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.
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 can occur during war or peace, and can include murder, rape, slavery, persecution, extermination, and torture.
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.
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.
Start of Jurisdiction
Whether after or during the commission of alleged atrocity crimes, the ICC can only exercise jurisdiction over such crimes in one of three ways:
- Where a State Party refers the crimes to the Court (State Party Referral),
- Where the UN Security Council refers the crimes to the Court (UN Security Council Referral), or
- Where the ICC Prosecutor initiates a preliminary examination into the crimes (Propio Motu Investigation).
State Party Referral
A State Party referral is when any country that has ratified the Rome Statute (making them a State Party) refers alleged atrocity crimes to the ICC Prosecutor. The atrocities must have been committed:
- on the territory of the State Party that makes the referral or on the territory of another State Party; or
- by a national from the referring State Party or another State Party.
Most ICC cases have arisen where a State Party has referred alleged atrocity crimes to the ICC Prosecutor that have been committed on its own territory. This is sometimes called a “self-referral”, and includes the ICC investigations into crimes in the Democratic Republic of the Congo, Uganda, the Central African Republic (twice self-referred), Mali, and Gabon.
Example Cases2013 Comoros Referral 2012 Mali Self Referral
UN Security Council Referral
The UN Security Council (UNSC) may refer alleged atrocity crimes committed in any country to the ICC Prosecutor by passing a resolution authorized by the UN Charter.
- In March 2005, the UNSC referred the situation in Darfur, Sudan, to the ICC.
- In February 2011, the UNSC referred the situation in Libya to the ICC.
If a permanent member of the UNSC vetoes a resolution to refer a situation to the ICC, the Court cannot gain jurisdiction. The permanent members of the UNSC are China, France, Russia, United States of America, and United Kingdom. In May 2014, Russia and China vetoed the referral of Syria to the ICC.
Proprio Motu Investigations
The ICC Prosecutor may start a preliminary examination proprio motu (“on one’s own initiative” in Latin), into alleged atrocity crimes that have occurred either:
- on the territory, or by a national, of any State Party; or
- on the territory, or by a national, of a non-State Party that has consented to the jurisdiction of the ICC.
The ICC Prosecutor must receive approval from judges to open a formal investigation after completing her preliminary examination.
Action by the ICC
Phases of Analysis
Whether alleged atrocities are referred to the ICC Prosecutor, or she uses her proprio motu power, a case always begins with what is called a “preliminary examination”. Each preliminary examination has four phases of analysis: initial, jurisdictional, admissibility, and interest of justice assessments.
The ICC Prosecutor may move to a formal investigation if all four of these requirements are satisfied.
The ICC Prosecutor must first determine whether the alleged crimes satisfy fundamental jurisdictional requirements of the Rome Statute, specifically temporal, territorial, subject matter, and personal jurisdiction.
The ICC can only exercise jurisdiction over crimes committed after July 1, 2002 (the date that the Rome Statute went into force). If the alleged crimes occurred prior to this date, the case cannot move forward at the ICC.
The ICC can only exercise jurisdiction in the territory of State Parties, non-State Parties that consent to jurisdiction, or non-State Parties that are referred to the Court by the UN Security Council. If the alleged crimes occurred on a State that does not meet these requirements, the case cannot move forward at the ICC.
Subject Matter Jurisdiction
An alleged crime must be either a war crime, a crime against humanity, or genocide, as defined in the Rome Statute. If the alleged crime does not fall within one of these definitions, the case cannot move forward at the ICC.
The ICC can only investigate and prosecute “natural persons” who are over the age of 18. The ICC cannot investigate or prosecute governments, corporations, political parties, or rebel movements, but may investigate individuals who are members of groups.
Also, the ICC can only exercise jurisdiction over nationals from a state within the Court’s jurisdiction (e.g. State Party; non-State Party that consents to jurisdiction or was referred by the UN Security Council).
Even when the temporal, territorial, subject matter, and personal jurisdictional requirements are satisfied, the Rome Statute limits the types of cases that “admissible” at the ICC. The ICC Prosecutor must determine whether another court (domestic or international) is properly investigating and prosecuting the alleged crimes (this concept is called “complementarity”), and whether the alleged crimes are the gravest of crimes (this concept is called “gravity”).
The principle of “complementarity” means the ICC “complements” other courts that have jurisdiction over the alleged crimes. This principle makes the ICC a “court of last resort”. The ICC Prosecutor must determine if another court is “genuinely able and willing” to investigate and potentially prosecute the case, or already has. If another court is properly investigating or prosecuting the alleged crimes, the case cannot move forward at the ICC.
The alleged crimes must be the gravest of atrocity crimes. The ICC Prosecutor determines gravity by looking at the scale, nature, manner, and impact of the alleged crimes.
