ICC Formation and International Law

International Law and the Formation of ICC

The world experienced a dramatic increase in the violation of international laws in the early 1980s and 1990s. The alarming rate regarding such crimes necessitated the United Nations and politically advantaged states to lobby for the formulation of the International Criminal Court (ICC). The creation of a separate court to try offenses that were considered to be gross violations of human rights was seen as an effective mechanism for penalising such crimes and putting up deterrence to such crimes. On 17th July, 1998, about 120 countries, for the first time, converged together to pass the Rome Statute. This is the first time in history that states accepted the powers and jurisdictions of a permanent international criminal court. ICC has the jurisdiction to prosecute and punish individuals who are accused of genocide, war crimes, crimes against humanity, and crime of aggression. These offenses (barring crime of aggression) are defined by the Rome Statute. The Rome Statute was fully enacted and came into force on 1st July, 2002.

The Rome Statute is particularly unique for the way it creates and enforces international criminal law. The primary objective of international law is to govern the rights and the responsibilities of states. Criminal law, on the other hand, refers to the restrictions and prohibitions that are imposed on individuals who violate the national laws of a given jurisdiction. The violation of criminal law, in most cases, is subject to the penal sanction that is formulated by a state. The recent developments in the international criminal law place restrictions directly on individuals and use defined mechanisms to punish the perpetrators for their violations. Under the current scope of the ICC, the court has three primary objectives. The first is to ensure that all perpetrators who violate international criminal laws seriously are prosecuted accordingly. Secondly, the court is to serve as a legal institution of the last resort to its member states. It, therefore, suggests that it can initiate investigations, prosecute, and impose punishment on perpetrators of heinous crimes, genocide. Finally, the court can assist national courts in carrying out investigations relating to the prosecution of persons accused of committing serious crimes in a particular jurisdiction.

There has been an argument as to whether the expansion of the scope and the jurisdiction of the international criminal justice would better serve justice under the ICC. The issue concerns whether the state parties should further empower the ICC to initiate investigations and prosecute legal persons like natural persons who are perpetrators of the core international crimes. The ICC Special Working Group on Crime of Aggression (WSG) is currently working on a proposal to expand the scope of the term ‘international crime’ “to enable the court to investigate and prosecute influential persons in leadership and legal system.” The present statute and the proposal at hand, however, note that aggression is a crime that is committed by persons at ‘leadership.’ This suggests that people in leadership positions are influential and their actions may lead some to commit crimes under the international law. They can also exercise a direct control through political influence and military actions of the concerned states.

The ICC, however, has powers to investigate crimes of aggression that occur in its party states. This jurisdiction bestowed on the international justice institution is contingent and dependent on the Assembly of State Parties (ASP). In this case, the ASP is mandated to adopt the definition of the term ‘crime’ that the court applies to investigate individuals who violate international laws. Thus, “the Assembly of State Parties established the Special Working Group on Crime of Aggression (SWG) that was charged to prepare proposals relating to the definition of aggression.” This entity was established in 1998 and has successfully provided the ICC with an elaborate definition of several crimes that the court can exercise in its jurisdictions about the scope.

The Prosecution of Legal Persons

Article 25 of the Rome Statute outlines the jurisdiction of the ICC. In this case, the jurisdiction and powers of the ICC are only limited to ‘natural persons,’ which in its simplest sense means ‘individuals.’ The Rome Statute does not include a provision that facilitates the criminal prosecution of private and public legal persons. An interesting aspect in the articles 9 and 10 of the Charter of the International Military Tribunal (Nuremberg) is the entities do not commit crimes against international law. It sounds reasonable to argue that crimes are perpetrated by natural persons who are in charge of their organisations. An isolated person cannot act independently, plan, and execute a criminal offense that falls under the jurisdictions of the ICC. However, it is worth noting that there should be a link to ideological or political groups behind the perpetrators of such criminal acts, which would mean the prosecution of legal persons as well.

It may be admitted that criminal law has conventionally not been used to prosecute or punish legal persons and even in national jurisdictions, where criminal law is being used against corporations and legal persons, the punishments are in the nature of fines as a legal person cannot be imprisoned. The foundation of such criminal liability can be placed on retributive theory of justice as the application of criminal law to legal persons may serve the important purpose of retribution.

