The Rome Statute

Introduction
The United Nations has always been of the opinion that the most effective
and efficient way to put an end to human suffering and atrocities faced by
people is to put a full stop to conflicts in the first place. With this view,
history has witnessed the creation of multiple statutes and treaties with
the objective of ensuring world peace. Especially, the post-COVID world
requires all the nations to move forward in a united manner in order to
deal with the problems that are thrown at humankind. One such treaty is
the Rome Statute which was established with the objective of ensuring
justice to all. The status quo makes the discussion of the treaty more
relevant now than ever.

The Rome Statute

The Rome Statute is nothing but an effort that focuses on the advocacy of
human rights and the promotion of international justice to ensure world
peace. The treaty was adopted at the United Nations Diplomatic
Conference of Plenipotentiaries held in Rome, Italy on 17th, 1998, but
only came into force on 1st, 2002, with over 120 countries being party to
the treaty. The Rome Statute consists of 13 parts and 128 Articles; the
Preamble is based on the recognition of the atrocities that humans face
that threaten the peace and security of the world at large, and the treaty
serves as a means of resolution of these atrocities.

To celebrate the signing of the Rome Statute and commemorate this

significant effort towards the supremacy of justice and protection of
human rights, 17th July is celebrated as World Day for International
Justice every year. The Rome Statute is also known as the ‘International
Criminal Court Statute’ since it established the International Criminal
Court (ICC).

The basic idea behind establishing the ICC was to create an apparatus to
tackle crimes that affect the international community. Additionally, the
Rome Statute also establishes the Assembly of State Parties and the Trust
Fund for Victims, both of which act as catalysts for the proper functioning
of the ICC. All of these organs that find their origin in the Rome Statute
are discussed in this article.

Objective of the Rome Statute

The world was confronted with an extensive increase in atrocities against
humanity, especially after World War II, making the entire international
community desperate for justice and having to rebuild the world so torn
apart by war. It became an immediate priority to prosecute those
committing heinous crimes, which came to be referred to as ‘crimes
against humanity’. However, state adjudication mechanisms were not
considered credible to cater to international violations of humanitarian
law. As a result, an initiative was taken by the international community to
combat the worst possible atrocities known to humankind and create an
interconnected platform to deal with such crimes at a global level.
Subsequently, the Rome Statute came into being, which further
established the ICC to prevent the most severe crimes from going
unpunished and enhance respect for international law.

History of the Rome Statute

The road to the Rome Statute was long and included many trials and
errors. The intent to create a global platform for dealing with global
crimes dates back to the early 19th century. Soon after World War II,
efforts were made to create a permanent court for crimes against
humanity, but failed. The United Nations General Assembly(UNGA)
adopted the Convention on the Prevention and Punishment of the Crime of
Genocide in 1948 to try criminals by an international tribunal and further
invited the International Law Commission (ILC) to establish a more
permanent structure to try people accused of genocide. The ILC drafted
such a statute, but this initiative was eventually abandoned. The Croat–
Bosniak War, which led to the commission of crimes against humanity,
war crimes, and genocide, pushed the UN Security Council to establish
two ad hoc tribunals to try these crimes. However, a need for a more
permanent structure was felt. The International Law Commission (ILC)
1994 presented its final draft for the ICC and asked for a conference to be
convened for evaluation of the statute and subsequent enactment.

