THE INTERNATIONAL CRIMINAL COURT: STRUCTURE, JURISDICTION AND PROCEDURE

THE INTERNATIONAL CRIMINAL COURT: STRUCTURE, JURISDICTION AND PROCEDURE[1]

 

Dr. Oktay BAHADIR

 

ABSTRACT

The International Criminal Court, set up by the Rome Statute, is the first permanent, treaty based, international criminal court established to contribute to terminate impunity for the perpetrators of the most serious crimes (genocide, crimes against humanity, war crimes and crime of aggression) of concern to the international community.

By means of the entry into force of the Rome Statute on 1 July 2002, the states, for the first time in the human history, acknowledged the jurisdiction of a permanent independent criminal court with a view to enabling the perpetrators of the crimes committed in their own territories or committed by their own citizens to be tried.

The aim of this study is to provide short and essential information on the International Criminal Court without entering into excessive details and into theoretical discussions. In this context, brief information concerning certain detailed issues and theoretical matters has been given in footnotes or a reference has been made to the relevant source. The structure, jurisdiction and trial procedure of the International Criminal Court are dealt with in a systematic manner.

Keywords: The International Criminal Court, investigation, impunity, complementarity, genocide

INTRODUCTION

Extremely heinous crimes such as genocide, forced migration and gang rape which were committed during the conflicts taking place in the 20^th century marked that century. However, many of these crimes in breach of the international law have remained unpunished. The Nuremberg and Tokyo tribunals were established following the Second World War. However, these tribunals could not avoid being described as the victors’ court. 

In 1948, when the Convention on the Prevention and Punishment of the Crime of Genocide was adopted, the United Nations (the UN) General Assembly recognised the need for a permanent international court to deal with the kinds of atrocities which had just been perpetrated.[2]

In 1990s, after the cold war period had ended, the tribunals such as the International Criminal Tribunal for the Former Yugoslavia (1993) and the Ruanda (1994)[3] were established as a result of the compromise reached with respect to the fact that the impunity cannot be accepted. However, these courts were established in order to deal with crimes which were committed in a certain period of time and in the course of a certain conflict; that is to say as ad-hoc tribunals.[4] As a reflection of the general acceptance that there was a need for an independent and permanent criminal tribunal, the idea of establishing an international criminal justice system re-emerged.[5]

On 17 July 1998, in a conference of 160 States, the Rome Statute of the International Criminal Court was adopted.[6] The Rome Statute, consisting of the preamble, 13 Chapters and 128 Articles, entered into force on 1 July 2002 after it had been ratified by 60 states in pursuance of Article 126 therein. Among other issues, it sets out the crimes falling within the jurisdiction of the International Criminal Court (the ICC/the Court), the rules of procedure and the mechanisms for States to cooperate with the ICC. Kiribati has most recently become a party to the Rome Statute, which is the founding treaty of the ICC, on 26 November 2019 as the 123^rd state party.[7] Turkey has not become a party to the Rome Statute yet.[8]

The ICC is the first international criminal court which relies on a treaty, the Rome Statute, and is permanent. As explicitly specified in the preamble of the Rome Statute, the main duty of the ICC is to assist the endeavours to put an end to impunity for the perpetrators of the most serious crimes (genocide, crimes against humanity, war crimes and crime of aggression) of concern to the international community as a whole and thus to contribute to the prevention of such crimes (see, paragraphs 4 and 5).

As noted above, contrary to the Former Yugoslavia and Ruanda Courts which are ad-hoc tribunals established with limited powers within the framework of the UN and for a specific situation, the ICC is a permanent[9] and autonomous tribunal. The ICC is an international independent organization and does not form a part of the UN system. It is an independent body which does not require special authorization of the UN and is responsible for trying the individuals for the crimes committed and falling under the scope of its jurisdiction.[10] In this framework, the ICC has different powers than the International Court of Justice which was established for the settlement of the disputes among states and is the main judicial body of the UN. It operates in The Hague, in the Netherlands.[11]

To state briefly, following the entry into force of the Rome Statute on 1 July 2002, the states, for the first time in the human history, acknowledged the jurisdiction of a permanent independent criminal court with a view to enabling the perpetrators of the most serious crimes committed in their own territories or committed by their own citizens to be tried.

The aim of this study is to provide short and essential information on the ICC without entering into excessive details and into theoretical discussions. In this context, the structure, jurisdiction, application and trial procedure of the ICC are dealt with in a systematic manner. In preparation of the study, official web-site of the Court and the Rome Statute, which is the founding treaty of the Court, and other legislation (the Rules of Procedure, Evidence and etc.) are mainly used as a reference, as well as the local and foreign literature on this matter. Brief information concerning certain detailed issues and theoretical matters has been given in footnotes or a reference has been made to the relevant source.

I.                   STRUCTURE OF THE INTERNATIONAL CRIMINAL COURT

In pursuance of Article 34 of the Rome Statute, the ICC consists of 4 separate organs; namely, the Presidency, the Chambers, the Office of the Prosecutor (the OTP) and the Registry.

A.            The Presidency

The Presidency, one of the four main organs of the Court, comprises of the President and the First and Second Vice-Presidents. These persons are elected by absolute majority of the judges for a period of three years in pursuance of Article 38 of the Rome Statute and may be re-elected (maximum twice).

The Presidency is entrusted with functions in three main areas of responsibility: judicial/legal matters, administration and external relations. In the exercise of its judicial functions, the Presidency forms the Chambers and ascertains the cases to be dealt with by these Chambers. It also makes judicial review of the certain decisions given by the Registrar. Moreover, it signs the cooperation agreements between the states and the Court. The Presidency is also responsible for the proper administration of the Court and the oversight of the Registry, with the exception of the Office of the Prosecutor. It coordinates and seeks consensus with the Office of the Prosecutor on all matters of mutual concern. Maintaining relations with states and other institutions and carrying out studies for the promotion of public awareness and understanding of the Court are among the Presidency’s main responsibilities in the field of external relations.

B.            Chambers

The judicial power entrusted with the Court is exercised by the Chambers each of which is organized into three separate divisions. These divisions are the Pre-Trial Division, the Trial Division and the Appeals Division.

In total, eighteen independent judges[12] take office in the Court; however, this number may be increased given the workload of the Court. Judges are elected for a period of nine years by the full-time members of the Court. The ones who have been elected to serve as a judge cannot be re-elected (Articles 35 and 36 of the Rome Statute). 

In accordance with Article 39 of the Rome Statute, the Appeals Division is composed of the President of the Court and four judges. In the Trial and Pre-Trial Divisions, there are at least six judges.

The Appeals Chamber is composed of all of five judges taking office in the Appeals Division. The Trial and the Pre-Trial Chambers are composed of three judges. Many functions of the Pre-Trial Chamber are performed by a single judge. The judge to preside the Chamber is appointed by the judges taking office in the relevant Chamber. The Appeals Chamber decides who will serve as the president in each case.[13]

The assignment of the judges to the divisions is conducted on the basis of type of functions to be performed by each division, the qualifications of the judges to be elected for the Court and their experiences. It is paid attention that each division contains a combination of expertise in criminal law, procedural law and in international law.

