International Criminal Court


Background

The International Criminal Court was created by treaty, the Rome Statute of the International Court.  The Statute was adopted on 17 Jul 1998 at a conference in Rome convened by the UN General Assembly.   Upon ratification by 60 countries the Statute entered into force on 1 Jul 2002, and the Court was formally established.  As of July 2019, as reported at the UN Treaty Collection, 122 countries have ratified and are party to the Statute and Court.

The ICC is governed by an Assembly of States Parties which elects Court officials, approves the budget, and can adopt amendments to the Rome Statute.  The Court itself has four organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.

The Rome Statute vests the ICC with jurisdiction over four crimes: genocide (Art. 6), crimes against humanity (Art. 7), war crimes (Art. 8), and the crime of aggression (Art. 8bis).

How the Court works

Upon referral of a situation to the Court, there are a set of steps through which the matter must proceed.  The case may be  terminated at any of those steps, based on applicable legal criteria.  The steps are, as described on the ICC’s website:

  1.  Preliminary Examination.

    The Office of the Prosecutor must determine whether there is sufficient evidence of crimes of sufficient gravity falling within the ICC’s jurisdiction, whether there are genuine national proceedings, and whether opening an investigation would serve the interests of justice and of the victims.

    If the requirements are not met for initiating an investigation, or if the situation or crimes are not under the ICC’s jurisdiction, the ICC’s Prosecution cannot investigate and the proceeding is closed.

  2. Investigation

    After gathering evidence and identifying a suspect, the Prosecution requests ICC judges to issue: (1) an arrest warrant: the ICC relies on countries to make arrests and transfer suspects to the ICC; or (2) a summons to appear: suspects appear voluntarily (if not, an arrest warrant may be issued).

    If the requirements are not met for initiating an investigation, or if the situation or crimes are not under the ICC’s jurisdiction, the ICC’s Prosecution cannot investigate.

    The Prosecution may seek again the confirmation of charges, by presenting new evidence.

  3. Pre-Trial Stage

    Initial appearance: Three Pre-Trial judges confirm suspect’s identity and ensure suspect understands the charges.

    Confirmation of charges hearings: After hearing the Prosecution, the Defence, and the Legal representative of victims, the judges decide (usually within 60 days) if there is enough evidence for the case to go to trial.

    If the suspect is not arrested or does not appear, legal submissions can be made, but hearings cannot begin.

  4. Trial Stage

    Before three Trial judges, the Prosecution must prove beyond reasonable doubt the guilt of the accused.

    Judges consider all evidence, then issue a verdict and, when there is a verdict of guilt, issue a sentence. The judges can sentence a person to up to 30 years of imprisonment, and under exceptional circumstances, a life sentence.

    Verdicts are subject to appeal by the Defence and by the Prosecutor.

    Judges can also order reparations for the victims.

    If there is not enough evidence, the case is closed and the accused is released.

    Acquittals are subject to appeal by the Defence and by the Prosecutor.

  5. Appeals Stage

    Both the Prosecutor and the Defence have the right to appeal a Trial Chamber’s decision on the verdict (decision on guilt or innocence of the accused) and the sentence.

    The victims and the convicted person may appeal an order for reparations.

    An appeal is decided by five judges of the Appeals Chamber, who are never the same judges as those who gave the original verdict.

    The Appeals Chamber decides whether to uphold the appealed decision, amend it, or reverse it. This is thus the final judgment, unless the Appeals Chamber orders a re-trial before the Trial Chamber.

  6. Enforcement of Sentence

    Sentences are served in countries that have agreed to enforce ICC sentences.

    If a verdict of guilt is not upheld, the person may be released.


Basic Texts (The following are also available at the ICC website)

Statute of the ICC English   French   Spanish       [English – html]
Rules of Procedure and Evidence English   French   Spanish
Elements of CrimesEnglish   French   Spanish
Regulations of the CourtEnglish   French
Regulations of the Office of the ProsecutorEnglish   French
Prosecutor’s Policy Paper on Preliminary ExaminationsEnglish
Agreement Between the ICC and the United NationsEnglish   French   Spanish


The ICC’s Legal Tools Database is a comprehensive source of materials and documents, current and historical, on international criminal law.


Israel’s Relationship to the ICC.  Israel signed the Rome Statute on 31 Dec 2000*,  with the following declaration:

“Being an active consistent supporter of the concept of an International Criminal Court, and its realization in the form of the Rome Statute, the Government of the State of Israel is proud to thus express its acknowledgment of the importance, and indeed indispensability, of an effective court for the enforcement of the rule of law and the prevention of impunity.

