The International Criminal Court

International Criminal Court (ICC)
Hans-Peter Kaul
Content type: Encyclopedia entries

Product: Max Planck Encyclopedia of Public International
Law [MPEPIL]
Article last updated: December 2010
Subject(s):
International criminal courts and tribunals — Procedure — Prosecution — Torture
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law
under the direction of Rüdiger Wolfrum.
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date:
23 March 2019
A. Historical Background and Objectives of the Court
1 The International Criminal Court (‘ICC’) is the first permanent treaty-based international
tribunal to deal with → individual criminal responsibility for the most serious international
crimes of concern to the → international community as a whole where national jurisdictions
are unwilling or unable genuinely to investigate or prosecute. The ICC represents a
significant step forward in terms of the implementation of → international criminal law
because it not only contributes to the development of international norms, but also ensures
their application in concrete cases of disrespect, with a direct impact on national and
international levels (→ International Law and Domestic [Municipal] Law, Law and Decisions
of International Organizations and Courts).
2 The ICC was established under the Rome Statute adopted by 120 States on 17 July 1998
during the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment
of an International Criminal Court in Rome (‘Rome Conference’; → Conferences and
Congresses, International). The 60th instrument having been deposited on 11 April 2002,
the Rome Statute entered into force in line with its Art. 126 (1) on 1 July 2002—at that time,
66 States had ratified the Rome Statute (→ Treaties, Conclusion and Entry into Force).
3 The ICC is rooted in the early development of the international law of armed conflict
(→ Humanitarian Law, International). Its history began in 1872 when the Swiss president of
the → International Committee of the Red Cross (ICRC), Gustave Moynier, drafted the first
statute for an international criminal court. However, his idea did not find sufficient support,
not even after the world had experienced the trauma of World War I. Art. 227 → Versailles
Peace Treaty (1919), containing a proposition for an ad hoc tribunal to punish the German
emperor, was never implemented. After World War II, the victorious Allied Powers, shocked
by the large-scale atrocities committed during the war, decided to try those mainly
responsible before → International Military Tribunals in Nuremberg and Tokyo. These
famous proceedings took place in 1945–46 and 1946–48, respectively, laying down the
foundations for international criminal justice in terms of both the definition of international
crimes and international individual criminal responsibility. Art. 6 Convention on the
Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’), which
foresees the establishment of an ‘international penal tribunal’, the → Universal Declaration
of Human Rights (1948), and the → Geneva Conventions I–IV (1949) reflect an arising
awareness in the international community as a consequence of the foregoing experiences.
Nevertheless, initiatives such as the 1950 Principles of International Law Recognized in the
Charter and the Judgment of the Nuremberg Tribunal ([1950] vol II UNYBILC 191) as well
as the 1954 Draft Code of Offences against the Peace and Security of Mankind ([1954] vol II
UNYBILC 112), both adopted by the → International Law Commission (ILC), did not result
in international → treaties or institutions.
4 In the second half of the 20th century, international law developed further, from a system
of co-existence to a more integrated system of co-operation. This development was
paralleled by the evolution of a system of → human rights protection. Nevertheless, States
were not yet willing to set aside considerations of → sovereignty and the principle of the
→ domaine réservé in the fields of criminal law and prosecution. Moreover, the political
division of the world created by the → Cold War (1947–91) did not allow for universal
solutions in such delicate matters.
5 It was only after the fall of the Berlin Wall that this situation changed fundamentally
(→ Germany, Unification of; → Berlin [1945–91]). In response to a motion by Trinidad and
Tobago in 1989 to combat drug trafficking by means of an international criminal court
(→ Narcotic Drugs; → Transnational Organized Crime), the UN General Assembly (→ United
Nations, General Assembly) invited the ILC to resume the drafting of an ICC Statute, a
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project the ILC had already commenced in 1949, but interrupted later for lack of support.
At the same time, the international community was again aroused by dramatic human
catastrophes, with → war crimes, → crimes against humanity, and even → genocide being
committed this time in dismembering Yugoslavia (→ Yugoslavia, Dissolution of) and
→ Rwanda. The UN Security Council (→ United Nations, Security Council) took decisions
under Chapter VII → United Nations Charter to create two ad hoc tribunals, the
→ International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993 and the
→ International Criminal Tribunal for Rwanda (ICTR) in 1994.
6 Energized by the end of the East–West conflict and supported by more and more States,
the ILC again began working in earnest on a Draft Code of Crimes against the Peace and
Security of Mankind ([1991] vol II part II UNYBILC 94), which was adopted on first reading
in 1991, and a Draft Statute for an International Criminal Court, which was adopted in
1994. An Ad hoc Committee of State Representatives was established to continue the
drafting work in 1994 (→ Representatives of States in International Relations). It was
followed by a Preparatory Committee for the Rome Conference. The Rome Conference
finally took place from 15 June to 17 July 1998. After the adoption of the Rome Statute on
the last day of the Rome Conference and its entry into force on 1 July 2002, the ICC was
inaugurated in The Hague, and the first 18 judges of the ICC were sworn in on 11 March
2003.
7 The ICC aims to hold individuals accountable for crimes that fall into the category of
most grave and large-scale violations of common values of humanity. In that sense, it shall
prevent impunity while also setting up a permanent system to deter potential offenders
world-wide, especially with regard to those mainly responsible who would try to hide behind
high hierarchical positions and influential networks on the national or regional level. An
important further objective is the improvement of solidarity within the international
community in respect of defending the interests of victims of international crimes by
bringing more justice to the world (see also → Transitional Justice in Post-Conflict
Situations; → Victims’ Rights), even to the most remote areas in the world. The ICC must be
detached from political or other inappropriate considerations, leading to a suitable selection
of cases in order to guarantee equality before the law to all accused, victims, and concerned
States. The mere existence of the ICC with its inherent concepts of complementarity and
→ subsidiarity to national jurisdictions could strengthen the functioning of national
prosecution of international crimes and encourage its further development (→ International
Criminal Courts and Tribunals, Complementarity and Jurisdiction; → International Law and
Domestic [Municipal] Law). Last, but not least, a successful ICC open to → civil society will
also heighten public confidence in and support for the international system as a whole.
B. Structure and Organs

1. The Court
8 The institution created by the Rome Statute is an independent international organization
with international legal personality that disposes of the necessary capacities to act on the
international scene and that enjoys immunity on the territories of States Parties
(→ International Organizations or Institutions, General Aspects; → International
Organizations or Institutions, Privileges and Immunities). At the same time, the ICC is a
complex judicial machinery for the prosecution and trial of perpetrators of international
crimes.
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9 The seat of the ICC has been established in The Hague, The Netherlands (→ International
Organizations or Institutions, Headquarters). The funds of the ICC and the Assembly of
States Parties (‘ASP’) are provided for through assessed contributions made by States
Parties and voluntary donations from private and governmental sources (→ International
Organizations or Institutions, Financing of).
10 As of December 2010, 114 States have ratified the Rome Statute and thereby accepted
the jurisdiction of the ICC pursuant to Art. 12 (1) Rome Statute. In that sense, the ICC is on
its way to becoming a truly universal judicial body. In 2007, Japan, as a major player
amongst the Asian States, ratified the Rome Statute. However, several important States still
maintain their more or less firm objections to the institution. Above all, the United States
has not ratified the Rome Statute, even though President Obama seems to have abandoned
the explicit hostility towards the court which characterized the relations between the ICC
and the US government under the administration of George W Bush.
2. Organs
11 As listed in Art. 34 Rome Statute, the ICC is composed of four organs: the two judicial
organs, ie the Presidency and the chambers divisions; the Office of the Prosecutor (‘OTP’);
and the Registry.
(a) The Judges

12 Making up the two judicial organs and fulfilling the actual judicial function of the ICC,
its judges have a central role in the court’s functioning (→ International Courts and
Tribunals, Judges and Arbitrators). According to Art. 36 Rome Statute, the number of
judges at the ICC is 18. This number may be increased if the need arises.
13 Judges are nominated by States Parties and elected by the ASP for a term of nine years.
Elections take place every three years for one third of the judges. In order to establish this
rhythm, the judges elected in the first election in 2003 drew lots in order to determine who
was to serve an initial term of three, six, or nine years. Except for those judges who were
initially elected for a term of three years, judges generally may not be re-elected once their
term of office has elapsed.
14 According to Art. 36 (3) Rome Statute, candidates must be of high moral character,
impartiality, integrity, and possess the qualification for the highest judicial offices in their
countries. They must be knowledgeable either in criminal law and procedure or in relevant
areas of international law. Equally important is the representation of the principal legal
systems of the world, an equitable geographic representation, and a fair representation of
female and male judges. Finally, States Parties are obliged to take into account the need for
judges with expertise in specific fields, such as → gender-based crimes, and → children and
armed conflict.
15 Several rules aim to guarantee the independence and impartiality of judges, chief
among them Art. 40 Rome Statute, which prohibits activities that are likely to interfere with
the judicial function or to affect confidence in the independence of a judge. Full-time judges
may not exercise any other professional occupation at all. According to Art. 41 Rome
Statute, a judge may, at request, be excused by the Presidency. Where the impartiality of a
judge in a given case is in doubt, the prosecutor or the accused may request the
disqualification of that judge. The decision on such request is taken by an absolute majority
of the judges (Art. 41 (2) (c) Rome Statute). The Code of Judicial Ethics adopted by the
judges in 2005 provides that judges must not only uphold the independence of their office
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and act impartially, but must also act to further confidence in their independence and the
appearance of impartiality.
16 Apart from their mentioned role in the disqualification of a judge, the judges as a group
also have other responsibilities under the Rome Statute, inter alia, adopting the Regulations
of the Court (‘ICC Regulations’) necessary for its routine functioning (Art. 52 Rome Statute)
and proposing amendments to the Rules of Procedure and Evidence (‘RPE’; Art. 51 (2) (b)
Rome Statute) and the Elements of Crimes (Art. 9 (2) (b) Rome Statute), which may then be
adopted by the ASP.
(b) The Presidency

