By
Heidi Bucheister
December 2012

The Basics

• The International Criminal Court (ICC) is an independent institution located in The Hague, the Netherlands.
• The Rome Statute, signed 17 July 1998, created the ICC and established how to govern the Court.
• The ICC has been in operation since 1 July 2002.
• The ICC tries cases against people accused of genocide, crimes against humanity, war crimes, or crimes of aggression.
• Jurisdiction can be complicated in some situations, but generally, the Court may only assert jurisdiction in states that have signed the Rome Statute. Interestingly, the ICC cannot try cases for crimes committed before a State signed on to the Statute.
• As of 1 July 2012, 121 States signed and ratified the Rome Statute.
• The ICC consists of the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.

Structure

There are 18 judges in the ICC. The Presidency is comprised of three judges, who are elected from within the 18 judges in the ICC and who each serve 3-year terms. The Presidency is comprised of The President of the Court, a First Vice-President, and a Second Vice-President. Once elected, in accordance with the Statute, these judges oversee the overall management of the ICC, including "judicial/legal functions, administration and external relations."[1]

The Judicial Divisions are the Appeals Division, the Trial Division, and the Pre-Trial Division. The President sits on the Appeals Division, along with four other judges. The Trial and Pre-Trial Divisions consist of no less than 6 judges each, though their proceedings consist of three judges. A single Judge may carry out many of the functions of the Pre-Trial Chamber. The judges are placed in the Divisions based on their qualifications and expertise for a 3-year term, which may be extended for trials they preside over that continue beyond their term.[2]

The Office of the Prosecutor receives referrals for cases and information on crimes within the Court's jurisdiction from States, UN Security Council (UNSC), or based on their own initiatives.[3] It then examines what it receives, potentially conducts investigations, and potentially prosecutes cases before the Court. The Office consists of the Deputy Prosecutor, the Investigations Division, and the Jurisdiction, Complementarity and Cooperation Division.[4]

The Registry, headed by the Registrar, is responsible for judicial and administrative support of all divisions of the ICC, specifically in matters of defense, victims and witnesses, outreach, and detention.[5] The Office of Public Counsel for Victims and the Office of Public Counsel for Defence also technically fall under the Registry, but they essentially function independently and are semi-autonomous.[6]

Historical Context

Before the ICC, four tribunals in particular showed that there was a need for a permanent international court to serve the international community. Two of these tribunals took place after World War II: the International Military Tribunal at Nuremberg (1945-1946) and the International Military Tribunal for the Far East in Tokyo (1946-1948). These tribunals set out largely to punish Nazi leaders and physicians in Germany, as well as the Japanese war criminals who led their people to fight with Germany in the Second World War. The astonishment that existed after the horrors of World War II led to the establishment of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide. The Convention defined genocide as a crime under international law and it was under this convention that the International Law Commission (ILC) was first permitted to explore the possibility of creating an international judicial body for trying people for crimes of genocide.[7]

The ILC consists of thirty-four members who have a "recognized competence in international law" and are nominated and elected by the UN General Assembly.[8] While the ILC continued to conduct research and gather information, The Cold War, starting in the 1950s through the 1980s, caused a decrease in focus and concern for the creation of an international court. The United States and Russia, as well as their respective allies, developed a growing distrust of one another and were constantly engaged in a power struggle, rendering the UN essentially inoperative on many fronts. Consequently, the ILC was not able to make much, if any, progress towards beginning discussions about an international judicial body with governments of the UN Member States. As the Cold War was ending in 1989, the UN General Assembly requested that the ILC "resume work on an international criminal court with jurisdiction to include drug trafficking."[9] This work began to gain momentum again, but in the meantime, the UNSC created the third and fourth tribunals that further influenced the international community. Those were the International Criminal Tribunal for Yugoslavia (ICTY), established in 1993, and the International Criminal Tribunal for Rwanda (ICTR) established in 1994.[10] Though the support for these tribunals was strong, these ad hoc tribunals were, and continue to be, very costly. The ICTY had a budget of approximately $70 million, while Rwanda's tribunal had an annual budget of approximately $40 million. These high financial costs made them less appealing to the UN General Assembly and provided further evidence for the need of an established international court to streamline funds and efforts. It was not until 1994 that the ILC finished drafting a statute for the ICC and submitted it to the General Assembly. After that, an ad hoc committee met twice in 1995 and created the Preparatory Committee to work towards a "widely acceptable consolidated draft text."[11] From 1996 to 1998, the committee had six plenary sessions in order to debate and negotiate the potential court.[12]

Four major issues arose in the negotiations for creating the ICC. "First, the role of the [United Nations] Security Council, second, the level of independence granted to the prosecutor, third, the method by which states would accept the Court's jurisdiction, and fourth, the preconditions that needed to be met in order for the Court to exercise that jurisdiction."[13] Some States remained uncomfortable with the amount of power that was eventually granted to the Court, particularly the United States. While the ICC is a fully independent body from the United Nations, the UN Security Council can delay investigations and prosecutions by passing resolutions supported by at least nine of the UNSC members, as long as no permanent member of the UNSC vote against the delay resolution.[14] [15] If a permanent member of the UNSC does not support the resolution, but does not wish to vote against it either, they may abstain from the vote, therefore not affecting the outcome. This delay that the UNSC can enact by passing a resolution is for a period of 12 months that can be renewed annually, and could be viewed as a potential stalling tactic. The power that the UNSC has to delay cases makes the ICC's independence somewhat questionable.

