International Criminal Court

International Criminal Court Cour pénale internationale
Official logo
Parties and signatories of the Rome Statute   State party   State party for which it has not entered into force   Signatory that has not ratified   Non-state party, non-signatory
Seat		The Hague, Netherlands
Working languages		English French
Official languages[1]		6 languages Arabic Chinese English French Russian Spanish
Member states		123
Leaders
•	President	Silvia Fernández de Gurmendi
•	Prosecutor	Fatou Bensouda
•	Registrar	Herman von Hebel
Establishment
•	Rome Statute adopted	17 July 1998
•	Entered into force	1 July 2002
Website www.icc-cpi.int

The International Criminal Court (ICC or ICCt)^[2] is an intergovernmental organization and international tribunal that sits in The Hague in the Netherlands. The ICC has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, and war crimes. The ICC is intended to complement existing national judicial systems and it may therefore only exercise its jurisdiction when certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or when the United Nations Security Council or individual states refer investigations to the Court. The ICC began functioning on 1 July 2002, the date that the Rome Statute entered into force. The Rome Statute is a multilateral treaty which serves as the ICC's foundational and governing document. States which become party to the Rome Statute, for example by ratifying it, become member states of the ICC. Currently, there are 123 states which are party to the Rome Statute and therefore members of the ICC.

The ICC has four principal organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry. The President is the most senior judge chosen by his or her peers in the Judicial Division, which hears cases before the Court. The Office of the Prosecutor is headed by the Prosecutor who investigates crimes and initiates proceedings before the Judicial Division. The Registry is headed by the Registrar and is charged with managing all the administrative functions of the ICC, including the headquarters, detention unit, and public defense office.

The Office of the Prosecutor has opened ten official investigations and is also conducting an additional seven preliminary examinations. Thus far, 39 individuals have been indicted in the ICC, including Ugandan rebel leader Joseph Kony, Sudanese president Omar al-Bashir, Kenyan president Uhuru Kenyatta, Libyan leader Muammar Gaddafi, and Ivorian president Laurent Gbagbo.

History

The establishment of an international tribunal to judge political leaders accused of international crimes was first proposed during the Paris Peace Conference in 1919 following the First World War by the Commission of Responsibilities. The issue was addressed again at a conference held in Geneva under the auspices of the League of Nations in 1937, which resulted in the conclusion of the first convention stipulating the establishment of a permanent international court to try acts of international terrorism. The convention was signed by 13 states, but none ratified it and the convention never entered into force.

Following the Second World War, the allied powers established two ad hoc tribunals to prosecute axis power leaders accused of war crimes. The International Military Tribunal, which sat in Nuremberg, prosecuted German leaders while the International Military Tribunal for the Far East in Tokyo prosecuted Japanese leaders. In 1948 the United Nations General Assembly first recognised the need for a permanent international court to deal with atrocities of the kind prosecuted after the Second World War.^[3] At the request of the General Assembly, the International Law Commission (ILC) drafted two statutes by the early 1950s but these were shelved during the Cold War, which made the establishment of an international criminal court politically unrealistic.^[4]

Benjamin B. Ferencz, an investigator of Nazi war crimes after the Second World War, and the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, became a vocal advocate of the establishment of international rule of law and of an international criminal court. In his first book published in 1975, entitled Defining International Aggression: The Search for World Peace, he advocated for the establishment of such a court.^[5]

In June 1989 Prime Minister of Trinidad and Tobago A. N. R. Robinson revived the idea of a permanent international criminal court by proposing the creation of such a court to deal with the illegal drug trade.^[4][6] Following Trinidad and Tobago's proposal, the General Assembly tasked the ILC with once again drafting a statute for a permanent court.^[7] While work began on the draft, the United Nations Security Council established two ad hoc tribunals in early 1990s. The International Criminal Tribunal for the former Yugoslavia was created in 1993 in response to large-scale atrocities committed by armed forces during Yugoslav Wars and the International Criminal Tribunal for Rwanda was created in 1994 following the Rwandan Genocide. The creation of these tribunals further highlighted the need for a permanent international criminal court.^[8]

In 1994, the ILC presented its final draft statute for the International Criminal Court to the General Assembly and recommended that a conference be convened to negotiate a treaty that would serve as the Court's statute.^[9] To consider major substantive issues in the draft statute, the General Assembly established the Ad Hoc Committee on the Establishment of an International Criminal Court, which met twice in 1995. After considering the Committee's report, the General Assembly created the Preparatory Committee on the Establishment of the ICC to prepare a consolidated draft text. From 1996 to 1998, six sessions of the Preparatory Committee were held at the United Nations headquarters in New York City, during which NGOs provided input and attended meetings under the umbrella organisation of the Coalition for an ICC (CICC). In January 1998, the Bureau and coordinators of the Preparatory Committee convened for an Inter-Sessional meeting in Zutphen in the Netherlands to technically consolidate and restructure the draft articles into a draft.

Finally the General Assembly convened a conference in Rome in June 1998, with the aim of finalizing the treaty to serve as the Court's statute. On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the United States, and Yemen.^[10] Following 60 ratifications, the Rome Statute entered into force on 1 July 2002 and the International Criminal Court was formally established.^[11][11] The first bench of 18 judges was elected by the Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the Court on 11 March 2003.^[12]

The Court issued its first arrest warrants on 8 July 2005,^[13] and the first pre-trial hearings were held in 2006.^[14] The Court issued its first judgment in 2012 when it found Congolese rebel leader Thomas Lubanga Dyilo guilty of war crimes related to using child soldiers.^[15]

In 2010 the states parties of the Rome Statute held the first Review Conference of the Rome Statute of the International Criminal Court in Kampala, Uganda. There they adopted, two amendments to the Statute. The second amendment defined the crime of aggression and outlined the procedure by which the ICC could prosecute individuals. However, the conditions outlined in the amendment have not yet been met and the ICC can not yet exercise jurisdiction over crimes of aggression.

Structure

The ICC is governed by an Assembly of States Parties, which is made up of the states which are party to the Rome Statute^[16] The Assembly elects officials of the Court, approves its budget, and adopts amendments to the Rome Statute. The Court itself, however, is composed of four organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.^[17]

State parties

As of May 2015, 123 states^[18] are parties to the Statute of the Court, including all the countries of South America, nearly all of Europe, most of Oceania and roughly half of Africa.^[19] A further 31 countries^[18] have signed but not ratified the Rome Statute.^[19] 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.^[20] Three signatory 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.^[19][21] 41 United Nations member states^[18] have neither signed nor acceded to the Rome Statute; some of them, including China and India, are critical of the Court.^[22][23] Ukraine, a non-ratifying signatory, has accepted the Court's jurisdiction for a period starting in 2013.^[24]

Assembly of States Parties

The Court's management oversight and legislative body, the Assembly of States Parties, consists of one representative from each state party.^[25] Each state party has one vote and "every effort" has to be made to reach decisions by consensus.^[25] If consensus cannot be reached, decisions are made by vote.^[25] The Assembly is presided over by a president and two vice-presidents, who are elected by the members to three-year terms.

The Assembly meets in full session once a year in New York or The Hague, and may also hold special sessions where circumstances require.^[25] Sessions are open to observer states and non-governmental organizations.^[26]

The Assembly elects the judges and prosecutors, decides the Court's budget, adopts important texts (such as the Rules of Procedure and Evidence), and provides management oversight to the other organs of the Court.^[16][25] Article 46 of the Rome Statute allows the Assembly to remove from office a judge or prosecutor who "is found to have committed serious misconduct or a serious breach of his or her duties" or "is unable to exercise the functions required by this Statute".^[27]

The states parties cannot interfere with the judicial functions of the Court.^[28] Disputes concerning individual cases are settled by the Judicial Divisions.^[28]

In 2010, Kampala, Uganda hosted the Assembly's Rome Statute Review Conference.^[29]

The Assembly meets every year rotating between New York and The Hague, the Netherlands.

