Prior to the establishment of the ICC, international humanitarian law was being grossly violated all over the world and a beleaguered international community demanded an international criminal tribunal for trying such crimes (Kittichaisaree, 2001; Wedgwood, 1999). The ad hoc tribunals (ICTY and ICTR) and the International Criminal Court (ICC) were introduced towards the very end of the 20th century. Peace through justice (Popovski, 2000) is a concept that is in consonance with the objectives of the UN Charter to engender and maintain international peace and security.
The international tribunal brings to justice international offenders without according much importance to the place of occurrence of the crime or the identity of the criminals. On the 25th of May, 1993, the UN Security Council formed the International Criminal Tribunal for Yugoslavia. This was constituted as ad hoc tribunal by means of the Resolution 827 to respond to the serious violations of international humanitarian law, which had taken place in that country. Its powers were that of a subsidiary organ of the UN.
The purpose of the ICTY was to establish individual criminal responsibility for crimes falling under the purview of the ICTY Statute and its jurisdiction is limited to crimes committed on the territory of former Yugoslavia (ICTY Statute). Similarly, the ICTR was established under Chapter VII of the UN Charter by the UN Security Council’s Resolution 955 of 8th November, 1994, after it was accepted that the internal conflict in Rwanda posed a threat to international peace and security.
Its objective was to prosecute “persons responsible for serious violations of international criminal law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994” (Article 1, ICTR Statute). In order to come under the purview of the ICTR Statute, these crimes, in addition to having a connection with an internal armed conflict, should have involved national, political, ethnic, racial or religious grounds.
The principal traits of both these Tribunals is that they have power to try natural persons and that they are established on a temporary basis resulting from an explicit political agreement between the Member States of the UN Security Council. The authority of these tribunals has to be accepted by all the UN member States. These tribunals were established in order to scrutinize and prosecute specific atrocities and to bring about peace in the territories of former Yugoslavia and Rwanda.
However, the International Criminal Court differs from these Tribunals though it is empowered with criminal jurisdiction for prosecuting international crimes. The Statutes and the jurisprudence of these Tribunals have contributed considerably in establishing the ICC Statute. In the words of Jonathan J. Channey “The ICTY and ICTR have legitimated the prosecution of international crimes . . . thus created a substantial and tangible body of jurisprudence, which was lacking in the past” (2001:122). Progress in international criminal law has been noteworthy due to the implementation of the ICC Statute.
The ICC is a treaty based permanent court with the status of an independent international organization. It is distinct from the UN and its correlation to the UNSC is of a complementary nature (Schabas, 2001). The ICC Statute was approved during the Diplomatic conference in Rome by 166 States and it has become effective from the 1st of July, 2002. The ICC’s objective is to have jurisdiction over persons who have committed serious crimes of international concern . The principal difference between the court and the ad hoc tribunals results from the different basis of their establishment.
The jurisdiction of the ICC has a multilateral, treaty basis and this has resulted in the supremacy of the principle of complementarity with national jurisdictions . In this context Ruth Philips (1999) has pointed out that the ICC Statute will not consider a case the moment that national jurisdiction takes it up and this stresses the fact that the States are primarily responsible for prosecuting international crime. The complementary role of the ICC aims to bring about the prosecution of international crimes in domestic courts and it will intervene only when a State fails to continue with a feasible prosecution.
Although the ICC gives priority to national prosecutions of crimes under its Statute, the Court is authorized to determine the admissibility of a case. Accordingly, the Court might carry out the prosecution of a case which has been prosecuted by a State with jurisdiction over it, if the standards stipulated in article 17 are not met. In the former situation the ICC has the power to determine the competency of the national investigations and court proceedings and where appropriate it passes judgment in order to abolish impunity for international crimes.
Moreover, the ICC has jurisdiction even over citizens of non-party States who have infringed the ICC Statute. The source of the consent regime of ICC jurisdiction is based on its acceptance of coexisting and principal jurisdiction of national legal systems. However, the ICTY and ICTR Statutes deem that the Tribunals have primary jurisdiction over any national court and accordingly, the German national court handed over Prosecution of Dusko Tadic to the ICTY .
If Tripartie is either unwilling or unable to prosecute Troy Allman and General Bloodlet, then the ICC will intervene in order to initiate criminal proceedings against these persons. Since, Tripartie is a member of the Rome Statute; the ICC can directly proceed against Troy Allman who is residing in Tripartie. In respect of General Bloodlet, it will have to take recourse to the referral procedure of the UN Security Council as the present country of his domicile is non member of the Rome Statute.