The right to confront

The criminal procedure adopted by the ICC comprises of five stages: 1. Investigation. 2. Intermediate or confirmation hearing. 3. Trial. 4. Appeal. 5. Enforcement of the sentence. The criminal procedure remains in the investigative stage until the Office of the Prosecutor files the charges document against Troy Allman and General Bloodlet. This is the procedure set out in article 61(1) of the Rome Statute and Rule 121(3) of the Rules of Procedure and Evidence.

After this the intermediate stage commences and it entails the preparation and holding of the confirmation hearing. Subsequently, the trial stage will commence and the charges framed by the prosecutor against Troy Allman and General Bloodlet will have to be established by the Pre-Trial Chamber in accordance with article 61(7) of Rome Statute. Subsequently, the appeal stage commences and its decision can be appealed against. The final stage is that of enforcing the sentence handed down to Troy Allman and General Bloodlet as per the provisions of articles 103 et seq.

of the Rome Statute. Moreover, Tribunal decisions will supersede a State’s existing treaty obligations, whereas in respect of the ICC the State will accede to the Court’s request only if it is consistent with its  treaty obligations ( Sarooshi: ibid. ). “The aim of the Tribunals is to restore the peace in regional crises where breaches of peace were identified as a threat to international security, and to prevent the expansion of atrocities over the legitimacy  of the ad hoc Tribunals (Peskin, 2000). ”

The purpose of the Tribunals is to ensure justice for the victims of crimes after such an incident takes place, whereas the purpose of the ICC is to enforce International Humanitarian Law and make it strong. Moreover, the ICC aims to function effectively as an independent and unbiased body. The ICC can prosecute individuals, if: 1. The crime was committed in a state party nation. 2. The crime was committed by a citizen of a state party nation. 3. A non – member state submits to the authority of the ICC. 4. The UN Security Council refers a case to the ICC.

Moreover, the Statute of Rome comprises of wide ranging due process provisions. These rights include the rights of the accused granted by the International Covenant on Civil and Political Rights. These rights include: 1. The presumption of innocence. 2. The right to legal aid. 3. The right to confront one’s accusers. 4. The right to an expeditious trial. 5. The protection against double jeopardy. 6. The prohibition of trial in absentia. The treaty of Rome gives the ICC such jurisdiction as is complementary to national jurisdictions.

This 'principle of complementarity', endows it with the primary responsibility and duty to prosecute the most serious international crimes, and permits it to take over only if the states fail in the implementation of their duty “that is, only if investigations and, if appropriate, prosecutions are not carried out in good faith”. The ICC is limited in scope as far as jurisdictional powers are concerned and genuine efforts to unravel the truth and to fix responsibility and criminal liability for acts of genocide; crimes against humanity or war crimes will only serve to bar the ICC from proceeding.

In a June 12 press conference, U. S. Secretary of Defence William Cohen, while opposing the ICC, declared that the Court's limited authority afforded protection to US troops and officials: "We have demonstrated over the years wherever there is an allegation of abuse on the part of a soldier we have a judicial system that will deal with it very effectively," Cohen said. "As long as we have a respected judicial system then there should be some insulation factor. " In other words it was clearly indicated by him that the ICC was to be barred from proceedings against Americans (International Justice, 2006).

The ICC initiates investigations either on a referral from States, a UN Security Council direction or by a proprio motu decision of the Prosecutor. In this process Member States and Security Council have the authority refer a situation which falls within the jurisdiction of the Court and without any authorization from the Pre-Trial Chamber. There also exists an alternative referral option, which permits the prosecutor to initiate an investigation. This is the most important accomplishment of the ICC Statute and it validates the judicial, non-political status of the Court.

Turone is opines that, “in the system of the ICC independence of the Prosecutor and national sovereignty are heavily conflicting interests” (2002:1140). Whereas the Statutes of the two ad hoc Tribunals contend that sovereignty is an insufficient defence for human rights violations  and therefore cannot constrain the Prosecutor’s powers. Moreover, Philipose holds that, “one of the guiding principles of the ICTY is that sovereignty is not an acceptable defence for the extreme violations of individuals’ human rights” (2002:175). The purpose of the ICC is to strengthen the national courts and not to substitute them.

