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1. The problem and the necessity of the ICC?

The International Criminal Court is a component of a larger system of international law that is constantly evolving. Both the concept of complementarity as well as the Court's intrinsic requirement for collaboration demonstrate this interdependence. Complementing national systems is indeed a key role of the Court. State crimes are prosecuted there as a matter of urgency and as a matter of last resort. If national governments are unwilling and therefore unable to truly investigate or punish, the Court has no choice but to take matters into its own hands. States and international organisations must work together when the Court steps in. The two pillars of the Court's legal system are judicial and administrative. The two pillars are interwoven in national systems since courts inherently depend on the state's enforcement capabilities. The two pillars were split by the creation of the ICC. The Court does not have its own police force. When it comes to things like the arrest or surrender of people, enforcement of punishments, testimony and relocation, the cooperation of governments is crucial. States Parties must ensure that the Court does have the assistance it needs to carry out its mission.

Clarifying the ICC's legal status as an organisation is essential to gaining a better understanding of how it operates. First and foremost, the ICC is discussed in this article as a solution to the issue. After then, the focus shifts to the legal issues that the ICC is now dealing with. After then, the ICC's legal status will be examined in three stages. For starters, the Court's worldwide legal position will be discussed. After that, we'll look at whether or not the Court qualifies as an international body. A look at whether the International Criminal Court (ICC) has supranational power will also be done, as well as an evaluation of ICTY and ICTR's sentence failures.

Doubts regarding the ICC's usefulness persist 18 years after its inception. Even though it was aware of the facts in cases like the International Military Tribunal (IMT), ICTY, or ICTR, the ICC was criticised for its perceived unfairness and injustice. Furthermore, the legality of the ICC's penalty, jurisdiction, and prosecution services have been questioned. A comprehensive investigation of both offenders and victims is required, though.  The International Criminal Court (ICC), unlike the UN-affiliated ICJ, has its own jurisdiction. As a result, even before it was established, the ICC was clearly needed.  As a war crimes prosecution organisation, they have recognised for conducting their investigations objectively. During the controversial Lubanga trial, when the Congolese commander was condemned to 17 years in prison for war crimes, this was clearly shown. The ICC will need greater collaboration from its rivals to achieve this goal. 

2. ICC: Jurisdictional Challenges

Other critics have expressed concern about the ICC's unduly restricted power and sanctions for those countries that have signed up for prosecution solely on the basis of ICC rulings. In light of this, the International Criminal Court (ICC) has become a difficult decision-making body.  Although nations like Singapore or Saudi Arabia, that have not approved or signed the Rome Statute, cannot detain governments like these indefinitely, this demonstrates the necessity and legality of the ICC and a need for its creation. This also applies to countries that have agreed to the Statute but have not yet ratified it. ICC trials like the Eichmann trial in Jerusalem, which was criticised for being ineffective and illegal, are a result of the ICC's controversial trial processes.  As a result, the ICC must show its legitimacy by ensuring that the crimes it prosecutes are dealt with in an efficient manner. As a result, the ICC's sentencing system must be thoroughly examined and evaluated in order to build a hierarchy of crimes based on the neglected notions of proportionality and mitigating circumstances while still attaining the thesis's goal of classification. 

Israeli-Palestinian military operations began in 2002 attempted to pursue war crimes allegations, which led to the creation of the ICC. Due to the International Criminal Court's extensive jurisdiction, which empowers it to try anyone who commit violent crimes against states or the international community on a global scale, this caused consternation in the international community at the time.  Even throughout the Israeli-Palestinian war, the International Criminal Court (ICC) was confined by its jurisdictional powers, despite the fact that the ICC has a tremendous effect over national jurisdictions that often prompts national courts to review their judgements prior to execution. The ICC's viewpoint was obscured by a variety of issues as a consequence of this, which made it difficult to enforce its regulations. 

