Home Legal Advice The Role and Jurisdiction of the International Criminal Court

The Role and Jurisdiction of the International Criminal Court


From the start of human civilization, sustaining peace and making certain safety has at all times been a problem for the human species. As there was no authority to compel obedience to the rule of engagement, battles and wars passed off incessantly destroying harmless lives and useful properties. Rwanda Genocide, the Holocaust, the Ukrainian Genocide are among the burning examples of such atrocities.  

The Convention on the Prevention and Punishment of the Crime of Genocide was adopted in 1948. At that point, the United Nations (UN) acknowledged the need of a everlasting worldwide courtroom to cope with the sorts of atrocities perpetrated within the Second World War [1]. But the establishment of Nuremberg and Tokyo tribunals buried the idea altogether. The Geneva Conventions of 1949 were enacted after the Second World War to grant protections to soldiers, sailors, prisoners of war, and civilians [2]. But it was not enough to address the totality of the violence.

Thus, the idea of creating a permanent criminal court re-emerged in the aftermath of the Cold War in the 1990s.  At last, the International Criminal Court (ICC) was established in The Hague, which was enacted in 1998 and came into force in 2002[3]. It was established to address the most serious crimes of concern involving the International community; with a global commitment to preserve peace and punish crimes against humanity.

It has the power to investigate, prosecute, arrest and punish crimes within its jurisdiction [4]. It only prosecutes individuals, not any groups or States. ICC operates on the principle of complementarity where it complements with the national legal frameworks of the states. When a state is unable to or is not willing to prosecute crimes for which ICC has the jurisdiction, only then it can prosecute. Crimes against humanity, war crimes, genocide, and crime of aggression fall within the jurisdiction of ICC.

On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by 160 States. This marks the foundation of the first treaty-based International Court. The Rome statute sets out the crimes that fall within the jurisdiction of ICC. It describes rules of procedure and mechanisms that States need to follow in order to cooperate with the ICC. State parties accept these rules and are part of the assembly of state parties. This assembly meets once a year to discuss and decide the general policies of the Court. It also reviews the activities of the Court and the working groups with other relevant issues.

To this day, over 120 nations are States Parties to the Rome Statute of the International Criminal Court. They come from Asia, Asia Pacific, Europe, and America while representing all the regions. The state parties provide with funding for the Court. Moreover, different states, International organizations, individuals, or other bodies of entities can voluntarily contribute to the ICC.  

The ICC enjoys a permanent autonomy in its functions, whereas the ad hoc tribunals (for the former Yugoslavia and Rwanda) were established within the framework of the United Nations. The ad hoc tribunals deal with specific situations and they only have a limited mandate and jurisdiction. Although there are misconceptions about ICC being operating within the purview of the United Nations, ICC is completely an independent body that does not need a special mandate from the UN. Also, it is different from the International Court of Justice which is a principle the judicial organ of the UN.

The ICC has jurisdiction over the ‘core crimes’ of international law namely, genocide, war crime, crime against humanity, and the crime of aggression. The jurisdiction of the ICC is conditional upon two factors. The first factor is the nationality of the person and the second one is the territory within which the crime is alleged to be taken place. The satisfaction of one of these two criteria is necessary to invoke the jurisdiction of the Court.

Jurisdiction can also be invoked if a referral is made by the Security Council against non-party states as provided in article 13(b) of the Rome statute. When the Security Council does not refer any issue as mandated by chapter VII of the UN charter, the question remains whether ICC can exercise its jurisdiction over individuals of non-party states alleged to have committed the crimes enumerated in article 5 of the Rome Statute.

Most recently the Uighur exiles filed a complaint to the International Criminal Court urging it to investigate Beijing for genocide and crimes against humanity [5]. It is the very first attempt to use international law to hold China accountable for its draconian crackdown on the Uighur Muslim minority. The complaint was filed for pursuing the repatriation of thousands of Uighurs through deportation from Cambodia and Tajikistan. Although it may take months for the Chief Prosecutor of ICC to issue a formal response to this filing, the case has the potential to bring about significant application of the ICC principles.   

Since its existence, the ICC has delivered a limited number of decisions. But each of these decisions has decided on important principles or questions of Law. In the case of The Prosecutor v. Mathiew Ngudjolo Chui[6], pursuant to Article 74 of the Statute the Court acquitted Mathiew due to lack of evidence and meticulous investigations. This judgment reflected Court’s unwillingness to convict the accused where there is reasonable doubt as to his commission of the crimes.

In the case of Prosecutor v. Lubanga (2012) the ICC gave a decision that established the principles and procedures to be applied to reparations.  The Court gave instructions to present a draft implementation plan for the procedure of collective reparations within a particular period of time.

In March 2016, Jean-Pierre Bemba, the former vice-president of the DRC, was convicted [14] to assign guilt for sexual and gender-based crimes which declared rape both as a war crime and crime against humanity. In the history of gender justice, this conviction gave birth to a proud moment. It was the first command responsibility conviction given by the ICC.

Over a short span of time, the ICC has proved that it can extend the arms of law across the whole world. Prior to the Rome Statute, this would have been described as a Utopian thought. Since its inception, this Court has been attempting to break down the vicious cycle of offering impunity for the worst kind of crimes [8]. It has rejected the notion that sexual violence is a natural consequence of armed conflict. It has targeted authorities for the actions of their subordinates. It has investigated into parts of the world where rule of law is still a far cry. It has urged its state parties to conform to its principles.

Today, despite the challenges the ICC and the International Criminal justice system is facing, there is a ray of hope that ICC will continue to punish the most inhumane crimes and thrive to establish peace and security throughout the world.



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