International Criminal Court

I

INTRODUCTION

International Criminal Court (ICC), independent judicial institution with the power to try and punish individuals for the most serious crimes of international concern: genocide, crimes against humanity, crimes of aggression, and war crimes. The court was first approved in 1998 by a treaty known as the Rome Statute, and it officially came into being on July 1, 2002, after 60 countries ratified the treaty. The court has its headquarters in The Hague, The Netherlands.

Unlike previous war crimes courts with jurisdiction limited to specific conflicts, the ICC is a permanent institution whose jurisdiction extends globally. Even individuals from countries that are not parties to the Rome Statute may be subject to the court’s jurisdiction under certain circumstances. However, the ICC is complementary to national criminal procedures, meaning that it may not exercise jurisdiction if a nation is adequately prosecuting accused criminals.

The ICC differs from the United Nations International Court of Justice in important respects. First, the ICC is not an organ of the United Nations (UN), although it maintains a relationship with the UN. Second, the ICC handles cases involving individual criminal responsibility, whereas the International Court of Justice mainly decides legal disputes between nations.

II

CREATION OF THE COURT

A

Historical Background

Laws and customs governing wartime conduct have existed since ancient times, but historically, few people have been prosecuted or punished for war crimes, genocide, or crimes against humanity. The first true international criminal court dates from 1474, when Peter von Hagenbach, a military officer appointed by Duke Charles the Bold of Burgundy, was tried and condemned to death before 27 judges of the Holy Roman Empire for atrocities against civilians committed by his troops.

In general, each nation has prosecuted and punished its own citizens for international crimes. National prosecution has proven difficult, however, when the perpetrators are political leaders or other high-ranking state officials, or if the crimes are numerous and involve many perpetrators. Criticism of German deficiencies in prosecuting and punishing the war crimes committed during World War I (1914-1918) contributed to the decision of the Allies in World War II (1939-1945) to establish the Nürnberg (Nuremberg) and Tokyo tribunals to try major German and Japanese war criminals.

Sustained movement for an international criminal court began in the early 20th century and grew with each ensuing armed conflict. The possibility of a court was studied after World War I, but opposition from isolationists prevented further action. Following World War II, the experiences of the Nürnberg and Tokyo trials led UN member states to again propose a permanent international criminal court, in order to ensure accountability for international crimes, to deter their commission, and to lessen the image of war crimes trials as “victors’ justice.”

In 1948 the UN General Assembly asked its International Law Commission to study the idea of an international judicial body to try individuals charged with genocide. In 1950, after the commission concluded that such a body was both desirable and possible, the General Assembly established its own committee to draft a statute for an international criminal court. The committee finished its work a year later, revising the text in 1953. For political and legal reasons, the draft was tabled and the issue lay dormant until 1989, when Trinidad and Tobago, during a special session of the General Assembly, proposed the creation of an international criminal court to help fight drug trafficking. In response, the General Assembly once again asked the International Law Commission to work toward the establishment of such a court. While this work was underway, the United Nations Security Council responded to atrocities in the former Yugoslavia and in Rwanda by creating special war crimes tribunals for each country in 1993 and 1994, respectively. See War Crimes Trials.

B

The Rome Conference

The nearly century-long effort to establish a permanent court culminated with a 1998 UN diplomatic conference in Rome, Italy, convened for the sole purpose of finalizing a statute on the establishment of an international criminal court. The global event attracted representatives of 160 countries, 17 intergovernmental organizations, 14 specialized agencies of the UN, and some 250 nongovernmental organizations.

The Rome Statute was adopted by a vote of 120 in favor, 7 against, and 21 abstaining. The names of the countries voting were not recorded, but three countries—the United States, Israel, and China—openly stated their reasons for voting against the statute. The United States objected to the court’s independent power to initiate prosecutions and sought a greater role for the UN Security Council. For example, U.S. negotiators, fearful that American soldiers and peacekeepers abroad could be brought before the court on politically motivated charges, had tried to reshape the statute to give the Security Council exclusive power to initiate prosecutions. This would have allowed the United States, as a permanent member of the Security Council, to veto any prosecutions it opposed. However, this proposal was defeated by a majority concerned about placing prosecutorial decisions in the hands of a political body. The United States, along with China, also objected to the court’s power, in certain circumstances, to arrest and try citizens of countries that have not signed the statute, arguing that prosecutions should require the consent of the accused person’s government. Israel objected to the statute’s list of war crimes because it included the act of moving populations into occupied territories. Some abstaining states objected to the failure to include terrorism or the use of nuclear weapons as crimes, and others opposed the decision to eliminate the death penalty in sentencing.

