4. International Criminal Court

International Criminal Court

Concept

The International Criminal Court (ICC) is a permanent institution established by the Rome Statute. It exercises jurisdiction over persons for the most serious crimes of international concern referred to in the Statute. Its jurisdiction is complementary to national criminal jurisdictions, not a replacement for them. (Art. 1, Rome Statute)¹

Governing provisions

Articles 1 and 4 address the Court’s establishment, legal status, and powers. Articles 6, 7, and 8 describe genocide, crimes against humanity, and war crimes, respectively. Article 25 concerns individual criminal responsibility, while Article 21 sets out the law the Court applies. (Art. 1, Rome Statute)¹ (Art. 4, Rome Statute)² (Art. 6, Rome Statute)³ (Art. 7, Rome Statute)⁴ (Art. 8, Rome Statute)⁵ (Art. 25, Rome Statute)⁶ (Art. 21, Rome Statute)⁷

Requisites / Rules

• Genocide: The specified act must be committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such. Specified acts include killing group members, causing them serious bodily or mental harm, imposing destructive conditions of life, preventing births, and forcibly transferring children to another group. (Art. 6, Rome Statute)³
• Crimes against humanity: A specified act must form part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack. The listed acts include murder, enslavement, torture, sexual violence, enforced disappearance, and apartheid. (Art. 7, Rome Statute)⁴
• War crimes: Article 8 covers, among other acts, grave breaches of the Geneva Conventions against protected persons or property, including willful killing, torture or inhuman treatment, and unlawful and wanton extensive destruction or appropriation of property not justified by military necessity. The Court has jurisdiction in respect of war crimes in particular when they form part of a plan or policy or a large-scale commission. (Art. 8, Rome Statute)⁵
• Persons responsible: The Court has jurisdiction over natural persons. Individual responsibility under Article 25 includes committing a crime individually, jointly, or through another; ordering, soliciting, or inducing its commission where it occurs or is attempted; and, for the purpose of facilitating the crime, aiding, abetting, or otherwise assisting its commission or attempted commission. (Art. 25, Rome Statute)⁶

Distinctions

Keep the statutory descriptions separate: genocide requires the specified intent to destroy a protected group; crimes against humanity require the stated connection to a widespread or systematic attack on a civilian population; and Article 8 addresses war crimes, including grave breaches against persons or property protected by the relevant Geneva Convention. Do not treat proof of one description as proof of another. (Art. 6, Rome Statute)³ (Art. 7, Rome Statute)⁴ (Art. 8, Rome Statute)⁵

Key doctrines

The Court has international legal personality and the legal capacity necessary to perform its functions. It may exercise its Statute-based functions and powers on the territory of a State Party and, by special agreement, on the territory of another State. Its relationship with the United Nations is to be established through the agreement described in Article 2. (Art. 4, Rome Statute)² (Art. 2, Rome Statute)⁸

Exceptions

Article 21 sets an order of applicable law: first, the Statute, Elements of Crimes, and Rules of Procedure and Evidence; second, where appropriate, applicable treaties and principles and rules of international law; and, failing that, qualifying general principles derived from national legal systems. The Court may also apply principles and rules as interpreted in its previous decisions. Its application and interpretation of law must remain consistent with internationally recognized human rights and free from the adverse distinctions described in Article 21. (Art. 21, Rome Statute)⁷

Bar tip

In an ICC question, identify the alleged crime’s particular statutory description, the natural person’s alleged mode of responsibility, and the Court’s complementary role before discussing applicable law. (Art. 6, Rome Statute)³ (Art. 7, Rome Statute)⁴ (Art. 8, Rome Statute)⁵ (Art. 25, Rome Statute)⁶ (Art. 1, Rome Statute)¹ (Art. 21, Rome Statute)⁷