What is the International Criminal Court (“the ICC” or “the Court”)?
In the wake of the First and Second World Wars, the international community began to discuss in earnest the need for a supranational criminal court to deal with certain crimes of concern to all states. The aggressive war campaigns that had provoked those conflicts had generated enormous losses. Specific atrocities were soon discovered, such as the targeting of Armenians by Turkey and the Jewish Holocaust, prompting the development of novel legal concepts such as genocide and crimes against humanity. In some instances, warring parties had shown a wanton disregard for the laws of war. These political events catalysed Allied states to act.
The first international criminal tribunals were the International Military Tribunals of Nuremberg and Tokyo, created to address crimes of the aggressor states during World War Two. This was followed many years later by the establishment of the International Criminal Tribunals for the former Yugoslavia and for Rwanda in 1993 and 1994 respectively. The first addressed crimes in the context of the disintegration of Yugoslavia and the second addressed the 100 day genocide of Tutsi in Rwanda. Other hybrid international/national institutions have since been developed to deal with international crimes committed in specific contexts. These include the Special Court for Sierra Leone, which looked at crimes committed during the Sierra Leone civil war, and the Extraordinary Chambers of the Courts of Cambodia, which is adjudicating crimes committed in the late 1970s by the Khmer Rouge.
Throughout the 20th Century, there were also discussions about establishing a permanent international criminal court to address conflicts and atrocities if and when they arose. In 1998, 120 States voted to adopt the Rome Statute of the International Criminal Court. The Court came into operation on 1 July 2002 after 60 states completed the legal processes required to formally join the Court (known as States Parties).
Requirements for a case to be heard at the ICC
There are a number of requirements that must be satisfied before a case can be heard by the ICC. These include, that the Court must have “jurisdiction” over the case; the matter must be “admissible”; and finally the case must be ‘triggered’ by the appropriate referral process.
What is the jurisdiction of the ICC (or the types of cases it is empowered to deal with)?
1. Type of allegation
The ICC can only hear allegations about the most serious crimes of concern to the international community. The Rome Statute sets out an exhaustive list of what those crimes are, against the four recognised categories of international crimes: crimes of genocide, crimes against humanity, war crimes and crimes of aggression.
Article 6 defines genocide as certain prohibited conduct, committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.
Article 7 defines crimes against humanity as certain prohibited conduct committed as part of a widespread or systematic attack directed against any civilian population.
Article 8 defines war crimes as breaches of the laws of armed conflict, and contains a long list of prohibited acts during the fighting of both international and non-international wars.
Finally, Article 8bis prohibits “aggression”, which is defined as ‘the planning, preparation, initiation or execution’ by a person in control of the political or military action of a State of an act of aggression (namely, the use of armed force by that State against another State) in manifest violation of the UN Charter.
The ICC cannot yet prosecute individuals for crimes of aggression. It was not until 2010 that States Parties agreed to the definition of aggression for the purpose of the ICC and the special circumstances in which the Court will have jurisdiction over this particular crime (Articles 15bis and 15ter). However, certain pre-conditions have to be met before they come into effect. Those preconditions have not yet been satisfied, at the time of writing in December 2016.
2. A nexus to a State Party
The ICC may only hear a case where the case has certain links to a state that is a member of the Court. According to Article 12, for the purpose of all crimes except aggression (which will have its own unique jurisdictional rules), the events in question must have taken place on the territory of a State Party and/ or the prosecution must be against a national of a State Party. For example, Australia is a State Party to the Court, so a relevant “nexus” exists with regard to crimes that take place in Australia, or which are perpetrated by a person with Australian nationality.
There is also a means by which states that are not parties to the Court can issue a one-off declaration empowering the Court to deal with a matter on its territory or involving one of its nationals.
An exception to this “nexus requirement” is where the U.N. Security Council refers a matter to the Court. Where such a referral occurs, the ICC has jurisdiction irrespective of whether the case has any links to a State party. This reflects the special legal status of the Security Council to take measures intended to protect the peace and security of the international community.
