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International Criminal Court
Cour pénale internationale
Signed but not ratified
Neither signed nor acceded
|Seat||The Hague, Netherlands|
|Statute in force for||122 states|
|-||First Vice-President||Sanji Mmasenono Monageng|
|-||Rome Statute adopted||17 July 1998|
|-||Entered into force||1 July 2002|
International Criminal Court
Cour pénale internationale
Signed but not ratified
Neither signed nor acceded
|Seat||The Hague, Netherlands|
|Statute in force for||122 states|
|-||First Vice-President||Sanji Mmasenono Monageng|
|-||Rome Statute adopted||17 July 1998|
|-||Entered into force||1 July 2002|
The International Criminal Court (commonly referred to as the ICC or ICCt) is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although jurisdiction for the crime of aggression will not be awakened until 2017 at the earliest).
The ICC was created by the Rome Statute which came into force on 1 July 2002. The Court has established itself in The Hague, Netherlands, but its proceedings may take place anywhere. It is intended to complement existing national judicial systems, and may only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes.
Currently, 122 states are states parties to the Statute of the Court, including all of South America, nearly all of Europe, most of Oceania and roughly half the countries in Africa. A further 31 countries, including Russia, have signed but not ratified the Rome Statute. 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. Three of these states—Israel, Sudan and the United States—have informed the UN Secretary General that they no longer intend to become states parties and, as such, have no legal obligations arising from their former representatives' signature of the Statute. 41 United Nations member states have neither signed nor ratified or acceded to the Rome Statute; some of them, including China and India, are critical of the Court. On 21 January 2009, the Palestinian National Authority formally accepted the jurisdiction of the Court. On 3 April 2012, the ICC Prosecutor declared himself unable to determine that Palestine is a "state" for the purposes of the Rome Statute and referred such decision to the United Nations. On 29 November 2012, the United Nations General Assembly voted in favor of recognizing Palestine as a non-member observer state.
The ICC has been accused by many, including the African Union, for primarily targeting people from Africa; to date, all the ICC's cases have been from African countries. Four out of eight current investigations originate, however, from the referrals of the situations to the Court by the concerned states parties themselves.
To date, the Prosecutor has opened investigations into eight situations in Africa: the Democratic Republic of the Congo; Uganda; the Central African Republic; Darfur, Sudan; the Republic of Kenya; the Libyan Arab Jamahiriya; the Republic of Côte d'Ivoire and Mali. Of these eight, four were referred to the Court by the concerned states parties themselves (Uganda, Democratic Republic of the Congo, Central African Republic and Mali), two were referred by the United Nations Security Council (Darfur and Libya) and two were begun proprio motu by the Prosecutor (Kenya and Côte d'Ivoire). Additionally, by Power of Attorney from the Union of the Comoros, a law firm referred the situation on the Comorian-flagged MV Mavi Marmara vessel to the Court, prompting the Prosecutor to initiate a preliminary examination.
The Court's Pre-Trial Chambers have publicly indicted 36 people. The ICC has issued arrest warrants for 27 individuals and summonses to nine others. Seven persons are in detention. Proceedings against 28 are ongoing: ten are at large as fugitives; six have been arrested, but are not in the Court's custody (including one who is appealing an order referring the case against him to national authorities); six are in the pre-trial phase; another four are at trial; one is appealing his sentence; and one individual's acquittal is being appealed by the prosecution. Proceedings against eight have been completed: four have had the charges against them dismissed, one has had the charges against him withdraw, and three have died before trial.
As of November 2013, the Court's first trial, the Lubanga trial in the situation of the DR Congo, is in the appeals phase after the accused was found guilty and sentenced to 14 years in prison and a reparations regime was established. The Katanga-Chui trial regarding the DR Congo was concluded in May 2012; Mr Ngudjolo Chui was acquitted and released. The Prosecutor has appealed the acquittal. The decision regarding Mr Katanga is due to be announced on 7 February 2014. The Bemba trial regarding the Central African Republic is ongoing with the defence presenting its evidence. A fourth trial, in the case Ruto-Sang regarding the situation in Kenya, began on 10 September 2013. There is another trial in the Kenya situation which is scheduled to begin in February 2014, namely the Kenyatta trial. Another trial chamber, for the Banda trial in the situation of Darfur, Sudan, has been established with the trial scheduled to begin in May 2014. The decision on the confirmation of charges in the Laurent Gbagbo case in the Côte d'Ivoire situation is pending after hearings took place in February 2013 and after the decision was adjourned to give the Prosecutor more time to present compelling evidence. The confirmation of charges hearing in the Ntaganda case in the DR Congo situation is scheduled to begin in February 2014. Three suspects in the Bemba et al. OAJ case appeared before the court for the initial appearance on 27 November 2013.