Finally, the Rome Statute was completed on 17 July 1998, creating the ICC and establishing how the Court would be governed.[16] The ICC has been in operation since 1 July 2002. The four years between the completion of the Statute and the operationalization of the ICC was due to the delays of countries ratifying the Statute. In order for it to be put into force, at least 60 governments needed to ratify the Statute, which finally happened on 11 April 2002.[17] During the months between April and July 2002, a 5-person advance team was put in place to begin the process of setting up the Court. Over the next year, the Assembly of States Parties elected the judges, prosecutors, and a registrar.[18] The States also established the first approved budget for the ICC of approximately €53 million euros for the year 2004.[19] By 2011, the budget nearly doubled to over €103 million.[20]

There is a limited scope as to the types of cases the ICC tries and where the Court may assert jurisdiction. The ICC tries cases against people accused of genocide, crimes against humanity, war crimes, or crimes of aggression. Jurisdiction can be complicated in some situations, but generally, the Court may only assert jurisdiction in states that have signed the Rome Statute. Interestingly, the ICC cannot try cases for crimes committed before a State signed on to the Statute. As of 1 July 2012, 121 countries signed and ratified the Rome Statute.[21]

Process

There are three ways for the ICC to receive a situation to investigate. The first way is that a State Party of the Rome Statute refers a situation to the Prosecutor. The second way is for the UN Security Council to request an investigation of a situation in any State that is a member of the UN. Even if the State to be investigated has not ratified the Rome Statute, they may still be investigated because all member states of the UN are bound by UN resolutions. The third way is on the Office of the Prosecutor's own initiative. Under this course of action, the Prosecutor must request authorization to proceed with an investigation from a Pre-Trial Chamber.[22]

Following the initiation of the investigation, a situation is assigned to a Pre-Trial Chamber. The Prosecutor may decide before or after the initiation of an investigation that there is no basis to proceed. However, if a State or the UNSC has referred the situation to the Prosecutor, the Pre-Trial Chamber may request that the Prosecutor reconsider their decision to end the investigation. Additionally, if the Prosecutor decides not to move forward based on a determination that it would not be in the interest of justice, the Pre-Trial Chamber could choose to review this determination. If the Pre-Trial Chamber chooses to conduct a review, it has to affirm the determination in order for it to stand.[23]

However, if an investigation proves fruitful, the Prosecutor may apply to the Pre-Trial Chamber for a warrant of arrest or a summons to appear for the person suspected of commiting a crime or crimes that fall under the scope and jurisdiction of the ICC. If the Pre-Trial Chamber issues the warrant or summons, it is the hope that the wanted person will be surrendered to the Court or appear voluntarily, at which point a hearing to confirm the charges is held. Of the ICC's suspects which there have been warrants issued, three were arrested by their governments and transferred to The Hauge, while two were arrested by foreign authorities and also transferred to The Hague. Ten of the ICC's suspects appeared before the Court voluntarily.

Once the charges are confirmed, the case is then assigned to a Trial Chamber. During the trial, the Prosecutor must prove the defendant guilty beyond a reasonable doubt. The accused can act as his or her own defense or be represented by counsel. Decisions made by Chambers can be appealed throughout the Pre-Trial and Trial phases, which are reviewed by the Appeals Chamber.[24] Victims can also participate in the proceedings either directly or through legal representation. When the proceedings have concluded, the Trial Chamber decides if the accused is to be acquitted or convicted. If convicted, there will be a sentencing, which can include imprisonment and even reparations to victims.

Investigations and Cases

Since 2004, the Office of the Prosecutor has developed 17 cases, with 30 suspects, out of seven situations that they have fully investigated. Of these seven situations, Member States (Uganda, the Democratic Republic of the Congo, and the Central African Republic) referred three, the UNSC referred two (Libya and Darfur, Sudan), the Office of the Prosecutor initiated one (Kenya), and one state (Cote d'Ivoire) gave jurisdiction to the ICC.[25] Of these 30 suspects,

• 13 remain at large,
• four are awaiting trial,
• charges against another four were not confirmed,
• three are currently on trial,
• two died before they could be brought before the Court,
• two are awaiting a decision of guilty or innocent,
• one is awaiting their charges to be heard, and
• one was convicted.

The conviction is discussed further below.

