ICC: Vital deterrent to crimes against humanity

The major story this past week has been the arrest and detention of former president Rodrigo Duterte at the International Criminal Court (ICC). The newscasts and newspaper analyses have focused on the legal aspects of the detention. However, there is still a surprisingly large number of people who are not clearly knowledgeable about the nature of the ICC and the procedures of this body. The following is based on my own research.

The ICC is a permanent international tribunal which was originally established to prosecute individuals for genocide, crimes against humanity, war crimes and the crimes of aggression. Since its inception, this tribunal has played a critical role in international justice and has addressed some of the most heinous crimes committed worldwide.

The ICC was established by the Rome Statute (RS) adapted on July 17, 1998 at a diplomatic conference in Rome, Italy. The Statute came into force on July 1, 2002 after being ratified by 60 countries. The organization is headquartered in The Hague, Netherlands and operates independently of the United Nations, although they cooperate closely on many legal and diplomatic fronts.

The idea for a permanent international court emerged after World War II following the Nuremberg trials, which tried the Nazi war criminals, and the Tokyo Trials, which tried Japanese war criminals. These trials served as the precedent for prosecuting individuals for war crimes and crimes against humanity.

In the 1990s, tribunals were also established to address the atrocities in the conflicts in the Balkans and Rwanda. The conflict in the Balkans was essentially between Serbia against Bosnia and Croatia. During this conflict, several massacres were reported.

In Rwanda, the conflict was between the Hutus and the Tutsi ethnic group which also led to reports of genocide.

All these conflicts eventually led to the establishment of the ICC to ensure accountability and to deter future crimes committed on a global scale.

The ICC’s jurisdiction covers crimes committed on the territories of member-states or by nationals of member-states. It can also investigate crimes referred to it by the United Nations Security Council or if a non-member state accepts its jurisdiction.

The ICC has four main divisions. The first is the Presidency which handles administration and external relations. It consists of three judges elected from among the court’s judges and is responsible for ensuring the court’s proper functioning.

Next are the Judicial Divisions composed of 18 judges organized into Pre-Trial, Trial and Appeals Chambers, which conduct proceedings at various stages.

The next division is the Office of the Prosecutor, which is an independent office responsible for investigation and prosecuting cases.

Finally, there is the Registry which provides administrative and operational support, including witness protection, victim participation and public outreach.

The ICC’s legal process begins when a situation is brought to the court’s attention. The prosecutor may initiate an investigation based on referrals by member-states, the UN Security Council or at their own discretion with judicial approval.

During an ICC proceeding, there are several key stages. The first is the preliminary examination wherein the prosecutor assesses within ICC jurisdiction and whether there is enough evidence to proceed.

Second is the investigation, where the prosecutor gathers evidence, interviews witnesses and determines if charges should be filed.

Third is the pre-trial phase wherein there is an evaluation of the evidence by the pre-trial chamber to decide whether there are sufficient grounds to confirm the charges and proceed to trial. As of this writing, the Duterte case is in the pre-trial phase.

Fourth is the trial where the accused appears before the trial chamber where evidence is presented and judges determine guilt or innocence. This is also the period where victims may participate and seek reparations.

The fifth is the Appeal phase where either the prosecution or the defense may challenge the verdict or sentence. The Appeals Chamber handles these appeals and ensures fairness and adherence to legal principles.

The sixth phase is the Enforcement of sentences. The ICC relies on member-states to enforce sentences in accordance with agreements made with the court.

In the context of crimes against humanity, which is one of the cases against Duterte, the ICC is responsible for investigating and trying individuals accused of widespread and systematic attacks against civilian populations. These crimes include acts such as murder, extermination, enslavement, deportation, torture, rape and other inhumane acts that cause suffering or serious injury.

Another key principle is that the ICC acts only when national courts are unwilling or unable to prosecute. Despite its achievements, the ICC faces several challenges. The first is that major powers like the United States, Russia and China are not ICC members, limiting the court’s reach. Presently, there are arrest warrants for Vladimir Putin of Russia and Benjamin Netanyahu of Israel, which the ICC has not been able to implement because Russia and Israel refuse to cooperate with the ICC.

The ICC lacks a police force and relies on member-states to enforce arrest warrants. Investigations and trials are complex, requiring extensive resources. Limited funding hampers the court’s ability to prosecute all deserving cases.

The ICC is a vital institution in the pursuit of global justice.

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Email: elfrencruz@gmail.com