The establishment of an international tribunal to judge political leaders accused of war crimes was first made during the Paris Peace Conference in 1919 by the Commission of Responsibilities. The issue was addressed again at a conference held in Geneva under the auspices of the League of Nations on 1–16 November 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 governments, but was never ratified, and the convention never entered into effect.
The United Nations stated that the General Assembly first recognised the need for a permanent international court to deal with atrocities of the kind committed during World War II in 1948, following the Nuremberg and Tokyo Tribunals. At the request of the General Assembly, the International Law Commission drafted two statutes by the early 1950s but these were shelved as the Cold War made the establishment of an international criminal court politically unrealistic.
Benjamin B. Ferencz, an investigator of Nazi war crimes after World War II and the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, one of the twelve military trials held by the U.S. authorities at Nuremberg, later became a vocal advocate of the establishment of an 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 argued for the establishment of such an international court.
The idea was revived in 1989 when A. N. R. Robinson, then Prime Minister of Trinidad and Tobago, proposed the creation of a permanent international court to deal with the illegal drug trade. While work began on a draft statute, the international community established ad hoc tribunals to try war crimes in the former Yugoslavia and Rwanda, established in 1994, further highlighting the need for a permanent international criminal court.
In June 1989, motivated in part by an effort to combat drug trafficking, Trinidad and Tobago resurrected a pre-existing proposal for the establishment of an ICC and the UN GA asked that the ILC resume its work on drafting a statute. The conflicts in Bosnia-Herzegovina and Croatia as well as in Rwanda in the early 1990s and the mass commission of crimes against humanity, war crimes, and genocide led the UN Security Council to establish two separate temporary ad hoc tribunals to hold individuals accountable for these atrocities, further highlighting the need for a permanent international criminal court.
In 1994, the ILC presented its final draft statute for an ICC to the UN GA and recommended that a conference of plenipotentiaries be convened to negotiate a treaty and enact the Statute. 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 UN GA created the Preparatory Committee on the Establishment of the ICC to prepare a consolidated draft text. From 1996 to 1998, six sessions of the UN Preparatory Committee were held at the United Nations headquarters in New York, in which NGOs provided input into the discussions and attended meetings under the umbrella of the NGO Coalition for an ICC (CICC). In January 1998, the Bureau and coordinators of the Preparatory Committee convened for an Inter-Sessional meeting in Zutphen, the Netherlands to technically consolidate and restructure the draft articles into a draft.
The United States and Israel refuse to ratify, acknowledge or adhere to ICC.
Following years of negotiations, the General Assembly convened a conference in Rome in June 1998, with the aim of finalizing a treaty. 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, United States, and Yemen.
The Rome Statute became a binding treaty on 11 April 2002, when the number of countries that had ratified it reached sixty. The Statute legally came into force on 1 July 2002, and the ICC can only prosecute crimes committed after that date. The first bench of 18 judges was elected by an Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the Court on 11 March 2003. The Court issued its first arrest warrants on 8 July 2005, and the first pre-trial hearings were held in 2006.
During a Review Conference of the International Criminal Court Statute in Kampala, Uganda, two amendments to the Rome Statute of the International Criminal Court were adopted on 10 and 11 June 2010. The second amendment concerns the definition of the crime of aggression.
The Court has four mechanisms which grant it jurisdiction:
(1st) if the accused is a national of a State party to the Rome Statute
(2nd) if the alleged crime took place on the territory of a State Party
(4th) if a State not party to the Statute 'accepts' the Court's jurisdiction.
The ICC is intended to complement existing national judicial systems, and may only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes. The current ICC President, Sang-Hyun Song, has described the Court as a 'failsafe' justice mechanism which holds that States have the primary responsibility to investigate and prosecute Rome Statute crimes occurring within their jurisdiction.
