As of October 2008, 108 states are members of the Court; A further 40 countries have signed but not ratified the Rome Statute. However, a number of states, including China, Russia, India and the United States, are critical of the Court and have not joined.
The Court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council. The Court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore left to individual states.
To date, the Court has opened investigations into four situations: Northern Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur. The Court has issued public arrest warrants for twelve people; six of them remain free, two have died, and four are in custody. The Court's first trial, of Congolese militia leader Thomas Lubanga, was due to begin on 23 June 2008 but it was halted on 13 June when judges ruled that the Prosecutor's refusal to disclose potentially exculpatory material had breached Lubanga's right to a fair trial.
The official seat of the Court is in The Hague, Netherlands, but its proceedings may take place anywhere. The ICC is sometimes referred to as a "world court"; it should not be confused with the International Court of Justice, also known as the World Court, which is the United Nations organization that settles disputes between nations.
The idea was revived in 1989 when A. N. R. Robinson, then Prime Minister of Trinidad and Tobago, proposed the creation of a permanent international court to deal with the illegal drug trade. While work began on a draft statute, the international community established ad hoc tribunals to try war crimes in the former Yugoslavia and Rwanda, further highlighting the need for a permanent international criminal court.
Following years of negotiations, the General Assembly convened a conference in Rome in June 1998, with the aim of finalising a treaty. On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the United States, and Yemen.
The Rome Statute became a binding treaty on 11 April 2002, when the number of countries that had ratified it reached 60. The Statute legally came into force on 1 July 2002, and the Court can only prosecute crimes committed after that date. The first bench of 18 judges was elected by an Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the Court on 1 March 2003. The Court issued its first arrest warrants on 8 July 2005, and the first pre-trial hearings were held in 2006.
A further 40 states have signed but not ratified the Rome Statute; the law of treaties obliges these states to refrain from “acts which would defeat the object and purpose” of the treaty. In 2002, two of these states, the United States and Israel, "unsigned" the Rome Statute, indicating that they no longer intend to become states parties and, as such, they have no legal obligations arising from their signature of the statute.
Article 5 of the Rome Statute grants the Court jurisdiction over four groups of crimes, which it refers to as the “most serious crimes of concern to the international community as a whole”: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The statute defines each of these crimes except for aggression: it provides that the Court will not exercise its jurisdiction over the crime of aggression until such time as the states parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.
Many states wanted to add terrorism and drug trafficking to the list of crimes covered by the Rome Statute; however, the states were unable to agree on a definition for terrorism and it was decided not to include drug trafficking as this might overwhelm the Court's limited resources. India lobbied to have the use of nuclear weapons and other weapons of mass destruction included as war crimes but this move was also defeated. India has expressed concern that “the Statute of the ICC lays down, by clear implication, that the use of weapons of mass destruction is not a war crime. This is an extraordinary message to send to the international community.”
Some commentators have argued that the Rome Statute defines crimes too broadly or too vaguely. For example, China has argued that the definition of ‘war crimes’ goes beyond that accepted under customary international law.
A Review Conference is due to take place in the first half of 2010. Among other things, the conference will review the list of crimes contained in Article 5. The final resolution on adoption of the Rome Statute specifically recommended that terrorism and drug trafficking be reconsidered at this conference.
Article 20, paragraph 3, specifies that, if a person has already been tried by another court, the ICC cannot try them again for the same conduct unless the proceedings in the other court:
The Assembly meets in full session once a year in New York or The Hague, and may also hold special sessions where circumstances require. Sessions are open to observer states and non-governmental organisations.
The Assembly elects the judges and prosecutors, decides the Court's budget, adopts important texts (such as the Rules of Procedure and Evidence), and provides management oversight to the other organs of the Court. Article 46 of the Rome Statute allows the Assembly to remove from office a judge or prosecutor who "is found to have committed serious misconduct or a serious breach of his or her duties" or "is unable to exercise the functions required by this Statute".
