Now I hate to rain on anyone’s parade following the excellent news of the vote taking Palestine from being classified as a “non-member observer entity” to a “non-member observer state“. It’s very good news as it means that Palestine can sign treaties and join such bodies as the International Criminal Court (ICC). But perhaps some parade ground raining is in order before people make unwarranted assumptions and statements about what the court is and what it can and cannot do.
I said in a comment to “Edward Teller’s posting Historic Palestinian Recognition UN General Assembly Vote Coming: Live Feed | MyFDL that “Ultimately it [the Palestinian state] will be able to launch prosecutions in the ICC both against the Jewish state and against named officials” . That’s true, but there are considerable difficulties in the way of such a prosecution. I’ll address these as and when they arise. My present purpose is to give people some basic information about the International Criminal Court and suggest some reading material for those interested in learning more:
Rome Statute of the International Criminal Court
The International Criminal Court (hereafter ICC) is a judicial body established by the Rome Statute of the International Criminal Court. You will sometimes see this Statute referred to as the “International Criminal Court Statute” or more frequently as the “Rome Statute“.
The Rome Statute created a permanent Court with jurisdiction to try persons for the most serious crimes of international concern, including inter alia:
- Crimes against humanity
- War crimes
Where national legal systems are incapable or unwilling to do so.
Jurisdictional Scope of the International Criminal Court
- The Court has jurisdiction to investigate alleged crimes and initiate prosecutions in cases where:
- The State where the events took place is a Party to the Court.
- The State of nationality of the accused is a Party to the Court.
- When one or other of these States has given its consent to the Court investigating alleged crimes and initiating prosecutions.
- The Court also has jurisdiction in respect of situations referred to it by the United Nations Security Council.
Limits to Jurisdictional Scope of the International Criminal Court
- The court does not have retrospective jurisdiction. That is it may not either investigate or prosecute acts or situations that took place before the coming into force of the treaty.
- Referral to International Criminal Court by the United Nations Security Council is subject to veto by the permanent members of the United Nations Security Council. Where such a veto has been exercised the court may not continue preparatory investigations or procedures carried out in anticipation of such a referral.
You should note that three countries:
- United States of America
Have specifically denied that the court has jurisdiction over alleged crimes carried out by them or their agents either on their own territory or extraterritorially.
Cooperation with the ICC
The Rome Statute commits States party to The Statute to cooperate with the ICC in its investigations and any resulting prosecutions of crimes where it has jurisdiction. States Parties may be required by the ICC to inter alia:
- Arrest and transfer suspects to the Court’s custody.
- Give effect to fines and forfeitures ordered by the Court.
Power to Impose Sentences and Grant Reparations
The Statute grants the ICC to power to:
- Impose fines on Parties convicted by The Court.
- Impose custodial sentences on Parties convicted by The Court.
- Grant reparations to victims of criminal acts committed by parties subject to the ICC’s jurisdiction.
Limitations to Power to Impose Sentences and Grant Reparations
- The court may not impose the death penalty on Parties convicted by The Court.
Seat of The Court
- The seat of the Court is in The Hague.
Composition of The Court
The ICC comprises eighteen judges, an independent Prosecutor, and support services. The judges and the Prosecutor are elected by the States Parties to the Court.
- States Parties to the Court are required to pay an assessed contribution to defray the expenses of The Court.
- States Parties to the Court are required to pay costs which arise on a contingent basis from their fulfilling their duty to cooperate with the Court.
Further Reading and Resources
- Lawrence Moss’ superb “The UN Security Council and the International Criminal Court Towards a More Principled Relationship” is available at the Friedrich Ebert Stiftung’s site as a PDF file:The UN Security Council and the International Criminal Court Towards a More Principled Relationship [PDF].
- The BBC Q&A about the ICC is here – BBC News – Q&A: International Criminal Court
Basic Legal Texts
If you don’t have access to a legal database you can still access The Statute and the Statutory Instruments at the links below:
- Basic Legal Texts
- The Regulations of the Court
- The Rules of Procedure and Evidence
- The Elements of Crimes
- The Regulations of the Court
- The Regulations of the Office of the Prosecutor
- The Regulations of the Registry
- The Code of Professional Conduct for counsel
- The Code of Judicial Ethics
- Staff rules of the International Criminal Court
- The Financial Regulations and Rules
- Agreement between the International Criminal Court and the United Nations
- The Headquarters Agreement with the Host State
- ICC Legal Tools
A very short list of links containing material generally available rather than legal databases and other sites specific to lawyers. The Wikipedia articles aren’t bad and reading them will certainly give you plenty of material for intelligent googling.
- UNHCR | Refworld | Rome Statute of the International Criminal Court (last amended 2010)
- International Criminal Court – Wikipedia
- Rome Statute of the International Criminal Court – Wikipedia