International Criminal Court - Backgrounder

A Century of Human Suffering and Human Rights
The 20th century was one of the most violent centuries in human history. However, it can also be described as the century during which the international community realized that basic human rights have to be protected by law. The opposing nature of these characteristics is by no means coincidental.

In the last 200 years, the tools and methods of warfare have become increasingly deadly for humanity. As countries have witnessed the carnage of modern warfare, the need for enforceable rules governing the conduct of war and protecting the victims of war has become a priority. This priority ultimately led to the creation of the International Criminal Court. This paper details why and how the International Criminal Court came into existence and as well as its intended function.

Before discussing the function of the International Criminal Court, it is useful to briefly review the events that led to the creation of the Court.

Aftermath of World War I and World War II
World War I and World War II were the most destructive wars in human history. These wars were especially devastating because of the extremely high level of violence committed against civilians, who are people who do not fight in wars and are not soldiers.

Most shockingly, some countries took advantage of the chaos and confusion of these wars to disguise systematic campaigns of mass murder against civilians that belonged to “unwanted” races, religions, nationalities, and ethnicities. In Nazi Germany, for example, Jews and other groups were systematically gathered, transported to concentration camps, and murdered during World War II. Approximately six million Jews were killed for no other reason than being Jewish. It is important to understand that Nazi Germany’s intention was not only to kill Jews as individual people, but to destroy the entire Jewish race in Europe and perhaps in the world.

The Nuremberg Trials
At the end of World War II, the victorious powers, including the United States, United Kingdom, and the former Soviet Union, agreed to set up a court to prosecute German war criminals. The “Nuremberg Trials,” as they are called after the German city in which they were held, tried the Nazi leaders not only for crimes committed against the citizens of other countries, but against Germans as well. Some aspects of the Nuremberg Trials were at times unfair; they could also be referred to as “victor’s justice.” However, they stood for a noble principle: those who commit atrocities, even in wartime, will face justice and punishment.

The Genocide Convention & the Geneva Conventions
After the Nuremberg Trials, there remained something unresolved about the crimes committed by Nazi Germany against the Jews, among others. The problem was that there really was no proper description for such crimes. It did not seem to be enough to call the attempted destruction of an entire race of people “murder” or even “mass murder.” Former British Prime Minister Winston Churchill once commented that such campaigns of extermination were “a crime without a name.”

The term “genocide” was created to describe what Churchill could not. “Genocide” means the deliberate destruction of a group of people based on their race, ethnicity, religion or nationality.

Horrified by the genocides and other crimes committed during World War I and World War II, including mistreatment of prisoners and attacks on civilians, the vast majority of countries of the world made two promises. The first promise was never to allow genocide to occur again. The second promise was to ensure that no person can commit genocide or other atrocities without facing justice. This second promise is sometimes known as the “end of impunity.”

In 1864, the first Geneva Convention was created to protect wounded and sick soldiers on land during war. A “convention” is another word for a treaty or mutual agreement between a group of countries. By 1949, there were four Geneva Conventions - three additional conventions had been created to protect the rights of wounded, sick, and shipwrecked military personnel at sea, the rights of prisoners of war, and finally, the rights of civilians.

In addition, the United Nations brought many countries together in 1948 to create the Genocide Convention. The Genocide Convention made it a crime for any of the countries that participated in the agreement to commit genocide. The Convention also stated that a court should be created to stand guard over this promise, and to bring to justice people who commit genocide in the future. However, no court was created at the time of the agreement.

The Cold War
During the Cold War, which lasted from approximately 1950 to the late 1980s, the idea of an international criminal court was pushed to the side. Genocide and other atrocities continued to occur in the world, but there was little interest or ability to bring the perpetrators to justice. The United States and the former Soviet Union, and the countries that supported them, were locked in a bitter ideological dispute between democracy and communism. The foremost international issue during those years was, arguably, the threat of nuclear war.

The End of the Cold War: Violence and Opportunity
The collapse of the Soviet Union in the late 1980s eased global tension and allowed the United Nations to resume work on developing an international criminal court. This work was well-timed, as conflicts erupted in places such as the former Yugoslavia and Rwanda that were marked by torture, murder, sexual violence, and most notably in the case of Rwanda, horrific genocide.

For the first time since the end of World War II, the international will existed to bring the perpetrators of these atrocities to justice. Without an international criminal court however, there was no means to do so. As a solution, the United Nations established war crimes tribunals that only have the power to conduct trials relating to violence committed in Rwanda, the former Yugoslavia, and Sierra Leone. Once these tribunals finish trying cases from these specific conflicts, they will cease to exist.

Canada and the Push for an International Criminal Court
As the United Nations’ tribunals began their work, a group of states led by Canada mounted a campaign to create a permanent International Criminal Court. Unlike the tribunals, this Court would be able to hear cases from all parts of the world and would stay in existence permanently. In 1998, a series of meetings were held in Rome to discuss and negotiate the creation and role of an International Criminal Court. These meetings were led by Canadian diplomat Philippe Kirsch. Kirsch also led the international group that wrote the statute (written law) that would define the purpose, structure and power of the International Criminal Court.

In 1998, 120 countries voted in favour of this statute, known as the “Rome Statute.”  The International Criminal Court (ICC) was brought to life on July 1, 2021 when 60 countries actually “ratified” the treaty, which essentially means that each country’s government formally agreed to be bound by the terms of the treaty. As of Oct. 12, 2010, 114 countries are “State Parties” to the Rome Statute.

The Structure of the ICC
The ICC is located in the Hague, the Netherlands. It is an independent international organization and is not part of the United Nations system. It is funded by the states who are party to the Rome Statute but also through voluntary contributions from other governments, international organizations, and individuals.

