Evolution of the International Criminal Court and Its Fundamental Structure

"This case … is the case of all humanity." 

Former United Nations Secretary-General Kofi Annan

I would like to share my research results which are about the background of the ICC (1); its establishment, international criminal law crimes and penalties, and current cases heard in the chambers, in order to enlighten public opinion and to inform decision-makers, and especially to contribute the universal peace and justice. 

My first encounter with the International Criminal Court (ICC) happened when I was a military criminal judge and while I was studying for my master's degree. When my thesis advisor, grand master Prof. Ahmet Mete TUNCOKU suggested me to work on this subject, I was extremely excited. Because I believed that one day universal peace and justice would be accepted and implemented by all humanity. I also had a belief that people who acted against these values could be punished by the international community, regardless of what protection their national status afforded them. The fact that the ICC was established to achieve this purpose and that many states, especially the United States and the European Union countries also Türkiye, participated in the establishment meetings of the 1998 Rome Statute, reinforced my belief. With this motivation my master's thesis became the first book on ICC in Türkiye. [2] 

After armed conflicts, the victors sometimes punished the defeated, sometimes subjected them to humiliating treatments, and sometimes treated them well, according to their own culture. Some authors examining the subject stated that the first thoughts on imposing humanitarian restrictions on the conduct of armed conflicts dating back to Chinese Sun Tzu, who wrote a work called "The Art of War" in the 6th century B.C. Leaving these traditional approaches aside, the first modern idea on the punishment of war criminals in international practice emerged during and after World War I. During the First World War, Russia, France, and England prepared a declaration accusing the Ottoman Empire of the "Armenian massacre". It’s understood that this declaration which warns the members of the government would be held personally responsible for these actions, was given to the Ottoman Government through the United States Embassy.

“For about a month the Kurd and Turkish population of Armenia has been massacring Armenians with the connivance and often assistance of Ottoman authorities. Such massacres took place in the middle of April (new style) at Erzerum, Dertchun, Eguine, Van, Bitlis, Mush, Sassun, Zeitun, and throughout Cilicia. Inhabitants of about one hundred villages near Van were all murdered. In that city Armenian quarter is besieged by Kurds. At the same time in Constantinople, the Ottoman Government ill-treats the inoffensive Armenian population. In view of these new crimes of Türkiye against humanity and civilization, the Allied governments announce publicly to the Sublime Porte that they will hold personally responsible [for] these crimes all members of the Ottoman Government and those of their agents who are implicated in such massacres. Paris, May 28, 1915” [3]  

After the war, the leaders of the Committee of Union and Progress (İttihat ve Terakki) Party the ruling organization at the time, accused on allegations; "1) Armenian events, 2) Declaration of war without the decision of the Board of Deputies and without reason, 3) Ahmet İzzet Pasha's resignation from the Ministry of War with the intervention, 4) Corruption in subsistence matters, 5) Arbitrary conduct of state affairs", and they were tried in the Martial Law Military Court (Divan-ı Harb-i Örfi). [4]  

The Versailles Peace Treaty was signed by the other defeated state German Empire of the First World War, with the Allies on 28.06.1919. According to Article 227 of the Treaty, it was accepted that the German Emperor was considered the most responsible for the war and that he had initiated the attack on Europe's sacred rights of morality and freedom, and therefore he would be tried by a court consisting of a British, a French, an Italian, an American and a Japanese judge. However, since Kaiser Wilhelm II could not be caught, this court was never established. According to Article 228, persons violating the rules of war and procedures of conduct were allowed to be brought before the courts, and the German Supreme Court in Leipzig was given de facto jurisdiction for this purpose. 

Four ad hoc(5)  courts managed to conduct trials in a holistic manner with the stages of prosecution, defense, and judgment that were established after World War II.

The Nazi administration, which ruled Germany during World War II, committed genocide and very serious crimes against humanity. This situation revealed that the prosecution of war crimes was inevitable to prevent a repetition of what happened. It is noteworthy that at the end of the war, the USA and its allies dictated provisions for the capture and trial of war criminals in all ceasefire and peace agreements they signed. Similarly, in the Declaration of Surrender signed by Germany, German authorities agreed to hand over important Nazi administrators who had committed war crimes or similar violent crimes to the Allies. The victorious states acting on this basis; The USA, USSR, England, and France decided to establish an International Military Tribunal in Nuremberg with the agreement they signed in London.

