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Library of Parliament > Research publications > The International Criminal
Court: History and Role
RESEARCH PUBLICATIONS
The International Criminal Court: History and Role
HillStudies
Revised by Scott McTaggart, Economics, Resources and International Affairs
Division
Laura Barnett, Legal and Social Affairs Division
Benjamin Dolin, Legal and Social Affairs Division
Publication No. 2002-11-E
PDF 801 KB, (37 Pages)
2002-05-14
Revised on: 2022-12-01
About this publication
CONTENTS
* Executive Summary
* 1 Introduction
* 2 The Road to Rome
* 2.1 Post-war Advances in International Criminal Law
* 2.2 International Criminal Tribunals for the Former Yugoslavia and Rwanda
* 2.3 Rome Conference
* 3 The Rome Statute and the International Criminal Court
* 3.1 Jurisdiction of the International Criminal Court
* 3.2 Crimes Under the International Criminal Court’s Jurisdiction
* 3.2.1 Genocide
* 3.2.2 Crimes Against Humanity
* 3.2.3 War Crimes
* 3.2.4 Crime of Aggression
* 3.3 International Criminal Court Judges and Court Administration
* 3.4 Office of the Prosecutor
* 3.5 Chambers
* 3.5.1 Pre-Trial Chamber
* 3.5.2 Trial and Appeals Chambers
* 3.6 Victim Assistance and Participation
* 4 International Criminal Court at Work
* 4.1 States Parties to the Rome Statute
* 4.2 International Criminal Court Investigations and
Preliminary Examinations
* 4.3 International Criminal Court Cases and Trials
* 4.4 Selected Recent Cases
* 4.4.1 Bemba, Bemba et al.
* 4.4.2 Gbagbo and Blé Goudé
* 4.4.3 Ntaganda
* 5 Criticisms of the International Criminal Court
* 5.1 Chambers
* 5.2 Office of the Prosecutor
* 5.3 States Parties
* 5.4 Focus on Africa
* 5.5 International Criminal Court and the United States
* 6 Conclusion
* Appendix – Overview of All International Criminal Court Cases
* Notes
--------------------------------------------------------------------------------
EXECUTIVE SUMMARY
On 1 July 2002, a group of countries around the world established the
International Criminal Court (ICC or the Court) as a forum to investigate and
prosecute those responsible for the world’s most serious crimes. The Rome
Statute of the International Criminal Court (Rome Statute), which governs the
ICC and today has 123 states parties, builds on the legacy of the ad hoc
international tribunals that preceded it, marking a milestone in the advancement
of international criminal law.
With jurisdiction over the crimes of genocide, crimes against humanity, war
crimes and the crime of aggression, the ICC is a court of last resort for
serious offences that national governments are unable or unwilling to
investigate and prosecute. The ICC’s Office of the Prosecutor (OTP) is an
independent organ of the Court with the power to initiate investigations,
subject to certain limitations. ICC investigations may also be initiated at the
request of ICC states parties or the United Nations Security Council. The ICC’s
18 judges are elected by states parties to the Rome Statute, and the Court is
divided into pre-trial, trial and appeals chambers. The ICC also recognizes the
right of victims to participate in proceedings and provides support to
assist them.
As of November 2022, the OTP had opened 17 investigations regarding situations
in 16 countries. These investigations led to charges in 33 cases involving 49
defendants. Many of these cases are either ongoing – in a number of instances,
because the accused are not in custody – or have ended prior to a verdict being
reached. In total, the ICC has convicted five individuals for crimes under its
jurisdiction and five others for crimes related to ICC proceedings, such as
witness tampering.
Now more than 20 years old, the ICC has become an established, if controversial,
part of the international landscape. The Court has demonstrated the viability of
a permanent institution that can successfully investigate and prosecute
international crimes, but its record of securing convictions has proven
underwhelming. Recognizing the need for reform, the ICC states parties
commissioned an independent review of the Rome Statute system in December 2019.
In their final report, the experts made hundreds of recommendations for
improvement, targeting all branches of the institution and the ICC states
parties themselves.
The ICC faces challenges from other corners as well. Criticism of the ICC’s
record from Africa has been particularly pointed; it includes accusations of
racism and calls for the mass withdrawal of African countries from the ICC. The
United States, among other powerful nations, continues to operate outside the
Rome Statute system and is at times hostile to its operations.
Despite these challenges, the ICC’s mandate to end impunity for atrocities
committed around the world remains as relevant today as it was the day the
institution was founded, and the Court continues to move international criminal
law forward to that end.
1 INTRODUCTION
In 1998, a group of countries signed a treaty with the goal of ending impunity
for the world’s most serious crimes by establishing a permanent international
criminal tribunal, the International Criminal Court (ICC or the Court). The Rome
Statute of the International Criminal Court1 (Rome Statute) marked a milestone
in the development of international criminal law as states recognized the need
to reach beyond the ad hoc solutions that preceded the ICC and build a court
with broad jurisdiction to investigate, try and punish perpetrators of
atrocities around the world. Officially created in 2002, the ICC has now become
an established, if controversial, feature of the international landscape.
After two decades, the ICC has seemingly proven both its harshest critics and
its most enthusiastic supporters wrong. The Court’s record demonstrates that
prosecuting people responsible for international crimes is possible, but it is a
complex, time-consuming endeavour. Although its successful conviction of even a
small number of perpetrators may assuage doubts about the ICC’s viability, its
lofty goals of ending impunity and deterring atrocities remain unattained.
This paper provides an overview of the historical development of international
criminal law and a summary of the Rome Statute. It discusses the role and
functioning of the ICC before proceeding to a review of the Court’s record to
date and a discussion of the criticisms the ICC faces today.
2 THE ROAD TO ROME
Having transitioned from a system of impunity to one of justice administered by
victors over the vanquished, the international community is now witnessing the
development of what many suggest is an impartial system of international
criminal justice. Building on the legacy of the post–World War II period, the ad
hoc tribunals established in the early 1990s catalyzed a push for a permanent
international court and for the negotiation of the Rome Statute later in the
same decade.
2.1 POST-WAR ADVANCES IN INTERNATIONAL CRIMINAL LAW
The concept of an international criminal court was identified as early as the
15th century, and by the late 19th century, international criminal law began to
emerge in the form of violations of rules governing military conflict.2 However,
it was not until the end of World War II that the modern concept of
international criminal law began to take shape. Nazi Germany launching an
offensive military campaign and committing startling atrocities prompted the
Allied powers to place “among their principal war aims the punishment, through
the channel of organized justice, of those guilty of or responsible for these
crimes, regardless of whether they have ordered them, perpetrated them or
participated in them.”3
In pursuit of that goal following the war, the International Military Tribunal,
sitting at Nuremberg, and the International Military Tribunal for the Far East,
sitting at Tokyo, were established.
At Nuremberg, prosecutors from the major allied powers were responsible for
investigating and prosecuting major war criminals responsible for the commission
of “crimes against peace,” “war crimes” and “crimes against humanity.”4 After a
ten month trial, the Tribunal issued its final judgment in 1946, acquitting
three defendants and sentencing 19 others to imprisonment or death. Three
organizations were also acquitted, while another three were found to be
criminal organizations.5
In Tokyo, a tribunal of a similarly international character and almost identical
charter was established. The Tokyo Tribunal trials lasted more than two years
and all of the accused were found guilty and sentenced to imprisonment or death.
The tribunals were part of a larger post-war initiative to advance international
criminal law. In 1948, the Convention on the Prevention and Punishment of the
Crime of Genocide6 (Genocide Convention) was adopted, marking the first
international recognition that “genocide, whether committed in time of peace or
in time of war, is a crime under international law.”7 The following year, the
Geneva Conventions of 1949, comprising four treaties, were adopted.8 These four
treaties called on the states to criminalize grave breaches of international
humanitarian law. When the United Nations (UN) General Assembly adopted the
Genocide Convention, it also invited the International Law Commission (ILC) – a
committee of legal experts working to develop and codify international law – to
examine the possibility of establishing a permanent international
criminal court.9
With the onset of the Cold War, post-war cooperation to advance international
criminal law slowed dramatically. However, in 1990, the ILC’s post-Nuremberg
project was revived following a special session of the UN General Assembly
focused on international drug trafficking prosecutions and a well-received ILC
report that went beyond this limited issue. Building on this success, the ILC
resumed the task of preparing a draft statute for a comprehensive international
criminal court.10 The move proved timely as it coincided with the return of
international criminal justice to the agenda of the international community in
response to atrocities in Yugoslavia and Rwanda.
2.2 INTERNATIONAL CRIMINAL TRIBUNALS FOR THE FORMER YUGOSLAVIA AND RWANDA
In the early 1990s, two ad hoc tribunals were created as subsidiary organs of
the UN Security Council: the International Criminal Tribunal for the former
Yugoslavia (ICTY),11 formed in 1993, and the International Criminal Tribunal for
Rwanda (ICTR),12 founded in 1994. The ICTY and ICTR both operated for more than
20 years, and more than 150 individuals were convicted for international crimes
committed in the two countries.13
Despite some significant cynicism about the time and money spent, the ability of
these tribunals to achieve true peace and reconciliation, and difficulties
arresting those indicted by the ICTY,14 both tribunals have contributed to
historic progress in international criminal law. Louise Arbour, a former justice
of the Supreme Court of Canada and a chief prosecutor of the tribunals,
described the tribunals as “a procedural and a practical laboratory for the
enforcement of the laws of war.”15 Later commentators credited the tribunals’
jurisprudence as “fundamental in shaping the statutes and jurisprudence”16 of
the ICC and enhancing “the quality of its reasoning and the legitimacy of its
judgments” in the early years of its existence.17
Despite these achievements, it took two years of negotiations and preparation to
establish the ICTY and ICTR, leading many observers to point to the necessity of
a permanent court that would avoid the time-consuming establishment process and
that could also address smaller-scale incidents that might not garner the
political will to establish another ad hoc tribunal.18
2.3 ROME CONFERENCE
In 1994, the ILC submitted a draft statute for an international criminal court
to the UN General Assembly,19 and the Preparatory Commission for the
Establishment of an International Criminal Court was founded in 1996. An amended
draft statute was submitted in April 1998, setting the stage for the five-week
conference held in Rome starting in June of that year.
Although jurisdictional issues were the most complex and most sensitive, the
proprio motu prosecutor model (a prosecutor who has the power to initiate
proceedings) did receive “considerable, but not general, support.”20 As the
conference was nearing its conclusion and no agreement was evident, the Bureau
of the Committee of the Whole21 decided to prepare a final package for possible
adoption, as many feared that a second conference stood no better chance of
success. The Bureau’s package was adopted in a final vote of 120 in favour, 21
abstaining and seven against.
