The International Criminal

Court
 The Judges and Administration
• The ICC is presided over by three judges –
the president and two vice-presidents –
elected for a three-year renewable term. They
are responsible for the general
administration of the court, except for the
Office of the Prosecutor. Beyond the
presidency, the ICC is composed of 18 judges
at the Pre-Trial, Trial and Appeals divisions.
• The ICC’s other prime administrative body is
the Registry, which is responsible for the
non-judicial aspects of the administration of
court.
 Jurisdiction and the Office of
the Prosecutor
• Crimes within the jurisdiction of the ICC
are limited by the Rome Statute to
genocide, war crimes and crimes against
humanity.
• The Court has jurisdiction over those
individuals directly responsible for
committing these crimes, as well as others
who may be indirectly responsible, such as
military commanders or other superiors.
• Jurisdiction is also limited ratione
temporis to offences committed after
the entry into force of the Rome
Statute.
• Article 12 restricts the ICC’s
jurisdiction to crimes committed on
the territory of a State Party or those
committed by a national of a State
Party.
 How Commenced
• An ICC investigation may be
commenced either by the Security
Council, pursuant to Chapter VII of
the UN Charter, by a State Party or by
the prosecutor acting under
the proprio motu power.
• To begin with, the proprio
motu jurisdiction is limited by the
principle of complementarity. The
ICC is a court of last resort, and the
prosecutor must defer to a state with
national jurisdiction over an offence
unless that state is unwilling or
unable to investigate and prosecute.
• Moreover, if desirous of initiating an
investigation without a Security Council or
State Party referral, under Article 15, the
prosecutor must first apply to the Pre-Trial
Chamber for a ruling on admissibility.
• Notification is required for any states that
might normally have jurisdiction over the
offence, regardless of whether they are a
party to the Statute.
 Crimes Cognizable
1. Genocide – intent in whole or in
part to destroy a nationality, ethnic
group, or religious group of people.
Incitement and conspiracy to
commit genocide are also punished.
2. War Crimes –
a. Grave breaches of the Geneva
Convention and API – International
armed conflicts.
b. Other serious violations of law and
customs of war in International armed
conflicts.
c. Serious Branches of Common Art. 3.
d. Other serious violation of the laws and
customs of war – in non-international
armed conflicts.
3. Crimes against humanity – any
widespread or systematic attack
against civilian populations with
knowledge that such on attack was
directed against a civilian
population.
 Requisites/Conditions
1. No nexus with armed conflict is
required.
2. Under “widespread” attack,
threshold is that the targetting of
civilians should be massive or large
scale and therefore, contemplate
multiplicity of victims.
3. Under the “systematic” threshold,
attack is premeditated and forms
part of a design or policy.
4. Prosecutor need only prove either
widespread or systematic attack.
Still, by definition, if it is
widespread, must prove that it was
committed as part a common policy.
If systematic, must show that
multiple acts are involved.
5. Apartheid and Force Disappearance as
new international crimes.
6. Expanded list of sexual offenses: rape
incident of war crimes, torture, crimes
against humanity and genocide. Also
provides for the crimes of sexual slavery,
forced prostitution, forced pregnancy,
forced sterilization and other forms of
sexual violence of a similar gravity.
 Principles Governing the ICC
1. Complimentarity – Court will only
exercise jurisdiction when national
courts are unable or unwilling to
exercise jurisdiction.
2. Prospective jurisdiction – Court
shall only have jurisdiction for acts
which took place after 1 July 2002.
4. Double jeopardy – Court will be the
ultimate judge if one’s acquittal by a
domestic court was because of a
sham trial.
5. Elements of Crime – Individuals
may be found guilty only of the
commission of crimes the elements
of which are defined in the statute
itself, or in a separate document
known as “the elements of crimes.”
4. Presumption of innocence
5. Duty to provide protection and
assistance to victims of war crimes.
6. Duty of the international community
to provide reparation to victims of
war crimes.
7. Duty of State parties to cooperate
i.e., jurisdiction over person of the
accused.
8. Defense of immunity is unavailing.
 The Pre-Trial Chamber
• The Pre-Trial Chamber in large part
determines the effectiveness and
independence of the ICC prosecutor.
• Authorization to initiate an
investigation proprio motu must be
sought from the Pre-Trial Chamber as
outlined in the Draft Rules of
Procedure and Evidence.
• Next, victims must be informed that
an investigation will take place, unless
doing so would endanger them or
threaten the integrity of the
investigation, and notified victims
may make representations in writing
to the Pre-Trial Chamber.
• The state with jurisdiction must also
be notified, and such notification
must contain specific information
about the acts that may constitute
crimes within ICC jurisdiction.
• If the state requests that the
prosecutor defer on the basis that it is
conducting its own proceedings, the
prosecutor can still request
authorization to investigate if he or
she is of the opinion that the state’s
actions are not genuinely intended to
bring criminals to justice.
• The prosecutor must give notice to
the state and provide a summary of
the basis of the application.
 The Trial Chamber
• Once charges have been confirmed by
the Pre-Trial Chamber, cases are
heard by the Trial Chamber, made up
of three judges.
• At this stage the accused is still
presumed innocent and has the right
to defend himself or herself or to
choose counsel.
• Victims are also invited to participate
in the proceedings, if they so choose.
• If found guilty, the accused may be
sentenced to up to 30 years’
imprisonment; in extreme
circumstances this punishment may
be extended to life imprisonment.
Sentencing can also include
reparations orders for victims.
 Appeals Chamber
• Finally, the Appeals Chamber can
hear appeals from both the Pre-Trial
and Trial chambers. Made up of five
judges, the Appeals Chamber has the
power to overturn all kinds of lower
level decisions, including reparations
orders.
Significant Work of the ICC
 1. The Democratic Republic of Congo
• One of the first country situations referred
to the Court was that of the Democratic
Republic of Congo (DRC), when it
requested in April 2004 that the prosecutor
commence an investigation into allege war
crimes, including the enlistment,
conscription and use of children under the
age of 15 as soldiers.
• Four arrest warrants have been issued in 2007,
charges were confirmed and 3 accused await trial
in jail in The Hague which include Thomas
Lubanga Dyilo, leader of the Union of Congolese
Patriots, Germain Katanga and Mathieu Ngudjolo
Chui.
• Lubanga is accused of war crimes consisting of
enlisting and conscripting children as soldiers of
the Patriotic Forces for the Liberation of Congo.
The ICC plays a crucial role as a watchdog over
crimes of genocide, crimes against humanity and
war crimes. However, the case of Lubanga
illustrates the complexities surrounding
prosecutions and investigations of international
crimes which can prolong the proceedings.
• With its first verdict, the ICC convicted
Thomas Lubanga of Congo of recruiting and
using child soldiers. Lubanga allegedly led
the Patriotic Forces for the Liberation of
Congo (FPLC) into a conflict that killed
10,000 people. The ICC’s decision evoked
mixed feelings: some victims of FPLC were
relieved, while other Congolese felt that
Lubanga, a “lower-rank” war criminal, was
unfairly targeted by the ICC.
• An arrest warrant was issued for Bosco
Ntaganda in April 2008 for alleged war
crimes. However, Ntaganda remains at large.
 2. Uganda
• In December 2003, the government of
Uganda requested that the prosecutor
open an investigation into the situation in
northern Uganda.
• Five arrest warrants have been issued
against senior leaders of the Lord’s
Resistance Army, including Joseph Kony.
Peace negotiations are ongoing between
the government of Uganda and Joseph
Kony.
3. Central African Republic

