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WHAT IS THE ICC? WHAT TO KNOW ABOUT THE COURT’S ORIGINS AND JURISDICTION

World May 26, 2024 2:57 PM EST

The International Criminal Court (ICC), established in 2002, seeks to hold to
account those guilty of some of the world’s worst crimes. Champions of the court
say it deters would-be war criminals, bolsters the rule of law, and offers
justice to victims of atrocities.

But, since its inception, the court has faced criticism from many parties and
has been unable to gain the membership of major powers, including the United
States, China, and Russia. Two countries have withdrawn from the court, and many
African governments complain that its prosecutions have singled out the
continent.

WATCH: ‘We don’t recognize their jurisdiction,’ Biden says of International
Criminal Court

U.S. opposition to the ICC hardened under President Donald Trump, and although
the Joe Biden administration has taken a more conciliatory approach, tensions
remain. Some analysts say the ICC’s ongoing investigations into the conflicts in
Ukraine and the Palestinian territories demonstrate the court’s continued
relevance despite its formidable challenges.

WHAT ARE THE COURT’S ORIGINS?

In the aftermath of World War II, the Allied powers launched the first
international war crimes tribunal, known as the Nuremberg Trials, to prosecute
top Nazi officials. It wasn’t until the 1990s, however, that many governments
coalesced around the idea of a permanent court to hold perpetrators to account
for the world’s most serious crimes. The United Nations had previously set up ad
hoc international criminal tribunals to deal with war crimes in the former
Yugoslavia and Rwanda, but many international law experts considered them
inefficient and inadequate deterrents.

Trinidad and Tobago requested that a UN commission look into the creation of a
permanent court in 1989. In the following years, such efforts gained support,
especially in Europe and Africa. The African bloc is the ICC’s largest group,
though the relationship between some of the leaders of its thirty-three member
countries and the court has become more tenuous in recent years. The European
Union is also a staunch supporter of the court; it adopted a binding policy in
support of the ICC in 2011.

The ICC’s founding treaty was adopted by the UN General Assembly at a conference
in Rome in July 1998. After being ratified by more than sixty countries, the
Rome Statute entered into force on July 1, 2002.

WHICH COUNTRIES ARE MEMBERS OF THE COURT?

There are 124 countries party to the Rome Statute. Some forty countries never
signed the treaty, including China, Ethiopia, India, Indonesia, Iraq, North
Korea, Saudi Arabia, and Turkey. In 2015, the ICC admitted Palestine as a member
of the court despite strong opposition from the United States and its partners.
Several dozen others signed the statute, but their legislatures never ratified
it. These include Egypt, Iran, Israel, Russia, Sudan, and Syria in addition to
the United States. In February 2024, Armenia became the latest addition to the
ICC, officially joining the bloc after ratifying the Rome Statute the year
before.

Two countries have withdrawn from the ICC. Burundi left in 2017, following the
court’s decision to investigate the government’s crackdown on opposition
protests. Philippine President Rodrigo Duterte pulled out in 2019 after the
court launched an inquiry into his government’s war on drugs, saying domestic
courts are sufficient to enforce the rule of law. Gambia and South Africa
notified the United Nations in 2016 that they intended to exit the treaty, but
they later reversed course in the face of political upheaval and legal
challenges. South Africa in particular has expressed frustration over what its
leaders say are dominating Western interests when it comes to how international
law is deployed.

HOW DOES THE COURT WORK?

The ICC is based in The Hague, a city in the Netherlands that hosts many
international institutions, and has field offices in several countries. The
court carries out its investigative work through the office of the prosecutor,
led since 2021 by British lawyer Karim A.A. Khan, who previously served as
assistant secretary-general of the United Nations.

The court has eighteen judges, each from a different member country and elected
by the member states. It requires its members to seek a gender-balanced bench,
and the judiciary must include representatives of each of the United
Nations’ five regions. Judges and prosecutors are elected to nonrenewable
nine-year terms. The president and two vice presidents of the court are elected
from among the judges; they, along with the registry, handle the administration
of the court.

