Lawyers Committee for Human Rights

FREQUENTLY ASKED QUESTIONS ABOUT THEINTERNATIONAL CRIMINAL COURT

On July 17, 1998, the international community made an historic step forward in the effort to end impunity for international crimes. By a vote of 120 in favor and seven against, delegates to  the Rome Diplomatic Conference adopted a Statute to create a permanent International Criminal Court (ICC). 

The Lawyers Committee for Human Rights is part of an International NGO Coalition for the Establishment of an ICC that is working to create an independent, effective and fair court.  In an effort to facilitate understanding of the Statute, we offer the following responses to some frequently asked questions about the ICC: 

When will the ICC begin trying cases? 

Although the Statute was approved in Rome, it will not enter into force and the Court will not be established until 60 nations ratify it. That process will take at least several years. 

How will the ICC be structured?  

The Court will be a permanent judicial body with headquarters in The Hague (The Netherlands). It will have jurisdiction only over crimes committed after the Rome Statute enters into force. The ICC is a treaty-based body and will therefore not be an organ of the United Nations. It will, however, be closely linked to the UN by means of various formal agreements. 

Who will be the judges on the ICC? 

Initially, the Court will consist of 18 judges elected to nonrenewable nine year terms by a two-thirds majority vote of the States Parties to the Statute. Only citizens of countries that are Parties to the Statute can be judges, and no two judges may be citizens of the same country.  At least nine judges must have established competence in criminal law and procedure, while at least five must have established competence in relevant areas of international law such as international humanitarian law and human rights law. In selecting judges, States Parties must take into account the need for representation of the principal legal systems of the world, equitable geographic representation and a fair representation of male and female judges. The judges will be distributed among three divisions: pre-trial, trial and appeals.  

Who will be the Prosecutor? 

An absolute majority of the States Parties to the Statute will elect the ICC Prosecutor and one or more deputy prosecutors to nonrenewable nine year terms. These individuals will be required to have extensive practical experience in the prosecution or trial of criminal cases. The Prosecutor will be authorized to initiate investigations upon a referral either by the UN Security Council or by a State Party to the Statute and, subject to appropriate safeguards, on his or her own motion (proprio motu). The Rome Statute also provides for the establishment of an ICC Registry.  

Will the ICC supersede national courts? 

No. A fundamental principle of the Rome Statute is that the ICC shall be "complementary" to national courts. This means that the Court must defer to a national criminal justice system, unless that system is genuinely unable or unwilling to investigate and prosecute crimes that would otherwise be within the ICC's jurisdiction. The Court may consider on its own motion whether it should defer to national proceedings, but the principle of complementarity can also be invoked by interested States (not just States Parties to the Statute) and individual suspects. The Statute spells out criteria that will guide the Court in determining the genuine inability or unwillingness of a national criminal justice system to bring perpetrators of crimes to justice. For example, inability is defined as "a total or substantial collapse or unavailability of [the] national criminal justice system." In order to make a finding of unwillingness, the  ICC would have to determine that national proceedings were undertaken with an intent to thwart justice. In sum, the Court is not meant to replace national jurisdictions, but to provide a venue for prosecution and trial where domestic courts fail to do so. 

Do domestic remedies need to be exhausted before the ICC can take up a case? 

Given the relationship to national courts explained above, domestic remedies do not need to be exhausted before the ICC can take up a case, because the ICC is not an appeals court. If a case has been genuinely investigated or prosecuted at the national level, or is being investigated or prosecuted, it will be declared inadmissible by the ICC.  

How will the ICC differ from the International Court of Justice (the "World Court")?   

The International Court of Justice is one of the six principal organs of the United Nations, authorized to resolve disputes only among states. The ICC will have jurisdiction only over crimes committed by individuals.  

Over what crimes will the ICC have jurisdiction? Does the Statute include crimes of sexual and gender violence?  

Article 1 of the Rome Statute specifies that the ICC will have jurisdiction over "the most serious crimes of international concern." These are: genocide, war crimes, crimes against humanity and aggression. (The Court will be able to exercise jurisdiction over aggression only after a definition of the crime has been agreed to and included in the ICC Statute by amendment. The Statute specifies that any amendment must be consistent with the role of the Security Council under the UN Charter in determining that an act of aggression has taken place.) 

Genocide. It was universally accepted at the Rome Conference that the ICC Statute should replicate the definition of this crime as  provided for in the 1948 Genocide Convention. Under the Convention and the ICC Statute, genocide "means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such: killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, forcibly transferring children of the group to another group".  