Part 2, Article 5 of the Rome Statute grants the Court jurisdiction over four groups of crimes, which it refers to as the "most serious crimes of concern to the international community as a whole": the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The Statute defines each of these crimes except for aggression. The crime of genocide is unique because the crime must be committed with 'intent to destroy'. Crimes against humanity are specifically listed prohibited acts when committed as part of a widespread or systematic attack directed against any civilian population. The Statute provides that the Court will not exercise its jurisdiction over the crime of aggression until such time as the states parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.
In June 2010, the ICC's first review conference in Kampala, Uganda adopted amendments defining "crimes of aggression" and expanding the ICC's jurisdiction over them. The ICC will not be allowed to prosecute for this crime until at least 2017. Furthermore, it expanded the term of war crimes for the use of certain weapons in an armed conflict not of an international character.
Many states wanted to add terrorism and drug trafficking to the list of crimes covered by the Rome Statute; however, the states were unable to agree on a definition for terrorism and it was decided not to include drug trafficking as this might overwhelm the Court's limited resources. India lobbied to have the use of nuclear weapons and other weapons of mass destruction included as war crimes but this move was also defeated. India has expressed concern that "the Statute of the ICC lays down, by clear implication, that the use of weapons of mass destruction is not a war crime. This is an extraordinary message to send to the international community."
Some commentators have argued that the Rome Statute defines crimes too broadly or too vaguely. For example, China has argued that the definition of 'war crimes' goes beyond that accepted under customary international law.
During the negotiations that led to the Rome Statute, a large number of states argued that the Court should be allowed to exercise universal jurisdiction. However, this proposal was defeated due in large part to opposition from the United States. A compromise was reached, allowing the Court to exercise jurisdiction only under the following limited circumstances:
The Court's jurisdiction does not apply retroactively: it can only prosecute crimes committed on or after 1 July 2002 (the date on which the Rome Statute entered into force). Where a state becomes party to the Rome Statute after that date, the Court can exercise jurisdiction automatically with respect to crimes committed after the Statute enters into force for that state.
The ICC is intended as a court of last resort, investigating and prosecuting only where national courts have failed. Article 17 of the Statute provides that a case is inadmissible if:
"(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court."
Article 20, paragraph 3, specifies that, if a person has already been tried by another court, the ICC cannot try them again for the same conduct unless the proceedings in the other court:
"(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice."
In June 2010, two amendments to the Rome Statute of the International Criminal Court were adopted by the Review Conference in Kampala, Uganda. The first amendment criminalizes the use of certain kinds of weapons in non-international conflicts whose use was already forbidden in international conflicts. It has been ratified by 14 states parties and is in force in three of them. The second amendment specifies the crime of aggression. It has been ratified by 11 states parties and is in force in two of them. However, per the language of the amendment, the Court will only have jurisdiction over the crime of aggression after two additional conditions are met: (1) the amendment has entered into force for 30 states parties and (2) on a date after 1 January 2017, the Assembly of States Parties has voted in favour of allowing the Court to exercise jurisdiction. The ICC is governed by an Assembly of States Parties. The Court consists of four main organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.
As of May 2013[update], 122 states are states parties to the Statute of the Court, including all of South America, nearly all of Europe, most of Oceania and roughly half the countries in Africa. A further 31 countries, including Russia, have signed but not ratified the Rome Statute. 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. Three of these states—Israel, Sudan and the United States—have informed the UN Secretary General that they no longer intend to become states parties and, as such, have no legal obligations arising from their former representatives' signature of the Statute. 41 United Nations member states have neither signed nor ratified or acceded to the Rome Statute; some of them, including China and India, are critical of the Court. On 21 January 2009, the Palestinian National Authority formally accepted the jurisdiction of the Court. On 3 April 2012, the ICC Prosecutor declared himself unable to determine that Palestine is a "state" for the purposes of the Rome Statute and referred such decision to the United Nations. On 29 November 2012, the United Nations General Assembly voted in favour of recognising Palestine as a non-member observer state.
The Court's management oversight and legislative body, the Assembly of States Parties, consists of one representative from each state party. Each state party has one vote and "every effort" has to be made to reach decisions by consensus. If consensus cannot be reached, decisions are made by vote. 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. Sessions are open to observer states and non-governmental organizations.
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. 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".
In 2010, Kampala, Uganda hosted the Assembly's Rome Statute Review Conference.
In 2011, New York hosted the Assembly's Rome Statute Review Conference.
