8.3 International Criminal Law and the ICC
3 min read•july 31, 2024
International criminal law tackles serious global crimes, holding individuals accountable for atrocities. It blends international and domestic law, aiming to end impunity and provide justice for victims. The system relies on cooperation between nations and international bodies for enforcement.
The International Criminal Court, established in 1998, is a key player in this field. It has jurisdiction over , , , and . However, the ICC faces challenges like limited resources, non-cooperation from some states, and accusations of bias in case selection.
International Criminal Law
Principles and Foundations
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- International criminal law prohibits and punishes certain international crimes while establishing for those offenses
- (nullum crimen sine lege) mandates crimes and punishments be defined by law before an act occurs
- Individual criminal responsibility holds individuals accountable for international crimes, not just states
- allows ICC jurisdiction only when national courts are unwilling or unable to prosecute
- prohibits prosecution of crimes not criminalized when committed
- permits any state to prosecute certain international crimes regardless of location or nationality (piracy, war crimes)
Key Concepts and Applications
- Designed to address most serious crimes of international concern (genocide, crimes against humanity)
- Incorporates elements of both international law and domestic criminal law
- Aims to end impunity for perpetrators of atrocities and provide justice for victims
- Applies to individuals rather than states, focusing on personal culpability
- Relies on cooperation between states and international organizations for enforcement
- Evolves through treaties, customary international law, and jurisprudence of international tribunals
Jurisdiction of the ICC
Establishment and Structure
- ICC established by in 1998 as permanent international court
- Composed of four main organs: Presidency, Judicial Divisions, Office of the Prosecutor, Registry
- Funding primarily from member states with additional voluntary contributions
- Operates independently from United Nations but maintains cooperative relationship
- Located in , Netherlands, with field offices in situation countries
Jurisdictional Scope and Limitations
- Jurisdiction over crimes committed on territory of member states or by their nationals
- Can address situations referred by (Sudan, Libya)
- Complementarity principle limits intervention to cases where national courts are unwilling or unable to prosecute
- Temporal jurisdiction limited to crimes committed after July 1, 2002
- investigations initiated by Prosecutor with Pre-Trial Chamber approval
- Victim participation allowed in proceedings with potential eligibility for
Crimes under ICC Jurisdiction
Core International Crimes
- Genocide involves acts committed to destroy national, ethnical, racial, or religious groups ()
- Crimes against humanity encompass widespread or systematic attacks against civilian populations ( in South Africa)
- War crimes constitute serious violations of laws and customs of war (use of in conflicts)
- Crime of aggression involves planning or executing acts of aggression by leaders
Elements and Applications
- Genocide requires specific intent to destroy protected groups in whole or part
- Crimes against humanity include murder, extermination, enslavement, deportation, torture, rape
- War crimes cover grave breaches of and other violations of international humanitarian law
- Aggression defined as use of armed force by state against sovereignty of another state
- ICC focuses on most serious crimes of international concern
- Prosecution requires meeting specific legal elements for each crime category
Challenges to the ICC
Operational and Practical Obstacles
- Lack of own enforcement mechanism relies on state cooperation for arrests and evidence collection
- Limited resources and budget constraints affect ability to conduct multiple investigations
- Lengthy proceedings impact timely justice delivery ( took 6 years from arrest to verdict)
- Challenges in applying complementarity principle and assessing national court capabilities
- Difficulties in securing witness protection and gathering evidence in conflict zones
Political and Diplomatic Hurdles
- Non-cooperation from some member states and non-member states hinders effectiveness
- Criticism of focus on African situations leads to accusations of bias (9 out of 10 initial investigations in Africa)
- Non-participation of major powers (United States, China, Russia) limits Court's reach
- UN Security Council deferrals can postpone investigations or prosecutions
- Balancing justice with peace negotiations in ongoing conflicts (Uganda's )
- Challenges to state sovereignty and concerns about politically motivated prosecutions
Key Terms to Review (23)
Aggression: Aggression refers to the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state. This concept is crucial in international law as it defines unlawful behavior that can lead to accountability and prosecution under international criminal law. It highlights the need for a legal framework that addresses not only acts of war but also the unlawful initiation of conflicts, distinguishing between legitimate self-defense and unjustified military actions.
