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Answers to Questions About the ICC
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1) What is the International Criminal Court? The International Criminal Court will be a permanent judicial body to prosecute persons responsible for genocide, crimes against humanity and war crimes, where national judicial systems fail to investigate or prosecute such individuals. A fourth category of crimes - the crime of aggression - is included within the jurisdiction of the ICC, subject to States Parties agreeing on a definition. The ICC's headquarters will be in The Hague, The Netherlands. It will have jurisdiction only over crimes committed after July 1, 2002, when the treaty (known as the Rome Statute of the International Criminal Court) enters into force. As a treaty-based body, the ICC will not be an organ of the United Nations. It will, however, be closely linked to the UN by means of various formal agreements. 2) Why do we need an International Criminal Court? In the past 50 years, more than 86 million civilians have died in over 250 conflicts. Most of these victims were women and children. Despite international laws forbidding genocide, crimes against humanity and war crimes, there has not been a reliable system for enforcing these laws. Very few of the perpetrators of these crimes have been brought to justice. This climate of impunity has only encouraged others to disregard international humanitarian law. For over 50 years the international community has been working toward the creation of a permanent international criminal court. For example, in 1948 the Convention on the Prevention and Punishment of the Crime of Genocide characterizes genocide as "a crime under international law," and provides that persons charged with genocide "shall be tried by a competent tribunal of the State in the territory of which the act was committed or by such international penal tribunal as may have jurisdiction . . ." In the UN General Assembly resolution adopting this convention, the UN International Law Commission "was invited to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide . . ." Cold War tensions prevented progress on an ICC until 1994, when the International Law Commission published a report on a proposed statute. 3) Over what crimes will the ICC have jurisdiction? Does the Statute include crimes of sexual and gender violence? Article 1 of the Rome Statute specifies that the ICC will have jurisdiction over "the most serious crimes of international concern." These are: genocide, war crimes, crimes against humanity, and aggression. (The Court will be able to exercise jurisdiction over aggression only after a definition of the crime has been agreed to and included in the ICC Statute by amendment. The Statute specifies that any amendment must be consistent with the role of the Security Council under the UN Charter in determining that an act of aggression has taken place.) Genocide It was universally accepted at the Rome Conference that the ICC Statute should replicate the definition of this crime as provided for in the 1948 Genocide Convention. Under the Convention and the ICC Statute, genocide "means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such: killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, forcibly transferring children of the group to another group." Crimes Against Humanity The ICC Statute codifies crimes against humanity in a multilateral treaty for the first time since the Nuremberg Charter. The ICC will have jurisdiction over such crimes whether committed in armed conflict or peacetime and regardless of whether perpetrated by state or non-state actors. A crime against humanity is defined in the ICC Statute as an act committed as part of a "widespread or systematic attack against any civilian population, with knowledge of the attack." The specific acts listed include murder, extermination, enslavement, and deportation, which were provided for in the Nuremberg Charter. Similar to the Statute of the ad hoc Criminal Tribunal for the former Yugoslavia, the ICC Statute also provides that imprisonment, torture, rape, and persecutions on political, racial, and religious grounds are crimes against humanity when committed on a widespread or systematic basis. However, the ICC Statute further updates the list of crimes against humanity by including "forcible transfer of population," "other severe deprivation of physical liberty in violation of fundamental rules of international law" (apart from imprisonment), "sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity," "enforced disappearance of persons," and "the crime of apartheid." War Crimes Under the Rome Statute, the ICC will have jurisdiction over war crimes committed in both international and non-international armed conflict. The Statute reproduces the "grave breaches" provisions of the 1949 Geneva Conventions constituting war crimes in international armed conflict and includes a list of 26 other acts considered to be "serious violations of the laws and customs" applicable in international armed conflict. Among them are "rape, sexual slavery, enforced prostitution, forced pregnancy...enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions." A tremendous achievement of the Rome Conference is that states finally agreed, by multilateral treaty, to explicitly attach international criminal responsibility to certain war crimes committed in internal armed conflict. Given that most conflicts in the world today are internal, the importance of this step cannot be overstated. The ICC Statute also categorizes 12 other acts as war crimes when committed in the course of armed conflict. Among them are: "intentionally directing attacks against the civilian population" and "intentionally directing attacks against personnel ... material, units or vehicles involved in a humanitarian assistance or peacekeeping mission." Crimes of sexual and gender violence are also provided for. With respect to war crimes and crimes against humanity, the drafters of the ICC treaty set specific jurisdictional and evidentiary thresholds over both categories of crimes as a way of restricting the Court's reach, in order that the ICC would prosecute "the most serious crimes of international concern." 4) How will cases come before the ICC? The Court's jurisdiction can be "triggered" by: any State Party to the Statute; the UN Security Council; the Prosecutor acting on his/her own initiative. Any State Party may bring to the Prosecutor's attention a situation in which crimes within the Court's jurisdiction appear to have been committed and can request him/her to investigate. The UN Security Council can also refer to the Court a situation in which crimes appear to have been committed when it determines, under Chapter VII of the UN Charter, that the situation represents a threat to peace or a breach of the peace. In both cases, the Prosecutor can decline to proceed with an investigation if he or she determines that there is "no reasonable basis" to do so. Finally, the Prosecutor may initiate an investigation on his or her own motion, provided that a three-judge panel of the ICC Pre-Trial Chamber approves. 