International penal court
See also: CPI
The Court was created by the Treaty of Rome signed on July 17th, 1998 by the diplomatic Conference the plenipotentiary ones of the the United Nations and defining the Statute of the International penal court. It has a legal existence since 2002.
At October 17th, 2007, 105 States ratified the Statut of Rome and accept the authority of CPI.
ObjectiveThe goal of CPI is to promote the international law, and its mandate is to judge the individuals and not the state S (which is spring of the the International Court of Justice). It is qualified only for the crimes the most serious clerks by individuals:
- Genocide S
- war crimes
- crimes against humanity
The birth of a universal permanent jurisdiction is a great step ahead towards the universality of the Human rights and the compliance with a legal provision. It translates for the will of responsabiliser the political officials. It will hold an at the same time preventive and dissuasive role thus.
The international jurisdictions installation hitherto/here were exceptional courts - whose creation were subjected to a political process - and nonpermanent.
GenesisIn 1872, the shortly after the Franco-German War of 1870, Gustave Moynier subjects the idea of the creation of a court judging the violations of the humane International law represented at the time by only the Geneva Conventions of 1864 but this idea is not concretized.
At the end of the First World War, the Traité of Versailles envisages in its article 227 the creation of an international court in order to judge Guillaume II for “ supreme offense against international morals and the crowned authority of the treaties ”. This court is not born, Guillaume II being exiled with the Netherlands and the latter refusing to extradite it.
Second world warThe crimes committed during the Second world war by the Nazis and the Japan board will be the first international crimes judged like such. The first is the Tribunal of Nuremberg, created by the Accords of London of August 8th, 1945 which define the concepts of crimes against peace, war crimes and of crimes against humanity. Then a declaration institutes in parallel the Tribunal of Tōkyō on January 16th, 1946.
Universal competenceThe Belgian Loi of June 16th, 1993 calls upon the notion of “universal Compétence” with Belgian justice as regards international crimes and Crimes against humanity and that whatever the nationality of the victim or the criminal. The vast one extended from this competence poses diplomatic problems in Belgium (with the image of the complaint against George Bush…), so that the Chambre of the representatives repeals this law on August 1st, 2003.
Temporary international courtsFollowing several international crimes a little everywhere in the world, UNO founds temporary International courts (TIP). These courts have limited and perfectly definite competences. With the total, three TIP were born:
- the International penal court for ex-Yugoslavia (TPIY): set up in 1993 by resolutions 808 and 827 of the Safety advice under the terms of chapter VII and was established with $the Hague. The assessment of its work is mitigated: 48 marked held, 31 being the subject of a warrant for arrest, 23 judged people.
- the International penal court for Rwanda (TPIR): created in 1994 by resolution 955 of the Safety advice and was established with Arusha in Tanzania. After not very encouraging beginnings, 50 people are however committal for trial, more than 40 are held, and 9 are condemned.
- the Special court for the Sierra Leone (TSSL): created on January 16th, 2002 in seen to consider the crimes committed during the Civil war of Sierra Leone.
- Very soon, one will see the birth of International penal court for Lebanon in seen to judge the criminals of Lebanese the Prime Minister " Rafik el Hariri"
Critics of the assessment of the TPI, experimental laboratories for CPICertain people fear that CPI suffers from the same defects only those which they allot to the TPI: ; The lawsuits excessively long and are confronted with important procedural difficulties: There is in particular confrontation of the legal systems and of the procedures because the judges are different nationalities. ; *L' adoption of the accusatory Anglo-Saxon procedure (under the terms of which the judges are supposed not to be informed any of the file and not to judge that according to what they hear with the court, without preliminary instruction) made lose much time. ; *L' establishment of the facts is also very slow. ; *Les bills of indictment is too broad, and there is scattering of the inculpations on others that the principal persons in charge.
; The lawsuits are too far away from the victims: The work of justice is reduced, in particular owing to the fact that the lawsuits proceed to several hundred km of the places of the crimes (Arusha in Tanzania for Rwanda, $the Hague in the Netherlands for ex-Yugoslavia).
; Difficulties of the international legal cooperation: The international cooperation is absolutely necessary: to carry out the surveys, to collect the pieces of evidence, to stop the suspects, to protect the witnesses. But it is often failing; and this on behalf of the States concerned as much as Western States. One of the major causes is undoubtedly the weight of the policy, not easily separable of the operation of international justice. The adopted criminal policy is never without political consequences. Moreover, the question arises independence of the judges compared to the prosecutor and in their respective States.
Superiority of CPI on the TPIIn a sense, the competence of CPI is broader than that of the TPI, which would constitute an argument in favor of the replacement of the seconds by the first. Competences of the TPI are limited in space (competence rations loci : territory of ex-Yugoslavia for the TPIY, territory of Rwanda and the Neighboring states for the TPIR) and in time (competence rations temporis : crimes committed since January 1st, 1991 for the TPIY and during the year 1994 for the TPIR). Moreover, they are courts ad hoc (created to know certain precise facts). They are thus brought to disappear.
