POLS2133 Study Guide - Final Guide: International Criminal Court, Fatou Bensouda, Motu Proprio
(WK 10) THE INTERNATIONAL CRIMINAL COURT
1. Introduction to the International Criminal Court
Key facts:
Headquarters: The Hague
Members: 124 countries
Mandate: “to put an end to impunity for the perpetrators of” war crimes, genocide,
and crimes against humanity, “and this to contribute to the prevention of such crimes”
(ICC Preamble)
Key structure: an “assembly of state parties” to oversee the treat; plus, a criminal
court of 18 judges with jurisdiction over the most series crimes of international
concern, supported by a prosecutor’s office and a staff branch known as the “registry”
Key obligations: the Court may have jurisdiction over a crime if it occurred on the
territory of a state party or was committed by a citizen of a state party, and if the
domestic courts prove themselves unwilling or unable to genuinely carry out an
investigation or prosecution
Enforcement: the Court can impose prison sentences on those found guilty. It has no
police or military capability and relies on national governments to capture and deliver
to it suspects.
The International Criminal Court: What is the ICC?
The ICC is an IO and permanent, treaty-based international court with a mandate to
“help end impunity for the perpetrators of the most series crimes of concern to the
international community”
-ICC was established in 2002, under the terms of the Rome Statute of 1998
-The ICC is located in The Hague, the Netherlands, and its budget comes from
state parties to the Rome Statute, as well as voluntary contributions from
governments, IOs, and individuals (€147.4M for 2018). The ICC is not a UN
agency.
-Conducts criminal prosecutions of individuals at the individual level, and so
contrasts clearly with the ICJ’s power to adjudicate dispute between states
The ICC performs two separate functions:
(1) The Court ensures that states standardize their domestic laws on war crimes,
genocide, and crimes against humanity. By doing this, it helps spread the idea
that these crimes will not go unpunished in the parts of the world controlled by
countries that are ICC members
(2) Provides the institutional framework and the legal authority to prosecute these
crimes in those cases where a state fails in its obligations to do so itself
The ICC consists of 5 organs:
1. Presidency: external relations and internal coordination of judicial matters
2. Judicial Divisions: 18 judges in Pre-Trial, Trial, and Appeals Divisions
3. The Office of the Prosecutor: preliminary examinations, investigations, and
prosecutions. The current ICC Prosecutor is Fatou Bensouda from Gambia.
4. The Registry: administrative and operational support
The Assembly of State Parties oversees the ICC system, electing judges and the
Prosecutor, approving the ICC budget, and amending the Rome Statute
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The ICC illustrates a common dilemma among IOs: they create new centers of
power by pooling the resources and authorities of their members and other
actors, but they thereby open themselves to failure when those players refuse to
go along with the organization
The International Criminal Court: Jurisdiction
The ICC has jurisdiction over genocide, crimes against humanity, and war crimes
committed since 1 July 2002.
-The maximum penalty for these international crimes is life imprisonment, not
capital punishment.
-The ICC is having jurisdiction over the crime of aggression as of 17 July
2018.
-The ICC targets individual perpetrators, not the state as a whole.
The ICC follows the principle of complementarity.
-The ICC exercises jurisdiction if and only if the national criminal justice
system is unwilling or unable to “genuinely carry out the investigation or
prosecution.”
The Office of the Prosecutor opens an investigation through:
(1) referral by a state accepting the ICC jurisdiction (e.g. Uganda, Democratic
Republic of the Congo, Central African Republic, Mali);
(2) referral by the UN Security Council (e.g. Sudan, Libya); or
(3) proprio motu (“on its own initiative”) investigation by the ICC Prosecutor (e.g.
Côte d’Ivoire, Kenya, Georgia, Burundi).
The International Criminal Court: Obligations
The ICC Statute defines the powers of the new Court – most of these are powers that
relate to how the Court treats individuals who appear before it as accused
The main obligation that the Statute imposes on its states parties is to “cooperate fully
with the Court in its investigation and prosecution of crimes within the jurisdiction of
the Court”
The Court demands that its member state facilitate all aspects of investigation,
prosecution, and incarceration – lacks prisons, police force, detectives, etc.
The most distinctive contribution of the Court is that it allows international law to
reach down to the level of individual persons
Three test which a claim of jurisdiction over a person must pass:
(1) the Court can have jurisdiction over an individual only if the person is suspected
of one of the crimes listed in Article 5 (war crimes, genocide, crimes against
humanity)
(2) must be a connection between the individual or the crime and an ICC state -
Article 12(2): crime must have been committed on the territory of a state party or
the accused must be a citizen of a state party
(3) the courts of the domestic jurisdiction must have failed to genuinely investigate
and prosecute the matter
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The ICC is secondary to domestic courts – has no authority in any case where the
domestic courts are doing their work – Article 17
The International Criminal Court: Compliance
Due to the recent creation of the ICC, there is little history to base an assessment of
states compliance
Evidence that the ICC has had a significant impact in world politics in a short term:
-The relatively rapid rate of states joining the Rome Statute -2/3 countries in less
than 10 years
-Evidence that the Court’s obligations enter into the internal discussions of states
as they consider their policy choices
The cohort of states that haven’t joined the Court includes 3/5 permanent members of
the UNSC – as well as India, Pakistan and Israel
UK Governor General – Goldsmith claimed that the threat of ICC
prosecution/investigations is in the minds of some high government officials, in the
UK at least, and this has motivated them to ensure that they maintain some plausible
level of compliance with the terms of the Court
The International Criminal Court: Enforcement
The language of enforcement can be used in at least 3 ways with respect to the ICC:
(1) Obligations on states to cooperate with the Court can be thought of as implying
the possibility of enforcement against non-compliant member states
(2) Because the Court is itself an instrument of enforcement of international criminal
law, we can also ask about the punishments the Court can in theory impose on
individuals whom it convicts
(3) We might ask about the practice of enforcement: How has the Court conducted
itself in real cases of international crimes?
Beyond the failure to pay one’s share of the Court expenses which can limit a
members power to vote in the UNGA of State Parties, the failure to perform as
mandated by the Statute is not the subject of any formal enforcement procedure or
sanction
The enforcement of international law directly upon individuals put states themselves
in an odd position must remove themselves from the representative of their citizen,
and instead must provide assistance to the Court to catch a suspect
The ICC has no machinery for apprehending suspects, for policing – relies
entirely on member states – obligated to help under Part 9 of the Statute
It is the UNSC’s authority under the UN Charter that makes it possible for the ICC to
investigate cases outside the domain of its member states – increasing the power and
reach of the Court
2. The International Criminal Court: Why Did States Create the ICC?
Neoliberal Institutionalism: Why Did States Create the ICC?
Neoliberal institutionalism claims that states create IOs as a functional response to
high material interdependence among states. As a rationalist IR theory, it does not
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Document Summary
Mandate: to put an end to impunity for the perpetrators of war crimes, genocide, and crimes against humanity, and this to contribute to the prevention of such crimes (icc preamble) Enforcement: the court can impose prison sentences on those found guilty. It has no police or military capability and relies on national governments to capture and deliver to it suspects. The icc is an io and permanent, treaty-based international court with a mandate to. Help end impunity for the perpetrators of the most series crimes of concern to the international community . Icc was established in 2002, under the terms of the rome statute of 1998. The icc is located in the hague, the netherlands, and its budget comes from state parties to the rome statute, as well as voluntary contributions from governments, ios, and individuals ( 147. 4m for 2018).