For the most part, international conventions and the national laws in different jurisdictions do not address issues about the prosecution of legal persons. The trial of legal persons has remained controversial for the last one decade. Therefore, there are proposals to amend the current international conventions and national laws to include principles that promote justice through the prosecution of "criminally liable organisations” for their international crimes. The provisions of French Penal Code, Articles 121-2 clearly state that ‘legal persons’ within its jurisdictions are wholly liable for their criminal acts. The law, however, does not categorise the state as one of the legal persons in its jurisdictions.

The ICC will better serve justice to its member states if its jurisdiction will be expanded to include legal persons. France has involved provisions regarding prosecution of its legal persons, thus explaining why its organisations abide by the national laws. In contrast, the legal persons within the jurisdictions of the Democratic Republic of Congo (DRC) are in a record for its high trends of the violation of both national and international criminal laws. It suggests that its legal persons are not criminally held liable for criminal acts perpetrated against civilians. It is a pity that the ICC, the most significant and permanent international criminal justice system across the globe, does not have the jurisdiction over legal persons. The current situation explains why politically-advantaged states and the international community have been lobbying for the amendment of the Rome Statute.

In 2010, a Review Conference of the Rome Statute was held in Kampala, Uganda, with an attempt to amend the provisions that define the scope and the jurisdiction of the ICC regarding the prosecution of criminally liable persons. In this case, the primary objective was to amend Article 25 of the Rome Statute not only to enhance ICC’s jurisdiction over natural persons, but also expand its jurisdiction to legal persons. The 2010 proposal stated that legal persons that are found guilty and criminally liable ought to be subjected to hefty fines, and after that, the court has a mandate to allocate a considerable amount of such penalties for reparations. Over time, the international community has encouraged the states such as the Democratic Republic of Congo to adopt a proposal that amends Article 25 to better serve justice to its citizens by expanding the jurisdictions of the ICC. It is suggested that the state parties to the Rome Statute will empower ICC to prosecute the perpetrators of international crimes that are executed within their territories.

The prosecution of legal persons by the ICC, however, requires concerned parties and the signatories to amend the parts of the Rome Statute that limit the jurisdiction of the ICC to natural persons. However, corporate personnel themselves are criminally liable for the violation of international criminal laws, especially if they are member states to Rome Statute because such personnel will be individuals for the purpose of Article 25. Therefore, the ICC has jurisdiction to investigate and prosecute corporate personnel who use their positions to execute crimes against humanity. The court currently charges natural persons for their criminal liability rather than the legal persons themselves. Arguably, the ICC can better serve justice to the affected people and also promote peace and stability across the globe if its jurisdiction is expanded to legal persons.

It is arguable that corporate enterprises have enormous resources besides being influential, and therefore may place its natural persons in challenging situations that subject them to violate international criminal laws that are under the jurisdiction of the ICC. Power has been central to the understanding and controlling of criminal behaviour and as such, the power situated in corporations and other legal entities is relevant to understanding how such power can be used to commit crimes. In the case of corporations, the immense influence that these corporations have, as well as resources, put them in the position of power, especially in regard to developing or poor countries and their populations. However, the difficulty with prosecution of legal persons does come from the constituents of crime, in particular, mens rea. Mens rea, or criminal intention, is an important constituent of crime. For ICC to prosecute someone, it is essential to determine the culpability of the person accused which depends on the determination of mens rea. The ICC Statute mentions mens rea in article 30, providing that intention and knowledge must be proved in order to determine culpability of a person. Intention relates to the intention to engage in the conduct and knowledge relates to awareness about the possibility of the occurrence of the consequence. This becomes difficult to apply in the case of legal persons, because intention and knowledge are psychological elements.