ICC's jurisdictional scope too was criticised, not only for its political and legal arguments, but also because of its global extent. the use of the term "jurisdiction" suggested that decisions had to be accurate and equitable. People, material possessions, and time all fell under this jurisdictional framework. For the purpose of clarity, the ICC's jurisdiction is indeed limited to the 'main crimes,' and it is broadened in accordance with the creditability principle. So the ICC Commission came up with a list of key offences that served as the foundation for the ICC's prosecutions. The United States considered this to be essential in order to get absolute visibility. To be sure, the inclusion of these grave crimes as part of the ICC's policies and standards brought "clarity" inside the organisation, but it also raised serious questions about the fairness and integrity of the court system at the ICC. Despite their extensive examination, they were found to be without legal effect by the ICC. This raised doubts in the minds of governments regarding the rationale and effectiveness of the ICC's decision-making process. Despite this, many people resisted integration, while some accepted and others rejected it, noting its ridiculousness. Because of the ICC's role as a facilitators for the Court's operations, the principles of crimes were defined.

3. The ICC as a subject of international law

In accordance with the findings of an informal specialists group report on complementarity, and as reaffirmed by many Chambers of the International Criminal Court, a case is admissible pursuant Article 17 of the International Criminal Court Statute when there are no national processes pending in connection with the case, as seen in the landmark decision of Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui ICC-01/04-01/07.

Some critics argue that this is a "gloss," a "innovative interpretation," or a "created" component of the test, which is "noticeably stronger" than the real language of Article 17. So, these critics are based on a real and strong belief that the test in Article 17 says that a case isn't admissible if the State isn't willing or able to really go through with the proceedings. 

An international legal person is a legal entity with the ability to operate on a global scale, with rights and responsibilities derived directly from international treaties. International law is the source of the idea of international personhood. Those who are sovereign independent states are the primary focus of the legislation. When it comes to inter-governmental organisations (IGOs), their legal identity is derived from the member states' acknowledgment in the founding charter, rather than from international legislation.

According to Article 4, para. 1, of the Rome Statute of the International Criminal Court, dated 17 July 1998 (hereinafter Statute), the ICC is a subject of worldwide law: "The Court would likely have international legal personality. " This is a very useful explanation, but it should be highlighted that even in the absence of such express recognition, the ICC's international legal personality would be established by a process similar to that which is used to the United Nations (UN). As a result, the International Court of Justice (ICJ) used the doctrine of implied powers to make sure that the UN had international legal personality. The UN Charter somehow doesn't explicitly recognise the Organization's governed by international law like the Statute does.  To put it another way, the ICJ declared that

"Under international law the Organization must be recognised to have those powers that, albeit not specifically given in the Charter, are bestowed upon it by necessity as being fundamental to its functions."

In applying this rationale to the Court, it becomes clear that the Statute contains many sections that assume the Court's ability to negotiate international treaties: The Statute refers to a partnership arrangement between both the ICC and the United Nations under Article 2 of the Statute. In particular, the Court has the authority, under Article 3, paragraph 2, of the Statute, to agree into a headquarters arrangement with the Netherlands, the ICC's host country.  With Article 87, para 5, the Statute permits the Court to enter into an agreement with any non-Status party on international cooperation and legal support. Rule 16 of the Rules of Procedure and Evidence, for example, contemplates the negotiation of agreements between the Court and states to safeguard witnesses who are intimidated. That the ICJ's Reparation argument requires affirmation of the ICC's international subjectivity, even without Article 4, paragraph 1, of the Statute, is clear.

Only States Parties to a treaty are obligated to adhere to its provisions. For international organisations' component instruments, this fundamental norm also holds true. Such organisations have international legal identity only if they are recognised by non-member countries, either explicitly or implicitly. This acknowledgement is believed to be of fundamental importance. However, in certain circumstances, intergovernmental organisations have been granted international legal personhood ergaomnes. That was indicated by the ICJ in the aforementioned Advisory Opinion:

To create an international body with an objective worldwide personality and not only a personality recognised by those fifty states, it was necessary that international law be followed, which means that the great majority of the world's nations might have done so.

The issue arises as to whether this line of reasoning may be used to the International Criminal Court in the same way. It does not seem that a positive response is out of the question. Article 125, para. 1 and 3, states that all States may sign or join the Statutes. It is almost certain that the vast majority of the member states of the United Nations will ratify it. In essence, the ICC is a direct perfect complement to the United Nations: the Statute provides a collective system of criminal justice that supports the collective security system established by the UN Charter, and both systems are critical elements within an international legal order dedicated to the preservation of peace. As per the ICC's Preamble, "crimes of international concern as a whole" constitute the ICC's primary mission. Another example of an international legal issue founded by treaty but already operating in reality is the ICC.