For this purpose, the General Assembly established the Ad Hoc

Committee on the Establishment of an International Criminal Court, which
met twice in 1995. After analysing the report of the above committee, a
Preparatory Committee was formulated by the UNGC to consolidate the
draft finally. For two years, starting in 1996 to 1998, a total of six
meetings were held by the Preparatory Committee in this regard. The
United Nations Conference of Plenipotentiaries, also known as the Rome
Conference, took place from 15th June till 17th July 1998 with participation
from over 160 governments. At last, 120 nations voted in favor of the
Rome Statute of the International Criminal Court and 7 nations against
the same which included the United States, Israel, China, Iraq, Yemen,
Libya, and Qatar. After heightened emotional deliberation and discussion,
the Rome Statute was finally established on the 17th of July, 1998. As of
today, 123 states are party to the Rome Statute.
Jurisdiction of the Rome Statute
The following four core international crimes were essentially established
by the Rome Statute, and these crimes are not subjected to the statute of
limitation. Further, the ICC can only adjudicate these crimes when the
domestic courts are unwilling or unable to do the same, or if the United
Nations Security Council authorizes it:

Genocide
Genocide has been defined in Article 6 of the Rome Statute as acts that
are committed with the intention of harming a national, ethnic, racial, or
religious group, and this would include:

 Killing of the members of that group,

 Physical or mental harm to a person from the group,
 Taking effective steps to prevent reproduction in that group,
 Moving of children in the group to other groups.
It is to be noted that the crime of genocide is not committed randomly
and is meant to target specific groups due to their race, religion, or
ethnicity. The actual commission, or in other words, actus reus is not
necessary to constitute genocide; physical and biological restrictions and
harm complimented by the elimination of a particular group constitute
genocide.

Crimes against humanity

Crimes against humanity have not been defined in any other statute or
treaty. However, the Rome Statute defines it under Article 7 as acts
committed on a large scale and is a systematic attack against a civilian
population. These include:

 Murder;
 Extermination;
 Enslavement, deportation, or forcible transfer of population;
 Imprisonment;
 Torture;
 Sexual Violence;
 Persecution against an identifiable group;
 Enforced disappearance of persons;
 The crime of apartheid;
 Other inhumane acts of a similar character intentionally cause
great suffering or serious injury to the body or mental or
physical health.

War crimes
War crimes have been listed and codified in multiple documents and
legislation such as International Humanitarian Law (the
Hague and Geneva Conventions) and International Criminal Law treaties
such as the Rome Statute itself.

The Rome Statute defines war crimes under Article 8. It essentially entails
a breach of the 1949 Geneva Convention. This includes:

 Killing, inhumane treatment, torture, or causing serious injury to

the body and health.
 Destruction of property that is not justified by military necessity
against the sick, wounded, and shipwrecked persons not taking
part in hostilities, prisoners of war, and other detainees,
civilians, and civilian objects.
 Other violations of laws and customs, such as initiating attacks
on civilians, attacking and bombarding places that are
undefended, and partaking in the use of poisoned weapons.
Furthermore, violation of the laws or customs of war would also come
under war crimes, and it includes:

 Atrocities or offenses against persons or property, constituting

violations of the laws or customs of war;
 Murder, ill-treatment, or deportation to slave labor or for any
other purpose of the civilian population in occupied territory;
 Murder or ill-treatment of prisoners of war or persons on the
seas;
 Killing of hostages;
 Torture or inhuman treatment, including biological experiments;
 Plunder of public or private property;
 Wanton destruction of cities, towns, or villages;
 Devastation not justified by military necessity.

Crimes of aggression
The fourth crime that falls within the jurisdiction of the ICC but remains
more or less unclear is referred to as the crime of aggression. According
to the Rome Statute, it refers to the use of armed force by a state against
the sovereignty, integrity, or independence of another state. Even the
Rome Statute adopted the definition at its first review conference of the
Statute that was held in 2010.

International Criminal Court under the

Rome Statute
The International Criminal Court traces its origins to the Rome Statute
and was established as a permanent judicial mechanism with the purpose
of dealing with, and subsequently trying individuals who are accused of
crimes that affect the entirety of the international community, more
specifically, the four core international crimes specified in the Rome
Statute. The ICC is headquartered in the Netherlands at Hague. It serves
as the most important aspect of the Rome Statute which receives aid from
other organs formed under the Rome Statute.

