Written by Ionel Zamfir,
The ICC exercises jurisdiction over four types of crime: genocide, crimes against humanity, war crimes and, more recently, the crime of aggression. Its jurisdiction is limited to the states parties’ territories and nationals, unless the UN Security Council explicitly asks it to investigate situations in a country that is not an ICC member. These limitations in the Court’s jurisdiction have prevented it from investigating the atrocities committed in the civil wars in Syria and Iraq, as securing a referral of the situations there from the Security Council has proved impossible.
Since it started operating in 2003, the Court has conducted investigations and trials on some of the world’s most brutal conflicts and has not shied away from investigating those at the highest level of power, such as presidents in office. The Rome Statute explicitly excludes immunity for high-ranking officials. Immunities attached to the official capacity of a person, whether under national or international law, do not bar the Court from exercising its jurisdiction over that person.
To date, of the 11 situations under investigation, 5 have been investigated at the request of states’ parties (in the Democratic Republic of the Congo, Uganda, Central African Republic (CAR) twice, and Mali); 2 at the request of the UN Security Council (in Sudan (Darfur) and Libya); and 4 at the initiative of the Prosecutor (with the assent of the pre-trial chamber (in Burundi, Kenya, Côte d’Ivoire and Georgia). Of the 11 situations investigated, 10 concern African countries, which has raised questions regarding a possible ‘African bias’ at the Court. However, such allegations ignore the fact that African states themselves referred many of these situations to the Court. This ‘African bias’ criticism has generated some momentum among African states for non-cooperation with the Court, and even for leaving the ICC system, for which a one-year withdrawal notice is required. Three of the four countries that have announced their decision to withdraw to date are African. In the Gambia, the decision was a personal one taken by the former president that his successor immediately annulled. South Africa considered withdrawing after it refused to arrest the Sudanese president, under a Court warrant, on its soil, but the procedure has proved more complicated domestically. Burundi remains the first and only country to date that has actually withdrawn from the Rome Statute. The fact the ICC has started investigations in their territories may actually have contributed to the decision of certain countries to leave. Two of the four that have announced the decision to withdraw are under ICC investigation for possible crimes within its competence committed on their territory: Burundi and the Philippines. Withdrawal has, however, no impact on ongoing proceedings or any matter which was already under consideration by the Court prior to the date upon which the withdrawal became effective.
The ICC has been under intense public scrutiny. Some voices have pointed to a certain ‘political bias’ in the selection of cases (the ‘African bias’ being part of this more general problem). To guarantee the Prosecutor’s impartiality in the selection and prioritisation of cases, extensive internal rules were developed. The Court has also developed extensive tools to protect its most important asset – witnesses, who in many cases have faced intimidation, violence and even death.
With some €1.5 billion spent in 15 years of operation, and with only three final convictions, the Court has been criticised as ineffective. Effectiveness cannot be judged, however, based solely on convictions. The ICC is a court of last resort and the complementarity principle limits its activities: the ICC is competent to conduct investigations only when states are unable or unwilling to prosecute the crimes themselves. The Court’s impact on national judicial systems has also been significant, with many countries having adopted national legislation on the crimes under ICC jurisdiction.
The European Union is a staunch supporter of the ICC and of the principles underpinning the Rome Statute. All its Member States are states parties to the ICC. The EU has developed specific policy tools to structure its cooperation with the Court and to encourage and assist third states to join the ICC system. The EU has included an ICC clause in several of its cooperation agreements with partner countries and has been providing assistance for countries that encounter difficulties in ratifying, accessing and implementing the Rome Statute. It has funded a range of actions with regard to the ICC system through its European Instrument for Democracy and Human Rights. The EU also recognises the importance of the complementarity principle, prioritising accountability, and justice at the national level. The European Parliament has expressed its support for the ICC in numerous resolutions. It has also called for the appointment of an EU Special Representative on International Humanitarian Law and International Justice to mainstream EU commitment to the ICC across EU foreign policy.
To learn more about the Rome Statute and the International Criminal Court and the EU support to it, please read this EPRS briefing “International Criminal Court: Achievements and challenges 20 years after the adoption of the Rome Statute“, published in July 2018.