Q+A: International Criminal Court

Omar al-Bashir, wanted over allegations of war crimes in Darfur by the ICC [EPA]

When was the ICC established?

The Rome Statute of the International Criminal Court is the treaty that established the ICC on June 17, 1998, and the court entered into force on June 1, 2002.

Why was it established?

The ICC was established in order to prosecute and punish individuals for genocide, crimes against humanity, war crimes, and crimes of aggression. The Preamble of the Rome Statutute of the International Criminal Court, the Treaty that established the ICC, states that “…the most serious crimes of concern to the international community as a whole must not go unpunished…” It was passed by a 120-7 vote, with 21 countries abstaining.

Which countries voted against its creation and why?

Iraq, Israel, Libya, China, Qatar, the United States, and Yemen were the seven countries that voted against the Treaty establishing the ICC. Each country had its own reasons for voting against, but perhaps the most influential country opposed to it was the US. The US opposed the treaty for constitutional reasons, such as every US citizen’s right to a trial by peers, which the ICC would not account for, and also for future problems that might arise for the US as a result of its agreement with the treaty. As one of the world’s largest military and economic powers, the world expects the US to intervene to halt humanitarian disasters around the world, and the US fears that an ICC Prosecutor might single out US officials.

What crimes does the ICC prosecute?

The Rome Statute grants the ICC jurisdiction to cover four groups of crimes: genocide, crimes against humanity, war crimes, and crimes of aggression. The ICC has often been criticised of defining these crimes as too broad or vague. Many states also requested to add terrorism, drug trafficking, and the use of nuclear weapons to the list of crimes covered by the ICC, but they were not included for various reasons.

What is the process through which a case must go through to be tried?

There are two ways of alerting the International Criminal Court to injustices being committed: the first being on the basis of referral from any state party in the United Nations Security Council, and the second being by “communications” or “complaints” by any private party. Since 2002 there have been three state referrals and approximately 8733 communications from more than 140 countries. Neither referrals nor private communications automatically result in a case being filed. The case must first be researched and analysed by the prosecutor to determine if there is a “reasonable basis to proceed”. If the prosecutor deems the complaint worthy of a full investigation, he or she submits the case to the Pre-Trial Chamber, and if from there a formal investigation may be launched. So far, only five official investigations have been launched (Uganda, the Democratic Republic of the Congo, the Central African Republic, Darfur, and Kenya), and only four have made it to trial (Uganda, the Democratic Republic of the Congo, the Central African Republic, and Darfur).

What is the structure of the ICC?

The ICC is an independent institution and not part of the UN, although it does cooperate with the world organisation. The ICC is composed of four main parts: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.

What is its relationship to the UN?

The ICC and the UN are two separate institutions, but they do work closely together. In 2004, a Relationship Agreement between the ICC and the UN was signed, regulating the working relationship between the two organisations. The agreement recognises each other sovereignty, as well as setting up means for which they can cooperate and consult with each other on matters of mutual interest. 

How is it funded?

The ICC is funded by contributions from state parties. Each state’s contribution is calculated on the country’s capacity to pay, which is a reflection of the state’s national income and population. The budget for the ICC in 2009 was approximately $125 million.

What cases is it handling and what are the status of those cases?

1) Prosecutor v. Thomas Lubanga Dyilo (DRC)-01/04-01/06
Wanted for alleged responsibility in numerous war crimes, consisting of enlisting and conscripting of children under the age of 15 years of age into the Patriotic Forces for the Liberation of Congo (FPLC) and using them to participate actively in hostilities in the contest of an international armed conflict from September 2002 to June 2003, and from June 2003 to August 2003.

2) Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (DRC)- 01/04-01/07
Both Katanga and Chui are accused of numerous war crimes (using children under the age of 15 to take active part in hostilities, directing an attack against a civilian population such or against individual civilians not taking direct part in hostilities, willful killings, destruction of property, pillaging, sexual slavery, and rape) as well as crimes against humanity (murder, rape, sexual slavery).

