What is the International Criminal Court?

The International Criminal Court (ICC) is a permanent international court established to investigate, prosecute, and try individuals accused of the most serious crimes at large – the crimes of genocide, crimes against humanity, war crimes, and aggression. It is based in The Hague, Netherlands, which is also home to the International Court of Justice (ICJ). The Court has 4 main organs. The presidency, which oversees external relations and court administrations, and the registry, which deals with bureaucratic matters like human resources, are concerned mostly with the day-to-day functioning of the ICC. The judicial branch of the ICC is the organ concerned with criminal prosecutions. It is made up of 18 judges and has three chambers – pre-trial, trial, and appeals. The most outward-facing organ of the Court is the Office of the Prosecutor, which is where the ICC prosecutor sits. 

Why was the ICC created?

ICC was created as a result of several decades of debate regarding how to hold individuals who commit grave atrocities accountable. The World Wars were marked by some of the most heinous crimes and led to the creation of emergency or ad hoc tribunals in Nuremberg and Tokyo. However, these temporary tribunals were created to address the crimes committed in those two specific situations, and could not be applied broadly. Due to the non-existence of permanent mechanisms to hold all perpetrators accountable, many of the crimes during the World Wars went unpunished. The international community recognized the need to establish a body that deals with atrocities of such large scale and intensity.

Unfortunately, these concerns took a back seat during the Cold War and when it ended, the commission of atrocities in former Yugoslavia and Rwanda reignited discussions on how to administer justice in such situations. These discussions led to the convening of the Rome Conference and the adoption of the Rome Statute that established the ICC in 1998. 

The Rome Statute

The Rome Statute is the founding document of the ICC that was developed and adopted during the Rome Conference of 1998. Representatives from 160 countries and many intergovernmental and non-governmental organizations attended this conference. In the span of 128 articles, the Statute details several aspects of the court: the structure of the court, the crimes that fall within its jurisdiction, how proceedings are to be held, and how states are supposed to coordinate with the ICC. The parties that have accepted the terms set out in the Rome Statute are known as state parties to the Rome Statute, or ICC member states. At present, 123 countries have accepted the terms of the statute. 

What crimes can the ICC prosecute?

Under the governing statute, the ICC can only investigate 4 crimes specified in the statute – genocide, war crimes, crimes against humanity, and the crime of aggression. The ICC is also territorially limited. The Court can only look into cases involving member states i.e., crimes committed on the territory of a party to the Rome Statute and/or by a citizen of a country that is a party to the statute. There are also temporal constraints. The Court can only try crimes committed after 2002, when the Court came into effect, or after the country concerned ratified the Rome Statute, whichever comes later.

The decision to investigate crimes is also limited. Typically, the ICC can look into situations only on referral by an ICC member state or by the United Nations Security Council, and the prosecution of crimes often depends on their gravity. The ICC prosecutor has the authority to decide if a crime is serious enough for the court to look into. Under some special circumstances, the prosecutor can start an investigation in an ICC member state without a referral. 

Who can the ICC prosecute?

The ICC can only prosecute individual perpetrators that have committed crimes that fall into the four categories specified in the Rome Statute. The ICC does not deal with countries; this is the job of the ICJ, which deals primarily with settling legal disputes (like border and land disputes) between states. 

How is the ICC different from other courts?

The ICC is a permanent court. This makes it different from the ad hoc tribunals at Nuremberg, and Tokyo, and those concerning Yugoslavia (ICTY) and Rwanda (ICTR) which dealt only with crimes related to a specific situation or incident. 

The ICC and Domestic Courts

Most countries have their own judicial systems to enforce the laws of that particular country and further justice and the protection of rights in the context of that country. To ensure that its procedures do not obstruct the proceedings of domestic trials, the ICC follows a principle of positive complementarity. Put briefly, this means that the Court encourages states to prosecute crimes domestically whenever possible, and only steps in when the country is unwilling or unable to prosecute crimes. 

Criticism and Problems 

Until recently, the Court’s caseload was concentrated in countries in Africa, leading many to allege that the Court is biased against Africa. This led to complaints of the Court engaging in selective justice. Considering the Court’s location in Europe, its decision to primarily investigate cases in post-colonial countries has been viewed as an infringement of sovereignty and an imposition of Western, liberal norms of justice onto other contexts, which have their own, distinct legal histories and traditions.

Along the lines of its privileging of Western values is the problem of the Court ignoring demands for justice when a particular context is not in the interests of dominant powers. For instance, in 2012, the ICC Prosecutor banned Palestine from joining the court because of its lack of member-state status within the UN. Palestine was only granted membership to the ICC in 2015– 6 years after a UN human rights investigation had established the need to prosecute Israeli officials for atrocities in Palestine. 

Other criticisms of the ICC include its ineffectiveness. This criticism is based on the ICC’s low conviction rates– it took the Court 16 years to convict fewer than ten suspects. It is also based on the Court’s enforcement problem. Not only does it depend completely on member states to arrest and transfer defendants, but it also requires the cooperation of states during its proceedings, which is difficult to accomplish. 

Further hindering its effectiveness is the refusal of powerful states to join the court. This includes the United States, a permanent member of the Security Council. While the US participated in the Rome Conference, the country has continuously opposed the court. This opposition culminated in the Trump administration imposing sanctions on former Prosecutor Fatou Bensouda over the ICC’s investigation into war crimes in Afghanistan. China and Russia— two other permanent members of the UN Security Council and major global players– are also not state parties to the Court, and have often taken an openly adversarial stance with regard to it. As a result, these powerful countries have been able to evade justice. Since they are not members of the Court, the crimes committed on their territories or by their citizens cannot be investigated, and since they are members of the Security Council, they can protect their allies by blocking referrals to the ICC. 

The Future of the ICC

Two decades since its establishment, the ICC’s record has been a mixed bag at best. While the Court’s vast geographical expanse holds a lot of promise, it is clear that the Court has not lived up to its mandate and expectations. A lot of work needs to be done to increase the credibility of the ICC as an impartial arbiter of international justice. 

Edited by Beth Samson

Vaishnavi Panchanadam

Vaishnavi is from Ottawa and was raised between Ottawa and Bangalore (India) before moving to Vancouver 3 years ago. She is currently a fourth-year student in the honours political science program at UBC,...