Law campaign
Instrumentality of Domestic Court to enhance criminal justice
Domestic tribunals like the International Crimes Tribunal of Bangladesh are the future of international criminal justice. Even though the 15th session of the Salzburg Law School was on “Africa's recent efforts to enforce the complementarity regime along the consensus of Kampala”, the main spectrum of the discussion was that the International Criminal Court's (ICC hereinafter) system under the Rome Statute could be fully implemented namely through the national courts' contribution. Therefore, the main role of the international community in pursuing justice does not belong solely to the ICC alone.
The 15th session (held from 4-16 August) gathered professionals, academics, and legal practitioners from 28 countries throughout the world with an intention to disseminate the most recent challenges and threats to the crime of aggression and other related issues adopted through the resolution No. 06 of 2010 in Kampala (Uganda). The introductory address was delivered by Judge Sanji Mmasenono Monagong, the First Vice-president of the ICC. Other renowned speakers were - Professor Otto Triffterer, Professor Roger Clark, Professor William Schabas, and Col. William Lietzu. The whole program was co-ordinated by Astrid Reisinger Coracini, who is based in New York working at the New York University.
During 2010 Kampala review conference the delegates of the member states tackled the issue of the definition of the crime of aggression, the very last international core crime over which the ICC could not exercise its jurisdiction since its establishment in 1998. Eventually the definition was drafted relying the individual responsibility of the offender on the previous determination of an act of aggression. It has to be mentioned that crime of aggression is a leadership crime which means only the head of the states, decision-makers and military-commanders can be subjected to the court's jurisdiction.
The 'crime of aggression regime' had not become effective immediately after the Kampala review conference. It will become effective from January 1, 2018 if at least 30 Member states to the ICC ratifies the regime within January 1, 2017 and so far, 7 countries have ratified the suggested amendments to the ICC, i.e., Article 8 bis (definition), 15 bis and ter (triggering mechanism) and yet a long way to go before 'crime of aggression regime' becomes effective. According to the speakers, provisions like optional 'opt-out' rule will attract the member states, however, strong reservation from the non-member states like USA may cause confusion among the member states.
Regarding triggering mechanism of ICC's intervention in case of an act of aggression, more filtering approach has been adopted, since before exercising its jurisdiction over the crime of aggression, ICC Prosecution must refer it to the UN Security Council (UNSC hereinafter) because under Article 39 of the UN Charter, UNSC alone has the power to decide whether the act is aggression or not. If the UNSC fails to decide within the next six months then Pre-Trial Division (not Pre-Trial Chamber) of six Judges may authorize the Prosecution to initiate investigation in the situation. Another triggering mechanism is - the UNSC can refer a situation directly to the Prosecution for investigation and in that case the Prosecutor can start investigation immediately. At the moment this 'narrow' and 'rigid' mechanism is the only matter of concern since the permanent members of the UNSC will use their veto power if the Prosecutor refers a case to the UNSC for its approval, hence, there is a threat that the 'aggression' regime will lose its effectiveness even before it becomes effective on January 1, 2018. However, few of the speakers and participants opined positively that now the world at least has a definition of aggression and a proposed mechanism to bring to justice those under the law who will commit an act of aggression.
The second significant development within the area of international criminal justice concerns the issue of victims' participation in the ICC proceedings and their confirmed right to reparation. Undoubtedly, ICC regulations seem to be unique and, moreover, move the criminal court slightly to the field of reparative justice (what confirms the new trend in the global criminal justice to refrain from the solely retributive approach). Prior to the Rome Statute, victims were used mainly as witnesses, without their substantive and (more efficient) procedural rights during the proceedings, even though, for instance, right to reparation was strongly approved in public international law (Chorzów Factory case) and human rights law by different international and domestic bodies. The first ICC conviction (in Lubanga case) brought the decision on the establishment of the main principles regarding reparations. In the light of the Court reasoning, reparations can be either individual or collective (e.g. the new hospital for the local community affected by the crime), completed by the convicted or, in case of lack of funds of the previous one (like in Lubanga), through the independent, but inter-related body to ICC – Victims Trust Fund. The question, whether criminal court is the proper place to deliver other than criminal justice still remains opens, however the reparations regime under Rome Statute cannot be underestimated.
International criminal justice is strongly dependant on the domestic courts' capacity. The obligation to cooperation with ICC would remain 'the law in books' without the political will and concern by the given state, interested in prosecuting and punishing wrongdoers. Salzburg Law School Session is definitely one of those forums of international discourse that can bring attention and awareness among international community in fulfilling the most important principle, regarding ending impunity and mass and systematic atrocities, with the core one - Nunca Más (Never Again).
The writers are Prosecutor, International Crimes Tribunal in Bangladesh and PhD Candidate at the University of Lodz, Poland respectively.
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