The ICC's ratione materiae international legal personality is not limited by the first line of Article 4, paragraph 1 of the Statute. Although the ICC may have infinite governed by international law, this is not the case. The concept of broad international legal personality applies solely to sovereign states who are the primary topics of international legal obligations. A legal entity's degree of international subjectivity is determined by the specific powers that have been granted to it. International legal persons have three fundamental powers: the ability to make treaties, diplomatic connections with other international legal entities, and the ability to assume both passive and active international responsibility. It has been asserted that these capabilities are even inextricably related to the concept of legal personality in international law.

This is only one example of how the ICC's treaty-making authority has previously been referred to. The ICC will also need to engage in diplomacy, or at the very least, be open to it. Starting with the notion of complementarity, the Statute is built on an intimate interrelationship between the national and international levels, from its inception through enforcement. Only continuous interaction between the International Criminal Court (ICC) and countries can ensure the smooth running of the new international criminal justice system. As a result, the ICC might legitimately engage in diplomatic contacts as part of its mandate.

It is impossible to overlook the ICC's active or passive international duty, even though this quality is not addressed in any great depth in the Statute. Parts 9 and 10 of the Statute deal with international collaboration and enforcement, which will raise questions about international responsibility. The inability of States to fulfil their responsibilities will be the most critical and challenging circumstance. In view of the only rudimentary regulation provided in the Statute itself (see. Article 87, paragraphs 5 and 7, in combination with Article 112, paragraph 2(f)), the critical challenge will be to integrate the provisions of the Statute with the general rule of international responsibility.

We now move to the question of whether the International Criminal Court (ICC) is an international institution, which is clearly tied to the problem of international subjectivity. Following is a concise summary of the requirements of general international law for determining an organization's legal personality:

  • a lasting association of States.
  • an organic structure.
  • a sufficiently clear distinction between the organization and its member States.
  • the existence of legal powers exercisable on the international level.

The International Criminal Court (ICC) clearly satisfies all of these requirements, since it was established by an inter-State convention and is intended to be a permanent entity. Presidency; Appeals Division; Trial and Pre-Trial Divisions; Office of the Prosecutor; Registry; Pre-Trial Division; Pre-Trial Division. States Parties will not be able to direct the work of these bodies, which will be free to carry out their functions as they see fit. In light of this, it follows that the International Criminal Court (ICC) is a really international institution, and not just a subsidiary of an inter-national organisation.

International organisations are classified according to a variety of different characteristics. One differentiation is established in accordance with the objectives that are pursued. Depending on the historical evolution of international organisations, traditional international law has distinguished amongst international peace organisations and other international organisations, particularly those seeking economic aims, in the first instance. The International Criminal Court (ICC) is an international peace institution if the word "peace" is regarded as being inextricably tied to the concept of "justice." As previously stated, the Court serves as a complement to the United Nations' collective security system by providing a system of collective criminal justice. Due to the fact that it will reinforce individual criminal accountability, especially for those in positions of State leadership, the ICC will be a crucial component of a global order founded on the rule of law.

Organizational structure is another way in which international organisations are categorises. Despite the several differences in detail, there are some things that have been found that are similar. There are three categories of organs: those that reflect the common interests of the company, those that act in the interests of member nations, and lastly judicial organs. In international organisations, the emphasis has generally been on the legislative or executive branches, commencing with the classic three sovereign powers.

The ICC is a radical departure from these well-established frameworks. Its structure follows the Court's uniqueness as an international justice institution first and foremost. In order to carry out their duties, all of the organs named in Article 34 of the Statute (referred to as "integrated organs") will use international staff who are not subject to directives from governments of States Parties. Article 34 of the Statute considers the ICC to be a fully integrated international court. The Assembly of States Parties, as defined in Article 112 of the Statute, might be included in the organization's institutional structure when considered from a broader viewpoint. Since States Parties will only be represented by people who are acting on their governments' orders, the Assembly would not be an integrated entity. The Assembly of States Parties is essentially a legislative or executive body; hence its jurisdiction obviously goes beyond the Court's judicial role. Preparatory Commission's proposals (Article 112, para. 2 (a) of the Statute), including the Draft Rules of Procedure or Evidence, are of paramount significance to the Assembly. If the Assembly of States Parties may be considered an ICC organ, that's something to keep an eye out for! In order to comply with Article 34 requirements, the response must be no, since the Assembly is not one of the named organs. Considered this way, the Assembly looks to be a unique kind of treaty organisation.

