The International Criminal Court (ICC) is a permanent criminal tribunal “based on the voluntary transfer of criminal competences of sovereign states and not unilaterally dictated by an alliance of power nations”.
The Rome Statute of the International Criminal Court (Rome Statute) serving as the fundamental empowering document of the ICC was adopted in 1998. In its preamble, the signatory States recognise that different atrocities and grave crimes deeply threaten “peace, security and well-being of the world” and that perpetrators of these most serious crimes must not go unpunished in order to prevent them from happening again in the future.
The ICC is one of a kind as it represents a remarkable transfer of authority from sovereign States to an international institution. The prosecution of perpetrators of war crimes, including senior military, political, and security officials, are often deemed a sensitive function of the States in question. Yet, more than a hundred States are willing to give an international body the adjudication power to decide whether these individuals should be prosecuted. Ultimately, the ICC is set up to help prevent conflict and replace the rule of force with the rule of law.
To date, 122 countries are State Parties to the Rome Statute. Regrettably however, three of the five permanent members of the Security Council, that is, Russia, China and the United States are not parties. Some 70 other States are yet to join.
The Origin of the ICC
Commentators attribute the birth of the ICC to a fundamental overhaul of international structures after World War II, including the creation of the United Nations and the International Court of Justice.
The Nuremberg trials and the two ad hoc international criminal tribunals – for the former Yugoslavia (ICTY) in 1993 and Rwanda (ICTR) in 1994 – planted the seeds of international criminal law that individuals responsible for mass atrocities must be held accountable regardless of their official position. States began to appreciate that the protection of peace and basic human dignity is a matter of common concern to humankind. The international community believed that a permanent tribunal could be set up to stand ready to investigate future war crimes, crimes against humanity, and acts of genocide.
Notable Features of the ICC
Independence: The ICC is legally independent of the UN. More interestingly, both the Court and its Prosecutor are entirely independent of the Security Council. While drafting the ICC’s founding document, State parties in Rome
“believed the Security Council’s failure to establish international tribunals for crimes in other trouble spots demonstrated that a Security Council gatekeeper would preclude legitimate prosecutions and thus undermine the aim of universal justice”.
Former president of the ICC Sang-Hyun Song identified several other features of the ICC:
Deterrence: The ICC issues arrest warrants for alleged perpetrators, whether they are in power or otherwise. This demonstrates that no one is immune from accountability and the punishment that follows.
Capacity to make a timely intervention: Because of its independence, the ICC requires no approval of political organs to investigate crimes. The Prosecutor publicly announcing its concern is a powerful tool to put the would-be perpetrators on notice that they might be held accountable for their actions. This could also attract local and international attention to the situation and help prevent atrocities by monitoring the situations.
Stabilisation: Recognising past atrocities have been committed and acknowledging the suffering of victims could help stabilise peace. Moreover, holding the architects of the crimes accountable could help societies dismantle criminal networks, which contributes constructively to the recognition of the rule of law.
Norm-setting: The ICC could have the effect of entrenching a system of norms that outlaw atrocities, to eventually building a system that internalised the legal and social norms of the Rome Statute which deem these types of crimes unacceptable anywhere in the world.
Jurisdiction of the ICC
Nature of the crimes
The ICC only has jurisdiction over the most serious crimes designated under Article 5, including the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. Their respective meaning is further explained under Articles 6 – 8.
Initiating an investigation
Cases must come before the ICC in one of the three ways stipulated under Article 13:
- referral by a State Party to the Prosecutor (and in accordance with Article 14);
- the Prosecutor commencing an investigation independently (and in accordance with Article 15); or
- referral by the Security Council to the Prosecutor.
With regard to the first two situations, per Article 12, the Court’s jurisdiction is limited to crimes committed on the territory of or by a national of a State that is either a party to the Rome Statute or that has specifically consented to the Court’s jurisdiction over the specific crime in question. No such limitation applies to Security Council referrals.
In other words, for non-signatory States, the ICC has jurisdiction over crimes committed by it in the territory of a signatory nation. Otherwise, leaders of non-signatory nations can commit crimes in their territories without fear of prosecution. This is subject to the Security Council’s power to override national sovereignty and legitimate a prosecution against a non-signatory outside the ICC jurisdiction.
A further hurdle of admissibility is introduced under Article 17:
Article 17(1)(a): A case that is being investigated or prosecuted by a State which has jurisdiction over it is inadmissible unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
Article 17(1)(b): A case is inadmissible if it 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;
According to some scholars, there are three potential situations where these conditions would not block admissibility:
- a total collapse of the national judicial system;
- a substantial collapse of the national judicial system; or
- the unavailability of the national judicial system.
Each of these situations indicates that the judicial system of the State in question is “unable to obtain the accused or the necessary evidence and testimony, or is otherwise unable to carry out its proceedings”.
Also worth noting is that Article 17 does not take into account the possible defects in the quality of justice of the nation’s legal or judicial systems as grounds to warrant ICC intervention.
