The Understanding and Analysis of the International Organization: The Case of International Criminal Court

The Understanding and Analysis of the International Organization:
The Case of International Criminal Court

Introduction

Archer (2001) defines international organization as “a formal, continuous structure established by agreement between members (governmental and/or non-governmental) from two or more sovereign states with the aim of pursuing the common interest of the membership” (p. 33). Also, the international organization has three main characteristics—membership, aim, and structure. It should have at least two sovereign states as members, with the aim of pursuing common interest of the members, and has a formal structure established by an agreement officially adopted by all the members (Archer 2001). Taking the International Criminal Court (ICC) into consideration, it meets all the above criteria, so it can be regarded as an international organization. The following will address and analyze the genesis, aim, membership, structure, work, and challenges of the ICC.

The Genesis of the ICC: When, Why and How?

The road toward the creation of the ICC is long and contentious. The attempt of the establishment the ICC is the culmination of two trends in world politics, one of which can be dated back to the 19th century, and the other was after the World War II. In 1872, a permanent court was proposed by Gustav Moynier, one of the founders of the International Committee of Red Cross, to prosecute those committed crimes during the Franco-Prussian War. The next attempt was initiated by the drafters of the 1919 Treaty of Versailles to bring Kaiser and German war criminals of World War I to justice (Coalition for the International Criminal Court, n.d.). After the World War II, other attempts were the Nuremberg and Tokyo Tribunals, which were created to try war criminals.

In 1948, the need of the world court to deal with international crimes as those committed during the World War II was recognized by the United Nations General Assembly. The International Law Commission, with the request from the UN General Assembly, drafted two draft statutes to create the ICC in the early 1950s (Schabas, 2001). However, this endeavor was shelved because it was politically interrupted by the Cold War. In response to the crimes committed in both the former Yugoslavia and Rwanda in 1993 and 1994 respectively, the ad hoc tribunals were set up to try perpetrators. The proposal of creating the Former Yugoslavia Tribunal was endorsed by UN Security Council on February 22, 1993^[1]. Again, the similar tribunal was created to prosecute those responsible for genocide and other serious violations of international humanitarian law committed in Rwanda and neighboring countries during the year 1994 with the UN Security Council Resolution adopted on November 08, 1994^[2]. The creation of both tribunals highlighted the need for a permanent international criminal court.

After the end of the Cold War, in 1994, the UN General Assembly decided to pursue work toward the establishment of the ICC based on the previous draft statute of the International Law Commission (Schabas, 2001). In 1995, the ad hoc committee was organized to hold a meeting twice a year. It set the stage for the Diplomatic Conference to adopt the statute. The negotiation in creating the statute, particularly regarding the court jurisdiction and the concepts of crimes within its jurisdiction, of the court had been contentiously going on. In the same year, the “Preparatory Committee” was convened by the General Assembly to gather member states, and various kinds of non-governmental organizations and international organizations to participate. The committee was help twice in 1996 and 1997 respectively. There were two sessions in 1996, while three sessions in 1997. The idea of the committee was to consider and amend the draft statute proposed by the International Law Commission (Schabas, 2001). Finally, the Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court was held on 15 June 1998 in Rome with the participations from more than 160 states and a number of international organizations and non-governmental organizations (Schabas, 2001). On 17 July 1998, the ICC was established by the Rome Statute when 120 states, participating in the Diplomatic Conference, adopted the Statute (International Criminal Court, 2004). The statute of the ICC came into force on 1 July 2002 when the number of statute-ratified countries reached 60 (Amnesty International, 2002, April 11).

The Aim of the ICC

The aim of the ICC is clearly stated in the Preamble of the Rome Statute that the ICC is created to try the individuals guilty of the most serious crimes of concern to the international community as a whole^[3]. It also appears in the Article 1 of the Rome Statute that:

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.

Pursuant to this Article, the aim of the court is to prosecute those committed the most serious international crimes. How can the most serious international crimes be defined? According to Article 5 of the Rome Statute, they are classified as the crime of genocide, crimes against humanity, war crimes, and crime of aggression^[4]. All the crimes were defined by the Statute except the crime of aggression. Article 5 (2) clearly states that the court will not exercise its jurisdiction over the crime of aggression unless such time as the state parties agree upon the definition of the crime and set out the conditions under which the jurisdiction can be exercised.