As one of the originators of the concept of an International Criminal Court, Israel, through its prominent lawyers and statesmen, has, since the early 1950’s, actively participated in all stages of the formation of such a court. Its representatives, carrying in both heart and mind collective, and sometimes personal, memories of the holocaust – the greatest and most heinous crime to have been committed in the history of mankind – enthusiastically, with a sense of acute sincerity and seriousness, contributed to all stages of the preparation of the Statute. Responsibly, possessing the same sense of mission, they currently support the work of the ICC Preparatory Commission.

At the 1998 Rome Conference, Israel expressed its deep disappointment and regret at the insertion into the Statute of formulations tailored to meet the political agenda of certain states. Israel warned that such an unfortunate practice might reflect on the intent to abuse the Statute as a political tool. Today, in the same spirit, the Government of the State of Israel signs the Statute while rejecting any attempt to interpret provisions thereof in a politically motivated manner against Israel and its citizens. The Government of Israel hopes that Israel’s expressions of concern of any such attempt would be recorded in history as a warning against the risk of politicization, that might undermine the objectives of what is intended to become a central impartial body, benefiting mankind as a whole.

Nevertheless, as a democratic society, Israel has been conducting ongoing political, and academic debates concerning the ICC and its significance in the context of international law and the international community. The Court’s essentiality – as a vital means of ensuring that criminals who commit genuinely heinous crimes will be duly brought to justice, while other potential offenders of the fundamental principles of humanity and the dictates of public conscience will be properly deterred – has never seized to guide us. Israel’s signature of the Rome Statute will, therefore, enable it to morally identify with this basic idea, underlying the establishment of the Court.

Today, [the Government of Israel is] honoured to express [its] sincere hopes that the Court, guided by the cardinal judicial principles of objectivity and universality, will indeed serve its noble and meritorious objectives.”

However, subsequently, on 28 Aug. 2002, the Israeli government informed the Secretary General of the UN that it would not become a party:

“…..in connection with the Rome Statute of the International Criminal Court adopted on 17 July 1998, […] Israel does not intend to become a party to the treaty. Accordingly, Israel has no legal obligations arising from its signature on 31 December 2000. Israel requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty.”

Several reasons for Israel’s withdrawal were detailed by the Legal Adviser to the Israeli Foreign Ministry in a statement issued in June 2002.

* For a discussion of the reasons for Israel’s initial signing of the Statute, See, Blumenthal, Daniel, The Politics of Justice: Why Israel Signed the International Criminal Court Statute and What the Signature Means, 30  Ga. J. Int’l & Comp. L. 593 (2002). 


The Palestinian Authority’s Relationship to the ICC.  The Palestine Authority (“PA”) has twice pursued entry into the Rome Statute; first by a 21 Jan 2009 “Declaration Recognizing the Jurisdiction of the  International Criminal Court“, and second by a 31 Dec 2014 “Declaration Accepting the Jurisdiction of the International Criminal Court“. 

First Application.  Submitted in 2009, the Court’s Prosecutor opened a preliminary investigation into whether or not the Court could exercise jurisdiction and whether or not the PA could meet the definition of a “state” under the Rome Statute.  The substantial number of submissions filed with the Court concerning those issues were summarized in a May, 2010 memorandum issued by the Office of the Prosecutor.  In a decision issued on 3 Apr 2012, the Office of the Prosecutor announced that there was no basis to proceed with an investigation.  The Prosecutor’s Office stated in pertinent part:

“3. The first stage in any preliminary examination is to determine whether the preconditions to the exercise of jurisdiction under article 12 of the Rome Statute are met. Only when such criteria are established will the Office proceed to analyse information on alleged crimes as well as other conditions for the exercise of jurisdiction as set out in articles 13 and 53(1).  

4. The jurisdiction of the Court is not based on the principle of universal jurisdiction: it requires that the United Nations Security Council (article 13(b)) or a “State” (article 12) 
provide jurisdiction. Article 12 establishes that a “State” can confer jurisdiction to the Court by becoming a Party to the Rome Statute (article 12(1)) or by making an ad hoc declaration accepting the Court’s jurisdiction (article 12(3)). 

5.  … In instances where it is controversial or unclear whether an applicant constitutes a “State”, it is the practice of the Secretary‐General to follow or seek the General Assembly’s directives on the matter. This is reflected in General Assembly resolutions which provide indications of whether an applicant is a “State”. …

6. In interpreting and applying article 12 of the Rome Statute, the Office has assessed that it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court under article 12(1). The Rome Statute provides no authority for the Office of the Prosecutor to adopt a method to define the term “State” under article 12(3) which would be at variance with that established for the purpose of article 12(1). 