The Presidency is responsible for the overall administration of the ICC, with the exception of the Office of the Prosecutor. The current President of the Court is Judge Sang-Hyun Song from the Republic of Korea. There are 18 judges on the ICC.

The current head of the Office of the Prosecutor is Luis Moreno-Ocampo of Argentina. The Office of the Prosecutor decides whether to investigate a situation, conducts the investigation and prosecutes the crimes.

The ICC also provides services in order to represent the rights of victims and accused.

The Jurisdiction of the ICC
“Jurisdiction” is a legal term that really means “power.” The ICC only has the jurisdiction to try cases:

  • relating to four different crimes set out in the Rome Statute
  • committed after July 1, 2021 (after the Rome Statute came into force)
  • over crimes committed on the territory of a State party or by a State Party national, unless a situation is referred to the Office of the Prosecutor by the Security Council of the United Nations.

The jurisdiction of the ICC is also limited by the complementarity principle. “Complementarity” means that nations who signed and agreed to be bound by the Rome Statute are expected to pass laws so they can try people for the crimes listed above in their own countries. It is only when a country is unable to prosecute (because, for example, the country has just been through a devastating war), or unwilling to prosecute (because, for example, the accused person occupies a position of power or privilege in the country), that the ICC will try the case.

Investigations can be started in one of three ways: by the Prosecutor of the ICC, by referral from a country that has agreed to be bound by the Rome Statute, and by referral from the Security Council of the United Nations.

The four crimes listed in the Rome Statute that the ICC can prosecute are:

  1. The Crime of Genocide;
  2. Crimes against Humanity;
  3. War Crimes; and,
  4. The Crime of Aggression.

These four crimes listed are some of the worst crimes imaginable. In fulfilling the promise made after World War II to end impunity, the creators of the ICC want to make sure that such criminals will not go unpunished in the future.

The Crime of Genocide
Genocide is regarded as the “crime of crimes” in international criminal law. As set out earlier, “genocide” is the intentional destruction of a group of people based on their race, religion, nationality or ethnicity.

Crimes against Humanity
Crimes against humanity include murder, rape, kidnapping, torture, and enslavement, among other things, when committed as part of a widespread or systematic attack against any civilian population.

War Crimes
War Crimes are the crimes found in the Geneva Conventions and are related to the conduct of soldiers and armies during times of war. Inhumane treatment of prisoners of war and deliberate attacks on civilians are two examples of war crimes.

The Crime of Aggression
The crime of aggression was not defined in the Rome Statute. The leaders of countries that start wars may one day be charged with the crime of aggression. As such, the content of the crime of aggression is a highly political and divisive issue.

In June 2010, at a Review Conference of the Rome Statute, a resolution was adopted defining a crime of aggression as the preparation, initiation or execution, by a person who can control or direct the political or military action of a state, of an act of aggression which by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

An act of aggression means the use of armed force by a state against the political independence or territorial integrity of another state, or the use of armed force in any other manner inconsistent with the Charter of the United Nations. However, at least 30 State Parties must ratify the amendment and the ICC cannot take jurisdiction over the crime of aggression until Jan. 1, 2017 when at least two thirds of the States Parties must vote to adopt the definition as an amendment to the Rome Statute.

Challenges of the ICC
The Court has many challenges ahead. One of the main challenges will be bringing an accused to the Court once the Prosecutor has laid charges against that individual. The ICC does not have its own police force, and cannot simply go into a country and remove a suspected war criminal. The ICC will rely heavily on nations who have agreed to be bound by the Rome Statute to surrender accused criminals to the ICC.

Another challenge is that some of the world’s most powerful and influential nations, including China,  Russia, and the United States, have not agreed to be bound by the Rome Statute and do not recognize the authority of the ICC. It will be difficult for the ICC to function without the political, economic, and potentially military support of these countries.

Current State of the ICC
The Office of the Prosecutor is currently carrying out investigations in Northern Uganda, the Democratic Republic of Congo, Darfur (Sudan), the Central African Republic, and Kenya. The Office of the Prosecutor is also currently conducting preliminary examination in several countries including Afghanistan, Georgia, Guinea, Cote d’Ivoire, Colombia, and Palestine.

As of November 2010, there are several pre-trial hearings occurring with regards to situations in Northern Uganda, the Democratic Republic of Congo, Darfur, the Central African Republic and Kenya, although the majority of the suspects remain at large. A trial is in progress with an in-custody accused from the Democratic Republic of Congo.

Particularly noteworthy are the warrants of arrest issued against the President of Sudan as an indirect (co)perpetrator of crimes against humanity, war crimes and genocide, the first such arrest warrant issued by the ICC against a head of state. One of the accused from the Democratic Republic of Congo is a former vice-president. Most of the other accused are leaders of armed groups.

The ICC has achieved a great deal in showing that leaders of countries and armed groups can no longer act with reckless disregard for human life, human suffering, and international law; they can no longer act with impunity. However, the reverse may also be true. Although the ICC has issued several arrest warrants, many of the accused remain at large. Even though the ICC has been in existence for eight years, it has yet to secure its first conviction. The ICC is a great step forward in protecting the rights of people affected by war, but there is still a great deal to be done.

More Information on the International Criminal Court
For more information, visit the ICC’s official website.

For more information about Canada and the ICC, visit the Ministry of Foreign Affairs’ website.

For more information about the Special Court for Sierra Leone, visit its website.

For more information about the International Criminal Tribunal for the former Yugoslavia, visit its website.

For more information about the International Criminal Tribunal for Rwanda, visit its website.