The ICC serves the purpose of being a court of last resort, meaning that
when a national court is unable or unwilling to investigate or prosecute a
given case, failing to act, the ICC takes over. However, it is pertinent to
note that the ICC was not established as a substitute for the national
courts, but only as a mechanism to deal with crimes when the national
courts are unable to carry out a proper investigation into the same. The
Rome Statute formulated the ICC with the basic purpose of protecting
human rights at an international level and holding those accountable who
are responsible for the commission of crimes entailing a violation of
human rights; some of the worst crimes that can be committed.

Role of International Criminal Court

The Rome Statute mandates the ICC to perform certain key functions for
the overall achievement of the objectives of the treaty:

1. The ICC is an integrated mechanism that is required to

adjudicate upon the individuals who are accused of the four core
international crimes, as established by the Rome Statute since,
for the longest time, nations have felt the need to hold those
accountable who commit these serious crimes, especially
because the national courts are unwilling to act on such cases
due to internal systematic failures.
2. The ICC is entrusted with the responsibility of promoting
international justice. It serves as a more structured mechanism
to appropriately deal with these crimes, given how grave they
are and their impact on global peace. The ICC has replaced the
ad hoc tribunals.
3. The ICC must also take into account the role played by the UN
Security Council. The UN Security Council plays an important role
in maintaining international peace and security and has the
authority to refer cases to the ICC for investigation.

Structure of International Criminal Court

The ICC has four principal organs:

 the Presidency,
 the Chambers,
 the Office of the Prosecutor, and
  the Registry.
The Presidency, or the Head of the Court, is formed by 3 judges who are
elected by a majority of 18 judges. The Presidency is responsible for
catering to the proper functioning of the Court and acting as the face of
the ICC in global stature.

There are three judicial divisions in the court, namely, pre-trial, trial, and
appeal, and these functions are fulfilled by the 18 judges who form
the Chambers. They are entrusted with the responsibility of carrying out
a fair and expeditious trial, and further have to decide the admissibility of
the case before the court. Additionally, they protect the rights of both the
accused as well as the victim.

The Office of the Prosecutor is an independent body of the Court and is

responsible for analyzing the information received on potential crimes that
are within the jurisdiction of the ICC. They are to determine the validity of
the information received and accordingly conduct an investigation and
pursue the case before the Chamber of the Court.

The last organ of the ICC is the Registry which is required to support the
Court in carrying out its functions.

Process followed by International Criminal

Court
The process that is followed by the ICC to perform its role as an
international judicial mechanism is as follows:

Step 1: Determining the validity of information

received
The purpose of the ICC is to ensure justice when domestic courts are
unable to do so. Therefore, any state may request the office of prosecutor
to carry out an investigation on a specific matter that would come under
their jurisdiction. Additionally, such a state is not required to mandatorily
be a party to the Rome Statute in order to seek the assistance of the ICC
in particular cases. The United Nations Security Council also has the
authority to ask the ICC to examine specific matters. Following this, the
prosecutor may initiate an investigation after a primary examination of
the information received. This is better known as the process of referrals.

Step 2: Analysis of information received

On receipt of information either by any state or by the UN Security
Council, the prosecutor is required to decipher whether the case would fall
within the jurisdiction of the ICC or not and also determines whether the
case would be considered under the four core international crimes, as
explained above. After understanding the validity of the referral so
received, the ICC will further inform the relevant state parties about the
initiation of the investigation.

Step 3: Conducting the investigation

After verifying the information received, the prosecutor commences the
process of investigation which involves the collection and examination of
evidence. The state parties may also assist in this process. After a
preliminary investigation, based on the findings, the prosecutor may
approach the judges of the ICC to either issue a warrant of arrest or a
summon to appear.

Step 4: Arrest
Now, a warrant of arrest or even a summons can only be issued after
obtaining prior permission from the pre-trial chamber. These are only
issues either for the appearance of the accused, or to prevent the accused
from committing further crimes.

