Prepared By: Alican ÇALIŞKAN, Seher Ece AYDIN
Translated by: Yakub TOPCUOĞLU, Mustafa CANSU, Ceren PALAZOĞLU
Edited by: Sena MUTLU
THE DEVELOPMENT OF THE INTERNATIONAL CRIMINAL LAW
In general terms, although international law has a history of 300 years within the frame of globalization and the needs of international community,International Criminal Law is a field that has been developed later than the international law. It can be said that this development has been delayed because the historical period was a unitary nation-state period and these states had a sense of full sovereignty. Then, one of the reasons why international law has appeared is the existence of disputes arising between the states (jurisdiction,extradition etc.) related to implementing criminal laws. Another important reason in this regard is identifyingsome international crimes, preventing them, removing them and the necessity of the rules which will govern these issues. Within this context, international criminal law consists of the disputes between the states (jurisdiction,extradition etc.)because of the implementation of criminal laws and identifying,preventing and removing some international crimes and appointing the rules to these issues.
“The acts that are regarded as ‘criminal’ by international law don’t merely damage the interests of the states against which they are committed, but the interests of the whole international community and it is a threat to the security of all other states, even if those states are not harmed by the crime.” Since ‘international crimes’ damage the interests of the whole international community the need for a supra-government structure arose in order to prosecute these offences. As a result of this need, the development of the international criminal law has accelerated and it has been organised spreading over a certain period of time.
“In the 16th and 17th centuries when the modern international society emerged, international law regulated the relations of sovereign states with each other, but recently international law has begun to be applied not only to the inter-state relations, but also to the international relations of individuals and states in the presence of certain conditions.” In addition to this established practice, the criminal responsibilities of individuals in the international arena have long been debated based upon various theories. But after the international criminal liabilities of the individuals who committed the crimes of maritime piracy and slave trade are agreed upon, as the Nuremberg Court decided on the international criminal liabilities of individuals who commit war crimes, the theories which prevented the international criminal liabilities of individuals have lost their validity and it is clearly revealed that individuals can have international criminal liabilities and can be prosecuted in this respect.
ESTABLISHMENT PROCESS OF THE INTERNATIONAL CRIMINAL COURT
The establishment of an international court that may judge public institutions and individuals who commit international crimes first came to an end in the 1919 Paris Peace Conference.The proposal was put forward in 1937 at a conference in Geneva. As a result, the constitutional framework of an international court to be established in order to prevent international terrorist movements were put forward by an agreementwhich was signed by 13 countries. However, these countries have not ratified the agreement and the contract has not entered into force.
In the course of World War II, with the Allied leaders suing the leaders of the Axis Powers for war crimes, the General Assembly of the United Nations noticed the necessity of a court following such international proceedings and concluding them. At the request of the General Assembly, the International Law Commission has drafted two statutes, but these drafts have been abolished by the beginning of the Cold War era.
The large scale of the international drug trade, the Yugoslav wars and the Rwandan genocide are just some of the many things that underline the necessity of a permanent international criminal court. Ultimately in 1994, the International Law Commission presented the final draft of the International Criminal Court’s founding statute to the General Assembly of the United Nations and recommended that a conference must be organised to negotiate the treaty, which would be the status of the Court. A commission was formed to discuss issues of great importance for the establishment of the Court and a preparatory committee is formed by taking into account the reports of these commissions. After six sessions at the headquarters of the United Nations in New York, a draft of the articles were assembled in the town of Zutphen in the Netherlands in 1998.
The International Criminal Court Statute, a constitutional document of the Rome Statute, was adopted by a United Nations-led conference in Rome on July 17, 1998 in Rome, with 7 rejections (China, Iraq, Israel, Libya, Qatar, United States and Yemen), 21 abstentions and 120 acceptances .The 60 votes required for this court to pass the act were reached on April 11, 2002, and the court officially passed the act. The Rome Statute is the founding document of the International Criminal Court. The status determines the structure, activities and authorities of the court. The Rome statute states that there are four main international offences, and the International Criminal Court searches and condemns these offences for research and judicial power or for offences committed in countries that are not in demand. These crimes are: genocide, crimes against humanity, war crimes and crimes of violation. These crimes cannot be subject to any time-outs. In addition, crimes authorized by the United Nations Security Council can also be examined and prosecuted. The Statute of Rome consists of an introduction, 13 episodes and 128 items.