Although the United States voted against the treaty, U.S. officials expressed satisfaction with much of the statute. President Bill Clinton ultimately signed it, although he did not submit it to the United States Senate for approval. In May 2002 President George W. Bush, citing the same objections raised by U.S. officials during the Rome conference, informed the UN that the United States would not ratify the agreement, terminating the effect of Clinton’s signature.

The nonparticipation of the United States and other major powers could weaken the court by raising questions about its legitimacy. Nonparticipation could also limit the court’s financial resources because funding is provided only by countries that are parties to the Rome Statute. However, if most major powers ratify the Rome Statute, the effect of nonparticipation on the ICC may be minimal. In fact, the interests of the United States and other ICC opponents could be hurt by their nonparticipation, because their governments will be unable to participate in the election of judges, selection of prosecutors, and development of the rules of evidence and procedure, all of which will have a major impact on future development of the court and its effectiveness.

III

JURISDICTION

The Rome Statute gives the court jurisdiction over the most serious crimes of international concern if they are committed after July 1, 2002, either (1) by a citizen of a nation that accepts the statute, or (2) by a person of any nationality on the territory of a nation that accepts the statute. The latter type of jurisdiction means that citizens of nations that have not accepted the treaty may be arrested and tried for international crimes if their actions take place in the territory of a nation that adheres to the statute. Nations that are not parties to the statute may voluntarily accept the court’s jurisdiction on a case-by-case basis. Furthermore, the UN Security Council can grant the court jurisdiction for a specific situation even when the nation in which the crime occurred is not a party to the statute. In any criminal case, the ICC may only exercise its jurisdiction when a national court is unwilling or unable to carry out the investigation or prosecution. For example, the ICC might intervene when a government’s judicial system has collapsed or is actively shielding a person from criminal responsibility.

The court may hold accountable any person aged 18 or older at the time of the crime without regard to the individual’s official duties or functions. Therefore, heads of state, legislators, and other high-ranking government officials are not exempt from criminal responsibility. Crimes in the court’s jurisdiction are not subject to a statute of limitations, meaning there is no time limit on bringing charges.

IV

CRIMES PROSECUTED BY THE COURT

Four categories of crime are included in the ICC’s jurisdiction: genocide; crimes against humanity; war crimes; and crimes of aggression. Aggression cannot be the subject of any prosecution, however, until the Assembly of States Parties, a body made up of one representative from each nation that has accepted the statute, amends the statute to define the crime and set out the conditions for prosecution. The issue of aggression is politically charged and participants at the Rome Conference could not agree on its definition. Proposed definitions centered around the idea of an armed invasion or attack by one nation against another with the intent to violate its territorial integrity or political independence.

The Rome Statute defines genocide as the commission of certain acts with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. The acts listed are killing members of the group or causing them serious bodily or mental harm; forcing the group to live in conditions calculated to bring about the group’s physical destruction in whole or in part; and using forcible measures to prevent births within the group or to transfer children out of the group to another group.

Crimes against humanity, as specified by the statute, are certain acts committed as part of a widespread or systematic attack against any civilian population. The acts include murder or extermination; slavery; deportation or forcible transfer of a population; imprisonment and other severe deprivations of physical liberty; torture; violent sexual offenses, such as rape, sexual slavery, and forced prostitution; forced disappearance; and apartheid. The statute leaves open the possibility of prosecuting other, unnamed inhumane acts of a similar character.