The United States (U.S.) voted against the Rome Statute – along with China,
Iraq, Israel, Libya, Qatar and Yemen – then signed it on 31 December 2000, the
last day the treaty was open for signature. In a blow to the nascent court, the
U.S. then retracted its signature in May 2002, when John Bolton, then Under
Secretary of State for Arms Control and International Security, sent a letter to
the UN stating that the U.S. did not intend to become a party to the Rome
Statute and formally renouncing any obligations under the treaty.22
Canada ratified the Rome Statute in July 2000, after enacting the Crimes Against
Humanity and War Crimes Act23 to carry out its obligations under the Rome
Statute and to enhance its ability to prosecute war crimes and crimes
against humanity.
3 THE ROME STATUTE AND THE INTERNATIONAL CRIMINAL COURT
The ICC came into being on 1 July 2002 with the entry into force of the Rome
Statute. The Rome Statute is accompanied by the primary legal texts of the ICC –
the Regulations of the Court, the Rules of Procedure and Evidence, and the
Elements of Crimes – which explain the structure, functions and jurisdiction of
the Court.24
3.1 JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT
Broadly speaking, the Court has jurisdiction over those individuals directly
responsible for committing crimes listed in the Rome Statute, as well as others
who may be indirectly responsible, such as military commanders, political
leaders or other superiors.25 The Court’s jurisdiction is limited to offences
committed after the entry into force of the Rome Statute.26
An ICC investigation may be initiated based on a referral from either the UN
Security Council pursuant to Chapter VII of the UN Charter27 or a state party to
the Rome Statute. The Office of the Prosecutor (OTP) may also initiate
investigations independently, or proprio motu, subject to court authorization.28
For state- or prosecutor-initiated investigations, 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, except where the relevant
non-state party accepts the jurisdiction of the Court.
The ICC is a court of last resort, and based on the principle of
complementarity, it may not pursue cases which are or were the subjects of
credible investigations or prosecutions by a state with jurisdiction over the
offences. Under article 17 of the Rome Statute, cases that are or have been the
subject of a national investigation and/or prosecution are inadmissible in the
ICC, unless the state in question is “unwilling or unable genuinely to carry out
the investigation or prosecution.”29 This deference to national courts extends
to cases where states exercise extraterritorial jurisdiction over crimes within
the ICC’s jurisdiction, for example, as allowed for in Canada’s Crimes Against
Humanity and War Crimes Act.30
3.2 CRIMES UNDER THE INTERNATIONAL CRIMINAL COURT’S JURISDICTION
The ICC has jurisdiction over the “most serious crimes of concern to the
international community,” namely four core crimes: the crime of genocide, crimes
against humanity, war crimes and the crime of aggression.31 As a last-minute
compromise during the Rome conference, the crime of aggression was listed as a
crime under the Court’s jurisdiction, but exercise of the jurisdiction was
deferred until amendments to the Rome Statute were made to define the crime and
set conditions on the Court’s jurisdiction. In June 2010, the ICC’s Assembly of
States Parties (ASP) adopted these amendments.32 The amendments came into force
on 17 July 2018 following their ratification by more than 30 states parties to
the Rome Statute.33 Canada has not ratified the amendments, limiting the ICC’s
jurisdiction over crimes of aggression committed on Canadian territory or by
Canadian nationals.34
The Rome Statute sets out each crime under its jurisdiction and establishes the
conditions for individual criminal responsibility of accused persons. Article 9
of the Rome Statute authorizes the ASP to adopt and subsequently amend the ICC’s
Elements of Crimes35 (EOC) to assist in the interpretation and application of
the statute. Under article 21, EOC has equal status to the Rome Statute as a
primary legal source for the Court.36 EOC elaborates on the provisions of the
Rome Statute and establishes the specific elements required for each specific
type of crime, for example genocide by killing members of a group under article
6(a), or the crime against humanity of torture under article 7(1) (f).
3.2.1 GENOCIDE
Often referred to as the “crime of crimes” after the Nuremburg Trials,37
genocide was first defined in international law in the 1948 Genocide Convention.
Article 6 of the Rome Statute adopts the definition of genocide as originally
set out in article 2 of the Genocide Convention:
> In the present Convention, genocide means any of the following acts committed
> with intent to destroy, in whole or in part, a national, ethnical, racial or
> religious group, as such:
>
> a. Killing members of the group;
> b. Causing serious bodily or mental harm to members of the group;
> c. Deliberately inflicting on the group conditions of life calculated to
> bring about its physical destruction in whole or in part;
> d. Imposing measures intended to prevent births within the group;
> e. Forcibly transferring children of the group to another group.38
The definition of genocide creates a dual intent requirement: the general
criminal intent to commit the act in question (e.g., killing, serious bodily
harm) and a specific intent of committing the act in pursuit of the goal of
destroying a defined group, in whole or in part.39 EOC adds a contextual element
to the definition, requiring that the act take place within “a manifest pattern
of similar conduct directed against that group or was conduct that could itself
effect such destruction.”40 The ICC Pre-Trial Chamber has interpreted this
contextual requirement as meaning the threat to the group in question must be
“concrete and real.”41
3.2.2 CRIMES AGAINST HUMANITY
The concept of crimes against humanity has existed in international law for at
least a century, and its articulation in article 7 of the Rome Statute has been
described as both a codification and advancement of the concept under customary
international law.42 Article 7(1) enumerates 11 underlying crimes, including
murder, enslavement, and torture, which may constitute crimes against humanity.
Under this article, like genocide, crimes against humanity require that the
crimes be committed within a specific context, namely, “as part of a widespread
or systematic attack directed against any civilian population, with knowledge of
the attack.”
Article 7(2) defines such an attack as “a course of conduct involving the
multiple commission” of the underlying crimes listed in article 7(1), committed
“pursuant to or in furtherance of a State or organizational policy.” The EOC
further stipulates that the attack need not be a military attack and that under
exceptional circumstances, the policy requirement may be fulfilled by a
“deliberate failure to take action,” rather than actively encouraging or
promoting the attack.43
Unlike genocide, there is no discrimination requirement, meaning the targeted
population need not be members of a defined group. Also, in contrast to war
crimes, there is no requirement that the crime take place in the context of an
armed conflict.
3.2.3 WAR CRIMES
War crimes under article 8 of the Rome Statute incorporate international crimes
found in other international instruments, most notably the Geneva Conventions,
as well as crimes which had not been previously codified in international law.44
Article 8(2)(a) of the Rome Statute criminalizes acts committed against persons
and property protected by the Geneva Conventions – including the sick and
wounded, prisoners of war and civilians – while article 8(2)(b) criminalizes
“[o]ther serious violations of the laws and customs applicable in international
armed conflict.”45
Similarly, for conflicts not of an international character, article 8(2)(c)
criminalizes serious violations of article 3 common to all four of the Geneva
Conventions, while article 8(2)(e) criminalizes other serious violations of laws
and customs applicable in that context.46 Crimes relating to non-international
conflicts are subject to an intensity threshold47 under articles 8(2)(d) and
8(2)(f), which excludes situations of “internal disturbances and tensions” from
the Court’s jurisdiction.
Through articles 8(2)(b)(xxii) and 8(2)(e)(vi), the Rome Statute became the
first instrument to list forms of sexual violence, such as rape, sexual slavery,
enforced prostitution, forced pregnancy and enforced sterilization, as distinct
types of war crimes.48 The Rome Statute was also the first to establish an
ecological war crime under article 8(2)(b)(iv) for attacks that result in
“long-term and severe damage to the natural environment.”
As part of a nexus requirement for war crimes, the crimes must be committed “in
the context of” and be “associated with an armed conflict.”49 Additional
knowledge requirements apply to some war crimes, such as being aware of the
circumstances that would lead to a person being considered a protected person
under the Geneva Conventions.
The ASP passed amendments to article 8 in 2010, 2017 and 2019, adding crimes for
non-international conflicts that already existed for international conflicts and
establishing new crimes for the use of certain types of weapons. Like the crime
of aggression, discussed below, these amendments are in force for parties that
have ratified them,50 currently a minority of the states parties. Canada has not
ratified any of the amendments to article 8.
3.2.4 CRIME OF AGGRESSION
In 2018, the ICC became the first international tribunal since the Nuremburg
Tribunal – where the lead charge was crimes against peace – to have jurisdiction
over the crime of aggression.51 Article 8bis(1) of the Rome Statute limits the
application of the crime of aggression to persons “in a position effectively to
exercise control over” a state or to persons in a position to direct the
political or military action of the state. The provision criminalizes any use of
force against another state which would constitute “a manifest violation of the
Charter of the United Nations,” including those acts enumerated in article
8bis(2). As of November 2022, the OTP has not undertaken any investigation
relating to a crime of aggression.
3.3 INTERNATIONAL CRIMINAL COURT JUDGES AND COURT ADMINISTRATION
The administration of the ICC is ensured by three judges – a president and two
vice-presidents – elected by and from a pool of 18 sitting ICC judges for a
three-year renewable term. These three judges are responsible for the general
administration of the Court, except for the OTP. A judge is elected by the ASP
to a non-renewable nine year term. The ICC’s first president was Philippe Kirsch
of Canada.
The ICC’s other primary administrative body is the Registry, which is
responsible for the non-judicial aspects of the Court’s administration. Funding
for the ICC’s operations is raised through contributions assessed to its
members, based on the scale of assessment used by the UN. Additional funds may
also be raised through voluntary contributions by members and the UN.52
3.4 OFFICE OF THE PROSECUTOR
Article 42 of the Rome Statute establishes the Office of the Prosecutor (OTP) as
a separate and independent organ of the ICC. The ICC prosecutor and deputy
prosecutor are elected by the ICC’s ASP for a non-renewable nine-year term.
While the OTP was created as an independent entity, the Rome Statute limits this
independence in practice by providing a number of means to the states (including
non-parties), the UN Security Council and the ICC’s other organs by which they
can check the prosecutor’s powers.53 This balance between independence and
accountability in the powers given to the prosecutor is most evident in the
exercise of its proprio motu investigative authority.
Article 15 allows the prosecutor to initiate an investigation, but with
significant limitations. To initiate an investigation without a UN Security
Council or state party referral, the prosecutor must first apply for
authorization from the Pre-Trial Chamber by demonstrating “that there is a
reasonable basis to proceed … and that the case appears to fall within the
jurisdiction of the Court.”54 Once an investigation is authorized, notification
must be sent to all states parties and to any other state that might normally
have jurisdiction over the offence. States may then request that the prosecutor
defer the investigation on the basis of complementarity, due to a pre existing
national investigation. The prosecutor must abide by this request unless the
Pre-Trial Chamber agrees that the investigation may continue.55
Under article 16 of the Rome Statute, investigations or prosecutions can also be
deferred for a period of one year at the direction of the UN Security Council.
