International Criminal Court: HWAG

International Criminal Court

The International Criminal Court (commonly referred to as the ICC or ICCt)^[2] is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although it cannot, until at least 2017,^[3] exercise jurisdiction over the crime of aggression).^[4][5]

It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the International Criminal Court, came into force^[6]—and it can prosecute only crimes committed on or after that date.^[7] The Court's official seat is in The Hague, Netherlands, but its proceedings may take place anywhere.^[8]

As of December 2012, 121 states^[9] are states parties to the Statute of the Court, including all of South America, nearly all of Europe and roughly half the countries in Africa.^[10] A further 32 countries,^[9] including Russia, have signed but not ratified the Rome Statute;^[10] one of them, Ivory Coast, has accepted the Court's jurisdiction.^[11] The law of treaties obliges these states to refrain from “acts which would defeat the object and purpose” of the treaty until they declare they do not intend to become a party to the treaty.^[12] Three of these states—Israel, Sudan and the United States—have informed the UN Secretary General that they no longer intend to become states parties and, as such, have no legal obligations arising from their former representatives' signature of the Statute.^[10][13] 41 United Nations member states^[9] have neither signed nor ratified or acceded to the Rome Statute; some of them, including China and India, are critical of the Court.^[14][15] On 21 January 2009, the Palestinian National Authority formally accepted the jurisdiction of the Court.^[16] On 3 April 2012, the ICC Prosecutor declared himself unable to determine that Palestine is a "state" for the purposes of the Rome Statute.^[17] On 29 November 2012, the United Nations General Assembly voted in favour of recognising Palestine as a non-member observer state which might let the Prosecutor reconsider her predecessor's point of view.^[18]

In June 2010, two amendments to the Rome Statute of the International Criminal Court were adopted by the Review Conference in Kampala, Uganda. The first amendment criminalizes the use of certain kinds of weapons in non-international conflicts whose use was already forbidden in international conflicts.^[19] It is in force in one state party (San Marino); it will enter into force for its second ratifying state, Liechtenstein, on 8 May 2013, its third ratifying state, Samoa, on 25 September 2013, its fourth ratifying state, Trinidad and Tobago, on 13 November 2013, and its fifth ratifying state, Luxembourg, on 15 January 2014.^[20] The second amendment specifies the crime of aggression.^[3] It is in force in no state party but will enter into force for its first ratifying state, Liechtenstein, on 8 May 2013, its second ratifying state, Samoa, on 25 September 2013, its third ratifying state, Trinidad and Tobago, on 13 November 2013, and its fourth ratifying state, Luxembourg, on 15 January 2014.^[21] However, the Court will only have jurisdiction over the crime of aggression after it enters into force for 30 states parties and after the Assembly of States Parties has voted in favour of allowing the Court to have jurisdiction after 1 January 2017.

The Court can generally exercise jurisdiction only in three cases, viz. if the accused is a national of a state party, if the alleged crime took place on the territory of a state party or if a situation is referred to the Court by the United Nations Security Council.^[22] It is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes.^[23][24] Primary responsibility to investigate and punish crimes is therefore left to individual states.^[25]

To date, the Court has opened investigations into eight situations in Africa: the Democratic Republic of the Congo; Uganda; the Central African Republic; Darfur, Sudan; the Republic of Kenya; the Libyan Arab Jamahiriya; the Republic of Côte d'Ivoire and Mali.^[26] Of these eight, four were referred to the Court by the concerned states parties themselves (Uganda, Democratic Republic of the Congo, Central African Republic and Mali), two were referred by the United Nations Security Council (Darfur and Libya) and two were begun proprio motu by the Prosecutor (Kenya and Côte d'Ivoire^[27]).

It has publicly indicted 30 people, proceedings against 24 of whom are ongoing. The ICC has issued arrest warrants for 21 individuals and summonses to nine others. Five individuals are in custody; one of them has been found guilty and sentenced (with an appeal lodged), one has been acquitted and released (with an appeal announced), and three are being tried. Ten individuals remain at large as fugitives (although one is reported to have died). Additionally, three individuals have been arrested by national authorities, but have not yet been transferred to the Court. Proceedings against six individuals have finished following the death of two and the dismissal of charges against the other four.

As of December 2012, the Court's first trial, the Lubanga trial in the situation of the DR Congo, is in the appeals phase after the accused was found guilty and sentenced to 14 years in prison and a reparations regime was established. The Katanga-Chui trial regarding the DR Congo was concluded in May 2012; Mr Ngudjolo Chui was acquitted and released. The Prosecutor has announced her intention to appeal both decisions. The decision regarding Mr Katanga is pending. The Bemba trial regarding the Central African Republic is ongoing with the defence presenting its evidence. A fourth trial chamber, for the Banda-Jerbo trial in the situation of Darfur, Sudan, has been established. There are a fifth and a sixth trial both scheduled to begin in April 2013 in the Kenya situation, namely the Ruto-Sang and the Muthaura-Kenyatta trials for which a single Trial Chamber is responsible. The confirmation of charges hearing in the Laurent Gbagbo case in the Côte d'Ivoire situation will begin on 19 February 2013.