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Questions and Answers about the ICC
What is the ICC?
The International Criminal Court (ICC) is a permanent international tribunal that will try individuals responsible for the most serious international crimes. One hundred and sixty countries attended a U.N.-sponsored conference in Rome in 1998 to draft a treaty for the establishment of the ICC. After five weeks of intense negotiations, 120 countries voted to adopt the treaty. Only seven countries voted against it (including China, Libya, Iraq, and the United States) and 21 abstained. Before the court can be set up, 60 countries need to ratify the treaty. 139 states signed the treaty by the 31 December 2000 deadline. The treaty entered into force on July 1, 2002. As of July 18, 2008, 108 states have ratified it.
What crimes does the ICC prosecute?
The ICC will prosecute individuals accused of genocide, war crimes, and crimes against humanity, all defined in the court's treaty. The ICC will help ensure that these serious crimes, which have long been recognized by the international community, no longer go unpunished because of the unwillingness or inability of individual countries to prosecute them.
Who can be brought to trial before the ICC?
The ICC will have jurisdiction over crimes committed by the nationals of governments that ratify the treaty, or in the territories of governments that ratify. It can try any individual responsible for such crimes, regardless of his or her civilian or military status or official position.
The treaty gives the ICC jurisdiction that is complementary to national jurisdictions. This "principle of complementarity," as it is known, gives states the primary responsibility and duty to prosecute the most serious international crimes, while allowing the ICC to step in only as a last resort if the states fail to implement their duty -- that is, only if investigations and, if appropriate, prosecutions are not carried out in good faith. Bona fide efforts to discover the truth and to hold accountable those responsible for any acts of genocide, crimes against humanity, or war crimes will bar the ICC from proceeding.
At a press conference on June 12, 2002, U.S. Secretary of Defense William Cohen, while opposing the ICC, admitted that the court's limited authority would protect US troops and officials: "We have demonstrated over the years wherever there is an allegation of abuse on the part of a soldier we have a judicial system that will deal with it very effectively," Cohen said. "As long as we have a respected judicial system then there should be some insulation factor." That is, the ICC would then be barred from proceedings against Americans.
How is the ICC different from the International Court of Justice (World Court) and other existing international tribunals?
The International Court of Justice (ICJ or World Court) is a civil tribunal that hears disputes between countries. The ICC is a criminal tribunal that will prosecute individuals. The two ad hoc war crimes tribunals for the former Yugoslavia and Rwanda are similar to the ICC but have limited geographical scope while the ICC will be global in its reach. The ICC, as a permanent court, will also avoid the delay and start-up costs of creating country specific tribunals from scratch each time the need arises.
What good can the International Criminal Court do?
The ICC will help end the impunity often enjoyed by those responsible for the most serious international human rights crimes. It will provide incentives and guidance for countries that want to prosecute such criminals in their own courts, and it will offer permanent back up in cases where countries are unwilling or unable to try these criminals themselves, because of violence, intimidation, or a lack of resources or political will.
As noted, the ICC is not intended to replace national courts. Domestic judicial systems remain the first line of accountability in prosecuting these crimes. The ICC ensures that those who commit the most serious human rights crimes are punished even if national courts are unable or unwilling to do so. Indeed, the possibility of an ICC proceeding may encourage national prosecutions in states that would otherwise avoid bringing war criminals to trial.
Who can join the ICC?
All countries of the world can ratify the ICC treaty. Members must accept the court's jurisdiction and cooperate with the court in investigating and prosecuting crimes and enforcing penalties.
How do the ICC and the Security Council work together?
The Security Council may refer cases to the ICC for investigation and prosecution. The Security Council may also request the ICC to suspend investigations for 12 months at a time if it feels that ICC proceedings might interfere with the Security Council's responsibility to maintain peace and security. This arrangement makes it difficult for any one permanent Security Council member to manipulate the ICC while permitting the Security Council to resolve any genuine conflicts of interest with the ICC.
How politically motivated cases be avoided?
Many safeguards exist in the ICC treaty to prevent frivolous or politically motivated cases. For example, all indictments will require confirmation by a Pre-Trial Chamber of judges, which will examine the evidence supporting the indictment before issuing it. The accused and any concerned countries will have an opportunity to challenge the indictment during confirmation hearings before the Pre-Trial Chamber. In addition, any investigation initiated by the prosecutor will first have to be approved by the Pre-Trial Chamber.
Prosecutors and judges all undergo rigorous scrutiny before they are elected and appointed to the court. The treaty establishes strict criteria for the selection of the prosecutor and the judges, requiring experts whose reputation, moral character and independence are beyond reproach. They are prohibited from any activity during their term in office that might jeopardize their independence, and can be excused from particular cases if there is any question of partiality. Ultimately, in the unlikely event that they abuse their powers, they can be impeached.
States that join the ICC will nominate persons to be elected as judges and prosecutor. Only those eligible to hold high judicial office in their own country can be nominated as judges of the ICC.
What happens if a country does not ratify the treaty?
Countries that fail to ratify the ICC treaty will be prohibited from participating in the nomination of the court's judges and prosecutor. They will also lose the privilege of contributing to decisions about the budget and administrative operations.