Step 5: Charges before trial

Once the suspect appears in Court, the Chambers have 3 options:

1. Confirm the charges,

2. Adjourn the proceedings due to lack of evidence and give
instructions accordingly, or
3. Decline the charges in their entirety.
If the first option is opted for, the trial chamber begins the trial, specifying
all the issues that shall be considered thereof.

Step 6: The trial

The first step in this process is asking the accused whether he pleads
guilty or not. If there is an admission of guilt, it is the responsibility of the
trial chamber to fully inform the accused of the consequences of such
admission which is followed by their conviction,
However, if there is no admission of guilt, the trial then proceeds wherein
the burden of proof of the charges is upon the prosecution and material
evidence is required to be produced.
Step 7: Judgment
Once both the parties are heard, witnesses are examined, and the entire
proceeding is conducted in a free and fair manner, it is upon the judge to
determine the conclusion of the trial, and accordingly either punish with a
fine or any other manner or acquit the accused. It is to be noted that the
maximum sentence the ICC can award is 30 years and a life sentence can
be awarded in special cases. The imprisonment of the accused is governed
by the respective state.

Step 8: Appeal
All the parties involved have the right to appeal the judgment given by the
trial chamber to the appeal chamber. Such appeal may lie against any
procedural errors or wrongful conviction or acquittal. The role of the
appeal chamber is to come to the conclusion of whether the judgment by
the trial chamber is to be reversed, altered, or upheld.

High-profile ICC cases

The following are some of the first and most significant cases that the ICC
has tried:

The Prosecutor v. Thomas Lubanga(2012)

The first hearing conducted by the ICC was in 2006 when the question
before the Court was whether to charge Thomas Lubanga. He was
accused of recruiting child soldiers in the Democratic Republic of Congo.
The ICC held that the accused was guilty of the offense in 2012 and a 14-
year sentence was imposed on him.

The Prosecutor v. Abdel Raheem Muhammad

Hussein (2012)
The ICC also issued an arrest warrant on December 2, 2011, for Sudan’s
defense minister, Abdelrahim Mohamed Hussein, for 7 crimes against
humanity and 6 war crimes in total that were committed in Darfur from
August 2003 to March 2004.

The Prosecutor v. Omar Hassan Ahmad Al Bashir

(2009)
A similar warrant as in the above case was issued against Sudanese
President, Omar Hassan Ahmad al-Bashir for genocide in Darfur and this
was the first time the Court issues a warrant for a head of state.

The Prosecutor v. Ahmad Al Faqi Al Mahdi (2016)

In September 2016, the Islamic Militant, Ahmad al-Faqi al-Mahdi was
sentenced to nine years of prison after pleading guilty to war crimes which
included the destruction of religious historic monuments in Mali.

The Assembly of State Parties

The Assembly of State Parties (“the Assembly”) is a legislative body that
consists of representatives on behalf of all states who are party to the
Rome Statute and are responsible for managerial oversight of the ICC.
Article 112 of the Rome Statute governs the structure and functioning of
the Assembly of State Parties. According to Article 112 of the Rome
Statute, the Assembly is required to meet at the headquarters of the
Statute or UN Headquarters in New York once a year, and may even
convene a meeting in special circumstances. These annual sessions are
held for discussing basic matters such as the budget of the court, audit
reports, activities of the court, regulation of Trust funds for victims, etc.
Moreover, the election of judges and other members of the ICC is also
upon the Assembly.

The most recent session of the Assembly was held from 6th December
2021 to 10th December 2021 which was the Assembly’s twentieth session;
the next session is to be held from 5th December 2022 to 10th December
2022.

