Written by Philippe Perchoc.
The treaty of the Rome Statute, signed on 17 July 1998 by 120 countries, gave birth to a permanent international body: the International Criminal Court (ICC). To commemorate the Court’s coming into existence in 2002, each year (following a decision at the first review conference of the Rome Statue in 2010), the World Day for International Justice is marked on that day.
After World War II, the international community – for the first time in history – took steps towards recognising two international crimes: the crime against humanity (at the Nuremberg trials) and the crime of genocide (at the Tokyo trials; to bolster these efforts, in 1948 the United Nations (UN) adopted its Convention on the prevention and punishment of the crime of genocide). While the idea of a permanent court was discussed during the Cold War, it only became possible after the fall of the Berlin Wall in 1989. In the 1990s, the UN established specialised courts to address crimes in former Yugoslavia (1993-2017), Rwanda (1995-2015) and Sierra Leone (2002-2013). On 17 July 1998, 120 states adopted the Statute of Rome, which gave birth to the International Criminal Court. Of the 160 states that took part in the negotiations, 120 voted in favour, 7 against and the rest abstained (secret vote). Unlike special tribunals created by the UN, the International Criminal Court is not a UN body but a permanent international court. After a long ratification process, the court started work in 2002 and established its seat in The Hague. Today, 123 states are parties to the ICC, but some prominent countries – such as China, India, Indonesia, Turkey, Saudi Arabia, Russia and the United States – remain outside this body. All EU Member States and all EU candidates (except Ukraine and Turkey) are parties to the Rome Statute. The latter grants the ICC jurisdiction over four main crimes: genocide, crimes against humanity, war crimes committed after 1 July 2002, and the crime of aggression (as of 17 July 2018). To date, 31 cases have been brought before the ICC. The EU supported the ICC from the start, through a Council common position of 2003 and an EU-ICC cooperation agreement of 2005. In 2011, the EU agreed to promote the ratification of the Rome Statute worldwide and to cooperate with the ICC Prosecutor by helping the ICC to access documents and witnesses useful for its work. The EU has a long tradition of cooperating with the ICC and other specialised courts, especially the International Criminal Tribunal for the former Yugoslavia. As regards some Western Balkan countries, the EU has made full cooperation with the international courts a condition for their EU accession prospects.
Recent developments in the context of Russia’s aggression against Ukraine
Since the start of the Russian invasion of Ukraine, the EU has been supporting the ICC in investigating crimes committed by Russia in Ukraine. On 1 and 2 March 2022, 39 states party to the Rome Statute, including all EU Member States, made a referral to the ICC, asking its Prosecutor to investigate the situation in Ukraine, even though the country is not yet a party to the Rome Statute. Under current rules, the ICC can investigate a series of crimes but has no jurisdiction for the crime of aggression in this case, as both countries involved need to be ICC parties and to have ratified a specific amendment enabling the launch of an investigation into such a crime. The ICC Prosecutor announced that he had opened an investigation based on the referral. The EU Justice and Home Affairs Council confirmed the importance of fighting impunity and pledged support to the ICC. EU ministers of justice also encouraged Eurojust, the EU Agency for Criminal Justice Cooperation, ‘to fully exercise its coordinating role and to make itself available as required to the Prosecutor of the ICC in connection with the exercise of his duties’. On 18 April, the EU High Representative for Foreign Affairs and Security Policy/Vice-President of the European Commission (HR/VP), Josep Borrell, reaffirmed the EU’s support for the work of the ICC and further stressed that: ‘There can be no impunity for war crimes’. A few days later, it was announced that, for the first time ever, the Office of the Prosecutor of the ICC would take part in the joint investigation team, launched with Eurojust support on 25 March by Lithuania, Poland and Ukraine, on alleged international crimes in Ukraine. On 8 June, the European Commission launched a €7.25 million project to support the investigation capacities of the ICC. On 21 September, Eurojust and the Office of the Prosecutor of the ICC published guidelines to assist civil society organisations in recording information relating to international crimes. On 22 December 2022, the HR/VP announced the setting up of the EU Global Observatory on the Fight against Impunity, with a budget of €20 million. This new body would collect information and share knowledge about ‘genocide, crimes against humanity and other serious human rights violations’. On 17 March 2023, ICC Pre-Trial Chamber II issued an arrest warrant (Article 58 of the Rome Statute) for Vladimir Putin (who is also commander-in-chief of the Russian armed forces) and Maria Lvova-Belova, Russian presidential commissioner for children’s rights. The court had ‘reasonable grounds’ to believe that both of the accused were responsible for the war crime of unlawful deportation and transfer of members of the population, children in particular, since February 2022 (war crimes as defined in Article 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute. The news of the arrest warrant gained immediate international attention. On the EU side, the HR/VP welcomed the ICC decision and recalled the European Council conclusions of 15 December 2022, stressing the need to ensure full accountability for those accused of having committed, inter alia, war crimes in connection with Russia’s war of aggression against Ukraine. Under Article 89(1) of the Rome Statute, all of its states parties are obliged to comply with an ICC request for the arrest and surrender of a person. That said, South Africa is set to host the BRICS summit in August 2023, and is considering a change in national law as well as a waiver under Article 98 of the Rome Statute, to free it from the obligation to arrest the Russian president.
European Parliament position
In its resolution of 1 March 2022, the Parliament strongly condemned ‘the Russian Federation’s illegal, unprovoked and unjustified military aggression against and invasion of Ukraine’, noting that ‘attacks against civilians and civilian infrastructure as well as indiscriminate attacks are prohibited under international humanitarian law and therefore constitute war crimes’. Parliament referred to the numerous reports of ‘violations of international humanitarian law committed by Russian troops, including indiscriminate shelling of living areas, hospitals and kindergartens’. Moreover, Parliament called ‘for the EU and its Member States to work with international bodies to collect evidence and to support and promote the ICC’s jurisdiction and investigation of any war crime committed within the territory of Ukraine since 20 February 2014 onwards’. On 5 May, a Parliament resolution condemned the use of sexual and gender-based violence (GBV) as a weapon of war, insisting that it be prosecuted according to international law and the Rome Statute. On 19 May 2022, Parliament called for the establishment of a ‘special international tribunal for the punishment of the crime of aggression committed against Ukraine by the political leaders and military commanders of Russia and its allies’. On 23 November, Parliament recognised Russia as a state sponsor of terrorism and reiterated its firm demand that ‘all persons responsible for committing, assisting or organising human rights violations, atrocities or war crimes in the context of Russia’s war of aggression against Ukraine must be identified as swiftly as possible, prosecuted and held to account’. It reiterated its support to the ICC and called on the EU and its Member States to support the establishment of a special tribunal. On 16 February 2023, to mark the one-year anniversary since the Russian invasion of Ukraine, Parliament recalled that thousands of civilians and hundreds of children had been forcibly displaced. In particular, it stressed that the forcible displacement of children constitutes the crime of genocide, according to Article II-e of the UN Genocide Convention. Parliament reiterated once again ‘its full support for the work of the International Criminal Court in helping to end impunity for the perpetrators of the most serious crimes of concern to the international community’.
Read this ‘at a glance’ note on ‘The International Criminal Court’s 25th anniversary and World International Justice Day‘ in the Think Tank pages of the European Parliament.