Rights of Accused at the ICC, Human Desirable or Popular States

مرداد 4, 1396


Abdol Hossein Barzegarzadeh


Equality of arms is a fundamental fair criminal procedure principle. This means the victim and the accused should be given equal opportunities to file their claims and defend charges.
The prosecuting attorney, due to the enjoyment of the sovereignty facilities, is said to be a serious impediment to the exercise of this principle in domestic criminal law; if the accused is left unsupported, the release of the accused, if innocent, from the charges will be difficult. Accused rights to defend, such as the presumption of innocence, a lawyer, enough time to defend and trial by presence are among the rights that are taken into consideration. The international criminal law, following the lead of the domestic law, has moved in this direction and it has provided the accused with extensive rights. These supports can, perhaps, be evaluated in domestic law within the framework of the fair trial but it is deemed unfair in the international criminal courts according to the position of the criminals. This article seeks to prove that the accused broad rights in the Rome Statute of the International Criminal undermine the aforesaid presumption and it makes the international criminal code of law more of a politician desirable nature than human desirable.

Keywords: the principle of equality of arms, culprit rights, victim rights, fair trial, impunity


In spite of the ideas held by the jurists believing in sovereignty-oriented international law, sovereignty is the main and the perpetual hindrance to the international criminal law development. No single government can stand even tiniest interventions in its sovereignty. Naturally, irreverent and forcible interferences would be, absolutely, intolerable by the governors. The aforementioned feature to wit the forcible intervention of the international criminal law, considered as a suppressive collection of regulations, is needless of explanation. International criminal law, as the guarantor and guardian of the international order and security as well as the realization of the global criminal justice, should incumbently penalize the violators of the global public order and the most notorious criminals worldwide and in the absence of a global legislature body the states emerge as the founders of international criminal courts. On the other hand, disrupting the international public order and the perpetration of huge international crimes causing the conscience of the entire world to suffer is out of the ordinary individuals’ capacities and the occurrence of such crimes is only expected from the possessors of superior powers. Such a power is called government, state and/or rebel groups in the international law. In other words, the perpetration of the crimes mentioned in article 5 of Rome Statute such as genocide and crimes against humanity and so forth are exclusively carried out by the governments and the powerful rebel groups. It appears that the dual role of the states, that is their concomitantly being considered as the founders and the subjects of the international criminal law, causes the international criminal law to deviate and shift from the path of serving justice to a path of staying observance of the sovereignty rights and this way a great many of barriers may arise before the international justice advancement. Among such barriers are the criminal courts’ dependence on the states, shortcomings regarding the acceptability, the states’ lack of cooperation with ICC, unilateral relationship between the security council and ICC, absence of preliminary, global and compulsory jurisdictions, victim’s constrained rights and extensive rights stipulated for the culprit in the statute and the deficiency of the features such as justness, fairness and the international criminal court’s decrees’ deterrence. Thus, urged by the necessity to do research in this regard, the current piece of writing is seeking to study two recent issues that are the extensive rights given to the culprit and the constraining of the victim’s right and the absence of an inhibitory effect for the punishments stipulated by the court.

Victim’s Constrained Rights and Culprit’s Extensive Rights in Rome Statute:

The formation of a court should not only be corresponding to the global rules and standards but the trial procedure adopted therein should also conform to the vivid and well-known global principles and standards. Settling down the criminal disputes and allegations is in need of a fair trial entailing a predefined trial procedure and a series of underlying stipulations. Fair trial is a process based on presumption of innocence and preservation of human reverence and adherence to its requirements and necessities annunciates respect-oriented behaviors and decrees founded on justice and fairness. Criminal trial is envisaged fair when it is carried out by a just and impartial court based on the formalities of the law and the culprit’s essential and legal rights are venerated in its course. In such a process, measures such as illegal detention, resorting to force, violence, mental and physical torture, the use of illicit actions, the court’s derailing of impartiality, lack of independence, trial being held behind the closed doors, the imparity of the arms and deprivation of culprit’s defense rights and interdicting a lawyer’s intervention are unjustifiable (Fathi, 2014, 125). Therefore, culprit’s rights are venerable and necessary to be observed as part of human rights. And, the current article is, by no means, seeking to deny or ignore the culprit’s rights in the international criminal courts. However, the victims of crime should be taken into consideration when determining a punishment against a criminal (Cutingham, 1998, 199).

