How was the Court created?
The Statute for the creation of the Court was adopted at an international conference in Rome on July 17, 1998. After intense negotiations, 120 countries voted to adopt the treaty. One hundred thirty-nine states have signed the treaty as of mid-2004. Sixty-six countries six more than the threshold needed to establish the court - ratified the treaty on April 11, 2002. This meant that the ICC's temporal jurisdiction commenced on July 1, 2002. In February 2003, the Court's Assembly of States Parties - the ICC's governing body - elected the Court's first eighteen judges. The resulting high quality and diverse judicial bench (the judges include 7 women and represent all the regions of the world) were sworn into office on March 11, 2003, in The Hague, the seat of the court. On April 21, 2003, the Assembly of States Parties elected the chief prosecutor, Luis Moreno Ocampo. As of July 8, 2004, ninety-four countries have ratified the ICC treaty.
Each state party has to adopt laws that set out how the state is going to implement its obligations under the Rome Statute. Such laws cover, for example, the technicalities of the cooperation between the state and the Court, and define the crimes covered by the Rome Statute. Such laws are often called implementing legislation.
Which crimes will the Court prosecute?
The Court will prosecute the most serious crimes that are of concern to the international community. These are crimes of genocide, crimes against humanity, and war crimes. It has been proposed that the Court should prosecute the crime of aggression but the state parties have yet to agree on a definition. Below are brief definitions of the crimes as agreed to in the Rome Statute.
What is genocide?
Genocide occurs when acts are committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. Such acts of genocide can be carried out by:
killing members of the targeted group;
causing serious bodily or mental harm to members of the group;
deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
imposing measures intended to prevent births within the group;
or forcibly transferring children of the group to another group.
This definition of genocide is based on the definition found in the 1948 U.N. Convention on the Prevention and Punishment of the Crime of Genocide, which confirmed genocide as a crime under international law in the aftermath of the Holocaust.
What are crimes against humanity?
Crimes against humanity are crimes that are committed as part of a widespread or systematic attack directed against any civilian population. They can include acts such as:
forcible transfer of population
other forms of sexual violence
persecution against any identifiable group or collectivity
enforced disappearance of persons
the crime of apartheid
other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
What are war crimes?
War crimes are grave breaches of the Geneva Conventions of 12 August 1949 and other serious violations of the laws and customs applicable in armed conflicts. The Geneva Conventions are international agreements defining the rules of war. They set international standards for the protection of the civilian population and the treatment of combatants in international and internal armed conflicts.
War crimes are committed in the context of armed conflict. Some war crimes are specifically linked to internal armed conflict such as civil war and others are linked to international armed conflict. But most war crimes can occur in both situations.
Given that foreign troops have fought on Congolese soil, the DRC conflict has both an international and an internal dimension.
In northern Uganda, foreign troops have not been involved directly, and hence the war there is understood to be an internal armed conflict.
War crimes in international armed conflicts consist of acts such as:
torture or inhuman treatment including biological experiments
willfully causing great suffering or serious injury to body or health
extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly
compelling a prisoner of war or other protected person to serve in the forces of a hostile power
willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial
unlawful deportation or transfer or unlawful confinement
taking of hostages.
War crimes in internal armed conflicts include acts such as
violence to life and person, in particular murder of all kinds
mutilation, cruel treatment and torture;
outrages upon personal dignity, in particular humiliating and degrading treatment
taking of hostages
conscripting and enlisting children under the age of fifteen years
In addition to the Geneva Conventions, other violations of the laws and customs of war can also be war crimes. The Rome Statute lists a wide range of such acts. Examples include:
intentionally directing attacks against the civilian population;
intentionally directing attacks against civilian objects;
intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission;
killing or wounding a combatant who, having laid down his arms or having no further means of defence, has surrendered..
Under international law, such acts can be war crimes even if they are not committed as part of a systematic or widespread attack on civilians, but if they are only rare or sporadic. However, the authority of the International Criminal Court is more limited. According to the Rome Statute, « 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 ».
Can the Court prosecute crimes of aggression?
No. When the statute of the International Criminal Court was prepared, countries could not agree on a definition of aggression as individual crime. Seven years after the entry into force of the Rome Statute (in 2009), the issue of aggression will be reviewed. If a sufficient number of states agree on a definition, it will be included in the Rome Statute, and only then could the Court prosecute crimes of aggression.
