Based in The Hague, the Netherlands, the International Criminal Court (ICC) is the first permanent judicial body set up to try individuals for the crime of genocide, crimes against humanity, and war crimes. The Court was established by the Rome Statue of the International Criminal Court, which was adopted on July 17, 1998. It came into force on July 1, 2002, after the 60th nation ratified the treaty. As of March 2010, 111 state parties have joined the treaty. The Chief Prosecutor of the ICC is Mr. Luis Moreno-Ocampo of Argentina, who was elected on April 21, 2003 for a nine-year term.
The ICC possess jurisdiction only over situations that involve the most serious crimes of international concern and, also, only those crimes committed after the Rome Statute went into effect on July 1, 2002. This is what excludes the Court from considering events that happened in Rwanda, the former Yugoslavia, or Cambodia. Furthermore, as a court of last resort, the ICC may prosecute individuals only when national courts are unable or unwilling to do so.
There are several ways a case can come before the court. It can be referred by a State Party (a state that has signed onto the ratification treaty) or by the United Nations Security Council. The third way in which the ICC may consider a case is through a process within the Court itself: the Pre-Trial Chamber may authorize the Chief Prosecutor to open an investigation on the basis of information received from individuals, non-governmental organizations, or other non-state sources.
Since 2002, the Court has received one referral from the United Nations Security Council for Darfur, Sudan, and has accepted three state referrals in the Democratic Republic of the Congo, Uganda, and the Central African Republic. Lacking its own police or other mechanisms for arresting indictees, the Court must rely on State Parties to enforce its arrest warrants and to imprison those convicted of crimes.
UNITED STATES POLICY
Heavily engaged in ICC negotiations, the United States signed the Rome Statute under the Clinton administration in 2000, but identified certain aspects of the treaty that required further negotiation. President Clinton recommended that the Senate delay ratification until US concerns were met about the treaty’s jurisdiction over nationals of states that were non-parties for acts committed on territory of states party to the treaty and the prosecutor’s authority to initiate cases on his/her own. Citing these objections, the Bush administration effectively deactivated the US signature on the Rome Statute in 2002 and pursued policies hostile to the Court.
In 2005, the Security Council referred allegations of crimes in Darfur, Sudan to the ICC. The Council referral exempted the nationals of nonparties from any claim of jurisdiction on the part of the Court and consequently the US abstained from vetoing the resolution. This decision – to not resist the case – signified a shift in American position away from opposition to the ICC.
Although the Obama Administration has stated its intent to engage with the ICC, as of Spring 2010, it has not yet articulated a formal policy.
CRITICISMS AND CONCERNS
The Court is not without controversy. In its seven years of existence, the ICC has only opened cases on the African continent. This focus on African conflicts has given rise to perceptions of bias, even though three out of the four cases were State referrals from the African nations themselves.
Another source of concern arises from the fourth crime identified under the jurisdiction of the Court: the crime of aggression. The parties to the Rome Statute could not agree upon a definition or jurisdiction for the crime of aggression, so they postponed consideration of the issue and determined that the Court would not exercise its jurisdiction over this crime.
REVIEW CONFERENCE OF THE ROME STATUTE
A Review Conference of the ICC was held in Kampala, Uganda from May 31 to June 11, 2010. It convened the Assembly of States Parties for the purpose of considering amendments to the Rome Statute on a range of issues, including reconsidering the crime of aggression.