishing a criminal chamber of the international court of justice. It failed again in 1953 another proposal was made for the establishment of an independent International CriminalCourt. This also did not materialize. The proposal for the creation of an International Criminal Court (ICC) remained bogged down due to cold war.

B)Post cold war scenario


Abatement of cold war witnessed the concern of international community through the United Nations. Moved by the atrocities and grave violations of humanitarian law in the territory of former Yugoslavia since 1991 , the secretary council deriving its authority from chapter VII of the UN charter established an ad hoc international criminal tribunal for Yugoslavia in 1993 vides resolution808. Subsequently, a similar tribunal was established by the security council for Rwanda in 1994 vide secu rity council resolution 955.The establishment of these tribunals underlined the need for standing International Criminal Court. In fact, in a different context, the general assembly referred the matter of an ICC to the international Law Commission (ILC). The Assembly again formally requested the ILC to draft a statute of ICC in 1992.The commission reported to the general assembly in 1994 with the final draft statute. ____________
3. Judgment in 41 in Am J Intl L 172,221 quoted in 23 Mel UlRev(1999)

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C)ILC draft statute of ICC


After adopting the draft statute of the ICC,the ILC recommended to General Assembly for convening an international conference of plenipotentiaries to study the draft statute and to conclude a convention on the establishment of an ICC.The General Assembly,however decided to get the draft statute reviewed by an ad hoc committee. The ad hoc committee met in April 1995 and presented its report to the Assembly in September of that year. The General Assembly also referred the draft statute to six preparatory committees over for four years before convening an international conference of the plenipotentiaries. Thesepreparatorycommittees produced a bulk of points of disagreements. Most of the amendments were brought out under the contemporary impact of human rights.4 In an atmosphere of acrimony, the UN Diplomatic Conference of Plenipotentiaries adopted the statute of ICC in Rome on July 17, 1998 against bitter opposition by the United States and some other countries including India. The main points of opposition were: (a) state sovereignty (b) ambiguity in text of the statute (c) politics expanded jurisdiction (d) concurrent jurisdiction with national courts and (e) the power of the prosecutor. 5However, two issues dominated the major part of the ICC conference, namely, power of the prosecutor and th e jurisdiction of the court. The moot point was whether or not the states should give the prosecutor ex officio or proprio motu powers to investigate crimes within the jurisdiction of the court. This power of the prosecutor was primarily opposed by the United States. The U.S delegation favored a prosecutor working within the state based legal system of modern international relations. It felt that an ex -officio or proprio motu prosecutor would turn into a master of the universe.. Accountable to no-one. The draft statute intended to restrict the courts subject matter jurisdiction to most serious international crimes, called the core crimes - genocide, crime against humanity, war crimes and aggression. There were other crimes proposed

_____________
4. This is borne out from the statement of David Scheffer,Head of the U.S. delegation. He stated that: This is not a human rights court; it is an international criminal court. quoted by Marcus Rs.Mumford,supra note 4 at 171 5. David A. Nill, National Sovereign ty: Must it be sacrificed to the ICC? 14 BYU Pub L 119,130-147(1999)

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in the statute such as drug trafficking, terrorism, aircraft hijacking and several other treaty based crimes. The ICC jurisdiction was made automatic or universal or inherent. This was complementary to national criminal jurisdiction. This inherent jurisdiction concept was also opposed by the United the United States and some other nations including India. Mr. DilipLahirisaid:7
Under the law of Treaties, no state can be forced to accede to a treaty or to be bound by the provisions of a treaty it has not accepted the

concept of universal or inherent jurisdiction(of ICC) makes a mockery of the distinction between states parties and those who choose not to be bound by a treaty.