17 The Presidency consists of the president and a first and a second vice-president, who
are elected from among the judges by an absolute majority and serve for a term of three
years (Art. 38 Rome Statute). They are eligible for re-election once.
18 The general responsibility of the Presidency is the proper administration and efficient
management of the ICC, with the exception of the OTP (Art. 38 (3) (a) Rome Statute). In this
sense, the Presidency decides on whether or not to require judges to serve on a full-time
basis (Art. 35 (3) Rome Statute) and may propose to the States Parties to increase the
number of judges if necessary (Art. 36 (2) (a) Rome Statute). It may also waive the
privileges and immunities of the registrar (Art. 48 (5) (b) Rome Statute).
19 Besides this general responsibility, the Presidency has several competencies concerning
the actual judicial function of the ICC: it assigns cases to the pre-trial and trial chambers
(Art. 61 (11) Rome Statute; Reg. 46 ICC Regulations), deals with requests by a judge (Art.
41 (1) Rome Statute) or the prosecutor (Art. 42 (6) Rome Statute) to be excused from a
case, and decides which of the ICC’s decisions are of fundamental importance and, thus, to
be published in all the official languages of the ICC (Art. 50 (1) Rome Statute).
20 Besides those competencies of the Presidency, the president also has further
competencies, among which are the representation of the ICC in concluding the
Relationship Agreement with the → United Nations (UN) (‘Relationship Agreement’) and the
Headquarters Agreement with the Host State (‘Headquarters Agreement’; Arts 2, 3 Rome
Statute). The president is also responsible for oversight over the registrar (Art. 43 (2) Rome
Statute).
(c) The Chambers Divisions

21 The chambers of the ICC are organized into three divisions: the Pre-Trial Division; the
Trial Division; and the Appeals Division.
(i) The Pre-Trial Division

22 The Pre-Trial Division is composed of not less than six judges who sit in pre-trial
chambers made up of three judges. With regard to certain decisions, the function of the pre-
trial chambers may be carried out by a single judge elected from among the chamber’s
members (Art. 39 (2) (a), (b) (iii) Rome Statute).
23 In general, the pre-trial chamber has two main functions. It decides whether, on the
basis of the case brought by the prosecutor, there is prima facie evidence warranting a trial,
in which case it confirms the charges (Art. 61 Rome Statute). It also decides most questions
relating to jurisdiction and admissibility so that those, in principal, do not burden an
eventual subsequent trial.
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24 The main responsibility of the pre-trial chamber is to supervise and review the activities
of the OTP especially with regard to the exercise of the prosecutor’s proprio motu powers
(Art. 15 (3)–(5) Rome Statute) and decisions not to investigate or prosecute (Art. 53 (3)
Rome Statute) and to ensure the proper course of the preliminary proceedings.
25 The role of the Pre-Trial Division must still be shaped by practice and jurisprudence. It
is neither directly comparable to that of the juge d’instruction in, for example, the French
system nor to the role of courts with regard to investigations in other criminal law systems.
This is especially true with regard to its powers vis-à-vis the prosecutor: the Rome Statute
generally indicates an active role for the judiciary comparable to civil law systems and not
the unlimited freedom of action for the prosecution that exists in most common law
systems. In the interests of justice and efficiency, a proper balance between the importance
of an independent prosecution and the necessity of judicial supervision needs to be found.
(ii) The Trial Division

26 At least six judges form the Trial Division, which is divided into trial chambers
composed of three judges (Art. 39 (1), (2) (b) (ii) Rome Statute). The trial chamber is
responsible for the main part of the proceedings, ie the actual trial, culminating in the
decision on guilt or innocence (Art. 74 Rome Statute) and on a sentence in case of
conviction (Art. 76 Rome Statute).
27 The trial chamber can also sanction misconduct before the ICC and has jurisdiction
over offences committed against its administration of justice, such as giving false testimony,
presenting false or forged evidence, intimidating or retaliating against witnesses and ICC
officials, as well as the acceptance of bribes by ICC officials (Arts 70–71 Rome Statute).
(iii) The Appeals Division

28 The president and four other judges are assigned to the Appeals Division, which at the
same time constitutes the Appeals Chamber. These judges are the only ones who are
excluded from rotation within the chambers (Art. 39 (1), (2) (a), (4) Rome Statute).
29 The Appeals Chamber decides on appeals against decisions on guilt or innocence or on
sentence as well as on interlocutory appeals, which may be brought against certain
decisions of the pre-trial or trial chambers while the respective proceedings are still on-
going (Arts 81–82 Rome Statute).
30 Finally, the Appeals Chamber also decides on applications for revision of final
judgments (Art. 84 Rome Statute) as well as for the disqualification of the prosecutor (Art.
42 (8) Rome Statute).
(d) The Office of the Prosecutor

31 The OTP is an independent organ of the ICC with high internal autonomy for self-
organization according to the necessities of its functions. It is responsible for the reception
and examination of referrals and information on crimes as well as for carrying out
investigations and prosecutions (Art. 42 (1) Rome Statute). The OTP is headed by a
prosecutor and one or more deputy prosecutors who shall be persons of high moral
character with competency and experience in criminal trials. The ASP elects them for a non-
renewable term of nine years during which, in order to guarantee their independence, they
may not have other professional occupations or exercise possibly interfering activities. In
cases of potential partiality, they can be excused or disqualified (Art. 42 (2)–(5) Rome
Statute).
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32 Pursuant to Art. 53 Rome Statute, the OTP first proceeds to a preliminary assessment
with regard to the jurisdiction of the ICC, admissibility, and interests of justice for the
investigation and prosecution. During its investigations, which usually comprise → fact-
finding missions in the field, the OTP collects, examines, and tests evidence and takes
testimonies and statements of witnesses. It must investigate incriminating and exonerating
circumstances equally and take into account the interests of victims and witnesses (Art. 54
(1) (a) Rome Statute). In view of the limited resources of the ICC, the prosecutor stated that
as a general rule, the OTP should focus its investigative and prosecutorial efforts and
resources on those who bear the greatest responsibility such as the leaders of the State or
organization allegedly responsible for those crimes (→ Heads of Governments and Other
Senior Officials; → Heads of State).
33 The proprio motu powers of the prosecutor are of paramount importance to the idea of
independent international justice in criminal matters. Not surprisingly, these powers
continue to be a matter of concern for certain States. Under Arts 13 (c) and 15 Rome
Statute, the prosecutor is empowered to initiate investigations ex officio solely based on his
or her own appreciation of a certain situation or information. However, the OTP needs prior
authorization from the pre-trial chamber, which is intended to counterbalance the
considerable competencies of the prosecutor by means of proper judicial control (Art. 15
(3)–(5) Rome Statute). In general, the pre-trial chamber also monitors the prosecutor’s
activities to ensure the integrity and fairness of the proceedings (→ Fair Trial, Right to,
International Protection).
(e) The Registry

34 The Registry is responsible for the non-judicial aspects of the administration and
servicing of the ICC (Art. 43 Rome Statute). The registrar is the principal administrative
officer of the ICC. The person is recommended by the ASP, elected by an absolute majority
of the judges for a five-year term, and may be re-elected once. The registrar may be
assisted by a deputy registrar.
35 The main functions of the Registry can be divided into two general categories: the first
is a wide variety of functions within the general administration of the ICC, such as
personnel (Art. 44 Rome Statute), budget and finance questions (see the Financial
Regulations and Rules), security and safety (Rule 13 (2) RPE), and oversight of persons in
the custody of the ICC (Reg. 90 ICC Regulations). Second, the Registry provides assistance
in the actual judicial work of the ICC, such as maintenance of official case records,
circulation of information and official documents among parties, and staff or translation
services. The Registry is also concerned with matters concerning the defence and victims
and, therefore, comprises sections concerned with victim participation in trials (Reg. 86 (9)
ICC Regulations) and support and protection for victims and witnesses (Art. 43 (6) Rome
Statute), as well as a section that assists the defence (see Rules 20–22 RPE). Finally, two
independent Offices of Public Counsel, one for victims and one for the defence, are part of
the Registry (Regs 77, 81 ICC Regulations).
3. The Assembly of States Parties

36 The specific character of the ICC as an international organization has led to an
important role for the ASP. Each State Party has one vote and can send one delegate to the
Assembly, which elects a permanent secretariat and a bureau. If possible, the ASP shall
reach its decisions by → consensus; otherwise, a two-thirds majority for matters of
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substance and a simple majority for matters of procedure are necessary (Art. 112 Rome
Statute; → International Organizations or Institutions, Voting Rules and Procedures).
37 The ASP exercises the main legislative and oversight functions: it adopts most of the
fundamental legal texts, provides for management oversight regarding the administration
of the ICC, and considers and decides on the budget. It elects the judges (Art. 36 Rome
Statute), the prosecutor, and the deputy prosecutor(s)  (Art. 42 (4) Rome Statute) and can,
under specific circumstances, decide upon their removal from office (Art. 46 Rome Statute).
38 Other competencies of the ASP include reacting to non-co-operation by States with the
ICC  (Art. 87 (5), (7) Rome Statute), the settlement of disputes between States Parties (Art.
119 (2) Rome Statute), and the approval of the Relationship Agreement and of the
Headquarters Agreement (Arts 2, 3 (2) Rome Statute). In order to enhance the efficiency
and economy of the ICC, the ASP may even create an oversight mechanism for inspection,
evaluation, and investigation of the ICC (Art. 112 (4) Rome Statute).
C. Scope and Functioning

