The International Criminal Court (ICC) was
established by the Rome Statute of the International Criminal Court on 17 July
1998, by 120 States. This is the first ever permanent, treaty based,
international criminal court established to promote the rule of law and ensure
that the gravest international crimes do not go unpunished.
The Statute sets out the Court's
jurisdiction, structure and functions. It entered into force on 1 July 2002.
Anyone who commits any of the crimes under the Statute after this date will
be liable for prosecution by the Court.
Seat: The Hague in The Netherlands.
The International Criminal Court is an
independent international organisation. In accordance with article 2 of the
Rome Statute, the relationship with the United Nations system is governed by an
agreement that has been approved by the Assembly of States Parties and will be
concluded by the President of the Court on its behalf.
Once a State becomes a party to the Statute,
it accepts the Court's jurisdiction with respect to crimes under the Statute.
For the Court to exercise its jurisdiction, the territorial State (the State on
whose territory the situation which is being investigated has taken or is
taking place), or the State of nationality (the State whose nationality is
possessed by the person who is being investigated) must be a party to the
Statute.
The ICC will not replace national courts, but
will be complementary to national criminal jurisdictions. The Court will only
investigate and prosecute if a State is unwilling or unable to genuinely
prosecute. This will be determined by the judges. Unjustified delays in
proceedings as well as proceedings which are merely intended to shield persons
from criminal responsibility will not render a case inadmissible before the
ICC.
The Court's jurisdiction will be limited to
the most serious crimes of concern to the international community as a whole.
It will therefore have jurisdiction with respect to the crimes of genocide,
crimes against humanity and war crimes, all of which are fully defined in the
Statute and further elaborated by the Elements of Crimes.
Even though the Court has jurisdiction over
aggression, it will not exercise such jurisdiction until the crime has been
further defined and conditions under which the Court will exercise its
jurisdiction have been agreed upon.
The Court only has jurisdiction over natural
persons aged 18 and above. Official capacity as a Head of State or Government,
a member of a Government or parliament, an elected representative or a
government official does not exempt a person from criminal responsibility.
Commanders and superiors will also be held
liable for criminal offences committed by forces under their effective command
and control or effective authority and control.
The Court may exercise its
jurisdiction with respect to the crime of genocide, crimes against humanity and
war crimes either when the situation is referred to the Prosecutor by a State
Party or by the Security Council, or when the Prosecutor decides to initiate an
investigation his or her own decision and on the basis of information received.
However, in this last case, the Prosecutor must seek the authorization of the
Pre-Trial Chamber before proceeding with the investigation.
When the situation is referred to the
Prosecutor by the Security Council, the Court may exercise its jurisdiction in
all cases and no preconditions are applicable.
However, in the two other cases, when the
Prosecutor decides to initiate an investigation on his or her own decision with
the authorization of the Pre-Trial Chamber, or when the situation is referred
to the Prosecutor by a State Party, strict preconditions shall be met before
the Court can exercise its jurisdiction.
Indeed, in those two cases, the Court may
exercise its jurisdiction only if either the State on the territory of which
the suspected crime occurred (State of territoriality), or the State of which
the person suspected of having committed the crime is a national (State of
nationality of the suspected person), is a State Party to the Statute.
If neither of these two States is a State
Party to the Statute, the Court will not be in a position to investigate the
suspected crimes, except if either the State of territoriality or the State of
nationality of the suspected person accepts the exercise of jurisdiction of the
Court by declaration lodged with the Registrar.
Victims
For the first time in the history of
international criminal justice, victims have won the right in the Statute of
the International Criminal Court to make submissions directly, as well as
through counsel, and to make applications for compensation. This is because the
victims before the two ad hoc tribunals for the former Yugoslavia and Rwanda
are in fact witnesses who have no independent participation in the proceedings,
but are only called on to give evidence by the parties to the proceedings.
For the first time in the history of humanity, an international court has the
power to order an individual to pay compensation to another individual; it is
also the first time that an international criminal court has had such power.
Pursuant to article 75, the Court may lay
down the principles for compensation for victims, which may include
restitution, indemnification and rehabilitation. On this point, the Rome
Statute of the International Criminal Court has benefited from all the work
carried out with regard to victims, in particular within the United Nations.
The Court must also enter an order against a convicted person stating the
appropriate compensation for the victims or their beneficiaries. This
compensation may also take the form of restitution, indemnification or
rehabilitation. The Court may order this compensation to be paid through the
Victims' Fund, which was set up by the Assembly of States Parties in September
2002.
. The Court has jurisdiction in
accordance with this Statute with respect to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.
Genocide:
genocide" means any of the
following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Crimes against humanity
1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
War crimes
1.
The Court shall have jurisdiction in respect of war crimes in particular when
committed as part of a plan or policy or as part of a large-scale commission of
such crimes.
2.
For the purpose of this Statute, "war crimes" means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
The US critics to the International Criminal Court