The statute’s list of war crimes is extensive. It includes acts prohibited by the 1949 Geneva Conventions on the laws of war: willful killing, torture, intentionally causing great suffering, hostage taking, extensive destruction and looting of property, depriving prisoners of war of a fair trial or forcing them to serve in the military of a hostile power, and unlawful deportation or confinement. The statute also defines as war crimes 26 other serious violations of the laws and customs of war, such as pillage, intentionally directing attacks against civilians, using poison weapons or poison gas, and subjecting individuals to mutilation or scientific experimentation. Finally, the statute contains special rules that extend the court’s war crimes jurisdiction to civil wars, which historically were not regulated by international law. However, the court’s jurisdiction excludes “internal disturbances” such as riots and other sporadic acts of violence.

V

STRUCTURE AND ADMINISTRATION

The ICC has three main functional divisions: the judges, the registrar, and the prosecutors.

The court consists of 18 judges. They are elected by the Assembly of States Parties in a secret ballot. During judicial elections each participating nation may nominate one candidate. The candidate must be an expert either in criminal law and procedure or in relevant areas of international law, such as human rights law or the law of armed conflict. Judges serve a single term of nine years; however, in the first election only, held in 2003, judges were randomly assigned terms of three, six, or nine years. To ensure geographic diversity, no two judges may be of the same nationality. The judges are led by the Presidency, a group of three judges who are responsible for the judicial administration of the court. The Presidency consists of a president, first vice president, and second vice president. Judges in the Presidency are elected by the court’s judges and serve three-year terms.

The judges are assigned to pretrial, trial, and appeals chambers. The pretrial chamber has the power to authorize investigations by the prosecutor, and it may issue orders, warrants, and summons during an investigation. It also has the responsibility to protect the rights of victims and witnesses during pretrial proceedings and to ensure due process for the accused. The trial chamber’s function is to conduct a fair, speedy trial, to convict or acquit the accused, and to sentence those convicted. The appeals chamber has the power to reverse or amend convictions and sentences and to order new trials.

The Registry is the administrative arm of the court and oversees nonjudicial matters. It is headed by a registrar who is the principal administrative officer of the court. The registrar is elected by the judges to a five-year term.

The Office of the Prosecutor is responsible for conducting investigations and prosecutions. It consists of a chief prosecutor elected by the Assembly of States Parties in a secret ballot, as well as one or more deputy prosecutors. Deputy prosecutors are nominated by the chief prosecutor and elected by the assembly. Both the chief prosecutor and the deputy prosecutors serve a term of nine years and are not eligible for reelection.

The ICC is financed primarily by dues from states that are parties to the Rome Statute. Other funds may be supplied by the United Nations, if the General Assembly approves, and from voluntary contributions of governments, international organizations, businesses, and individuals. The statute requires an annual independent audit of all financial records of the court. To guard the independence of the court, the salaries of judges and other court officials may not be reduced while they hold office.

VI

GENERAL PROCEDURES

The ICC’s chief prosecutor may initiate investigations independently based on information he or she has received about crimes within the court’s jurisdiction. Alternatively, cases may be referred to the prosecutor by the UN Security Council or by a state that is a party to the Rome Statute. The prosecutor evaluates the information and investigates to determine whether or not there is a sufficient basis to prosecute. If the prosecutor decides to proceed with the investigation, he or she must first obtain authorization from the pretrial chamber.

Formal prosecution begins when a pretrial chamber issues an arrest warrant or summons for an accused person to appear based on the charges filed by the prosecutor. When the accused appears, a hearing is held to determine whether sufficient evidence exists to proceed to trial. Nations that would normally have jurisdiction over the crimes committed may appear to challenge the ICC’s jurisdiction or the admissibility of the case. Once the pretrial chamber has confirmed the prosecutor’s charges, a three-judge trial chamber conducts the trial in public proceedings with the accused present.

The court may convict if at least two of the three judges are convinced of the suspect’s guilt beyond reasonable doubt; the decision need not be unanimous. The court can fine or imprison those convicted and order reparations to victims; it may not impose the death penalty. The maximum sentence is life imprisonment. Sentences of imprisonment will be served in The Netherlands or in another country that voluntarily accepts the prisoner. Either the prosecution or the defense may appeal the verdict or the sentence to the appeals chamber. All nations that are parties to the Rome Statute must cooperate with the court in investigation, prosecution, and enforcement of the court’s judgments.