3. The date of the events
The ICC is not a retroactive court. This means that it can only hear cases that relate to events that took place after the Rome Statute came into force for the relevant state to which the case is linked (Article 11). For those states (like Australia) that joined the Court right at its commencement, that date is 1 July 2002. For newer States Parties, the Rome Statute enters into force on the first day of the month after the 60th day following the date that it became a party to the Statute. There is, however, a means by which a state can issue a one-off or ad hoc declaration granting the Court jurisdiction for events on its territory or involving its nationals that predate the declaration, but this can go no further back in time than 1 July 2002.
The same principle against retroactivity will apply to the crime of aggression when it comes into operation. This means that prosecuting individuals for acts of aggression that have occurred prior to such a date (whenever that will be) will not be possible.
When will a case be inadmissible?
A case over which the ICC has jurisdiction is, generally speaking, “admissible” to the Court. However, the Rome Statute sets out a regime where the ICC deals with only the most grave cases and serves to complement, and not replace, national criminal justice efforts.
As a result, in certain circumstances, the Court must determine that a matter is not admissible to be heard before it. Article 17 of the Rome Statute spells out those circumstances. It states that a case is not admissible to the ICC where:
‘The case is being investigated or prosecuted by a State which has a jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
The person concerned has already been tried for conduct which is the subject of the complaint…;
The case is not of sufficient gravity to justify further action by the Court.’
The language of this provision has been designed to ensure that the ICC defers to genuine state criminal justice efforts to deal with a case. But it allows the ICC to go ahead and hear a case where it considers that the State is really trying to protect someone or some events from genuine scrutiny, or where the State lacks the practical capacity to proceed on its own.
Who can ‘trigger’ the bringing of a case before the International Criminal Court?
We all have an interest in the prosecution of people who commit international crimes. However, the ICC can only hear cases that relate to events “referred” to it by specific bodies. The only persons who can formally refer a “situation” to the ICC are States that are parties to the Court and the Security Council.
Furthermore, the ICC Office of the Prosecutor (OTP) has the power to initiate an investigation on its own behalf. In any of these three situations, the OTP will look carefully at the information and evidence available and decide if formal investigations and then prosecutions should commence, taking account of factors set out in Article 53.
Although other States, organisations and individuals lack formal powers to refer a matter to the ICC, the OTP does receive informal communications of information from other sources. If the information provided is compelling, these may prompt it to consider using its own power to commence formal investigations.
Past and current cases
Since 2003 to date (as at 25 July 2016), formal investigations have been commenced into ten different situations and 22 cases have been brought before the International Criminal Court related to some of those situations.
Referred by State Parties (Self-Referrals)
The ICC investigations in Uganda relate to crimes committed in the context of an armed conflict that has taken place primarily in the country’s north and between the Lord’s Resistance army and Ugandan authorities, since 1 July 2002. A number of individuals have been indicted, although some (such as the infamous Joseph Kony) remain at large. Prosecutor v Ongwen is a milestone case arising from the Uganda context as it is the first prosecution relating to crimes (the use of child soldiers) that the accused was himself allegedly a victim of.
The ICC investigations in the DRC relate to crimes committed in the context of armed conflicts that have taken place in northern and eastern provinces of the country, since 1 July 2002. The first trials to have been completed by the ICC to date relate to the situation in DRC, including the Court’s landmark first final judgment in Prosecutor v Lubanga. This case focused primarily upon crimes relating to the use of child soldiers in the DRC conflict. The matter is now at the phase of determining what reparations will flow to the victim communities.
There are two open situations related to the Central African Republic, both of which were referred to the Court by the CAR government. The first relates to crimes committed in the context of an armed conflict in CAR, which saw a peak of violence in 2002 and 2003. The second relates to crimes committed in the context of a renewal of violence in the country since 2012. The more recent violence resulted in the ousting of President Bozizé, who had come to power in the context of the earlier conflict and demonstrates the ongoing political volatility in the country.
