The International Criminal Court
The International Criminal Court, The Hague
The Rome Statute of the International Criminal Court (ICC) was adopted in Rome on 17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, and entered into force on 1 July 2002.
121 states have already ratified the Rome Statute, including all EU member states. The largest regional group among the States Parties is the African group. Information on the current ratification status and on the work of the ICC can be found on the websites of the ICC.
The ICC is a permanent criminal court with its seat in The Hague in the Netherlands. Institutionally, it operates there alongside the UN International Court of Justice, which is responsible for resolving international disputes. The ICC is not part of the United Nations, but rather an independent subject of international law and an independent international organization.
The ICC does not replace countries’ national criminal jurisdiction, nor is it an appellate court of last instance for national criminal cases. Rather, the ICC complements national jurisdiction in prosecuting crimes against international law, the precedence of which is anchored in numerous parts of the Statute. Under the Statute, the most important principles for the work of the ICC are:
- the Court can only prosecute if states are unwilling or unable genuinely to pursue a specific serious criminal offence (principle of complementarity, Article 17);
- precondition to the exercise of the Court's jurisdiction is that either the state on whose territory the crime was committed or the state of which the person accused of the crime is a State Party to the Rome Statute or the state has accepted the jurisdiction of the Court;
- the Court may act either on the initiative of a contracting party, following a referral by the United Nations Security Council or on the Prosecutor’s own initiative ("proprio motu");
- jurisdiction is restricted to four particularly serious crimes which affect the international community as a whole: genocide, crimes against humanity, war crimes and, in future, crimes of aggression. The crime of aggression was defined by consensus among the States Parties at the first Review Conference on the Rome Statute held in Kampala in June 2010. The conditions for exercising jurisdiction were laid down at the same time. This will enter into force from 2017 at the earliest.
- jurisdiction extends only to crimes committed after the Statute’s entry into force on 1 July 2002.
The Statute is subdivided into 13 parts and 128 articles. It defines the individual crimes, clarifies the jurisdiction, establishment, structure and financing of the Court, as well as the general principles of criminal law, the sentences, the procedure, the execution of sentences and cooperation in criminal matters. Particular emphasis is put on the respect of criminal law principles (no ambiguity, no double jeopardy, no retroactive legislation, rights of the accused). The death penalty may not be imposed.
The Statute is an international treaty in which international criminal law has been uniformly codified and as such helps to consolidate the rule of law in international relations. It is a monumental achievement in the field of international legal policy that individuals who have seriously transgressed their obligations to the international community as a whole may be held responsible by an independent international judicial institution. The ICC thus symbolizes jurisdiction exercised on behalf of the community of nations.
The Court is currently investigating and conducting criminal proceedings with regard to seven situations: Four States Parties are affected: the Democratic Republic of the Congo, the Central African Republic and Uganda and Kenya. The situation in the Sudan/Darfur and Libya were referred to the Court by the UN Security Council. The Republic of Côte d'Ivoire, though not being a State Party, accepted the exercise of jurisdiction by the Court. On 14 March 2012 in the Court’s first verdict the former militia leader Thomas Lubanga was found guilty for enlisting and conscripting child soldiers and was sentenced on 10 July 2012 to 14 years imprisonment.
History of the idea of an International Criminal Court
The call to establish an international criminal court was first heard in the last century. Against the background of the atrocities of the Franco-Prussian war of 1870-71, the Swiss national Gustave Moynier voiced the first formal proposal to set up an international criminal court as early as 1872. But in the era of nation states jealously guarding their sovereignty, this proposal had little chance of being implemented. However, in the aftermath of the crimes committed during the Second World War and following the work of the international military courts in Nuremberg and Tokyo, this idea was revived in the United Nations soon after its founding. Article VI of the Convention on the Prevention and Punishment of the Crime of Genocide (1948) provided for an international criminal court, but this never materialized. In the same year, the United Nations General Assembly charged the International Law Commission with such a project. The ILC’s first meeting in 1949 ascertained that the establishment of an international criminal court was both a desirable and a viable prospect. Further efforts on the part of the United Nations faltered however in the face of the tensions and rivalries of the Cold War.
It was only in 1990, more than 40 years after the initial consultations, that the General Assembly renewed its mandate to the International Law Commission to review the international criminal court project. The massive breaches of humanitarian international law in the former Yugoslavia and the genocide in Rwanda prompted the United Nations Security Council to establish, as enforcement measures under Chapter VII of the Charter of the United Nations, the two ad hoc criminal tribunals for the former Yugoslavia (Resolution 827/1993) and Rwanda (Resolution 955/1994). This also gave new momentum to the project to create a permanent international criminal court.
On 15 December 1997, the United Nations General Assembly decided with Resolution 52/160 to hold a Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome from 15 June to 17 July 1998. The conference was mandated to negotiate and adopt a draft statute, a task which was successfully completed with the adoption of the Rome Statute on 17 July 1998. The Rome Statute entered into force on 1 July 2002.
The judges were sworn in on 11 March 2003 at a ceremony in The Hague attended by Queen Beatrix of the Netherlands and UN Secretary-General Kofi Annan. Philippe Kirsch from Canada became the first President of the Court. He was then succeeded by Sang-hyun Song from Korea in 2009 who was re-elected for a second three years term in March 2012. On 15 June 2012 the first Prosecutor of the ICC, the Argentine Luís Moreno Ocampo, was suceeded by the Gambian Fatou Bensouda.
Role of the Federal Republic of Germany
The Federal Republic of Germany played an active role in drawing up the Statute. Together with a group of “like-minded” countries it has worked assiduously for an effective, functional, independent and thus credible International Criminal Court.
The German law enacting the Statute received the consent of the Bundestag and Bundesrat in the autumn of 2000 and, once Article 16 of the Basic Law had been amended to allow German nationals to be handed over to the court, was passed on 4 December 2000 and published in the Federal Law Gazette. On 11 December 2000 the instrument of ratification was deposited in New York by the Permanent Representative of the Federal Republic of Germany to the United Nations. The Federal Republic of Germany is thus now bound by the Statute. Together with Japan, Germany is the largest contributor towards the ICC and is also a contributor of voluntary payments to the Court’s Trust Fund for Victims and Witness Protection Programme.
In parallel thereto, work began on the bill of a German law implementing the Rome Statute which governs the details of cooperation between the German courts and authorities and the International Criminal Court, as well as on a draft Code of Crimes against International Law that transposes the crimes defined in the Statute into German criminal law. Both bills passed through Parliament in the spring of 2002 and entered into force on 1 July 2002.
Translations of the Code of Crimes against International Law (CCAIL) in Arabic, Chinese, English, French, Greek, Russian, Portuguese and Spanish are available on the website of the Max Planck Institute for Foreign and International Criminal Law, Freiburg. In addition, translations of the law governing cooperation between the German courts and the ICC can be found on Göttingen University’s website.
The German Government will continue to do its utmost to ensure that the ICC can work as effectively as possible and that it receives broad support from the international community. The German Government is convinced that the Court plays an effective role in the quest for greater justice and in the fight against the impunity with which the most serious crimes affecting the international community as a whole can be committed and that it has increasingly gained universal importance and acceptance as a world criminal court.
Last updated 09.03.2011