The Presidency is responsible for the proper administration of the Court (apart from the Office of the Prosecutor). 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. The current president is Sang-Hyun Song, who was elected on 11 March 2009.
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. Judges are elected to the Court by the Assembly of States Parties. They serve nine-year terms and are not generally eligible for re-election. All judges must be nationals of states parties to the Rome Statute, and no two judges may be nationals of the same state. 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”.
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". Any request for the disqualification of a judge from a particular case is decided by an absolute majority of the other judges. 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. The removal of a judge requires both a two-thirds majority of the other judges and a two-thirds majority of the states parties.
The Office of the Prosecutor is responsible for conducting investigations and prosecutions. It is headed by the Chief Prosecutor, who is assisted by one or more Deputy Prosecutors. The Rome Statute provides that the Office of the Prosecutor shall act independently; 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.
The Prosecutor may open an investigation under three circumstances:
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". Requests for the disqualification of prosecutors are decided by the Appeals Chamber. 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. 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". Henry Kissinger says the checks and balances are so weak that the prosecutor "has virtually unlimited discretion in practice". Some efforts have been made to hold Kissinger himself responsible for perceived injustices of American foreign policy during his tenure in government.
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. She has been elected for nine years. Her predecessor, Luis Moreno Ocampo of Argentina, had been in office from 2003 to 2012.
The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court. 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”. The Registry is headed by the Registrar, who is elected by the judges to a five-year term. The current Registrar is Herman von Hebel, who was elected on 8 March 2013.
The Court is currently housed in interim premises on the eastern edge of The Hague. It intends to construct the ICC Permanent Premises in the Alexanderkazerne, to the north of The Hague. The land and financing for the new construction have been provided by the Netherlands, and architects Schmidt Hammer Lassen have been retained to design the project.
The ICC also maintains a liaison office in New York and field offices in places where it conducts its activities. As of 18 October 2007, the Court had field offices in Kampala, Kinshasa, Bunia, Abéché and Bangui.
The ICC's detention centre comprises twelve cells on the premises of the Scheveningen branch of the Haaglanden Penal Institution, The Hague. 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. The detention unit is close to the ICC's future headquarters in the Alexanderkazerne.
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. On 26 April 2012, Taylor was convicted on eleven charges.
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. A majority of the three judges present, as triers of fact, may reach a decision, which must include a full and reasoned statement. Trials are supposed to be public, but proceedings are often closed, and such exceptions to a public trial have not been enumerated in detail. In camera proceedings are allowed for protection of witnesses or defendants as well as for confidential or sensitive evidence. 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. 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 are, such as fines.
The Rome Statute provides that all persons are presumed innocent until proven guilty beyond reasonable doubt, and establishes certain rights of the accused and persons during investigations. 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. The OPCD also helps to safeguard the rights of the accused during the initial stages of an investigation. 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.
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. 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 this balance between retributive and restorative justice that will enable the ICC, not only to bring criminals to justice but also to help the victims themselves obtain justice.
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." Article 68 sets out procedures for the "Protection of the victims and witnesses and their participation in the proceedings." The Court has also established an Office of Public Counsel for Victims, to provide support and assistance to victims and their legal representatives. Article 79 of the Rome Statute establishes a Trust Fund to make financial reparations to victims and their families.
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The Rome Statute contains provisions which enable victims to participate in all stages of the proceedings before the Court.
Hence victims may file submissions before the Pre-Trial Chamber when the Prosecutor requests its authorisation to investigate. They may also file submissions on all matters relating to the competence of the Court or the admissibility of cases.
More generally, victims are entitled to file submissions before the Court chambers at the pre-trial stage, during the proceedings or at the appeal stage.
The rules of procedure and evidence stipulate the time for victim participation in proceedings before the Court. They must send a written application to the Court Registrar and more precisely to the Victims' Participation and Reparation Section, which must submit the application to the competent Chamber which decides on the arrangements for the victims' participation in the proceedings. The Chamber may reject the application if it considers that the person is not a victim. Individuals who wish to make applications to participate in proceedings before the Court must therefore provide evidence proving they are victims of crimes which come under the competence of the Court in the proceedings commenced before it. The Section prepared standard forms and a booklet to make it easier for victims to file their petition to participate in the proceedings.
It should be stipulated that a petition may be made by a person acting with the consent of the victim, or in their name when the victim is a child or if any disability makes this necessary.