The Trial and Pre-Trial Divisions are composed predominantly of judges with criminal trial experience. Judges are assigned to these Divisions for a period of three years and continue taking office until the completion of any case the hearing of which has already commenced in the division concerned. Taking into consideration the Court's workload, the Presidency may order the temporary attachment of a judge from the Trial Division to the Pre-Trial Division or vice versa. Judges assigned to the Appeals Division serve only in that division for their entire term of office.

Each of the Pre-Trial Chambers is composed of one or three judges and settles the disputes which arise before the initiation of the trial stage (Article 39 of the Rome Statute). Main functions of the Pre-Trial Chambers are to monitor the investigations conducted by the Office of the Prosecutor, to guarantee the rights of suspects, victims and witnesses during the investigation phase and to ensure the integrity of the trial. The Pre-Trial Chambers also conclude issues such as whether the summons to appear before the Court and the warrants of arrest issued by the Office of the Prosecutor and the charges against the suspect are justified or not; whether the case is acceptable one or not; and whether the victims would intervene in the investigation stage or not (Articles 57 and 58 of the Rome Statute).  

When the warrant of arrest is issued, the suspect is arrested and the charges against the suspect are confirmed by the Pre-Trial Chamber, the Presidency forms the Trial Chamber consisting of three judges with a view to dealing with the case. The Trial Chamber’s primary function is to ensure a fair and expeditious trial, conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses. It also decides as to the intervention of the victims in the trial stage.

C.            The Office of the Prosecutor

The Office of the Prosecutor is the independent organ of the Court. Its functions are to obtain information concerning the crimes alleged to have been committed within the ICC’s jurisdiction or situations of such kind and to analyze this information; to decide whether there is a reasonable foundation for the initiation of an investigation into genocide, crimes against humanity, war crimes and crimes of aggression and to bring the offenders of such crimes before the Court (Article 42 § 1 of the Rome Statute).

The Prosecutor of the Court is elected for a term of nine years by an absolute majority of the members of the Assembly of State Parties,[14] but is not eligible for re-election (Article 42 § 4 of the Rome Statute).  

The Office of the Prosecutor is composed of three divisions: the first one of these divisions is the Investigation Division which is responsible for conducting investigation including the collection and examination of evidence and questioning those in respect of whom an investigation is being conducted as well as the victims and witnesses. The Investigation Division is liable to collect all evidence in favour and to the detriment of the suspect with a view to reveal the truth (Articles 42 and 54 of the Rome Statute).

The Prosecution Division has a role in the investigative process, but its principal responsibility is litigating cases before the various Chambers of the Court. The Jurisdiction, Complementarity and Cooperation Division, which, with the support of the Investigation Division, assesses information received and situations referred to the Court, analyses situations and cases to determine their admissibility and helps securing the cooperation required by the Office of the Prosecutor in order to fulfil its mandate.[15]

D.            The Registry

The Registry is responsible for the non-judicial works and administration of the Court. The Registry is headed by the Registrar, who shall exercise his or her functions under the authority of the President of the Court. The Registrar is elected for a term of five years by an absolute majority of the judges and may be re-elected (Article 43 of the Rome Statute).

The Registry contributes to the fair, impartial and open trials to be held by the Court. The main function of the Registry is to provide administrative and operational support for the Chambers and the Office of the Prosecutor. As the official communication channel of the Court, it is also responsible for the public-awareness activities and social relief programs.

The Registry also assists the victims and the witnesses, in the course of the trial, to enjoy their rights and if required, takes necessary measures to protect them (Article 43 § 6 of the Rome Statute).[16]

II.                JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT

It must be firstly stated that the Court does not aim to replace the national criminal justice systems but to be complementary to them. As per the Rome Statute, it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. The principle of complementarity, which is clearly specified in the Preamble (see paragraphs 6 and 10) and Article 1 of the Rome Statute, gives priority to the national judicial systems. Accordingly, states continue to be responsible of the first degree for the trial of the offenders of the crimes specified in the Statute[17] in that one of the most significant indicators of the states hegemony is the jurisdiction. Therefore, it would not be reasonable approach to expect the states to wholly assign their jurisdictions to an international judicial authority.

In this scope, the ICC may intervene in the process only when states are unwilling or unable to carry out a genuine (thorough) investigation and to try the offenders (Article 17 of the Rome Statute). Therefore, it may be deduced that when the relevant state has identified the offender or offenders and has conducted an effective investigation, these persons can no longer be re-tried before the ICC.

When a State becomes a Party to the Rome Statute, it is considered to have accepted the jurisdiction of the Court with respect to the crimes referred therein. The Court may exercise its jurisdiction only if these crimes are committed in the territory of one of the State Parties or by one of their citizens (Article 12 of the Rome Statute).[18]

In brief, the ICC may exercise its jurisdiction over a state under the below-mentioned two circumstances:

Ø  Being a party to the Rome Statute (Article 12 § 1),

Ø  Notifying the Court that it has accepted the Court’s jurisdiction for a certain incident without being a party to the Rome Statute (Article 12 §§ 2 and 3)

However, these conditions cannot be applied when an application is lodged with the Prosecutor by the UN Security Council resolutions of which are binding upon all member states of the UN (Article 13 § 1 (b) of the Rome Statute),[19]

It may be deduced from Article 12 of the Rome Statute that when a citizen of a state which is not a party to the Statute has committed a crime within the jurisdiction of the Court in a territory of a state party, he or she may be subject to trial.[20] For instance, the Turkish military officials may be tried before the Court on account of a military activity performed by Turkey, which has not signed the Statute yet, in Afghanistan. A similar situation may come into question, within the scope of Article 13 § 1 (b) of the Rome Statute, when the Prosecutor is referred to by the Security Council. Finally, it is also important to mention the possibility that Turkey recognizes the Court’s jurisdiction for a certain incident without being a party to the Rome Statute.

The ICC has jurisdiction only with respect to incidents taking place after 1 July 2002 when this Statute entered into force. If a State becomes a Party to the Statute after its entry into force, the Court cannot exercise its jurisdiction with respect to crimes committed after the entry into force of the Statute unless relevant State has made a declaration that it has retroactively accepted the Court’s jurisdiction. In other words, the ICC may exercise its jurisdiction over the state in question with respect to crimes committed after its becoming a party to the Statute. However, the Court has, under no circumstances, jurisdiction in respect of the incidents taking place before 1 July 2002 (Article 11 of the Rome Statute).[21]

On the other hand, unlike the European Court of Human Rights, for instance, the ICC tries not states but the real persons (individuals).  As well as those who personally committed the crime (the principal perpetrator), those who ordered, incited, convinced a person to commit the crime or assisted this person with a view to facilitating the commission of such a crime may be criminally responsible (Article 25 of the Rome Statute).  

Nonetheless, it prosecutes not all individuals who are suspected of having committed a crime but those who have maximum responsibility in the commission of crimes falling into its jurisdiction. Such individuals are generally the high-ranking officials (head of the state, chief of the general staff and etc.) who issued the order concerning the act or acts which are considered to fall into the ICC’s jurisdiction and to constitute a crime. Article 27 of the Rome Statute explicitly sets out that privileges vested in these high-ranking officials in their own national legal system, such as immunity, would not pose an obstacle for their being tried before the ICC.

