Concept and Fundamentals: International Criminal Court
Der International Criminal Court (ICC), in the original English ‘International Criminal Court (ICC)’, is a permanent international criminal court based in The Hague, Netherlands. It deals with the criminal responsibility of natural persons for serious crimes, in particular genocide, crimes against humanity, war crimes, and the crime of aggression. The institutional basis of the International Criminal Court is the Rome Statute, which was adopted by 120 states on July 17, 1998 and entered into force on July 1, 2002.
Historical Development and International Law Background
Already in the course of the Nuremberg and Tokyo trials after World War II, there was an effort to establish a permanent international criminal jurisdiction to prosecute the gravest crimes against humanity. However, due to the Cold War, such plans could not be realized for decades. With the end of bloc confrontation, decisive progress was made, especially in the context of conflicts in the former Yugoslavia and in Rwanda, where ad hoc UN tribunals once again carried out international criminal prosecutions.
The Rome Statute ultimately created the legal foundation under international law for the International Criminal Court and has now been ratified by over 120 states. Numerous countries, including the United States, Russia, and China, have not ratified the Statute to date.
Legal Foundations and Jurisdiction
Rome Statute
The core legal document of the ICC is the Rome Statute (dated July 17, 1998). It governs the organization, jurisdiction, as well as the substantive and procedural law of the Court. The jurisdiction of the International Criminal Court is functionally, materially, geographically, and temporally limited.
Subject-Matter Jurisdiction
The International Criminal Court has jurisdiction only over the most serious crimes of international concern:
- Genocide (Art. 6 Rome Statute)
- Crimes against humanity (Art. 7 Rome Statute)
- War crimes (Art. 8 Rome Statute)
- Crime of aggression (Art. 8bis Rome Statute)
An extension of the catalogue of crimes is only possible by amending the Statute.
Personal Jurisdiction
The International Criminal Court can prosecute only natural persons who were at least 18 years old at the time the crime was committed. Collective entities such as states or organizations cannot be held responsible.
Territorial and Temporal Jurisdiction
The Court generally has jurisdiction over crimes committed after the entry into force of the Rome Statute (July 1, 2002) on the territory of a State Party or by its nationals. In special cases (e.g., referral by the United Nations Security Council), jurisdiction may also extend to third states.
Functioning and Structure of the International Criminal Court
Organizational Structure
According to Art. 34 Rome Statute, the International Criminal Court consists of four main organs:
- Presidency (President of the Court, First and Second Vice-Presidents)
- Pre-Trial Chambers (Preparation of proceedings, review of admissibility)
- Trial Chambers (Conduct of trials at first instance)
- Appeals Chamber
- Office of the Prosecutor (independent investigations and prosecution)
- Registry (administrative organ with support and protection functions)
Proceedings and Procedural Principles
Proceedings before the International Criminal Court are governed by their own Rules of Procedure and Evidence. The Statute guarantees fundamental procedural rights of the accused in accordance with international human rights standards. Proceedings are divided into investigation, trial, and appeal phases.
Initiation of Proceedings
The Office of the Prosecutor can initiate investigations on its own initiative, on referral by a State Party, or by referral from the UN Security Council (Art. 13 Rome Statute). The determination of jurisdiction and admissibility takes place in the Pre-Trial Chamber, which conducts complementarity checks (subsidiarity principle in relation to national criminal justice systems).
Principle of Complementarity
The International Criminal Court acts only if national law enforcement authorities are unwilling or unable to conduct a genuine investigation or prosecution (Art. 17 Rome Statute).
Rights of the Accused and Victim Participation
The Rome Statute guarantees rights to a fair trial (including defense, presumption of innocence, interpreter, examination of witnesses, etc.). A novelty in international procedural law is the possibility of active participation by victims in the proceedings and their right to compensation.
Relationship to National Criminal Courts and Other International Criminal Jurisdictions
The Court does not replace national criminal courts, but rather complements them (principle of complementarity). Also with regard to ad hoc tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the one for Rwanda (ICTR), the ICC does not have hierarchical superiority, but rather exercises an independent, permanent international jurisdiction.
Criticism, Challenges and Recent Developments
In practice, the effectiveness of the International Criminal Court is the subject of ongoing debate. Criticism includes, among other things, the disproportionate number of cases from African states, difficulties in enforcing arrest warrants against accused high-ranking officials, and the often insufficient cooperation of states, especially non-State Parties. The reach of the ICC is also limited by the failure of significant states to ratify it.
Nevertheless, the International Criminal Court is seen as a major milestone in international criminal law and as an important component among international courts in combating the most serious crimes worldwide.