1. Jurisdiction and Admissibility
39 The ICC is not a court with universal jurisdiction. One of its fundamental principles is
the principle of complementarity with regard to national criminal proceedings, meaning
that the ICC will only investigate and prosecute cases in which national courts are unwilling
or unable genuinely to investigate or prosecute (Art. 17 (1) Rome Statute). The Rome
Statute recognizes the primacy of national prosecutions and, thus, reaffirms State
sovereignty, especially the sovereign and primary right of States to exercise criminal
jurisdiction (→ Criminal Jurisdiction of States under International Law; → International
Criminal Jurisdiction, Protective Principle; → Jurisdiction of States). In other words, the
scope of activity of the ICC is quite limited and restricted to the highest common
denominator States could agree upon, taking into account concerns of certain States of a
too powerful independent international justice institution.
(a) Jurisdiction ratione materiae

40 The ICC is competent to deal with an exhaustive list of international core crimes
specified in Arts 6 to 8 Rome Statute, further developed in the Elements of Crimes.
According to Art. 5 Rome Statute, the selection of core crimes for which the ICC is
competent is limited to ‘the most serious crimes of concern to the international community
as a whole’.
41 The concept of criminal liability follows the traditional system of definitions of crimes
comprising both factual and mental elements. Pursuant to Art. 25 Rome Statute, the ICC
may take into account different forms of participation in punishable acts (→ Criminal
Responsibility, Modes of). Besides the actual perpetration, it can also punish various other
forms of participation in a crime such as perpetration jointly with or through another
person, aiding and abetting, ordering and soliciting, as well as contributing to the
commission of a crime by ‘a group of persons acting with a common purpose’ (Art. 25 (3) (d)
Rome Statute). Art. 28 Rome Statute provides for the criminal responsibility of commanders
and other superiors. In the case of genocide, direct and public incitement may also be
punished. There is also a provision for punishment of attempted crimes.
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(i) The Crime of Genocide
42 According to Art. 6 Rome Statute, the ICC’s jurisdiction ratione materiae encompasses
the crime of genocide. The definition of this crime is taken verbatim from Art. 2 Genocide
Convention.
(ii) Crimes against Humanity

43 Crimes against humanity are laid down in Art. 7 Rome Statute. While the concept of
crimes against humanity has been known since the Charter of the International Military
Tribunal, Art. 7 Rome Statute together with its Elements of Crimes (Art. 9 Rome Statute)
represent the most concrete and detailed international codification of the substantive
content of crimes against humanity (→ Codification and Progressive Development of
International Law). It includes several important novel crimes, such as the crime of
→ apartheid, forced pregnancy, and enforced → disappearances.
44 Art. 7 (1) Rome Statute lays down that in order to constitute a crime against humanity,
acts must be ‘committed as part of a widespread or systematic attack directed against the
civilian population, with knowledge of the attack’. Art. 7 (2) (a) Rome Statute further
defines the attack as the ‘multiple commission of acts referred to in paragraph 1 against
any civilian population, pursuant to or in furtherance of a State or organizational policy to
commit such attack’, thus laying down a compromise between the position held by some
States that the requirements ‘widespread’ and ‘systematic’ in Art. 7 (1) Rome Statute
should be cumulative and the position that either of the two requirements should suffice. Be
that as it may, Art. (7) (2) (a) Rome Statute requires de lege lata that the attack against any
civilian population must be ‘pursuant to or in furtherance of a State or organizational policy
to commit such attack’. A merely passive role in the sense of absence of governmental or
organizational action would not be sufficient for an attack, even though footnote 6 of the
Elements of Crimes clarifies that ‘a policy may, in exceptional circumstances, be
implemented by a deliberate failure to take action, which is consciously aimed at
encouraging such attack’.
45 Art. 7 (1) Rome Statute defines 11 crimes against humanity, including crimes committed
against individuals, such as murder, torture (→ Torture, Prohibition of), enslavement
(→ Slavery; → Forced Labour/Slave Labour), crimes of sexual violence, and crimes directed
against groups, such as deportation or forcible transfer of population (→ Forced Population
Transfer; → Population, Expulsion and Transfer), persecution, and the crime of apartheid. In
addition to 10 specified crimes, the Rome Statute also criminalizes ‘[o]ther inhumane acts
of a similar character intentionally causing great suffering, or serious injury to body or to
mental or physical health’ (Art. 7 (1) (k) Rome Statute).
46 Art. 7 (2) Rome Statute further specifies certain crimes as contained in Art. 7 (1) Rome
Statute.
47 Art. 7 Rome Statute comprises several acts linkable to genocidal incidents, such as
murder, forced pregnancy with the intent of affecting the ethnic composition of a population
(→ Ethnic Cleansing), extermination, persecution, and violations of physical integrity. The
article could therefore also serve as a subsidiary provision if a suspect cannot be held
responsible for genocide.
(iii) War Crimes

48 The third category of crimes within the jurisdiction of the ICC is war crimes as defined
in Art. 8 Rome Statute. The regime is inspired by the law of the Geneva Conventions I–IV
and the rules of the (customary) international law of armed conflict and explicitly refers to
these sources. This is especially true with regard to Art. 8 (2) (b) and (e), which both
criminalize, inter alia, conduct prohibited by → Geneva Conventions Additional Protocol I
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(1977) and → Geneva Conventions Additional Protocol II (1977). In order to alleviate
concerns of non-Members to the additional protocols that they would, in effect, be bound
even by those provisions of the protocols which had not acquired the status of → customary
international law, the wording ‘within the established framework of international law’ was
added to the chapeau of Art. 8 (2) (b) and (e) Rome Statute.
49 Art. 8 (1) Rome Statute stresses that the ICC shall have jurisdiction in respect of war
crimes ‘in particular when committed as part of a plan or policy or as part of a large-scale
commission of such crimes’. This so-called threshold clause is the result of a compromise
with States worried about an international criminal trial for isolated acts of individuals from
their troops.
50 The Rome Statute distinguishes between war crimes in international armed conflicts
(→ Armed Conflict, International) and in armed conflicts not of an international character
(→ Armed Conflict, Non-International), and between violations of the Geneva Conventions I–
IV and other violations. Accordingly, the catalogue of altogether 50 war crimes is divided
into four lists: grave breaches of the Geneva Conventions I–IV in international armed
conflict (Art. 8 (2) (a) Rome Statute); other serious violations of the law of international
armed conflict (Art. 8 (2) (b) Rome Statute); serious violations of the common Art. 3 Geneva
Conventions I–IV in non-international armed conflict (Art. 8 (2) (c) Rome Statute); and other
serious violations of international law in non-international armed conflict (Art. 8 (2) (e)
Rome Statute). According to  Art. 8 (d) and (f) Rome Statute, acts committed in situations
of internal disturbances and tensions, such as, for example, riots, are excluded from the
scope of the article (cf Art. 1 (2) Additional Protocol II).
51 The definitions provided for by the Rome Statute and the related Elements of Crimes
are very detailed and sometimes more specific than the corresponding rules of the
international law of armed conflict. However, the definitions must be read in light of
existing international humanitarian law and interpreted ‘within the established framework
of the international law of armed conflict including, as appropriate, the international law of
armed conflict applicable to armed conflict at sea’, according to the introduction to Art. 8
Elements of Crimes.
52 Pursuant to the Elements of Crimes, there is no requirement for a legal evaluation by
the perpetrator as to the existence of an armed conflict or its character as international or
non-international and no requirement for awareness by the perpetrator of the facts that
established the character of the conflict as international or non-international but only for
the awareness of the factual circumstances that established the existence of an armed
conflict (Introduction Art. 8 Elements of Crimes). The link, also called ‘nexus’, between the
illegal acts and the armed conflict cannot be merely accidental but must represent a true
connection.
(iv) The Crime of Aggression

53 The crime of → aggression is included in the list of crimes within the jurisdiction of the
ICC in Art. 5 Rome Statute (→ Peace, Right to, International Protection). At the review
conference in Kampala in 2010, the States Parties adopted a historic amendment to the
Rome Statute, including a definition of the ‘crime of aggression’ and the ‘act of aggression’,
as well as determining preconditions and procedural provisions for exercising the ICC’s
jurisdiction over the crime of aggression. This jurisdiction needs to be activated by the
States Parties on 1 January 2017 at the earliest. The court will only have jurisdiction over
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cases of aggression committed at least one year after the ratification or acceptance of the
amendments by at least 30 States Parties.
54 The most controversial part of the Kampala negotiations was the question whether
proceedings can be triggered by actors other than the UN Security Council. The Kampala
negotiations had to deal with highly sensitive issues centred on the ICC’s relationship with
the UN Security Council in cases of aggression, especially concerning the Security
Council’s power under Art. 39 UN Charter to ‘determine the existence of any … act of
aggression’. The permanent members of the Security Council and some other States had
proposed that such a determination by the Security Council should be a precondition for the
exercise of the ICC’s jurisdiction, a position that was opposed primarily by States from the
→ Non-Aligned Movement (NAM). In the final compromise, not only the Security Council but
also States Parties as well as the prosecutor can trigger proceedings, although under strict
conditions. In respect of a non-State Party the ICC shall not exercise its jurisdiction over the
crime of aggression when committed by that State’s nationals or on its territory (see Art.
15bis (5)  Rome Statute). Furthermore, the exercise of jurisdiction over the crime of
aggression committed by a State Party is subject to the authorization by the entire Pre-Trial
Division (when proceedings are triggered by a State Party or by the prosecutor) and require
the aggressor State’s prior consent. Interestingly, this consent is presupposed unless the
State Party ‘has previously declared that it does not accept such jurisdiction by lodging a
declaration with the Registrar’ (Art. 15bis (4)  Rome Statute). One aspect of the Kampala
compromise which needs to be analysed further is whether this ‘opt-out procedure’ may
contradict the provision on amendments in Art. 121 (5) Rome Statute, which states that
amendments only apply vis-à-vis those States Parties which accepted them.
(b) Jurisdiction ratione temporis