E)Origin of ICC
In spite of vigorous opposition by the most powerful nation, the United States, the statute of the ICC was adopted. The statute has now come into force after the requisite ratification by the 66 states.The ICC is culmination of four adhoc international criminal tribunals the Nuremberg International Military Tribunal, the Tokyo International Military Tribunal, the Yugoslavia International Criminal Tribunal and the Rwanda International Criminal Tribunal. The ICC has been established as a permanent institution having jurisdiction over persons for most serious crimes of international concern. The court has been located at TheHague (Netherlands).It may exercise its jurisdiction and powers on the territory of any state party, and by special agreement, on the territory of any other state.9
__________________ 7. quoted in 8 J Intl L&Prac 151,183 8.The Nuremberg and Tokyo IMTS were established by an agreement of allied powers of world war II for the trial of the individuals of the defeated axis powers.The former Yugoslavia and Rwanda ICTs have been established by the UN Secretary council exercising its authority under chapter VII of the UN charter. It is a novel interpretation of the charter 9.The ICC statute, Article 4.

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ChapterIII Subject Matter of ICC


The draft statute of the court has provided for jurisdiction of ICC over a broad range of treaty crimes such as aircraft hijacking covered by the three conventions, namely, the Tokyo Convention, 1963, the Hague convention, 1970 and the Montreal Convention, 1971, and the core crimes such as genocide. However, in the absence of general consensus on treaty crimes, the subject matter of jurisdiction of the court was reduced to core crimes. The impact of contemporary human rights movement is evident in t he ICC statute. The crimes committes by the individuals falling within the jurisdiction of the court are as under:-

y GENOCIDE
There was no doubt about the inclusion of genocide as a crime in the ICC statute.There was some opinion for expanding the definitio n as given in the Convention on the Prevention and Punishment of the crime of Genocide,1948.The consensus , however was to retain that definition which defines genocide as any of the following acts committed with the intent to destroy ,in whole or in part , a national,ethical,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;(or) forcibly transferring children of the group to another group,. This definition, almost 54years old, has certain lacunae. The words with a intent to destroy have raised problems. The International Criminal Tribunal for Rwanda which prosecuted Akayesu in 1998 has expressed the opinion that

genocide intent of an offender is a factor which is difficult, even impossible to determine .10
____________________________________

10.Kruger v. commonwealth (1997) 190 CLR 1

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y Crime against humanity


Crimes against humanity although stood included in the list of acts tried by Nuremberg, Tokyo, Yugoslavia and Rwanda International Criminal Tribunals yet there were no multilateral treaty like the genocide convention. Therefore the ICC statute defines crimes against humanity in article 7 which when committed as part of widespread or systematic attack include murder , extrermination, enslavement, deportation or forcible transfer of population, imprisonment or other serious deprivation of physical liberty in violation of fundamental rules of international law, torture,rape,sexualslavery, enforced prostitution ,forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity.

y War Crimes
War crimes have been defined in the four Geneva Red Cross Conventions of 1949.Article 8 of the Rome Treaty, besides the four Geneva Conventions,includes various other subjects of international concern into its wide definition war crimes. Thus,torture,biological experiments,taking hostages,conscription upon personal dignity and starvation of civilians as a means of warfare come within the fold of article 8 of the Rome statute.The significant contribution of this treaty is the expan ded list of war crimes in relation to both international and non-international armed conflicts and thereby bringing the individual within the purview of international law for criminal liability.

y Aggression
There is no universally agreed definition of aggression.The definition suggested by the UN General Assembly in 1974 has not received much support.Various preparatory committee meetings of the ICC did not find an agreeable definition.Therefore,the ICC statute provides in article 5 that aggression will be incorporated into the statute at a later date.

