Key Provisions of the Rome Statute of the International Criminal Court
December 3, 2015
According to the ICC’s web site, the ICC does not replace national criminal justice systems; rather, it complements them. It is a court of last resort. It can investigate and, where warranted, prosecute and try individuals only if the State concerned does not, cannot or is unwilling genuinely to do so. This is known as the principle of complementarity, under which states retain primary responsibility for trying the perpetrators of the most serious of crimes.
In all of its activities, the ICC is intended to observe the highest standards of fairness and due process. Judges are elected from the world’s main regions and legal systems. The seat of the ICC is in The Hague in the Netherlands. The Rome Statute provides that the ICC may sit elsewhere whenever the judges consider it desirable. The ICC has also set up offices in the areas where it is conducting investigations.
The International Criminal Court is to be distinguished from the International Court of Justice, also located in The Hague, which adjudicates disputes between states.
The mandate of the ICC is to try individuals, and to hold such persons accountable for the most serious crimes of concern to the international community as a whole, namely the crime of genocide, war crimes, crimes against humanity, and also the crime of aggression, when the conditions for the exercise of the Court’s jurisdiction over the latter are fulfilled. The Court has jurisdiction over these crimes when committed in the course of internal armed conflict, as well as conflicts between states. The Rome Statute defines these crimes as follows:
“Genocide” (see Article six of the Rome Statute) means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group:
• killing members of the group;
• causing serious bodily or mental harm to members of the group;
• deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
• imposing measures intended to prevent births within the group;
• forcibly transferring children of the group to another group.
“Crimes against humanity” (see Article seven of the Rome Statute) include any of the following acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
• deportation or forcible transfer of population;
• rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
• persecution against an identifiable group on political, racial, national, ethnic, cultural, religious or gender grounds;
• enforced disappearance of persons;
• the crime of apartheid;
• other inhumane acts of a similar character intentionally causing great suffering or serious bodily or mental injury.
“War crimes” (see Article eight of the Rome Statute) include grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts “not of an international character” listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale. These prohibited acts include:
• mutilation, cruel treatment and torture;
• taking of hostages;
• intentionally directing attacks against the civilian population;
• intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals;
• rape, sexual slavery, forced pregnancy or any other form of sexual violence;
• conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities (Article 8); and,
The definition of the “Crime of aggression,” as adopted by the Assembly of States Parties during the Review Conference of the Rome Statute held in Kampala Uganda 31 June to 11 May 2010, means the planning, preparation, initiation or execution of an act of using armed force by a State against the sovereignty, territorial integrity or political independence of another State. The act of aggression includes, among other things, invasion, military occupation, and annexation by the use of force, blockade of the ports or coasts, if it is considered being, by its character, gravity and scale, a manifest violation of the Charter of the United Nations. The perpetrator of the act of aggression is a person who is in a position effectively to exercise control over or to direct the political or military action of a State.
The ICC may exercise jurisdiction over the crime of aggression, subject to a decision to be taken after 1 January 2017 by a two-thirds majority of States Parties and subject to the ratification of the amendment concerning this crime by at least 30 States Parties (see Article 8 bis of the Rome Statute).
The ICC may exercise jurisdiction over these crimes only if they were committed on the territory of a State Party to the Rome Statute, or a state that has accepted the ICC’s jurisdiction, or by one of its nationals. These conditions, however, do not apply if a situation is referred to the Prosecutor by the United Nations Security Council, whose resolutions are binding on all United Nations member states.
The Rome Statute addresses Establishment of the Court (Part 1); Jurisdiction, Admissibility and Applicable Law (Part 2); General Principles of Criminal Law (Part 3); Composition and Administration of the Court (Part 4); Investigation and Prosecution (Part 5); The Trial (Part 6); Penalties (Part 7); Appeal and Revision (Part 8); International Cooperation and Judicial Assistance (Part 9); Enforcement (Part 10); Assembly of States Parties (Part 11); Financing (Part 12); and Final Clauses (Part 13).
The ICC is comprised of The Presidency (Article 38), Chambers (Article 39), The Office of the Prosecutor (Article 42), and The Registry (Article 43).
The ICC is not an institution of the United Nations but an independent institution. On 4 October 2004, the ICC and the United Nations signed an agreement governing their institutional relationship.
Any State Party to the Rome Statute can request the Prosecutor to carry out an investigation. A State not party to the Statute can also accept the jurisdiction of the ICC with respect to crimes committed on its territory or by one of its nationals, and request the Prosecutor to carry out an investigation. The United Nations Security Council may also refer a situation to the Court. Additionally, if the Office of the Prosecutor receives reliable information about crimes involving nationals of a State Party or of a State which has accepted the jurisdiction of the ICC, or about crimes committed in the territory of such a State, and concludes that there is a reasonable basis to proceed with an investigation, the Prosecutor may do so. Such information can be provided by individuals, intergovernmental or non-governmental organizations, or any other reliable sources. The Prosecutor must, however, obtain the permission of the judges of the Pre-Trial Chamber before initiating an investigation under such circumstances.
The ICC does not bring to justice every person suspected of committing crimes of concern to the international community. The policy of the Office of the Prosecutor is to focus its investigations and prosecutions on those who, having regard to the evidence gathered, bear the greatest responsibility for such crimes.
The crimes within the jurisdiction of the ICC are the gravest crimes known to humanity and as provided by Article 29 of the Rome Statute, they shall not be subject to any statute of limitations. Warrants of arrest are lifetime orders and therefore individuals still at large can expect, sooner or later, to face the ICC.
Information on current cases and situations before the Court can be found at the Court’s website.
Individuals awaiting trial and being tried before the ICC are held at the ICC Detention Centre at The Hague. The ICC Detention Centre operates in conformity with the highest international human rights standards for the treatment of detainees, such as the United Nations Standard Minimum Rules.
The ICC Trial Judges may impose a prison sentence, to which may be added a fine or forfeiture of the proceeds, property and assets derived directly or indirectly from the crime committed. The ICC cannot impose a death sentence. The maximum sentence is 30 years. However, in extreme cases, the ICC may impose a term of life imprisonment. Persons convicted of crimes under the jurisdiction of the ICC do not serve their sentence at the ICC Detention Centre in The Hague as the facility is not designed for long-term imprisonment. Convicted persons are transferred to a prison outside The Netherlands, in a State designated by the ICC from a list of States which have indicated their willingness to allow convicted persons to serve their sentences there.
The Rome Statute created two independently funded institutions: the ICC itself and the Trust Fund for Victims. While it is impossible to fully undo the harm caused by genocide, war crimes, crimes against humanity and the crime of aggression, it is possible to help survivors, in particular, the most vulnerable among them, rebuild their lives and regain their dignity and status as fully-functioning members of their societies.
The Trust Fund for Victims advocates for victims and mobilizes individuals, institutions with resources, and the goodwill of those in power for the benefit of victims and their communities. It funds or sets up innovative projects to meet victims’ physical, material, or psychological needs. It may also directly undertake activities as and when requested by the ICC. The Trust Fund for Victims can act for the benefit of victims of crimes, regardless of whether there is a conviction by the ICC. It cooperates with the ICC to avoid any interference with ongoing legal proceedings.