The creation of the International Criminal Court (ICC) reflects the conviction of States that more consistent and effective enforcement of criminal justice is an essential component in deterring crimes and building stability. The creation of at//joc international tribunals (the International Criminal Tribunals for the former Yugoslavia and Rwanda - ICTY and ICTR) and hybrid tribunals (in Sierra Leone, East Timor and Cambodia) were regarded as valuable steps. However, the ad hoc approach entails several disadvantages. Creating a new institution for each situation involves extensive delays, redundancies, inconsistencies and inefficiencies. A permanent institution should overcome these difficulties since it is already up and running, is ready to respond to future situations, accumulates expertise and experience, and ultimately should serve as a more consistent deterrent.
The ICC has a subject matter jurisdiction limited to the most serious crimes of concern to the international community as a whole, namely, genocide, crimes against humanity and war crimes. The crimes are very carefully defined in the Rome Statute of the ICC (Articles 6 to 8) and are discussed in detail in Chapter 3. For even greater precision, the definitions are further elaborated on in the 'Elements of Crimes', a set of guidelines adopted by the States Parties.
The ICC Statute rests on the principle of 'complementarity', which means that the Court shall not substitute the primary responsibility of States to deal with crimes of the kind that also fall under its jurisdiction. Hence, a case is inadmissible before the ICC if a State is genuinely investigating or prosecuting it, or has done so.1 The principle of complementarity is discussed further in Chapter 2 of this Guide.
The temporal jurisdiction of the Court is limited to crimes occurring after the date of entry into force of the Statute, namely 1 July 2002.2 Thus the Court is not a remedy for crimes of the past, which must be addressed by national, other international or hybrid initiatives.
Because the crimes within the jurisdiction of the ICC are those generally recognised as giving rise to universal jurisdiction, it would have been legally feasible to vest the Court with universal jurisdiction over such crimes, since the Court reflects a collective exercise of jurisdiction by the States Parties. Nonetheless, in recognition of the position of some cautious States, the Rome Conference for the creation of the ICC limited the jurisdiction of the Court to those bases most clearly established in criminal law: (1) the territorial principle and (2) the active nationality principle Thus, the Court may act only where its Page 4 jurisdiction has been accepted by the State on whose territory the crime occurred or the State of nationality of the person accused. Acceptance of jurisdiction may be provided automatically, by virtue of being a State Party, or may be provided by a non-State Party making a declaration of acceptance of jurisdiction.3 In addition to these two bases, the Court may also act with respect to any situation referred to it by the United Nations (UN) Security Council, acting pursuant to Chapter VII of the UN Charter.4 These and other principles of jurisdiction are discussed in the next chapter.
The judges of the Court are elected by the Assembly of States Parties. The 18 judges elect three of their number to serve as the Presidency (composed of the President and the First and Second Vice-President). The Presidency is responsible for the proper administration of the Court, with the exception of the Office of the Prosecutor.5
The judges are divided into an Appeals Division, a Trial Division and a Pre-Trial Chamber Division.6 They are responsible for the judicial functions of the Court, namely, ensuring the conduct of fair, effective and open proceedings in accordance with the Statute and other relevant legal instruments and, in so doing, safeguarding the rights of all parties.
The Office of the Prosecutor (OTP) is responsible for receiving and examining referrals and substantiated information on alleged crimes, conducting investigations and conducting prosecutions before the Court.7 The OTP is headed by the Prosecutor, who has full authority over its management and administration.8 However, in the interests of efficiency and consistency, the Prosecutor relies extensively on the Registry for administrative services.
The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court, without prejudice to the functions and powers of the Prosecutor. The Registry is headed by the Registrar, who is elected by the judges and who exercises his or her functions under the authority of the President of the Court.9
An Assembly of States Parties oversees the work of the Court. This provides management oversight, considers and decides the budget for the Court, conducts elections and performs other functions. The Assembly meets at least once per year.10
Although it is distinct from the UN, the ICC was created under its auspices and is designed to have a close and constructive relationship with it.11 This is reflected inter alia in the provisions for Security Council referrals of situations to the Court, Security Council requests for deferral of proceedings12 and the UN's role in the enforcement of ICC judgements. Page 5
An ICC investigation may be triggered in three different ways: (1) by a referral from a State Party, (2) by a referral from the Security Council or (3) by the Prosecutor, acting on his or her own initiative (proprio mow) on the basis of information from any source.13 In each of these situations, the OTP is required to carry out certain steps before an investigation can be initiated.
The alternative of proprio motu initiation of an investigation by the Prosecutor is an extremely important mechanism under the ICC Statute. Any individual or organisation may submit information on alleged crimes to the Prosecutor. The Prosecutor is obliged to protect the confidentiality of the information provided, to analyse all such communications and to provide a response once a determination is reached. The OTP may seek additional information where this is needed in order to reach a determination as to whether or not there is a reasonable basis on which to proceed.
Where the Prosecutor decides to proceed, he or she may seek authorisation from the Pre-Trial Chamber to commence an investigation. In order to grant the request, the Chamber must also be satisfied that there is a reasonable basis to proceed with an investigation and determine that the case appears to fall within the jurisdiction of the Court.14
Where a referral of a situation is received from the Security Council or a State Party, the OTP must analyse the information, and the Prosecutor shall initiate an investigation, unless he or she determines that there is not a reasonable basis to do so. This decision does not require an authorisation by the Pre-Trial Chamber, but the Chamber may review the Prosecutor's decision in certain circumstances.15
Regardless of the trigger mechanism, the basic test is the same: whether there is a reasonable basis to proceed.16 In making this determination, the Prosecutor (and, where engaged, the Pre-Trial Chamber) is required to consider not only whether: (1) there is a reasonable basis to believe that a crime under the Statute has been or is being committed and (2) the case is or would be admissible in accordance with the complementarity criteria, but also whether (3) taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve "the interests of justice".17
The first criterion requires that the OTP have sufficient information regarding the possible crime(s). The second criterion requires a consideration both of the gravity of the situation Page 6 as well as any ongoing or previous national investigations or prosecutions.18 The third criterion contains an important aspect of prosecutorial discretion, and includes an assessment of the gravity of the crime, the interests of victims and various other considerations, such as the age or infirmity of the alleged perpetrator.19
In order to assess these rather complex factors and determine whether an investigation should be commenced upon the referral, the Prosecutor will in general need to collect additional information. This is an arduous task, requiring:
*information on the alleged crimes;
*knowledge of the legal and other circumstances in the State in question;
*national proceedings taking place;
*the security context;
*any relevant local or international initiatives; and
*the views and concerns of local and international actors.
Thus, even before a determination can be reached on whether to start a formal investigation, it is necessary that the OTP carry out considerable analysis and obtain access to relevant information. Assistance and co-operation by States, international and non-governmental organisations (NGOs) and others is therefore essential.