55 The limitations resulting from the jurisdiction ratione temporis rules of the Rome
Statute are considerable. According to Art. 11 (1) Rome Statute, the ICC is only competent
with regard to crimes committed after the entry into force of the Rome Statute, 1 July 2002,
for original members. With respect to States that later become parties to the Rome Statute,
the relevant date is the first day of the month after the 60th day following the deposit of the
instrument of ratification, according to Art. 126 (2) Rome Statute. The Rome Statute has
thus embodied the principle of non-retroactivity of the effect of international treaties. This
is one reason why a different solution in the form of → Mixed Criminal Tribunals (Sierra
Leone, East Timor, Kosovo, Cambodia) had to be found to deal with crimes committed in
→ Sierra Leone, East Timor (Timor), and Cambodia (→ Cambodia Conflicts [Kampuchea]).
One may say that the ICC’s jurisdiction ratione temporis is set up so as to grant States
tabula rasa in respect of their nationals for events happening before the entry into force of
the Rome Statute. This principle was a common negotiating basis for most, if not all, States
participating in the elaboration of the Rome Statute.
56 With regard to Art. 126 (2) Rome Statute, however, the Statute contains a certain
degree of flexibility. First, any non-Member State can make a formal declaration under Art.
12 (3) Rome Statute accepting the jurisdiction of the ICC with regard to certain crimes.
→ Côte d’Ivoire was the first State to use this possibility in 2005. Second, the UN Security
Council may refer a situation to the ICC based on Art. 13 (b) Rome Statute; however the
ICC remains bound by the limitations to the jurisdiction ratione materiae. In both cases,
only the basic rule of Art. 11 (1) Rome Statute—limiting the jurisdiction to crimes
committed after 1 July 2002—applies.
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57 A restrictive exception is the so-called ‘transitional provision’ of Art. 124 Rome Statute,
which allows new States Parties to exclude, for a period of seven years after the entry into
force of the Rome Statute for themselves, war crimes involving their territory or nationals
from the jurisdiction of the ICC. Up until 2010, two States—Colombia and France—have
availed themselves of this option. In 2008 France, however, withdrew its declaration. The
effects of the Colombian declaration expired on 1 November 2009.
(c) Jurisdiction ratione loci and Jurisdiction ratione personae

58 Pursuant to Art. 12 (2) (a) and (b) Rome Statute, the ICC has jurisdiction if crimes have
been committed on the territory of a State Party including vessels and aircraft if it is the
State of registration (→ Flag of Ships) or if the accused is a national of a State Party
(→ Nationality). Accordingly, the Rome Statute has chosen a quite classical, if not
conservative and State sovereignty-oriented, approach with respect to the preconditions for
the exercise of criminal jurisdiction. The principle of territoriality and the active personality
principle are the two most recognized, indeed, universally accepted, bases for exercising
criminal jurisdiction under international law. The necessity for a link between a State Party
and the crime means that → universality is not, as such, a concept of the Rome Statute. In
particular, the jurisdiction is not linked to the custodial State, an omission which has often
been criticized. Before and during the Rome Conference, most States had supported a
proposal according to which custody of a suspect by a State Party would have been a
sufficient basis for the jurisdiction of the ICC. This would have strengthened the deterrent
effect of the Rome Statute since perpetrators would not have been able to enter the
territory of any State Party without fear of being taken into custody and surrendered to the
ICC. Another basis for the ICC’s jurisdiction which was rejected is the passive personality
principle, which would have granted jurisdiction where the victim was a national of a State
Party.
59 The most crucial exception to the restrictive regime of jurisdiction summarized above is
the possibility of a UN Security Council referral pursuant to Art. 13 (b) Rome Statute. This
provision gives the UN Security Council the power to refer to the ICC, in a resolution under
Chapter VII UN Charter, situations in which crimes under the Rome Statute appear to have
been committed regardless of whether the preconditions for the exercise of jurisdiction as
referred to in Art. 12 (2) (a) and (b) Rome Statute are fulfilled. In such cases, which may
also concern non-Member States, the legal basis of the ICC’s mandate lies in the Security
Council’s powers under Chapter VII of the UN Charter. In other words, the ICC may gain
some sort of universal jurisdiction if the Security Council actively supports the ICC. Its
Resolution 1593 (2005) of 31 March 2005, in which the Security Council ‘decide[d] to refer
the situation in Darfur since 1 July 2002 to the Prosecutor of the [ICC]’, constituted the first
time that the Security Council used its powers under Art. 13 (b) Rome Statute. In contrast
to UNSC Resolutions 827 (1993) of 25 May 1993 and 955 (1994) of 8 November 1994, the
mandate resolutions for the ICTY and the ICTR, respectively, Resolution 1593 does not
contain a binding obligation on UN Member States to co-operate with the ICC in the
fulfilment of its mandate regarding Darfur, → Sudan. In the situation regarding Darfur, four
cases with six suspects are being heard before a pre-trial chamber. On 4 March 2009 a pre-
trial chamber issued an arrest warrant against the current president of Sudan, Omar
Hassan Ahmad al-Bashir, on the basis of five counts of crimes against humanity and two
counts of war crimes. The majority of the chamber found, however, that the prosecutor did
not provide enough evidence to include the crime of genocide in the charges. This decision
was appealed by the prosecutor and on 3 February 2010, the appeals chamber directed the
pre-trial chamber to decide anew on the inclusion of genocide charges in the warrant of
arrest as the standard of proof used by the pre-trial chamber was found to be too
demanding. A second arrest warrant was then issued on 12 July 2010, including three
counts of genocide. Whereas three suspects appeared voluntarily before the ICC, the other
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three suspects (among them President al-Bashir) remain at large. It remains to be seen
whether UN Security Council members and States Parties will provide enough support for
the extremely difficult task of investigating and prosecuting crimes committed in this
situation and contribute to the arrest of the suspects at large.
60 A second important exception enlarging the competency of the ICC is the above-
mentioned option for non-Member States to accept on an ad hoc basis the ICC’s jurisdiction
‘with respect to the crime in question’ according to Art. 12 (3) Rome Statute (see para. 56
above). In order to avoid the risk that non-Member States may, for their own reasons, adopt
a ‘pick and choose’ attitude with respect to the crimes in question committed on their
territory and thus, the further risk of so-called ‘asymmetric liability’, a broad interpretation
of the term ‘crime in question’ has been chosen in Rule 44 RPE, which refers to a situation
and not to a single incident.
(d) The Principle of Complementarity

61 The principle of complementarity, as provided for in particular in Art. 17 Rome Statute,
is the decisive basis of the entire ICC system. Complementarity entails that judicial
proceedings before the ICC are only admissible if and when States which would normally
have jurisdiction are either unwilling or unable genuinely to exercise their jurisdiction. It is
important to understand the principle of complementarity as the common response of the
international community to the question of the relationship between the jurisdiction of the
ICC and the various national criminal jurisdictions. Consensus among UN Member States
on the sovereignty-friendly principle of complementarity, as summarized above (para. 39),
was the decisive basis for the future ICC and was, therefore, the conditio sine qua non for
the convening of the Rome Conference, the adoption of the Rome Statute, and the
subsequent establishment of the ICC. Thus, in order not to challenge the jurisdiction of
Nation States per se, the ICC was given a complementary nature as expressed in the 10th
paragraph in the Preamble to the Rome Statute and Art. 1 Rome Statute. Functioning as a
subsidiary instance and as a court of last resort, it takes over the tasks of passive, unwilling,
or dysfunctional internal jurisdictions as in → failing States when there is a need to preserve
the interest of the international community as a whole. The principle of complementarity
was preferred to the concept of concurrent jurisdiction adopted for the ad hoc international
criminal tribunals. It is now reflected in several important procedural provisions of the
Rome Statute.
62 First of all, the principle of complementarity is applicable regardless of the trigger
mechanism. The Office of the Prosecutor must analyse the role that national jurisdictions
play in a certain situation at the very beginning of the preliminary examination on whether
there is a sufficient basis to proceed (Art. 53 (1) (b) Rome Statute). The rules on
admissibility in Art. 17 Rome Statute clearly express that the ICC is not competent if a case
is investigated or prosecuted on the national level; if, after an investigation, the national
jurisdiction has decided not to prosecute; or if the suspect has already been tried for the
conduct in question (→ Ne bis in idem). In that respect, national proceedings must
encompass both the person and the conduct which is the subject of the case before the ICC.
Only if a State is or has been unwilling or unable genuinely to investigate or prosecute can
the ICC claim competency.
63 In order to determine a case of unwillingness,  Art. 17 (2) Rome Statute states in
broad terms the relevant criteria: proceedings undertaken for the purpose of shielding a
person; unjustified delay or conduct of proceedings inconsistent with the intent to bring the
person to justice; or a lack of independence and impartiality. It seems noteworthy that these
standards have been criticized as too high. Future decisions will show to what extent
doubts in that respect are appropriate. In addition, the wording of the provision provides no
answer to the question of how the ICC should deal with → amnesties, pardon, or parole
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granted in the aftermath of a national trial, which might be attempts by the State to shield a
perpetrator. In such situations, the ICC may also have to take into account the principle of
ne bis in idem as referred to in Art. 20 Rome Statute.
64 Inability can be asserted if the State is unable to obtain the accused or necessary
evidence and testimony or if it is otherwise unable to carry out its proceedings either due to
the national judicial system’s total or substantial collapse or its unavailability. Based on Art.
19 (1) Rome Statute, the ICC may determine admissibility on its own motion. Moreover and
according to Art. 19 (2) Rome Statute, the suspect, a State with jurisdiction over the case,
or a State coming under the categories of Art. 12 Rome Statute have the right to challenge
admissibility prior to, or at, the commencement of the trial. In case of such a challenge, the
execution of requests for co-operation may be postponed by the concerned States (Art. 95
Rome Statute).
65 The additional safeguard clause of Art. 18 Rome Statute obliges the prosecutor to notify
all States Parties and States which normally would exercise jurisdiction so that they are in a
position to demand the deferral of the investigation of the persons concerned in order to
investigate themselves. Consequently, the States remain in a priority position to decide
about their role even after the prosecutor has decided that there would be a reasonable
basis to proceed in light of Art. 17 Rome Statute. If the State so demands, the prosecutor
must defer to the State’s investigation but may request that the State make periodic
progress reports  (Art. 18 (2), (5) Rome Statute).
66 Only upon the application of the OTP can the pre-trial chamber authorize a continuation
of the ICC’s investigations or necessary investigative steps to preserve evidence. The
concerned State can appeal a decision by the pre-trial chamber and then challenge the
admissibility of the case under Art. 19 Rome Statute. A deferral may be reviewed by the
prosecutor if there is a significant change of circumstances based on the State’s
unwillingness or inability genuinely to carry out the investigation. It is obvious that the
multiple possibilities to challenge admissibility on the ground of complementarity can delay
and hinder the course of proceedings and investigations, possibly leading to important
obstacles, for example, with regard to the collection of evidence. The goodwill of States and
their confidence in the ICC is particularly crucial at this point because large room for
manoeuvre was left to them, which in turn might be used for obstruction.
67 Cases are also inadmissible if not of sufficient gravity (Art. 17 (1) (d) Rome Statute).
This additional threshold is not precisely defined in the Rome Statute, but its aim is to
ensure that the ICC will indeed deal only with crimes of a grave dimension.
2. Applicable Law