The question of aggression is of great importance to the DRC because troops from Rwanda and Uganda attacked and occupied part of the DRC for several years. The Security Council stated that Uganda and Rwanda have violated the sovereignty and territorial integrity of the Democratic Republic of the Congo (Resolution 1304 on 16 June 2000), and many others have adopted a similar viewpoint.
Can the Court prosecute acts of sexual violence?
Yes. The jurisdiction of the Court explicitly names a number of sexual and gender-based crimes: rape; sexual slavery; enforced prostitution; forced pregnancy; enforced sterilization; and other forms of sexual violence, gender-based persecution and enslavement, including trafficking in women and girls. These crimes constitute crimes against humanity if they are carried out as part of a systematic or widespread attack on the civilian population. Acts of sexual violence can also be prosecuted as a war crime if they were committed in the context of, and associated with, an international or internal armed conflict.
Can the Court prosecute the recruitment and use of child soldiers?
Yes. The Rome Statute says that conscripting and enlisting children under the age of fifteen years into armed forces or using them to participate actively in hostilities is a war crime. This is the case in internal as well as international conflicts.
The Rome Statute does not deal with the recruitment of children between fifteen and eighteen years. Nonetheless, states may be prohibited from recruiting children between fifteen and eighteen years.
For example, the Congolese government has signed and ratified the Optional Protocol to the Convention of the Rights of the Child on the Involvement of Children in Armed Conflict, which prohibits recruitment of children under the age of eighteen. The Ugandan government has also acceded to the Optional Protocol, raising the legal age for recruitment to the age of eighteen. In addition it has made a binding declaration affirming eighteen as its minimum age for voluntary recruitment.
Can the Court prosecute child soldiers who have committed crimes?
No. The Rome Statute excludes prosecution of a person who was under the age of eighteen at the time of the alleged commission of a crime.
Can the Court prosecute acts of economic exploitation or pillage?
Economic exploitation as such is not part the Courts jurisdiction. However, it can be a war crime to pillage, starve civilians, or destroy or seize enemy property. A leader or member of an army or armed group involved in such crimes can be prosecuted.
Individuals can become criminally responsible by facilitating a crime. For example if an individual involved in economic exploitation activities facilitates a war crime, he or she can be prosecuted. Corporations cannot be prosecuted.
Can the Court prosecute crimes from the past?
The Court has jurisdiction over crimes committed after July 1, 2002, i.e. the date when the Rome Statute entered into force. Crimes committed before that date cannot be prosecuted by the Court. For those crimes, other solutions need to be found, such as prosecution in the national justice system, in an ad hoc international tribunal such as the International Tribunal for Rwanda, or any other special tribunal such as the Special Court for Sierra Leone or before the courts of a third country where individuals could be prosecuted under universal jurisdiction. If a country ratifies the Rome Statute later than July 2002, the Court will only be able to prosecute crimes committed after the date of ratification
In which countries can the Court prosecute crimes?
The Court can prosecute crimes committed in states that are party to the Rome Statute. The DRC signed the Rome Statute on September 8, 2000, and ratified it on April 11, 2002. Uganda signed the Rome Statute on March 17, 1999, and ratified it on June 14, 2002. Therefore crimes that have been committed after July 1, 2002 on the territory of the DRC and Uganda can be prosecuted by the Court.
Can the Court prosecute crimes committed by foreigners, i.e. individuals who do not have the nationality of the country where the crimes occurred?
Yes, in two cases. The Court can prosecute crimes committed on the territory of a country that has ratified the Rome Statute whether the accused are citizens of that country or another. (There is an exception with regards to members of peacekeeping forces though; see below). And, the Court can prosecute crimes committed by citizens of a country that is party to the Rome Statute, whether the crimes are committed on the territory of their home country or of another country. Since the DRC and Uganda are party to the Rome Statute, their citizens can be prosecuted for crimes they commit in any country.
Can the Court prosecute crimes committed by U.N. peacekeeping forces?
This depends on the nationality of the peacekeepers. If the peacekeepers are from a country that has ratified the Rome Statute, they can be prosecuted. But peacekeepers from states that have not ratified the treaty are currently exempt from the Courts jurisdiction. This was decided by the U.N. Security Council in July 2002, and the rule was renewed for another year in June 2003. As a result, crimes committed by peacekeepers between July 14, 2002 and June 12, 2004 are exempt from the Courts jurisdiction (if the peacekeepers come from a country that has not signed or ratified the Rome Statute). This exception, however, has not been renewed after June 2004.
When is a person criminally responsible for genocide, crimes against humanity, or war crimes?