Crimes Against Humanity. The ICC Statute codifies crimes against humanity in a multilateral treaty for the first time since the Nuremberg Charter. The ICC will have jurisdiction over such crimes whether committed in armed conflict or peacetime and regardless of whether perpetrated by state or non-state actors. A crime against humanity is defined in the ICC Statute as an act committed as part

of a "widespread or systematic attack against any civilian population, with knowledge of the attack." The specific acts listed include murder, extermination, enslavement and deportation, which were provided for in the Nuremberg Charter. Similar to the Statute of the ad hoc Criminal Tribunal for the former Yugoslavia, the ICC Statute also provides that imprisonment, torture, rape and persecutions on political, racial and religious grounds are crimes against humanity when committed on a widespread or systematic basis. However, the ICC Statute further updates the list of crimes

against humanity by including "forcible transfer of population,"

"other severe deprivation of physical liberty in violation of fundamental rules of international law" (apart from imprisonment), "sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity," "enforced disappearance of persons" and "the crime of apartheid."  

The progress represented by codification of crimes against humanity in the ICC Statute is offset somewhat by the inclusion of high definitional and evidentiary thresholds that will restrict the Court's effective jurisdiction over these crimes.  

War Crimes. Under the Rome Statute, the ICC will have jurisdiction over war crimes committed in both international and non-international armed conflict. The Statute reproduces the "grave  breaches" provisions of the 1949 Geneva Conventions constituting war crimes in international armed conflict and includes a list of twenty-six other acts considered to be "serious violations of the laws and customs" applicable in international armed conflict. Among them is "rape, sexual slavery, enforced prostitution, forced pregnancyÉenforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions." 

A tremendous achievement of the Rome Conference is that states finally agreed, by multilateral treaty, to explicitly attach international criminal responsibility to certain war crimes  committed in internal armed conflict. Given that most conflicts in the world today are internal, the importance of this step cannot be overstated. Under the ICC Statute, individual responsibility may arise as a result of serious violations of Common Article 3 to the 1949 Geneva Conventions. This article prohibits "violence to life or person," "outrages upon personal dignity," the "taking of hostages" or the denial of the right to a fair trial to persons taking no active part in the hostilities that constitute a non-international armed conflict. The ICC Statute also categorizes twelve other acts as war crimes when committed in that type of conflict. Among them are: "intentionally directing attacks against the civilian population" and "intentionally directing attacks against personnel É material, units or vehicles involved in a humanitarian assistance or peacekeeping mission." Crimes of sexual and gender violence are also provided for.  

Similar to the solution adopted with respect to crimes against humanity, the drafters of the ICC treaty set specific jurisdictional thresholds over both types of war crimes as a way of restricting the Court's reach. Under an unfortunate, last minute compromise struck at Rome, the Statute also permits States Parties not to accept the Court's jurisdiction over war crimes committed on their territory or by their nationals for the first seven years after  ratification. 

How will cases come before the ICC?   

Under the Rome Statute the Court's jurisdiction can be "triggered":

- by any State Party to the Statute;

- by the UN Security Council;

- by the Prosecutor acting on his or her own motion (proprio motu).  

There was widespread agreement in Rome that any State Party to the Statute should be able to bring to the Prosecutor's attention a situation in which crimes within the Court's jurisdiction appear to have been committed and to request him/her to investigate. The UN Security Council can also refer to the Court a situation in which crimes appear to have been committed when it determines, under Chapter VII of the UN Charter, that the situation represents a threat to peace or a breach of the peace. In both cases, the  Prosecutor can decline to proceed with an investigation if he or she determines that there is "no reasonable basis" to do so. Finally, the Prosecutor may initiate an investigation on his or her own motion, provided that a three-judge panel of the ICC Pre-Trial Chamber approves.  

Does the ICC have to obtain state consent to investigate a crime? When the Security Council refers a situation to the Court, the prosecutor may proceed against any individual, for any crime within the Court's jurisdiction, in any country, without the consent of any state.  

When a State Party to the Statute has triggered the Court's jurisdiction or when the Prosecutor wants to investigate proprio motu, the Court can act only in cases involving the territory or citizens of countries that accept its jurisdiction. A state accepts the Court's jurisdiction either by ratifying the ICC treaty or by filing an ad hoc declaration consenting to the Court's jurisdiction over the crime in question.  Given the restrictions on ICC effectiveness that flow from this state consent regime, universal ratification of the ICC Statute is extremely important.  

Will the Security Council be able to limit the ICC's reach? 

Contrary to initial proposals, the ICC will not require Security Council approval before starting proceedings. The Security Council can, however, request the Court not to open proceedings, or to suspend proceedings already underway, for a renewable period of 12

months by means of a UN Charter Chapter VII resolution. The adoption of such a resolution requires nine votes, including the votes of all five permanent Security Council members. A veto by one permanent Security Council member would thus enable the Court to move forward. 