After the II World War, another Court was established to try Japanese war criminals; It is the International Military Tribunal for the Far-East established on 19 January 1946 by a special order of the Supreme Allied Commander Douglas Mac Arthur. 

Among the most important results of all these developments; we can count the fact that an international criminal justice institution was established for the first time besides that, in addition to the responsibility of the state in the international arena, the individual responsibility of those who committed serious war crimes was accepted.

Although the establishment of the International Criminal Court is not so far off in the future, some painful experiences had to be experienced until this goal was achieved. The world public opinion could not remain indifferent to the serious violations of "Humanitarian Law" that occurred during the disintegration of Yugoslavia after the Cold War, and an ad hoc International Criminal Court was established within the UN in 1993. The following year, a new ad hoc International Criminal Court was established to prosecute and judge the heinous atrocities events in and around Rwanda.

The past century has witnessed terrible brutalities and tyrannies in human history. More than 250 conflicts have occurred in the world and 86 million people, mostly women and children, lost their lives in these conflicts. Again, in these conflicts, more than 170 million people were deprived of their property and rights. Many of these victims have been forgotten and very few perpetrators have been brought to justice. [6]  

Although the UN General Assembly first stated in 1948 that a system should be established to prosecute mass murderers and war crimes after the Nuremberg and Tokyo trials, no concrete progress has been achieved. The UN Organization, which had to follow many tortuous paths to prevent the criminals from going unpunished, has always maintained the idea that a permanent International Criminal Court should be established. The basis of this opinion is to ensure that such serious crimes do not go unpunished and to be protected from criticism of the ad hoc courts established throughout history.

Following the General Assembly's decision no. 52/160, upon the invitation of the Secretary-General, 160 states with fully authorized representatives; 129 civil society organizations, independent institutions, non-governmental organizations, and observers were represented at the conference. With the Resolution Document dated 17.07.1998, the Statute of the Permanent International Criminal Court was accepted with 120 states accepting, 7 states voting against (USA, India, Israel, Bahrain, Qatar, China, and Vietnam) and 21 states abstaining (Türkiye is included in this group). It is noteworthy that although the United Kingdom, along with the European Union countries (which later left the union), is a party to the agreement, the United States did not take part. As a superpower, the USA has a dominant role in both the UN and NATO. In addition, that, the USA fights global terrorism and sends military troops to armed conflict zones to protect human rights, international social order and support democracy. However, the situation is like this, it should be examined why they chose not to take part in the international criminal court, which was established to serve the same ideals and purposes. It is clear that the reasons that sent the USA to this attitude should be examined from political, sociological, and legal perspectives. Whether the USA's non-participation in the treaty was a preference based on the circumstances and conjuncture of the day, and the benefits and disadvantages of this preference have changed today, is another research topic. The US put forward the following approach: [7]  

“United States: The United States does not accept the concept of jurisdiction in the Statute and its application over non-States parties. It voted against the Statute. Any attempt to elaborate a definition of the crime of aggression must take into account the fact that most of the time it was not an individual act, instead wars of aggression existed. The Statute must also recognize the role of the Security Council in determining that aggression has been committed. No State party can derogate from the power of the Security Council under the United Nations Charter, which has the responsibility for the maintenance of international peace and security.

The United States will not support resolution "e"(8)  in the final act. Including crimes of terrorism and drug crimes under the Court will not help the fight against those crimes. The problem is not one of prosecution, but of investigation, and the Court will not be well equipped to do that.”

The attitude of Türkiye, which sent military troops to UN operations and has been fighting against terrorism for many years, was slightly different. Türkiye put forward following approach:

“Türkiye: Türkiye supported the establishment of the Court throughout the preparatory work and the Conference itself. However, it had wanted to have seen the crime of terrorism included in the Statute under crimes against humanity. A formulation should be found allowing the opt-in, opt-out approach for States. For war crimes, it would have been better to have language stating that the future Court will not have anything to do with internal matters of States, as those actions it must take to root out terrorism. Also, Türkiye did not support the proprio motu  powers of the Prosecutor. Türkiye abstained on the vote on the Statute's adoption.”

As mentioned above, in this conference 120 States adopted the treaty on 17.07.1998. This treaty known as the Rome Statute of the ICC, entered into force on 01.07.2002 at the time which is accomplished the necessity of more than 60 States became a member of the ICC by ratification. Among other things, the Rome Statute sets out the crimes falling within the jurisdiction of the ICC, the rules of procedure, and the mechanisms for States to cooperate with the ICC. The countries which have accepted these rules are known as States Parties.

