A half century ago the United Nations realized the necessity to establish an international criminal court in order to prosecute crimes like genocide, “Recognizing that at all periods of history genocide has inflicted great losses on humanity; and being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required. ”
Article I of the Convention on the Prevention and Punishment of the Crime of Genocide deems it to be “a crime under international law”, and article VI requires that persons charged with genocide “shall be tried by a competent tribunal of the State in the territory of which the act was committed or by such international penal tribunal as may have jurisdiction . . .. ” Further, the General Assembly invited the International Law Commission "to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide .
. . " The main goal of the United Nations is to ensure that human rights and fundamental freedoms of individuals are respected throughout the world and the founding of a permanent International Criminal Court (ICC) furthers this objective. The international community conducted a meeting in Rome, from 15 June to 17 July 1998 in order to finalize a draft statute to establish such a court, which became officially operational on July 1, 2002 in The Hague, Netherlands.
Since, the International Court of Justice takes up cases between State and not individuals; this court fulfils a much needed requirement and in its absence acts of genocide and flagrant infringements of human rights would take place with impunity (International Criminal Court, n. d. ). In cases where the national courts do not or cannot take action against individuals who have perpetrated genocide, crimes against humanity and war crimes the International Criminal Court (ICC) steps in and does so.
The Rome Statute of the International Criminal Court has been effective from the 1st of July 2002 and the ICC has contributed vastly to the prevention and reduction of death and devastation caused by conflict (The International Criminal Court, n. d. ). The Rome Statute and the ICC Rules of Procedure and Evidence ("ICC Rules") permit victims to present their views and concerns without having to testify as witnesses, if their personal interests are affected and if such participation is not in conflict with the accused’s rights.
Moreover, this should not hinder a fair and impartial trial from taking place. The International Criminal Tribunals for Rwanda ("ICTR") and the former Yugoslavia ("ICTY") have revealed that victims will generally prone to face lack of protection, physical and mental challenges due to their interaction with the ICC, irrespective of whether they are witnesses or participants. Several instances exist of witnesses failing to depose fearing retaliation.
The Rome Statute and the ICC Rules make it essential to provide protection for victim participants. Such protection includes ensuring their safety, dignity, privacy, etc. In the absence of adequate protection, it will be impossible for victims to fruitfully participate in criminal proceedings. This physical and psychological protection has to be accorded right from the inception of the interaction between the victims taking part in the proceedings and the ICC.
This grant of protection has a major bearing on the extent of cooperation by the victims with the Court. The victims or their legal representatives are permitted to submit to the Court seeking the authorization of an investigation. Further, the victims or their legal representatives can submit such observations to the Court as will pose challenges to the admissibility or jurisdiction of a case. Moreover, victims or their legal representatives can, if so permitted by the Chambers, make representations to the Court.
Furthermore, victims' legal representatives can attend and participate in hearings and with the permission of the Chambers; they are allowed to cross examine the accused and witnesses. In addition, victim participants and their legal representatives have the discretion to consult the trial record and, if feasible they can be present while announcements of decisions on admissibility, jurisdiction, criminal responsibility, sentencing, and reparations are taking place.
In any relevant issue the Chamber can obtain the opinion of the views of victims or their legal representatives (Memorandum to the International Criminal Court, 2004). In Darfur human rights have been violated from quite some time. The ICC’s jurisdiction is restricted to genocide, war crimes and crimes against humanity. The systematic liquidation of defenceless villages in Darfur constitutes a genocide, war crimes and crimes against humanity.
The widespread violence in Darfur commenced in 2003 hence the ICC, which became effective with the Rome Statute of July 1, 2002, has jurisdiction over all the important transgressions that took place in Darfur. In many other parts of the world, conflicts have been raging for several years prior to the enforcement of the ICC statute, which therefore could not exercise jurisdiction over these conflicts. Moreover, the ICC’s jurisdiction extends to individual defendants on the basis of territoriality and nationality, or if referred by the Security Council.
Although Sudan, the country where these depredations took place, was not a member of the Rome Statute and even though it had not accepted the ICC’s “exercise of jurisdiction, the Security Council’s resolution conferred jurisdiction [to the ICC to conduct the case]. ” This case has historical importance, because the events in Darfur and the ICC’s mandate and jurisdiction are similar and it is first case referred by the Security Council to the ICC and confirms the authenticity of the ICC (Baylis, 2005).