However, it is feasible to analyse the ICC's structure in a more meaningful way. As long as the Assembly of States Parties' legislative capacity is believed to be an important part of the ICC Statute, it may be regarded as an ICC entity in terms of substance. The ICC's institutional structure will be more complicated if it were seen in this light. As a part of the Assembly's judicial core, which includes the institutions referred to in Article 34 of the Statute, the organisation will also have an executive or a legislative component to implement standards of a derived character. Comparing the ICTY and ICTR to this new body, which is institutionally distinct from the judiciary, is a significant step forward in terms of the idea of separation of powers.

As a member state of an international organisation, a country is bound by the rules and regulations of that organisation, but it does not have sovereign power inside that organisation. According to this definition, the basic attribute of supranationality, as it applies in this context, is that international organisations' enactments have direct influence on the territory and persons of the member states. Law, which may come from any of the three branches of the government, directly affects the individual citizens of a state, and does not need to be transformed, received, or executed by the state itself. Supranationality, from the perspective of the person, therefore substitutes somewhat for the sovereign. There have been several international river commissions that have been foreshadowing supranationality, but until the conclusion of World War II, they were mainly unknown to the general public.

According to Article 249 paragraph 2 of the Treaty creating the European Community, the European Community (EC) represents today's model of supranational collaboration. According to this clause, laws issued by the EU are not only applicable to all member states but are obligatory in their whole and immediately applicable to all of them. Directives, on the other hand, bind each member state in terms of the desired goal, but they must leave the choice of form and manner to the authorities of the member state. The ECJ, as a corollary to this supranational legislative authority, ensures the preservation of individual rights.

The UNs has long been seen as a traditional example of an international organisation. As stated in the UN Charter, Articles 24 and 25 provide the legal framework for making decisions binding on member states but with no direct impact on their territory. In view of the UN's subsequent behaviour, and especially the formation of the two ad hoc Tribunals, this perspective should be reconsidered. Both international criminal courts have powers that are not limited to states, even though states or state-like organisations are the important centres of the Tribunal's judgments. ICTY has acknowledged the Tribunal's ability to make orders directly to people in two instances, including The Prosecutor v. Tihomir Blascic ICTY declares its desire for its judgements to have direct effect, but leaves it up to the States to determine the permitted amount of that effect. This is the first example in which a state accepts such direct impact. Relative supranationality ratione personale is an intriguing side effect of this theory. There are two separate cases here, both of which deal with countries that are actively participating in the crisis at hand. With regard to certain countries, the Chamber permits on-site investigations despite not having received permission from their respective governments. With regard to the effectiveness of the international inquiry, it is vital that interviews may be performed on location, without any local authority present, in accordance with the Chamber.

In addition, the Blascic ruling makes reference to the Tribunals' preeminence over national criminal jurisdiction, which is established by Article 9, paragraph 2, of the ICTY Statute and Article 8, paragraph 2, of the ICTR Statute, respectively. They may ask a national court at any point of its process for an international level deferral, and that court would be required to agree with such a request, on the basis of these laws. Even when the national processes were about to approach trial stage in Germany, a German court encountered this predicament in the Tadic case, wherein a accused had to be transferred to ICTY. Examining how much of the "supranationalization" of international criminal law has been preserved in the statute of the ICC is of interest. To begin, it is important to emphasise that the International Criminal Court's Statute is founded on the idea of complementarity. The International Criminal Court (ICC) has limited authority under this system. There are, however, no hard and fast rules when it comes to supranationality and subsidiarity. A disintegrating state is a peculiar situation, and Article 57, para. 3 (d) grants the Prosecution wide-ranging investigation powers in such scenario. The ICC Statute allows the Prosecution to carry out some non-compulsory investigative measures on a state's territory, and to do so without the participation of that state's authority, in accordance with Article 99, para. 4, and Article 57, para. 3 (d). Article 58, para. 7 of the Statute has another noteworthy detail. The Prosecutor may immediately call a person if there are substantial reasons to assume that the person committed the alleged offence and that a summons is adequate to assure the person's attendance.

