The following is a guest post by Lea Marie Ruschinzik, a foreign law intern working with Foreign Law Specialist Jenny Gesley at the Global Legal Research Directorate of the Law Library of Congress. It is part of our Frequently Asked Legal Questions series.
Today, July 17, is the “Day of International Criminal Justice” or “World International Justice Day,” which marks the anniversary of the adoption of the Rome Statute on July 17, 1998. The Rome Statute is the founding treaty of the International Criminal Court (ICC) and seeks to protect people from “the most serious crimes of international concern,” meaning genocide, war crimes, crimes against humanity, and the crime of aggression.
To celebrate World International Justice Day, the exhibit “Life After Conflict” will open in The Hague, Netherlands. The exhibit shows the impact of the Rome Statute system and the Court’s work as part of the commemorations for the 25th anniversary of the Rome Statute. Award-winning photographers will present stories of investigations conducted by the ICC in five different countries.
In addition, on July 17, 2023, there will be a commemoration event at the United Nations (UN) headquarters in New York to celebrate this “achievement of the international community.” This day is intended to “provide visibility and enhance political support for the Rome Statute system; encourage those who had not yet done so to join the system; and to reflect on its future.”
This FALQ post will give an overview of the ICC, the Rome Statute, the crimes that can be tried, and examples of recent cases.
- What is the International Criminal Court?
The ICC investigates and, where justified, tries individuals charged with the “gravest crimes of concern to the international community.” It is a permanent court, unlike the ad-hoc criminal tribunals established for Yugoslavia and Rwanda, among others. As an international court, the ICC is a court of last resort and seeks to complement the national courts but does not replace them. To-date, 123 states have become state parties to the Rome Statute.
One should not confuse the ICC with the the International Court of Justice (ICJ). The ICJ is also located in The Hague, Netherlands, but is an organ of the UN. Contrary to the ICC, the ICJ settles disputes between states.
- What is the Rome Statute?
The Rome Statute of the International Criminal Court is an international treaty which gave birth to the ICC. It was signed on July 17, 1998, by 120 countries and came into force on July 1, 2002, upon ratification by 60 states. Therefore, the 20th birthday of the ICC was celebrated last year in 2022.
- What crimes can be tried before the ICC?
The four main crimes that are tried before the ICC are genocide, war crimes, crimes against humanity, and the crime of aggression. They are all codified in part 2 of the Rome Statute. In total, there have been 31 cases tried before the court so far. In addition, ICC judges have issued 40 arrest warrants.
“Genocide” is a crime “characterized by the specific intent to destroy a national, ethnic, racial, or religious group by killing its members or by other means, such as causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures to prevent births within the group; or forcibly transferring children of the group to another group.” To wipe out parts of the group can be a genocide, too. The crime of genocide is codified in article 6 of the Rome Statute.
“Serious violations as a part of a large-scale attack against any civilian population” are prosecuted as “crimes against humanity.” The Rome Statute lists several acts which can be a crime against humanity, such as murder, extermination, enslavement, torture, rape, or the crime of apartheid. (Rome Statute, art. 7.)
Furthermore, “war crimes” fall within the ICC’s jurisdiction. (Rome Statute, art. 8.) War crimes are breaches of the Geneva Conventions of 1949 in the context of armed conflicts. These include the use of child soldiers, the killing or torture of persons such as civilians or prisoners of war, and intentionally directing attacks against hospitals, historic monuments, or schools, among others.
Finally, according to article 8 bis, the “crime of aggression” refers to the “planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” Such an act of aggression is the “use of armed force by a State against the sovereignty, territorial integrity or independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” The definition of this fourth crime was adopted through amendments made to the Rome Statute in 2010. In 2017, the Assembly of State Parties adopted by consensus a resolution on the activation of the jurisdiction of the court over the crime of aggression as of July 17, 2018.
- What other requirements must be fulfilled for the ICC to have jurisdiction?
The ICC’s jurisdiction only includes genocide, crimes against humanity, or war crimes which were committed on or after July 1, 2002. (Rome Statute, art. 11.) With regard to the crime of aggression, the date is July 17, 2018, as explained above. In addition, the crimes must have been committed by a state party national, in the territory of a state party, or in a state that has accepted the jurisdiction of the court. (Id. art. 12.) This requirement can be replaced by a resolution adopted by the UN Security Council under chapter VII of the UN Charter which refers the crimes to the ICC prosecutor. (Id. art. 13.) Furthermore, state parties may refer cases to the ICC prosecutor for investigation or the ICC prosecutor may initiate investigations on his or her own if certain conditions are fulfilled. (Id. arts.13, 14, 15.)