The court has jurisdiction over four categories of crimes under international
law:

* genocide, or the intent to destroy in whole or in part a national, ethnic,
racial, or religious group, as such;
* war crimes, including grave breaches of the laws of war under the Geneva
Conventions and serious violations under customary international law, such as
torture, taking of hostages, willfully causing great suffering, intentionally
attacking civilian populations as such, attacking undefended civilian
property, schools, historic monuments, or hospitals, using starvation of
civilian populations as a method of warfare, or using child soldiers;
* crimes against humanity, or violations committed as part of a large-scale
attack against any civilian population, including murder, rape, unjust
imprisonment, slavery, persecution, torture, or apartheid; and
* crimes of aggression, where a political or military leader plans or executes
the use of armed force by a state against the territorial integrity,
sovereignty, or political independence of another state, or in any other
manner inconsistent with the UN Charter.

The court can open an investigation into possible crimes in one of three ways: a
member country can refer to the prosecutor a situation arising anywhere provided
it is within the jurisdiction of the court; the UN Security Council can refer a
situation occurring anywhere in the world; or, with the approval of pretrial ICC
judges, the prosecutor can launch an investigation into a situation proprio
motu, or “on one’s own initiative.” The court can investigate individuals from
nonmember states if the alleged offenses took place in a member state’s
territory, if the nonmember state accepts the court’s jurisdiction, or with the
Security Council’s authorization.

To open an investigation, the prosecutor must conclude after a preliminary
examination that the alleged crimes are of “sufficient gravity.” Once an
investigation is opened, the prosecutor’s office typically sends investigators
and other staff to collect evidence. Any arrest warrant or summons must be
approved by the judiciary, based on information provided by the prosecutor. A
group of pretrial judges ultimately confirms whether a case should be brought to
trial. Defendants can seek outside counsel to represent them, paid for, if
necessary, by the court. Convictions and sentences require the vote of at least
two out of the three judges on a trial bench; convicted defendants may appeal to
the ICC’s appellate bench, which is made up of five judges.

The ICC is intended to complement rather than replace national courts. It can
only act when national courts have been found unable or unwilling to try a case.
Additionally, it only exercises jurisdiction over crimes that occurred after its
statute took effect in 2002. The court also relies entirely on the cooperation
of member-state authorities to apprehend suspects, as it does not have a police
force of its own. It cannot try individuals in absentia, and a member state is
obligated to arrest any individual under ICC arrest warrant who is present on
its territory.

The ICC differs from the International Court of Justice — the top UN court,
which settles disputes between states and is also located in The Hague — in that
it prosecutes individuals. Its broad geographic reach and continuous operation
distinguish it from temporary international tribunals, such as the one that
prosecuted the 1994 genocide in Rwanda.

HOW IS IT FUNDED?

The ICC’s annual budget for 2024 stands at roughly $187 million, the vast
majority of which comes from member states. Contributions are determined by the
same method the United Nations uses to assess dues, which roughly correspond to
the size of each member’s economy. In 2022, the largest contributions came from
Japan, Germany, France, and the United Kingdom. Some countries, notably
Argentina, Brazil, and Venezuela, have run up millions of dollars in overdue
payments.

The UN General Assembly can approve additional funding for cases referred to the
court by the Security Council, but has not yet done so. Some governments and
transnational organizations also offer voluntary contributions.

Some analysts have criticized the ICC as too expensive, and say that it
has failed to pursue justice against some types of crimes, such as gender-based
violence. Others counter that the court has limited institutional capacity, and
its cost effectiveness cannot be based solely on the number of cases it tries or
convictions it secures.

WHAT INVESTIGATIONS AND CASES HAS THE ICC OPENED?

The ICC has indicted more than fifty individuals, mostly from African countries.
Twenty-one people have been detained in The Hague, ten have been convicted of
crimes, and four have been acquitted.