68 Pursuant to the hierarchy of Art. 21 (1) Rome Statute, the ICC applies in the first place
the Rome Statute, the Elements of Crimes, and the Rules of Procedure and Evidence. In
general, these instruments constitute a quite comprehensive and largely self-sustaining
legal regime for the ICC. Furthermore, in the framework of its self-organization
competencies, the ICC has further developed important texts such as the ICC Regulations
(see Art. 52 Rome Statute), the Code of Judicial Ethics, and the Staff Regulations.
69 Besides the principles referred to elsewhere in this contribution, the Rome Statute
details several general principles of criminal law applicable in the proceedings of the ICC.
These include, first, several principles also found in national jurisdiction, such as the
principle of nullum crimen, nulla poena sine lege (Arts 22, 23 Rome Statute), the exclusion
of criminal jurisdiction over persons under a certain age (in the ICC’s case 18 years  [Art.
26 Rome Statute]), norms on the required mental element (Art. 30 Rome Statute), and
grounds for excluding criminal responsibility (Arts 31, 32 Rome Statute). Other norms are
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more peculiar to the ICC system, such as norms on the irrelevance of official capacity (Art.
27 Rome Statute) and the relative irrelevance of the superior orders excuse (Art. 33 Rome
Statute), as well as on → command responsibility (Art. 28 Rome Statute; → International
Criminal Courts and Tribunals, Defences).
70 In the second place, the ICC will, in its proceedings, apply treaties and principles and
rules of international law, including the established principles of the law of armed conflict
(→ General International Law [Principles, Rules and Standards]; → Sources of International
Law). Finally, if the other sources do not provide for the answer needed, the ICC may
consider → general principles of law derived from national laws of legal systems of the
world (Art. 21 (1) (b), (c) Rome Statute). The actual relevance of secondary sources will be
determined by the judges in future jurisprudence.
71 The ICC is not bound by its previous decisions regarding the interpretation of principles
and rules (→ Stare decisis) but may rely on them (Art. 21 (2) Rome Statute). Its application
and interpretation of the sources must be consistent with internationally recognized human
rights (Art. 21 (3) Rome Statute). This rule, which indicates the special importance of
keeping international criminal law in line with human rights law, has already led in the first
decisions to quite some reliance on international human rights instruments and their
interpretation by treaty bodies.
3. Procedure
(a) The Pre-Trial Phase
(i) Trigger Mechanisms
72 The proceedings at the ICC can be triggered by way of three different mechanisms
listed in Art. 13 Rome Statute (→ International Criminal Courts and Tribunals, Procedure).
As a variation of the classic State complaint, every State Party can refer a situation to the
prosecutor (Art. 13 (a) Rome Statute). Consistent with the concept of the international legal
interest in the liability for international crimes and its fundamental value for the
international community, there is no requirement of → reciprocity or of a specific interest in
the matter. Even though State complaints (→ Human Rights, State Complaints) have turned
out to be of quite limited practical relevance for most international courts and human rights
treaty bodies (→ Human Rights, Treaty Bodies), the ICC’s first three situations have been
State referrals. More precisely, the referrals by Uganda, the Democratic Republic of the
Congo (‘DRC’; → Congo, Democratic Republic of the), and the Central African Republic
were so-called self-referrals, where the concerned State itself expressed its will that the
offenders be brought to justice by the ICC. In general, it seems to be recognized that in
making such referrals, States may refer situations to the ICC without explicitly stating that
their legal systems are unable or unwilling to investigate or prosecute. In certain
constellations, self-referrals may thus be understood as → waiver[s] of complementarity, at
least as far as Art. 17 (1) (b) Rome Statute is concerned.
73 A second and somewhat sensitive trigger mechanism is the proprio motu power of the
prosecutor based on Arts 13 (c) and 15 Rome Statute, which is supposed to strengthen the
independence and efficiency of the ICC. The prosecutor has the authority to initiate an
investigation on the basis of information received. After an analysis of such information, the
prosecutor is to state a conclusion on whether a reasonable basis to proceed exists.
However, in order actually to start the investigation, the prosecutor needs authorization by
the pre-trial chamber. This control mechanism was instituted to meet States’ concerns
about a too powerful prosecutor who might engage in politically motivated investigations.
The pre-trial chamber gives its authorization if it agrees that there is a reasonable basis to
proceed and that the ICC has jurisdiction. The prosecutor for the first time in the history of
the ICC sought authorization from a pre-trial chamber on 26 November 2009 for opening an
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investigation proprio motu in relation to the post-election violence in Kenya 2007–8. His
request has been granted with regard to crimes against humanity by the competent Pre-
Trial Chamber II, by majority decision of 31 March 2010. In a dissenting opinion, the author
of this article concluded that there was ‘no reasonable basis to believe that crimes … were
committed in an “attack directed against any civilian population” … “pursuant to or in
furtherance of a State or organizational policy to commit such attack” as required by article
7(2)(a) of the Statute’ (Decision pursuant to Article 15 of the Rome Statute on the
Authorization of an Investigation into the Situation in the Republic of Kenya [Dissenting
Opinion of Judge Hans-Peter Kaul] ICC-01/09-19-Corr [31 March 2010] para. 4).
74 The third trigger mechanism is an expression of the important relation of the ICC with
the UN system. The UN Security Council may, in a resolution under Chapter VII UN
Charter, refer a situation to the prosecutor (Art. 13 (b) Rome Statute). As mentioned above
(para. 59), the Security Council can enlarge the scope of activity of the ICC in that it can
refer situations in which core crimes have allegedly been committed even if the concerned
States are not parties to the Rome Statute. The Security Council first made use of this
important mechanism by referring the situation in Darfur, Sudan to the ICC in its Resolution
1593 (2005).
75 A counterpart to the power of the UN Security Council to refer situations to the ICC is
the Security Council’s power under Art. 16 Rome Statute to halt an investigation or
prosecution for a renewable period of 12 months in a resolution adopted under Chapter VII
UN Charter. It is widely recognized that the rationale for this provision is to provide the
Security Council in a complex international situation in which the search for international
peace and security may be at odds with efforts to ensure criminal justice with discretionary
power to give preference for a period of 12 months to efforts to achieve international peace
and security through → negotiation[s] even with those who might be responsible for
international crimes (→ Peaceful Settlement of International Disputes). The UN Security
Council, on the initiative primarily of the US, generally invoked Art. 16 Rome Statute in
UNSC Resolution 1422 (2002) of 12 July 2002 and UNSC Resolution 1487 (2003) of 12 June
2003 exempting UN peacekeepers not nationals of a State Party from the jurisdiction of the
ICC for two consecutive periods of 12 months each (→ Peacekeeping Forces). The adoption
of these two resolutions has been criticized by many, including numerous States Parties. It
was argued that invoking Art. 16 Rome Statute was not consistent with the letter and spirit
of the Rome Statute and might even constitute an abuse of that norm. When the second 12-
month period under Resolution 1487 (2003) ran out in 2004, efforts to extend it once more
through a further resolution failed due to a lack of support from Security Council members.
(ii) Investigation and Prosecution

76 The prosecutor carries out the preliminary examination, notably the determination on
whether there is a reasonable basis to proceed under the Rome Statute in accordance with
Art. 53 Rome Statute. This first evaluation of available information comprises a test
regarding jurisdiction and admissibility (Art. 53 (1) (a), (b) Rome Statute). The prosecutor
has a significant margin of discretion with respect to a third criterion, namely the question
of whether or not an investigation would serve the interests of justice, taking into account
the gravity of the crime and the interests of the victims (Art. 53 (1) (c) Rome Statute). The
prosecutor has to inform the pre-trial chamber on the decision that there is no reasonable
basis to proceed. The pre-trial chamber can review this decision at the request of the State
making the referral or the UN Security Council or, if it was solely based on the interests of
justice, on its own motion (Art. 53 (3) Rome Statute).
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77 Once the prosecutor has started an investigation, he or she is, pursuant to Art. 54 (1)
(a) Rome Statute, under a duty to establish the truth, covering all relevant facts and
evidence whether incriminating or exonerating. In order to collect and examine evidence,
investigation teams can be sent to the territory of a State and enter into co-operation
agreements with States and international organizations (→ International Organizations or
Institutions, External Relations and Cooperation). The prosecutor is under a firm obligation
to respect the interests of victims and witnesses and to keep the necessary confidentiality.
For the purposes of the investigation, the prosecutor can request the pre-trial chamber to
issue a warrant of arrest or a summons to appear. The Rome Statute even guarantees that
persons arrested in States Parties be promptly brought before the competent judicial
authority in the custodial State in order to control the correct application of the arrest
warrant with a possibility of applying for interim release  (Art. 59 (2), (3) Rome Statute).
(iii) Pre-Trial Hearings and Hearing on the Confirmation of Charges before Trial
78 Once a suspect or other person has been surrendered to the ICC, the pre-trial chamber
is tasked, in a first appearance session, with satisfying itself that the person has been duly
informed of the charges against him or her and his or her rights under the Rome Statute
(Art. 60 (1) Rome Statute). The chamber also decides initially and periodically afterwards
on the question of detention or interim release and ensures that the period of detention is
not prolonged unduly because of delays caused by the prosecutor (Art. 60 (2)–(4) Rome
Statute).
79 Most importantly, according to Art. 61 Rome Statute, the pre-trial chamber decides on
whether or not to confirm the charges on which the prosecutor intends to seek trial. In
order to do so, it holds a hearing during which both the prosecutor and the defence may
present evidence. In exceptional circumstances, the confirmation hearing may be held in
the absence of the charged person.
(b) The Trial