Nevertheless, the complicity of major entities with crimes against humanity necessitates a response by the ICC. A typical example of complicity is seen in the funding and supporting of the perpetration of crimes against humanity is the Democratic Republic of Congo (DRC) in Central Africa. This state is rich in minerals such as gold that have attracted the most significant mining corporations globally. The country has recorded one of the gravest violations of the crimes against humanity. In this case, the legal persons are accused of being the cause of atrocity that is linked to the fight to control gold reserves and other critical natural resources. Therefore, the jurisdiction of the ICC to investigate and initiate prosecution against the perpetrators of criminal laws would better serve justice to the nations affected by the crimes against humanity.

Corporate business entities may potentially subject its stakeholders to actions which, according to the ICC, are under the definition and scope of atrocity crimes. The current situation requires the party states to refer such natural persons to the prosecutor. Also, the UN Security Council may request the prosecutor to initiate investigations against the natural persons that facilitate atrocity. The reason, in this case, is the fact that the jurisdiction of the ICC does not include the provisions that facilitate the prosecution of the legal persons. It is, therefore, arguable from the current situation that the ICC can improve its procedures and the scope of dispensing justice through ratification that includes legal persons under is jurisdictions. However, the member states and signatories to the Rome Statute ought to pass an amendment that proposes to subject legal persons to the scrutiny by the ICC. The alleged conduct of ‘criminally liable organisation’ is the primary factor that renders its stakeholders to engage in illegal conduct that may translate to atrocity crimes by referral by the Security Council and party states.

The ICC will attain its objective to serve impartial justice globally if the Rome Statute is amended to allow it to investigate and prosecute criminally liable corporations. The current situation seems unfair since the court’s jurisdiction is limited to natural persons. The punitive measures subjected to legal persons would enable the court to serve justice better. Atrocity crimes that are directly linked to the routine operations of legal persons may trigger investigations if they are under the jurisdiction of ICC. Some of the corporate functions are directly attributable to investment decisions made by the senior decision makers. An amendment to expand the jurisdiction of the ICC and incorporate a provision that empowers the court to prosecute legal persons will enable the ICC to serve justice better. The severity of temporal, territorial, and personal aspects of the subject matter executed by corporate officers must meet the gravity threshold to trigger investigations and prosecutions by the ICC. The investigation of corporate criminal conduct is one of the approaches that the court can use to attain its objective to dispense justice impartially. It is arguable that such criminal actions of legal persons will balance the courts motive to attain justice and the need to promote peace and stability.

The Non-Surrender Agreement under Article 98 (A) is arguably an obstacle to prosecuting legal persons as it limits the jurisdiction of the ICC to prosecute executives and senior officers in organisations that could be termed as ‘criminally liable’ under the scope of the Rome Statute. In this case, the Non-Surrender Agreement was negotiated by the United States Federal Government with more than 100 governments under the administration of George W. Bush. The primary objective was to protect the United States’ nationals from the jurisdiction of the ICC. The US is the chief negotiator of the ICC, and therefore it used its influential position to lobby for the amendment of the provisions of the Rome Statute that outlines the rights accorded to ‘sending states.’ In other words, it means that the United States overreached the original intent of Article 98 (2) that was formulated to exclusively protect the heads of states, government-employed humanitarian employees, military and diplomatic personnel. The treaty, however, excludes private actors in the scope of the term ‘sending states.’

A proposal to amend the global landscape concerning corporate criminal liability is necessary to the ICC. The move is a boost to both the court’s mandate and an objective to dispense justice to its party states and other countries that are referred by the Security Council and negotiators of the court. However, there is a gradual change in different national jurisdictions to amend their laws regarding corporate criminal liability. The only aspect that will encourage or compel states to revise their statutes is a change in the Rome Statute itself. The move itself will automatically mandate the member states and signatories to the Rome Statute to comply with the requirement within their national jurisdictions.

The procedure to obtain an approval to amend the Rome Statute seems difficult if approached diplomatically. In this sense, state parties dependant on multinational corporations will likely oppose the move. The reason is that review may pose adverse consequences to their domestic economies if their corporations are liable to the ICC. Arguably, there is a potential economic repercussion for executing an investigation against a multinational corporation. Another critical aspect of an amendment about the Rome Statute is the distinction between juridical and natural persons. A clear difference is essential in the process of generating evidence against the perpetrators of international criminal laws such as the crimes against humanity. Relevant states are also required to cooperate with the ICC if they are supposed to enforce penalties that underpin criminal actions of legal persons within their jurisdictions.