Crimes of such a magnitude are almost always committed by more than one person. The Court has jurisdiction over those who physically committed such crimes, as well as over persons who intentionally ordered the crimes, incited others to commit them, and assisted others in carrying out the crimes. The Court also has jurisdiction over military commanders or persons effectively acting as military commanders who failed to exercise control over their forces when they committed such crimes.
Can a Head of State or Government, a member of a government or parliament be prosecuted?
Yes. The Rome Statute applies equally to all persons, regardless of their status. Government officials are not granted immunity.
Can the Court prosecute individuals who are not members of any government or armed group?
Yes. The Court can prosecute persons who facilitate a crime. For example, if a person knows about plans to commit a crime and gives the perpetrator funds or arms to commit the crime, he or she might be prosecuted for having given this help. In the language of the Rome Statute such as person aids, abets or otherwise assists the commission of the crime.
Can the Court prosecute governments or armed groups?
No. The Court is based on the principle of individual criminal responsibility. It will not try governments and armed groups, but rather individual members of governments or armed groups, analyzing how each one in the hierarchy committed, ordered, assisted, or tolerated the crime.
How many accused will the Court be able to try?
We do not know how many accused the Court will prosecute in each situation, but it will be a very small number. The Court will concentrate on those who bear the greatest responsibility for the most serious crimes. Each case demands large amounts of resources and time, and the Court will most certainly not be able to deliver justice on all such crimes committed in any particular situation. As a result the Court by itself will not be able to bring justice throughout a country such as the DRC, where more than 3 million people have died as a direct or indirect result of the war.
How will national courts and the International Criminal Court work together?
The International Criminal Court was created to complement national courts. The Court will not begin investigating a crime if the state concerned is already investigating or prosecuting it, or even if the state has investigated it and then decided not to prosecute the persons concerned. However, under the Rome Statute, the Court has the power to prosecute cases if the national state is unwilling or unable to carry out a genuine investigation or prosecution. This part of the Statute is meant to make it less likely for perpetrators to escape punishment for crimes because their own state is not willing to investigate and prosecute them.
In order to determine if a state is unwilling to genuinely investigate and prosecute a case, the Court considers whether it has taken measures to shield the suspect from criminal responsibility, whether it has unduly delayed the proceedings and whether it conducted proceedings in an independent and impartial way.
In order to determine if a state is unable to genuinely investigate and prosecute a case, the Court considers whether it is unable to arrest the accused, to obtain the necessary evidence, and to otherwise carry out judicial proceedings. This could be the case if the national justice system has collapsed, totally or substantially.
Where is the Court based?
The Court is based in The Hague. Its address is:
International Criminal Court
2516 AB The Hague
The Court can open field offices for investigations in other countries. It can also decide to hold hearings in a place that is closer to the site of the crime than The Hague. For example, if the Court does prosecute crimes committed in the DRC, it is possible that it would open an office in the DRC.
How is the Court organized?
The Court has three organs: the Office of the Prosecutor, the Chambers, and the Office of the Registrar. NGOs will most often be in contact with the Office of the Prosecutor, but there are also opportunities for contact with the Registrar.
Who is the Prosecutor and what does he do?
The Prosecutor and his Office gather information about crimes and present evidence against an accused before the Court. The Prosecutors Office acts independently as a separate organ from the Court.
The Prosecutor of the International Criminal Court is Luis Moreno Ocampo. Previously an Argentinean state prosecutor, Mr. Moreno Ocampo played a key role in prosecuting members of the military junta following Argentinas dirty war. As Assistant Prosecutor he was involved in the prosecution of nine military commanders for their role in crimes against humanity committed during the military government of 1976-1983. In 1985, five of these commanders were sentenced to prison terms. Since 1992, he has been in private practice as a lawyer. During that time he pushed for the prosecution of organized crime and corruption in business and has advised governments and international bodies on controlling corruption in Argentina and elsewhere.
What are the chambers?
The judicial functions of the Court are carried out by chambers. The chambers are each composed of several judges. The Court has three chambers, the Pre-Trial Chamber (with seven judges), the Trial Chamber (with six judges) and the Appeals Chamber (with five judges).The Pre-Trial Chamber decides whether the Prosecutor is allowed to start a formal investigation into a case. The Trial Chamber decides whether the accused person is guilty as charged and if they find him or her guilty, will assign the punishment for the crime and any damages to be paid to the victims. It also must ensure that a trial is fair and expeditious, and is conducted with full respect for the rights of the accused with regard for the protection of victims and witnesses. When the Prosecutor or the convicted person appeals against the decision of the Pre-trial or Trial Chambers, the case comes to the Appeals Chamber. The Appeals Chamber may decide to reverse or amend a decision, judgment, or sentence. It can also order a new trial before a different Trial Chamber.