Victims are free to choose their legal representative who must be equally as qualified as the counsel for the defence (this may be a lawyer or person with experience as a judge or prosecutor) and be fluent in one of the Court's two working languages (English or French).
To ensure efficient proceedings, particularly in cases with many victims, the competent Chamber may ask victims to choose a shared legal representative. If the victims are unable to appoint one, the Chamber may ask the Registrar to appoint one or more shared legal representatives. The Victims' Participation and Reparation Section is responsible for assisting victims with the organisation of their legal representation before the Court. When a victim or a group of victims does not have the means to pay for a shared legal representative appointed by the Court, they may request financial aid from the Court to pay counsel. Counsel may participate in the proceedings before the Court by filing submissions and attending the hearings.
The Registry, and within it the Victims' Participation and Reparation Section, has many obligations with regard to notification of the proceedings to the victims to keep them fully informed of progress. Thus, it is stipulated that the Section must notify victims, who have communicated with the Court in a given case or situation, of any decisions by the Prosecutor not to open an investigation or not to commence a prosecution, so that these victims can file submissions before the Pre-Trial Chamber responsible for checking the decisions taken by the Prosecutor under the conditions laid down in the Statute. The same notification is required before the confirmation hearing in the Pre-Trial Chamber to allow the victims to file all the submissions they require. All decisions taken by the Court are then notified to the victims who participated in the proceedings or to their counsel. The Victims' Participation and Reparation Section has wide discretion to use all possible means to give adequate publicity to the proceedings before the Court (local media, requests for co-operation sent to Governments, aid requested from NGOs or other means).
For the first time in the history of humanity, an international court has the power to order an individual to pay reparation 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 reparation 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 reparation for the victims or their beneficiaries. This reparation may also take the form of restitution, indemnification or rehabilitation. The Court may order this reparation to be paid through the Trust Fund for Victims, which was set up by the Assembly of States Parties in September 2002.
To be able to apply for reparation, victims have to file a written application with the Registry, which must contain the evidence laid down in Rule 94 of the Rules of Procedure and Evidence. The Victims' Participation and Reparation Section prepared standard forms to make this easier for victims. They may also apply for protective measures for the purposes of confiscating property from the persons prosecuted.
The Victims' Participation and Reparation Section is responsible for giving all appropriate publicity to these reparation proceedings to enable victims to make their applications. These proceedings take place after the person prosecuted has been declared guilty of the alleged facts.
The Court has the option of granting individual or collective reparation, concerning a whole group of victims or a community, or both. If the Court decides to order collective reparation, it may order that reparation to be made through the Victims' Fund and the reparation may then also be paid to an inter-governmental, international or national organisation.
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. 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. 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. 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. Also, there is an obligation to respect and ensure respect for international humanitarian law, which stems from the Geneva Conventions and Additional Protocol I, which reflects the absolute nature of IHL. 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. In relation to co-operation in investigation and evidence gathering, it is implied from the Rome Statute 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. 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. 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.
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. Article 16 of the Rome Statute allows the Security Council to prevent the Court from investigating or prosecuting a case, 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”. 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.
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. 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". However, the United Nations and the International Committee of the Red Cross maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law.
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".
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.
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Some argue that the protections offered by the ICC are insufficient. According to the Heritage Foundation "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."
Others argue that the ICC standards are sufficient. According to the Human Rights Watch "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". According to David Scheffer, who led the US delegation to the Rome Conference and who voted against adoption of the treaty, "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."
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, which along with other indirect evidence is not generally prohibited.
The ICC has been criticized for being contrary to the rights guaranteed by the US Constitution due to the absence of jury trials, as well as allegations that retrial is permitted for errors of fact, hearsay is accepted as evidence, and that there is no right to a speedy trial and a public trial, or reasonable bail.
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.
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. This sentiment has been expressed particularly by African leaders due to the disproportionate focus of the Court on Africa; to date, all eight cases which the ICC has investigated are in African countries.
Zimbabwean activist and columnist William Muchayi noted that the court's overwhelming emphasis on prosecution of Africans, while claiming to have a global mandate, only adds support to claims of being a tool of Western imperialism. 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 their withdrawing 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 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 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.” 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. 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. 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." Despite these calls, the ICC went ahead with requiring William Ruto to attend his trial. The UNSC was then asked to consider deferring for a year the trials of Kenyatta and Ruto. In November the ICC's Assembly of State Parties responded by agreeing to consider proposed amendments to the Rome Statue to address the AU's concerns.