5) Does the ICC have to obtain state consent to investigate a crime? How will the ICC exercise jurisdiction over a particular situation? When the Security Council refers a situation to the Court, the prosecutor may proceed against any individual, for any crime within the Court's jurisdiction, in any country, without the consent of any state. When a State Party to the Statute has triggered the Court's jurisdiction or when the Prosecutor initiates an investigation, the Court can act only in cases involving the territory or citizens of countries that accept its jurisdiction. In other words, the ICC may exercise jurisdiction over crimes committed on the territory of any State Party, or by citizens of any State Party. A state accepts the Court's jurisdiction either by ratifying the ICC treaty or by filing an ad hoc declaration consenting to the Court's jurisdiction over the crime in question. 6) Will the Court be able to try heads of state and other government officials? What about members of armed forces or paramilitary groups? The Rome Statute applies to all persons, regardless of their official position. The Statute explicitly provides that "official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility." Therefore, immunity pleas based on official position will not be allowed in proceedings before the Court. Members of armed forces or paramilitary groups can also be held responsible, both for acts directly committed, as well as for acts committed by subordinates. The Statute provides that a military commander, other "person effectively acting as a military commander" or a civilian commander, may be held criminally responsible for acts committed by subordinates. 7) Will the ICC supersede national courts? No. The Court is not meant to replace national jurisdictions, but to provide a venue for prosecution and trial where domestic courts fail to do so. A fundamental principle of the Rome Statute is that the ICC shall be "complementary" to national courts. This means that the Court must defer to a national criminal justice system, unless that system is genuinely unable or unwilling to investigate and prosecute crimes that would otherwise be within the ICC's jurisdiction. The Court may consider on its own motion whether it should defer to national proceedings, but the principle of complementarity can also be invoked by interested States (not just States Parties to the Statute) and individual suspects. The Statute spells out criteria that will guide the Court in determining the genuine inability or unwillingness of a national criminal justice system to bring perpetrators of crimes to justice. 8) Will the UN Security Council be able to limit the ICC's reach? Contrary to initial proposals, the ICC will not require Security Council approval before starting proceedings. The Security Council can, however, request the Court not to open proceedings, or to suspend proceedings already underway, for a renewable period of 12 months by means of a UN Charter Chapter VII resolution. The adoption of such a resolution requires nine votes, including the votes of all five permanent Security Council members. A veto by one permanent Security Council member would thus enable the Court to move forward. 9) How is the ICC different from the ad hoc Tribunals for Rwanda and the former Yugoslavia? The ad hoc Tribunals were created by the UN Security Council in 1993 and 1994 to investigate and prosecute atrocities in the former Yugoslavia and Rwanda. The jurisdiction of the ad hoc Tribunals is limited to these states.. Although the Tribunals marked a valuable step in combating impunity, this ad hoc approach suffers from inherent weaknesses, such as substantial delays, start-up costs and dependence on Security Council action. The ICC will overcome many of these shortcomings and, due to its permanence, will serve as a more effective deterrent. 10) How does the ICC differ from the International Court of Justice (the World Court)? The International Court of Justice is one of the six principal organs of the United Nations, authorized to resolve disputes only among states. The ICC will have jurisdiction only over crimes committed by individuals. 11) Who will be the judges on the ICC? The Court will consist of 18 judges elected to non-renewable nine year terms by a two-thirds majority vote of the States Parties to the Statute. Only citizens of countries that are Parties to the Statute can be judges, and no two judges may be citizens of the same country. At least nine judges must have established competence in criminal law and procedure, while at least five must have established competence in relevant areas of international law such as international humanitarian law and human rights law. In selecting judges, States Parties must take into account the need for representation of the principal legal systems of the world, equitable geographic representation and a fair representation of male and female judges. The judges will be distributed among three divisions: pre-trial, trial, and appeals. 12) Who will be the Prosecutor? An absolute majority of the States Parties to the Statute will elect the ICC Prosecutor and one or more deputy prosecutors to non-renewable nine year terms. The Prosecutor will be authorized to initiate investigations upon a referral either by the UN Security Council or by a State Party to the Statute and, subject to appropriate safeguards, on his or her own initiative. 13) How will the Court's orders be enforced? States Parties to the ICC Statute have a legal obligation to cooperate fully with the ICC. When the Court, for example, issues an international arrest warrant, they have a duty to arrest and transfer the suspect or accused to the Court. To this end, they must ensure that there are procedures available under their national law to enable cooperation with the Court. If the Court's jurisdiction is triggered by the Security Council, the duty to cooperate extends to all UN member states, regardless of whether they are a Party to the Statute. 14) How will the Court be funded? The Court will be funded by assessed contributions from States Parties to the Statute and by funds provided by the UN, particularly in cases where costs arise from Security Council referrals. The ICC will also be able to accept voluntary contributions from governments, international organizations, individuals, corporations, and other entities.
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