80 Subsequent to the confirmation of charges by the pre-trial chamber, the Presidency
constitutes a trial chamber which is responsible for the ensuing proceedings. The trial,
which is public, must be fair and impartial as well as expeditious. It must ensure the rights
of the accused and the protection of victims and witnesses. The presence of the accused is
mandatory. The presumption of innocence—according to which guilt must be proven by the
prosecutor and the court must be convinced beyond a reasonable doubt—is the guiding
principle of the trial according to Art. 66 Rome Statute. When deciding upon the
admissibility of evidence, the trial chamber may declare evidence inadmissible if it has been
obtained by means of a violation of the Rome Statute or internationally recognized human
rights (Art. 69 (7) Rome Statute).
81 Some inquisitorial elements indicate that the procedural regime of the ICC refrains
from applying the pure accusatorial model and gives an active role to the trial chamber: the
judges can require the attendance and testimony of witnesses and the production of
documents and other evidence (Art. 64 (6) (b) Rome Statute; → International Courts and
Tribunals, Evidence). They have explicit authority to request all evidence necessary to
establish the truth (Art. 69 (3) Rome Statute). Nevertheless, pursuant to Art. 74 (2) Rome
Statute, the judges in their decisions are limited to the facts and circumstances contained in
the charges of the prosecutor.
82 At the end of the trial, the judges, after a secret deliberation, reach their final decision
on innocence or guilt and in the latter case, on the sentence. A majority of judges is
sufficient for any decision; however, judges are expected to attempt to achieve a unanimous
decision (Art. 74 Rome Statute). The decision may only be based on evidence submitted and
discussed at the trial. ‘Plea bargaining’ between the prosecutor and the defence does not
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bind the ICC. Before finding an accused guilty on an admission of guilt, the ICC must satisfy
itself, inter alia, that the admission is consistent with the material already presented in the
proceedings. This is to protect the accused from false statements and to safeguard the
interests of justice.
83 When convicted, offenders may be sentenced to imprisonment for up to 30 years or, in
exceptional circumstances, to life imprisonment. The ICC may also impose fines and order
forfeiture of proceeds, property, and assets derived directly from that crime (Art. 77 Rome
Statute). The → death penalty cannot be imposed.
(c) Appeal and Revision

84 Part 8 Rome Statute provides for different kinds of appeals to the Appeals Chamber,
which decides on the application by a majority in open court and disposes of the powers of
the pre-trial and trial chambers mutatis mutandis. Decisions of acquittal or conviction can
be appealed by the prosecutor based on procedural errors, errors of fact, or errors of law.
The convicted person or the prosecutor on that person’s behalf may make an appeal on the
same grounds and in addition, on any other ground that affects the fairness or reliability of
the proceedings or decision. An appeal against a sentence may be brought forward on the
basis of disproportion between crime and sentence (Art. 81 Rome Statute). The decision or
sentence can be reversed or amended or a new trial can be ordered. There is an explicit
rule against changing a decision to the detriment of the convicted person if the appeal was
brought by that person or the prosecutor on that person’s behalf (Art. 83 Rome Statute).
Finally, orders regarding → reparations to victims are also subject to appeal (Art. 82 (4)
Rome Statute).
85 In addition to appeals against final decisions, parties may also bring interlocutory
appeals against certain decisions of the trial or pre-trial chambers according to Art. 82
Rome Statute. Decisions that may be appealed in this way include those concerning
jurisdiction or admissibility, release of the accused, measures to preserve evidence, and
investigative steps. Any other decision may only be appealed with the leave of the pre-trial
or trial chamber concerned if it ‘involves an issue that would significantly affect the fair and
expeditious conduct of the proceedings or the outcome of the trial’ (Art. 82 Rome Statute).
If the Appeals Chamber finds by a majority of judges that the appeal is well-founded, it is
empowered to reverse or amend the decision or sentence or to order a new trial.
86 Finally, the convicted person or, after the person’s death, certain other specified
persons as well as the prosecutor on the convicted person’s behalf, may apply for revision of
the conviction or sentence upon discovery of new evidence or of the fact that decisive
evidence taken into account at trial was false, forged, or falsified. Revision may also be
based on serious misconduct or a serious breach of duty by a judge participating in the
conviction or the confirmation of charges  (Art. 84 Rome Statute). In the case of a
meritorious application, the Appeals Chamber may reconvene the original trial chamber or
constitute a new trial chamber. It may also itself, after hearing the parties, decide whether
the judgment should be revised.
(d) Specific Aspects

(i) Defence and Procedural Guarantees for the Accused
87 As Arts 55 and 67 Rome Statute demonstrate, great importance was attributed to the
rights of suspects not only during trial but also during the investigation.  Art. 55 contains a
number of due process guarantees in the pre-trial phase of criminal proceedings. They
should be read in light of the presumption of innocence as referred to in Art. 66 Rome
Statute as the guiding principle. Art. 55 Rome Statute contains a prohibition of → coercion;
→ duress; threat; torture or other form of cruel, inhuman, or degrading treatment; and of
arbitrary arrest and detention (→ Detention, Arbitrary) or deprivation of liberty (→ Liberty,
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Right to, International Protection). Furthermore, no person shall be compelled to
incriminate himself or herself or to confess guilt, and every person questioned has the right
to get the assistance of a competent interpreter or translator if needed. A person who is
believed to have committed a crime within the jurisdiction of the ICC has further rights, of
which the person must be informed along with the grounds for the suspicion. These are the
right to remain silent, the right to legal assistance, and the right to be questioned only in
the presence of counsel.
88 Art. 67 Rome Statute lists the minimum fair trial guarantees applicable in all stages of
the proceedings. These include the right to be informed and to remain silent, the right to
prepare the defence in appropriate conditions and to legal assistance, the right to question
the witnesses, and the right to have interpretation. The accused also has a right to be
present at trial but may be removed from the courtroom if he or she continues to disrupt
the trial (Art. 63 Rome Statute). There are currently no rules regarding the procedure in the
case of an accused person refusing to appear before the ICC or being hindered to do so on
medical reasons.
89 The accused person is entitled to conduct the defence in person or through legal
assistance of his or her own choice. If the interests of justice so require or the person lacks
sufficient means to pay, a defence lawyer can be assigned by the ICC. An Office of Public
Counsel for the defence was set up by the Registry to safeguard the rights of the defence in
the early stages of an investigation and to provide support, assistance, and information to
defence counsel and suspects or accused (Reg. 77 ICC Regulations). The chambers take
measures to allow the defence to prepare properly and the pre-trial chamber protects the
rights of the defence in unique investigative opportunities (see Art. 56 Rome Statute).
90 One aspect which is of special importance for the fair and equitable conduct of the
proceedings is the disclosure of evidence by the Office of the Prosecutor to the defence.
This concerns not only evidence that the OTP intends to rely on at the confirmation hearing
or at trial but also evidence that is potentially exculpatory or otherwise material to the
preparation of the defence (Arts 61 (3) b, 67 (2) Rome Statute; Rules 76, 77 RPE). The rules
on disclosure contained in the Rome Statute and the Rules of Procedure and Evidence are,
to a large extent, based on those contained in the US Federal Rules of Criminal Procedure
and the RPE, those of the ICTY and the ICTR. While it is, in the first place, up to the OTP to
decide which items it intends to disclose, the pre-trial or trial chamber is the final arbiter in
this regard. The refusal on part of the prosecution to disclose potentially exculpatory
evidence to the accused with reference to Art. 54 (3) (e) Rome Statute caused Trial
Chamber I of the ICC on 13 June 2008 to impose a stay on the proceedings in Prosecutor v
Thomas Lubanga Dyilo. Art. 54 (3) (e) Rome Statute allows the prosecutor not to disclose
documents or information that he or she obtained on the condition of confidentiality and
which are not for use at trial but solely for the purpose of generating new evidence. The
chamber found that the prosecution had misused the provision with the effect of improperly
inhibiting the opportunities for the accused to prepare his defence as he was not able to
access a significant body of exculpatory evidence obtained from such providers as the
United Nations or → non-governmental organizations (‘NGOs’; The Prosecutor v Thomas
Lubanga Dyilo [Decision on the Consequences of Non-Disclosure of Exculpatory Materials
Covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the
Accused, together with Certain Other Issues Raised at the Status Conference on 10 June
2008] ICC-01/04-01/06-1401 [13 June 2008]). The chamber subsequently lifted the stay of
proceedings only after the prosecution had agreed to make the confidential material
available to the ICC.
23 March 2019
91 The defence, for its part, also has certain disclosure obligations, but in keeping with the
right not to be forced to incriminate one’s self, it must only disclose material it intends to
use at the confirmation hearing or the trial (Rule 78 RPE) and inform the chamber and OTP
if it intends to rely on an alibi or grounds for excluding responsibility (Rule 79 RPE).
(ii) Protection of Victims and Witnesses

