International Criminal Court
Background: The International Criminal Court (ICC) is the first permanent, international criminal court. The beginnings of an international criminal court appeared at the end of World War II with the establishment of the International Military Tribunal at Nuremberg (to address war crimes committed in Europe) and the International Tribunal for the Far-East (commonly called the “TokyoTrials”, to address war crimes in Japan). Crimes against peace, war crimes and crimes against humanity were thus brought before these Tribunals.
Following on from those courts, the United Nations attempted to establish international criminal justice and in 1948 entrusted the International Law Commission (ILC) with the task of examining the creation of an international criminal court. Disagreement over the definition of the crime of aggression hindered talks at the United Nations General Assembly against the tensions of the Cold War.
The creation by the United Nations Security Council of two ad hoc international criminal tribunals in 1993 and 1994, to try the perpetrators of genocide, crimes against humanity and war crimes committed in ex-Yugoslavia and Rwanda gave renewed impetus to the idea of establishing a permanent court.
On the basis of a draft statute prepared by the ILC in 1994, intergovernmental negotiations began in 1995 until the United Nations diplomatic conference for the establishment of an international criminal court (ICC) held in Rome, in July 1998. The Statute of the ICC was finally adopted on 17 July 1998 by a vast majority (120 States to 7). It came into force on 1 July 2002 after being ratified by 60 States.
114 States are currently parties to the Rome Statute including France which signed the statute on 18 July 1998 and ratified it on 9 June 2000. Our country is also one of the main contributors to the Court’s budget.
Seat: The Court has its seat in The Hague, in the Netherlands
2516 AB, The Hague
Tel. + 31 (0)70 515 8515
Fax. +31 (0)70 515 8555
Structure: The Court consists of four organs: the Presidency (the President is Judge Sang-Hyun Song - Korea), the Judicial Divisions, the Office of the Prosecutor (the Prosecutor is Luis Moreno-Ocampo - Argentina) and the Registry (the Registrar is MsSilvana Arbia - Italy).
The Judicial Divisions, which total 18 Judges (including the President) elected by the Assembly of State Parties to the Court are organized into three sections: pre-trial, trial and appeal.
Jurisdiction and admissibility: The Court’s absolute jurisdiction is limited to the most serious crimes of concern to the international community as a whole, i.e. genocide, crimes against humanity and war crimes. The Review Conference of the Rome Statute which took place in Kampala in June 2010 adopted a definition of the crime of aggression and the methods of referral to the Court in respect of that crime. Subject to another decision by the Assembly of State Parties, the Court will be able to exercise its jurisdiction in respect of the crime of aggression starting on 1 January 2017.
The ICC’s temporal jurisdiction is limited to crimes committed on or after 1 July 2002, the date on which the Rome Statute came into force.
The Court does not have universal jurisdiction. Except where the situation has been referred to the Court by the Security Council acting under Chapter VII of the United Nations Charter, the ICC may only exercise jurisdiction in respect of nationals of or crimes committed on the territory of State Parties or States that have recognized its jurisdiction in an ad hoc declaration.
The jurisdiction of the Court is governed by the principle of complementarity. It does not release the States from their primary responsibility and is only involved where the States have been unable or unwilling to investigate and prosecute crimes within their jurisdiction. A case will not be admissible if it is not sufficiently serious to justify further action by the Court.
Cases may be referred to the Court by a State Party, by the Security Council, or by the Prosecutor proprio motu who, if he receives information (or “communications”) from certain individuals or organisations, may be authorized by the pre-trial division of the Court to initiate an investigation.
While the Court is independent, it is part of the international crisis prevention and management system, owing to the special links it has with the United Nations, asserted in several of the Statute’s provisions. The Security Council may therefore ask the Prosecutor to initiate an investigation or the Court to suspend any investigation or prosecution relating to given events for a renewable twelve-month period.
Procedure: The procedure before the ICC is a compromise between the Common Law system (adversary proceedings, predominant in Anglo-Saxon law) and the continental or "Romano-Germanic" system of law. The influence of Romano-Germanic law is mainly reflected in the establishment of the "pre-trial division" and the right granted to victims to take part in proceedings and to possibly obtain reparation for their suffering.
Obligations of States: The Rome Statute sets forth a general obligation for State Parties to cooperate. The latter must adapt their domestic legislation to be able to respond to requests for cooperation made by the Court. Such requests include furnishing evidence, conducting investigations on the national territory, applying provisional measures ordered by the Court and arresting and surrendering accused persons.
By adopting law no.2002-268 of 26 February 2002 on cooperation with the International Criminal Court, France became fully compliant with the obligations arising under the Rome Statute, even before it entered into force. The provisions were completed by law no.2010-930 of 9 August 2010 adapting penal law to the establishment of the ICC.
Thus, since 2002, under Articles 627-4 to 627-15 of the French code of criminal procedure (Code de procédure pénale) authorising the arrest and surrender to the International Criminal Court of perpetrators of crimes against humanity and war crimes that it cannot try owing to the territoriality of events or the perpetrator or victim’s nationality, France may denounce such events to the ICC and arrest perpetrators who have taken refuge in the country to surrender them to the Court. Furthermore, under the law of 9 August 2010, France may try such criminals itself, when their usual place of residence is on the French territory.
Situations and cases: 5 situations are currently referred to the ICC: on referral from the States in question concerning the Democratic Republic of Congo, Uganda and the Central African Republic; on referral from the Security Council concerning the situation in Darfur, Sudan (Resolution 1593 of 31 March 2005); at the Prosecutor’s initiative concerning the Republic of Kenya.
Updated on : 07.01.01