What is the International Criminal Court (ICC)?
The International Criminal Court is a permanent institution established in 1998 with the Rome Statute (entered into force on 1st July 2002). Its seat is in The Hague in the Netherlands and it exercises its jurisdiction over natural persons for the most serious crimes of concern to the international community, that is to say the crime of genocide; crimes against humanity; war crimes; and, as of amendments made in 2010, the crime of aggression. This differentiates it from the International Court of Justice (ICJ), which cannot prosecute individuals as it has jurisdiction only over legal disputes between states.
The ICC is complementary to national criminal jurisdictions, that is to say a case is inadmissible before the ICC if that case is being investigated or prosecuted by a state that has jurisdiction over it; however, the Court may exercises jurisdiction if the state is unwilling or unable to genuinely investigate or prosecute that case. Once a state has accepted the ICC’s jurisdiction, it is required to cooperate with the Court, for example by arresting and transferring to the ICC’s custody a person who has received an ICC arrest warrant and transits over its territory.
With regard to the ICC’s reach, the ICC’s jurisdiction is potentially universal considering that the United Nations Security Council (UNSC) can refer a case to it. Apart from this case, the Court may exercise its jurisdiction when the crime is committed by a national of one of the states that are parties to the Rome Statute or over their territory. If the state is not party to the Statute it can always accept the exercise of jurisdiction by the Court, by declaration. Finally, the ICC’s jurisdiction is not retrospective, so it is valid only over crimes committed after the entry into force of this Statute for the state involved.
What is the procedure to refer a case to the ICC?
The ICC can gain jurisdiction over a case through multiple channels:
- The Prosecutor: Like the eighteen judges of the Court, the Prosecutor and its Deputy are elected by the Assembly of State Parties (ASP) for a non-renewable mandate of nine years. This independent organ of the Court can initiate a case on its own initiative.
- The United Nations Security Council (UNSC): like Darfur (2005) and Libya (2011), a case can be referred to the Prosecutor by the UNSC acting under Chapter VII of the UN Charter.
- Referral of a situation by a state party: a state party may refer a case to the Prosecutor, specifying the circumstances and providing documentation.
- Self-referral of a situation by a state party: although this is not expressly indicated in the Statute, a state party may refer a case concerning its own nationals and territory. This may be the case when the state lacks the capacity to prosecute those crimes or when the ICC is seen as a more neutral forum. It may also happen that this instrument is used specifically to target opposition forces within a state, as it is explained by Mark Kersten in his Commentary on Uganda.
How many investigations have been opened by the ICC?
At the ICC there are currently 10 situations under investigation. If this stage of the investigation leads the Prosecutor to conclude that there is sufficient basis to prosecute a person who has committed a crime within the jurisdiction of the Court, then a case (or more) is opened. Since its establishment, the Court has opened 23 cases (some with more than one suspect) and issued 29 arrest warrants. Only 6 verdicts have been issued by the judges, this means the other cases are still at earlier stages. One of the latter is the well-known case of Omar al-Bashir, President of Sudan, who is still at large despite two warrants for arrest (the first in 2009, the second in 2010). Unless al-Bashir is arrested and transferred to the courtroom in The Hague for his prosecution, the investigation will continue.
The perception that the ICC is biased against Africa finds plausible justification in the fact that all the ICC’s situations and cases but one have dealt with African nationals, the first one being the indictment of Lord's Resistance Army (LRA)’s commander-in-chief Joseph Kony in July 2005 (still fugitive). The first and only investigation of a situation outside Africa was triggered in 2016, when the ICC opened investigation into the 2008 war in Georgia.
What is the procedure to withdraw from the ICC?
By written notification addressed to the Secretary-General of the United Nations, a state party may withdraw from the Rome Statute. The withdrawal takes effect one year after the date of receipt of the written notification, unless a later date is specified. However, all the criminal investigations and obligations arisen before the date in which the withdrawal enters into effect are not discharged.
* Sources: Rome Statute of the International Criminal Court (A/CONF.183/9 of 17 July 1998, including C.N.651.2010 containing the latest amendments, dated 29 November 2010) and www.icc-cpi.int.