“I reiterate the importance of redoubling our efforts to ensure the continued expansion of the family of States that cooperate to fight against impunity and to protect the victims of genocide, crimes against humanity, war crimes, and the crime of aggression.”
The International Criminal Court (ICC), headquartered in The Hague, Netherlands is the first permanent international criminal court and is governed by a treaty known as “The Rome Statute.” In an effort to create a more just world, 120 States adopted the Rome Statute on July 17, 1998. This was the first time in human history, States chose to accept the authority of a permanent international criminal court to try those responsible for the worst crimes. Upon acceptance by 60 governments, the Rome Statute became effective on July 1, 2002, formally establishing the ICC.
It looks into cases of the most serious crimes of concern to the world community, including genocide, war crimes, crimes against humanity, and crimes of aggression, and brings cases to trial when necessary. The International Criminal Court (ICC) seeks to hold offenders accountable for their crimes and contribute to their prevention through international criminal justice, as a court of last resort, the forum was created to try crimes of which the perpetrator would not be brought to the book otherwise.
JURISDICTION OF THE COURT
The ICC prosecutes individuals, as distinguished from the International Court of Justice, which considers cases involving governments. The court has the authority to hear cases involving crimes that took place on or after July 1, 2002 and were either committed in a state that has ratified the agreement or by a citizen of one of those states.
According to international law, the court has jurisdiction over the following four types of crimes:
Genocide, or the deliberate targeting of the ethnic, national, racial, or religious groups, in whole or in component;
war crimes, the use of child soldiers, torture, and attacks on civilian targets like hospitals or schools are all considered war crimes or serious violations of the rules of war;
Crimes against humanity, Incarceration, murder, Slavery, torture and rape are only a few examples of the crimes against humanity or breaches carried out as part of widespread attacks against civilian populations; and
crimes of aggression, a state's use of force against another state's territorial integrity, sovereignty, or political independence is considered an act of aggression, as is any breach of the UN Charter.
HOW AN INVESTIGATION CAN BE ORCHESTRATED?
As of July 17, 2018, the Security Council, acting under Chapter VII of the United Nations Charter, has the authority to refer to a scenario in which an act of aggression would appear to have occurred to the Court, regardless of whether it involves States Parties or non-State Parties.
The court has three options on how to start an inquiry into potential crimes:
The United Nations Security Council may refer a situation; a member nation may refer a situation occurring on its own territory to the court; or
the prosecutor may initiate a proprio motu probe into a member state, or
“on one’s own initiative.”
If the alleged crimes were committed on the territory of a member state, the non-member state must recognize the court's jurisdiction, or the Security Council must provide its approval before the court can look into someone from a non-member state.
The prosecutor must determine following a preliminary investigation that the transgressions are of "sufficient gravity" to begin an investigation. The prosecutor's office normally dispatches investigators and other employees to gather evidence once an investigation is launched.
Depending on the evidence presented by the prosecution, the judiciary must approve any arrest warrants or summonses.
In the end, whether a case should go to trial is decided by a panel of pretrial judges. Defendants may ask the court, if necessary, to pay for outside legal representation for them. Convicted defendants have the right to appeal to the five-judge appellate bench of the International Criminal Court (ICC), although convictions and sentences must be approved by at least two of the three judges on a trial bench.
WHAT IF A SITUATION DOES NOT FALL UNDER THE COURT’S JURISDICTION?
The UN Security Council has the authority to send cases to the ICC, giving it jurisdiction over matters that go outside of its purview. This has already been done in the cases of Libya and Darfur. The claims of genocide, war crimes, and crimes against humanity alleged to have been committed in Darfur, Sudan, since 1 July 2002 are the main subject of the ICC investigations into Darfur. Taking into account the International Commission of Inquiry's report on violations of international humanitarian law and human rights law in Darfur, the UNSC ascertained that “the situation in Sudan continues to constitute a threat to international peace and security” and referred this situation to the ICC in March 2005.
Libya is also not a State Party to the Rome Statute. But in Resolution 1970, adopted on February 26, 2011, the UN Security Council unanimously referred the situation in Libya since February 15 to the ICC (2011). Therefore, starting on February 15, 2011, the ICC may exercise its jurisdiction over crimes enumerated in the Rome Statute committed on Libyan soil or by its citizens.
Some observers think the court doesn't have enough power, making it ineffectual and inefficient at convicting war criminals, while others think it has too many prosecutorial powers, endangering state sovereignty, and that it doesn't follow due process. Despite not being a UN agency, the ICC and the UN have a cooperation agreement. The ICC only prosecutes matters when States are not truly unwilling or incapable to do so; it is intended to enhance, not supersede, national criminal systems. The ICC is meant to support national courts, not to take their place. It is only permitted to take action when national courts are deemed unable or unwilling to hear a case. Furthermore, it only has jurisdiction over crimes committed after its law came into force in 2002.
Claire Klobucista, ‘The Role of the International Criminal Court (Council on Foreign Relations, 28 March 2022) < https://www.cfr.org/backgrounder/role-international-criminal-court > accessed 21 November 2022
1] President of the Assembly of States Parties to the Rome Statute Sidiki Kaba
2] Rome Statute of the International Criminal Court, Art. 5
3] Rome Statute of the International Criminal Court, Art. 8
4] Rome Statute of the International Criminal Court, Art. 7
5] Rome Statute of the International Criminal Court, Art. 8
6] International Criminal Court Darfur, Sudan [ICC-02/05]
7] International Criminal Court, Libya [ICC-01/1]
This article is written Madhur Anand of National Law Institute University, Bhopal.