Anaya Nolan
The International Criminal Court (ICC) is the first permanent international criminal court in the world. It investigates and tries individuals charged with the gravest crimes of concern to the international community, including genocide, war crimes, and crimes against humanity. The ICC's procedural practice has been reluctant to apply inherent powers to fill procedural gaps and instead relies on general principles of law derived from national laws. One of the principles of international law is that a treaty does not create obligations or rights for third states without their consent. The Rome Statute, which governs the ICC, also enshrines the principle of complementarity, which states that the Court will only prosecute if states are unwilling or unable to.
| Characteristics | Values |
|---|---|
| The Court's role | To investigate and try individuals charged with the gravest crimes of concern to the international community, such as genocide, war crimes, and crimes against humanity. |
| Jurisdiction | Complementary to national criminal jurisdictions, with a focus on the most serious crimes. |
| Applicable Law | Applicable treaties, principles, and rules of international law, including the law of armed conflict. |
| General Principles of Law | Derived from national laws and legal systems worldwide, provided they do not conflict with the Statute, international law, or recognized norms and standards. |
| Previous Decisions | The Court may apply principles and rules of law as interpreted in its previous decisions. |
| Human Rights | The application and interpretation of the law must respect internationally recognized human rights, without adverse distinction based on gender, age, race, etc. |
| Due Process | The Court considers principles of due process recognized by international law when determining unwillingness or inability to prosecute. |
| Punishment | In the event of conviction, the Court may impose imprisonment, fines, or both, according to the Rules of Procedure and Evidence. |
| Detention Centre Welfare | Ensuring the mental, physical, and spiritual welfare of detainees with access to fresh air, recreation, legal resources, privacy with lawyers, and family visits. |
| Independence of Prosecutor | The Prosecutor is an independent organ of the Court, conducting examinations, investigations, and bringing cases before the Court. |
| Victim and Witness Protection | The ICC has a protection program with operational and procedural measures to safeguard those involved in proceedings. |
| Community Engagement | The Court engages directly with affected communities to foster a sense of ownership in the judicial process. |
| State Cooperation | States that are parties to the Rome Statute work to incorporate its rules into their judicial systems and provide management and funding for the Court. |
| Voluntary Nature of Cooperation | The Rome Statute envisions that non-party states will voluntarily cooperate with the ICC, but there are obligations to cooperate in certain cases, such as when referred by the UN Security Council. |
| Complementarity Principle | The Court will only prosecute if states are unwilling or unable to, as seen in the situation between Russia and Georgia in the Ossetia region. |
| Jurisdiction over Corporations | There is debate over whether the ICC should have jurisdiction over corporations violating international law, with considerations of practicality, effectiveness, and potential compromises. |
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What You'll Learn
The ICC's relationship with the UN
The International Criminal Court (ICC) is an independent judicial body that may exercise jurisdiction over persons charged with genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC was established by the United Nations (UN) to prosecute crimes such as genocide, which the UN recognized as inflicting great losses on humanity and requiring international cooperation to eradicate. The UN has been involved with several tribunals established to bring justice to victims of international crimes, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The UN Security Council established these ad hoc criminal tribunals to hold individuals accountable for atrocities and deter similar crimes in the future.
The ICC is mandated to be a permanent international criminal court, fulfilling the role of these ad hoc criminal tribunals. The UN-ICC Relationship Agreement, approved by the UN General Assembly in resolution 58/318, governs the cooperation between the two organizations. The UN Security Council can refer certain situations to the Prosecutor of the ICC, in accordance with Article 13(b) of the Rome Statute and Chapter VII of the UN Charter. The Rome Statute was the outcome of a long process of consideration of the question of international criminal law within the UN. The UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, held in Rome, Italy, from June 15 to July 17, 1998, finalized and adopted the Statute.