Will the Court be able to try heads of state and other government officials?

 The Rome Statute applies to all persons, regardless of their official position. The Statute explicitly provides that "official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility." Therefore, immunity pleas based on official position will not be allowed in proceedings before the Court.  

What about members of armed forces or of paramilitary groups?

 They can also be held responsible under the ICC Statute, both for acts directly committed, as well as for acts committed by subordinates. The Statute provides that a military commander, other "person effectively acting as a military commander" or a civilian commander, may be held criminally responsible for acts committed by subordinates. The principle of command responsibility as phrased in the ICC Statute is, admittedly, weaker than the standard enunciated in the Nuremberg Charter.

How are defendants' rights guaranteed?  

The procedural provisions of the Rome Statute are based on international standards of fair trial and due process embodied in international conventions and UN standards on the right to a fair trial. Defendants' rights are guaranteed at all stages of the proceedings up to and including appeal.  Thus, the right to counsel -- including the right to assignment of counsel in case of indigency is guaranteed to both suspects and accused. The Statute incorporates the presumption of innocence and does not permit trials in absentia.  In keeping with current trends in international law, the death penalty is not provided for.  

Are the rights of victims and witnesses protected? 

The Court is obliged to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses, particularly where the proceedings involve crimes of sexual or gender violence or crimes against children. The ICC will also be authorized to "establish principles" on reparations to victims and to issue orders directly against convicted persons specifying reparations, which may include restitution, compensation and rehabilitation. It may also order that reparations be made through a Trust Fund that will be established for the benefit of victims of crimes within the Court's jurisdiction.  

How will the Court's orders be enforced?  

States Parties to the ICC Statute have a legal obligation to cooperate fully with the ICC.  When the Court, for example, issues an international arrest warrant, they have a duty to arrest and transfer the suspect or accused to the Court.  To this end, they must ensure that there are procedures available under their national law to enable cooperation with the Court. If the Court's jurisdiction is triggered by the Security Council, the duty to cooperate extends to all UN member states, regardless of whether they are a Party to the Statute. 

Provisions on the consequences of non-cooperation are provided for in the ICC Statute, although weaker than might have been hoped for. Where a State Party fails to comply with a request to cooperate, the Court may make a finding to that effect and refer

the matter for further action to the Assembly of States Parties. When the failure to cooperate arises out of a Security Council-triggered proceeding, the matter may be referred to the Security Council. 

Where will sentences be served?  

Sentences will be served in States designated by the Court, from a List of States that express willingness to accept prisoners. The ICC will supervise the enforcement of sentences and the conditions of imprisonment. 

How will the Court be funded?  

The Court will be funded by assessed contributions from States Parties to the Statute and by funds provided by the UN, particularly in cases where costs arise from Security Council referrals. The ICC will also be able to accept voluntary contributions from governments, international organizations, individuals, corporations and other entities.  

What is the next step?  

Ratification by individual states of the ICC Statute is the most pressing next step. As ratification proceeds, a Preparatory Commission open to all states that signed the Final Act of the Rome Diplomatic Conference will be meeting at UN headquarters in New York for a total of eight weeks in 1999. The Commission is charged with drafting the ICC's Rules of  Procedure and Evidence. It is also expected to elaborate the Elements of Crimes within the Court's jurisdiction, draft a relationship agreement between the ICC and the UN, establish financial regulations and rules and draw up a budget for the first financial year.  

Where can you find out more about the ICC?  

The website of the "NGO Coalition for an ICC"

(www.igc.apc.org/icc) is the most comprehensive source of information on the ICC. NGOs can also join the NGO Coalition on the ICC and receive its newsletter, the "ICC Monitor."  For further information please contact the Coalition's Secretariat at:  

NGO Coalition for an ICC

c/o WFM

777 UN Plaza

New York, NY 10017

USA

Tel: (...1) (212) 687 2176

Fax: (É1) (212) 599 1332

E-mail: cicc@igc.apc.org 

The Lawyers Committee's website  (www.lchr.org), on which all the Lawyers Committee ICC briefing papers and other materials are posted, is also at your disposal. We would be happy to provide you with more information. Please contact us:  

Jelena Pejic                    

Senior Coordinator, ICC Campaign

Tel: (...1) (212) 845 5253

Fax: (É1) (212) 845 5299 E-mail: europe@lchr.org 

Mireille Hector Coordinator, UN Program

Tel: (...1) (212) 845 5241

Fax: (É1) (212) 845 5299 E-mail: uncoord@lchr.org