If charges have to be filed against someone suspected of war crimes at the International Criminal Court in The Hague, what happens? Who can file charges? What happens to the detainee?
The International Criminal Court in The Hague
engages in the prosecution of individuals for
- war crimes
- crimes against humanity
- genocide .
The International Criminal Court only handles cases:
- if the country where the crime was committed, or the country from which the perpetrator comes, is affiliated to the Court.
- The condition is that states that do have jurisdiction are not willing or able to investigate or handle the case themselves.
- The crimes must have been committed after July 1, 2002.
History
Since the founding of the United Nations (1945), there has been a need to establish an International Criminal Court.
However, continuing divisions among UN member states on this issue have held it back for a very long time.
Over the years, incidental tribunals were set up to denounce war crimes, such as the International Criminal Tribunal for the former Yugoslavia and the Rwanda Tribunal. The proven necessity of these tribunals accelerated the establishment of an international criminal law institute.
- In 1998, a completed draft text for the statutes of the International Criminal Court was published: the Rome Statute.
- On April 11, 2002, the required number of sixty ratifying countries was reached, allowing the International Criminal Court to begin operations on July 1, 2002.
- In 2002, the European Council welcomed the ICC and stated that it considers it of great importance for the defense of fundamental human rights.
- The International Criminal Court must play an essential role in preventing impunity for genocide, crimes against humanity and war crimes.
Procedure leading to the prosecution of a criminal
The International Criminal Court is an independent institution that works closely with the United Nations.
The chief prosecutor at the International Criminal Court in 2011 is the Argentinian Luis Moreno-Ocampo. The function of the chief prosecutor is in principle the same as that of the public prosecutor in Dutch criminal cases.
Opening of the investigation:
the prosecutor can open an official investigation leading to prosecution in three cases:
- If a State Party itself refers a situation to the ICC,
- the United Nations Security Council may refer any situation to the Prosecutor under Chapter VII of the Charter of the United Nations,
- the Prosecutor may, on his own initiative (,proprio motu,), subject to the approval of the Preliminary Chamber of the ICC, investigate alleged crimes within the jurisdiction of the Court, committed in the territory of a State Party or by a person with the nationality of a signatory state.
After the Prosecutor’s Office has carried out investigative missions, arrest warrants can be issued if there are sufficient ‘indications of crimes covered by the Rome Statute’. In the event of a request from the United Nations (as it decided in February 2011 to investigate Gaddafi and his two sons), the prosecutor immediately issues arrest warrants.
The detention (prison position) of the arrested person
- The ICC detention center is located in a Dutch prison in Scheveningen
- The ICC detention center must ensure safe, secure and humane custody of persons arrested by the International Criminal Court.
- The ICC Center Manager has overall responsibility for all aspects of the management of the detention center, including security and order.
- The administrator shall take all decisions as laid down in the rules of Section 90 of the Statute of the Court.
- The ICC administrator makes every effort to ensure the mental, physical and spiritual well-being of arrested persons within an efficient detention system, with attention to their cultural diversity and their development as individuals.
- To achieve this goal, the detention center’s daily program allows the arrested persons to have access to fresh air, recreational time and sporting activities. They have access to the library, can follow the news and watch television.
- Detainees have access to computer facilities to work on their own cases.
- If necessary, detainees are given the opportunity to take computer courses.
- Each detainee has a computer in his/her cell, which is linked to a specific Court computer.
Right to privacy in the ICC detention center
Only the detainee’s defense has access to the detainee’s computer.
The defense may upload case-related material to which the defendant may access and comment. The right of a detainee to privacy with his/her defense is recognized and the importance for him/her to communicate freely with the diplomatic or consular representative of his/her country of origin. An arrested person has the right to confidential communication with persons who fall under these two categories.
In addition, detainees are entitled to visits from a pastor or spiritual advisor of their religion or belief, for which purpose an area within the detention center has been allocated.
Family visit
With a view to maintaining family ties, as determined in the regulations of the registry, the administrator pays special attention to visits by the family and visits by the spouse or partner of the arrested person.
The administrator can, if necessary, take measures to protect the family. assist with the necessary procedures for this.
Detainees are provided with appropriately prepared food that meets the quality and quantity of the standards of dietetics and modern hygiene. In addition, detainees are allowed to cook for themselves. They may submit a shopping list to the detention center for this purpose.
The International Red Cross as the controlling body
Under the agreement between the International Criminal Court and the International Committee of the Red Cross (ICRC), concluded on March 29, 2006, the ICRC, acting as the control body, has unrestricted access to the detention center.
ICRC delegates may visit the ICC unannounced for the purpose of investigating the treatment of detainees, their living conditions and their physical and psychological well-being in accordance with generally accepted international standards for the treatment of persons deprived of liberty.
Arrested persons are innocent until proven guilty.
If the detainee is convicted of crimes under the jurisdiction of the ICC, they do not serve their sentence in the ICC detention center because it is not a facility for the custody of convicted prisoners .
They will generally be transferred to another prison in the Netherlands or elsewhere if this is agreed with the original complaining authority or country.
It is possible that the ICC detention center will deny contact with co-offenders and co-detainees in connection with the charges.
read more
- The International Criminal Court: the crimes
- The operation of the International Criminal Tribunal for the former Yugoslavia
- Immunity or non-prosecution of criminal heads of state
- Conviction and execution of (ex) heads of state
- The illness excuse for extradition for war crimes