The states parties cannot interfere with the judicial functions of the Court. Disputes concerning individual cases are settled by the Judicial Divisions.
The Presidency is responsible for the proper administration of the Court (apart from the Office of the Prosecutor). It comprises the President and the First and Second Vice-Presidents — three judges of the Court who are elected to the Presidency by their fellow judges for a maximum of two three-year terms. As of October 2008, the President is Philippe Kirsch, who was elected to a second term on 11 March 2006.
The Prosecutor or any person being investigated or prosecuted may request the disqualification of a judge from "any case in which his or her impartiality might reasonably be doubted on any ground". Any request for the disqualification of a judge from a particular case is decided by an absolute majority of the other judges. A judge may be removed from office if he or she "is found to have committed serious misconduct or a serious breach of his or her duties" or is unable to exercise his or her functions. The removal of a judge requires both a two-thirds majority of the other judges and a two-thirds majority of the states parties.
The Prosecutor may open an investigation under three circumstances:
Any person being investigated or prosecuted may request the disqualification of a prosecutor from any case "in which their impartiality might reasonably be doubted on any ground". Requests for the disqualification of prosecutors are decided by the Appeals Division. A prosecutor may be removed from office by an absolute majority of the states parties if he or she "is found to have committed serious misconduct or a serious breach of his or her duties" or is unable to exercise his or her functions. However, critics of the Court argue that there are “insufficient checks and balances on the authority of the ICC prosecutor and judges” and “insufficient protection against politicized prosecutions or other abuses”. Henry Kissinger says the checks and balances are so weak that the prosecutor “has virtually unlimited discretion in practice”.
As of October 2008, the Prosecutor is Luis Moreno-Ocampo of Argentina, who was elected by the Assembly of States Parties on 21 April 2003 for a term of nine years.
Some argue that the protections offered by the ICC are insufficient. According to the Heritage Foundation, “Americans who appear before the court would be denied such basic constitutional rights as trial by a jury of one's peers, protection from double jeopardy, and the right to confront one's accusers.” However, Human Rights Watch argues that “the ICC has one of the most extensive lists of due process guarantees ever written”, including “presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; right to be present at trial; right to have charges proved beyond a reasonable doubt; and protection against double jeopardy”. According to David Scheffer, who led the US delegation to the Rome Conference (and who voted against adoption of the treaty), “when we were negotiating the Rome treaty, we always kept very close tabs on, ‘Does this meet U.S. constitutional tests, the formation of this court and the due process rights that are accorded defendants?’ And we were very confident at the end of Rome that those due process rights, in fact, are protected, and that this treaty does meet a constitutional test.”
In order to ensure “equality of arms” between defence and prosecution teams, the ICC has established an independent Office of Public Counsel for the Defence (OPCD) to provide logistical support, advice and information to defendants and their counsel. The OPCD also helps to safeguard the rights of the accused during the initial stages of an investigation. However, Thomas Lubanga's defence team say they have been given a smaller budget than the Prosecutor and that evidence and witness statements have been slow to arrive.
Unlike the International Court of Justice, the ICC is legally and functionally independent from the United Nations. However, the Rome Statute grants certain powers to the United Nations Security Council. Article 13 allows the Security Council to refer to the Court situations that would not otherwise fall under the Court's jurisdiction (as it did in relation to the situation in Darfur, which the Court could not otherwise have prosecuted as Sudan is not a state party). Article 16 allows the Security Council to require the Court to defer from investigating a case for a period of 12 months. Such a deferral may be renewed indefinitely by the Security Council.
The Court cooperates with the UN in many different areas, including the exchange of information and logistical support. The Court reports to the UN each year on its activities, and some meetings of the Assembly of States Parties are held at UN facilities. The relationship between the Court and the UN is governed by a “Relationship Agreement between the International Criminal Court and the United Nations”.