Since January 2012, there has been an ongoing armed conflict primarily situated in northern Mali and involving government forces and a number of separate organised armed groups. Phases of the conflict have involved the taking of territory by some of the rebel groups and a military coup in March 2012. This situation now has seen the first guilty plea and first judgment/sentence on the issue of destroying cultural property: that of Ahmad Al Faqi Al Mahdi.
Referred by the United Nations Security Council
In October 2004, the UN Secretary-General Kofi Annan established The International Commission of Inquiry on Darfur to investigate reports of violations of international humanitarian and human rights law, particularly in 2003 to early 2005. In 2005 the Commission reported that there were grounds to believe that crimes against humanity and war crimes had been committed in Darfur and recommended that the situation be referred to the ICC. The Security Council did so on 31 March 2005 through Resolution 1593 (2005). The OTP subsequently determined that there were sufficient grounds to believe that crimes of genocide had also been committed and, in an historic first, indicted sitting head of state, President Omar Al Bashir for crimes under the Rome Statute. However President Al Bashir (along with a number of other wanted persons), remains at large, even though he has since travelled to a number of States that are parties to the ICC. The Darfur cases have therefore stalled, with the OTP on numerous occasions pressing the Security Council to do more to assist in apprehending the indicted persons.
On 26 February 2011 the Security Council adopted Resolution No.1970 (2011) concerning the situation in Libya. The Security Council expressed concerns at the widespread and systematic attacks that were taking place in Libya against the civilian population and the plight of refugees forced to flee the violence, referring the matter to the ICC Prosecutor for investigation. While indicted, former President Muammar Gaddafi was killed in the aftermath of the conflict. Proceedings against a second accused ceased when the Court determined that the matter was being pursued effectively by Libyan authorities. The remaining case is against President Gaddafi’s son, Saif Gaddafi, who the OTP is seeking to obtain from the custody of a militia group in Libya.
Initiated by the Prosecutor
After President Mwai Kibaki was declared the winner of the presidential election held on 27 December 2007, civil unrest and violence erupted in Kenya. On 31 March 2010, Pre-Trial Chamber II granted the OTP’s request to open an investigation on its own motion into crimes against humanity committed between 1 June 2005 and 26 November 2009 in Kenya, and particularly in the post-election context. A number of prosecutions were commenced, however all have subsequently been withdrawn or vacated, with a lack of cooperation by Kenyan authorities and witness interference marring prosecution efforts.
Ivory Coast (Côte d’Ivoire)
Like the Kenyan cases, the Côte d’Ivoire situation relates primarily to alleged crimes against humanity committed in the context of post-election violence in 2010-2011 following contested Presidential election results. On 3 October 2011, the Pre-Trial Chamber III authorised the OTP’s request to investigate events in the Côte d’Ivoire.
In late 2015 the ICC Office of the Prosecutor officially requested to open a situation into alleged crimes committed during the 2008 separatist war in Georgia, involving Georgian, South Ossetian and Russian armed forces. The request was authorised by Pre Trial Chamber I on 27 January 2016, making this the first formal OTP investigation of events outside of Africa that could lead to individual prosecutions in due course.
International sources of law
Rules of Procedure and Evidence - ICC Elements of Crimes - The structure of the elements of the crimes of genocide, crimes against humanity and war crimes follows the structure of the corresponding provisions of articles 6, 7 and 8 of the Rome Statute.
Domestic sources of law
Criminal Code Act 1995 (Cth) Division 268 creates crimes under Australian law that are equivalent to the Rome Statue offences.
International Criminal Court Act 2002 (Cth). The object of this Act is to facilitate Australia's full cooperation with the ICC. .
Read the Press Release from the Attorney’s General Department on Australia Support for the International Criminal Court.