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
- Genocide
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:
- Israel,
- Sudan
- 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.
Costs
- 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.
mfi
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
Reference Material
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
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38 Comments

What a delightful primer for those who know little – me – or nothing – most Americans or others – about the ICC.
I read a long article about the ICC in the NYRB, back when the US was backing away from it, and my eyes glazed over.
mfi’s guide here is better, so resist any urge not to click on the links, because we need to know more about this court and its importance to maintaining sanity when it comes to crimes committed by individual agents of state terrorism, or by independent actors who see themselves as representing some sort of political or national entity or force.
Thanks for the keeper, Mark. Highly recommended.
Thanks Philip. It’s an important topic about which there’s a lot of misinformation, misunderstanding, and downright mendacity. I wonder if the article you read was Henry Kissinger’s The Pitfalls of Universal Jurisdiction [PDF]. Even if wasn’t Kissinger’s article is worth reading because he advances many of the arguments and falsehoods that ICC opponents routinely use. Kissinger’s article was brilliantly countered by Benjamin B. Ferencz a prosecutor who served at Nurmeburge. Ferencz’s rebuttal can be found on his site at the following URI: Benjamin Ferencz – Articles & Lectures
mfi
Awesome compilation, mfi…! Mahalo…!
NP :-)
mfi
Thanks, Mark. Rec’d.
And then there’s the Hague Invasion Act of 2002:
Ah, yes. Jesse Helms did lots of charming things like that. There’s a reason that I love this (not safe for work) song about him:
Why Won’t Jesse Helms Hurry Up And Die?
And yes, thanks, Mark! Go rabh maith agat!
Antiwar linked to an article that said some Israelis are afraid to travel abroad for fear of being arrested as war criminals. Is that hype?
“That threat of so-called “lawfare” has already prevented some Israeli civilian and military leaders from traveling abroad out of fear they’d be arrested as war criminals.”
“Israelis are afraid of being hauled to The Hague,” said Robert Malley, the Middle East program director for the International Crisis Group.”
http://www.trust.org/alertnet/news/analysis-the-next-stop-for-palestinians-could-be-global-courts/
I have a lot of reading to do. Thank you for all the information!
Looking forward to getting back to this later this afternoon when I have time to give it proper attention.
Mark, thanks in advance.
Excellent, mfi.
IMO divestiture and boycott will wind up being more effective than ICC at this point.
I thought the ICC was yet another corrupt intl org as a power extender for the U.S. Doesn’t it prosecute only enemies of the U.S., mostly Africans? And when the U.S. can’t win in a kangaroo court, it assassinates the defendant.
Susan Rice needs voice lessons.
Ooooooh I like it. Thank you.
mfi
You’re welcome. Yup that particular piece of fuckery was unforgettable (and unforgivable).
mfi
You’re welcome – and yes, there have already been attempts to arrest traveling senior Israeli officers. With the result that they no longer dare travel to a lot of European destinations or to the USA using routes which touch down on European soil.
My heart breaks for them …
mfi
Some day you’re going to cause me heart failure by mentioning a conspiracy in which you do not believe.
mfi
Any time you have a better explanation, I’m ready to change my mind.
The man was self-prescribing. Occam’s razor applies.
mfi
You’re welcome. As Philip says the links are worth following. I’d start with the BBC Q&A if I were you. The case matrix at the “ICC Legal Tools” link is worth its weight in gold.
mfi
Yes, I agree. The Court is still only a potentially very useful tool. But even a refused application to prosecute Israel by the Palestinians would have an enormous impact and would cost Israel and the USA dear.
For the present ‘though you’re completely correct – divestiture, boycott, and delegitimisation are the most effective tools to hand. They worked with South Africa and Rhodesia and they’re starting to have an impact on Israel. A long and hard road but not completely impossible.
mfi
It’s been bugging me about Africans being so often referred, and I’ve been trying to remember where I’d read it. BAR was at least one place.
Bugger. I’d meant that it had been bothering me since I’d read your comment earlier in the day…
x2
The ICC has only indicted & prosecuted Africans.
wiki — To date, the ICC has opened investigations into seven situations in: the Democratic Republic of the Congo (1); Uganda (2); the Central African Republic (3); Darfur, Sudan (4); the Republic of Kenya (5); Libya (6); and the Republic of Côte d’Ivoire (7)
Clear, concise and highly topical on this day after the vote.
Well done mfi.
db & wd, thanks.
I just had to give ya a mention, mfi…! ;-)
UN Bid Changes Nothing For The Palestinians…
I know it’s not exactly choral music… ;-)
I read this morning that Israel is approving 3,000 more housing units in response to the UN vote.
http://www.commondreams.org/view/2012/11/30-10
Netanyahu earlier promised Obama he would not build in this area. Ariel Sharon and Olmert promised previous administrations they would not build in E1.
Maybe Netanyahu is just drumming up election year support, but he’s acting like a crazy person, lashing out like this. IMO, this decision makes him look weaker, not stronger.
You’re welcome.
mfi
So I see Charles :-)
mfi
Not without its charm nevertheless :-)
mfi
I’d agree with you but that’s not how he or his supporters see it. They’re locked in to a cycle of hatred and viciousness, it’s all they do. In their terms this is the correct response it’s a very nihilistic mindset.
mfi
Would that the attempt to get Kissinger arrested in London for enabling similar atrocities in Pinochet’s Chile had succeeded.
He finally did shuffle off this mortal coil — ironically, on July 4, 2008.
Yes, and I guess if his supporters agree with him, Netanyahu has all the support he needs, at least for now. They are a nasty, hate-filled group of people, but I can’t criticize from a high perch: this country and its citizens look just as bad in the eyes of the world, and that not only makes me ashamed, it makes me downright afraid, if I think about it too much.
Book Salon up with Ben Freeman’s The Foreign Policy Auction: Foreign Lobbying in America hosted by Michael K. Busch
Check out what the mainstream is saying, lol. In the article entitled, “Why was the US in the Minority on the Palestinian Vote?” at msn.com, the answer is in the second paragraph: “Because the U.S. cast a vote about process, not principle.”
I guess that actually does a pretty good job of summing up foreign policy, where the process is invariably mutable.
Not Fox News so it can’t be propaganda though.
http://news.msn.com/politics/why-was-us-in-the-minority-on-palestine-vote