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International Criminal Law – How Was the International Criminal Court Created and How Does It Operate Today?
General
A. Establishment
Early Historical Origins
The idea of establishing a permanent international criminal court emerged as early as the 1920s, although at that time it remained a theoretical proposal without meaningful political support.
Post–World War II Evolution
Following World War II, the United Nations General Assembly endorsed the Nuremberg Principles, which affirmed that individuals—not just states—can be held criminally responsible for grave violations of international law. This renewed interest in an international criminal judiciary.
The Convention on the Prevention and Punishment of the Crime of Genocide 1948 (Genocide Convention) included Article VI, which contemplated the creation of an international penal tribunal to try individuals accused of genocide.
In the same year, General Assembly Resolution 260 (III) identified a growing need for an international judicial organ capable of addressing crimes under international law. Consequently, the International Law Commission (ILC) was instructed to explore:
The ILC worked until the mid-1950s, linking the court idea with a proposed Draft Code of Offences Against the Peace and Security of Mankind. However, progress stalled—mainly due to challenges defining aggression—and the UN General Assembly repeatedly postponed action for several decades.
Renewed Momentum in the Late Twentieth Century
In the late 1980s, several Caribbean states called for renewed consideration of a criminal court, driven by concerns over extensive drug trafficking. The ILC resumed work and produced the 1994 Draft Statute for an International Criminal Court (ILC Draft Statute).
The Draft Statute had several defining features:
– Instead, judges would rely on treaties, customary international law, and relevant national law.
– Only the UN Security Council or a State Party could trigger proceedings.
Overall, the Draft Statute envisioned a minimalist and non-controversial court, intended to ease rapid acceptance by states.
Shift Toward a Stronger Court
The creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994 showed that international criminal justice was workable. When states convened in Rome in 1998 for the UN Diplomatic Conference, momentum favored a more ambitious and substantive permanent court.
Creation of the Rome Statute
On 17 July 1998, the Rome Statute of the International Criminal Court (ICC) was adopted. It entered into force on 1 July 2002 when the sixtieth ratification was deposited. Today, 122 States Parties have joined.
These States Parties meet annually in the Assembly of States Parties (ASP), which performs administrative, budgetary, and oversight functions.
Effect on Non-Member States
The ICC is a treaty-based court. Under Article 34 of the Vienna Convention on the Law of Treaties (VCLT), treaties neither impose obligations on nor grant rights to third states without consent. Customary law goes further: a treaty may not infringe the legal rights of third states either.
Domestic Criminalization Is Not Required
The Rome Statute does not obligate States Parties to incorporate ICC crimes into their domestic legal systems or to exercise universal jurisdiction.
B. Basic Facts About the ICC
Permanence
The ICC is the first international criminal court designed to be permanent, unlike the ad hoc tribunals such as the International Military Tribunal (IMT) at Nuremberg, the IMT for the Far East, ICTY, ICTR, the Special Court for Sierra Leone (SCSL), and the Special Tribunal for Lebanon (STL).
Relationship with the United Nations
The ICC is independent from the UN. The ninth recital of the Rome Statute preamble describes it as an institution “in relationship with the United Nations.” The connection is formalized through a Relationship Agreement approved by the ASP in 2004.
Nevertheless, the UN Security Council has significant powers under:
International Legal Personality
The ICC possesses international legal personality and all necessary legal capacities to fulfill its mandate.
Seat and Operational Flexibility
The Court’s seat is The Hague, the Netherlands. It may sit elsewhere when necessary. The ICC may operate:
Convicted persons serve sentences in states that agree to accept them.
Legal Framework
Three instruments govern the ICC:
The ASP, not the judges, adopts and amends the RPE, though judges may pass provisional rules in emergencies.
Institutional Structure
The ICC consists of:
Judges are elected with regard to:
The first Prosecutor, Luis Moreno Ocampo, was elected in 2003.
He was succeeded by Fatou Bensouda in 2012.