India and the International Criminal Court


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Special focusshould be given on impunity for mass crimes in India and what the Indian law can learn from the ICC. Hit is opined that the one element that distinguishes a mass crime from a murder or rape is the element of state complicity. By complicity, what one means is that the state does not necessarily directly participate but is involved and allows the crime to happen, he said. That is, the state plays a facilitating role by both direct acts of commission and acts of omission all of which ensure that the mass crime is committed. In this respect we can highlight the issue of state complicity in Nellie massacre in Assam (1983), anti-Sikh violence in Delhi (1984), Babri Masjid demolition and the killings that followed (1992) and the Gujarat carnage (2002). In this respect the response of Indian law to the issue of state complicity in such mass crimes needs to be discussed. In substantive terms, Indian law remains unable to conceptualize the mass crime within the inadequate framework of the Indian Penal Code (IPC) which is better suited to deal with individual crimes, he said. Taken a step further, Indian law refuses to ent ertain the possibility of the state being accountable for offences it might commit. This is made explicit in Sec 197 of the Criminal Procedure Code(Cr P.C) which lays down that the sanction of the Government( Central or State) is necessary before the prosecution of a public servant for acts committed in the discharge of his duty. Thereby it can be stated emphatically that Indian law entrenches impunity in law for its officials for offences it might commit against its citizens. Secondly, it should be noted that while the Indian Penal Code has several chapters relating to offences against the body, offences against property and offences against the state, as pointed out by K.G. Kannabiran, a prominent human rights lawyer, the Code contained no chapter on Offences by the State. The law carried with it an assumption that the state and its agencies would not commit crimes an assumption that has proved itself wrong time and again. Thirdly, the Indian Penal Code deals with crimes against individuals and not crimes directed at a group of people in common par lance mass crimes. The concepts of genocide and crimes against humanity, stated in t he ICC Statute, were important, to indicate what crimes against individuals (such as murders, torture, sexual assaults and destruction of religious places) amounted to, when committed in a widespread or systematic manner against a civilian
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population, or when the attacks were accompanied by an intent to destroy a particular group of people. Again the jurisprudence of the tribunals for former Yugoslavia and Rwanda, through cases such as Kristic and Akayesu, provided a wider framework to understand a purposeful destruction of culture and identity of a group. With the absence of these crimes in Indian criminal law, a crime of murder, whether committed against one individual or a group of individuals, would only amount to murder and nothing more, he said. Fourthly, The Indian criminal law has certain missing crimes, such as that of enforced disappearances. We should elaborate on the mass cremations case of Punjab and the virtually impossible task of holding police personnel responsible for disappearing suspected militants in the absence of a criminal law that explicitly stated enforced disappearances to be a crime. Again it should also be pointed out the difficulty in holding political superiors / masterminds responsible for mass crimes under Indian law, and the usefulness of concepts such as command / superior responsibility as sta ted in the ICC Statute.

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Chapter IV A)Structure of the court


Composition of the ICC
The Court is an independent institution. The Court is not part of the United Nations, but it maintains a cooperative relationship with the U.N. The Court is based in The Hague , the Netherlands , although it may also sit elsewhere. The Court is composed of four organs. These are the Presidency, the judicial Divisions, the Office of the Prosecutor and the Registry.
Presidency Judicial Divisions Office of the Prosecutor Registry Other Offices

y Presidency
The Presidency is responsible for the overall administration of the Court, with the exception of the Office of the Prosecutor, and for specific functions assigned to the Presidency in accordance with the Statute. The Presidency is composed of three judges of the Court, elected to the Presidency by their fellow judges, for a term of three years. The President of the Court is Judge Sang -Hyun Song (Republic of Korea). Judge FatoumataDembeleDiarra (Mali) is First Vice President, and Judge Hans-Peter Kaul (Germany) is Second Vice-President.

y Judicial Divisions

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The Judicial Divisions consist of eighteen judges organized into the Pre -Trial Division, the Trial Division and the Appeals Division. The judges of each Division sit in Chambers which are responsible for conducting the proceedings of the Court at different stages. Assignment of judges to Divisions is made on the basis of the nature of the functions each Division performs and the qualifications and experience of the judge. This is done in a manner ensuring that each Division benefits from an appropriate co mbination of expertise in criminal law and procedure and international law. The judges of the Court are: Sang-Hyun Song (Republic of Korea), FatoumataDembeleDiarra (Mali), Hans Peter Kaul (Germany), Elizabeth Odio Benito (Costa Rica), AkuaKuenyehia (Ghana), ErkkiKourula (Finland), Anita U acka (Latvia), Sir Adrian Fulford (United Kingdom), Sylvia Steiner (Brazil), Ekaterina Trendafilova (Bulgaria), Daniel David NtandaNsereko (Uganda), Bruno Cotte (France), Joyce Aluoch (Kenya), SanjiMmasenonoMonogeng (Botswana), Christine van den Wyngaert (Belgium), CunoTarfusser (Italy), Silvia Alejandra Fernndez de Gurmendi (Argentina), Kuniko Ozaki (Japan) and Ren Blattman (Bolivia).

