The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression.
The ICC was created by the Rome Statute which came into force on 1 July 2002. The Court has established itself in The Hague, Netherlands, but its proceedings may take place anywhere. It is intended to complement existing national judicial systems, and may only exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes.
Currently, 122 states are states parties to the Statute of the Court, including all of South America, nearly all of Europe, most of Oceania and roughly half the countries in Africa. A further 31 countries, including Russia, have signed but not ratified the Rome Statute. The law of treaties obliges these states to refrain from “acts which would defeat the object and purpose” of the treaty until they declare they do not intend to become a party to the treaty. Three of these states—Israel, Sudan and the United States—have informed the UN Secretary General that they no longer intend to become states parties and, as such, have no legal obligations arising from their former representatives’ signature of the Statute. 41 United Nations member states have neither signed nor ratified or acceded to the Rome Statute; some of them, including China and India, are critical of the Court. On 21 January 2009, the Palestinian National Authority formally accepted the jurisdiction of the Court. On 3 April 2012, the ICC Prosecutor declared himself unable to determine that Palestine is a “state” for the purposes of the Rome Statute and referred such decision to the United Nations. On 29 November 2012, the United Nations General Assembly voted in favor of recognizing Palestine as a non-member observer state.
The ICC has been accused by many, including the African Union, for primarily targeting people from Africa; to date, most of the ICC’s cases are from African countries. Four out of eight current investigations originate, however, from the referrals of the situations to the Court by the concerned states parties themselves
The establishment of an international tribunal to judge political leaders accused of war crimes was first made during the Paris Peace Conference in 1919 by the Commission of Responsibilities. The issue was addressed again at a conference held in Geneva under the auspices of the League of Nations on 1–16 November 1937, which resulted in the conclusion of the first convention stipulating the establishment of a permanent international court to try acts of international terrorism. The convention was signed by 13 governments, but was never ratified, and the convention never entered into effect.
The United Nations stated that the General Assembly first recognized the need for a permanent international court to deal with atrocities of the kind committed during World War II in 1948, following the Nuremberg and Tokyo Tribunals. At the request of the General Assembly, the International Law Commission drafted two statutes by the early 1950s but these were shelved as the Cold War made the establishment of an international criminal court politically unrealistic.
Benjamin B. Ferencz, an investigator of Nazi war crimes after World War II and the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, one of the twelve military trials held by the U.S. authorities at Nuremberg, later became a vocal advocate of the establishment of an international rule of law and of an International Criminal Court. In his first book published in 1975, entitled Defining International Aggression – The Search for World Peace, he argued for the establishment of such an international court.
The idea was revived in 1989 when A. N. R. Robinson, then Prime Minister of Trinidad and Tobago, proposed the creation of a permanent international court to deal with the illegal drug trade. While work began on a draft statute, the international community established ad hoc tribunals to try war crimes in the former Yugoslavia and Rwanda, established in 1994, further highlighting the need for a permanent international criminal court.
In June 1989, motivated in part by an effort to combat drug trafficking, Trinidad and Tobago resurrected a pre-existing proposal for the establishment of an ICC and the UN GA asked that the ILC resume its work on drafting a statute. The conflicts in Bosnia-Herzegovina and Croatia as well as in Rwanda in the early 1990s and the mass commission of crimes against humanity, war crimes, and genocide led the UN Security Council to establish two separate temporary ad hoc tribunals to hold individuals accountable for these atrocities, further highlighting the need for a permanent international criminal court.
In 1994, the ILC presented its final draft statute for an ICC to the UN GA and recommended that a conference of plenipotentiaries be convened to negotiate a treaty and enact the Statute.To consider major substantive issues in the draft statute, the General Assembly established the Ad Hoc Committee on the Establishment of an International Criminal Court, which met twice in 1995.
After considering the Committee’s report, the UN GA created the Preparatory Committee on the Establishment of the ICC to prepare a consolidated draft text. From 1996 to 1998, six sessions of the UN Preparatory Committee were held at the United Nations headquarters in New York, in which NGOs provided input into the discussions and attended meetings under the umbrella of the NGO Coalition for an ICC (CICC). In January 1998, the Bureau and coordinators of the Preparatory Committee convened for an Inter-Sessional meeting in Zutphen, the Netherlands to technically consolidate and restructure the draft articles into a draft.
The United States and Israel refuse to ratify, acknowledge or adhere to ICC.
Following years of negotiations, the General Assembly convened a conference in Rome in June 1998, with the aim of finalizing a treaty. On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, United States, and Yemen.
The Rome Statute became a binding treaty on 11 April 2002, when the number of countries that had ratified it reached sixty. The Statute legally came into force on 1 July 2002, and the ICC can only prosecute crimes committed after that date. The first bench of 18 judges was elected by an Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the Court on 11 March 2003. The Court issued its first arrest warrants on 8 July 2005, and the first pre-trial hearings were held in 2006.
During a Review Conference of the International Criminal Court Statute in Kampala, Uganda, two amendments to the Rome Statute of the International Criminal Court were adopted on 10 and 11 June 2010. The second amendment concerns the definition of the crime of aggression.