92 Of its own motion or upon request, a chamber shall, according to Art. 68 Rome Statute,
take appropriate measures to protect the safety, physical, and psychological well-being,
dignity, and privacy of victims and witnesses. Especially during the investigation, the
prosecutor also has a specific duty to ensure such protection. Examples of such measures
are proceedings in camera, audio-visual, and electronic presentation of evidence and the
summary presentation of evidence that could endanger the security of witnesses. A Victims
and Witnesses Unit in the Registry, as envisaged by Art. 43 (6) Rome Statute, gives advice
on appropriate protective measures, security arrangements, counselling, and assistance.
93 At the same time, these protection measures must be reconciled with the rights of the
defendant. The provisions on witness protection in the Rome Statute state that such
measures shall not be prejudicial to defence rights (see Art. 68 (1) Rome Statute). Finding
the correct balance between those competing interests will be one of the first tasks for the
pre-trial and trial chambers.
(iii) The Role of Victims in the Proceedings

94 One important innovation of the Rome Statute is the attention paid to the interests of
victims, especially by allowing them to take an active part in the proceedings (Art. 68 (3)
Rome Statute). This provision also lays down that victims’ participation must not prejudice
or be inconsistent with the rights of the accused and the conduct of a fair and impartial
trial. Finding a proper balance between these two interests will be another task for the
chambers.
95 Rule 85 RPE defines victims as ‘natural persons who have suffered harm as a result of
the commission of any crime within the jurisdiction of the Court’ and ‘organizations or
institutions that have sustained direct harm to any of their property which is dedicated to
religion, education, art or science or charitable purposes, and to their historic monuments,
hospitals and other places and objects for humanitarian purposes’. The notion of ‘harm’
comprises physical and emotional suffering as well as economic loss (see Art. 75 (1) Rome
Statute).
96 According to Pre-Trial Chamber I decision of 17 January 2006 regarding the situation in
the DRC, victims have a right to participate in the investigation phase, ie before any
warrants for arrest of individuals have been issued. At this stage, they must show sufficient
grounds to believe that they have been harmed. Under Rule 89 (3) RPE, other persons,
notably NGOs, are entitled to make an application for participation on behalf of victims with
their consent.
97 The ICC may make an order for reparations to be made to the victims by the convicted
person (Art. 75 (2) Rome Statute). In addition, victims may request reparations according to
Rules 94 to 99 RPE. The ASP has established a victims’ trust fund pursuant to Art. 79 Rome
Statute through which the ICC may order that awards for reparations be made (Rule 98
RPE).
23 March 2019
(iv) Enforcement
98 The ICC relies on States with regard to the enforcement of the sentences. Art. 103
Rome Statute provides that sentences ‘shall be served in a State designated by the Court
from a list of States which have indicated to the Court their willingness to accept sentenced
persons’. The first State to sign an agreement with the ICC on the enforcement of sentences
was Austria on 27 October 2005.
99 Fines, forfeiture measures, and reparation orders are enforced after a co-operation
request of the Presidency by the State with which the sentenced person or victim ‘appears
to have direct connection by reason of either nationality, domicile or habitual residence or
by virtue of the location of [his or her] assets and property’ (Rule 217 RPE).
4. International Co-operation and Judicial Assistance

100 According to the Rome Statute, the ICC generally has no executive powers and no
police force of its own or other executive units. Consequently, international co-operation
with States and judicial assistance are vital prerequisites for the functioning of the ICC. The
ICC is totally dependent on the full, effective, and timely co-operation in particular of States
Parties. This is especially true with regard to the crucial question of the effective execution
of arrest warrants and → surrender of suspects to The Hague. As foreseen and planned by
the founders of the ICC, the court is characterized by the structural weakness that it does
not have the competencies and means to enforce its own decisions. As already shown with
regard to the principle of complementarity, it was also the wish of the ICC’s creators that
States’ sovereignty prevails in this respect.
101 On the other hand and in order to compensate for this structural weakness of the ICC,
a detailed regime of obligations for co-operation has been introduced into the Rome
Statute. No reservations may be made to the Rome Statute (Art. 120 Rome Statute;
→ Treaties, Multilateral, Reservations to). The co-operation regime is meant to ensure that
the ICC can effectively obtain what is necessary to reach the persons it is supposed to try.
Furthermore, the expertise and field-presence of international organizations and NGOs are
extremely important for a successful conduct of the proceedings. This reaffirms that the
ICC depends and relies on co-operation and executive means provided by others.
(a) Relationship with the United Nations

102 The project of the ICC was born and developed within the UN before becoming an
independent judicial institution. The two organizations are still closely interlinked, a
relationship defined by the Rome Statute and the Negotiated Relationship Agreement
between the International Criminal Court and the United Nations (‘Relationship
Agreement’) concluded in conformity with Art. 2 Rome Statute. The Preamble of the Rome
Statute expresses this relationship also by ‘[r]eaffirming the Purposes and Principles of the
Charter of the United Nations’ and by calling for an ‘independent permanent International
Criminal Court in relationship with the United Nations’. It also aims for consistency and
compatibility with the UN Charter, eg with regard to the exercise of jurisdiction over the
crime of aggression (Art. 5 (2) Rome Statute). As outlined above (at para. 54), the
permanent members of the UN Security Council had raised concerns regarding a potential
clash between the Security Council’s power to determine the existence of any act of
aggression under Art. 39 UN Charter and the ICC’s exercise of jurisdiction over cases of
aggression which had not been referred to the court by the Security Council. However, the
fact that France and the United Kingdom have abstained from blocking the consensus
reached in Kampala shows that the Security Council’s crucial role in safeguarding
international peace and security is not threatened by extending the trigger mechanisms of
the ICC’s jurisdiction beyond the monopoly of the Security Council. A particularly important
aspect of the relationship between the ICC and the UN is the power of the Security Council,
23 March 2019
already referred to above in para. 59, to refer situations to the ICC under Art. 13 (b) Rome
Statute or to defer an investigation or prosecution under Art. 16 Rome Statute (see para. 75
above).
103 Art. 3 Relationship Agreement lays down a general duty of close co-operation and
consultation, whenever appropriate, on matters of mutual interest. In more detail, the
agreement provides for reciprocal representation in the form of a standing invitation to the
UN Secretary-General (→ United Nations, Secretary-General) to attend certain hearings of
the chambers and all public meetings of the ICC, as well as the granting of observer status
within the UN to the ICC (Art. 4 Relationship Agreement; → International Organizations or
Institutions, Observer Status; → Observers). Another important aspect is the exchange of
information and documents of mutual interest, especially with regard to documents and
information that could be of interest for the proceedings of the ICC (Art. 5 Relationship
Agreement).
104 The agreement also sets rules for the relationship between the UN Security Council
and the prosecutor, especially with regard to Security Council referrals and deferrals and
cases of non-co-operation by States subsequent to a Security Council referral (Art. 17
Relationship Agreement). UN co-operation with the prosecutor is also envisaged, especially
in the context of an investigation (Art. 18 Relationship Agreement). Several rules concern
the protection of confidential information (eg Arts 18 (4), 20 Relationship Agreement).
Where a suspected person falls under the Convention on the Privileges and Immunities of
the UN, the UN shall co-operate to waive any privileges and immunities in accordance with
that convention and the relevant rules of international law.
105 Finally, other areas of co-operation include administrative matters, personnel,

services, and facilities.
106 In addition to the Relationship Agreement, the UN and its Secretary-General have
special responsibilities under the Rome Statute, such as the deposition and consideration of
signatures, ratifications, accessions, withdrawals, declarations, and amendments to the
Rome Statute (Arts 125–127 Rome Statute) and the convening of review conferences (Art.
123 Rome Statute; → Depositary).
(b) Co-operation with States Parties

107 The States have not agreed to create an executive mechanism with a world-wide
mandate for the ICC. Instead, they have agreed to an extensive set of obligations for States
Parties concerning international co-operation, judicial assistance, and enforcement
contained in Part 9 Rome Statute. To be able to fulfil the obligations contained in the Rome
Statute, a significant number of Member States have adapted their national legislation
concerning co-operation in criminal justice matters.
108 The main obligation of States Parties is to co-operate fully with the ICC (Art. 86 Rome
Statute). The ICC is authorized to make a request for co-operation, which the State must
handle confidentially and, upon request by the ICC, in a manner that protects the safety of
victims, potential witnesses, and their families (Art. 87 Rome Statute). States Parties are
obliged to create appropriate national procedures for the execution of requests by the ICC
(Art. 88 Rome Statute).
109 Another key obligation of States is to arrest and surrender persons found in their
territory or to allow the transit of persons being surrendered to the ICC through their
territories (Art. 89 Rome Statute; → Safe-Conduct and Safe Passage). Procedures are
foreseen for dealing with cases of ne bis in idem challenges, competing requests, and
persons being prosecuted or having been convicted for crimes not covered by the Rome
Statute (Arts 89 (2), (4), 90 Rome Statute). Other forms of co-operation, as detailed in Art.
23 March 2019
93 Rome Statute, include information on the identification and whereabouts of persons, the
taking of evidence including testimony, the examination of places or sites, the temporary
transfer of persons in custody, and the protection of witnesses and victims. Requests may be
denied by the State where they would be in conflict with a national ‘existing fundamental
legal principle of general application’ or where the documents or evidence concerned relate
to its national → security (Art. 93 (3), (4) Rome Statute). The execution of requests may also
be postponed for reason of an ongoing national investigation or prosecution or an
admissibility challenge pending before the ICC (Arts 94, 95 Rome Statute).
110 Given the sensitive nature and potential interest of third parties in these procedures,
the Rome Statute foresees → consultation[s] in cases of problems arising in the context of a
co-operation request from the ICC (especially Art. 97 Rome Statute). Finally, Art. 98 Rome
Statute provides that where complying with a request for surrender or assistance would
require the State requested to breach its obligations towards another State, including the
obligation to first obtain the consent of that State, the ICC may not proceed with the
request without first obtaining the co-operation of the third State (see also → Mutual Legal
Assistance in Criminal Matters).
111 It was this provision that the US government under the Bush administration relied on
in its Bilateral Non-Surrender Agreements concluded between 2002 and 2005 with
numerous States, including States Parties, in order to prevent the possibility of US
personnel being surrendered to the ICC. Since President Obama, as well as members of his
administration have recently stated the intention of the US re-engage with the ICC and
repealed the decision to refuse aid payments to States unwilling to sign the bilateral
agreements in question, the practical and legal relevance of these agreements seems to be
diminishing.
112 In exchange for States’ co-operation with the ICC, the court may also provide
assistance to a State Party or even a non-Member State which is conducting an
investigation or trial in respect of crimes within the jurisdiction of the ICC or other serious
crimes (Art. 93 (10) Rome Statute).
(c) Non-Member States and International Organizations

