International Criminal Court and Issue of Non Criminal Sanctions

International Criminal Court (ICC) now a days deals with the conflicting situation of restoring peace and stability through non-criminal sanction measures. The relationship between ICC and member state is governed by the principle of complementarity according to which the jurisdiction of the ICC shall be triggered only if State is unwilling or unable genuinely to carry out its obligation as prescribed under Rome statute on ICC. Thus unlike other various ad hoc tribunals like ICTY, ICTR; the ICC while respecting the national sovereignty imposes primarily erga-omnis obligation on state to punish the person committing jus cogen crimes. Its role is complimentary to the national legal system and doesn’t work as an appellate forum from national courts.

Non-criminal sanctions are alternative mechanism to bring justice. It falls somewhere between the amnesty and criminal prosecution because it neither results in criminal sanctions nor completely exoneration the offence. Non-criminal sanction imposes some sort of civil and political disability e.g. dismissal or disqualification from government jobs etc.  The whole crux of the debate revolves on the legitimacy of the non-criminal sanctions under ICC statute. The greatest lacuna of ICC statute is that - it does not provide provision for alternative form of accountability as non-criminal sanction measures which is also non violative of international law under its customary principles.

Since Article 20 of ICC adopts the principle of non-bis-idem that no person should be prosecuted for more than once for the same conduct, a question arises as to whether non-criminal sanction bars the ICC to exercise its jurisdiction. Since only conviction or acquittal of accused by a competent national judicial tribunal on the basis of merit of case bars the ICC jurisdiction under Article 17(3),the argument as to non-criminal sanction is functionally equivalent to being tried by another court gives rise to criticism because in common law system administrative action like dismissal does not bar prosecution. Further administration action are some sort of civil action and it is found that civil action does not bar criminal prosecution on same conduct.

Non-criminal sanctions is a mechanism to restore peace and order by preventing counter reaction again and again under the notion of vengeance vested in the very form of punishment itself. The aim of ICC is not to prosecute and penalize criminals of humanity at the cost of peace. Hence it is argued that the non-criminal sanction should be recognized as bar on ICC jurisdiction if it maintains the minimum standard of international justice. That is to say non-criminal sanction may bar subsequent prosecution under ICC if judged on objective and subjective criteria, it is found relatively proportionate to the culpability of offence (which are less severe). However it is illegitimate and does not bar ICC jurisdiction if that relates to the core persons responsible for hideous atrocities like leader or senior military officers. Thus various persons falling under wider net of command responsibility or joint liability are legitimate subject of non criminal sanctions imposing bar on ICC jurisdiction.

However to prevent the risk that non-criminal sanctions may be used as an instrument for arbitrary closing of prosecution and evading ICC jurisdiction, the prosecutor may trigger the jurisdiction of ICC e.g. it can show that non criminal sanction are on mala fide grounds. However if non-criminal sanction is made under  prescribed norm of international law in good faith the concerning state can’t be labeled as “unwilling genuinely”. That is to say unless it is manifestly against the international legal standard non-criminal sanction bars ICC jurisdiction.

Prosecution instead of Non-criminal sanctions at the time of changing of regime may impede peace and negotiation, delay peace process, for obstruct reconciliation. Peace and national reconciliation is legitimate goals of any country to pursue. The rigorous adherence to enforce prosecution may have a disaster impact on state that have just started from its terrific past and is in process of restoring domestic order. It is also against the moral politics to foster common goods of the citizens.Whether ICC has deterrent effect is a matter of dispute because almost all states have imposed severe punishment for ICC crimes. Further the offence of mutiny, waging war against states are such a serious offence that hardly any criminal think about ICC, if he commit any of such offences under national jurisdiction.

It has been repeatedly observed by various international forums that uniform standards cannot be adopted; margin of appreciation is a right of every state because of its distinct historical, social and political conditions. Thus prosecutor under ICC should be given wider discretions not to proceed in a case if it is not going to serve the interest of justice. Because of these jurisdictional and technical issues ICC statute requires modification wherein non-criminal sanction can be given as the legitimatize form of alternative punishment if there is credible negotiation going on for peace or reconciliation. It has been seen in Uganda case that peace process cannot be furthered because of ICC‘s continuing insistence on execution of punishment to the rebellion leader Joseph Kony. Thus there is need for recognition of non-criminal sanctions under ICC so as to make it not only a court of justice but also a court of bringing peace. There is going to be a review conference on ICC in Kampala and I am looking forward to see some progress in this context.