Organs of the Court

The Court has four organs: the Presidency, the Judicial Division, the Office of the Prosecutor, and the Registry.

Presidency

The Presidency is responsible for the proper administration of the Court (apart from the Office of the Prosecutor).^[30] It comprises the President and the First and Second Vice-Presidents—three judges of the Court who are elected to the Presidency by their fellow judges for a maximum of two three-year terms.^[31] The current (and first female) president is Silvia Fernández de Gurmendi, who was elected on 11 March 2015.^[32][33]

Judicial Divisions

The Judicial Divisions consist of the 18 judges of the Court, organized into three chambers—the Pre-Trial Chamber, Trial Chamber and Appeals Chamber—which carry out the judicial functions of the Court.^[34] Judges are elected to the Court by the Assembly of States Parties.^[34] They serve nine-year terms and are not generally eligible for re-election.^[34] All judges must be nationals of states parties to the Rome Statute, and no two judges may be nationals of the same state.^[35] They must be "persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices".^[35]

The Prosecutor or any person being investigated or prosecuted may request the disqualification of a judge from "any case in which his or her impartiality might reasonably be doubted on any ground".^[36] Any request for the disqualification of a judge from a particular case is decided by an absolute majority of the other judges.^[36] A judge may be removed from office if he or she "is found to have committed serious misconduct or a serious breach of his or her duties" or is unable to exercise his or her functions.^[27] The removal of a judge requires both a two-thirds majority of the other judges and a two-thirds majority of the states parties.^[27]

Office of the Prosecutor

The Office of the Prosecutor is responsible for conducting investigations and prosecutions.^[37] It is headed by the Chief Prosecutor, who is assisted by one or more Deputy Prosecutors.^[17] The Rome Statute provides that the Office of the Prosecutor shall act independently;^[38] as such, no member of the Office may seek or act on instructions from any external source, such as states, international organisations, non-governmental organisations or individuals.^[37]

The Prosecutor may open an investigation under three circumstances:^[37]

• when a situation is referred to him or her by a state party;
• when a situation is referred to him or her by the United Nations Security Council, acting to address a threat to international peace and security; or
• when the Pre-Trial Chamber authorises him or her to open an investigation on the basis of information received from other sources, such as individuals or non-governmental organisations.

Any person being investigated or prosecuted may request the disqualification of a prosecutor from any case "in which their impartiality might reasonably be doubted on any ground".^[38] Requests for the disqualification of prosecutors are decided by the Appeals Chamber.^[38] A prosecutor may be removed from office by an absolute majority of the states parties if he or she "is found to have committed serious misconduct or a serious breach of his or her duties" or is unable to exercise his or her functions.^[27] However, critics of the Court argue that there are "insufficient checks and balances on the authority of the ICC prosecutor and judges" and "insufficient protection against politicized prosecutions or other abuses".^[39] Henry Kissinger says the checks and balances are so weak that the prosecutor "has virtually unlimited discretion in practice".^[40] Some efforts have been made to hold Kissinger himself responsible for perceived injustices of American foreign policy during his tenure in government.^[41]

As of 16 June 2012, the Prosecutor has been Fatou Bensouda of Gambia who had been elected as the new Prosecutor on 12 December 2011.^[42] She has been elected for nine years.^[37] Her predecessor, Luis Moreno Ocampo of Argentina, had been in office from 2003 to 2012.

Registry

The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court.^[43] This includes, among other things, "the administration of legal aid matters, court management, victims and witnesses matters, defence counsel, detention unit, and the traditional services provided by administrations in international organisations, such as finance, translation, building management, procurement and personnel".^[43] The Registry is headed by the Registrar, who is elected by the judges to a five-year term.^[17] The current Registrar is Herman von Hebel, who was elected on 8 March 2013.^[44]

Headquarters, offices and detention unit

The official seat of the Court is in The Hague, Netherlands, but its proceedings may take place anywhere.^[45][46]

The Court is currently housed in interim premises on the eastern edge of The Hague.^[47] It intends to construct the ICC Permanent Premises in the Alexanderkazerne, to the north of The Hague.^[47][48] The land and financing for the new construction have been provided by the Netherlands,^[49] and architects Schmidt Hammer Lassen have been retained to design the project.^[49]

The ICC also maintains a liaison office in New York^[50] and field offices in places where it conducts its activities.^[51] As of 18 October 2007, the Court had field offices in Kampala, Kinshasa, Bunia, Abéché and Bangui.^[51]

The ICC's detention centre comprises twelve cells on the premises of the Scheveningen branch of the Haaglanden Penal Institution, The Hague.^[52] Suspects held by the International Criminal Tribunal for the former Yugoslavia are held in the same prison and share some facilities, like the fitness room, but have no contact with suspects held by the ICC.^[52] The detention unit is close to the ICC's future headquarters in the Alexanderkazerne.^[53]

As of July 2012, the detention centre houses one person convicted by the court, Thomas Lubanga, and four suspects: Germain Katanga, Mathieu Ngudjolo Chui, Jean-Pierre Bemba and Laurent Gbagbo. Additionally, former Liberian President Charles Taylor is held there. Taylor was tried under the mandate and auspices of the Special Court for Sierra Leone, but his trial was held at the ICC's facilities in The Hague because of political and security concerns about holding the trial in Freetown.^[54][55] On 26 April 2012, Taylor was convicted on eleven charges.

The ICC does not have its own witness protection program, but rather must rely on national programs to keep witnesses safe.^[56]

Jurisdiction and admissibility

The Rome Statute requires that several criteria exist in a particular case before an individual can be prosecuted by the Court. The Statute contains three jurisdictional requirements and three admissibility requirements. All criteria must be met for a case to proceed.

Jurisdiction

There are three jurisdictional requirements in the Rome Statute that must be met before a case may begin against an individual. The requirements are (1) subject-matter jurisdiction (what acts constitute crimes), (2) territorial or personal jurisdiction (where the crimes were committed or who committed them), and (3) temporal jurisdiction (when the crimes were committed).

Subject-matter jurisdiction

The Court's subject-matter jurisdiction is the crimes for which individuals can be prosecuted. Individuals can only be prosecuted for crimes that are listed in the Statute. The primary crimes are listed in article 5 of the Statute and defined in later articles: genocide (defined in article 6), crimes against humanity (defined in article 7), war crimes (defined in article 8), and crimes of aggression (defined in article 8 bis).^[57] In addition, article 70 defines offences against the administration of justice, which are also crimes for which individuals can be prosecuted.

Genocide

Article 6 defines the crime of genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group".^[58] There are five such acts which constitute crimes of genocide under article 6:^[59]

1. Killing members of a group
2. Causing serious bodily or mental harm to members of the group
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction
4. Imposing measures intended to prevent births within the group
5. Forcibly transferring children of the group to another group

The definition of these crimes is identical to those contained within the Convention on the Prevention and Punishment of the Crime of Genocide of 1948.