Due-Process Guarantees
The Statute ensures robust protections for:
Victims’ Rights — A Distinctive Feature
The ICC is more victim-friendly than any prior tribunal:
Funding
The ICC is supported by:
C. Procedural Essentials
Routes by Which Cases Reach the ICC
Three mechanisms allow the ICC to exercise jurisdiction:
Preliminary Examination
Before opening an investigation, the Prosecutor conducts a preliminary examination, assessing:
The Prosecutor may decline to proceed for any of these reasons.
Investigations and Prosecutions
After investigating, the Prosecutor decides whether there is enough evidence to pursue charges. If so, they apply to the Pre-Trial Chamber for an arrest warrant or summons to appear.
Confirmation of Charges
Once a suspect appears before the Court:
D. The ICC’s Work to Date
Situations
Eight “situations” have been referred:
Seven led to investigations; one was declined.
Additionally, the Prosecutor has twice opened investigations proprio motu.
Cases and Case Activity
The ICC has:
Preliminary Examinations
The Prosecutor continues to conduct multiple preliminary examinations, while others have been closed for insufficient basis.
II. Ten Case Scenarios With Solutions
Scenario 1 – Political Repression Referred by a State
A government refers a situation involving arrests of political dissidents.
Solution: ICC conducts preliminary examination → checks gravity & complementarity → may open investigation.
Scenario 2 – UNSC Referral in Ongoing Civil War
UN Security Council refers atrocities committed during internal conflict.
Solution: ICC gains authority even over non-States Parties → investigation opens.
Scenario 3 – Prosecutor Acts Proprio Motu
NGOs submit reports of mass torture; no state cooperates.
Solution: Prosecutor requests Pre-Trial authorization → investigation begins.
Scenario 4 – Complementarity Challenge
A state claims to investigate crimes domestically.
Solution: ICC evaluates genuineness → case admissible only if national proceedings are not authentic.
Scenario 5 – Suspect Evades Arrest
A commander hides in a non-State Party.
Solution: ICC maintains warrant; diplomatic pressure applied; warrant remains active indefinitely.
Scenario 6 – Victims Request Court Participation
War victims apply to join proceedings.
Solution: Judges allow participation where personal interests are affected.
Scenario 7 – State Withdraws From the ICC
A State announces withdrawal after a warrant is issued.
Solution: ICC retains jurisdiction for crimes committed before withdrawal’s effective date.
Scenario 8 – Security Council Requests Deferral
UNSC passes a resolution seeking a deferral.
Solution: ICC halts proceedings for 12 months under Article 16.
Scenario 9 – Reparations After Conviction
A militia leader is convicted.
Solution: Court orders reparations; Trust Fund for Victims facilitates implementation.
Scenario 10 – National Amnesty Law
A country enacts amnesty for genocide crimes.
Solution: ICC disregards the amnesty for international crimes → prosecution proceeds.
III. Critical Analysis
Strengths
Weaknesses
Contemporary Challenges
General
A. Establishment
Early Historical Origins
The idea of establishing a permanent international criminal court emerged as early as the 1920s, although at that time it remained a theoretical proposal without meaningful political support.
Post–World War II Evolution
Following World War II, the United Nations General Assembly endorsed the Nuremberg Principles, which affirmed that individuals—not just states—can be held criminally responsible for grave violations of international law. This renewed interest in an international criminal judiciary.
The Convention on the Prevention and Punishment of the Crime of Genocide 1948 (Genocide Convention) included Article VI, which contemplated the creation of an international penal tribunal to try individuals accused of genocide.
In the same year, General Assembly Resolution 260 (III) identified a growing need for an international judicial organ capable of addressing crimes under international law. Consequently, the International Law Commission (ILC) was instructed to explore:
- whether an international criminal court was desirable, and
- whether its establishment was practically feasible.
The ILC worked until the mid-1950s, linking the court idea with a proposed Draft Code of Offences Against the Peace and Security of Mankind. However, progress stalled—mainly due to challenges defining aggression—and the UN General Assembly repeatedly postponed action for several decades.
Renewed Momentum in the Late Twentieth Century
In the late 1980s, several Caribbean states called for renewed consideration of a criminal court, driven by concerns over extensive drug trafficking. The ILC resumed work and produced the 1994 Draft Statute for an International Criminal Court (ILC Draft Statute).