3) Prosecutor v. Bosco Ntaganda (DRC)-01/04-02/06
Former alleged Deputy Chief of the General Staff of the Patriotic Forces for the Liberation of Congo (FPLC) and former alleged Chief of Staff of the Congress national pour la defense du people (CNDP) armed group, active in North Kivu in the DRC.

4) Prosecutor v. Jean-Pierre Bemba Gombo (Central African Republic)-01/05-01/08
Wanted for two crimes against humanity (murder and rape), and three counts of warm crime (murder, rape, and pillaging)

5) Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo, and Dominic Ongwen (Uganda)-02/04-01/05
All wanted for alleged crimes done while leading Lord’s Resistance Army (LRA).

6) Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman (Darfur, Sudan)-02/05-01/07
Harun- wanted for crimes committed while Minister of State for the Interior of the Government of Sudan and Minister of State for Humanitarian Affairs of Sudan.
Abd-Al-Rahman- wanted for crimes committed while being the alleged leader of the Militia/Janjaweed

7) Prosecutor v. Omar Hassan Ahmad Al Bashir (Darfur, Sudan)- 02/05-01/09
Wanted for five counts of crimes against humanity (murder, extermination, forcible transfer, torture, and rape) and two counts of war crimes (intentionally directing attacks against a civilian population such as or against individual civilians not taking part in hostilities and pillaging).

8) Prosecutor v. Bahar Idriss Abu Garda (Darfur, Sudan)- 02/05-02/09
Wanted for three war crimes (violence to life in the form of murder, whether committed or attempted, intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission, pillaging)

Complaints/Communications:
Countries/parties with complaints received against them include, but aren’t limited, to: Afghanistan, Colombia, Gambia, Iraq, Italy, Kenya, South Africa, Israel, Somalia, Sri Lanka, Thailand, and Zimbabwe.

Why has the ICC focused on Africa?

The ICC has not chosen to specifically target African countries, although to many it may seem this way. Of all the communications received by the ICC, 80% have been deemed out of their jurisdiction, and the ones that do fall in ICC jurisdiction just so happen to be involving African nations. Some speculate the reasons behind this are due to Africa’s general weakness of national legal systems, which have led many African countries to refer crimes to the ICC. Many see this as Africa showing its commitment towards the international justice system.

How has the ICC been perceived in Africa?

The fact that the only cases seen in the ICC have been those with crimes taking place in Africa has provoked some to say the ICC is neocolonialist or racist. Many people see the ICC as pursuing its own kind of justice that primarily targets African countries, while others view the ICC’s heavy involvement in Africa as an aid to some African countries whose national governments are seen as too weak to effectively prosecute war criminals.

What criticisms are directed at the ICC?

There have been many criticisms of the ICC, but the main three are its tendency to exacerbate current conflicts, its supposed unfair treatment of those on defence, and its history of being unclear about the reasons for which it chooses its cases. The LRA’s Joseph Kony, currently on trial for war crimes, stated he would agree to a peace deal if the ICC agrees to drop indictments against him and other LRA leaders. The ICC’s refusal to do so has caused the violence to continue in Uganda. In terms of unfair treatment of the defence, current complaints from Lubanga’s defence team include smaller budgets than the Prosecutor, slow arrival of evidence and witness statements, and that documents have often times been impossible to read due to heavy redacting the ICC.

What have been the most significant challenges encountered by the ICC?

One of the most major challenges that has faced the ICC is the lack of support given by influential countries such as the US and China. Other major challenges include its reliance on foreign cooperation and compliancy. For example, the ICC is dependent on countries to extradite individuals suspected of war crimes, in order for an adequate and fair trial.

What have been its greatest successes to date?

The greatest success in the ICC is probably that fact that it is, in itself, a success. The fact that it remains an active and effective institution of global justice is a monumental achievement given its extremely difficult task of regulating world justice. Even with the lack of support from the US, thought to be one of its biggest obstacles, the ICC continues to function successfully.