Crimes against humanity

Article 7 defines crimes against humanity as acts "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack".^[60] The article lists 16 such as individual crimes:^[61]

1. Murder
2. Extermination
3. Enslavement
4. Deportation or forcible transfer of population
5. Imprisonment or other severe deprivation of physical liberty
6. Torture
7. Rape
8. Sexual slavery
9. Enforced prostitution
10. Forced pregnancy
11. Enforced sterilization
12. Sexual violence
13. Persecution
14. Enforced disappearance of persons
15. Apartheid
16. Other inhumane acts

War crimes

Article 8 defines war crimes depending on whether an armed conflict is either international (which generally means it is fought between states) or non-international (which generally means that it is fought between non-state actors, such as rebel groups, or between a state and such non-state actors). In total there are 74 war crimes listed in article 8.^[61] The most serious crimes, however, are those that constitute either grave breaches of the Geneva Conventions of 1949, which only apply to international conflicts,^[61] and serious violations of article 3 common to the Geneva Conventions of 1949, which apply to non-international conflicts.^[62]

There are 11 crimes which constitute grave breaches of the Geneva Conventions and which are applicable only to international armed conflicts:^[61]

1. Willful killing
2. Torture
3. Inhumane treatment
4. Biological experiments
5. Willfully causing great suffering
6. Destruction and appropriation of property
7. Compelling service in hostile forces
8. Denying a fair trial
9. Unlawful deportation and transfer
10. Unlawful confinement
11. Taking hostages

There are seven crimes which constitute serious violations of article 3 common to the Geneva Conventions and which are applicable only to non-international armed conflicts:^[61]

1. Murder
2. Mutilation
3. Cruel treatment
4. Torture
5. Outrages upon personal dignity
6. Taking hostages
7. Sentencing or execution without due process

Additionally, there are 56 other crimes which defined by article 8: 35 that apply to international armed conflicts and 21 that apply to non-international armed conflicts.^[61] Such crimes include attacking civilians or civilian objects, attacking peacekeepers, causing excessive incidental death or damage, transferring populations into occupied territories, treacherously killing or wounding, denying quarter, pillaging, employing poison, using expanding bullets, rape and other forms of sexual violence, and conscripting or using child soldiers.^[63]

Crimes of aggression

Article 8 bis defines crimes of aggression, however the Court is not yet able to prosecute individuals for these crimes. The Statute originally provided that the Court could not exercise its jurisdiction over the crime of aggression until such time as the states parties agreed on a definition of the crime and set out the conditions under which it could be prosecuted.^[3][64] Such an amendment was adopted at the first review conference of the ICC in Kampala, Uganda, in June 2010. However, this amendment specified that the ICC would not be allowed to exercise jurisdiction of the crime of aggression until two further conditions had been satisfied: (1) the amendment has entered into force for 30 states parties and (2) on or after 1 January 2017, the Assembly of States Parties has voted in favor of allowing the Court to exercise jurisdiction.

The Statute, as amended, defines the crime of aggression as "the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations."^[65] The Statute defines an "act of aggression" as "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations."^[66] The article also contains a list of seven acts of aggression, which are identical to those in United Nations General Assembly Resolution 3314 of 1974 and include the following acts when committed by one state against another state:^[67]

1. Invasion or attack by armed forces against territory
2. Military occupation of territory
3. Annexation of territory
4. Bombardment against territory
5. Use of any weapons against territory
6. Blockade of ports or coasts
7. Attack on the land, sea, or air forces or marine and air fleets
8. The use of armed forces which are within the territory of another state by agreement, but in contravention of the conditions of the agreement
9. Allowing territory to be used by another state to perpetrate an act of aggression against a third state
10. Sending armed bands, groups, irregulars, or mercenaries to carry out acts of armed force

Offences against the administration of justice

Article 70 criminalizes certain intentional acts which interfere with investigations and proceedings before the Court, including giving false testimony, presenting false evidence, corruptly influencing a witness or official of the Court, retaliating against an official of the Court, and soliciting or accepting bribes as an official of the Court.^[68]

Territorial or personal jurisdiction

For an individual to be prosecuted by the Court either territorial jurisdiction or personal jurisdiction must exist. Therefore, an individual can only be prosecuted if he or she has either (1) committed a crime within the territorial jurisdiction of the Court or (2) committed a crime while a national of a state that is within the territorial jurisdiction of the Court.

Territorial jurisdiction

The territorial jurisdiction of the Court includes the territory, registered vessels, and registered aircraft of states which have either (1) become party to the Rome Statute or (2) accepted the Court's jurisdiction by filing a declaration with the Court.^[69]

In situations that are referred to the Court by the United Nations Security Council, the territorial jurisdiction is defined by the Security Council, which may be more expansive than the Court's normal territorial jurisdiction.^[70] For example, if the Security Council refers a situation that took place in the territory of a state that has both not become party to the Rome Statute and not lodged a declaration with the Court, the Court will still be able to prosecute crimes that occurred within that state.

Personal jurisdiction

The personal jurisdiction of the Court extends to all natural persons who commit crimes, regardless of where they are located or where the crimes were committed, as long as those individuals are nationals of either (1) states that are party to the Rome Statute or (2) states that have accepted the Court's jurisdiction by filing a declaration with the Court.^[69] As with territorial jurisdiction, the personal jurisdiction can be expanded by the Security Council if it refers a situation to the Court.^[70]

Temporal jurisdiction

Temporal jurisdiction is the time period over which the Court can exercise its powers. No statute of limitations applies to any of the crimes defined in the Statute.^[71] However, the Court's jurisdiction is not completely retroactive. Individuals can only be prosecuted for crimes that took place on or after 1 July 2002, which is the date that the Rome Statute entered into force.^[72] However, if a state became party to the Statute, and therefore a member of the Court, after 1 July 2002, then the Court cannot exercise jurisdiction prior to that date for certain cases.^[73] For example, if the Statute entered into force for a state on 1 January 2003, the Court could only exercise temporal jurisdiction over crimes that took place in that state or were committed by a national of that state on or after 1 January 2003.

Admissibility

To initiate an investigation, the Prosecutor must (1) have a "reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed", (2) the investigation would be consistent with the principle of complementarity, and (3) the investigation serves the interests of justice.^[74]

Complementarity

The principle of complementarity means that the Court will only prosecute an individual if states are unwilling or unable to prosecute. Therefore, if legitimate national investigations or proceedings into crimes have taken place or are ongoing, the Court will not initiate proceedings. This principle applies regardless of the outcome of national proceedings.^[75] Even if an investigation is closed without any criminal charges being filed or if an accused person is acquitted by a national court, the Court will not prosecute an individual for the crime in question so long as it is satisfied that the national proceedings were legitimate.^[75]

Gravity

The Court will only initiate proceedings if a crime is of "sufficient gravity to justify further action by the Court".^[76]

Interests of justice

The Prosecutor will initiate an investigation unless there are "substantial reasons to believe that an investigation would not serve the interests of justice" when "[t]aking into account the gravity of the crime and the interests of victims".^[77] Furthermore, even if an investigation has been initiated and there are substantial facts to warrant a prosecution and no other admissibility issues, the Prosecutor must determine whether a prosecution would serve the interests of justice "taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime".^[78]

Procedure

Trial

Trials are conducted under a hybrid common law and civil law judicial system, but it has been argued the procedural orientation and character of the court is still evolving.^[79] A majority of the three judges present, as triers of fact, may reach a decision, which must include a full and reasoned statement.^[80] Trials are supposed to be public, but proceedings are often closed, and such exceptions to a public trial have not been enumerated in detail.^[81] In camera proceedings are allowed for protection of witnesses or defendants as well as for confidential or sensitive evidence.^[82] Hearsay and other indirect evidence is not generally prohibited, but it has been argued the court is guided by hearsay exceptions which are prominent in common law systems.^[83] There is no subpoena or other means to compel witnesses to come before the court, although the court has some power to compel testimony of those who chose to come before it, such as fines.^[84]

Rights of the accused

The Rome Statute provides that all persons are presumed innocent until proven guilty beyond reasonable doubt,^[85] and establishes certain rights of the accused and persons during investigations.^[86] These include the right to be fully informed of the charges against him or her; the right to have a lawyer appointed, free of charge; the right to a speedy trial; and the right to examine the witnesses against him or her.

