ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN LAW ______

ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN LAW ______

Statute of the International Criminal Court

The United Nations has considered the idea of establishing a permanent international criminal court at various times ever since the end of the Second World War. In 1993 and 1994, it set up two ad hoc tribunals to punish serious violations of international humanitarian law committed, respectively, in the former Yugoslavia and Rwanda. A series of negotiations to establish a permanent international criminal court that would have jurisdiction over serious international crimes regardless of where they were committed started up in 1994 and led to the adoption of the Statute of the International Criminal Court (ICC) in July 1998 in Rome. This accomplishment is the culmination of years of effort and shows the resolve of the international community to ensure that those who commit grave crimes do not go unpunished.

Crimes within the ICC's There are only a few provisions Crimes against humanity jurisdiction concerning certain weapons whose use is prohibited under various The ICC also has jurisdiction over existing treaties, and these do not crimes against humanity. War crimes apply with respect to non- Under Article 7 of the Statute, these international armed conflicts. crimes comprise any of the following Under Article 8 of the Statute, the acts when committed as part of a ICC has jurisdiction in respect of war widespread or systematic attack crimes. These include most of the Genocide directed against any civilian serious violations of international population: humanitarian law mentioned in the The ICC has jurisdiction over the 1949 Geneva Conventions and their crime of genocide under Article 6 of ƒ murder; 1977 Additional Protocols, whether the Statute, which reiterates the ƒ extermination; committed during international or terms used in the 1948 Convention ƒ enslavement; non-international armed conflicts. on the Prevention and Punishment ƒ deportation or forcible transfer of of the Crime of Genocide. the population;

A number of offences are specifically ƒ imprisonment or other severe identified as war crimes in the This crime is defined in the Statute deprivation of physical liberty in Statute, including: as any of the following acts violation of fundamental rules of committed with the intent to destroy, international law; ƒ rape, sexual slavery, enforced in whole or in part, a national, ƒ torture; prostitution, forced pregnancy or ethnical, racial or religious group: ƒ rape, sexual slavery, enforced prostitution, forced pregnancy, other forms of sexual violence; ƒ using children under the age of enforced sterilization, or any other ƒ killing members of the group; 15 to participate actively in form of sexual violence of ƒ causing serious bodily or mental hostilities. comparable gravity; harm to members of the group; ƒ persecution against any ƒ deliberately inflicting on the group Certain other serious violations of identifiable group or collectivity on international humanitarian law, such conditions of life calculated to political, racial, national, ethnic, as unjustifiable delay in the bring about its physical cultural, religious, gender or other repatriation of prisoners and destruction in whole or in part; grounds that are universally indiscriminate attacks affecting the ƒ imposing measures intended to recognized as impermissible civilian population or civilian objects, prevent births within the group; under international law, in which are defined as grave breaches ƒ forcibly transferring children of the connection with any act referred in the Additional Protocol I, are not group to another group. to in Article 7 of the Statute or any specifically referred to in the Statute. crime within the jurisdiction of the Court; ƒ enforced disappearance of The exercise of jurisdiction by the ƒ State should refrain from making persons; ICC over war crimes may be limited use of the opting-out clause ƒ the crime of apartheid; under Article 124 of the Statute. (Article 124 of the Statute). other inhumane acts of a similar ƒ character intentionally causing ƒ States should carry out a thorough great suffering, or serious injury This provision allows a State, on review of their national legislation to body or to mental or physical becoming a party to the Statute, to to ensure that they can take health declare that it does not accept the . advantage of the complementarity jurisdiction of the Court for a period principle on which the ICC is of seven years with respect to war founded and try individuals under crimes that have allegedly been Aggression their own legal systems for committed by its own nationals or offences that fall within the Court's on its own territory. As stated in Article 5 (2) of the jurisdiction.

Statute, the ICC will have jurisdiction over the crime of National enforcement systems ƒ States should assist each other aggression once a provision and the ICC and the ICC in connection with defining this crime and setting out proceedings relating to crimes that the conditions for the exercise of come within the Court's Under the 1949 Geneva such jurisdiction is adopted. jurisdiction. This will require the Conventions and 1977 Additional enactment or amendment of Protocol I, States must prosecute legislation to ensure any When can the ICC exercise its persons accused of war crimes necessary transfer of those jurisdiction? before their own national courts or accused of such crimes. extradite them for trial elsewhere.

Nothing in the ICC Statute releases As soon as a State becomes a States from their obligations under Towards a comprehensive party to the Statute, it accepts the existing instruments of international enforcement system jurisdiction of the ICC in respect of humanitarian law or under the above crimes. Under Article 25 customary international law. of the Statute, the Court has National courts will continue to play jurisdiction over individuals and not an important and primary role in the States. By virtue of the principle of prosecution of alleged war criminals. complementarity, the jurisdiction Moreover, the establishment of the

of the ICC is intended to come into ICC does not in any way prejudice The ICC may exercise its play only when a State is the work undertaken by the aforesaid jurisdiction at the instigation of the genuinely unable or unwilling to ad hoc tribunals, namely the Prosecutor or a State Party, prosecute alleged war criminals International Criminal Tribunal for the providing one of the following over which it has jurisdiction. To former Yugoslavia and the States is bound by the Statute: benefit from this principle, States International Criminal Tribunal for Rwanda, which were set up to punish will need to have adequate legislation enabling them to crimes relating to specific situations ƒ the State on whose territory the prosecute such criminals. (in the first instance, those committed crime was committed; or in the former Yugoslavia since 1991, ƒ the State of which the person and in the second instance, those accused of the crime is a Furthermore, States party to other committed in Rwanda or by Rwandan national. instruments of international nationals in neighbouring States in humanitarian law are still required 1994). A State that is not a party to the to enact implementing legislation

Statute may make a declaration to giving effect to their obligations the effect that it accepts the Court's under those instruments. The establishment of the jurisdiction. International Criminal Court is a further step towards the effective What is needed to ensure the punishment of persons responsible Under the collective security ICC's effectiveness? for having committed the world's framework of Chapter VII of the UN gravest crimes. States are urged to Charter, the Security Council may ƒ States should ratify the ICC ratify the Court's Statute so that refer a situation to the Prosecutor Statute as soon as possible these persons cease to enjoy for investigation. It may also request since universal ratification is impunity. that no investigation or prosecution essential to allow the Court to commence or proceed for a exercise its jurisdiction effectively renewable period of 12 months. and whenever necessary. 08/2007