Victims before the International Criminal Court
First permanent, treaty based, international criminal court established to help
end impurity for the perpetrators of the most serious of concern to the
E.g. genocide, war crimes, crimes against humanity, the crime of aggression.
Considers, applies and enforces international law.
How it was created:
o 9 years of negotiations - 120 states adopted the Rome Statute.
o 4 more years before it entered into force – ratification by 60 countries.
o Capacity to try people who are alleged to be individually criminally
responsible for the commission of the gravest of international crimes
and in doing so seeks to address lack of accountability.
o Inherent selectivity and politicisation of proceedings – can‟t prosecute
Charging only the people at the tope/commanders.
o The myth of pure „juridical truth‟ and the misapprehension that
holding individuals to account is the complete answer to global
problem that may be complex and sociological or political in nature.
o Because of the focus on judicial responses, we run the risk of
distracting ourselves from broader responses that might address the
cause of conflict/unrest in the first place.
o Prior to the establishment of the ICC, a number of ad hoc international
criminal law mechanisms operated with discrete judicial functions.
These earlier mechanisms provided a rationale for the establishment of
the ICC and were helpful in crystallising earlier international criminal
Individual criminal responsibility
One key concept solidified in earlier international criminal law jurisprudence
was the concept of individual criminal responsibility.
o The Nuremberg and Tokyo war crimes trials conducted after the
Second World War held the surviving members of the German and
Japanese high command individually to account.
o Whilst the exclusion of allied commanders from the reach of these
tribunals subjected those processes to legitimate criticism as examples
of “victors justice”, the contribution made by them to international
criminal law was significant.
The Ad Hoc war crimes tribunals:
o Later there were the International Criminal Tribunal for the former
Yugoslavia (“the ICTY”) and the International Criminal Tribunal for
Rwanda (“the ICTR”) - both established under United Nations
auspices. These institutions tried a number of people alleged to have had command responsibility for crimes committed during the conflict
and unrest that ravaged Yugoslavia and Rwanda.
How the ICC is set up:
o In respect to its foundational framework, the ICC is not part of the
United Nations system. Rather, it is an independent international
organisation created by an international treaty (“the Rome Statute”).
The Rome Statute:
o Provides the legal basis for the establishment of the Court.
o It contains the definitions of genocide, crimes against humanity and
o A supplementary text of the “Elements of Crimes” provides a
breakdown of the elements of each crime.
o Includes definitions of, inter alia, the crimes of genocide; murder;
extermination; enslavement; deportation or forcible transfer of
population imprisonment in violation of fundamental rules of
international law; torture; rape; persecution against any identifiable
group; enforced disappearance of persons; and apartheid.
o Rome Statute defines crimes, their elements, scope/jurisdiction of the
court (which cases to consider, etc.) –backbone.
Aiding, abetting and assisting:
o Has jurisdiction over individuals accused of these crimes.
Includes those directly responsible for committing the crimes
as well as others who may be liable for the crimes, for example
by aiding, abetting or otherwise assisting in the commission of
a crime. The latter group also includes military commanders or
other superiors whose responsibility is defined in the Statute.
State parties and the Rome Statute:
o There are currently 121 countries that are State Parties to the Rome
o The Rome Statute also charts the authority by which the Prosecutor of
the Court may instigate the process of criminal investigation, the
charging of the accused, the Court‟s exercise of jurisdiction over the
accused, the conduct of a fair trial of the accused and if found guilty,
the Court‟s sentencing of the guilty individual.
o The make up of state parties:
33 are African States, 18 are Asia-Pacific States, 18 are from
Eastern Europe, 27 are from Latin American and Caribbean
States, and 25 are from Western European and other States.
The prosecutorial function and the ICC‟s jurisdiction:
o Prosecutor evaluates the available info and commences an
investigation unless the determine there is no reasonable basis to
o The basis for the valid exercise of jurisdiction is delineated in the
Rome Statute. Jurisdiction is not universal, but rather is based upon
the concepts of territoriality, nationality or is alternatively invoked
through Security Council resolution.
How cases come before the court
Four mechanisms which grant it jurisdiction:
o If the accused is a national of a State party to the Rome Statute. o If the alleged crime took place on the territory of a State Party.
o If a situation is referred to the Court by the UN Security Council. [
o If a State not party to the Statute 'accepts' the Court's jurisdiction.
o Whist the ICC is an international institution and represents the interests
and values of the international community, the Court is structured in
such a way so as to ensure an appropriate respect and deference to
local, regional modalities of justice.
o The central principle of „Complementarity‟ means that the ICC may
only consider matters where a Nation State is unwilling or unable to do
so domestically in the first instance.
The Raison D’etre for victim rights before the ICC
Whilst humanitarian impulses ar