The Office of the Prosecutor also currently has preliminary examinations for Nigeria, Colombia, Afghanistan, Georgia, Guinea, Honduras, and Korea. The start and progression of these investigations vary, but they range from beginning in 2005 to beginning in 2010 and all are ongoing. Guinea is an example of a case that has resulted in positive consequences, with Guinea moving forward with its own internal trial. Georgia was particularly pressing, as the Prosecutor received 3,851 communications from individuals and civil society organizations.[26] The Russian and Georgian governments have shown some cooperation by participating in meetings with the Office of the Prosecutor and providing information requested by the Prosecutor. The Office has not been so lucky in conducting its preliminary examination of Afghanistan, as it has received no responses to its requests for information from the government.

Success

After nearly two years of analysis and investigation, followed by six years of proceedings, the ICC's first case verdict was handed down on 14 March 2012. Thomas Lubanga Dyilo of the Democratic Republic of Congo was found guilty of enlisting children under the age of 15, conscripting children under the age of 15, and using children under the age of 15 to participate actively in hostilities.[27] On 17 March 2006, there was a public announcement of the issuance of the arrest warrant for Lubanga. In this case, the authorities of the State cooperated and transferred Lubanga to The Hague. Defense counsel was provided to Lubanga because he could not afford to pay for it himself. When there was an issue of evidence favorable to Lubanga being withheld from the Defense and the Trial Chamber because of confidentiality issues, the Court followed judicial procedure. The Court then conducted the appeal process during the Trial phase, ensuring that the trial would not move forward until this issue was resolved. Though these appeals extended the length of the trial, it ensured that Lubanga's human rights and due process were respected, while still successfully achieving some kind of justice for Lubanga's victims.

Lubanga was sentenced to 14 years, which would only be eight more years after the conclusion of the trial since Lubanga was detained in The Hague since 2006. After the proceedings ended, the Trial Chamber issued its first decision on victims' reparations for harm caused by Lubanga.[28] This decision did not outline what reparations should be made to the victims, but rather requested reparations proposals from victims to be submitted to the Trust Fund for Victims, which would then be reviewed by the Chamber. This decision has created some controversy among victims because they are not sure what to expect or that they will even receive anything for their suffering, particularly since Lubanga was found to be indigent.

Controversy

The ICC has been a controversial issue since people began talking about its possible existence. Now that it has been an international judicial entity for 10 years, the consequences seem to be becoming real and some countries continue to avoid ratifying the Rome Statute. For example, though the United States signed the Statute, they have not ratified it because it is viewed as giving up an important piece of state sovereignty.

However, it may be the states that have ratified the Statute that should be the most worried about their sovereignty, as people are beginning to wonder if the investigations are biased, looking at only some parties to a conflict rather than all of them. Another controversy involves the fact that most of the investigations being conducted are in Africa and the Middle East. Some people suggest that this implies a bias or unfair focus on those regions and/or the Court taking advantage of weak states.

Yet, with only one conviction in the 10 years of the ICC's existence, these consequences may seem unreal or unlikely to many still. With the first conviction coming down, and Lubanga only serving eight more years from when the trial finished, the consequences for committing these crimes do not seem to be as harsh as some might think they should or could be for those who are found guilty. Additionally, the amount of time that the investigations and trials take, can allow the suspects to find ways to remain at large, even after a warrant is issued for their arrest.

Another controversial issue regarding the ICC is the role of the UNSC. The two have signed an agreement that lays out how the two bodies will cooperate with one another, largely through administrative procedures and information sharing. However, the UNSC's ability to delay indefinitely any case (as described above) is controversial. Particularly the permanent members of the UNSC have a great power because they can use their veto power to deny the progression of a referral to the ICC, even if other members of the UNSC want to pass such a resolution. With the UNSC's two referrals to the ICC so far, regarding Darfur and Libya, was the Council's motivation pure in achieving justice for the people of those states or did they have other motivations in seeing these situations investigated and potentially prosecuted by the ICC?

These issues also raise questions about the Court achieving what organizations like Human Rights Watch (HRW) believe its mission to be, which they describe as bringing "to trial those most responsible for the gravest crimes representative of underlying patterns of ICC crimes."[29] HRW criticizes the ICC for not conducting thorough enough investigations to go up the chain of command to reach the true leaders who are committing heinous crimes against humanity. There are also criticisms on the way the Court is treating gender, because they are not including rape and sexual violence in the charges against the accused.

The receptiveness and cooperation of the local populations can be important to the work of the ICC in achieving justice. However, if the ICC cannot provide appropriate protections for the physical and economic safety of victims, they may be reluctant to come forward with evidence or to participate in the trial. Victims may therefore never have the opportunity to see justice happen or to reclaim their lives after the traumas they or their families experienced.

These issues are important and their neglect by the Court has rendered it less successful than many had hoped. However, its task is highly complex and political, and it would have been unreasonable to expect it to achieve all its aims without difficulty or controversy. It will be interesting to see how the court addresses these issues in the future, and if it can be made more effective, more broadly accepted, and more cost-effective.

Use the following to cite this article:
Bucheister, Heidi. "The International Criminal Court: An Overview." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. December, 2012. <http://www.beyondintractability.org/essay/international-criminal-court-overview>.

Additional Resources