Cases have been referred by the governments of Uganda, the Central African
Republic, the Democratic Republic of Congo, and Mali relating to the civil wars
and other conflicts that have raged in those countries. In 2021, the court
opened an investigation into alleged crimes against humanity in Venezuela based
on a referral from half a dozen member countries, mostly in South America.

Recent major investigations include:

Venezuela. In 2021, the court opened an investigation into alleged crimes
against humanity in Venezuela based on a referral from half a dozen member
countries, mostly in South America. (The probe was initially put on hold by
Venezuelan authorities who wanted to take over the case, but in March 2024, the
ICC ruled that it would proceed with the investigation.)

Russia-Ukraine war. The court launched an investigation into Russia’s invasion
of Ukraine in 2022 after receiving a referral from more than forty member
states. Though neither Ukraine nor Russia are ICC members, Kyiv accepted the
court’s jurisdiction for alleged crimes on its territory going back to late 2013
and early 2014, when Russia annexed Crimea. In March 2023, the ICC issued an
arrest warrant for Russian President Vladimir Putin on charges of forcibly
deporting Ukrainian children, but lacking his custody for trial in The Hague,
the ICC has not yet prosecuted Putin.

Israel-Palestinian territories conflict. The Palestinian territories first
asked the ICC to investigate in the Gaza Strip and the West Bank in 2018 for
crimes dating back to the conflict between Israel and Hamas in 2014; the court
began the probe in 2021. In late 2023, member states Bangladesh, Bolivia,
Comoros, Djibouti, and South Africa referred the Israel-Hamas war that broke out
in October 2023 to the ICC, and Chile and Mexico followed up in early 2024 with
a supplemental referral regarding that war.

In May 2024, ICC prosecutor Khan announced his application for arrest
warrants for Israeli Prime Minister Benjamin Netanyahu and Foreign Minister Yoav
Gallant, and Hamas leaders Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh.
Based on survivor interviews, video and photographic evidence, and field visits
by ICC officials, Khan said he has “reasonable grounds to believe” each of the
five men bears “criminal responsibility” for war crimes and crimes against
humanity. Both Israeli and Hamas officials denounced the development. The ICC
judges still must approve the warrants for them to go into effect, a process
that could take several months.

WHO ARE SOME OF THE COURT’S HIGH-PROFILE INDICTMENTS?

Vladimir Putin. The ICC ordered Putin’s arrest on the grounds that he is
allegedly responsible for the war crime of forcibly deporting and transferring
“at least hundreds” of children from occupied Ukrainian territory to Russia. The
court issued a corresponding warrant for Russia’s children’s rights
commissioner, Maria Lvova-Belova. Ukrainian President Volodymyr Zelenskyy lauded
the arrest warrants as “a historic decision” by the court. Russia’s government
said it does not recognize the court’s jurisdiction, but it has acknowledged
transferring Ukrainian children to live with foster families in Russia and
sending them to attend “rehabilitation” programs, which some Western observers
have described as propaganda or a “political reeducation.”

READ MORE: International Criminal Court issues arrest warrant for Putin over
Ukraine war crimes

Most legal experts see Putin’s warrant as symbolic, noting that it is unlikely
he will be arrested anytime soon. However, the indictment has already limited
Putin’s ability to travel abroad and attend important diplomatic forums. Putin
was forced to virtually attend the 2023 BRICS summit with the leaders of Brazil,
India, China, and South Africa after host government South Africa pressured him
not to travel there. As an ICC member, the South African government would be
compelled to arrest Putin if he joined the talks in Johannesburg. Some observers
say that, even without Putin’s arrest, the ICC’s warrant furthers Russia’s
status as a global pariah. Around forty countries are discussing how to
prosecute the crime of aggression allegedly committed by Russia against Ukraine,
including the proposal for a special tribunal for that purpose. In March 2024,
the ICC issued further arrest warrants for two Russian commanders for alleged
war crimes committed against Ukrainian civilians.