The establishment of the ICC is seen as a decisive step forward in the fight against impunity and the struggle for peace, justice, and human rights in conflict situations. The ICC's relationship with the UN is formalized in Article 2 of the Rome Statute, which provides for the ICC's cooperation with the UN. The annual "Report of the International Criminal Court" is transmitted to the UN General Assembly by a note from the Secretary-General, in accordance with Article 6 of the Relationship Agreement.
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The Rome Statute
The jurisdiction of the court is complementary to that of domestic courts. The court has jurisdiction over crimes only if they are committed in the territory of, by a national of, or on a vessel registered to a state party or a non-state party that has accepted the court's jurisdiction. The Rome Statute's principle of complementarity is often taken for granted in the legal analysis of international criminal law and its jurisprudence.
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International humanitarian law
IHL is underpinned by several principles, including humanity, impartiality, neutrality, independence, voluntary service, unity, and universality. These principles are set out in the preamble to the Statutes of the Red Cross and Red Crescent Movement.
One of the key principles in IHL is proportionality, which plays a significant role in regulating the conduct of hostilities. Proportionality requires that the expected incidental harm is not excessive in relation to the anticipated military advantage. It appears in various provisions of the 1949 Geneva Conventions and the 1977 Additional Protocols, demonstrating its importance in international humanitarian law.
Another important aspect of IHL is the protection of civilians during armed conflicts. This includes providing advance warnings before attacks, removing individuals with disabilities from the vicinity of military objectives, and prioritizing them in humanitarian relief efforts.
IHL also addresses the issue of sexual violence in conflict, emphasizing its clear prohibition and the need for adequate support services for survivors.
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The principle of complementarity
- Protecting the accused from double jeopardy, or ne bis in idem, by blocking subsequent ICC prosecution based on the same conduct.
- Respecting national sovereignty in the exercise of criminal jurisdiction.
- Promoting greater efficiency, as the ICC cannot deal with all cases of serious crimes.
- Ensuring states fulfil their duty under international and national law to investigate and prosecute alleged serious crimes.
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Jurisdiction over corporations
The jurisdiction of the International Criminal Court (ICC) over corporations is a highly debated topic. The ICC currently does not have jurisdiction over corporations, but it has announced that it will prioritize criminal cases linked to land grabbing, illegal resource extraction, or environmental degradation caused by corporate activity. The proposed crime of ecocide would give the ICC jurisdiction over corporations as well as governments.
Supporters of ICC jurisdiction over corporations argue that corporations can and do commit human rights violations, such as war crimes linked to raw materials in conflict zones. They believe that prosecuting corporations under the ICC would improve corporate accountability and act as a deterrent to prevent further crimes. Some advocates suggest that individual liability should be complemented with corporate liability to prevent industrialists from repeatedly engaging in criminal activities.
Critics of ICC jurisdiction over corporations argue that it would compromise the principle of complementarity, give corporations excessive power under international law, and interfere with voluntary initiatives by companies. They suggest that national prosecutions are more cost-effective, preferable to victims, and more sustainable.
Despite the ongoing debate, the ICC's jurisdiction over corporations remains unresolved. The reference to "organizations" in Article 7 of the Rome Statute has been scrutinized by international lawyers, suggesting that Crimes Against Humanity can be committed by non-state actors, which may extend jurisdiction to some business practices. However, the interpretation of "organizations" to include corporations in the category of crimes against humanity is still under discussion.
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Frequently asked questions
The Rome Statute is an international treaty that governs the International Criminal Court (ICC). It was established to hold individuals accountable for the gravest crimes of concern to the international community, such as genocide, war crimes, and crimes against humanity.
The principle of complementarity is a core principle of the ICC's jurisdiction, which states that the ICC will only prosecute if states are unwilling or unable to do so themselves. This means that the ICC acts as a court of last resort, complementing national courts rather than replacing them.
According to the Rome Statute, the cooperation of non-party states with the ICC is voluntary. However, when a case is referred to the ICC by the UN Security Council, all UN member states are obliged to cooperate as its decisions are binding. Additionally, all states have an obligation to respect and ensure respect for international humanitarian law.
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