To ensure "equality of arms" between defence and prosecution teams, the ICC has established an independent Office of Public Counsel for the Defence (OPCD) to provide logistical support, advice and information to defendants and their counsel.^[87][88] The OPCD also helps to safeguard the rights of the accused during the initial stages of an investigation.^[89] However, Thomas Lubanga's defence team say they were given a smaller budget than the Prosecutor and that evidence and witness statements were slow to arrive.^[90]

Victim participation

One of the great innovations of the Statute of the International Criminal Court and its Rules of Procedure and Evidence is the series of rights granted to victims.^[91][92] For the first time in the history of international criminal justice, victims have the possibility under the Statute to present their views and observations before the Court.

Participation before the Court may occur at various stages of proceedings and may take different forms, although it will be up to the judges to give directions as to the timing and manner of participation.

Participation in the Court's proceedings will in most cases take place through a legal representative and will be conducted "in a manner which is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial".

The victim-based provisions within the Rome Statute provide victims with the opportunity to have their voices heard and to obtain, where appropriate, some form of reparation for their suffering. It is the aim of this attempted balance between retributive and restorative justice that, it is hoped, will enable the ICC to not only bring criminals to justice but also help the victims themselves obtain some form of justice. Justice for victims before the ICC comprises both procedural and substantive justice, by allowing them to participate and present their views and interests, so that they can help to shape truth, justice and reparations outcomes of the Court.^[93]

Article 43(6) establishes a Victims and Witnesses Unit to provide "protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses."^[94] Article 68 sets out procedures for the "Protection of the victims and witnesses and their participation in the proceedings."^[95] The Court has also established an Office of Public Counsel for Victims, to provide support and assistance to victims and their legal representatives.^[96]

Reparations

Victims before the International Criminal Court can also claim reparations under Article 75 of the Rome Statute. Reparations can only be claimed when a defendant is convicted and at the discretion of the Court's judges.^[97] So far the Court has ordered reparations against Thomas Lubanga.^[98] Reparations can include compensation, restitution and rehabilitation, but other forms of reparations may be appropriate for individual, collective or community victims. Article 79 of the Rome Statute establishes a Trust Fund to provide assistance before a reparation order to victims in a situation or to support reparations to victims and their families if the convicted person has no money.^[99]

Co-operation by states not party to Rome Statute

One of the principles of international law is that a treaty does not create either obligations or rights for third states (pacta tertiis nec nocent nec prosunt) without their consent, and this is also enshrined in the 1969 Vienna Convention on the Law of Treaties.^[100] The co-operation of the non-party states with the ICC is envisioned by the Rome Statute of the International Criminal Court to be of voluntary nature.^[101] However, even states that have not acceded to the Rome Statute might still be subjects to an obligation to co-operate with ICC in certain cases.^[102] When a case is referred to the ICC by the UN Security Council all UN member states are obliged to co-operate, since its decisions are binding for all of them.^[103] Also, there is an obligation to respect and ensure respect for international humanitarian law, which stems from the Geneva Conventions and Additional Protocol I,^[104] which reflects the absolute nature of IHL.^[105] Although the wording of the Conventions might not be precise as to what steps have to be taken, it has been argued that it at least requires non-party states to make an effort not to block actions of ICC in response to serious violations of those Conventions.^[102] In relation to co-operation in investigation and evidence gathering, it is implied from the Rome Statute^[106] that the consent of a non-party state is a prerequisite for ICC Prosecutor to conduct an investigation within its territory, and it seems that it is even more necessary for him to observe any reasonable conditions raised by that state, since such restrictions exist for states party to the Statute.^[102] Taking into account the experience of the ICTY (which worked with the principle of the primacy, instead of complementarity) in relation to co-operation, some scholars have expressed their pessimism as to the possibility of ICC to obtain co-operation of non-party states.^[102] As for the actions that ICC can take towards non-party states that do not co-operate, the Rome Statute stipulates that the Court may inform the Assembly of States Parties or Security Council, when the matter was referred by it, when non-party state refuses to co-operate after it has entered into an ad hoc arrangement or an agreement with the Court.^[107]

Amnesties and national reconciliation processes

It is unclear to what extent the ICC is compatible with reconciliation processes that grant amnesty to human rights abusers as part of agreements to end conflict.^[108] Article 16 of the Rome Statute allows the Security Council to prevent the Court from investigating or prosecuting a case,^[109] and Article 53 allows the Prosecutor the discretion not to initiate an investigation if he or she believes that "an investigation would not serve the interests of justice".^[110] Former ICC president Philippe Kirsch has said that "some limited amnesties may be compatible" with a country's obligations genuinely to investigate or prosecute under the Statute.^[108]

It is sometimes argued that amnesties are necessary to allow the peaceful transfer of power from abusive regimes. By denying states the right to offer amnesty to human rights abusers, the International Criminal Court may make it more difficult to negotiate an end to conflict and a transition to democracy. For example, the outstanding arrest warrants for four leaders of the Lord's Resistance Army are regarded by some as an obstacle to ending the insurgency in Uganda.^[111][112] Czech politician Marek Benda argues that "the ICC as a deterrent will in our view only mean the worst dictators will try to retain power at all costs".^[113] However, the United Nations^[114] and the International Committee of the Red Cross^[115] maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law.

Finance

The ICC is financed by contributions from the states parties. The amount payable by each state party is determined using the same method as the United Nations:^[116] each state's contribution is based on the country's capacity to pay, which reflects factors such as a national income and population. The maximum amount a single country can pay in any year is limited to 22% of the Court's budget; Japan paid this amount in 2008.

The Court spent €80.5 million in 2007,^[117] and the Assembly of States Parties has approved a budget of €90,382,100 for 2008^[116] and €101,229,900 for 2009.^[118] As of September 2008, the ICC’s staff consisted of 571 persons from 83 states.^[119]

Trial history to date

To date, the Prosecutor opened investigations into ten situations: the Democratic Republic of the Congo; Uganda; Central African Republic I and II; Darfur, Sudan; Kenya; Libya; Côte d'Ivoire; Mali; and Georgia.^[121] Additionally, the Office of the Prosecutor is conducting preliminary examinations in seven matters in Afghanistan, Colombia, Guinea, Iraq, Nigeria, Palestine and Ukraine.^[122]

The Court's Pre-Trial Chambers have publicly indicted 39 people. The ICC has issued arrest warrants for 31 individuals and summonses to eight others. Eight persons are in detention. Proceedings against 25 are ongoing: nine are at large as fugitives, four are under arrest but not in the Court's custody, two are in the pre-trial phase, and ten are at trial. Proceedings against 12 have been completed: two have been convicted, one has been acquitted, four have had the charges against them dismissed, two have had the charges against them withdrawn, one has had his case declared inadmissible, and three have died before trial.

The Lubanga and Katanga-Chui trials in the situation of the DR Congo are concluded. Mr Lubanga and Mr Katanga were convicted and sentenced to 14 and 12 years imprisonment, respectively, whereas Mr Chui was acquitted.

As of January 2016, the Bemba trial regarding the Central African Republic has been closed with the decision pending. Trials in the Ruto-Sang case (Kenya), the Ntaganda case (DR Congo), the Bemba et al. OAJ case and the Laurent Gbagbo-Blé Goudé trial in the Côte d'Ivoire situation are ongoing. The Banda trial in the situation of Darfur, Sudan, was scheduled to begin in 2014 but the start date was vacated. Dominic Ongwen in the Uganda situation is awaiting the decision on the confirmation of charges while, in the Mali situation, Ahmad al-Faqi's confirmation of charges hearings are scheduled for March 2016.