Muammar al-Qaddafi. The Security Council referred the situation in Libya to the
ICC in 2011, based on allegations that the Libyan leader and other individuals
were responsible for the killing of unarmed civilians during Arab Spring
protests. In June of that year the court issued arrest warrants for Qaddafi, as
well as for his son and his brother-in-law, but he went into hiding and was
killed before he could be apprehended. Qaddafi’s son, Saif al-Islam, remains a
fugitive.

Omar al-Bashir. The first sitting president to be indicted by the ICC, Bashir is
sought on allegations of genocide, crimes against humanity, and war crimes in
Sudan’s Darfur region. He is accused of planning mass killings and deportations
of members of several ethnic groups. Bashir avoided arrest by traveling abroad
only with assurances from friendly foreign leaders that they would not turn him
over. In April 2019, the Sudanese military ousted Bashir following months of
anti-government protests and placed him under arrest. An ICC delegation visited
the country in February 2021 to discuss cooperation with the transitional
government, but it remains unclear whether Sudanese authorities will extradite
Bashir.

Uhuru Kenyatta. In 2010, the ICC opened an investigation into violence that
killed more than one thousand people following Kenya’s 2007 presidential
election. It eventually named Kenyatta and five other major political figures as
suspects of crimes against humanity. The investigation continued as Kenyatta won
the presidency in 2013, with fellow ICC suspect William Ruto as his running
mate. The court dropped the charges against Kenyatta the following year and
those against Ruto in 2016, with the prosecutor’s office claiming that the
Kenyan government was uncooperative and that witness tampering had undermined
the case. In 2023, the ICC finally halted the thirteen-year investigation after
failing to produce any convictions.

WHAT IS THE U.S. STANCE?

Washington has been supportive at times and hostile at others. U.S.
policymakers originally supported the concept of an international criminal
court, and the Bill Clinton administration participated intensively in the UN
negotiations over the Rome Statute. However, at the Rome Conference in 1998, it
opposed the final draft of the treaty over concerns the prosecutor would have
unchecked power and could subject U.S. soldiers and officials to politicized
prosecutions, and that the treaty would not permit reservations. President
Clinton later authorized U.S. Ambassador at Large for War Crimes Issues David
Scheffer to sign the Rome Statute, but he recommended that it not be sent to the
Senate for ratification until U.S. concerns were addressed. President George W.
Bush withdrew the U.S. signature in 2002.

In 2002, Congress passed and President Bush signed the American Service-Members’
Protection Act, which required the government to cut off financial assistance to
ICC members who would agree to surrender U.S. personnel to the ICC. The law also
authorized the president to use all means necessary to free Americans detained
by the ICC. The Bush administration struck bilateral agreements with dozens of
countries obliging them not to hand over U.S. personnel. To date, the ICC has
never issued an arrest warrant for any U.S. official.

Washington has backed ICC efforts on several occasions, however. In 2005, the
Bush administration allowed the Security Council to refer the Darfur case, and
it later offered to assist the court’s investigation, which legal experts saw as
a softening of the U.S. stance. In 2011, the Barack Obama administration voted
in favor of the Security Council referral for a Libya investigation. It
also helped deliver several fugitives to The Hague and offered to pay millions
of dollars as rewards for information on individuals accused of atrocities.

The Trump administration took a harder line, angered by then Chief Prosecutor
Fatou Bensouda’s push to investigate U.S. armed forces and CIA personnel
for potential war crimes in Afghanistan, as well as by her preliminary
investigation into alleged Israeli crimes in the occupied West Bank and Gaza
Strip. In 2018, then National Security Advisor John Bolton announced that the
White House would no longer cooperate with the ICC and would block any efforts
to pursue U.S. or Israeli citizens. The following year, after Secretary of State
Mike Pompeo threatened to revoke the visas of any ICC staff investigating the
United States, Bensouda’s U.S. visa was canceled. The ICC launched a probe into
crimes in Afghanistan in 2020, reversing a previous decision not to investigate
the matter. In response, Trump imposed sanctions against individuals associated
with the ICC.