To discuss a bit further, the official capacity of the head of the state, the member of the government or the parliament or acting of the public official by relying on his / her official power does not exempt them from investigation or criminal responsibility. Moreover, the superiors or the commanders may be held responsible for crimes committed by persons under their command and control (Article 28 of the Rome Statute).[22] Similarly, the amnesty cannot be served as a means of defence before the Court and does not bar the Court from exercising its jurisdiction.[23]

On the other hand, in the event that although the offender has attempted to commit a crime by means of taking substantial steps and performing acts which would lead to initiation of the crime, but the crime does not occur because of circumstances independent of the person's intentions, these persons shall be legally responsible. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime would not be liable for punishment for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose (Article 25 § 3 (f) of the Rome Statute).[24] As is seen, the Rome Statute imposes a penalty for the attempt to commit a crime as if it were a completed crime whereas it enables the offenders to benefit from effective remorse (voluntarily giving up) and not to face with any sanction in this regard.  

Besides, the ICC has no jurisdiction over any person who was under the age of 18[25] at the time of the alleged commission of a crime (Article 26 of the Rome Statute).[26] As is seen, the ICC excludes those who are under the age of 18 from its jurisdiction probably by means of taking into account the severity of the crimes under the jurisdiction of the ICC instead of making reduction in penalties to be imposed on these persons. However, in pursuance of the above-cited complementarity principle, it is considered that these persons may be tried by their national legal mechanisms.

In the meantime, in Article 29 of the Rome Statute, it is explicitly set out that the crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.[27]

In Article 30 of the Rome Statute, the intent which is the mental element of crime is set out. In paragraph 1 therein defines the intent as “the commission of a crime falling into the jurisdiction of the Court with intent and knowledge”. The definition of intent is given in paragraph 2 of the same article, and paragraph 3 explains what the knowledge means.

The ICC has a jurisdiction over “the most serious crimes of concern to the international community as a whole”. These crimes are genocide, crimes against humanity, war crimes and crime of aggression (Article 5 of the Rome Statute).[28]

A.            Genocide

For the purpose of the Rome Statute, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group[29], as such:

Ø  Killing members of the group;

Ø  Causing serious bodily or mental harm to members of the group;

Ø  Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

Ø  Imposing measures intended to prevent births within the group;

Ø  Forcibly transferring children of the group to another group (Article 6 of the Rome Statute).[30]

From the word "any of the following acts" in the article, it is understood that the crime of genocide is one of the crimes of "optional action", therefore, committing only one of these acts will be sufficient for the crime to occur.

B.            Crimes against Humanity

Crime against humanity means “any of the following acts” when committed as part of a widespread (extensive) or systematic attack directed against any civilian population. This crime, like genocide, is envisaged as an optional action crime:

Ø  Murder (wilful killing),

Ø  Extermination (destroying),

Ø  Enslavement,

Ø  Deportation or forcible transfer of population,

Ø  Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law,

Ø  Torture,

Ø  Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity,

Ø  Persecution against any identifiable group on political, racial, national, ethnic, cultural, religious, gender basis,

Ø  Enforced disappearance of persons,

Ø  The crime of apartheid,

Ø  Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health (Article 7 § 1 of the Rome Statute).[31]

In Article 7 § 2 of the Rome Statute, definitions of certain terms such as enslavement, torture and apartheid mentioned in paragraph 1 therein are given. In the last paragraph, it is set out that the term “gender” refers to both male and female.

C.            War Crimes

War crimes consist of:

Ø  Grave breaches of the Geneva Conventions of 12 August 1949,

Ø  Other serious violations of the laws and customs applicable in international / non-international armed conflicts, within the established framework of international law.

Some of the acts prohibited within this framework are as follows:

Ø  Wilful killing;

Ø  Injuring, ill-treatment and torture,

Ø  Taking of hostage,

Ø  Intentionally directing attacks against the civilian population,

Ø  Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments or hospitals,

Ø  Pillaging,

Ø  Committing rape, sexual slavery, forced pregnancy or any other form of sexual violence,

Ø  Conscripting or enlisting children under the age of fifteen years into the armed forces or using them to participate actively in hostilities (Article 8² of the Rome Statute).[32]

D.            Crime of Aggression

In the course of the Review Conference of the Rome Statute which was held in the city of Kampala in Uganda between 31 May and 11 June 2010, the Assembly of the State Parties accepted that the crime of aggression be included in the crimes falling within the jurisdiction of the Court.

For the purpose of the Rome Statute, crime of aggression means the planning, preparation, initiation or execution of acts for using of an armed force by a State against the sovereignty, territorial integrity or political independence of another State (Article 8 bis³ § 1 of the Rome Statute).

The crime of aggression includes the following acts:

Ø  Invasion,

Ø  Military occupation,

Ø  In case of constituting a manifest violation of the Charter of the United Nations by its character, gravity and scale, annexation by the use of force of the territory of another State and the blockade of the coasts or ports of a State (Article 8 bis³ § 2 of the Rome Statute).

III.        REFERRAL TO THE INTERNATIONAL CRIMINAL COURT AND THE TRIAL PROCEDURE

Under this heading, the trial procedure from the initiation of the investigation by the Office of the Prosecutor to the finalization of the decision given by the ICC would be mentioned briefly.

A.            Referral to the International Criminal Court and Initiation of the Investigation

The Prosecutor of the ICC may initiate an investigation (or examination) in three different manners:

Ø  Each state party to the Rome Statute[33] may refer to the Prosecutor for initiation of an investigation (Article 13 § 1 (a) and 14 of the Rome Statute).[34]

Ø  The UN Security Council may refer to the Prosecutor for initiation of an investigation within the scope of Article 7 of the Charter of the UN (Article 13 § 1 (b) of the Rome Statute).[35]

Ø  The Office of the Prosecutor may initiate an ex officio (with its own initiative) investigation by depending on the information it has received from reliable sources[36] (Article 13 § 1 (c) and 15 of the Rome Statute). In such a case, the Prosecutor is required to take authorization of an investigation from the Pre-Trial Chamber consisting of three independent judges (Article 15 § 3 of the Rome Statute).

As noted above, the Office of the Prosecutor is responsible for making researches and conducting investigations into genocide, crimes against humanity and war crimes which were committed by citizens of the State Parties or in territory of a State Party on and after 1 July 2002 when the Rome Statute entered into force.[37]

When a situation is referred to the ICC for investigation, the Office of the Prosecutor primarily decides whether the Court has competency with regard to the alleged crimes. Following a comprehensive analysis of the existing information, the Office of the Prosecutor decides whether there is a reasonable basis to initiate an investigation. In this way, it must be ascertained whether genocide, crimes against humanity or war crimes might have been committed and if committed, whether they were committed after 1 July 2002. The Office of the Prosecutor must also determine whether the national authorities have conducted a thorough investigation or prosecution against the individuals alleged to be offenders of such crimes. Lastly, it must notify its intent to initiate an investigation within its jurisdiction to the relevant states (Article 18 of the Rome Statute).

The Office of the Prosecutor may send investigators to places where the crime was committed with a view to collecting evidence. The investigators are responsible for collecting all evidence both in favour and to the detriment of the suspect. If required, the Office of the Prosecutor may request assistance and cooperation from the states and international organizations (Article 54 of the Rome Statute).

