International Criminal Court

The International Criminal Court (ICC) is a permanent international criminal court based in The Hague (Netherlands) outside the United Nations. Its legal basis is the multilateral Rome Statute of the International Criminal Court of 17 July 1998. It became operational on 1 July 2002 and has jurisdiction over 123 states (60% of the world's states).

Its jurisdiction covers the four core crimes of international criminal law, namely genocide, crimes against humanity, crimes of aggression and war crimes, insofar as they were committed after its establishment. In December 2017, States Parties agreed to include the crime of aggression within its jurisdiction, effective July 2018. While the ICC does not have universal jurisdiction, it does have broad jurisdiction, which is specifically set out in the Rome Statute. Its jurisdiction is subordinate to national jurisdiction; it can only prosecute an offence if national prosecution is not possible or not desired by the state, the so-called principle of complementarity.

The ICC is an international organization in the sense of international law, but not part of the United Nations. In this respect, it differs from the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), which are colloquially referred to as "UN war crimes tribunals". Their jurisdiction was limited to certain conflicts, whereas the ICC is not subject to any such limitation.

The ICC's relationship with the United Nations is governed by a cooperation agreement. It acts either as a result of a State Party submitting a situation to the Court, a referral by the United Nations Security Council, or on the Prosecutor's own initiative (proprio motu).

Since 11 March 2018, Nigerian Judge Chile Eboe-Osuji has presided over the ICC as President, where he has served since 2012. First Vice-President is Robert Fremr from the Czech Republic, Second Vice-President is Marc Perrin de Brichambaut from France. The chief prosecutor since 16 June 2021 is the British jurist Karim Ahmad Khan.

The ICC is currently supported by 123 States Parties, including all the States of the European Union. Countries such as China, India, the United States, Russia, Turkey and Israel have either not signed the Rome Statute at all, have not ratified the agreement after signing it or have withdrawn their signature.

In the 2020 election of judges to the International Criminal Court, six new judges were elected in December 2020 and sworn in on 10 March 2021.

Statute

The basis of the ICC is the so-called Rome Statute. The Court can only sit in judgment on individuals and not on states.

Crimes

The ICC can only prosecute those crimes that are named in Article 5 of the Rome Statute. These are genocide, crimes against humanity, war crimes and crimes of aggression, which are defined in Articles 6, 7, 8 and 8bis of the Statute.

The crime of aggression has fallen under the jurisdiction of the ICC since 17 July 2018. The crime of aggression includes the invasion and occupation of another state, as well as the bombing and blockading of ports and coasts, and the deployment of armed gangs. Whether humanitarian interventions are also included is disputed among international law experts, and the position of the states parties is still unclear even after the agreement reached by the states parties in 2017.

Responsibility

The ICC was not granted universal jurisdiction. A person can be prosecuted by the ICC for crimes committed after 1 July 2002 only if

• the person is a national of a Member State (Art. 12f.),
• the act was committed on the territory of a Member State (Art. 12f.),
• the situation has been referred to the ICC by the UN Security Council under Chapter VII (Art. 13), or
• a non-member state formally accepts the jurisdiction of the ICC and the crime was committed on its territory or the person is a national of that state (Art. 12f.).

Other principles

Victims cannot be joint plaintiffs.

The ICC Statute contains provisions on criminal law, criminal procedure, the execution of sentences, court organisation, mutual legal assistance and extradition law.

Core principles of the ICC are:

• jurisdiction and venue for the above-mentioned "most serious crimes affecting the international community as a whole";
• the primacy of national jurisdiction, to the extent that it exists and is able and willing to actually prosecute (principle of complementarity of the ICC, only "complement");
• the individual criminal liability of natural persons, irrespective of any official position they may hold;
• the possibility in principle of accepting voluntary financial contributions from natural and legal persons, and
• the constitution as a permanent body.

The Statute enshrines fundamental principles of criminal law, such as the principles of non-retroactivity (nullum crimen sine lege) and the prohibition of double jeopardy (ne bis in idem).

Only crimes committed after the entry into force of the Statute on 1 July 2002 can be prosecuted. If states have ratified the Rome Statute later, the earliest date of entry into force for the respective state is considered to be the date of ratification.

The representation of the prosecution may, on its own initiative, carry out preliminary investigations to a wide extent, but not without limitation. The attempt to synthesize two legal systems, namely Roman-Germanic and Anglo-Saxon law, is remarkable.

The building of the International Criminal Court in The Hague

History

Efforts to establish an international criminal court date back to the interwar period. After the end of the Second World War, corresponding initiatives within the United Nations and by human rights organizations failed, in particular due to the reservations of the two great powers. At the end of the eighties, beginning of the nineties, the world climate had changed somewhat in favor of the installation of an International Criminal Court.

Earlier international criminal tribunals, such as the one for Yugoslavia or the one for Rwanda, were each established by the UN Security Council for the purpose of administering justice in a specific conflict and are therefore also referred to as "ad hoc tribunals". The International Criminal Court, on the other hand, was created by an international treaty as a permanent legal institution and is not part of the United Nations, but an independent international organization with international legal personality.

The ratification of the Rome Statute by a large number of states gives the Court a high degree of legitimacy. This treaty was adopted by the UN Conference of Plenipotentiaries in Rome on 17 July 1998 after five weeks of negotiations involving some 160 States and non-governmental organizations: 120 States voted in favour, seven voted against and 21 abstained. Shortly after the deposit of the 60th instrument of ratification, the Rome Statute entered into force on 1 July 2002. The Court has jurisdiction over crimes committed since then. A few months later, on 11 March 2003, the first 18 judges were solemnly sworn in. Luis Moreno Ocampo became the first Chief Prosecutor.

In order to provide a scientific and methodological foundation, the ICC is developing, among other things, a database on international criminal law under the name "Legal Tools Project" (LTP). In the medium term, this should make the application of the offences of genocide, crimes against humanity and war crimes more comparable internationally. Well-known cooperation partners for this are the Norwegian Centre for Human Rights at the University of Oslo, the British universities of Nottingham and Durham, the International Research and Documentation Centre for War Crimes Trials at the Philipps University of Marburg and the University of Graz, as well as the Dutch T.M.C. Asser Instituut. The LTP is technically advised by the Institute for Legal Informatics at Saarland University. Among other things, the CaseMatrix, an expert system, is technically developed there for the ICC.

In 2012, the budget of the International Criminal Court comprised around 109 million euros. In the 2010 budget, Germany was the second-largest contributor after Japan with 12.7 per cent (13.6 million euros out of a total of around 103.6 million euros).

In June 2010, the first Review Conference of the Rome Statute was held in Kampala (Uganda). The aim of the conference was, among other things, to integrate the previously excluded crime of aggression into the Rome Statute. Agreement was reached on both the definition and the conditions for exercising jurisdiction over the crime of aggression in implementation of the mandate of Article 5 (2) of the ICC Statute.

The US sent an observer delegation to the ICC's first review conference. It wanted above all "to prevent the prosecution from investigating on its own if it thinks it has identified a crime of aggression - i.e. military force against a state that obviously violates the UN Charter. Behind the dispute over the offence of war of aggression [...] there is always also the debate about 'equality before international law' and whether politically influential nations can permanently evade the court." Germany was represented in Kampala by Markus Löning, Commissioner for Human Rights Policy and Humanitarian Aid.

On 5 February 2021, the ICC decided that, due to Palestine's membership, it also has jurisdiction to prosecute international criminal offences in the Israeli-occupied territories of the West Bank, East Jerusalem and the Hamas-controlled Gaza Strip.

On the historical antecedents of the ICC, see: History of International Criminal Law