International jurists, assuming a similarity between the international crimes and the domestic ones (Aukerman, 2002, 40), enumerate punishment, rehabilitation, deterrence from the crime repetition, supporting the victims, depriving the criminal from his power and exertion of legal sovereignty as the objectives sought in penalizing the perpetrators of international crimes (Damaska, 2008, 83). But, any effort in line with the inclusion of law on war into the intra-territorial courts was condemned to failure for years. Unfortunately, oppositions to changing the title of intra-territorial atrocities to internal wars was not unique to the states rather the jurists, as well, were not so much willing to generalize war laws to the internal hostilities. One jurist completely cancels the implementation of the international regulations on the internal hostilities and another one, in a book, in 1899, named internal war essentially alien to the international law (Momtaz, 2009, 33). Parallel to this, the presumption of victim and culprit’s rights alignment was forgotten. Despite the multiplicity of the rights preserved for the culprit in international criminal courts, victim’s rights have been made exclusive and summarized to four titles, namely, the right of security, awareness of criminal justice system, enjoyment of a legal representative assistance and, finally, the right to participate in the trial. While the victim right’s of participation in trial process is recounted as a legal masterpiece, but, because the victim’s participation in trial has been subjected to various conditions such as verification of the victim’s competency, the most genuine right of victim and the one reminded of as the fundamental revolution of the victim’s right is wasted. The formal declaration by the office head of Rome Statute Revision Conference in 2010 affirms this claim. He announced that 2648 victims of crimes have applied to take part in trial process and only 770 individuals have been proved competent to participate (Rc-11-Annex.v.a-ENG, 2010, p.88). More interestingly, ICC’s prosecuting attorney claimed, in 23rd of January, 2006, that victim’s participation in the investigation stage is devoid of any statutory foundation (Baumgartner, 2008, p.415) and it will influence fair trial and culprit’s rights (Wemmers, 2006, p.15) all of which are explicit measures taken in line with the wastage and restriction of victims’ rights. Although since the late 19th century and in Hague conferences the unreasonable killing of the innocent human beings was gradually being named war in the interstate relationships and the observation of some minimal human rights in the war times was being titled war laws, the states’ opposition to using war for addressing the domestic conflicts was still carrying on. It continued until the approval of the common article 3 in the fourfold Geneva conference when, finally, the necessity for the codification of rules and regulations for lowering the number of unreasonable killings of the human beings in internal hostilities was authenticated and it was stipulated that “in war times, the individuals having qualifications to be supported by this convention, should be treated humanely under all circumstances and the minimum human rights should be executed without any discrimination for them” (Mehrpur, 2009, 247). However, in spite of war becoming internationally forbidden, internal hostilities were not forbidden due to the existence of the paragraph 7 of article 2 in the charter and as a result of states’ sovereignty-oriented interpretations. This same issue caused the humanistic rights’ laggard in the domestic conflicts. In the meantime, the unrestricted murdering of the human beings and the unaccounted wastage of their rights as well as the never-ending disputes between the sovereignties provided for a gradual growth of these unattended rights and the governments’ violation of human rights was criminalized upon the blurry formation of ICCs’ first generation. Nevertheless, the necessity to form Nuerenberg and Tokyo criminal courts was more in line with the restoration of “international peace and security” and the compensation for the victims’ losses was next in rank (Musila, 2009, p.15). It was at the fear of the Security Council procedure being turned to exemplary international criminal courts based on common laws that the states agreed upon the formation of ICC at which time it was made clear that the governments will be held accountable in near future. Thus, the extant procedures made the governors think of human rights. But, interestingly, a right named culprit right was more highlighted among all the human right statures.