Nevertheless, two other factors are also to take into account: 1) the Court is qualified only for the crimes committed after the date of coming into effect of the Statute of Rome (on July 1st, 2002) and 2) the Court, contrary to the TPI, applies a principle of complementarity in virtue of which it engages of continuations only if the State concerned has neither the capacity nor the will to do it. In other words, if a State carries out continuations in connection with a business which also relates to the Court, the latter will have to be deprived of the business in favor of the national courts. The preliminary Room I, in the business the Prosecutor C Thomas Lubanga Dyilo specified however that, so that a business is declared inadmissible before the Court, was needed that the continuations aim at the same person and relates to the same criminal behavior.
Creation of CPIThe creation of the two TPI (those for ex-Yugoslavia and Rwanda) gave to the day order the creation project of a universal penal jurisdiction. In 1993, the Commission of the international law submits to the General meeting a project of statute of an International penal court on which it had started to work in 1948 (!), project on the basis of which were then tied intergovernmental negotiations.
Before CPI, all the international courts were provisional and had a limited sphere of activity (like the territory of a State, or the nationality of the defendants). Where CPI thus innovates, it is that it is permanent and that its sphere of activity extends on all the States having ratified the Statute from Rome (see in certain cases in the whole world).
The creation of CPI proceeded in two times:
- Adoption of the Statute of Rome on July 17th, 1998 by 120 countries taking part in the diplomatic Conference of plenipotentiary the of UNO on the establishment of an International penal court (7 votes against, 21 abstentions). This statute defines the capacities and obligations of CPI. Although created under the impulse of UNO, CPI is independent of the Safety advice, which reinforces its credibility. In the same way, adhesion with the statute of Rome is voluntary.
- Once the Statute of Rome adopted, it was necessary that a minimum of 60 States ratifies it so that it comes into effect. This quorum was reached on April 11th, 2002 after a group of 10 States ratified the Statute at the same time.
July 1st, 2002 marks the coming into effect of the Statute of the CPI of which the Argentinian one Shine Moreno Ocampo is the first Prosecutor.
Member StatesAt October 1st 2007, CPI will count 105 Member States (Japan having ratified the Statute on July 17th):
- In Europe : Germany, Albania, Andorra, Austria, Belgium, Bosnia-Herzégovine, Bulgaria, Croatia, Cyprus, Denmark, Spain, Estonia, Finland, France, Greece, Hungary, Ireland, Iceland, Italy, Georgia, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, the United Kingdom, San Marino, Serbia, Slovakia, Slovenia, Sweden, Swiss
In Africa : South Africa, Benign, Botswana, Burkina Faso, Burundi, Central African Republic, Congo, the Comoros, Djibouti, Gabon, Gambia, Ghana, Guinea, Kenya, Lesotho, Liberia, Malawi, Mali, Maurice, Namibia, Niger, Nigeria, Uganda, Democratic republic of Congo, Senegal, Sierra Leone, Tanzania, Chad, Zambia.
In America : Antigua-and-Barbuda, Argentinian, Barbados, Belize, Bolivia, Brazil, Canada, Colombia, Costa Rica, Dominique, Ecuador, Guyana, Honduras, Mexico, Panama, Paraguay, Peru, Dominican Republic, Saint-Christophe-and-Niévès, Saint-Vincent-and them Grenadian, Trinity-and-Tobago, Uruguay, Venezuela
CompositionCPI is made up of four bodies:
- the Presidency: it is composed of a President and Prime Minister and Second Vice-presidents. They are elected in the majority absolute by the Juge S for three years a renewable mandate. The Presidency is in charge of the good administration of the Court, except for the Office of the Procureur (so as to guarantee the independence of this last). The eighteen judges are elected (including 6 women currently) for 9 years, nonrenewable.
- the Rooms : they take care of the legal functions (to judge the defendants). The Rooms are made up judges who are elected by the States left for a one duration mandate of three, six or nine years. All the judges originating in the States left. The rooms are three:
- the preliminary Room : she studies the validity of the requests and authorizes or not the beginning of a procedure of investigation which can lead to a lawsuit.
- the Room of first authority : she considers the businesses validated by the preliminary Room.
- the Room of call : she considers the businesses carried in call against a judgment given for the preliminary Room or of first authority.
the Office of the Prosecutor : he is composed of the Prosecutor (and possibly of Assistant prosecutors) who is elected for 9 years by the Parliament of the States left. The role of the Prosecutor is to inquire and gather evidence to be presented at the time of a lawsuit.
the Clerc's Office : it is in charge of the nonlegal aspects (like the management of the evidence). It is directed by the Clerk who is elected with secret bulletin, in the majority absolute of the judges. It is under the authority of the President of the Court.
More than 700 people work in CPI.
- It judges individuals. It is the principal innovation there (the International Court of Justice judges only the States).
- Its competence is not retroactive: the crimes must be committed after the coming into effect of its statute (July 1st, 2002).