Situations examined

The Court has received complaints about alleged crimes in at least 139 countries, but, currently, the Prosecutor of the Court opened investigations into ten situations: the Democratic Republic of the Congo; Uganda; Central African Republic I and II; Darfur, Sudan; Kenya; Libya; Côte d'Ivoire; Mali; and Georgia.^[123] Additionally, the Office of the Prosecutor is conducting preliminary examinations in seven matters in Afghanistan, Colombia, Guinea, Iraq, Nigeria, Palestine and Ukraine.^[124]

Key:
      Official investigation
      Authorization to open investigation requested
      Preliminary examination ongoing
      Preliminary examination closed

Situation	Referred by	Referred on	Investigation announced on	Status[upper-alpha 1]	File no.	Ref.
Democratic Republic of the Congo	Democratic Republic of the Congo	000000002004-04-16-000016 April 2004	000000002004-06-23-000023 June 2004	Case(s) begun	2004-01 !ICC-01/04	[126]
Uganda	Uganda	000000002003-12-16-000016 December 2003	000000002004-07-29-000029 July 2004	Case(s) begun	2004-02 !ICC-02/04	[127]
Darfur, Sudan	United Nations Security Council	000000002005-03-31-000031 March 2005	000000002005-06-06-00006 June 2005	Case(s) begun	2005-02 !ICC-02/05	[128]
Colombia	—	—	02006-99 !2006	Preliminary (phase 3)	—	[125]
Iraq[upper-alpha 2]	—	—	02006-99 !2006	Preliminary (phase 2)	—	[125]
Venezuela	—	—	02006-99 !2006	Concluded	—	[131]
Central African Republic I	Central African Republic	000000002005-01-07-00007 January 2005	000000002007-05-22-000022 May 2007	Case(s) begun	2005-01 !ICC-01/05	[132]
Afghanistan	—	—	02007-99 !2007	Preliminary (phase 3)	—	[125]
Palestine I	—	—	000000002009-01-22-000022 January 2009	Concluded	—	[133]
Guinea	—	—	000000002009-10-14-000014 October 2009	Preliminary (phase 3)	—	[125]
Honduras	—	—	000000002009-11-18-000018 November 2009	Concluded	—	[125] [134]
Nigeria	—	—	000000002009-11-18-000018 November 2009	Preliminary (phase 3)	—	[125]
Kenya	Proprio motu	—	000000002010-03-31-000031 March 2010	Case(s) begun	2009-01 !ICC-01/09	[135]
Republic of Korea	—	—	000000002010-12-06-00006 December 2010	Concluded	—	[136]
Libya	United Nations Security Council	000000002011-02-26-000026 February 2011	000000002011-03-03-00003 March 2011	Case(s) begun	2011-01 !ICC-01/11	[137]
Côte d'Ivoire	Proprio motu	—	000000002011-10-03-00003 October 2011	Case(s) begun	2011-02 !ICC-02/11	[138]
Mali	Mali	000000002012-07-13-000013 July 2012	000000002013-01-16-000016 January 2013	Case(s) begun	2012-01 !ICC-01/12	[139]
Registered vessels[upper-alpha 3]	Comoros	000000002013-05-14-000014 May 2013	000000002013-05-14-000014 May 2013	Concluded	2013-01 !ICC-01/13	[141]
Ukraine	—	—	000000002014-04-25-000025 April 2014	Preliminary (phase 2)	—	[125]
Central African Republic II	Central African Republic	000000002014-06-12-000012 June 2014	000000002014-09-24-000024 September 2014	Case(s) possible	2014-01 !ICC-01/14	[142]
Palestine II	—	—	000000002015-01-16-000016 January 2015	Preliminary (phase 2)	—	[143] [144]
Georgia	Proprio motu	—	000000002016-01-27-000027 January 2016	Case(s) possible	ICC-01/15	[145]
Notes ↑ The Office of the Prosecutor process preliminary examinations through different phases. Every communication is first given an initial assessment to determine if it is sufficiently serious and if it falls within the Court's jurisdiction (phase 1). If it does, the Office begins a preliminary examination by first considering whether the alleged crimes fall within the subject-matter jurisdiction of the Court (phase 2). If the Office is satisfied that all the jurisdictional requirements are met, it then focuses on issues of admissibility of potential cases by considering complementarity and the gravity of the alleged crimes (phase 3). If there are no admissibility concerns, the Office then considers the interests of justice and decides whether or not begin a formal investigation (phase 4).[125] ↑ The preliminary investigation of the situation in Iraq was initially closed on 9 February 2006.[129] However, it was reopened on 13 May 2014.[130] ↑ The full name is the "situation on registered vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia".[140]

Summary of investigations^{[note 1]} and prosecutions by the International Criminal Court (not including reparations proceedings)

Situation	Publicly indicted	Ongoing procedures				Procedures finished, due to ...				PTC	TCs
		Not before court	Pre-Trial	Trial	Appeal	Death	Inadmissibility	Acquittal	Conviction
		[note 2]	[note 3]	[note 4]	[note 5]	[note 6]	[note 7]	[note 8]		[note 9]	[note 10]
Democratic Republic of the Congo	6	1 Mudacumura	0	1 Ntaganda	0	0	0	2 Chui, Mbarushimana	2 Katanga, Lubanga	I	VI Ntaganda
Uganda	5	2 Kony, Otti	1 Ongwen	0	0	2 Lukwiya, Odhiambo	0	0	0	II
Central African Republic I	5	0	0	5 Bemba (2); Kilolo, Babala, Mangenda, Arido	0	0	0	0	0	II	III Bemba VII Bemba et al.
Darfur, Sudan	7	4 Haroun, Kushayb, al-Bashir, Hussein	1 Banda	0	0	1 Jerbo	0	1 Abu Garda	0	II	IV Banda
Kenya	9	3 Barasa, Gicheru, Bett	0	2 Ruto, Sang	0	0	0	4 Kosgey, Ali, Muthaura, Kenyatta	0	II	V(a) Ruto-Sang
Libya	3	1 S. Gaddafi	0	0	0	1 M. Gaddafi	1 Senussi	0	0	I
Côte d'Ivoire	3	1 S. Gbagbo	0	2 L. Gbagbo, Blé Goudé	0	0	0	0	0	I	I L. Gbagbo-Blé Goudé
Mali	1	0	1 al-Faqi	0	0	0	0	0	0	I
Central African Republic II	0	0	0	0	0	0	0	0	0	II
Georgia	0	0	0	0	0	0	0	0	0	I
Total	39	12	3	10	0	4	1	7	2

Notes

Overview on cases currently active before the ICC (excludes cases against fugitives and reparations proceedings)

Between initial appearance and beginning of confirmation of charges hearing	Between beginning of confirmation of charges hearing and beginning of trial	Between beginning of trial and judgment	Between trial judgment and appeals judgment
		Bemba
		Ruto-Sang
		Ntaganda
		Bemba-Kilolo-Babala-Mangenda-Arido
		L Gbagbo-Blé Goude
	Banda
	Ongwen
al-Faqi

Detailed summary of investigations^{[note 1]} and prosecutions by the International Criminal Court

