Staff Blogger at SAIS Europe
Kenya has featured prominently in the international press in light of the commencement of the trial against deputy president William Ruto before the International Criminal Court (ICC) on September 10, 2013. The five charges of crimes against humanity relate to the unrest which immediately followed the presidential elections back in 2007. Amnesty International estimates that more than one thousand people were killed and more than 600,000 were displaced as direct result of the violence.
The start of the trial has also reignited African nations’ anger over the ICC which has been repeatedly criticised for predominantly targeting African dictators. Similarly, many African countries have voiced their fury over the fact that countries such as the United States, Russia, China and India refuse to ratify or accede to the Rome Statute – the treaty which established the International Criminal Court. Kenya has very recently passed a motion in its national parliament to withdraw from the ICC – and if ultimately does, it will set a dangerous precedent. There is a significant risk that many others would then follow suit.
The general public is aware of the existence of the ICC, yet an understanding of its origins, jurisdiction, procedure and activities is often lacking. For instance, it is not a criminal court in the traditional sense, but instead only exercises its jurisdiction in a limited number of circumstances and over the “most serious crimes of concern to the international community as a whole“(Article 5, Rome Statute of the International Criminal Court). This article will primarily focus on its origins, the exercise of its jurisdiction and the admissibility requirements.
The ICC has its origins in the long-standing effort to find a way to deal with the atrocities committed during the 20th century. In particular, the establishment of the ad hoc tribunals for Rwanda (International Criminal Tribunal for Rwanda) and Yugoslavia (International Criminal Tribunal for the Former Yugoslavia) again highlighted the need for a permanent international court that deals with grave crimes. Following years of negotiations, the Rome Statute of the International Criminal Court was finally adopted in 1998 – and it came into force on July 1, 2002. As of September 2013, there are currently 122 member states – and, as indicated previously, Russia, India, China and the United States are notable exceptions. 18 cases have been brought before the Court to-date – of which five are at the trial stage and two are at the appeals stage.
The Court may exercise its jurisdiction with respect to the crimes as defined Article 5 – namely genocide, crimes against humanity, war crimes and war of aggression. All crimes, with the exception of the latter, are defined in Articles 6 – 8. At the ICC’s first Review Conference in 2010, an amendment was passed which defines ‘war of aggression’. However the Court will not activate its jurisdiction over this crime until at least early 2017. Importantly however, pursuant to Article 11, the ICC only has jurisdiction over those crimes committed after July 1, 2002 – the day the Rome Statute entered into force (nulla crimen sine lege).
Notably, the International Criminal Court does not have universal jurisdiction. Pursuant to Article 12(2), the international crimes under Article 5 must either have been committed on the territory of a State Party (or a state that has voluntarily accepted its jurisdiction) or by one of its nationals (Article 12(2)). State Parties are able to refer situations where an Article 5 crime appears to have been committed (‘situations’) to the Prosecutor in accordance with Article 14. Additionally, the ICC Prosecutor has the (somewhat controversial) power to initiate proceedings independently on the basis of its own information (Article 13(c) subject to Article 15). This power was first used in the current ICC investigation in Kenya.
The ICC also has jurisdiction when the United Nations Security Council, acting under its Chapter VII powers, has referred to the matter to the Prosecutor. In the latter case, the nationality of the accused and the location of the alleged crime are irrelevant (Article 12(2) and 13(b)).
However, even if the ICC has prima facie jurisdiction, it will not necessarily consider every such case admissible – the ICC is a court of last resort that is guided by the principle of complementarity. For instance, Article 17 indicates that the ICC will not prosecute where the situation is insufficiently grave or generally where it either is or has been under investigation in a State Party’s courts. In the latter case, however, a case can become admissible where it can be shown that the State Party is unwilling or unable to carry out a genuine investigation / prosecution, for instance because the person in question is a high-ranking official that the government wants to shield from prosecution.
Finally, it is interesting to note that Belgium, along with other states such as Bolivia, Mexico, Romania and Slovenia proposed an amendment which would make the use of weapons prohibited by the Biological Weapons Convention and Chemical Weapons Convention a war crime in 2009. This amendment to Article 8 was later adopted at the first Review Conference in Uganda in 2010, thus making future events similar to those on the outskirts of Damascus in August 2013 justiciable by the ICC. Although it has not yet been ratified widely (as of September 2013: 10 states), the author is optimistic that this will change over the next few years.