The authority of the International Criminal Court with respect to persons includes natural persons (Article 25/1).In relation to the crimes which International Criminal Court handles, The Court has jurisdiction over persons who themselves commit a crime, or who order, encourage,assist or cooperate in the act of a crime or who participate in the crime in any way, directly and publicly encouraging the crime of genocide(Article 25/3). However, The Court does not have jurisdiction over the persons who did not exceed the age of 18 when the crime was committed(Article 26).
On the other hand, being Head of the State, Head of the Government or being a member of the Government does not abolish the authority of the Court(Article 27) and these superiors are also personally and criminally liable if they did not take preventive measures in cases where people who are under their command or authority, military leaders or senior managers, when it was necessary to be within their knowledge or within the knowledge of their superiors (Article 28). Including Presidents, judicial immunity is out of question for anyone. The Court has jurisdiction on international crime: genocide, offenses against humanity,war crimes and assasult crimes.
STRUCTURE OF THE COURT
The Court, agreed to be established with the International Criminal Court Statute ,which was adopted on July 17,1998 at the end of the diplomatic conference that convened in Roma, consists of 18 judges but increasing the number of the judges is possible(Article 36/1-36/2)
International Criminal Court comprises three departments:
1)First Instance: at least six judges
2)Appeal: one presiding judge, four Judges – three judge for each case
3)Preliminary: at least six judges – three or one judge for each case
Prosecuter’s Office and Clerkship are two other parts of the Court.
In the field of criminal law or international law, judges are expected to have practice of humanitarian law and human rights(Article 36/3), the judges shall be elected for a period of nine years, but one third of the elected judges shall be elected for three years, anotherone third shall be elected for six years and the last one third shall be elected for nine years whereas the judge can be reelected 36/9).
FUNCTIONING OF THE COURT
If The Court reaches a conclusion that the perpetrator has acted, The Court sets a penalty in accordance with the perpetrator’spersonal situation and the gravity of the offense pursuant to Criminal Procedure and Evidence Instructions (Article 78). Possible penalties are enlisted in Article 77: Up to thirty years imprisonment, life sentence(depending on justifying the peronal situation of the perpetrator by the spesific act), payment of a fine (according to the defined criterion of Procedure and Evidence Instructions), with the guarantee of bonafide third party’s rights, confiscation of property that was provided directly or indirectly from the committed crime can be added to the list.
Wheras, on the condition that it is informed a year in advance, if a member State requests, jurisdiction over its people or territory can be abolished. But this verdict will not be an obstacle to the ongoing investigations and liability of helping the Court (Article 26). The proceedings at the International Criminal Court are initiated by a state with a statute or Security Counsel’s application or by the prosecutor’s spontaneous investigation(Article 13-15 and 53). Prosecutor submits the indictments to the Preliminary Department. If Preliminary Department considers it appropriate, detention of the perpetrator and decision for appearing before the Court are at stake(Article 18 and 58). Then, the first hearing about the perpetrator is carried out by the Preliminary Department in order to inform the incrimination(Article 61 if a conclusion that offender’s trial is necessary reached out, the accused is sent to the First Instance Department to be formed by the President of The Court for trial(Article 61/11). The Court is obliged to make an effort to take its decision unanimously, and if this is not possible, the decision is taken by majority vote(Article 74/3). The prisoner’s penalty is limited to imprisonment, which is usually for a maximum of 30 years and life sentence for very serious offenses(Article 77). Reviewing the decisions and appealling against the decisions are available(Article 81-84). Serving of penalties is carried out in the State elected by The Court from among the states that accept this assigment(Article 103).The principle of being liable for the actions of the subordinates under the military commander and the actions of the subordinates under the commands of the civil hierarchical supervisors(Article 28/2).
DUTY FOR THE STATE MEMBERS OF THE INTERNATIONAL CRIMINAL COURT
On jurisdiction of International Criminal Court, in both the preliminary investigation and the final investigation stage, the states have undertaken the most extensive cooperation with the court (Article 86). All authorities of the Member States have to comply with the confidentiality of the information demanded by the court, hereby, every state needs to make the necessary arrangements in its national legislation to ensure full cooperation(Article 88). The Court mayask for any information and documents from intergovernmental organizations or invite non-member states to cooperate.
Taking into account the evidence provided by the court, if the prosecutor approves the demand,the prosecutor may make a decision to arrest and hand over the suspect. Member states are obliged to comply with this decision and to hand over the relevant people.
SIDES OF STATUS
From March 2016, 124 Countries have recognized this status. The status is recognized by all South American countries, most European countries and almost half of African countries. 41 Member Statesof the United Nations has not signed orrecognized this treaty yet.