What are the functions of the Registrar and the Registry?
The Registrar has the task of running the administration of the Court and keeping records. The Registry locates witnesses and victims and provides for their protection in participation during investigations and trials.
How are the Prosecutor and judges elected?
The Prosecutor as well as the judges are elected by the Assembly of State Parties, i.e. all countries that have ratified the Rome Statute. In February 2003, the first eighteen judges were elected, and in April 2003, the Prosecutor was elected.
Who are the judges?
The eighteen judges are: Rene Blattman from Bolivia
Maureen Harding Clark from Ireland
Fatoumata Dembele Diarra from Mali
Adrian Fulford from the United Kingdom
Karl T. Hudson-Phillips from Trinidad and Tobago
Claude Jorda from France
Hans-Peter Kaul from Germany
Philippe Kirsch from Canada (President)
Erkki Kourula from Finland
Akua Kuenyehia from Ghana (First Vice-President)
Elizabeth Odio Benito from Costa Rica (Second Vice- President)
Gheorghios M. Pikis from Cyprus
Navanethem Pillay from South Africa
Mauro Politi from Italy
Tuiloma Neroni Slade from Samoa
Sang-hyun Song from the Republic of Korea
Sylvia H. de Figueiredo Steiner from Brazil
Anita Usacka from Latvia
What are the rights of those accused of a crime by the Court?
Under the Rome Statute, any accused person is guaranteed the highest standards of fair trial. Hence, no person can be tried for a crime for which he or she has already been convicted. The accused has a right to be presumed innocent until proven guilty.
The accused also has a right to choose his or her own counsel, or if the person does not have legal assistance, to have legal assistance assigned to him or her. The accused does not have to pay the legal counsel if he or she does not have the means to pay. Furthermore, the accused has the right to get a competent interpreter if necessary. The accused has a right to be questioned only in the presence of counsel, to present evidence, to remain silent, and to have charges proved beyond reasonable doubt. The Rome Statute also makes explicitly clear that the accused shall not be subjected to any form of coercion, duress or threat, torture or cruel, inhuman and degrading treatment.
Under which circumstances can someone be excluded from criminal responsibility?
The Court can exclude someone from criminal responsibility when that person has lost the intellectual capacity to understand that he or she is committing a crime. This can be the case when a person suffers from a mental disease, was in a state of unwanted intoxication at the time of the crime, or acted to defend him or herself.
Persons can also be excluded from criminal responsibility when they did not know that they were committing a crime or committed a crime under a legal obligation to obey orders of the government or a superior.
What is the maximum sentence of the Court?
The maximum sentence is life imprisonment. The Court plans to have pre-trial detention facilities in The Hague. A sentence of imprisonment will be served in a state that has indicated its willingness to incarcerate a convicted person. The enforcement of a sentence of imprisonment in the host State is subject to the supervision of the Court and must be consistent with international standards governing treatment of prisoners, including the right of prisoners to be free of any torture or cruel, inhumane, or degrading punishment.
How is the Courts authority triggered?
There are three ways in which the Court can initiate investigations.
First, a state that is party to the Rome Statute can refer a case to the Prosecutor of the Court. This is what the Ugandan government did in January 2004, about the situation in northern Uganda. In March 2004, the government of DRC referred crimes in the DRC to the Court.
Second, the U.N. Security Council can refer a case to the Prosecutor.
Third, the Prosecutor can initiate investigations into a case on his own initiative, based on credible information that he has received. This information can come from states, NGOs, victims, or any other source.
How will the Court decide whom to prosecute?
The Court is likely to consider the gravity of the crime and the degree of individual responsibility for it. It will probably give priority to prosecuting persons accused of committing the most serious crimes and those who are suspected of being directly responsible for those crimes.
What does the Prosecutor do to start an investigation?
In those situations where the Prosecutor decides to take action by himself without a state referral he first carries out a preliminary examination and then submits a request for authorization of a formal investigation to the Pre-Trial Chamber of the Court.
In those situations where the Prosecutor receives a referral from a State Party, he must check whether the referral is admissible under the requirements of the Rome Statute and whether crimes under ICC jurisdiction appear to have been committed. If those criteria are satisfied, the prosecutor must launch an investigation to determine the persons bearing responsibility for the crimes committed.