• The government of the Central

African Republic also requested that
the prosecutor open an investigation
into the situation within its borders.
• The prosecutor commenced his
investigation in May 2007 and
established a field office in 2008 to
provide logistical support for his
operations, including witness
protection.
• An arrest warrant for Jean-Pierre
Bemba Gombo was issued in May
2008, and he is in a jail in The Hague,
waiting trial.
 4. Sudan (Darfur)
• Sudan is the only country under
investigation so far that has not
requested intervention.
• In March 2005, the United Nations
Security Council adopted Resolution
1593, referring the situation in Darfur
to the ICC.
• The prosecutor accordingly opened an
investigation in June 2005, and arrest
warrants were issued for Ahmad
Harun (former Sudanese Minister of
State for the Interior) and Ali
Kushayb (a former militia leader) in
April 2007 on multiple counts of war
crimes and crimes against humanity.
• These warrants remain outstanding,
as the Sudanese government is not a
State Party to the Rome Statute and
rejects the ICC’s jurisdiction.
• Since the warrants were issued,
Harun has been appointed Minister of
Humanitarian Affairs and Co
President of the national committee
responsible for investigating alleged
human rights violations in Darfur.
• More recently, the ICC prosecutor has
asked the Pre-Trial Chamber to issue
an arrest warrant for Omar Hassan
Ahmad al-Bashir, President of Sudan,
alleging crimes against humanity, war
crimes and genocide. As of November
2008, this warrant had not been
issued.
 The ICC in the Security
Council
• The Security Council has the power under the
ICC's Rome Statute to trigger action by the
Court and to obstruct prosecutions. The
United States has several times pushed the
Security Council to adopt resolutions
exempting UN peacekeepers and US
militaries from the jurisdiction of the Court.
The Security Council also referred the Darfur
situation to the ICC for further investigations
in 2005. This Security Council dominance
over the ICC threatens the Court's legitimacy
as an independent institution.