How does the International Criminal Court work?

The International Criminal Court (ICC) is a permanent international court which was established pursuant to the Rome Statute of the International Criminal Court held in 1998. Countries which have ratified the Rome Statute agree to submit to the jurisdiction of the ICC for crimes which the ICC has jurisdiction to try. The seat of the ICC is in the Hague in the Netherlands.

What are the crimes that can be prosecuted before the ICC?

The ICC has jurisdiction to prosecute cases related to four main crimes. These are: crimes of genocide, crimes against humanity, war crimes, and crimes of aggression.

The ICC can only prosecute individuals who have committed the above crimes, but not countries or groups. The ICC will exercise jurisdiction where crimes of genocide, against humanity or war crimes were committed on or after 1 July 2002 by either the State Party national, or in the territory of a State Party or in a State which has accepted the jurisdiction of the ICC. For crimes of aggression (after 17 July 2018), the Security Council of the UN may need to refer the matter to ICC, whether it involves State Parties or not. The Prosecutor may also initiate an investigation into crimes of aggression on her own accord or on request from a State Party.

The ICC is not meant to replace national courts or the criminal justice system but follows the principle of complementarity. Under the principle of complementarity, it investigates, prosecutes and tries individuals only if the concerned country does not, or is unwilling to do so genuinely.

Independence of the ICC

The ICC is an independent body and an autonomous court. While it is not a part of the United Nations and can try individuals for crimes without the need for a special mandate from the UN, the ICC has entered into a cooperation agreement with the UN.

The ICC is funded by contributions from the countries which are parties to the Rome Statute along with voluntary contributions from governments, international organizations, corporations and other entities.

The Legal Process of the ICC

The legal process that is followed by the ICC when it is investigating and trying cases which fall under its jurisdiction are as follows.

1. Preliminary Examination by Prosecution

   After a crime takes place, the Prosecutor’s office will have to determine if the crime has sufficient evidence to fall within the ICC’s jurisdiction, if there are genuine national proceedings pending and if the investigation would serve the interest of justice and victims. The Prosecution will not investigate if the crimes do not fall within the ICC’s jurisdiction or the criteria for investigation has not been met.

2. Investigation

   Once a suspect has been identified, the Prosecution could request the ICC to summon the suspect or issue an arrest warrant. The arrest warrants are executed by the local police.

3. Pre-Trial Stage

   The pre-trial judges (3 in number) will confirm the suspect’s identity and confirm that the charges are understood by the suspect. The judges will then hear the Prosecution, the defence and the legal representatives of victim and based on the evidence, decide if the case should go to trial.

4. Trial

   Once the case goes to trial, the Prosecution has to prove beyond reasonable doubt that the accused is guilty. For this purpose, the three trial judges will have to review all evidence. The judges will then issue a verdict and award sentences if the accused is found guilty. The judges may also order reparations for victims.

   If the evidence is lacking, the accused is released and the case is closed.

5. Appeal

   The judgement issued by the trial judge (including the order for reparation) can be appealed both by the Defence and the Prosecutor.

   The appellate judges may reject the appeal, amend it or uphold, which then becomes the final judgment.

6. Enforcement

   Sentences issued by the trial judges will be served in countries that have agreed to enforce ICC sentences.

Dr. Hassan Elhais is a legal consultant in Dubai, specializing in the drafting of all statements of claim, memos and consultation on litigation of all manner.