The Nuremberg International Military Tribunal and its Relevance to the ICC

The Nuremberg trials provide present-day national courts and other institutions in the criminal justice system with essential principles that are applied to ensure that all perpetrators of serious international crimes are held accountable. The judgment of the tribunal regarding the prosecution of guilty and criminally liable persons for their acts is relevant today. The judgment was based on the notion that men rather than abstract entities severely violate international laws in most instances. It further states that punishing perpetrators of international law is a primary and an essential way of upholding the provisions and enforcing them. The process of promoting accountability is critical in the fight against impunity that is perpetrated by both natural and legal persons. It is arguable that failure to enforce the principles of the Nuremberg judgment has a direct impact on stability and international peace. The second principle of the judgment is that criminally liable persons ought to be subjected to a free and a fair trial as one of the techniques to protect and safeguard the rights of the accused. The final essential aspect of the Nuremberg ruling is the principle that outlines procedural and substantive law. Since then, the three ideas have remained the most fundamental aspects of the Nuremberg trial and its subsequent influence.

The statutes that form the basis of the ICC are considerably built on these earlier judgments. In this case, there are fundamental aspects of the Nuremberg trial that relate to the criminal justice system of the ICC; but the ICC has built on the Nuremburg trial and developed the law further. Firstly, the supplementary elements of the crime and the definition of the Rome Statute seem more detailed than in the provisions of the Nuremberg Charter. Secondly, it is apparent from the two charters that the Rome Statute is much more established regarding international law. An example that shows international law’s further development under ICC is with respect to the jurisdiction to prosecute the crimes of genocide. Since the adoption of the provisions of the Genocide Convention of 1948, essential developments in customary international law have been witnessed. The other specific criminal offense inclusions in the ICC are rape among other sexual kinds of violence and several crimes against humanity.

Irrespective of the differences in the Nuremberg tribunal justice system and the ICC, it may be argued that ICC is currently executing the mandates that were initially under the jurisdiction of the Nuremberg tribunal. The establishment of the ICC is also the fulfilment of the vision of participants of the Nuremberg to establish a permanent court to serve justice worldwide. Thus, it is apparent that the objectives of the ICC are in a natural continuation of the legacy of the Nuremberg tribunal and its trials. However, much needs to be done to ensure that the ICC can serve justice to world competently. The court itself cannot serve justice effectively, but instead requires support and cooperation from its member states and other countries around the globe.

The ICC is the court of the last resort, and therefore requires combined efforts to achieve its objectives. Thus, it is important to note in the first place that it is the primary responsibility to deter criminal offences and punish perpetrators accordingly. ICC, being the court of the last resort, suggests that the national justice systems ought to seek support where it encounters complicated and gravest criminal offences in their jurisdictions. Nuremberg trials, therefore, have emerged as the heritage of the world and should combine efforts to support the ICC to overcome challenges it is currently facing.

Conclusion

The judgment of the Nuremberg International Military Tribunal that "crimes against international law are committed by men, not by abstract entities" was valid in the time when the judgment was made; but needs to be reconsidered in light of the rise of legal entities that corporations that have influence and power and also are in the position to commit crimes. The current jurisdiction of many criminal justice systems in the world is limited to natural persons. The situation is similar to the ICC, since its powers to investigate and prosecute criminally liable perpetrators of atrocity are also limited to natural persons. ICC, however, can initiate investigations against a corporate entity the natural persons of which are perpetrators of international law under its jurisdiction. Individual employees and corporate executives are criminally held accountable themselves rather than the organisation, and therefore explain the judgment phrase of the Nuremberg International Military Tribunal. It states that natural persons are accountable rather than legal persons.

