What is the International Criminal Court

The ICC is an independent, permanent court that will investigate and bring to justice individuals who commit the worst crimes known to humanity – genocide, crimes against humanity, and war crimes – when nations themselves are unwilling or unable to adjudicate.

The ICC is based on a treaty called the Rome Statute, which has been ratified by 99 nations. The Court is located in The Hague, the Netherlands. The ICC is not part of the United Nations, and its costs are paid by the member states.

What crimes will the ICC prosecute?

The ICC will prosecute individuals responsible for the most egregious and widespread acts of genocide, crimes against humanity, and war crimes that occur after July 1, 2002 (the date the Rome Statute came into force).

War crimes, crimes against humanity and genocide are defined in the Rome Statute and carefully explained in the supplemental Elements of Crimes. The Rome Statute does not create any new crimes, but simply reflects existing international law, such as the Genocide Convention, the Convention Against Torture, and the Geneva Conventions

The ICC judges are required to strictly construe these definitions, leaving no room for ambiguity or arbitrary decisions. Some examples of acts covered by the ICC include widespread rape and sexual slavery, the use of child soldiers, apartheid, enforced disappearances, and torture.

Doesn’t the ICC cover the crime of aggression? What about terrorism and drug trafficking?

The crime of aggression is mentioned in the Rome Statute, but the Court cannot exercise jurisdiction over the crime of aggression until the member states agree on a definition of aggression. The earliest that this could happen is at the seven-year review conference in 2009; States Parties that do not agree with the eventual definition of aggression can opt out of its coverage.

When debate about the ICC began in earnest in the early 1990s, proponents hoped that the crimes of terrorism and drug trafficking would be included. However, consensus over the definition of terrorism could not be reached, and some countries worried that investigating drug offenses could overextend the ICC’s resources. These crimes might be reconsidered at a later review conference; however, any State Party that did not agree with the definitions could opt out of their coverage.

How are cases brought before the ICC?

The ICC will have jurisdiction to prosecute individuals in four situations:

        When the crime was committed in the territory of a State Party,

        When the crime was committed by a citizen of a State Party,

       When a state which has not ratified the Rome Statute voluntarily accepts the Court’s jurisdiction over a particular situation (which means citizens of that state can also be investigated), or

        When the UN Security Council refers a case to the ICC.

Only if the UN Security Council refers a case can the ICC exercise jurisdiction over a situation in which neither the State in whose territory the crimes have been committed nor the State of nationality of the accused is a member of the ICC.

Who can be tried by the ICC?

The ICC only tries individuals, not countries or governments.

As long as the ICC has jurisdiction over a situation, no one is immune from its reach. In fact, the Rome Statute explicitly refuses to recognize the traditional immunity of heads of states. In addition, military and civilian leaders who knew that soldiers under their command were about to commit a crime but did not try to prevent it may be held responsible.

Citizens of countries that have not ratified the Rome Statute can still be held accountable by the ICC under limited circumstances. For this to happen, the atrocity must occur on the territory of a State Party, the country where the crime occurred must accept the Court’s jurisdiction for that situation, or the UN Security Council must refer the case to the ICC.

However, any nation can choose to try its citizens in its own domestic courts rather than the ICC if it wishes to do so. The ICC would step in only if that nation was unable or unwilling to investigate or prosecute the crime.

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