Although ICC’s Statute announces, in its preface, that the member countries are determined to put an end to the immunity of crime perpetrators and their dodging of the punishment as well as to taking proactive measures in regard of the international crimes, in lieu of being a document implying the ways the criminals should be punished and deterred and instead of explaining the various aspects of punishing them, it has become more inclusive of cases guarding and guaranteeing the culprits’ and criminals’ rights as well as proposing ways they can escape trial, and it has become more expressing of methods they can buy themselves time, get alleviations and suspensions in regard of their convictions. The entire Statute is crawling with the dos and don’ts for the prosecuting attorney, the court and its divisions. In the meanwhile, a government being obliged before the court is less seen. Besides, because the governments are more than others aware of the cases of human right violations and wastage and know the methods of dodging the claws of a court and escaping the punishment better than others, parallel to the efforts made by the world’ just individuals in line with the codification of rules against the international criminals, the notorious international criminals, due to their enjoyment of power and , mostly governmental, facilities and complete understanding of the immunities and various sovereignty exemptions, are seeking to neutralize the effects and the advantages of these courts and creation of ways to escape punishments. And, because the crimes put forth in ICC’s Statute are of political and sovereignty type, thus the governments, as culprits in this process, constantly and without it being announced formally, are plotting loopholes, alleviation and suspension of punishments stipulated in the statute. Additionally, knowing that with the existence of articles 27&28 of Rome Statute, the formal positions and the governmental and sovereignty tenures would no longer bring about immunity and freedom from punishments before ICC they have provisioned detailed rights for the culprits in the courts through re-expropriation of the mankind and under the topic of human rights. 

In other words, if the ICC’s supplementary jurisdiction surpasses the jurisdiction of the national governmental court and ICC can pass through the numerous barriers spread by the government for escaping the punishment and begins trying crimes then under such conditions, like Sudan Case and the culprit Umar Al-Bshir’s lawsuit though being really a convict, it will also emerge taking the role of the government. Hence, they have arranged the setting for culprit’s rights in the statute as if it is the ICC and the victim that should be tried. There are numerous rights authenticated in the articles 55&65 and other statutory provisions in favor of the culprit including the forbiddance of forcing the culprit to confess against oneself subject to compulsion, reluctance and threat as well as prohibition of torture, having the right to access a translator free of charge, immunity against apprehension and banning of opinionated detention, having the right to remain silent without clues implying the culprit’s criminality, providing the culprit with trial expenditures, having a lawyer and doing investigations in his presence, the forbiddance of trial in absentia and the definite presence of the culprit in ICC for the initiation of the trial. On the other hand, the entire statute has been conditioned on the cooperation between the states and ICC. For instance, the desolation and the inability combined concomitantly with ICC’s lack of taking appropriate measure in Darfur Case in a weak and poor government like Sudan, besides proving ICC’s inadequacy in confrontation to an element of sovereignty, is indicative of this unfair reality that Umar Al-Bshir will for one time take advantage of the rights and privileges stipulated for the government and another time and in case of likely presence in ICC he will benefit the strapping rights of culprit. As another example, when Milosevic, former president of once Yugoslavia, did not attend ICC to defend himself or introduce a lawyer because he did not authenticate it, ICC went on seeking for the formation of a parallel office with the so-called expression of international defense so as to appoint a lawyer and/or announcing the culprit’s cooperation with ICC as the precondition of trial initiation due to Milosevic’s reluctance to cooperate (Agha’ee Jannat Makan, 2014, 69). And, this extreme discrimination in giving importance to culprit’s rights in the criminal court peaks when the culprit’s confession against oneself is not accepted as it is stated in article 65 of the Statute “if, corresponding to the part (a), in paragraph 8 of article 64, culprit confesses to his or her criminality, it is the duty of the seminal division to verify whether a) the culprit has a full understanding of the essence and consequences resulting from confessing to his or her criminality or not?; b) the confession by culprit has taken place after consulting with a lawyer and voluntarily or not?; and, c) the confession to criminality has been relied on the realities of the lawsuit or not?, And, things of the same kind”.