The ICC would be in a better position to serve justice and meet its objectives if it could initiate investigations and prosecution of perpetrators of core international crimes. State Parties such as France have amended their statute where their legal persons are equally subjected to the law for their criminal offences like natural persons. The state places severe penalties on corporations that facilitate perpetrators to violate criminal laws through funding from their coffers. The Democratic Republic of Congo, in contrast, does not prosecute legal persons. This situation explains why gold mining corporations are linked to atrocities and crimes against humanity. Expanding the scope of the ICC to investigate and prosecute legal persons is a boost to ICC’s objective to serve justice. The court will be in a position to place penalties on legal persons and even use the proceeds in favour of the affected parties.

Refrences

Box S, Power, Crime and Mystification (London: Tavistock 2002).

Cryer R, Friedman H, Robinson D and Wilmshurst E, An introduction to international criminal law and procedure

Frulli M, ‘Jurisdiction ratione personae’, in A Cassese, P Gaeta and J Jones (eds.), The Rome Statute of the the International Criminal Court: A Commentary (Oxford: Oxford University Press 2002)

Gurule J, Paust JJ, M Cherif Bassiouni, MP Scharf, L Sadat and B Zagaris, International Criminal Law: Cases and

Politi M, The Rome Statute of the International Criminal Court: a challenge to impunity (Oxon: Routledge 2017).

Robert JL, Cullen FT, and Ball RA, Criminological theory: Context and consequences (Sage 2010)

Simpson SS, Corporate crime, law, and social control (Cambridge University Press 2002).

Cassese A, ‘On the current trends towards criminal prosecution and punishment of breaches of

Charney JI, ‘Progress in International Criminal Law?’ (1999) 93(2) American Journal of International Law 452.Clapham A, ‘Extending international criminal law beyond the individual to corporations and armed opposition groups’ (2008) 6(5) Journal of International Criminal Justice 899.

Clark RS, ‘Negotiating provisions defining the crime of aggression, its elements and the conditions for ICC exercise of jurisdiction over it’ (2009) 20(4) European Journal of International Law 1103.

Clark RS, ‘Amendments to the Rome Statute of the International Criminal Court Considered at the First Review

Damaska M, ‘What is the point of international criminal justice?’ (2008) 83 Chi.-Kent L. Rev. 329.Friedman L, ‘In defense of corporate criminal liability’ (1999) Harv. JL & Pub. Pol'y 833.

Geiß R and Bulinckx N, ‘International, and internationalised criminal tribunals: a synopsis’ (2006) 88(861) International Review of the Red Cross 49.

Goldstone RJ and Simpson J, ‘Evaluating the role of the International Criminal Court as a legal response to terrorism’ (2003) 16 Harv. Hum. Rts. J.13.

Heller KJ, The Nuremberg military tribunals and the origins of international criminal law (Oxford University Press 2011).

Kelsen H, ‘Will the judgment in the Nuremberg trial, constitute a precedent in international law?’ (1947) 1 Int'l LQ. 153.

Kirsch P and Holmes JT, ‘The Rome conference on an International Criminal Court: the negotiating process’ (1999) 93(1) American Journal of International Law 2.

Kyriakakis J, ‘Corporate criminal liability and the ICC Statute: the comparative law challenge’ (2009) 56(3) Netherlands International Law Review 333.

Leigh M, ‘The United States and the statute of Rome’ (2001) 1 American Journal of International Law 124.

McCorquodale R and Simons P, ‘Responsibility beyond borders: state responsibility for extraterritorial violations by corporations of international human rights law’ (2007) 70(4) The Modern Law Review 598.

Müller T, ‘Customary transnational law: attacking the last resort of state sovereignty’ (2008) 15(1) Indiana Journal of Global Legal Studies 19.

O'Connell ME and Miyazmatov M, ‘What is Aggression-Comparing the Jus de Bellum and the ICC Statute’ (2012) 10 J. Int'l Crim. Just. 189.

Schwarzenegger G, ‘The Problem of an International Criminal Law’ (1950) 3(1) Current Legal Problems

Stahn C, ‘Complementarity, amnesties, and alternative forms of justice: some interpretative guidelines for the

Werle G, ‘Individual criminal responsibility in Article 25 ICC Statute’ (2007) 5(4) Journal of International Criminal Justice 953.

Wright Q, ‘The law of the Nuremberg trial’ (1947) 41(1) American Journal of International Law 38.