Chapter 9 ICC

International Criminal Court (ICC)

Mandate: to put an end to impunity for the perpetrators of war crimes, genocide, and crimes against humanity, and thus to contribute to the prevention of such crimes

Obligation: the Court may have jurisdiction over a crime if it occurred on the territory of a state party or was committed by a citizen of a state party, and if the domestic courts prove themselves unwilling or unable to genuinely carry out an investigation or prosecution.

Enforcement: the Court can impose prison sentences on those found guilty. It has no police or military capability and relies on national governments to capture and deliver to it suspects.

9.1 National courts

• Most legal cases concerning international matters remain entirely within the legal systems of one or more states

• National courts hear cases brought under national laws and can enforce judgments by:

– Collecting damages (in civil suits)

– Imposing punishments (in criminal ones)

• Advantages

– Judgments are enforceable

– Private individuals and companies can pursue legal complaints

Often choice of jurisdiction

International Cases in National Courts continued

• Limits

– Authority of national courts stops at state’s borders

– Extradition (individual immune if no treaty exists)

– Immigration law: governed by territoriality

Immigration law: National law(s) that establish the conditions under which foreigners may travel and visit within a state’s territory, work within the state, and sometimes become citizens of the state (naturalization).

Law and Sovereignty

Laws of Diplomacy

• Bedrock of international law is respect for diplomats’ rights

Diplomatic recognition: defines official status

– Diplomats are accredited to each other’s governments

– Diplomats have right to occupy an embassy in host country

Diplomatic immunity: beyond enforcement of the host country’s national courts

– U.S. commitments as host country to the UN include extending diplomatic immunity to the diplomats accredited to the UN

Diplomatic pouches are packages sent between an embassy and its home country

Diplomatic recognition: The process by which the status of embassies and that of an ambassador as an official state representative are explicitly defined.

Diplomatic immunity: A privilege under which diplomats’ activities fall outside the jurisdiction of the host country’s national courts.

Laws of Diplomacy continued

Breaking diplomatic relations involves withdrawing one’s diplomats from a state and expelling that state’s diplomats from one’s own state

• Two countries that lack diplomatic relations often do business through a third country willing to represent a country’s interests formally through its own embassy (interests section)

• States can recall ambassadors (“for consultations”) to express displeasure, or submit a formal complaint

• Law of diplomacy is repeatedly violated in one context—terrorism

9.2 Matters that ICC deals with

Atrocity Crimes

The International Criminal Court (ICC) is the world’s only permanent international court with a mandate to investigate and prosecute genocide, crimes against humanity, and war crimes. These three sets of crimes — collectively called “atrocity crimes”— have many overlapping characteristics. A criminal act, such as the murder of a group of villagers, could be characterized as genocide, a crime against humanity, a war crime, or all three. How a crime is characterized often depends on the intent of the offender and the context in which the crime took place.

Genocide

Genocide is an act committed with the intent to destroy in whole or in part a national, ethnic, racial, or religious group. It can include killing or causing serious bodily or mental harm to members of the group. It can also include deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, or imposing measures to prevent births. Genocide can happen during war or peace.

Crimes Against Humanity

A crime against humanity is a serious criminal act committed within the context of a “widespread and systematic attack directed against a civilian population”. A crime against humanity can occur during war or peace, and can include murder, rape, slavery, persecution, extermination, and torture.

War Crimes

War crimes are serious criminal acts committed within the context of an “armed conflict”: a resort to armed force between states. They can also be committed in a civil war. The criminal act must be related to the armed conflict, so a murder or a theft during a war but unrelated to the war is not a “war crime”. A war crime can be many different things, from illegal seizure of property to attacking civilian objects to using prohibited gases.

9.3 About the ICC

The International Criminal Court (ICC) is the world’s only permanent international court with a mandate to investigate and prosecute individuals who participate in the international atrocity crimes of genocide, crimes against humanity, and war crimes. The ICC’s jurisdiction may expand in 2017 to include the crime of aggression.

A multilateral treaty called the Rome Statute established the ICC. The Rome Statute was adopted in 1998 and the ICC began operations in 2002 once the Rome Statute was ratified by the 60th country. The ICC is an independent institution that is not a part of the United Nations (UN), but cooperates with the UN and its agencies. By law of the Rome Statute, the ICC may only investigate and prosecute when a national jurisdiction is “unwilling or unable” to do so themselves and may only address the gravest crimes. Further, the Rome Statute and other core documents require the ICC to use the highest standards of due process and fair trial. Use the tabs on the right to further explore the ICC and its State Parties, jurisdiction, structure, judicial processes, current investigations and prosecutions, and timelines covering the history of international criminal justice (including temporary international tribunals) and the evolution of relations between the United States and the ICC.

Evolution of International Criminal Justice

In many ways, international criminal justice for the atrocity crimes of genocide, crimes against humanity, and war crimes truly begin with post-World War II trials, most notably the International Military Tribunal at Nuremberg (Nuremberg Tribunal). As momentous and influential as the Nuremberg Tribunal were and continue to be on the field, international criminal justice is also the product of numerous other important events, including events that occurred pre-Nuremberg.

Structure of the ICC

The International Criminal Court (ICC) is an international judicial body that was formed by a multilateral treaty called the Rome Statute. The ICC, which is independent of the United Nations, is based in The Hague, the Netherlands, although it may sit elsewhere.

The ICC is composed of four primary organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.

The Assembly of States Parties serves as the Court’s management, oversight, and legislative body and is not an organ of the Court. It establishes the budget, elects judges and prosecutors, amends law and procedure, and conducts other activities consistent with the Rome Statute.

Also separate from the Court is the Trust Fund for Victims, which was created by the Assembly of States Parties (as specified in Article 79 of the Rome Statute) to provide assistance and support to victims of Rome Statute crimes and their families and to help implement Court-ordered reparations. The Trust Fund for Victims seeks to promote restorative justice, reconciliation, and sustainable peace by attempting to address the direct harms of atrocity crimes.

9.4 The US-ICC Relationship

The United States (US) historically has been and continues to be an ardent supporter of international criminal justice, having played critical roles in the establishment and operations of the United Nations (UN) War Crimes Commission, the World War II tribunals at Nuremberg and Tokyo, and the modern UN ad hoc and hybrid international tribunals for the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, Lebanon and others. The International Criminal Court (ICC), the only permanent international criminal tribunal with a mandate to investigate and prosecute the international atrocity crimes of genocide, crimes against humanity, war crimes, and aggression, is the cornerstone of the system of international criminal justice. At present 123 nations have ratified the Rome Statute and are members of the ICC Assembly of States Parties. While the United States played a central role in the establishment of the Rome Statute that created the ICC, the United States is not a State Party. Building upon positive developments at the end of the George W. Bush administration, the US-ICC relationship significantly progressed during the Barack Obama administration, with the US providing varied and important support to the Court to the fullest extent allowed under existing US law. However, the policies of the Donald Trump administration highlighted a much more complicated relationship between the Untied States and the ICC.