y Office of the Prosecutor

The Office of the Prosecutor is responsible for receiving r eferrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court. The Office is headed by the Prosecutor, Luis Moreno -Ocampo(Argentina ), who was elected by the States Parties for a term of nine years. He is assisted by Deputy Prosecutor Mrs. FatouBensouda who is in charge of the Prosecution Division of the Office of the Prosecutor.

y Registry

The Registry is responsible for the non -judicial aspects of the administration and servicing of the Court. The Registry is headed by the Registrar who is the principal administrative officer of the Court. The Registrar exercises his or her functions under the authority of the President of the Court. The curr ent Registrar, elected by the judges for a term of five years, is MsSilvanaArbia (Italy).
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y Other Offices

The Court also the Court includes a number of semi -autonomous offices such as the Office of Public Counsel for victims and the Office of Public Counsel for Defence. These Offices fall under the Registry for administrative purposes but otherwise function as wholly independent offices. The Assembly of States Parties has also established a Trust Fund for the benefit of victims of crimes within the jurisdiction of the Court and the families of these victims

B)Exercise of jurisdiction: triggering mechanism


The ICC may exercise jurisdiction with respect to the crimes within its jurisdiction in three ways :1. The matter is referred to the prosecutor by the security council acting under chapter VII of the UN charter 2. Thematter is referred to the prosecutor by a state party to the statute, 3. The prosecutor himself initiates the investigations in respect of such crime
y

Security council referral-

TheSecurity Council enjoys a preferred position in determining the threats to the international peace and security. The permanent members can veto any decision of the Security Council.

y state party complaintA state party to the statute of ICC may also refer a case coming within limits of the statute to the court .In such cases unlike the security referral, the court does not exercise inherent (automatic) jurisdiction, and instead, in such cases the consent of either the territorial state or the state of the nationality of the accused is required.

y Independent investigation by the prosecutor -

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Under article 15 of the Rome statute, the prosecutor under his independent investigative powers may bring a case before the court. Hecan, for this purpose, receive information on potential crimes from a number of sources including states, organs of UN, inter-governmental and non-governmental organizations and other reliable sources. These powers of prosecutor was strongly opposed by all the permanent members except the United Kingdom and other participating states, including India.in view of this stiff opposition, the investigation by the prosecutor has been conditioned by the authorization of the pre-trial chamber of the court.

y Complementarity The ICC is intended as a court of last resort, investigating and prosecuting only where national courts have failed. Article 17 of the Statute deals with complementarity.The establishment of a permanent criminal court differs from establishing ad hoc tribunals. In case of the international criminal tribunals for former Yugoslavia and Rwanda, the question of supremacy of these tribunals were self-evident since these were created by the Security Council under the authority of chapter VII of the UN charter. In case of the ICC, the states were not willing to surrender completely their sovereign jurisdiction. Therefore, a compromise formula was their sovereign jurisdiction. Therefore a compromise formula was evolved under which a state with jurisdictional competence has the first right to institute proceedings unless that state is unwilling or unable genuinely to carry out the investigation or prosecution. This has been complementarity jurisdiction. Preamble and article 1 of the Rome Treaty emphasize that the jurisdiction of the International Criminal Court would be complementary to national criminal jurisdiction. The unwillingness or genuine inability of a state for not investigating or prosecuting an individual, guilty of the crimes listed in the statute, will be determined by the ICC. This is possible where the state chooses to exercise jurisdiction or where the concerned states administrative and legal machinery has completely broken down. ________________
11. Articles 24 and 25 read with chapters VI & VII of the UN charter

