October 02, 2021 at 12:20 am
Tony La Viña
"This background will be helpful."
In this column, we shall try to understand the workings of the International Criminal Court (ICC/Court), lay down its basic structure, functions of the different organs, crimes within its jurisdiction, how cases come before it, what happens when a situation is referred to the Court for investigation, and other fundamental issues related to the Court’s inner workings. This background will help us understand how the Duterte case might be managed by the ICC.
The ICC consists of several organs, namely:
The Presidency, which consists of three judges (the President and two Vice-Presidents) is elected by an absolute majority of the 18 judges of the Court for a maximum of two three-year terms. Its primary mandate is to administer the Court, except the Office of the Prosecutor which is an independent office;
The Registry is tasked to provide administrative and operational support to the Chambers and the Office of the Prosecutor. It is also the Court’s official channel of communication; and,
The Chambers consist of 18 judges divided into three judicial divisions: the Pre-Trial Division (composed of seven judges), the Trial Division (composed of six judges), and the Appeals Division (composed of five judges). They are assigned to the following Chambers: the Pre-Trial Chambers (each composed of one or three judges), the Trial Chambers (each composed of three judges) and the Appeals Chamber (composed of the five judges of the Appeals Division).
As for the Chambers:
The Pre-Trial Chambers, each of which is composed of either one or three judges, resolve issues lodged before it before the trial stage begin;
The Trial Chambers, primarily responsible for making sure that the trials are fair and conducted in an expeditious manner with due regard to the basic rights of the suspects and the protection of the witnesses and victims. They determine the guilt or innocence of the accused and can impose imprisonment and financial penalties.
The Appeals Chamber, composed of the President of the Court and four other judges, may uphold, reverse or amend the decision appealed from, including judgments and sentencing decisions, of the Pre-Trial Chamber or the Trial Chamber.
Once a case is referred to the ICC for investigation, the Office of the Prosecutor determines the jurisdiction of the Court with respect to the alleged crimes taking into account his/her thorough analysis of the available information, to determine whether there is a reasonable basis to proceed with an investigation. It is likewise the task of the Prosecution to ascertain whether any national authorities are conducting a genuine investigation or trial of the alleged perpetrators of the crimes, as well as to notify the States Parties and other States which may have jurisdiction of its intention to initiate an investigation.
The Pre-Trial Chamber may, at the request of the Prosecution, issue a warrant of arrest or summons to appear if there are reasonable grounds to believe that the person concerned has committed a crime within the Court’s jurisdiction. The warrant is issued if it appears necessary to ensure that the person will actually appear at trial, that he or she will not obstruct or endanger the investigation or the Court’s proceedings, or to prevent the person from continuing to commit crimes.
The ICC, having no police force of its own, relies on State cooperation, which is essential to the arrest and surrender of suspects. As such, States Parties, which are signatories to the Rome Statute, are duty bound to cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court. Warrants of arrest may be enforced by the States. Hence, while the Court functions as the judicial pillar, the operational pillar belongs to States, including the enforcement of Court’s orders.
Trials proper take place at the seat of the Court in The Hague, unless otherwise decided by the judges to hold the trial in some other venue. The presence of the accused at his or her trial is a must. A Public trial will be held unless a closed session is held in order for the protection and safety of victims and witnesses or the confidentiality of sensitive evidentiary material.
Judgment and sentence are rendered after the prosecution as well as defence have made their closing arguments. After which, the judges may decide to find the accused guilty or not guilty. The reading of the sentence is done publicly and, wherever possible, in the presence of the accused, and victims or their legal representatives, if they have taken part in the proceedings.
Imposable penalties include a prison sentence, to which may be added a fine or forfeiture of the proceeds, property and assets derived directly or indirectly from the crime committed. No death sentence may be imposed, with the maximum sentence of imprisonment up to 30 years. However, in extreme and extraordinarily heinous crimes, a term of life imprisonment may be imposed. Service of sentence may be done in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept convicted persons.
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