The Draft Statute had several defining features:
- A procedural (“adjectival”) court
– Instead, judges would rely on treaties, customary international law, and relevant national law.
- Broad material jurisdiction over genocide, aggression, war crimes, crimes against humanity, and treaty crimes such as:
- aircraft hijacking (1970 Convention for the Suppression of Unlawful Seizure of Aircraft),
- torture (1984 Convention Against Torture),
- narcotics trafficking (1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances).
- No independent prosecutorial power
– Only the UN Security Council or a State Party could trigger proceedings.
- Security Council override
Overall, the Draft Statute envisioned a minimalist and non-controversial court, intended to ease rapid acceptance by states.
Shift Toward a Stronger Court
The creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994 showed that international criminal justice was workable. When states convened in Rome in 1998 for the UN Diplomatic Conference, momentum favored a more ambitious and substantive permanent court.
Creation of the Rome Statute
On 17 July 1998, the Rome Statute of the International Criminal Court (ICC) was adopted. It entered into force on 1 July 2002 when the sixtieth ratification was deposited. Today, 122 States Parties have joined.
These States Parties meet annually in the Assembly of States Parties (ASP), which performs administrative, budgetary, and oversight functions.
Effect on Non-Member States
The ICC is a treaty-based court. Under Article 34 of the Vienna Convention on the Law of Treaties (VCLT), treaties neither impose obligations on nor grant rights to third states without consent. Customary law goes further: a treaty may not infringe the legal rights of third states either.
Domestic Criminalization Is Not Required
The Rome Statute does not obligate States Parties to incorporate ICC crimes into their domestic legal systems or to exercise universal jurisdiction.
B. Basic Facts About the ICC
Permanence
The ICC is the first international criminal court designed to be permanent, unlike the ad hoc tribunals such as the International Military Tribunal (IMT) at Nuremberg, the IMT for the Far East, ICTY, ICTR, the Special Court for Sierra Leone (SCSL), and the Special Tribunal for Lebanon (STL).
Relationship with the United Nations
The ICC is independent from the UN. The ninth recital of the Rome Statute preamble describes it as an institution “in relationship with the United Nations.” The connection is formalized through a Relationship Agreement approved by the ASP in 2004.
Nevertheless, the UN Security Council has significant powers under:
- Article 13(b) – to refer situations, and
- Article 16 – to defer investigations or prosecutions for renewable 12-month periods.
International Legal Personality
The ICC possesses international legal personality and all necessary legal capacities to fulfill its mandate.
Seat and Operational Flexibility
The Court’s seat is The Hague, the Netherlands. It may sit elsewhere when necessary. The ICC may operate:
- within the territory of any State Party, and
- within non-States Parties through special agreements.
Convicted persons serve sentences in states that agree to accept them.
Legal Framework
Three instruments govern the ICC:
- The Rome Statute
- The Elements of Crimes – interpretive guidance for genocide, crimes against humanity, war crimes, and aggression
- The Rules of Procedure and Evidence (RPE) – operational and procedural rules
The ASP, not the judges, adopts and amends the RPE, though judges may pass provisional rules in emergencies.
Institutional Structure
The ICC consists of:
- The Presidency
- Judicial Divisions (Pre-Trial, Trial, Appeals)
- Office of the Prosecutor (OTP)
- Registry
Judges are elected with regard to:
- major legal systems,
- equitable geographical representation,
- gender balance.
The first Prosecutor, Luis Moreno Ocampo, was elected in 2003.
He was succeeded by Fatou Bensouda in 2012.
Due-Process Guarantees
The Statute ensures robust protections for:
- the accused (modeled on Article 14 of the International Covenant on Civil and Political Rights – ICCPR),
- individuals subject to investigation.
Victims’ Rights — A Distinctive Feature
The ICC is more victim-friendly than any prior tribunal:
- Victims may participate through legal representatives.
- Trial Chambers may order reparations (restitution, compensation, rehabilitation).
- The Trust Fund for Victims provides assistance and reparation.
Funding
The ICC is supported by:
- mandatory assessments on States Parties,
- voluntary contributions,
- UN funding in situations referred by the Security Council.
