International Criminal Court ("ICC") is a court at the international level that has the authority to adjudicate extraordinary crimes at the international level. The ICC was established based on the birth of the agreement The Rome Statute of the International Criminal Court ("Statute Rome") which came into effect on July 18, 2002.
Normatively, the ICC is authorized to prosecute several legal subjects who commit extraordinary crimes at the international level. Article 5 of the Rome Statute states that there are 4 forms of these crimes, namely genocide (the crime of genocide), crime against humanity (the crime against humanity), war crime (war crime), and the crime of aggression (the crime of aggression).
Crimes Against Humanity in the Rome Statute
Crimes against humanity are crimes directed at the civilian population. They are broad and systematic in nature, and rely on the full awareness of the perpetrators. Articles 7 paragraphs 1, 2, and 3 of the Rome Statute regulate at least 11 forms of crimes against humanity.
The first form is murder. This is a crime that attacks the lives of civilians through a series of specific acts.
The second form is extermination. This is a crime that eliminates the access of civilians to live in society, including destroying food and medicine.
The third form is enslavement. This crime includes human trafficking, especially against vulnerable groups such as women and children.
The fourth form is forced displacementThe perpetrators of this crime undertake any effort to make the civilian population leave their residences without valid reasons under international law.
The fifth form is imprisonment or severe deprivation of physical liberty in violation of fundamental rules of international law.
The sixth form is tortureThe perpetrators of this crime intentionally inflict severe pain or suffering by physically or mentally attacking targeted civilian populations.
The seventh form is acts pertaining to the sexuality of the body, such as rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization, or other forms of severe sexual violence.
The eighth form is collective persecution of a group carried out on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law.
The ninth form is enforced disappearanceThis crime includes arrest, detention, imprisonment carried out on the basis of the authority, support, or tacit consent of a state or a political organization. Furthermore, this crime is accompanied by a refusal to acknowledge these acts or a refusal to provide information regarding the whereabouts of the victims of the crime so that, over a long period of time, the victims are outside the protection of the law.
The tenth form is apartheidThis crime includes oppression and domination by one racial group over another racial group in an institutional regime. The oppressive group commits this crime with the aim of maintaining the regime.
The last form is other acts of an equivalent nature to the preceding forms and causing severe suffering, whether physical or mental, to the victim.
It should be noted that, in judging all forms of crimes against humanity, there are 2 elements that need to be inherent in the perpetrator.
The first element is mens rea in the form of intentionality or full awareness of the perpetrator to commit the crime.
The second element is actus reus in the form of the characteristics of the crime against humanity committed by the perpetrator. This element is also referred to as the objective element. Article 7 of the Rome Statute regulates the form of this element as follows:
- Widespread (widespread);
- Systematic (systematic attack);
- Occurring repeatedly (multiple commission of acts);
- Directed against a civilian population (against any civilian population); and
- Conducted based on state or organizational policy (based on state or organizational policy).
Jurisdiction of the International Criminal Court
In a journal article titled ICC Jurisdiction over Non-Member States of the Rome Statute 1998, Sefriani stated that the ICC is a court that complements the existence of domestic courts. The ICC can only prosecute perpetrators of crimes if the state court of the perpetrator's location is unable and/or unwilling to carry out the judicial process. The ICC's capacity exists based on obligations regulated in international law and has an impact on countries that have not even ratified the Rome Statute.
For the record, the legal subjects that can be tried by the ICC are individuals, especially those who have the status of citizens of states parties to the Rome Statute. Individuals who do not come from states parties can also be tried by the ICC after going through a certain agreement mechanism.
According to Widiada Gunakaya, in a journal article titled The Role and Prospects of the "International Criminal Court" as an International Criminal Policy in Overcoming "International Crimes", the ICC will implement specific policies when trying individuals as perpetrators of crimes. The ICC will first pay attention to whether the domestic court is able to try them. If there is an indication that the domestic court is unable and/or unwilling to try the perpetrator, then the ICC can act to carry out the judicial process.
There are a number of cases that show how the ICC tries individuals who commit crimes against humanity.
The first case is the Congo Conflict which occurred in 1998-2003. This was a case of violence against residents of the Hutu-Tutsi tribes that claimed 4 million lives. This case involved many local terrorist organizations, such as the Uni des Patriotes Congolais (UPC), The Forces Patriotiques pour la Liberation du Congo (FPLC), The Forces de Resistance Patriotiques en Ituri (FRPI), and The Front des Nationalistess et Integrationnistes (FNI). In the end, the ICC tried Thomas Lubanga Dyilo, as the initiator of the UPC and FPLC, along with Germain Katanga as the commander of the FRPI and Mathieu Ngudjolo Chui as the former leader of the FNI.
The next case is the Uganda Conflict. This case involved the Ugandan military and The Lord’s Resistance Army (LRA). The ICC conducted an investigation on July 8, 2005, against individuals suspected of being perpetrators of crimes, namely Joseph Kony Commander (LRA), Vincent Otti Deputy Chairman of the LRA Commander, Okot Odhiambo Deputy Commander of the LRA Army, and Dominic Ongwen was the Brigade Commander of the LRA. Unfortunately, the suspected perpetrators have not been arrested and are still being pursued.
An equally important case is the crimes of William Ruto. This case involves the Deputy President of Kenya, William Ruto, for alleged crimes against humanity. Ruto was prosecuted as the mastermind of the violence over the elections in Kenya in 2007. The ICC's findings revealed that, in the election, Ruto formed a coalition that then carried out attacks against every group of different ethnicities in the Kenyan territory.
In handling the above cases, the ICC works with mechanisms regulated in the Rome Statute. There are several cases that have not been successfully handled by the ICC. This is due to the Rome Statute mechanism which applies the principle of cooperation. Ideally, the Rome Statute regulates an integrative principle so that all countries in the world can ratify it. If the Rome Statute is ratified by the whole world, handling cases of crimes against humanity can be more effective.
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