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Therefore, situations where complimentarity principles would not apply:

Unwillingness or inability to conduct genuine prosecution/investigation Unwillingness or inability to prosecute Unwillingness would mean- shielding the person, inordinate delay, prosecution not conducted independently, impartial

Why complementarity?
respect of states as having primary jurisdictions in criminal matters ( this has also been mentioned in preamble) Practical efficiency as states may be better able to collect evidences and witnesses. reaffirming the UN charters provision regarding integrity of states and that statute shall not mean interfering I internal affairs of the state the purpose is to respect and enforce international justice

Laws on which ICC can rely- Article 21- the court will apply
this Statute, Elements of Crimes and its Rules of Procedure and Evidence;

In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent wit h this Statute and with international law and internationally recognized norms and standards.

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. The Court may apply principles and rules of law as interpreted in its previous decisions. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

C)ICC AND PEACE NEGOTIATIONS-

Whether ICC should suspend prosecution in face of peace negotiation?

Peace Through Complementarity: The Uganda Case and the Over Deterrence Problem in International Criminal Court Indictments By Eric Fish

In the last two years the Court has begun its first trial, issued its first warrant against a sitting head of state, and weathered scandals stemming from the alleged misbehavior of its Prosecutor.1 Yet arguably the most significant action the ICC has taken in those years involved Uganda itself. Between 2006 and 2008, the ICC played a key role in peace negotiations in Juba, Sudan betwe en the Lords Resistance Army (LRA), a guerilla movement based in northern Uganda, and the Ugandan government. The biggest sticking point in those negotiations was the fact that the ICC had issued warrants against the LRAs leaders, including its top leade r Joseph Kony. The ICCs inability to suspend those warrants undermined the Ugandan governments negotiating position, and may have contributed to the failure of the peace process and Konys refusal to stop fighting. The state parties should take the oppor tunity presented by this
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conference to reflect on A major question raised by the Juba saga whether the ICC should be able to suspend already -initiated prosecutions for the benefit of peace negotiations.2Part I first describes the provisions of the Rome Statute that remove discretion to suspendindictments, then illustrates the detrimental effects of that lack of discretion on peacenegotiations through a short diplomatic history of the Juba peace talks. (The Prosecutor is obligated to pursue any case referredto him by the UN or any State Party3 unless he finds it unreasonable for one of thereasons laid out in Article 53 (insufficient evidence, effective complementaryproceedings, or against the interests of justice).4 If the Prosecutor objects for an Article53 reason, that objection can be reviewed by the Pre-Trial Chamber,5 either propriomotu(by its own motion) or by request of the referring party, and can also be withdrawn at anypoint by the Prosecutor.6 Once the prosecution goes forward and the Pre -Trial Chamberapproves an indictment, the Prosecutor loses all discretion to halt a case. At that point, aprosecution can only be stopped if 1. The UN Security Council passes a Chapter VIIresolution to postpone it for a period of 12 months,7 or 2. The Pre Trial Chamber determines that the case is inadmissible under Article 17 because a state is genuinelyprosecuting the crimes. This inability of the ICC Prosecutor or the Pre-Trial Chamber to suspend a case after the indictment stage undermined the peace negotiations in Juba between the LRA and the Ugandan Patriotic Defense Force (UPDF )

