International Criminal Court (ICC)
International Humanitarian Law April 2011
Background All the members of the European The Red Cross During the half century since the Union and the North Atlantic Treaty and International establishment of the Nuremberg Organization (NATO), except for the Humanitarian Law Tribunal after World War II, a number United States and Turkey, are party to The Red Cross and the Geneva of methods for investigating and this treaty. Conventions were born when Henry prosecuting individuals for violations As of February 2011, three States Dunant witnessed the devastating of international humanitarian law party to the Rome Statute have consequences of war at a battlefield (IHL) have been adopted, including in Italy. In the aftermath of that battle, referred situations (occurring on their military tribunals, military commissions Dunant argued successfully for the respective territories) to the Office of and ad hoc war crimes tribunals. The creation of a civilian relief corps to the Prosecutor (OTP). The OTP has respond to human suffering during International Criminal Court (ICC) is opened investigations into all three conflict, and for rules to set limits on one of the most recent attempts by the situations: the Central African Republic, how war is waged. world community to hold individuals Democratic Republic of Congo and Inspired in part by her work in the responsible for serious violations of Uganda. On March 31, 2005, the Civil War, Clara Barton would later international law. United Nations Security Council found the American Red Cross and also advocate for the U.S. ratification referred the situation in Darfur, Sudan, Overview of the first Geneva Convention. to the ICC. Further, on March 31, The ICC is the first permanent 2010, the Pre-Trial Chamber granted international court that has the right the OTP’s request to commence an to investigate and bring to justice investigation regarding Kenya. The OTP, individuals who commit the most as of November 2009, is conducting serious violations of IHL, war crimes, preliminary examinations in a number as well as genocide, crimes against of countries including Colombia, Côte humanity and the crime of aggression. d’Ivoire, Afghanistan, Georgia, Palestine, Unlike the International Court of Guinea, Honduras, Nigeria and the Justice (the World Court) in The Republic of Korea. On January 26, Hague, Netherlands, which hears only 2009, the ICC began its first trial in the cases between States (countries) or case of Thomas Lubanga Dyilo (Congo provides advisory opinions, the ICC tries situation). The trial continued into 2011. individuals. The ICC is also located in
The Hague. For more information, please see: Danziger Nick http://www.icc-cpi.int The ICC was created based on the Rome Statute, a treaty adopted in Summary of Treaty To Learn More Rome, Italy, on July 17, 1998. On April To learn more about international 11, 2002, the Rome Statute received Provisions The ICC is an independent, treaty- humanitarian law, and find opportunities its 60th ratification and entered into based institution that is not specifically to promote these rules through the force on July 1, 2002. The inaugural free curriculum Exploring Humanitarian part of the United Nations (U.N.) session of the ICC took place on March Law, visit www.redcross.org/ihl. Ask system of international organizations 11, 2003. As of February 2011, 114 your local Red Cross chapter for more or answerable to the U.N. Aside from information about IHL classes. countries are party to the Rome Statute.
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a referral by the U.N. Security Council and crimes against humanity. On The Position of the United or by a State party, the ICC will only act June 11, 2010, the ASP adopted a States when a State party is genuinely unable resolution at the Review Conference The U.S. signed the Rome Statute or unwilling to investigate or prosecute in Kampala, Uganda, regarding the on December 31, 2000, but has alleged criminals in its jurisdiction. crime of aggression, including the not ratified it. On May 6, 2002, the States bear the primary responsibility definition of the crime. However, under U.S. formally notified the U.N. (the to ensure respect for IHL and punish the resolution, the ICC will not have depository of the Rome Statute) that it its violators. The ICC is intended to jurisdiction over the crime of aggression did not intend to become a party to the complement national jurisdictions until certain conditions are met. Rome Statute. in accordance with the principle of These conditions include ratification ‘complementarity’. The following or acceptance by 30 States of the In August 2002, the U.S. Congress points represent a summary of the key proposed amendments to the Rome passed the American Servicemembers’ provisions of the Rome Statute: Statute, and jurisdiction cannot take Protection Act (ASPA), which amongst place until after January 1, 2017. other things prohibits any agency or Accountability: The ICC is accountable entity of the U.S. government or of any to the Assembly of States Parties Jurisdiction: The court only has state or local government, including (ASP), which is composed of the jurisdiction over events that occur after any court, from providing support to States that have ratified or acceded its entry into force and thus cannot take the ICC. The U.S. has also concluded to the Rome Statute. Those States up any events that occurred before agreements with more than 95 States that have not ratified