Relying on Article 17 § 1 of the Rome Statute, the Court may declare a case inadmissible on the basis of one of the following grounds:

Ø  If the case is being investigated or prosecuted by a State which has jurisdiction over it,

Ø  If the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned,

Ø  If the person concerned has already been tried by the ICC concerning the matters which are the subject of the complaint,[38]

Ø  If the case is not of sufficient gravity (significance) to justify further action by the ICC.

Declaration of the case inadmissible for the above-mentioned first two conditions, which are the reflection of the above-cited complementarity principle, undoubtedly depends on the relevant state’s willingness to and capability of conducting a thorough investigation. To be expressed in reverse manner, the case may be declared inadmissible for previously or currently conducting of an investigation in domestic law concerning the same incident only if the relevant state is not unwillingness and / or not unable to conduct such investigations.[39]

B.            Issuance of a Warrant of Arrest

At any time after the initiation of an investigation, only the Pre-Trial Chamber issues a warrant of arrest or a summon to appear, upon the request of the Prosecutor, where there are reasonable grounds to believe that the person concerned has committed a crime within the jurisdiction of the ICC. On the other hand, a warrant of arrest may be issued where the person concerned impedes or endangers the investigation or the prosecution and/or with a view to preventing the person from committing further crime (Article 58 §§ 1 and 7 of the Rome Statute).

When the Office of the Prosecutor requests issuance of a warrant of arrest or summon to appear, it must submit the following information to the judges:

Ø  Name of the person,

Ø  Definition of the crimes alleged to have been committed by that person,

Ø  A concise statement of the facts (acts alleged to constitute a crime),

Ø  A summary of the evidence against that person,

Ø  The reason why the Prosecutor believes that the arrest of the person is necessary (Article 58 § 2 of the Rome Statute).

The Court does not itself have police force. For this reason, it does not have the authorization and opportunity to directly arrest the suspects. Therefore, the suspects may be arrested and surrendered only with the cooperation of the states. In accordance with the Rome Statute, the State Parties must be in full cooperation with the Court in examinations and investigations (Articles between 86 and 102 of the Rome Statute).[40] When a state party does not act in compliance with the request for cooperation, the Court may refer the dispute to the Assembly of the State Parties for taking further steps.   

When the Court’s jurisdiction is triggered by the Security Council, the duty to cooperate extends to all UN Member States, regardless of whether or not they are a party to the Statute. In the meantime, the warrants of arrest continue to be valid for lifetime.[41]

When a person is arrested, he or she is brought promptly before the competent judicial authority in the custodial State. At this stage, it is determined whether the warrant is indeed for the arrested person, whether the person was arrested consistently with due process and whether the person’s rights have been respected. Once an order for surrender is issued in respect of the arrested person, the person is delivered to the Court and held at the Detention Centre in The Hague, the Netherlands.[42]

C.            Confirmation of the Charges

After the suspects arrive in The Hague, they are brought before the Court as soon as possible. During the first hearing, the Pre-Trial Chamber verifies the suspect’s identity; informs the suspect of the crimes against him/her and determines the date of the subsequent hearing which the language of the trial would be determined and the charges would be confirmed. At the hearing for the confirmation of the charges[43] before initiation of the main hearing, the Office of the Prosecutor must submit sufficient evidence for proceeding with the trial stage. The suspect may raise objections to the charges in his/her defence submissions; may not accept the evidence adduced by the Office of the Prosecutor and may adduce his/her own evidence. This hearing shall be held before the prosecutor, the person against whom an investigation is being conducted and the defence counsel, as well as the representatives of the victims. However, the suspect may waive from his / her right to be present in the hearing (Article 61 of the Rome Statute).

Following the hearing for confirmation of the charges, the Pre-Investigation Chamber may:

Ø  Decline to confirm the charges (in such a case, the Office of the Prosecutor may collect additional evidence and request the confirmation of the charges once again),

Ø  Adjourn the hearing and request the Office of the Prosecutor to provide further evidence, to conduct further investigation or to amend the charges where the evidence submitted appears to establish a different crime.

Ø  Confirm the charges and assigns the case for trial (Article 61 § 7 of the Rome Statute)

The aim of the confirmation of the charges is to protect the suspects’ rights by means of preventing trial without a sufficient legal ground.[44] Subsequent to the confirmation of the charges, the Presidency shall constitute a Trial Chamber which shall be responsible for the conduct of the subsequent proceedings (Article 61 § 11 of the Rome Statute).[45]

D.            The Trial Stage

Unless otherwise decided by the judges, the trial is held in The Hague, in the Netherlands where the Court is located (Article 62 of the Rome Statute). In principle, the accused would be present during the trial (Articles 63 § 1 and 67 § 1 (d) of the Rome Statute).[46] Unless the Chamber decides that certain proceedings be held in closed session for the purposes of maintaining the victims’ and witnesses’ safety or protecting certain confidential information to be given in evidence, the trial would be, in principle, held in public (Articles 64 § 7 and 68 § 2 of the Rome Statute).

At the commencement of the trial, the Trial Chamber reads to the accused the charges against him/her and satisfies itself that the accused understands the nature of the charges. It provides him or her with the opportunity to make an admission of guilt or to plead not guilty (Article 64 § 8 (a) the Rome Statute).

The steps to be taken in the event that the accused makes an admission of guilt are explained in Article 65 of the Statute. Accordingly, where the conditions whether the accused understands the nature and consequences of the admission of guilt; the admission is voluntarily made by the accused after sufficient consultation with defence counsel and the admission of guilt is supported by the facts of the case are jointly satisfied, the accused may be convicted of the crime concerned. Otherwise, it is considered that the admission of guilt has never been made. As is seen, admission of guilt is not deemed sufficient for automatic conviction and has been bound to certain conditions.

During the hearing, the Office of the Prosecutor and the Counsel for the Defence has the opportunity to present their own evidence. The Office of the Prosecutor must present evidence which is beyond reasonable doubt in order to establish the accused is guilty. This evidence may be documents, tangible materials or witness statements. The Office of the Prosecutor must also provide evidence indicating the innocence of (in favour of) the accused. Firstly, the Office of the Prosecutor makes its presentation and call witnesses to testify. After the Office of the Prosecutor examines the witness, the Counsel for the Defence also has the opportunity to do so. Subsequent to submission of all evidence by the Office of the Prosecutor, it is the turn of the accused to present his/her defence through counsel.[47]  

As discussed below, where the personal interests of the victims are affected, the Court may permit their views and concerns to be presented and considered at every stage of the proceedings (Article 68 § 3 of the Rome Statute).

E.            Rights of the Accused

Everyone shall be presumed innocent until proved guilty before the Court. For this reason, the Office of the Prosecutor must prove the guilt of the accused. The Court shall convict the accused only when it is convinced of the guilt of the accused beyond reasonable doubt (Article 66 of the Rome Statute). As can be seen, the Court considers it sufficient to prove the charges beyond reasonable doubt, rather than proving them without any doubt. It is therefore an extremely interesting and controversial provision.