113 Following the pacta tertiis non nocent principle, non-Member States are not bound by
the general co-operation rule of Art. 86 Rome Statute. However, when the UN Security
Council refers a situation to the ICC pursuant to Art. 13 (b) Rome Statute, it may also,
under Chapter VII UN Charter, oblige non-Member States to co-operate with the ICC. In
this vein, in Resolution 1593 (2005) referring to the ICC the situation in Darfur, Sudan—
which is not a State Party to the Rome Statute—the Security Council ‘[d]ecide[d] that the
Government of Sudan … shall cooperate fully … and provide any necessary assistance’ (at
para. 2). Thus, universal co-operation with the ICC may become mandatory in certain
situations through decisions of the Security Council under Chapter VII UN Charter.
114 Art. 87 (5) Rome Statute states that non-Member States may also be invited by the
ICC to provide information and assistance on the basis of an ad hoc or general agreement;
if they fail to comply with obligations arising thereunder, the ICC may inform the Assembly
of States Parties or, in case of a Security Council referral, the Security Council. The ICC
may also ask international organizations for information or documents. In this regard, co-
operation with organizations with special capacities, experience, and technical know-how in
the field of international tracing, police, and justice networking, such as → Interpol and
→ Europol, may be of particular importance.
23 March 2019
(d) Civil Society
115 The role of civil society is not formalized or institutionalized in the Rome Statute.
Nevertheless, private individuals and NGOs can be relevant to the activities of the ICC as
sources of important information, especially in the field, given their often close contacts
with victims and local networks of human rights defenders. Information coming from NGOs
and other private sources will be taken into account by the OTP at a very early stage when
deciding on whether to begin an investigation. The prosecutor must analyse information
provided and must inform those who has given information on the decision not to open an
investigation (Art. 15 (2), (6) Rome Statute). The prosecutor may also, in beginning an
investigation, seek additional information from NGOs and other reliable sources pursuant to
Art. 15 (2) Rome Statute and  Rule 104 (2) RPE.
116 The ICC may even, in exceptional circumstances, employ the expertise of gratis
personnel offered by NGOs to assist with the work of any of the organs of the ICC (Art. 44
(4) Rome Statute). Finally, Rule 103 RPE provides that not only States but also
organizations or persons may make amicus curiae submissions to the ICC (→ International
Courts and Tribunals, Amicus Curiae).
D. Current Challenges and Future Perspectives

1. General
117 On 1 July 2002, the date the Rome Statute entered into force, a so-called ‘ICC Advance
Team’, composed of the first five members of the staff of the future ICC, entered a
completely empty office building in The Hague to start building up the ICC. Since then, all
the ICC’s organs have been established and the ICC has grown from a small embryonic unit
in 2002 and 2003 to a new emerging international organization with a staff of
approximately 1100 in 2010. Nevertheless, it cannot be overlooked that there are still many
important challenges to overcome in the foreseeable future.
118 One challenge is the ongoing task to turn the ICC—a new and unique international
organization with many novel and untested features—into a fully operational and well-
functioning judicial institution. The ICC must aim to be fully understood, accepted, and
supported by the international community. In this process of internal and external
consolidation, the emphasis will shift more and more from organizational build-up to
intensified investigations and, finally, criminal trials. It remains essential that the ICC
continues to show—through the way it conducts all these activities—that it is a purely
judicial, objective, neutral, and non-political institution.
2. Role of the Prosecutor

119 The prosecutor and the OTP as the driving force or ‘engine’ of the ICC bear a special
responsibility for the entire ICC. They are called upon to use the legal framework of the
Rome Statute and the RPE for the sustained development of a system of investigations and
prosecutions and related working methods that is as fair and efficient as possible. Without
such efficacious working methods and work of the OTP, the ICC cannot function, and there
may be no or too few concrete cases.
120 Effective criminal co-operation with the ICC is of vital importance. It is therefore
indispensable that the OTP continues to build up an increasingly solid and reliable network
of efficient international co-operation with States Parties and other actors. This system will
ideally be based on mutual respect, trust, and confidence and the readiness to co-operate
with each other without delay. A similar priority is the ongoing development and
implementation of → best practices of international criminal co-operation: fast, creative,
flexible, and unbureaucratic, with a flow of information and supportive measures as direct
23 March 2019
as possible. Special attention must be given to the critical and unresolved question of arrest
and surrenders to the ICC, which are a prerequisite of ICC trials since Art. 63 Rome Statute
requires the presence of the accused during the trial.
3. Limitations
121 Beyond this, it should not be overlooked that there are also other limitations and
constraints which inevitably reduce the efficiency of the ICC and its chances to work with
the same degree of success as well-established national courts. This concerns both factual
limitations and difficulties and legal limitations inherent in the Rome Statute.
122 The gravest limitation on the factual side is the enormous difficulty of carrying out
investigations and collecting evidence regarding mass crimes committed in situations and
regions which, as the examples of Uganda, the DRC, and Darfur show, may often be
unstable and unsafe. The considerable distance of many situations from the seat of the ICC
creates additional logistical and technical problems. Another grim reality is the notorious
scarcity of financial and other resources available for investigations and other work and
activities of the ICC.
123 With regard to legal limitations and safeguards contained in the Rome Statute,
commentators have observed that the complementarity regime of the ICC is quite strong, if
not too strong. On the other hand, it has been observed that the regimes of jurisdiction and
co-operation as referred to in Parts 2 and 9 Rome Statute are quite weak, if not too weak.
124 At the same time, it does not seem wise to try to alleviate some of these problems
through amendments to the Rome Statute under Art. 123 Rome Statute. It can be assumed
that neither States Parties nor the ICC itself have had enough time and experience for a
thorough and comprehensive assessment of the practicability of the Rome Statute. In such
a situation, it seems all the more necessary to avoid amendment proposals which might be
divisive or might create risks for a coherent and uniform treaty regime. In this respect, the
States Parties have shown prudence and political wisdom when they decided, in November
2009, to limit the discussion on amendments at the review conference in May 2010 in
Kampala to three proposals: a possible revision of  Art. 124 Rome Statute; the possible
adoption of a provision regarding the crime of aggression; and the inclusion of the use of
certain weapons as war crimes in the context of an armed conflict not of an international
character. The States Parties have demonstrated determination and unity in their adoption
of the package proposal on the crime of aggression (see paras 53–54 above) and the
amendment of Art. 8 Rome Statute in order to include, in a non-international armed
conflict, the war crime of employing certain poisonous weapons and expanding bullets,
asphyxiating or poisonous gases, and all analogous liquids, materials, and devices
(→ Weapons, Prohibited). In adopting these two proposals, the Member States complement
the ICC’s jurisdiction over crimes already referred to in the Rome Statute. On the other
hand, the Assembly decided to retain Art. 124 Rome Statute to continuously give new
Member States the opportunity to exclude from the ICC’s jurisdiction war crimes allegedly
committed by its nationals or on its territory for a period of seven years. As the ICC is still a
relatively young and emerging international court, stability and continuity of its treaty
regime are probably in the well-understood interest of all concerned in the international
community.
4. Outlook
125 In sum, the founders of the ICC have created a new system of international criminal
jurisdiction consisting of two levels which complement each other.
23 March 2019
126 The first level is constituted by States and their national criminal law systems. As
confirmed by the principle of complementarity as the primary basis of the Rome Statute,
States continue to have the primary duty to exercise their criminal jurisdiction over those
responsible for international crimes.
127 The second level is constituted by the ICC. According to the principle of
complementarity, the ICC can only act as a last resort in cases in which national criminal
law systems are unwilling or unable genuinely to carry out the investigation or prosecution.
128 This complex system apparently needs more time to be fully accepted and adhered to
by all concerned in order to develop its full potential. States Parties need to get used to the
necessity of direct, full, and sustained support for and co-operation with ‘their’ court. The
ICC itself needs full consolidation. It must gradually develop coherent and consistent
jurisprudence. This jurisprudence must set or reaffirm legal standards which are then
observed on a world-wide level. This may contribute to more international justice.
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23 March 2019

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International Criminal Court (ICC)

Content type: Encyclopedia entries

B. Structure and Organs

(a) The Judges

(b) The Presidency

(c) The Chambers Divisions

(i) The Pre-Trial Division

(ii) The Trial Division

(iii) The Appeals Division

(d) The Office of the Prosecutor

(e) The Registry

3. The Assembly of States Parties

C. Scope and Functioning

(a) Jurisdiction ratione materiae

(ii) Crimes against Humanity

(iii) War Crimes

(iv) The Crime of Aggression

(b) Jurisdiction ratione temporis

(c) Jurisdiction ratione loci and Jurisdiction ratione personae

(d) The Principle of Complementarity

2. Applicable Law

(ii) Investigation and Prosecution

(b) The Trial

(c) Appeal and Revision

(d) Specific Aspects

(ii) Protection of Victims and Witnesses

(iii) The Role of Victims in the Proceedings

4. International Co-operation and Judicial Assistance

(a) Relationship with the United Nations

105 Finally, other areas of co-operation include administrative matters, personnel,

(b) Co-operation with States Parties

(c) Non-Member States and International Organizations

D. Current Challenges and Future Perspectives

2. Role of the Prosecutor

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