The deferral power is renewable and, theoretically, could result in an
indefinite postponement of ICC proceedings. To date the deferral power has never
been used.56
Prior to the opening of an investigation, the OTP conducts preliminary
examinations of situations referred to it or on which it has received
information suggesting that crimes within the ICC’s jurisdiction have been
committed. The opening of preliminary examinations is generally made public,
with the OTP providing periodic updates during what can be a years-long process.
Given their public nature, preliminary examinations encourage states to
investigate and prosecute offences (referred to as positive complementarity) and
potentially sound an early warning to prevent situations from escalating where
the commission of crimes may be ongoing.57 Preliminary examinations also promote
transparency and facilitate information gathering.
A prosecutor may refuse to pursue a state or Security Council referral if they
determine that there is no reasonable basis to proceed. In such cases, the
referring party may ask the Pre-Trial Chamber to review the decision, and the
Court may ask the prosecutor to reconsider.58 In most situations, the Court has
no statutory authority to force an investigation if, after reconsideration, the
prosecutor does not proceed. However, a different process exists when the
prosecutor decides not to proceed, where “taking into account the gravity of the
crime and the interests of victims, there are nonetheless substantial reasons to
believe that an investigation would not serve the interests of justice.”59 In
such a case, the matter must be referred to the Pre-Trial Chamber and a majority
must confirm the decision not to proceed. If the decision is rejected, the
prosecutor must continue the investigation or prosecution.60
3.5 CHAMBERS
3.5.1 PRE-TRIAL CHAMBER
Considered one of the ICC’s “most innovative structural developments,”61 the Pre
Trial Chamber, which usually consists of three judges, has been described as the
Court’s gatekeeper, with significant power to influence which cases are
investigated, how those investigations are conducted and which investigations
result in trials. As previously mentioned, the Pre-Trial Chamber authorizes
prosecutor-initiated investigations,62 decides challenges to the jurisdiction of
the Court or the admissibility of a case during the investigative stage63 and
reviews the prosecutor’s decision not to pursue a case referred to the OTP.64
The Pre-Trial Chamber also has a number of responsibilities during
investigations. It has the authority to issue orders and warrants as part of the
investigative process, including to protect victims and witnesses, preserve
evidence, ensure the rights of the defence and facilitate investigations.65 The
Pre-Trial Chamber can issue arrest warrants and summonses for suspects based on
applications from the prosecutor, where it finds that there are “reasonable
grounds to believe” that a crime has been committed.66 Once an accused is in
custody, the Pre-Trial Chamber is also responsible for ensuring the rights of
the accused, including determining whether they will be released or detained
pending trial.67
Before a case goes to trial, the Pre-Trial Chamber must confirm the charges
brought by the OTP. At confirmation hearings, the prosecutor must establish
“substantial grounds” to believe that the accused committed the crime(s) in
question. The accused is generally present at the hearing and may both challenge
the evidence presented by the prosecutor and present their own evidence. Based
on the evidence presented, the chamber may confirm or decline to confirm any of
the charges presented and may also adjourn proceedings to request that the
prosecutor provide further evidence or amend the charges.68
3.5.2 TRIAL AND APPEALS CHAMBERS
Once the charges have been confirmed, cases are heard by the Trial Chamber
comprising three judges. For conviction, the prosecutor must convince the judges
that the accused is guilty beyond a reasonable doubt.69 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 a reparations order for victims.
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 reverse
or amend various kinds of lower-level decisions, including reparations and
sentencing orders, or order a new trial. Decisions of the Trial Chamber may be
appealed on the grounds of procedural error, error of fact or law, or for a
convicted person, any other ground that affects the fairness or reliability of
the proceedings or decision. A sentencing decision, meanwhile, may be appealed
on grounds of disproportion between the crime and the sentence.70 To reverse or
alter an outcome of another chamber, the Appeals Chamber must find that
proceedings “were unfair in a way that affected the reliability of the decision
or sentence, or that the decision or sentence … was materially affected by error
of fact or law or procedural error.”71
3.6 VICTIM ASSISTANCE AND PARTICIPATION
The mechanisms within the ICC and under the Rome Statute that support victims of
crime and grant them the right to participate in proceedings and claim
reparations mark a first in international criminal law.72
Under article 68(3) of the Rome Statute, victims are allowed to participate in
ICC proceedings in which their personal interests are affected. While it does
not give victims the same rights as the prosecutor or defence has, this
provision has been interpreted by the Court to allow victims or their
representatives to make statements, present evidence and question witnesses,
where doing so is consistent with the rights of the accused and with a fair and
impartial trial.73 In cases where hundreds or thousands of victims may be
registered to participate, the Court may order that a single common legal
representative be appointed. In 2021–2022 alone, approximately 13,000 victims
participated in ICC proceedings.74
In addition, the Trust Fund for Victims was established separately from the ICC
under the Rome Statute for the benefit of victims of crimes within the ICC’s
jurisdiction.75 The trust fund advocates for victims, funds and implements
projects that support victims, and provides tools, assistance and expertise to
victims. Funding for the trust fund comes from state party contributions and
from reparations orders.76
4 INTERNATIONAL CRIMINAL COURT AT WORK
Now more than two decades old, the ICC has become an established feature of the
international landscape. Despite shortcomings in its record, the Court has
demonstrated the ability to investigate and try perpetrators of international
crimes, and it continues to both consolidate and expand jurisprudence in
international criminal law through the decisions of all three chambers. This
section provides a summary of the ICC’s work to date.
4.1 STATES PARTIES TO THE ROME STATUTE
There are 123 states parties to the Rome Statute. Two former states parties have
withdrawn from the treaty pursuant to article 127(1): Burundi (in October 2017)
and the Philippines (in March 2019).77 South Africa and the Gambia submitted
notice of their intention to withdraw from the treaty, but revoked the notice
prior to it taking effect. Only two of the five permanent members of the UN
Security Council are currently states parties: France and the United Kingdom.78
In several instances, non-states parties have also accepted the jurisdiction of
the ICC pursuant to article 12(3) of the Rome Statute without having ratified
it. Currently, the ICC prosecutor is conducting an investigation of possible
crimes committed in Ukraine, based on a declaration under article 12(3) by
Ukraine accepting the Court’s jurisdiction.79 Côte d’Ivoire and the State of
Palestine have previously been the subject of preliminary examinations based on
a declaration under article 12(3), but they subsequently became parties to the
Rome Statute.80
In 2021, the ICC’s operating expenses totalled €154 million. Its revenue
totalled €144 million, of which €142 million was derived from contributions
assessed to its members. The ICC’s highest assessed contributions for the year
were made by Japan (€24 million), Germany (€16 million) and France
(€13 million); countries that qualified for the lowest assessed rate
paid €2,747.81
4.2 INTERNATIONAL CRIMINAL COURT INVESTIGATIONS AND PRELIMINARY EXAMINATIONS
As of November 2022, the ICC prosecutor had opened 17 investigations into
possible crimes committed in 16 countries.82 Investigations were initiated based
on all three mechanisms – UN Security Council, state party referral and the ICC
prosecutor’s proprio motu authority. Prior to 2018, all state party referrals
had been self-referrals, where states request an investigation of the situation
within their territory. Since then, two investigations have been opened based on
a referral from a group of states parties regarding the situation in another
state: six states parties referred the situation in Venezuela in September 2018,
and 39 states parties referred the situation in Ukraine in March 2022 to the ICC
prosecutor.83 Both situations were already the subject of a preliminary
examination initiated by the prosecutor. Canada was one of the states parties
making the referral in both cases.
In addition, two preliminary examinations are underway to determine whether
conditions exist to initiate an investigation. Since its inception, the ICC’s
OTP has undertaken eight preliminary examinations which have not led to
an investigation.
Table 1 – International Criminal Court Investigations and
Preliminary Examinations Country Opening Date Referral Mechanism Investigations
Democratic Republic of the Congo June 2004 State party (self) Uganda July 2004
State party (self) Sudan (Darfur) June 2005 UN Security Council Central African
Republic (I) May 2007 State party (self) Kenya March 2010 Prosecutor Libya March
2011 UN Security Council Côte d’Ivoire October 2011 Prosecutor Mali January 2013
State party (self) Central African Republic (II) September 2014 State party
(self) Georgia January 2016 Prosecutor Burundi October 2017 Prosecutor
Bangladesh/Myanmar November 2019 Prosecutor Afghanistan March 2020 Prosecutor
State of Palestine March 2021 State party (self) Philippines September 2021
Prosecutor Venezuela (I) November 2021 State party Ukraine March 2022 State
party Ongoing Preliminary Examinations Nigeria November 2010 Prosecutor
Venezuela (II) February 2020 State party (self) Preliminary Examinations Closed
Without Investigation Colombia June 2004 Prosecutor Guinea October 2009
Prosecutor Honduras November 2010 Prosecutor South Korea December 2010
Prosecutor Registered Vessels of Comoros, Greece and Cambodia May 2013 State
party (self) Iraq/United Kingdom May 2014 Prosecutor Gabon September 2016 State
party (self) Bolivia September 2020 State party (self)
Sources: Table prepared by the Library of Parliament using information obtained
from International Criminal Court, Situations under investigations; and
International Criminal Court, Preliminary examinations
4.3 INTERNATIONAL CRIMINAL COURT CASES AND TRIALS
As of November 2022, 10 of 17 ICC investigations had resulted in charges being
laid for war crimes, crimes against humanity, and in one instance, genocide. The
prosecutor has also pursued charges against individuals under article 70 of the
Rome StatOverview of Allute for offences against the administration of justice
related to court proceedings. Overall, 33 cases involving 49 defendants have
been presented by the ICC prosecutor.84 Cases against 18 defendants are ongoing;
12 of these cases are ongoing because the accused is not in ICC custody. In the
cases of 31 defendants considered closed, 10 defendants were found guilty and
four were acquitted. In the remaining 14 closed cases, the accused either died
or proceedings were otherwise terminated at the pre-trial or trial stage before
a verdict was rendered (see Appendix A). To date, the 30-year sentence handed
down to Bosco Ntaganda, a Congolese militia leader, for war crimes and crimes
against humanity committed in the Democratic Republic of the Congo is the
longest ever handed down by the Court.
See Appendix A for an overview of all ICC court cases.
