ABSTRACT

This thesis highlights the protection of the rights of detainees under the ICC system. It brings out the similarities and differences between the Rome statute and the ECHR. This thesis also identifies the numerous rights accorded to detainees and pinpoints the fact that liberty remains the rule and detention the exception. In undertaking these analyses, the thesis also identifies the effectiveness and weaknesses in the various international laws in the protection of the rights of detainees under the ICC system. Finally the thesis recommends that, judges must be able to decide all cases of alleged human rights violations independently and impartially. They must always refuse to accept confessions obtained from suspects through torture or any other form of coercion. Furthermore, as lawyers and prosecutors, they must constantly be on the lookout for any signs of torture or other forms of ill-treatment being administered, and take the necessary legal steps to remedy and put an end to such situations.

                                                                   CHAPTER ONE

1.0 INTRODUCTION

Criminal law refers to that branch of the law that seeks to identify and punish deviant behaviours in the society. It varies from jurisdiction to jurisdiction but however has a unanimous purpose of either maintaining order, by providing a predictable framework of what is expected from individuals in the society. It further provides a rationalized and peaceful method of resolving disputes, likewise protecting individuals and property by safeguarding civil liberties. It involves loss of liberty or fines of individuals suspected of haven committed a crime. This therefore leads us to the substance of this thesis which is the Protection of detainees’ rights by the international criminal court. The following paragraphs provides the context and rational for selection of this topic.

1.1 BACKGROUND TO THE STUDY

The United Nations (UN) Charter under its preamble underscores that recognition of human dignity, this is one of the reasons that necessitated its creation^[1]. By virtue of this objective of the UN, the Universal Declaration of Human Rights  (UDHR), International Covenant on Civil and Political Rights (ICCPR)^[2], International Covenant on Economic, Social and Cultural Rights^[3] (ICESCR) and other human rights instruments came into existence with detailed political, civil and socio economic rights with one common goal, namely giving effect to the human dignity.

Coming to the normative content on the detained persons rights, International Human Rights Instruments proclaim that persons who are detained or imprisoned do not cease to be human beings, no matter how serious the crime of which they have been accused or convicted^[4]. For instance, the ICCPR in Article 10 provides that; all persons deprived of their liberty shall be treated at all times with humanity and with respect for the inherent dignity of the human person^[5].

The United Nations Human Rights Commission (UNHRC) stated in this regard that Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment^[6].

Under international law, the number of international instruments which contribute to the advancement of detained persons’ rights and the prevention of their ill-treatment has increased enormously since the emergence of the United Nations Organization. These developments have been strongly linked to the enormous expansion of Human Rights Law, both at the universal and regional levels, and fall under the umbrella principle of respect for human dignity and more specifically, under the prohibition of torture and other cruel, inhuman or degrading treatment or punishment^[7].

The United Nations’ concern with confined persons’ rights is grounded in both the promotion of human rights and its affiliation with social development^[8]. In this respect, Article 55(b) of the U.N. Charter stresses the organization’s concern with promoting ‘solutions of international economic, social, health, and related problems; and international cultural and educational co-operation’, whilst Paragraph (c) provides that the United Nations shall promote ‘universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. These provisions are, however, rather imprecise in their formulation in that they do not define ‘human rights’ or social development programmes^[9].

With the adoption of the twin Covenants, the ICCPR and the ICESCR, an international ‘Bill of Rights’ came into existence. Of particular importance to the rights of incarcerated persons is Article 10(1) of the ICCPR, which expressly provides that ‘all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’^[10]. The importance of this provision should not be underestimated.

The permanent ICC was created as a deterrent to impunity, as a means towards eliminating the world’s most horrendous crimes and as a instrumentality to redress the victims of genocide, war crimes and crimes against humanity[11].  The ICC is expected to function as an independent, impartial, just and effective, permanent judicial institution and to stand # as a monument to the struggles of the past. Admittedly, these are lofty goals. Particularly since the wars in Rwanda and the Former Yugoslavia and the recent events in Sierra Leone and Kosovo underscore that “genocide has become a growth industry.[12] Yet in what surely is a testament to the fortitude of human nature, the world’s nations have banded together to embrace these goals and create the “last great legal edifice of the 20th Century.[13]

Unlike the Statutes and Rules of the ICTs, the Rome Statute for an International Criminal Court consistently underscores the fact that one of the ICC’s primary purposes is to protect and vindicate the victims of the world’s most heinous crimes. For example, discussing the functions and powers of the Trial Chamber, the Rome Statute states that trials must be “conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.

The International Criminal Court (ICC) on its part is a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole: the crime of genocide, crimes against humanity, war crimes and the crime of aggression. The primary mission of the ICC is to help put an end to impunity for the perpetrators of such crimes and contribute to their prevention. The International Criminal Court (ICC) was established as a consequence of the Rome Statute in 1998 with a purpose of prosecution of persons who committed war crimes, crimes against humanity and genocide.[14] The ICC is not a substitute for national courts. According to the Rome Statute, it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. The ICC can only intervene where a State is unable or unwilling genuinely to carry out the investigation and prosecute the perpetrators. Also the ICC is composed of four organs: the Presidency, the Chambers, the Office of the Prosecutor and the Registry.[15]There are 122 parties to the Rome Statute. Each state party contributes one representative to the Assembly of States Parties (ASP), whose roles include providing management oversight of administration of the Court and considering and deciding the Court’s budget[16]