It is sometimes argued that amnesties are necessary to allow the peaceful transfer of power from abusive regimes. By denying states the right to offer amnesty to human rights abusers, the International Criminal Court may make it more difficult to negotiate an end to conflict and a transition to democracy. For example, the outstanding arrest warrants for four leaders of the Lord's Resistance Army are regarded by some as an obstacle to ending the insurgency in Uganda. Czech politician Marek Benda argues that “the ICC as a deterrent will in our view only mean the worst dictators will try to retain power at all costs”. However, the United Nations and the International Committee of the Red Cross maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law.
The Court is financed by contributions from the states parties. The amount payable by each state party is determined using the same method as the United Nations: each state's contribution is based on the country’s capacity to pay, which reflects factors such as a national income and population. The maximum amount a single country can pay in any year is limited to 22% of the Court's budget; Japan paid this amount in 2008.
The ICC also maintains a liaison office in New York and field offices in places where it conducts its activities. As of 18 October 2007, the Court had field offices in Kampala, Kinshasa, Bunia, Abéché and Bangui.
The ICC's detention centre comprises twelve cells on the premises of the Scheveningen branch of the Penitentiary Institution Haaglanden, The Hague. Suspects held by the International Criminal Tribunal for the former Yugoslavia are held in the same prison and share some facilities, like the fitness room, but have no contact with suspects held by the ICC. The detention unit is close to the ICC's future headquarters in Alexanderkazerne.
As of October 2008, the detention centre houses five suspects: Thomas Lubanga, Germain Katanga, Mathieu Ngudjolo Chui, Jean-Pierre Bemba and former Liberian President Charles Taylor. Taylor is being tried under the mandate and auspices of the Special Court for Sierra Leone, but his trial is being held at the ICC's facilities in The Hague because of political and security concerns about holding the trial in Freetown.
In December 2003, the government of Uganda, a state party, referred to the Prosecutor the situation concerning the Lord’s Resistance Army in Northern Uganda. On 8 July 2005, the Court issued its first arrest warrants for the Lord's Resistance Army leader Joseph Kony, his deputy Vincent Otti, and LRA commanders Raska Lukwiya, Okot Odiambo, and Dominic Ongwen. Lukwiya was killed in battle on 12 August 2006, and Otti was killed in 2007, apparently by Kony. The LRA's leaders have repeatedly demanded immunity from ICC prosecution in return for an end to the insurgency. The government of Uganda says it is considering establishing a national criminal tribunal that meets international standards, thereby allowing the ICC warrants to be set aside.
On 17 March 2006, Thomas Lubanga, former leader of the Union of Congolese Patriots militia in Ituri, became the first person to be arrested under a warrant issued by the Court, for allegedly “conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities”. His trial was due to begin on 23 June 2008, but it was halted on 13 June when the Court ruled that the Prosecutor's refusal to disclose potentially exculpatory material had breached Lubanga's right to a fair trial. The Prosecutor had obtained the evidence from the United Nations and other sources on condition of confidentiality, but the judges ruled that the Prosecutor had incorrectly applied the relevant provision of the Rome Statute and, as a consequence, "the trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial".
Two more suspects, Germain Katanga and Mathieu Ngudjolo Chui, have also been surrendered to the Court by the Congolese authorities. Both men are charged with six counts of war crimes and three counts of crimes against humanity, relating to an attack on the village of Bogoro on 24 February 2003, in which at least 200 civilians were killed, survivors were imprisoned in a room filled with corpses, and women and girls were sexually enslaved. The charges against both men include murder, sexual slavery and using children under the age of fifteen to participate actively in hostilities.
On 10 February 2006, the Prosecutor published a letter responding to complaints he had received concerning the 2003 invasion of Iraq. He noted that "the International Criminal Court has a mandate to examine the conduct during the conflict, but not whether the decision to engage in armed conflict was legal", and that the Court's jurisdiction is limited to the actions of nationals of states parties. He concluded that there was a reasonable basis to believe that a limited number of war crimes had been committed in Iraq, but that the crimes allegedly committed by nationals of states parties did not appear to meet the required gravity threshold for an ICC investigation.