INDIVIDUAL CRIMINAL RESPONSIBILITY UNDER INTERNATIONAL CRIMINAL LAW

 Going through various legal systems, judgments of war tribunals, international norms and Art. 25 of Rome Statute of International Criminal Court etc legal position on individual criminal responsibility may be summarised as such-

1.      The judgment of Nuremberg and Tokyo trial was a milestone revolutionary judgment where for the first time the core values of the international community was crystallized into a penal Code and punishment was awarded on the basis of individual criminal responsibility, setting aside the two potential defences namely state sovereignty and superior orders, as senior state officers conduct fall under sovereign functions and juniors under superior orders. The court for the first time held that heinous crimes can’t be committed by an abstract entity like state, it is the persons who are the eyes and ears of the state are able to form will and commits such crimes, hence transnational criminal justice can’t be done unless such persons are punished individually according to the culpability of their offences. In fact Art 25 of ICC incorporates the same idea.

2.      Though in a war the whole state concerned participate, punishment to all is not feasible. Further the object of Justice would be failed if liability is imposed on the whole state through heavy taxation or otherwise, because it will create hurdles for the innocent civilians and may create antagonism against the victor states which may be easily utilized for political mileage by corrupt people as we can see in history after the treaty of Versailles, but if individual criminal responsibility is imposed it may prevent a demon being martyr and may give a deterrent to the likeminded people.

3.      Article 25 of The Rome statute Of ICC went ahead (to the Pre ICC trials which were highly decided on the ground of the position of the defendant in the chain of order, irrespective of his actual participation in crime) in determining the individual criminal responsibility by systematizing the four level of participation in a crime prohibited under the Act i.e. Commission, ordering or instigation, assistance and contribution, or attempt to commit these crimes. It serves as a useful guideline in sentencing and limits the judge’s discretion.

4.      The offences under the ICC may be committed in three ways-

(a)   The state by itself (e.g. Hitler regime)

(b)   The state sponsored groups(Darfur Crisis)

(c)    Independent groups(religious groups ,insurgents or terrorists)

In order to determine the individual criminal responsibility article 25 prescribes three ways in which offence may be committed either individually or joint or through an agent .In first two physical presence becomes essential but not in third case. Since war crimes are committed by an organized group it can be done only through agents, hence the degree of punishment in such cases for the principal is generally heavier than accessory who execute his order.

5.      In so far as the joint commission of crimes is concerned, a person is responsible only to the extent he shares the common objective, which may be either predetermined or may be formed on spot or is foreseeable. Thus an officer executing a person on superior order may not necessarily have intention to destroy a group as a whole or in part, hence he may be held liable for murder but not for genocide.

6.      In so far as offence by instigation is concerned it depends upon the personality and foreseeable effect on the addressee. Instigator must have willingness in likelihood of the outcome of his instigation or provocation. Thus Iranian President Ahamadinejad’s statement to destroy Israel as whole can’t be an offence because he didn’t intend to execute his willingness.

7.      Punishment of accessories are determined on the basis of their nature of contribution, if their contribution was essential to execute the offence he would be treated as joint offender, and if substantial be treated like accessories. Substantial contribution is one which though is important the offence may be committed without it.

8.      So far as mensrea of co-perpetrator is considered degree of punishment is determined on the basis of dolus directus (direct intention e.g. a person shots another person) and dolus eventualis (indirect intention e.g. A, in fun fires in dark  and a person is shot) . Comparatively former bears heavier punishment.

9.      The extent of punishment for omission resulting in offences punishable under ICC depends upon the active (legally bound not to ommitt) or passive omission (against the accepted international degree of omission) e.g. Non reporting of crime to concerned authorities, omission to prevent offences etc.

10.  Individual responsibility is based upon the principle that only natural persons can form free will and act accordingly, and only they are in a position to deviate or accelerate the offences. Now International law has become individual centralized and state as a means to provide rights and impose duties. Only its failure brings international institution like ICC to interfere within the targeted state.

11.  Since most of the war crimes and crimes against humanity are planned and executed very secretly it is very difficult to establish the chain of offences and the extent of mensrea. In a dictatorial regime(e.g that of Hitlar) where power flows upward to downward it is easy to establish this chain but it is not so easy when order comes from decentralised sources ( as seen in disputed Tokyo trial where King was treated as nominal head and accesary whereas prime minister as actual perpetrator). Further establishing of this chain is very important because actual committer may be only an accessory to the principal preperator.

12.  Though state or MNCs are not natural persons but can do offences through their individuals, hence Individuals should be held responsible in general by piercing the veil and fictious personality should be held liable in particular that is why Article 25((4) does not close the doors for victim state or victim through its state to claim for damages against the state of the offender under other forums of international law like ICJ etc.