Apartheid: Apartheid was a system of institutionalized racial segregation and discrimination enforced by the South African government from 1948 until the early 1990s. This policy created a stark divide between the white minority and non-white majority, severely restricting the rights and freedoms of black South Africans and other racial groups. Apartheid is often discussed in the context of international criminal law as a crime against humanity due to its systematic oppression and violation of human rights.
Child soldiers: Child soldiers are individuals under the age of 18 who are recruited or used by armed forces or groups in any capacity, including as combatants, cooks, messengers, or spies. This practice is a grave violation of human rights and international humanitarian law, with significant implications for the victims and the broader context of armed conflict and international criminal law.
Complementarity: Complementarity is a principle in international criminal law that establishes the relationship between national legal systems and the International Criminal Court (ICC). It asserts that the ICC can only prosecute cases when national jurisdictions are unwilling or unable to do so, ensuring that states retain primary responsibility for investigating and prosecuting serious crimes like genocide, war crimes, and crimes against humanity.
Crimes against humanity: Crimes against humanity refer to a category of serious offenses that include acts such as murder, extermination, enslavement, and torture, committed as part of a widespread or systematic attack directed against any civilian population. This term connects to broader legal frameworks that hold individuals accountable for such acts, reflecting a collective commitment to prevent and punish egregious violations of human rights on an international level.
Fatou Bensouda: Fatou Bensouda is a Gambian lawyer who served as the Chief Prosecutor of the International Criminal Court (ICC) from 2012 to 2021. She is notable for being the first woman and the first African to hold this position, leading efforts to prosecute individuals for crimes such as genocide, war crimes, and crimes against humanity, reinforcing the role of international law in promoting justice globally.
Geneva Conventions: The Geneva Conventions are a series of international treaties formulated to protect individuals who are not participating in hostilities, including civilians and those who are wounded or shipwrecked during armed conflicts. These treaties establish standards for humanitarian treatment and aim to limit the effects of armed conflict by protecting those who are not part of the fighting and regulating the conduct of combatants.
Genocide: Genocide is the intentional act to destroy, in whole or in part, a national, ethnic, racial, or religious group. This definition highlights the targeted nature of such violence and connects it to various international frameworks that seek to prevent and punish this crime, emphasizing the responsibilities of states and international organizations to protect vulnerable populations.
Individual criminal responsibility: Individual criminal responsibility refers to the legal principle that individuals can be held accountable for their actions in committing crimes, particularly in the context of international law. This principle is essential for addressing serious offenses like war crimes, genocide, and crimes against humanity, ensuring that individuals—not just states—can be prosecuted for such acts. It emphasizes that people cannot evade responsibility by claiming they were following orders or acting on behalf of a state.
International Criminal Court (ICC): The International Criminal Court (ICC) is a permanent tribunal established to prosecute individuals for international crimes such as genocide, war crimes, and crimes against humanity. It was created by the Rome Statute in 1998 and aims to promote accountability and deter future atrocities by holding perpetrators responsible, thus reinforcing international law and human rights.
Lord's Resistance Army: The Lord's Resistance Army (LRA) is a militant group originating from Uganda, known for its brutal tactics and use of child soldiers. The group was formed in the late 1980s by Joseph Kony and aims to establish a theocratic state based on a twisted interpretation of the Ten Commandments. The LRA's activities have raised significant concerns in the context of international criminal law and its interactions with the International Criminal Court (ICC), as it has been accused of committing widespread human rights abuses and war crimes.
Lubanga Case: The Lubanga Case refers to the landmark trial of Thomas Lubanga Dyilo, a Congolese warlord who was the first person to be convicted by the International Criminal Court (ICC) in 2012. This case highlighted the ICC's mandate to prosecute individuals for war crimes, particularly focusing on the recruitment and use of child soldiers in armed conflicts, which raises critical issues in international criminal law.