It is important to emphasizing again that the ICC is a permanent international court established to investigate, prosecute, and try individuals accused of committing the most serious crimes of concern to the international community as a whole: the crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. The primary mission of the ICC is to help put an end to impunity for the perpetrators of such crimes and contribute to their prevention.  

Like all high courts, the ICC is composed of four organs: the Presidency, the Chambers, the Office of the Prosecutor, and the Registry. Chambers consist of Pre-Trial, Trial, and Appeals units and comprise 18 judges who fulfill the judicial functions of the Court. The Registry provides administrative and operational support to the Court and is responsible for activities in relation to defense, victims, communication, and security matters (9).

The Office of the Prosecutor analyses information on situations or alleged crimes within the jurisdiction of the ICC, and determines whether to initiate an investigation. If finds some evidence that committed crime litigates cases before the various Chambers of the Court. 

Judges resolve all issues that arise before the trial phase begins and decide on the admissibility of situations and cases before the Court. Besides that, they ensure that trials are fair and expeditious and are conducted with full respect for the rights of the accused and due regard for the protection of the victims and the witnesses. The court may uphold, reverse, or amend a decision or even order a new trial.

Rome Statute has 128 articles. The first article is:

“Article 1- The Court: An International Criminal Court ("the Court") is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.”

The regulation shows us four important features: first is jurisdiction of the ICC is global, second is ad hoc international criminal tribunals became history, third is none of the national immunities of criminal jurisdiction can’t be claimable in front of the ICC and the fourth is the jurisdiction of the ICC is complementary. It is extremely important that the ICC's jurisdiction is complementary. Here, the meaning of “complementary jurisdiction” is that: if national jurisdiction comes into force, the ICC is content to monitor and follow up on the case. If the trial is impartial and just, the ICC doesn't intervene. For this reason, it is important to make legal regulations that will fulfill the requirements of the ICC Statute in the national context.

Within the framework of events, cases, and decisions, the subject of ICC we discuss, reveals an expanding character. Especially during the Ukraine war, the ICC issued an arrest warrant for Russian President Vladimir Putin, necessitating a series of scientific and intellectual studies on the subject from a legal perspective. In this essay, a basic knowledge, background, and infrastructure of the ICC is given. For the purpose of this article, it should be sufficient to give a short interpretation of Article 1 at this stage. Therefore, it would be a correct approach to examine issues such as analyzing each crime and the cases held, the content and effects of the arrest warrant against Russian President Vladimir Putin, and the changing conjuncture of non-party states such as the USA, in detail and separately, and write them as articles.

References

(1) The term "Court" refers to a court with special jurisdiction and competence. Furthermore, Article 38 of the Constitution stipulates that "...except for the obligations required by being a party to the International Criminal Court, a citizen shall not be extradited to a foreign country for an offence." There is a regulation as follows. As can be seen, the term "Court" is preferred for this special jurisdiction. In the context of these reasons, we will use the term "International Criminal Court" instead of the International Criminal Court for the ICC in our articles and publications.

(2) ÇINAR M. Fatih, "International Criminal Court in the Light of the Development of International Criminal Courts", Kazancı Law Publications, Istanbul-2004. For the full text see: www.academia.edu/38981219.

(3) For the telegram sent by the French Ambassador (Sharp) to the US Secretary of State, see: www.history.state.gov/historicaldocuments/frus1915Supp/d1398.

(4) For detailed information on the subject, see KOCAHANOĞLU, Osman Selim: İttihat ve Terakki'nin Sorgulanması ve Yargılanması (1918-1919), İstanbul-1998, pp.513, 546.

(5) ad hoc: means a non-permanent court that is established on a case-specific basis. This type of tribunals are criticised on the grounds that they are not present at the time of the offence, therefore retroactive legalisation is made, the principle of natural judge is undermined, and that they serve the justice of the victors rather than justice.

(6) For the reasons for the establishment of the UCD, see: legal.un.org/icc/statute/iccq&a.htm. There are also many civil society organisations proposing the establishment of the UCD, see: www.coalitionfortheicc.org.

(7) The UN Diplomatic Conference ended in Rome on 20 July 1998 with the decision to establish a permanent International Criminal Court, see press release L/2889: press.un.org/en/1998/19980720.l2889.html.

(8) For the text and details of the final treaty, see: legal.un.org/icc/statute/finalfra.htm.

(9) For brief information on its organisational structure, see: www.icc-cpi.int/sites/default/files/lesson1.pdf.