Literature and Sources
- Rome Statute of the International Criminal Court (English/German text)
- Rome Statute of the International Criminal Court (https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf)
- Schabas, William A.: The International Criminal Court – A Commentary on the Rome Statute, Oxford University Press
- Ambos, Kai: International Criminal Law, Beck
- Websites: www.icc-cpi.int, www.un.org
This encyclopedia article provides a structured overview of the International Criminal Court, its legal foundations, and its practical significance within the international criminal justice system.
Frequently Asked Questions
What conditions must be met for the International Criminal Court (ICC) to have jurisdiction?
The International Criminal Court (ICC) acts only when certain legal requirements are met. First, the relevant crime must fall within the jurisdiction of the Court, i.e., it must be one of the so-called core crimes (genocide, crimes against humanity, war crimes, or the crime of aggression) as defined in the Rome Statute. Furthermore, it is essential that either the crime was committed on the territory of a State Party or the accused is a national of a State Party. An exception applies when the United Nations Security Council (under Chapter VII of the UN Charter) refers the case to the ICC; in this case, prosecution can be carried out beyond state borders and treaty partnerships. Finally, the principle of complementarity provides that the ICC will only act if national courts are unwilling or unable to genuinely investigate or prosecute.
How does the investigation procedure before the International Criminal Court work?
The investigation procedure at the ICC usually begins with a preliminary examination, in which the Chief Prosecutor examines whether there is sufficient initial suspicion of a crime falling under the Rome Statute. If so, the Prosecutor may, with the authorization of a Pre-Trial Chamber, initiate a formal investigation. In this process, evidence is collected, witnesses questioned, and crime scenes examined. The investigations must comply with international procedural standards, particularly regarding the rights of suspects and the handling of evidence. After the investigations are concluded, the Chamber decides whether to issue an arrest warrant or a summons. It will also determine whether there is sufficient evidence to proceed to trial. The principle of complementarity also applies at this stage: national proceedings always take precedence, provided they are credible and effective.
What rights do defendants have before the International Criminal Court?
Defendants before the ICC enjoy extensive procedural rights, some of which go beyond usual national standards. These include the right to a fair and public trial, the right to be fully informed about the charges brought against them, the right to legal representation, and the right to challenge witness testimony and present their own exculpatory evidence. The ICC also ensures that defendants can communicate in their language or a language they fully understand, and provides interpreters if necessary. They are also protected against self-incrimination and are entitled to the presumption of innocence until proven guilty by a final judgment. Victims and witnesses are also protected by specific safeguarding mechanisms, particularly to prevent intimidation or retaliation.
How does the jurisdiction of the ICC differ from that of national criminal courts?
The ICC operates on the principle of complementarity, which means that it will only take action when national jurisdictions are unable or unwilling to prosecute. National courts generally retain primary responsibility for prosecuting crimes; the ICC intervenes only when the respective states are unwilling or unable to prosecute— for example, due to political interference, lack of resources, or legislative gaps. Furthermore, the ICC is only responsible for certain serious crimes with an international dimension, whereas national courts are responsible for the entire spectrum of criminal offenses, including those without an international law aspect.
What are the working languages of the International Criminal Court?
At the ICC, the working languages are English and French. In addition, the six official languages of the United Nations (Arabic, Chinese, English, French, Russian, and Spanish) are recognized. Proceedings are generally conducted in English or French. However, defendants, victims, and witnesses can also be heard in another language that they speak and understand. The Court provides for translation of documents and interpreter services as necessary to ensure that all participants in the proceedings can exercise their rights.
Under what circumstances can proceedings before the International Criminal Court be discontinued?
Proceedings before the ICC may be discontinued for various legal reasons. Discontinuation occurs, for example, if the Pre-Trial Chamber determines that there is insufficient evidence to bring charges or that the Court lacks jurisdiction—for instance, if a national state can demonstrate that it is effectively investigating or prosecuting the case itself. The Prosecutor can also discontinue proceedings if exculpatory evidence emerges during the investigation proving that there is no longer any suspicion of a crime. If it is established that the alleged acts do not constitute a crime under the Rome Statute or the requirements for the Court’s jurisdiction are not met, the case will also be dismissed. The Chambers may also, upon request of the defense, end the proceedings for legal reasons (e.g., immunity, statute of limitations, or double jeopardy).
What means does the International Criminal Court have to enforce its decisions?
The ICC does not possess its own executive power and is therefore dependent on cooperation with States Parties and international organizations. States that have ratified the Rome Statute are obliged to execute arrest warrants, provide evidence, or surrender accused persons to the Court. If a state fails to fulfill this obligation, the ICC can record this and refer the matter to the Assembly of States Parties or, where appropriate, to the UN Security Council, which may then decide on suitable measures. In practice, however, the effectiveness of enforcement depends on the willingness of the states to cooperate.