- Its competence material relates to the war crimes, crimes against humanity, crimes of genocide and crimes of aggression (Article 5 of the statute):
- war crimes: grave offenses with Geneva Conventions of 1949 and the Protocols of 1977, made in period of armed conflict (Article 8 of the Statute).
- crimes against humanity: acts serious clerks against a civil population within the framework of an attack generalized or systematic for reasons of a political nature, racial, national, ethnic or religious. (Article 7)
- crime of genocide: it is a particular form of the crime against humanity and is characterized some by the intention to destroy, in all or partly, a national, ethnic or religious group, like such (art.6).
- In the absence of consensus, the definition of the crime of aggression was deferred to a latter date.
the Court is qualified only if one of the three following conditions is filled:
- the defendant amenable to a State left to the statute or which accepts the jurisdiction of CPI in the species,
- the crime was made on the territory of a State left or which accepts the jurisdiction of CPI in the species,
- the Safety advice seized the prosecutor under the terms of chapter VII (not of limit then of competence rations personae ).
Under the terms of the principle of complementarity, the States will preserve on a purely principal basis the responsibility to continue and consider the crimes most serious: CPI will be qualified only in the event of failure or of unwillingness of the States.
CPI can be seized only by one State left (i.e. which signed the statute of Rome), the prosecutor or the Safety advice.
In order to avoid the lawsuits which trail in length or the whimsical seizures, a preliminary Room was created. This one will inform the file the audience before and will have in particular to establish the “historical context” of the crimes. It will establish a true dialog with the parquet floor, even a control, and will thus confer to the judges a margin of intervention on the policy of the parquet floor and the course of the lawsuit: to fix deadlines, to limit the number of the witnesses,…
Defense will function according to a system binomial: a local lawyer and a lawyer internationalist.
Applicable sorrowsThe Court can pronounce a sorrow of 30 years maximum imprisonment or a sorrow of life imprisonment “if the extreme gravity of the crime and the personal situation of condemned justify it”. The Court can add to these sorrows a fine or “the confiscation of the profits, goods and assets drawn directly or indirectly from the crime (...). ” The sorrows of imprisonment are accomplished in a State indicated by the Court on a list of applicant country.
It should be noted that the Capital punishment was not retained, just like for the international courts of after Second world war (TPIY, TPIR and TSSL).
BudgetThe budget of CPI for the year 2004 was of 56 million Euro.
For the year 2005, CPI asks for the Member States a budget of 70 million euro.
Country refusing to ratify the StatuteCertains States refused to ratify the Statute of Rome (like the Russia on September 13rd, 2000, the the United States, Israel which finally signed on December 31st, 2000 but did not ratify, the China did not sign).
The main reason of these States is fear to see CPI being used against them with fine policies.
- Case of the United States
The United States thinks that they are particularly vulnerable abroad because of strong presence of their troops.
Before the quota of sixty states having ratified the Statute was reached, the United States exerted important pressures (interruption of the economic aid, fine of customs advantages, etc) at the States being on the point of ratifying the Statute. The creation of CPI did not change gives it: these pressures continue. In addition, the United States also establishes bilateral agreements with the States signatories guaranteeing that the Americans who would be brought to answer their acts in front of CPI are repatriated in the United States. Certain people say that these agreements pose the problem of a country whose nationals would be above the international laws.
Case of Russia
Case of China
Businesses and complaints in progress
Since September 2004, four investigations were open in connection with crimes committed in Democratic republic of Congo (DRC), in Uganda, with the Sudan (Darfur) and in Central African Republic. Three of them were at the request of the governments concerned (Uganda, Democratic republic of Congo and Central African Republic), the fourth (Sudan) having been submitted at the Court by the Safety advice of the United Nations.
The first lawsuit of the Court, against Mr. Thomas Lubanga Dyilo marked of forced conscription children in DRC, should begin in the current from 2007. The preliminary Room indeed confirmed the loads which weighed against him at the time of the first audience of confirmation of the loads held by the Court in November 2006, thus returning the business with the Room of first authority.
Warrants for arrest were delivered within the framework of the situations in Uganda (against the leaders of the Armée with resistance of the Lord), in DRC (against Mr. Lubanga) and in Sudan (against a member of the Sudanese government and a chief of militia Janjawid). To date, only Mr. Lubanga was stopped.
Several other businesses are being analyzed for a possible opening of investigation.
Since the Court began its activities, on July 1st, 2002, several hundreds of complaints were deposited.
Businesses in progress in CPI
Although the Viol is regarded as a crime since centuries, it is only after the second world war that it was formally codified in the Geneva Convention of 1949, " relating to the protection of the civil people in times of guerre". But it will have to be waited until 2001 so that it is described as Crime against humanity by the International penal court for ex-Yugoslavia (TPIY) in connection with the camps founded by the Serb forces during the war of Bosnia.
When CPI was created by the Treaty of Rome in 1998, an special attention was given to the sexual crimes. Thus, in the definition of the crimes against the humanity which it has the role of judging, one finds the rape, the setting in sexual slavery, the forced prostitution, the forced pregnancy, forced sterilization, sexual violence and the persecution based on the sex.
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