Situation	Individuals indicted [note 2]	Indicted[note 3] [note 4]					Transfer to ICC Initial appearance [note 5]	Confirmation of charges hearing Result	Trial Result	Appeal hearings Result	Current status	Ref.
		Date	G	CAH	WC	OAJ
Democratic Republic of the Congo Investigation article	Thomas Lubanga Dyilo	10 February 2006	—	—	3	—	17 March 2006 20 March 2006	9-28 November 2006 confirmed 29 January 2007	26 January 2009 – 26 August 2011 convicted 14 March 2012 sentenced 10 July 2012	19–20 May 2014 verdict and sentence confirmed 1 December 2014	Convicted and sentenced to 14 years imprisonment; decision final; reparations regime established; release from custody in the DRC not before 22 September 2017 and not later than 16 March 2020	[146] [147] [148]
	Bosco Ntaganda	22 August 2006 13 July 2012	—	3	7	—	22 March 2013 26 March 2013	10-14 February 2014 confirmed 9 June 2014	began 2 September 2015		In ICC custody; charges confirmed; trial before Trial Chamber VI ongoing	[149]
	Germain Katanga	2 July 2007	—	3	6	—	17 October 2007 22 October 2007	27 June–18 July 2008 confirmed 26 September 2008	24 November 2009 – 23 May 2012 convicted 7 March 2014 sentenced 23 May 2014	Appeals by Prosecution and Defence discontinued	Convicted and sentenced to 12 years imprisonment; decision final; reparations regime to be established; early release from custody in the DRC scheduled for 18 January 2016 (after 8 years, 4 months); in custody of the DRC authorities due to other charges	[150] [151]
	Mathieu Ngudjolo Chui	6 July 2007	—	3	6	—	6 February 2008 11 February 2008		24 November 2009 – 23 May 2012 acquitted 18 December 2012	21 October 2014 acquittal confirmed 27 February 2015	Acquitted by Trial Chamber II, decision final	[152]
	Callixte Mbarushimana	28 September 2010	—	5	6	—	25 January 2011 28 January 2011	16-21 September 2011 dismissed 16 December 2011			Proceedings finished with charges dismissed, released [note 6]	[153] [154]
	Sylvestre Mudacumura	13 July 2012	—	—	9	—					Fugitive	[155]
Uganda Investigation article	Joseph Kony	8 July 2005	—	12	21	—					Fugitive	[156]
	Okot Odhiambo		—	3	7	—					Proceedings finished; died on 27 October 2013
	Raska Lukwiya		—	1	3	—					Proceedings finished; died on 12 August 2006
	Vincent Otti		—	11	21	—					Fugitive, reportedly died in 2007
												[157]
	Dominic Ongwen		—	3	4	—	21 January 2015 26 January 2015	21–27 January 2016			In ICC custody, confirmation of charges hearing held before Pre-Trial Chamber II; decision pending	[158] [159]
Central African Republic	Jean-Pierre Bemba	23 May 2008 10 June 2008	—	3	5	—	3 July 2008 4 July 2008	12-15 January 2009 confirmed 15 June 2009	22 November 2010 – 13 November 2014 verdict to be announced 21 March 2016		In ICC custody, trial before Trial Chamber III closed; decision pending	[160] [161]
		20 November 2013	—	—	—	2	23 November 2013 27 November 2013	in writing confirmed 11 November 2014	began 29 September 2015		In ICC custody, charges confirmed, trial before Trial Chamber VII ongoing	[162]
	Aimé Kilolo Musamba		—	—	—	2	25 November 2013 27 November 2013				Released from ICC custody, charges confirmed, trial before Trial Chamber VII ongoing
	Fidèle Babala Wandu		—	—	—	2
	Jean-Jacques Mangenda Kabongo		—	—	—	2	4 December 2013 5 December 2013
	Narcisse Arido		—	—	—	2	18 March 2014 20 March 2014
Darfur, Sudan Investigation article	Ahmed Haroun	27 April 2007	—	20	22	—					Fugitive	[163]
	Ali Kushayb		—	22	28	—
	Omar al-Bashir	4 March 2009 12 July 2010	3	5	2	—					Fugitive	[164]
	Bahr Idriss Abu Garda	7 May 2009 (summons)	—	—	3	—	18 May 2009	19-29 October 2009 dismissed 8 February 2010			Proceedings finished with charges dismissed [note 6]	[165]
	Abdallah Banda	27 August 2009 (summons) 11 September 2014 (warrant of arrest)	—	—	3	—	17 June 2010	8 December 2010 confirmed 7 March 2011			At large under warrant of arrest, previously appeared voluntarily, charges confirmed, trial before Trial Chamber IV to begin	[166]
	Saleh Jerbo	27 August 2009 (summons)	—	—	3	—					Proceedings finished; died on 19 April 2013
	Abdel Raheem Muhammad Hussein	1 March 2012	—	7	6	—					Fugitive	[167]
Kenya Investigation article	William Ruto	8 March 2011 (summons)	—	4	—	—	7 April 2011	1-8 September 2011 confirmed 23 January 2012	began 10 September 2013		Appearing voluntarily, charges confirmed, trial before Trial Chamber V(a) ongoing	[168]
	Joshua Sang		—	4	—	—
	Henry Kosgey		—	4	—	—		1-8 September 2011 dismissed 23 January 2012			Proceedings finished with charges dismissed [note 6]
	Francis Muthaura	8 March 2011 (summons)	—	5	—	—	8 April 2011	21 September – 5 October 2011 confirmed 23 January 2012			Proceedings finished with confirmed charges withdrawn before trial	[169]
	Uhuru Kenyatta		—	5	—	—
	Mohammed Hussein Ali		—	5	—	—		21 September – 5 October 2011 dismissed 23 January 2012			Proceedings finished with charges dismissed [note 6]
	Walter Barasa	2 August 2013	—	—	—	3					Fugitive	[170]
	Paul Gicheru	10 March 2015	—	—	—	6					Arrested on 30 July 2015, in custody of Kenyan authorities	[171]
	Philip Kipkoech Bett		—	—	—	4
Libya	Muammar Gaddafi	27 June 2011	—	2	—	—					Proceedings finished; died on 20 October 2011	[172]
	Saif al-Islam Gaddafi		—	2	—	—					Arrested on 19 November 2011, in custody of Libyan authorities
	Abdullah Senussi		—	2	—	—					Proceedings finished with case held inadmissible
Ivory Coast	Laurent Gbagbo	23 November 2011	—	4	—	—	30 November 2011 5 December 2011	19–28 February 2013 confirmed 12 June 2014	began 28 January 2016		In ICC custody; charges confirmed; trial before Trial Chamber I ongoing	[173] [174]
	Charles Blé Goudé	21 December 2011	—	4	—	—	22–23 March 2014 27 March 2014	29 September – 2 October 2014 confirmed 11 December 2014
	Simone Gbagbo	29 February 2012	—	4	—	—					Arrested on 11 April 2011, in custody of Ivorian authorities	[175]
Mali Investigation article	Ahmad al-Faqi	18 September 2015	—	—	1	—	26 September 2015 30 September 2015	to begin 1 March 2016			In ICC custody, confirmation of charges hearing to take place before Pre-Trial Chamber I	[176] [177]
Central African Republic II											Investigation initiated	[178]
Georgia											Investigation initiated	[179]

Notes

Relationships

United Nations

Unlike the International Court of Justice, the ICC is legally independent from the United Nations. However, the Rome Statute grants certain powers to the United Nations Security Council, which limits its functional independence. Article 13 allows the Security Council to refer to the Court situations that would not otherwise fall under the Court's jurisdiction (as it did in relation to the situations in Darfur and Libya, which the Court could not otherwise have prosecuted as neither Sudan nor Libya are state parties). Article 16 allows the Security Council to require the Court to defer from investigating a case for a period of 12 months.^[109] Such a deferral may be renewed indefinitely by the Security Council. This sort of an arrangement gives the ICC some of the advantages inhering in the organs of the United Nations such as using the enforcement powers of the Security Council but it also creates a risk of being tainted with the political controversies of the Security Council.^[180]

The Court cooperates with the UN in many different areas, including the exchange of information and logistical support.^[181] The Court reports to the UN each year on its activities,^[181][182] and some meetings of the Assembly of States Parties are held at UN facilities. The relationship between the Court and the UN is governed by a "Relationship Agreement between the International Criminal Court and the United Nations".^[183][184]

Nongovernmental organizations

During the 1970s and 1980s, international human rights and humanitarian Nongovernmental Organizations (or NGOs) began to proliferate at exponential rates. Concurrently, the quest to find a way to punish international crimes shifted from being the exclusive responsibility of legal experts to being shared with international human rights activism.

NGOs helped birth the ICC through advocacy and championing for the prosecution of perpetrators of crimes against humanity. NGOs closely monitor the organization's declarations and actions, ensuring that the work that is being executed on behalf of the ICC is fulfilling its objectives and responsibilities to civil society.^[185] According to Benjamin Schiff, "From the Statute Conference onward, the relationship between the ICC and the NGOs has probably been closer, more consistent, and more vital to the Court than have analogous relations between NGOs and any other international organization."