7.  … the current status granted to Palestine by the United Nations General Assembly is that of “observer”, not as a “Non‐member State”. “

Second Application.  This application, dated December 31 2014, came after the UN General Assembly adopted Resolution 67/19 in 2012, according “Palestine” the status of “a non-member observer State”.  The resolution was adopted after the failure of a 2011 diplomatic campaign by the PA in the Security Council to gain full membership in the UN of the “State of Palestine”.  The Security Council took no action on the request.  A subsequent campaign in 2014 to gain full membership also failed.  However, before the rejection of the second membership application by the Security Council, the ICC Prosecutor issued a statement concluding that the upgrading of the PA’s status by the General Assembly through Resolution 67/19, meant that it could now join the Rome Statute.  The second application to the ICC ensued, was accepted, and a preliminary examination opened by the Prosecutor. 

In addition to the documents available below,  All publicly available records in the court proceedings can be obtained from the Court’s main website, or its Legal Tools Database

23 September 2011 – PA submits application to the Security Council for full UN membership
11 November 2011 – Report to the Security Council of the Committee on New Members
29 November 2012 – General Assembly Resolution 67/19 adopted
2 September 2014 – Statement of the Prosecutor on the PA joining the Rome Statute
30 December 2014 – Security Council Meeting on PA proposalDraft resolution (not adopted)
31 December 2014 – PA Declaration accepting jurisdiction of the ICC
2 January 2015 – Depositary notification of accession by “State of Palestine” to Rome Statute
7 January 2015 – Acceptance of PA Declaration by the Registrar of the ICC
7 Janaury 2015 – Press Release: Welcoming by President of ICC Assembly of States
16 January 2015 – Press Release: ICC Prosecutor opens Preliminary Examination

The initial determination by the ICC to accept jurisdiction over the PA remains a contentious issue.

♦ The Government of Israel continues to oppose ICC jurisdiction since Israel is not a member of the ICC and because the Palestinian Authority is not a state.
♦ The UK Lawyers for Israel have submitted an analysis to the ICC Prosecutor challenging the Court’s jurisdiction over the situation.
♦ An exchange of opinions on the UK Lawyers’ analysis from opiniojuris.org.
♦ ICC Jurisdiction concerning Jewish communities in Judea and Samaria after adoption of Resolution 67/19 is challenged in an article by Eugene Kontorovich.
♦ In an article published in the Chinese Journal of International Law, Jure Vidmar addresses “Palestine and the Conceptual Problem of Implicit Statehood”.
♦ The Commissioner of the UK Department for International Development held [¶¶ 30-32], in deciding a Freedom of Information Request, that the PA is not a state.
♦ Questions remain concerning the extent to which the arguments and conclusions reached with respect to the PA’s first application may or may not have been superceded by adoption of General Assembly Resolution 67/19.

 


Gaza Flotilla Incident – Registered Vessels of the Union of the Comoros, et al.

On 31 May 2010, Israeli military forces intercepted a number of vessels attempting to break the legal blockade of Gaza.  The Israeli forces, upon boarding one of the vessels – the Mavi Mamara – were attacked by persons on-board the vessel.  In the ensuing fighting a number of the on-board persons were killed and a number of Israeli military personnel seriously injured.  Additional material and information concerning the incident is on the Mavi Marmara page.

In 2013, the Union of the Comoros, the state in which the Mavi Mamara was temporarily registered at the time of the incident, submitted a referral of the incident to the ICC.  The Prosecutor of the ICC has twice decided to close the matter after completing the preliminary examination, but in each instance a pre-trial chamber of the Court has sent it back to the Prosecutor.  The last remittal by the Pre-Trial chamber was appealed by the Prosecutor to the Appeals Chamber.  On 2 Sep 2019, the Appeals Chamber by a 3-2 vote rejected the Prosecutor’s appeal and ordered the case remitted to the Prosecutor for reconsideration.  For a third time, the Prosecutor reached the same conclusion to close the proceeding, after reconsideration and revision of its prior decision.

Significant documents in the court proceedings can be accessed below.  All publicly available records in the court proceedings can be obtained from the Court’s main website, or its Legal Tools Database.  