4.4 SELECTED RECENT CASES
4.4.1 BEMBA, BEMBA ET AL.
In 2007, the ICC prosecutor opened an investigation into possible crimes
committed in the Central African Republic (CAR) between 2002 and 2003 based on a
referral from the government of the CAR. In May 2008, on application from the
prosecutor, the Pre-Trial Chamber issued a warrant for the arrest of the
Jean-Pierre Bemba Gombo, commander in chief of the Mouvement de libération du
Congo (MLC), for the war crimes of murder, rape and pillaging and the crimes
against humanity of murder and rape allegedly committed by MLC troops in
the CAR.85
The trial of Mr. Bemba Gombo began in November 2010 and took four years to
complete, during which time the Court heard from 77 witnesses and considered
over 5,700 pages of documents. In total, 5,229 persons were recognized by the
Court as victims in the case. In March 2016, the Trial Chamber rendered a
unanimous guilty verdict for two counts of crimes against humanity and three
counts of war crimes. The conviction marked the first ICC conviction for sexual
violence pursuant to criminal liability for military commanders under article
28(1)(a) of the Rome Statute. Mr. Bemba Gombo was sentenced to 18 years
of imprisonment.
In June 2018, Mr. Bemba Gombo’s conviction was reversed on appeal and he was
acquitted of all charges. In a 3–2 decision, the Appeals Chamber found that the
Trial Chamber had erred in a number of its findings, including the conclusion
that Mr. Bemba Gombo had failed to take all necessary and reasonable measures to
prevent the crimes committed by his troops.86 The appeal decision has been
strongly criticized for its reasoning and its practical implications for future
cases by the dissenting appeals judges and the ICC prosecutor,87 among others.
In a separate decision in October 2016, Mr. Bemba Gombo and four other
individuals were found guilty of offences against the administration of justice
relating to the false testimony of defence witnesses in the first Bemba. The
five defendants were sentenced to prison terms ranging from six months to two
years and six months, and fined from €30,000 to €300,000.88
4.4.2 GBAGBO AND BLÉ GOUDÉ
In October 2011, the ICC prosecutor received authorization to open an
investigation into the situation in Côte d’Ivoire under the prosecutor’s proprio
motu power. The decision came after the Côte d’Ivoire government reconfirmed its
acceptance of ICC jurisdiction under article 12(3) of the Rome Statute earlier
in the year.89 The investigation focused on possible crimes against humanity
committed during violence in 2010 and 2011, following disputed presidential
elections. Three weeks after opening the investigation, the prosecutor applied
to the Pre-Trial Chamber for an arrest warrant against former Ivorian President
Laurent Gbagbo. Mr. Gbagbo was transferred to the ICC by Ivorian authorities a
month later, marking the first time a former head of state was taken into ICC
custody.90 Shortly afterwards, an arrest warrant was issued for Charles Blé
Goudé, former minister of youth under Mr. Gbagbo. Ivorian authorities
surrendered Mr. Blé Goudé to the ICC in March 2014.
The cases of the two defendants were joined following the confirmation of
charges for both on four counts of crimes against humanity (murder, rape, other
inhumane acts, or in the alternative attempted murder and persecution). The
trial began in January 2016. Shortly after the prosecutor finished presenting
her case in June 2018, both defendants filed no-case-to-answer motions, claiming
the prosecutor had not presented sufficient evidence to justify a conviction.91
In January 2019, the Trial Chamber granted the defendants’ motion by a
two-to-one majority and acquitted both of all charges.92 Both acquittals were
upheld on appeal in March 2021, at which time all conditions imposed in 2019 on
the defendants’ release following their acquittal were removed.
4.4.3 NTAGANDA
Opened in June 2004 pursuant to a self-referral, the investigation into the
situation in the Democratic Republic of the Congo (DRC) was the ICC’s first
investigation and to date has led to six cases being brought to trial. In 2006,
an arrest warrant was issued by the ICC for Bosco Ntaganda, deputy chief of
staff of the Forces patriotiques pour la libération du Congo (FPLC), for
18 counts of war crimes and crimes against humanity – including murder, rape,
sexual slavery and the conscription of child soldiers – committed by FPLC forces
in the Ituri region of the DRC in 2002 and 2003. A warrant was also issued for
the FPLC commander in chief, Thomas Lubanga Dyilo. While Lubanga was surrendered
to the ICC by DRC authorities in 2006 and eventually convicted of war crimes by
the Court in 2012, Ntaganda lived openly in the DRC for years before voluntarily
surrendering to the U.S. Embassy in Rwanda in 2013 and requesting a transfer to
ICC custody.93
Charges against Mr. Ntaganda were confirmed in February 2014 and his trial ran
from September 2015 to August 2018. In total, 2,129 victims participated in the
trial, during which the Trial Chambers rendered 347 written decisions and 257
oral decisions. In July 2019, Mr. Ntaganda was found guilty of all 18 counts and
sentenced to 30 years in prison. Both the conviction and sentence were upheld on
appeal in March 2021. In the same month, the Trial Chamber issued a reparations
order, finding Mr. Ntaganda liable for US$30 million in reparations to direct
and indirect victims of his crimes. As the Court found him to be indigent, it
encouraged the Trust Fund for Victims to complement the award to the extent its
resources would allow.94
Ntaganda has been recognized as a milestone case for the ICC’s handling of
sexual violence crimes. The case marks the first time a conviction for sexual
violence is upheld on appeal. The Court also confirmed that crimes of sexual
violence committed against members of an accused’s own forces – in this case,
both female and male child soldiers – constituted a crime within the
Court’s jurisdiction.95
5 CRITICISMS OF THE INTERNATIONAL CRIMINAL COURT
The Rome Statute and the ICC have faced criticism since their inception. From
the start, ICC sceptics have pointed to perceived flaws in the statute and the
Court as potentially leading to undesirable outcomes, including the potential
abuse of prosecutorial discretion or the possibility of ICC cases undermining
efforts to achieve peace and reconciliation in post-conflict countries.96
However, after more than two decades of practice, ICC supporters have also
become critical of a court that has managed only five convictions for core
crimes and seen many high-profile cases end in acquittal or be terminated
without verdict. The process of moving from investigation through arrest, trial
and likely appeal has proven an enormously complex undertaking that has often
taken a decade or more to complete. Defendants can spend much of this time in
custody – some for crimes for which they are ultimately acquitted, as seen in
Bemba and Gbagbo and Blé Goudé, while victims may be forced to continue waiting
for promised reparations even after this process is complete.
No organ of the ICC has been immune to criticism, as chambers at all levels, the
OTP and states parties have all been blamed in part for the Court’s lacklustre
record to date. In December 2019, the ASP expressed grave concern over the
“multifaceted challenges” the ICC faced, and it commissioned an independent
expert review of the entire Rome Statute system.97 A group of nine experts was
divided into three thematic working groups – governance, judiciary, and
preliminary examinations, investigations and prosecutions – and tasked with
delivering “concrete, achievable and actionable recommendations aimed at
enhancing the performance, efficiency and effectiveness of the Court.”98 The
experts published their final report in September 2020; in it, they concurred
with many of the criticisms levelled against the Court and made 384
recommendations to improve the functioning of the Rome Statute system.99
5.1 CHAMBERS
ICC judges have been criticized for the inconsistent manner in which they have
applied and developed international criminal jurisprudence and the procedures of
the Court. In their final report, the ASP’s experts highlighted a lack of
collegiality among judges as an important factor in the inconsistent practice of
the Court. The experts found that poor working relationships between judges at
times undermined a deliberative environment, fostered a proliferation of
dissenting and concurring opinions, and encouraged some judges to be overly
reliant on jurisprudence and procedure from their home jurisdiction.100
The report also pointed to contradictory procedural practices at times –
particularly at the pre-trial stage – which by now should be well established.
Issues such as whether evidence must be positively admitted by judges or simply
submitted by parties, and whether the practice of preparing witnesses to testify
is acceptable or potentially taints evidence, are cited as examples of
inconsistent practices that add to the complexity and length of proceedings.101
The ASP’s experts, among other commentators, have singled out the appeals
decision in Bemba as an example of the difficulty of promoting “coherent and
accessible jurisprudence.”102 The decision deviates from jurisprudence on the
role of pre-trial confirmation hearings and the standard of review for appeal
decisions, and it was described by one commentator as “upend[ing] the procedures
at the ICC and turn[ing] the Court on its head.”103 Another commentator called
the inability of trial and appeal judges to agree on a “fundamental and simple
point” regarding the charges in question “a complete failure of the Court’s
judicial process.”104
5.2 OFFICE OF THE PROSECUTOR
Considering the responsibility and discretion the Rome Statute gives the OTP, it
is understandable that ICC prosecutors have faced significant criticism over
their inability to secure convictions at trial. After being sworn in as the
third ICC prosecutor in June 2021, Karim Khan alluded to the criticism his
office has faced: “We cannot invest so much, we cannot raise expectations so
high, and achieve so little so often in the court room. He further stated that
he would prioritize “building stronger cases and getting better results” as part
of an effort to “revive” the institution and “repair what is broken.”105
In their report, the ASP’s experts note that the principle of complementarity at
the heart of the Rome Statute means that the OTP should not and cannot be
expected to investigate all crimes that fall within its jurisdiction. As such,
the proper selection and prioritization of preliminary examinations and
investigations, given the resources available, is critical to the OTP’s
effectiveness. The ASP’s experts found that some stakeholders believed the OTP
was spreading its resources too thinly and not properly allocating resources to
the preliminary examinations and investigations of the gravest crimes and which
had the greatest likelihood of success.106
The OTP has itself recognized that a lack of resources affects its ability to
fulfill its mandate. For example, in a December 2020 report, the OTP stated it
would not immediately seek to open investigations in Ukraine and Nigeria despite
finding that the legal conditions had been met because of the OTP’s operational
capacity and the need to prioritize its workload.107
In terms of bringing cases to trial, the experts’ report acknowledges that the
OTP faces a challenge balancing its obligation to investigate those “most
responsible” for crimes with the practical consideration of pursuing cases that
have a high likelihood of success. The report notes that the OTP’s strategy of
bringing a small number of cases against high-level officials has not achieved
the desired results. The ASP’s experts welcomed the OTP’s shift to including
lower-level suspects who are more directly involved in the crimes perpetrated in
the definition of those “most responsible.”108 Others have pointed out that such
an approach could provide “economies of scale” whereby the successful
prosecution of lower-level perpetrators could assist in building cases against
senior officials.109
5.3 STATES PARTIES
Under the Rome Statute, states parties have a binding obligation to “cooperate
fully” with the Court in its investigation and prosecution of crimes.110
Experience has shown that this cooperation is crucial to the successful
prosecution of criminals, and states have been criticized for either their
limited cooperation or their outright non-cooperation with the Court in its
investigations. As noted earlier, two states have withdrawn from the ICC
following the announcement of preliminary examinations on their territory. The
ICC also ruled that states parties failed to comply with their obligation to
cooperate in several cases, most notably in the case of Omar Al Bashir, subject
of an ICC arrest warrant and former head of state of Sudan, whom at least eight
states failed to arrest when he was present on their territory.111
Short of non-cooperation, commentators have noted how states can be more or less
cooperative with the ICC, depending on their own political calculations.112
States may cooperate fully in investigations of their political rivals, while
limiting cooperation for investigations of their allies. Such uneven support
risks undermining the credibility of the Court where it is seen as punishing
only one side of a conflict. The ICC investigation in Côte d’Ivoire demonstrates
this concern in practice. Laurent Gbagbo and his ally, Charles Blé Goudé, were
handed over to the ICC and tried with the support of the Ivorian government,
while the OTP investigation into crimes committed by pro-government forces –
which may have been of equal gravity – has yet to result in an arrest warrant
being issued.113
While not included among the topics for their review, the ASP’s experts also
felt obliged to call out states parties for the practice of trading votes in the
election of ICC judges. The experts noted the view among some that certain ICC
judges owe their position more to political negotiations between states than to
their qualifications or competence.114
5.4 FOCUS ON AFRICA
To date, ICC investigations and trials have focused disproportionately on
Africa. All ICC trials have been against Africans, and a large majority of
preliminary examinations and investigations have related to situations in
Africa. This has led to criticism of the ICC, including suggestions that the
Court is racist or acting as an imperialist tool of African subjugation.115 This
perceived bias against Africa has motivated calls for the mass withdrawal of
African countries from the Rome Statute and for African governments to not
cooperate in the Court’s investigations and trials. The African Union has also
taken steps to establish a regional criminal court to try cases that would
otherwise be within the ICC’s jurisdiction.116 In the face of this criticism,
supporters of the Court have pointed out that the ICC largely does not choose
its cases and that most of the investigations that the ICC has carried out in
Africa were the result of either referrals by the UN Security Council or
self-referrals by the African states.