There are a number of NGOs working on a variety of issues related to the ICC. The NGO Coalition for the International Criminal Court has served as a sort of umbrella for NGOs to coordinate with each other on similar objectives related to the ICC. The CICC has 2,500 member organizations in 150 different countries.^[186] The original steering committee included representatives from the World Federalist Movement, the International Commission of Jurists, Amnesty International, the Lawyers Committee for Human Rights, Human Rights Watch, Parliamentarians for Global Action, and No Peace Without Justice.^[185] Today, many of the NGOs with which the ICC cooperates are members of the CICC. These organizations come from a range of backgrounds, spanning from major international NGOs such as Human Rights Watch and Amnesty International, to smaller, more local organizations focused on peace and justice missions.^[185] Many work closely with states, such as the International Criminal Law Network, founded and predominantly funded by the Hague municipality and the Dutch Ministries of Defense and Foreign Affairs. The CICC also claims organizations that are themselves federations, such as the International Federation of Human Rights Leagues (FIDH).

CICC members ascribe to three principles that permit them to work under the umbrella of the CICC, so long as their objectives match them:

• Promoting worldwide ratification and implementation of the Rome Statute of the ICC
• Maintaining the integrity of the Rome Statute of the ICC, and
• Ensuring the ICC will be as fair, effective and independent as possible^[186]

The NGOs that work under the CICC do not normally pursue agendas exclusive to the work of the Court, rather they may work for broader causes, such as general human rights issues, victims' rights, gender rights, rule of law, conflict mediation, and peace.^[185] The CICC coordinates their efforts to improve the efficiency of NGOs' contributions to the Court and to pool their influence on major common issues. From the ICC side, it has been useful to have the CICC channel NGO contacts with the Court so that its officials do not have to interact individually with thousands of separate organizations.

NGOs have been crucial to the evolution of the ICC, as they assisted in the creation of the normative climate that urged states to seriously consider the Court's formation. Their legal experts helped shape the Statute, while their lobbying efforts built support for it. They advocate Statute ratification globally and work at expert and political levels within member states for passage of necessary domestic legislation. NGOs are greatly represented at meetings for the Assembly of States Parties and they use the ASP meetings to press for decisions promoting their priorities.^[185] Many of these NGOs have reasonable access to important officials at the ICC because of their involvement during the Statute process. They are engaged in monitoring, commenting upon, and assisting in the ICC's activities.

The ICC many time depends on NGOs to interact with local populations. The Registry Public Information Office personnel and Victims Participation and Reparations Section officials hold seminars for local leaders, professionals and the media to spread the word about the Court.^[185] These are the kinds of events that are often hosted or organized by local NGOs. Because there can be challenges with determining which of these NGOs are legitimate, CICC regional representatives often have the ability to help screen and identify trustworthy organizations.

However, NGOs are also "sources of criticism, exhortation and pressure upon" the ICC.^[185] The ICC heavily depends on NGOs for its operations. Although NGOs and states cannot directly impact the judicial nucleus of the organization, they can impart information on crimes, can help locate victims and witnesses, and can promote and organize victim participation. NGOs outwardly comment on the Court's operations, "push for expansion of its activities especially in the new justice areas of outreach in conflict areas, in victims' participation and reparations, and in upholding due-process standards and defense 'equality of arms' and so implicitly set an agenda for the future evolution of the ICC."^[185] The relatively uninterrupted progression of NGO involvement with the ICC may mean that NGOs have become repositories of more institutional historical knowledge about the ICC than have national representatives to it and have greater expertise than some of the organization's employees themselves. While NGOs look to mold the ICC to satisfy the interests and priorities that they have worked for since the early 1990s, they unavoidably press against the limits imposed upon the ICC by the states that are members of the organization. NGOs can pursue their own mandates, irrespective of whether they are compatible with those of other NGOs, while the ICC must respond to the complexities of its own mandate as well as those of the states and NGOs.

Another issue has been that NGOs possess "exaggerated senses of their ownership over the organization and, having been vital to and successful in promoting the Court, were not managing to redefine their roles to permit the Court its necessary independence."^[185] Additionally, because there does exist such a gap between the large human rights organizations and the smaller peace-oriented organizations, it is difficult for ICC officials to manage and gratify all of their NGOs. "ICC officials recognize that the NGOs pursue their own agendas, and that they will seek to pressure the ICC in the direction of their own priorities rather than necessarily understanding or being fully sympathetic to the myriad constraints and pressures under which the Court operates."^[185] Both the ICC and the NGO community avoid criticizing each other publicly or vehemently, although NGOs have released advisory and cautionary messages regarding the ICC. They avoid taking stances that could potentially give the Court's adversaries, particularly the US, more motive to berate the organization.

Criticisms

Western Imperialism accusations

The ICC has been accused of bias and as being a tool of Western imperialism, only punishing leaders from small, weak states while ignoring crimes committed by richer and more powerful states.^{[187][188][189]} This sentiment has been expressed particularly by African leaders due to an alleged disproportionate focus of the Court on Africa, while it claims to have a global mandate; to date, all eight situations which the ICC has investigated are in African countries.^[190][191]

The prosecution of Kenyan Deputy President William Ruto and President Uhuru Kenyatta (charged before becoming president) led to the Kenyan parliament passing a motion calling for Kenya's withdrawal from the ICC, and the country has called on the other 34 African states party to the ICC to withdraw their support, an issue which was discussed at a special African Union (AU) summit in October 2013.

Though the ICC has denied the charge of disproportionately targeting African leaders, and claims to stand up for victims wherever they may be, Kenya was not alone in criticising the ICC. Sudanese President Omar al-Bashir visited Kenya, South Africa, China, Nigeria, Saudi Arabia, United Arab Emirates, Egypt, Ethiopia, Qatar and several other countries despite an outstanding ICC warrant for his arrest but was not arrested; he said that the charges against him are "exaggerated" and that the ICC was a part of a "western plot" against him. Ivory Coast’s government opted not to transfer former first lady Simone Gbagbo to the court but to instead try her at home. Rwanda’s ambassador to the African Union, Joseph Nsengimana, argued that "It is not only the case of Kenya. We have seen international justice become more and more a political matter." Ugandan President Yoweri Museveni accused the ICC of "mishandling complex African issues." Ethiopian Prime Minister Hailemariam Desalegn, the AU chairman, told the UN General Assembly at the General debate of the sixty-eighth session of the United Nations General Assembly: "The manner in which the ICC has been operating has left a very bad impression in Africa. It is totally unacceptable."