Sudanese rebels Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus were charged by the ICC with the killing of twelve (12) African Union peacekeepers in 2007. Despite the relatively small number of deaths, the Court found that the crime was an attack on the millions of civilians the peacekeepers were sent to protect and, therefore, met the gravity threshold.
Interests of Justice Assessment
Even when the jurisdictional and admissibility requirements are met, the ICC Prosecutor has the discretion to determine whether moving a case forward at the ICC serves the “interests of justice.” The Prosecutor may decide not to move forward with an investigation or prosecution if she decides that there are substantial reasons to believe that this is not in the interests of justice. A Pre-Trial Chamber can review this decision.
The ICC Office of the Prosecutor (OTP) may turn a preliminary examination into a formal investigation called a situation (such as the situation in Libya) if the four phases of analysis in a preliminary examination are satisfied.
In an investigation, the OTP gathers as much information as possible to uncover the truth about the alleged crime as well as to determine who is most responsible. An investigation may include:
- Inspection where the alleged crime occurred;
- Collection of evidence like cellphone data, emails, radio intercepts, videos, photographs, minutes of meetings, military and police communications, speeches and forensic material such as exhumation reports;
- Interviewing witnesses and victims;
- Consultation with relevant experts and specialists;
- Analysis of financial transactions.
The OTP is legally required to take whatever steps are necessary to gather all evidence which is relevant to an alleged crime, including incriminating and exonerating evidence. Before trial starts, the Prosecutor must disclose a great deal of evidence to the Defense. This includes all the evidence the Prosecutor intends to rely upon at trial, and any evidence which tends to show the innocence of the accused or which affects the credibility of prosecution evidence.
Cooperation and Assistance
The ICC cannot act unilaterally because:
- It does not have its own police force or independent enforcement powers
- It cannot enter or obtain evidence in sovereign countries without the country’s permission.
As a result, the ICC and its organs (e.g. the OTP) depends on the “cooperation and assistance” of countries in order to facilitate investigations and prosecutions. Cooperation and assistance may include:
- Allowing access to documents and other evidence;
- Tasking domestic personnel to assist OTP personnel
- Helping locate witnesses and victims; and
- Assisting in the identification of crime sites.
Arrest Warrant & Summons
Initialization of Warrants and Summons
Once evidence establishes reasonable grounds to believe a person is responsible for an atrocity crimes, the ICC Prosecutor may request the Pre-Trial Chamber to issue a summons or arrest warrant.
A summons can be issued if the Pre-Trial Chamber is satisfied that the person will appear in the courtroom, and can contain conditions sufficient to ensure the person’s appearance.
An arrest warrant can be issued if the Pre-Trial Chamber believes that the arrest of the person is necessary to ensure that the person appears at trial. It can also be issued if the judges think it is necessary to ensure that the person does not obstruct the investigation, or to prevent the person from continuing to commit crimes similar to those he or she is suspected of committing.
Arrest Warrant & Summons
Cooperation and Assistance
Carrying out an arrest warrant depends on the cooperation of the country where the fugitive is located, and of its police force. The ICC has no police force of its own.
The case of Sudanese President Omar al-Bashir illustrates a problem that the ICC continually faces. Two arrest warrants for crimes against humanity, war crimes, and/or genocide have been issued by the ICC. However, President al-Bashir is still at large. While the arrest warrants have reduced the number of countries he can safely travel to, he nevertheless continues to travel to many countries including ICC States Parties without being arrested. Al-Bashir’s trial will not occur until Sudan or another country is willing to arrest and transfer him to the ICC.
The Court, despite continuing difficulties, has also seen successful cooperation from States Parties. On May 23, 2008, the Pre-Trial Chamber issued an arrest warrant for Jean-Pierre Bemba of the Central African Republic. Following his arrest a day later on July 1, 2008, a Belgian court ruled that Bemba should be sent to the ICC. The Belgian court order was executed and Bemba made his initial appearance before the ICC on July 4, 2008.
The ICC has also received cooperation from countries that are not member states. In March 2013, for example, the United States and Rwanda cooperated to transfer Bosco Ntaganda of the Democratic Republic of Congo to The Hague. Ntaganda was subject to an ICC arrest warrant and had turned himself into the United States embassy in Rwanda. Neither Rwanda nor the United States are ICC States Parties.
Confirmation of Charges
Confirm or Dismiss Charges
After an individual’s initial appearance, the Pre-Trial Chamber (PTC) must hold a hearing within a reasonable amount of time to confirm or dismiss the charges presented by the Prosecutor. The PTC can either:
- Confirm the charges and send the case to the Trial Chambers for trial (at this point the individual becomes the “Accused”); or
- Dismiss the charges and set the individual free; or
- Pause the hearing to request the Prosecutor to produce additional evidence or change the charges with the evidence presented.