There are three things to keep in mind when it comes to arrest warrants issued under Section 58, para. 1. Furthermore, the arrest warrant certifies that Article 58, para. 1, of the Statute has been met in a way that cannot be challenged by national authorities throughout the arrest process. International arrest warrants may be challenged directly by those who are subject to them. This right is specifically stated in Rule 117, Sub-rule 3, of the Rules of Procedure and Evidence, which is a valuable clarification. Upon arrest, the state in charge must use Article 59, paragraph 4, of the Statute rather than its own domestic law when determining whether or not to grant temporary release to the accused individual. When a person is handed over to the ICC, their impact on society is far from over. To the contrary, they continue to stem from the newly-acquired judicial authority at every stage of an individual's case before the International Criminal Court (ICC). There can be no dispute that the judgement is the most severe consequence of an international organization's decision on a single person.

ICTY and ICTR formal sentencing rules are almost comparable. The imposition of prison terms by juries is a legal requirement. To determine the proper sentence, judges should consider both the seriousness of the offence and "the guilty person's individual position" while determining punishment. If the crimes have been committed in a state with a "prison sentence practise," they may also look at this. Tribunals' Rules of Evidence and Procedure contain more guidelines, although they are still lacking in specifics on how to proceed. "circumstances" may be examined, although the Rules do not describe them beyond stating "substantial collaboration with the Prosecutor" as a mitigating factor ."

In Prosecutor v. Erdemovic, Judgement Case No. IT-96-22-A, Drazen Erdemovic, a young, low-ranking soldier convicted of war crimes and crimes against humanity for his claimed participation in a mass massacre, stating 70 people were shot by him. Rehearing was necessitated by Erdemovic's earlier guilty plea, which led several judges to assume that he was misled. After pleading guilty to the lesser charge, he was given a sentence of five years in jail for his actions.

It is difficult to reconcile this outcome for some writers; nonetheless, detractors misread Erdemovic's judgement. Several mitigating factors, such as duress and cooperation with the prosecutor, contributed considerably to the reduction of his sentence. The outcome is also an anomaly. For the second time in the ICTY's history, Erdemovic received the lightest sentence. Witnesses are correct to point out that a lack of uniformity and seeming softness in sentencing contradicts the principle of enforcing penalties proportionate to the seriousness of the offences. Concerns about judicial prejudice are stoked when sentences are disparate in similar cases, and the legitimacy of international justice is jeopardised when significant violations are given light sanctions. Some critics claim that the ICTY and ICTR have contributed nothing to the ICC's sentencing standards because of these difficulties.

Conclusion

Treaty-making authority, the ability to engage in diplomatic contacts, and both active and passive worldwide responsibility are all aspects of the ICC's legal status as a subject of international law. The ICC's legal personality, ergaomnes, may be argued to be legitimate. ICC is a global organisation. An entirely new kind of international judicial organisation has been created as a result. It is a far more complicated structure when seen in its whole as extended to the Assembly of States Parties, which has executive and legislative responsibilities. These powers are delegated to a body made up of representatives of the state. To put it another way, this organisation is more in line with the idea of separation of powers than ICTY and ICTR.

A few supranational components exist in the ICC Statute notwithstanding the complementarity principle. First and foremost, the ability to conduct investigations on-site is granted. In addition, a suspect's summons and an arrest warrant's issuing have immediate consequences. A final rationale exists for labelling all orders made by the ICC to people as supranational.

The lasting impact of justice can only be achieved if it is enshrined and followed by domestic action.  If international criminal tribunals want to make a 'lasting impression' on domestic society, they must find ways to strengthen local authorities. Changing the way international courts and tribunals work with domestic courts in specific cases, as well as the way they cooperate and share duties, demands new thinking.

Primary Source Case Law

Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui ICC-01/04-01/07

Prosecutor v. Erdemovic, Judgement. Case No. IT-96-22-A

The Prosecutor v. Tihomir Blascic ICTY, Trial Chamber I, Judgment of 29 October 1997, Blascic, IT-95-14-AR 108 bis, para. 41.

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