One of the sources of the dispute between African states – often engaging
collectively through the African Union – and the ICC has been the question of
immunity for heads of state and other senior government officials. The African
Union maintains that customary international law provides immunity to such
individuals and that article 27 of the Rome Statute removes that immunity only
from states parties. Proponents of this interpretation point to article 98 of
the Rome Statute, which prevents the Court from requiring state cooperation that
is inconsistent with a state’s other international legal obligations.117 In a
recent decision regarding Jordan’s failure to arrest Omar Al-Bashir who, at the
time, was head of state of Sudan, the ICC Appeals Chamber rejected this
argument, stating that such individuals do not have immunity in international
courts and therefore states parties are required to cooperate with the ICC.118
5.5 INTERNATIONAL CRIMINAL COURT AND THE UNITED STATES
The U.S. position concerning the ICC has varied with each administration. The
U.S. government signed the Rome Statute in December 2000 under President Bill
Clinton, only to renounce any obligations under that treaty in May 2002 under
President George W. Bush. The possibility of U.S. military personnel being the
subject of an ICC investigation or trial was a significant concern for the Bush
administration. In August 2002, the U.S. government passed the American
Servicemembers’ Protection Act (ASPA) which restricted U.S. cooperation with the
ICC and sought to prevent U.S. military personnel from being taken into
ICC custody.
Once the ASPA was enacted, the U.S. government began negotiating bilateral
immunity agreements with nations around the world in apparent accordance with
article 98(2) of the Rome Statute.119 States that signed these agreements
promised not to surrender U.S. citizens on their territory to the ICC. Subject
to a national interest waiver, the ASPA denied U.S. military assistance
(education, training and financing) to states that had not signed such
agreements (except members of the North Atlantic Treaty Organization [NATO],
major non-NATO allies and Taiwan).
Under President Barack Obama’s administration, the U.S. government’s position
toward the ICC softened.120 Then Secretary of State Hillary Clinton stated that
“we will end hostility toward the ICC and look for opportunities to encourage
effective ICC action in ways that promote U.S. interests by bringing war
criminals to justice.”121 By late 2009, the U.S. began to participate in the ASP
as an observer, and over time, the government stopped resisting references to
the ICC in UN resolutions. U.S. support for the UN Security Council’s unanimous
resolution to refer the situation in Libya to the ICC in 2011 was an important
step.122 Another example of increased cooperation was the expansion of the U.S.
government’s Rewards for Justice program, which offers up to US$5 million for
information leading to the arrest of ICC fugitives.123
Cooperation between the U.S. and the ICC regressed significantly under President
Donald Trump. Increasing U.S. hostility toward the ICC was fuelled by the ICC
prosecutor’s decision to open investigations into the situations in Afghanistan
and the State of Palestine.124 The U.S. objected to the ICC investigation of
U.S. personnel’s actions in Afghanistan and to the Court’s recognition of
Palestinian statehood for the purposes of the Rome Statute and its investigation
into the actions of Israel – a close U.S. ally which is not a state party to the
Rome Statute – in the Palestinian territories.125
In April 2019, the U.S. revoked the travel visa of ICC prosecutor Fatou
Bensouda.126 In June 2020, President Trump issued an executive order authorizing
economic sanctions against ICC staff based on a finding that any attempt by the
ICC to investigate, arrest or prosecute U.S. or allied personnel without the
consent of the U.S. or its allies “constitutes an unusual and extraordinary
threat to the national security and foreign policy of the United States.”127 In
September 2020, the U.S. imposed economic sanctions on Fatou Bensouda and
Phakiso Mochochoko, Head of the Jurisdiction, Complementarity and Cooperation
Division of the OTP.128
Under President Joe Biden, the U.S. government terminated the authority for
sanctions against ICC staff and removed sanctions against Ms. Bensouda and Mr.
Mochochoko in April 2021.129 In announcing the removal of sanctions and visa
restrictions, however, the Biden administration reconfirmed U.S. opposition to
the ICC investigations in Afghanistan and the Palestinian territories and the
Court’s assertion of jurisdiction over U.S. and Israeli personnel.130
6 CONCLUSION
With more than 20 years of experience, the ICC has become an established, if
still controversial, part of the international system. Despite its shortcomings,
the Court has proven a worthy successor to the international tribunals which
preceded it and has demonstrated the viability of a permanent international
criminal justice system.
However, as the ICC enters its third decade, it faces significant challenges.
The most pressing of which is the continuation of the unimaginable atrocities
which motivated its creation. As Judge Chile Eboe-Osuji, ICC President at the
time, remarked on the occasion of the 20th anniversary of the Rome Statute,
“[H]umanity’s need of the Rome Statute and the ICC is as critical today as was
the case 20 years ago – indeed more so.”131 As the Court’s development continues
and it looks to reform, the purpose for which it was created
remains unfulfilled.
--------------------------------------------------------------------------------
NOTES
1. International Criminal Court (ICC), Rome Statute of the International
Criminal Court (315.9 KB, 89 pages). [ Return to text ]
2. The idea of an international criminal court traces back to 1474, when
Peter Von Hagenbush was tried and convicted by Austrians for crimes
against ‘God and man,’ following his rule over the people of Breisach.”
Sandra L. Jamison, “A Permanent International Criminal Court: A Proposal
That Overcomes Past Objections,” Denver Journal of International Law and
Policy, Vol. 23, No. 2, 1995, p. 421. [ Return to text ]
3. United States (U.S.), Department of State, Office of the Historian, “The
Nuremberg Trial and the Tokyo War Crimes Trials (1945–1948),” Milestones:
1945–1952. [ Return to text ]
4. United Nations (UN), “Agreement for the prosecution and punishment of the
major war criminals of the European Axis. Signed at London, on 8 August
1945,” (Nuremberg Charter), Treaty Series, vol. 82, 1951, p. 280; and UN,
“Charter of the International Military Tribunal,” Treaty Series, vol. 82,
1951, p. 286 and 288, art. 6.
At the time the Nuremberg Charter was established, genocide was not yet
recognized as an independent crime under international law.
[ Return to text ]
5. International Military Tribunal (Nuremberg), “Judicial Decisions:
International Military Tribunal (Nuremberg) – Judgment and Sentences,
October 1, 1946,” American Journal of International Law, Vol. 41, No. 1,
1947, pp. 172–333 [subscription required]. [ Return to text ]
6. UN, Office of the High Commissioner for Human Rights, Convention on the
Prevention and Punishment of the Crime of Genocide, 9 December 1948. [
Return to text ]
7. Ibid., art. 1. [ Return to text ]
8. International Committee of the Red Cross (ICRC), “Convention (I) for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces
in the Field. Geneva, 12 August 1949,” Treaties and States Parties,
International Humanitarian Law Databases, accessed 29 November 2022; ICRC,
“Convention (II) for the Amelioration of the Condition of Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949,”
Treaties and States Parties, International Humanitarian Law Databases,
accessed 29 November 2022; ICRC, “Convention (III) Relative to the
Treatment of Prisoners of War. Geneva, 12 August 1949,” Treaties and
States Parties, International Humanitarian Law Databases, accessed
29 November 2022; and ICRC, “Convention (IV) relative to the Protection of
Civilian Persons in Time of War. Geneva, 12 August 1949,” Treaties and
States Parties, International Humanitarian Law Databases, accessed
29 November 2022. [ Return to text ]
9. UN, General Assembly, 260 (III). Prevention and punishment of the crime of
genocide, 9 December 1948, p. 177. [ Return to text ]
10. Cherif Bassiouni, “Historical Survey: 1919–1998,” in M. Cherif Bassiouni,
ed., International and Comparative Criminal Law Series – The Statute of
the International Criminal Court: A Documentary History, Vol. 2, 1
February 1999, p. 17. [ Return to text ]
11. The International Criminal Tribunal for the former Yugoslavia (ICTY) was
created pursuant to Resolution 827, the ICTY Statute. See
UN Security Council, Resolution 827 (1993), 25 May 1993. [ Return to text
]
12. The International Criminal Tribunal for Rwanda (ICTR) was created pursuant
to Resolution 955, the ICTR Statute. See UN Security Council,
Resolution 955 (1994), 8 November 1994. [ Return to text ]
13. In 2010, the UN Security Council created the
International Residual Mechanism for Criminal Tribunals (IRMCT) to allow
for the closure of the ICTY and ICTR by providing a shared institution
responsible for concluding any lingering judicial matters, including the
possible trial of remaining fugitives and the hearing of appeals against
tribunal decisions. The IRMCT’s work was ongoing at the time of writing.
