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Monash University
General Education Studies
Asher Flynn

Victims before the International Criminal Court The ICC  Judicial system.  First permanent, treaty based, international criminal court established to help end impurity for the perpetrators of the most serious of concern to the international community.  E.g. genocide, war crimes, crimes against humanity, the crime of aggression.  Considers, applies and enforces international law.  How it was created: o 9 years of negotiations - 120 states adopted the Rome Statute. o 4 more years before it entered into force – ratification by 60 countries.  Function: o Capacity to try people who are alleged to be individually criminally responsible for the commission of the gravest of international crimes and in doing so seeks to address lack of accountability.  Critiques: o Inherent selectivity and politicisation of proceedings – can‟t prosecute all defendants.  Charging only the people at the tope/commanders. o The myth of pure „juridical truth‟ and the misapprehension that holding individuals to account is the complete answer to global problem that may be complex and sociological or political in nature. o Because of the focus on judicial responses, we run the risk of distracting ourselves from broader responses that might address the cause of conflict/unrest in the first place.  Historical influences: o Prior to the establishment of the ICC, a number of ad hoc international criminal law mechanisms operated with discrete judicial functions. These earlier mechanisms provided a rationale for the establishment of the ICC and were helpful in crystallising earlier international criminal law concepts. Individual criminal responsibility  One key concept solidified in earlier international criminal law jurisprudence was the concept of individual criminal responsibility. o The Nuremberg and Tokyo war crimes trials conducted after the Second World War held the surviving members of the German and Japanese high command individually to account. o Whilst the exclusion of allied commanders from the reach of these tribunals subjected those processes to legitimate criticism as examples of “victors justice”, the contribution made by them to international criminal law was significant.  The Ad Hoc war crimes tribunals: o Later there were the International Criminal Tribunal for the former Yugoslavia (“the ICTY”) and the International Criminal Tribunal for Rwanda (“the ICTR”) - both established under United Nations auspices. These institutions tried a number of people alleged to have had command responsibility for crimes committed during the conflict and unrest that ravaged Yugoslavia and Rwanda.  How the ICC is set up: o In respect to its foundational framework, the ICC is not part of the United Nations system. Rather, it is an independent international organisation created by an international treaty (“the Rome Statute”).  The Rome Statute: o Provides the legal basis for the establishment of the Court. o It contains the definitions of genocide, crimes against humanity and war crimes. o A supplementary text of the “Elements of Crimes” provides a breakdown of the elements of each crime. o Includes definitions of, inter alia, the crimes of genocide; murder; extermination; enslavement; deportation or forcible transfer of population imprisonment in violation of fundamental rules of international law; torture; rape; persecution against any identifiable group; enforced disappearance of persons; and apartheid. o Rome Statute defines crimes, their elements, scope/jurisdiction of the court (which cases to consider, etc.) –backbone.  Aiding, abetting and assisting: o Has jurisdiction over individuals accused of these crimes.  Includes those directly responsible for committing the crimes as well as others who may be liable for the crimes, for example by aiding, abetting or otherwise assisting in the commission of a crime. The latter group also includes military commanders or other superiors whose responsibility is defined in the Statute.  State parties and the Rome Statute: o There are currently 121 countries that are State Parties to the Rome Statute. o The Rome Statute also charts the authority by which the Prosecutor of the Court may instigate the process of criminal investigation, the charging of the accused, the Court‟s exercise of jurisdiction over the accused, the conduct of a fair trial of the accused and if found guilty, the Court‟s sentencing of the guilty individual. o The make up of state parties:  33 are African States, 18 are Asia-Pacific States, 18 are from Eastern Europe, 27 are from Latin American and Caribbean States, and 25 are from Western European and other States.  The prosecutorial function and the ICC‟s jurisdiction: o Prosecutor evaluates the available info and commences an investigation unless the determine there is no reasonable basis to proceed. o The basis for the valid exercise of jurisdiction is delineated in the Rome Statute. Jurisdiction is not universal, but rather is based upon the concepts of territoriality, nationality or is alternatively invoked through Security Council resolution. How cases come before the court  Four mechanisms which grant it jurisdiction: o If the accused is a national of a State party to the Rome Statute. o If the alleged crime took place on the territory of a State Party. o If a situation is referred to the Court by the UN Security Council. [ o If a State not party to the Statute 'accepts' the Court's jurisdiction.  Complementarity: o Whist the ICC is an international institution and represents the interests and values of the international community, the Court is structured in such a way so as to ensure an appropriate respect and deference to local, regional modalities of justice. o The central principle of „Complementarity‟ means that the ICC may only consider matters where a Nation State is unwilling or unable to do so domestically in the first instance. The Raison D’etre for victim rights before the ICC  Whilst humanitarian impulses ar
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