The International Criminal Court: Introduction

The ICC commenced operations as a permanent international institution on July 1, 2002, after 60 states had ratified its treaty (the Rome Statute). Now 116 states are States Parties for the Court.[1] The following is a geographical breakdown of those States Parties:

States Parties?

Yes No Total
Africa[2]    32 15   47
Asia[3]    15 37   52
Europe[4]    40   4   44
Latin America[5]    26   7   33
Middle East[6]      2 13   15
North America[7]      1   1     2
TOTAL[8] 116 77 193

Under the Rome Statute, the ICC has jurisdiction over the following crimes: genocide, crimes against humanity and war crimes (Arts. 5-8).[9] The Statute provides detailed definitions of those crimes, which are very important developments in the relatively new area of international criminal law. Once in operation, the Court developed its Rules of Procedure and Evidence and The Elements of Crimes that provide additional due process protections for those accused of crimes by the Court.[10] These also are important contributions to this area of the law and to the ongoing global struggle against impunity for human rights violators.

An important exception to ICC jurisdiction over the above crimes exists under Article 17(1) where:

(a)    “The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;”

(b)   “The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;”

(c)    “The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3 . . . .” [11]

The above exception to ICC jurisdiction is known, in ICC parlance, as the principle of “complementarity.” In other words, the ICC is a court of last resort. To further this limited role, the ICC has been engaged in helping certain states to improve their own judicial ability to handle ICC-type cases. This is often referred to as “positive complementarity” within ICC circles.[12]

The ICC has 18 judges who are elected by the ICC’s Assembly of States Parties for a term of nine years. Seven are from Europe (and Other); five, Africa; four, Latin America and Caribbean; and two, Asia. The judges are assigned to the following three divisions of the Court:

  • The Pre-Trial Division, which has responsibility for various matters before trial. Six judges with predominantly criminal trial experience are assigned to this division, and they conduct the business in chambers of one or three judges.
  • The Trial Division, which has responsibility for conducting the trials. Eight judges with predominantly criminal trial experience are assigned to this division, and they conduct the business in chambers of three judges.
  • The Appeals Division, which has responsibility for handling any appeals from the other divisions. Five judges are assigned to this division, and all five judges conduct the appeals in the Appeals Chamber.[13]

An inherent problem for the ICC is its lack of an international police or military force to arrest subjects of warrants. But under Articles 59 and 89 of the Statute, a State Party has an obligation “to take steps to arrest” the person and to follow its own appropriate judicial procedure to determine the propriety of delivering the person to the ICC. This obligation obtains for any State Party where the subject may be found, not just the State Party where the alleged crime occurred. In addition, the Court under Article 89(1) may request the arrest of a subject by “any State on the territory of which that person may be found.”[14]

The Court’s Prosecutor is elected by the Assembly of State Parties for a single nine-year term. (Art. 42(4).) The Prosecutor has authority to conduct investigations into situations that are referred to the Court by the U.N. Security Council or a State Party under Articles 13(b) and 14 of the Rome Statute or upon his or her own initiative (proprio motu) under Article 15(1).

Under the Rome Statute the Prosecutor is invested with specific duties regarding investigations and prosecutions and is subject to various checks and balances from the Pre-Trial Chamber and others (States Parties and the U.N. Security Council when making referrals). All of these provisions are some of the protections provided to those who are accused by the ICC and should provide comfort to those like some in the U.S. who believe that there are no checks on a hypothetically biased Prosecutor.

The governing body for the ICC is the previously mentioned Assembly of States Parties, in which each party has one vote. This is separate and distinct from the United Nations or its General Assembly or Security Council or any other U.N. organ. (Art. 112.)

Future posts will discuss the Court’s current situations and cases, the 2010 Review Conference and definition of the crime of aggression and the U.S.’ relations with the Court.



[1]  ICC, The States Parties to the Rome Statute, http://www.icc-cpi.int/Menus/ASP/states+parties. This is the Court’s own website, which has extensive information about the ICC. Another useful website is the official one about the Rome Conference of 1998 that developed the treaty that governs the Court (the Rome Statute): http://untreaty.un.org/cod/icc/index.html. The list of States Parties has been updated to June 22, 2011.

[2] Seychelles will become the 31st African state to join the ICC on November 1, 2010. The principal African states that are notICC members are Algeria, Angola, Eritrea, Ethiopia, Libya, Rwanda, Somalia, Sudan and Zimbabwe. (Compare id. with U.N., List of Member States of United Nations,http://www.un.org/en/members/index.shtml.

[3] The principal Asian states that are not ICC members are China, Democratic Republic of Korea, India, Indonesia, Iran, Malaysia, Myanmar, Pakistan, Philippines, Thailand and Viet Nam. Id.

[4] The principal European states that are not ICC members are Belarus, the Russian Federation and Ukraine. Id.

[5]  The principal Latin American and Caribbean states that are not ICC members are Cuba, El Salvador, Guatemala and Nicaragua.  Id.

[6]  The only Middle Eastern states that are ICC members are Cyprus and Jordan.  Id.

[7]  Canada is the only North American state that is an ICC member. The U.S.A. is the only North American state that is not an ICC member.  Id.

[8]  There are 192 members of the U.N., and a non-member of the U.N. (Cook Islands) is an ICC State Party. Thus, the total number of states in the table is 193. Id.

[9]  The Rome Statute also grants the ICC jurisdiction over the crime of aggression, but since that crime was not defined in the Statute, the Court could not exercise that jurisdiction. (Art. 5(2).) At the Court’s 2010 Review Conference, such a definition was added. This will be the subject of a future post.

[11] Article 20(3) of the Rome Statute lifts the bar of prior prosecution in a domestic court when it was not in good faith, i.e., when it was done “for the purpose of shielding the person concerned from criminal responsibility for [ICC] crimes” or when it was not “conducted independently or impartially . . . and  [WAS] . . . conducted in a manner which. In the circumstances, was inconsistent with an intent to bring the person concerned to justice.”

[12] E.g., ICC, Resolution on Complementarity (RC/Res. 1 June 8, 2010), http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.1-ENG.pdf; AMICC, Report on the Review Conference of the International Criminal Court (June 25, 2010), http://www2.icc-cpi.int/Menus/ICC/Home; http://www.amicc.org.

[13] Rome Statute, Arts. 34-41; ICC, Chambers, http://www2.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Chambers. (One-third of the first set of judges only had a term of three years; another third, six years; and the final third, the full nine-year term. (Art. 36(9)(b).)

[14] The recent Review Conference adopted a declaration that reemphasized the obligation of States Parties to arrest those subject to ICC arrest warrants. (ICC, Declaration on cooperation (RC/Decl.2 June 8, 2010), http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Decl.2-ENG.pdf.

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dwkcommentaries

As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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