See UN IRMCT, “The ICTR in Brief,” About the ITCR; and IRMCT, ICTY, Key
Figures of the Cases. [ Return to text ]
14. Helena Cobban, “International Courts,” Foreign Policy, No. 153,
March–April 2006, pp. 22–28 [subscription required]; and
George S. Yacoubian, Jr., “Evaluating the Efficacy of the International
Criminal Tribunals for Rwanda and the Former Yugoslavia: Implications for
Criminology and International Criminal Law,” World Affairs, Vol. 165,
No. 3, Winter 2003, pp. 133–141 [subscription required]. [ Return to text
]
15. Louise Arbour, “The Prosecution of International Crimes: Prospects and
Pitfalls,” Washington University Journal of Law and Policy, Vol. 1, 1999,
p. 18. [ Return to text ]
16. Michael J. Matheson and David Scheffer, “The Creation of the Tribunals,”
American Journal of International Law, Vol. 110, No. 2, April 2016, p. 190
[subscription required]. [ Return to text ]
17. Christopher Greenwood, “What the ICC Can Learn from the Jurisprudence of
Other Tribunals (101.9 KB, 3 pages),” Harvard International Law Journal,
Vol. 58, Spring 2017, p. 71. [ Return to text ]
18. Melissa K. Marler, “The International Criminal Court: Assessing the
Jurisdictional Loopholes in the Rome Statute,” Duke Law Journal, Vol. 49,
No. 3, December 1999, p. 829. [ Return to text ]
19. UN, International Law Commission, Draft Statute for an International
Criminal Court, 1994 (208.1 KB, 43 pages), 2005. [ Return to text ]
20. Philippe Kirsch and John T. Holmes, “The Rome Conference on an
International Criminal Court: The Negotiating Process,” American Journal
of International Law, Vol. 93, No. 1, January 1999, p. 8 [subscription
required]. [ Return to text ]
21. The Bureau of the Committee of the Whole was chaired by Canadian delegate
Philippe Kirsch. [ Return to text ]
22. In that letter, John Bolton, then U.S. Under Secretary of State for Arms
Control and International Security, told the UN Secretary General at the
time, Kofi Annan:
> This is to inform you, in connection with the Rome Statute of the
> International Criminal Court adopted on July 17, 1998, that the
> United States does not intend to become a party to the treaty.
> Accordingly, the United States has no legal obligations arising from its
> signature on December 31, 2000. The United States requests that its
> intention not to become a party, as expressed in this letter, be
> reflected in the depositary’s status lists relating to this treaty.
U.S., Department of State, International Criminal Court: Letter to
UN Secretary General Kofi Annan, News release, 6 May 2002.
[ Return to text ]
23. Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24. [ Return to
text ]
24. ICC, Regulations of the Court (489 KB, 63 page), 2018; ICC, Rules of
Procedure and Evidence (558 KB, 99 pages), 2019; and ICC, Elements of
Crimes (251 KB, 39 pages), 2013. [ Return to text ]
25. ICC, Rome Statute of the International Criminal Court (315.9 KB, 89
pages), arts. 25 and 27–28. [ Return to text ]
26. Ibid., art. 11. [ Return to text ]
27. An ICC investigation may be initiated when the UN Security Council
determines that there has been a breach of international peace and
security. See UN, Charter of the United Nations and Statute of
the International Court of Justice (2.8 MB, 54 pages), 1945, art. 39,
p. 9. [ Return to text ]
28. ICC, Rome Statute of the International Criminal Court (315.9 KB, 89
pages), art. 15. [ Return to text ]
29. Ibid., art. 17(1)(a). [ Return to text ]
30. Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24. [ Return to
text ]
31. ICC, Rome Statute of the International Criminal Court (315.9 KB, 89
pages), 17 July 1998, art. 5. [ Return to text ]
32. Ibid., footnote 1; and Claus Kreß, “Editorial Comment: On the Activation
of ICC Jurisdiction over the Crime of Aggression,” Journal of
International Criminal Justice, Vol. 16, March 2018. [ Return to text ]
33. UN, Amendments on the crime of aggression to the Rome Statute of the
International Criminal Court, 8 May 2013; ICC, Assembly of States Parties
to the Rome Statute (ASP), “Crime of Aggression – Amendments
Ratification,” Treaty Series; and ICC, ASP, Resolution ICC-ASP/16/Res.5:
Activation of the jurisdiction of the Court over the crime of
aggression (974 KB, 1 pages), 14 December 2017. [ Return to text ]
34. ICC jurisdiction for crimes of aggression involving states which have not
ratified the 2010 amendments is limited to cases referred to the Court by
the UN Security Council. See Claus Kreß, “Editorial Comment: On the
Activation of ICC Jurisdiction over the Crime of Aggression,” Journal of
International Criminal Justice, Vol. 16, March 2018; and
Donald M. Ferencz, Aggression Is No Longer a Crime in Limbo,
FICHL Policy Brief Series No. 88, 2018. [ Return to text ]
35. ICC, Elements of Crimes (251.1 KB, 39 pages), 2013. [ Return to text ]
36. Article 21 of the Rome Statute lists three tiers of law which the ICC
shall apply. Primary sources: the Rome Statute, Elements of Crimes, and
Rules of Procedure and Evidence. Secondary sources: applicable treaties
and rules and principles of international law. Tertiary sources: legal
principles derived from national legal systems. See ICC, Rome Statute of
the International Criminal Court (315.9 KB, 89 pages), art. 21(1). [
Return to text ]
37. Cornell Law School, “genocide,” Wex, Legal Information Institute. [ Return
to text ]
38. ICC, Rome Statute of the International Criminal Court (315.9 KB, 89
pages), art. 6. [ Return to text ]
39. For a discussion of the elements of the crime of genocide, including the
specific intent requirement, see ICC, Situation in Darfur, Sudan: In the
Case of The Prosecutor v. Omar Hassan Ahmad Al Bashir (“Omar Al Bashir”) –
Decision on the Prosecution’s Application for a Warrant of Arrest against
Omar Hassan Ahmad Al Bashir (7.62 MB, 146 pages), Pre-Trial Chamber I,
No. ICC-02/05-01/09, 4 March 2009. [ Return to text ]
40. See, for example, ICC, “Genocide by killing,” Elements of Crimes (251 KB,
39 page), 2013, art. 6(a)(4). [ Return to text ]
41. ICC, Situation in Darfur, Sudan: In the Case of The Prosecutor v.
Omar Hassan Ahmad Al Bashir (“Omar Al Bashir”) – Decision on the
Prosecution’s Application for a Warrant of Arrest against
Omar Hassan Ahmad Al Bashir (7.62 MB, 146 pages), Pre-Trial Chamber I,
No. ICC-02/05-01/09, 4 March 2009, para. 124. [ Return to text ]
42. Kai Ambos, “Crimes Against Humanity and the International Criminal Court,”
in Leila N. Sadat, ed., Forging a Convention for Crimes Against Humanity,
1st ed., 2011. [ Return to text ]
43. ICC, Elements of Crimes (251 KB, 39 page), 2013, p. 3, footnote 6. [
Return to text ]
44. ICRC, Advisory Service on International Humanitarian Law, War Crimes under
the Rome Statute of the International Criminal Court and their source in
International Humanitarian Law – Comparative Table (92.5 KB, 21 pages),
October 2008. [ Return to text ]
45. ICC, Rome Statute of the International Criminal Court (315.9 KB, 89
pages), art. 8(2)(b); and ICRC, Persons protected under IHL, 29 October
2010. [ Return to text ]
46. ICRC, “Convention (I) for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field. Geneva, 12 August 1949:
Commentary of 2016 – Article 3: Conflicts Not of an International
Character,” Treaties and States Parties, International Humanitarian Law
Databases, accessed 29 November 2022. [ Return to text ]
47. For an example of factors considered when determining whether the
threshold is met, see ICC, Situation in the Central African Republic: In
the Case of The Prosecutor v. Jean-Pierre Bemba Gombo – Judgment pursuant
to Article 74 of the Statute (4.38 MB, 364 pages), Trial Chamber III,
No. ICC-01/05-01/08, 21 March 2016, para. 137. [ Return to text ]
48. ICC, Office of the Prosecutor (OTP), Policy Paper on Sexual and
Gender-Based Crimes (601 KB, 44 pages), June 2014, p. 15. [ Return to
text ]
49. ICC, Situation in the Central African Republic: In the Case of
The Prosecutor v. Jean-Pierre Bemba Gombo – Judgment pursuant to
Article 74 of the Statute (4.38 MB, 364 page), Trial Chamber III,
No. ICC-01/05-01/08, 21 March 2016, para. 142; and ICC, Elements of
Crimes (251 KB, 39 page), 2013, art. 8. [ Return to text ]
50. ICC, Rome Statute of the International Criminal Court (315.9 KB, 89
pages), art. 121(5); and ICC, ASP, “Rome Statute – Amendments,”
Rome Statute and other agreements. [ Return to text ]
51. Alex Whiting, “Crime of Aggression Activated at the ICC: Does it Matter?,”
Just Security, 19 December 2017, p. 9. [ Return to text ]
52. ICC, Rome Statute of the International Criminal Court (315.9 KB, 89
pages), arts. 115–117. [ Return to text ]
53. Jan Wouters, Sten Verhoeven and Bruno Demeyere, The international criminal
court’s office of the Prosecutor: navigating between independence and
accountability?, Working paper, Institute for International Law, K.U.