It can be seen that criminal court is faced with the following stipulations regarding the culprit, 1) based on articles 1&17 of Statute, culprit’s national court has the main and preliminary jurisdiction to try the allegations; 2) corresponding to article 5, the culprit is only held liable against the crimes of devastating major parts of the world because the crimes are made specifically exclusive to four given cases; 3) the culprit should be only a citizen of the member countries and the citizens from the non-member countries and the permanent members of Security Council are almost immune from trial. Because in the first state, corresponding to articles 12&13 of Rome Statute, ICC does not have the competency to independently try lawsuits and in the second state, as well, the veto right of the culprit’s country of citizenship will, surely, lead to the article 16 and the suspension of investigations. 4) Even the court is in need of being vested with the authority from the culprit’s national court for the exertion of its supplementary and secondary jurisdiction and it should expect a six month period of waiting before being able to exert the aforesaid national court’s jurisdiction in all of the states for and against the culprit and this condition is stripped of impartiality constraints. 5) Article 20 of Statute provides for an opportunity of culprit and national court collusion and the formation of a feigned court. 6) Culprit of Rome Court can, based on article 55 of the Statute, render it pending through, among the other means, resorting to remaining silent and via not appointing a lawyer.  7) Because the presentation and the disclosure of almost all documents on criminals depend on the vigor of the governmental documents, thus ICC’s culprit can refrain from delivering many of them corresponding to article 72 of the Statute. 8) ICC has been made bound to supply the culprit’s costs and preserve culprit’s veneration and esteem. In the end, if the culprit, feeling regret and pity for the all crimes s/he has perpetrated, confesses to his or her criminality, again, it is ICC that, corresponding to article 65 of the Statute is obliged to verify whether the confession against oneself by the culprit has been knowingly and intentional and it has to be made clear that s/he has not made a confession against oneself pointlessly. All these cause the proposition of a key question as to, why are ICC culprit’s rights so expanded and extensive? The answer is ICC’s culprit is not anyone but a former and untruthful head of some governments. Thus, due to the fact that the states have to play two roles, as governments and as culprits, before ICC and they enjoy both these rights when tried by ICC, thus, under the shadow of this dual advantage, the only human right provisions practicable are the very culprit’s rights adhered to by international criminal courts.

Some reason that due to the extraordinary importance of the crimes within the jurisdiction of the specialized courts and/or the criminal courts, ignoring the procedural guarantees does not seem logical; and, or, it is not logical for an international court formed in line with preventing from national criminal justice, as a means of revenge, to, personally ignore the fair trial regulations and take avenging measures, so the culprit’s rights should be observed, in its most eminent sense, to, firstly, encourage the cooperation between the states and the court and, secondly, encourage the states to welcome such laws in their domestic courts (Agha’ee Jannat Makani, 2014, 8). Based on what has been said so far, for these individuals the culprit rights in ICCs are so much significant and vital that they expect the international human rights courts stretch their supervision wings to international criminal courts. And, they are so sorry by the idea that the human right institutions have been paralyzed by the mechanisms imposed by the states and they cannot prove their presence in appeal positions of international criminal courts and defend culprits’ rights. The states, as founders of such procedures, speak of culprits’ rights the way that it seems as if the mankind is only the culprit of the international criminal court and the rights are exclusively the culprits’ rights in international criminal procedures. Intentional extremity in expanding the culprit’s rights causes the ICC to keep aloof from one of the main and preliminary objectives, i.e. putting an end to impunity (Benzing and Bergsmo, 2013: 412).

The result is the rarity of the regulations based on which the individuals can, corresponding to the international law documents, implement a special right in the legal courts (Abbasi, 2015, 106). The continuation of the traditional look at the subject of sovereignty by the states, in spite of all the advertisements and slogans pertaining to the human right growth, has caused the governments not to stand any single human rights institution. None of the human rights conventional documents including the global announcement of the human rights, the two pacts and their appended protocols and the international charter of human rights and all of the human right documents derived of the United Nations’ charter such as the human right commission, high commissioner for human rights, practically, do not impose any obligation on the states regarding the human rights. All of the supervising institutions such as the human right committee and the antiracism committee have optional jurisdiction in case complaints are made of the states by the individuals (Mehrpur, 2009, 87). All these efforts, ultimately, prepare reports to be handed to United Nation General Assembly ending in the issuance of an advisory and non-indispensable statement. Therefore, human rights to the possessors of power, including the governments, in its most optimistic form, are downgraded to ethical, not imperative, commitments. But, this same states, besides enjoyment of their governmental rights, in ICC, as well as benefiting from the uttermost extents of culprit’s rights in the courts expect the human rights institutions rise up to defend their unspoiled rights. Therefore, the precedence of the states’ jurisdictions over the ICC’s jurisdiction and the priority of the culprit’s rights over the victims’ rights has produced a collection of regulations entitled to the mankind but in favor of the culprit and this is a shortcoming of ICC and an example of the famous sentence by Spinoza “An individual is right to the extent s/he has power” (Ziya’eeBigdeli, 2009, 13).

