Chapter 4: The ICC‟s contribution to war crimes trials in the DRC
4.1 Background
4.1.5 Contribution of the Rome Statute to reforming the international criminal justice system
The ICC altogether with the ICTY, ICTR and the Special Court for Sierra Leone constitute the main institutions of the international criminal justice. However contrary to the ad hoc jurisdiction, the ICC is permanent and is the embodiment of current developments in international criminal law.351 The principles of irrelevance of official capacity, the lack of immunity, individual responsibility, and participation of victims in the proceedings were integrated into the Rome Statute.
348 For more details about the nature of this instrument read S A Fernández de Gurmendi & H Friman
„The rules of procedure and evidence of the International Criminal Court‟ in O Bekou & R Cryer The International Criminal Court (2004) 387-390.
349 Article 21 (2) of the Rome Statute.
350 Article 21 (3)of the Rome Statute; Edwards, GE. “International human rights law challenges to the new International Criminal Court: the search and seizure right to privacy” (2001) (26) Yale Journal of International Law 323-412.
351 M Cherif Bassiouni „International criminal justice in the age of globalization‟ in International Criminal Law: Quo Vadis? (2004) 79;T Steele, The contribution of the statute of the ICC to the enforcement of international law in the light of the experience of the ICTY (2002) South African Yearbook of International Law ( 27)1-61.
4.1.5.1 Irrelevance of official capacity and lack of immunity
Amongst the revolutionary principles in international law codified in the Rome Statute are the irrelevance of official capacity and lack of immunity. All those responsible for the crimes, which fall under the jurisdiction of ICC as defined in the Rome Statute shall be prosecuted indiscriminately and equally. Therefore, Heads of States, members of Executive organs or legislative chambers or any other person occupying a public position can no longer hide behind their official capacity to escape prosecution.352
Of course those principles are not new; they were applied in prosecutions launched by the different ad hoc International Tribunals. However their integration into the Rome Statute was very important because they could now be applied permanently. There is, however, much debate in international law relating to official capacity and immunity.353
4.1.5.2 Rights of the victims and the accused
In the Rome Statue, the standards relating to the protection of both victims and the accused reflect a sense of equity.
Firstly, victims may intervene before the Court during the hearing.354 The Statute provides different measures to ensure their protection and to make sure that they receive assistance. The Registrar has, among others roles, to deal with matters
352 Article 27 (1) (2).
353 Yerodia Case concerning the Arrest of Warrant of 11 April 2000, DRC v Belgium (ICJ, Judgment of 14 February 2002 ) para 62-71 available at http://www.icj-cij.org/docket/files/121/8126.pdf, accessed on 12 September 2011; L Reydams Universal jurisdiction: international and municipal legal perspectives (2005) 227-231; S Bula-Bula (2004) Les immunités pénales et l`inviolabilité du ministre des affaires étrangères en droit international passim, Regarding different delicate issues which may be raised by the application of immunities read S Wirth „Immunities, related problems, and article 98 of the Rome Statute‟ in O Bekou & R Cryer (eds) The International Criminal Court (2004) 329-458.
354 Read E Haslam Victim Participation at the International Criminal Court: a triumph of hope ever Experience?‟ In: D McGoldrick, P J Rowe & E Donelly (eds) The Permanent International Criminal Court legal and policy issues 315, 320; K R Gray „Evidence Before the ICC‟ in D McGoldrick, P J Rowe & E Donelly (eds) The permanent International Criminal court: legal and policy issues (2004) 287-302; W A Schabas „The place of victims in international criminal law‟ in International Criminal Law: Quo Vadis? (2004)505.
regarding victims; there is even a special Unit in this respect.355 This is very different from the International Court of Justice, where a victim cannot intervene.
Hence the decision of the Court takes into account the damage caused to the victim to whom it allocates reparations. The notion that national legislation or international law could prejudice the guarantee of rights to victims should be avoided.356 According to article 1 (2) of the Statute “The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of victims, including restitution, compensation and rehabilitation”. Furthermore, article 79 (1) provides for the creation of a Trust Fund for the benefit of victims and their families. This is an important contribution of the Rome Statute to reforming international criminal justice.
Justice as exercised by the ICC is not only preventive and repressive357 but also restorative.
As for the accused, several important principles relating to the guarantee of a fair trial are assured. The Statute requires the application of the principle of presumption of innocence; in case of any doubt, the interpretation of the law by the Court shall be made in favor of the accused and the prosecutor has the burden to prove that the accused is guilty.358 “Therefore in order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt”.359 While the right to be tried in due time is asserted in article 67 (1) (c), there are, unfortunately, sometimes long procedural delays and case overloads, which compromise this principle.360
4.1.5.3 Codification of international law
The Rome Statute contributed to the long overdue process of the codification of international law in general and international criminal law in particular. Several
355 Article 43 (6).
356 Article 27 (6).
357 O Triffterer „The Preventive and the Repressive Function of the International Criminal Court‟ in M Politi & G Nesi The Rome Statute of the International Criminal Court A challenge to impunity (2001) 137-140.
358 Article 66 (1) (2).
359 Article 66 (3).
360 None of the cases before the ICC have so far been adjudicated. The case of Thomas Lubanga Dyilo, for instance, has been awaiting judgement since March 2006!
sacrosanct principles of criminal law were integrated, such as the legality of crime and sanction (which requires the definition by the law of an offence and its specific punishment prior to perpetration of the crime); non-retroactivity; a case which has not yet been treated cannot be re-opened or ne bis idem; those responsible for crimes must be prosecuted individually;361 and that the accused are presumed innocent until proven guilty. Immunity cannot be granted due to the official capacity of the accused.
Factors such as age, mental state, error, and the power of individuals are considered to indict or not those presumed responsible for the perpetration of crimes.362 Many other important principles are set out in the 128 different articles, which are not appropriate to reproduce here. In brief, the Rome Statute constitutes a large step forward in the codification of the principles of international criminal law.363