The territorial jurisdiction of the court, with regard to the Article 12 and 13, can be exercised only in the case which the accused is a national of a state party, alleged crimes is committed within the territory of a state party, and the situation is reported to the prosecutor by either the state party or the United Nations Security Council. Regarding the accused of the crimes, Article 25 says that the court has jurisdiction over individuals accused of these crimes including those directly and indirectly responsible for committing the crimes. The temporal jurisdiction of the court, as defined in the Article 11, is limited to only the crimes committed on or after the 1 July 2002 once the court entered into force.

Membership

So far, 108 countries, bound by the Rome Statute, have become the state parties to the ICC, including nearly all of Europe and South America, roughly half of Africa, and small number of Asia^[5]. The other 40 states have signed but not ratified the Rome Statute^[6]. In 2002, two of these states, the United States and Israel, withdrew the signatures from the Rome Statute, indicating that they no longer intend to become states parties^[7].

The Structure of the ICC

The Article 34 of the Rome Statute Clearly states that the structure of the ICC consists of four main organs, the Presidency, the Judicial Division, the Office of the Prosecutor, and the Registry. With regard to the official website of the ICC^[8], the four organs of the ICC are governed

by the Assembly of States Parties. In this regard, the structure of the ICC can be described as follows:

Assembly of States Parties

The Assembly of States Parties is the ICC's legislative body. It consists of one representative from each state party. Each state party has one vote. Every effort has to be made to reach decisions by consensus. If consensus cannot be reached, decisions are made by vote. The Assembly is responsible for electing the judges and prosecutors, deciding the court's budget, adopting important texts, such as the Rules of Procedure and Evidence, and providing management oversight to the other organs of the court.

The Presidency

The Presidency is responsible for the administration of the Court, except the work at the Office of the Prosecutor. It consists of the President and two Vice-Presidents. They are judges who are elected to the Presidency by their fellow judges for a maximum of two three-year terms. The President is Judge Philippe Kirsch from Canada, the First Vice-President is Judge Akua Kuenyehia from Ghana, and the Second Vice-President is Judge Rene Blattmann from Bolivia.

Judicial Divisions

The Judicial Divisions consists of three divisions—the Pre-Trial Division, Trial Division and Appeals Division—which carry out the judicial functions of the court. There are 18 judeges working in this division. Judges are responsible for conducting the proceedings of the court at different stages counted on the division they belong to.

Office of the Prosecutor

The Office of the Prosecutor is headed by the Prosecutor with the assistance from Deputy Prosecutor and responsible for conducting investigations and prosecutions before the court. The Prosecutor is Luis Moreno Ocampo from Argentina, while the Deputy Prosecutor is Fatou Bensouda from Gambia.

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^[1] See the UN Security Council Resolution 808 (1993) at

http://daccessdds.un.org/doc/UNDOC/GEN/N93/098/21/IMG/N9309821.pdf7QpenElement. Retrieved December 07, 2008

^[2] See the UN Security Council Resolution 955 (1994) at http://www.un.org/ictr/english/Resolutions/955e.htm. Retrieved December 07, 2008

^[3] See the Preamble to the Rome Statute at http://www.icc-

cpi.int/library/about/officialiournal/Rome Statute 120704-EN.pdf. Retrieved December 09, 2008

^[4] See the definitions of genocide, crimes against humanity and war crimes in the Rome Statute at http://www.icc- cpi.int/librarv/about/officialiournal/Rome Statute 120704-EN.pdf. Retrieved December 09, 2008

^[5] See the full members of the ICC at http://www.icc-cpi.int/statesparties.html. Retrieved December 09, 2008

^[6] See those 40 states in the United Nations Treaty Collection at

http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id=372&chapter=18&lang=en. Retrieved December 09, 2008

^[7] The information is available in the United Nations Treaty Collection at

http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id=372&chapter=18&lang=en. Retrieved December 09, 2008

^[8] The ICC structure can be found at http://www.icc-cpi.int/about/ataglance/structure.html. Retrieved December 09, 2008