The ICC will intervene only if the national courts are unable or unwilling to take action against the individuals who have committed atrocities. Several opportunities are presented before the case is taken up by the ICC for questioning the authority of the court. Moreover, the pre trial chamber of judges has to accord sanction for the investigations conducted by the prosecution in respect of initiating the process of investigation. The Statute of Rome does not countenance the inviolability of heads of state. As such military commanders cannot escape liability for human rights violations.

Hence, Troy Allman, the mayor of Metropolis, General Bloodlet and Captain Forceall can be prosecuted by the ICC if the national courts of Tripartie are either unable or unwilling to prosecute them. However, Captain Forceall is no longer living; therefore such prosecution will be against Troy Allman and General Bloodlet. Article 11 of the Rome Treaty, states that the ICC can deal with the cases that took place only after this statute came into force, this is also known as Jurisdiction ratione temporis. The crimes in Tripartie took place in 2003, which is subsequent to the date of enforcement of the Rome Statute of the ICC.

Hence, the ICC is empowered to try these criminals. According to Article 12 of the Rome Treaty, a state which is a party to this treaty has to accept the authority of the ICC in respect of crimes. Since, Tripartie is a party to the Rome Statute, hence the ICC will have jurisdiction over it. As long as the ICC has jurisdiction, immunity cannot be claimed by any individual. At times the ICC’s jurisdiction extends to non member states and this happens when violation of human rights occur on the territory of member states.

Moreover, the nation where the infringement occurred has to accept the ICC’s authority for conducting the trial or there should be a referral by the UN Security Council to the ICC in this regard. The ICC does not impose capital punishment. Those convicted by the ICC are imprisoned and it may order the convicted criminals to compensate the victims of their atrocities. The ICC comprises of the judiciary, the office of the prosecutor and the office of the registrar. The assembly of state parties comprises of a representative from each of them. The UN Security Council refers cases of atrocities to the ICC for investigation and prosecution.

Although, the country in which General Bloodlet has settled down is not a member, still, that country will have to extradite him to face trial and punishment at the hands of the ICC for his crimes against humanity. Article 77 of the Rome Statute of the ICC, deals with penalties in respect of a convicted person. In this case, the evidence is to be obtained from witnesses, victims, exhuming the mass graves, etc. Moreover, protection will have to be provided to the victims and witnesses from retaliation by their enemies. Under Article 5 of this Statute, provides for: 1. Imprisonment not exceeding thirty years. 2.

A term of life imprisonment based on the seriousness of the crime and the circumstances of the case. 3. Additionally, the court may also impose a fine according to the rules of procedure and evidence. 4. Forfeiture of the assets obtained either directly or indirectly while committing the crime. Such forfeiture should be without prejudice to any bona fide third party. Conclusion Initially International law connoted the law applicable to the relation between states and disputes between states were taken care of by International tribunals. However, in recent times, the focus has shifted to the individual in international law.

Prior to the Nuremberg trials, international crimes like piracy, committed by individuals were solely decided by national institutions exercising sovereign authority. The ICC makes a significant contribution in this regard and aims to end impunity for such crimes and to ensure that exemplary punishment is awarded to such international criminals (International Criminal Juridiction: Introduction, 2005). Moreover, articles 75 and 76(3) of the Rome Statute provide for reparation proceedings to be conducted either simultaneously or after the conclusion of the trial.

Finally, a number of provisions of the Rome Statute, the Rules of Procedure and Evidence and the Regulations of the Court provide for the participation of victims in the triggering, criminal and reparation procedures before the Court. Articles 15(3) of the Rome Statute and Rules 50, 92(3), 93, 107 and 109 of the Rules of Procedure and Evidence provide for different instances of victims’ participation in the triggering proceedings. Article 68(3) of the Rome Statute and Rules 92(2), 93, 107 and 109 provide for some additional instances of victims’ participation in the stage of investigation of a situation.

Article 68(3) of the Rome Statute and Rules 91–93 of the Rules of Procedure and Evidence provide for the participation of victims in the different phases of the criminal procedure.

References

Baylis, Elena. (June 3, 2005). Why the International Criminal Court Needs Darfur. Retrieved on October 26, 2006 from http://jurist. law. pitt. edu/forumy/2005/06/why-international-criminal-court-needs. php Charney, J. (2001) “International Criminal Law and the Role of Domestic Courts,” American Journal of International Law 95/1, pp. 120-124; https://www.icc-cpi.int/