President Biden’s approach to the court has so far resembled Obama’s more
cooperative stance. Shortly after taking office, Biden lifted the Trump-era
sanctions and visa restrictions, and Bensouda noted that the two sides were
working on a “reset.” In 2021, after the arrival of the new ICC prosecutor Khan,
the court effectively dropped its investigation of U.S. personnel in
Afghanistan. Biden was also among many global leaders who publicly hailed the
ICC’s indictment of Putin. He ordered the U.S. government to share evidence of
Russian war crimes with the court in 2023. Still, his administration has
expressed concern over the investigation into the Palestinian territories. Biden
called the 2024 warrant for Israeli officials “outrageous” and reaffirmed that
the United States “will always stand with Israel against threats to its
security.” U.S. State Department spokesperson Matthew Miller added that the
warrants threatened to embolden Hamas amid efforts to broker a cease-fire.

WHAT ARE OTHER CRITICISMS OF THE ICC?

Criticisms generally come from two directions. Some believe the court has too
little authority, making it inefficient and ineffective at putting away war
criminals. Others think it has too much prosecutorial power, threatening state
sovereignty, and that it lacks sufficient due process and other checks against
political bias. There has also been debate about the qualifications of judges.
Meanwhile, some worry that the prospect of international justice prolongs
conflicts by dissuading war criminals from surrendering, though the research on
that question is inconclusive. Even advocates of the court have admitted it has
shortcomings. Additionally, some cases have raised thorny legal and moral
questions, such as the culpability of former child soldiers who were pressed
into service and themselves victimized.

Several major powers echo U.S. complaints. China and India, in abstaining from
the court, argue that it would infringe on their sovereignty. Analysts point out
that both countries could face investigations if they joined. In 2016, Russia
pulled its signature from the treaty after the court classified its 2014
annexation of Crimea as an occupation, and Moscow is unlikely to cooperate with
the court’s war crimes investigation in Ukraine. In 2021, the Israeli
government told the ICC that it would not recognize the court’s authority in
investigating alleged war crimes within Palestinian territories. Netanyahu said
in April 2024 that Israel “will never accept any attempt by the ICC to undermine
its inherent right of self-defense.” Israel is not an ICC member, but any of the
country’s leaders, if targeted by an ICC arrest warrant, could be subject to
arrest if they travel to any ICC member country.

Many African nations have also accused the ICC of disproportionately focusing on
the African continent. Of the court’s more than two dozen cases, most have dealt
with alleged crimes in African states, although recent investigations into the
Palestinian territories, Myanmar, Ukraine, and Venezuela seem to be broadening
the court’s reach. In 2016, the African Union backed a proposal led by Kenya for
a mass withdrawal, though the vote was largely symbolic.

Still, in Kenya and elsewhere, the court maintains broad public support. CFR’s
Gavin writes that the opposition of many African leaders to the ICC “is not
necessarily aligned with the desire of many Africans for fairness and
accountability.”

This article is republished from the Council on Foreign Relations. Read the
original article here.

Left: An exterior view of the International Criminal Court in the Hague,
Netherlands, March 31, 2021. File photo by Piroschka van de Wouw/Reuters

* Israel grapples with fallout from ICC request for warrants as key allies
support the move

By Tia Goldenberg, Associated Press

* Can the ICC arrest Israeli and Hamas leaders for war crimes? Legal experts
weigh in

By Geoff Bennett, Dan Sagalyn, Sonia Kopelev

* What is the ICC and why it is considering arrest warrants for Israeli and
Hamas leaders?

By Mike Corder, Associated Press

* ICC prosecutor seeks war crimes arrest warrant for Israeli and Hamas leaders,
including Netanyahu

By Josef Federman, Associated Press

GO DEEPER

* icc
* international criminal court
* war crimes
* war criminals

By —

Claire Klobucista, Council on Foreign Relations Claire Klobucista, Council on
Foreign Relations

By —

Mariel Ferragamo, Council on Foreign Relations Mariel Ferragamo, Council on
Foreign Relations

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