The Absence of Justice and Deterrence in the Decrees by ICC:

Punishment, as the society’s response to crime, in an outcome-oriented approach emphasizes the necessity of its efficiency. Such efficiency can take various forms like individual and collective terrifying and deterrence (Gholami and RostamiGhazani, 2014, 51). Therefore, one of the prominent features of criminal justice is its dismaying and preventive aspect. However, jurists believing in the centrality of sovereignty and political power in international law, reason the preservation of international peace and security as the factor contributing to the engagement of penal law in the international law, thus among the two ultimate goals of punishment, namely the punishment-orientation and utilitarianism, they prefer the latter (Moore, 1999, 60). Despite the fact that, today, with the formation of international criminal court and the affirmation of the establishment of international criminal court by more than 120 countries around the globe, the criminal liability of the individuals breaching the human rights has been, at least in theory, authenticated and, though, the feeling that association with the governments brings about a state of impunity has been apparently eradicated, thanks to Rome in this regard, but, in the absence of punishment, deterrence loses its meaning.

As evidenced by the preface in ICC’s Statute, member countries, affirming the perpetration of recent years atrocities and expressing concerns regarding the disconnection of common human beings’ relations, determined to terminate the impunity of the criminals who have intensely agonized the mankind’s conscience, have taken measures to establish such an institution. Thus, this court pursues two substantial objectives, one is punishing the convicts and soothing the pains of the mankind sustaining the crimes and the other is preventing the heinous crimes from recurrence in international areas. Put it differently, the actualization of justice and deterrence are the ultimate goals of international criminal court. Moreover, the court in which the trial does not lead to the realization of justice and mitigation of the losses imposed on the victim and the issuance and the implementation of which decrees do not bring about the grounds on which the convicts are prevented from re-perpetrating crimes cannot be called court. In this regard, Antonio Cassese knows the unfruitfulness of the punishments on the perpetrators of genocides during the WWI as the stimulants of war atrocities perpetrations in WWII by Hitler (Cassese, 1998: 2).

In a draft prepared by international law commission to be presented in Rome Conference regarding the formation of international criminal court, the court could, as stipulated by the articles 75&76, execute incarceration punishments such as life sentence and long term imprisonment, pecuniary punishments, death sentence and penalties on the real persons, dissolution and confiscation of properties and so forth on the legal persons. Although all of the aforesaid fourfold paragraphs were raided by the governors’ criticisms but the criticisms and oppositions on death sentence was more quarrelsome. Countries like Mexico, Spain, Portugal, Chile and Norway opposed life sentence. In regard of the death sentence, the European countries announced their opposition to the insertion of this punishment in the Statute as follows: “firstly, death punishment had been omitted from the domestic laws of those countries and, secondly, as a consequence to the international conventions, they had signed with some countries, they were urged to pursue a policy of opposing the death sentence and, accordingly, they could not enter other conventions contradicting their international commitments. Quite contrarily, the Islamic governments, due to the existence of death sentence in Islam, agreed the insertion of it in the Statute (Shari’atBagheri, 2008, 226). In this way, death punishment was eliminated and life sentence was restricted. Whatever the alleged and justified reasons of the states for the elimination of death sentence in the Statute, they cannot conceal and hide their main intentions for doing so.