Luis Moreno-Ocampo: Luis Moreno-Ocampo is an Argentine lawyer who served as the first Chief Prosecutor of the International Criminal Court (ICC) from 2003 to 2012. His tenure was marked by significant cases aimed at addressing war crimes, genocide, and crimes against humanity, reinforcing the ICC's role in international criminal law and its pursuit of justice for victims worldwide.
Non-retroactivity: Non-retroactivity is a legal principle that prohibits the application of new laws or legal standards to actions that occurred before the law was enacted. This concept is crucial in ensuring that individuals are not held accountable for actions that were not considered criminal at the time they were committed, especially in the context of international criminal law and the International Criminal Court (ICC). It upholds the fairness and integrity of the legal system by providing individuals with a sense of security regarding their past conduct.
Principle of legality: The principle of legality is a fundamental legal doctrine which asserts that a person cannot be prosecuted for an act that was not clearly defined as a crime at the time it was committed. This principle ensures that laws are not applied retroactively and protects individuals from arbitrary punishment, thus promoting fairness and justice in the legal system. In the context of international criminal law, especially regarding the International Criminal Court (ICC), this principle plays a crucial role in determining accountability for crimes such as genocide, war crimes, and crimes against humanity.
Proprio motu: Proprio motu is a Latin term meaning 'on its own motion,' and it refers to the ability of a judicial body, particularly the International Criminal Court (ICC), to initiate investigations or prosecutions without the need for a referral from a member state or external authority. This principle is significant because it empowers the ICC to act independently in addressing serious crimes like genocide and war crimes, ensuring that justice can be pursued even when national authorities fail to do so.
Reparations: Reparations refer to the compensation or restitution provided to victims of human rights violations, war crimes, or other injustices. This can take various forms, including financial payments, public apologies, and measures to restore dignity and rights. The importance of reparations is highlighted in discussions about justice and accountability, especially concerning the impact of state actions on individuals and communities.
Rome Statute: The Rome Statute is the treaty that established the International Criminal Court (ICC) in 2002, providing a framework for prosecuting individuals for serious crimes such as genocide, war crimes, and crimes against humanity. It serves as a cornerstone of international criminal law, outlining the court's jurisdiction, operational procedures, and principles of justice to hold perpetrators accountable and promote global legal standards.
Rwandan Genocide: The Rwandan Genocide was a mass slaughter of the Tutsi ethnic minority by the Hutu majority government in Rwanda that took place over a period of approximately 100 days in 1994, resulting in the deaths of an estimated 800,000 people. This tragic event highlights the failure of international intervention and the need for stronger legal frameworks to prevent and punish such atrocities, connecting deeply with humanitarian laws and the principles of genocide.
The Hague: The Hague is a city in the Netherlands known as the legal capital of the world, hosting many international organizations and courts, including the International Criminal Court (ICC). It serves as a pivotal location for addressing issues of international law and justice, emphasizing accountability for crimes such as genocide, war crimes, and crimes against humanity.
UN Security Council: The UN Security Council is one of the six main organs of the United Nations, responsible for maintaining international peace and security. It has the authority to impose sanctions, authorize military action, and establish peacekeeping missions. Its decisions are binding on all member states, making it a powerful entity in the enforcement of international law, particularly in the context of addressing grave violations such as genocide and war crimes.
Universal jurisdiction: Universal jurisdiction is a legal principle that allows a national court to prosecute individuals for serious crimes, such as genocide, war crimes, and crimes against humanity, regardless of where the crime was committed or the nationality of the accused or the victims. This principle aims to ensure accountability for egregious violations of human rights and seeks to prevent impunity for perpetrators by enabling states to take action against them, even if they are not connected to the crime by nationality or location.
War crimes: War crimes are serious violations of the laws and customs of war that occur during armed conflicts. They include acts such as intentionally killing civilians, torturing prisoners of war, and using prohibited weapons. Understanding these crimes is crucial for upholding international humanitarian law, ensuring accountability through international criminal law, and addressing atrocities that may fall under the definition of genocide or trigger the Responsibility to Protect doctrine.