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. Because the ICC cannot look into anything that happened before its establishment in 2002, it cannot be said that the ICC is functionally independent from the UN. 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. 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.
The Court cooperates with the UN in many different areas, including the exchange of information and logistical support. The Court reports to the UN each year on its activities, 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".
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. 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. 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. 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. 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:
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. 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. 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. 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. 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." 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." 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." 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.
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: 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, and the Assembly of States Parties has approved a budget of €90,382,100 for 2008 and €101,229,900 for 2009. As of September 2008, the ICC’s staff consisted of 571 persons from 83 states.
Authorization to open investigation requested
Preliminary examination ongoing
Preliminary examination closed
|Situation||Referred by||Referred on||Investigation|
|Democratic Republic of the Congo||Democratic Republic of the Congo||16 April 2004||23 June 2004||Case(s) begun||ICC-01/04|||
|Uganda||Uganda||16 December 2003||29 July 2004||Case(s) begun||ICC-02/04|||
|Central African Republic||Central African Republic||7 January 2005||22 May 2007||Case(s) begun||ICC-01/05|||
|Darfur, Sudan||UN Security Council||31 March 2005||6 June 2005||Case(s) begun||ICC-02/05|||
|Kenya||Pre-Trial Chamber II||31 March 2010||31 March 2010||Case(s) begun||ICC-01/09|||
|Libya||UN Security Council||26 February 2011||3 March 2011||Case(s) begun||ICC-01/11|||
|Côte d'Ivoire||Pre-Trial Chamber III||3 October 2011||3 October 2011||Case(s) begun||ICC-02/11|||
|Mali||Mali||13 July 2012||16 January 2013||Investigation begun||ICC-01/12|||
|Colombia||—||—||2006||Ongoing (phase 3)||—|||
|Afghanistan||—||—||2007||Ongoing (phase 2b)||—|||
|Georgia||—||—||14 August 2008||Ongoing (phase 3)||—|||
|Palestine||—||—||22 January 2009||Concluded||—|| |
|Guinea||—||—||14 October 2009||Ongoing (phase 3)||—|||
|Honduras||—||—||18 November 2009||Ongoing (phase 2b)||—|||
|Nigeria||—||—||18 November 2009||Ongoing (phase 3)||—|||
|Republic of Korea||—||—||6 December 2010||Ongoing (phase 2b)||—|||
|Registered vessels[B]||Comoros||14 May 2013||14 May 2013||Ongoing (phase 1)||ICC-01/13|||
A The Office of the Prosecutor applies different phases to any preliminary examination. Every examination is started with an initial review (phase 1). It is followed by clarifications of jurisdiction, namely temporal, territorial and personal jurisdiction (phase 2a) on one hand and subject-matter jurisdiction (phase 2b) on the other hand. After resolving this, the issue of admissibility (phase 3) and interests of justice (phase 4) complete the procedure.