AU withdrawal proposal

South African President Jacob Zuma said the perceptions of the ICC as "unreasonable" led to the calling of the special AU summit on 13 October. Botswana is a notable supporter of the ICC in Africa.^[192] At the summit, the AU did not endorse the proposal for a mass withdrawal from the ICC due to lack of support for the idea.^[193] However, the summit did conclude that serving heads of state should not be put on trial and that the Kenyan cases should be deferred. Ethiopian Foreign Minister Tedros Adhanom said: "We have rejected the double standard that the ICC is applying in dispensing international justice."^[194] Despite these calls, the ICC went ahead with requiring William Ruto to attend his trial.^[195] The UNSC was then asked to consider deferring the trials of Kenyatta and Ruto for a year,^[196] but this was rejected.^[197] In November, the ICC's Assembly of State Parties responded to Kenya's calls for an exemption for sitting heads of state^[198] by agreeing to consider amendments to the Rome Statute to address the concerns.^[199]

Checks and balances

Critics of the Court argue that there are "insufficient checks and balances on the authority of the ICC prosecutor and judges" and "insufficient protection against politicized prosecutions or other abuses".^[39]

Concerning the independent Office of Public Counsel for the Defence (OPCD), Thomas Lubanga's defence team say they were given a smaller budget than the Prosecutor and that evidence and witness statements were slow to arrive.^[90]

Rights of the accused

Among those who argue that the protections offered by the ICC are insufficient is the Heritage Foundation, an American conservative think tank based in Washington DC which stated in 2001 that "Americans who appear before the court would be denied such basic U.S. constitutional rights as trial by a jury of one's peers, protection from double jeopardy, and the right to confront one's accusers."^[200] It should be noted, however, that US citizens do not always have a right to a jury trial. In common with the practice of most nation states, American service personnel, for example, tried by courts martial do not have a right to a jury trial in the usual sense nor are the panel members necessarily their peers. By contrast Human Rights Watch claimed in 2006 that "the ICC has one of the most extensive lists of due process guarantees ever written", including "presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; right to be present at trial; right to have charges proved beyond a reasonable doubt; and protection against double jeopardy". Although the United States actually voted against adoption of the Rome treaty, David Scheffer, who led the US delegation to the Rome Conference maintained "when we were negotiating the Rome treaty, we always kept very close tabs on, 'Does this meet U.S. constitutional tests, the formation of this court and the due process rights that are accorded defendants?' And we were very confident at the end of Rome that those due process rights, in fact, are protected, and that this treaty does meet a constitutional test."^[201]

In some common law systems, such as the United States, the right to confront one's accusers is traditionally seen as negatively affected by the lack of an ability to compel witnesses and the admission of hearsay evidence,^[202][203] which along with other indirect evidence is not generally prohibited.^[83]

Limitations

Limitations exist for the ICC. The Human Rights Watch (HRW) reported that the ICC's prosecutor team takes no account of the roles played by the government in the conflict of Uganda, Rwanda or Congo. This led to a flawed investigation, because the ICC did not reach the conclusion of its verdict after considering the governments’ position and actions in the conflict.

Unintentional consequences

Research suggests that prosecutions of leaders in the ICC makes dictators less likely to peacefully step down.^[204]

See also

• Agreement on the Privileges and Immunities of the International Criminal Court

Notes and references

• Calvo-Goller, Karin, The Trial Proceedings of the International Criminal Court – ICTY and ICTR Precedents, Martinus Nijhoff Publishers, 2006, (ISBN 90 04 14931 7).
• Calvo-Goller, Karin, La procédure et la jurisprudence de la Cour pénale internationale, (Preface by Pr Robert Badinter), Lextenso éditions – La Gazette du Palais, 2012 (ISBN 978-2-35971-029-8).
• Fichtelberg, Aaron. "Fair Trials and International Courts: A Critical Evaluation of the Nuremberg Legacy." Criminal Justice Ethics 28.1 (2009): 5-24.

Further reading

• Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law. Oxford: Oxford University Press (2003). ISBN 0-19-927424-X.
• Anne-Marie de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR. Antwerp – Oxford: Intersentia (2005). ISBN 90-5095-533-9.
• Calvo-Goller, Karin, The Trial Proceedings of the International Criminal Court – ICTY and ICTR Precedents, Martinus Nijhoff Publishers, 2006, (ISBN 90 04 14931 7).
• Calvo-Goller, Karin, La procédure et la jurisprudence de la Cour pénale internationale, (Preface by Pr Robert Badinter), Lextenso éditions – La Gazette du Palais, 2012, (ISBN 978-2-35971-029-8).
• Antonio Cassese, Paola Gaeta & John R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary. Oxford: Oxford University Press (2002). ISBN 978-0-19-829862-5.
• Louise Chappell, 'The Role of the ICC in Transitional Gender Justice: Capacity and Limitations' in Susanne Buckley-Zistel/Ruth Stanley (eds.): Gender in Transitional Justice, Palgrave, 2012, pp. 37–58.
• Hans Köchler, Global Justice or Global Revenge? International Criminal Justice at the Crossroads. Vienna/New York: Springer, 2003, ISBN 3-211-00795-4.
• Kreicker, Helmut (July 2009). "Immunität und IStGH: Zur Bedeutung völkerrechtlicher Exemtionen für den Internationalen Strafgerichtshof" (PDF). Zeitschrift für internationale Strafrechtsdogmatik (ZIS). 
• Helmut Kreicker: Völkerrechtliche Exemtionen: Grundlagen und Grenzen völkerrechtlicher Immunitäten und ihre Wirkungen im Strafrecht. 2 vol., Berlin 2007, ISBN 978-3-86113-868-6. See also "S107". Mpicc.de. 30 November 2010. Retrieved 1 March 2011. 
• Steven C. Roach (ed.) Governance, Order, and the International Criminal Court: Between Realpolitik and a Cosmopolitan Court. Oxford: Oxford University Press (2009). ISBN 978-0-19-954673-2.
• Roy S Lee (ed.), The International Criminal Court: The Making of the Rome Statute. The Hague: Kluwer Law International (1999). ISBN 90-411-1212-X.
• Roy S Lee & Hakan Friman (eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence. Ardsley, NY: Transnational Publishers (2001). ISBN 1-57105-209-7.
• Madeline Morris (ed.), "The United States and the International Criminal Court", Law and Contemporary Problems, Winter 2001, vol. 64, no. 1. Retrieved 2007-07-24.
• Luke Moffett, Justice for Victims before the International Criminal Court, Routledge (2014). ISBN 978-0415722391.
• William A Schabas, An Introduction to the International Criminal Court (2nd ed.). Cambridge: Cambridge University Press (2004). ISBN 0-521-01149-3.
• Benjamin N. Schiff. Building the International Criminal Court. Cambridge: Cambridge University Press (2008) ISBN 9780521873123
• Nicolaos Strapatsas, "Universal Jurisdiction and the International Criminal Court", Manitoba Law Journal, 2002, vol. 29, p. 2.
• Lyal S. Sunga, "The Crimes within the Jurisdiction of the International Criminal Court (Part II, Articles 5–10)", European Journal of Crime, Criminal Law and Criminal Justice vol. 6, no. 4, pp. 377–399 (April 1998).
• Lyal S. Sunga, "The Emerging System of International Criminal Law: Developments in Codification and Implementation" (Brill) (1997).
• Averting Palestinian Unilateralism: The International Criminal Court and the Recognition of the Palestinian Authority as a Palestinian State, Ambassador Dore Gold with Diane Morrison, October 2010
• Fichtelberg, Aaron. "Fair Trials and International Courts: A Critical Evaluation of the Nuremberg Legacy." Criminal Justice Ethics 28.1 (2009): 5-24. ProQuest Criminal Justice. Web. 16 October 2013.
• David Bosco, Rough Justice: The International Criminal Court's Battle to Fix the World, One Prosecution at a Time, Oxford University Press, 2014.

External links

Wikisource has original text related to this article: Rome Statute

Wikimedia Commons has media related to ICC.

• Official website
• Al-Jazeera Inside Story on ICC
• The States Parties to the Rome Statute
• United Nations website on the Rome Statute
• International Criminal Court, International Committee of the Red Cross. -- broken link
• The Coalition for the International Criminal Court
• The International Criminal Court by Amnesty International USA
• Victims' Rights Working Group
• "Transnational Crime." Oxford Bibliographies Online: Criminology.
• Cosy club or sword of righteousness?, The Economist, Nov.26th, 2011. http://www.economist.com/node/21540230.
• Nice idea, now make it work, The Economist, Dec.6th, 2014. http://www.economist.com/news/international/21635470-international-criminal-court-struggling-justify-itself-amid-accusations-bias
• Immunity of state officials from foreign criminal jurisdiction – Bibliographies on the topics of the International Law Commission (no. 8 in the list) (UNOG Library)
• A collection of primary documents critical to an understanding of the Evolution of the Legal Jurisdiction of the International Criminal Court

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