Due to the international law being a pure function of the domestic law, it can be concluded that the reasons opined by the opponents and the proponents of death punishment in sociology and economy fields and the effects and outcomes of execution will be similar. Disregarding the time the elimination of death sentence from the states’ national laws would be actualized, and there is no essential flaw in overall elimination of death sentence from the domestic law of all the states, the economical reason of the opponents, implying the human life cannot be counted by dollars, can be accepted but the other reasons proposed by the opponents of death sentence in the area of domestic law and generalizing it to the international law are not at least under the today’s circumstances, persuasive enough. In line with this, the reasoning for the absence of a research on the more influential effect of death sentence in respect to life sentence can be generalized to life sentence swap with 30-year imprisonment, 30-year incarceration with 5-year imprisonment and so forth. Since the opponents’ reasons are predominantly based upon the examples and not the regulations, their authenticity and accuracy of claims cannot be assessed. Also, punishing in the international criminal law differs with the domestic criminal laws. The governors and the individuals close to them usually take roles as seemingly impartial arbitrators in the domestic law so they are exempted from death sentence as from any other punishment. However, in the international law, because the punisher and the sustainer of the punishment are to be assembled in a single superior power, death punishment occurrence is not absolute even in case of it being of a topical nature. Thus, the reasoning adopted by individuals like Cesar Beccaria in the position of defending the harsh capital punishment and substituting it with a softer, but more decisive, punishment justifying that “the definitiveness of a punishment even a moderate one is always accompanied by a more intensive effect than the fear of a terrifying punishment in which there is a hope of escape because when dodging the punishment is rendered impossible, the softest pains agonizes the human soul” (MirmohammadSadeghi, 2008, 382). Doubtful execution of mitigated punishment in the interstate areas and the definitive execution of harsh capital punishment in the domestic law are alone indicative of treating justice with unfairness. Regarding the harshness and anti-humanistic nature of capital punishment, the convict and the victim should be simultaneously taken into consideration and the victim and the victim’s lives should be treated identically and of the same value. According to the extensive rights provided for the culprit in the statute and adhering to cautious and precise trial and the existence of appeal courts and the reduced error likelihood, the necessity for sentencing the perpetrators of crimes subject to article 5 of the Statute to death is in full effect, minimum, until the complete eradication of capital punishment from the states’ national laws. Regarding the pains and agonies and sufferings of the other human beings, it has to be considered that in terms of the crimes subjected to article 5 the issue is quite vice versa since the entire mankind’s conscience including the convicts’ relatives will be harmed as a result of such crimes. Thus, there is much possibility that the convicts’ relatives might not feel so much pain. The pains, if any, pertain to the death of an individual whose least charge is the murdering of a great many of human beings, so it will not be so much difficult.

The present article, by no means, seeking to oppose the elimination of capital punishment rather the dual and discriminative behavior of the governments in regard of the death sentence is criticized. In the domestic law, the states, in confrontation with the opponents, particularly in war times, know capital punishment as an exact example of justice and deterrence but it is introduced as harsh and non-humanistic for them and their associates. The approval and endorsement of every international document including the criminal court’s statute makes the endorsing government committed to the articles therein. The states endorsing the international documents should make changes in their domestic statutory provisions in terms of sections contradicting the international commitments so as to attain better results. But it is observed that states have not taken any steps in their domestic laws to adjust the capital punishment-related regulations. The main question raised in this regard is that in response to what international law requirements, article 80 of the statute, in a clear deviation and unlike the imperative international rules, has made the international law committed to adjust itself to the states’ domestic laws in lieu of the domestic law’s commitment to the international laws for bringing about an adjustment? That is because the article stipulates that “none of the aforementioned cases in this chapter of the statute influence the execution of the punishments provisioned by the national regulation”. How is it possible that capital punishment is regarded as more or less humane and legitimate in domestic laws and inhumane in international criminal court?

It might be claimed that capital punishment elimination from the criminal court haphazardly took place under many countries’ opposition and it has been accepted solely as a result of human rights. But, scrutiny in states’ national rights is in complete contradiction with such a claim, because Argentina’s military justice code, enacted in 1984, in spite of eliminating capital punishment for crimes such as treason and espionage, allows death sentence. Republic of Brazil’s first constitution revokes capital punishment but it does not allow it on war times. Corresponding to Canada’s “national defense law”, capital punishment is legitimate in cases like war. Cyprus’s “military Punitive Code”, article 27 of El Salvador’s constitution of 1983, Fiji’s law of 1979, Zionist regime’s law of 1945, article 27 of Italy’s 1947 constitution, “Malta’s “armed forces law” and the constitutions of countries like Mexico, Nepal, Peru, Paraguay, Spain, England and many of the other countries, in spite of eliminating capital punishment for crimes such as premeditated murder, do not withdraw from the execution of the individuals who perpetrate crimes against security and sovereignty (Ibid, 2008, 392); and/or Turkey’s government, after the attempted coup, in summer of 2016 in that country, speaks of a law on revoking the ban on capital punishment.