If charges are dismissed, the ICC Prosecutor can provide additional evidence at a later time in order to convince the PTC to confirm the original charges. Alternatively, the ICC Prosecutor can start the whole process over again with different charges.
Confirmation of Charges
Summary of Confirmation of Charges
The Prosecutor v. Dominic Ongwen
Trial & Appeal
The Trial Chamber (TC) is required to conduct a fair and expeditious trial that protects the rights of the Accused, Victims, witnesses, and others involved. There is a presumption that trial sessions will be open to the public. The trial can take place in “closed session” where this is necessary to protect witnesses or the confidentiality of sensitive matters.
The first step of a trial is to allow the Office of the Prosecutor (OTP) to present its evidence in order to prove the Accused’s guilt beyond a reasonable doubt. Defense lawyers are allowed to test the strength of the OTP evidence presented.
Once the OTP’s case is concluded, the Defense can present their own evidence. The OTP is allowed to test the strength of the Defense evidence.
Victims are allowed to testify at trial. They can testify as witnesses called by the OTP, and can also testify independently of the OTP. Representatives of victims are allowed to submit evidence to support, or to demonstrate the unreliability of, evidence presented by the OTP and the Defense. Representatives of victims are also allowed to make written and oral observations when the TC allows them to do so.
Once the trial is complete, the TC will begin to deliberate in private and reach a guilty or not guilty verdict. The TC delivers its verdict with written justifications.
Trial & Appeal
Rights of the Accused
The rights of the Accused are a fundamental pillar of the ICC. An accused person has the right:
- to remain silent and not to be compelled to testify or confess guilt;
- to be present during trial;
- to be presumed innocent until proven guilty beyond reasonable doubt;
- to have adequate time and facilities for the preparation of the defense;
- to be fully informed of the charges against him or her;
- to have a lawyer appointed, free of charge if necessary;
- to a speedy trial;
- to a public hearing;
- to be tried in his or her language and to have a free interpreter;
- to a public trial;
- to examine the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf.
Trial & Appeal
The Office of the Prosecutor or the Accused can appeal a judgment to the Appeals Chamber. In an appeal, the Appeals Chamber will:
- review the judgment for errors of law, procedures, and/or fact; and
- hold public hearings to listen to arguments from the parties.
After deliberations in private, the AC will issue its own judgment that either:
- affirms some or all of the Trial Chamber’s judgment;
- reverses or amends some or all of the Trial Chamber’s judgment; or
- orders a new trial with a different Trial Chamber.
The Prosecutor – but not the victims – can appeal an acquittal. If the accused is convicted, the Trial Chamber can order that the accused pay reparations to the victims. The victims can appeal an order for reparations.
Trial & Appeal
Victims' Role in Proceedings
Victims can participate during almost every stage of the ICC judicial process. Under the Rome Statute, victims have the right to be represented by legal counsel, to have protective measures, to receive notifications of hearings, and have their views and concerns raised during proceedings. For example:
- During the pretrial period, victims can file written submissions to the judges and make oral submissions on any matters which affect their interests.
- During trial, victims may submit evidence, ask questions of witnesses including the Accused, and appear in person to testify.
- After a conviction, victims can appeal a decision on reparation.
Sentencing & Reparations
If convicted, the Trial Chamber (TC) will determine the appropriate sentence by considering a range of factors, such as the gravity of the crimes and the convicted person’s role in the crimes.
The death penalty is not an option. The TC can impose up to 30 years of imprisonment or a life imprisonment. The TC can also issue fines and/or forfeiture of proceeds, property, or assets derived directly or indirectly from the crimes.
If the sentence and/or other punishment issued by the TC is appealed by the Office of the Prosecutor or the convicted person, the Appeals Chamber has the power to uphold, reverse, or amend the sentence and/or other punishment issued.
Sentencing & Reparations
If the Trial Chamber (TC) convicts the Accused, it may also order reparations for victims for the harm suffered. Reparations can only be ordered for those crimes for which the Accused has been convicted. Reparations can be awarded to individuals and/or collective entities. Reparations can take multiple forms, including rehabilitation, compensation, and restitution. The TC can order either the convicted person and/or the ICC Trust Fund for Victims to pay monetary compensation.
The Office of the Prosecutor, the convicted person, or the victims can appeal the TC’s order for reparations. The Appeals Chamber can uphold, reverse, or amend the reparations.
Thomas Lubanga Dylio of the Democratic Republic of Congo was found guilty of the war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities in 2012. This verdict was the first one for the ICC. On 3 March 2015, the Appeals Chamber instructed the Trust Fund for Victims to draft a plan for the issuance of collective reparations for the victims involved.