The International Criminal Court
The International Criminal Court (ICC) is the first permanent international treaty-based criminal court. It was established by the Rome Statue in 1998 and entered into force in 2002 after being ratified by 60 States. The ICC is an independent court and is not part of the United Nations (though it does have a “cooperative relationship” with the UN). Instead, it is funded primarily by States Parties to the Rome Statute, and also receives contributions from international organizations, corporations, and individuals. The seat of the ICC is located in The Hague in the Netherlands.
The ICC has jurisdiction over crimes committed in or by States Parties. It tries cases of “the most serious crimes of international concern,” specifically, crimes against humanity, war crimes, and genocide. The ICC is a “court of last resort” and will only try cases that are not able to be dealt with in national judicial systems.
The ICC has four primary departments consisting of the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry. The Presidency is made up of three judges, elected by the general membership of the Court for a period of three years. All departments, with the exception of the Office of the Prosecutor, are overseen by the Presidency.
The judiciary of the Court, or Judicial Divisions, is comprised of eighteen judges separated into three sections. The first phase of judicial proceedings undertaken by the ICC is handled by the Pre-Trial Division, which is responsible for analyzing information on potential crimes within the jurisdiction of the Court, and deciding whether or not the individuals involved should be brought to trial. The Pre-Trial Division hears testimony regarding a case, grants permission to the Prosecutor to begin investigation of a case, ensures that the proceedings respect the rights of the defense, and protects the interests of victims, among other duties. No less than six judges with criminal trial experience are assigned to this chamber for a period of three years.
The second phase of judicial proceedings is handled by the Trial Division. Trial Division judges also serve for a period of three years, and their primary responsibility is to ensure that a “fair and expeditious” trial is carried out. Following the confirmation of charges by the Pre-Trial Division, the Presidency constructs a Trial Chamber for each specific case, which will rule on the innocence or the guilt of the individual in question. The Trial Chamber also determines the sentence of the accused.
The final phase of judicial proceedings is carried out by the Appeals Division, which is made up of the President of the Court and four other judges. The Prosecutor may appeal a decision by the ICC before the Appeals Chamber if he or she feels that the sentence is unfair. In addition, the convicted individual may apply to the Chamber for a revision of judgment or conviction if new evidence becomes available. Finally, the Appeals Division is responsible for reviewing sentences after a specified period of time to determine if they should be reduced.
The Office of the Prosecutor (OTP) analyses potential cases to determine if “there is a reasonable basis to proceed with an investigation,” carries out the investigation, and prosecutes accused individuals. In order to perform these tasks, the OTP has been organized into three divisions: the Investigation Division, consisting primarily of lawyers, investigators and analysts who investigate potential cases; the Prosecution Division, made up of trial and appeals lawyers who argue cases before the judges; and the Jurisdiction, Complementarity and Cooperation Division (JCCD), consisting of lawyers, analysts and international Cooperation Experts, who advise the Prosecutor on the admissibility of individual cases, and work with State governments and international organizations to ensure their cooperation throughout the investigation and trial.
Cases can be brought to the attention of the OTP in one of three ways: through referral by a State Party to the ICC, through referral by the United Nations Security Council, or through the Prosecutor’s own initiative. Once the OTP confirms that there is a “reasonable basis to believe” that a crime is being committed, it must then determine the case’s admissibility by considering the gravity of the alleged crimes and verifying that no competent national Court has already considered the case (the rule of “complementarity”). If a case is determined to be admissible, the OTP will begin its investigation, the outcome of which will help the Prosecutor determine which individuals bear the greatest responsibility for crimes under the ICC’s jurisdiction. Once guilt has been established, the Court relies on States and other actors to make arrests, as the actual apprehension of individuals lies outside of the Court’s mandate.
The final department of the ICC is the Registry. The Registry is responsible for the administrative aspects of the functioning of the Court, including judicial and administrative support to the other three departments, assistance to and protection of victims and witnesses, assistance to the defense, outreach programs, and overseeing the ICC’s Detention Facility.
One of the unique innovations of the Rome Statute is its provisions for safeguarding the rights of victims and witnesses. Unlike other international courts, the ICC allows victims and witnesses to participate in all stages of Court proceedings through written and oral testimony, either in person or via a legal representative. In 2005, the Registrar established the Office of Public Council for Victims (OPCV) to assist victims in their participation. A Victims and Witnesses Unit has also been set up in order to protect any victims who choose to testify before the Court. In addition to allowing for their participation, the ICC also has the power to order that reparations be paid to victims. The Rome Statute created a Trust Fund for Victims in order to facilitate this. All victims’ issues are handled by the Registry’s Victims’ Participation and Reparation Section.
In order to ensure a fair trial, the Registry also provides assistance to the defense by ensuring that his or her rights are respected and providing legal assistance if requested. For this purpose, the Registry oversees the Office of Public Counsel for the Defence (OPCD).
The third responsibility of the Registry is to engage in outreach efforts to communities affected by crimes against humanity, war crimes, or genocide. The Registry achieves this by establishing lines of communication between the Court and States Parties, Non-States Parties, non-governmental organizations and international organizations; by communicating information about the role and activities of the court to the general public; and by facilitating communication between the Court and communities subject to investigation by the Court.
Finally, the Registry is responsible for overseeing the ICC Detention Centre, located within a Dutch prison complex. The Detention Centre only houses individuals under investigation by the ICC; convicted criminals serve their sentences elsewhere.