    1. Referral under Articles 14 and 12(2)(a) of the Rome Statute, 14 May 2013
    2. Assignment of Situation to Pre-Trial Chamber I, 5 Jul 2013
    3. Report of the Prosecutor – Decision to Close Preliminary Examination, 6 Nov 2014
    4. Application for Review of Prosecutor’s Determination, 29 Jan 2015
    5. Prosecutor’s Response to the Application for Review, 30 Mar 2015
    6. Observations on Behalf of “Victims” (1), 22 Jun 2015
    7. Observations on Behalf of “Victims” (2), 23 Jun 2015
    8. Prosecutor’s Response to” Victim” Observations, 14 Jul 2015
    9. Response by Comoros to “Victim” Observations, 14 Jul 2015
    10. Decision Requesting Prosecutor to Reconsider, 16 Jul 2015
    11. Partly Dissenting Opinion of Judge Kovács, 16 Jul 2015
    12. Prosecutor’s Appeal of Decision Requesting Reconsideration, 27 Jul 2015
    13. Decision Dismissing Prosecutor’s Appeal, 6 Nov 2015
    14. Dissenting Opinion of Judges Van den Wyngaert and de Gurmendi, 6 Nov 2015
    15. Prosecutor’s Final Determination Closing the Proceeding, 29 Nov 2017
    16. Application by Comoros for Review of Prosecutor’s Final Determination, 23 Feb 2018
    17. Prosecutor’s Response to the Application for Judicial Review, 13 Mar 2018
    18. “Victims’” Response to the Application for Judicial Review, 3 Apr 2018
    19. Decision on Application for Judicial Review, Again Requesting Reconsideration, 15 Nov 2018
    20. Partly Dissenting Opinion of Judge Kovács, 15 Nov 2018
    21. Prosecutor’s Request for Leave to Appeal Decision Requesting Reconsideration, 21 Nov 2018
    22. Response by Comoros to Prosecutor’s Request for Leave to Appeal, 26 Nov 2018
    23. Decision Granting in Part Prosecutor’s Request to Leave to Appeal, 18 Jan 2019
    24. Prosecutor’s Appeal Brief, 11 Feb 2019
    25. Application by Shurat HaDin – Israel Law Center, 1 Feb 2019
    26. Prosecutor’s Request to Dismiss Application by Shurat HaDin, 5 Feb 2019
    27. Request by Shurat HaDin for Leave to Reply to Prosecutor, 8 Feb 2019
    28. Decision Dismissing Shurat HaDin’s Application, 14 Feb 2019
    29. Appeal Chambers Decision Rejecting Appeal by Prosecutor, 2 Sep 2019
    30. Partly Dissenting Opinion of Judge Eboe-Osuji, 2 Sep 2019
    31. ICC Press Release on Appeal Chambers Decision, 2 Sep 2019
    32. Art. 15 Communication – Assessing Gravity, Jurisdiction and Evidence, 12 Nov 2019
    33. Prosecutor’s Final Decision Closing Proceeding, Revised and Refiled, 2 Dec 2019
    34. Application by Comoros for Review of Prosecutor’s Final Decision, 2 Mar 2020
    35. “Victim’s Response to the Application for Review, 4 May 2020
    36. Response to Application for Review by the Office of Public Counsel for Victims, 4 May 2020
    37. Prosecutor’s Consolidated Response to Third Application for Review, 11 May 2020

“Palestine” Situation

On 1 Jan 2015, the Palestinian Authority lodged a declaration under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court (ICC) over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014”.  On 16 Jan 2015, the Prosecutor announced the opening of a preliminary examination into the situation in “Palestine” in order to establish whether the Rome Statute criteria for opening an investigation have been met.  Specifically, under article 53(1) of the Rome Statute, the Prosecutor is charged with considering issues of jurisdiction, admissibility and the interests of justice in making this determination.  Among the submissions in the proceeding are three filed in 2019, pursuant to Article 15 of the Rome Statute, by the NGO, UK Lawyers for Israel (UKLFI).   

On 20 Dec 2019 the ICC Prosecutor issued her ruling that there is sufficient cause to open a full investigation of the matter in that, among other things Jewish settlements in Judea and Samaria, and the presence of Jews in the old city of Jerusalem, constitute war crimes   Nevertheless, the Prosecutor has also requested that first the Pre-Trial chamber should rule on whether or not the Court has jurisdiction.  The Prosecutor’s determination has been the subject of withering criticism, not least, by Australia and the United States.  See also, Richard Kemp’s condemnation in the Jerusalem Post, “The ICC decision on Israel would make Himmler proud.”  The fatal jurisdictional defects in the Prosecutor’s analysis have been addressed by the Israel’s Attorney General, the Israeli Foreign Ministry, and by the Executive Director of UKLFI.  See also, further statement of U.S. Secretary of State Pompeo.

