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Aug 30, 20205 min read

What is the International Criminal Court?

By: Diane Sun


The International Criminal Court is an international tribunal dedicated to prosecuting and investigating war crimes, genocide, crimes of aggression, and crimes against humanity. Often mistaken for the International Court of Justice, the ICC differs in that it prosecutes individuals, while the ICJ hears disputes between countries. Unlike the ICJ, the International Criminal Court is an independent institution distinct from the UN. However, the UN-ICC Relationship Agreement allows the UN Security Council to refer certain cases to the Prosecutor of the ICC.


One of the three ways the court can open an investigation is a referral from the UN Security Council.. They can also officially open an investigation if a member state refers a situation within its territory to the tribunal or if the prosecutor launches an investigation within ICC jurisdiction on their own initiative or Proprio motu. The court has three branches, the judiciary, the Office of the Prosecutor, and the Office of the Registrar. The judiciary is composed of 18 elected judges, each from different member states. The ICC seeks a gender-balanced bench, and also ensures that each of the United Nation’s 5 regions is represented within the judiciary. Both judges and prosecutors serve nonrenewable 9-year terms. The Office of the Prosecutor carries out the investigations and the current Chief Prosecutor is Gambian lawyer, Fatou Bensouda. The Office of the Registrar runs administrative duties of the court.


The International Criminal Court is a “court of last resort”, meaning it serves as a complement to existing national courts. The ICC will only prosecute a crime if the relevant national judicial system is unable, unwilling, or too unfair to take the case on themselves. The ICC has jurisdiction over a case when:

  • The accused is a citizen of an ICC member state

  • The alleged crime took place on the territory of an ICC member state, regardless if the accused is a citizen of an ICC member state

  • Whenever the UN Security Council asks the ICC to open an investigation

  • When a country voluntarily accepts ICC jurisdiction


The ICC also has jurisdiction over the following four categories of crimes:

  • War Crimes: such as violations of the Geneva Conventions, usage of child soldiers, sexual violence committed during armed conflict, etc.

  • Genocide: defined as actions intended to destroy in whole or in part a national, ethnic, racial, or religious group, such as the Darfur Genocide committed by Omar al-Bashir

  • Crimes of Aggression: the usage or threat of armed force against another state, and violations against the UN Charter

  • Crimes Against Humanity: a large range of acts committed as part of a widespread or systemic attack directed against any civilian population, i.e. slavery, rape, torture, etc.


However, the UN Security Council has the right to vote to block any investigation or prosecution. Once an investigation has been opened, a group of pretrial judges will decide whether the case will be brought to trial. Convictions require a majority vote from the three-judge panel, with convicted defendants being given the option to appeal the ruling to the ICC’s appellate bench, which comprises 5 judges.


123 countries have signed and ratified the Rome Statute, the treaty that created the ICC in 2002, making them a party to the International Criminal Court. Around 40 countries, including China, Iraq, North Korea, Turkey, and Saudi Arabia, never signed the original statute. Several other countries, such as Iran, Israel, Russia, Syria, Sudan, and the United States signed the statute, but never ratified it in their legislative bodies. Two countries have left the ICC in the past, Burundi in 2017 and the Philippines in 2019.


The United States has had a complicated relationship with the ICC, with the Bush administration being notably hostile towards the ICC, for fear of politicized prosecutions. In 2002, the American Service-Member’s Protection Act was passed by Congress, which required the government to cut off financial assistance to any countries that wouldn’t agree to not surrender US personnel to the ICC, as well as authorizing the president to use all means necessary to free Americans detained by the ICC. The Bush administration used that bill as a coercive tool to pressure governments around the world into entering bilateral agreements to not hand over US nationals to the ICC. The Obama administration was much softer on the ICC, cooperating with them on two critical suspect transfers — Bosco Ntaganda and Dominic Ongwen.


However, the Trump administration has been especially harsh on the ICC, angered by Fatou Bensouda’s attempts to investigate potential war crimes committed by US armed forces and CIA personnel in Afghanistan. The US may not be an ICC member state, but Afghanistan is, and as the alleged war crimes happened on ICC member state territory, Fatou Bensouda does have the jurisdiction to pursue this case. Bensouda’s initial request to open an investigation into Afghanistan was rejected in pretrial, but on March 5th, 2020, the ICC appeals chamber approved the investigation. As a result, the US has threatened to impose visa bans on any ICC officials involved in an investigation into Afghanistan and has also revoked Fatou Bensouda’s visa.


The ICC has faced various other criticism from the international community. Many African nations accuse the ICC of targeting the continent, considering that all of the 40+ individuals indicted by the ICC were from African nations. Other critics believe the court doesn’t have enough authority, making it ineffective. The lack of an ICC police force makes the organization entirely dependent on state cooperation for arrests. Furthermore, they’ve been criticized for their slow, cumbersome procedures and weak internal management. Another portion believes the ICC has too much power and defies due process, due to trials only requiring a two-to-one vote to convict someone to lengthy prison times. People have also raised concerns over judge biases and the admission of anonymous testimony.


Some ongoing preliminary examinations of interest include alleged crimes in occupied Palestinian territory, alleged crimes in the Philippines in the name of the “war on drugs” campaign, alleged war crimes committed by UK nationals in the Iraq conflict, and two separate Venezuela examinations. In Venezuela I, the ICC is examining alleged crimes committed by the State Party in using excessive force while dispersing demonstrations and detaining protestors. Venezuela Ⅱ was referred to the ICC by Venezuela themselves, alleging the US engaged in unlawful and coercive measures against the nation. Some situations under official investigation that will be up for a pretrial include alleged crimes against humanity and war crimes in Libya, alleged crimes committed against the Rohingya people in Myanmar and Bangladesh, and alleged war crimes in Mali.


Discussion Questions:

  • Is the International Criminal Court biased?

  • How can the International Criminal Court more effectively carry out arrests?

  • Would further integration with the UN help or hurt the ICC?

  • Has the ICC been effective?


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