International Criminal Court questions the crimes committed in the States parties to Rome Statute, sue and adjudicate cases.prominent decisions of those:
DEMOCRATIC REPUBLIC OF THE CONGO
On the written request of the president of the Democratic Republic of the Congo, the investigation on the war crime was initiated (especially the recruitment and use of children under the age of 15),, and the arrest of Thomas Lubanga, leader of the Congo Patriots’ Union, was ruled. (The suspect is arrested.)
An investigation was initiated in Uganda upon the written request of the head of state about the crimes against humanity (slavery, crimes of rape, murder, sex slavery) and war crimes (massacres of civilians, plundering and children under age 15 being actively used in armed conflicts) (Oct. 2005). None of the accused were arrested (Otti 2007, Lukwiya died in 2006, while others died in 2006). The arrest warrant was issued against the 5 leaders of the Resistance Army – Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo, Dominic Ongwen Criminals are fugitives.)
Muhammad Gaddafi (Muhammad Muhammad Abu Minyar al-Muhammad), who ruled Libya for 42 years (with the nickname of the Guide to the Great September Revolution), was not officially recognized by the International Criminal Court on June 27, 2011 because of his indirect support for the crime of humanity (murder and persecution) Gaddafi was arrested on October 20, 2011, and the case was dropped..
CENTRAL AFRICAN REPUBLIC
An investigation was initiated in the Central African Republic upon the request of the Local Court on the limited possibility of trial or trial of the cases of this court. The investigation has not been concluded and no arrests have been made, but there are allegations of genocide along with alleged murder and rape crimes committed by the former president and deputy president (2006)
According to the United Nations (UN) reports, in Darfur, where crimes against murder, torture and rape continue to increase, more than 200 people have been displaced in 2006 alone. On the allegations that the government initiated a wide-scale “ethnic cleansing” in the Darfur region, the case was brought to the International Criminal Court (ICC) and raped by State Minister in charge of Sudan Humanitarian Affairs Ahmed Harun and Cancevit leader Ali Kuşhayb and President Umar Hassan Ahmad al-Bashir. A total of 51 war crimes and crimes against humanity, including accusations of murder, attacks on the civilian population, inhuman action, torture, plundering and acts against human dignit. This order issued for Ahmad al-Bashir is the first arrest warrant issued by UCM for an incumbent president.
More than 300 people have been killed, more than 300 people have been injured, and more than 300 people have been forced to leave their home after the controversial presidential elections held in Kenya in December 2007. There was widespread sexual violence against women in conflict. The houses were burned and the people living in the region were forced to migrate. OnMarch 8, 2011, the Preliminary Trial Chamber filed a criminal complaint against six members of the Orange Democratic Movement (ODM), three members of the government, including the Deputy Prime Minister of Kenya and Minister of Finance Uhuru Kenyatta, and the anti-government Orange Democratic Movement Published. The Kenyan inquiry is the first inquiry that the prosecutor has initiated, with his own initiative, not the demands of the states or the United Nations Security Council.
Former president of Ivory Coast, Laurent Gbagbo, refused to give his seat to his opponent, Alassane Quattara, after claiming that he won the election in his country after December 2010 elections. On November 23, 2011, an arrest warrant was issued by ICC on the grounds that it committed four crimes against humanity such as murder, rape and torture., Gbagbo and his wife have organized a wide-scale attack against a specific ethnic and religious group in a planned and consciously manner, indicating that these attacks were carried out in a wide geographical area using the same method. Gbagbo is the first former president who has been on trial since 2002, after the court was established. On December 21, 2011, an arrest warrant was issued against four former criminals against humanity against former minister Charles Ble Goude of Cote d’Ivoire.
REPUBLIC OF MALI
In January 2012, there were violent clashes between Malaria’s northern territories and the Tuareg rebels, who aimed at establishing an independent state. On January 16, 2013, the Office of the Prosecutor’s Office launched an investigation into the events happening in Mali since January 2012. Mali Government has applied to UCM on June 13, 2012. The prosecutor’s office stated that he had investigated reports of murders, rape and child recruitment in northern Mali, and opened investigations for these reasons. The Chief Public Prosecutor decided that there were valid reasons for the investigation and forwarded the case to the Pre-trial Office 2.
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 WOETZEL, Robert: The Nürnberg Trials International Law ; London, 1962, s. 109 vd.
 WOETZEL : a.g.e. ; s.97
 GREIG, D.; International Law ; London, 1970, s. 91-92
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