In addition to the documents available below,  All publicly available records in the court proceedings can be obtained from the Court’s main website, or its Legal Tools Database

    1. PA Declaration accepting jurisdiction of the ICC 31 Dec 2014
    2. Announcement by ICC Prosecutor of opening of Preliminary Examination, 16 Jan 2015
    3. Prosecutor’s 2015 Report on Preliminary Examinations (pp. 11-17), 12 Nov 2015
    4. Statement by Prosecutor about October 2016 Visit to Israel and territories, 5 Oct 2016
    5. Prosecutor’s 2016 Report on Preliminary Examinations (pp. 25-32), 14 Nov 2016
    6. Prosecutor’s 2017 Report on Preliminary Examinations (pp. 12-18), 4 Dec 2017
    7. Statement of Prosecutor on Gaza Situation, 8 Apr 2018
    8. PA’s May 2018 Referral Regarding Jewish Communities in Judea and Samaria, 15 May 2018
    9. Prosecutor’s Statement Regarding the PA Referral, 22 May 2018
    10. Response to Referral by Israel, 22 May 2018
    11. Decision assigning the Referral to Pre-Trial Chamber I, 24 May 2018
    12. Decision on Information and Outreach for the Victims of the Situation, 13 Jul 2018
    13. Statement of the Prosecutor on the Situation, 17 Oct 2018
    14. Initial Report on Outreach Activities, 19 Nov 2018
    15. Prosecutor’s 2018 Report on Preliminary Examinations (pp. 63-70), 5 Dec 2018
    16. Second Report on Outreach, 12 Feb 2019
    17. UKLFI Submission the Principle of Complementarity, 1 Mar 2019
    18. Third Report on Outreach, 13 May, 2019
    19. UKLFI Submission on the Challenges Relating to 3rd-party Fact-finding, 27 May 2019
    20. UKLFI Submission Regarding Jurisdiction over Non-State Entities, 3 Jul 2019
    21. Fourth Report on Outreach, 9 Aug 2019
    22. UKLFI Submission Regarding Jurisdiction over Nationals of Non-State Parties, 19 Aug 2019
    23. Fifth Report on Outreach, 14 Nov 2019
    24. Prosecutor’s 2019 Report on Preliminary Examinations (pp. 54-60), 5 Dec 2019
    25. Prosecutor’s Final Determination on the Preliminary Examination, 20 Dec 2019
    26. Prosecutor’s Application for Extension of Page Limit, 20 Dec 2019
    27. Decision on the Prosecutor’s Application for an Extension of the Page Limit, 21 Jan 2020
    28. Prosecution Request for a Ruling on the Court’s Jurisdiction, 22 Jan 2020
    29. Order Setting Procedure and Schedule for Submissions, 28 Jan 2020
    30. Sixth Report on Outreach, 12 Feb 2020
    31. Decision on Applications for Leave to File Observations, 20 Feb 2020
    32. Amici Observations on Question of Jurisdiction
    33. Prosecutor’s Response to Amici Observations, 30 Mar 2020
    34. Order of the Pre-Trial Chamber Requesting Additional Information, 26 May 2020
    35. Response by the PA to the Pre-Trial Chamber’s Request, 4 Jun 2020
    36. Prosecutor’s Response to PA’s Submission, 8 Jun 2020
    37. Motion by Amicus Curiae ECLJ to File Supplemental Submission, 16 Jun 2020
    38. Pre-Trial Chamber’s Decision Denying ECLJ’s Motion, 17 Jun 2020
    39. Request by the Office of Public Counsel for Victims to Dismiss ECLJ’s Motion, 18 Jun 2020
    40. Information from the Office of Public Counsel for Victims Noting Its Motion is Moot, 18 Jun 2020

Implications of the ICC Afghanistan proceedings for the “Palestine” proceeding.  The unanimous decision of the a Pre-Trial Chamber of the ICC rejecting the Prosecutor’s request to open a full investigation into the situation in Afghanistan is seen to have significant implications for ICC proceedings concerning Israel and the Palestinian Authority.  In rejecting the Prosecutor’s request the Pre-Trial Chamber decided that an investigation into the situation in Afghanistan at this stage would not serve the interests of justice.  Upon appeal of the decision by the Prosecutor, the Appeals Chamber decided, on 5 Mar 2020 to authorize a full investigation by the Prosecutor. 

The implications for Israel have been analyzed by former Ambassador Alan Baker. US President Donald Trump referenced Israel in comments on the Pre-Trial Chamber’s ruling.  After reversal on appeal, US Secretary of State Michael Pompeo delivered remarks sharply critical of the Court and the Appeal Chamber’s ruling.  In further response, on 11 Jun 2020, President Trump issued an executive order imposing sanctions on ICC personnel.  The ICC issued a statement in response on the same day.