The accuseds would be present in the hearing room during the trial and have the right to a public and fair trail conducted impartially. The guarantees which the accuseds have in this respect are specified in the legal documents of the Court (e.g., see Article 67 of the Rome Statute).[48] Some of these guarantees are as follows:

Ø  To be defended by a defence counsel (lawyer) of their own choices; to adduce their own evidence and to have their witness examined; to use a language which they could fully understand and speak,

Ø  To be informed in detail of the charges in a language which they could fully understand and speak,

Ø  To have adequate time and facilities for the preparation of the defence and to communicate freely and in confidence with counsel,

Ø  To be tried without undue delay (in the most expeditious manner),

Ø  Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;

Ø  To request the Office of the Prosecutor to collect evidence which is in favour of him/her and would prove his/her innocence or reduce the sentence to be imposed on them.

Moreover, the accused persons are entitled to avail themselves of legal assistance, and this legal assistance would be provided by the Court without payment if the accused lacks sufficient means to pay for it (Article 67 § 1 (d) of the Rome Statute). Those who are detained on remand may request to be released during the proceedings. If this request is rejected, this decision would be reviewed by the relevant chamber at certain intervals (maximum once in every 120 days).[49] Upon the request of the Office of the Prosecutor or the detainee, this decision may be changed at any time (Article 60 of the Rome Statute).

On the other hand, anyone who has been the victim of unlawful arrest or detention has an enforceable right to compensation. Where the Court finds conclusive facts showing that there has been a grave and manifest miscarriage of justice, it may award compensation (Article 85 § 3 of the Rome Statute).[50]

F.             The Victims’ Intervention in the Proceedings

A victim is a person, institution or organization who / which has suffered harm as a result of the commission of a crime within the ICC’s jurisdiction. This harm may be bodily, psychological or material damage. The ICC provides the victims with rights which have not been previously granted by any international criminal court.[51]

Victims may involve in the proceedings in various ways:

Ø  They can send information to the Office of the Prosecutor and ask the Office to initiate an investigation.

Ø  At a trial, they may voluntarily testify before the Court.

Ø  They may participate in proceedings through a legal representative and express their opinions and suggestions.

Ø  Victims participating in proceedings may also, in some circumstances, lead evidence in favour or to the detriment of the accused or they may also challenge the evidence presented by the parties.

Ø  They may seek reparation for the harm that they have suffered (e.g. see Articles 68 and 75 of the Rome Statute).

However, it is not requisite for a victim to certainly participate in the proceedings in order to seek redress of the harm he/she has suffered. In other words, the Court may ex officio decide reparation of the harm.[52]

G.            Decision and Penalties

Once the parties submit their own evidence, the Office of the Prosecutor and the Defence are invited to make their closing statements. The Defence always has the opportunity to speak last.

The decision is given on the basis of all evidence and the entire proceedings. The decision is not given on the basis of the facts other than those forming the framework of the charges or evidence not discussed. The decision is taken by a majority of judges (Article 74 §§ 2 and 3 of the Rome Statute).

The Court may establish principles relating to reparations of the harm suffered by the victims in various manners including restitution, compensation and rehabilitation. It may be decided that the harm suffered by the victim be repaired directly by the accused or through the Trust Fund[53] established to that end (Article 75 §§ 1 and 2).

The sentence is pronounced in public and, wherever possible, in the presence of the accused, victim and their legal representatives (Article 76 § 4 of the Rome Statute).

The judges may impose certain penalties such as imprisonment and, in addition to imprisonment fine, being deprived of certain rights, a forfeiture of assets derived directly or indirectly from the crime. Maximum term of imprisonment is 30 years. However, in certain exceptional cases, the Court may impose life imprisonment by taking into account the extreme gravity of the crime committed and the individual circumstances of the accused (Article 77 of the Rome Statute).[54] Nonetheless, the Rome Statute does not prescribe death penalty. 

On the other hand, when the person has served two-thirds of the sentence, or 25 years in the case of life imprisonment, the Court reviews the sentence to determine whether it should be reduced. In its review, it takes into account the matters such as whether the convicted person cooperated with the Court in its investigations and prosecutions and whether he/she repaired the harms suffered by the victims (Article 110 of the Rome Statute).

The sentenced persons serve the imprisonment sentence in a State designated by the Court from a list of States which have indicated to the Court their willingness (Article 103 § 1 (a) of the Rome Statute). The Court does not have its own penitentiary institution. 

H.            Appeal and Revision

All parties (the convicted person, the Prosecutor, legal representatives of the victims and etc.) may appeal against the decisions given by the Pre-Trial and Trial Chambers within 30 days.[55] The prosecutor and/or the convicted person may appeal against the decisions of conviction or acquittal on the grounds of procedural error, error of fact or error of law. Moreover, they may also appeal against the decisions for any other reason that affects the fairness or reliability of the proceedings or decision (especially on account of disproportionality between the crime and the penalty) (Article 81 §§ 1 and 2 of the Rome Statute).

The Appeals Chamber may reverse or amend the decision or sentence. Besides, it may order a new trial before a different Trial Chamber (Article 83 § 2 of the Rome Statute).

Unless otherwise is ordered by the Trial Chamber, a convicted person remains in custody pending an appeal. However, except certain circumstances, when a convicted person's time in custody exceeds the sentence of imprisonment imposed, that person is released immediately. On the other hand, in case of an acquittal, the accused is released immediately unless there are exceptional grounds (Article 81 § 3 of the Rome Statute).

The convicted person (in case of his/her death his/her relatives of certain degree) or the Office of the Prosecutor may apply to the Appeals Chamber to revise the “final judgment of conviction or sentence” in the following circumstances:  

Ø  New and significant evidence has been discovered,

Ø  It has been newly discovered that decisive evidence was false, forged or falsified,

Ø  It has been established that one or more of the judges has committed an act of misconduct or serious breach of duty (Article 84 § 1 of the Rome Statute).

If the Appeals Chamber concludes that the application is well-founded, it may decide to reconvene the original Trial Chamber, constitute a new Trial Chamber or retain jurisdiction over the matter (Article 84 § 2 of the Rome Statute).[56]

CONCLUSION

It does not seem possible that the crimes such as genocide, forced mass migration etc., which have been experienced throughout the history and are still being experienced, were committed without the knowledge and approval of the top executive officials of the relevant states. This fact mainly results in non-application of/failure to apply national and international law to the offenders of such grave crimes and non-enforcement of/failure to enforce national judicial mechanisms in respect of these persons. Within this framework, the idea of establishing an international permanent and effective mechanism which is complementary to such function of the national authorities emerged in a vigorous manner. That is the reason why the ICC was established with a view to satisfying this need.

The establishment of a permanent international criminal court having jurisdiction over the crimes explicitly specified in its Statute and over the acts performed after its entry into force (1 July 2002) has substantially satisfied the criticisms that the former tribunals (the Criminal Tribunals of Nuremberg, Tokyo, Ruanda and the Former Yugoslavia)[57] are in breach of the principles of “legality”[58] and “natural judge”. As stated by the former Secretary-General of the UN, Kofi Annan, the establishment of the ICC may be regarded as “a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law”.[59]

On the other hand, it is not certainly a reasonable expectation to consider that certain acts which constitute a crime amounting to a severe breach of the human rights may be prevented by means of only establishing a permanent international criminal court. However, it must be accepted that existence of a fair and effective supra-national mechanism which would impose penal sanction in respect of such acts would have undeniable function in respect of, at least, the deterrence (prevention of crime) effect. Although there may be significant criticisms concerning the structure, functioning and jurisdiction of the ICC, it may be concluded that it has performed a remarkable function so far.