Part II showshow the Uganda case is one example of the unique ex ante/ex post problems that arise inICC prosecutions of active participants in armed conflict. While eliminating thediscretion to suspend an indictment increases the ex ante deterrent value of the ICC topotential war criminals, doing so may also render it more difficult to end a conflict oncean indictment has been issued by the Court. Since the general deterrent value of the ICCis likely to be small, and its disruptive effect on peace negotiations large, the ICC oughtto maintain robust prosecutorial discretion so that it can suspend indictments if crediblepeace negotiations begin. Finally, Part III argues that the state parties should amend theRome statute to increase the Pre-Trial Chambers discretion to suspend indictments. Specifically, it argues that they should amend Articles 17 and 19 (which govern theadmissibility of cases when countries domestic courts have jurisd iction) to
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allow statesThe ICC can try criminals for a limited number of crimes related to conflict, includinggenocide, crimes against humanity, war crimes, and the crime of aggression. RomeStatute of the International Criminal Court, art. 5. Prosecution by the ICC involves beingbrought to and detained in The Hague, tried, and (if convicted) given a sentence of up tolife in prison in The Hague. to supplant ICC prosecutions with proceedings that fall short of criminal trials, such as truth and reconciliation commissions, in cases where doing so is vital to an ongoing peace process.

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Chapter V
A) ACHIEVEMENTS AND SHORTCOMMINGS

In order to analyse both the achievements and the challenges faced by the International Criminal Court (ICC) it is important to recall the sui generis character of the Rome Statute, and to situate the Court within the institutional framework of both past and present international justice mechanisms. Among the many achievements of the Court to date are the ones that have come from the office of the Registry. These include the unique mechanisms for providing support to victims and witnesses, the establishment of vital Court inf rastructure in situation countries and the growing outreach programme. The judiciary has also had many marked successes in dealing with the situations in the Democratic Republic of Congo, Uganda, Darfur and the Central African Republic. Despite these positive developments, the Court nevertheless faces a number of significant challenges. These include the issue of state cooperation with the Court and security and safety issues faced by investigators. The expediency of proceedings is also a matter of concern where interlocutory appeals and the participation of victims threaten the right of the accused to be tried without undue delay. From the perspective of a current member of the ICC judiciary, these challenges are surmountable if efforts to improve the functioning of the Court are sustained to ensure the continued success of the ICC in the future. 12
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12.

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B)Need of an International criminal court

... To achieve justice for all


For nearly half a century -- almost as long as the United Nations has been in existence -- the General Assembly has recognized the need to establish such a court to prosecute and punish persons responsible for crimes such as genocide. Many thought . . . that the horrors of the Second World War -- the camps, the cruelty, the exterminations, the Holocaust -- could never happen again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time -this decade even -- has shown us that man's capacity for evil knows no limits. Genocide . . . is now a word of our time, too, a heinous reality that calls for a historic response." -- Kofi Annan, United Nations Secretary -General An international criminal court has been called the missing link in the international legal system. The International Court of Justice at The Hague handles only cases between States, not individuals. Without an international criminal court for dealing with individual responsibility as an enforcement mechanism, acts of genocide and egregious violations of human rights often go unpunished. In the last 50 years, there have been many instances of crimes against humanity and war crimes for which no individuals have been held accountable. In Cambodia in the 1970s, an estimated 2 million people were killed by the Khmer Rouge. In armed conflicts in Mozambique, Liberia, El Salvador and other countries, there has been tremendous loss of civilian life, including horrifying numbers of unarmed women and children. Massacres of civilians continue in Algeria and the Great Lakes region of Africa. ... To end impunity "A person stands a better chance of being tried and judged for killing one human being than for killing 100,000." -- Jos Ayala Lasso, former United Nations High Commissioner for Human Rights
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International legal forum with reference to International criminal court

The Judgment of the Nrnberg Tribunal stated that "crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced" -- establishing the principle of individual criminal accountability for all who commit such acts as a cornerstone of international criminal law. According to the Draft Code of Crimes against the Peace and Security of Mankind, completed in 1996 by the International Law Commission at the request of the General Assembly, this principle applies equally and without exception to any individual throughout the governmental hierarchy or military chain of command. And the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the United Nations in 1948 recognizes that the crime of genocide may be committed by constitutionally responsible rulers, public officials or private individuals. ... To help end conflicts "There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance." ... To remedy the deficiencies of ad hoc tribunals The establishment of an ad hoc tribunal immediately raises the question of "selective justice". Why has there been no war crimes tribunal for the "killing fields" in Cambodia? A permanent court could operate in a more consistent way. Reference has been made to "tribunal fatigue". The delays inherent in setting up an ad hoc tribunal can have several consequences: crucial evidence can deteriorate or be destroyed; perpetrators can escape or disappear; and witnesses can relocate or be intimidated. Investigat ion becomes increasingly expensive, and the tremendous expense of ad hoc tribunals may soften the political will required to mandate them. Ad hoc tribunals are subject to limits of time or place. In the last year, thousands of refugees from the ethnic conf lict in Rwanda have been murdered, but the mandate of that Tribunal is limited to events that occurred in 1994. Crimes committed since that time are not covered.
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CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