In a nutshell, the states that have eliminated capital punishment, in fact, have ignored the individuals’ private rights because, in other cases, in crimes against security and harsh military crimes targeting states’ sovereignty, they solemnly and intensively implement capital punishment and feel pride in doing so. Thus, the good will of the representatives from those countries that have agreed to the elimination of capital punishment from Rome Statute, particularly the countries that have capital punishment when the Statute was undergoing codification and especially the representatives from the 46 countries that still have capital punishment in their domestic laws, is intensively doubtful. Absolute eradication of powerful individuals’ capital punishment  corresponding to criminal court’s statute, the capital punishment being of an optional nature in the domestic laws due to the voluntariness of the second protocol appended to the international treaty on civil and political regulations, is, per se, expressive of the governors’ ominous intentions (Mehrpur, 2009, 80). According to article 110 of the statute, even the verdicts other than capital punishment issued by ICC, such as pecuniary punishments that might be used in favor of the victims, are cases of granting alleviation in punishments. This issue has been extensively stipulated in paragraph “d” of article 223 of trial code and evidences (Gholami and RostamiGhazani, 2014, 54). The stubborn opposition of Arabic, Islamic states and some other poor countries to the elimination of capital punishment in Rome Conference lasted up to the codification of article 80 of statute and because this article well-guaranteed the capital punishment permit in the domestic laws and its forbiddance in the international laws (Mirabbasi and Alhu’ee, 2007, 184), the religion and canonical decrees stood corrected of their opposition to the revocation of capital punishment. The states that omitted capital punishment, keep themselves this right for the war times when the atrocities would increase. But, do the crimes proposed by ICC happen under nonviolent conditions as a result of which the capital punishment could be eliminated? The expediencies of the sovereignties require the criminals of some wars to be executed and their counterparts of the other wars to be exempted. Thus, the revocation of capital punishment in ICC should be an intensive subject of doubtfulness by the states. If a government finds itself believed in the elimination of capital punishment in practice, such a state should be congratulated for its transition from the traditional concept of sovereignty. If all of the states  do the same, then, the hypothesis proposed in this treatise is justified and, additionally, justice and fairness, as the most important features of criminal justice, are actualized (Stahn, 2012: 266-270).  

It should not be forgotten that, corresponding to article 5 of the statute, the domestic crimes are at the jurisdiction of genocide court and other parallel courts and the culprits of ICC are not asked to prove presence in the court for robbery, fraud and crimes of the like. Consequently, the issue does not pertain to one and/or several individuals in ICC rather the issue is connected to the wastage of the rights of a great many of the human beings and the violation of the generations’ right to live. While the states’ lack of tendency makes the codification of the same culprit-oriented statute take half a century to complete (Shabas, 2007: 7-9) it is not so much difficult to perceive that the court, essentially, is not seeking to serve fair and proportionate punishment of the crimes. Therefore, the punishment provisioned in the statute is not sufficient for the actualization of justice and it is fruitless to be served as a proactive means deterring dangerous criminals due to the states misuse of culprit’s right for reasons like human rights.


Because the crimes, as put forth by the article 5 of ICC Statute, to wit genocide, war crimes, abuse and crimes against humanity and the other grave international crimes, are among the felonies out of the power of the ordinary individuals and only the possessors of power, governors and the rebellion groups are capable of perpetrating such crimes, thus, as, according to Mehrpur, international criminal law, with a little connivance, is known to support mankind against the governors, considering a little compromise, the aforementioned courts’ culprits are assumed to be the governors and the possessors of great powers. Under such conditions, the culprits to these courts enjoy both the extensive rights stipulated in the statute and the benefits as well as the hidden and vivid immunities unique to their diplomatic rights and this bilateral advantage causes the international criminal law, generally, and ICC’s statute, specifically, to be inclined towards the sovereignty interests. In spite of the advances in victim’s compensation regime within the format of Rome Court, because the trial process in the aforesaid court relies on traditional criminal justice, the conflict between the victim and culprit rights will be eventually resolved to the benefit of culprit. The culprits’ use of influence in the court’s authority brings about grounding for discrimination and injustice in the statute and the ICC’s trial procedure in line with providing both the victim of crime and the culprit with their own rights. And, the saying by Martin Luther king Junior, the leader of civil right movement for the African Americans, “injustice, wherever it lies, will turn to a threat for the establishment of justice everywhere” has come true and the court’s trial system in its integrity including the restorative justice and outcome-oriented justice will remain infertile. Finally, the international criminal court, in lieu of being human desirable, has been transformed to politicians desirable.