the treaty will not July 1, 2002, the date when the Rome to protect against the possibility of be involved in decisions such as the Statute entered into force. If a State transfer or surrender of U.S. citizens nomination and selection of judges or becomes party to the Rome Statute to the ICC (i.e., pursuant to Article 98 the Prosecutor, determining the budget after July 1, 2002, the court may only of the Rome Statute). Although the of the court or voting to dismiss judges exercise jurisdiction with respect to U.S. did not oppose the U.N. Security or the Prosecutor. Non-State parties crimes committed after the entry into Council referral of the situation in are not responsible for funding the force of the Rome Statute for that Sudan to the ICC, it maintained its court. particular State, unless the State makes objections regarding the ICC, including a declaration otherwise. Furthermore, Composition: The ICC is composed stating that the Rome Statute is the ICC only has jurisdiction if an of 18 judges, and includes the Office flawed and does not have sufficient applicable crime is committed by a of the Prosecutor (OTP), the Office of protections from the possibility of national of a State party, if a crime Public Counsel for Victims (OPCV), the politicized prosecutions. has been committed in the territory Office of Public Counsel for Defense of a State party or if the U.N. Security Recently, the U.S. government has (OPCD) and the Registry. The judges Council refers a specific case in the taken a different approach to the ICC. are divided among the Pre-Trial Division, interest of maintaining or restoring On March 4, 2009, the U.S. supported the Trial Division and the Appeals international peace and security. the decision of the ICC to issue an Division of the court. The OTP is arrest warrant for the president of independent of the court. The OPVC Rights of suspects: The ICC and the Sudan. In November 2009, the U.S. and the OPCD are semi-autonomous Rome Statute provide almost all the participated in meetings of the ASP as and fall under the Registry for same due process protections as the an observer. The U.S. has stated that administrative purposes, but otherwise U.S. Constitution, with the exception of it will continue to be supportive of the function as wholly independent offices. trial by jury. Trial by jury is not the legal ICC’s prosecution of cases regarding standard in many nations. In a number Definition of crimes:The Rome crimes against humanity to the extent of foreign legal systems, far fewer due Statute and its subsidiary document, consistent with U.S. domestic law. process protections are guaranteed to The Elements of Crimes, give detailed The U.S. State Department has stated American citizens accused of crimes and definitions of genocide, war crimes that attending the ASP meeting as who may be subject to trials abroad.
www.redcross.org/ihl 2 International Criminal Court (ICC) International Humanitarian Law April 2011 an observer would not violate the ICRC acknowledges that although The Position of the ASPA or any other applicable law. States already have a duty to prosecute American Red Cross In February 2011, the U.N. Security and punish perpetrators of war crimes, The American Red Cross believes Council unanimously, including the U.S., in reality this duty is not always carried the international community must adopted a resolution referring Libya out. ensure that those responsible for the to the prosecutor of the ICC for an commission of serious violations of Notwithstanding the above, the ICRC investigation of possible crimes against IHL, war crimes, as well as genocide has a clear and long-established humanity. and crimes against humanity, are held practice of not becoming involved accountable for their actions. While The U.S. government is concerned in judicial proceedings and of not it does not otherwise have an official about the assertion of ICC jurisdiction disclosing what it discovers during position, the American Red Cross over nationals of a non-party State its work. This practice is grounded presents the different perspectives of (e.g., possibility of a U.S. citizen being in extensive experience in the field the U.S. government and the ICRC in its arrested in the territory of a State party). and in the organization’s utmost programs of public education. respect for confidentiality. Maintaining For more information, please see: confidentiality permits the ICRC the http://www.state.gov/s/wci/ widest access within conflict areas index.htm and to affected individuals. The ICRC Position of the only shares its information and findings on alleged violations of IHL with the International Committee of party responsible. The information that the Red Cross (ICRC) the ICRC collects is not shared with The ICRC sees the ICC as essential other parties, including the ICC. The to the international legal order and ICC Rules of Procedure and Evidence a necessary complement to national recognize that the confidential courts in their efforts to bring people information in the possession of suspected of committing wide-scale the ICRC, including testimony of atrocities, including war crimes, ICRC employees, is privileged and genocide and crimes against humanity, consequently not subject to disclosure. to justice. The ICRC firmly believes that the international community must For more information, please see: ensure that those responsible for such http://www.icrc.org/eng crimes are held account-able. The
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