C. Procedural Essentials
Routes by Which Cases Reach the ICC
Three mechanisms allow the ICC to exercise jurisdiction:
- State Party Referral – when a State Party refers a “situation.”
- UN Security Council Referral – acting under Chapter VII of the UN Charter.
- Prosecutor’s Proprio Motu Power – the Prosecutor may initiate an investigation independently but must obtain authorization from the Pre-Trial Chamber.
Preliminary Examination
Before opening an investigation, the Prosecutor conducts a preliminary examination, assessing:
- jurisdiction,
- admissibility (gravity and complementarity),
- interests of justice.
The Prosecutor may decline to proceed for any of these reasons.
Investigations and Prosecutions
After investigating, the Prosecutor decides whether there is enough evidence to pursue charges. If so, they apply to the Pre-Trial Chamber for an arrest warrant or summons to appear.
Confirmation of Charges
Once a suspect appears before the Court:
- An initial appearance is held.
- The Pre-Trial Chamber conducts a confirmation of charges hearing to determine whether “substantial grounds” exist to believe the suspect committed the crimes.
- Only confirmed charges move to trial.
D. The ICC’s Work to Date
Situations
Eight “situations” have been referred:
- Six from States Parties
- Two from the UN Security Council
Seven led to investigations; one was declined.
Additionally, the Prosecutor has twice opened investigations proprio motu.
Cases and Case Activity
The ICC has:
- Issued more than two dozen arrest warrants for core crimes
- Issued warrants for offenses against the administration of justice
- Issued multiple summonses
- Completed three trials (two convictions, one acquittal)
- Declined to confirm charges in several cases
- Suspended cases where suspects remain at large or died
- Declared one case inadmissible because domestic proceedings were genuine
Preliminary Examinations
The Prosecutor continues to conduct multiple preliminary examinations, while others have been closed for insufficient basis.
II. Ten Case Scenarios With Solutions
Scenario 1 – Political Repression Referred by a State
A government refers a situation involving arrests of political dissidents.
Solution: ICC conducts preliminary examination → checks gravity & complementarity → may open investigation.
Scenario 2 – UNSC Referral in Ongoing Civil War
UN Security Council refers atrocities committed during internal conflict.
Solution: ICC gains authority even over non-States Parties → investigation opens.
Scenario 3 – Prosecutor Acts Proprio Motu
NGOs submit reports of mass torture; no state cooperates.
Solution: Prosecutor requests Pre-Trial authorization → investigation begins.
Scenario 4 – Complementarity Challenge
A state claims to investigate crimes domestically.
Solution: ICC evaluates genuineness → case admissible only if national proceedings are not authentic.
Scenario 5 – Suspect Evades Arrest
A commander hides in a non-State Party.
Solution: ICC maintains warrant; diplomatic pressure applied; warrant remains active indefinitely.
Scenario 6 – Victims Request Court Participation
War victims apply to join proceedings.
Solution: Judges allow participation where personal interests are affected.
Scenario 7 – State Withdraws From the ICC
A State announces withdrawal after a warrant is issued.
Solution: ICC retains jurisdiction for crimes committed before withdrawal’s effective date.
Scenario 8 – Security Council Requests Deferral
UNSC passes a resolution seeking a deferral.
Solution: ICC halts proceedings for 12 months under Article 16.
Scenario 9 – Reparations After Conviction
A militia leader is convicted.
Solution: Court orders reparations; Trust Fund for Victims facilitates implementation.
Scenario 10 – National Amnesty Law
A country enacts amnesty for genocide crimes.
Solution: ICC disregards the amnesty for international crimes → prosecution proceeds.
III. Critical Analysis
Strengths
- Permanent and stable institutional structure
- Robust victim participation and reparations system
- Independent Prosecutor with proprio motu power
- Strong due-process protections
- Respect for state sovereignty through complementarity
Weaknesses
- Dependence on state cooperation for arrests
- Security Council influence risks politicization
- Major powers (e.g., U.S., Russia, China) not members
- Case timelines are lengthy
- Resource limitations hinder investigations
Contemporary Challenges
- Increasing digital and cyber crimes outside current definitions
- Perceptions of regional bias
- Withdrawal threats from states
- Balancing peace negotiations with accountability
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