Consequently, it may be suggested by taking into account the criticisms directed[60] that necessary reforms would be made in the Rome Statute according to improving and changing conditions. However, by keeping in mind that fighting against crimes which are related to all international society is not a responsibility that could be attributed to a single judicial body, it must be emphasized that all states, regardless of being or not being a party, are to be in full cooperation with the Court.

BIBLIOGRAPHY

AKSAR Yusuf, Evrensel Yargı Kuruluşları, Ankara, Seçkin Yayıncılık, 2007.

AZARKAN Ezeli, Nuremberg’ten La Haye’ye: Uluslararası Ceza Mahkemeleri, Kırklareli, Beta Basım Yayım, 2003.

BAHADIR Oktay, “İnsan Haklarının Uluslararası Yargısal Korunması: Uluslararası Ceza Mahkemeleri”, Terazi Hukuk Dergisi, Year 5, Issue 46, June 2010, pp.159-170.

http://www.icc-cpi.int/EN_Menus/ICC/Pages/default.aspx

http://www.iccnow.org

http://www.nytimes.com/2015/06/16/opinion/south-africas-disgraceful-help-for-president-bashir-of-sudan.html?_r=0, (22 June 2015).

http://www.ucmk.org.tr

http://www.un.org/press/en/1998/19980720.l2890.html, (28 January 2021).

http://www.unmict.org

https://www.icc-cpi.int/cases, (27 January 2021).

https://www.icc-cpi.int/itemsDocuments/2020-PE/2020-pe-report-eng.pdf (27 January 2021).

https://www.icc-cpi.int/pages/crm-decisions.aspx, (27 January 2021).

KURŞUN Günal, 101 soruda Uluslararası Ceza Mahkemesi, Ankara, İnsan Hakları Gündemi Derneği, 2011, http://www.ucmk.org.tr/dosya/Yayin/101SorudaUcm.pdf,  (4 April 2015).

MORRIS Madeline, “The Democratic Dilemma of the International Criminal Court”, Buffalo Criminal Law Review, Issue.5, 2002, pp.591-599, http://scholarship.law.duke.edu/faculty_scholarship/82, (26 January 2021).

MORRIS Madeline, “The Jurisdiction of the International Criminal Court Over Nationals of Non-Party States”, ILSA Journal of International & Comparative Law, Issue.6, 2000, pp.363-369, http://scholarship.law.duke.edu/faculty_scholarship/2124, (26 January 2021).

Office of the Prosecutor: Strategic Plan 2016-2018. http://www.icc-cpi.int/iccdocs/asp_docs/ASP14/ICC-ASP-14-22-ENG.pdf#search=strategic, (31 October 2015).

Report of the International Criminal Court-A/69/321. http://www.icc-cpi.int/iccdocs/presidency/ICC-Rep-UNGA-30-10-2014-Eng.pdf, (31 October 2015).

Rome Statute of the International Criminal Court. http://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf, (19 September 2015).

Rules of Procedure and Evidence. http://www.icc-cpi.int/iccdocs/PIDS/legal-texts/RulesProcedureEvidenceEng.pdf, (26 January 2021).

SARIGÜZEL Hacı, “Uluslar Arası Ceza Mahkemesi”, Uyuşmazlık Mahkemesi Dergisi, Volume.1, Issue.3, June 2014, pp.230-273.

SCHARF Michael P., “The Politics of Establishing an International Criminal Court”, Duke Journal of Comparative & International Law, Issue.6, 1995, p.167-174, http://scholarship.law.duke.edu/djcil/vol6/iss1/7, (25 September2015).

ŞEN Ersan, Uluslararası Ceza Mahkemesi, Ankara, Seçkin Yayıncılık, 2009.

TELLİ Kutluay, Cezasızlık Olgusuna Karşı Uluslararası Ceza Mahkemesi, İstanbul, XII Levha Yayıncılık, 2015.

TEZCAN Durmuş, Mustafa Ruhan Erdem, Oğuz Sancakdar, ve Rifat Murat Önok, İnsan Hakları El Kitabı, 4^th Issue, Ankara, Seçkin Yayıncılık, 2011.

Understanding the International Criminal Court. http://www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf, (24 January 2021).

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[1] The Turkish version of this study has been published on oktaybahadir.blogspot.com

[2] Understanding the International Criminal Court, p.3, http://www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf, (24 January 2021).

[3]  The Mechanism for International Criminal Tribunals was established by the UN on 22 December 2010 in order to perform the main functions of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia. This Mechanism is comprised of two sections: the section taking over the functions of the International Criminal Tribunal for Rwanda entered into service on 1 July 2012 while the section taking over the functions of the International Criminal Tribunal for the Former Yugoslavia entered into service on 1 July 2013. For detailed information, visit http://www.unmict.org  

[4] For detailed information on ad-hoc tribunals and criticism concerning the principles of “lawfulness and natural judge”, see ŞEN Ersan, Uluslararası Ceza Mahkemesi, Ankara, Seçkin Yayıncılık, 2009, pp.19-29.

[5] For detailed information and comments on the matter as to why a new and permanent international criminal court is needed, see SCHARF Michael P., “The Politics of Establishing an International Criminal Court”, Duke Journal of Comparative & International Law, Issue.6, 1995, pp.167-170, http://scholarship.law.duke.edu/djcil/vol6/iss1/7, (25 September 2015); TELLİ Kutluay, Cezasızlık Olgusuna Karşı Uluslararası Ceza Mahkemesi, İstanbul, XII Levha Yayıncılık, 2015, pp.13-20.

[6] The Rome Statute is an international treaty in respect of the international law. Therefore, it is binding on the state parties and entails rights and obligations in respect thereof. (AKSAR Yusuf, Evrensel Yargı Kuruluşları, Ankara, Seçkin Yayıncılık, 2007, p.149).

[7] For update list of the states signing and ratifying the Rome Statute, visit https://asp.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx, (25 January 2021)

[8] For detailed information and comment concerning the fact that Turkey is not a party to the Rome Statute, see KURŞUN Günal, 101 soruda Uluslararası Ceza Mahkemesi, Ankara, İnsan Hakları Gündemi Derneği, 2011, http://www.ucmk.org.tr/dosya/Yayin/101SorudaUcm.pdf, (4 April 2015), pp.34-37;  http://www.ucmk.org.tr/index.php?option=com_content&view=article&id=191&Itemid=104, (5 October 2015).

[9] In the Preamble (paragrapgh 9) and Article 1 of the Rome Statute, it is explicitly set out that the Court is a permanent institution.

[10] In the Preamble of the Rome Statute (paragraph 9), it is explicitly set out that the ICC is an independent tribunal in relationship with the UN system.

For the comment concerning the fact that although the International Criminal Tribunals of Former Yugoslavia and Rwanda were established with the resolution of the Security Council within the scope of the Section 7 of the Charter of the UN and operate as organs affiliated to the Council, the ICC fulfilled the criteria of independency and legitimacy for relying on a separate convention, see Telli, pp.19-20.

On the other hand, expenses of the Court are primarily met by the State Parties, and besides, the voluntary contributions by the governments, international organizations, private persons, corporations and other entities are also accepted (Articles 115 and 116 of the Rome Statute).