International legal forum with reference to International criminal court

... To take over when national criminal justice institutions are unwilling or unable to act

"Crimes under international law by their very nature often require the direct or indirect participation of a number of individuals at least some of whom are in positions of governmental authority or military command."

-- Report of the International Law Commission, 1996


Nations agree that criminals should normally be brought to justice by national institutions. But in times of conflict, whether internal or international, such national institutions are often either unwilling or unable to act, usually for one of two reasons. Governments often lack the political will to prosecute their own citizens, or even high-level officials, as was the case in the former Yugoslavia. Or national institutions may have collapsed, as in the case of Rwanda. ... To deter future war criminals "From now on, all potential warlords must know that, depending on how a conflict develops, there might be established an international tribunal before which those will be brought who violate the laws of war and humanitarian law. . . . Everyone must now be p resumed to know the contents of the most basic provisions of international criminal law; the defence that the suspects were not aware of the law will not be permissible." 13
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13.www.google.com

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CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

International legal forum with reference to International criminal court

C)CONCLUSION
A long drawn battle has apparently been won by the international community by adopting the Rome Treaty of the ICC.This treaty contains a preamble, thirteen additional parts,128 articles with no scope for reservations. The treaty was adopted on July 17, 1998 on april11, 2002, ten more countries have ratified in bringing the total number of ratifications to 66 as against the requisite 60.The treaty came into force on July 1, 2002.Thenomination process for electing the judges, which started on September 9, 2002 by the assembly of states parties to the ICC statute has been completed. The assembly of states has elected eighteen judges for a term from three to nine years. It has been decided that the terms of office of the judges of ICC elected by the assembly shal l begin to run from 11 march,2003 following the date of their election. Attempts will be made to elect the prosecutor by consensus. It has also been proposed to hold the meeting of the special working group on the crime of aggression at the second session in September 2003.Various other steps such as the appointment of external auditor, committee on budget and contributions to the budget are in progress. The proposal for the establishment of an International Criminal Bar has also been taken up and Mr. HansBevers(Netherlands) is to act as focal point. Recognizing and honoringthe doctrine of non-retroactivity of crimes, the ICC will have jurisdiction over the core crimes- genocide, war crimes and crimes against humanity committed after July 1,2002. The international criminal court does not have primacy over rational judicialsystems. Its jurisdictions are complementary to state jurisdictions. The ICC will exercise its jurisdiction only when national systems are unable or unwilling to carry out the investigations or prosecutions of the crimes within the
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International legal forum with reference to International criminal court

courtsjurisdiction. Therefore the primary response for the investigations and prosecutions of international crimes rests with the states. Ratification by the requisite number of states and building up ICC infrastructure, however are in themselves not sufficient. There has been grave acrimony in the framing of the treaty. The powerful nations of the world have not been happy and they view the ICC as an institution, which abridges their soverignity.Although the United States has signed the treaty on Dec 31,2000,the Bush administration has refused to clear it through the senate. It has stated that the statute will not be sent to the senate for ratification -a mandatory constitutional requirement in the United States. Although the treaty has come into force but even on the date of writing of this article, most od the important states of the world have either not signed or not ratified the treaty for their own reasons. Some people have questioned the competence of the International Law Commission for taking up the assignment of drafting the ICC statute. Under article 13(1)(a) of the UN charter ,the general assembly ,inter alia required to encourage the progressive development of international law and its codification. This function has been delegated by the General Assembly to the ILC.The drafting of the ICC statute has been arranged on the ground that it was not at all codification, and only in a very remote sense, progressivedevelopment. The ILC was engaged, it is said, in sheer invention in preparing a draft statute of the ICC.Im may be however be submitted that this criticism is based on hollow foundation. The international Military Tribunal at Nuremberg was established in 1946 and since then, during the last more than five decades, sufficient norms of international criminal law have been evolved. In view of this corpus of international criminal law, the ILC qua the General Assembly was within the mandate of article 13(1) a of the charter in drafting the ICC treaty.