Leuven Faculty of Law, University of Leuven, July 2006. [ Return to text ]
54. ICC, Rome Statute of the International Criminal Court (315.9 KB, 89
pages), arts. 15(3) and 15(4). [ Return to text ]
55. Ibid., art. 18. [ Return to text ]
56. A 2013 draft resolution to defer proceedings against the president and
deputy president of Kenya failed to win the necessary support of the UN
Security Council. See Security Council Report, “In Hindsight: The Security
Council and the International Criminal Court,”
August 2018 Monthly Forecast, 31 July 2018. [ Return to text ]
57. ICC, OTP, Policy Paper on Preliminary Examinations (738 KB, 28 page),
November 2013, para. 104. [ Return to text ]
58. ICC, Rome Statute of the International Criminal Court (315.9 KB, 89
pages), art. 53. [ Return to text ]
59. Ibid., art. 53(1)(c). [ Return to text ]
60. ICC, Rules of Procedure and Evidence (558 KB, 99 pages), 2019, Rule 110.
[ Return to text ]
61. Jocelyn Courtney and Christodoulos Kaoutzanis, “Proactive Gatekeepers: The
Jurisprudence of the ICC’s Pre-Trial Chambers,” Chicago Journal of
International Law, Vol. 15, No. 2, Winter 2015, p. 520. [ Return to text ]
62. ICC, Rome Statute of the International Criminal Court (315.9 KB, 89
pages), art. 15(4). [ Return to text ]
63. Ibid., arts. 18(2) and 19(6). [ Return to text ]
64. Ibid., art. 53(3). [ Return to text ]
65. Ibid., art. 57. [ Return to text ]
66. Ibid., art. 58. [ Return to text ]
67. Ibid., art. 60. [ Return to text ]
68. Ibid., art. 61. [ Return to text ]
69. Ibid., art. 66. [ Return to text ]
70. Ibid., arts. 81 and 82. [ Return to text ]
71. Ibid., art. 83(2). [ Return to text ]
72. The Trust Fund for Victims, “Our goals,” About us. [ Return to text ]
73. See also Christine Van den Wyngaert, “Victims Before International
Criminal Courts: Some Views and Concerns of an ICC Trial Judge,” Case
Western Reserve Journal of International Law, Vol. 44, No. 1, 2011,
p. 488. [ Return to text ]
74. UN, General Assembly, Report of the International Criminal Court (336.4
KB, 19 pages), 19 August 2022, p. 4. [ Return to text ]
75. ICC, Rome Statute of the International Criminal Court (315.9 KB, 89
pages), art. 79. [ Return to text ]
76. The Trust Fund for Victims, What we do; and The Trust Fund for Victims,
“Our goals,” About us. [ Return to text ]
77. In both cases, the notice of withdrawal was filed following the
announcement by the OTP of preliminary examinations in the respective
countries. Both preliminary examinations led to the opening of formal
investigations. See ICC, Burundi; and ICC, Republic of the Philippines. [
Return to text ]
78. UN, Treaty Collection, Rome Statute of the International Criminal Court,
17 July 1998, endnote 2. [ Return to text ]
79. ICC, Ukraine. [ Return to text ]
80. The State of Palestine became a state party to the Rome Statute in 2015.
Reference to the State of Palestine in this document refers uniquely to
its status pursuant to the Rome Statute as recognized by the ICC and the
ASP and should not be construed as expressing an opinion regarding
Palestinian statehood on the part of the author or the Library of
Parliament. See ICC, ICC welcomes Palestine as a new State Party,
News release, 1 April 2015. [ Return to text ]
81. ICC, ASP, Financial statements of the International Criminal Court for the
year ended 31 December 2021 (1.1 MB, 76 pages), 22 August 2022. [ Return
to text ]
82. The ICC prosecutor initiated two investigations related to the situation
in the Central African Republic: one opened in 2007 related to a conflict
in 2002–2003, and one opened in 2014 related to possible crimes committed
since 2012. In both cases, the situation was referred to the prosecutor by
the Central African Republic. See ICC, Central African Republic; and ICC,
Central African Republic II. [ Return to text ]
83. ICC, Statement of the Prosecutor of the International Criminal Court,
Fatou Bensouda, on the referral by a group of six States Parties regarding
the situation in Venezuela, 27 September 2018; and ICC, Statement of
ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt
of Referrals from 39 States Parties and the Opening of an Investigation,
2 March 2022. [ Return to text ]
84. Cases include arrest warrants issued by the ICC for Vladimir Vladimirovich
Putin and Maria Alekseyevna Lvova-Belova, as announced by the court in
March 2023. At the time of writing, it is unknown whether the two accused
will be tried together as a single case or separately. See ICC, Situation
in Ukraine: ICC judges issue arrest warrants against Vladimir
Vladimirovich Putin and Maria Alekseyevna Lvova-Belova, News release, 17
March 2023. [ Return to text ]
85. ICC, Situation in the Central African Republic: The Prosecutor v.
Jean-Pierre Bemba Gombo, Case information sheet. [ Return to text ]
86. ICC, Summary of the Appeal Judgment in the case The Prosecutor vs
Jean-Pierre Bemba Gombo (392 KB, 22 pages), 8 June 2018. [ Return to text
]
87. Ibid.; ICC, Statement of ICC Prosecutor, Fatou Bensouda, on the recent
judgment of the ICC Appeals Chamber acquitting Mr Jean-Pierre Bemba Gombo,
13 June 2018; Leila N. Sadat, “Fiddling While Rome Burns? The Appeals
Chamber’s Curious Decision in Prosecutor v.
Jean-Pierre Bemba Gombo,” EJIL:Talk!, Blog of the European Journal of
International Law, 12 June 2018; and Alex Whiting, “Appeals Judges Turn
the ICC on its Head with Bemba Decision,” Just Security, 14 June 2018. [
Return to text ]
88. ICC, Situation in the Central African Republic: The Prosecutor v.
Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba,
Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and
Narcisse Arido (494 KB, 5 pages), Case information sheet. [ Return to
text ]
89. ICC, Côte d’Ivoire. [ Return to text ]
90. Human Rights Watch, Côte d’Ivoire: Gbagbo’s ICC Transfer Advances Justice,
29 November 2011. [ Return to text ]
91. ICC, Situation in Côte d’Ivoire: The Prosecutor v. Laurent Gbagbo and
Charles Blé Goudé (522 KB, 3 pages), Case information sheet. [ Return to
text ]
92. ICC, Situation in the Republic of Côte d’Ivoire: In the Case of
The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé – Reasons for oral
decision of 15 January 2019 on the Requête de la Défense de Laurent Gbagbo
afin qu’un jugement d’acquittement portant sur toutes les charges soit
prononcé en faveur de Laurent Gbagbo et que sa mise en liberté immédiate
soit ordonnée, and on the Blé Goudé Defence no case to answer motion (632
KB, 8 pages), Trial Chamber I, No. ICC-02/11-01/15, 16 July 2019. [ Return
to text ]
93. ICC, Situation in the Democratic Republic of the Congo: The Prosecutor v.
Thomas Lubanga Dyilo (540 KB, 4 pages), Case information sheet; and
Wairagala Wakabi, “Appeals Judges Confirm Ntaganda’s ICC Conviction and
30-Year Sentence,” International Justice Monitor, 31 March 2021. [ Return
to text ]
94. ICC, Ntaganda case: ICC Trial Chamber VI orders reparations for victims,
News release, 8 March 2021. [ Return to text ]
95. Jennifer Tridgell, “Casenote: Prosecutor v. Ntaganda: the end of impunity
for sexual violence against child soldiers?,” Australian International Law
Journal, Vol. 23, 2017 [subscription required]; and Rosemary Grey,
“Gender-based crimes: A monumental day for the ICC,” IntLawGrrls blog,
8 July 2019. [ Return to text ]
96. Concerns over ICC investigations impeding peace and reconciliation efforts
have been raised in Côte d’Ivoire, Sudan and Uganda, among others. See
Nick Grono and Adam O’Brien, “Justice in Conflict: The ICC and Peace
Processes,” International Crisis Group, 12 March 2008; and Jessica Moody,
“Does the ICC Obstruct Peace?,” Foreign Policy, 22 October 2021. [ Return
to text ]
97. ICC, ASP, Resolution ICC-ASP/18/Res.7: Review of the International
Criminal Court and the Rome Statute system (146.4 KB, 10 pages),
6 December 2019, p. 1. [ Return to text ]
98. Ibid., p. 2. [ Return to text ]
99. ICC, ASP, Independent Expert Review of the International Criminal Court
and the Rome Statute System (5.02 MB, 348 pages), Final report,
30 September 2020. [ Return to text ]
100. Ibid., p. 147. [ Return to text ]
101. Ibid., pp. 177–179. [ Return to text ]
102. Ibid., p. 148. [ Return to text ]
103. Alex Whiting, “Appeals Judges Turn the ICC on its Head with
Bemba Decision,” Just Security, 14 June 2018. [ Return to text ]
104. Leila N. Sadat, “Fiddling While Rome Burns? The Appeals Chamber’s Curious
Decision in Prosecutor v. Jean-Pierre Bemba Gombo,” EJIL:Talk!, Blog of
the European Journal of International Law, 12 June 2018. [ Return to text
]
105. Susan Kendi, “Karim Khan’s first speech as ICC Prosecutor,” Journalists
for Justice, 28 December 2021. [ Return to text ]
106. ICC, ASP, Independent Expert Review of the International Criminal Court
and the Rome Statute System (5.02 MB, 348 pages), Final report,
30 September 2020, pp. 206–212. [ Return to text ]
107. ICC, OTP, Report on Preliminary Examination Activities 2020,
14 December 2020. An investigation into the situation in Ukraine was
opened in March 2022. [ Return to text ]
108. ICC, ASP, Independent Expert Review of the International Criminal Court
and the Rome Statute System (5.02 MB, 348 pages), Final report,
30 September 2020, pp. 214–219. [ Return to text ]
109. Ben Batros, “The ICC Acquittal of Gbagbo: What Next for Crimes against
Humanity?,” Just Security, 18 January 2019. [ Return to text ]
110. ICC, Rome Statute of the International Criminal Court (315.9 KB, 89
pages), art. 86. [ Return to text ]
111. ICC, ASP, Non-cooperation. [ Return to text ]
112. Courtney Hillebrecht and Scott Straus, “Who Pursues the Perpetrators?
State Cooperation with the ICC,” Human Rights Quarterly, Vol. 39, No. 1,
February 2017, pp. 162–188 [subscription required]. [ Return to text ]
113. Human Rights Watch, ICC: Former Ivorian President Gbagbo on Trial –
Concrete Action Needed Against Pro-Ouattara Forces, 28 January 2016. [
Return to text ]
114. ICC, ASP, Independent Expert Review of the International Criminal Court
and the Rome Statute System (5.02 MB, 348 pages), Final report,
30 September 2020, p. 317. [ Return to text ]
115. Oumar Ba, “International Justice and the Postcolonial Condition,”
Africa Today, Vol. 63, No. 4, Summer 2017 [subscription required]. [
Return to text ]
116. ICC, Situation in Darfur, Sudan: In the Case of The Prosecutor v.
Omar Hassan Ahmad Al Bashir – The African Union’s Submission in the
“Hashemite Kingdom of Jordan’s Appeal Against the ‘Decision under
Article 87(7) of the Rome Statute on the Non-Compliance by Jordan with the
Request by the Court for the Arrest and Surrender [of]
Omar Al-Bashir” (6.23 MB, 30 pages), Appeals Chamber,
No. ICC-02/05-01/09 OA2, 13 July 2018. [ Return to text ]
117. ICC, Situation in Darfur, Sudan: In the Case of The Prosecutor v.
Omar Hassan Ahmad Al-Bashir – Judgment in the Jordan Referral re
Al-Bashir Appeal (1.58 MB, 98 pages), No. ICC-02/05-01/09 OA2,
6 May 2019. [ Return to text ]
118. ICC, Situation in Darfur, Sudan: In the Case of The Prosecutor v.
Omar Hassan Ahmad Al-Bashir – Judgment in the Jordan Referral re
Al-Bashir Appeal (1.58 MB, 98 pages), No. ICC-02/05-01/09 OA2,
6 May 2019. [ Return to text ]
119. Article 98(2) of the Rome Statute, Cooperation with respect to waiver of
immunity and consent to surrender, states:
> 2. The Court may not proceed with a request for surrender which would
> require the requested State to act inconsistently with its obligations
> under international agreements pursuant to which the consent of a
> sending State is required to surrender a person of that State to the
> Court, unless the Court can first obtain the cooperation of the sending
> State for the giving of consent for the surrender.