[11] The International Criminal Tribunal of Former Yugoslavia and the International Court of Justice also operate in The Hague, in the Netherlands. On the other hand, the Rome Statute allows the Court to hold a hearing in another place when deemed necessary by the judges. The Court also has offices established in the regions where it conducts investigations.

 

[12] In accordance with Article 40 of the Rome Statute, the judges act independently while performing their functions. In Article 41 therein, the circumstances under which the judges cannot handle the case and disqualification of a judge from a case are set forth in order to ensure the independency of judges.

[13] http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/chambers/Pages/chambers.aspx, (12 May 2015).

 

[14] The Assembly of the State Parties consisting of the representatives of the State Parties is the legislative and supervisory organ of the Court. It comprises of the representatives of the states which have ratified or acknowledged the Rome Statute. It gives decision in various matters such as acknowledgement of legal texts and the budget and election of judges, prosecutor and deputy prosecutor (Article 112 of the Rome Statute).

[15] Understanding the International Criminal Court, pp.10-11.

[16] For detailed information concerning the measures to be taken for protection of the victims and witnesses, see Rules of Procedure and Evidence, Articles 87-88, http://www.icc-cpi.int/iccdocs/PIDS/legal-texts/RulesProcedureEvidenceEng.pdf, (26 January 2021).

[17] For a different opinion concerning the fact that the Rome Statute provides the ICC with supra-national judicial authority, see MORRIS Madeline, “The Democratic Dilemma of the International Criminal Court”, Buffalo Criminal Law Review, Issue.5, 2002, p.594-596, http://scholarship.law.duke.edu/faculty_scholarship/82, (26 January 2021).

For a criticism as to the fact that as the complementarity function of the Court infringes upon the power of imposing punishment in domestic law, it would lead to unjust suffering of the weak states, see Şen, p.77-78.

[18] If the crime was committed on board a vessel or aircraft and the State of registration of that vessel or aircraft is a party to the Statute, then the Court has jurisdiction over the case (Article 12 § 2 (a) of the Rome Statute).

On the other hand, by invoking Article 124 of the Rome Statute, a state may declare that it does not accept the Court’s jurisdiction with regard to war crimes for a period of 7 years.

For an opinion concerning the facts that the Rome Statute does not include any provision concerning the ICC’s jurisdiction in respect of place and therefore, the ICC is competent for all crimes committed at any place of the world and falling under its jurisdiction, see Aksar, p. 147.

[19] For detailed information on the UN Security Council’s power to request the Prosecutor to commence the investigation, see Telli, pp.114-128.

For discussions concerning the fact that the Court has jurisdiction over the states which are not a party, see MORRIS Madeline, “The Jurisdiction of the International Criminal Court Over Nationals of Non-Party States”, ILSA Journal of International & Comparative Law, Issue. 6, 2000, p.363 et seq., http://scholarship.law.duke.edu/faculty_scholarship/2124, (26 January 2021); Telli, pp.118-128.

^[19] For similar opinion, see TEZCAN Durmuş et al., İnsan Hakları El Kitabı, Issue 4, Ankara, Seçkin Yayıncılık, 2011, p.577; Telli, pp.58-59; Aksar, p.150 and 207.

[20] For similar opinion, see TEZCAN Durmuş et al., İnsan Hakları El Kitabı, Issue 4, Ankara, Seçkin Yayıncılık, 2011, p.577; Telli, pp.58-59; Aksar, p.150 and 207.

[21] The Court may try the crimes of aggression committed one year after the acceptance or ratification by 30 State Parties of the amendment to the Rome Statute which is concerning the crime of aggression and was adopted by the Assembly of the State Parties in 2010 (Article 15 bis⁵ § 2 of the Rome Statute). The ICC may exercise its jurisdiction with regard to the crime of aggression on the basis of the resolution to be taken by two-thirds of the State Parties following 1 January 2017 and the ratification of the amendment concerning this crime by at least 30 states (Article 15 bis⁵ § 3 of the Rome Statute). The Court may subject a crime of aggression alleged to have been committed by a state party to trial only if this state has not previously declared that it did not accept such jurisdiction of the Court (Article 15 bis⁵ § 4 of the Rome Statute). To put it in the contrary, if a state party has previously declared that it did not accept the jurisdiction of the Court concerning the crime of aggression, this state cannot be subject to any trial on account of this crime.  Except for the circumstances where any situation is referred to the Court by the UN Security Council, the ICC does not have jurisdiction with regard to the crime of aggression committed in the territory of a state which is not a party to the Rome Statute or committed by citizens of this state (Article 15 ter⁵ of the Rome Statute).

[22] For a criticism that this article imposes almost objective (definitive) responsibility on the military commanders and high ranking officers, see Şen, pp. 118-120.

[23] http://www.icc-cpi.int/iccdocs/PIDS/publications/ICCAtAGlanceEng.pdf, (26 January 2021); Understanding the International Criminal Court, p.5.

[24] In a similar vein, pursuant to Article 35 of the Turkish Penal Code no. 5237, which entered into force on 1 June 2005, any person who begins to directly act, with the appropriate means and with the intention of committing a crime, but has been unable to complete such crime due to circumstances beyond his control, shall be culpable for the attempt. However, in a case of attempt, depending upon the seriousness of the damage and danger that accrued, an offender shall be sentenced to a penalty of imprisonment for a term of thirteen to twenty years where the crime committed requires a penalty of aggravated life imprisonment, or to a penalty of imprisonment for a term of nine years to fifteen years where the crime committed requires a penalty of life imprisonment. Otherwise the penalty shall be reduced by one-quarter to three- quarters.

Pursuant to Article 36 of the Turkish Penal Code entitled “voluntary abandonment”, an offender who voluntarily abandons the performance of the acts necessary to commit a crime, or who prevents the completion of a crime or its consequence, shall not be subject to a penalty for the attempt. However, where the completed part of an action constitutes a crime, he shall be subject to a penalty for the completed part of the act.

For opinions and criticisms concerning the attempt to commit a crime and voluntary abandonment, see Şen, pp. 112-114.

[25] For the argument that the age limit in respect thereof must be 21, see Şen, pp.114-116.

[26] Notwithstanding, in respect of the Turkish law minors under the age of twelve are exempt from criminal liability. While such minors cannot be prosecuted, security measures in respect of minors may be imposed (Article 31 § 1 of the Turkish Penal Code).

[27] For the criticism that as any prescription period is not set forth in the Rome Statute, this would make individuals be under constant threat of facing with penalty and would be risky in respect of the individuals’ rights and freedoms, see Şen, pp.86-87.

In a similar vein, the Turkish Penal Code sets out that there shall be no prescription period in respect of genocide and crimes against humanity (see Articles 76 and 77 of the Turkish Penal Code).

[28] For the argument that terror crimes must also be included in the jurisdiction of the ICC, see pp.78-83 and 132-133.

Similarly, for the argument that use of weapons of mass destruction, unmanned aerial vehicles, killer robots or autonomous weapons, as well as terror crimes, must be set out as a separate crime or must be included in the existing crimes set out in the Statute, see Telli, pp.36-48.