- What is the background of the ICC?
Coming into existence in 2002, the ICC’s background goes back to World War II. The international community recognized the existence of “crimes against humanity” at the Nuremberg trials and the “crime of genocide” at the Tokyo trials. However, realizing the idea of a permanent court was not possible during the Cold War. The UN established specialized ad-hoc courts to address crimes in the 1990s, for example for crimes in the former Yugoslavia (1993-2017), Rwanda (1995-2015), and Sierra Leone (2002-2013). In 1998, 160 states took part in the negotiations for a permanent international criminal court, which culminated in the establishment of the ICC.
- How does the ICC work?
The different stages of an example investigation and case at the ICC are: preliminary examination, investigation, pre-trial stage, trial stage, appeals stage, and the enforcement of a sentence. The Office of the Prosecutor will only start an investigation if there is sufficient evidence of crimes of sufficient gravity which fall within the ICC’s jurisdiction and it would serve the interests of justice and of the victims. (Rome Statute, art. 53.) Furthermore, the prosecutor must determine whether the state in question is “unwilling or unable genuinely to carry out the investigation or prosecution.” (Id. art. 17.) At trial, the prosecution must prove the guilt of the accused person beyond a reasonable doubt. (Id. art. 66.) The Rome Statute grants victims a right to participate in ICC proceedings. (Id. art. 68; Rules of Procedure and Evidence, rules 85 and 86.) If there is a guilty verdict, the judges issue a sentence as well, which can be up to 30 years of imprisonment or life in prison in case it is justified by the gravity of the crime. (Rome Statute, art. 77.) If the verdict is life imprisonment, the court must review the sentence after 25 years. (Id. art. 110.) The verdict and sentence are subject to appeal. (Id. art. 81.)
- How many people work at the ICC and where is it located?
The Court has over 900 staff members from approximately 100 states. In total, there are 18 judges who are elected by the Assembly of States Parties based on their qualifications, impartiality, and integrity. ICC judges serve a term of nine years, which is non-renewable.
The ICC’s headquarters are located in The Hague, Netherlands, and there are six official languages: English, French, Arabic, Chinese, Russian, and Spanish.
- What are some recent cases of the ICC?
Recently, the ICC has been in the news in the context of the events unfolding in Ukraine. On February 28, 2023, the ICC prosecutor, Karim A.A. Khan KC, announced that he was seeking authorization to open an investigation into the situation in Ukraine. Over the next days, 39 state parties to the Rome Statute made referrals to the ICC, asking the ICC’s prosecutor to investigate the situation in Ukraine. The prosecutor announced that he had opened an investigation based on the referrals. Ukraine is not party to the Rome Statute but has twice exercised its prerogative to accept the court’s jurisdiction over alleged crimes under the Rome Statute occurring on its territory, should the Court choose to exercise it.
The European Union (EU) supports the ICC with this investigation. The ICC will take part in a joint investigation team (JIT) with Eurojust, the European Union Agency for Criminal Justice Cooperation, to facilitate investigations and international judicial cooperation. On March 3, 2023, the seven national authorities participating in the JIT signed a Memorandum of Understanding with the United States Department of Justice.
Moreover, ICC judges have issued arrest warrants against Russian President Vladimir Vladimirovich Putin and the Commissioner for Children’s Rights in the Office of the President of the Russian Federation, Maria Alekseyevna Lvova-Belova. The ICC Pre-Trial Chamber II considered that “there are reasonable grounds to believe that each suspect bears responsibility for the war crime of unlawful deportation of population and that of unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children.” Both suspects committed the crimes allegedly in Ukrainian occupied territory starting from February 24, 2022. The acts in question are alleged violations of articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute.
- What additional resources about the ICC does the Law Library of Congress have?
- International Tribunal Web Archive
- Coalition for the International Criminal Court (archived website)
- Hanibal Goitom, FALQs: The International Criminal Court and Africa, In Custodia Legis (2016)
- Global Legal Monitor: International Criminal Court
Subscribe to In Custodia Legis – it’s free! – to receive interesting posts drawn from the Law Library of Congress’s vast collections and our staff’s expertise in U.S., foreign, and international law.