See ICC, Rome Statute of the International Criminal Court (315.9 KB, 89
pages), art. 98(2).
[ Return to text ]
120. Megan A. Fairlie, “The United States and the International Criminal Court
Post-Bush: A Beautiful Courtship but an Unlikely Marriage,” Berkeley
Journal of International Law, Vol. 29, No. 2, 2011, p. 529; and
Vijay Padmanabhan, Council on Foreign Relations “From Rome to Kampala: The
U.S. Approach to the 2010 International Criminal Court Review
Conference (1.2 MB, 50 pages),” Council Special Report No. 55,
April 2010. [ Return to text ]
121. U.S., Alexis Arieff et al., International Criminal Court Cases in Africa:
Status and Policy Issues (366 KB, 35 pages), Report, Congressional
Research Service, 22 July 2011, p. 4; and International Bar Association,
Balancing Rights: The International Criminal Court at a Procedural
Crossroads, May 2008. [ Return to text ]
122. When the UN Security Council referred the situation in Darfur to the ICC
in 2005, Alegria, Brazil, China and the U.S. abstained from voting. See UN
Security Council, Security Council refers situation in Darfur, Sudan, to
Prosecutor of International Criminal Court, News release, 31 March 2005. [
Return to text ]
123. U.S., Department of State, Office of Global Criminal Justice, War Crimes
Rewards Program. [ Return to text ]
124. ICC, State of Palestine; and ICC, Afghanistan. [ Return to text ]
125. Jennifer Hansler, “Pompeo slams International Criminal Court decision to
authorize Afghanistan war crimes investigation,” CNN, 5 March 2020; and
Elizabeth Evenson, “US Official Threatens International Criminal Court –
Again,” Human Rights Watch, 22 May 2020. [ Return to text ]
126. “US revokes visa of International Criminal Court prosecutor,” BBC News,
5 April 2019. [ Return to text ]
127. U.S., Federal Register, “Executive Order 13928 of June 11, 2020: Blocking
Property of Certain Persons Associated With the International Criminal
Court,” Presidential Document, 15 June 2020. [ Return to text ]
128. U.S., Department of the Treasury, Blocking Property of Certain Persons
Associated with the International Criminal Court Designations,
2 September 2020. [ Return to text ]
129. U.S., Department of the Treasury, Termination of Emergency With Respect to
the International Criminal Court, 5 April 2021. [ Return to text ]
130. U.S., Department of State, Ending Sanctions and Visa Restrictions against
Personnel of the International Criminal Court, News release, 2 April 2021.
[ Return to text ]
131. ICC, Judge Chile Eboe-Osuji, President of the ICC, Remarks at Solemn
Hearing in Commemoration of the 20th Anniversary of the Adoption of the
Rome Statute of the International Criminal Court (309 KB, 7 pages),
17 July 2018. [ Return to text ]
APPENDIX – OVERVIEW OF ALL INTERNATIONAL CRIMINAL COURT CASES
Appendix – Overview of All International Criminal Court Cases
Situation
Case Name
Defendant
Charges
Current State
Status
Sudan (Darfur)
Abd-Al-Rahman
Ali Muhammad Ali Abd-Al-Rahman
War crimes and crimes against humanity
Trial ongoing
Ongoing
Sudan (Darfur)
Abu Garda
Bahar Idriss Abu Garda
War crimes
Pre-Trial Chamber declined to confirm charges
Closed
Sudan (Darfur)
Al Bashir
Omar Hassan Ahmad Al Bashir
War crimes, crimes against humanity, genocide
Accused not in custody
Ongoing
Mali
Al Hassan
Al-Hassan Ag Abdoul Aziz
War crimes and crimes against humanity
Trial ongoing
Ongoing
Mali
Al Mahdi
Ahmad Al Faqi Al Mahdi
War crimes
Found guilty, sentenced to nine years
Closed
Libya
Al-Werfalli
Mahmoud Mustafa Busyf Al-Werfalli
War crimes
Accused deceased
Closed
Sudan (Darfur)
Banda
Saleh Mohammed Jerbo Jamus
War crimes
Accused deceased
Closed
Sudan (Darfur)
Banda
Abdallah Banda Abakaer Nourain
War crimes
Accused not in custody
Ongoing
Kenya
Barasa
Walter Barasa
Witness tampering
Accused not in custody
Ongoing
Central African Republic (CAR) I
Bemba
Jean-Pierre Bemba Gombo
War crimes and crimes against humanity
Acquitted on appeal
Closed
CAR I
Bemba et al.
Jean-Pierre Bemba Gombo
Obstruction of justice
Found guilty, sentenced to one year
Closed
CAR I
Bemba et al.
Narcisse Arido
Obstruction of justice
Found guilty, sentenced to 11 months
Closed
CAR I
Bemba et al.
Jean-Jacques Mangenda Kabongo
Obstruction of justice
Found guilty, sentenced to two years
Closed
CAR I
Bemba et al.
Aimé Kilolo Musamba
Obstruction of justice
Found guilty, sentenced to two years and six months
Closed
CAR I
Bemba et al.
Fidèle Babala Wandu
Obstruction of justice
Found guilty, sentenced to six months
Closed
Kenya
Bett
Philip Kipkoech Bett
Obstruction of justice
Accused not in custody
Ongoing
Libya
Gaddafi
Muammar Mohammed Abu Minyar Gaddafi
Crimes against humanity
Accused deceased
Closed
Libya
Gaddafi
Saif Al-Islam Gaddafi
Crimes against humanity
Accused not in custody
Ongoing
Libya
Gaddafi
Abdullah Al-Senussi
Crimes against humanity
Pre-Trial Chamber ruled case inadmissible
Closed
Côte d’Ivoire
Gbagbo and Blé Goudé
Laurent Gbagbo
Crimes against humanity
Acquitted
Closed
Côte d’Ivoire
Gbagbo and Blé Goudé
Charles Blé Goudé
Crimes against humanity
Acquitted
Closed
Kenya
Gicheru
Paul Gicheru
Obstruction of justice
Accused deceased
Closed
Sudan (Darfur)
Harun
Ahmad Muhammad Harun
War crimes and crimes against humanity
Accused not in custody
Ongoing
Sudan (Darfur)
Hussein
Abdel Raheem Muhammad Hussein
War crimes and crimes against humanity
Accused not in custody
Ongoing
Democratic Republic of the Congo (DRC)
Katanga
Germain Katanga
War crimes and crimes against humanity
Found guilty, sentenced to 12 years
Closed
Kenya
Kenyatta
Uhuru Muigai Kenyatta
Crimes against humanity
Charges withdrawn
Closed
Kenya
Kenyatta
Francis Kirimi Muthaura
Crimes against humanity
Charges withdrawn
Closed
Kenya
Kenyatta
Mohammed Hussein Ali
Crimes against humanity
Pre-Trial Chamber declined to confirm charges
Closed
Libya
Khaled
Al-Tuhamy Mohamed Khaled
War crimes and crimes against humanity
Accused deceased
Closed
Uganda
Kony et al.
Raska Lukwiya
War crimes and crimes against humanity
Accused deceased
Closed
Uganda
Kony et al.
Okot Odhiambo
War crimes and crimes against humanity
Accused deceased
Closed
Uganda
Kony et al.
Joseph Kony
War crimes and crimes against humanity
Accused not in custody
Ongoing
Uganda
Kony et al.
Vincent Otti
War crimes and crimes against humanity
Accused not in custody
Ongoing
DRC
Lubanga
Thomas Lubanga Dyilo
War crimes
Found guilty, sentenced to 14 years
Closed
Ukraine*
Lvova-Belova
Maria Alekseyevna Lvova-Belova
War crimes
Accused not in custody
Ongoing
DRC
Mbarushimana
Callixte Mbarushimana
War crimes and crimes against humanity
Pre-Trial Chamber declined to confirm charges
Closed
CAR II
Mokom
Maxime Jeoffroy Eli Mokom Gawaka
War crimes and crimes against humanity
Awaiting confirmation of charges hearing
Ongoing
DRC
Mudacumura
Sylvestre Mudacumura
War crimes
Accused not in custody
Ongoing
DRC
Ngudjolo Chui
Mathieu Ngudjolo Chui
War crimes and crimes against humanity
Acquitted
Closed
DRC
Ntaganda
Bosco Ntaganda
War crimes and crimes against humanity
Found guilty, sentenced to 30 years
Closed
Uganda
Ongwen
Dominic Ongwen
War crimes and crimes against humanity
Found guilty, sentenced to 25 years.
Closed
Ukraine*
Putin
Vladimir Vladimirovich Putin
War crimes
Accused not in custody
Ongoing
Kenya
Ruto and Sang
Henry Kiprono Kosgey
Crimes against humanity
Pre-Trial Chamber declined to confirm charges
Closed
Kenya
Ruto and Sang
William Samoei Ruto
Crimes against humanity
Trial Chamber terminated case for lack of evidence
Closed
Kenya
Ruto and Sang
Joshua Arap Sang
Crimes against humanity
Trial Chamber terminated case for lack of evidence
Closed
CAR II
Said
Mahamat Said Abdel Kani
War crimes and crimes against humanity
Trial ongoing
Ongoing
Côte d’Ivoire
Simone Gbagbo
Simone Gbagbo
Crimes against humanity
Charges vacated
Closed
CAR II
Yekatom and Ngaïssona
Alfred Yekatom
War crimes and crimes against humanity
Trial ongoing
Ongoing
CAR II
Yekatom and Ngaïssona
Patrice-Edouard Ngaïssona
War crimes and crimes against humanity
Trial ongoing
Ongoing
Source: Table prepared by the Library of Parliament using information obtained
from International Criminal Court (ICC), 31 Cases; and ICC, Situation in
Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin
and Maria Alekseyevna Lvova-Belova, News release, 17 March 2023.
* Case involves arrest warrants issued by the ICC against Vladimir
Vladimirovich Putin and Maria Alekseyevna Lvova-Belova, as announced by the
court in March 2023. At the time of writing, it is unknown whether the two
accused will be tried together as a single case or separately.
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