The Twentieth session witnessed the adoption of five resolutions which

included:

 Budget for 2022;

 Cooperation;
 Review of the ICC and the Rome Statute system to make it more
effective;
 Strengthening the ICC and Assembly of State Parties;
 Outcome of work of the Study Group on Governance

Structure of the Assembly of State Parties

The Assembly of State Parties consists of five organs for the effective and
efficient functioning of the body:
 1. Secretariat of the Assembly of State Parties: The Assembly
adopted a Permanent Secretariat of the Assembly at its second
session.
2. Bureau of the Assembly: The bureau consists of a President,
two Vice-presidents, and 18 members that are all elected by the
Assembly for a three-year term.
3. Committee on Budget and Finance: The Committee on
Budget and Finance of the ICC was established in April, 2003. It
is responsible for managing the financial and budgetary functions
of the Court. This 12-member committee consists of experts in
international financial matters.
4. Oversight Committee on permanent premises: It was only
in December 2007 that the Assembly decided that the ICC must
be built on a permanent premise. For this purpose, the Oversight
Committee was established to provide strategic oversight of this
project. In 2015, the ICC was provided with a permanent
premise in The Hague, the Netherlands.
5. Board of Directors of the Trust Fund for Victims: The Trust
Fund for Victims is discussed in the next part of this article.
However, for its regulation, a five-member board is elected by
the Assembly for a term of three years. This board is responsible
for the activities and projects of the fund.

The Trust Fund for victims under Article

19 of the Rome Statute
The Trust Fund for Victims (TFV) has a separate status from the ICC and
was established by the Assembly of State Parties in 2004 by virtue of
Article 19 of the Rome Statute.

The TFV was established to assist those who are the victims of the crimes
and cases that are being dealt with by the International Criminal Court.
The purpose of the Rome Statute is to hold those accountable who are
responsible for the commission of serious crimes and further help those
who have suffered in this process’ TFV enhances this objective.

The victims of genocide, war crime, and crimes against humanity are
given a voice through this platform to increase awareness about the same
in the global sphere. Additionally, multiple self-help projects are also built
to ensure that the victims are given another chance to better their lives
after being subjected to heinous crimes.

Purpose
The Rome Statute has established a system to provide retributive as well
as a restorative mechanism of providing justice to victims through TFV.
The Assembly of States Parties (ASP) created the Trust Fund for Victims,
“for the benefit of victims of crimes within the jurisdiction of the Court,
and the families of such victims”. The basic objective of the TFV is to
promote empowerment, hope, and dignity of those who are most
vulnerable since they are victims of the worst possible crimes and to help
them rebuild their lives. Merely punishing those who commit the crimes is
not enough; the victims should be allowed to go back to a dignified life,
one that they deserve. This fund plays a significant role in ensuring that
the international promise for justice with which the Rome Statute was
established is fulfilled.

How does the Trust Fund for victims help

them?
The victims of crimes that come under the jurisdiction of the ICC require
support not just by way of reparation, but as well as material support
such as rehabilitation. While the ICC is responsible for the former, the TFV
deals with the latter and provides the victims support in a three-fold
manner:

1. Physical rehabilitation: Victims who have suffered physical

injury are assisted so as to help them recover and resume their
roles as responsible members of society.
2. Mental Rehabilitation: Cost-effective psychological, social, and
other health benefits are given to the victims who have suffered
mentally and are helped to recover.
3. Material Support: This entails providing education and
economic support to the victims and helping them create
employment opportunities.

Conclusion
In 2014, United Nations General Assembly President, John Ashe stated,
“Stability and peace are essential enablers of sustainable development,
just as violence is one of its greatest obstacles”. We are living in 2022,
and this statement holds more relevance now than ever. The importance
of dealing with conflict and violence has become necessary, given the
unprecedented times we are living in, owing to the pandemic. Social
stability allows all individuals in a society to align their personal goals with
the broader goals of the world, without disruption. In this process, the
protection of all individuals becomes necessary. Apropos of this, the value
of the Rome Statute cannot be enhanced further.

The Rome Statute provides stability to the nations by allowing them to

approach a resolution mechanism when states are unable to deal with
certain matters. There is a need for a larger platform to discuss issues
that impact all nations in the long run, and the Rome Statute is the
answer.