Article 17 employs an objective approach in accessing whether the State in question is “unwilling or unable” genuinely to prosecute/investigate. In other words, a universal yardstick is used to test if the conditions laid down in Article 17 is met which to a certain extent reflects the international and non-selective nature of the ICC.
Article 17(1)(d): A case is inadmissible if it is not of sufficient gravity to justify further action by the Court. As noted, the ICC is designed to handle the “most serious crimes”. Yet, there is no consensus as to what crimes are grave enough to warrant international attention and even less about which crimes are the most deserving of ICC resources.
Interest of Justice
After a case has been referred to the Prosecutor, under Article 53(2), he or she must be satisfied that the prosecution is in the interest of justice before commencing. This notion is also considered by the Pre-Trial Chamber of the ICC after the Prosecutor’s request for authorisation of an investigation (pursuant to Article 15).
In one example, the Chamber refused to authorise the Prosecutor’s request to investigate the situation of Afghanistan. A detailed account of what “interests of justice” encompasses can be seen from Judge Antoine Kesia-Mbe Mindua’s separate opinion.
Outcome of the ICC
If, after satisfying all the above hurdles and the ICC accepts a case, several outcomes could follow.
To begin with, if the Prosecutor cannot prove to the Court that the accused committed the alleged offences beyond reasonable doubt, the defendant would be acquitted under Article 66(3).
If a defendant is found guilty, he or she can be punished under Article 77. This includes imprisonment as the basic punishment, with fines or forfeiture being imposed as additional penalties if the Court so directs. The purpose of punishment is to ensure truth and justice for victims and their relatives and emphasises both the aim of social reprobation of the conduct and deterrence. These penalties are formulated in a general way for all crimes enumerated under Article 5 without specifying penalties for different categories of crimes.
One issue that immediately emerges is the question of enforcement. The penalty handed down by the Court would be of little value if it cannot be enforced and the defendant could remain at large. Accordingly, the efficient operation of the ICC relies considerably on international cooperation and judicial assistance.
Concerning a sentence of imprisonment, under Article 103, there is no binding obligation on a State to enforce this penalty and its enforcement depends completely on the State’s willingness. Consequently, the ICC is put “in the unenviable position of having to persuade States Parties to recognise the validity of the ICC sentences of imprisonment with a view to their executability”.
Although enforcement is left to the State, the ICC still has a role to play. Under Article 105, after a State accepts the responsibility to enforce, the penitentiary part of the sentencing is binding on the State. Further, under Article 106, the enforcement of a sentence of imprisonment is subject to the supervision of the ICC.
It is important to distinguish between the factual part of a decision and the penitentiary part. The factual part contains the ICC’s factual findings and identifies the sentenced person. It is authoritative and binds each State Party. On the other hand, the penitentiary part of the sentence contains the exact description of the imposed sanction to be enforced. It is only authoritative at the moment of the State acceptance of the obligation to enforce.
Regarding fines and forfeiture, Article 109 provides for a direct binding obligation of enforcement on the State. More detailed provisions are set out in Rules 217, 218, 220 and 222 of the Rules of Procedures and Evidence of the ICC. The idea of forfeiture reflects the long-standing criminal law rationale that no one should profit from their crimes.
Fines and forfeiture have the added advantage of benefiting victims of crimes and their families through transfer to a Trust Fund following Article 79. It empowers victims to become key stakeholders in the pursuit of transitional justice. Former President Sang pointed out that throughout the years, the Fund has been able to articulate a truly human dimension by:
- providing basic medical services;
- providing vocational training;
- manufacturing and supplying artificial limbs;
- providing community-based educational programmes for children; and
- providing peace education, microloans, reconstructive surgery and trauma-based counselling for rape survivors.
♦ The ICC is a permanent criminal court established to prosecute perpetrators of the most serious crimes.
♦ The Rome Statute lays down the foundation of the ICC.
♦ The jurisdiction of the ICC, subject to the Security Council’s approval, could potentially encompass every individual in the world.
♦ An investigation would be initiated only if it is admissible and is in the interests of justice.
♦ A defendant would be acquitted if the Prosecutor cannot prove beyond reasonable doubt that he or she had committed the offence(s) in question.
♦ Where a defendant is convicted, imprisonment is the basic penalty. Fines and forfeitures would follow in appropriate cases as additional penalties.
♦ Fines and forfeitures may provide indirect benefits to victims of crime where the judges direct the proceeds be transferred to the Trust Fund.
Babaian, Sarah. The International Criminal Court – An International Criminal World Court?. S.l.: Springer, 2018.
Bosco, David L. Rough Justice the International Criminal Court in a World of Power Politics. New York: Oxford University Press, 2014.
Schuerch, Res. The International Criminal Court at the Mercy of Powerful States: An Assessment of the Neo-Colonialism Claim Made by African Stakeholders. The Hague: T.M.C. Asser Press, 2017.
Triffterer, Otto and Kai Ambos (eds). Commentary on the Rome Statute of the International Criminal Court. 3rd ed. München: Beck, C H, 2015.
Last Updated: September, 2019
Author: Frankie Wong