[29] Pursuant to Article 76 of the Turkish Penal Code, the commission of any of the following acts against any member of any national, ethnic, racial, or religious group with the intent to destroy such group, in whole or in part, through the execution of a plan shall constitute genocide:

Ø  Wilful killing,

Ø  Causing serious harm to physical or mental integrity of persons,

Ø  Deliberately inflicting on the group living conditions calculated to bring about its physical destruction in whole or in part,

Ø  Imposing measures intended to prevent births within the group,

Ø  Forcibly transferring children of the group to another group.

The same article also provides that any person who commits genocide shall be sentenced to a penalty of aggravated life imprisonment and that there shall be no statute of limitations in respect of these crimes.

[30] For the criticism that use of the concept “as such” in Article 6 of the Rome Statute is contrary to the principle of nulla poena sine lege (“no crime without law”) and the prohibition of comparison and that in case there are changes in the conditions in the course of time, new types of crimes may be added to the Statute via additional protocols, see Telli, pp.25-27.

[31] Pursuant to Article 77 of the Turkish Penal Code, the systematic performance of an act, described below, against a part of society and in accordance with a plan with a political, philosophical, racial or religious motive shall constitute a crime against humanity:

Ø  Wilful killing,

Ø  Intentional injury,

Ø  Torture or inhuman treatment or slavery,

Ø  Depriving one from his/her liberty,

Ø  Subjecting persons to biological experiments,

Ø  Sexual assault, sexual abuse of children,

Ø  Forced pregnancy,

Ø  Enforced prostitution.

In the last paragraph of the same article, it is explicitly set out that there shall be no statute of limitations in respect of these crimes.

For the criticism that Article 77 of the Turkish Penal Code is not compatible with the Rome Statute both in respect of the definition of the crime and the scope of the acts constituting the crime, see Aksar, pp. 209-211.

[32] For the criticism that use of nuclear weapons, laser guns and other weapons of mass destruction must be included within the scope of war crimes, see Aksar, p.147.

[33] As noted above, a state which is not a party to the Rome Statute may acknowledge the jurisdiction of the ICC and request the Office of the Prosecutor to conduct an investigation.

[34] For example, Uganda, the Democratic Republic of Congo, the Central African Republic and Mali brought the incidents taking place in their territories before the Court.

[35] For example, the Security Council lodged an application with the Office of the Prosecutor for the events taking place in Darfur (Sudan) and in Libya which is not a party to the Statute.

For the criticisms that granting such a power to the UN Security Council, which is a political organ, violates the principle of impartiality of court and the fact that citizens of a state which is not a party to the Rome Statute could be tried is in breach of the principle of sovereign equality of states, see SARIGÜZEL Hacı, “Uluslararası Ceza Mahkemesi”, Uyuşmazlık Mahkemesi Dergisi, Volume 1, Issue 3, June 2014, pp.252-254.

On the other hand, invoking Article 16 of the Rome Statute, the UN Security Council may request the Court not to commence the investigation and prosecution or not to continue the existing investigation or prosecution. For criticism concerning the principles of independence and impartiality in respect thereof, see Telli, p.128-131; for an opposing view, see Aksar, p.155-156.

[36] The Office of the Prosecutor may receive information from States, organs of the UN, intergovernmental / non-governmental organizations, or other reliable sources (Article 15 § 2 of the Rome Statute).

[37] Up to the present (January 2021), 30 cases were brought before the ICC. The Office of the Prosecutor currently conducts 13 different investigations and makes 9 preliminary examinations. For detailed information, see https://www.icc-cpi.int/cases, https://www.icc-cpi.int/pages/crm-decisions.aspx, https://www.icc-cpi.int/itemsDocuments/2020-PE/2020-pe-report-eng.pdf (27 January 2021).

[38] The principle of “Ne bis in idem” concerning the fact that an offender cannot be prosecuted twice for the same crime is set out in Article 20⁷ of the Rome Statute.

[39] Criteria to be taken into account with a view to determining unwillingness and inability are specified in Article 17 §§ 2 and 3 of the Rome Statute.

[40] However, it is observed that the states do not always fulfil these obligations in practice. For instance; although it was ordered by the Supreme Court of the South Africa that Omar Hassan al-Bashir, who is the President of Sudan and in respect of whom there has been a warrant of arrest for genocide and crimes against humanity, be banned leaving the country where he arrived to participate in the African Unity summit on 13 June 2015, the government did not enforce this order (http://www.nytimes.com/2015/06/16/opinion/south-africas-disgraceful-help-for-president-bashir-of-sudan.html?_r=0, 22 June 2015).

[41] Understanding the International Criminal Court, p.20.

[42] Understanding the International Criminal Court, p.20.

[43] The concept of “confirmation of charges” used in the Rome Statute is translated into Turkish in many sources as “iddianamenin kabul edilmesi (acceptance of the indictment)” (e.g. see, Aksar pp.165-168; Şen, p.169). However, in this study, the concept of “confirmation of charges” is preferred in that in the ICC’s trial procedure, an indictment is not confirmed as a whole but each charge raised towards each suspect is confirmed (or dismissed) one by one (see Article 61 of the Rome Statute and Articles 121-126 of the Rules of Procedure and Evidence). 

[44] Understanding the International Criminal Court, p.25.

[45] For detailed information, see Articles 121-126 of the Rules of Procedure and Evidence.

[46] For exceptions to the accused’s being present in the hearing, see Articles 63 § 2 and 68 § 2 of the Rome Statute. Moreover, for conditions of holding hearings in the absence of the suspect at the pre-trial stage, see Article 61 § 2 of the Rome Statute.

[47] Understanding the International Criminal Court, p.27.

[48] For the rights provided for the suspects (the right to remain silent, the right to counsel, the right to take assistance of an interpreter and etc.), see Article 55 of the Rome Statute.

[49] Article 118 § 2 of the Rules of Procedure and Evidence.

[50] For detailed information, see Articles 173-175 of the Rules of Procedure and Evidence.

[51] Understanding the International Criminal Court, p.35.

[52] Understanding the International Criminal Court, p.38.

[53] State Parties to the Rome Statute have established a fund with a view to redressing the damages sustained by the victims and their families in case the convicted person does not have adequate assets by relying on Article 79 of the Roma Statute.

[54] For issues to be taken into account by the Court in determining the penalty to be imposed on the accused especially the grounds for reduction and increase in the penalties, see Article 78 § 1 of the Rome Statute; Article 145 of the Rules of Procedure and Evidence. Furthermore, for deduction, see Article 78 § 2 of the Rome Statute.

[55] For types of decisions likely to be appealed, see Articles 81 and 82 of the Rome Statute and Article 150 of the Rules of Procedure and Evidence.

[56] For detailed information concerning revision of the decision, see Articles 159-161 of the Rules of Procedure and Evidence.

[57] For detailed information concerning the International Criminal Tribunals of Nuremberg and the Former Yugoslavia, see AZARKAN Ezeli, Nuremberg’ten La Haye’ye: Uluslararası Ceza Mahkemeleri, Kırklareli: Beta Basım Yayım, 2003, pp.115-211.

[58] The principles of nullum crimen sine lege / nulla poena sine lege are explicitly set out in Articles 22 and 23 of the Rome Statute.

[59] http://www.un.org/press/en/1998/19980720.l2890.html, (28 January 2021).

[60] For instance, concerning suggestions for a more efficient ICC, see Telli, pp. 95-100.