Persian Sources:

-         Agha’ee Jannat Makan, Hussein, (2014), “human rights in ICCs”, Tehran, Jungle publication

-         Shari’atBagheri, Muhammad Javad, (2008), “international criminal law”, Tehran, Jungle publication

-         Ziya’eeBigdeli, Muhammad Reza, (2009), “general international law”, Tehran, Ganj-e-Danesh

-         Abbasi, Bizhan, (2012), “Human rights and basic freedoms”, Tehran, Dadgostar

-         Gholami, Hussein and RostamiGhazani, Omid, (2014), “grounds of restorative justice in ICC’s statute”, “seasonal journal of criminal law research, 2(4):33-64, fall

-         Fathi, Muhammad Javad, (2014), “the position of the prosecuting attorney in the novel criminal policy”, research journal of Islamic jurisprudence and law”, Tabriz University, 4(7):123-148

-         Cuttingham, John, (1997), “philosophy of punishment”, Zafari, Muhammad Reza, journal of criticism and ideas, 3(4)

-         Momtaz, Jamshid and Ranjbariyan Amir Hussein, (2009), “humanistic international law in domestic armed conflicts”, Tehran, Mizan

-         Mehrpur, Hussein, (2009), “international system of human rights”, Tehran, Itila’at

-         Mir Muhammad Sadeghi, Hussein, (2016), “International Criminal Court”, Dadgostar, Tehran, 8th edition

-         Mirabbasi, SayyedBagher, (2006), “justice department international courts”, Tehran Jungle Publication

English Sources:

-         Aukerman, Miriam.J (2002), “extraordinary Evil ordinary crime: A Framework for understanding Transitional justice”, Harvard Human Rights journal. Vol.15

-         Baumgartner, Elisabeth,(2008), “Aspects  of  victim  participation in the proceedings of the International criminal  court” , International  Review  of the Red Cross, vol.90,no.87

-         Benzing  and Bergsmo, Morten,(2013), “some tentative Remarks on the Relationship between Internationalized criminal jurisdictions and the International criminal court in Romano”, Nollkaemper and Kleffner (eds)

-         Cassese, Antonio (1998), “Reflections on international criminal justice, Modern law review”, vol.61 (1)

-         Damaska, Mirjan(2008), “what is the point of international criminal justice?, Chicago –Kent law Review” , vol.83

-         International criminal court (RC-11-Annex.v.a-ENG), (2010), “The impact of the Rome statute system on victims and affected communities” , stocktaking of international criminal justice, Annex v(a)

-         Moore Michael, S, (1984). “A taxonomy of purposes of punishment from law and Psychiatric relationship”, Cambridge university press, in foundations of criminal law, Kate, Leo, Moore, Michael. S and more, Stephen, J. (1999), New York,  Oxford university press

-         Mukhaya, Musila , Godfey (2009), “Restorative justice in international criminal law: The rights of victim in the international criminal court”, Dissertation of the degree doctor of philosophy in law in the School of law, university of the Witwaters and , Johannesburg

-         Shabas, William A.(2007), “An introduction to the international criminal court”, New York, Cambridge university press.

-         Stahn (2012), “Between Faith and facts: by what standards should we Asses International criminal justice?” LJIL No.25.

-         Wemmers, Jo-Anne, (2006), “Reparation and the international criminal court”, Report of the workshop held January 28th.2006.


[1]Department of law, Najafabad Branch, Islamic Azad University, Najafabad, Iran

[2]Department of Law, Najafabad Branch, Islamic Azad University, Najafabad, Iran(*Corresponding Author: info@ahbz.ir)

[3]Department of Law, Varamin Branch, Islamic Azad University, Varamin, Iran

[4]Department of law, Najafabad Branch, Islamic Azad University, Najafabad, Iran


بدون دیدگاه

ارسال دیدگاه