|Situation||Publicly indicted||Ongoing procedures||Procedures finished, due to ...||PTC||TCs|
|Not before court||Pre-Trial||Trial||Appeal||Death||Acquittal||Conviction|
|[note 2]||[note 3]||[note 4]||[note 5]||[note 6]||[note 7]||[note 8]||[note 9]|
|Democratic Republic of the Congo||6||1|
Kony, Otti, Odhiambo, Ongwen
|Central African Republic||5||2|
Magenda Kabongo, Arido
Kilolo, Babala (+ Bemba)
Haroun, Kushayb, al-Bashir, Hussein
Kosgey, Ali, Muthaura
S. Gaddafi, Senussi
Blé Goudé, S. Gbagbo
|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, Kilolo, Babala|
|Indicted[note 3] [note 4]||Transfer to ICC|
|Confirmation of charges hearing|
|Democratic Republic of the Congo|
|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
|In ICC custody, convicted and sentenced to 14 years imprisonment; reparations regime established; appeals lodged; if conviction and sentence stand, release between 16 July 2015 (two-thirds of sentence) and 16 March 2020|| |
|Bosco Ntaganda||22 August 2006|
13 July 2012
|—||3||7||—||22 March 2013|
26 March 2013
|scheduled to begin|
10 February 2014
|In ICC custody; confirmation of charges hearing before Pre-Trial Chamber II scheduled to begin|||
|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||In ICC custody, trial before Trial Chamber II concluded; judgment to be delivered on 7 February 2014|| |
|Mathieu Ngudjolo Chui||6 July 2007||—||3||6||—||6 February 2008|
11 February 2008
|24 November 2009– 23 May 2012|
acquitted on 18 December 2012
|Acquitted by Trial Chamber II, released from ICC custody; Prosecutor has appealed acquittal|||
|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]|| |
|Sylvestre Mudacumura||13 July 2012||—||—||9||—||Fugitive|||
|Joseph Kony||8 July 2005||—||12||21||—||Fugitive|||
|Vincent Otti||—||11||21||—||Fugitive, reportedly died in 2007|| |
|Raska Lukwiya||—||1||3||—||Proceedings finished; died on 12 August 2006|||
|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
|In ICC custody, trial before Trial Chamber III ongoing|||
|20 November 2013||—||—||—||2||23 November 2013|
27 November 2013
|In ICC custody, awaiting confirmation of charges proceedings|| |
|Aimé Kilolo Musamba||—||—||—||2||25 November 2013|
27 November 2013
|Fidèle Babala Wandu||—||—||—||2|
|Jean-Jacques Mangenda Kabongo||—||—||—||2||In custody of Dutch authorities, expected to be extradited to the ICC|
|Narcisse Arido||—||—||—||2||In custody of French authorities, expected to be extradited to the ICC|
|Ahmed Haroun||27 April 2007||—||20||22||—||Fugitive|||
|Omar al-Bashir||4 March 2009|
12 July 2010
|Bahr Idriss Abu Garda||7 May 2009|
|—||—||3||—||18 May 2009||19-29 October 2009|
dismissed 8 February 2010
|Proceedings finished with charges dismissed [note 6]|||
|Abdallah Banda||27 August 2009|
|—||—||3||—||17 June 2010||8 December 2010|
confirmed 7 March 2011
5 May 2014
|Appearing voluntarily, charges confirmed, trial before Trial Chamber IV to begin|||
|Saleh Jerbo||—||—||3||—||Proceedings finished; died on 19 April 2013|| |
|Abdel Raheem Muhammad Hussein||1 March 2012||—||7||6||—||Fugitive|||
|William Ruto||8 March 2011|
|—||4||—||—||7 April 2011||1-8 September 2011|
confirmed 23 January 2012
10 September 2013
|Appearing voluntarily, charges confirmed, trial before Trial Chamber V(a) ongoing|||
|Henry Kosgey||—||4||—||—||1-8 September 2011|
dismissed 23 January 2012
|Proceedings finished with charges dismissed [note 6]|
|Francis Muthaura||8 March 2011|
|—||5||—||—||8 April 2011||21 September – 5 October 2011|
confirmed 23 January 2012
|Proceedings finished; appeared voluntarily, charges confirmed but withdrawn by Prosecution before trial|||
|Uhuru Kenyatta||—||5||—||—||to begin|
5 February 2014
|Appearing voluntarily, charges confirmed, trial before Trial Chamber V(b) to begin|
|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|||
|Libya||Muammar Gaddafi||27 June 2011||—||2||—||—||Proceedings finished; died on 20 October 2011|||
|Saif al-Islam Gaddafi||—||2||—||—||Arrested on 19 November 2011, in custody of Libyan authorities|| |
|Abdullah Senussi||—||2||—||—||Arrested on 16 March 2012, in custody of Libyan authorities; case held inadmissible by Pre-Trial Chamber; appeal lodged|| |
|Ivory Coast||Laurent Gbagbo||23 November 2011||—||4||—||—||30 November 2011|
5 December 2011
|19–28 February 2013||In ICC custody, pre-trial phase before Pre-Trial Chamber I ongoing, confirmation of charges adjourned with new evidence to be presented by 7 February 2014|| |
|Charles Blé Goudé||21 December 2011||—||4||—||—||Arrested on 17 January 2013, in custody of Ivorian authorities|||
|Simone Gbagbo||29 February 2012||—||4||—||—||Arrested on 11 April 2011, in custody of Ivorian authorities|||
|Registered vessels of the Comoros, Greece and Cambodia||Referred by state party, preliminary examination initiated|||
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