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CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

International legal forum with reference to International criminal court

The adoption of the Rome Treaty and its commencement by numerical majority again is not an occasion of jubilation. The treaty has been adopted on the premise of sovereign equality. For adoption of an international treaty the micro and macro states, the developed and developing states as well as the powerful states and weak states stand and share the platform. But the sovereign equality is not sufficient to implement and enforce the treaty. The teething troubles of the ICC include the finances for its infrastructure. The inclusion of the five permanent members of the Security Council testifies this stark truth.in case of the icc statute the most powerful and populous states have either not signed or not ratified the treaty. The population of these states is estimated not less than fifty percent population of the world. The establishment of the International criminal court in itself cannot be taken as an achievement for the suppression of international crimes. Besides resources, it requires general information co-operation of all nations for its success. The first and foremost task ahead of the international community of nations is to bring the most powerful countries: United States, Russian federation, china, and India within its fold. In the absence of this the abatement of international crimes will remain will-o-the wisp and the international criminal court may turn a hope against hope rather than a gift of hope for future generations.

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A PROJE T ON

________________________________________________________________ LE AL FOR M WITH REFERENCE TO INTERNATIONAL CRIMINAL CO RT _______________________________________________________________

UBJECT INTERNATIONAL LAW SUBMITTE TO Dr. P.P. Rao.

FACULTY INTERNATIONAL LAW ___________________________________________ _____________________ SUBMITTED BY SUBHODA BANERJEE ROLL NO 10 SEMESTER 1st YEAR LLM 1st year

CHANAKYA NATIONAL LAW UNIVERSITY PATNA, BIHAR.

NATIONAL LAW UNIVER ITY, PATNA

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Int nati nal l al

it

nce t Internati n al cri inal court

International legal forum with reference to International criminal court

Acknowledgement

No project is the work of its authors alone. I owe much of the pioneers of International Law who have led emphasis on the formulation of the International Criminal Court. My heartfelt gratitude extends to Prof Dr. Ajay Kumar for guiding and monitoring me at every step. My whole hearted thanks extends to my seniors and my friends who helped me with the collection of information and its presentation in a suitable manner. I am indebted to all the well-wishers of this project.

SUB ODA BANERJEE

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International legal forum with reference to International criminal court

BIBLIOGRAPHY

Kapoor, K.S. International and human rights, Allahabad-2: central law agency, 2006. Agarwal, O.H.International law and human rights, New Delhi: Central law publication, 2006. Reddy, V.G.Public International Law, Hyderabad: Sujatha law Books, 2009. Jaykumar,N.K.International law and human rights,Newdelhi:Lexis Nexis,2005

Websites
www.springer.com/law/criminal/journal/10609 www.earbitration.net/webforum/viewtopic.php?f=7andt=17 http//uclalawforum.com/about www.iccwbo.org/id478/index.html

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International legal forum with reference to International criminal court

TABLE OF CONTENTS
Chapterisation 1. Chapter (I)

a)Research Methodology b)Introduction 2. Chapter (II) a)Historical development. b) Post cold war scenario c) ILC draft statute of ICC d) Origin of ICC 3. Chapter (III) a) Subject matter of ICC b) India and ICC 4. Chapter (IV) a) Structure of the court b) Exercise of jurisdiction c) ICC and Peace Negotiations. 5. Chapter (V)

a) Achievements and shortcomings b) Need of ICC

c) Conclusion

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CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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